“The question of discernment is not a clinical question, but a philosophical and moral question”

Sociologist Caroline Protais is an associate researcher at Cermes3 (CNRS-Inserm-EHESS) and author of In the grip of madness? Legal expertise in the face of mental illness (1950-2009) (EHESS, 2016). If experts have long considered criminal irresponsibility as automatic in the event of “dementia”, recalls the specialist in the links between justice and the world of mental health, dismissals for criminal irresponsibility are increasingly rare. After the decision of the Court of Cassation in the Sarah Halimi case, which confirmed, Wednesday April 14, that the judgment of the murderer was “Abolished” at the time of the facts, she answered the questions of the World.

When does the principle of penal irresponsibility go back?

Madness as a cause of irresponsibility is a humanist principle which dates from the origin of our societies. Traces of this can be found in the Babylonian code of Hammurabi (c. 1760 BC), which recognized madness as a state which abolishes free will. It is then found in Plato (IV^e-III^e centuries BC AD), then in the Gospel according to Luke, “Father forgive them, they do not know what they are doing. This conception persists from Antiquity to the modern period. Article 64 of the Penal Code of 1810 states that “dementia” is a ground for canceling the offense. It was all or nothing. And there has been criticism from the outset on the grounds that there is a set of intermediate states between full responsibility and full irresponsibility. From the 1970s, the penal code entered into revision and the question was: how to account for this reduced responsibility?

Is this how article 122.1 was born, which introduces the notion of alteration of discernment?

Yes, this article sets out the idea that the person is not criminally responsible if they were suffering from a psychic or neuropsychic disorder which abolished their discernment or the control of their acts at the time of the offense. But it remains punishable if these were only altered. Today, what divides psychiatric experts is much less the existence of the mental disorder than the question of whether it has abolished – or altered – discernment and control of acts. However, the question of discernment is not a clinical question, it is a philosophical and moral question. The expert psychiatrist also apprehends things with his values.

How has the spirit of this law been interpreted through the ages?

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