WORLD VIEW:Legal definition vied with psychiatric diagnosis in finding the Norwegian mass killer responsible
SO ANDERS Breivik is just what we used to call an ODC, an ordinary decent criminal, the Oslo court found last week, handing down the maximum 21 years for the mass murder of 77 in June last year.
He was delighted.
Back in the days of the H Block protests, designation as an ODC was the last thing a politically motivated prisoner wanted. It would mean a delegitimisation of the “war”, a different sort of personal culpability. The fight against ODC status became a cause worth dying for.
The alternatives for Breivik and the H Block protesters were of course different – designation as “mad” or “political” respectively. But there’s a curious symmetry to their arguments.
For Breivik, both issues – the “legitimacy” of his acts and the nature of his culpability – are also precisely why he demanded criminal status and why the issue of sanity became the only issue for the trial.
The fact that he committed the killings was not in dispute. They were “cruel but necessary” acts, he said, to protect Norway from the multiculturalism and Islamicisation endorsed by his victims, young leaders of the next generation of the country’s political class.
His professed sanity and willingness to assume legal responsibility were an important element of the propaganda of the deed – by his warped logic, a legal confirmation of the rationality of his sacrifice, the act of a soldier in the war against the enemy that was silently overwhelming Europe.
That “war” had been written about by the many far-right Islamophobe groups from whom his 1,500-word manifesto was cogged. But to a man they rushed to distance themselves from the wayward disciple who had taken the “metaphor” literally. An insanity verdict would be a cordon sanitaire to set him apart, and brooked no argument about shared responsibility, that they had primed him to kill.
And there is no doubt that, for similar reasons, the instinctive response of most to such acts is to say “he must be mad”. It’s reassuring. It helps explain, and makes the killer an other being, not one of us. So, backed by two court-appointed psychiatrists’ testimony of paranoid schizophrenia, and in a reversal of their usual roles, it would be the prosecution not the defence that called for Breivik to be confined to a psychiatric unit instead of prison.
That Breivik is profoundly abnormal is beyond argument. But legally mad? And to the point of being able to evade moral responsibility for his acts?
A survey from broadcaster NRK ahead of the verdict showed three in four Norwegians believe Breivik should be sent to prison, only one in 10 that he could not be considered responsible. In the face of public uproar, the court ordered new psychiatric evaluations. It found Breivik, despite signs of narcissistic and antisocial personality disorder, sufficiently sane to face prison. The court concurred unanimously.
Testimony showed he was able to conduct his life normally. That he had carefully and competently planned his operation over a long period, to the point even of deliberately desensitising himself from the horror of killing by immersing himself in war video games for a prolonged period. He understood clearly the wrongness of his acts.
Norway’s legal system, like most, requires the diagnosis of a psychotic mental disorder for an incapacity ruling, and in their testimony the court’s first experts insisted they found in him “grandiose and paranoid delusions”. His guiding principle, they argued, was an overriding obsession with the act of killing, not his stated political motivation. To make this paranoid world view function he fantasised to fill the logical gaps, an indicator of schizophrenia.
But the definitions on which they drew their diagnosis, the guidelines of the US Diagnostic and Statistical Manual of Mental Disorders, are contested. And as Peter Beaumont of the Guardian reported from the trial: “The law . . . is not interested in abstractions. It requires a concrete definition so that it can say if this man is not suffering from psychosis then he is fully responsible for his actions. Which leads one to wonder whether the general principle of how responsibility is defined in law is the real problem – not the uncertainties of diagnosis – a too narrow insistence that psychosis must be identifiable before one can talk of responsibility or not.”
Is psychosis like pregnancy – you are or you are not pregnant? You are or are not responsible for your acts? Or is there a halfway house, impossible to define in law, in which an accused may be both mad and morally culpable, and hence punishable.
The nature of Breivik’s delusions and our response to them are also deeply problematic. Totalitarian regimes have defined dissidence as insanity, and the challenge in a democratic society is to define the limits of “sane” beliefs to encompass what may be obnoxious, irrational or demonstrably false while protecting society from those who act upon them. They also have to be contested vigorously, not pandered to, as many conservatives throughout Europe have done to xenophobia’s latest incarnation.
What is not disputable, however, is that, for the safety of society, Breivik, insane or sane, or both, must be incarcerated for the rest of his life.