Judging Responsibility
In the courtroom, in the lab, and in the armchair
20th November 2013, Macquarie University, Sydney, Australia
1pm-5.30 pm Location TBA
Organised by Jeanette Kennett, and sponsored by the Macquarie Research Centre for Agency, Values and Ethics (CAVE). Places are limited, so please email to reserve a seat at the workshop.
Irresistible impulses? A legal case of drug-induced compulsive sexual behaviours
Adrian Carter, NHMRC Research Fellow, University of Queensland Centre for Clinical Research
There is growing evidence that dopamine replacement therapy (DRT), a range of medications used to treat Parkinson’s disease, can cause impulse control disorders (ICDs) such as pathological gambling, compulsive shopping and eating, and hypersexuality. Some individuals treated with DRT have lost their homes and businesses or have been prosecuted for criminal sexual behaviours. The ability for DRT to cause compulsive or addictive behaviours in a significant minority of individuals raises a number of ethical and legal questions. There is considerable debate amongst the legal fraternity whether criminal offenders suffering from a mental disorder that rendered them incapable of resisting an impulse to commit an offence could or should be found not criminally responsible. In this paper, I will review a case of a Tasmanian individual with Parkinson’s disease who pleaded guilty to criminal sexual behaviours, but successfully argued at sentencing that they were caused by pharmacological treatment of his Parkinson’s disease. I will examine the evidence that DRT can cause these behaviours in the general case, and whether they were causal in this specific case. Our review of this and similar cases overseas suggests that courts are willing to accept evidence that DRT can cause ICDs in criminal cases at the sentencing stage. It is uncertain, however, whether courts would accept this as a defence as the medical evidence is yet to be tested at trial. Key legal questions about responsibility revolve around whether an ICD could have been foreseen by the offender and to what degree this ‘caused’ a lack of voluntariness in their actions. I will also briefly consider some further legal questions raised by drug-induced compulsive behaviours.
The sentencing of Aboriginal offenders and genetic vulnerabilities to the crimogenic effects of social environments
Allan McCay University of Sydney
In Bugmy v The Queen, the High Court recently considered principles concerning the mitigating effect of certain social circumstances in respect of the sentencing of Aboriginal offenders. Although the case did not focus on genetics, this paper will consider the possibility that some who encounter the social environments considered in Bugmy, may have a genetic vulnerability to the crimogenic effects of such environments and, as a result, may deserve more mitigation than is currently available.
The Feelings of Judges (or ‘How Judges Judge Feelings’): The role of sworn evidence and affect in assessing offender remorse
Kate Rossmanith. Macquarie University
In most common law jurisdictions worldwide, an offender’s remorse is a mitigating factor in sentencing. It matters whether or not a person who has committed a crime is truly sorry for what they have done. And yet how judges evaluate such expressions is unclear. Drawing on 18 interviews with judges in the New South Wales criminal justice system in Australia, this paper examines the status of offenders’ sworn evidence in the judiciary’s assessment of offenders’ remorse. It explores judges’ experiences of evaluating remorse, and it interrogates the role of bodies and affect in such assessments. These interviews with the judiciary reveal that remorse-assessment often operates beyond semiotic, representational paradigms (such as ‘demeanour assessment’) and instead works, in experiential terms, as a feeling. When it comes to offenders getting into the witness box and speaking of their remorse, it seems that sometimes something gets felt by judges at the level of embodied affect that then enables them to declare: ‘This person is remorseful’.
Doing Away With Capacities: a non-capacitarian compatibilist approach to responsibility
Nicole A Vincent, Department of Philosophy, Georgia State University, Atlanta, GA, USA
http://nicolevincent.net/
The most distinctive feature of the compatibilist defense of responsibility from determinism is the shift of focus from metaphysics to psychology. Responsible agents on the compatibilist account are those who have the psychological capacities required to recognize and respond appropriately to reasons, not those who have the metaphysical ability to act differently given the actual history and the laws of nature.
However, of late I have argued that we should not take solace in this capacitarian compatibilist solution. My worry is that capacitarian compatibilists merely substitute one set of modal notions (e.g. alternative possibilities, could have done otherwise, etc) for another set of equally modal notions (e.g. mental capacities, moderately reasons-responsive mechanisms, etc). Put another way, if what was meant to appeal about the compatibilist solution was the analysis of "capacity", then why isn't it enough to simply offer a compatibilist-friendly analysis of "could have done otherwise"?
After sketching out several different ways of understanding the notion of "capacity" and explaining why none seems suitable for the task of justifying things like blame and punishment – i.e. why capacitarian compatibilism seems to merely change the terminology rather than offering a genuine solution – I sketch a different approach. On this approach, the justification of genuinely backward-looking reactive attitudes and responsibility practices should not be sought in capacities at moments of perception, judgment, decision and action, but in diachronic considerations that assess whole systems of responsibility on grounds of fairness over time.