Anders Behring Breivik
© The Associated Press
Accused Norwegian Anders Behring Breivik gestures between his defence team Vibeke Hein Baera, left, and Odd Ivar Groen, at the courtroom, in Oslo, Norway.
As Anders Behring Breivik's trial progresses in Oslo district court, the big question remains whether he can be considered responsible for his actions.

The penal codes of most Western countries allow for punishment to be adjusted according to the severity of the criminal act. In addition, the perpetrator's level of responsibility for their actions is usually considered. Other legal systems, such as the Sharia-based one of Iran, also make allowances for diminished responsibility.

In Breivik's case, there is no doubting the extreme severity of his criminal act. His killing of 77 people is the worst case of murder in Norway since World War II. The unanswered question is whether he can be held to account for a massacre to which he confesses.

Two psychiatric reports have come to conflicting conclusions as to whether Breivik was psychotic at the time of his action. The first set of experts believed he suffered from paranoid schizophrenia, yet the second report concluded that he showed no signs of psychosis.

Although Norwegian courts are able to disregard forensic psychiatry reports, in practice it is extremely rare for them to do so. And a quirk in Norway's penal code means that the question of psychosis is particularly important.

Psychological or medical

Criminal insanity in the penal code of countries such as the UK and US is based on the psychological principle. This means that, in Breivik's case, he would have to have carried out the killings specifically because of his psychosis in order to escape a jail term.

Because Breivik has stated that he was aware that what he was doing was illegal, if he were being tried in, for example, the UK he would be unlikely to escape punishment under these conditions.

The Norwegian legal system, however, is based on the medical principle. According to the 44th paragraph of Norway's penal code, simply being psychotic at the moment of action would automatically exempt Breivik from punishment. There is no need for his psychosis to be the direct cause for his actions.

Confusing to many Norwegians, this element of the law has been debated for years, with criticism increasing in the aftermath of the 22 July 2011 attacks.

Ill or extreme?

The initial psychiatric report's conclusion that Breivik was psychotic would leave him likely to escape imprisonment. A main objection to this report was that a minority of right-wing individuals are known to share Breivik's extreme world view, as demonstrated by the appearance of Facebook groups and websites calling for his release as a hero.

The second psychiatric report - which came after widespread criticism of the initial assessment of psychosis - sees Breivik as showing signs of narcissistic and antisocial personality disorders, such as grandiose thoughts about his own importance and a lack of remorse and empathy.

The second report still describes his actions as related to a mental health problem, but its diagnoses would not stop Breivik being sent to jail.

So the Breivik case has raised the question of how we determine the extent to which extreme opinions, ideas and traits should be understood as symptoms of mental illness.

This problem is illustrated by a saying in psychiatric circles that a single person believing in something is delusional, while two people professing the same belief make up a religion.


It is painful for Norwegian society to consider that we may have lived side by side with someone who sanely and deliberately carried out such extremely hateful and violent acts. But if he is deemed criminally insane, Breivik would be sentenced to psychiatric care rather than to prison, and the public does not really wish that to happen either.

Professor Simon Wessely of the Institute of Psychiatry in London recently argued in the Lancet that Breivik's case highlights two common misconceptions. First, that people believe that barbaric criminal acts must be due to mental illness. Second, that psychiatry exists to absolve people from their criminal responsibility.

This, he says, caused the outrage expressed by Norwegians when the first report considered Breivik sane.

Prof Wessely also points out how the Breivik case reveals Norway's continuing prejudice against mentally ill people, despite its reputation as a country where even the prime minister may take sick leave due to depression.

Indeed, even Breivik himself has described the death penalty as preferable to psychiatric care, although his objection is that he believes a verdict of insanity would undermine his credibility.

Several Norwegian experts, including forensic psychiatrist Randi Rosenqvist who herself has observed Breivik at Ila prison, have called for Norway's medical principle to be removed. They believe it to be too liberal.


Further clouding the issue is Breivik's deliberate use of central stimulants and anabolic steroids ahead of the murders, as psychosis induced by intoxication is explicitly not covered by the 44th paragraph of the penal code concerning state of mind at the moment of action.

Breivik's trial has forced Norway to hold a mirror up to itself, to re-examine how it assesses criminal insanity.

The case has highlighted the arbitrary aspects of how Norwegian society draws the line between sane and insane. It has also stirred calls for revenge in an otherwise peaceful society.

While Norwegians have gathered in public to sing anti-war songs, anonymous comments have emerged on news websites calling for a return to the death penalty, whether or not Breivik is deemed "ill".