Oscar Pistorius
Most of us have woken at night to an unfamiliar, scary sound. The grogginess of sleep does little to dampen the surge in adrenaline. In a moment, the heart is pounding at a rate that is frightening in itself. This is the “fight or flight” response: we enter a state of hypervigilance.
This is the result of millions of years of evolution. The better our fight or flight system, the more likely we are to escape from or overcome an adversary. There is a variation in the threshold at which we begin to experience that sense of threat, and certain life events can also make us more sensitive to it.
At his murder trial this week, Oscar Pistorius was ordered to undergo psychiatric tests. These will determine whether any anxiety he experienced on the night he killed his girlfriend, Reeva Steenkamp, was related to an existing problem such as a general anxiety disorder. If it was, then it is possible he could be absolved of any criminal responsibility for her death.
For most of human history, differences in the way we think, feel and behave were thought of as personality traits. When these were extreme, the person was labelled mad (or sometimes a prophet). But the fearful person – like the shy person, the disobedient person or the easily distracted person – would not have been considered ill.
Today, many of these types have been redefined as medical conditions. This tendency is controversial, but can be the way by which those whose thoughts or feelings make them distressed, or a danger to themselves or others, get help. What is increasingly clear is that it has seismic implications for the law.
The principle that an altered state of mind can excuse a crime is built into many legal systems. The cause could be drink, a brain tumour that distorts judgment, or an episode of mental illness. But, as the empire of psychiatric diagnoses expands, taking in ever finer variations in personality, this will become much more difficult to navigate.
The argument isn’t new: lawyers have long argued over what constitutes an impairment of reason. What is changing is the ability of scientists to identify tiny differences in the brains and bodies of subjects – and to link those to behaviour.
A Western cultural bias to “hard” data means that the biological carries more weight than the biographical with judges, although the two are inextricably linked. If a brain tumour can be used as a defence, then why not poor functioning in the prefrontal cortex, or reduced blood flow in the angular gyrus?
In the United States, the number of judicial opinions citing neurological evidence has increased by several hundred percent since 2005, says Nita Farahany, professor of law and philosophy at Duke University.
Judgment is certainly altered by anxiety. The levels of important neuro-transmitters may change and, over time, the mass of certain structures in the brain too.
We cannot know what an “un-anxious” Pistorius would have done that night. The question is absurd, though, because the real Pistorius is anxious. Should that person not be held to account for any crime he may have committed?
With our ability to scrutinise the brain improving all the time, it will become more difficult to maintain the fiction that the mind and body operate separately. Yet, as the line between disease and personality blurs, traditional ideas of blame and responsibility could fall apart.
Should we then abandon blame? Gwen Adshead, a consultant at Broadmoor Hospital, London, has written that “as clinicians we know mental illness does not necessarily abolish the capacity to form meaningful and competent intentions”.
Farahany believes that moral accountability is essential, even if we get to a point where we can closely map behaviour to biology. “We have some self-direction,” she says. “While it may be limited, we are still clearly capable of making some decisions. And, without blame, society can’t stigmatise the decisions and actions it wants to prevent.”
New techniques make the correlations between biology and behaviour much clearer. But, until we are ready to give up the idea of a mind that can choose, even in its darkest moments, blame will have to be part of the story. – © Guardian News & Media 2014
David Shariatmadari is a deputy editor on the comment desk of the Guardian.