Antisocial Personality Disorder, The Criminal Law and 'Victim-Offenders'

Authors: Cronin, A.

Start date: 5 April 2016

Antisocial personality disorder is now a recognised mental health condition. Although only 4 – 11% of the UK population is affected, over 60% of the UK prison population display identified traits of the disorder. Indeed, criminality is not a likely result of having the disorder but is a medically recognised characteristic of it. However, in the sentencing process, if taken in isolation the traits are aggravating in nature whereas, taken collectively, and symptomatic of the mental illness, they are potentially mitigating. Even more troubling, the disorder results from external childhood influences, with triggers such as emotional, physical and sexual abuse, bullying and neglect. Furthermore, recent neurological and neuropsychological research demonstrates an internal predisposition to personality disorder. Put simply, the defendant does not choose antisocial personality disorder. Arguably this undermines liability based on ‘freewill’ but also poses challenging questions for the criminal law given that the offender is likely to have been the child victim of some form of criminal abuse or neglect. Whereas the Sentencing Council may consider a victim of crime who suffers anxiety, disabling mental illness or personal injury for compensation, in this case the vulnerable ‘victim-offender’, whom the justice system has seemingly already failed, is now deemed worthy of punitive sanction. Arguably this is counter-intuitive and must offend any sense of even-handedness, particularly since child victims are considered more deserving, with considerably larger compensatory awards than adults. This paper argues that although criminality is deserving of punishment, mental illness is deserving of treatment. Aspects of antisocial personality disorder are treatable and, given the early manifestation of the defining characteristics, the Youth Court could offer an opportune point for appropriate intervention for such victim offenders.

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