The trial of Lauren Dickason, who was yesterday convicted on charges of murdering her three young daughters, has prompted calls for a new discussion about the defences of infanticide and insanity.
A legal expert is questioning the currency of the infanticide defence that's available only to women who kill their children.
The defences of infanticide and insanity were argued by Lauren Dickason’s lawyers during her trial at the High Court at Christchurch, but were ultimately rejected by a majority jury verdict.
University of Auckland academic Carrie Leonetti would like to see infanticide removed from the Crimes Act and backs the creation of a new defence that would occupy the middle ground between the verdicts of guilty and not guilty.
"I mean personally, I would abolish the infanticide defence and I'd replace it with more of a global diminished capacity or partial responsibility defence," the associate law professor said.
The mental impairment defences of insanity and infanticide need scrutiny says an expert who wants "diminished capacity" recognised in law. (Source: 1News)
"That recognises that any time somebody is suffering from an extreme emotional disturbance – and that extreme emotional disturbance causes them to commit a crime, but they are not insane in the way we've typically defined it in the insanity defence – they should nonetheless have available to them some kind of a partial defence."
New Zealand's laws are based on British statute and have evolved over time but Leonetti said: "It's inexplicable why you would carve out just mothers killing their small children. There are lots of reasons why people are emotionally disturbed and commit horrible crimes."
Forensic psychiatrist Ian Goodwin sees things differently, and says there is a place in New Zealand's legal system for the infanticide defence.
"It's a really rare defence to run. I mean, filicide (the killing of one's child/children) is rare," Goodwin said. "I think you do need some recognition of the effects of postpartum psychosis in particular, and also very severe depressive disorders postpartum.
"I've got no problem with having those kind of laws on the statute books. I think they're important."
There are also differing views about the insanity defence, with Leonetti believing discussion is also warranted about the addition of a diminished capacity defence.
"If you look at Department of Corrections data, the vast majority of people in our prison system have one or more diagnosable mental illnesses. But none of those things are in the mental illnesses that are contemplated by the traditional insanity defence."
A factor in sentencing
Goodwin makes the point that mental illness is taken into account at sentencing and he's unsure whether the public would tolerate a widening of health conditions under the insanity defence.
But he is open to further discussion on what is an extremely complex subject.
"It is always worth discussing, where you draw the line or how you accommodate different disorders within the law that exists," he said. "The big issue I've got at the moment is around methamphetamine and methamphetamine-induced psychosis.
"We've got this explosion of meth-induced offending and, as a part of that, have a group of people who become psychotic on methamphetamine and the problem with that is that it's really difficult to tell it apart from schizophrenia quite frequently."
Goodwin said often these people might commit crimes while psychotic and then get better when they're not using the drug.
"We look at what they did – it was quite mad. Essentially, they've acted on delusions or other psychotic phenomena. They're gone. Should they have access to an insanity defence? It's a difficult question."
He says New Zealand witnessed an "extraordinarily unusual case" in the trial of Lauren Dickason.
"It’s worth mentioning that most insanity findings never get in the public eye because if two experts agree then a judge can just make the finding,” Goodwin said, "and I think that is an extraordinarily good and humane way of approaching most cases."
He says New Zealand’s adversarial justice system means situations like the Dickason case only occur when the experts disagree.
"So if you have one Crown expert that disagrees with a defence expert, you’re going to trial no matter what," he said. "That’s always the way it’s going to work in our system."
When asked whether there was much disagreement among psychiatrists about impairment issues like patient psychosis or whether they tend to think similarly, Goodwin told 1News there is "a diverse range of opinions".
"On the important stuff, we tend to agree, you know, in terms of psychosis and culpability and how we define disorders and people's kind of offending behaviours. We’re pretty uniform on those sorts of things.
"But where you start to get divergence of opinion is around where things start to change a bit like in the methamphetamine situation, where we have other disorders like foetal alcohol syndrome. How much weight can we put on this in terms of offending and particularly reoffending? Things like that, I think there’s a fairly robust discussion about."
Goodwin said there was differing psychiatric testimony in the Dickason trial but "essentially, the disagreements are on fairly fine points".
"They’re about whether a certain phenomena that the defendant had was psychosis or not. You know, they’re quite technical kind of points and I think it’s really tough to ask a jury of lay people or even a judge to make decisions based on this sort of information where you’ve got a lot of competing information coming at you."
As things stand, the jury decided the culpability of Dickason – an option that looks set to remain in place for some time yet. A Law Commission review in 2010 recommended no change was needed to the insanity defence. The wider discussion being called for by some experts is yet to begin.
SHARE ME