reduced punishment in israel in the case of murder: bridging the medico-legal gap

International Journal of Law and Psychiatry 28 (2005) 222–230

Reduced punishment in Israel in the case of murder:

Bridging the medico-legal gap

David Roea,T, Ya’ir Ronenb, Jossef Lereyac,d, Shmuel Fennigc,d, Silvana Fennigd,e

aSchool of Social Work, Bar-Ilan University, Ramat-Gan, IsraelbDepartment of Social Work, Ben Gurion University of the Negev, Israel

cShalvata Mental Health Center, Hod Hasharon, IsraeldSackler School of Medicine, Tel Aviv University, Ramat Aviv, IsraeleSchneider Children Hospital, Campus Rabin, Petach Tikva, Israel

Received 10 June 2003; received in revised form 3 November 2004; accepted 28 November 2004

Abstract

The psychiatrist’s assessment of criminal responsibility of an accused in court for an act of crime has always

been a matter of great difficulty. In 1997, clause 300a was incorporated into the Penal Code of Israel, thereby

permitting a more lenient punishment for murder than mandatory life imprisonment. The clause includes the

definition of what is meant by bsevere mental disorderQ and bsignificantly restricted capacityQ by the defendant to

understand the criminal nature of his or her act and to refrain from committing it. Usage of the concepts bdisorderQand bsignificantly restricted capacityQ in addressing the issue of diminished responsibility of the mentally ill is new

to the Israeli legal code. The emergence and evolvement of the above concepts are presented through a historical

review of the Israeli encoded law concerning mental illness, analyzed from a psychiatric perspective.

D 2005 Elsevier Inc. All rights reserved.

1. Introduction

The introduction in 1995 of an amendment to the law on punishment in case of murder1 (clause 300a)

represents a declaration made by the Israeli legislature about the desired relationships to be established

0160-2527/$ -

doi:10.1016/j.i

T Correspond

E-mail add1 Penal Code

see front matter D 2005 Elsevier Inc. All rights reserved.

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ing author. Tel.: +972 3 5498505; fax: +972 3 5347228.

ress: [email protected] (D. Roe).

of Israel 300a.

D. Roe et al. / International Journal of Law and Psychiatry 28 (2005) 222–230 223

between the legal and medical professions while approaching issues such as insanity defense and

diminished responsibility. The well known tension between the psychiatric and judicial professions

evokes complex and challenging questions about the role of the psychiatrist when the issue of criminal

responsibility in cases of an accused in court for an act of crime. Such questions include: Should

psychiatrists be expected to give an opinion on the level of responsibility possessed by the accused of

murder at the time of the crime? How can a person’s level of responsibility be assessed? What is the

nature or/and level of illness that justifies reduced punishment because of lack of responsibility? To what

degree are a person’s actions a result of his or her free will or environmental or biological factors out of

his or her control of which he or she is a victim of ?

The purpose of the present paper is to briefly describe the conceptual gap between the psychiatric and

the judicial professions regarding the concept of bmental diseaseQ, review clause 300a which was

incorporated into the Penal Code of Israel in 1997, and finally summarize our analysis and propose

future prospects.

2. The conceptual gap

Coping with the well-known conceptual gap between the psychiatric and the judicial professions

regarding the concept of bmental diseaseQ is an everyday challenge for forensic psychiatrists. Contrary tomedical science, the law is not primarily interested in whether or not a person is bsickQ but rather onlywhether or not he or she can be held responsible for his or her behavior. Law, by identifying a causal link

between the behavior of the convicted criminal, and the resulting offense, explains the world in

impersonal terms, which allow an illusion of mastery over behavior.

However, the causes for the offense can be different from its reasons or motives. Traditionally, law

concerns itself with the reasons or motives for offending related to the offenderTs subjective world only

to a very limited extent (Cornwell, 1999) and responsibility is considered independent of the defendantTsmotivation (see for example Eigen, 2004). Thus, law presuming that sane individuals posses free will

and are immune from causal determination of their actions by their environments may hold an individual

responsible for an offense even mental health professionals show through research that in some cases a

person may be predisposed to kill another in specific circumstances (Shapira, 2001), e.g. because of a

Battered Woman Syndrome , addiction to a drug or postpartum psychosis.

In Israel, long existing law has established a high level for the determination of criminal responsibility

stating that all people are considered bsaneQ or responsible unless proven otherwise and the burden of

proof is upon the defense (clause 18 to the Penal Code of Israel, 1977, replaced by clause 34e).2 As a

consequence the law holds the view that human acts are to be judged by a dichotomist sane–insane

measure only. Sanity under current legal doctrines focuses on personal abnormalities that render

individual defendants unable to appreciate or respond to situational conditions. Individuals who suffer

from severe physical mental or emotional abuse that compel them towards crime are excluded from legal

analysis of abnormality through its typical focus on the pathology of individuals and its neglect of

criminogenic social contexts (Haney, 2002). On the other hand, contemporary psychiatry does not

concern itself very much with this dichotomy, which is an abstract, theoretical way of construing

aberrant thinking and behavior. Psychiatry is, nowadays, more concerned with bmental disorderQ

2 Penal Code of Israel Clause 18, 1977 and Penal Code of Israel 34.

D. Roe et al. / International Journal of Law and Psychiatry 28 (2005) 222–230224

(American Psychiatric Association, 1994; Home Office and Department of Health and Social Security,

1975; World Health Organization, 1993), a concept that, although still abstract to some extent, deals with

a continuous spectrum ranging from health to sickness. Furthermore, particularly through family systems

theory, psychiatry (and allied disciplines) has the conceptual tools to address pathologies of families and

communities that are crimogenic, tools that are rarely in demand in the legal arena (Brooks & Roberts,

2002). A multi-determinate model that psychiatry and the behavioral sciences have is not easily

compatible with traditional law dichotomy. This tension between the psychiatric and judicial professions

evokes complex and challenging questions about the role of the psychiatrist when the issue of criminal

responsibility in cases of an accused in court for an act of crime. Following is a review of clause 300a

which was incorporated into the Penal Code of Israel in 1997, thereby permitting a more lenient

punishment for murder than mandatory life imprisonment with the previously stated questions in mind.

3. Historical development of the doctrine of diminished responsibility in Israeli law

Clause 300a can be interpreted as the latest step in an ongoing conceptual evolution. Looking back

one can trace the above mentioned conceptual evolvement regarding the role and power of the medical

expert in the judicial process through a brief historical survey of the Israeli legislature’s idea about the

binsanity defenseQ concept. Despite the described conceptual gap in Israeli law between the legal and

medical professions, the two are no longer totally incongruent. The introduction in 1995 of an

amendment to the law on punishment in case of murder (clause 300a) represents a declaration made by

the Israeli legislature about the desired relationships to be established between the legal and medical

professions while approaching issues such as insanity defense and diminished responsibility.

The Israeli justice system, based on the English law, had utilized, at first, the 1843 McNaughton Test

for the determination of the binsanity defenseQ. In essence, these rules state as follows:

3 Cr

Every man is presumed to be sane, until the contrary be proved, and that to establish a defense on

the ground of insanity it must be clearly proved that at the time of committing the act the accused

party was laboring under such a defect of reason, from disease of the mind, as not to know the

nature and quality of the act he was doing, or if he did know it, that he did not know that what he

was doing was wrong.

Accordingly, clause 14 to the 1936 criminal law act, in Mandatory Palestine,3 repeating after the

McNaghten cognitive test of bknowing and understandingQ, had stated that:

A person is not criminally responsible for an act or omission if at the time of doing the act or

making the omission he is through any disease affecting his mind incapable of understanding what

he is doing, or of knowing that he ought not to do the act or make the omission.

As a consequence, clause 19 to the 1977 penal law, an old rule whose origins had been rooted in the 1936

act, adopted the same bcognitive testQ as a sole criterion for the establishment of the binsanity defenseQ:

A person does not bear criminal responsibility for an act which he committed if at the time of the

act, owing to a disease of the mind or owing to a deficiency in his intellectual capacity, he has

iminal Law Act, Clause 14 Mandatory Palestine.

4 Pen


laboring under such a defect of reason as not to understand what he was doing or what was illegal

about his act.

This formula can be interpreted as indicating that in 1977 the Israeli law still had held the cognitive

test as the sole criteria defining bdisease of the mindQ, a concept which is based on the dichotomy (bsaneQversus binsaneQ) legal perception of mental illness, based on what are now considered to be obsolete

psychological principles. The McNuaghten test fails to recognize degrees of mental illness by its

exclusive focus on the question of the defendant’s ability to distinguish between ethical concerns of what

is right and wrong (Shan Liu, 2002).

However, in practice, case law has long ago recognized the possibility of lack of will arising from a

mental disease while allowing such afflicted defendants the defense of binsane automatismQ. But it tookno less than an additional 18 years till, in the eyes of the enacted law, the monolithic perception of

mental illness had been cracked. Following amendment 39 to the Penal Code in 1995, clause 34 h has

been introduced.4 This clause discussed the fact that:

A person does not bear-criminal responsibility for an act which he committed if at the

time of the act, owing to a disease which affected his emotions or owing to a deficiency

in his intellectual capacity, the defendant was totally incapable (1) of understanding what

he was doing or what was illegal about his act; or (2) of refraining from committing the

act.

Thus, clause 34h extended the boundaries of the binsanity defenseQ by the addition, to the

bcognitive testQ (bknowing and understandingQ), a second determinant, the btest of willQ (brefrainingfrom committingQ), following the notion of the birresistible impulseQ test. This addition, although

indirectly, suggests that mental disease is to be recognized not only by a cognitive deficit but

rather by a disjunction of the drives as well. Nevertheless, despite this extension, Israeli law still

does not permit those suffering from a mental disorder other than bpsychosisQ to utilize the

binsanity defenseQ. Within the legal frame of reference irresistible impulse has frequently been

equated with the bpoliceman at the elbow testQ, i.e., bWould he have committed the act if a

policeman were literally standing at his elbow?Q Case law has made it clear that the law does

expect everyone to exert control and is only willing to exculpate by virtue of an irresistible

impulse those who really couldnTt control themselves (active psychotics) and not those who merely

experienced an impulse that was not resisted (e.g., all others). The law stresses that the test applies

to a total inability to control behavior or an overwhelming impulse or a sudden uncontrollable

action.

From a contemporary psychiatric standpoint this test has proven unsatisfactory for many reasons, the

least of which is that we know there are patients who will commit an offense only if they would be

caught.

However, the broadening of the legal concept of dmental diseaseT by adding the btest of willQ to its

definition pronounces awareness of the legal system that mental life includes more than only the

cognitive domain. By the formulation of clause 34h the law acknowledges the present scientific body of

knowledge, which holds personality to be, a complex mental structure made of numerous components

where cognition is only one of them.

al Code of Israel clause 14h.


This awareness by the legislature of modern psychiatric perception of complex human personality has

been, later, drawn even further. Starting in 1995 an amendment to the penal law (section 35a) was

promulgated.5

5 Pe

Should a person be convicted of a crime hereof the punishment is mandatory, he may be given a

more lenient punishment than the mandatory punishment decreed for the said crime in the event

that the crime was committed in special mitigating circumstances which shall be explained in the

ruling.

It was argued that the large authority submitted to the court by section 35a does not fit the grave

nature of the murder offense (the punishment of which is mandatory life imprisonment) since it is not

accompanied by clear operational criteria.

Thus, sub-section (b), added to section 35a (a), states:

The provisions of sub-section (a) shall not apply to the crime of murder with the exception of the

cases, which are specified in section 300a (which discuses reduced punishment in the case of

murder).

Still, concerning the murder offense, a proposal to enact special criteria for bdiminished

responsibilityQ (exchanging a charge of murder with a charge of manslaughter) was put before the

Israeli parliament. The enactment was not passed as proposed, as the Israeli legislature rejected the

concept of bdiminished responsibilityQ and accepted, instead, the concept of breduced punishmentQ bythe promulgation of clause 300a to the penal law. Clause 300a determines the criteria in the case of the

crime of murder for imposing a more lenient punishment.

The relevant part of clause 300a reads as follows:

Notwithstanding the foregoing clause 300 (which discusses the crime of murder) a more lenient

punishment may be imposed in the event that the crime was committed in one of the following

cases:

(a) In the case where, due to severe mental disorder or a deficiency in mental capacities, the

defendantTs ability is significantly restricted but not to the point of constituting a lack off actual

ability as stated in section 34 H.

1. Of understanding what he was doing or what was illegal about his act;

2. Of refraining from committing the act.

The above citations from the law reflect significant changes in textual versions regarding the issue of a

defendant who is bmentally illQ.

4. Summary

The comparison of the changes in versions of the law over 18 years reveals a steady and

continuous effort made by the Israeli lawgiver to accommodate modern psychiatric perception and

nal Code of Israel Clause 35a (a).


nomenclature. This process which in its latest presentation is clause 300a took place in 2 major

steps:

First: The addition of the btest of willQ (clause 34 h, 1995) to the bcognitive testQ (section 19, 1977) as

a second determinant of binsanityQ. This change is compatible with the psychiatric perception of

personality as a compound mental structure made of different mental domains (cognitive and emotional

amongst others) which are separable on the one hand, and mutually influencing on the other.

Second: The attitude of both preservation and change as expressed in the different formulations of the

double hurdle required for the establishment of binsanity defenseQ (in the case of clause 34h) or

bdiminished responsibilityQ in its local version as breduced punishmentQ (in the case of clause 300a).

Textual comparison reveals, on one hand, the substitution of bmental diseaseQ (required by clause 34h)

with bsevere mental disorderQ (in clause 300a), and on the other hand the substitution of btotallyincapableQ (clause 34h) with bsignificantly restrictedQ (clause 300a).

From a forensic psychiatrist perspective the usage of the expression bdisorderQ instead of bdiseaseQ, initself, is compatible with modern psychiatric taxonomy. The concept of disease or bdisease of the mindQtakes the concept of bdisorderQ or bsyndromeQ a step further, specifying an etiology and

pathophysiological process. The problem with this concept is in the domain of etiology—of

predisposing, precipitating, and sustaining factors that eventually interfere with the physiological

functions of the CNS. Only a few entities in psychiatry meet the criteria of disease, and the word

bdiseaseQ in the official nomenclature of ICD-10 is used only for dementia, where the etiological process

is known (e.g. dementia due to Parkinson’s disease). Even for the severe disorders, like schizophrenia

and bipolar disorder, psychiatrists still use the term bdisorderQ. These differences are not just semantic

but exemplify the different expectation of the legal field. Law typically assumes one can define diseases

of the individual which have a known etiology and pathophysiological process while psychiatry and

allied disciplines at times muddles with disorders that represent no more than groups of symptoms that

go together, and at other times explores etiologies that identify sickness well beyond the boundaries of

the individual. Science may attribute crime to macro causes such as demography, economics, and social

justice (Kelling, 2000).

The reduction of degree of incapability of the btest of willQ from btotalQ (clause 34h) to bsignificantlyrestrictedQ (clause 300a) is a further revolutionary act as it enables the introduction of most diagnostic

items (bdisordersQ) mentioned in the psychiatric text book of diagnosis into the judicial discussion.

5. Commentary and future prospects

The junction of law and psychiatry possesses great difficulties. Too often psychiatrists are expected to

give an opinion on the level of responsibility possessed by the accused of murder at the time of the

crime. In those countries where this process has occurred it raised a lot of criticism both from

psychiatrists and judges.

Clause 300a which discuses the hurdles for reduced punishment in the case of murder redefines, to an

extent, the role of the medical expert in court. Once insanity is ruled out ,the psychiatrist has a new and

different role distinctly different from that of the judge: This is demonstrated through both the

formulation that uses contemporary psychiatric expressions (bdisorderQ, bsignificantly restricted abilityQ)while addressing the definition of bmental illnessQ as well as the restriction imposed by the lawgiver to

use psychiatric expert testimony in the sentencing stage only. It seems plausible to conclude that such


radical change has been made possible only by this transfer of the time of involvement of the psychiatric

witness in the judicial process, after a guilt verdict, but before the sentence. The psychiatric expert in his

or her natural position as a medical expert no longer restricted (as a clinician) to the bpsychosis testQ andblevel of responsibilityQ determination when addressing the court. As a clinician, whose major function

is to diagnose and treat mental illness, the forensic psychiatrist can furnish the court with information

about diagnosis, prognosis, and treatment possibilities—information that is critical for proper disposal of

the mental disorder afflicted offender. Such functioning of a clinician within the legal arena fits the

theoretical rubric of therapeutic jurisprudence by making a legal judgment as to diminished

responsibility with an awareness of mental health implications, sentencing difficulties, and the

offender’s rehabilitation needs (Shan Liu, 2002).

This approach allows us and may compel us to see the defendant’s humanness that is common to him

or her, to the clinicians, and too the judge, and to refrain from relating to him as a machine whose

workings have been appropriated by sickness or as an animal living according to animal instincts and

impulses some of them irresistible and within the legal category of irresistible impulse. Acknowledg-

ment of the different approaches of the profession is crucial. In recent years, psychiatric assessment and

diagnosis has shifted towards conceptualizing mental disorders as a phenomenon along a continuum

rather than a categorical one (Kessler, 1990) and with a greater appreciation of the broader social context

within these disorders occur (Warner, 1985). These developments compel us to appreciate the human

commonality .The law, in contrast, focuses on identifying causal chains and immediate intention to kill

and relatively neglecting etiology may enable the visualization of the defendant as an animal (Cornwell,

1999).

Contemplating different levels of sickness which may justify reduced punishment and state funded

treatment challenges the typical legal perception as to the boundaries of the self: it casts doubt over the

assumption of free will of all sane persons (Shapira, 2001).

Thus, it seem that the Israeli lawgiver has assigned the court a revolutionary mission: to define

what is (from the judicial point of view) bsevere mental disorderQ while using the help of the medical

expert of modern psychiatric taxonomy as a principle tool which enables the crystallization of such a

definition.

If this is true clause 300a suggests that the psychiatrist may attempt to resist, within the bounds of

propriety, the temptation to give a medical view on the question of the level of responsibility while

addressing the questions of what is meant by bsevere mental disorderQ and bsignificantly restricted

capacityQ (as well as what is meant by btotally incapableQ in clause 34 h). He or she may defend his or

her position as the theoretically pure decision, although admittedly, it is doubtful whether courts will

allow psychiatrist to decline, to express an opinion on the question of responsibility. Ideally, instead of

expressing an opinion on the question of responsibility, he or she should sort out the medical evidence,

give an account of the relationship between the killing (if admitted) to those medical facts (the mental

state) and indicate how far, in his or her opinion, the medical features and/or diagnosis influenced the

criminal act and other relevant behavior. The question, bwhat are the mental elements of responsibility?Q(e.g., of btotally incapableQ or bsignificantly restricted capacityQ) is, and must be, a legal question. It

cannot be anything else, for the meaning of these items is liability to punishment and determining

liability is the exclusive function of the criminal law. Criminal law defines what is prohibited killing

according to its conception of what is good; such a conception is fundamentally not a question of

diagnosis by mental health professionals or even a question of logic but rather a moral question

(Cornwell, 1999).


The decision as to a personTs ability to act differently than he acted is ultimately not a descriptive

question but a normative one (Shapira, 2001). Law’s assumption of free will is not only a value-laden

assumption but also an implicit moral imperative.

Law is more than criminal punishment. Through judicial narratives it shapes social norms and social

policies. It not only echoes common perceptions of social justice but also challenges them. Psychiatrists

and other helping professionals may help us challenge a rigid individualistic conception of moral

responsibility unintentionally perpetuating criminal behavior. A moral presupposition of absolute

individual responsibility and capacity for autonomy determine, at least unconsciously, those factors,

which are perceived as causal according to the law (Cornwell, 1999). There is a large and growing

literature that examines the ways in which criminogenic social contexts substantially increase the

likelihood that those exposed to them will commit offenses including murder. These include structural

inequalities, racial discrimination, and a range of developmental risk factors. Recognizing that even the

most severe crime of taking another personTs life may at times be at least influenced by a traumatic social

history and criminogenic present circumstances casts doubt over common social conceptions (Haney,

2002). The consequences of maltreatment have profound and lasting effects over the life course of

persons exposed to them and generations to follow (Bielsky, 1997). In fact, the emerging field of

developmental criminology has relied on this and other contextual and social historical insights to

analyze the origins of criminal behavior (Haney, 2002). Criminal convictions were highly familial

because convictions in a parent increased the risk of convictions in a child. One environmental effect

appeared, however—a socialization effect among siblings; in families with three sons, there appeared to

be mutual influence of one sibling on another. Also, regression models based on the boys suggested that

family environmental variables did add to parental criminality (Rowe & Farrington, 1997).

Thus for example, the decision of Judge Dorner in the case of Carmela Buchbut (Bchbut v. State of

Israel, 1994)6 a battered woman who killed her husband, was infused by social science literature and

explained that though the defendant was guilty of manslaughter it is also true to state that a battered

woman frustrated and unprotected by an ineffective legal system often sees no choice but kill or be

killed. In that case the defendant was not charged with murder but with manslaughter recognizing the

mitigating personal circumstances. Nevertheless, the psychosocial context remains crucial for the

determination of the reduced sentence. Judge Dorner’s judicial narrative (Bchbut v. State of Israel,

1994), deeply empathic to the defendant’s motive, is a rare judicial plea for social change. It can be

understood within the conceptual framework of a therapeutic jurisprudence in which psychiatrists and

other helping professionals are enabled to enrich legal understanding with the subtleties and

complexities of human motivation within a social context.

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reduced punishment in israel in the case of murder: bridging the medico-legal gap

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