Did they have any choice?
The difficulty of establishing whether an action is chosen or imposed is well illustrated by the famous case of an unnamed school teacher from Virginia who in 2000 developed an uncharacteristic interest in pornography and a sexual interest in children which he recognised as wrong and which he tried, unsuccessfully, to overcome. It was subsequently found that he had a orbitofrontal tumour, an area of the brain associated with social behaviour. When the tumour was removed the uncharacteristic behaviour stopped, only to return when the tumour re-emerged. A number of quite different responses were elicited such as the following:
Russell Swerdlow, a neuroscientist and professor at the University of Kansas, said: “What was so striking about this was his inability to act on his knowledge of what was right or wrong”. “You don't get the feedback which controls your decisions. You don't have the brakes on your behaviour”.
Contrary to this, Stephen J. Morse, a professor of law and psychiatry at the University of Pennsylvania, took the view that it was not clear whether he lacked the ability to control his impulses or that he chose not to do so. “People want to say that his tumour made him do it. He made him do it. There is always a reason that people do it. He felt an urge, which he understood and did not resist, but acted upon it”.
What Swerdlow views as inability, Morse views as a free choice not to resist his urges. How is it possible for a jury, or anyone else, to know which is correct? Moreover, whether or not a person “resists” or not is highly subjective and can only be inferred by another person very indirectly.
Commenting on the case, Peter Clarke [1] gives the opinion that the existence of the tumour was a valid argument for diminished responsibility.
Firstly because it was very clear that the tumour impaired the brain mechanisms of self-control since its removal restored him to his normal state. Secondly, because the teacher actively tried to avoid temptation and avoid his desires. Note that the former is publicly observable whereas the latter is not and that weight appears to only be given to the latter because of the existence of the former.
Other arguable cases for mitigation would be that of someone who had been “brainwashed”, “groomed” or “radicalised”. Different people have different, sometimes strongly held, opinions on how much real choice people have in such circumstances, often based on very little solid knowledge.
It is interesting to examine our own reactions, as well as those of lawyers and other people, to pleas such as these, including the reasons why we might want to see someone punished or held accountable for an action.
Consider, for instance, why the existence of a brain tumour might be treated differently from the case of a less visible abnormality in the same region of the brain. Clarke opines that “The crucial difference … is that the tumour was not integrated into the circuitry of the brain and can be considered an external disruption of brain function which went against the will of the teacher.” As well as preempting the question of where the boundary between internal and external should be drawn, it implies that our reaction to a person depends on, and is limited by, what is publicly observable, with current technology and knowledge, and the deductions which are made from that.
A way of reaching the same conclusion in a different way is by saying that a mitigating circumstance is valid if it is one for which reward or punishment would not be capable of changing behaviour, such as a tumour or injury following a stroke. If reward or punishment could conceivably change a person's behaviour, then the mitigating argument is deemed invalid [2] and usually punishment will be meted out.
[1] Peter Clarke, “All in the mind?”, Lion Books 2015, ISBN 978 0 7459 5675 6
[2] Peter F. Strawson, Freedom and Resentment in Gary Watson, “Free will”, 1982