This book examines core issues related to legal insanity, integrating perspectives from psychiatry, law, and ethics. Various criteria for insanity are analyzed and recommendations for forensic psychiatric and legal practice are offered. Many legal systems have an insanity defense, in one form or another. Still, it remains unclear exactly when and why mental disorders affect a person’s moral or criminal responsibility. Questions addressed in this book include: Why should insanity be a component of (...) our legal system? What should be the criteria for an insanity defense? What would be the reasons for abolishing it? Who should bear the burden of proof? Furthermore, the book discusses the impact neurosciences may have on psychiatric and psychological evaluations of defendants as well as on legal decisions about insanity. (shrink)

In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain. Executive functions underwrite both the cognitive and volitional capacities that give agents a fair opportunity to avoid wrongdoing: to recognize their acts as immoral and/or illegal, and to act or refrain from acting based upon this recognition. When a person’s mental illness is serious enough to cause severe disruption of executive functions, she is very likely (...) to lack substantial capacities necessary to be law-abiding. Our analysis supports the Model Penal Code test for legal insanity over the traditional M’Naghten test, because the Model Penal Code test allows either severely diminished cognitive or volitional capacities to warrant an excuse to criminal culpability. We will provide a nuanced account of the ways in which mental illness can erode executive function, as well as an explanation as to why severe diminishment of executive functions caused by mental illness, but not some other causes, is exculpatory. (shrink)

This chapter argues that a successful plea of legal insanity ought to rest upon proof that a criminal act is causally related to symptoms of a mental disorder. Diagnosis of a mental disorder can signal to the court that the defendant had very little control over relevant moral ignorance or incompetence. Must we draw the same conclusion for defendants who lack moral knowledge due to miseducation or other extreme environmental conditions, unrelated to a mental disorder? Adults who were (...) brainwashed as children, for example, might seem “insane” due to their lack of moral knowledge. However, since legal culpability rests on the capacity to understand the criminal law’s moral demands, to reflect on these demands across time, and to control one’s behavior in light of them, simple ignorance of morality's demands does not excuse. (shrink)

The question of whether psychopaths are criminally and morally responsible has generated significant controversy in the literature. In this paper, we discuss what relevance a psychopathy diagnosis has for criminal responsibility. It has been argued that figuring out whether psychopathy is a mental illness is of fundamental importance, because it is a precondition for psychopaths’ eligibility to be excused via the legal insanity defense. But even if psychopathy counts as a mental illness, this alone is not sufficient to (...) show the insanity defense is applicable; it must also be shown that, as a result of the illness, specific deficits in moral understanding or control are present. In this paper, we show that a diagnosis of psychopathy will generally not indicate that a defendant is eligible for an insanity defense. This is because the group of individuals subsumed under the diagnosis is so heterogeneous that while some psychopaths do show significant impairments in affect and control which may impact on their responsibility, many psychopaths are not incapacitated in a way relevant to responsibility. (shrink)

So fearfully and wonderfully are we made, so infinitely subtle is the spiritual part of our being, so difficult is it to trace with accuracy the effect of diseased intellect upon human action, that I may appeal to all who hear me, whether there are any causes more difficult, or which, indeed, so often confound the learning of the judges themselves, as when insanity, or the the effects and consequences of insanity, become the subjects of legal consideration (...) and judgment. (shrink)

The insanity defense presents many difficult questions for the legal system. It attracts attention beyond its practical significance (it is seldom used successfully) because it goes to the heart of the concept of legal responsibility. “Not guilty by reason of insanity” generally requires that as a result of mental illness the defendant was unable to distinguish right from wrong at the time of the crime. The many difficult and complex questions presented by the insanity defense (...) have led some in the legal community to hope that neuroscience might help resolve some of these problems, but that hope is not likely to be realized. (shrink)

Prior to the second world war, most persons confined in insane asylums were regarded as legally incompetent and had guardians appointed for them. Today, most persons confined in mental hospitals are, in law, competent; nevertheless, in fact, they are treated as if they were incompetent. Should the goal of mental health policy be providing better psychiatric services to more and more people, or the reduction and ultimate elimination of the number of persons in the population treated as mentally ill?

In this paper we aim to offer a balanced argument to motivate (re)thinking about the mental illness clause within the insanity defence. This is the clause that states that mental illness should have a relevant causal or explanatory role for the presence of the incapacities or limited capacities that are covered by this defence. We offer three main considerations showing the important legal and epistemological roles that the mental illness clause plays in the evaluation of legal responsibility. (...) Although we acknowledge that these advantages could be preserved without having this clause explicitly stated in the law, we resist proposals that deny the importance of mental illness in exculpation. We argue, thus, that any attempt at removing the mental illness clause from legal formulations of the insanity defence should offer alternative ways of keeping in place these advantages. (shrink)

The McNaughton Rules, which are used when someone pleads insanity at the time of a homicide, are out of date and unsatisfactory. Suggestions have been made about how the insanity defence can be reformulated. The preference of a defence of diminished responsibility means abandoning an ancient and humane principle of not convicting those who are so mentally disordered as not to be responsible for their actions. There is a need for Parliament to consider changes to the law both (...) to prevent the mentally disordered being sent to prison inappropriately, and because the Mental Health Act 1983 has not taken account of rare cases where an offender such as an epileptic might be found legally insane but not mentally disordered. (shrink)

This is a book about the role that psychological impairment should play in a theory of criminal liability. Criminal guilt in the Anglo-American legal tradition requires both that the defendant committed some proscribed act and did so with intent, knowledge, or recklessness. The second requirement corresponds to the intuitive idea that people should not be punished for something they did not do 'on purpose' or if they 'did not realize what they were doing'. Unlike many works in this area, (...) this book addresses the automatism and insanity defences by examining the types of functional impairment that typical candidates for these defences actually suffer. What emerges is a much wider conceptual framework that allows us to understand the significance of psychological states and processes for the attribution of criminal responsibility in a manner that is logically coherent, morally defensible, and consistent with research in psychopathology. (shrink)

The traditional legal verdict of not guilty by reason of insanity as well as the more recent verdict of guilty but mentally ill rest on often unquestioned epistemological assumptions about human behavior and its causes, unjustified reliance on forensic psychiatrists, and questionable, if not deplorable ethical standards. This paper offers a critique of legal perspectives on insanity, historical and current, based on the altermative epistemological and ethical assumptions of Thomas S. Szasz. In addition, we examine Szasz''s (...) unique rhetorical analysis of mental illness and its implications for forensic psychiatry. (shrink)

We often hear the term “dignity” in our age. Especially in societies with multicultural and multi-faith, peace, respect, tolerance and human rights ideas are associated with human precious beings. However, understanding what dignity is and which rights it includes are difficult. Because human dignity has social, philosophical, theological and legal dimensions in which its content changes in historical process. Dignity is a term discussed in western societies and has a place in international contexts. That’s why the emphasis is on (...) its naming in western thought and conceptualization types. The definitions of term in terms of legal, moral and cultural are analyzed. This analysis shows it is described as classical and modern with different meanings. It is thought that perceiving the term as classical far from modern meaning results from monotheistic religions. But it is also expected that these religions contribute to social peace. Therefore, in order to understand the monotheistic religions’ attitude towards human and human rights, Holy Scriptures should be reviewed. Analyzing the dignity in Holy Scriptures is out of our studies. Our purpose is to discuss how Islamic attitude towards this term should be in accordance with understanding types of the term. (shrink)

This paper attempts to set forth, in the context of Anglo-U.S. criminal law, the meaning of the concept of insanity, its necessary relation to absence of responsibility, and its bearing on some relevant psychiatric concepts and legal controversies. Irrationality is a distinctive and necessary (but not sufficient) condition for insanity. Irrationality consists in failure even to grasp the relevance of what is 'essentially' relevant. To that extent there obviously can be no responsibility. A mental makeup which renders (...) one (who would not normally be so) substantially incapable of rational conduct constitutes insanity, and in that respect renders the person non-responsible. Much more broadly and roughly speaking, the mind that is ill is the mind that is irrational (and hence in that respect non-responsible). (shrink)

The Breivik case in Norway has motivated a reassessment of Norwegian insanity law by the Norwegian government. Because Norway since 2002 has utilized a “medical model” for legal insanity—a model according to which the legal excuse of insanity is identified with some medical concept such as psychosis—the Norwegian reexamination of its law is not without interest throughout the world. In this paper, I utilize the Anglo-American experience with different medical models for insanity to assess (...) the current Norwegian law on insanity. I defend a strong version of the medical model against standard criticisms advanced against it in the Anglo-American literature, and venture some suggested improvements in how that model was applied in the Breivik case. (shrink)

Unlike the criminal law, tort law does not recognize insanity as an answer to liability. The fact that a defendant was insane at the time of his impugned conduct is essentially ignored by tort law's liability rules. It will be argued that this situation is unsatisfactory. A person should not incur liability in tort in respect of acts committed while insane. This result should be realized by providing for a generally applicable affirmative defence of insanity.

I attempt to describe and defend an alternative definition of insanity. I claim that my definition follows from an adequate general understanding of legal excuse and that it describes correctly the question that jurors in the recent Andrea Yates case and others like it ought to be faced with. My essay has three parts. In the first, I briefly criticize M'Naghten- and Durham-inspired insanity statutes. In the second, I sketch and defend a general understanding of legal (...) excuse and try to show how an adequate insanity statute follows from it. Finally, in the third section, I describe and defend a rough version of the statute itself. In the course of doing so, I try to explain why I believe that statute is superior to the American Law Institute's various model insanity statutes. (shrink)

The British journalist Christopher Hitchens has recently noted that the extraordinary excitement created by l’affaire Pound, an excitement sustained for now some forty years, is partly the result of having no fewer than three debates going on whenever the poet’s legal situation and his consequent hospitalization are discussed. As Hitchens says, those questions are: “First, was Pound guilty of treason? If not, or even if so, was he mad? Third, was he given privileged treatment for either condition?”1 I propose (...) to discuss all three issues in a way that fairly reflects the fact that I am neither a physician nor a lawyer. What I know of the state of medical expertise, both today and in the period of time from 1943 to 1958 , leads me, as a layman, to believe that there is an enormous latitude of understanding among medical professionals as to the precise meaning of “insanity.” At one extreme, for some distinguished physicians, the term means almost nothing. They see it as a legal term and as therefore irrelevant to them; some of them follow the line of reasoning developed by Thomas Szasz over his long writing career, namely that “mental illness” if not illness in any ordinary sense of the term.2 For other medical practitioners, it does mean something, but only when it is redefined into much smaller subcategories and enriched with much more precise terminology, and when the given patient and his full range of circumstances are considered.What I know of the legal understanding of insanity is that there has been and is now little firm agreement about “insanity” or “madness.” Equally competent juries and courts have been able to set down findings that are more or less plausible on their face but do not seem to comport at all with each other. I tentatively conclude that whatever “insanity” now is in the United States, and whatever it was when Pound was found unfit to stand trial in 1945, the standard is not the lucid simplicity of the M’Naghten test, namely, the ability of the accused to understand the difference between “right” and “wrong.” Human mind, self-awareness, and motivations are vastly more complicated than such a test would imply. 1. Christopher Hitchins, “American Notes,” Times Literary Supplement, 21 Oct. 1983, p. 1160.2. See Thomas Szasz, Insanity for a synthesis of his ideas as formulated in some eighteen books. William M. Chace is professor of English and Vice Provost for Academic Planning and Development at Stanford University. He is author of The Political Identities of Ezra Pound and T. S. Eliot , Lionel Trilling: Criticism and Politics , and scholarly essays on writers including Wyndham Lewis, D. H. Lawrence, T. E. Lawrence, and James Joyce. He is now working on a study of the ways in which American culture in this century has been subjected to critical analysis. (shrink)

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the punishment provided by (...) the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

Moral responsibility is a prerequisite for culpability. One can be morally responsible for φing without being culpable for it, but not vice versa. I agree with Andrew Simester on this, and agree that it is important to differentiate moral responsibility from culpability. That moral responsibility is a prerequisite for culpability is often taken to require sharply distinguishing excuses from what are called ‘exemptions’ (or to use the term Simester uses, ‘irresponsibility defences’) and treating exemptions as forming a category of their (...) own. I am not convinced that it does. In previous work, I have gone against the prevailing view by understanding the category of excuses to include what, on that view, are classified as exemptions. In this paper I reconsider this, delving deeper into the matter than I have in the past and drawing on Simester’s magisterial Fundamentals of Criminal Law to do so. I challenge the position that exemptions form a category of their own, distinct from excuses, and that infancy and insanity need to be understood as exemptions and not excuses. I argue that the category of exemptions, or “irresponsibility defenses,” is problematic, and that recognizing the distinction between culpability and moral responsibility and recognizing its importance does not commit one to excluding from the category of excuses infancy and insanity. Infancy and insanity are better seen as operating to exempt the agent altogether from moral responsibility only at the limit; more often, they operate to excuse, partially or fully. (shrink)

Ethics of Psychiatry addresses the key ethical and legal issues in mental health care. With selections by Paul S. Applebaum, Christopher Boorse, Kerry Brace, Peter R. Breggin, Paula J. Caplan, Glen O. Gabbard, Donald H.J. Hermann, Lawrie Reznek, Thomas Szasz, Jerome Wakefield, Bruce J. Winick, and Robert M. Veatch, among others, this sourcebook offers the latest research in psychiatry, psychology, advocacy, mental health law, social services, and medical ethics relevant to the rational autonomy of psychiatric patients.

This paper addresses Colin Holmes's suggestion that the psychopathic disorder is best regarded not as a psychiatric concept, but as an ethical one. The paper argues that the concept of psychopathy, like many other concepts, can span both psychiatry and ethics, and that it is not clear what removing if from the realm of psychiatry would entail. Also, the question of whether the concept of psychopathy is useful for psychiatrists must be separated from the question of whether psychopaths should be (...) exonerated from the moral and legal responsibility for their actions. (shrink)

The determinative issue in applying the insanity defense is whether the defendant experienced a legally relevant functional impairment at the time of the offense. Categorical exclusion of personality disorders from the definition of mental disease is clinically and morally arbitrary because it may lead to unfair conviction of a defendant with a personality disorder who actually experienced severe, legally relevant impairments at the time of the crime. There is no need to consider such a drastic approach in most states (...) and in the federal courts, where the sole test of insanity is whether the defendant was “unable to appreciate the wrongfulness of his conduct at the time of the offense.” This is because the only symptoms that are legally relevant in such jurisdictions are those that impair reality-testing and thereby affect the person's capacity to understand the nature and consequences of her actions. However, if the test of insanity includes a “volitional prong” (inability to control one's behavior), some way must be found to limit the scope of the defense to the core cases (involving psychotic conditions) to which it has traditionally been applied, and to prevent a shift toward a deterministic account of criminal conduct — i.e., “people can't help being who they are and doing what they do.” The best way of accomplishing this is to limit the definition of mental disease to severe disorders characterized by gross disturbances of the person's capacity to understand reality. (shrink)

In his accompanying article, Dr. Kinscherff has convincingly demonstrated why a categorical exclusion of personality disorders from the definition of “mental disease” in insanity defense adjudication is arbitrary, both conceptually and clinically. He explains his position in the context of a vignette involving a hypothetical defendant, Wilhelmina Sykes, charged with ramming her car into another car obstructing her path, causing serious injury to its driver. Dr. Kinscherff correctly points out that the determinative issue in applying the insanity defense (...) in any case, including the hypothetical case involving Ms. Sykes, is whether the defendant experienced a legally relevant functional impairment at the time of the offense. In many states — and in the hypothetical jurisdiction in which Ms. Sykes is being prosecuted — the relevant functional impairments are those that could have affected her ability “to appreciate the wrongfulness of her conduct” or “to conform her conduct to the requirements of the law. (shrink)

The significance of this article is in its deconstruction of the criminal insanity defence in a meta-legal critical context. The article’s objective is to critically review beliefs that the insanity defence was designed solely for public protection from insane violent people, or, for criminal deterrence. Arising from the long and continued use of the Roman Law concept of non compos mentis, the question arises as to what has become of the practical meaning of the term “insanity”, (...) when used as a defence. The article tries to show that the defence of insanity is a public act of judicial denunciation against the accused, while the accused may have no effective responsibility for the crime. Argument begins with a critical discussion on the character of common-place denunciation as an appeal to public agreement. Then, it follows how the idea of “manifest criminality”, of the 1800s, might be cognate to modern ideas of “manifest madness”, linking into the origins of the English special verdict of insanity. This will allow a short critical analysis of the M’Naghten Case. Argument is completed with analysis of a psychologists’ expert construct of insanity and its relationship to jury perception. The article will suggest strongly that arguments based on the common law rules of insanity tend to expose juries more to denunciation of the accused, than to a reasoned account of the nature of his insanity and to the defects in his responsibility. Duly persuaded jurors would tend to acquiesce and participate in the denunciation of an accused person, whose unusual and unhealthy behaviours emanated from his sufferings by dint of his unbearable circumstances. (shrink)

Forensic evaluations of insanity have recently borne witness to an influx of neuroimaging methods, especially structural and functional magnetic resonance imaging and positron emission tomography, to assist in the development of explanations that help to excuse legal responsibility for criminal behavior. The results of these scanning methods have been increasingly introduced in legal settings to offer or support a clinical diagnosis that in turn suggests that an individual was incapable of knowing right from wrong, or to pinpoint (...) brain dysfunction suggestive of an inability to control behavior. This paper examines how neuroimaging has been employed in insanity evaluations. After addressing the contentious use of neuroimaging scans in insanity evaluations and synthesizing relevant research, we conclude that such scans presently hold limited applicability for forensic determinations of insanity. Furthermore, they can in some cases distract the trier of fact, potentially leading to erroneous conclusions. (shrink)

Forensic evaluations of insanity have recently borne witness to an influx of neuroimaging methods, especially structural and functional magnetic resonance imaging and positron emission tomography, to assist in the development of explanations that help to excuse legal responsibility for criminal behavior. The results of these scanning methods have been increasingly introduced in legal settings to offer or support a clinical diagnosis that in turn suggests that an individual was incapable of knowing right from wrong, or to pinpoint (...) brain dysfunction suggestive of an inability to control behavior. This paper examines how neuroimaging has been employed in insanity evaluations. After addressing the contentious use of neuroimaging scans in insanity evaluations and synthesizing relevant research, we conclude that such scans presently hold limited applicability for forensic determinations of insanity. Furthermore, they can in some cases distract the trier of fact, potentially leading to erroneous conclusions. (shrink)

Forensic evaluations of insanity have recently borne witness to an influx of neuroimaging methods, especially structural and functional magnetic resonance imaging and positron emission tomography, to assist in the development of explanations that help to excuse legal responsibility for criminal behavior. The results of these scanning methods have been increasingly introduced in legal settings to offer or support a clinical diagnosis that in turn suggests that an individual was incapable of knowing right from wrong, or to pinpoint (...) brain dysfunction suggestive of an inability to control behavior. This paper examines how neuroimaging has been employed in insanity evaluations. After addressing the contentious use of neuroimaging scans in insanity evaluations and synthesizing relevant research, we conclude that such scans presently hold limited applicability for forensic determinations of insanity. Furthermore, they can in some cases distract the trier of fact, potentially leading to erroneous conclusions. (shrink)

This is a book about the role that psychological impairment should play in a theory of criminal liability. Criminal guilt in the Anglo-American legal tradition requires both that the defendant committed some proscribed act and did so with intent, knowledge, or recklessness. The second requirement corresponds to the intuitive idea that people should not be punished for something they did not do 'on purpose' or if they 'did not realize what they were doing'. Unlike many works in this area, (...) this book addresses the automatism and insanity defences by examining the types of functional impairment that typical candidates for these defences actually suffer. What emerges is a much wider conceptual framework that allows us to understand the significance of psychological states and processes for the attribution of criminal responsibility in a manner that is logically coherent, morally defensible, and consistent with research in psychopathology. (shrink)

This article investigates “impaired insight,” a controversial psychiatric category describing a mad person unable to know his or her madness. Like “moral insanity” and other concepts before it, impaired insight offers a way to link the disparate logics of human responsibility in psychiatry and the law. I attribute its development to changes wrought by deinstitutionalization, the rise of antipsychotic medication, and patient incarceration in penal settings. In a system that aims to govern psychiatric patients through their freedom, the logic (...) of impaired insight introduces a wrinkle: can a person make an informed choice to refuse treatment if madness itself impairs awareness of illness? Drawing on tools from the sociology of science, I trace the process by which researchers recast psychodynamic “denial” as a neurological and therefore non-volitional “impairment” in the 1990s. I then show how social movement actors mobilized the materialized form in the legal and policy fields in the 2000s, bringing insight science to bear upon the very questions of custodial management and patient rights that gave birth to it. At stake is this dilemma: how can societies that simultaneously privilege individual responsibility and somatic accounts of behavior govern those at the border of legal capacity, and with what justification? (shrink)

Behavioural variant frontotemporal dementia (bvFTD) is a subtype of frontotemporal dementia characterized by changes in personality, social behaviour, and cognition. Although neural abnormalities cause bvFTD patients to struggle with inhibiting problematic behaviour, they are generally considered fully autonomous individuals. Subsequently, bvFTD patients demonstrate understanding of right and wrong but are unable to act in accordance with moral norms. To investigate the ethical, legal, and social issues associated with bvFTD, we conducted a scoping review of academic literature with inclusion & (...) exclusion criteria and codes derived from our prior work. Among our final sample of fifty-six articles, four mentioned bvFTD patient-offenders as unfit to stand trial by insanity, and sixteen mentioned the use of dementia evidence in a court of law to better understand the autonomy of bvFTD patients. Additional emergent issues that were discovered include: training police officers to handle situations involving bvFTD patients and educating healthcare providers on how to help caregivers navigate bvFTD. The current literature highlights the inadequacy of traditional applications of medico-legal categories such as autonomy, capacity and competence, in informing cognitive capacity assessments in clinical and legal settings and deserves consideration by neuroethicists. (shrink)

Our paper explores how the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple informed the notorious mid-nineteenth-century American trial of Amelia Norman, who attempted to kill the man who seduced her. Once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, and Norman was acquitted against the weight of the evidence. Sentimental novels (...) turn on the contrast between the passive victim status of the heroine and the active libidinal quest of the rake-villain. As Cathy Davidson points out, this fiction is "about silence, subservience, stasis (the accepted attributes of women as traditionally defined) in contradistinction to conflicting impulses toward independence, action, and self expression (the ideals of the new American nation)." The seduction plot diverts attention from this disparity by establishing an affective solidarity between heroine and reader and elevating the ruined woman to a tragic status. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgements on her behalf. Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. The common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. Scholars such as Wai Chee Dimock have argued for a focus "on the historical and historically shifting relations between law and literature" - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). Going further, we would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. Thus, we see no need to characterize - and indeed reject the depiction of - law as "a limited arena" in which ideas of morality have little place. This project, then, responds to Gregg Crane's call for attention to "the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice." The extended story of Amelia Norman not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction. (shrink)

This paper argues that there are compelling grounds for thinking that coercive indoctrination can defeat or mitigate moral culpability in virtue of being a form of non-culpable moral ignorance. That is, I defend a two-tier account such that what excuses an agent for a wrongful act is the agent’s ignorance regarding the moral quality of their act; and what excuses the defendant for their ignorance is that coercion or manipulation deprived the defendant of a fair opportunity to avoid that ignorance. (...) I further argue that criminal defense theory would better track moral culpability were it to broaden existing defenses whose desert-base is moral ignorance—such as insanity or mistaken-belief self-defense—to include non-culpable ignorance due to diminished situational control. In this way, criminal law can plausibly recognize a defense of coercive indoctrination without postulating any new categories of defense. (shrink)