Court Rejects Judge’s Assertion of a Child Pornography GeneAccording to the NYT:
A federal appeals court in Manhattan overturned a 6.5 year sentence in a child pornography case on Friday, saying the judge who imposed it improperly found that the defendant would return to viewing child pornography "because of an as-of-yet undiscovered gene."Now I think we can all agree that judges shouldn't be handing down sentences on the basis of entirely hypothetical genes. However, things becomes a bit less clear if we imagine that the defendant did have a verified genetic abnormality. What then?
The judge, Gary L. Sharpe, was quoted as saying, "It is a gene you were born with. And it’s not a gene you can get rid of," before he sentenced the defendant...
A three-judge panel of the United States Court of Appeals for the Second Circuit said in ruling on the defendant’s appeal, "It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics."
As chance would have it, this has just happened in Britain. On Thursday, former delivery driver Alan Potsbury, or as he was known to his colleagues, "Al The Paedo", was convicted of... well, the obvious.
Anyway, Potsbury has Klinefelter's Syndrome, aka XXY syndrome. Normally, women have two X chromosomes, while men have an X and a Y chromosome. People with Klinefelter's have three sex chromosomes, two X and a Y. They're male, but can experience various symptoms as a result of their extra X, although these are often pretty subtle, and the condition often goes undiagnosed.
Now I have no idea whether Potsbury's responsibility for his crime is lessened by the fact that he had a genetic disorder. And I certainly don't want to suggest that Klinefelter's "makes people into paedophiles", not least because in the vast majority of cases, it doesn't.
However, let's assume just for the sake of argument, that in this particular case he wouldn't have done what he did if it weren't for his extra chromosome. Or let's consider any hypothetical case where someone committed a crime "because of" a certain gene. Does this mean, as Judge Sharpe was suggesting, that it means their behaviour will be unlikely to change, and hence that heavy sentences are justified since rehabilitation won't work?
No. The fact that someone's past behaviour was associated with a gene doesn't tell us anything about how easy it would be to change it.
Being a Christian as opposed to a Muslim is, as far as we know, nothing to do with genetics; it's purely a matter of how you were brought up. Yet it's incredibly difficult to change. Many Christians and many Muslims spend their lives trying to make the heathens adopt the true faith and yet the number of successful conversions either way is tiny.
Hair colour, on the other hand, is entirely genetic. Yet it's easy to change. Just buy some bleach and some dye and you can have whatever hair you like. Or if you don't want hair at all, shave it off. You can't change your hair-colour genes, but you can make them irrelevant.
Back to Potsbury, even if we did accept that his paedophilia was in some way a result of his Klinefelter's, that wouldn't mean he was doomed to reoffend. Some behaviours are harder to change than others. Some are more genetic than others. But we can't assume that the one implies the other.