NeuroLaw: Do we have a responsibility to use neuroscience to inform law?

The airwaves buzzed last week on BBC radio about biological predispositions towards violence, brain-based lie detection systems, tumors associated with pedophilia, and psychopaths.  The BBC looked to the Neuroethics Centre’s own Walter Sinott-Armstrong for his perspective on neuroscience in law in light of the release of the Royal Society’s recent report on the topic (on which he acted as a reviewer). The short and sweet BBC podcast can be found here (the segment on NeuroLaw begins at 12:52). While much of the debate so far has focused on the dangers neuroscience might bring to the legal system and therefore on caution in the adoption of neuroscience in legal settings, Walter Sinott-Armstrong pointed out that the potential to help is also huge. Neuroscience investigating the brain networks active in chronic pain could help build evidence that someone is suffering chronic pain. It might compliment actuarial risk estimates to help better estimate future dangerousness when offenders are up for parole (an area where expert opinion by psychologists is notorious wrong 2 out of 3 times). And it may help identify cases of shaken-baby syndrome.  And with this potential, it raises the intriguing question: do we have a responsibility to use neuroscience in law?

There are, of course, real and important limitations to the type of information neuroscience is able to provide: often it is based on group aggregate data, so it informs on difference in the average person between groups when intra-group variation might be large and important; studies that link activation of a certain series of brain areas when a person is in pain do not necessarily mean that we can conclude that a person is (not) in pain if these areas are (not) activated – some other brain process might be to blame. Many of these problems, however, are not conceptually new to law and are often hidden implicitly in evidence routinely presented to jury members – just because the defendant was seen leaving the crime scene does not mean that she committed the crime, rather it might be rephrased that a person falling within the group “seen leaving the crime scene” is on average more likely to have committed the crime. Whether in neuroscientific or traditional means it is necessary, therefore, to build a case with multiple types of evidence. It might even be argued that it is an advantage that in neuroscience these assumptions and limitations are made more obvious.

A really meaty dilemma, however, might be best highlighted by considering a case that has gained much exposure in the area of NeuroLaw, and was discussed at the beginning of the BBC segment as well as in the Royal Society report (adapted from the Royal society report).

[A man] was found to have developed unusual sexual arousal behaviours and had begun to secretly collect child pornography. He was eventually removed from the family home for making sexual advances towards his step-daughter, and was subsequently diagnosed with paedophilia and convicted of child molestation. […]

 

The evening before sentencing, the man was admitted to hospital with a headache and balance problems. Neurological examination, which included magnetic resonance imaging (MRI) revealed a cancerous tumour that displaced the right orbitofrontal cortex. The orbitofrontal cortex is involved in the regulation of social behaviour. Lesions acquired in early life can lead to an impedance in the acquisition of social- and moral knowledge, which may result in poor judgment, reduced impulse control, and antisocial personality. A similar acquired antisocial personality occurs with adult onset damage, but previously established moral development is preserved. Nevertheless, poor impulse regulation is thought to lead to poor judgement and sociopathic behaviour. Disruption of this system can result in decision-making that emphasizes immediate reward rather than long-term gain, impairing the subject’s ability to appropriately navigate social situations.

 

Following examination the tumour was removed and after several days the patient’s balance improved and he was able to complete a Sexaholics Anonymous programme. Seven months later the patient was deemed to no longer be a threat to his stepdaughter and returned home.

 

Almost a year later, the man reported persistent headaches and that he had begun secretly collecting child pornography again. Tumour recurrence was revealed by MRI studies and surgery was performed to remove it for a second time. Once again the patient’s behaviour returned to normal after a couple of days.

If it matters to us (in terms of moral responsibility) that the man’s pedophilic behavior seems to result from the compression of his orbitofrontal cortex by the tumor, an interesting set of questions follow. I only briefly introduce them here in hopes that you, the readers of the Practical Ethics Blog, will offer your insights in the discussion that follows in the comments section (or around the holiday or new year dinner table).

1)      Before the age of brain scans, the man’s tumor would have gone unnoticed and he would have been punished to the full extent. Indeed, it is likely that tumors have gone unnoticed precisely like this. To what extent does the creation of the technology to detect these morally significant tumors create a responsibility to check for them?

2)      Dr. Mackintosh pointed out in the podcast that it is important that the tumor could be removed: “if it had not been possible to remove the tumor, then one would, surely, at least consider the argument that he had to be kept in prison for public protection.” If, as Dr Mackintosh’s qualification and hesitation might suggest, this detainment is to some extent objectionable, then to what extent does the detection of a neurobiological factor in criminal behavior create a responsibility to quickly and vigorously search for ways to avoid this preventive detainment (in this case, develop medical techniques to remove the tumor)?

3)      If it is likely that there exist other biological mechanisms that have a similar morally significant impact on criminal behavior, and that individuals are currently being locked away in prison without these mechanisms coming to light, then to what extent does this create a responsibility to research into these other biological mechanisms?