Free will is an illusion.

I’d argue the point, but I guess you just had to post that, huh?

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!

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.

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.

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.