Chapter 12: Who should be entitled to initiate a mental examination process? An empirical perspective
Mental examination, or psychiatric evaluation, in the legal context is a procedure to ascertain whether or not the defendant has a mental disability (or disorder) to the degree that his/her criminal responsibility is totally excused or at least diminished. As an exempting or mitigating factor, an insanity plea may be the most powerful defence if it prevails. Hence, insanity defences are frequently raised in criminal cases in China, especially in capital or major cases. However, it seems the principle of non facit reum nisi mens sit rea (‘the act does not make a person guilty unless the mind is also guilty’) recognized in criminal law in China merely serves as an empty promise in some cases because of a lack of procedural safeguards (Guo, 2010). Of various loopholes in criminal procedure law and mental health law, the most frequently debated question is who should be entitled to initiate the mental examination process when the defence brings up the insanity issue. The nationwide debates around this question started from 2006 and recurred through 2009 in response to a series of high profile criminal cases.
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