November morning in 2011. It was a seminar organized by the AAAS—American Association for the Advancement of Science—aimed at bringing neuroscientists together with the judiciary. 29 I suggested to them that Mr. Oft
was
legally responsible for his pedophilia. Every one of these judges agreed. It’s not that I have any expertise in law—unlike my good colleague Stephen Morse, at the University of Pennsylvania Law School, who is an international expert on criminalresponsibility and who educated me on the case.
How can that decision possibly be reached when we have a clear-cut case of a medical condition—far beyond the individual’s control, let alone his wishes—that hijacks his brain control center and turns him into a sexual predator? Pedophilia in itself is so “unnatural” that it smacks of a clinical disorder even if there were no corroborative medical evidence. 30 How can you turn a blind eye to the on-off tumor growth and the on-off pedophilia?
The legal answer is relatively simple. In American law, legal responsibility is defined in terms of mental capacity—specifically, the capacity for rational thought. 31 Let’s assume that you clearly committed a criminal act. In order not to be held responsible, you need an “affirmative defense.” Here you “affirm” that the crime took place—you did it—but your defense is that you are not culpable or worthy of blame because you lacked “rational capacity.” You could lack rational capacity because you were suffering from a seriousmental illness such asschizophrenia, or because you were mentally retarded, or because you were just a young, irresponsible child. 32 If you could be shown to lack normal capacity for rational thinking, you would not be held responsible for the crime you committed, even if you freely admit to committing the crime. 33 In these cases, you lack substantial capacity to appreciate the wrongfulness of your act.
To translate this legalese into common parlance, rational capacity requires two basic conditions. First, you knew what you were doing. Second, you knew that what you were doing was wrong. How does Mr. Oft’s mental state line up with these two conditions?
On the first condition, Mr. Oft knew what he was doing. He freely admitted to the fact that he knew he was going to bed with his twelve-year-oldstepdaughter and molesting her. On the second condition, he knew that what he was doing was wrong. It was almost as if he, like me, had a Dr.Jekyll and a Mr. Hyde inside him, with Mr. Hyde having a more telling influence. In reflecting on his pedophilic action with his stepdaughter he comments: “Somewhere, deep, deep in the back of my head, there was a little voice saying ‘You should not do this.’ But there was a much louder voice saying ‘What the heck? Why not?’ ” 34
No matter what you would like to believe—or what you think others should believe—there is no hiding from the legal fact that Mr. Oft is responsible for his pedophilic acts. He was fully aware of his action at a cognitive level.
Yet how in the course of justice would you compare Mr. Oft to a pedophile who did just the same act—but did not have that whopping orbitofrontaltumor clouding his moral sense and propelling him to those under-the-sheets illicit activities? Are they one and the same? If you agree, Mr. Oft would beg to disagree: “Now, whether I should be held as accountable for it as someone without a tumor? No, I don’t think so.” 35 Nevertheless, under current law in the United States, they are both viewed as legally responsible for their acts.
Mr. Oft knew what he was doing. Yet, at another level—at the affective, emotional level—there was something amiss in Oft. As his wife, Anne, comments when she discusses how she confronted Mr. Oft on what he did: “It seemed as though he got that what he was doing was wrong, but he just didn’t seem to get it. He just sort of had this look of ‘What?’ ” 36
Yes, Mr. Oft knew at a
was
legally responsible for his pedophilia. Every one of these judges agreed. It’s not that I have any expertise in law—unlike my good colleague Stephen Morse, at the University of Pennsylvania Law School, who is an international expert on criminalresponsibility and who educated me on the case.
How can that decision possibly be reached when we have a clear-cut case of a medical condition—far beyond the individual’s control, let alone his wishes—that hijacks his brain control center and turns him into a sexual predator? Pedophilia in itself is so “unnatural” that it smacks of a clinical disorder even if there were no corroborative medical evidence. 30 How can you turn a blind eye to the on-off tumor growth and the on-off pedophilia?
The legal answer is relatively simple. In American law, legal responsibility is defined in terms of mental capacity—specifically, the capacity for rational thought. 31 Let’s assume that you clearly committed a criminal act. In order not to be held responsible, you need an “affirmative defense.” Here you “affirm” that the crime took place—you did it—but your defense is that you are not culpable or worthy of blame because you lacked “rational capacity.” You could lack rational capacity because you were suffering from a seriousmental illness such asschizophrenia, or because you were mentally retarded, or because you were just a young, irresponsible child. 32 If you could be shown to lack normal capacity for rational thinking, you would not be held responsible for the crime you committed, even if you freely admit to committing the crime. 33 In these cases, you lack substantial capacity to appreciate the wrongfulness of your act.
To translate this legalese into common parlance, rational capacity requires two basic conditions. First, you knew what you were doing. Second, you knew that what you were doing was wrong. How does Mr. Oft’s mental state line up with these two conditions?
On the first condition, Mr. Oft knew what he was doing. He freely admitted to the fact that he knew he was going to bed with his twelve-year-oldstepdaughter and molesting her. On the second condition, he knew that what he was doing was wrong. It was almost as if he, like me, had a Dr.Jekyll and a Mr. Hyde inside him, with Mr. Hyde having a more telling influence. In reflecting on his pedophilic action with his stepdaughter he comments: “Somewhere, deep, deep in the back of my head, there was a little voice saying ‘You should not do this.’ But there was a much louder voice saying ‘What the heck? Why not?’ ” 34
No matter what you would like to believe—or what you think others should believe—there is no hiding from the legal fact that Mr. Oft is responsible for his pedophilic acts. He was fully aware of his action at a cognitive level.
Yet how in the course of justice would you compare Mr. Oft to a pedophile who did just the same act—but did not have that whopping orbitofrontaltumor clouding his moral sense and propelling him to those under-the-sheets illicit activities? Are they one and the same? If you agree, Mr. Oft would beg to disagree: “Now, whether I should be held as accountable for it as someone without a tumor? No, I don’t think so.” 35 Nevertheless, under current law in the United States, they are both viewed as legally responsible for their acts.
Mr. Oft knew what he was doing. Yet, at another level—at the affective, emotional level—there was something amiss in Oft. As his wife, Anne, comments when she discusses how she confronted Mr. Oft on what he did: “It seemed as though he got that what he was doing was wrong, but he just didn’t seem to get it. He just sort of had this look of ‘What?’ ” 36
Yes, Mr. Oft knew at a
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