Mentalism (discrimination) - The Legal System

The Legal System

With regard to legal protections against discrimination, mentalism may only be covered under general frameworks such as the disability discrimination acts that are in force in some countries, and which require a person to say that they have a disability and to prove that they meet the criteria.

In terms of the legal system itself, the law is traditionally based on technical definitions of sanity and insanity, and so the term 'sanism' may be used in response.

Michael Perlin, Professor of Law at New York Law School, has defined sanism as "an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses."

Perlin notes that sanism affects the theory and practice of law in largely invisible and socially acceptable ways, based mainly on "stereotype, myth, superstition, and deindividualization." He believes that its "corrosive effects have warped involuntary civil commitment law, institutional law, tort law, and all aspects of the criminal process (pretrial, trial and sentencing)." According to Perlin, judges are far from immune, tending to reflect sanist thinking that has deep roots within our culture. This results in judicial decisions based on stereotypes in all areas of civil and criminal law, expressed in biased language and showing contempt for mental health professionals. Moreover, courts are often impatient and attribute mental problems to "weak character or poor resolve".

Sanist attitudes are prevalent in the teaching of law students, both overtly and covertly, according to Perlin. He notes that this impacts on the skills at the heart of lawyering such as "interviewing, investigating, counseling and negotiating", and on every critical moment of clinical experience in terms of "the initial interview, case preparation, case conferences, planning litigation (or negotiation) strategy, trial preparation, trial and appeal."

There is also widespread discrimination by jurors, who Perlin characterizes as demonstrating "irrational brutality, prejudice, hostility, and hatred" towards defendants where there is an insanity defence. Specific sanist myths include relying on popular images of craziness; an 'obsession' with claims that mental problems can be easily faked and experts duped; assuming an absolute link between mental illness and dangerousness; an 'incessant' confusion and mixing up of different legal tests of mental status; and assuming that defendants acquitted on insanity defenses are likely to be released quickly. Although neuroimaging evidence is claimed to have some potential to help in this area, Perlin concludes that it is very difficult to weigh the truth or relevance of it due to its many uncertainties and limitations, and because it may be either disregarded or over-hyped by scientists, lawyers or in the popular imagination. He believes that "the key to an answer here is a consideration of sanism", because to a great extent it can "overwhelm all other evidence and all other issues in this conversation". He suggests that "only therapeutic jurisprudence has the potential power to "strip the sanist facade" from this subject matter."

In terms of forensic facilities, Perlin has suggested that the international Convention on the Rights of Persons with Disabilities may be the best tool to challenge sanist discrimination.

In the community, sanism in the legal profession can affect many people who at some point in their life struggle with some degree of mental health problems, according to Perlin. This may unjustly limit their ability to legally resolve issues in their communities such as "contract problems, property problems, domestic relations problems, and trusts and estates problems."

Susan Fraser, a lawyer in Canada who specializes in advocating for vulnerable people, argues that sanism is based on fear of the unknown, reinforced by stereotypes that dehumanize individuals. She argues that this causes the legal system to fail to properly defend patients' rights to refuse potentially harmful medications; to investigate deaths in psychiatric hospitals and other institutions in an equal way to others; and to fail to properly listen to and respect the voices of mental health consumers and survivors.