Gender, jury and how it applies to the insanity defense

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Gender, jury and how it applies to the insanity defense

Gender, Jury and how it applies to the Insanity Defense

Alicia M. Martinez

Wayne State University


This is a review on published literature on the insanity defense when it comes to gender, and how the jury can affect the defense in the United States. How do you define insane? Many individuals associate insanity with violence, incoherence, deceit, and submissiveness. Usually, these psychopathic traits result to the “insane” committing heinous crimes that are deemed appalling and so inconclusive for a person in their right mind to commit such a horrible crime. How does an attorney represent a person that is insane? How do they justify such staggering behavior to a jury? They represent the defendant in a plea bargain called the insanity defense. The insanity defense is an affirmative defense presented by the defendant stating that at the time of the alleged crime they were legally insane and could rationalize right from wrong.


The introduction to “pleas” in a court case can change society for the better or for the worst. It can potentially let a criminal go back into society or take an innocent individual and punishing them for something they did not do. There are many pleas in law but the most “talked” about one being the insanity plea or the insanity defense. When it comes to the insanity defense, there are several controversies that arise. One of them being if the defendant is posing as insane to outrun prison time versus punishing the defendant for something they were not mentally lucid to explain. Another controversy is whether or not gender and a jury play a significant role when it comes to convicting a defendant as “Guilty by Reason of Insanity”. Little research has been done on the insanity defense on a whole, but I am going to focus on how gender and jury play a role in determining a criminal’s fate. For example, the journal Law and Human Behavior was going to put out a special issue focusing on gender issues. However, editors only located six out of two hundred and ninety-three between 1990 and 1993 that related to gender studies (4, Breheney, Groscup, and Galietta). Why more research needs to be done on gender and the jury impacting a verdict of insanity case is because the public and individuals in the law community really need to visualize how little factors such as whether the defendant is male or female, the crime itself, the sex of the jury and the jury itself can determine an outcome of a court case. In essence towards making connections between gender and the jury affecting an insanity case, one most examine the perspectives of the insanity defense, myths, and attitudes maintained towards it. So I will be introducing how the insanity defense works, myths about it, how gender can affect it, and how the jury can affect it.

Negative Assumptions and Myths about the Insanity Defense

Like the death penalty, the insanity defense draws a great amount of attention from its supporters and its non-supporters (Breheney, Groscup, and Galietta). Who is responsible for creating negative attitudes about the mentally-ill, are pre-judicial beliefs, and the media, Most Americans are not comfortable with the notion that committing someone as legally insane may start a presumption that defendant does not deserve to be punished no matter how disgusting the crime has been. These negative assumptions stem from pre-judicial beliefs that we inflict on the mentally-ill and in turn, they are the group that most people have the most irrational hostility towards. Previous research has showed an agreement with the American public that there is a strong belief that the mentally ill are “dangerous” (Breheney, Groscup, and Galietta). The media exerts a great amount of influence on the public by portraying mentally-ill people in television shows as violent. Since most of society bases the truth by watching television shows, the problem is that the public is not getting the true facts that not all mentally-ill people are violent. Also, there are “insanity myths” that play a big role in the misjudgment of the insanity defense. One of them being that the insanity defense is a “loop-hole” for criminals to escape punishment but research shows that eleven percent of felony arrests resulted in imprisonment while sixty-seven percent of unsuccessful insanity pleas resulted in the same (Breheney, Groscup, and Galietta). I guess you can say that there is not even a loop-hole at all. The most common myth is the public’s perception of the successful rate of the insanity defense and how the defense is used too much. There are only nine insanity pleas for every one thousand felony cases, for which only two are successful (Breheney, Groscup, and Galietta). The build of literature towards the insanity defense is strong and it results to a skeptic public. How do we break free of the biased theory’s the public has attained? We only can over time, because the negative attitudes towards this defense cannot be ignored. It has to be addressed so it cannot affect trial outcomes.

What influences the Jury the most in Insanity Cases

The third part to this is addressing the jury pertaining to the insanity defense. Christian Breheney Jennifer Groscup, and Michele Galietta whom are the authors of the article “Gender Matters in the Insanity Defense” did a study where they had two hundred and fifty eight participants look over six simulated insanity defense trials each. The purpose of their research trial was to determine whether or not gender or psychiatric history does determine a juror’s decision. These simulated trials contained the description of the crime scene, the crime itself, the symptoms of a mental illness the defendant showed signs of, psychiatric history and a witness to the crime itself. In each trial, the defendant admitted to the crime. The responsibility of the participants was to enact the role of a juror and give a verdict on whether the defendant was guilty, not guilty, or not guilty by reason of insanity. In their results, they found that gender, psychiatric history prior to the crime and level of control do affect juror’s rulings of the accountability of the defendant.

Gender and the Insanity Defense

First, think about the pre-conceived notions about gender. Gender always deals with stereotypes and biasness. There is always some kind of limit to a male or female, especially dealing with the law. In general, females tend to get more leniency than males would for the same crime. Why? Because the jury sympathizes with them. Also, statistics show that men seem to always have more of criminal history, whether it is minor or severe, yet, women seem to commit only one heinous crime that deals with murder, manslaughter or attempted murder (Breheney, Groscup, and Galietta). The victims of men are usually strangers, but the victims of women are either their children or spouses.

Men and Psychopathy

The most common crime a man can commit is murder to strangers usually enacted by a psychopathic rampage. How does one characterize a psychopath when it comes to a trial? Or better yet, how does one define a psychopath? According to Christina Lee, author of the article “The judicial response to psychopathic criminals: utilitarianism over retribution”, there is not a clarified definition of a psychopath. She states that “[p]sychopathy is a lifelong persistent condition characterized, in males at least, by aggression beginning in early childhood, impulsivity, resistance to punishment, general lack of emotional attachment or concern for others, dishonesty and selfishness in social interactions, and high levels of promiscuous and uncommitted sexual behavior.” Psychopaths do not even know they are psychopaths, because they are usually brilliant. Their intelligence makes them more dangerous because it deceits their victims. Even though it is still difficult to diagnose, Robert Hare made advancements in 1980 by creating the Psychopathy Check List (PCL) or as it is called currently The Psychopathy Checklist-Revised (PCL-R) (Lee, Christina). What it consists of is a checklist of twenty-two personality traits and characteristics concerning psychopathy and is scored from zero to two. Zero having no relevancy of the traits being present and two having the traits definitely present. Total, the scores can range from zero to forty-four, with scores thirty or more indicating psychopathy. Lee also states that this test is made up of two factors “"Factor 1 captures the affective/interpersonal dimension of psychopathy, measuring things like 'egocentricity, manipulativeness, callousness, and a lack of remorse,' while Factor 2 captures an unstable or antisocial lifestyle component typified by behavior like juvenile delinquency, a parasitic lifestyle, proneness to boredom, impulsivity, and irresponsibility.” A good representation of a man pleading ‘Not Guilty by Reason of Insanity’ is the John Hinckley case. He is known as the man that attempted to assassinate President Reagan in 1981. This case was known to stir up controversy because of the fact that he did attempt to murder the present and the consequences were deemed “too low”.

Woman and Loss of Control

The most common crime a woman can commit when it comes to determining an insanity case is infanticide or murdering a spouse. Infanticide means a mother, or a father murdering their kids for various reasons. The crime has to deal with post-partum psychosis, which is an illness some women experience after giving birth. It leads to hallucinations, depression, and sometimes suicide (Ayers, Susan). The hallucinations play a big factor when it actually comes to killing their children. Some woman claim they hear voices, or God told them to do it and that they were Satan (Ayers, Susan). It differs from every case. Given that this is a horrible crime to commit, most of these women do not even realize that they are doing it, and in almost every case I have researched, they thought they were saving their children. A well-known example of an insanity case where the defendant is a woman is the case of Andrea Yates. Andrea Yates was deemed a more than fit mother, and was actually perceived as ideal role model for mothers. Little did everyone know she was suffering from post-partum psychosis that led her into a severe depression. On June 20, 2001, after her husband left for work, Andrea Yates drowned all five of her children ranging in ages from six months to seven years old (Developments in Mental Health Law 25.2). One by one she took them into the bathtub, and when they were gone, she placed four of the bodies next to each other on her bed (Developments in Mental Health Law 25.2). The eldest son was left floating in the bathtub. After calling the police, she told them that she was a bad mother who damaged her children and the only way to ensure her children’s place in heaven was to kill them (Developments in Mental Health Law 25.2). The district attorney at the time charged her with capital murder and pursued the death penalty after her. Yates and her attorney entered a plea for ‘Not guilty by reason of Insanity’. Though it was obvious that Yates was psychotic, and suffered from mental illness, she was not a psychopath.


I deem that more research needs to be done when it comes to gender and the insanity defense. I believe the insanity defense is a great establishment to have in our judicial system because the mentally-ill sometimes do not know what they are doing. The mentally-ill are not a separate species from humans, they are equally the same. If there is more research conducted, the insanity defense can be looked upon as a strong and justified defense.


Breheney, Christian, Jennifer Groscup, and Michele Galietta. "Gender matters in the insanity defense." Law and Psychology Review 31 (2007): 93+. LegalTrac. Web. 6 Nov. 2010.

Lee, Christina. "The judicial response to psychopathic criminals: utilitarianism over retribution." Law and Psychology Review 31 (2007): 125+. LegalTrac. Web. 6 Nov. 2010.

"Andrea Yates found not guilty by reason of insanity after retrial." Developments in Mental Health Law 25.2 (2006): 136+. LegalTrac. Web. 6 Nov. 2010.

Ayres, Susan. "Newfound religion: mothers, God, and infanticide." Fordham Urban Law Journal 33.2 (2006): 335+. LegalTrac. Web. 6 Nov. 2010.

"Yates' conviction reversed for state's use of false testimony by mental health expert concerning 'Law & Order' episode." Developments in Mental Health Law 24.2 (2005): 70+. LegalTrac. Web. 6 Nov. 2010.

McSherry, Bernadette. "Men behaving badly: current issues in provocation, automatism, mental impairment and criminal responsibility." Psychiatry, Psychology and Law 12.1 (April 2005): 15(8). LegalTrac. Gale. Wayne State University Library System. 6 Nov. 2010 
Colb, Sherry F. "The conviction of Andrea Yates: a narrative of denial.(Tenth Anniversary Edition)." Duke Journal of Gender Law & Policy 10 (2003): 141+. LegalTrac. Web. 6 Nov. 2010.

Commerson, Scott. "Villain or victim? Myths, gender, and the insanity defense." Developments in Mental Health Law 22.1 (2003): 1+. LegalTrac. Web. 6 Nov. 2010.

Manchester, Jessie. "Beyond accommodation: reconstructing the insanity defense to provide an adequate remedy for postpartum psychotic women." Journal of Criminal Law and Criminology 93.2-3 (2003): 713+. LegalTrac. Web. 6 Nov. 2010.

Colb, Sherry F. "Evil or Ill? Justifying the Insanity Defense." Stanford Law Review 52.1 (1999): 235. LegalTrac. Web. 6 Nov. 2010.

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