Genetic disposition and crime

6 August 2013

Research by PhD candidate, Allan McCay raises the question of whether links between genetic predisposition, social environments and criminal behaviour should be used in sentencing.

In an article for the Indigenous Law Bulletin, which was then featured in The Australian, he argues that "an offender's genetic constitution is a factor that is unchosen, and one that may exacerbate any difficulties created by the social environment".

In his article, The Fernando Principles and Genetic Vulnerabilities to the Crimogenic Effects of Social Environments, Mr McCay examines the mitigating effect of social circumstances in the sentencing of Aboriginal offenders.

In R v Stanley Edward Fernando, an Aboriginal man pleaded guilty to the malicious wounding of his de facto after a bout of drinking.

The 1992 judgment ruled that sentencing decisions should recognise social disadvantage that precedes the crime.

The Fernando judgment has provided guidance for appeals courts around the country in sentencing Aboriginal offenders, but its relevance has diminished in recent years, with several NSW Court of Criminal Appeal judgments eroding the principles, particularly in relation to how courts deal with chronic offenders.

"Research in behavioural genetics is now starting to suggest that, for some but not all, there is a genetic susceptibility to the predisposing effects of one's local community environment," Mr McCay argues.

Mr McCay said his research did not suggest that Aborigines had a genetic susceptibility to crime.

"The significance for some Aboriginal people is that Fernando environments may trigger a genetic vulnerability that may not have been triggered in different social circumstances," he writes.

Mr McCay notes that the US has used issues of genetic predisposition in sentencing.

"On one hand, credible evidence might suggest that an offender with significantly diminished moral culpability is deserving of little punishment.

"But the same credible evidence might have undesirable consequences for others in terms of stigmatisation and danger."

Contact: Greg Sherington

Phone: +61 2 9351 0202

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