Mental retardation involves very common forensic issues, and is second only to schizophrenia in terms of the proportion of daily appraisals. The identification of this disorder includes two parts: one is the identification of the actor including criminal responsibility, ability to stand trial, civil capacity, ability to testify, labor capacity, etc.; the other part is the identification of the victim, i.e., the identification of sexual self-defense and the identification of mental impairment.
Mentally retarded people are a vulnerable group in modern society, affected by low intelligence, which often makes the patient’s ability to recognize or control objective things impaired, thus showing simple and childish thinking and behavior, weak legal and moral concepts, and unable to properly decide and control their behavior according to normal recognition. When a person with mental retardation is involved in legal recourse or rights protection, his or her vulnerable position is more obvious.
In the determination of criminal responsibility of offenders, mild and moderate mental retardation is the most common. As for the types of crimes, sex crimes, burglary and arson crimes were most frequently reported abroad. In China, sex crimes, burglaries and homicides were reported to be the most common.
I. Identification of the perpetrator
(A) Assessment of criminal responsibility
Mental retardation criminal responsibility assessment, according to medical standards and jurisprudence standards for a comprehensive determination, medical standards to determine whether there is low intelligence, the severity of the intelligence deficit; jurisprudence standards to determine the mental retardation in the implementation of illegal acts, the ability to recognize their behavior, the ability to control. The core content is to determine the degree of association between low intelligence and delinquent behavior. The following aspects are mainly evaluated in the identification.
Intelligence level: It is the main basis for determining the criminal responsibility ability of this category of patients. In the judicial appraisal of mental illness, the standardized intelligence test results are relatively more credible than other psychological tests. Because the intelligent test does not have the problem of pretending to be good, for non-cooperative people can also be evaluated comprehensively by prior estimation of intelligence, daily life performance, verbal ability, labor ability, etc. In practice, people with severe and very severe mental retardation are generally evaluated as having no criminal responsibility, those with moderate mental retardation are evaluated as having no or limited criminal responsibility, and those with mild mental retardation are evaluated as having or limited criminal responsibility.
Social adaptability: It is one of the jurisprudential criteria for assessing criminal responsibility and is an important supplement to intelligence assessment. Generally, people with severe and very severe mental retardation are less uncooperative or disturbed by the surrounding people during the intelligence test, which is also consistent with their social adaptability. However, some people with mild to moderate mental retardation are uncooperative in the intelligence assessment for various reasons, and their intelligence is not compatible with their social adjustment ability, so we should pay more attention to the comprehensive evaluation of intelligence.
The offending behaviors of mentally retarded people are generally “small and clever to cover up the big clumsy” due to the influence of low intelligence, and are usually committed alone, some of them have a simple plan and premeditation when committing crimes. The motive is simple and childish, easily influenced by emotions and environment. The behavior is impulsive or mechanically executed imitation, easy to accept cues, lack of expectation of the consequences of the behavior, and poor self-protection ability. Most cases have some awareness of the illegality of their behavior at the time of pretrial.
(II) Identification of the ability to stand trial
The Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Justice and the Ministry of Health in 1989 jointly issued the “Interim Provisions on Judicial Identification of Mental Illness”, Article 21, paragraph 1, provides that “the appraised person is the defendant in a criminal case, in the course of litigation, identified as suffering from mental illness, resulting in the inability to exercise litigation rights, for incompetence. ” This provision indicates that the ability to stand trial adopts a dichotomous view of having or not having. In the course of criminal proceedings, the procedural rights enjoyed by the defendant include: the right to a defense, the right to apply for recusal, the right to check the transcript, the right to sue for infringement, the right to make a final statement, etc., but these rights correspond to the obligation to inform the judicial organs and safeguard the obligations, so the realization of these rights does not depend on the defendant alone. The key to the defendant’s inability to exercise his or her rights in litigation lies in his or her inability to understand the meaning of many of these rights due to mental illness or intellectual deficiency, or to understand the nature of the content of the prosecution, and thus to cooperate with the court in the trial. In the case of persons with mental retardation, the majority of those with severe or very severe mental retardation are incapable of criminal responsibility, so naturally there is no question of their ability to stand trial. If a person with mild to moderate mental retardation is involved in a criminal offense, he or she may be mentally retarded, but can generally understand the judge’s questions and cooperate with the court, and generally has the ability to stand trial. However, if a person with a mild to moderate degree of mental impairment is also mentally impaired and his or her mental symptoms worsen while in custody and he or she is unable to cooperate with the trial, he or she will not be able to stand trial. In addition, in custody if the emergence of custodial mental disorder, generally belong to the ability to be tried temporarily impeded, should first be treated appropriately, to continue to be tried after the disappearance of symptoms.
(C) civil capacity identification
Civil capacity identification is more complex than the identification of criminal responsibility, in the identification of criminal responsibility, the identification of most of the evidentiary materials from the public security organs, and the investigation and collection of evidence is also greater, to provide identification of materials in the pretrial process has been a preliminary screening. Civil capacity identification is different, the stakeholders for their own interests, each of the word, sometimes difficult to distinguish the truth from falsehood. In addition, there are more legal and social issues involved, which can easily lead to disagreement on the identification conclusions and lead to a higher rate of repeated identification. The civil capacity of mentally ill persons is regulated according to the severity of their illness, and there are two kinds of regulations on non-civil conduct and restricted civil capacity. Article 13 of the General Principles of the Civil Law: “A mentally ill person who cannot recognize his own behavior is a person without civil capacity and shall be represented by his legal representative in civil activities. A mentally ill person who cannot fully recognize his own behavior is a person with limited civil capacity and may engage in civil activities appropriate to his mental health condition; other civil activities shall be represented by his legal representative or with the consent of his legal representative.” On whether the civil capacity, in the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Justice and the Ministry of Health in 1989 jointly issued the “Interim Provisions on Judicial Determination of Mental Illness” Article 20, paragraph 3, provides that “the appraised person in civil activities, identified as one of the following circumstances, for the civil capacity.
(1) has a history of mental illness, but no mental abnormality at the time of civil activity.
(2) Intermittent period of mental illness and disappearance of mental symptoms.
(3) Although suffering from mental illness, but his or her pathological mental activity has obvious limitations and has the ability to recognize and protect his or her legitimate rights and interests in the civil activity carried out
(4) low intelligence, but still have the ability to recognize and protect their legitimate rights and interests.” Application and assessment of civil capacity identification: the civil capacity identification of this disease is determined by a combination of medical and jurisprudential criteria, with the medical criteria determining whether there is an intellectual deficit and the severity of the deficit; the jurisprudential criteria mainly determining the state of his or her ability to recognize. The task of jurisprudential criteria is to test the recognition and evaluation of the connotation, nature, purpose and related stakes of a person with mental retardation when performing a certain civil act, his or her judgment of objective things, whether it is in accordance with the standards of general human perception, and whether there is the influence of implication or entrapment. The civil conduct issues involved in life are diverse, and because of the varying degrees of complexity of civil rights and obligations set, the requirements for the specific capacity of the parties are also different, and the actual identification requires specific analysis of the specific issues. It is not difficult to imagine that the same is the sale contract, buy a few dollars a box of cigarettes, and buy a few thousand dollars a computer, the required civil capacity should be different.
The actual identification, for severe, very severe mental retardation due to severe mental deficiencies, can not fulfill their civil rights and obligations, most of them are not civil capacity. In order to protect their legitimate rights and interests, the relevant provisions of legal guardianship may be applied, and their spouses, parents, adult children, or other close relatives, etc. may act as agents for civil activities. Due to the limited social function of people with severe and very severe mental retardation, the identification issues involved are also less common. For mild and moderate patients, they are generally competent in most civil acts, but the civil capacity of such patients should be analyzed on a problem-specific basis, such as examining the size of the subject matter of the contract they signed, whether the meaning is true, whether there is realistic reasonableness, and whether they are influenced by the people around them. If the patient’s civil behavior is beyond the scope of his or her intelligence or beyond his or her actual material level, he or she should be evaluated as having no civil capacity.
(iv) Evaluation of working ability
Patients with severe or very severe mental retardation are mostly completely incapacitated for work because of the difficulty in adapting to social activities. Mild and moderate mental retardation patients, due to the nature of education and training, generally can not meet the identification criteria of complete loss of work capacity.
(E) testimony capacity assessment
The ability to testify is mainly reflected in the presentation of the facts of the case, the degree of intellectual impairment is a key factor in the ability of patients with this disorder to testify, but is not the absolute only factor. The actual appraisal should focus on determining whether the patient has sufficient ability to observe, recall and narrate the facts. If these abilities are present, the patient should be assessed as competent to testify.
It should be noted that the ability to testify is a very complex issue. Even for normal people, the credibility of their testimony as an eyewitness can be affected by a variety of factors, such as receiving misleading information after witnessing an event or having a false memory of an event that never occurred, the accuracy of the memory can be affected. For people with mental retardation, these effects can be even more pronounced, so their testimony must be treated with caution, depending on the relevance of other evidence and the degree of support. Article 48(2) of the Criminal Procedure Law states that “A person who is physically or mentally impaired or too young to distinguish right from wrong or express himself correctly cannot testify.” Usually, patients with severe and very severe mental retardation are incapable of testifying due to the limitation of their speech ability. The testimonial capacity of patients with mild and moderate mental retardation should be determined comprehensively depending on the specific circumstances of the case. In general, most people with mild mental retardation have the ability to testify, and patients with moderate mental retardation may have the ability to testify to a few simple cases.
Second, the victim identification
(A) sexual self-defense capacity identification
The concept of sexual self-defense: the term sexual self-defense is derived from the Interim Provisions on Judicial Identification of Mental Illness jointly issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Justice and the Ministry of Health in 1989, Article 22, paragraph 1, “The appraised person is a female, who is identified as suffering from mental illness and has no understanding of the infringement or serious consequences of her sexual inviolability when her right is infringed. If the person is found to be mentally ill, she is incapable of self-defense if she lacks substantial understanding of the infringement or serious consequences of the infringement. Since the promulgation and implementation of this provision, the term “sexual self-defense capacity” has been commonly used in the national mental illness forensic evaluation. But the term sexual self-defense is not a legal term, nor a medical term, since the use of a number of controversies, due to the lack of unified understanding, has been in use.
The legal basis for the identification of sexual self-defense: the main legal basis for two, one is the provisions of the above-mentioned “Interim Provisions on Judicial Identification of Mental Illness” Article 22; the second is the 1984 Supreme People’s Court judicial interpretation on handling rape cases “knowing that the woman is mentally ill or demented (to a serious degree) and have sexual relations with her, regardless of the offender employs any means, shall be punished as rape.” The intent of the above legislation is to combat the subjective malice of criminals who bully the weak and take advantage of others, while protecting the mentally ill as a vulnerable group. Two core issues are emphasized in such cases: the knowing intent of the offender and the victim’s lack of substantial comprehension of the consequences of the sexual assault. The need to characterize the case or to find aggravating legal circumstances is often the reason for bringing a sexual self-defense capacity determination.