Neuroscience will increasingly influence criminal law

By Jerome Doraisamy|19 September 2019

We need to keep an eye on neuroscience, and its implications for the rule of law, argues Law Society of NSW president Elizabeth Espinosa.

In remarks delivered at a recent thought leadership event, Law Society of NSW president Elizabeth Espinosa said it was “inevitable” that legal professionals would start to take notice of neuroscience.

“Lawyers are intimately involved in questions around personal responsibility, mental states, and what factors might limit or impair a person’s control over their own behaviour,” she said.

“More lawyers are arguing that the emerging discipline of neuroscience has answers to these questions, or at least something important to say.”

Neuroscience draws upon anatomy, molecular biology and psychology to understand human nervous systems, Ms Espinosa explained, and it “delves deep into our minds by scientifically observing the various biological and chemical processes that make the brain and our nervous system function”.

“And it provides lawyers with a way to explain or contextualise the behaviour of their clients,” she submitted.

There are a number of recent examples of this, she noted, including a 2011 case, in which the Tasmanian Supreme Court accepted the evidence of a neurologist and a forensic psychiatrist “that a man guilty of child sex offences developed hypersexuality and an impulse control disorder as a result of his medication use”.

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“The judge ruled he should spend no further time in jail”, Ms Espinosa said.

Neuroscience is also being held up, she continued, as a way for our legal system to better address mental health issues.

“Section 32 of the Mental Health (Forensic Provisions) Act 1990 gives local courts the power to divert a defendant into the care of a mental health professional rather than deal with them according to criminal law,” she said.

“An accused person suffering from a mental disorder may lack the necessary mens rea, ‘the intention to do wrong,’ necessary for criminal responsibility.

“It’s the ability of neuroscience to ‘look inside’, with sophisticated brain imaging and diagnostic techniques, which makes this field particularly compelling for criminal lawyers.”

Neuroscience will increasingly influence criminal law
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