ORS 161.295¹
Effect of qualifying mental disorder
  • guilty except for insanity

(1) A person is guilty except for insanity if, as a result of a qualifying mental disorder at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

(2) As used in chapter 743, Oregon Laws 1971, the term “qualifying mental disorder” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor does the term include any abnormality constituting solely a personality disorder. [1971 c.743 §36; 1983 c.800 §1; 2017 c.634 §3]

Note: See note under 161.015 (General definitions).

Notes of Decisions

Evidence of insanity can be so substantial that the matter should be withdrawn from the trier of fact and decided favorably to the defendant by the trial judge as a matter of law. State v. Sands, 10 Or App 438, 499 P2d 821 (1972)

The new insanity test as set out in this sec­tion does not require absolute knowledge of the difference between right and wrong, only a substantial incapacity to appreciate crim­i­nal con­duct. State v. Dyer, 16 Or App 247, 514 P2d 363, 518 P2d 184 (1973)

The first ele­ment of the responsibility standard es­tab­lished by this sec­tion is the func­tional equivalent of Oregon’s former test. State v. Dyer, 16 Or App 247, 514 P2d 363, 518 P2d 184 (1973)

It is not necessary in the instruc­tion to the jury, for the trial judge to explain or define the psychiatric con­ceptss of intellectual and emo­­tion­al knowledge. State v. DePue, 18 Or App 158, 524 P2d 562 (1974), Sup Ct review denied

Although this sec­tion altered the “M’Naughten Rule,” it is still true as indicated in former cases that the line of demarca­tion between sanity and insanity is so indistinct, in some instances, that it is difficult accurately to be determined even by a physician. State v. Matthews, 20 Or App 466, 532 P2d 250 (1975)

A defendant’s due process rights are not violated by having to bear the burden of persuasion on the issue of insanity. State v. Dodson, 25 Or App 859, 551 P2d 484 (1976)

Where the evidence provides a reasonable basis for a finding that a continuing course of crim­i­nal con­duct is divisible, a con­vic­­tion for the initially committed of­fense is permissible even though a defendant may thereafter by reason of mental disease or defect lack the capacity to commit the remaining crime or crimes committed in the single uninterrupted sequence. State v. Rainwa­ter, 26 Or App 593, 553 P2d 1085 (1976)

The defendant raising the de­fense of mental disease or defect was not entitled to a bifurcated trial, with separate factfinders on the issues of guilt and responsibility, in order to preserve his privilege against self-incrimina­tion and right to a fair trial. State ex rel Johnson v. Dale, 277 Or 359, 560 P2d 650 (1977)

When mental condi­tion of defendant is at issue, the history on which expert relies in making diagnosis is generally admissible in evidence. State v. Goss, 33 Or App 507, 577 P2d 78 (1978)

Where indigent defendant was provided witness fees to insure testimony of out-of-state psychiatrist who had examined him, denial of his mo­tion for appoint­ment of an addi­tional psychiatrist was not viola­tion of constitu­tional due process. State v. Glover, 33 Or App 553, 577 P2d 91 (1978)

This sec­tion is intended to exclude sociopaths from using mental disease or defect de­fense. State v. Massey, 34 Or App 95, 577 P2d 1364 (1978), Sup Ct review denied

Condi­tion that would make one “mentally ill per­son” for purposes of hospitaliza­tion does not necessarily relieve one of crim­i­nal responsibility under this sec­tion. State v. Weller, 285 Or 457, 591 P2d 732 (1979)

Presump­tion that “a thing once proved to exist continues as long as is usual with things of that nature” applies only to factual condi­tion es­tab­lished in prior adjudica­tion, and defendant, who had been pre­vi­ously committed as “mentally ill” was not entitled to instruc­tion on presump­tion phrase in terms of insanity. State v. Weller, 285 Or 457, 591 P2d 732 (1979)

Evidence of drug dependence alone was not sufficient evidence of “mental disease or defect” to justify giving instruc­tion to that effect under this sec­tion. State v. Herrera, 286 Or 349, 594 P2d 823 (1979)

In case where defendant asserted af­firm­a­tive mental disease or defect, giving weaker and less satisfactory instruc­tion pursuant to ORS 10.095 (Duty of jury) did not impermissibly shift burden of proof to defendant. State v. Mains, 295 Or 640, 669 P2d 1112 (1983)

1983 amend­ment to this sec­tion which excludes per­sonality disorders from terms “mental disease or defect” was not intended to withdraw Psychiatric Security Review Board’s jurisdic­tion over per­sons committed on basis of per­sonality disorder prior to effective date of amend­ment. Baldwin v. PSRB, 97 Or App 367, 776 P2d 577 (1989)

Even assuming pedophilia is per­sonality disorder, peti­tioner who was committed to Psychiatric Security Review Board’s jurisdic­tion in 1982 is not entitled to release under pro­vi­sions of this sec­tion which exclude per­sonality disorders as basis for exonera­tion from crim­i­nal responsibility but which did not take effect until 1984. Hamilton v. PSRB, 97 Or App 388, 776 P2d 581 (1989)

Defense under this sec­tion is available to per­son charged with driving under influence of intoxicants or driving while suspended. State v. Olmstead, 310 Or 455, 800 P2d 277 (1990)

Affirmative de­fense under this pro­vi­sion and af­firm­a­tive de­fense of extreme emo­­tion­al dis­tur­bance under ORS 163.135 (Extreme emotional disturbance as affirmative defense to murder in the second degree) are not mutually exclusive. State v. Counts, 311 Or 616, 816 P2d 1157 (1991)

Amend­ment to this sec­tion by chapter 800, Oregon Laws 1983, that excludes any abnormality constituting solely per­sonality disorder from defini­tion of “mental disease or defect” does not apply when determining whether per­son who committed of­fense prior to January 1, 1984, continues to suffer from mental disease or defect. Strecker v. PSRB, 120 Or App 178, 851 P2d 1151 (1993)

Activity is not excluded from defini­tion of mental disease or defect as abnormality evidenced solely by repeated crim­i­nal or otherwise antisocial con­duct if ac­tivity has mental or psychological features. Osborn v. Psychiatric Security Review Board, 325 Or 135, 934 P2d 391 (1997)

Verdict of guilty except for insanity requires same number of concurring jurors as other guilty verdicts. State v. Reese, 156 Or App 406, 967 P2d 514 (1998)

“Personality disorder” includes sexual con­duct disorders, alcohol dependency and drug dependency. Beiswenger v. Psychiatric Security Review Board, 192 Or App 38, 84 P3d 180 (2004), Sup Ct review denied

Lack of substantial capacity as “result of mental disease or defect” does not include lack of capacity resulting from combina­tion of mental disease or defect with other factors such as voluntary intoxica­tion. State v. Peverieri, 192 Or App 229, 84 P3d 1125 (2004), Sup Ct review denied

Substance dependency is per­sonality disorder, not mental disease or defect. Tharp v. Psychiatric Security Review Board, 338 Or 413, 110 P3d 103 (2005)

Alcohol dependency is per­sonality disorder, not mental disease or defect. Ashcroft v. Psychiatric Security Review Board, 338 Or 448, 111 P3d 1117 (2005)

Defendant’s “persistent auditory hallucina­tions” and “delusional beliefs” alone do not imply substantial lack of capacity to appreciate crim­i­nality of con­duct or inability to conform con­duct to laws sufficient for jury instruc­tion on guilty except for insanity de­fense. State v. Shields, 289 Or App 44, 407 P3d 940 (2017)

For purposes of this sec­tion, transitory, episodic, drug-induced psychosis is per­sonality disorder, not mental disease or defect. State v. Folks, 290 Or App 94, 414 P3d 468 (2018)

Atty. Gen. Opinions

Right of mentally diseased per­son to vote, (1972) Vol 35, p 1220

Law Review Cita­tions

51 OLR 437-458, 479 (1972); 52 OLR 285-295 (1973); 54 OLR 409-411 (1975); 14 WLJ 313 (1978); 20 WLR 303 (1984); 71 OLR 205 (1992); 29 WLR 829 (1993)

Law Review Cita­tions

51 OLR 428 (1972); 52 OLR 285-295 (1973)

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code


Notes of Decisions

Legislature’s adop­tion of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information