The Cautionary Instruction: Oscar Pistorius strikes out with mental illness defense

Friday, 04 July 2014 08:08 AM Written by  Matt Mangino

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Olympic star and double-amputee Oscar Pistorius shot and killed his girlfriend in 2013. Pistorius is on trial in South Africa for her murder. He acknowledges that he shot Reeva Steenkamp when he mistook her for an intruder.

In May, Pistorius was ordered by a judge to undergo psychiatric tests at the request of the chief prosecutor, Gerrie Nel. The prosecutor said he had no option but to ask for it after an expert witness for the defense testified that Pistorius had an anxiety disorder since childhood that may have influenced his judgment when he fatally shot Steenkamp.

Under South African law Pistorius could be acquitted if it’s found that he was not criminally responsible for Steenkamp’s shooting because of a mental illness.

Under South African law a defendant may lack the capacity to knowingly commit a crime because of mental illness. This was previously referred to as an “insanity” defense — South African law now refers to it as pathological incapacity.

By law the defense of pathological incapacity provides:

“A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable —

(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission.”

In the United States a majority of states, including Pennsylvania, apply the M’Naughten Rule when evaluating insanity.

Under the law, a person is legally insane only if, at the time of the act, he was laboring "under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.''

The rule sets a very high standard. The insanity defense is sought in few cases and proving it is extremely rare.

"You can be severely mentally ill but not qualify as legally insane,'' said Thomas P. Rogers, a lawyer from eastern Pennsylvania.

The hurdle is such, said Rogers, that a defendant has to "believe he's shooting Martians, not his wife, because voices are telling him they're Martians, and that he's supposed to shoot them.''

After a month long break in the trial, a panel of mental health experts concluded that Pistorius was not suffering from a mental illness when he killed his girlfriend. The experts reported to the court that Pistorius was "capable of appreciating the wrongfulness of his act" when he killed Steenkamp.

(Image: Oscar Pistorius in court in Pretoria on Wednesday. Gianluigi Guercia via Associated Press)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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