Legal Malingering: A Vortex of Uncertainty

Abstract

The assertion that an alleged offender is either pretending to be mentally disordered or exaggerating the extent of their disorder is an under-examined subject. This is curious since, if successful, the individual can avoid punishment altogether or mitigate its impact where greater state intervention would otherwise be justified. This paper explores the potential for such legal malingering and examines some cases where it may have occurred, but concludes that the fear of legal malingering may be more powerful than the reality of its occurrence.

It also observes, paradoxically, that the legal system is more at fault in failing to spot those whose impaired capacities should protect them from the full rigour of the criminal law; and that mental disorder is most likely overestimated as a cause of offending, but undervalued as a mitigating factor. The implications for issues of trust between the courts, clinical professionals, the public and the media are multi-faceted, and problematic. In this context, the paper serves largely to ask a series of questions about the implications of these issues; and the complex interplay between criminal capacity, legal responsibility, and criminal culpability.