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The Missing Dimension of Voluntariness: The Automatism Defense

The Missing Dimension of Voluntariness: The Automatism Defense



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Published by: Kristina on Feb 02, 2009
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 July 25 2008Ms. JohnstonCLN 4U0
The Missing Dimension of Voluntariness: The Automatism Defence
Section 16(1) of the
Criminal Code
states, “No person is criminally responsible for anact committed or an omission made while suffering from a mental disorder that rendered theperson incapable of appreciating the nature and quality of the act or omission or of knowingthat it was wrong” (http://laws.justice.gc.ca). This section of the
Criminal Code
, allows thosewho are suffering from a mental disorder the opportunity for treatment of their disorder andnot held responsible for something they did because of said mental disorder. The principle of this section is taken from an 1843 British case involving a man named Daniel M’Naghten(http://cmte.parl.gc.ca). M’Naghten believed that he was the target of a conspiracy involvingthe Pope and the British Prime Minister. He killed the Prime Minister’s secretary in a failedassassination attempt. Several psychiatrists stated that M’Naghten was insane and the juryagreed with them and the resulting verdict was “Not Guilty by Reason of Insanity”. Therewas public criticism about the verdict so in 1844, British judges created the M’NaghtenRules, which state, “An accused may be acquitted only if, by reason of a “disease of themind” they did not realize what they were doing was a crime”(http://www.washingtonpost.com). The Supreme Court of Canada Definition of automatismis, “A state of impaired consciousness, rather than unconsciousness, in which an individual,though capable of action, has no voluntary control over that action” (Alexandrowicz, 304). The automatism defence is very similar to the M’Naghten Rule in that in both the accuseddid not realize that what they had done was a crime. Automatism is a legal defence that judges and lawyers view with some apprehension. The veracity of the defence of automatism is disputed among psychologist and legal experts alike. Many have tried to usethis defence and few have succeeded. Canada should not continue to allow the use of theautomatism defence in instances where the accused has committed a criminal act soheinous that society is left in fear.Automatism is a defence used when the accused attempts to prove that the actionsthat they did were not voluntary. It is the responsibility of the accused to prove that thecrime was done while he or she was unconscious, and thus were more of a reflex action thanvoluntary (Hogan, 39). The law states that people act voluntarily and to raise the defence of automatism puts into question the sanity of the accused (www.justice.gov.ab.ca,www.thecanadianencycolpedia.com). The defence must rely on a multitude of evidence,such as psychiatric evaluation and the severity of the trigger, to try to convince the judgethat there is enough evidence that a jury could possibly find that the accused actedinvoluntarily on a balance of probabilities. The judge then decides on whether the accused’sactions are the result of insane or non-insane automatism (www.justice.gov.ab.ca). Insaneautomatism is the result of a “disease of the mind” or mental disorder, and non-insaneautomatism is the result of outside factors such as Dissociative Identity Disorder or aconcussion (http://news.bbc.co.uk). The courts have decided that in the case of insaneautomatism, if it can be proved, on a balance of probabilities, that the accused really did nothave control over his or her actions, that the accused’s actions were not voluntary, then theaccused will be tried according to the mental disorder rules. If it is found that the accusedwas in a state of non-insane automatism, then the accused is entitled to an acquittal.In 1974, Wayne Rabey, a University of Toronto student, had a multitude of classeswith a young lady, for whom he later developed strong feelings. Unfortunately, the younglady did not like him back. Rabey later discovered a note that she had written to a friendstating that he was nothing. Later he saw the girl, grabbed her, hit her on the head andwhile she was unconscious, he began chocking her. He used the defence of non-insaneautomatism and was acquitted at trial. The trial judge, upon reading that the one Rabey wasinfatuated with thought he was nothing, found that he suffered a strong enoughpsychological blow to cause him to be in a dissociative state. In the written decision for this
case, the Supreme Court of Canada ruled that sleepwalking is not a “disease of the mind”(http://csc.lexum.umontreal.ca). Was Rabey really sleepwalking? Rabey reported that he onlyhad a faint recollection of the events, and what he remembered differed slightly from whatthe victim remembered of the event. Those who Rabey next encountered, among them aprofessor and a nurse, testified that he was bewildered, his speech was shaky, his pulse wasfast, but not strong and he had a limp appearance (http://csc.lexum.umontreal.ca).According to the
Encyclopedia of Life Sciences
, when one is asleep, heart rate andrespiration slow and body temperature falls. During Rapid Eye Movement (REM) sleep, heartrate respiration and body temperature increase slightly and brainwaves and fast and active,like being awake (Steele, 1509-1510). Much of what was stated of Rabey’s appearance afterhe attacked the victim matched the basic characteristics of what someone who is asleepwould go through. However, the fact that the attack happened in the middle of the daymakes it unlikely that he was sleeping. The Crown appealed the trial judge’s decision all theway to the Supreme Court where it was dismissed. Rabey’s acquittal was upheld(http://csc.lexum.umontreal.ca).A doctor testifying in a case in Britain indicated that people who are sleepwalkingcould do the same things they do when they are awake (http://news.bbc.co.uk). In 1987Kenneth Parks drove to his in-laws house where he murdered his mother-in-law and seriouslyinjured his father-in-law. After the attack, he then drove to a nearby police station where helater confessed. He was charged with attempted murder in the case of his father-in-law, andfirst-degree murder in the case of his mother-in-law. Parks claimed that he was sleepwalking,and could not remember what had happened. He also stated that his family suffered fromsleep disorders and he had trouble waking up and had been in some financial difficulty theyear before (http://csc.lexum.umontreal.ca). Based on what the doctor expressed and whathappened, could Parks’ actions that night, have been a subconscious desire that he had tokill his in-laws? In the written decisions, one of the Supreme Court judges stated that Parkshad a good relationship with his mother-in-law and fairly good relations with his father-in-law, which would suggest no motivation for him to want them dead. This reasoning resultedin Parks being acquitted at trial and finally having the Crown’s appeal being dismissed bythe Supreme Court (http://csc.lexum.umontreal.ca). The most controversial case is the 2005 decision made by the Ontario Court of Justicein the case of 
R. v. Luedecke
. In 2003, Jan Luedecke went over to a party at a friends’ house.Early in the morning, after being awake for over 22 hours, he fell asleep on the opposite sideof a couch from a lady who had fallen asleep there earlier. Later in the morning, the lady wasawoken to find a man (Luedecke) having sex with her. She pushed him off of her and he fellto the ground. Luedecke stated that when he woke up the first time, he realized that he aswearing a condom, he thought nothing of it, went home and went back to sleep. When hewoke up the second time, he had a faint recollection of something happening the nightbefore. When he heard from his friend that the police where looking for someone who hadsexually assaulted a woman the night before, he confessed to the police that he might bethe one whom they were looking for. He used the defence of non-insane automatism andwas acquitted at trial (http://www.canlii.org). Since Luedecke had not been asleep for over22 hours, he would have been significantly lacking in the amount of REM sleep he should begetting each night. According to sleepdex.org, a lack of REM sleep can lead to insanity.Should Luedecke’s actions have then been ruled as insane automatism rather than non-insane automatism? Luedecke testified that he might have had sex in his sleep on a numberof other occasions, but he could not remember them, and automatism can result in one nothaving a memory of what was done—as well as intoxication. Luedecke testified that he wentto the party he “consumed eight to 12 beers, a couple of drinks of rum and Coke, and acouple of vodkas” (http://www.canlii.org). Using a blood alcohol content calculator andassuming that Luedecke weighs at least 140 lbs (63.5 kg), if Luedecke only had the eight totwelve beers alone, he would have a blood alcohol content of over 0.10, and thus be

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