Past Trauma Elicits More Sympathy Than a Mental Health Condition

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Mental health

A study from the United States has found that jurors are generally more sympathetic towards defendants who have experienced a difficult upbringing than those who suffer from chronic brain injuries and disorders such as paranoid schizophrenia and anti-social personality disorder.

And while both traumatic childhood experiences and mental disorders (which are often linked) may form the basis of submissions for a lenient sentence, the study has informed the way some practitioners go about representing their clients in the jury system.

Link between mental disorders and crime

The link between mental disorder and criminality is long-established, with some Australian studies suggesting that up to 50% of inmates in our country suffer from some form of mental health conditions.

When it comes to anti-social personality disorder, it is estimated that only around 1% of the general population suffers from the condition while around 20% of prison inmates are affected. The condition is thought to be associated with lower volume and activity in the brain’s frontal lobe and amygdala, causing less emotional control, impulse regulation and empathy – a state which can increase the propensity for criminal conduct.

Study of public perceptions

Despite the link, the United States study suggests that jurors are far less sympathetic towards such conditions than they are to submissions regarding past traumatic events.

The study’s co-author, associate professor Philip Robbins of the University of Missouri, expressed some surprise about the results – namely the lack of sympathy for those who have not experienced a difficult upbringing but nevertheless have conditions associated with brain imbalances and trauma.

“We are used to thinking that if people who commit criminal acts suffer from a mental disorder, then that should be taken into account when assigning blame and punishment for their crimes,” he remarked, adding that this is not necessarily the case.

Professors Robbing and Paul Litton sought to determine how members of jurors assign blame for criminal offending, specifically whether there is a difference in how they see those who suffer from disorders when compared with those who experienced a difficult life.

They conducted two surveys with a total of 600 participants, looking at the degree of blame and level of punishment attributed in different circumstances.


They found that offenders with mental disorders that predisposed them to criminal behaviour were judged more harshly than those who sought to explain their offending through past environmental factors, such as childhood abuse.

Offenders who were “victims themselves” were generally treated with significant leniency, while those with disorders but without a difficult past were given longer sentences.

Environmental victimhood

The researchers predicted that those who developed disorders due to factors not attributable to themselves would be treated more leniently than those mentally injured by way of accidents, such as falls or motor vehicle collisions.

“Our theory was that people who have been intentionally harmed by caregivers are seen as more victim-like than people who have suffered accidents,” Robbins stated. “If so, intentional harm should be associated with less negative moral judgment than non-intentional harm.”

However, the study found that the source of the disorder made little difference to how members of the public attributed responsibility and assigned punishment.

Sentencing laws in NSW

Section 3A Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing, which are to:

  • Ensure that the offender is adequately punished for the offence
  • Prevent crime by deterring the offender and other persons from committing similar offences
  • Protect the community from the offender
  • Promote the rehabilitation of the offender
  • Make the offender accountable for his or her actions
  • Denounce the conduct of the offender
  • Recognise the harm done to the victim of the crime and to the community.

An offender’s mental condition can, in certain circumstances, lead to a finding of reduced moral culpability, causing less emphasis to be placed on ‘general deterrence’ (ie deterring others from committing crimes) and ultimately resulting in a more lenient penalty.

The rationale for this was explained in the case of Muldrock v the Queen, where the High Court said, “General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.”

This law, both in the above legislation and precedent, does not explicitly treat genetic and environmental-caused mental disorders differently. The above study, however, suggests that juries will not give the credence to both of these arguments on reduced moral culpability, with a higher sense of victimhood attached to those disorders caused by something in the offender’s environment.

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Zeb Holmes

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.

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