Rethinking the Voluntary Act Requirement: Implications from Neuroscience and Behavioral Science Research

Gordon, N., & Fondacaro, M.R. Rethinking the voluntary act requirement: Implications from neuroscience and behavioral science research. Behavioral Sciences & the Law, Forthcoming

25 Pages Posted: 22 Mar 2018 Last revised: 28 Apr 2018

See all articles by Natalie Gordon

Natalie Gordon

John Jay College of Criminal Justice; The Graduate Center, CUNY

Mark Robert Fondacaro

John Jay College - CUNY Graduate Center

Date Written: March 19, 2018

Abstract

Criminal responsibility in the American legal system requires the presence of an actus reus — a harmful act that was committed voluntarily — and a mens rea, or guilty mind. Courts frequently consider questions surrounding mens rea but rarely question whether an act was committed voluntarily. Thus, courts presume that acts have been committed voluntarily and with an ill will; retribution, which serves the primary basis for punishment in the United States, relies on this presumption. Research in neuroscience and the behavioral sciences, however, suggests this presumption is flawed and not sufficiently robust to justify punishment that is grounded in retribution. In this paper we discuss the presumption of voluntariness and free will inherent in the law, provide examples of how the courts have conflated actus reus and mens rea and the consequences of doing so, and the implications of neuroscience and behavioral science research for actus reus (also known as the voluntary act requirement). Finally, we propose re-conceptualizing punishment within a consequentialist, empirically-based framework that does not rely on folk psychological notions about human behavior and reinvigorates the actus reus as the foundational requirement for legal responsibility.

Keywords: criminal responsibility, actus reus, neuroscience, behavioral science, retribution, punishment, consequentialist

JEL Classification: K14, K42

Suggested Citation

Gordon, Natalie and Fondacaro, Mark Robert, Rethinking the Voluntary Act Requirement: Implications from Neuroscience and Behavioral Science Research (March 19, 2018). Gordon, N., & Fondacaro, M.R. Rethinking the voluntary act requirement: Implications from neuroscience and behavioral science research. Behavioral Sciences & the Law, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3143816

Natalie Gordon (Contact Author)

John Jay College of Criminal Justice ( email )

524 West 59th Street
New York, NY 10019-1199
United States

The Graduate Center, CUNY ( email )

365 Fifth Avenue
New York,, NY 10016
United States

Mark Robert Fondacaro

John Jay College - CUNY Graduate Center ( email )

425 W. 59th St.
New York, NY 10019
United States
6465574503 (Phone)

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