Temporary Insanity, Intoxication, and Criminal Responsibility in the Spanish Penal Code

Posted on Aug 23, 2024 in Law & Jurisprudence

ITEM 23 – Temporary Insanity

Temporary mental disorder is characterized by its transience. After a short time, it usually disappears without sequelae. In principle, temporary mental disorder could be solved for the purposes of item 1 of Article 20 of the Penal Code, but with a separate paragraph stating that temporary insanity does not exempt from punishment if it had been caused by the subject to commit the crime or had been planned. This paragraph takes into account the theory of liberae actiones in causa and requires several requirements to be exempt from penalty:

  1. The existence of any anomalies or causal actions generated by endogenous or external stimuli.
  2. Disturbance of full mental faculties, which prevents the individual from understanding the wrongfulness of the act. If the disturbance is not full, the exemption may be incomplete.
  3. The absence of provocation of the disorder with the aim of committing the crime and lack of foresight of the crime, or where appropriate, absence of the duty to provide for the commission. This last requirement leads to different situations:
    1. If the subject seeks the condition for the implementation of the crime: in this case, the subject does not benefit from the exemption and is considered to have acted with willful misconduct.
    2. If the subject does not seek the disorder, but could have foreseen the crime: they cannot benefit from the defense and will be held responsible for the offense, but either by way of conditional intent or recklessness.
    3. If the subject does not seek the disorder and could not foresee the commission of the crime: they cannot be charged with the crime, except for a degree of recklessness. Some authors say that this situation could benefit from the exemption as a defense, but perhaps an incomplete one.

Changes of Perception

The exemption in paragraph 3 of Article 20 applies. This cause of insanity is described as a biological-psychological blended formula that requires two conditions:

  • The subject must undergo an alteration of a biological nature, specifically in perception (visual or auditory). This replaces the old deaf-mutism.
  • Besides being biological, the alteration must have a psychological effect that leads to an alteration of reality, preventing the individual from recognizing reality. Due to a deficiency related to the outside world, they cannot properly understand the meaning of their actions. This situation currently has little application because these individuals can access certain types of special education.

Minority

Minority was not a circumstance that was considered a defense at any age. The Spanish Penal Code provides in Article 19 the lack of criminal responsibility for minors; persons under 14 will not be criminally responsible. Only civil actions will apply to them. Those under 14 will be subject to educational measures, control measures, etc., but will never face any type of sanction. Different sanctions will be applied depending on age. Between 14 and 16 years of age, educational measures will be primary. Between 16 and 18 years of age (in addition to the importance of education), there will be a greater role in the field, which may be educational or punitive, up to internment. It can be closed, semi-open, open, etc. There may be therapeutic placement, day centers, probation, community work, training, educational measures, mere reprimand, denial of licenses, etc. In the case of children who have abnormalities or psychic disturbances, special measures of internment may be imposed in detoxification centers, therapeutic centers, or centers for perception. Internment will be reserved for more serious crimes (of violence or intimidation), never for reckless acts and omissions. For example, the sentence will be from 1 to 5 years, but with the possibility of parole until 20 years later. The vision that the legislature had when enacting the law is the creation of education.

ITEM 23 – Poisoning by Alcohol or Drug Withdrawal Syndrome

Both alcohol and drug intoxication can have different states. The first point is intoxication by drugs. Within this state of intoxication would be profound intoxication, which transitively affects the powers of the subject to a greater or lesser extent. The second condition is alcoholism, which is poisoning caused by the regular consumption of alcohol, a chronic disorder that involves a continuous and more or less sensitive impairment of psychic powers. The third and final stage is withdrawal, the dependence that the subject has on the drug (or alcohol). This dependence can lead to deprivation, upon which effects may occur that are similar to the point of intake and dependence (used more when talking about drug dependence than alcohol dependence).

1. Drunkenness

The Criminal Code of ’95 introduced a specific exemption with respect to full intoxication by ingestion of alcohol, toxic drugs, narcotics, psychotropic substances (drugs), and others with similar effects. All of them alter the nervous system. With regard to drunkenness, the requirements will be:

  1. Intoxication by the consumption of alcoholic beverages.
  2. That this disturbance affects full mental faculties.
  3. A lack of provocation of intoxication with the purpose of committing the crime.
  4. No forecast of commission.
  5. Absence of duty to provide for the commission.

2. Alcoholism

This implies the presence of a disease, overcoming the stage of alcohol dependence. If there is a permanent alteration of the psyche of the subject, we apply the defense (No. 1 of Article 20). However, the Penal Code has introduced Article 20.2, and the problem arises of implementing one defense over the other. (As it is not necessary in the case of timely poisoning), there is withdrawal syndrome, which not all substances produce, so not all drugs have the same effect; all create addiction.

3. The Use of Drugs (Not Alcohol) and Drug Addiction

We find cases where the slowdown in capacity is caused by the subject’s dependence on the substance, which causes more serious consequences because the drug causes a deterioration of the aforementioned powers, and we also have functional crime, which is caused by the withdrawal, committing crimes to obtain the substance. Regarding legal treatment, the same applies in cases of intoxication from simple drug consumption. There are 3 cases:

  1. There is only addiction: in addiction in subjects that are not exacerbated either by withdrawal or by the use of the drug, the subject will suffer a permanent impairment of their mental faculties as a result of the drug. In principle, we should apply number 1 of Article 20 or the incomplete defense if the effects of the drug are not full. However, the legislature of the Penal Code intended to establish a provision (paragraph 2 of Article 20) considering the case of drug addiction.
  2. Addiction with withdrawal: if at the time of committing the crime the subject has been under withdrawal, it must be resolved by applying the second sentence of paragraph 2 of Article 20. The greater the influence of withdrawal, the more the subject will be held harmless. To implement this assumption, it will be necessary: “A dependence on toxic drugs, narcotics or psychotropic substances and others with similar effects.”
  3. Addiction with consumption: if the subject is a drug addict and commits the typical act under the effects of the drug, there is a conflict between the attenuating number 2 of Article 21.