General Provisions

ORS 161.295
Effect of qualifying mental disorder

  • guilty except for insanity


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.


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Evidence of insanity can be so substantial that the matter should be withdrawn from the trier of fact and decided favorably to the defendant by the trial judge as a matter of law.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 concepts 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 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 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), Sup Ct review denied

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), Sup Ct review denied

Pedophilic disorder is personality disorder, not mental disease or defect. Rinne v. Psychiatric Security Review Board, 297 Or App 549, 443 P3d 731 (2019)

Attorney General 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); 22 LCLR 1028 (2018)


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May 26, 2023