Sunday, 6 February 2011

Did My Genes Make Me Do It?

A curious legal case from New York raises some interesting issues:
Court Rejects Judge’s Assertion of a Child Pornography Gene

According 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."

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."
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?

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.

33 comments:

petrossa said...

Still overall even if it's a gene or not, the question remains who is responsible?

The storyteller who has to try and find an explanation of lymbic driven behavior?

Seems unfair. It is also confused about what happened in most cases.

Since we seem to accept that the storyteller is 'us' holding it responsible for actions it never instigated and has a hard time explaining itself is being harsh.

In practice we are mostly unaccountable for the majority of actions the body undertakes due to it being controlled by different, independently operating brain structures.

Ethically a conundrum. Either you do away with Insanity plea, or you widen to concept to encompass lymbic driven actions.

Anonymous said...

Interesting issue. The high incidence of false positives in genetic studies make it all the more worrysome.

Anonymous said...

You cannot have a society of civilized people if you do away with the notion of individual responsibility -- even if it is an illusion.

Jayarava said...

@Anon "You cannot have a society of civilized people if you do away with the notion of individual responsibility -- even if it is an illusion."

We already have degrees of culpability and reasons for not being culpable. So if we experience intolerable provocation it is a mitigating factor when considering culpability and/or punishment; and if we are insane then we are not culpable and not punished (though we may be forced to take 'treatment' or be imprisoned to protect the public). Similarly various societies make different limits on children's culpability.

So there is no question of an absolute - it is already relative, and flexible.

But yes, the individual is supposed to be responsible.

We could end up arguing that all behaviour is genetically based. Which it is in a sense. Which would leave us with no basis for morality.

Or we could, like Stephen Hawking in his new book, argue that free will is an illusion and that behaviour is determined (though so complex we'll never figure it out). Again no basis for morality, and requiring more than a little fatalism.

As @Petrossa says - we mostly can't account for our actions, they are unconscious and often not even available to introspection.

Some social psychologists claim that behaviour is at least as influenced by environment as by personal will.

I think we're stuck with assuming individual responsibility - it's a good working model. But there are things which over-ride individual responsibility. The trick will be deciding if any particular genetic factor is an over-riding factor.

At the moment for instance our society judges the drugs addict to be culpable - with some variation. But some people put drug addiction down to genetics and so perhaps the drug addict is a victim? Others describe addiction as a disease, again removing the culpability for it. We used to judge that homosexuality was a morally wrong and illegal personal choice. Now we say it's genetic and not reprehensible at all - there is no culpability associated with that genetic variation. Which suggests that morality is a negotiated equilibrium; and that since Darwin and DNA the discussion has gotten a lot more complicated.

Bernard Carroll said...

One of the most obvious gene-determined behaviors is sex. That doesn’t mean it is uncontrollable. Celibate clergy (mostly) succeed in doing so. In the US, celibacy also is recommended as a way of preventing adolescent pregnancy. Another gene-determined behavior is irritable aggression. That is addressed by behavioral measures called anger management classes. I have seen them work. The judge in this case needs some exposure to behavioral science instead of potted genetics.

Anonymous said...

Cue delgado's book:

Physical Control of the Mind: Toward a Psychocivilized Society

jim said...

It would be a lot smarter to remove the fraught - and ultimately incoherent - idea of responsibility, especially moral responsibility, from the discussion. In this case, the crime question just becomes a design issue: how do we optimise things to minimise crime without overly impacting other desirable outcomes, eg, (the feeling of) personal freedom? It's about outcomes, evidence, and trade-offs. With this approach, punishment could be part of the equation when appropriate, as might be social support, enforced training and restraints of various kinds including incarceration.

It would produce a somewhat different result to what we've got now but probably not wildly different. Given that most crime is committed by people driven by lower brain centres the evolved system is probably has probably adapted reasonably well to tthe material. It should be more effective, at least to the extent that it is actually evidence based.

And there's the massive benefit, to me at least, of relief from the relentless crazy moral posturing that people imagine will solve more-or-less anything and everything.

veri said...

..setting precedence to an evil gene. Hauser, NYT. The judge knew, it may've been overturned by the courts but the message is loud and clear. Some people are born evil, like the jews. That's what the judge really believes right? Disturbing.

veri said...

The judge ruled in faith not science. We can't control our genes, but the govt could and it probably will if we continue on this path. External liberties at the expense of personal autonomies. Is it worth it? I smell a revolution.

petrossa said...

@jayarava
Very well formulated. A concise summation of the current state of affairs.

All this goes to show that a plea of insanity should be abandoned since it can't be qualified nor quantified.

The nurture/nature debate is to my mind a fallacy. The one can't be seen separate from the other. Since genes do determine the basic construction of the neural systems it does also influence nurture.

I liken it to the brain being the computer plus operating system and nurture the software. Software can be written to do what you want but only withing the confines of the underlying systems.

As such the are intertwined. 'We' don't exist without the software, but the software can't run without the genetically defined systems running it.
@Bernard
It seems like it is rife, but paraphilia is relatively rare. Pedophilia even rarer. So the enormous prevalence of paraphilia amongst celibates to my mind proves your supposition wrong.

veri said...

Pedophilia is evil. Debating nature/nurture about it may as well be Freudian babbble. But to make evil the underbelly of procedural discourse in a court of law would be no different to the Salem witch trials without the explicit use of the term evil. I wonder to what extent research based evidences can mask judicial biases.

JKwasniak said...

Society has rules. You live by the rules if you want to live in society. If you can't manage that then you live in jail or a secure mental hospital or in a lone cabin in the wild, far from others. If you have genes for pedophilia (assuming they do exist) then you learn how to control your temptations or suffer the punishment for not following the rules. I really don't see the problem - people who can't control their behavior cannot live freely in society. Whether we pity them or hate them does not matter except in how good we make their conditions but we will not have them in society. We don't have to believe in evil or not believe in evil; we don't have to believe in responsibility or not; we don't have to accept genetic science or not - we just have to know that there are rules and consequences.

petrossa said...

That still begs the question:

Why does an insanity plea exist?

Seems pretty random to me. Ah you are a psychopath so you get an out of jail card, but you are a ........phile so you go straight to jail.

Neither one CHOOSES to be what they are.

veri said...

True. I reckon the prosecutor and defense took the nature/nurture, rehab/genes angle when it should've been about confession, remorse, guilt, excorcism etc. not a psych recommendation. In that respects the judge probably shot his middle finger up at science and capped the criminal with purgation (solitary confinement).

veri said...

JK, amen brother.

Don said...

"Ah you are a psychopath so you get an out of jail card, but you are a ........phile so you go straight to jail."

Psychopaths may get locked up in secure mental institutions, but they still get locked up.

Much of this argument goes away if we forget about punishment (which is seldom effective) and concentrate on prevention. We don't lock up a paedophile as a punishment, but to keep him or her away from children.

A different question: if we could be certain by the age of, say, 15 that a person is a paedophile, should we lock them away to protect children, before they actually do anything?

petrossa said...

I have seen on tv Americas Hardest Prisons. I guess i'd choose an asylum over that in a heartbeat, for sure if i molested children.

Both disorders get locked up, but one of them gets a relatively quiet time in a padded cell, whilst the other has a life expectancy of 3 hours.

The discrepancy is vast. The psycho could have been on a murdering spree. Whilst being molested isn't on my top ten things to have done to me list, being slaughtered isn't on any of my lists.

To my mind if you want to be really evenhanded you give both the same dose.
Either both in a padded cell, or both running for their lives in a prison.

Insanity plea dates from the times we believed there was such a thing as a insane person incapable to control his urges versus people who did things wholly out of free choice .

Preventative lockup should include for example schizophrenics. They are known for stopping medication.

To that you could add a long long list of potentially dangerous people. How about someone with borderline?

I had a gf once, she got into a psychosis and stabbed me three times in my genital area.

Clearly not a feasible 'solution'

Jayarava said...

@Jim How do define a 'crime' if you have removed the pesky category of responsibility, especially moral responsibility.

Jayarava said...

@Petrossa A plea of insanity is not a get out of jail free card. Psychopaths are locked up and/or forcibly treated with some heavy drugs. Which is no picnic. If you think it is then perhaps you should visit your local mental hospital to talk with some of the forcibly detained people there. But they aren't being punished because that wouldn't make sense, if punishment ever does. And the distinction is a moral one, because conditions for a psychopath are often less good than for a sane person (they're locked up with other psychopaths for a start!)

I've written about the 'case law' for madness amongst Buddhist monks if you are interested. The Mad Monk.

A paedophile who has sex with children knows it hurts them, and does it anyway. A psychopath does not understand that their action is harmful (even to themselves), does not even understand the frame of reference. The traditional Buddhist commentaries make the comparison of someone who picks up hot coals thinking they are gold, or shit thinking it is food.

It's not to say that it is black & white. It isn't. But the definition has been tested quite robustly in courts, and continues to be tested, and while I'm sure it's not 100% I think we can pragmatically assess who knows they are breaking rules (even if they think the rules don't apply to them) and who has no idea that there are rules.

The gene argument is more or less the same: is there something in a person's genes which makes them incapable of judging their own actions? If not then they also may well be locked up and/or forcibly treated against their will to protect the public.

It's not punishment, but it may not be a box of fluffy ducks either.

Neuroskeptic said...

"A paedophile who has sex with children knows it hurts them, and does it anyway."

That's not always true. Certainly it sometimes is; but you also get paedophiles who are convinced that what they're doing is morally OK and that society is wrong to ban it. See for example this guy who has written 12 books about it. I assume he didn't do that for the royalties from the book sales, I doubt he sold any copies; he did it because he believed it.

A Bitter Pill said...

Well, anyway, in reference to the original post on presumed genetic conditions and sentencing . . . I think it is an interesting issue and we surely have not seen the last of it. Associations between genes and specific types of behavior are going to grow with genetics science on what seems like a parabolic arc. The problem is, people want to jump the gun. People are eager for the grand synthesis between genetics, neuroanatomy and psychology, but the fact is we ain't there yet. There is no clean one-for-one relationship between a particular gene and a particular behavior. It's much more complicated than that. Or so it seems to me, anyway. People's imaginations are far ahead of the actual science. So, we actually end up with what amounts to science fiction in the field of psychiatry.

Then people want to wrap morality into the equation too?

veri said...

Petrossa what? I hope you're ok. They have a psychiatric wing in prison but it isn't the same as a rehab facility.

petrossa said...

@jayarava

Our posts crossed i think, the 'get of jail free card' to my mind still stands.

I read your post on the mad monk. Indeed many cultures have different views on what constitutes mad, to the point of actually honoring the mad.

History clearly show a linkage between what we'd call now schizoid illusions and prophets visions.

Also the indication that genes are at the base of schizophrenia, which is also linked with divine inspiration.

One could argue fundamental religious persons are mad.

I wrote on that here:
http://petrossa.wordpress.com/2010/04/16/the-brain-believes-do-you/

Genes do indeed control behavior to a great extent, that much is hardly debatable.

So the OP's title question is very apt. And very problematic.

I find the insanity plea untenable. It's near impossible to determine how much of free choice the criminal had.

Take for example stealing. This is a very standard mode of operation amongst all lifeforms in one way or another.
By it's very nature, it being prevalent across species, it MUST be genetic.

So genes do make one a thief.

@veri
Years ago, it was a flimsy steak knife which bent more on the tissue then it stabbed.But it was scary, she just missed an artery.

veri said...

That is scary. Glad you're ok though.

According to evolution we're savages. No hope for man there. I wonder if there are gene sequences which aren't ailments, diseases or malevolence. To even use DNA segments as indictment evidence grossly violates the treatise of man.. like distinguishing a 'colored' person. It automatically shuts people's rights because of their skin color or genes in this case. These sorts of nazi evidences should be banned from the judiciaries.

petrossa said...

Genes are not constructed for a reason. They just happen by chance. The endresult is whatever it is, but was never 'meant' to be.

Still genes do make us what we are in view, the little bit nurture adds to it is mostly beauty in the eye of the beholder.

To us it's a great deal, but nothing else cares.

So the OP: Did my genes make me do it? is to me an unequivocal yes, it's just to which degree.

My genes caused me to have HFA, and the personality to go with it. I have no free choice in some it's annoying side effects.

In my simplistic view punishment in a large part punishes the wrong control structures. The limbic system to my mind can only see direct consequences, not belated ones.

So waiting a year for a trial and then getting send to jail will only embitter the storyteller who had no real control over their actions and fail to punish the actual perp. With as result a double whammy, a pissed off storyteller and a traumatized limbic.

Can never do any good.

aestrivex said...

As you alluded to in the OP, somewhat passively, it makes no sense a priori to say that a single gene did or did not cause a behavior, so the question "did my genes make me do it" is really just meaningless.

veri said...

dude, chill.

they should've had PLoS reviewers on the stand, piss judge more. paedophile, science, nazi, heresy in the court room.. oath bible combusting..

petrossa said...

@aestrevix

I beg to differ. It makes sense to connect behavior to genes, it's just that our knowledge to date isn't good enough to comprehend the various interactions of gene expressions, nor their timing of expression.

Many studies indicate dormant genes being expressed resulting in various unwanted conditions. No proof, but where there is smoke...

Lack of knowledge doesn't imply lack of causality.

There is a distinct indication that genes are involved in controlling behavior.
Just a women with the breastcancer gene have their breasts preemptively removed a case can be made for taking genetic factors into consideration when deciding what to do with a criminal with dangerous/very unwanted tendencies.

Not that it should be a deciding factor, but it could/should be considered weighing parameter.

The judge in the OP case was a bit too quick to the draw, but i believe he had a valid point.

veri said...

his point was valid insofar as gene therapy (or alteration) was concerned. Take fat foods, sniffing toxins, radiation, radioactive poisoning, cancers, viruses, diseases, how about a HIV transfusion? Are these not just as sadistically pioneering as a pedo gene?

Genetic predisposition is one thing, but gene culpability, whether consenting, the extent of responsibility to reverse, alter, knock, rehabilitate genes is a social, ethical, moral issue tied to civil liberties and rights debated outside of science. In that respects the judge's decision was clearly biased.. I’d say a publicity stunt to ridicule science for siding better with rehabilitating a pedo than sending that evil-son-of-a-* to prison.

petrossa said...

As i said earlier:
Ethically a conundrum. Either you do away with Insanity plea, or you widen to concept to encompass lymbic driven actions.

Imo you just can't keep up a plea for reduced responsibility due to insanity without accepting the same for built-in disorders.

The whole concept that we are conscious self controlling unified units, but some dysfunction is a fallacy.

Everyone dysfunctions to a large degree if one holds on to the dogma of self determination. So it's a matter of degree of self determination, not if you can or not.

Ethically this raises problems. If man isn't a unity (and most definitely isn't) but consist of independent control systems the question who is responsible for which action is a factor.

If you just don't care about ethics and just want to take revenge, no problem. But then you have to be consequent. No random exceptions based on particular symptoms/syndromes/brain dysfunction.

In other words:
The moral highground in the punitive system just isn't there. It's amoral by nature, since it punishes one control system for the actions of another.

So the 'genes made me do it' is as good as any other reference cadre. They both stink.

veri said...

True. For the meantime the system of institutions largely protects unified responses. You are insane or not. To unpackage that through the judiciaries in a manner which still protects the existing integrities in respect to jurisprudence will take time.. to evolve perhaps.

E said...

Comparing a deeply ingrained behaviour like paedophilia with hair colour is a little simplistic. You can't make a gene for paedophilia (assuming one exists) irrelevant in the same way that you can make your hair colour gene irrelevant as this article seems to suggest.

Also if our behaviour is genetically determined (and I am not saying it is) then this would be an argument for more lenient sentences or for no sentence at all rather than more severe punishments. (assuming a purely retributive penal system)

Neuroskeptic said...

E: "You can't make a gene for paedophilia (assuming one exists) irrelevant in the same way that you can make your hair colour gene irrelevant"

Why not?

It may be that it's very hard to do this within our present society because the right institutions or opportunities don't exist, or whatever. But then, before the institution of shops selling hair dyes was invented, no-one could change their hair color.