Criminal law in the wake of science – Can neuroscience inform criminal law? Medico-legal perspectives from South Africa

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

Criminal law in the wake of science – Can neuroscience inform criminal law? Medico-legal perspectives from South Africa

Author: Philip Stevens

ISSN: 1996-2118
Affiliations: LLB LLM LLD (Pretoria); Professor in Criminal Law, Department of Public Law, University of Pretoria
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 209 – 234
https://doi.org/10.47348/SACJ/v37/i2a3

Abstract

The role of science and, more specifically, medical science in explaining criminal behaviour has been acknowledged since time immemorial. With reference to the defence of pathological criminal incapacity within the context of substantive criminal law, the role of mental health sciences is well established. The defence of pathological criminal incapacity has historically been rooted within the fields of forensic psychiatry and psychology. Recently the role of neuroscience in assessing criminal responsibility has become an issue of academic and practical debate. A question that falls to be assessed is whether the time has arrived to open the door to other sciences, such as neuroscience, to supplement the traditional mental health science model to assess criminal responsibility properly. In this article, the defence of pathological criminal incapacity will be used as an example of an area within substantive criminal law where the role of science becomes crucial in assessing criminal responsibility. The historical context of this area of criminal law will be canvassed against the backdrop of advances made in neuroscience to provide an alternative perspective to the traditional model of mental health science. From a procedural perspective, issues relating to the admissibility of neuroscientific evidence will be addressed in order to illustrate both the substantive criminal law pertaining to the theme of discussion as well as the procedural aspects relating to the theme.
‘(Neuroscience) is one of those things that holds both promise and terror for the legal system.’

Note: Minimum sentences for rape involving more than one perpetrator – Recent case law [Director of Public Prosecutions, KwaZulu-Natal Pietermaritzburg v Ndlovu (888/2021) [2024] ZASCA 23 (14 March 2024)]

by | Dec 7, 2024 | SACJ, SACJ V37 I2 2024

Note: Minimum sentences for rape involving more than one perpetrator – Recent case law [Director of Public Prosecutions, KwaZulu-Natal Pietermaritzburg v Ndlovu (888/2021) [2024] ZASCA 23 (14 March 2024)]

Author: Jolandi le Roux-Bouwer

ISSN: 1996-2118
Affiliations: Professor, Department of Criminal and Procedural Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 37 Issue 2, p. 235 – 247
https://doi.org/10.47348/SACJ/v37/i2a4

Abstract

None

Inclusive pre-sentencing reports for children who conflict with the law: Applying and executing section 71 of the Child Justice Act

by | Aug 10, 2024 | SACJ, SACJ V37 I1 2024

Inclusive pre-sentencing reports for children who conflict with the law: Applying and executing section 71 of the Child Justice Act

Authors: Maryna Human, Leandré C Geoffrey and Theophilus Lazarus

ISSN: 1996-2118
Affiliations: PhD; School of Criminal Justice, University of South Africa; BA(Hons) MA PhD (Unisa); Senior Lecturer, Department of Criminology and Criminal Justice, University of Limpopo; PhD MNAN (USA); Adjunct Professor, Department of Psychology, Emory University, Registered Neuropsychologist (Health Professions Council of South Africa)
Source: South African Journal of Criminal Justice, Volume 37 Issue 1, p. 1 – 20
https://doi.org/10.47348/SACJ/v37/i1a1

Abstract

Despite the progressive nature of the Child Justice Act (CJA) to uphold the best interest principle of all children who come into conflict with the law, s 71(1) and (2) of the CJA that outlines the pre-sentencing evaluation reports required for sentencing, fail to meet and uphold this objective. This is of particular importance given the multi-complex and multi-faceted advancements in scientific findings regarding the development of criminal behaviour in children. This paper reviewed and concluded the following key aspects pertinent to the execution of pre-sentencing reports: (1) practitioners are not provided with clear guidelines specifying key factors that need emphasis in the pre-sentence reports; (2) practitioners are often inexperienced in child development (brain and psychological) processes and lack the requisite knowledge and skills in crime causation to compile the reports; and (3) the best interest principle is hampered by a severe staffing problem, heavy workloads, and tight timeframes governing the compilation and submission of reports.
This submission was primarily influenced by the findings from research that explored and subsequently developed an action plan for criminologists with a view toward specialisation in child justice. A literature review and analysis of pre-existing findings from the aforesaid research, coupled with reviews of academic literature from various academic scientific sources formed the basis of the arguments presented in this submission.