By Collin County Criminal Defense Lawyer Jeremy Rosenthal
I’m not a psychiatrist or a psychologist. My law license says “Counselor” and I joke that I’m not exactly sure why.
Regardless of the disclaimers, it seems to me that there may be a link between depression and theft when it comes to women. Just in surfing the internet, there is article after article about the links between the two from medical professionals and non-professionals alike. Even Winona Ryder, famed shoplifter from 2001, suffered from depression and anxiety disorders.
Putting on our lawyer’s hat, the question isn’t necessarily the same question that medical professionals may ask themselves. The legal question is two-fold. First, how does this apparent phenomenon translate into legal reality — and second, what are appropriate treatments assuming conventional criminal justice punishment misses the mark?
Texas Penal Code 8.01 is the insanity defense. That statute states,
“(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
“(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
As you can see, the statute expressly prohibits diagnoses such as kleptomania or other “abnormality manifested only by… antisocial conduct.” This language may tend to have courts highly scrutinize an insanity defense in a shoplifting or theft case. Indeed, Texas case law is somewhat scant in these cases as well providing little useful guidance.
Not only do courts highly scrutinize the insanity defense for theft cases, but many jurors have an extremely difficult time acquitting or excusing someone who is factually guilty of any criminal offense.
Based on the legislature, courts, and jurors view of the insanity defense, an insanity defense could be an extremely difficult defense to raise in a theft or shoplifting situation.
As far as treatment is concerned, most courts in Texas send persons that have either plead guilty to theft to “anti-theft classes” for probation. Also, not being a medical professional, my guess is that therapy, counseling, and/or medical treatment for the underlying depression and discussion of the triggers for the theft actions can never be a bad idea. The problem is that the counseling and treatment may come along with a painful criminal record.
Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice, you should always consult an attorney.