While intoxication is colloquially labelled a defence, it’s not an excuse for crime, explains Arlie Loughnan.
A man who murdered his wife while she slept and blamed his actions in part on the effects of a sleeping pill he was taking, was given an extra two years jail time – taking his sentence to 21 years.
The killer, Brian Browning, had pleaded not guilty, relying on the evidence of a doctor who said that doxylamine (the sleeping pill) “could cause a person to do things that were otherwise completely out of character”.
This argument was not accepted by the Victorian trial court and Browning was convicted. On appeal, the court acknowledged the accused’s judgment and emotional controls were disturbed by his “decompensated psychological state,” but concluded several aggravating factors were involved that made the case a complicated and serious one.
As rates of prescription medication use continue to increase, the issue of crime committed under the influence of prescription drugs has been receiving some high profile media attention.
So should we be worried about a new wave of prescription drug-induced crime?
There have been many high profile cases over the years where crimes were committed “under the influence”. In 2011, a Canadian judge found a 16-year-old boy who stabbed his friend to death did so while in a “prozac-induced mood disorder with manic features”.
Prozac, otherwise know as fluoxetine, is a popular selective serotonin reuptake inhibitor (SSRI) antidepressant; a family of drugs linked to aggression in under 18-year-olds. Considering the boy had no previous history of violence, the judge concluded the murder would not have occurred if not for the drug.
Then there’s the appearance of the so called “Ambien defence” in the United States. Makers of the popular sleeping pill have been sued by numerous plaintiffs for its sleepwalking side-effects that have caused some to commit crimes they were supposedly unaware of at the time.
And back in Australia, a man argued an anti-obesity drug played a part in the his acts targeting young girls on the internet. The man claimed that Duramine, the drug he had been taking, reduced his ability to control his impulses.
Can we excuse these people for their violence and morally reprehensible acts? Are these individuals victims themselves, or fully culpable criminals?
Since the appearance of cheap liquor at the end of the eighteenth century, intoxication and crime – particularly violent crime – have been closely linked. But over the last few decades, illicit drugs have come to compete with alcohol for an association with crime.
The criminal law rules for determining criminal responsibility have accommodated drugs, largely by analogy with alcohol. They have also based this accommodation, in part, on moral condemnation of the act of getting drunk or taking drugs in the first place.
The recent rise to prominence of intoxication by prescription or legal drugs has challenged this approach, as taking these types of drugs is not illegal behaviour.
Indeed, the person who takes prescription or over-the-counter medication seems to be doing the right thing. What can he or she be assumed to know about the effects of the drug?
In terms of the causes of crime, we know that structural factors such as inequality, poverty and unemployment influence crime rates. Beyond this, studies show alcohol abuse is more dangerous and costly than consumption of illicit drugs, which, in turn, are more significant than the use and misuse of prescription drugs.
But even if the connection between prescription drugs and crime is a numerically small issue, we might ask if it should cause us to rethink the legal rules for determining responsibility for crime.
While intoxication is colloquially labelled a “defence”, it’s not an excuse for crime. Rather, intoxication is evidence the accused can raise to cast doubt on the prosecution’s claim that he or she did the relevant act (such as killing someone), with the mental state (such as intention) required by the offence.
When an accused raises intoxication in response to a criminal charge, the courts are interested in its effects on him or her, measured in terms of his or her ability to intend to commit the criminal act; or sometimes to control their conduct.
Drugs affect people in different ways and the nature of these effects may be the subject of expert scientific and medical evidence at trial. But because determining responsibility is an evaluative judgement, the clinical profile of the drug, or the quantity consumed, doesn’t decide the legal outcome of a criminal trial.
What matters is the way the drug was consumed. The criminal law treats voluntary or self-induced intoxication differently from involuntary intoxication. Knowingly taking drugs or alcohol comprises the vast majority of intoxication cases. Involuntary intoxication is a small slice of overall cases, in which an accused was tricked or forced into getting drunk or taking drugs.
In states such as Victoria, taking prescription drugs, or drugs available from a pharmacist, is classed as involuntary intoxication. The law accommodates those who commit offences when under the influence of prescription drugs as something of a sleight of hand: such consumption is in effect deemed involuntary.
This means evidence of such intoxication can be raised in relation to any charge, and can be used to refute prosecution evidence – not just about intent but about whether the accused was in sufficient control at the time of the offence.
But it is difficult to make this argument. In Browning’s case, in addition to claiming he didn’t intend to kill his wife, he initially claimed the sleeping pills caused psychosis. But in the face of evidence that doxylamine does not cause psychosis, this claim was abandoned during the trial.
Even when intoxication can be raised in relation to a criminal charge, defence lawyers might opt not to raise it to avoid adverse judgement by members of the jury. They may fear lay jurors could punish an accused for getting drunk or high in the first place, no matter what the law dictates.
And there’s the rub: beneath the technicality of the law on intoxication and criminal responsibility lies a moral core, according to which getting drunk or high is morally dubious, reckless or bad behaviour – and deserving of condemnation.
Taking prescription medicine following doctors’ orders would seem a good thing. But if people have had a bad reaction to those drugs before, or they fail to follow instructions properly, or mix illicit drugs or alcohol with the medication, we might not think they are entirely blameless if they then commit a criminal offence.
Further, if negative side-effects of particular drugs become sufficiently well known, or if the type of offence committed while on the drugs is particularly serious, we may see reduced community tolerance for the current approach in which intoxication via prescription drugs is treated in the same way as intoxication by force or fraud.