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Just how free is your will, truly? Criminal law & the free thinker.

A few years ago two people made comments to me independently about children; comments that broke my heart. In one, the sister of a friend of mine who had adopted a baby from a troubled background asked me if I had met ‘the criminal’s baby’ yet. I did a double-take; this was the first conversation I had ever had with this woman, but surely she must have been joking. She wasn’t. She waited for my answer. I stammered out something about what gorgeous and happy boy he was, and left; under no illusions about what she saw in that child’s past and his future. At about the same time, another friend of mine was parenting a child from  troubled background. Hmm. Such a quaint phrase ‘troubled background’..makes me think of a William Turner painting, like The 5th Plague of Egypt:


This child was a bit older, and he had been playing up at school. Really playing up, and my friend was, understandably, tearing her hair out. “My kid is totally fucked up,” she said, in a tone of utter finality. My heart bled for her; but also for her boy, happily (on that day, at least) playing on the computer in the next room. The sense I had garnered from both conversations (and the first was a short one, I’ll grant you) was that each child was followed by a terrible Doom. In the case of the second child (Māori) he was rapidly becoming, for a host of complicated reasons, the Troubled Māori Boy at his school. Now this child had a pretty good chance of beating his Doom, he had a well intentioned  & hardworking Mum, and a bunch of supports in place around him. In fact, both children did, and I can only hope that these two kids continue to outpace the expectations of others that they will fail; that the choices they will make will not fulfil the prophecies being made by others on their behalf.

A couple of weeks ago I happened to be in my first week of law teaching for the year, introducing my classes to the concept of mens rea, or ‘the guilty mind’ that prosecutors must prove exists if defendants are to be held liable  for the actus reus, or ‘guilty conduct’ that comprise serious offences in this in this country’s criminal law (many offences don’t require mens rea these days, but that’s a story for another day).

So in my classes we had to discuss some basics before we even got what it means to choose an action, and to carry it out with a specific frame of mind like intent or recklessness. At the very heart of our criminal legal system is the notion of the freely choosing individual. The person who, faced with a choice of courses of action is capable of choosing one of those courses of action. This presumption that individuals must have free will in order to be at fault is extraordinarily powerful and optimistic. Thousands of years of philosophical and religious thought have also upheld this idea, particularly in the West,  that humans can choose obedience to a deity or a principle, or a moral.  This idea is in direct tension with another powerful idea; determinism,  which understands humans to be little more than flotsam and jetsam on tides of their own fate. We are the sum of our physiology, our psychology, our physicality, our environment, and we are bound to act as we do; our whole lives have brought us to this moment; and true choice is but an illusion.

At the same time as teaching these classes, I read ab0ut the successful appeal by one of the young boys who killed Mr Arun Kumar, a loved and respected man who was stabbed to death in his Auckland dairy in June, 2014. This is one case that challenges the role we presume free will plays in our behaviour. The appellant was 13 at the time of the killing, who had suffered terrible head trauma at the age of 8; married with many of the other markers of disadvantage that other young offenders carry; lack of family support, lack of engagement with the medical establishment; abysmal schooling experiences, and so on. The following quote from the article interested me:

A medical report available to the courts outlined the effect the injury had on the teenager’s reasoning on the day of the killing: “although knowing right from wrong, [P] was significantly reduced in his capacity to choose right from wrong, due to his lasting brain injury impairments.

“He could not use his knowledge normally to control his actions on the day and in the situation in the dairy. He had less control than another person his age would have had in the same circumstances due to his brain damage.”

In other words, this offender’s capacity to exercise free will was compromised. It was not eradicated; he was found guilty of manslaughter after all; he was not acting as an automaton; he still met the mens rea for manslaughter; just not for murder, because the jury found he had formed intent for committing serious bodily harm, without intending, or knowing that death could result (s168, Crimes Act 1961). The Court of Appeal said that the sentencing judge had not taken enough account of the Defendant’s reduced mental faculty in sentencing. This case highlighted how fragile our cherished concept of free will can be.  Why make this young person criminally liable for something he most probably could not have chosen to do differently in that moment? Well, there are many reasons, and one of them is simply that our system of criminal liability simply cannot take account well of hard cases.

I asked my classes who among them felt they were indeed in control of their own destinies; and who felt at the mercy of some kind of fate over which they had no kind of control. Funnily enough, many of the same people who thought themselves in control, also saw themselves carried along on tides over which they had no control whatsoever. Somewhere between these two poles exist real people struggling with their unvarnished lives. Muddiness of real life to one side; politics, religion, and law would all look very different in this country if the notion of individual free will did not have such ascendance.

I can only trust that the two children I mentioned above are both able and enabled to make the kinds of decisions that dispel the Dooms that might otherwise sweep them up.


[Postscript: just saw this article about 30 seconds ago..seems, according to this experiment at least,  that a goodly degree of our quote-unquote free choices are actually retrofitted. Well, a scientific study rarely quells debate, does it.]





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