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.]