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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?

Gooding, Piers and Bennet, Tova LU (2018) In New Criminal Law Review 21(1). p.141-169
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.... (More)
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. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
Insanity defence, Disability, Human rights, Convention of Rights of Persons with Disabilities, Sweden, Mänskliga rättigheter, Sverige , personer med funktionsnedsättning
in
New Criminal Law Review
volume
21
issue
1
pages
141 - 169
DOI
10.1525/nclr.2018.21.1.141
language
English
LU publication?
yes
id
ab62c027-f19c-4dda-a53c-9e2eefb71860
alternative location
http://nclr.ucpress.edu/content/21/1/141
date added to LUP
2018-01-15 11:37:00
date last changed
2018-01-15 12:04:43
@article{ab62c027-f19c-4dda-a53c-9e2eefb71860,
  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.},
  author       = {Gooding, Piers and Bennet, Tova},
  keyword      = {Insanity defence,Disability,Human rights,Convention of Rights of Persons with Disabilities,Sweden,Mänskliga rättigheter,Sverige ,personer med funktionsnedsättning},
  language     = {eng},
  number       = {1},
  pages        = {141--169},
  series       = {New Criminal Law Review},
  title        = {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?},
  url          = {http://dx.doi.org/10.1525/nclr.2018.21.1.141},
  volume       = {21},
  year         = {2018},
}