Mind, Body, and the Criminal Law
Year: 2013
Type: article
Abstract: For a large number of crimes against the person, the criminal law requires that an assailant inflict or attempt to inflict bodily, not just mental, injury upon his victim. If brain science increasingly challenges the criminal law to determine with more precision where (non-criminalized) injury to the “mind” ends and (criminalized) injury to the 'body' begins, revisiting the definition of bodily injury will be of great importance. Current statutory definitions and judicial understanding of bodily injury rely on the assumption, to date un-tested, that lay people share a common understanding of what does and does not constitute bodily injury. In light of this assumption, the Article revisits bodily injury through a series of original experiments (the first set of which are reported in this draft) designed to answer three questions. First, is there a common understanding about whether 'mental' injuries are clearly excluded from the bodily injury category as the criminal law implicitly assumes there is? Second, can jury instructions (containing different definitions) reliably demarcate the contours of the bodily injury category? Third, how might the introduction of neuroscientific evidence affect lay judgments about what is, and is not, bodily injury? The analysis finds that: (1) when asked to categorize injuries such as recurring headaches, memory loss, Post-Traumatic Stress Disorder, and depression, lay people exhibit much confusion and disagreement about whether these are 'bodily' injuries; (2) variance in bodily injury determination is sensitive to the jury instructions provided, and to the brain-based arguments and evidence presented; and (3) the effect of neuroscientific evidence on lay determination of bodily injury is potentially powerful – but can also readily restricted by jury instructions that explicitly exclude mental injury. Taken together, the findings in this Article clearly suggest that – if the criminal law follows civil law in recognizing the biological and thus physical basis for mental injury – then the definition of bodily injury will need to be more precisely and explicitly crafted. The Article provides a series of options legislatures can consider.
Source: Minnesota law review
DOI: 10.24926/265535.1275
Author: Francis X. Shen
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2208305396