The Abolition of the Insanity Defense in Sweden and the United Nations Convention on the Rights of Persons with Disabilities: Human Rights Brinksmanship or Evidence It Won’t Work?

Research output: Contribution to journalArticle

Abstract

The U.N. Convention on the Rights of Persons with Disabilities (CRPD) may require the abolition of the insanity defense and similar “special defenses” in criminal law. Proponents argue that abolishing the defense would advance efforts to fully recognize the legal capacity of persons with disabilities on an equal basis with others; detractors suggest it would compound the substantive inequality of an already marginalized population. This paper seeks to accelerate this debate with reference to Swedish criminal law, which saw the abolition of the insanity defense in 1965. Neither side of the debate appears to have considered the anomaly of Swedish criminal law. Equally, Swedish legislators appear to have overlooked CRPD-based considerations. Instead, Sweden seems likely to reintroduce the insanity defense following long-standing domestic criticism. This paper brings together developments in Sweden and international human rights law, and draws out conceptual and practical lessons in the quest for due process rights and substantive equality for people with disabilities in criminal law.

Details

Authors
Organisations
External organisations
  • University of Melbourne
Research areas and keywords

Subject classification (UKÄ) – MANDATORY

  • Law

Keywords

  • Insanity defence, Disability, Human rights, Convention of Rights of Persons with Disabilities, Sweden
Original languageEnglish
Pages (from-to)141-169
JournalNew Criminal Law Review
Volume21
Issue number1
Publication statusPublished - 2018
Publication categoryResearch
Peer-reviewedYes