Rethinking the voluntary act requirement: Implications from neuroscience and behavioral science research

Abstract

Criminal responsibility in the American legal system requires the presence of an actus reus-a harmful act that was committed voluntarily-and a mens rea, or guilty mind. Courts frequently consider questions surrounding mens rea but rarely question whether an act was committed voluntarily. Thus, courts presume that acts have been committed voluntarily and with an ill will; retribution, which serves the primary basis for punishment in the USA, relies on this presumption. Research in neuroscience and the behavioral sciences, however, suggests that this presumption is flawed and not sufficiently robust to justify punishment that is grounded in retribution. In this paper we discuss the presumption of voluntariness and free will inherent in the law, provide examples of how the courts have conflated actus reus and mens rea and the consequences of doing so, and the implications of neuroscience and behavioral science research for actus reus (also known as the voluntary act requirement). Finally, we propose re-conceptualizing punishment within a consequentialist, empirically-based framework that does not rely on folk psychological notions about human behavior and reinvigorates the actus reus as the foundational requirement for legal responsibility.

Fight, flight, and free will: The effect of trauma informed psychoeducation on perceived culpability and punishment for juvenile and adult offenders

“…A common misconception about abandoning a belief in free will and retribution and moving towards consequentialism is the fear that nobody can be held responsible for their actions, since factors outside of their control determined their behavior (Denno, 1988). However, challenging the notion that an offender freely chose to commit an act does not necessitate them not being held legally responsible for their actions (Gordon & Fondacaro, 2018). Under consequentialism, an offender may still be held accountable for their illegal behavior in order to keep society safe, or in order to deter them or others from committing crime, or until they can be rehabilitated.…”

“…A conviction through our current legal system generally necessitates the existence of both mens rea (a guilty mind) and actus reus (a bad act). Mens rea includes four hierarchical categories: purpose, knowledge, reckless, and negligent-each grounded in folk psychology and common sense notions that most human behavior is guided by conscious awareness and the individual's rational capacity to freely choose whether or not to obey the law (Gordon & Fondacaro, 2018;Koppel et al, 2018;Morse, 2008). Beattey and Fondacaro (2018) examined mock jurors' ability to reliably and accurately judge a defendant's mens rea and found that "in a surprisingly high percentage of cases across many conditions, individual decision-makers are indeed likely to attribute the most culpable mental state (purpose) to defendants, even when the facts on the record are judged by legal experts to depict no more than negligent or reckless conduct" (p. 457).…”

Integrating Neuroscience in Criminal Law: The Dutch Situation as an Example

“…Much has been written in the literature about how to respond to this "attack (cf. Gordon & Fondacaro, 2018).…”

A jury of scientists: Formal education in biobehavioral sciences reduces the odds of punitive criminal sentencing

“…Thus, as science has begun unravelling the web of influences on behavior, stemming from biopsychosocial elements that can be conceptualized as factors outside one's immediate control (Katz & Fondacaro, 2021), advances in our understanding of the dual impact of biology and experiences on behavior may be increasingly important to consider when considering punishment (Allen et al, 2019;Greene & Cohen, 2004;Shariff et al, 2014). Based on this literature, a person's failure to exhibit a desirable or expected behavior may not reasonably fully be explained in terms of the choices of a free agent, but must also be considered in the context of underlying biological characteristics which bear on behavior due to both internal and external factors (Gordon & Fondacaro, 2018). Indeed, Ling et al (2019) argue that the evidence of abnormal neurobiological characteristics in people with violent and criminal tendencies may lead us to increasingly recognize a lack of will and affected moral responsibility in offenders with such characteristics.…”

“…It is important to know that, while evidence of an inability to freely choose one's behavior could minimize justifications for retributive punishment (Shariff et al, 2014), challenging the notions of free will and moral responsibility does not necessitate that an individual cannot face consequences for their behavior (Gordon & Fondacaro, 2018).…”