In Joseph Conrad’s novel, Lord Jim, a seaman (Jim) is confronted with a mortal choice: jump into a lifeboat and be saved or drown with the ship. As the battered boat seems about to sink, Jim unconsciously leaps to the safety of a lifeboat occupied by the ship’s captain and its officers. The ship’s cargo of eight-hundred pilgrims is left to fate. Ironically, the vessel is towed to safety, leaving Jim to forever ponder his actions: Did he really choose to jump or was he pushed by events?
In our criminal justice system, the notion that we are authors of our actions is paramount. The Crown must always prove the accused acted voluntarily. In R. v. Parks, [1992] S.C.J. No. 71 (S.C.C.), Kenneth James Parks attacked and killed his mother-in-law and seriously injured his father-in-law while sleepwalking. Mr. Parks was acquitted because he was possessed in an involuntary, somnambulistic state. Mr. Justice LaForest courageously characterized the acquittal in the following terms:
It may be that some will regard the exoneration of an accused through a defence of somnambulism as an impairment of the credibility of our justice system. Those who hold this view would also reject insane automatism as an excuse from criminal responsibility. However, these views are contrary to certain fundamental precepts of our criminal law: only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction. The concerns of those who reject these underlying values of our system of criminal justice must accordingly be discounted[1].
Criminal justice is a real life morality play. Each day those alleged to have contravened one or more of a seemingly innumerable array of offences – everything from criminal code violations to simple by-laws designed to control human behavior – prostrate themselves before a system designed to pass judgment upon whether they should be held morally accountable. If an accused is guilty, the degree of moral blameworthiness is assessed.
This article presupposes that criminal responsibility, like moral accountability, requires persons to be the authors of their own actions. Using philosophy and science as a springboard for analysis, this paper explores voluntary action and intentionality in relation to criminal culpability. In light of certain theories about voluntariness and intentionality, the question is whether criminal culpability is attached in cases where arguably none exists.
If we imagine a continuum, on one end we have individuals who clearly contemplate their actions and voluntarily carry them out without any real external influence. These persons are obviously morally accountable for their conduct. If their behavior offends a principle of the criminal law, they may be subject to criminal sanction. At the other end of the spectrum, we have automated, somnambulistic type action which is by all accounts involuntary. Neither our system of criminal justice nor any theory of ethics equating moral responsibility with voluntary action attaches moral blameworthiness in these circumstances. Between these extremes are actions performed under duress, reflexive type action and non-reflexive unconscious acts committed prior to conscious awareness.
To further complicate matters, the criminal law also requires actions be intentional. The infiltration of intentionality into the voluntariness equation creates additional problems, for some actions, such as those performed whilst under duress may be intentional but not voluntary, where other actions, such as those committed reflexively may be involuntary and by implication unintentional. If the degree of voluntariness and intentionality is inextricably connected to the degree of moral blameworthiness, then it is important for players in the criminal justice system to fully appreciate each of these factors. The focus of this discussion is action performed prior to conscious awareness.
Philosopher John Gray effectively argues that many seemingly voluntary actions committed under the auspices of conscious awareness are in fact involuntary, unconscious acts. As he says, “[o]ur acts are end points in long sequences of unconscious responses”, arising “…from a structure of habits and skills that is almost infinitely complicated”[2]. Drawing from the work of scientists such as Benjamin Libet, Gray postulates that we do not act in the way we think we do. Though the human brain processes upwards of 14 million bits of information per second, the bandwidth of consciousness is only around eighteen bits; meaning that we are actually only conscious of about a millionth of the information utilized by the brain at any given point in time. Additionally, neuroscientific research has demonstrated that the electrical impulse from the brain initiating action occurs about a half-second before a conscious decision is made – a phenomena seriously jeopardizing the notion that moral agents may be acting voluntarily in certain circumstances. With this in mind, one puzzles: was Lord Jim able to act otherwise than he did? If the impulse prompting the jump was initiated a half-second prior to Jim becoming consciously aware of the decision, one wonders whether Jim truly decided anything at all.
In the theatre of justice, Lord Jim’s jump is reenacted regularly. Whether the jump is a punch, push, shove or a kick, in certain circumstances the action may be initiated outside the purview of consciousness. Given the basic axiom that culpable action must be intentional and voluntary – the fact that some actions may be performed outside the spotlight of consciousness may impact decisions in certain kinds of criminal cases. For example, in R. v. Bennett, [2006] A.J. No. 540 (Alta. P.C.) the accused was convicted after trial on the basis of a single punch that knocked the victim unconscious. By all accounts, the assault appeared to have been a single, unplanned and momentary act. This begs the question: if the impulse to punch was initiated a half-second prior to Mr. Bennett becoming conscious of the decision, did he truly decide anything at all? Put another way: was the act actually voluntary in the sense that it was driven by a conscious agent, capable in that instant of choosing otherwise? John Gray would suggest that perhaps the answer is no. In his words, “[w]hen we are on the point of acting, we cannot predict what we are about to do. Yet when we look back we may see our decision as a step on a path on which we were already bound” [3].
Of course, criminal culpability is premised upon evidence and proof. In the absence of evidence, a judge is not entitled to conjure answers to murky questions such as whether the accused was a voluntary actor or not. Strict adherence to evidentiary requirements demanding proof in criminal cases is a core value in our criminal justice system. Indeed, it is the mechanism by which we guard against wrongful conviction.
The Parks case offers useful insight for thinking differently about voluntariness and intentionality. Kenneth Parks was relieved of criminal responsibility for the charge of murder based upon the defence of automatism. The events leading up to the killing were anything but instantaneous. While asleep, Mr. Parks drove his vehicle 23 kilometers to the residence of his parents-in-law, entered the home, killed his mother-in-law and seriously injured his father-in-law while they slept. After the killing, Mr. Parks awoke to a real life nightmare. Realizing what he had done, he drove to the local police detachment and confessed:
I just killed someone with my bare hands; Oh my God, I just killed someone; I’ve just killed two people; My God, I’ve just killed two people with my hands; My God, I’ve just killed two people. My hands; I just killed two people. I killed them; I just killed two people; I’ve just killed my mother-and father-in-law. I stabbed and beat them to death. It’s all my fault.
There is no question Kenneth Parks was the weapon that caused the death and injury to his parents-in-law. The physical evidence along with the confession seemingly supplied an overwhelming case for the Crown. Though the blood on his hands corroborated the blood in his confession, it was the blood in his dreams that resulted in him being acquitted. Performing in obedience to a primordial circadian rhythm, Kenneth Parks’ actions were neither voluntary nor intentional.
Philosophy and science offer criminal law potentially novel ways of thinking about complex issues. Though ordinary views of intentionality and voluntariness apply most of the time, there are occasions where it may be prudent to think differently. The criminal law struggles to keep pace with medical, scientific and philosophical developments; in some cases, antiquated views relating to commonly held beliefs about important issues such as voluntariness and intentionality may result in improper sentencing or perhaps even wrongful conviction. If Kenneth Parks could perform such uncharacteristic action while asleep, is it really so hard to believe that in some cases persons might perform uncharacteristic action in the flash of a moment prior to conscious awareness? This paper suggests the answer is no. If there is any truth to this proposition, then it is important for all participants in the criminal justice system to keep an open mind as to the realities of the human condition – even if such considerations smack against commonly held beliefs about complex phenomena such as intention and voluntariness.
Perhaps thinking differently would have made a difference to the defence of Mr. Bennett? Perhaps it would have made a difference to Lord Jim? “Stuck in an incessant oscillation between the perspective of an actor and that of a spectator, Lord Jim is unable to decide what it is he has done. He hopes to dredge from consciousness something that will end his uncertainty. He is in search of his own a character. It is a vain search”[4].
Submitted by:
David G. Chow
Fagan & Chow
Barristers
http://www.faganandchow.com/
In our criminal justice system, the notion that we are authors of our actions is paramount. The Crown must always prove the accused acted voluntarily. In R. v. Parks, [1992] S.C.J. No. 71 (S.C.C.), Kenneth James Parks attacked and killed his mother-in-law and seriously injured his father-in-law while sleepwalking. Mr. Parks was acquitted because he was possessed in an involuntary, somnambulistic state. Mr. Justice LaForest courageously characterized the acquittal in the following terms:
It may be that some will regard the exoneration of an accused through a defence of somnambulism as an impairment of the credibility of our justice system. Those who hold this view would also reject insane automatism as an excuse from criminal responsibility. However, these views are contrary to certain fundamental precepts of our criminal law: only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction. The concerns of those who reject these underlying values of our system of criminal justice must accordingly be discounted[1].
Criminal justice is a real life morality play. Each day those alleged to have contravened one or more of a seemingly innumerable array of offences – everything from criminal code violations to simple by-laws designed to control human behavior – prostrate themselves before a system designed to pass judgment upon whether they should be held morally accountable. If an accused is guilty, the degree of moral blameworthiness is assessed.
This article presupposes that criminal responsibility, like moral accountability, requires persons to be the authors of their own actions. Using philosophy and science as a springboard for analysis, this paper explores voluntary action and intentionality in relation to criminal culpability. In light of certain theories about voluntariness and intentionality, the question is whether criminal culpability is attached in cases where arguably none exists.
If we imagine a continuum, on one end we have individuals who clearly contemplate their actions and voluntarily carry them out without any real external influence. These persons are obviously morally accountable for their conduct. If their behavior offends a principle of the criminal law, they may be subject to criminal sanction. At the other end of the spectrum, we have automated, somnambulistic type action which is by all accounts involuntary. Neither our system of criminal justice nor any theory of ethics equating moral responsibility with voluntary action attaches moral blameworthiness in these circumstances. Between these extremes are actions performed under duress, reflexive type action and non-reflexive unconscious acts committed prior to conscious awareness.
To further complicate matters, the criminal law also requires actions be intentional. The infiltration of intentionality into the voluntariness equation creates additional problems, for some actions, such as those performed whilst under duress may be intentional but not voluntary, where other actions, such as those committed reflexively may be involuntary and by implication unintentional. If the degree of voluntariness and intentionality is inextricably connected to the degree of moral blameworthiness, then it is important for players in the criminal justice system to fully appreciate each of these factors. The focus of this discussion is action performed prior to conscious awareness.
Philosopher John Gray effectively argues that many seemingly voluntary actions committed under the auspices of conscious awareness are in fact involuntary, unconscious acts. As he says, “[o]ur acts are end points in long sequences of unconscious responses”, arising “…from a structure of habits and skills that is almost infinitely complicated”[2]. Drawing from the work of scientists such as Benjamin Libet, Gray postulates that we do not act in the way we think we do. Though the human brain processes upwards of 14 million bits of information per second, the bandwidth of consciousness is only around eighteen bits; meaning that we are actually only conscious of about a millionth of the information utilized by the brain at any given point in time. Additionally, neuroscientific research has demonstrated that the electrical impulse from the brain initiating action occurs about a half-second before a conscious decision is made – a phenomena seriously jeopardizing the notion that moral agents may be acting voluntarily in certain circumstances. With this in mind, one puzzles: was Lord Jim able to act otherwise than he did? If the impulse prompting the jump was initiated a half-second prior to Jim becoming consciously aware of the decision, one wonders whether Jim truly decided anything at all.
In the theatre of justice, Lord Jim’s jump is reenacted regularly. Whether the jump is a punch, push, shove or a kick, in certain circumstances the action may be initiated outside the purview of consciousness. Given the basic axiom that culpable action must be intentional and voluntary – the fact that some actions may be performed outside the spotlight of consciousness may impact decisions in certain kinds of criminal cases. For example, in R. v. Bennett, [2006] A.J. No. 540 (Alta. P.C.) the accused was convicted after trial on the basis of a single punch that knocked the victim unconscious. By all accounts, the assault appeared to have been a single, unplanned and momentary act. This begs the question: if the impulse to punch was initiated a half-second prior to Mr. Bennett becoming conscious of the decision, did he truly decide anything at all? Put another way: was the act actually voluntary in the sense that it was driven by a conscious agent, capable in that instant of choosing otherwise? John Gray would suggest that perhaps the answer is no. In his words, “[w]hen we are on the point of acting, we cannot predict what we are about to do. Yet when we look back we may see our decision as a step on a path on which we were already bound” [3].
Of course, criminal culpability is premised upon evidence and proof. In the absence of evidence, a judge is not entitled to conjure answers to murky questions such as whether the accused was a voluntary actor or not. Strict adherence to evidentiary requirements demanding proof in criminal cases is a core value in our criminal justice system. Indeed, it is the mechanism by which we guard against wrongful conviction.
The Parks case offers useful insight for thinking differently about voluntariness and intentionality. Kenneth Parks was relieved of criminal responsibility for the charge of murder based upon the defence of automatism. The events leading up to the killing were anything but instantaneous. While asleep, Mr. Parks drove his vehicle 23 kilometers to the residence of his parents-in-law, entered the home, killed his mother-in-law and seriously injured his father-in-law while they slept. After the killing, Mr. Parks awoke to a real life nightmare. Realizing what he had done, he drove to the local police detachment and confessed:
I just killed someone with my bare hands; Oh my God, I just killed someone; I’ve just killed two people; My God, I’ve just killed two people with my hands; My God, I’ve just killed two people. My hands; I just killed two people. I killed them; I just killed two people; I’ve just killed my mother-and father-in-law. I stabbed and beat them to death. It’s all my fault.
There is no question Kenneth Parks was the weapon that caused the death and injury to his parents-in-law. The physical evidence along with the confession seemingly supplied an overwhelming case for the Crown. Though the blood on his hands corroborated the blood in his confession, it was the blood in his dreams that resulted in him being acquitted. Performing in obedience to a primordial circadian rhythm, Kenneth Parks’ actions were neither voluntary nor intentional.
Philosophy and science offer criminal law potentially novel ways of thinking about complex issues. Though ordinary views of intentionality and voluntariness apply most of the time, there are occasions where it may be prudent to think differently. The criminal law struggles to keep pace with medical, scientific and philosophical developments; in some cases, antiquated views relating to commonly held beliefs about important issues such as voluntariness and intentionality may result in improper sentencing or perhaps even wrongful conviction. If Kenneth Parks could perform such uncharacteristic action while asleep, is it really so hard to believe that in some cases persons might perform uncharacteristic action in the flash of a moment prior to conscious awareness? This paper suggests the answer is no. If there is any truth to this proposition, then it is important for all participants in the criminal justice system to keep an open mind as to the realities of the human condition – even if such considerations smack against commonly held beliefs about complex phenomena such as intention and voluntariness.
Perhaps thinking differently would have made a difference to the defence of Mr. Bennett? Perhaps it would have made a difference to Lord Jim? “Stuck in an incessant oscillation between the perspective of an actor and that of a spectator, Lord Jim is unable to decide what it is he has done. He hopes to dredge from consciousness something that will end his uncertainty. He is in search of his own a character. It is a vain search”[4].
Submitted by:
David G. Chow
Fagan & Chow
Barristers
http://www.faganandchow.com/
