Abstract:
This research paper primarily fixates on how early exposure to abuses and maltreatment leads to violent tendencies in later stages of life. Various theories propounded by thinkers and psychologists that draw a relation between child victimization and adult criminalization has been briefly touched upon here. Developmental traumatology suggests how childhood abuse results in PTSD which further ignites the urges to commit crimes as a coping mechanism.
Upon a brief analysis of various studies, it is showed that childhood trauma is prevalent among individuals involved in criminal activity.
The issue addressed in this paper revolves around the aspect of punishment. “Whether the mental background and early victimization should be judicially considered while implementing punishment?” is a debatable query that is dealt in this paper. There is also an aspect where all offenders committing the same offence should be placed on the equivalent footing, thereby, awarding them with same punishment, irrespective of their background and psychotic conditions.
Keywords:
Victimization, trauma, penology, criminal psychology, child maltreatment, developmental traumatology, mitigation of death sentence, chronic offending, criminal behavior
Introduction:
Victimizing any person can be a traumatic event. Victimization is defined under S.27, Equality Act, 2010, as follows: “Victimization takes place where one person treats another less favorably because he or she has asserted their legal rights in line with the Act or helped someone else to do so.”[1] Instances of victimization include discrimination in workplace purely on basis of sex, non-consensual sex, domestic violence, bullying and the list endlessly goes on. According to World Health Organization (WHO), 2006, child abuse or maltreatment constitutes all forms of physical and/or emotional ill-treatment, sexual abuse, neglect, or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child’s health, survival, development, or dignity in the context of a relationship of responsibility, trust or power.[2]
Robert Goldman J.D., an American psychologist defined trauma as “a deeply distressing or disturbing event that has long-lasting effects on an individual’s mental, emotional, and physical well-being.” Research by National Centre for Post-traumatic Stress Disorder (NCPTSD) survivors of childhood trauma are faced with a greater risk of adopting criminal methods to cope with trauma. It has to be brought into comprehension that not all criminals are driven by psychotic or emotional impulses and not every trauma survivor resorts to crime to cope with the emotional distress.
Unreasonably preying on socially and emotionally weaker section leads to pent up trauma. This manifests into criminal behavior in adulthood. Such immoral imposition of cruelty on a child results into unwanted friction in his mental life termed as Adverse Childhood Experiences (ACE). This paper primarily focuses on the maltreatment of children and how it sculpts into criminality in later phases of their lives. This research analyses the ways in which childhood trauma emerges into criminal behavior.
Research methodology:
This research paper is purely descriptive in nature and the relevant data is captured from secondary online resources. Legal articles, journals published worldwide and blogs were referred in this research process.
Review of Literature:
Children look up to and embrace the guardians that raise them. A breach of love and protection by the very caretakers they place their trust subsequently leads to unimaginable damage to their mental health. This is where trauma stems from, resulting in mental health disorders such as depression, borderline personality disorder (BPD), anxiety, stress, bipolar disorder (BD) and the list goes on. This, in turn, affects the surviving skills which ultimately lead to events like excessive substance abuse, engaging in illegal and immoral activities and most importantly, involving in crimes.
Types of child maltreatment
Child maltreatment or child abuses begin, in most cases, from the very home they’re born into. The highlighting reason for its grievous traumatic consequence is the fact that it stems from the family they consider close and near. The string of trust and respect is shattered, which obstructs all sorts of future relationships. This manifests itself into habituating with criminal activities in the long run. Types of abuses enlist the following:
Sexual abuse: sexual activity like molestation, rape or incest
Physical abuse: violence or harm towards child
Psychological abuse: verbal abuse, intimidation or belittling and exploitation of child.
Domestic dysfunction: domestic violence, substance abuse, mental illness
However, children exploited by means of prostitution are taken as juvenile delinquents rather than victims of immorality.[3]
Theories that link early maltreatment with chronic offending in adult life
Agnew’s general strain theory (GST)
General strain theory by Robert Agnew correlates a strain cause by environmental, social or emotional factors to offending behavior. A strain can be termed as negative stimuli (eg. Domestic violence, sexual encounters, parental rejection) or a loss of positive stimuli (eg. Departure of a close relative or friend) which bottle up negative emotions in the child. Commission of crime is a coping mechanism utilized to release pent up frictional imbalances in them such as letting of help up grudge or revenge, want to assert dominance etc. However, studies reveal that not all strains invariably link to criminalized lifestyle. Agnew quilled certain factors of strains that trigger crime. These include:
- Strains of high magnitude
- Unjust or unfair strains
- Strains associated with low social control
- Those that create pressure or incentive for criminal coping[4]
Aker’s social learning theory
Founders of this theory are Ronald L. Akers and Robert L. Burgess. As the name suggests, Aker’s theory states that humans acquire their behavioral variations according to the social construct they are in. For instance, if a major part of their lives is exposed to criminal environment or more specifically, if they are raised in a household of exploitation and manipulation, chances are high that they will turn into hardened criminals. This theory is closely construed with Sutherland’s theory of differential association. But unlike Sutherland’s theory, direct interaction with the social elements is not mandatory to imbibe the criminal mind. The non-social variants like violent video games also stimulate criminality into the habitual structure.
How victimization during early stages leads to anti-social behavior?
Human cognitive abilities are underdeveloped during the nascent age and the psychological framework has not been fully established in that stage. Hence, influence of external waves surrounding them can easily influence their cognitive functions. Exposing to trauma inducing environment can permanently change the hard wiring of the brain, leading to subsequent psychological disorders. This, in turn, pushes them further to engage in criminal activities and predisposing them to violence and emotional chaos.[5]
A study was conducted by Widom and his colleagues in 2015 which proved that children who were violently exposed to abuse or neglect were highly prone to engage in illegal habits as adults. This study appointed a few individuals where they had to undergo trauma inducing abuse and neglect. Another group was appointed where they had to lead a nonchalant and serene lifestyle. It led to the conclusion that those children who were treated brutally were more likely to engage in criminal behavior such as property crime, breaking into houses, dacoity, substance abuse and violence.
Apart from the theories mentioned above, Albert Bandura’s observational imitative learning theory suggests that human behavior is acquired through observing and subconsciously imbibing the habits and mannerisms of the demonstrator. Growing up in violent household viably leads them to cultivate violent tendencies. As a child, they lack the comprehension to distinguish moral rights from wrongs. They naturally tend to follow the footsteps of their guardians, regardless of the implications. This tendency to commit crimes manifests into their adult life. Not all criminal urges are embedded in genes.[6]
Once a person of minority has gone through tremendous abuse, neglect or maltreatment, they struggle with getting a job, education and even living independently. They find it hard to develop into self-sustaining adults which results in criminal behavior to earn their bread.
Can childhood trauma be taken as an insanity defense?
The defense of legal insanity was first brought into light via the M’Naghten Rule or popularly known as M’Naghten Test. It was stated by the English House of Lords follows:
“Every man is to be presumed to be sane, and…that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”[7]
Different jurisdictions take diverse stance on this. The American federal penal code follows the principle that a defendant may be not acquitted if he “as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts.” Thus, PTSD has been taken on the same footing as the defense of insanity.
However, some jurists beg to differ on this take on the defense. The framework of time taken to commit the offence has to be considered. If the crime in question has taken place after intricate planning as a result of bottled up grudge and revenge, then it shall not be clubbed under defense of legal insanity.[8]
A study on developmental traumatology
Developmental traumatology throws light on how a persistent cycle of neglect and constant exploitation during tender age leads to post-traumatic stress or commonly referred to as Post-Traumatic Syndrome Disorder (PTSD)[9]. Studies by United Nations Children’s Fund in 2014 show that female survivors of sexual abuses cope differently than the male ones. The reason of female victimization is attributed to their physically strength being comparatively low, absence of prudent understanding of circumstances and maturity, natural tendency to be submissive and less experience in life. Moreover, the co-dependents rely on their caregivers with their life. Thus, when this bond of trust is immorally violated, they are too scared to even react and lead to extreme traumatic experiences.
Should penalty imposed on PTSD offender be same as the non-victims of childhood abuse?
Post-traumatic stress disorder (PTSD) has been used as a criminal defense for long now. The issue arises when it is found that not all criminal activities are driven by past trauma, even though the offender experienced a trauma inducing childhood. The question of how far can PTSD be taken as mitigating factor in punishment is raised here. Before taking this as a reasonable source of defense, the forensic psychiatrists must ascertain the roots, causes and history of the traumatic disorder and the extent to which it is related to criminality.
However, it is to be noted that the defense of PTSD is used, in a number of cases, as a mitigating factor in death sentences.
Related case laws[10]
In Wiggins v. Smith (539 U.S. 510), the defendant on trial for murder contended that his attorney failed by not examining his background and other mitigating evidence of his life. It was held by the Supreme Court of United States of America that the inadequacy of thorough investigation of the defendant’s mental background was a violation of the Sixth Amendment of the US Constitution.
In a similar case in 2005 of Rompilla v. Beard, the petitioner was convicted of murder. The jury learned that the murder was committed by Rompilla in midst of a felony. A significant background of felonies was observed in Rompilla’s history. In course of mitigating the death sentence, the counsel miserably failed in considering Rompilla’s childhood, mental capacity, health and alcoholism. The Supreme Court unanimously ruled that failure to discover mitigating evidence during the sentencing phase was a brutal infringement of their fundamental rights.
Adding on, in Lockett v. Ohio (438 U.S. 586 (1978)), it was held that every possible factor that could lead to mitigation of capital punishment should be taken into account, and should not be limited to a mere exhaustive list.
Finally, in Skipper v. South Carolina (476 U.S. 1 (1986)), it was held by the Court that mitigating evidence cannot be limited solely to pre-offence time period.
Is it just to award capital punishment to offenders with a traumatic past?
As the age-old saying goes, “You get what you deserve.” a number of ideologies conventionally believe that offenders of heinous crimes like murder and rape deserve to be punished with death. Howsoever, the concept of death does not completely align with the idea of punishment. If the judiciary allots capital punishment without taking the historic traumas of the offender into account, it wouldn’t be absolutely just. The aspect of previous generational trauma must be considered as it is an aid to mitigate death penalty. Judges and jury can take these factors into consideration while imposing punishment to alleviate the intensity of the same.
Suggestion- Seeking restorative justice
Conventional methods of penalizing the offender are ruthless and disregard the emotional background and motives that drove them into commission of such crimes. Punishing such offenders with capital punishment or life imprisonment is like placing a band aid on the victim’s bleeding wound. It does not fix the deep-rooted cause of such offenses; rather it provides transitory contentment to the victim.
The principles of restorative justice aim to deconstruct the prevailing dehumanizing criminal justice system. It strives to dive deep into the grass-root level of crime causation. Restorative justice seeks to determine to fix the damage caused along with holding the offender accountable. Apart from figuring out the causes, it does not ignore meting out the required punishment.
Restorative justice differs from the conventional criminal justice in following ways. Restorative justice focuses on sorting out emotional instabilities which could deter the society from cultivating into a serene set of humanity, whereas criminal justice highlights more on viewing it as a law regulating mechanism. Restorative justice involves putting right the victims, perpetrators and community members. Criminal justice, on the other hand, requires imposes guilt and punishment on the offender. Restoring the offender’s humanely instincts is not the objective of criminal justice. Restorative justice centralizes around repairing harm of victim and offender. Criminal justice solely lays on giving the offenders what they deserve for their brutal criminal acts.[11]
Major highlight of this principle is alleviating reoccurrence of commission of crime. In other words, it reduces the chances of recidivism. This process aids both the victim and the perpetrator, thereby fixating on restoring justice for both the parties. More than as a conventional mechanism to determine guilt, it focuses on adhering to the goal of administering the natural justice principles.
Ultimately, at the end of the day, the tool to remedy the situation lies with the society. Coming onto sociological grounds, the reason of traumatic explosions is based on how people treat and engage with others. For instance, a child grows up witnessing his drunk father abusing wife. This is the toxic environment the child grows up in. This forces him to imbibe the concept of objectifying women, thereby growing up to become a hard-core rapist. Another instance worth mentioning would be the unavailability of proper employment, which results in state of utter poverty and impoverishment. This, in turn, motivates him to rob to sustain his downgrading livelihood.
Conclusions
At the end of the day, the burden of encapsulating childhood trauma into alleviating the penalty solely rests on defense counsel. The question whether psychological effects of abuse should be taken into account whilst imposing punishment is still relevantly debatable.
It can thus be summarized that child victimization has got more of a grievous impact on adult life than during youth. This pent up trauma expresses itself into criminal tendencies and urges during later phase of life. The judiciary, while implementing punishment on the victimized offender, should consider the emotional pathways that eventually led to commission of the offence. This doesn’t mean that the psychologically unstable offenders should be free from penalty; rather it shouldn’t be avoided while awarding punishment.
Justice should be served quintessentially. Traditional legal system has wired the brains into fantasizing that justice should purely be served to the complainant. The present legal system failed to realize that the not every offender deserve to treated monstrously. Crime commission is not a natural and humanely act, no man in his right senses would want to inflict aggravated damage to fellow being. Only a person of blemished character and past would have the will and audacity to engage in such criminal acts. This calls for restorative justice where the legal system should, along with compensating the victim, also focus of helping the offender to fix his past wounds. This would include psychotherapy, cognitive behavioral therapy or counseling. This reduces the chances of reoccurrence of crimes, leading to reduction in recidivism and habitual offenders.
However, this does not suggest that all criminals, on grounds of past victimization, be forgiven of their offences. Child victimization plays a major role in building the sculpture of criminal, and this has to be taken into account while the jury decides the penalty.
Name: Elita Anna Sheen
College: Mar Gregorios College of Law
Year: 5th year
[1] S.27, Equality Act, 2010.
[2] Kerig & Becker, Early abuse and neglect as risk factors for the development of criminal and antisocial behavior RESEARCHGATE 181, 181-182 2015.
[3] Ibid, p 182.
[4] Robert Agnew, Building on the foundation of general strain theory: specifying the types of strain most likely to lead to crime and delinquency, JOURNAL OF RESEARCH IN CRIME AND DELINQUENCY 319, 325 2001.
[5] Qiaoxi Yao, The relationship between childhood trauma and crime and its mechanism, 22 JOURNAL OF EDUCATION, HUMANITIES AND SOCIAL SCIENCES 651, 653-654 2023.
[6] Id. Pg 654
[7] M’naughten case.
[8] Childhood trauma lee hiromoto pg 46
[9] Cambridge university press, developmental traumatology: the psychobiological development of maltreated children and its implications for research
[10] Lee Hiromoto, Case Kelter, Landy Sparr, PTSD and Trauma as mitigating facotes in sentencing in capital cases, Journal of American academy of psychiatry and law 2021.
[11] Law School University of Wisconsin-Madison, About Restorative Justice, https://law.wisc.edu/fjr/rjp/justice.html#:~:text=Restorative%20justice%20seeks%20to%20examine,to%20repair%20the%20harm%20done. (last visited on 16th May, 2024, 10:53am).