The Implications of a Genetic Defense

From Issue: R&R Volume 24 #9

In the early days of mankind, so the story goes, there lived Epimetheus and his wife, Pandora. They were given a box by a disguised Zeus, with specific instructions not to open it. Pandora’s curiosity became too much for her to handle, and eventually she opened the box to see what was inside. Out of the box flew all manner of evil sprites, such as Envy, Jealousy, Disease, and Famine, which entered the world to plague humankind.

This story from Greek mythology gave rise to the widely used phrase, “Pandora’s box,” referring to something that, when unleashed, brings about more harm than good. With the completion of the Human Genome Project, geneticists have opened their own Pandora’s box—especially in the field of law. The law of the United States of America is based loosely on the English common-law system, which, in turn, was based upon theological principles. With the recent advances in modern genetics, however, it is possible that all legal bases will crumble in the face of what is coming to be known as “the genetic defense.”

For example, some are arguing for the existence of a “gay gene.” But if such a gene (or genes) did exist, how would that affect our criminal-justice system? As scientists seem to be alleging a genetic cause for practically every imaginable human action, lawyers have begun to turn to the field of behavioral genetics, in hopes of defending clients’ actions. Behavioral genetics says that our actions are linked inextricably to our genetic makeup. Instead of merely determining our hair color or bone structure, some geneticists argue that our DNA determines whether we will be heterosexual or homosexual, benevolent or malevolent, or even whether we choose to rape or not. Randy Thornhill and Craig Palmer argued in their 2000 book, Rape: Biological Bases of Sexual Coercion, that rape is a biological holdover from our primate ancestors. If assertions such as those made by Thornhill and Palmer are taken seriously, and rape (to choose just one example) is considered as nothing more than a vestige of our phylogeny that is encoded in our genes (and thus beyond our control), we should be prepared for the consequences, and expect to see behavioral genetics used as a defense in an increasing fashion in courts of law.

It is only a matter of time before defense lawyers are able to use genetic research to invalidate completely the legal system, by arguing that people no longer are responsible for their actions. If such effects as murder, rape, sodomy, etc. are designated as “genetically determined,” then who could be prosecuted for such “crimes”? In tune with the old adage, “The devil made me do it,” geneticists will have created their own version: “My genes made me do it.” Harvard psychologist Steven Pinker (formerly at MIT) contended in his 2002 volume, The Blank Slate: The Modern Denial of Human Nature, that behavior and ideas are not formed by experiences (as argued by John Locke and his concept of tabula rasa, “blank slate”), but by our genetic coding. Thus, our desire to do (or not to do) certain things is innate in our genetic makeup.

The problem with this approach to human behavior is that there is no evidence to support it. Scientific data have yet to confirm that one’s actions are controlled by one’s genes. If, however, scientists side on the position of “my genes made me do it,” then our laws eventually will be unenforceable. As with the case of the so-called “gay gene,” activists might claim that other behavior also may be explained by specific genes. When this happens, it will wreak havoc on our criminal-justice system. Laws rest upon the supposition that people are responsible for their actions and behavior patterns. Geneticists have opened their own Pandora’s box, and in so doing, they have released the twin sprites of Unaccountability and Anarchy.

There was more to the Greek myth of Pandora and the box. As she sat lamenting the sad fate that she had released upon the world, Pandora heard a small, sweet voice coming from the box. When she opened it again, out came the sister of the evil sprites—Hope. The decoding of the genetic makeup of humans has brought hope to those searching for the cures to deadly diseases. With that hope, have come all the problems potentially related to the idea of a “genetic defense.”


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