22 Dev. Mental Health L. 1 (2003)

handle is hein.journals/dvmnhlt22 and id is 1 raw text is: DEVELOPMENTS IN
MENTAL HEALTH LAW
The Institute of Law, Psychiatry & Public Policy - The University of Virginia

Volume 22. Number 1

February 2003

Villain or Victim? Myths, Gender, and the Insanity Defense
By Scott Commerson*

I. Introduction
When a woman commits a heinous act, the
explanations offered for her behavior differ
vastly from those provided for her male
counterpart. Society is more likely to attribute
violent crimes committed by a woman to a
biological or a psychological cause outside of
her control, while less deterministic social and
economic forces tend to be cited as the causal
forces driving violent action by a man. In
cases where social factors are implicated for
female defendants, often only prior
victimization is identified as being relevant.
This divergence in the characterization of
male and female crime reflects deeply
imbedded views of women as being more
passive, emotionally vulnerable, and
incapable of self-control than men. The
media's tendency to victimize female criminals
reinforces and perpetuates such paternalistic
gender stereotyping.
In the context of the insanity defense, the
resolution of which is typically placed in the
hands of a jury, this gender bias is
compounded by the persistent myths that
surround the defense. As will be discussed,
the public grossly overestimates the frequency
and success rate of the insanity plea,

underestimates the amount of time that
insanity acquittees spend in custody, and
wrongly believes that there is little risk to the
Also in this issue:
Supreme Court Cases .......... 18
Other Federal Court Cases ...... 24
Virginia State Court Cases ...... 28
Other State Court Cases .......... 32
Other Legal Developments ...... 33
defendant in asserting the defense. Each of
these myths interacts with widespread beliefs
about women and criminality to produce a
heavy bias in favor of a female defendant
asserting an insanity defense as compared
with a male defendant. Although for individual
female defendants the bias may be beneficial,
it comes at the societal cost of reinforcing
gender-based stereotypes and denying equal
treatment under the law. In addition, the
public's ignorance and false beliefs about the
insanity defense deprives defendants of both
genders of a just outcome under the system.

* University of Virginia, J.D., 2003. The author thanks the reviewers of this article for their
helpful comments and the editor for his help in preparing the article for publication.

..                                        ......r  2003.

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