The civil liability for damages of the criminally insane

Isr J Psychiatry Relat Sci. 2008;45(4):285-90.


As a rule, mentally ill patients are held to be responsible for their acts just like everyone else. Notwithstanding, the law in Israel contains special rules which distinguish individuals with mental illness from other people. The instructions laid out in article 34h of the Israeli Penal Law empower the court to release a defendant from criminal responsibility. To do this the following criteria must be met: (a) the defendant was mentally ill, (b) he/she was in a psychotic state at the time he/she performed the felony, (c) his/her mental illness deprived him/her of his/her abilities in at least one of the two following areas: 1] he/she could not understand what he/she was doing, or the forbidden nature of the act; 2] he/she was incapable of preventing him/herself from carrying it out. In the case presented, a mentally ill individual was charged with the murder of his child and with an attempt to murder another child. The court ruled him to be legally insane and therefore non-punishable. He was later sued by the other child's parents for damages on the grounds of the assault tort. The issue in question was how does the fact that the defendant was ruled legally insane while committing the wrong doing affect the legal ruling of the defendant's liability especially regarding the tort of assault? The Magistrate's Court ruled that the Israeli Tort Law did not determine exemption from responsibility for the mentally ill. Liability for damages will be imposed upon an individual whenever the prerequisites to define a tort are met, even if the mental requisite is an outcome of one's mentally ill state. The District Court determined that an individual who intended to inflict harm is guilty of assault, even though the intent was an outcome of his mental state. Lack of volition due to one's inability to refrain from action does not constitute a defense for assault. In this case liability for damages was imposed on the defendant. The Court related to the issue of justice according to which an innocent person's damages should not remain uncompensated, and the assailant was required to pay damages to the victim.

MeSH terms

  • Adult
  • Child
  • Civil Rights / legislation & jurisprudence*
  • Crime Victims / legislation & jurisprudence
  • Crime Victims / psychology
  • Female
  • Homicide / legislation & jurisprudence*
  • Homicide / psychology
  • Humans
  • Infant
  • Infanticide / legislation & jurisprudence*
  • Infanticide / psychology
  • Insanity Defense*
  • Israel
  • Liability, Legal*
  • Male
  • Psychotic Disorders / diagnosis*
  • Psychotic Disorders / psychology
  • Psychotic Disorders / therapy
  • Schizophrenia, Paranoid / diagnosis
  • Schizophrenia, Paranoid / psychology
  • Schizophrenia, Paranoid / therapy
  • Social Responsibility
  • Volition