Does neuropathology dictate morality? Acquired pedophillia as a neuroethical case

Seven DOES NEUROPATHOLOGY DICTATE MORALITY? ACQUIRED PEDOPHILIA AS A NEUROETHICAL CASE Frederic Gilbert 1. Introduction One of the functions of neuroethics consists of foresight and being prepared for ethical problems that arise from the development of new technology and new medical knowledge. Diagnostics of neuropathologies illustrate the necessities of anticipating practical ethical challenges. Indeed, when the question of free will and responsibility is examined through the lens of neuropathology, it raises many ethical concerns, in particular in the court room. These concerns suggest that immoral behaviors may be related to brain GLVWXUEDQFHVLQYROYLQJDVKLIWIURPD³EDG´WRD³PDG´DJHQWLQRWKHUZRUGV from a responsible criminal agent to a patient without responsibility. This shift could have significant penal implications. Given that in current criminal jurisprudence, punishment of criminals is premised on responsibility, a range of questions must be asked if we accept that neuropathological behavior is ERUQH RI ³LOOQHVV´ UDWKHU WKDQ ³PDOIHDVDQFH´ :H ZRXOG WKHQ EH IRUFHG WR confront the question of whether acknowledging the increasing weight of evidence from neuropathology rules out blaming neuropathological patients for their crimes. And, if so, whether these specific individuals, for this reason, should be allowed to pass through the judicial system without the retributive penalty of imprisonment? Furthermore, we must query whether the absence of free will and responsibility for those neuropathological individuals opens the door to new neurological interventions and treatments. This article will use neuropathology cases involving acquired pedophilia to examine these questions. Acquired pedophilia, as distinct from developmental pedophilia, is described as occurring within individuals whose pedophilic behaviors occurred only after the onset of illness and mental disturbances. After suffering nervous system impairment, these individuals manifest pedophilia as a salient behavioral abnormality.1 If proper treatment is possible, these individuals can experience a decrease or complete loss of

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sexual interest in children.2 Acquired pedophilia case studies raise neuroethical questions regarding the responsibility of offenders, and furthermore help to see how neurobiological findings might challenge the limits of traditional moral views used by justice. Given that sexual crimes against children should not and cannot be excused, and given that pedophilic crime awake unanimous moral condemnation, either on an emotional or a rational level, this article accounts many recent neuropathological study cases RI DFTXLUHG SHGRSKLOLD EXW GLVFXVVHV PRUH VSHFLILFDOO\ WKH .OYHU±Bucy patient case, as reported in the Devinsky, Sacks, and Devinsky study.3 The case reports on an individual PDQLIHVWLQJDFTXLUHGSHGRSKLOLDGXHWR.OYHUBucy syndrome, a behavioral disorder occurring with the onset of medial temporal lobe dysfunction, who has been convicted and sentenced to prison on the basis that he was responsible for his crime because he could have freely acted otherwise, despite the testimonies and opinions of physicians. Firstly, the article presents briefly common philosophical arguments about free will and responsibility. Secondly, it discusses acquired pedophilia FDVHV HVSHFLDOO\ WKH .OYHU-Bucy case. Thirdly, it investigates whether neurobiological evidence of acquired pedophilia challenges the traditional moral understanding of free will and responsibility for this specific demographic. Fourthly, we explore whether the absence of free will and responsibility in acquired pedophilia opens the door to new neurological interventions and treatments for this criminal demographic instead of promoting the administration of retributive punishment in order to protect society. 2. What does Free Will and Responsibility Mean? In law, responsibility matters because normative practices of praising, blaming and punishing and are fundamental to legal accountability. According to traditional moral presupposition, which allows for punishing a convicted person, criminal behavior is a consequence of free choice. For instance, if Jack committed a pedophilic action, he was not forced by anyone; he had no constraint, he was in control of his action and he could have given any reason as a response in order to explain his choice. In other words, Jack was the origin and the cause of his crime. In that sense, he could have acted differently from among numerous possibilities (at least one of his possibilities was to inhibit his urge even if the circumstances leading to the crime would have been the same); he is ultimately responsible 4 since he is the source of his action and, therefore, deserves punishment. According to the western philosophical tradition, 5 the question of free will and responsibility can be articulated in two branches which could be divided into sub-categories. The first category is referred to as compatibilism. According to this view, an action can be freely willed and determined at the same time.

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Classical compatibilism6 justifies this by asserting that the absence of constraint is sufficient to hold a person responsible, while semicompatibilism7 argues that enough control gives good reason for holding an individual responsible. A compatibilist view maintains a weak sense of free will and responsibility. The second category is known as incompatibilism. According to its dogma, free will and determinism cannot be true at the same time. Hard incompatibilism,8 it means the classical hard incompatibilists argument 9 and contemporary hard incompatibilists10 maintain that free will cannot be true, WKHUHIRUH RQH FDQQRW EH KHOG UHVSRQVLEOH IRU RQH¶V DFWLRQV 7KH OLEHUWDULDQ subfamily11 claims that free will is true, and therefore we are responsible and determinism cannot be possible. The libertarian view supports a traditional definition of free will and responsibility. The libertarian or traditional conception defends the Indeterminism Condition of free will and responsibility, thus we hold an individual ultimately responsible for his behavior simply because we assume, at some point in the chronology leading to a crime, he could have chosen otherwise given the same initial conditions. The very idea of could have done otherwise given identical previous circumstances lies on a contra causa view of free will which entails a contra causa responsibility, according to which, the individual is ultimately responsible since no cause was sufficient ± besides the free will ± to generate the cascade of events leading to the criminal action. It defines notions of free will and responsibility in relation to moral knowledge: since an LQGLYLGXDONQRZV³ULJKW´IURP³ZURQJ´WKLVLVSUHVXPHGKHFRXOGKDYHDFWHG on his moral knowledge. This traditional sense of responsibility is referred to as ultimate responsibility.12 3. Acquired Pedophilia The crime of pedophilia perfectly illustrates how traditional moral frameworks of blaming one action work. The moral framework that serves penal justice indicates that pedophiles are ultimately responsible for acting on their urges and this type of responsibility justifies the idea that they deserve a retributive punishment for their behavior. However, until recently, developments in the field of neuroscience have contributed to the medical understanding and discovery of many unknown neuropathologies. Among them, acquired pedophilia cases raise numerous ethical questions about how neurobiological findings might challenge the limits of traditional moral views; in others words, does neuropathological diagnostics dictate traditional approaches of morality. The ethical implications of neuropathological determinism arise regarding this issue: To what extent do we hold an acquired pedophile responsible for his action if he was neuropathologically determined? In other words, how can an acquired pedophile be held responsible for his behavior if he was neuropathologically determined?

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Recent developments in the field of neuroscience have contributed to the medical understanding and discovery of acquired pedophilia and have led to an unprecedented number of documented causes, in particular: right orbitofrontal hemangiopericytoma,13 hypothalamic glioma,14 multiple sclerosis,15 frontotemporal dementia, bilateral hippocampal sclerosis, 16 right frontal arteriovenous malformation extending into the septal region, 17 epilepsy, post-anoxic encephalopathy,18 suprasellar meningiomas, multiple episodes of disrupted cerebral circulation, vestibular neuronitis, 19 neurosyphilis post-encephalitic Parkinsonism,20 and others.21 One such example was a 40 year old heterosexual married man who, with no history of deviant sexuality, developed an increasing interest in child pornography. With a preserved moral knowledge, since he knew the difference between right and wrong, he was found guilty of molesting his prepubescent stepdaughter. The evening before his prison sentencing, complaining of a headache, he went to the emergency room at the University RI 9LUJLQLD +RVSLWDO 0DJQHWLF UHVRQDQFH LPDJLQJ UHYHDOHG DQ ³HQKDQFLQJ anterior fossa skull base mass tKDW GLVSODFHG WKH ULJKW RUELWRIURQWDO OREH´ $IWHU VXUJHU\ LW ZDV GLVFRYHUHG WKDW WKH PDQ¶V SHGRSKLOLF EHKDYLRU was ³UHVROYHG ZLWK WKH H[FLVLRQ RI D ULJKW RUELWRIURQWDO KHPDQJLRSHULF\WRPD IXUWKHUHVWDEOLVKLQJFDXVDOLW\´22 Several months later, after he returned home, his headache reappeared as well as his tendencies of collecting child pornography from the internet. New neurologic examination results show that a tumor had regrown. Pedophilic behavior was resolved again following tumor resection. A second case23 was a 50-year-old man, married for 30 years who saw his sexual preference suddenly change from heterosexuality to pedophilia. The man was arrested for propositioning children. Again, as was the case in the first example above, the man was in possession of moral knowledge; he knew his actions were morally wrong VLQFH KH ZDV ³VHFUHWLYH DERXW KLV LQWHUHVW LQ FKLOGUHQ´ DQG hid them from his wife. Subsequently, the man gradually deteriorated and died. An autopsy revealed a brainstem glioma LQILOWUDWLQJ WKH WKDODPXV K\SRWKDODPXV YHQWUDO PLGEUDLQ DQG SRQV ³7KH involvement of the hypothalamus in this patient is probably responsible for his erectile dysfunction and marNHGO\LQFUHDVHGVH[XDOXUJHZLWKSHGRSKLOLD´ A third example24 was a 36-year-old man, with no history of abnormal sexual behavior, incarcerated for propositioning a 12-year-old girl in a movie theatre and then sexually assaulting a second minor. Common to the previous two cases, the man recognized his wrongdoing and acknowledged his actions ZHUH³LQDSSURSULDWH´WKHUHIRUHLWZDVDVVXPHGIRUWKHLQFDUFHUDWLRQSURFHGXUH that he possessed moral knowledge. Neuroimaging, however, showed an inflammatory demyelination involving the hypothalamic and septal regions of the basal prosencephalon, correlating with his acquired pedophilia. Those are several other examples of acquired pedophilia. The common denominator of these findings posits the notion that, since individuals with

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acquired pedophilia possess moral knowledge, they are viewed as regular criminal despite neurological anomalies. Since they know right from wrong, this is presumed they can act on their moral knowledge; however, studies presume they fail to act on it. Indeed, these case studies suggest that pedophilic behavior that may be related to brain disturbances involving a shift LQ FKDUDFWHUL]DWLRQ IURP ³EDG´ WR ³PDG´ IURP UHVSRQVLEOH WR LUUHVSRQVLEOH agent. So far, no studies claim the possibility of predicting a specific ³SHGRSKLOLD SDWKRV-QHXURQV QHWZRUN´ QHYHUWKHOHVV QHXURELRORJLFDO SDWWHUQV seem to suggest a significant neurobiological contribution to these deviant behaviors. $7KH.OYHU-Bucy Case What characterizes and might make acquired pedophilia a singular challenge to traditional conceptions of morality is that, without neurological expertise, traditional justice still processes patients as regular responsible criminals. In some cases, even with neurological evidence, these patients are still judged as RUGLQDU\ UHVSRQVLEOH FULPLQDOV 7KH .OYHU-Bucy case illustrates the neuroethical challenge of justice ground in traditional justice. The case study25 involves a 51 year old married man who, after receiving a second right temporal lobectomy to treat epilepsy (the first intervention revealed a ganglioglioma), was convicted of possession of child pornography based on the assumption that he had the moral capability to understand that his actions were wrong² despite the reports and testimony of physicians DERXW WKH HYLGHQFH WKDW ³.OYHU±Bucy syndrome was a critical factor in GULYLQJKLVK\SHUVH[XDOLW\´ 26 From a neuropathological viewpoint, this is notable that the first symptoms of deviant behavior only started a month after the surgery. The case VWXG\UHSRUWVWKDWWKHSDWLHQW VV\PSWRPVZHUHDUDUHPDQLIHVWDWLRQRI.OYHUBucy syndrome27 in a human being. For instance, among numerous other symptoms, the man's appetite for food and sex increased dramatically. He became insatiable: ³$SSUR[LPDWHO\ D PRQWK DIWHU VXUJHU\ EHKDYLRUDO FKDQJHV RI irritability, hyperphagia [increased eating] and hypersexuality (including coprophilia) developed. He became more sexually active with his wife [at least 5 to 6 times a day] and masturbated more often. Compulsively, he began to watch adult pornographic images DQGYLGHRVRQWKHLQWHUQHWZKHQKLVZLIHVOHSW´ At some point, he was solicited by some websites to view and purchase child porQRJUDSK\³+HEHFDPHREVHVVHGZLWKWKLVDQGHYHQWXDOO\SXUFKDVHG and downloaded pornographic images of prepubescent females engaged in VH[XDO DFWLYLWLHV IURP WKH LQWHUQHW´ $V D FKDUDFWHULVWLF RI WKH WUDGLWLRQDO

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conception of free will and responsibility, he knew he was doing wrong; WKHUHIRUH KH ZDV VHFUHWLYH DERXW WKHVH DFWLYLWLHV DQG ³>GLG@ QRW GLVFXVVLQJ >VLF@ WKH SRUQRJUDSK\ RU PDVWXUEDWLRQ ZLWK KLV ZLIH RU ZLWK DQ\RQH HOVH´ When arrested, a psychiatrist prescribed an antipsychotic, quetiapine, and an antidepressant, sertraline. Not surprisingly, his sexual obsessions disappeared. ,QKLVZLIH¶VZRUGV ³$IWHU KLV DUUHVW KH ZDV JLYHQ =RORIW DQG 6HURTXHO DQG EHFDPH much warmer and loving but the medications shut off his libido. As ZLWKPXFKRIKLVREVHVVLRQVDQGDFWLYLWLHVWKDWZHUHµDOORUQRWKLQJ¶ sex became non-existent. His emotions to me, however, have reverted back to loving and compassionate and his outbursts of anger and rage have disappeared. It is as if a fault\VZLWFKZDVWXUQHGRII´ Although medical prescriptive treatments were showing signs of HIILFDF\WKHSDWLHQWZDVVXEVHTXHQWO\FKDUJHGZLWK³NQRZLQJO\DQGZLOOIXOO\ possess[ing] material which contained at least three images of child SRUQRJUDSK\´. During the trial, the authors indicated to the court that the right WHPSRUDO OREH GDPDJH ZDV WKH ³PDMRU FRQWULEXWLQJ IDFWRU WR WKH SDWLHQW¶V K\SHUVH[XDOLW\DQGYLHZLQJRIFKLOGSRUQRJUDSK\´0RUHRYHUWKH\DGGHGWKH man ³ZDV GULYHQ WR DFW RXW RI FKDUacter under the spur of an irresistible SK\VLRORJLFDOFRPSXOVLRQUHVXOWLQJIURPKLVEUDLQLQMXU\´ The prosecution, however, influenced by the traditional views of free will and responsibility, argued that since he was able to avoid acting inappropriately in public due to his moral knowledge, therefore he was in control of his actions, in other words, he could have acted otherwise in the same conditions. They demanded a sentence of 20 years in prison. They advocated: ³7KHSDWLHQW¶VK\SHUVH[XDOEHKDYLRU in some situations but not others was evidence for volitionally controlled criminal behavior; that it was incompatible with a neurological cause. For example, he downloaded and viewed child pRUQRJUDSK\DWKRPHEXWQRWDWZRUN´ )LQDOO\ WKH SDWLHQW ZDV VHQWHQFHG WR  PRQWKV¶ LPSULVRQPHQW  PRQWKV¶KRPHFRQILQHPHQWDQGWKHQ\HDUVXQGHUVXSHUYLVLRQ$FFRUGLQJWR Devinsky, Sacks DQG 'HYLQVN\ ³:DV KH FULPLQDlly responsible? Did his behavioral actions warrant imprisonment? We believe the answer is no to both TXHVWLRQV´ Acquired pedophilia appears to underline the apparent difficulty in holding one responsible for their deviant sexual behavior. Acquired pedophilia indicates that even if an individual has preserved his previously established moral development (knowing the difference between right and wrong is enough to motivate one action), the pleasure associated with the urge

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to commit deviant acts overrides moral restraints and appears to corrupt the appreciation of the wrongness. It looks that acquired pedophiles fail to motivate themselves even if they possess moral knowledge. Let us look at ZKHWKHUWKH.OYHU-Bucy patient should have been held responsible. 4. Does Acquired Pedophilia Relieve Offenders of Responsibility? Can we oppose Devinsky, Sacks, and Devinsky, by arguing that the patient had free will EHFDXVHKHIHOWWKDWZKDWKHFKRVHDQGKRZKHDFWHGZDV³XSWR KLP´" &RXOG WKH SDWLHQW KDYH FKRVHQ RU DFWHG RWKHUZLVH IURP DQ DUUD\ RI alternative possibilities? Could this individual choice associated with the SDWLHQW¶V DFWLRQ GHPRQVWUDWH WKDW WKH XOWLPDWH VRXUFHV RI WKH SDWLHQW¶V DFWLRQ was in factors beyond his control or in some neurobiologically determined fact? In other words, even though nobody had forced the patient to commit his pedophilic crime, could we support the idea that he acted freely? These questions seem to imply that neuropathological data suggests the absence of responsibility. Acquired pedophilia indicates that the patient cannot be the originator28 of his own action. The libertarian or traditional view, as previously stated, defines notions of pedophilic free will and responsibility in relation to moral knowledge. According to this view, an acquired pedophile who has the ability to tell ³ULJKW´ IURP ³ZURQJ´ PXVW GR ZKDW LV ³ULJKW´ 7KXV DQ DFTXLUHG SHGRSKLOH ZKRGRHVQRWDFW³ULJKWO\´ZKHQKHNQRZVKHPXVW LVDQDFTXLUHGSHGRSKLOH ZKR FRPPLWV WKH ³ZURQJ´ DFWLRQ IUHHO\ RU LQWHQWLRQDOOy, or with enough FRQWUROHWF 7KHDELOLW\WRGRIUHHO\WKDWZKLFKLV³ZURQJ´LQVWHDGRIGRLQJ WKDW ZKLFK LV ³ULJKW´ PHDQV WKDW WKH DFTXLUHG SHGRSKLOH FRXOG KDYH IUHHO\ DFWHG³ULJKWO\´LQVWHDGRI³ZURQJO\´LQWKHVDPHLQLWLDOFRQGLWLRQV 29 which is why he LVKHOGXOWLPDWHO\UHVSRQVLEOHIRUKLVFULPH$QDFTXLUHGSHGRSKLOH¶V actions are informed by his moral knowledge. Freely committing wrong actions implies a judicial right to punish on the basis that the acquired pedophile deserves the punitive retribution. However, if the indeterminist condition is false and the determinism of acquired pedophilia is true, as suggested above, then how can acquired pedophiles be truly responsible and deserve punishment? To justify their position, proponents of the concept of responsibility -like in the sentencing of the .OYHU-Bucy case -- DUJXH IRU ³mitigating´ responsibility, in other terms that responsibility comes in degrees. If responsibility comes in degrees, then the debate appears to shift to the necessary or sufficient conditions for responsibility (or conditions which exclude it), despite the fact that conditions may come in degrees as well. +RZHYHUFDQWKHUHEHD³OHVVHU´FULPHRISHGRSKLOLD",QGHHGDFFHSWLQJ ³GHJUHHV´Rf culpability for acquired pedophilic crime is quite problematic. In practice, as is the case for specific categories in law, such as minors or mentally ill patients, responsibility is an all-or-nothing matter. Regarding

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acquired pedophilia, we simply cannot conceive of such legal constructs as ³VHFRQG GHJUHH FKLOG DEXVH´ RU ³LQYROXQWDU\ FKLOG PROHVWDWLRQ´ DQG VR RQ Because of this view, the debate of pedophilic responsibility looks to be in terms of a "whether or not" question. Practically speaking, the law does not involve the question of whether or not an acquired pedophile is more responsible, less responsible, responsible to greater/lesser degree, etc. regarding the performed act. The pedophilic act itself, regardless of mental state, is sufficiently harmful to vulnerable persons and otherwise sufficiently abhorrent and unacceptable to civilized society that it cannot appear to be prosecuted in degrees. If acquired pedophilic responsibility can be measured in degrees, then a complete libertarian theory of responsibility should demonstrate by what measures an acquired pedophile can be judged more or less responsible. Does it depend on to what degree he is in control of his sexual behavior? To what degree the neuropedophilic conditions have decreased or increased his control of his sexual behavior? To what degree does an acquired pedophile have to be the originator of his sexual behavior? It appears that the question of degrees of responsibility becomes a question of to what degree is the acquired pedophile ultimately the origin of the abhorrent sexual behavior. In other words, to what degree is he truly and ultimately responsible for his sexual behavior? To hold the acquired pedophile ultimately responsible appears to necessitate that the acquired pedophile is causa sui. Put differently, the acquired pedophile has to be the ultimate origin of his sexual instinct because he, and only he, is, to some degree, ultimately responsible for that instinct. Can such libertarian responsibility be defensible? It implies that the acquired pedophile makes free choices (which render him, to some degree, ultimately responsible for what he is) which are rooted in an endless biological or environmental regress ± which appears to be impossible. According to this argument:30 (1) The acquired pedophile does what he does because of the way he is, (2) To be truly responsible for what he does, the acquired pedophile must be in degrees truly responsible for the way he is, (3) But to be in some degree truly responsible for the way he is, the acquired pedophile must have done something in the past for which he was also responsible to make himself, at least in some degree, the way he is, (4) But if the acquired pedophile was truly responsible for doing something in the past to make himself what he is now, the acquired pedophile must have been responsible for the way he was then at that earlier time, (5) But to have been responsible for the way he was at that earlier time, the acquired pedophile must have done something for which he was responsible at a still earlier time to make himself the way he was at that earlier time, and so on backwards.

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Otherwise stated, there is a fundamental sense in which the acquired pedophile did not and cannot make himself the way he is. The acquired pedophile cannot be, to some degree, causa sui; he cannot be, to some degree, the cause of himself, he cannot be, to some degree, truly or ultimately selfmade in any way. Yet, how can responsibility be ascribed if acquired pedophilia is a sexual behavior that looks to be the result of an uncontrolled origin? Criminal and moral responsibility share a common ground. Whether criminal responsibility or moral responsibility comes first, which encompasses different philosophical notions of culpability, is irrelevant since the only concern is whether the acquired pedophile cannot be the blameworthy cause of the harm. If acquired pedophiles lacked free will, they would not be ultimately blameworthy for their actions and therefore punishment would not be truly deserved, even in some degree. Given this, does this mean that justice needs to rethink responsibility, especially concerning its application regarding assignation of responsibility for the criminality of acquired pedophiles? Does the criminal justice system need to abandon the idea of punitive imprisonment mainly because it fosters the folk belief that bad people should be punished because they have freely chosen to act immorally of their own free will? 5. Acquired Pedophilia: Treatment Instead of Punishment? There is a significant difference between being immoral and acting immorally. This paper shows that the offender who acts immorally as a result of acquired pedophilia is arguably not responsible and cannot, on this basis, be declared immoral. One could also add that an individual with acquired pedophilia cannot be immoral because it would imply an element of choice of being such. An acquired pedophile may possess moral knowledge, the ability to know the difference between right and wrong EXW FDQQRW FRQWURO RQH¶V behavior. Under such circumstances, acquired pedophilia appears more like a broken acting being, and therefore notions of being immoral, being evil and being a sinner become utterly irrelevant as arguments for retributive justice. The distinction between being immoral and acting immorally brings us to the idea that by punishing the acquired pedophile with retribution, justice inappropriately indicates that the being has to repay society for the wrong inflicted: however, justice should execute medical intervention to prevent what caused the acting in a way to protect society. Justice for the acquired pedophile can only involve a finding of no responsibility and therefore, merits no retributive punishment with the aim of intervening on what causes the acting. In order to protect society from acquired pedophiles, the law can justify penal measures based on the right to self-defense. To understand this right, Pereboom XVHV DQ DQDORJ\ RI WKH ULJKW WR TXDUDQWLQH ³6XSSRVH WKDW D serial killer continues to pose a grave danger to a community. Even if he is not morally responsible for his crimes, it would be as legitimate to detain him as it

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is to quarantine the carrieURIDGHDGO\FRPPXQLFDEOHGLVHDVH´31 This is more helpful to try to increase our knowledge of how justice can be rooted in a determinist conception, and how this might lead justice to a model that avoids retributive punishments. Yet, in acquired pedophilia cases this is necessary to reconcile treatment with an absence of responsibility in order to address the question of justice. The acquired pedophile population is legally liable, but rather than punishment, they require medical treatment. If neuropathological studies are true, then acquired pedophiles are individuals suffering from authentic sexual neuropathology and it means that even after they have finished their sentence, convicted acquired pedophiles will not stop being sexually attracted to minors. On that particular matter, what I have called the Evrard Effect32 can help to understand what is at issue. The Evrard Effect stipulates that even after a long time in prison, the pedophile will leave the punitive prison system the same as when he entered. This concept is based on the horrible case of Francis Evrard, a multirecidivist, who spent a total of 27 years punitively incarcerated for multiple sequestrations, rapes and sexual assaults on children and who, immediately after his last release from prison, was apprehended and found in possession of Viagra after kidnapping Enis, a six year old boy. The Evrard Effect illustrates how the legal punitive mechanism, animated by the foundational conceptions of merit and blame related to acquired pedophilic responsibility, may be useless in protecting society and reducing recidivism in the long term. The option of treatment may offer the fairest solution in instances of an acquired pedophile lacking responsibility. Unlike traditional criminal punishment, which mandates a particular retributive punishment (or range of punishments) for a particular offence, the offender receives justice that takes into consideration biological causation, lack of control by the acquired pedophile and, at the same time, the need to protect society, indeed its most vulnerable members ± children. Instead, treatment opens the door to new neurological interventions and treatments for acquired pedophiles. In this instance where there is neurobiological causation for a criminal act of an acquired pedophilic nature, treatment requires that the underlying neurobiological disorder that led to the commission of the act be treated rather than punishing the affected individual for the misdeed. 6. Conclusion This article suggests that acquired pedophiles should not be exonerated from justice even though they have neurobiological aetiologies. However, neurobiological studies suggest that acquired pedophilic behaviors are related to brain disturbances and illustrate how acquired pedophilic deviant behavior LVERUQHRI³LOOQHVV´UDWKHUWKDQ³LQWHQWLRQ´,SURSRVHWROLEHUDWHQHXURHWKLFDO debate from traditional conception of free will based on the libertarian

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approach, according to which an acquired pedophile could have decided to act differently in the same initial conditions. The purpose of this paper is to show that this is inappropriate to hold an acquired pedophile responsible for his crime if that is, by some means, determined by known or unknown neuropathological causes. Nevertheless, the acquired pedophile population is legally liable, but rather than punishment, they require medical treatment. Criminal behavior which is the result of illnesses or disorders that can and should be treated is not necessarily the result of willful misconduct. Contrary to what that is believed, acquired pedophiles represent a patient-criminal population. This paper indicates that the traditional or libertarian punishments of imprisonment may not be appropriate to fight acquired pedophilia recidivism and protect vulnerable populations as demonstrated by the Evrard Effect. Judging acquired pedophiles through neurobiological aetiology means that we should consider them as patientcriminals that require intensive treatment and follow up, instead of classic punishment through incarceration. Not acknowledging neurobiological aetiology of acquired pedophiles implies that we should judge them as ordinary offenders ± offenders that have to be released at the end of their sentence without any treatment. If the neurobiological aetiology of acquired pedophilia is true, then when patients are incarcerated based on conceptions that they acted of their libertarian free will and are therefore ultimately responsible for their actions, they are inappropriately treated and they have a higher chance of recidivism. Further neuroethical and legal research should investigate whether developmental pedophilia is also better constrained by treatment instead of incarceration, and what should the proper type of treatment for such paraphilia be. ACKNOWLEDGEMENT The research for this paper was funded in part by a grant from the Canadian Institutes of Health Research; MOP 77670, Therapeutic Hopes and ethical concerns: Clinical research in the neurosciences and NNF 80045, States of Mind: Emerging Issues in Neuroethics. NOTES 1. Quentin R. Regestein, & Peter Reich, ³3Hdophilia Occurring after Onset of &RJQLWLYH,PSDLUPHQW´J Nerv Ment Dis, 166:11 (1978), pp. 794±798. 2. Mario F. Mendez, Tiffany Chow, John M. Ringman, Geoff Twitchell, & Charles H. Hinkin, ³3HGRSKLOLD DQG WHPSRUDO OREH GLVWXUEDQFHV´ J Neuropsychiatry Clin Neurosci, 12 (1, 2000), pp. 71±76; Jeffrey M. Burns, & Russell H. Swerdlow, ³5LJKW 2UELWRIURQWDO 7XPRU ZLWK 3HGRSKLOLD 6\PSWRP DQG &RQVWUXFWLRQDO $SUD[LD6LJQ´Arch Neurol, 60:3 (2003), pp. 437±440.

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3. Julie Devinsky, Oliver Sacks, & Orrin Devinsky, ³.OXYHU-Bucy Syndrome, +\SHUVH[XDOLW\ DQG WKH /DZ 1HXURFDVH &DVH 6WXGLHV´ LQ Neuropsychology, Neuropsychiatry, and Behavioural Neurology (1±6 PMID, 2009). 4. Robert Kane, The Significance of Free Will (New York: Oxford University Press, 1996). 5. Harry G. Frankfurt, ³$OWHUQDWH3RVVLELOLWLHVDQG0RUDO5HVSRQVLELOLW\´The Journal of Philosophy, 66:23 (1969), pp. 828±839; Robert Kane (ed.), The Oxford Handbook of Free Will (Oxford: Oxford University Press, 2002); Peter Van Inwagen, An Essay on Free Will (Oxford: Clarendon Press, 1983); John R. Searle, Rationality in Action (Cambridge: MIT, 2001); Henrik Walter, Neurophilosophy of Free Will (Cambridge: MIT, 2001); Gary Watson, Free Will (Oxford: Oxford University Press, 1982); Widerker, David & McKenna, Michael (eds.), Moral Responsibility and Alternative Possibilities (Aldershot: Ashgate, 2003); Bernard Baertschi, /D5HVSRQVDELOLWppWKLTXHGDQVXQHVRFLpWpWHFKQLTXH HW OLEpUDOH (MSH alpes, 2004); David Copp, ³'HIHQGLQJ WKH 3rinciple of $OWHUQDWH3RVVLELOLWLHV%ODPHZRUWKLQHVVDQG0RUDO5HVSRQVLELOLW\´ 1R€V 31:4 (1997), pp. 441±456. 6. Donald Davidson, Freedom to Act. Essays on Freedom of Action, ed. Ted Honderich (London : Routledge & Kegan Paul, 1973); Alfred Jules Ayer, Philosophical Essays (London: Macmillan, 1954); David Hume, An Enquiry Concerning Human Understanding (Oxford: Clarendon Press, 1748/2006); Thomas Hobbes, Leviathan (Cambridge: Cambridge University Press, 1651/1996), in chapter XXI. 7. Harry G. Frankfurt, ³$OWHUQDWH3RVVLELOLWLHVDQG0RUDO5HVSRQVLELOLW\´The Journal of Philosophy, 66:23 (1969), pp. 828±839; John M. Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (Cambridge: Cambridge University Press, 1998); Daniel C. Dennett, Elbow Room: the Varieties of Free Will worth Wanting (Oxford: Clarendon Press, 1984). 8. Hard incompatibilism may be referred to as hard determinism. Notwithstanding, we adopt Pereboom¶V GLVWLQFWLRQ Derek Pereboom, Living without Free Will (Cambridge: Cambridge University Press, 2001). 9. Paul Henry Dietrich Holbach, Baron G¶, 6\VWqPHGHOD1DWXUHRXGHVORLVGXPRQGH physique et du monde Moral (*HQqYH6ODWNLQH5HSULQWV, 1770); Paul Edwards, ³+DUG DQG 6RIW 'HWHUPLQLVP LQ 'HWHUPLQLVP DQG )UHHGRP LQ WKH $JH RI 6FLHQFH´ LQ Determinism and Freedom in the Age of Science, Washington Square, ed. Sidney Hook (NY: New York University Press, 1958), pp. 104±112; Pierre Simon Laplace, Marquis de., (VVDL SKLORVRSKLTXH VXU OHV SUREDELOLWpV (Paris: Bachelier, Imprimeur-Librairie, 1840). 10. Saul Smilansky, Free Will and Illusion (Oxford: Clarendon Press, 2003); Pereboom, Living without Free Will; Galen Strawson, Freedom and Belief (New York, N.Y.: Clarendon Press, 1986). 11. Van Inwagen, An Essay on Free Will; Searle, Rationality in Action; Robert Kane, The Significance of Free Will (New York: Oxford University Press, 1996); Kant, Emmanuel, 0pWDSK\VLTXH GHV PRHXUV (Paris: Vrin, 1786); Randolph Clarke, Libertarian Aaccounts of Free Will (Oxford: Oxford University Press, 2003); Roderick M. Chisholm, ³7KH$JHQWDV&DXVH´LQAction Theory, Proceedings of the Winnipeg Conference on Human Action, ed. M. Brand and D. Walton

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(Dordrecht: Reidel, 1976), pp. 199±211; Timothy O'Connor, Persons and Causes (Oxford: Oxford University Press, 2000); Carl Ginet, On Action (New York: Cambridge University Press, 1990). 12. Kane, The Significance of Free Will. 13. Jeffrey M. Burns & Russell H. Swerdlow, ³5LJKW 2UELWRIURQWDO 7XPRU ZLWK 3HGRSKLOLD 6\PSWRP DQG &RQVWUXFWLRQDO $SUD[LD 6LJQ´ Arch Neurol, 60:3 (2003), pp. 437±440. 14. Bruce L. Miller, Jeffrey L. Cummings, ³+RZ Brain Injury Can Change Sexual %HKDYLRU´Medical Aspects of Human Sexuality, 1 (1991), pp. 54±56. 15. Neil Ortego, Bruce L. Miller, Hideo Itabashi et al., ³$OWHUHG6H[XDO%HKDYLRUZLWK 0XOWLSOH 6FOHURVLV $ FDVH 5HSRUW´ Neuropsychiatry Neuropsychol Behav Neurol, 6 (1993), pp. 260±264; Elliot M., Frohman, Teresa C., Frohman & Ann M. Moreault, ³$FTXLUHG6H[XDO3DUDSKLOLDLQ3DWLHQWVZLWK0XOWLSOH6FOHURVLV´ Arch Neurol, 59:6 (2002), pp. 1006±1010. 16. Mario F. Mendez, Tiffany Chow, John M. Ringman, Geoff Twitchell, & Charles H. Hinkin, ³3HGRSKLOLDDQGWHPSRUDOOREHGLVWXUEDQFHV´J Neuropsychiatry Clin Neurosci, 12:1 (2000), pp. 71±76. 17. &XPPLQJV0LOOHU³+RZ%UDLQ,QMXU\&DQ&KDQJH6H[XDO%HKDYLRU´, pp. 54±56. 18. Fred S. Berlin, & Genevieve S. Coyle, ³6H[XDO 'HYLDWLRQ 6\QGURPHV³, Johns Hopkins Med J, 149:3 (1981), pp. 119±125. 19. Quentin R. Regestein, & Peter Reich, ³3HGRSKLOLD 2FFXUULQJ DIWHU 2QVHW RI &RJQLWLYH,PSDLUPHQW´J Nerv Ment Dis, 166:11 (1978), pp. 794±798. 20. David S. Fairweather, ³3V\FKLDWULF$VSHFWVRIWKH3RVWHQFHSKDOLWLF6\QGURPH´ J. Ment Sci., 93:391 (1947), pp. 201±254. 21. Julie Devinsky, Oliver Sacks, & Orrin Devinsky, ³.OXYHU-Bucy Syndrome´. 22. 6ZHUGORZ%XUQV³5LJKW2UELWRIURQWDO7XPRU´, pp. 437. 23. John M. Ringman, Jeffrey L. Cummings, ³$OWHUDWLRQV LQ 6H[XDO %HKDYLRXU )ROORZLQJ )RFDO %UDLQ ,QMXU\´ LQ Behavior Mood Disorders Focal Brain Lesions, ed. J. Bogousslavsky, J. L Cummings (Cambridge: Cambridge University Press, 2000), pp. 437±465. 24. Ortego, 0LOOHU,WDEDVKL³$OWHUHG6H[XDO%HKDYLRU´ pp. 1006±1010. 25. Devinsky, Sacks, 'HYLQVN\³.OXYHU-Bucy Syndrome´ 26. Ibid., p. 5. 27. Including symptoms such as dietary changes, hypersexuality, visual agnosia, the .OYHU-Bucy syndrome was first documented among human beings who had experienced temporal lobectomy in 1955 by H. Terzian and G.D. Ore. 28. 6HH LQ SDUWLFXODU +RQGHULFK¶V DUWLFOH &DXVDWLRQ" 2ULJLQDWLRQ" LQ +RQGHULFK 7HG, How free are you?: The determinism problem, second edition (Oxford: Oxford University Press, 2002), chapter 4. 29. As required by the Indeterminist Condition, VHHSRLQW³:KDWGRHVIUHHZLOO and UHVSRQVLELOLW\PHDQ"´ 30. Strawson, Freedom and Belief. 31. Pereboom, Living without Free Will, p. 174. 32. Agence Presse, Francis Evrard VHUD MXJp HQ RFWREUH SRXU O HQOqYHPHQW HW OH YLRO d'Enis (1RUGeFODLU, May 18 2009).