Changes in Legal Defence - Essay Example

?Changes in Legal Defence In order to be able to navigate and sustain in a diverse and changing world, our society must adapt to many advances quickly and efficiently. This is particularly true in the case of the law that maintains order. As a deterrent and protector of citizens the legal system has always developed for the better, crucial in minimizing constantly emerging threats and dangers to life and property. Throughout history there are countless examples of misuse or mistakes of the law, resulting in unjust consequences. But the fact remains that it is fundamental in carrying out justice. An important concept in legal system is the principle of defense. Here, a person accused of committing a crime is presumed innocent until proven guilty. This is the bedrock of the Canadian legal system and the concept of defense is crucial in the determination of culpability. In the worst case scenario they must be given the opportunity to justify their actions through defenses. Recent events have shown unique and new cases that demonstrate the evolving nature of the legal system. These reflected in the way the law is ever changing in order to maintain a valid standpoint. An important aspect to this characteristic is how new legal defenses become legitimate and necessary addition to the legal system. There are several land mark cases in which seemingly absurd ideas such as automatism, battery and duress become legitimate defenses and excuses from criminal guilt and culpability.  Automatism Automatism attracted attention recently with several high profile criminal cases that led to acquittal. The decisions for these cases constitute entirely new elements to Canadian jurisprudence. For example, there was the case of Kenneth Parks who killed his mother in-law and attempted to do the same to her husband. This happened in 1987 and was a controversial event that riveted the whole country until a verdict was reached in 1988. Ramsland (2010) provided the grisly and enlightening details: He rose from bed and got into his car. Despite, as he said later, not being awake, he drove about 14 miles to the home of his wife's parents in Scarborough. Accounts say he then removed a tire iron from the car and entered the house, where he proceeded to beat his mother-in-law to death and choke his father-in-law into unconsciousness. He also used a knife from his in-laws' kitchen to stab them. (Ramsland, 2011) The defense for Park was automatism. His lawyer argued that this defense is supported by several important evidences. First, the perpetrator had a history of sleepwalking. Secondly, he had a good relationship with his wife’s parents and, hence, had no motive for murder. Park’s defense team assembled an army of experts – psychiatrists, psychologist, neurologist, and a sleep disorder specialist - explaining what automatism is. (Ramsland) The “disorder was new to the jury and, certainly, to the legal system. There is no explicit reference to this in the Canadian jurisprudence that is why the defense settled on homicidal somnambulism. The collective arguments presented by the experts, who demonstrated how sleepwalking is a neurotic disorder and could result in an individual having less control of his or her actions, finally convinced the court that Parks was innocent. It was declared that his acts were unmediated and unconsciously committed, hence, free from criminal liability. The cases of murder and attempted murder lodged against him were promptly dismissed. As a defense, automatism is considered to be a category separate from insanity plea. A case of a woman charged with murdering her husband had the jury reject the verdict of not guilty by reason of insanity but acquitted her of murder on the basis of automatism because she was proven to be subject to narcolepsy, a rare sleeping disorder. (McCord, McCord & Bailyer, 2011, p. 254) Another case, however, show a different facet to this type of defense. This was the case of William Wade who was charged with murder when he repeatedly stabbed his wife, banging her head on the curb and killing her in the process after a supposedly sleepwalking episode. (Ramsland) He was found guilty, however, highlighting how automatism cannot be considered as a guaranteed defense in Canadian legal system. The nature of automatism as a legal defense as shown by the previously cited cases represents a dynamic and quite evolutionary kind. According to Simon Verdun-Jones (2009) “the relationship between the burdens associated with automatism dictates that any change in the legal burden of automatism will necessarily result in a change to the evidentiary or proper foundation burden associated with defense.” (p. 211) The judgment, hence, can be dictated by the social changes that, in turn, shape the personal points of view of people who sit as juries and judges. Battered Woman Syndrome Posttraumatic Stress Disorder (PTSD) has been invoked as a defense in several cases in many legal systems with varying successes. It emerged and gained attention in a spate of criminal acts blamed on the experiences of soldiers who suffered trauma in wars. In clinical terms, PTSD is not considered as a psychotic disorder. However, there are instances when people who suffer this disorder are scientifically proven to result to a brief or extended psychotic syndrome if they also have bipolar disorders. According to Ribner (2002), PTSD may form the basis of a diminished capacity defense, if the defendant can prove that criminal actions are reenactment, that is, sensation seeking, self-punishment due to survival guilt or dissociative episodes. (p. 146) This defense, wrote Sonnenberg and Blank (1985), has been used in significant number of cases since 1980, and the results are apparently well within the boundaries of controversy typical for the forensic use of any psychiatric defense. (p. 80) Along this line, legal experts, point out the subjective nature of PSTD, highlighting how it is also easy to malinger this condition. (Benedek, Ask and Scott 2010, p. 415) PTSD, as a defense, however can be strongly depicted in how the law now accepts “battered woman syndrome”, a variation of PTSD, as a valid and legitimate defense. Recent literature, reports and studies in Canada have revealed the worsening case of violence against women. Awareness of domestic violence, spousal abuse, battery brought about the increase in interest and the figures reported by statistics has increasingly pressured Canadian policymakers and legal experts to recognize wife battery as a valid defense. The estimated annual prevalence of women abuse range from 2 million to approximately 4 million cases in Canada and that 7 percent of women reported being victims of violence in their relationship with their intimate partner. (Austin and Boyd, 2010, p. 909) The legal system and policymakers has increasingly acted to address the problem, making the battered woman syndrome flourish both in number and in the success when used as a defense. Schlesinger (2007) explained that the increased societal awareness has forced the law to move towards protection of women and that it is a part of a recognition to combat an emergent pattern of inadequate law enforcement response to domestic violence. (p. 308) This is reflected in the Lavallee v. The Queen (1990) case back in 1990 when Canada’s Supreme Court ruled that battered woman syndrome formed a fundamental part of the “reasonable apprehension of death” and “grievous bodily harm” elements of the s.34(2) of the Canadian Criminal Code, which outlined the condition for self-defense that excuses criminal culpability. (Criminal Code 1985) This was a landmark case because the Supreme Court held that in order to assist trial courts in making the determination as to whether the accused acted reasonably in cases that are the same as the Lavallee case, trial courts may admit expert testimony concerning the so-called battered woman syndrome. (p. 303) The standpoint adopted by the Canadian legal system on battered woman syndrome as a valid defense is also recognized in many other legal systems around the world. For example, the United States courts accept battered woman syndrome as a scientifically recognized theory and allowed expert testimony on the subject. (Schlesinger, p. 308) What this variable and previous others demonstrate is that PTSD and battered woman syndrome are new ways in describing and explaining behavior in litigation that emerged as society discovered new sets of behaviors that result as a consequence of recent phenomena or recently discovered phenomena. Duress The Canadian Criminal Code declares in Section 17 that “a person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion.” (Criminal Code) This is where duress as a defense in criminal offenses could qualify. In Canadian jurisprudence, duress arises when a person is subjected to an external danger such as intentional threats of physical harm or death from a person and commits a criminal act to avoid the threatened harm. (Simon, p. 298) The case of duress in Canada is significant in this research because the Supreme Court never really resolved whether it can be considered as a guaranteed defense for crimes against other person. McRae explained that this was reflected in the way the Supreme Court of Canada was divided in a decision back in 1993 as they resolved the issue of “superior orders and duress. To quote: the contentious issue was whether duress could ever offer a complete defence to a crime involving the killing of innocent human beings. All five judges agreed that existing international humanitarian law is inconclusive and that there is no established rule of customary… law settling this issue. (p. 203) McRae noted that the Canadian jurisprudence is equally divided on the issue, highlighting how duress is available as defence for many crimes but is excluded for murder, for which it is merely considered as a mitigating factor. (p. 204) There is a growing need to change this legal position because the current law is only focused on the position and rights of the threatened party. There is less emphasis on the rights of the intended victim as the legal system attempts to balance the interest of the parties involved, the accused, the victim and society. There are new cases that demonstrate how duress may be rationalized by the concept of necessity. For instance, there is the controversial case of Robert Latimer who killed her 12-year old daughter, because he could not bear to watch her suffer from severe cerebral palsy. Tracy could not talk, walk and feed herself and has undergone numerous surgeries. At the time of the killing she was slated to undergo another to remove a thigh bone. The resolution of the legal issue entailed numerous dilemmas, including the Supreme Court’s order for new trial. The judgment on the case led to a new legal ground when Justice Ted Noble granted Latimer a constitutional exemption from the minimum sentence for second degree murder by which Latimer was eventually found guilty. (CBC News 2010) The case riveted the nation and has been referenced in attempts at reform with respect to how duress is viewed as a defense. Latimer was granted parole in 2008 and this underscored how the law should take a fresh look at duress and how it should be accepted as a defense for serious offenses like murder. Conclusion The increasing successes of cases of automatism, PSTD and duress underscore how the law is willing to accommodate the social changes and its impact on criminality and the behavior of criminal offenders. It can be brought about by an entirely new social phenomenon or recently discovered phenomenon. This point underscores how the legal system has to evolve in order to be continually just. Social changes are inevitable and if the courts will not keep up to these changes and remain rigid and unyielding, it cannot provide the solutions and the needs of society for law and order. References Austin, W. and Boyd, M. (2010). Psychiatric and mental health nursing for Canadian practice. Lippincott Williams and Wilkins. Benedek, E., Ash, P. and Scott, C. (2010). Principles and practice of child and adolescent forensic mental health. Arlington, VA: American Psychiatric Publication. CBC News. (2011). "'Compassionate homicide': The law and Robert Latimer". CBC News. Retrieved from http://www.cbc.ca/news/canada/story/2010/12/06/f-robert-latimer-compassionate-homicide.html. Criminal Code, R.S. c. C-46 , s. 34. (1985). Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-46/page-12.html#h-9 McCord, J., McCord, S. and Bailey, S. (2011). Criminal Law and Procedure for the Paralegal. New York: Cengage Learning. McRae, D. (1998). Canadian Yearbook of International Law, Vol 35, 1997. Vancouver: UBC Press. R. v. Lavallee, [1990] 1 S.C.R. 852 Ramsland, K. (2010). “Automatism: The Sleepwalker's Defense.” Retrieved from from http://www.trutv.com/library/crime/criminal_mind/psychology/automatism/1_index.html. Ribner, N. (2002). The California School of Professional Psychology handbook of juvenile forensic psychology. San Francisco, CA: Jossey-Bass. Schlesinger, L. (2007). Explorations in criminal psychopathology: clinical syndromes with forensic implications. Springfield: Charles C Thomas Publisher Ltd. Sonnenberg, S., Blank, A and Talbott, J. (1985). The Trauma of war: stress and recovery in Viet Nam veterans. Arlington, VA: American Psychiatric Publications. Verdun-Jones, S. (2009). Canadian Criminal Cases. Toronto: Nelson Education. Read More