The Willed Trance: Volition, Voluntariness and Hypnotised Defendants

AuthorJames Mason
Published date01 February 2021
Date01 February 2021
DOIhttp://doi.org/10.1177/0022018320963551
Subject MatterArticles
Article
The Willed Trance: Volition,
Voluntariness and Hypnotised
Defendants
James Mason
Teesside University, UK
Abstract
Traditionally, jurists have distinguished between voluntary/involuntary behaviour via the
theory of volition. Though perceived as the conventional approach, this paper argues that
the volitional understanding of voluntariness is an inadequate instrument for assessing
complex behaviours which seemingly portray a striking level of intelligence and purpo-
siveness on the part of the accused. In particular, the phenomenon known as hypnotically-
induced behaviour, which forms the focus of this paper, is one such troublesome case. To
this end, the version of the volitional theory most staunchly advocated by Professor Michael
Moore is singled out for scrutiny, due to his strong sentiments supporting the application of
his philosophy to these aforementioned behaviours. In contrast to Moore, this paper sug-
gests that the position most recently proposed by the Law Commission of England and
Wales within their discussion paper on the defences of insanity and automatism is to be
preferred. Specifically, the Commission recommend substituting the theory of volition for
that of ‘control’ as a means for assessing the voluntariness of any given behaviour. This paper
submits that a theory of control has two major advantages over the traditional theory of
volitionalism. First, the possession/absence of control more accurately reflects the con-
temporary system of criminal law in England and Wales. Second, a theory of control is more
conceptually defensible as an explanation for why behaviours performed under hypnosis are
typically perceived as involuntary.
Keywords
Voluntariness, volition, hypnosis, automatism, control
Introduction
This paper offers a critical examination of the fundamental principle that criminal responsibility requires
voluntariness of action. Specifically, it centres on the traditional meaning of a voluntary act as ‘willed
Corresponding author:
James Mason, School of Social Sciences, Humanities and Law, Teesside University, Middlesbrough TS1 3BX, UK.
E-mail: jamesmason_98@hotmail.com
The Journal of Criminal Law
2021, Vol. 85(1) 26–43
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/0022018320963551
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bodily movement’,
1
andattemptstoapplythistheorytoinstances of complex, Purposive conduct,
such as that committed under hypnosis. Given that the commission of a criminal act is ‘rarely
accompanied by a complete lack of consciousness and bodily control’, hypnotism represents an
exemplar of how difficult judgments need to be made regarding the de gree of loss of consciousness
and attention at the specific time.
2
Contrary to the position of Michael Moore
3
—the leading proponent
of the traditional theory of voluntary action—it is contended that volitionalism is unable to adequately
defend the proposition that defendants behaving under hypnotic influences act involuntarily. This
verdict is reached by drawing upon the work of scholars who have directly challenged the application
of Moore’s volitional theory to a number of problematic cases.
4
These include somnambulism, beha-
viour under or due to hypnosis, and that which is more g enerally characterised as conduct performed
when the actor is dissociated.
As a result, this paper examines the proposals set forth by the Law Commission of England and
Wales.
5
The Commission suggest that the con cept of volition should not be the de cisive factor in
determining whether the conduct of an accused was performed voluntarily.
6
Rather, in framing their
reformed defence of involuntary conduct (otherwise known as automatism) the Commission emphasise
the notion of ‘control’ and its relationship to voluntariness.
7
The theories of ‘control’ and ‘volition’ are
subsequently distinguished, before the former most position is supported as a more accurate represen-
tation of current criminal law doctrine. If hypnotism operates as we commonly believe it does, a lack of
control, as opposed to a lack of volition, is also a more accurate description of the defect present in these
individuals. The paper concludes, however, by briefly acknowledging the numerous practical difficulties
inherent in allowing a defendant to successfully plead automatism when he/she has allegedly been
hypnotically induced to commit the crime in question. As such, while a hypnotism defence may be
theoretically plausible, it is highly unlikely that society will encounter a defendant receiving a full
acquittal through its practical usage any time soon.
Part 1
Automatism and the Voluntary Act Requirement
Eminent legal scholars often state that the requirement of actus reus, otherwise known as a voluntary act,
is the minimum condition necessary for the imposition of criminal culpability.
8
Together with mens rea,
the actus reus is derived from the familiar slogan entitled actus non facit reum nisi mens sit rea, which
means ‘an act does not make a person guilty unless their mind is also guilty’.
9
This conveys that criminal
culpability requires blameworthiness of both mind and behaviour. In other words, the voluntary act must
generally be accompanied by either intention, knowledge, recklessness, etc.
Given this initial requirement that the offence for which the accused is charged was engaged in
voluntarily, it is unsurprising that an involuntary act is thus perceived as one that is undeserving of
1. D Dolinko, ‘Action Theory and Criminal Law’ (1996) 15 Law Philos 293.
2. J Bird, M Newson and K Dembny, ‘Epilepsy and Automatism’ in S Young, M Kopelman and M Gudjonsson (eds), Forensic
Neuropsychology in Practice: A Guide to Assessment and Legal Practices (OUP, Oxford 2009) 172.
3. MS Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (OUP, Oxford 1993).
4. B Williams, ‘The Actus Reus of Dr Caligari’ (1994) 142 U Pa L Rev 1661–74; SJ Morse, ‘Culpability and Control’ (1994) 142
U Pa L Rev 1587, 1641–52.
5. Law Commission, Criminal Liability: Insanity and Automatism (LCDP, London 2013).
6. Ibid para A.54.
7. Ibid para 5.124.
8. PH Robinson, ‘A Functional Analysis of Criminal Law’ (1994) 88 Northwest U L Rev 857, 862; AJ Ashworth, Principles
of Criminal Law (OUP, Oxford 1999) 100; J Dressler, Cases and Materials on Criminal Law (5th edn West Academic
Publishing, Saint Paul 2009) 127.
9. E Coke, The Third Part of the Institutes of the Laws of England (first published 1644, The Lawbook Exchange Ltd, Clark
2012) 107.
Mason 27

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