Alcoholism and Criminal Liability

AuthorJulia Tolmie
Published date01 September 2001
DOIhttp://doi.org/10.1111/1468-2230.00346
Date01 September 2001
Alcoholism and Criminal Liability
Julia Tolmie*
Having examined the question of whether alcoholism should be regarded as a
disease or habitual and learned behaviour, the article assesses from a
comparative law perspective the effect of alcoholism as a defence to criminal
responsibility. The article proposes a `disease'model of alcoholism for the
purpose of criminal law, and criticises its handling through the law of diminished
responsibility.
This article examines the role that the phenomenon of alcoholism should and does
play in the construction of criminal responsibility. It begins by reviewing the
sociological and medical literature to find very polarised accounts of what
alcoholism is. There are those who argue that it is a distinct condition or ‘disease’
that can come with a raft of symptoms. On the other hand there are those who
would argue that alcoholism is a set of dysfunctional learned behaviours or habits
around the drinking of alcohol. Irresolvable controversy exists between these two
positions.
The article then goes on to explore the specific rules around criminal liability
and concludes that the different models of alcoholism have very different
consequences for the purposes of establishing liability. Put simply, if one views
alcoholism as a disease then one should arguably take it into account in relation to
a number of the criminal defences. On the other hand if one views it as simply a
habit then it becomes of less relevance for the purpose of determining liability. In
the process of examining the rules on criminal liability the article also reviews the
case law in England, Australia and New Zealand to conclude, unsurprisingly given
the level of confusion in the empirical literature,1that it is unresolved around how
the phenomenon of alcoholism should be characterised for the purposes of
establishing criminal liability. In the one context where judges appear to have been
willing to tackle the issue – in relation to the defence of diminished responsibility –
they appear to have required that the defendant, to benefit from the defence,
conform to a model of alcoholism that even the most hardened alcoholic would
find difficult to meet.
Finally the article concludes by briefly suggesting that the most pragmatic way
of dealing with the social problem that alcoholism presents in the context of the
criminal law is to accommodate the defendant’s alcoholism as a sentencing issue.
It suggests that this will be realistically achieved by adopting a disease model of
alcoholism that contemplates impaired control in relation to drinking and a raft of
other symptoms, as opposed to the more extreme disease models or variants of the
habit model.
ßThe Modern Law Review Limited 2001 (MLR 64:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.688
* Senior Lecturer in Law, Auckland University. This article was funded by the Chapman Tripp Research
Scheme. Special thanks to Marie Van Wyk for her research assistance.
1 Illustrated by the clash of expert opinion in Ryan (1996) 90 A Crim R 191
The phenomenon of alcoholism
The two models
An obvious feature of the condition of alcoholism is excessive drinking which
results in negative consequences.2However, not all those who drink to excess are
necessarily considered alcoholic,3and it is surprisingly difficult to be more specific
in definition. A review of the enormous body of material attempting to understand
and describe alcoholism reveals two competing conceptualisations of the
phenomenon. For the sake of simplicity these can be labelled the ‘disease model’
and the ‘habit model’.4
According to the first model alcoholism is a disease.5This view is espoused by
the grass roots community organisation of Alcoholics Anonymous (AA) and
treatment programmes that utilise the understandings and resources of that
organisation.6The idea is that alcoholism is an abnormal mental or behavioural
condition that a person suffering from which has no choice about other than the
decision about whether or not to embark on treatment. In contrast are the views of
those who argue that alcoholism is not a disease but rather a learned behaviour.7
More like a habit, the accumulation of lifestyle choices, or an automatic and
dysfunctional coping strategy. This view tends to be adhered to by cognitive
behavioural professionals.8
Points of contrast between the models
For the purposes of assessing criminal liability there are three significant points of
divergence between these two approaches. The first is that the disease model views
alcoholism as an abnormal mental condition, whereas the habit model views
alcoholics as involved in normal human processes but making bad choices.9The
second is that some disease models of alcoholism view the condition as involving a
total loss of control over drinking, whereas some disease models and all habit
models view an alcoholic’s control over their drinking as impaired rather than
2 R.Massey, ‘The Intoxication Defense in Florida’ (1989) 16 Criminal Justice and Behaviour 325, 332.
3 M. Keller, ‘The Disease Concept of Alcoholism Revisited’ (1976) 38 Journal of Studies on Alcohol
1694.
4 J. Chick, ‘Alcohol Dependence – An Illness with a Treatment’ (1993) 88 Addiction 1481; J. Collins
and M. Wolfgang, Drinking and Crime: Perspectives on the Relationships Between Alcohol
Consumption and Criminal Behaviour (London : Tavistock, 1981).
5 See, for example, Chick, ibid; Keller, n 3 above; D. Yalisove, ‘The Origins and Evolution of the
Disease Concept of Treatment’ (1998) 60 Journal of Studies on Alcohol 469; W. Lehman,
‘Alcoholism, Freedom, and Moral Responsibility’ (1990) 13 International Journal of Law and
Psychiatry 103; S. Nemerson, ‘Alcoholism, Intoxication and the Criminal Law’ (1988) 10 Cardozo
Law Review 393.
6 On the reasons why the disease model is likely to remain highly influential in practical terms, see
Kalett, n 36 below.
7 See, for example, Heather and Robertson, n 9 below; H. Fingarette, ‘Response to Lehman’s Article
‘‘Alcoholism, Freedom and Moral Responsibility’ ’ (1990) 13 International Journal of Law and
Psychiatry 123; H. Fingarette, ‘The Perils of Powell: In Search of a Factual Foundation for the
‘‘Disease Concept of Alcoholism’’’ (1970) 83 Harvard Law Review 793; S. Peele, ‘Does Addiction
Excuse Thieves and Killers from Criminal Responsibility?’ (1990) 13 International Journal of Law
and Psychiatry 95.
8 Collins and Wolfgang, n 4 above. J. Finney, C. Noyes, A. Coutts, R. Moos, ‘Evaluating Substance
Abuse Treatment Process Models: I Changes on Proximal Outcome Variables During 12 Step and
Cognitive-Behavioural Treatment’ (1998) 60 Journal of Studies on Alcohol 371.
9 N.Heather and I. Robertson, Problem Drinking (Oxford, New York, Tokyo: Oxford University Press,
3rd edn, 1997).
September 2001] Alcoholism and Criminal Liability
ßThe Modern Law Review Limited 2001 689

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