I have been watching the French crime series Spiral (Engrenages) . The title refers to the way an investigation into a prostitute’s murder – she is dumped naked on a refuse heap – coils through the many layers of French society from its violent streets to its ruthless bureaux of power. At one point a baby is dismembered by its nanny. The judge – thin, drawn, dangerously animated – flings back the psychiatric report, refusing to accept the finding of insanity. Criminal responsibility is a matter for the Court, he snaps, not for doctors. It is a legal matter not a medical one.
In November this year an Italian judge, clearly not sharing the views of his fictional French colleague, reduced Abdelmalek Bayout‘s sentence on the grounds that he had a genetic predisposition to aggression. Bayout had stabbed Walter Perez to death for laughing at his Kohl-rimmed eyes. Following reports from two neuroscientists showing both brain abnormalities and gene mutations linked to aggression, the Judge decided that his culpability was, at least partially, impaired. Setting aside the question of how one can be part-responsible for an action, the judge was particularly impressed by the presence of mutations in the gene encoding the enzyme monoamine oxidase A (MAOA), which affects the levels of specific neurotransmitters responsible for passing signals between brain cells. Low levels of these neurotransmitters have been associated with abnormal levels of aggression.
Now a predisposition is not a command. As Professor Steve Jones, a geneticist at UCL, quipped recently in Nature, given that ninety per cent of murders are committed by people with Y chromosomes, should men be given shorter sentences than women? Thirty per cent of Caucasian males also have the same MAO-A variant as Bayout, but few of them turn to murder: to say there is a correlation between a gene and an action is not the same as saying that the gene is its cause. Presumably as well the criminal justice system is there to encourage us to resist our darker dispositions, not to flatter them.
As for me I am much better at taking responsibility for the good things I do than for the bad. I suspect this might be widespread. For most of us, the ascription of blame is uncomfortable, sometimes agonisingly so. I can recall a character from Golding’s Rites of Passage so deeply ashamed by a drunken act of sexual transgression that he takes to his cabin, curls up on his bunk and dies. Conrad’s Lord Jim is a long meditation on one man’s struggle to redeem himself after an act of cowardice. Such a view of character and of responsibility is out of step with the temper of our times. We are uneasy with judgement. Politicians no longer fall on their swords. Behind the vicious act we seek the soft mitigation of circumstance. To this end science offers some appealing tools. If the murderer is in thrall to his genes, if the sex addict is driven by uncontrollable compulsion, then they are not responsible for their actions and the harshness of judgement can be suspended.
The concept of moral responsibility takes us into deep and murky waters, but I want to draw attention to a small but important difficulty here. While the flight from judgement is appealing it may have some less appealing consequences. Following Aristotle we can say that moral responsibility refers to actions for which it is reasonable to ascribe reactions of praise or blame. Two things are necessary. Responsibility requires both a moral agent – one capable of moral discernment – and that the moral agent is free to make a choice. According to the judge, Bayout’s capacity to act morally was undermined by his genes. Internal factors constrained his choices and he could therefore not be held fully responsible for his actions. But in a community such as ours, freedom is a right enjoyed by moral agents and jealously defended by the judiciary. Take away the possibility for blame – undermine the moral agent – and you also take away the entitlement to freedom, for they are linked. Suspending judgement can feel like a kindness. But be wary. For with it can go our right to be free.
Julian Sheather is ethics manager, BMA. The views he expresses in his blog posts are entirely his own.