Rethinking Criminal Responsibility from a Critical Disability Perspective: The Abolition of Insanity/Incapacity Acquittals and Unfitness to Plead, and Beyond
Griffith Law Review, Vol. 23(3), 2014 DOI/10.1080/10383441.2014.1013177
60 Pages Posted: 11 Mar 2017
Date Written: 2014
Viewed from a critical disability perspective, criminal responsibility requires both formal and substantive equality. This article examines criminal responsibility using provisions of the Convention on the Rights on Persons with Disabilities (CRPD) on equal recognition before the law, access to justice, liberty and security of the person, and equality and non-discrimination. In light of the CRPD, declarations of unfitness to plead, the negation of criminal responsibility based on disability or alleged incapacity, as well as commitment to psychiatric institutions in either a civil or criminal context, are discriminatory measures contrary to the rights of persons with disabilities, and must be abolished. Beyond abolition, which will achieve formal equality, this article proposes an inclusively designed framework that may meet the need for substantive equality between persons with disabilities and others in the adjudication of criminal responsibility.
Keywords: CRPD, Convention on the Rights of Persons with Disabilities, Insanity Defense, Criminal Responsibility, Insanity Defense Abolition
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