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Criminal responsibility assessment in Switzerland: changes and continuity
Eur Psychiatry 2001 ; 16 : 483-90 © 2001 Éditions scientifiques et médicales Elsevier SAS. All rights reserved S0924933801006101/FLA
ORIGINAL ARTICLE
Criminal responsibility assessment in Switzerland: changes and continuity G. Niveau*, E. Sozonets Forensic Psychiatry Unit, Institut Universitaire de Médecine Légale, Avenue de Champel 9, 1211 Geneva 4, Switzerland (Received 15 February 2000; accepted 18 April 2001)
Summary – Background. The factors that experts use to assess criminal responsibility are not very well known. Changes in the importance attributed to certain diagnoses are occasionally mentioned in the literature. The aim of this study is to identify the existence and the nature of such modifications. Method. We compared the socio-demographic, criminological and psychiatric characteristics of two samples of psychiatric assessments carried out in Geneva, Switzerland in 1973–74 (N = 75) and 1997–98 (N = 94). Results. The two groups of subjects described by the experts’ reports appear to be quite different in several characteristics. However, the rate at which experts conclude their reports in favour of diminished responsibility was not found to be significantly different. The logistic regression shows that the diagnosis of personality disorder is the only variable that influenced the experts differently for the 1997–98 period compared to the 1973–74 period. Conclusion. In Geneva, psychiatric experts still continue to ascribe diminished responsibility to offenders suffering from psychosis or depression. However, the population that undergoes psychiatric assessments nowadays has changed considerably. © 2001 Éditions scientifiques et médicales Elsevier SAS criminal responsibility / forensic psychiatry / insanity defence / offenders / psychiatric expertise
INTRODUCTION The assessment of criminal responsibility can be considered the result of an encounter between the legal system and psychiatric practice [5]. Several studies have shown that the work and conclusions of experts can vary between different States [22] or after modifications have been made in criminal law [11]. Other studies have emphasized the role of subjective factors such as personal convictions or professional training [3, 12]. Changes in the experts’ opinion due to the transformation of knowledge and currents of thought within psychiatry itself are also sometimes mentioned, but
*Correspondence and reprints.
these are more difficult to establish. Thus, Nedopil [15] believes the diagnosis of schizophrenia should not be systematically associated with criminal irresponsibility, as progress has been made in regards to treatment and rehabilitation. This author asserts that the experts’ opinion has been influenced by the evolution in the systems of classification of how psychosis is perceived, namely the DSM-III [1]. He shows that a high rate of perpetrators of severe assaults who have been diagnosed as schizophrenics are no longer considered irresponsible. Many other pathologies have sparked debates about their increasing or decreasing importance in the forensic setting [2, 4, 8, 16, 18]. But most of the authors base
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their studies on actual findings and do not have representative samples of psychiatric assessment practices in past years at their disposal. This is mostly due to the changes that frequently take place in criminal law and customs of the States in regards to the practice of criminal responsibility assessment [7, 10, 11]. In Switzerland, the criminal law provisions defining the assignment, or mission, of psychiatric experts have not been modified since 1971. In Geneva, these assignments are attributed to different psychiatrists throughout the city and are centralised at the Institute of Forensic Medicine. Therefore, there exists both continuity and unity of place, which is favourable to the study of changes inherent in the expert’s work itself. The aim of this study is to compare criminal responsibility assessments as they were carried out in the 1970s with the assessment reports that are carried out today, and to see if the values attributed to certain diagnoses in the assessment of criminal responsibility differs between the two time periods. MATERIALS AND METHOD This study was designed as a repeated cross-sectioned study. The sample consisted of the criminal responsibility assessment reports carried out in Geneva during the two periods under evaluation. We only included adult subjects over 18 years of age and excluded cases of total irresponsibility as their number was statistically too low. The first group (73–74 group) consisted of assessments made in the years 1973 and 1974 (N = 75). This period marks the first time when the assessment reports were compiled at the Institute of Forensic Medicine in the University of Geneva. The second group (97–98 group) consisted of assessments made in the years 1997 and 1998 (N = 94). For each assessment, 32 variables were noted. They involve three types of information: socio-demographic, criminological and medical-psychological. These are all categorial variables. The variable ‘diagnosis’ was codified using the ICD 10 classification of the World Health Organisation [23]. For the 1973–74 group, the diagnoses were re-codified based on this classification criteria. When we were unable to make these transformations, we codified the diagnosis as ‘other mental disorder’ or ‘other personality disorder’.
For each group, we established two subgroups according to whether the experts’ conclusion was total responsibility or diminished responsibility. The statistical analysis first consisted of searching for significant differences between the two groups as well as within each subgroup. We used the χ2 test. The significance level was set at P < 0.05. A logistic regression model was used to explore the possible predictors of diminished responsibility. The adjusted odds ratio and 95% confidence intervals were then calculated. All analysis were two-tailed. They were done using SPSS software, version 7.5. RESULTS Comparison of the assessments carried out in 1973–74 with those carried out in 1997–98 Socio-demographic variables Table I shows the social and demographic variables of the subjects for each group and subgroup. The subjects described in the 73–74 survey were clearly much younger than those for the 97–98 group. This difference is also found within each subgroup of responsibility. On the other hand, the proportion of men compared to women was remarkably stable for both periods (approximately 8.5 for 1.5). The increase in the percentage of foreigners is not significant from one group to the other, but within the subgroup of subjects assessed as having diminished responsibility, there were clearly more foreigners in the 97–98 group. The percentage of people raised entirely or partially in institutions was higher in the 73–74 group. However, the difference is not significant in the subgroups. Regardless of the period, it appears that at least half of the subjects assessed were unemployed at the time of their offence. The increase in the number of people receiving social assistance or a pension is quite distinct. As many as 18% of the subjects from the 97–98 group were concerned by this variable. This consists of 60% receiving unemployment and health benefits, 10% unemployment benefits and 30% other forms of State pensions. The distribution of professions varied little over time. Those subjects without a profession are still more numerous, or approximately 50–60%. On the other hand, the educational level of the assessed subjects has improved irrespective of the degree of responsibility that is attributed. Eur Psychiatry 2001 ; 16 : 483–90
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Criminal responsibility assessment in Switzerland Table I. Socio-demographic characteristics of subjects in psychiatric assessments (percentages in parentheses). Non-diminished responsibility
Age 18–29 years 30 and more Gender Men Women Nationality Swiss Other Child’s living conditions With parents In institution Schooling level None or primary Secondary/apprentice University Profession None Worker Employee/craftsman Manager Employment Yes No Allowance With Without Marital status Single Married/cohabiting Divor./sep./widow. Children None One or more
Diminished responsibility
73–74 group N = 24
97–98 group N = 40
73–74 group N = 51
14 (58.3) 10 (41.7)
9 (22.5)1 31 (77.5)
35 (68.6)2 16 (31.4)
21 (87.5) 3 (12.5)
37 (92.5) 3 (7.5)
10 (41.7) 14 (58.3)
97–98 group N = 54
Total 73–74 group N = 75
97–98 group N = 94
21 (38.9) 33 (61.1)
49 (65.3) 26 (34.7)
30 (31.9)3 64 (68.1)
45 (88.2) 6 (11.8)
43 (79.6) 11 (20.4)
66 (88) 9 (12)
80 (85.1) 14 (14.9)
19 (47.5) 21 (52.5)
38 (74.5) 13 (25.5)
28 (51.9)4 26 (48.4)
48 (64) 27 (36)
47 (50) 47 (50)
18 (75) 6 (25)
36 (90) 4 (10)
40 (78.4) 11 (21.6)
48 (88.9) 6 (11.1)
58 (77.3) 17 (22.7)
84 (89.4)5 10 (10.6)
13 (54.2) 10 (41.7) 1 (4.2)
12 (30) 22 (55) 6 (15)
38 (74.5) 11 (21.6) 2 (3.9)
19 (35.2)6 30 (55.6) 5 (9.3)
51 (68) 21 (28) 3 (4)
31 (33)7 52 (55.3) 11 (11.7)
12 (50) 4 (16.7) 7 (29.2) 1 (4.2)
17 (42.5) 9 (22.5) 10 (25) 4 (10)
31 (60.8) 14 (27.5) 4 (7.8) 2 (3.9)
30 (55.6) 12 (22.2) 10 (18.5) 2 (3.7)
43 (57.3) 18 (24) 11 (14.7) 3 (4)
47 (50) 21 (22.3) 20 (21.3) 6 (6.4)
14 (58.3) 10 (41.7)
20 (50) 20 (50)
24 (47.1) 27 (52.9)
18 (33.3) 36 (66.7)
37 (49.3) 38 (50.7)
56 (59.6) 38 (40.4)
0 24 (100)
8 (20)8 32 (80)
1 (2.2) 50 (98)
9 (16.7)9 45 (83.3)
1 (1.3) 74 (98.7)
17 (18.1)10 77 (81.9)
9 (37.5) 15 (62.5) 0
14 (35) 23 (57.5) 3 (7.5)
30 (58.8) 12 (23.5) 9 (17.6)
27 (50) 20 (37) 7 (13)
39 (52) 27 (36) 9 (12)
41 (43.6) 43 (45.7) 10 (10.6)
13 (54.2) 11 (45.8)
13 (32.5) 27 (67.5)
36 (70.6) 15 (29.4)
26 (48.1)11 28 (51.9)
49 (65.3) 26 (34.7)
39 (41.5)12 55 (58.5)
1 df = 1; χ2 = 8.37; P < 0.005; 2df = 1; χ2 = 9.32; P < 0.005; 3df = 1; χ2 = 18.72; P < 0.001; 4df = 1; χ2 = 5.77; P < 0.05; 5df = 1; χ2 = 4.50; P < 0.05; 6df =2; χ2 = 16.35; P < 0.001; 7df =2; χ2 = 20.74; P < 0.001; 8df = 1; χ2 = 5.49; P < 0.05; 9df = 1; χ2 = 6.58; P < 0.05; 10df = 1; χ2 = 12.3; P < 0.001; 11df = 1; χ2 = 5.46; P < 0.05; 12df = 1; χ2 = 9.50; P < 0.005.
There was very little change in marital status, although the number of assessed subjects with children increased significantly in the 97–98 group, particularly within the subgroup of subjects evaluated as having diminished responsibility. Criminological variables Table II shows that the two groups of subjects show markedly different criminological characteristics. Legal antecedents are much less severe in the 97–98 group. We find this difference irrespective of the degree of responsibility attributed by the experts. Eur Psychiatry 2001 ; 16 : 483–90
The types of charges are also distributed differently. Homicides and attempted homicides, as well as misdemeanours and sexual crimes, were more frequent among the 97–98 group, whereas robberies and fraud account for most of the charges in the 73–74 group. This distribution difference is also found within the subgroup of those subjects having diminished responsibility, but not in the subgroup of people considered responsible. In the more recent study group, it appears that the victims were more frequently close relatives of the
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Table II. Criminological characteristics of subjects in psychiatric assessments (percentages in parentheses). Non-diminished responsibility
Legal antecedents None or minor Mild Severe Type of offence Homicide/attempted Sexual assault Assault Drug offence Robbery Fraud Others Relationship with the victim None Acquaintance Close relation Admission of the facts Total Partial or null
Diminished responsibility
Total
73–74 group N = 24
97–98 group N = 40
73–74 group N = 51
97–98 group N = 54
73–74 group N = 75
97–98 group N = 94
11 (45.8) 9 (37.5) 4 (16.7)
32 (80)1 6 (15) 2 (5)
14 (27.5) 26 (51) 11 (21.6)
37 (68.5)2 14 (25.9) 3 (5.6)
25 (33.3) 35 (46.7) 15 (20)
69 (73.4)3 20 (21.3) 5 (5.3)
0 4 (16.7) 2 (8.3) 1 (4.2) 12 (50) 5 (20.8) 0
2 (5) 23 (57.5) 2 (5) 5 (12.5) 2 (5) 5 (12.5) 1 (2.5)
3 (5.9) 6 (11.8) 7 (13.7) 8 (15.7) 20 (39.2) 6 (11.8) 1 (2)
10 (18.5)4 10 (18.5) 8 (14.8) 6 (11.1) 9 (11.1) 1 (1.9) 10 (18.5)
3 (4) 10 (13.3) 9 (12) 9 (12) 32 (42.7) 11 (14.7) 1 (1.3)
12 (12.8)5 33 (35.1) 10 (10.6) 11 (11.7) 11 (11.7) 6 (6.4) 11 (11.7)
17 (70.8) 6 (25) 1 (4.2)
14 (35)6 12 (30) 14 (35)
40 (78.4) 8 (15.7) 3 (5.9)
27 (50)7 13 (24.1) 14 (25.9)
57 (76) 14 (18.7) 4 (5.3)
41 (43.6)8 25 (26.6) 28 (29.8)
23 (95.8) 1 (4.2)
22 (55)9 18 (45)
50 (98) 1 (2)
41 (75.9)10 13 (24.1)
73 (97.3) 2 (2.7)
63 (67)11 31 (33)
df = 2; χ2 = 8.02; P < 0.05; 2df = 2; χ2 = 18.47; P < 0.001; 3df = 2; χ2 = 27.90; P < 0.001; 4df = 6; χ2 = 20.16; P < 0.005; 5df = 6; χ2 = 36.34; P < 0.001; 6df = 2; χ2 = 10.19; P < 0.01; 7df = 2; χ2 = 10.75; P < 0.01; 8df = 2; χ2 = 21.86; P < 0.001; 9df = 1; χ2 = 11.98; P < 0.005; 10 df = 1; χ2 = 11.10; P < 0.005; 11df = 1; χ2 = 24.39; P < 0.001. 1
assessed, while for the most part they had no relationship with their offender in the 73–74 group. Finally, whereas almost all the subjects in the 73–74 group admitted to being the perpetrator of the act(s) for which he or she was charged, a large proportion of the subjects in the 97–98 group denied the accusations, either totally or in part. Medico-psychiatric variables The two groups also differ in their medical and psychiatric characteristics, as shown by table III. In the 97–98 group, the number of subjects having no prior psychiatric history is significantly higher than in the 73–74 group. We also notice this for the two subgroups according to degree of responsibility. Moreover, the subjects having severe antecedents, such as numerous or extended hospitalisations, are also more frequent in the 97–98 group, particularly in the diminished responsibility subgroup. The distribution of diagnoses found in the antecedents of the subjects is different for the two groups. Psychosis was two times more prevalent in the 97–98
group, while personality disorder was attributed twice as often to subjects in the 73–74 group. The distribution of diagnoses found in the assessments is also different for the two groups. In comparison to the 73–74 group, depression was twice as frequent in the 97–98 group and psychotic disorder four times as frequent. But, we also noticed 1.5 times more absences of diagnosis. Personality disorders were twice as common within the 73–74 group. Such differences are present in the diminished responsibility subgroup as well. Analysis of the secondary diagnosis shows a difference in distribution, with a consistently higher frequency of personality disorder diagnosis in the 73–74 group. There was generally very little somatic co-morbidity. It is nevertheless more frequently mentioned in the 97–98 assessments, particularly in the diminished responsibility subgroup. As for the role of alcohol or drugs at the time of committing the crime, there is no significant difference between the two periods. Eur Psychiatry 2001 ; 16 : 483–90
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Criminal responsibility assessment in Switzerland Table III. Medical and psychiatric characteristics of subjects in psychiatric assessments (percentages in parentheses). Variables
Psychiatric antecedents None Slight Mild Severe Previous diagnosis None Depressive disorders Psychotic disorders Personality disorders Substance abuse/dependence Others Primary diagnosis None Depressive disorders Psychotic disorders Personality disorders Substance abuse/dependence Others Secondary diagnosis None Depressive disorders Personality disorders Substance abuse/dependence Others Physical disease Yes No Alcohol interference Yes No Drug interference Yes No
Non-diminished responsibility
Diminished responsibility
Total
73–74 group N = 24
97–98 group N = 40
73–74 group N = 51
97–98 group N = 54
73–74 group N = 75
97–98 group N = 94
13 (54.2) 8 (33.3) 2 (8.3) 1 (4.2)
32 (80) 4 (10) 3 (7.5) 1 (2.5)
16 (31.4) 22 (43.1) 12 (23.5) 1 (2)
25 (46.3)1 9 (16.7) 11 (20.4) 9 (16.7)
29 (38.7) 30 (40) 14 (18.7) 2 (2.7)
57 (60.6)2 13 (13.8) 14 (14.9) 10 (10.6)
20 (83.3) 1 (4.2) 0 3 (12.5) 0 0
36 (90) 1 (2.5) 1 (2.5) 0 0 2 (5)
25 (49) 8 (15.7) 3 (5.9) 7 (13.7) 6 (11.8) 2 (3.9)
34 (63) 6 (11.1) 8 (14.8) 3 (5.6) 1 (1.9) 2 (3.7)
45 (60) 9 (12) 3 (4) 10 (13.3) 6 (8) 2 (2.7)
70 (74.5)3 7 (7.4) 9 (9.6) 3 (3.2) 1 (1.1) 4 (4.3)
8 (33.2) 1 (4.2) 1 (4.2) 11 (45.8) 1 (4.2) 2 (8.4)
16 (40) 1 (2.5) 1 (2.5) 14 (35) 3 (7.5) 5 (12.5)
1 (2) 3 (5.9) 3 (5.9) 36 (70.6) 6 (11.8) 2 (3.9)
1 (1.9)4 11 (20.4) 14 (25.9) 16 (29.6) 2 (3.7) 10 (18.5)
9 (12) 4 (5.3) 4 (5.3) 47 (62.7) 7 (9.4) 4 (5.3)
17 (18.1)5 12 (12.8) 15 (16) 30 (31.9) 5 (5.3) 15 (16)
19 (79.2) 1 (4.2) 2 (8.3) 2 (8.3) 0
37 (92.5) 0 1 (2.5) 1 (2.5) 1 (2.5)
22 (44) 4 (8) 11 (22) 6 (12) 7 (14)
36 (66.7)6 1 (1.9) 6 (11.1) 10 (18.5) 1 (1.9)
41 (55.4) 5 (6.8) 13 (17.6) 8 (10.8) 7 (9.5)
73 (77.7)7 1 (1.1) 7 (7.4) 11 (11.7) 2 (2.1)
1 (4.2) 23 (95.8)
3 (7.5) 37 (92.5)
2 (3.9) 49 (96.1)
9 (16.7)8 45 (83.3)
3 (4) 72 (96)
12 (12.8)9 82 (87.2)
1 (4.2) 23 (95.8)
1 (2.5) 39 (97.5)
11 (21.6) 40 (78.4)
10 (18.5) 44 (81.5)
12 (16) 63 (84)
11 (11.7) 83 (88.3)
3 (12.5) 21 (87.5)
4 (10) 36 (90)
15 (29.4) 36 (70.6)
13 (24.1) 41 (75.9)
18 (24) 57 (76)
17 (18.1) 77 (81.9)
df = 3; χ2 = 13.80; P < 0.005; 2df = 3; χ2 = 19.28; P < 0.001; 3df = 5; χ2 = 14.74; P < 0.05; 4df = 5; χ2 = 26.65; P < 0.001; 5df = 5; χ2 = 20.28; P < 0.005; 6df = 4; χ2 = 12; P < 0.05; 7df = 4; χ2 = 14.53; P < 0.01; 8df = 1; χ2 = 4.54; P < 0.05; 9df = 1; χ2 = 3.96; P < 0.05. 1
Rate of diminished responsibility in 1973–74 and 1997–98
Variables contributing to diminished responsibility
The overall comparison of the expert’s assessments in favour of diminished responsibility shows no significant difference. In the 73–74 group, 68% of the subjects were considered partially or totally responsible, compared to 57.4% in the 97–98 group (df = 1 ; χ2 = 1.98 ; P = 0.16).
Diminished responsibility being the dependent variable, the independent variables chosen for the multivariate analysis were those that presented either a high enough degree of significance or a specific psychiatric interest.
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Table IV. Possible predictors of diminished responsibility in the 97–98 group versus the 73–74 group (logistic regression analysis). 97–98 group vs 73–74 group No diagnosis Depressive disorders Psychotic disorders Personality disorders Substance abuse/dependence Others
Odds ratio
95% CI
0.51 3.67 4.67 0.35 0.11 3.90
(0.03; 9.07) (0.17; 77.56) (0.22; 97.50) (0.13; 0.94) (0.01; 1.78) (0.53; 29.79)
Table IV shows that personality disorder was the only diagnosis that significantly modified the experts’ opin ion between the two periods. This diagnosis very clearly decreased the risk of diminished responsibility in 1997–98 in comparison to 1973–74. On the other hand, psychotic disorders do not significantly lead to diminished responsibility more often when comparing the two groups. The same is true for the diagnosis of depression or addictive behaviour. DISCUSSION Methodological considerations Various factors reduced the possibility of making sound generalisations or comparisons in our study. The legal system inherent to Switzerland interferes in the assessment process and influences how the notion of responsibility is attributed. The social and economic context of Geneva also plays a role as regards the population studies, and therefore the types of criminality. Furthermore, on a strictly methodological level, the limited size of some of the subgroups made it difficult to carry out statistical analysis. Thus, some regrouping had to be done, particularly with respect to the diagnoses and the qualifications of the criminal acts. However, the exhaustive nature of the study and the absence of any changes in the legal systems between the two periods allow us to make certain statements and hypotheses, and to compare our results with studies carried out in neighbouring jurisdictions. Comparison with other studies One of the important findings of our study is the fact that the assessed populations were clearly different according to the period considered. The 1997–98 group, in comparison to the 1973–74 group, was made
up largely of older subjects, who more often than not had children, better schooling and more solid social standing, but who also showed a more severe psychiatric pathology and history. As shown by the information given by the local Office of Statistics [17], this evolution corresponds in part to the general evolution of society in Geneva and in Switzerland in general: development of social assistance, better medical care and an ageing population. These similarities nevertheless do not suffice to explain the changes. Indeed, the criminal population does not evolve in exactly the same way as the general population. For example, the average age of criminals tended to decrease between 1974 and 1998. Changes in the two groups of our study derive from multiple factors, as does the judge’s attitude towards ordering an assessment. In their study, Dell and Smith [7] show that the social and demographic characteristics of the subjects with diminished responsibility only varied slightly for the period between 1966 and 1977 in England. However, Touari et al. [21], in a study of 3,984 assessments carried out between 1963 and 1986, found important variations tending to show an increase in the frequency of psychiatric history for the assessed subjects, and a decrease in the percentage of subjects charged with homicide or attempted homicide. Likewise, in a study carried out in Germany by Hollweg [11] covering the period from 1971 to 1988, psychiatric consultation was only systematically requested for the most serious crimes, such as homicide and attempted homicide, in the first years of the study. After 1975, assessments were requested more often for different types of crimes, such as robbery and sexual crimes. The stability or variability of the social, demographic and criminological characteristics of the assessed subjects seems to depend not only on the period studied, but also on the social context and the medical habits prevailing in the region. As for the experts’ conclusions, our study brings to light that in spite of the changes in the assessed population, the number of subjects considered as having a diminished responsibility did not considerably vary in Geneva over 25 years. Hollweg’s study [11] shows that rulings in favour of diminished responsibility between 1971 and 1988 fluctuated significantly in Germany, or from 50 to 80%. According to Hollweg, these variations may be partially explained by changes in the legal system. In England, Dell and Smith [7] observed that the absolute number of aggressive offenders admitted as having diminished responsibility at the time of their acts regularly increased Eur Psychiatry 2001 ; 16 : 483–90
Criminal responsibility assessment in Switzerland
between 1966 and 1977. In the USA, where the legal system is very different, the number of subjects assessed as having diminished responsibility is tremendously low. According to a study done in 1987–1988 by Warren et al. [22], satisfactory criteria for an insanity defence are only met in 13% of the cases in Ohio, 9% in Virginia and 7% in Michigan. Finally, our study tends to show that the role of diagnosis in the experts’ decision-making process has not changed in Geneva at the same rate that changes in psychiatry would lead us believe. In fact, the diagnosis of psychosis still leads to an almost systematic diminution of criminal responsibility in 1997–98 as in 1973–74. On the other hand, the diagnosis of personality disorder is both less common and less often taken into consideration as a factor in diminished responsibility. These results are difficult to compare with other studies because the research which has been published does not use similar methodology. However, we notice that several authors mention a much higher number of subjects considered responsible among the assessed subjects suffering from psychotic disorders at the time of their acts. Kunjukrishnan and Bradford [14] found that out of 155 schizophrenics assessed in Canada between 1979 and 1981, 28% were considered totally responsible. Durst et al. [9] observed in Israel that 25% of the subjects assessed as psychotics were deemed responsible. In our study, for the most recently assessed group (1997–98), only one of the 16 assessed subjects diagnosed as psychotic was considered responsible. As for the diagnosis of personality disorder, its frequency in assessments has been noted by several authors, including Callahan et al. [6] and Reichlin et al. [19]. It is usually established, however, that its influence on criminal responsibility assessment is very weak [20]. For certain authors in the USA, such as Osran and Weinberg [16], personality disorders simply cannot satisfy the usual legal standards. According to the definition of the American Psychiatric Association [13], only disorders that may be qualified as ‘serious’ may be considered, which is not the case for personality disorders. CONCLUSION Finally, it has been found that criminal responsibility assessment is a complex process that remains very dependant on regional and national customs. Although the situation has evolved over time, it does not always do so Eur Psychiatry 2001 ; 16 : 483–90
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in the same direction in every country. And it is not necessarily desirable to make the expert’s work uniform, for his or her considerations must take into account the psychiatric context and the local criminal culture. The psychiatric and criminal treatments undertaken after the judge’s ruling must be in accordance with the assessment made before it. REFERENCES 1 American Psychiatric Association. Diagnostic and statistical manual of mental disorders, (DSM III), 3rd ed. Washington DC: APA Press; 1980. 2 Appelbaum PS, Grisso T. Posttraumatic stress disorder and the insanity defence: reply. Am J Psychiatry 1994 ; 151 : 153. 3 Beckham JC, Annis LV, Gustafson DJ. Decision making and examiner bias in forensic expert recommendations for not guilty by reason of insanity. Law Hum Behav 1989 ; 13 : 79. 4 Borum R, Appelbaum KL. Epilepsy, aggression and criminal responsibility. Psychiatr Serv 1996 ; 47 : 762-3. 5 Bursztajn HJ, Scherr JD, Brodsky A. The rebirth of forensic psychiatry in light of recent historical trends in criminal responsibility. Psychiatr Clin North Am 1994 ; 17 : 611-35. 6 Callahan LA, Robbins PC, Steadman HJ, Morrissey JP. The hidden effects of Montana’s “abolition” of the insanity defence. Psychiatr Q 1995 ; 66 : 103-17. 7 Dell S, Smith A. Changes in the sentencing of diminished responsibility homicides. Br J Psychiatry 1983 ; 142 : 20-34. 8 Dinwiddie SH. Genetics, antisocial personality and criminal responsibility. Bull Am Acad Psychiatry Law 1996 ; 24 : 95-108. 9 Durst R, Jabotinsky-Rubin K, Ginath Y. A look at court appointed psychiatric evaluations in Israel with special reference to criminal liability. Med Law 1993 ; 12 : 153-63. 10 Gibbons P, Mulryan N, O’Connor A. Guilty but insane: the insanity defence in Ireland, 1850–1995. Br J Psychiatry 1997 ; 170 : 467-72. 11 Hollweg M. Modification of criminal law and its impact on psychiatric expert opinions. Int J Law Psychiatry 1998 ; 21 : 109-16. 12 Homant RJ, Kennedy DB. Subjective factors in the judgment of insanity. Crim Just Behav 1987 ; 14 : 38. 13 Insanity Defense Work Group. American Psychiatric Association statement on the insanity defense. Am J Psychiatry 1983 ; 140 : 681-8. 14 Kunjukrishnan R, Bradford MW. Schizophrenia an major affective disorder: forensic psychiatric issues. Can J Psychiatry 1988 ; 33 : 723-33. 15 Nedopil N. Violence of psychotic patients: how much responsibility can be attributed? Int J Law Psychiatry 1997 ; 20 : 243-7. 16 Osran HC, Weinberger LE. Personality disorders and “restoration to sanity”. Bull Am Acad Psychiatry Law 1994 ; 22 : 257-67. 17 Office cantonal de la statistique. Annuaire statistique du canton de Genève. Genevea: publisher; 1975, 1999. 18 Piper A Jr. Multiple personality disorder. Br J Psychiatry 1994 ; 164 : 600-12. 19 Reichlin SM, Bloom JD, Williams MH. Excluding personality disorders from the insanity defense–a follow-up study. Bull Am Acad Psychiatry Law 1993 ; 21 : 91-100.
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ORIGINAL ARTICLE
Criminal responsibility assessment in Switzerland: changes and continuity G. Niveau*, E. Sozonets Forensic Psychiatry Unit, Institut Universitaire de Médecine Légale, Avenue de Champel 9, 1211 Geneva 4, Switzerland (Received 15 February 2000; accepted 18 April 2001)
Summary – Background. The factors that experts use to assess criminal responsibility are not very well known. Changes in the importance attributed to certain diagnoses are occasionally mentioned in the literature. The aim of this study is to identify the existence and the nature of such modifications. Method. We compared the socio-demographic, criminological and psychiatric characteristics of two samples of psychiatric assessments carried out in Geneva, Switzerland in 1973–74 (N = 75) and 1997–98 (N = 94). Results. The two groups of subjects described by the experts’ reports appear to be quite different in several characteristics. However, the rate at which experts conclude their reports in favour of diminished responsibility was not found to be significantly different. The logistic regression shows that the diagnosis of personality disorder is the only variable that influenced the experts differently for the 1997–98 period compared to the 1973–74 period. Conclusion. In Geneva, psychiatric experts still continue to ascribe diminished responsibility to offenders suffering from psychosis or depression. However, the population that undergoes psychiatric assessments nowadays has changed considerably. © 2001 Éditions scientifiques et médicales Elsevier SAS criminal responsibility / forensic psychiatry / insanity defence / offenders / psychiatric expertise
INTRODUCTION The assessment of criminal responsibility can be considered the result of an encounter between the legal system and psychiatric practice [5]. Several studies have shown that the work and conclusions of experts can vary between different States [22] or after modifications have been made in criminal law [11]. Other studies have emphasized the role of subjective factors such as personal convictions or professional training [3, 12]. Changes in the experts’ opinion due to the transformation of knowledge and currents of thought within psychiatry itself are also sometimes mentioned, but
*Correspondence and reprints.
these are more difficult to establish. Thus, Nedopil [15] believes the diagnosis of schizophrenia should not be systematically associated with criminal irresponsibility, as progress has been made in regards to treatment and rehabilitation. This author asserts that the experts’ opinion has been influenced by the evolution in the systems of classification of how psychosis is perceived, namely the DSM-III [1]. He shows that a high rate of perpetrators of severe assaults who have been diagnosed as schizophrenics are no longer considered irresponsible. Many other pathologies have sparked debates about their increasing or decreasing importance in the forensic setting [2, 4, 8, 16, 18]. But most of the authors base
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their studies on actual findings and do not have representative samples of psychiatric assessment practices in past years at their disposal. This is mostly due to the changes that frequently take place in criminal law and customs of the States in regards to the practice of criminal responsibility assessment [7, 10, 11]. In Switzerland, the criminal law provisions defining the assignment, or mission, of psychiatric experts have not been modified since 1971. In Geneva, these assignments are attributed to different psychiatrists throughout the city and are centralised at the Institute of Forensic Medicine. Therefore, there exists both continuity and unity of place, which is favourable to the study of changes inherent in the expert’s work itself. The aim of this study is to compare criminal responsibility assessments as they were carried out in the 1970s with the assessment reports that are carried out today, and to see if the values attributed to certain diagnoses in the assessment of criminal responsibility differs between the two time periods. MATERIALS AND METHOD This study was designed as a repeated cross-sectioned study. The sample consisted of the criminal responsibility assessment reports carried out in Geneva during the two periods under evaluation. We only included adult subjects over 18 years of age and excluded cases of total irresponsibility as their number was statistically too low. The first group (73–74 group) consisted of assessments made in the years 1973 and 1974 (N = 75). This period marks the first time when the assessment reports were compiled at the Institute of Forensic Medicine in the University of Geneva. The second group (97–98 group) consisted of assessments made in the years 1997 and 1998 (N = 94). For each assessment, 32 variables were noted. They involve three types of information: socio-demographic, criminological and medical-psychological. These are all categorial variables. The variable ‘diagnosis’ was codified using the ICD 10 classification of the World Health Organisation [23]. For the 1973–74 group, the diagnoses were re-codified based on this classification criteria. When we were unable to make these transformations, we codified the diagnosis as ‘other mental disorder’ or ‘other personality disorder’.
For each group, we established two subgroups according to whether the experts’ conclusion was total responsibility or diminished responsibility. The statistical analysis first consisted of searching for significant differences between the two groups as well as within each subgroup. We used the χ2 test. The significance level was set at P < 0.05. A logistic regression model was used to explore the possible predictors of diminished responsibility. The adjusted odds ratio and 95% confidence intervals were then calculated. All analysis were two-tailed. They were done using SPSS software, version 7.5. RESULTS Comparison of the assessments carried out in 1973–74 with those carried out in 1997–98 Socio-demographic variables Table I shows the social and demographic variables of the subjects for each group and subgroup. The subjects described in the 73–74 survey were clearly much younger than those for the 97–98 group. This difference is also found within each subgroup of responsibility. On the other hand, the proportion of men compared to women was remarkably stable for both periods (approximately 8.5 for 1.5). The increase in the percentage of foreigners is not significant from one group to the other, but within the subgroup of subjects assessed as having diminished responsibility, there were clearly more foreigners in the 97–98 group. The percentage of people raised entirely or partially in institutions was higher in the 73–74 group. However, the difference is not significant in the subgroups. Regardless of the period, it appears that at least half of the subjects assessed were unemployed at the time of their offence. The increase in the number of people receiving social assistance or a pension is quite distinct. As many as 18% of the subjects from the 97–98 group were concerned by this variable. This consists of 60% receiving unemployment and health benefits, 10% unemployment benefits and 30% other forms of State pensions. The distribution of professions varied little over time. Those subjects without a profession are still more numerous, or approximately 50–60%. On the other hand, the educational level of the assessed subjects has improved irrespective of the degree of responsibility that is attributed. Eur Psychiatry 2001 ; 16 : 483–90
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Criminal responsibility assessment in Switzerland Table I. Socio-demographic characteristics of subjects in psychiatric assessments (percentages in parentheses). Non-diminished responsibility
Age 18–29 years 30 and more Gender Men Women Nationality Swiss Other Child’s living conditions With parents In institution Schooling level None or primary Secondary/apprentice University Profession None Worker Employee/craftsman Manager Employment Yes No Allowance With Without Marital status Single Married/cohabiting Divor./sep./widow. Children None One or more
Diminished responsibility
73–74 group N = 24
97–98 group N = 40
73–74 group N = 51
14 (58.3) 10 (41.7)
9 (22.5)1 31 (77.5)
35 (68.6)2 16 (31.4)
21 (87.5) 3 (12.5)
37 (92.5) 3 (7.5)
10 (41.7) 14 (58.3)
97–98 group N = 54
Total 73–74 group N = 75
97–98 group N = 94
21 (38.9) 33 (61.1)
49 (65.3) 26 (34.7)
30 (31.9)3 64 (68.1)
45 (88.2) 6 (11.8)
43 (79.6) 11 (20.4)
66 (88) 9 (12)
80 (85.1) 14 (14.9)
19 (47.5) 21 (52.5)
38 (74.5) 13 (25.5)
28 (51.9)4 26 (48.4)
48 (64) 27 (36)
47 (50) 47 (50)
18 (75) 6 (25)
36 (90) 4 (10)
40 (78.4) 11 (21.6)
48 (88.9) 6 (11.1)
58 (77.3) 17 (22.7)
84 (89.4)5 10 (10.6)
13 (54.2) 10 (41.7) 1 (4.2)
12 (30) 22 (55) 6 (15)
38 (74.5) 11 (21.6) 2 (3.9)
19 (35.2)6 30 (55.6) 5 (9.3)
51 (68) 21 (28) 3 (4)
31 (33)7 52 (55.3) 11 (11.7)
12 (50) 4 (16.7) 7 (29.2) 1 (4.2)
17 (42.5) 9 (22.5) 10 (25) 4 (10)
31 (60.8) 14 (27.5) 4 (7.8) 2 (3.9)
30 (55.6) 12 (22.2) 10 (18.5) 2 (3.7)
43 (57.3) 18 (24) 11 (14.7) 3 (4)
47 (50) 21 (22.3) 20 (21.3) 6 (6.4)
14 (58.3) 10 (41.7)
20 (50) 20 (50)
24 (47.1) 27 (52.9)
18 (33.3) 36 (66.7)
37 (49.3) 38 (50.7)
56 (59.6) 38 (40.4)
0 24 (100)
8 (20)8 32 (80)
1 (2.2) 50 (98)
9 (16.7)9 45 (83.3)
1 (1.3) 74 (98.7)
17 (18.1)10 77 (81.9)
9 (37.5) 15 (62.5) 0
14 (35) 23 (57.5) 3 (7.5)
30 (58.8) 12 (23.5) 9 (17.6)
27 (50) 20 (37) 7 (13)
39 (52) 27 (36) 9 (12)
41 (43.6) 43 (45.7) 10 (10.6)
13 (54.2) 11 (45.8)
13 (32.5) 27 (67.5)
36 (70.6) 15 (29.4)
26 (48.1)11 28 (51.9)
49 (65.3) 26 (34.7)
39 (41.5)12 55 (58.5)
1 df = 1; χ2 = 8.37; P < 0.005; 2df = 1; χ2 = 9.32; P < 0.005; 3df = 1; χ2 = 18.72; P < 0.001; 4df = 1; χ2 = 5.77; P < 0.05; 5df = 1; χ2 = 4.50; P < 0.05; 6df =2; χ2 = 16.35; P < 0.001; 7df =2; χ2 = 20.74; P < 0.001; 8df = 1; χ2 = 5.49; P < 0.05; 9df = 1; χ2 = 6.58; P < 0.05; 10df = 1; χ2 = 12.3; P < 0.001; 11df = 1; χ2 = 5.46; P < 0.05; 12df = 1; χ2 = 9.50; P < 0.005.
There was very little change in marital status, although the number of assessed subjects with children increased significantly in the 97–98 group, particularly within the subgroup of subjects evaluated as having diminished responsibility. Criminological variables Table II shows that the two groups of subjects show markedly different criminological characteristics. Legal antecedents are much less severe in the 97–98 group. We find this difference irrespective of the degree of responsibility attributed by the experts. Eur Psychiatry 2001 ; 16 : 483–90
The types of charges are also distributed differently. Homicides and attempted homicides, as well as misdemeanours and sexual crimes, were more frequent among the 97–98 group, whereas robberies and fraud account for most of the charges in the 73–74 group. This distribution difference is also found within the subgroup of those subjects having diminished responsibility, but not in the subgroup of people considered responsible. In the more recent study group, it appears that the victims were more frequently close relatives of the
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Table II. Criminological characteristics of subjects in psychiatric assessments (percentages in parentheses). Non-diminished responsibility
Legal antecedents None or minor Mild Severe Type of offence Homicide/attempted Sexual assault Assault Drug offence Robbery Fraud Others Relationship with the victim None Acquaintance Close relation Admission of the facts Total Partial or null
Diminished responsibility
Total
73–74 group N = 24
97–98 group N = 40
73–74 group N = 51
97–98 group N = 54
73–74 group N = 75
97–98 group N = 94
11 (45.8) 9 (37.5) 4 (16.7)
32 (80)1 6 (15) 2 (5)
14 (27.5) 26 (51) 11 (21.6)
37 (68.5)2 14 (25.9) 3 (5.6)
25 (33.3) 35 (46.7) 15 (20)
69 (73.4)3 20 (21.3) 5 (5.3)
0 4 (16.7) 2 (8.3) 1 (4.2) 12 (50) 5 (20.8) 0
2 (5) 23 (57.5) 2 (5) 5 (12.5) 2 (5) 5 (12.5) 1 (2.5)
3 (5.9) 6 (11.8) 7 (13.7) 8 (15.7) 20 (39.2) 6 (11.8) 1 (2)
10 (18.5)4 10 (18.5) 8 (14.8) 6 (11.1) 9 (11.1) 1 (1.9) 10 (18.5)
3 (4) 10 (13.3) 9 (12) 9 (12) 32 (42.7) 11 (14.7) 1 (1.3)
12 (12.8)5 33 (35.1) 10 (10.6) 11 (11.7) 11 (11.7) 6 (6.4) 11 (11.7)
17 (70.8) 6 (25) 1 (4.2)
14 (35)6 12 (30) 14 (35)
40 (78.4) 8 (15.7) 3 (5.9)
27 (50)7 13 (24.1) 14 (25.9)
57 (76) 14 (18.7) 4 (5.3)
41 (43.6)8 25 (26.6) 28 (29.8)
23 (95.8) 1 (4.2)
22 (55)9 18 (45)
50 (98) 1 (2)
41 (75.9)10 13 (24.1)
73 (97.3) 2 (2.7)
63 (67)11 31 (33)
df = 2; χ2 = 8.02; P < 0.05; 2df = 2; χ2 = 18.47; P < 0.001; 3df = 2; χ2 = 27.90; P < 0.001; 4df = 6; χ2 = 20.16; P < 0.005; 5df = 6; χ2 = 36.34; P < 0.001; 6df = 2; χ2 = 10.19; P < 0.01; 7df = 2; χ2 = 10.75; P < 0.01; 8df = 2; χ2 = 21.86; P < 0.001; 9df = 1; χ2 = 11.98; P < 0.005; 10 df = 1; χ2 = 11.10; P < 0.005; 11df = 1; χ2 = 24.39; P < 0.001. 1
assessed, while for the most part they had no relationship with their offender in the 73–74 group. Finally, whereas almost all the subjects in the 73–74 group admitted to being the perpetrator of the act(s) for which he or she was charged, a large proportion of the subjects in the 97–98 group denied the accusations, either totally or in part. Medico-psychiatric variables The two groups also differ in their medical and psychiatric characteristics, as shown by table III. In the 97–98 group, the number of subjects having no prior psychiatric history is significantly higher than in the 73–74 group. We also notice this for the two subgroups according to degree of responsibility. Moreover, the subjects having severe antecedents, such as numerous or extended hospitalisations, are also more frequent in the 97–98 group, particularly in the diminished responsibility subgroup. The distribution of diagnoses found in the antecedents of the subjects is different for the two groups. Psychosis was two times more prevalent in the 97–98
group, while personality disorder was attributed twice as often to subjects in the 73–74 group. The distribution of diagnoses found in the assessments is also different for the two groups. In comparison to the 73–74 group, depression was twice as frequent in the 97–98 group and psychotic disorder four times as frequent. But, we also noticed 1.5 times more absences of diagnosis. Personality disorders were twice as common within the 73–74 group. Such differences are present in the diminished responsibility subgroup as well. Analysis of the secondary diagnosis shows a difference in distribution, with a consistently higher frequency of personality disorder diagnosis in the 73–74 group. There was generally very little somatic co-morbidity. It is nevertheless more frequently mentioned in the 97–98 assessments, particularly in the diminished responsibility subgroup. As for the role of alcohol or drugs at the time of committing the crime, there is no significant difference between the two periods. Eur Psychiatry 2001 ; 16 : 483–90
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Criminal responsibility assessment in Switzerland Table III. Medical and psychiatric characteristics of subjects in psychiatric assessments (percentages in parentheses). Variables
Psychiatric antecedents None Slight Mild Severe Previous diagnosis None Depressive disorders Psychotic disorders Personality disorders Substance abuse/dependence Others Primary diagnosis None Depressive disorders Psychotic disorders Personality disorders Substance abuse/dependence Others Secondary diagnosis None Depressive disorders Personality disorders Substance abuse/dependence Others Physical disease Yes No Alcohol interference Yes No Drug interference Yes No
Non-diminished responsibility
Diminished responsibility
Total
73–74 group N = 24
97–98 group N = 40
73–74 group N = 51
97–98 group N = 54
73–74 group N = 75
97–98 group N = 94
13 (54.2) 8 (33.3) 2 (8.3) 1 (4.2)
32 (80) 4 (10) 3 (7.5) 1 (2.5)
16 (31.4) 22 (43.1) 12 (23.5) 1 (2)
25 (46.3)1 9 (16.7) 11 (20.4) 9 (16.7)
29 (38.7) 30 (40) 14 (18.7) 2 (2.7)
57 (60.6)2 13 (13.8) 14 (14.9) 10 (10.6)
20 (83.3) 1 (4.2) 0 3 (12.5) 0 0
36 (90) 1 (2.5) 1 (2.5) 0 0 2 (5)
25 (49) 8 (15.7) 3 (5.9) 7 (13.7) 6 (11.8) 2 (3.9)
34 (63) 6 (11.1) 8 (14.8) 3 (5.6) 1 (1.9) 2 (3.7)
45 (60) 9 (12) 3 (4) 10 (13.3) 6 (8) 2 (2.7)
70 (74.5)3 7 (7.4) 9 (9.6) 3 (3.2) 1 (1.1) 4 (4.3)
8 (33.2) 1 (4.2) 1 (4.2) 11 (45.8) 1 (4.2) 2 (8.4)
16 (40) 1 (2.5) 1 (2.5) 14 (35) 3 (7.5) 5 (12.5)
1 (2) 3 (5.9) 3 (5.9) 36 (70.6) 6 (11.8) 2 (3.9)
1 (1.9)4 11 (20.4) 14 (25.9) 16 (29.6) 2 (3.7) 10 (18.5)
9 (12) 4 (5.3) 4 (5.3) 47 (62.7) 7 (9.4) 4 (5.3)
17 (18.1)5 12 (12.8) 15 (16) 30 (31.9) 5 (5.3) 15 (16)
19 (79.2) 1 (4.2) 2 (8.3) 2 (8.3) 0
37 (92.5) 0 1 (2.5) 1 (2.5) 1 (2.5)
22 (44) 4 (8) 11 (22) 6 (12) 7 (14)
36 (66.7)6 1 (1.9) 6 (11.1) 10 (18.5) 1 (1.9)
41 (55.4) 5 (6.8) 13 (17.6) 8 (10.8) 7 (9.5)
73 (77.7)7 1 (1.1) 7 (7.4) 11 (11.7) 2 (2.1)
1 (4.2) 23 (95.8)
3 (7.5) 37 (92.5)
2 (3.9) 49 (96.1)
9 (16.7)8 45 (83.3)
3 (4) 72 (96)
12 (12.8)9 82 (87.2)
1 (4.2) 23 (95.8)
1 (2.5) 39 (97.5)
11 (21.6) 40 (78.4)
10 (18.5) 44 (81.5)
12 (16) 63 (84)
11 (11.7) 83 (88.3)
3 (12.5) 21 (87.5)
4 (10) 36 (90)
15 (29.4) 36 (70.6)
13 (24.1) 41 (75.9)
18 (24) 57 (76)
17 (18.1) 77 (81.9)
df = 3; χ2 = 13.80; P < 0.005; 2df = 3; χ2 = 19.28; P < 0.001; 3df = 5; χ2 = 14.74; P < 0.05; 4df = 5; χ2 = 26.65; P < 0.001; 5df = 5; χ2 = 20.28; P < 0.005; 6df = 4; χ2 = 12; P < 0.05; 7df = 4; χ2 = 14.53; P < 0.01; 8df = 1; χ2 = 4.54; P < 0.05; 9df = 1; χ2 = 3.96; P < 0.05. 1
Rate of diminished responsibility in 1973–74 and 1997–98
Variables contributing to diminished responsibility
The overall comparison of the expert’s assessments in favour of diminished responsibility shows no significant difference. In the 73–74 group, 68% of the subjects were considered partially or totally responsible, compared to 57.4% in the 97–98 group (df = 1 ; χ2 = 1.98 ; P = 0.16).
Diminished responsibility being the dependent variable, the independent variables chosen for the multivariate analysis were those that presented either a high enough degree of significance or a specific psychiatric interest.
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Table IV. Possible predictors of diminished responsibility in the 97–98 group versus the 73–74 group (logistic regression analysis). 97–98 group vs 73–74 group No diagnosis Depressive disorders Psychotic disorders Personality disorders Substance abuse/dependence Others
Odds ratio
95% CI
0.51 3.67 4.67 0.35 0.11 3.90
(0.03; 9.07) (0.17; 77.56) (0.22; 97.50) (0.13; 0.94) (0.01; 1.78) (0.53; 29.79)
Table IV shows that personality disorder was the only diagnosis that significantly modified the experts’ opin ion between the two periods. This diagnosis very clearly decreased the risk of diminished responsibility in 1997–98 in comparison to 1973–74. On the other hand, psychotic disorders do not significantly lead to diminished responsibility more often when comparing the two groups. The same is true for the diagnosis of depression or addictive behaviour. DISCUSSION Methodological considerations Various factors reduced the possibility of making sound generalisations or comparisons in our study. The legal system inherent to Switzerland interferes in the assessment process and influences how the notion of responsibility is attributed. The social and economic context of Geneva also plays a role as regards the population studies, and therefore the types of criminality. Furthermore, on a strictly methodological level, the limited size of some of the subgroups made it difficult to carry out statistical analysis. Thus, some regrouping had to be done, particularly with respect to the diagnoses and the qualifications of the criminal acts. However, the exhaustive nature of the study and the absence of any changes in the legal systems between the two periods allow us to make certain statements and hypotheses, and to compare our results with studies carried out in neighbouring jurisdictions. Comparison with other studies One of the important findings of our study is the fact that the assessed populations were clearly different according to the period considered. The 1997–98 group, in comparison to the 1973–74 group, was made
up largely of older subjects, who more often than not had children, better schooling and more solid social standing, but who also showed a more severe psychiatric pathology and history. As shown by the information given by the local Office of Statistics [17], this evolution corresponds in part to the general evolution of society in Geneva and in Switzerland in general: development of social assistance, better medical care and an ageing population. These similarities nevertheless do not suffice to explain the changes. Indeed, the criminal population does not evolve in exactly the same way as the general population. For example, the average age of criminals tended to decrease between 1974 and 1998. Changes in the two groups of our study derive from multiple factors, as does the judge’s attitude towards ordering an assessment. In their study, Dell and Smith [7] show that the social and demographic characteristics of the subjects with diminished responsibility only varied slightly for the period between 1966 and 1977 in England. However, Touari et al. [21], in a study of 3,984 assessments carried out between 1963 and 1986, found important variations tending to show an increase in the frequency of psychiatric history for the assessed subjects, and a decrease in the percentage of subjects charged with homicide or attempted homicide. Likewise, in a study carried out in Germany by Hollweg [11] covering the period from 1971 to 1988, psychiatric consultation was only systematically requested for the most serious crimes, such as homicide and attempted homicide, in the first years of the study. After 1975, assessments were requested more often for different types of crimes, such as robbery and sexual crimes. The stability or variability of the social, demographic and criminological characteristics of the assessed subjects seems to depend not only on the period studied, but also on the social context and the medical habits prevailing in the region. As for the experts’ conclusions, our study brings to light that in spite of the changes in the assessed population, the number of subjects considered as having a diminished responsibility did not considerably vary in Geneva over 25 years. Hollweg’s study [11] shows that rulings in favour of diminished responsibility between 1971 and 1988 fluctuated significantly in Germany, or from 50 to 80%. According to Hollweg, these variations may be partially explained by changes in the legal system. In England, Dell and Smith [7] observed that the absolute number of aggressive offenders admitted as having diminished responsibility at the time of their acts regularly increased Eur Psychiatry 2001 ; 16 : 483–90
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between 1966 and 1977. In the USA, where the legal system is very different, the number of subjects assessed as having diminished responsibility is tremendously low. According to a study done in 1987–1988 by Warren et al. [22], satisfactory criteria for an insanity defence are only met in 13% of the cases in Ohio, 9% in Virginia and 7% in Michigan. Finally, our study tends to show that the role of diagnosis in the experts’ decision-making process has not changed in Geneva at the same rate that changes in psychiatry would lead us believe. In fact, the diagnosis of psychosis still leads to an almost systematic diminution of criminal responsibility in 1997–98 as in 1973–74. On the other hand, the diagnosis of personality disorder is both less common and less often taken into consideration as a factor in diminished responsibility. These results are difficult to compare with other studies because the research which has been published does not use similar methodology. However, we notice that several authors mention a much higher number of subjects considered responsible among the assessed subjects suffering from psychotic disorders at the time of their acts. Kunjukrishnan and Bradford [14] found that out of 155 schizophrenics assessed in Canada between 1979 and 1981, 28% were considered totally responsible. Durst et al. [9] observed in Israel that 25% of the subjects assessed as psychotics were deemed responsible. In our study, for the most recently assessed group (1997–98), only one of the 16 assessed subjects diagnosed as psychotic was considered responsible. As for the diagnosis of personality disorder, its frequency in assessments has been noted by several authors, including Callahan et al. [6] and Reichlin et al. [19]. It is usually established, however, that its influence on criminal responsibility assessment is very weak [20]. For certain authors in the USA, such as Osran and Weinberg [16], personality disorders simply cannot satisfy the usual legal standards. According to the definition of the American Psychiatric Association [13], only disorders that may be qualified as ‘serious’ may be considered, which is not the case for personality disorders. CONCLUSION Finally, it has been found that criminal responsibility assessment is a complex process that remains very dependant on regional and national customs. Although the situation has evolved over time, it does not always do so Eur Psychiatry 2001 ; 16 : 483–90
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in the same direction in every country. And it is not necessarily desirable to make the expert’s work uniform, for his or her considerations must take into account the psychiatric context and the local criminal culture. The psychiatric and criminal treatments undertaken after the judge’s ruling must be in accordance with the assessment made before it. REFERENCES 1 American Psychiatric Association. Diagnostic and statistical manual of mental disorders, (DSM III), 3rd ed. Washington DC: APA Press; 1980. 2 Appelbaum PS, Grisso T. Posttraumatic stress disorder and the insanity defence: reply. Am J Psychiatry 1994 ; 151 : 153. 3 Beckham JC, Annis LV, Gustafson DJ. Decision making and examiner bias in forensic expert recommendations for not guilty by reason of insanity. Law Hum Behav 1989 ; 13 : 79. 4 Borum R, Appelbaum KL. Epilepsy, aggression and criminal responsibility. Psychiatr Serv 1996 ; 47 : 762-3. 5 Bursztajn HJ, Scherr JD, Brodsky A. The rebirth of forensic psychiatry in light of recent historical trends in criminal responsibility. Psychiatr Clin North Am 1994 ; 17 : 611-35. 6 Callahan LA, Robbins PC, Steadman HJ, Morrissey JP. The hidden effects of Montana’s “abolition” of the insanity defence. Psychiatr Q 1995 ; 66 : 103-17. 7 Dell S, Smith A. Changes in the sentencing of diminished responsibility homicides. Br J Psychiatry 1983 ; 142 : 20-34. 8 Dinwiddie SH. Genetics, antisocial personality and criminal responsibility. Bull Am Acad Psychiatry Law 1996 ; 24 : 95-108. 9 Durst R, Jabotinsky-Rubin K, Ginath Y. A look at court appointed psychiatric evaluations in Israel with special reference to criminal liability. Med Law 1993 ; 12 : 153-63. 10 Gibbons P, Mulryan N, O’Connor A. Guilty but insane: the insanity defence in Ireland, 1850–1995. Br J Psychiatry 1997 ; 170 : 467-72. 11 Hollweg M. Modification of criminal law and its impact on psychiatric expert opinions. Int J Law Psychiatry 1998 ; 21 : 109-16. 12 Homant RJ, Kennedy DB. Subjective factors in the judgment of insanity. Crim Just Behav 1987 ; 14 : 38. 13 Insanity Defense Work Group. American Psychiatric Association statement on the insanity defense. Am J Psychiatry 1983 ; 140 : 681-8. 14 Kunjukrishnan R, Bradford MW. Schizophrenia an major affective disorder: forensic psychiatric issues. Can J Psychiatry 1988 ; 33 : 723-33. 15 Nedopil N. Violence of psychotic patients: how much responsibility can be attributed? Int J Law Psychiatry 1997 ; 20 : 243-7. 16 Osran HC, Weinberger LE. Personality disorders and “restoration to sanity”. Bull Am Acad Psychiatry Law 1994 ; 22 : 257-67. 17 Office cantonal de la statistique. Annuaire statistique du canton de Genève. Genevea: publisher; 1975, 1999. 18 Piper A Jr. Multiple personality disorder. Br J Psychiatry 1994 ; 164 : 600-12. 19 Reichlin SM, Bloom JD, Williams MH. Excluding personality disorders from the insanity defense–a follow-up study. Bull Am Acad Psychiatry Law 1993 ; 21 : 91-100.
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