Gender role incongruence and the adjudication of criminal responsibility.

AuthorVeysey, Bonita M.
PositionWrongful Convictions: Understanding and Addressing Criminal Injustice

ABSTRACT

The mental health and criminal justice systems are two of the major control mechanisms in American society that often function together through related and interdependent structures to identify and control deviant behavior. Both systems employ coercive control. In addition, regardless of the specific form of the deviance, these control institutions also use informal social control to reinforce role behaviors appropriate to the individual's age, sex, race/ethnicity, and other social statuses.

This paper investigates the effects of gender and gender role incongruence on the determination of criminal responsibility. Data for this study came from the Insanity Defense Reform Project, a National Institute of Mental Health-funded study of eight states. The sample for this study consists of 4842 cases in which insanity was raised as a defense.

Consistent with earlier studies, women are more likely to be found not guilty by reason of insanity (NGRI) than men, but the odds of being found NGRI are moderated by the defendant's sex and relationship to the victim. Consistent with hypotheses of the effects of gender role incongruence, women whose victims are their own children or other family members (not including spouse victims) have the greatest odds of being found NGRI of any group. However, women whose victims are spouses have similar odds of being found NGRI as those of men whose spouses are the victims. Thus, the theory was only partially supported, suggesting that how and the degree to which courtroom personnel rely on common stereotypes and gender expectations in decision making is complicated and may reflect a weighing of factors related to blameworthiness and dangerousness--both physical and symbolic.

  1. INTRODUCTION

    The insanity defense has a long history in English and American jurisprudence reflecting a longstanding belief that those who have little ability to understand the consequences of an act, or know that their behavior is wrong, should not be held criminally responsible for their actions. (1) Yet the American public is often incensed when persons who commit particularly heinous crimes are found Not Guilty by Reason of Insanity (NGRI). (2) In high profile cases there appears to be a public discourse weighing the defendant's blameworthiness against his or her threat to society, which is fueled by the media's misrepresentation of the connection between mental illness and violence. (3)

    The insanity defense has drawn enormous attention over the years, disproportionate to the frequency of its use. (4) In reality, the insanity defense is invoked in less than one percent of all felony trials and only twenty-six percent of those pleas result in an NGRI verdict. (5) Even though the actual numbers are quite small, the American public and attorneys alike believe that the defense is invoked frequently and principally in cases involving murder. (6) Despite these perceptions, most cases that involve an insanity plea are not for murder charges (7) and are cases in which the evidence of mental illness is so overwhelming that the prosecution does not contest the insanity plea. (8)

    At the heart of the defense is the question of mens rea, that is, criminal intent. (9) Most commonly, insanity is substantiated by medical evidence of mental illness. (10) However, the mere presence of a mental illness is insufficient unless it can be demonstrated that the illness was directly related to the state of mind at the time of the offense and of sufficient strength to qualify the defendant as criminally insane. (11) On the other hand, a finding of insanity does not necessarily require evidence of a diagnosable mental disorder. Bizarre behavior, thoughts, emotional states, manner, or speech may also provide evidence for an insanity determination. (12) Evidence of the state of mind at the time of the offense may be presented by expert testimony or lay opinion testimony. (13) Expert testimony is commonly given by a mental health professional based upon hypotheticals or direct observations, including interviews and assessments. (14) Opinion testimony may be offered by a layperson who had observed the defendant and may contain descriptions such as unusual or bizarre speech, manner, or behavior. (15) Physical evidence from the crime itself also may provide evidence of insanity. (16) Thus, aberrations from the norm, both common sense notions and clinical evidence, may be introduced to support a plea.

    Kittrie observed that "[individuals described as mentally disordered are often at variance with the conventions and mores of society. The very symptoms of what we commonly define as mental illness, being primarily behavioral rather than physiological, mark those afflicted by it as socially deviant." (17) Kittrie's insight that what we call mental illness must be inferred from behavioral deviations from the norm is critical in the context of the insanity defense. This insight suggests that the same behavioral information that helps mental health professionals diagnose mental illnesses may be used to provide evidence of insanity. The problem here is that clinicians do not always interpret behaviors in the same manner. Mental health professionals, like others, bring to their work their personal experiences and biases and may draw different conclusions based upon unique attitudes and beliefs. (18) In the absence of meaningful, clear, and reliable diagnostics and clear, measureable standards of evidence, this vagueness allows court participants to interpret behavior in multiple ways, sometimes allowing decision making to be based on common sense notions of appropriateness or predictability, leading one observer to note: "If your psychiatric labels aren't clear and the legal standards that you use to feed them into decisions are foggy, fog times fog equals fog squared." (19)

    The amount of interpretation required by mental health professionals and laypersons to make decisions allows great opportunity for information that is irrelevant to the adjudication process to influence decision making. The determination of insanity may be particularly susceptible to implicit attempts to control role incongruent behavior, particularly as it relates to gender roles.

    The purpose of this study is to determine the extent to which extralegal factors, particularly gender and gender role inconsistency, are related to a finding of NGRI. Data from an eight-state study of cases involving insanity pleas are used to evaluate these effects.

  2. GENDER AND THE INSANITY DEFENSE

    While little information exists on the profiles of NGRI defendants in general, there is even less available on the characteristics of female NGRI defendants. (20) However, when data do exist, the characteristics of women who are found NGRI tend to be similar across jurisdictions. One of the recurring findings is that women consistently are overrepresented among those found NGRI in comparison to the general prison population. (21) A set of studies with samples from Canada, (22) Colorado, (23) Connecticut, (24) Missouri, (25) and Oregon (26) that focus specifically on females who were found NGRI reveals a consistent profile. Among the key findings from these studies are that, in comparison to male counterparts, women: (1) are older, (27) (2) are more likely to be married, (28) (3) are less likely to have current or past substance abuse, (29) (4) have fewer arrests for violence (30) and less extensive criminal histories, (31) and (5) are more likely to be charged with murder. (32) Their diagnoses also differ from those of men, (33) particularly in the rates of affective disorders and borderline personality disorder. (34) They are more likely to be found NGRI than men (35) and spend less time in secure hospitals than men. (36)

    Several researchers speculate that some subgroups of individuals, including women, are found NGRI based not on mental illness but on status and inadequate role performance. (37) For example, Pasewark and colleagues note that approximately half of their female NGRI sample (fourteen of twenty-nine) had killed their children and state that " [although some in this group had obvious psychotic symptoms, from psychiatric reports there would seem to be many more whose basic condition was one of inadequacy as mothers and homemakers." (38) They conclude:

    Essentially, we should suspect that because of the mores of society concerning motherhood, there is a tendency for citizens, including psychiatrists and judges, to label hostility against children as a reflection of aberrant thought processes or behavior. Rather than accepting the fact that the child is that person with whom the mother probably has the most interpersonal contact and is therefore the most likely target for the mother's hostility, we instead view infanticide as abnormal and thus preserve our illusions of motherhood and the mother-child relationship. (39) This observation is borne out in experimental studies involving insanity-related decision making. Gender (and racial) stereotypes have been shown to play a role in outcome judgments in mock cases of filicide (40) and clinicians' assessments of insanity, (41) leading Dunn and colleagues to conclude that there are more severe consequences for "unexpected" behavior. (42)

  3. METHODS

    1. The Insanity Defense Reform Project

      The Insanity Defense Reform Project was an eight-state study of insanity defense reforms before and after the Hinckley decision; those states were California, Georgia, Montana, New Jersey, New York, Ohio, Washington, and Wisconsin. (43) A sample of counties from each state was selected. (44) Since no centralized information...

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