Judging evil: Do pedophiles have free will?

Neuroskeptic, earlier this week, wrote this very powerful (and sad) post about the story of an anonymous man, who after several surgeries removing parts of his brain, developed sexual urges directed toward minors. He developed a case of the rare Klüver-Bucy Syndrome. KBS is a behavioral disorder that occurs when the right or left temporal medial lobes of the brain are damaged. One of the symptoms of KBS is altered sexuality, which can be defined as: characterized by a heightened sex drive or a tendency to seek sexual stimulation from unusual or inappropriate objects.

In this anonymous subject’s case, the inappropriate objects were prepubescents. He was arrested in 2006 and charged with knowingly and wilfully possessing material which contained at least three images of child pornography. The intent requirement of this crime was the key factor in the fight over his sentence. On his behalf, the argument was made that because of the damage to his brain and the resultant KBS, he was not in control of his hypersexual urges. The prosecution countered that since he was able to prevent himself from acting out in public (I wonder if that’s really the case or if that’s a bit of reverse logic), he was able to control his urges, and thus any criminal act was wilfull and knowing.

In his particular case, the judge accepted the mitigation provided by the defense and sentenced the man to the minimum permissible. [Note that after being put on anti-depressants and other medicine, his urges went away.] But, as Neuroskeptic notes, there is a very interesting question here. If the science does prove at some point down the road that pedophiles really are not in complete control of their urges and these urges are the result of a brain malfunction – an organic disorder, if you will – must we change our attitudes toward those that commit these crimes?

Neuroskeptic notes a striking similarity between the behavior of monkeys with similar brain damage and humans:

On the other hand, damage to the same parts of the brain causes strikingly similar symptoms in monkeys. An alien scientist observing life on earth might well conclude, from cases like this, that all the species of monkeys on this planet are very similar – including humans. You damage a certain part of their brains, and their behaviour changes in a predictable way. Most of us humans would say that other monkeys don’t have “free will” – but then how are we so sure that we do?

No matter what your views on child molesters, if you are a student of the law and of the human mind, the possibility that some people may act out in ways that they cannot control must pique your interest. For the very essence of criminality is the mens rea, the intent to commit an act that society has deemed illegal. This may not be limited to pedophiles alone: consider the man who by all accounts is sweet, gentle and kind and who, one day, goes on a rampage for no seeming reason and commits horrible murders. Criminal defense lawyers have already recognized the impact of traumatic brain injury on the defendant and his culpability. So why are pedophiles so different in our view?

People almost universally will decry the act of pedophilia as immoral, distasteful and heinous. The reason for this particular hatred toward pedophilia is the nature of the victim: the innocent, not-as-yet-sexual child, who cannot defend himself against the improper advances of someone older. And there is a lot of merit to that. But ask someone the next question: why do pedophiles offend? The answer you’re most likely to get will include some vague term such as “sick” or “evil”. Underlying these reasonings is the belief that pedophiles are able to control their urges and their actions. But “sick” or “evil” are amorphous terms. They mean whatever you want them to mean and are usually dismissive in nature. To ask that question is to invite the “are you serious?” look.

But it is an entirely legitimate question. At least for those of us concerned with fitting the punishment to the crime and with understanding the motivations of human beings in the context of the criminal justice system.

As long as a large majority of the population views sexual acts committed upon a child as against the norm, pedophilia will remain a crime (there is some discussion on the internet that pedophilia is a sexual orientation, not a sexual disorder, but I will leave that for another day). Having accepted that, we must then turn to the punishment for that crime. Must we punish the individual who wilfully and knowingly shoots another person for a perceived slight less severely than the individual who sexual abuses children, albeit without any ability to control his urges?

The development of neuroscience vis-a-vis pedophiles may lead (should lead?) to an adjustment in our view of the offender, not the crime itself. This student paper asks some of the pertinent questions:

If it is the case that pedophilia is often unpreventable and always incurable, is it not also the case that any one of us is at risk for pedophilia? With this possibility in mind, should we try and be more sympathetic, or would sympathy mean forgiving a heinous crime and at the same time sacrificing critical moral guidelines? This is not necessarily the case. For example, in the film The Woodsman, a convicted pedophile is released from prison and struggles with his past offenses and continued urges. The audience is asked to be sympathetic but also recognize that his deviant behavior is harmful. Understanding and perhaps sympathizing with those who suffer from pedophilia does not mean believing child molestation is acceptable.

Just as we don’t “accept” the robberies committed by the junkie to support his habit (we understand and sympathize with the junkie and his need to commit the robbery), would it be so horrific to understand the physiology of the pedophile and to make a correct in our perception of the punishment needed to be meted out? After all, it is our changing views (and some might say oscillating) of this type of behavior that result in the classification of illegality.

At the very least, as we represent individuals charged with these crimes, we must begin to explore the neurological possibilities that the client may or may not be fully in control of his actions. The three stated goals of the criminal justice system – punishment, rehabilitation and deterrence – would be better served by understanding the cause of the action, rather than ignoring it altogether, as is often the case with pedophilia. Discovering that the defendant suffers from an organic brain injury may help us fashion the appropriate sentence and create access to the appropriate treatment to prevent re-offending.

As more light is shed on this area of neuroscience, [see the work of Frederick Berlin] I suspect that this is a conversation we will be having more often.

[Because there are many who would skim this post and conclude that I am advocating de-criminalizing the act of pedophilia, I feel it is important to reiterate that I am not. I am merely exploring an area that is new to me: the possibility that brain functioning might explain the reason why pedophiles molest children. Also, this is my personal view only.]

16 thoughts on “Judging evil: Do pedophiles have free will?

  1. shg

    While I am in complete agreement that we must account for pathologic causes of crime, there remains a certain element of merit to the point that people who can control their impulses to avoid detection may have only a limited explanation for their purported inability to control themselves otherwise.

    In order to protect those who have a bona fide inability to control themselves, we must be capable of distinguishing those who can, when it serves their purposes, or a very real defense will be lost to those who would abuse it.

    1. Gideon Post author

      I wonder if it is that clearly delineated: that just because people do not give in to their urges in public (that we know of) means that they have some amount of self-control or “free will”. I’m not saying that’s not the case, I just don’t know if I’d automatically draw that assumption. I don’t know enough about the recurrence of urges, how they occur, what triggers them, whether it’s a constant struggle, etc.

      I think it’s somewhat dangerous to assume that because these acts occur within the privacy of a bedroom – as prosecutors like to argue: “crimes occur in secret” – that it necessarily means the offender is exercising control. (I’m not saying this is what you’re saying, just generally.)

      1. Rick Horowitz

        I’ve always been fascinated by this question, although I can’t say I’ve ever thought about it in the context of pedophilia specifically. But having been interested in cognitive science and questions relating to the social construction of the self, consciousness and what it means to be a person, I’ve often wondered about the interrelationship between free will and behavior.

        Clearly, it is fallacious to say that because someone can control an impulse sometimes, they can control that impulse all the time. This is particularly true when we’re talking about biologically-driven (or at least mediated) situations.

        I’ve gotten pretty good at not urinating in my pants in public, or in bed at night. I can go without food for a significant period of time if I’m too busy to eat. I’ve gone as long as two days without sleep more often than I care to think about.

        But sooner or later, no matter how well I’ve been able to control myself in these ways, biology and physiology win out.

        Some die-hard “free willers” will no doubt say, “But that’s different. The physiological need to urinate, eat and sleep are different from the drive to do things you’re not supposed to do!”

        I have two possible responses to this:

        1. Why?
        2. Prove it.

  2. Trace Rabern

    Great post Gid. I my PD experience, many clients (drugs and sex cases, but also violence cases) have urges that are result of wiring, but I’d say most have free will in that they could and should control it.

    But I have had others for whom no amount of control would work. I have seen a brain-damaged client with a Turrettes-like compulsion for touching items of a certain shape that ends up a repeat sex-offender. I have several with mental illness obsessions that unfortunately manifest as interstate stalking convictions. I’ve had an 80 yo woman with demetia and persecution ideation kill a couple husbands. To outsiders their conduct is very scary and should be locked away. To many mental health providers (and their defense team), they are unavoidable products of brain processes outside of normal.

    It is easer to discuss with the general civilian population when the person has had parts of his brain removed–I mean, that’s objective. Its much hard to convince people, including judges, that the cause is the brain, separate from the self, in cases of mental illness/disease.

  3. Mark Bennett

    People are hard on child molesters because they want to prove that they are nothing like them.

    There is no “brain, separate from the self.” Free will is an illusion.

    1. Gideon Post author

      I’m not sure the overburdened criminal justice system could bear the weight of a fascinating philosophical discussion on free will and whether such a thing exists.

      It might be simpler to simply say: his brain is damaged, thus show mercy.

      The implication of pedophilia being organic is that there’s a little child molester in all of us and that, to many, is simply unthinkable. But there’s nothing novel about that: many people hold the same belief about drug users or murderers.

      1. Mark Bennett

        I don’t think the overburdened criminal justice system can survive without such a discussion.

        I think you’ll find a lot more people who can’t stomach the idea of being sexually attracted to a child than can’t stomach the idea of murdering someone or smoking crach.

  4. Rita R. Handrich

    This is such a terrific post! It’s a tough topic–we want to see sex offenders (and especially pedophiles) as evil & willful and responsible. Considering non-self-driven motivations for sexually assaulting a child goes against how most of us see ourselves–as protectors of children. The very idea that there is “a little child molester in all of us” is something most people would never tolerate, consider, allow. Even your saying it will make some dismiss you.

    My checkered career includes a 5 year stint working with men adjudicated NGRI–many of whom had murdered loved ones in the throes of major mental illness. When on medication with illness in check, they were not simply remorseful but appalled & terrified by the power of delusion/hallucinations over their behavior. I think applying this perspective of understanding to the brain-damaged pedophile may be a way to cut through the defenses of jurors.

    Specifically, I would show a history of no such behavior prior to brain damage. (S/he was like you before this happened!)

    Show the brain damaged area with simple visual aids of brain area/function that was damaged and explain that it manages impulse control including sexual impulses. (The brain is a mystery and concrete/simplified but accurate explanations go a long ways with jurors. If your client smiles or laughs inappropriately–also explain that as part of damage done so jurors do not attribute it to lack of remorse or evil.)

    Use expert testimony to introduce the idea of how horrifying it would be for your client if they were able to understand the impact of their behavior (“a there but for the grace of God go I” concept introduction) and identify a plan to contain/control/manage behavior & access to children in the future (risk to children is minimized).

    Your goal has to be to introduce tolerable empathy for the defendant, not for his/her behavior. You show jurors that children will be protected and allow jurors to therefore show appropriate mercy.

    It’s a wonderful and thoughtful post, an important topic and a scary one for most jurors to contemplate. All the more important for us to consider in preparation for eventual litigation advocacy. Thanks Gideon!

  5. Jim Keech

    Unfortunately, rather than being a mitigating factor, this theory can sometimes lead to harsher punishment. In Washington, an offender who has served his sentence may still be subject to a civil commitment proceeding wherein the State moves that the actions were the result of a “mental disease or disorder” and keep the person in a different unit of the prison until they can show that they are “cured” Which, with the State’s pshrinks doing the evaluating, will never happen.

    1. Bill Thompson

      My experience has been very similar. As elected officials, few judges are going to error on the side of mercy and view mental afflictions as truly mitigatory factors. When you inform the court that the defendant’s behavior is the result of some incurable, but managible mental discorder, the bulk of them will only hear and react to the “incurable” aspect of the condition and the belief that the offender will not be compliant with medication. Thus, the “public safety” side of the equation most always wins out. The true benefit of research into what makes mentally ill offenders tick will be in the recognition and treatment of the problem to avoid the entry of the afflicted into the criminal justice system.

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