The claim of loss of self-control: some challenges of the genetic-based defence to criminal responsibility Amir Bastani A thesis submitted for the degree of Doctor of Philosophy at the University of Otago, Dunedin, New Zealand March 2015 Abstract In this thesis, I will focus on one important piece of genetic evidence, concerning the Monoamine Oxidas Acid A (MAOA) gene, unscientifically known as the ‘warrior’ gene. In 2002, a famous study by Caspi and his colleagues suggested that individuals who have one variation of MAOA, and were severely maltreated during childhood, have a greater predisposition to antisocial behaviour compared to other groups in the study. It was the first study to measure the effect of the combination of genetic and environmental factors (GxE) on the further development of antisocial behaviour. I will refer to this discovery as GxE evidence. A fundamental dispute, influenced by scientific advances such as the discovery of GxE, is the age-old philosophical schism between free will and determinism. It has been suggested that science will be able to indicate that agents’ actions are determined by their genes and the notion of free will is an illusion. That claim has alarming implications for the criminal law. The fundamental premise of criminal law is that people are responsible for the outcome of their conduct. That responsibility depends on the extent to which agents knowingly and voluntarily choose the outcome of their conduct. If science can indicate that human’s conduct, far from being knowingly and voluntarily chosen, is predetermined genetically, then considering any role for criminal responsibility must be controversial. A part of this thesis will consider the legal response to the free will/determinism debate. Setting aside the imperious challenges of science, and the free will/determinism debate, I will look at other scientific challenges which are relevant to the present categories of criminal responsibility and which can improve, but not dictate, the criminal law. Specifically, I will focus on the issue of loss of self-control. That issue has been chosen because scientific researchers have indicated that individuals’ ability to exercise their self-control is affected to some degree by GxE. There are other advances in science which trigger the issue of loss of self-control but I am looking at only GxE evidence. Loss of self-control can be considered as the basis for two defences. Firstly, loss of self-control can take the form of a claim of complete inability to control impulses. In some jurisdictions the total inability to control impulses is recognised as a full defence, called volitional insanity (V-insanity). In those jurisdictions, if an individual is unable to completely control his/her impulses, he/she is not considered criminally responsible. In stark contrast, neither New Zealand nor English law – the focus of this thesis – recognises V-insanity; they recognise cognitive insanity (C-insanity) only. C- insanity is only a defence where a person is unable to appreciate the nature – factual or moral – of his/her conduct. As a result of the non-recognition of V-insanity, if an i individual is not able to control his/her impulses, and if he/she cannot establish any other defences, the person will be treated as fully criminally responsible. For the first time in New Zealand law, I will develop an argument in favour of the introduction of V-insanity as a defence. The second form of the claim of loss of self-control, which is relevant to GxE evidence, is the claim of significant impairment in controlling impulses. This is the basis for the defence of diminished responsibility (DR) as it is recognised under some common law jurisdictions such as English law. The difference between DR and V-insanity is that for V-insanity it is impossible for a person to control his/her impulses but in the case of DR it is not totally impossible for a person to control them. Instead, in the case of DR, it is seriously difficult for a person to control his/her impulses. Under English law DR, which is available only for murder charges, is a partial defence. It reduces, but does not totally exempt, a person’s criminal responsibility. However, DR is not accepted under New Zealand law and a person who has significant difficulties in controlling his/her impulses, is considered fully criminally responsible. In this thesis, building on the academic literature, I will argue that New Zealand should adopt the DR defence. Having argued that New Zealand should adopt the defence of V-insanity and DR, I will analyse GxE evidence as the basis for those defences. To date, there has been no such discussion in the scholarly discourse. It is not my aim to definitely determine whether GxE evidence as the basis for the two defences should be accepted or not. Rather, my goal is to highlight legal requirements for establishing those defences where GxE is concerned. The legal prerequisites I propose are not just applicable to the assessment of GxE as a basis for the aforementioned defences, but also to any form of genetic defence. ii Preface This doctoral research was inspired by my 2009 Masters dissertation, entitled ‘Biological Factors of Antisocial Behaviour; with the Emphasis on Genetic Factors’. In that dissertation, I reviewed the contemporary scientific literature which suggested a genetic contribution to antisocial behaviour. Afterwards, my curiosity grew and I became interested in the issue of criminal responsibility of genetically predisposed criminals. As the issue of genetic predisposition to crime was exceedingly broad, I decided to specifically consider one famous example of genetic predisposition to antisocial behaviour; the combination between a set of genetic and environmental factors as they relate to antisocial behaviour. To explore this issue, I applied to undertake doctoral studies at the University of Otago’s Law Faculty, New Zealand, in particular at the Faculty’s Centre for Law and Policy in Emerging Technologies. I felt privileged to have that application accepted.1 1 For citation in this thesis, I used the New Zealand Law Style Guide which is published by the New Zealand Law Foundation. This is available at http://www.lawfoundation.org.nz/style-guide/ iii Dedication To my mother (Shahrbannoo Mehraban), my father (Abdollah Bastani), my wife (Vahideh Karimirad) and my son (Nikan Bastani) iv Acknowledgement I would like to thank to the University of Otago for awarding me a generous Otago Doctoral Scholarship which has supported me throughout my study. I also wish to thank the University’s Faculty of Law for an extra two months’ funding to complete this research. I also wish to thank the Faculty for financial assistance to travel around New Zealand to attend, and present, at conferences. This research would not have been finished without the support of a number of thoughtful people. I wish to express my gratitude to my supervisors, Professor Mark Henaghan, the Faculty’s Dean, and Associate Professor Colin Gavaghan, the director of the New Zealand Law Foundation Centre for Law and Policy in Emerging Technologies. Both my supervisors provided me with great insights and guidance in relation to academic research and writing. Special thanks to Dr. Gavaghan for his guidance and unwavering help from the beginning to end. Nevertheless, any mistakes in the thesis are mine only. I also wish to express my thanks to all staff at the University of Otago, particularly the law librarians, for their help in obtaining research materials, not only from New Zealand, but also from overseas. Also, special thanks to Jessica Palmer, the Faculty’s Postgraduate Coordinator for her near endless support. I am obliged to Professor Martin Kennedy, the director of the Carney Centre for Pharmacogenomics and the Gene Structure and Function Lab, based at the University of Otago, for his guidance in analysing genetic literature. I would like to acknowledge Professor Grant Gillett, from the Bioethics Centre of the University of Otago, Professor John Dawson and Simon Connell, both from the Faculty of Law of the University of Otago and finally John Pearson, from the Department of Population Health of the University of Otago, for very helpful comments on earlier drafts of part of this thesis. I wish to thank two blind reviewers of the peer-reviewed Journal of New Genetics and Society for their helpful comments on my paper which was extracted from a Chapter of this Thesis. Their feedback helped me to strengthen my argument not only in the paper which was submitted for publication, but also in the relevant Chapter of my thesis. My sincere thanks to Drew Snoddy and Dr. Mary Foley for their invaluable efforts in proofreading the final draft of this thesis and providing me with constructive feedback. Next, I am grateful for the opportunity to have met the staffs and postgraduate students at the Faculty of Law. I am grateful for the Faculty’s collegial environment. I would like to express my appreciation for my father and mother for their sacrifices long ago. I am grateful to my wife, Vahideh Karimirad. Although undertaking her own doctoral studies, she has provided me with support throughout. Special thanks to her for her extraordinary love and support at the last stage of writing this thesis while she was also taking care of our new born son, Nikan Bastani. I would like to thank Nikan for his delightful smiles which relieved all my tension. I would like to thank all of my family in v Iran for their thoughts and emotional support while I have been undertaking my doctoral study. Finally, it would not have been possible for me to finish this thesis without the support of a number of friends.