Next: The concept of mens rea and free will and the law is looked at in a local context, as well as the division between criminal law and civil law; complicity and mandatory sentencing; the age of criminal responsibility; silence and gratuitous concurrence; irrelevant factors in judicial decisions; revolving-door justice; all-white juries; legal aid; defunding of mediation services; and lack of diversion in remote communities.
Mens rea and free will
Mens rea is one of the two pillars on which our criminal law is based. It is for this reason that it evokes an awe that is not necessarily healthy or useful. I do not suggest doing away with the concept, but I do recommend doing away with the awe. A healthy dose of scepticism is called for.
Social media algorithms, artificial intelligence, and our own genetics and environments are factors that influence us without us necessarily being aware of this.
It raises the question: are offenders responsible for their actions? Free-will sceptics argue that no-one is truly responsible for any crime, no matter how serious. I suggest that the formative social environments that influence us leave no room for free will.
This view is not held by the courts, nor by the public. The criminal justice system presumes that an offender is free to decide whether to engage in criminal behaviour – or not. The courts acknowledge that there are exceptions.
Those who were very young, acted upon an impulse of automatism, were sleepwalking or were mentally ill when the incident occurred should not be held responsible for their offences. These cases are seen as lacking free will and the ability to reason. The court caters for the doubt about whether these cases are sufficiently rational to be tried at all, to be fit for a person to stand trial. However, the law sees most defendants as able to participate in a trial. Still, it recognises that others cannot because their condition may deprive them of the free will needed to instruct their lawyers, present their version of events, or follow court proceedings.
With the exception of the work of David Hodgson, Australian legal jurisprudence has not dealt with the questions concerning the origins of human behaviour.
When one reviews case law in which courts attempt to create exceptions to punishment, courts debate the defences (insanity, duress, coercion). Still, they do not analyse why these defences differ from other modes of behaviour. While the policy goals for punishment are
debated, they have always shown a strong preference for free will as the solid basis for their underlying philosophy.
I propose a new understanding of the law’s various frameworks for holding offenders, especially vulnerable offenders, responsible, or doing away with them altogether, while retaining some legal mechanisms for incarceration for the purpose of healing and rehabilitation. This view may be seen as revolutionary concerning prescriptions for the legal system in a way that compatibilism and libertarianism are not.
The connection between trauma in the body and brain, because of disadvantage, and mens rea is seldom mentioned. The consequence of free-will scepticism is that
mens rea becomes the Achilles heel of criminal law. Mens Rea defences are automatism, duress, mistake, lawful correction, mental illness, necessity, and self-defence. Note that trauma is not on this list. This is a problem. Someone who behaves in an anti-social manner as the result of trauma in the brain may be acting automatically because of that trauma. They may be acting under duress of that trauma, but such reasoning is not likely to be accepted in courts. Someone who is traumatised is not insane or mentally ill. Hence, the full weight of criminal law comes down on the young and vulnerable, traumatising them
further and setting them up for further catastrophe and reoffending.
This is why Michael Zacharski in Mens rea, the Achilles’ heel of criminal law, asks: “How is it possible that contemporary jurisprudence has not developed a more dependable legal means of recognising a defendant’s state of mind?
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