chapter  2
38 Pages

Psychiatrists and criminal responsibility

ByErik Herber

In recent years the issue of “potentially dangerous, mentally disturbed offenders” has been discussed in connection with some high profile serious incidents, such as the case of Mamoru T. presented in the previous chapter. But while the issue of these offenders appeared prominently in public discussions, ultimately leading to legal change, Japanese courts today find virtually all defendants fully criminally responsible regardless of their mental condition. That is, defendants who are “criminally insane” or of diminished responsibility have all but disappeared from the juridical landscape. This chapter will look into this virtual disappearance and the various actors who are involved in some way: police officers, prosecutors, lawyers, forensic psychiatrists, judges and since 2009, lay judges as well. These different persons together decide on a suspect’s or defendant’s capacity to distinguish right from wrong and to act accordingly, the legal standard for assessing criminal responsibility and what accordingly should be done with this suspect or defendant. Should he or she be prosecuted, punished or receive medical treatment? This chapter examines how the persons involved go about answering these questions, focusing especially on forensic psychiatrists’ role. By doing so it will not only shed light on this role, but also on the disappearance from court of the defendant who is criminally insane or of diminished responsibility. In doing so it in addition brings into focus the engagement between juridical knowledge and outside knowledge, expert and lay, implicated in this disappearance.