Crime and Punishment

In the year 2000, a Virginia woman received some of the worst news possible when her young daughter approached her to discuss some  things that had been making her uncomfortable.  The daughter recounted recent episodes of her 40-year-old stepfather (the woman’s husband) making subtle sexual advances towards her over the last several weeks.  Subsequent investigation by the wife uncovered her husband’s expanding cache of magazines devoted to child pornography, the collection of which had been accompanied by increasingly frequent visits to Internet pornography sites and the solicitation of prostitutes at local massage parlors.

It is easy to understand her reaction, particularly since her husband worked as a schoolteacher:  The result was his legal removal from their home, a conviction for child molestation, treatment with the chemical-castration drug medroxyprogesterone, and a requirement that he attend a rehabilitative twelve-step program for sexual addiction.  The program was unsuccessful — he persistently solicited sexual favors from both the staff and clients at the rehabilitation center.  He was accordingly sentenced to a prison term.

The case was a fascinating one because the specific cause of his pedophilia was identified by neuroscientists who treated him when he presented himself at the University of Virginia Hospital on the eve of beginning his prison sentence, complaining of a headache.  MRI scans identified an approximately egg-sized brain tumor located in the right lobe of his orbitofrontal cortex, an area of the brain known to be correlated with social integration, judgment, and the acquisition of a moral sense.  Damage to that area had previously been identified in certain sociopaths.  Removal of the tumor resulted in a reestablishment of his previous sense of morality, and he returned to his home.  When he began to complain of headaches in October 2001 and had resumed his secret collection of child pornography, a further MRI scan revealed regrowth of the tumor.  His pedophiliac behavior again disappeared after removal of the second tumor.

This case serves as a striking example for the emerging field of “neurolaw,” and I have chosen it for two reasons:  first, it presents one of the most clear illustrations of a link between a specific neurology and criminal behavior; second, it involves a crime that is so offensive that many — perhaps most — would agree that it should be punished even as we agree that it was not the man’s “fault” that he developed a brain tumor.  The example is one that figures in the report released by The Royal Society in the UK this month entitled “Neuroscience and the Law.”  A copy of the report can be found here and the original report by neuroscientists about the patient described above can be found here.  Other aspects of the interaction of neuroscience and law are also of interest, and I may discuss them in future posts, but today I want to limit the focus.  What should the role of criminal punishment be as neuroscience allows us greater insight into the mechanism by which some individuals commit crimes?

Legal philosophy generally identifies four justifications for criminal punishment, although there is sometimes blurring in how they are  categorized by different thinkers:  incapacitation (the criminal must be rendered unable to continue committing the offense); deterrence (punishment must be visible so that others who might be inclined to commit the offense will be deterred from doing so); retribution (the criminal must suffer in some proportion to the suffering he caused in his victims); and rehabilitation (the punishment should operate so that the criminal will understand and accept the wrongness of his actions in a way that will change his future behavior).  Different people place a different level of importance on each of these justifications depending on their own personal philosophies, but virtually everyone recognizes the legitimacy of at least some of them.

In thinking about pedophilia — even pedophilia induced by a brain tumor — it is impossible not to continue to accept incapacitation as a justification for punishment.  Removing the ability to commit the crime is important in protecting children, particularly in circumstances where the person is driven by impulses so strong that he is unable to control them.  Similarly, deterrence has a legitimate role to play in influencing those who may experience similar but controllable impulses by demonstrating the consequences if they give in to them.  And from a retributive perspective, there is no difference in the harm caused to a victim simply because the biological reasons for the  commission of the crime are better understood.

Where a greater understanding of the origins of a crime play the most significant role is in the rehabilitative role of punishment.  That greater understanding allows responses to be fashioned that take account of the underlying neurological causes of crimes so they can be corrected.

But lines can still be difficult to draw.  We all know — people have always known — that there are those born with a predisposition to commit certain kinds of crimes.  To understand where that predisposition comes from because of a better understanding of neurology in no way changes the fact that our societies do believe that punishment is an appropriate response even when that predisposition results from factors outside an individual’s control — genetics, birth defects, formative social environments and pressures, etc.

Pedophilia arouses strong reactions in people.  But the same philosophical principles that continue to demand that we punish it apply to every crime, including those that may not be viewed as passionately.  Even as we come to understand the human brain more fully and to develop an appreciation of how its structure may be linked to crime, the philosophical bases upon which we have traditionally justified punishment remain essentially unchanged.  Those philosophies have been debated for centuries and while there are always issues at the fringes, they are almost universally accepted.

Still, it is unsettling to accept the reality that neuroscience is exposing:  one day you might be punished as a child molester when your real crime is to have developed cancer.

About Patrick Boucher

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.