This post was original published on The Neuroethics Blog.
Last week, Reuters carried a story by Kate Kelland about a pediatrician in Italy, Domenico Mattiello, accused of sexually abusing his patients. His lawyers plan to present evidence that his pedophilic urges are the result of a brain tumor and argue that the judge in the case should be lenient. As the Reuter’s story mentions, this case is very similar to a US case I blogged about a few months ago, where a 40 year old man suddenly developed pedophilic urges and had to be removed from his home. The US case was presented at a medical conference, with very little discussion of criminal charges, while Mattiello’s case is presented by Kelland as an extreme example of the sort of challenges neuroscience may bring to our understandings of criminal responsibility. I want to push back against this framing, and argue that a tumor such as this poses an interesting ethical question because it does not simply challenge ideas about criminal responsibility, but also serves as a good example of the different responses to “acquired” pedophilia and “innate” pedophilia.
For many discussions about these cases, the newest article by Kelland included, a brain tumor that causes sexually criminal behavior functions as a limit test for neuroscience in the courtroom. It is only reasonable to ask ourselves, as a society, how far are we willing to extend lenience to someone who argues that a crime he or she committed was beyond his or her control, and thus we often employ limit tests to explore boundaries. Since sexual crimes against children are, for many people, the worst possible type of crimes, questions about pedophilic behavior are a common test for ideas about criminal responsibility and mental illness. Mattiello’s case is used in Kelland’s article as a limit test for the “my brain made me do it” defense in this way.
But the idea of a brain tumor that causes sexual impulses is interesting because it serves as a limit test for our understandings of the intersection between mental health and sex crime. Sex crimes occupy a unique position within United States law not only because of the abhorrence of the crimes themselves but also because of the way sex crime law both relies on and rejects certain psychological ideas about mental illness (I have no idea how this is paralleled in Italy, but if anyone reading this does, please comment or email me because I would love to know.) Most of the rhetoric around sex offenders is that they are both incurable and untreatable, and often sex offenders are treated as irredeemably bad people rather than people who have done bad things.
All discussions about sexual crimes, especially sexual crimes against children, that have occurred in the United States since the mid-1990s have taken place under the umbrella of what are known as “sexual predator” laws. According to the original legal definition, a sexual predator is someone who commits violent sexual crimes and suffers from a mental abnormality that makes it unlikely that he or she will stop doing so. The laws as they exist in the United States state that the mental abnormality does not have to be treatable, and, in fact, in many situations must necessarily be untreatable. This is largely due to the fact that the most common mental disorders diagnosed in this type of criminal have been things like pedophilia, paraphilia not otherwise specified, and anti-social personality disorders, all of which are extremely difficult to treat.
In this context, the concept of a brain tumor which causes someone to commit sexual crimes also serves as a limit test for gauging moral reactions to a form of pedophilia that responds to medical treatment. Let me give a more concrete example of what I mean by moral reaction. Back in June, Dr. James Cantor wrote an opinion piece on CNN in response to the Sandusky trial titled “Do pedophiles deserve sympathy?” . Cantor argues for more comprehensive mental health care for people suffering from pedophilia based on a separation of the mental disorder of pedophilia from the criminal act of sexually abusing children. The idea is that although pedophilia is incurable, not all people who have pedophilia actually commit sexual crimes, and thus we could, and should, extend some measure of sympathy to people who suffer from pedophilic urges but do not commit crimes.
His entire argument rests on the immutability of pedophilia, as he says, on the idea that “no one has been able to find a way to change pedophiles into nonpedophiles.” That is not the situation here. Both of the tumors in these cases were treatable. In the US case, the patient’s behavior returned to normal after his tumor was removed (although it returned as the tumor regrew). Mattiello is currently undergoing cancer treatment, and doctors are still waiting to see if the removal of the tumor has changed his behavior patterns, although the actions of his lawyers indicate they are fairly hopeful this will be the case.
Now, I am not saying that these brain tumors prove all pedophilia is curable – far from it. The discovery of brain tumors that make people commit sex crimes could be seen as further evidence that sexual predators are fundamentally (or “biologically”) different from non-predatory humans – perhaps because they have permanent issues in the portion of the brain where these tumors cause temporary ones. This sort of trajectory would go right into the territory of essentialism, and Kristina Gupta and I have both blogged about the pitfalls encountered when sexual behavior is essentialised.
Further, given the current state of sexual predator laws, I would bet a discovery such as this would only serve to bolster the quarantine that is already taking place. This is why when I read an article about how brain science is being mis-used to argue that pedophilic sex criminals are “not responsible,” and which seems to indicate that lenience towards a man with a brain tumor such as this will lead towards letting sex criminals go free, I cannot help but be skeptical. All the laws we already have in place seem to indicate quite the opposite: that these types of criminals are not on the extreme edge of criminal behavior we imagine them to be, but are, in fact, in a category of their own. To me, this means using Mattiello’s case as a limit test for the forensic use of neuroscience, as the Kelland’s article for Reuters does, is a little misleading. While it seems entirely plausible that “my brain made me do it” might work as a defense for certain types of crimes, it might never fully excuse sexual crimes and crimes against children – but that doesn’t mean it will not succeed fully.
A case like Mattiello’s, viewed through the lens of US law and culture, gives us a situation in which someone commits unforgiveable crimes due to what might otherwise be seen as a forgivable situation. It presents a limit case on the rights of people who commit these crimes to receive medical treatment. The ethical question presented by these particular brain tumors is not, ‘Should we hold these men responsible in terms of legal guilt,’ but rather, ‘How does knowing about the cause of their medical cause help us to move towards real empathetic solutions even while maintaining guilt?’
Moving outward from these cases, I offer the following questions: Could an understanding based on treatability be extended to someone who commits sex crimes as a result of a medication, as was discussed a few months ago on the University of Oxford’s Practical Ethics blog? What about to medical issues that are not as straightforward as brain tumors or medications, or disorders that are fully in the realm of psychology, with no attendant measurable neurological component? Could we, as Cantor urges we should, separate out an incurable disorder from a compulsion to commit criminal acts, even if those criminal acts are beyond the limits of forgiveness?
 It is impossible for me to talk about a pedophilic pediatrician without thinking of this story.
 Although I am not focusing on it here, the original article does not really highlight that Italian law differs significantly from US law in very important areas when it comes to our understanding of criminal responsibility: Italian law does not follow the US idea of mens rea, use due process as the US defines it, or allow for a jury trial, for starters. News articles that jump from one jurisdiction to another as if “responsibility” were defined the same within all criminal courts make me grumpy – much as cavalier uses of “lizard brain” do to David Nicholson.
 The innocence of children and the placement of violent crimes against children in an overall scale of “worst crimes to commit” are both culturally contingent and historically variable. See the work of Kathy Stuart and Tyge Krogh (an English version of Krogh’s book is summarized here.)
 Pedophilia is often cited as the major argument against re-instating the “control test” standard for a not guilty by reason of insanity plea – see Penney, S., Impulse control and criminal responsibility: Lessons from neuroscience. International Journal of Law and Psychiatry, 2012. 35(2): p. 99-103.
 These laws, which allow for civil commitment in some states and for lifetime surveillance in others, are designed to target what are perceived to be the worst types of sexual offenders: people who are compelled to seek out victims and cannot control this compulsion. Despite the fact that sexual predators are not necessarily pedophilic, the concept of the sexual predator is firmly linked to the victimization of children – the television show To Catch a Predator is a good example.
 Schleim, S., Brains in context in the neurolaw debate: The examples of free will and “dangerous” brains. International Journal of Law and Psychiatry, 2012. 35(2): p. 104-111.