Traumatic Brain Injury and a Divergence between Moral and Criminal Responsibility
56 Duq. L. Rev. 35 (2018) (symposium)
22 Pages Posted: 7 Dec 2018
Date Written: January 21, 2018
Traumatic brain injury (TBI), particularly in severe cases, can have extraordinary effects on one’s psychological capacities and, accordingly, may be relevant to several kinds of legal claims in criminal proceedings. The focus of this essay is on claims related to an agent’s status as a responsible agent. How does, or how might, a TBI affect one’s status as a responsible agent? One aim of this essay is to examine multiple ways in which one might think a TBI can affect an agent’s status as an agent who may fairly be held responsible.
However, this essay’s primary goal is to argue that reflection on TBI cases reveals at least some divergence between the criteria for moral responsibility and those for criminal responsibility. Literature on criminal law often assumes that the criteria for legal responsibility mimic the criteria for moral responsibility; however, reflection on TBI cases reveals that those criteria are not coextensive. In short, there may be cases for which ordinary moral intuitions would permit an excuse although the law does not, and should not, recognize. Those cases are ones in which a severe brain injury causes a significant personality change, though does not cause rationality impairments serious enough to undermine legal responsibility. This divergence in responsibility criteria is rooted in the differences between the interpersonal significance of moral blame and the societal purposes of criminal liability.
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