GENDER ROLE OF INCONGRUENCE AND THE ADJUDICATION OF CRIMINAL RESPONSIBILITY.

ABSTRACT The mental health and criminal justice systems are two of the major control mechanisms in American society that often function together through related and interdependent structures to identify and control deviant behavior. Both systems employ coercive control. In addition, regardless of the specific form of the deviance, these control institutions also use informal social control to reinforce role behaviors appropriate to the individual's age, sex, race/ethnicity, and other social statuses. This paper investigates the effects of gender and gender role incongruence on the determination of criminal responsibility. Data for this study came from the Insanity Defense Reform Project, a National Institute of Mental Health-funded study of eight states. The sample for this study consists of 4842 cases in which insanity was raised as a defense. Consistent with earlier studies, women are more likely to be found not guilty by reason of insanity (NGRI) than men, but the odds of being found NGRI are moderated by the defendant's sex and relationship to the victim. Consistent with hypotheses of the effects of gender role incongruence, women whose victims are their own children or other family members (not including spouse victims) have the greatest odds of being found NGRI of any group. However, women whose victims are spouses have similar odds of being found NGRI as those of men whose spouses are the victims. Thus, the theory was only partially supported, suggesting that how and the degree to which courtroom personnel rely on common stereotypes and gender expectations in decision making is complicated and may reflect a weighing of factors related to blameworthiness and dangerousness--both physical and symbolic. I. INTRODUCTION The insanity defense has a long history in English and American jurisprudence reflecting a longstanding belief that those who have little ability to understand the consequences of an act, or know that their behavior is wrong, should not be held criminally responsible for their actions. (1) Yet the American public is often incensed when persons who commit particularly heinous crimes are found Not Guilty by Reason of Insanity (NGRI). (2) In high profile cases there appears to be a public discourse weighing the defendant's blameworthiness against his or her threat to society, which is fueled by the media's misrepresentation of the connection between mental illness and violence. (3) The insanity defense has drawn enormous attention over the years, disproportionate to the frequency of its use. (4) In reality, the insanity defense is invoked in less than one percent of all felony trials and only twenty-six percent of those pleas result in an NGRI verdict. (5) Even though the actual numbers are quite small, the American public and attorneys alike believe that the defense is invoked frequently and principally in cases involving murder. (6) Despite these perceptions, most cases that involve an insanity plea are not for murder charges (7) and are cases in which the evidence of mental illness is so overwhelming that the prosecution does not contest the insanity plea. (8) At the heart of the defense is the question of mens rea, that is, criminal intent. (9) Most commonly, insanity is substantiated by medical evidence of mental illness. (10) However, the mere presence of a mental illness is insufficient unless it can be demonstrated that the illness was directly related to the state of mind at the time of the offense and of sufficient strength to qualify the defendant as criminally insane. (11) On the other hand, a finding of insanity does not necessarily require evidence of a diagnosable mental disorder. Bizarre behavior, thoughts, emotional states, manner, or speech may also provide evidence for an insanity determination. (12) Evidence of the state of mind at the time of the offense may be presented by expert testimony or lay opinion testimony. (13) Expert testimony is commonly given by a mental health professional based upon hypotheticals or direct observations, including interviews and assessments. …