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Tova Bennet

Biträdande universitetslektor

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Straffansvar vid atypiska sinnestillstånd

Criminal responsibility and atypical mental states


  • Tova Bennet

Summary, in English

This doctoral thesis examines the attribution of criminal responsibility in Swedish law in cases where the defendant committed an act during an atypical mental state, e.g. psychosis. In nearly all criminal justice systems, a severe mental disorder can activate special rules that excuse or exempt the defendant. Accountability, or the capacity to be responsible, is a fundamental requirement for criminal liability in modern criminal law. Thus, exceptional rules in cases where the defendant’s mental state results in the defendant lacking this capacity is a matter of fundamental fairness in a just society. The ideas behind this fundamental requirement, as well as the construction of rules of exception, vary among legal systems, but the general idea is rarely disputed.
However, Swedish criminal law adopts an alternative approach. In Sweden, all defendants are formally considered equal in terms of their capacity for criminal liability. Defendants who, due to a severe mental disorder, lacked the capacity to understand the nature of their actions or that what they were doing was wrong, are not considered legally insane or unaccountable. Instead, a mental disorder is primarily considered in connection with the choice of sanction. Swedish criminal law allows inpatient psychiatric treatment as a criminal sanction and prohibits imprisonment in cases where the defendant lacked the capacity to understand the nature of the act or to act in accordance with such an understanding. However, in order to arrive at the sanctioning stage, the court must conclude that the defendant is guilty of the crime charged. Mental health treatment and other protective measures ordered by the criminal court are thus dependent on the court finding that the defendant had the required mens rea for the crime.
With respect to the mens rea requirement in Swedish criminal law, this thesis addresses three central questions. The first two questions concern the construction and application of the mens rea requirement in cases of atypical mental states, and how these requirements are distinguished from the exceptional rules applicable at the sanctioning stage. The third question concerns the role of forensic psychiatric expert opinions in the evaluation of mens rea. Here, Swedish criminal law allows for mental health evidence, formally produced to assist in the choice of sanction, to be used freely by the courts in the assessment of criminal responsibility. The thesis explores these three questions using doctrinal legal analysis as well as an empirical analysis of a large selection of court verdicts and forensic psychiatric expert opinions.
The analysis shows that the assessment of mens rea in Swedish criminal law, although based on subjective standards, is clearly limited by a material and procedural framework for assessment that is based on the idea of a ‘normal’ rational person. As a result, the Swedish model, which can be compared to the ‘integrated’ (or ‘integrationist’) model or ‘mens rea’-model in some American states, leaves very little room for acquittals in cases of atypical mental states. Whether the assessment can result in acquittals depends to a large extent on whether the content of the defendant’s psychotic delusions can be explicated in a way that falls in line with the ‘normal’ rules of mens rea, justification and excuse. This in turn highlights the importance of how forensic experts describe the defendant’s understanding of reality. The possibility to integrate exceptional and ‘normal’ rules in criminal law is an attractive alternative from a non-discrimination perspective. However, an integrated model that severely limits the possibility of acquittals will fail to uphold the principle of guilt, which entails that a criminal sanction requires blameworthiness. In the Swedish criminal justice system, criminal law’s fundamental framework of rationality combined with the strong incentives for courts and forensic experts to arrive at verdicts that allow for protective measures, generate assessments of mens rea where defendants are neither formally nor substantively equal.


  • Rätt och utsatthet
  • Health Law
  • Juridiska institutionen








Norstedts Juridik AB


  • Law


  • Criminal law
  • Legal insanity
  • Mental disorder
  • Criminal responsibility
  • Mens rea
  • Forensic psychiatry
  • Health law
  • Expert evidence
  • Intent
  • Straffrätt
  • Rättspsykiatri




  • Uppsåt utan insikt?


  • Law and Vulnerabilities
  • Health Law


  • Ulrika Andersson
  • Sverker Jönsson
  • Susanna Radovic
  • Peter Andiné


  • ISBN: 9789139022558


25 september 2020




Telarissalen, Juridiska institutionen, Lilla Gråbrödersgatan 3C,


  • Monica Burman (Professor)