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The Willed Trance: Volition, Voluntariness and Hypnotised Defendants.
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- Author(s): Mason, James
- Source:
Journal of Criminal Law; Feb2021, Vol. 85 Issue 1, p26-43, 18p- Subject Terms:
- Source:
- Additional Information
- Subject Terms:
- Subject Terms:
- Abstract: Traditionally, jurists have distinguished between voluntary/involuntary behaviour via the theory of volition. Though perceived as the conventional approach, this paper argues that the volitional understanding of voluntariness is an inadequate instrument for assessing complex behaviours which seemingly portray a striking level of intelligence and purposiveness on the part of the accused. In particular, the phenomenon known as hypnotically-induced behaviour, which forms the focus of this paper, is one such troublesome case. To this end, the version of the volitional theory most staunchly advocated by Professor Michael Moore is singled out for scrutiny, due to his strong sentiments supporting the application of his philosophy to these aforementioned behaviours. In contrast to Moore, this paper suggests that the position most recently proposed by the Law Commission of England and Wales within their discussion paper on the defences of insanity and automatism is to be preferred. Specifically, the Commission recommend substituting the theory of volition for that of 'control' as a means for assessing the voluntariness of any given behaviour. This paper submits that a theory of control has two major advantages over the traditional theory of volitionalism. First, the possession/absence of control more accurately reflects the contemporary system of criminal law in England and Wales. Second, a theory of control is more conceptually defensible as an explanation for why behaviours performed under hypnosis are typically perceived as involuntary. [ABSTRACT FROM AUTHOR]
- Abstract: Copyright of Journal of Criminal Law is the property of Sage Publications, Ltd. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
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