Breivik trial: Norwegians rethink role of psychiatry in courts

The trial of Anders Behring Breivik for the worst peacetime atrocity in Norwegian history is set to begin tomorrow, with his mental health at the crux of the case.

In the first days after the twin terror attacks last year, Norway’s prime minister was quick to come out with a comforting message to the grieving nation. The country would respond to Anders Behring Breivik’s massacre with “more openness, more democracy,” said Jens Stoltenberg. This would not change Norwegian society. 

Nine months later, the trial for the worst peacetime atrocity in Norwegian history is set to begin tomorrow, and the country is at a crossroad. 

Norwegians have had their confidence in the judicial system shaken after two conflicting psychiatric reports have come to the opposite conclusion on Breivik’s mental standing. The first from November deemed him paranoid schizophrenic and hence legally not punishable. The second, released last week, said he was not psychotic. 

Some of the questions now being raised: Are Norwegian courts putting too much weight on forensic psychiatrist reports in determining legal sanity? And are too many criminals being incorrectly diagnosed as psychotic?  

“It is clear to me that this case will weaken the position of forensic psychiatry in Norway,” says Nils Christie, a criminal law professor at the University of Oslo. “I think it is all to the good that psychiatrists, as other experts, get decreased power in the system, and that the judges and juries regain their authority.”

The debate has its roots from the first psychiatric report. As soon as Breivik was declared sane, many started to question the reliability of the system. How could someone who so meticulously planned a complicated attack over so many years be psychotic? 

Breivik had bought a farm and produced his own fertilizer explosives. On July 22, he planted a car bomb in front of the government building and then drove to the island of Utøya disguised as a police officer to massacre the Labor party youth at their summer camp. Prior to that, he spent years writing a 1,500-page manifesto in English detailing his crusade against the Muslim colonization of Europe. 

“Of course he is sick, but if he is insane or not, that is something else,” Eskil Pedersen, leader of Labour party youth organization AUF who escaped Utøya that day, recently told members of the Norwegian Foreign Press Association. “You can’t be normal and kill 77 people, but you can be sane in the legal way.” 

The outcry after the controversial first report has revealed Norwegians’ thirst for justice in a country otherwise known for scorning capital punishment and life sentences and promoting rehabilitation of prisoners. Suddenly victims were worried that Norway’s most notorious killer in modern times might not serve prison time – in this case 21 years – for his heinous acts. Many felt it wasn’t enough that he would be sent to compulsory mental care. 

“If the court comes to the conclusion that he is sane, and it is they who decide, I think many will feel that this is a relief,” said Jens Stoltenberg, Norway’s prime minister, during Norwegian TV2 talk show Senkveld on Friday night. “For all the victims, and all those who were affected, I think it would be an advantage if the court found him sane.” 

Psychology experts say the problem with the current system is that too many criminals have fallen into the category of psychotic. There is a call to redraft paragraph 44 in the Norwegian criminal code that states that anyone at the time of the incident was psychotic or unconscious cannot be punished. 

“In 2002 the words were changed for insane,” says Pål Abrahamsen, a Norwegian forensic psychiatrist. “It has come to be used more and more broadly. Now it’s important to make a difference between psychotic and those that are legally insane.”

He adds: “We have to sharpen the 2002 [legal] system so that it doesn’t allow so many people to claim psychosis." 

This in fact may end up happening. Grete Faremo, Norway’s justice minister, has said that it plans to establish a committee to examine the role of forensic psychiatrists. She told Norwegian daily Aftenposten on April 13 the committee would have a “broad mandate” that would examine three key questions: What is sanity? What is the role of the forensic psychiatrist? And how do we take care of security when an insane man is sentenced? 

“Much suggests that the medical principle is inadequate,” said Faremo. “It is a historic step we are now taking. It is an important step in light of the terrible incident and the trial we face and in consideration of people's sense of justice.” 

“This is a big thing,” says Abrahamsen. “If it hadn’t been for Breivik, we wouldn’t have discussed this.” 

The ultimate decision on Breivik’s sanity will come at the end of the 10-week trial. The judges will weigh both psychiatric reports and the evidence presented during the course of the trial. There is expected to be particular emphasis on Breivik’s five-day opening testimony, which is set to start Tuesday, April 17, in deciding on whether the 33-year-old Norwegian can be held criminally accountable. The prosecution has based its indictment on the premise that Breivik is insane, while the defense plans to plea he is sane but not guilty.

Breivik's attorney says his client has indicated it is important to him to be considered sane so that his ideology would "stand stronger." The prosecution, meanwhile, opted in March when it first presented its indictment to recommend compulsory mental care given that there was only one psychiatric report, which deemed him insane. It has left open the possibility for changing the indictment to a prison sentence during the course of the trial.