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Beyond Madness

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The judges presiding over the trial of Anders Behring Breivik in Oslo are due to give their verdict tomorrow. It is likely, though by no means certain, that Breivik will be judged to have been criminally insane when he murdered 77 people last year, and sentenced to compulsory psychiatric treatment. The only other possible outcome is that he be judged criminally responsible for his acts and condemned to life imprisonment. The difference between the two verdicts is in all practical senses minimal: in neither case is he likely ever to walk free again. But in symbolic terms the difference is huge. It represents, in effect, a judgment as to whether Breivik’s actions have political meaning or not.
 
When the state prosecution was first asked to present its charges against Breivik late last year, it seemed clear which was the more appropriate of the two outcomes. According to the psychiatric profile drawn up by Synne Sørheim and Torgeir Husby, two of Norway’s leading forensic psychiatrists, Breivik suffers from paranoid schizophrenia. But when Sørheim and Husby’s report was leaked to the press in December, it caused a public outcry. Three out of four Norwegians think Breivik should be condemned as guilty, and to be punishable a suspect must – under paragraph 44 of the Norwegian criminal code – be considered sane at the time he committed his crimes. Breivik’s lawyers also rejected the report’s conclusion, since he wishes to be seen as a political ‘martyr’ and for that he must be held to be sane. The court called for a second psychiatric report.
 
Rather than confirming Sørheim and Husby’s diagnosis, however, the second pair of psychiatrists, Agnar Aspaas and Terje Tørrissen, considered Breivik capable of empathy and rational thought, if narcissistic and possibly bipolar.
 
The trial was never going to be about guilt or innocence or even the magnitude of the offence – Breivik confessed to his crimes openly and in disturbing detail, both under interrogation and in the courtroom. But the logjam between the two psychiatric reports came to dominate the trial in a way nobody anticipated, much less desired. Aspaas and Tørrissen were willing to admit that a diagnosis is no more than a classificatory interpretation of an individual’s state of mind, but Sørheim and Husby refused to give an inch. And their refusal to accept any measure of doubt with respect to their diagnosis ultimately nixed all serious consideration of factors other than Breivik’s psychological condition: factors such as his political views, for example.
 
The result was to turn Sørheim and Husby into ‘judges without capes’, as one Norwegian editorial put it, since in light of the second report, their refusal to countenance any doubt as to their own diagnosis makes it hard for the judges – in a system where any reasonable doubt will be interpreted to the benefit of the accused – to reach a conclusion other than that Breivik acted with diminished responsibility. Given Breivik’s own wishes, that could be read, somewhat narrowly, as a moral victory for the prosecution. But it flies in the face of the more basic sense of justice that many Norwegians have looked to the trial to provide.
 
Perhaps more importantly, it raises questions about the law’s confidence – particularly Norwegian law, which has a distinctly medicalist tint – in the ability of psychiatry to parse juridical truth from psychological speculation. Contrary to the general tenor of the trial, this is very much a political question. And it warrants asking, on these grounds, quite why it was that psychiatric considerations came to dominate the logic of prosecution and defence alike, such that the testimony of police officers, of experts on political extremism, and of far right members of the blogosphere to which Breivik contributed, was listened to but in the main politely ignored.
  
Norway was rightly praised last summer for not automatically assuming that the terror of 22 July was the work of Islamic extremists. But whatever judgment is returned this week, it is hard to imagine that, if it had been, questions of politics, much less religion, would have been quite so easily cast aside in the trial, or that the court would have tied itself in such knots trying to get to the bottom of a psychological rather than a political profile of the terrorist.

Comments on “Beyond Madness”

  1. klhoughton says:

    “their refusal to countenance any doubt as to their own diagnosis makes it hard for the judges – in a system where any reasonable doubt will be interpreted to the benefit of the accused – to reach a conclusion other than that Breivik acted with diminished responsibility. Given Breivik’s own wishes, that could be read, somewhat narrowly, as a moral victory for the prosecution. But it flies in the face of the more basic sense of justice that many Norwegians have looked to the trial to provide.”

    Justice or vengeance? If you accept that not being sane at the time of the commission of a crime is a valid defense–which Norwegians claim they do–then the magnitude of the damage done should be moot, no?

  2. outofdate says:

    There was a good article in the New Yorker or some such a while ago about the Unabomber’s refusal to use the insanity defence. The writer made the point very well that for all that his manifesto had been portrayed as ‘ranting’ by the mainstream press, it did make a lot of sense, so you might conclude the Unabomber was indeed sane — except that he killed and maimed a lot of harmless people, which was completely mad.

    I realise that’s not the standard the law applies, and it doesn’t satisfy the public’s craving for justiceorvengeance (if that’s a craving capable of satisfaction), but it seems a reasonable view.

  3. atticus says:

    But the magnitude is not moot at a societal level, in that the law is designed to reflect the society’s sense of justice. If Breivik’s crime is seen as insufficiently punishable, then the law will be changed to suit society’s standards. That is not always the outcome to be desired – a case of throwing out the baby with the bathwater – but the law in this instance is patently not delivering the outcome the monstrous crime demands.

    Perhaps the answer lies in the weight the law gives to psychiatrists – that the opinion of a single psychiatrist (a contentious ‘science’ and highly subjective at the best of times) is considered enough to cast ‘reasonable’ doubt which must be interpreted to the benefit of the accused, is a fault that opens the judicial system to extreme abuse.

    Ought not the psychiatrists be also examined for their own pathologies and prejudices? Psychiatrists have come to be granted the legal gravity once accorded the Church. Just because they say it’s so doesn’t make it true.

  4. Neil Kitson says:

    If you kill one person you’re a murderer, if dozens a mass murderer, and if millions an historical figure. Was Hitler crazy? Is Breivik crazy? I’d say yes to both but neither was psychotic. It hardly matters. Sane or crazy, Breivik has committed planned mass murder and demonstrated he can’t be trusted with civil liberties. Discussing a “political” dimension to murder just adds confusion, doesn’t it? And debating psychiatric diagnoses in such cases takes the confusion and, like Ford Prefect’s confusion after interstellar travel, drags it backwards through a combine harvester.

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