Romeo and Juliet, Abraham and Isaac: Who to criminalize?

While waiting yesterday in the House Criminal Jurisprudence Committee hearing for a late bill on which I was testifying, Rep. Garnet Coleman brought forward two very interesting pieces of legislation worthy of note:

HB 3564: Relating to the prosecution of certain conduct constituting the offense of indecency with a child.

HB 2973: Relating to the insanity defense in a criminal case.

HB 3564 would expand the "Romeo and Juliet" defense (consensual sexual partners are within three years of one another's age) to indecency with a child to include gay relationships, or as Rep. Debbie Riddle put it, adding a "Romeo and Romeo" exception.

Throughout all the discussion of the "Romeo and Juliet" exception to the so-called "Jessica's Law" in 2007, that oversight certainly never occurred to me, and I watched the process pretty closely. Good catch.

Coleman's second bill, HB 2973, focuses on a topic discussed here recently on Grits in the context of Andre Thomas, the schizophrenic death row inmate who murdered his family then plucked out both his eyes and ate one: Whether the test for legal insanity should be simply whether the defendant "knows the difference between right and wrong." NAMI-Texas said the current definition is so narrow as to be "meaningless."

Under Coleman's proposed redefinition, it would be an affirmative defense to prosecution if an actor with a severe mental illness or defect "was unable to appreciate the nature and quality of the actor's conduct" or did not "appreciate that the actor's conduct was legally or morally wrong."

Rep. Miklos raised the objection that saying someone's conduct was "morally wrong" was a subjective standard, that everyone's definition of morality may be different. Chairman Gallego added that everyone on the dais likely had a different moral view of abortion, which could make "morally wrong" a moving target.

But George Parnham, a criminal defense lawyer testifying for the bill, did a good job of explaining the standard. He compared the subjective nature of the standard to defendants claiming "self defense" as an affirmative defense in a murder case. When assessing "self defense," juries are asked to consider the relative danger of a situation from the perspective of the shooter. Similarly, if a severely mentally ill person hears voices they believe to be God commanding them to do something, for example, since disobedience to God is wrong in the moral construct of the mentally ill individual, a killer following such "divine" instructions would qualify for the affirmative defense.

The discussion centered mostly around the Andrea Yates case - the mother who drowned her five children in a fit of postpartum psychosis believing it would save their immortal souls.

Somehow, as the discussion went on, I found myself thinking of the story of Abraham in the Bible, ordered by God to take his son Isaac to the top of the mountain and sacrifice his life. Abraham dutifully took Isaac to the appointed spot and tearfully raised his blade, ready and willing to plunge it into the body of his only progeny, when Divine Intervention stayed his hand. Abraham serendipitously found a goat whose horns were stuck in the brambles and sacrificed it instead.

No one else was there with Abraham to verify this story on the mountaintop, but from a modern perspective, we would not be surprised to discover Abraham was a schizophrenic hearing voices he believed to be God. Perhaps it's only by chance of fate that he didn't end his filial line at that moment rather than siring the Jewish people. I found myself wondering how the story about nearly killing Isaac would be viewed if Abraham were evaluated today by a mental health professional? It's as though Andrea Yates had decided at the last minute not to drown her children and instead founded a religion.

Such theological matters aside, Coleman's proposed definition reflects a medical understanding of mental illness rather than taking a black and white, "right and wrong" approach to mental-illness driven tragedies. He referred to current law as the "Hinckley Standard," reflecting changes made to various state laws in the '80s as a backlash after John Hinckley tried to assassinate President Ronald Reagan and was found not guilty by reason of insanity.

Andrea Yates' story, said Coleman, brought that reactionary standard back into focus and inspired this bill. Yates' defense lawyer was one of the witnesses testifying. Another gentleman related a heartwrenching tale of his step-daughter's struggle with schizophrenia and the religious delusions that led her to attack her father with a bow and arrow before she was shot by her father's officeworkers and police. A terrible story. I felt awful for the poor guy and his family.

The committee had an interesting and informative discussion on the subject of people who, as Judge Cathy Cochran wrote recently about Andre Thomas, are "clearly 'crazy,' but ... also 'sane' under Texas law."

I liked both bills. You can watch the video here, beginning at the 4:17:45 mark.