Remarkably enough, derogatory terms such as "idiot," "lunatic" and "mentally defective" are occasionally exposed in statutes and case law to describe people with intellectual or psychiatric disabilities or mental illness. Such terms reflect a persistent cultural bias rooted in medieval and British law. "Lunatic," for example, first appeared in the fourth century, and was meant to describe people whose mental illness was believed to be affected by the phases of the moon. Originally, the term was not intended to be offensive, but instead reflect religious beliefs about early notions of "free will" and "intent" under the law, scholars say.
Today, the use of such terms continues because of a lack of education about mental illness and inaccurate media portrayals of mentally ill people as violent and unpredictable. Judges and lawyers are compelled to apply the pejorative terms enumerated in statutes when making determinations regarding a person’s legal status in various contexts, including criminal responsibility, competency to stand trial and understanding one’s rights in civil capacities.
Unfortunately, such language fosters discrimination that ultimately influences legal decisions. Research indicates that even the use of the legal term "insanity" to define criminal responsibility affects how juries reach their verdicts in criminal cases. In addition, studies have also suggested that law students, lawyers and judges still confuse legal terms that consider mental health criteria such as "insanity" and "competency."
One example of outdated language appears in the Code of Ordinances for the City of Tulsa. In municipal criminal court, trial judges consider the terms "lunatic" and "idiot" in deciding who may be exempt from criminal liability. Title 27-Penal Code Chapter 2-Section 202(A)–(Persons Liable to Punishment) exempts from criminal liability people who belong to several classes, including "idiots," "lunatics," "insane persons" and all people of "unsound mind," including those temporarily or partially deprived of reason at the time of committing the act charged against them.
Over the past few years, federal lawmakers and some states have acted to remove offensive language and to offer alternatives. Congressional action resulted in the removal of the terms "lunatic" and "mental retardation" from the U.S. Code.
Meanwhile, California has adopted a bold and comprehensive Strategic Plan on Reducing Mental Health Stigma and Discrimination, which includes a strategic direction to "evaluate existing laws and regulations for any embedded discriminatory provisions and gaps; and develop corrective strategies to address these problems." New Jersey has also removed the terms "idiot" and "lunatic" from its state statutes. As its bill sponsor Assemblywoman Valerie Vainieri Huttle reasoned, "Removing these offensive terms from our statutes will hopefully reduce the stigma associated with mental health conditions and shift the focus to recovery."
Further progress will require vigilance in updating legal terms—and recognition of how words can change meaning over time. The Guidelines for Nonhandicapping Language in APA Journals drafted by APA’s Committee on Disability Issues in Psychology emphasize the need to avoid offensive expressions such as "crazy" and "paranoid." These guidelines provide a series of recommendations for putting people—not their disabilities—first. Perhaps some of these phrases may be helpful to legal professionals and legislators when crafting legislation related to mental illness.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
