The defence of sane automatism and non-pathological criminal incapacity in South Africa: an epistemological intersection between psychology and law

Abstract

Psychologists and psychiatrists are frequently requested to offer expert opinion regarding the defences of non-pathological criminal incapacity and sane automatism – which are increasingly raised in criminal courts in South Africa. This article briefly explores the development of these defences in South African criminal law and highlights some of the conceptual and epistemological difficulties at the intersection between the law and psychology. The changing legal understandings of the concepts of sane automatism and non-pathological criminal incapacity require careful consideration by mental health experts, and, while these experts can undoubtedly assist the courts, they should be cautious of using reductionist methods to conflate psychological concepts with legal concepts.