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Was the Norwegian Court right in finding Anders Breivik responsible for his actions?

Posted: 24/08/2012 14:46

The court has decided unanimously that Anders Breivik was sane at the time he committed his heinous offences. It is a verdict which may come to be seen as a turning point in the history of how much we hold ourselves, and others, responsible for actions.

This is because advances in neuroscience are invading the court room, colluding with how recent generations have embraced a blame culture, whereby we increasingly seek to find someone else to blame when we do wrong.

The current judgement is problematic, if you don't analyse it properly, as it creates the impression that there is a clear science and logic behind the way doctors, neuroscientists and courts come to conclusions about criminal responsibility.

In fact, there is no wide clear consensus on how to absolutely define criminal responsibility. A lot of it still comes down to common-sense intuitions and feelings. Most of us have a sense that someone who shoots a policeman, barring escape from an armed robbery, has committed a crime where there is full responsibility. There is a purpose and logic behind the act which makes sense in terms of selfish self-interest.

Contrast this with a mother who has just given birth, and who is suffering from a well-known pattern of worsening post-natal depression. A spiral into psychosis follows - just after child birth is one of the highest risk periods for women in terms of their mental health. In the grip of a delusion which develops out of her psychosis, a disordered conviction arises that she has given birth to the 'anti-christ'; as a result, she tragically stabs her own baby.

Is this woman criminally responsible in the same way as the escaping bank robber? Both have killed someone?

A widespread test of criminal responsibility is whether you are suffering from poor reasoning due to a disease of the mind. This 'defect of reason' ensures you wouldn't know the true nature your acts, and you wouldn't know they were wrong.

Breivik's clear planning, deadly expert knowledge and intentions seems to have weighed heavily in the Court's ruling on his sanity. They used a common-sense intuition over personal responsibility, rather than being too swayed by the experts.

But is this a judgement that will be left for much longer purely in the hands of judges and lawyers rather than brain specialists?

Several neuroscientists are now campaigning that the age of criminal responsibility should be raised in England and Wales from its current age of 10 years old. There is a contentious debate as to whether a ten year old's brain has developed enough to allow them to form judgements over what is right and wrong.

This controversy hinges on a particular part of the brain linked to planning and judgement called the prefrontal cortex (PFC). Interestingly this might be one of the last regions of the brain to develop fully, so neuroscientists argue that children, and even teenagers, might be unable to distinguish right from wrong, or grasp the implications of their actions.

Professor of Law and Philosophy, Nita Farahany at Vanderbilt University, assessing 700 US legal cases between 2004 and 2009, estimates the number of judicial opinions taking account of neuroscience opinions when determining criminal responsibility has doubled. Her study found 16% of adult defendants introduced brain scans into the court room which high-lighted mental illness or neurological disorders such as tumours, arguing for diminishing personal responsibility for serious crimes.

The problem with the neuroscience view of criminal responsibility is that it seems to slide towards a world where anyone guilty of a crime eventually claims 'my brain made me do it'. And this is because that's what we're all now doing outside the court.

Dr Jean Twenge, a psychologist at San Diego State University has summarised recent psychological studies focusing on how much we personally believe we have control and should take responsibility over our own lives, conducted from 1960 to 2002. These tests assessed how much we accept our role in our own misfortunes, or blame others. Twenge found young people all over the western world since the 1960's increasingly believe they have less control and take less responsibility over their futures. Instead, they are ever more likely to believe their destiny is controlled by external forces; this contributes to a blame or victim culture whereby others or external conditions are to blame when, for example, things go wrong.

In other words, we increasingly live in a culture whereby we resort to a 'my brain' or 'my genes' or 'my terrible childhood' made me do it, as a defence.

So the Norwegian judgement is, reading between the lines, a clear stand against the ever-increasing slide in personal responsibility abroad in our culture, colluding with brain scans and psychiatric opinion becoming the key currency in court rooms around the world.

This Court bravely decided, very much against the thrust of the times, to hold Breivik responsible for his actions.

Sometimes the common sense intuition is not only all we have to really go on in the face of incomprehensible darkness, it's what will also save us from the darker sides of ourselves.

 
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