CCAR RESPONSA
Contemporary American Reform Responsa
7. Insanity in Criminal Cases
QUESTION:Are there rabbinic opinions on insanity as a defense in a criminal trial? What is the status of the insane in criminal matters? (A. Adelstone, Flushing, NY)
ANSWER: When the Mishnah and the Talmud discussed individuals of limited ability, they frequently used the phrase, heresh shoteh veqatan – the deaf, the insane and the minor; insanity included any serious mental imbalance. No one in these categories may be punished for their offenses, and they are considered to have limited legal liability (M. Erub. 3.2; R. H. 3.8; Meg. 2.4; Hag. 1.1; Git. 2.5, 5.8; B. K. 4.4, 5.6, 6.4, 8.4, etc.) The later Jewish codes continue this classification. The insane are not considered responsible for injuries to others, though others who assault them are liable for the usual punishments (M. B. K. 8.4, 87a; Yad Hil. Hovel 24.20; Shulhan Arukh Hoshen Mishpat 424.8). However, if the individual has lucid moments, in other words, if insanity is temporary, then he is considered responsible (Yad Hil. Mekh. 29; Shulhan Arukh Hoshen Mishpat 235.23). If the rights or the estate of persons of unsound mind needed to be defended, then the court appoints an administrator (epitropos) who looks after their interests. They are not entitled to damages in cases of insult or defamation of character (B. K. 86b; Yad Hil. Hovel 3.4; Shulhan ArukhHoshen Mishpat 300.27).
The status of the insane in rabbinic literature is, therefore, clear. The discussion in the later responsa deals almost exclusively with the problems of engagement, marriage, divorce or inheritance. Two problems remain for our discussion. How is insanity defined by rabbinic literature? What is temporary lucidity?
The Talmud attempted to define insanity as one “who wanders alone at night and spends the night in the cemetery and tears his garments” (Hag. 3b). This definition was immediately challenged by authorities on the same page, and no resolution was achieved. Others defined it to include individuals who were self-destructive or eccentric (Git. 78a; J. Ter. 40b). It was ultimately left to the judges to assess the situation and make a judgment according to the evidence in each case (YadHil. Edut. 9.9). In order to assure an appropriate decision, the judges were required to possess some knowledge of all the sciences including medicine (Yad Hil. San. 2.1).
Those temporarily insane are not considered liable for acts performed during periods of insanity. However, during times of lucidity, they are liable and could also act as witnesses (Tos. Ter. 1.3; J. Ter. 40b; B. B. 128a; Yad Hil. Mekh. 29; Shulhan Arukh Hoshen Mishpat 235.23). The court must decide whether an act has been committed in a period of insanity or lucidity. Furthermore, an individual so intoxicated as to be totally unaware of his actions is considered temporarily insane, and is treated accordingly by the court (Er. 75a; YadHil. Ishut 4.18). The cases cited in the responsa literature, however, deal with betrothal and marriage, not criminal acts.
Although some guidelines have been mentioned, they are vague and the decision of temporary insanity is left to the court. Individuals who are considered totally insane are not liable for any act which they may commit.
October 1982
If needed, please consult Abbreviations used in CCAR Responsa.