جستجوی مقالات مرتبط با کلیدواژه « mental disorder » در نشریات گروه « فقه و حقوق »

Statement of the problem:

 society and criminal system, in pursuit of the goals they seek to fulfill by indicting criminals and punishing them, sometimes encounter people who do not have a normal mental state in any of the situations of being in the society or in the different stages of committing a crime until the end of the punishment, and this issue makes challenges for the realization of these goals possible. In the current situation, apart from the medical and psychiatric guidelines, there are no comprehensive regulations that include a mechanism for identifying, introducing, guiding, treating people with mental disorders and protecting their rights against the guardians and duties they have towards them, and on the other hand, determining the status of judicial authorities in dealing with them, or they do not have the necessary comprehensiveness. Consideration of the provisions of the new bill as far as it is related to the patients and their rights in the criminal process has been considered in writing this article.

The present article is taken from the library research method in its first speech and from the analytical-descriptive method in the other speeches.

The new bill, while innovating in some of its regulations, has tried to fix the existing deficiencies, but it faces challenges in terms of the efficiency and the possibility of applying those regulations.

Adultery with the dead or necrophilia is an abnormal sexual disorder in which sexual pleasure arises from liaison with the corpses. According to psychologists, this type of sexual intercourse is a severe mental disorder, and such patients not only need psychotherapy, but also their criminal responsibility is questionable. Article 149 of the Islamic Penal Code also implies such an inference, but contrary to expectations, the legislature has considered sexual intercourse with a corpse to be adultery and the related punishments are considered for the perpetrator. (Whipping for an unmarried adulterer and execution for married adultery) Regardless of the eligibility of a person with necrophilia to be held criminally liable, criminalizing or placing such behavior under the control of criminal law does not follow the principles and criteria governing this matter. Thus, the criminological challenges of this behavior appear in the face of its jurisprudential documents. In this article, we intend to analyze these shortcomings

Pregnancy is a condition in which a woman has a fetus in her womb that lasts for 9 months and ends with childbirth. This period has effects on the mood and psyche of the pregnant woman that has been investigated in the field of obstetrics and gynecology as well as Psychology and can be effective in her criminal and penal sentences. This research, entitled the "studying the effect of pregnancy condition on the criminal sentences of pregnant women in Islamic law and jurisprudence, which has been done by descriptive-analytical method, examined the views of jurists and relevant laws on this scope and concluded If a woman is pregnant, in Islamic jurisprudence and law, the implementation of hudud and Qeṣāṣ is delayed due to the fear and destruction of the fetus, citing verses 33 of Surah Esra and 164 of Surah An'am, narrations and consensus and reason. Pregnancy always causes mood and mental disorders for a woman and causes depression, severe anxiety and impaired concentration, although these matters have no effect in issuance of rules and regulations for her. Due to the reasons for eliminating of criminal responsibility and mitigating factors of crime, pregnancy can reduce criminal responsibility and mitigate punishment for pregnant women.

One issue that can challenge the criminal justice system is the claim of mental disorder at the time of committing a crime. Acceptance of this defense reduces the punishment or leads to the acquittal of the accused. Mental disorders encompass a wide range of brain disorders, with the most severe being insanity, which is recognized as a factor that removes criminal responsibility in various legal systems, including those of Iran and the United States of America. Therefore, if a person commits a criminal act but lacks the necessary capacity to discern the rightness or wrongness of their actions, the attribution of responsibility to the perpetrator is lost, and they will not be held accountable. Article 149 of the Islamic Penal Code of 1392 states, "If the perpetrator is mentally disturbed at the time of committing the crime in such a way that they lack volition or discernment, they are considered insane." In American law, the concept of insanity is rooted in common law, and regulations governing insanity differ across different states in the country. American legal professionals believe that mentally ill individuals who commit crimes should undergo psychiatric treatment before facing punishment. At the same time, the legal rights of these mentally ill criminals must be respected, but concerns about public safety and preventing the frequent dangers posed by these individuals must also be taken into account. The goal is to strike a balance between the patient's right to treatment and the responsibility to ensure public safety.This study aims to explain the concept of insanity, the conditions required for its verification, and its effects on the criminal justice systems of America, Iran, and Imami jurisprudence. It seeks to answer the following questions: What are the conditions to prove insanity in the legal systems of Iran and America? What is the stance on diminished responsibility in the criminal justice systems of Iran and America? Are milder mental disorders than insanity also recognized as an obstacle to criminal liability? This study employs a descriptive-analytical method and relies on a library collection tool.Discussion and The principle of acquitting individuals with insanity from criminal liability is generally accepted in Imami jurisprudence and the criminal laws of Iran and America. Jurists consider it necessary for a person to possess the legal capacity to be held responsible, and the general conditions of religious obligation form the basis of criminal responsibility and the legitimacy of imposing any type of punishment that society implements on a criminal for committing a crime. Insanity has an impact on criminal liability in the laws of Iran and America. Article 149 of the Islamic Penal Code, approved in 2012 and based on the McNaghten criteria and the Model Penal Code, establishes that mental disorders leading to a decline in volition or discernment remove criminal responsibility. Criminal responsibility or non-responsibility is absolute in the Islamic Penal Code. Consequently, many individuals with mental disorders are deemed fully criminally responsible. The need to consider diminished responsibility in the context of insanity rules is evident and requires attention and revision to ensure fairness. Recognizing this necessitates focusing on two aspects related to the issue of insanity: the legal aspect and the psychiatric aspect. Psychiatry has shown that there are intermediate states between sanity and insanity that do not lead to a deterioration of criminal responsibility like insanity, yet the accused does not possess complete mental and psychological health to be considered responsible for their actions.Diminished responsibility comes into play when an act has been committed, and the law prescribes punishment for the act, but due to specific circumstances, the primary punishment cannot be applied, and a lighter punishment is imposed instead. In the United States, the "guilty but mentally ill" act has recognized diminished responsibility since 1957. In cases where the perpetrator exhibits impaired discernment or volition but does not lack them entirely, they are considered guilty but mentally ill, and a reduced sentence and rehabilitation are taken into account. The purpose of this law is to both remove dangerous individuals from society and provide treatment for mentally ill individuals. This means that mentally ill patients who have not reached the point of insanity are not sentenced to the original punishment for the crime committed but rather receive a lesser degree of punishment. In American law, according to the McNaughten rule and the Model Penal Code, if mental retardation leads to a decline in discernment, the person is not held criminally responsible. The Eighth Amendment of the United States Constitution considers the death penalty for mentally retarded individuals as an unjust punishment, but lighter punishments are applied to such individuals. In Iranian law, Article 38 of the Islamic Penal Code includes illness as a mitigating circumstance. However, when the defendant's illness is not deemed effective in committing the crime, the judge has the power to reduce the punishment based on the clarity and combination of the two aforementioned articles.

The meaning of mental disorder in the Islamic Penal Code is the existence of some severe mental disorders in such a way that at the time of committing the crime, the criminal did not have full will to perform his/her actions and was not aware of the consequences. The main goal of this article is to investigate the role of mental disorders in determining the criminal responsibility of criminals. The research method is descriptive and analytical. The question of this article is that if a person is involuntary while committing a criminal act due to some kind of mental illness and does not have a correct knowledge and understanding of the criminality of her behavior, is he/she considered a criminal? In response to this question, it can be said that according to the Islamic Penal Code approved in 2012, mental illnesses - which are diseases that affect mental and mental health and deprive a person of their will - put a person in a state of insanity and exempt him/her from criminal responsibility. Research findings indicate that not all mental illnesses completely deprive the will. Determining to what extent a mentally ill person is criminally responsible is very important. In addition, the findings of the research showed that the victim suffering from mental disorders could sometimes reduce or increase the punishment of the offender.

According to Article 149 of the Islamic Penal Code, “Where at the time of committing a crime, there is a mental disorder in a way that the perpetrator lacked the volition and power of discernment , he will be deemed insane, and shall have no criminal responsibility”. This article is the last will of the legislator on insanity. In total there are three criteria for insanity: Cognitive and Volition Criterion, customary criterion and companion and Contradiction Criterion. In the cognitive criteria, the main emphasis is on the the nature of the action. Volition criterion relying on individual control over their behavior. In the customary standard, since insanity is a customary concept, it is referred to the custom to diagnosis it. The psychiatric criterion can be analyzed in the context of a specific custom. In the companion criterion, the main emphasis is in relationship with insane person. At paradoxical level, attention is paid to behaviors that are not matched with mental health. The most appropriate solution for detecting insanity is attention to perception and failure of perception based on symptoms such as delusions and hallucinations.

Insanity, in both of Iranian criminal system and most states in the US, is defined as a mental disorder which causes to lack of volition or lack of capacity to appreciate wrongfulness of conduct, whether the nature of the conduct or criminal description of it as a crime. An insanity defense is acceptable, only when the offender did not have any volition or diagnostic capacity as a result of mental disorder. Mental disorders which often excludes criminal responsibility includes mania disorder, schizophrenia, paranoia and mental retreated, according to new Iranian criminal law or American law. Diminished responsibility, considerably, is applicable for mentally ill offenders, who have criminal responsibility, in the American states versus the Iranian criminal system.

Preventive detention of mental disorders applies for ensuring public protection and for preventing potentially dangerous offenders from reoffending. Former Article 48 and Article 150 of Islamic penal code 1392 are the most important examples of the preventive approach in Iran's law. In fact, preventive detention is a sort of pre-emptive action for public protection. In this measure, criminal law is moving from a retributive approach to a forward-looking approach and applied to pre-crime. Therefore, the article, examines this approach with emphasis on Article 150 of the Islamic Penal Code of Iran and the United States of America’s and France's law that are examples of punitive penal policy.

One of the current challenges is the issued verdicts regarding the custody of mothers suffering from mental disorders which, due to lack of accurate regulations, causes these people to be categorized as insane individuals. This study is aimed at distinguishing mental disorders from the insanity of the mother so that we could help enact laws and regulations to protect the rights of these persons. Findings of this study are as follow: if the mother is suffering from mental disorders, first the type of mental disorder should be determined for the court and after that her eligibility for the custody of the child should be investigated since mental disorders come under the general term insanity and are categorized into three groups: schizophrenia, minor insanity and foolishness. If the mother is suffering from a mental disorder, her right to the custody cannot be taken away based on their insanity. In cases where the mother is suffering from minor insanity or foolishness, proper mental conditions exist for granting the custody and in some cases even the custody itself can make the mother recover from her mental problem. However, a mother suffering from schizophrenia is not curable and she cannot be granted the custody of children because it may be detrimental to the children in which case she cannot have the right to custody.

Wife’s insanity should be separated from other mental disorders in the discussion of family relationships. It is essential to distinguish incurable mental disorders from incurable ones، because the lack of such a distinction leads to the violation of dementia-affected wife’s rights. Thus، it is necessary to investigate the rights of such wives in receiving alimony from the perspective of jurisprudence. The present article examines the various forms of mental disorders and wife’s ability to obey her husband when he is aware of her condition. A dementia-affected wife is able to obey her husband and there are various ways to retain her rights. In case of curable mental disorders، she is able to obey her husband and nervous fits are only temporary. If، however، the wife does not obey deliberately she is not entitled to any alimony since she has the power to do so but she does not on purpose. In case of incurable mental disorders، the wife is unable to obey her husband due to the nature of such disorders، not due to Nushuz (marital discord); nevertheless، she is entitled to receive alimony although she cannot obey him.

Criminal responsibility of mentally disordered people is of issues that has been unnoticed in the criminal laws of this country. These are people whose intellectual and mental growth have remained undeveloped and therefore are lower than ordinary people in society in terms of IQ. It is required to explain although these people have been exempted from criminal resposibility in famous jurisprudence books in our law, there is great controversy among lawyers. In general, it appears these people lack criminal responsibility but possibility of criminal reaction against the criminal action in form of security and teaches actions exits. This essay, tries to introduce these people to distinguish persons of its subject. By examining of reasons why criminal actions of these people are crime in practice. Later, a judicial decision as to criminal responsibility of these people will be explained.

Serial murder is definitely a crime in the criminal law. According to Iran’s Penal Code, it is considered as a multiple murder under a retaliation, blood money and discretionary punishments. In criminal responses against it, the criminal justice systems have different sanctions while dealing with it. Serial killers are not psychologically healthy while bearing criminal responsibility. However, the extent of their mental disease (psychosis) will invoke insanity defense. In Iran, serial killers never manage to use the insanity defense; therefore, they have always been sentenced to the maximum penalty of the law. The same procedure – except in rare cases –occurs in other countries. In fact, in serial murder, due to the type and the severity of the offenses committed and caused by the widespread fear and death in the community, a stricter criminal policy has always been adopted toward a serial killer.