In court, the phrase “but for” is the beginning of a legal test. In therapy, it’s the start of a much longer conversation, writes Rebecca Ward, MBA.
The law asks: but for your actions, would the harm have occurred? Psychology asks: but for everything that shaped you, your wiring, your wounds, your war stories, would you have acted at all? It’s a question of causation, but also of conditioning. And while the courtroom demands clean lines, the human brain rarely offers them.
The chaser and the shotgun
Imagine this: you’re chasing Bob across the road with a shotgun. He’s terrified, bolts into traffic, and is hit by a car. You never touched him, but are you responsible? But for your pursuit, but for the threat of violence, but for the shotgun in your hands, Bob would not have died.
In criminal law, this is more than just a hypothetical. It touches on the core of factual causation. Australian courts apply the “but for” test to establish whether the accused’s conduct was necessary for the harm to occur. If yes, the law starts to colour in intent, recklessness, and liability.
This principle appears in cases ranging from R v Royall (1991), where the court had to determine whether a woman’s fatal fall was caused by her partner’s threatening behaviour, to R v Hallett (1969), where the presence of another actor (like nature, a third party, or time lapse) didn’t break the chain of causation, because the original act set the events in motion.
Similarly, in R v Blaue (1975), the defendant stabbed a woman who later refused a blood transfusion due to her religious beliefs and died. The court held that “you take your victim as you find them”. But for the stabbing, she would not have needed a transfusion; her refusal did not break the chain. The lesson? An intervening act doesn’t always dilute legal causation. It can accommodate vulnerability. It can feel unfair, and it isn’t always consistent, but it’s part of how the law assigns responsibility.
The soldier and the burdened history
Now shift perspective. A returned serviceman, after 10 years in the army and multiple deployments, shoots and kills his spouse during a domestic dispute. He is deeply depressed, socially isolated, and chronically hypervigilant.
In therapy, we don’t begin with the trigger. We begin with the tour. The sleeplessness. The dissociation. The repeated desensitisation to death. But for his conditioning, his training, his trauma, his identity as a soldier, could this have been prevented?
But for the army, he would not have been trained to kill. He would not know how to dismantle and reassemble a weapon in under a minute. He wouldn’t have the reflexes to fire in a dissociated state, a skill drilled, not born. But for his service, his intimate familiarity with lethal force might never have existed. But for that history, the act may not have occurred, not this way, and not with this level of devastation.
From a psychological perspective, “but for” doesn’t end with the act. It loops backward through systems, cultures, and decades. It considers intergenerational trauma, attachment theory, and neurobiology. The soldier isn’t let off the hook, but we acknowledge the hook was forged long before this moment. He’s not let off the hook, but we do ask how early the clock started ticking.
This tension between psychological vulnerability and legal responsibility is echoed in R v Falconer (1990). After years of alleged abuse, a wife shot her husband in a dissociative state. The High Court ruled that automatism, including that induced by psychological trauma, could negate criminal intent. Although the defence was not conclusively accepted, the court held that the trial judge had failed to properly present it to the jury. But for the years of trauma, the act may never have occurred. But for the gun’s accessibility, it may not have succeeded. But for the mental fragmentation, there may have been another way.
Whose ‘but for’ matters?
The law prioritises proximate cause, the conduct most closely connected to the harm. Psychology, on the other hand, is more comfortable with messy tapestries than single threads.
We also see this tension in family law. A child lashes out. A parent says, “I didn’t raise them like this.” But psychology says: but for the punishing silence, the graphic modelling, the unmet needs, the intergenerational blueprint, well, maybe they did. The law wants to assign fault, whereas psychology wants to understand the origin. And the problem is, we often conflate the two.
In Graham v The Queen (1998), a former SAS soldier was convicted of murder after strangling his partner. His defence argued that PTSD and military desensitisation impaired his control and intent. The High Court acknowledged the psychological evidence but held that his awareness of his actions and capacity for self-control remained intact. The decision drew a clear line: psychological complexity is not a shield from liability unless it negates intent or volition. In other words, the mind can be damaged but not broken enough to break the law’s test.
A question, not an answer
When legal professionals, jurors, or lawmakers rely solely on the “but for” test, we risk reducing human behaviour to mechanical consequence. We strip away context in favour of clarity. And sometimes clarity is necessary. Someone died. That matters. But let’s not confuse causation with character. Or responsibility with simplicity. Because the world that makes someone dangerous often begins shaping them long before they make a single choice.
The courtroom and the couch
In court, “but for” helps us draw legal lines. In therapy, “but for” is the thread we pull to unravel suffering. Both are legitimate. Both are limited.
Sometimes, the person in the dock is the person who caused the harm. Sometimes, they’re also the person who never had a chance. Let’s sit with that tension, not rush to resolve it. Because not all causation is criminal, and not all trauma is an excuse. But ignoring either serves no one.
Rebecca Ward is an MBA-qualified management consultant with a focus on mental health. She is the managing director of Barristers' Health, which supports the legal profession through management consulting and psychotherapy. Barristers’ Health was founded in memory of her brother, Steven Ward, LLB.
