RATHER BAD THAN MAD? A RECONSIDERATION OF CRIMINAL INCAPACITY AND PSYCHOSOCIAL DISABILITY IN SOUTH AFRICAN LAW IN LIGHT OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Abstract

Article 12(2) of the Convention on the Rights of Persons with Disabilities requires the recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Such acknowledgment implies that state parties to the Convention, including South Africa, will have to reassess their existing legal provisions relating to legal capacity. These legal measures typically include a rule to the effect that where a person accused of a criminal offence lacks criminal capacity as a result of an intellectual or psychosocial disability, he or she cannot be held liable in criminal law (often referred to as the ‘insanity defence’). This article examines the potential influence of the recognition of universal legal capacity in the CRPD on the insanity defence, with specific emphasis on the current position in South African law. It commences with an overview of the normative content of article 12 of the CRPD as it relates to the notion of criminal capacity and also considers the interpretations of this provision as proposed by academic commentators. These interpretations may be described as, first, an abolitionist position (calling for boththe elimination of the insanity defence and the concomitant mandatory committal of the accused to forensic psychiatric institutions) and, second, an integrationist position (suggesting the development of disability-neutral rules on criminal
capacity). A third approach strongly argues in favour of retaining the insanity defence while at the same time reconsidering the institutionalisation of an accused person following an acquittal based on this defence. The present South African legislative dispensation regarding criminal capacity is subsequently examined and measured against the CRPD. The article concludes with a number of observations in view of potential law reform.