Why Anders Behring Breivik is Probably both Criminally Insane and Legally Accountable

Today, the Norwegian forensic psychiatric experts assigned the task to assess whether or not Anders Behring Breivik (the perpetrator of the Oslo bombings and the mass murders on Utøya) is legally accountable under Norwegian law – Torgeir Husby and Synne Sørheim – delivered their report. Their conclusion is that Behring Breivik was suffering from a serious psychiatric illness (paranoid psychosis) when committing his crimes (here, here, here, here, here, here, here, here, here, here). News-reports unanimously declare that this makes it very likely that Behring Breivik will be ruled legally unaccountable for his crimes. Perhaps they are right, but is he unaccountable? Really?

I suggest that, in this case, we see an example of how severe psychotic illness need not, as a matter of fact, imply moral or legal unaccountability.

According to the psychiatrists who have made the evaluations, ABB describes severe delusions of paranoia, megalomania and grandeur (ABB experienced himself as an appointed defender of the Norwegian people against the horrible threat of muslims, a forthcoming king, et cetera). They also describe him as both suicidal and very dangerous to the the public and, reportedly there are speculations of ABB possibly having been sexually molested as a small child.

Now, of these points, the last two ones have no implication whatsoever for either the medical question (is ABB clinically mentally ill?) or the legal question of accountability. The presence of a risk of suicide may be an indicator of mental illness, but not necessarily at the time of the crimes, albeit possibly motivating psychiatric care no matter how the ensuing legal process falls out. However, the delusions of ABB (which I for now assume that the psychiatrist have ascertained not having been fabricated by ABB) without doubt describe a case of severe psychosis. In fact these descriptions alone are sufficient for declaring ABB seriously mentally ill at the time of the crimes.

Now, when the concept of moral and legal unaccountability are discussed, severe psychosis is one of the paradigmatic cases held out. Someone suffering from severe psychosis is the iconic representation of being stark raving mad and, for sure, no one in such a state can be accountable for their actions. Right? Well....., as you might guess, I will question this inference.

The classic idea of moral and legal accountability connects intimately to the legal notion of culpa – the idea of a wrongful action being someone's 'fault'. The idea is that if you are unaccountable this cannot be the case for you even if the action was wrong (against the law) and was physically caused by movements of your body. This, for instance, is how we view offenses committed by small children, sleepwalkers, and so on. Now, the classic doctrine of legal accountability states two main conditions: (1) understanding of the nature of the act, (2) ability to control the performance of the act. If you lack enough of any of these, you are legally unaccountable and cannot be guilty of a crime.

Around the world, there is some variation as to how (1) and (2) are interpreted (if you want to dive into issues and problems implied by this and other peculiarities around the meeting of psychiatry and the law, have a look here and here). In particular, it varies how tightly connected the concept is to clinical psychiatric terminology and methods. In the end, however, accountability is a legal or moral, not a psychiatric notion, so there is no conceptual or logical necessity involved in taking the step from a clinical diagnosis to a legal verdict. In any case, the typical case of severe psychosis will normally be viewed as activating at least clause (1) and sometimes also clause (2). This, however, seems to depend on the fact that common psychotic delusions are not like ABB's.

The psychotic delusions of ABB described by the psychiatric experts according to the reports have a common theme. They are all about ABB imagining there to be a sound and valid moral justification for what he did. He is convinced that Norway is threatened by an invasion of dangerous muslims, and that the Norwegian establishment forms a fifth column to this threat against an imagined "real" Norway, where "real" Norwegians truly want him to take the actions that he eventually did take. Now, the first part of this delusion is actually not very different from the one apparently held by rather a lot of European voters these days. Thoughts in this direction have been commonplace in the rhetoric of the new European racist political movement, which I analysed in a series of blog posts a while back. The second part seems to be no worse than the average world view of your typical conspiracy theorist (most of whom walk about as free persons). It is the third part, it seems to me, that makes ABB seriously mentally disturbed; the fact that his mind facilitates a world-view which provides a justification (of sorts) for him – ABB – to take bold and normally unlawful and deeply immoral action. The perceived threat and the lack of trust in authorities to prevent the threat may as such just as well lead to apathy or emigration. But combined with the third idea of having a special mission from the "real" Norwegian people to commit destruction and mass murder we have a severe mental illness. Obviously, then, diagnosing a mental illness has a substantial moral element. It is the presence of a delusion that allows ABB to break the most important of laws and moral prohibitions there are with an intact conscience that makes him clearly mentally ill – besides being egocentric, delusional, weird and racist.

However, while this is good reason to declare ABB as severely mentally ill, it is not a case for claiming him not to fall under any of the two conditions of accountability mentioned above. ABB clearly understood that he was killing people against their will and that this is a crime. He also understood that under normal circumstances even he would judge these act to be seriously morally wrong (thus the need for a delusional reason for why they where permissible in this case), so he obviously was fully capable of understanding what it means for an action to be wrong in both the legal and moral sense. Moreover, the whole story of his deeds is a witness of someone in full control of his actions. ABB did clearly not do as he did because he could not help himself, he did it because he really wanted to. He choose to do it and he was as able as anybody else doing something wrong to choose something else instead. The psychosis, moreover, did not expose ABB to any immediately threatening hallucinations that might have been a reason to declare his actions as sprung out of panic.

Here is my reading: ABB was indeed severely clinically psychotic when committing his crimes. But this psychosis had nothing to do with his understanding of the nature of the act or his ability to control it. Or, to the extent that a perceived moral justification is to be included in a person's understanding of an act, he was no less able to understand the nature of his act than anybody else committing a serious crime in the belief of being morally justified. Such as the criminal effectively embracing ethical egoism in caring nothing for his victims and all for himself, such as the Israeli hit squads that went after Nazi war criminals and the ones responsible for the Munich attacks, such as the band of bankrobbing and murdering neo-nazis that have just been apprehended in Germany, such as the very islamist terrorists that were on ABB's mind. And so on.

All of these might, using the clinical tools of psychiatry be declared to suffer from severe psychotic delusions in the same way that ABB does. But all of them are nevertheless fully accountable for what they did. And so is Anders Behring Breivik.