A mind to blame: new views on involuntary acts

Rethinking the voluntary act requirement: Implications from neuroscience and behavioral science research

Criminal responsibility in the American legal system requires the presence of an actus reus-a harmful act that was committed voluntarily-and a mens rea, or guilty mind. Courts frequently consider questions surrounding mens rea but rarely question whether an act was committed voluntarily. Thus, courts presume that acts have been committed voluntarily and with an ill will; retribution, which serves the primary basis for punishment in the USA, relies on this presumption. Research in neuroscience and the behavioral sciences, however, suggests that this presumption is flawed and not sufficiently robust to justify punishment that is grounded in retribution. In this paper we discuss the presumption of voluntariness and free will inherent in the law, provide examples of how the courts have conflated actus reus and mens rea and the consequences of doing so, and the implications of neuroscience and behavioral science research for actus reus (also known as the voluntary act requirement). Finally, we propose re-conceptualizing punishment within a consequentialist, empirically-based framework that does not rely on folk psychological notions about human behavior and reinvigorates the actus reus as the foundational requirement for legal responsibility.

Proximal and Distal Intent: Toward a New Folk Theory of Intentional Action

Inferences regarding actors’ intentions play an important role in social and moral cognition. Numerous studies have operationalized intentionality in a binary fashion (i.e., an act is either “intentional” or “unintentional”). The authors suggest, however, that when determining the degree to which an act was intentional, lay observers consider two independent dimensions: proximal intent (the actor's focus on the means) and distal intent (the actor's focus on the end). They describe how the proximal intent/distal intent (PIDI) approach allows researchers to understand observers’ intent-related judgments with greater precision. The authors review studies highlighting a range of variables that lead perceivers to prioritize either proximal intent or distal intent in their social and moral judgment. They describe how previous findings in the literature may be reinterpreted in light of the PIDI framework. Finally, they suggest ways in which the PIDI framework implies novel directions for future research on moral cognition.

Construal level and free will beliefs shape perceptions of actors' proximal and distal intent

Two components of lay observers' calculus of moral judgment are proximal intent (the actor's mind is focused on performing the action) and distal intent (the actor's mind is focused on the broader goal). What causes observers to prioritize one form of intent over the other? The authors observed whether construal level (Studies 1–2) and beliefs about free will (Studies 3–4) would influence participants' sensitivity to the actor's proximal vs. distal intent. In four studies, participants read scenarios in which the actor's proximal and distal intent were independently manipulated. In Study 1, when only distal intent was present in the actor's mind, participants rated the psychologically distant actor more responsible than the psychologically near actor. In Study 2, when only distal intent was in the actor's mind, participants with a chronic high level of action identification rated the actor more responsible than did those with a low level of action identification. In both studies, when only proximal intent was in the actor's mind, construal level did not predict judgments of responsibility. In Study 3, when only proximal intent was present in the actor's mind, the more participants believed in free will, the more they rated the actor responsible. When only distal intent was in the actor's mind, free will belief did not influence ratings of responsibility. In Study 4, the same pattern emerged when free will/determinism beliefs were manipulated and the actor performed a positive (life-saving) act. The authors discuss how these results shed new light on the literatures on moral reasoning and psycho-legal theory.

Religion and Punishment

We hypothesize that two distinct facets of religiosity—orthodoxy (an emphasis on belief) and orthopraxy (an emphasis on behavior)—predict differential sensitivity to an actor’s intent when making moral judgments. Participants judged actors who performed misdeeds intentionally or unintentionally. In Study 1, high orthopraxy predicted harsher judgments of the unintentional actor, while high orthodoxy predicted more lenient judgments. In Study 2, we investigated a potential explanation for these effects, priming participants with either an “action focus” or a “thought focus.” Action-focused participants judged the unintentional actor more harshly than did thought-focused participants. In Study 3, participants from an orthopraxic tradition (Hinduism) judged the unintentional actor more harshly than did those from an orthodox tradition (Protestantism). These findings contribute to a growing literature on the multifaceted nature of religion. They also carry broader implications for understanding people’s responses to actions as a function of the actor’s mental state.

Unexpected benefits of deciding by mind wandering

The mind wanders, even when people are attempting to make complex decisions. We suggest that mind wandering—allowing one's thoughts to wander until the “correct” choice comes to mind—can positively impact people's feelings about their decisions. We compare post-choice satisfaction from choices made by mind wandering to reason-based choices and randomly assigned outcomes. Participants chose a poster by mind wandering or deliberating, or were randomly assigned a poster. Whereas forecasters predicted that participants who chose by mind wandering would evaluate their outcome as inferior to participants who deliberated (Experiment 1), participants who used mind wandering as a decision strategy evaluated their choice just as positively as did participants who used deliberation (Experiment 2). In some cases, it appears that people can spare themselves the effort of deliberation and instead “decide by wind wandering,” yet experience no decrease in satisfaction.

Thoughts Versus Deeds: Distal and Proximal Intent in Lay Judgments of Moral Responsibility

The authors propose that two central ingredients in lay models of intentionality are (a) “distal intent” (the actor’s mind is focused on a broader goal) and (b) “proximal intent” (the actor’s mind is focused narrowly on the act itself). Study 1 established that participants rate an actor with both forms of intent more responsible than an actor with only one form of intent or neither form of intent. In Study 2, when the actor had only distal intent, participants with a high-level construal rated the actor more responsible than did those with a low-level construal. In Study 3, when the actor had only distal intent, participants primed with psychodynamic concepts rated the actor more responsible than did those primed with cognitive-control concepts. However, when the actor had only proximal intent, the effect reversed. The authors discuss the implications of these findings for the literatures on moral reasoning and law.

Neurophilosophical perspectives of neuroimaging in forensic psychiatry-giving way to a paradigm shift?

Forensic psychiatry is concerned with the relationship between psychiatric abnormalities and legal violations and crimes. Due to the lack of available biological criteria, evaluation and therapy in forensic psychiatry have so far been restricted to psychosocial and mental criteria of offenders' personalities. Recent advances in neurosciences allow a closer approach to the neural correlates of personality, moral judgments and decision-making. We propose to discuss the introduction of biological criteria in the field of forensic psychiatry and to establish rules as to what extent such biological criteria will be a better and more reliable choice in judging mentally ill criminals by using all available information that can be obtained by biological means. Psychosocial and subjective criteria in forensic evaluation will be more and more accomplished by biopsychosocial and objective criteria. The responsibility of having committed a criminal act will no longer be exclusively defined by judging free and voluntary decision-making, but rather by brain-behavior relationships. What is often referred to as psychosocially determined mental processes thus could be complemented by estimating the degree of biopsychosocially determined neural processes. We conclude that such a process could contribute to a paradigm shift in forensic psychiatry, which will have profound implications for offenders, forensic psychologists and psychiatrists, the law and society in general.

Sexual behaviour in sleep: an internet survey

The objective of the study was to provide further information related to newly described parasomnia variant, Sexual Behaviour in Sleep (SBS, sexsomnia). Previous studies dealt with selected population, typically middle-aged males, featuring extensive medico-legal exposure. At the same time, an anecdotal evidence suggested higher involvement of younger population, and skew towards balance between genders comparable to those seen in other non-Rapid Eye Movement (NREM) sleep parasomnias. The epidemiological information regarding this condition is still virtually non-existent. In order to sample this difficult-to-reach population, a 28-item Internet survey was posted on the sexsomnia reference site and the link was also sent to prospective respondents (mostly registered visitors to this site). The respondents were able to complete the survey anonymously, which resulted in a need for the screening of bogus and duplicate results. At the end, a total of 219 validated responses were collected and analysed. The results showed greater representation of females (31% of the total number), and wider age distribution (mean age of 30.4 years). The respondents typically reported multiple sexsomnia episodes, in most cases precipitated by body contact, stress and fatigue. Relatively small number of respondents reported involvement of legal authorities (8.6% of males and 3% of females) and participation of minors in their sexsomnia (6% of the total sample). In spite of known limitations of such surveys, the study provided much needed insight into this complex nocturnal behaviour. It confirmed the anecdotal evidence about the gender and age distribution, and provided information on some key features, such as precipitating factors, type of behaviour, medication use, personal medical history and medico-legal aspects.

Alcohol-induced sleepwalking or confusional arousal as a defense to criminal behavior: a review of scientific evidence, methods and forensic considerations

An increasing number of criminal cases have claimed the defendant to be in a state of sleepwalking or related disorders induced by high quantities of alcohol. Sleepwalkers who commit violent acts, sexual assaults and other criminal acts are thought to be in a state of automatism, lacking conscious awareness and criminal intent. They may be acquitted in criminal trials. On the other hand, criminal acts performed as the result of voluntary alcohol intoxication alone cannot be used as a complete defense. The alcohol-induced sleepwalking criminal defense is most often based on past clinical or legal reports that ingestion of alcohol directly 'triggers' sleepwalking or increased the risk of sleepwalking by increasing the quantity of slow wave sleep (SWS). A review of the sleep medicine literature found no sleep laboratory studies of the effects of alcohol on the sleep of clinically diagnosed sleepwalkers. However, 19 sleep laboratory studies of the effects of alcohol on the sleep of healthy non-drinkers or social drinkers were identified with none reporting a change in SWS as a percentage of total sleep time. However, in six of 19 studies, a modest but statistically significant increase in SWS was found in the first 2-4 h. Among studies of sleep in alcohol abusers and abstinent abusers, the quantity and percentage of SWS was most often reduced and sometimes absent. Claims that direct alcohol provocation tests can assist in the forensic assessment of these cases found no support of any kind in the medical literature with not a single report of testing in normative or patient groups and no reports of validation testing of any sort. There is no direct experimental evidence that alcohol predisposes or triggers sleepwalking or related disorders. A legal defense of sleepwalking resulting from voluntarily ingested alcohol should be consistent with the current state of art sleep science and meet generally accepted requirements for the diagnosis of sleepwalking and other parasomnias.

Free will: reconciling German civil law with Libet's neurophysiological studies on the readiness potential

The free will debate widely exceeds the neuroscientific and philosophical fields due to profound implications for legislation, case law and psychiatric expert opinion. Data from Benjamin Libet's experiments on the readiness potential have been used as an argument against personal responsibility and for changes in the law. Due to the explicit use of the term "free will" in German civil law, the psychiatrist as an expert witness is confronted with this debate. In this article we outline the role of this crucial term in German civil law and we describe the neurophysiologic challenge in the form of Libet's experiments, which is led on three levels: the correctness of the data, the impact on the question of whether free will exists and possible consequences for the law. We conclude that the problem of free will cannot be debated on the basis of the data provided by Libet's experiments and that doubts about the existence of a free will must not lead to changes in the law or in psychiatric expert testimony. Therefore, advice for the psychiatrist as an expert witness is offered on the basis of a psychopathological approach that takes into account cognitive and motivational preconditions and the structure of values and personality.

Neuroscientific challenges to free will and responsibility

Recent developments in neuroscience raise the worry that understanding how brains cause behavior will undermine our views about free will and, consequently, about moral responsibility. The potential ethical consequences of such a result are sweeping. I provide three reasons to think that these worries seemingly inspired by neuroscience are misplaced. First, problems for common-sense notions of freedom exist independently of neuroscientific advances. Second, neuroscience is not in a position to undermine our intuitive notions. Third, recent empirical studies suggest that even if people do misconstrue neuroscientific results as relevant to our notion of freedom, our judgments of moral responsibility will remain largely unaffected. These considerations suggest that neuroethical concerns about challenges to our conception of freedom are misguided.

Neuroethics: the practical and the philosophical

In comparison with the ethical issues surrounding molecular genetics, there has been little public awareness of the ethical implications of neuroscience. Yet recent progress in cognitive neuroscience raises a host of ethical issues of at least comparable importance. Some are of a practical nature, concerning the applications of neurotechnology and their likely implications for individuals and society. Others are more philosophical, concerning the way we think about ourselves as persons, moral agents and spiritual beings. This article reviews key examples of each type of issue, including the relevant advances in science and technology and their accompanying social and philosophical problems.

Fatigue and the criminal law

Fatigue is an increasingly recognised risk factor for transportation accidents. In light of this, there is the question of whether driving whilst fatigued should be a criminal offence. This paper discusses the current legal position, including the problems of voluntary conduct and self awareness. Three models for reform are proposed. The manner in which scientific research can inform legal consideration and future directions for research are discussed.