‘I Blame the Parents’: Fitting New Genes in Old Criminal Laws
| DOI | http://doi.org/10.1111/1468-2230.00176 |
| Date | 01 September 1998 |
| Published date | 01 September 1998 |
‘I Blame the Parents’: Fitting New Genes in Old
Criminal Laws
Celia Wells*
Inborn defects — genetic errors — can dispose certain people to act in a way unaccept-
able to society. How the law should deal with that remains as uncertain as in Lombroso’s
day.
1
This essay seeks to contribute to our understanding of how the ‘genetic revolution’
might affect our thinking about criminal law. Would a developing belief that there
is a genetic basis to behaviour lead to a different basis for the way we think about
criminal law, and in particular about criminal responsibility? Although that is a
very large question, not least because there are many, contradictory ways of
approaching crime, criminal law and criminal justice, it is not an especially novel
one. The nature-nurture debate has appeared in many forms in the development of
criminological theories, and theories of criminal law and punishment have long
been locked in a struggle between individual responsibility or free will versus
social or biological determinism. To this debate we can then add the (belated)
contributions of feminist theorists on the gendered nature of crime and criminal
law and the important insights of social and cultural theorists in relation to the
meaning of blame and responsibility.
Drawing on debates about the relationship between law and science, the paper
distinguishes between theories which explain abnormality and those which tell us
something of ‘normality’, and concludes that notions of criminal responsibility are
generally resistant to explanations (whether from internal or external
circumstances) which seek to excuse behaviour. The thesis developed is an
essentially negative one, both in its rejection of the idea that the genetic revolution
poses particular questions for criminal law and in its reminder that criminal law
itself reflects generally the worst things about a society. Like any other available
‘knowledge’,2genetics will be a resource to be exploited as the handmaiden of the
coercive and controlling tendencies of the criminal justice system. Insofar as the
genetic revolution tells us something about ourselves, it will be reflected in
criminal law.
What kinds of questions might genetic ‘knowledge’ raise for criminal law? A
non-inclusive definition is that criminal law is a system of censure and sanction for
some types of antisocial behaviour.3Taking the term ‘criminal law’ here to include
the procedural as well as the substantive aspects of the system, we can begin to
The Modern Law Review Limited 1998 (MLR 61:5, September). Published by Blackwell Publishers,
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* Cardiff Law School, Cardiff University.
I am grateful to the Law School for funding, and to Oliver Quick for his assistance with, research, and to
Matilde Betti, Bill Felstiner, Nicola Lacey, Bob Lee and Derek Morgan for listening to my thoughts out
loud on this paper. I bear responsibility for all of its shortcomings.
1 Steve Jones, In the Blood (London: HarperCollins, 1996) 218.
2 E. Doyle McCarthy, Knowledge as Culture (London: Routledge, 1996) 4.
3 A. Ashworth, Principles of Criminal Law (Oxford: Clarendon Press, 1995) 1. It is debatable whether
it is right to qualify ‘behaviour’ with ‘antisocial’.
assess the impact that genetic information might bring to bear by taking an
example: X has caused Y harm (as defined by criminal law) to Z. One set of
questions is concerned with issues of detection and proof, ‘who is X?’ A second
type of question centres on the explanatory and attributional, ‘why did X cause Y?’
This might also take us to a third question, do we have the information which
might prevent X from doing Y in the future or, could it have been anticipated, can
we predict that X or people like X will do Y? This question of prediction might
have two sorts of implication: in relation to X, would it justify some preventive
measure? And in relation to Z, what obligations or responsibilities are owed to Z or
other potential victims? These are all questions with which criminal law or the
criminal justice system are already engaged, and they broadly break down into
three sets: genetics and criminal process, genetics and responsibility, and genetics
and punishment or disposal. While old-fashioned fingerprinting itself depends on
genetic differences, the introduction of DNA profiling does raise important
different questions.4However, I propose here to leave aside matters related to
detection and proof and to concentrate on perhaps less obvious questions about the
broader role of crime in society, about the construction of responsibility in criminal
law and related issues. The ‘genetic revolution’ prompts an exploration of the
assumptions underlying some of the core aspects of criminal law. The central
question is one of attribution — who or what should be held responsible, what
weight should be given to genetic abnormalities, or for situational misfortune such
as poverty or emotional deprivation, and how should such factors be reflected in
punishment or disposal? To approach this question we need first to think about the
role of criminal law in society, about science, and about what we know of
biological causes of behaviour.
To say that criminal behaviour is behaviour prohibited by criminal law only
takes us so far,5and to make sense of a debate about genetics and criminal law we
have to reframe the question. It is about genetics and some types of behaviour
which happen to be criminal (for example, intentional violence or sexual abuse),
rather than about a category called criminal offences.6To look for a genetic
predisposition or explanation for bigamy or for parking on double yellow lines, or
owning a dangerous dog, would make little sense — although to look for a
predisposition to lying or for risk-taking might be different.7Even if we were to
take intentional violence as our starting point, there is still a social constructional
element in determining the acceptability and tolerability of different types of
violence. This is not fixed, violence to wives and partners is less tolerated than
previously, bullying at school is less tolerated. Even taking an apparently clear
category — such as homicide — we will find variations in its perception depending
on who does it, where it is done, and who the victim is.
When we talk about criminal behaviour, criminal responsibility and criminal
punishment, what model of criminality and criminal law does the debate assume?
4 N. Lavranos, ‘DNA Profiling and Information Technology: A New Weapon for Crime Detection and
Prevention?’ (1994) European Jnl of Criminal Law 595; M Redmayne, ‘Science, Evidence and Logic’
(1996) 59 MLR 747.
5 Ashworth, n 3 above, Introduction.
6 Those who argue the biological cause often limit their inquiries to violent and/or sexual offenders. For
an example see A. Moir and D. Jessel, A Mind to Crime: The Controversial Link between the Mind
and Criminal Behaviour (London: Michael Joseph, 1995).
7 Farrington found that the factors associated with criminal careers also correlated with behavioural
traits such as daring, sexual intercourse and drinking at a young age. D. Farrington, ‘Human
Development and Criminal Careers’ in M. Maguire, R. Morgan and R. Reiner, The Oxford Handbook
of Criminology (Oxford: OUP, 1997) 361.
September 1998] Genetics and Criminal Law
The Modern Law Review Limited 1998 725
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