How is liability apportioned between the surgeon and the robot in robot-assisted surgery? In Switzerland, a surgeon’s criminal responsibility rests on an obligation of due diligence. It is generally assumed that due diligence and responsibility is divisible among team members and that each individual is responsible for their own actions. The principle of trust (“Vertrauensgrundsatz”) also establishes that a member of a team may trust other members to do their job. The issue discussed in this chapter is the degree of due diligence owed by surgeons who cooperate with robots. In Switzerland, the principle of trust is not applied to a robot assistant, if only because robots cannot be criminally liable themselves. Apart from complete robot failures, surgeons therefore bare the risk of patient injury from surgical robots, in order to avoid a responsibility gap in the law. However, given that surgical robots benefit patients and are becoming the expected standard of care in certain areas, the chapter argues that the principle of trust should be applied to limit the due diligence expected from a surgeon interacting with a robot, if the robot has been appropriately certified.

This chapter studies Richard Marsh’s unexplored fiction on criminal mesmerism (The House of Mystery, “A Psychological Experiment,” “How He Passed,” “The Woman with One Hand”) alongside The Beetle, to analyze how mesmerized subjects are portrayed as automatons, seemingly devoid of agency/power. Drawing on the complex material history of automaton-objects and nineteenth-century psychological theories of automatized human behavior, the figures of mesmerized automatons in the texts complicate the usual association of automatons with technophobic anxiety. They also complicate the fraught issue of criminal responsibility, projecting difficult questions of volition/power that inhabit the crimes/injustices committed, or enabled, through an automaton. The automaton-like humans fracture the established nineteenth-century connection between mesmerism and painlessness, underscoring the inner (moral) agony of the automata – who in these texts are usually class/gender outsiders. As such, Marsh’s texts on criminal mesmerism stage an ethical intervention by showcasing the automatized subjects’ pain as their protest against socioeconomic injustices.

Clinicians can play an integral role in the ultimate determination of defendants’ criminal responsibility, given that information gleaned from mental state at the time of the offense (MSO) evaluations influence judges and jurors’ decision-making about a particular case. Such evaluations are particularly complicated due to their retrospective nature, lack of a standardized assessment approach, and variability in criminal responsibility statutes across jurisdictions and time. Yet several legal, clinical, and contextual factors appear to impact clinicians’ decision-making when tasked with these evaluations. In this chapter, we examine the existing literature regarding MSO evaluation referrals, including combined evaluations, to help inform practitioners’ expectations. Next, we review critical components of an MSO evaluation and identify challenges for clinical decision-making. Then we discuss forensic report writing and testifying, as informed by the literature regarding best practices. Lastly, we suggest how field reliability of mental state evaluations might improve through research and policy.

Chapter 3 explores the structure of the international criminal justice field. Specifically, the chapter argues that the community of international criminal law practice, which includes judges, lawyers, academics, non-governmental organizations, and state diplomats, is bound by two core norms, or shared understandings: firstly, that the perpetrators of mass atrocities deserve to be punished (the ‘anti-impunity’ norm), and secondly, that punishment should follow a fair criminal process (the ‘legalism’ norm). Next, Chapter 3 turns to the debates taking place inside the international criminal justice field in relation to questions of individual criminal responsibility. The analysis reveals a variety of competing views on the meaning of criminal responsibility rules, on the requirements of a ‘fair process’, and on the mechanisms for ending impunity for mass atrocities. These clashes of ideas result not only from differences in the professional backgrounds of the persons engaging in international criminal law practice, but also from the lack of agreement on the nature of personal culpability for atrocity crimes and on the function of criminal law in the international society.

This chapter examines the second fundamental category of international criminal law, the international legal subject. This legal category constructs individuals as legal subjects who possess rights and duties at the international level. Taking gender as a relevant category of victimisation and perpetration, the chapter examines how sexual violence jurisprudence reveals the construction of the legal subject and relations in international criminal law. Reinscribing sexual violence as a gender-based crime makes visible how international criminal law constructs persons as legal subjects and attributes to them specific legal relationships of rights and duties to other persons. The chapter analyses how international criminal law attributes actions, rights, and responsibilities to individuals and collectives as victims and perpetrators of international crimes of sexual violence and constructs the person and society in the international legal order. It shows how these models of legal subjects continually oscillate between person and group, and individual and collective legal subjects, and reveals the problematic conceptualisation of the subject itself.

The Court’s historic movement from theory to practice came with a round of investigations targeting specific conflicts and identifying specific suspects, centered mainly in Africa. The powers and constraints of the ICC Prosecutor were closely monitored by judges as the Court issued its first arrest warrants. The first three suspects to arrive in The Hague were Congolese men from the peripheral Ituri district; and a fourth Congolese suspect was soon apprehended for alleged crimes in the Central African Republic. Lasting more than a decade, each trial faced a series of crises and reversals, indicating fault-lines in the original design. Mixed evidence made it surprisingly difficult for the Court to establish crimes involving child soldiers, as well as sex and gender crimes; and even more difficult to attribute criminal responsibility to the individuals accused. The interests of victims had to be balanced with the legal principle of fair trials. From an initial overview, the reader understands the many difficulties – both practical and institutional – facing the new Court and its ambitious mission.

In the final chapter, I turn to the question of how psychopaths should be treated in the criminal law. I begin by sketching the distinctive problem that psychopathy presents for the criminal law, and some broad observations on how it is dealt with currently. I engage first with an argument by Paul Litton which states that the criminal law is an expression of democratic norms, and therefore that any attempt to excuse psychopaths based on their psychopathy should be rejected because it would not command the respect of the public. I then turn to the question of whether psychopaths deserve punishment. I review the various ways in which judgments of criminal responsibility are instantiated in legal tests, and the conditions of responsibility that are implicit in these. Ultimately, I conclude that psychopaths lack capacities which ought to be considered a condition of criminal responsibility, essentially the ability to respond to moral reasons, and not just the ability to know that their actions are legally proscribed.

The Court’s historic movement from theory to practice came with a round of investigations targeting specific conflicts and identifying specific suspects, centered mainly in Africa. The powers and constraints of the ICC Prosecutor were closely monitored by judges as the Court issued its first arrest warrants. The first three suspects to arrive in The Hague were Congolese men from the peripheral Ituri district; and a fourth Congolese suspect was soon apprehended for alleged crimes in the Central African Republic. Lasting more than a decade, each trial faced a series of crises and reversals, indicating fault-lines in the original design. Mixed evidence made it surprisingly difficult for the Court to establish crimes involving child soldiers, as well as sex and gender crimes; and even more difficult to attribute criminal responsibility to the individuals accused. The interests of victims had to be balanced with the legal principle of fair trials. From an initial overview, the reader understands the many difficulties – both practical and institutional – facing the new Court and its ambitious mission.

Building on the scholarship that traces how changing age of consent laws did not so much protect girls as define the boundaries and norms of girlhood, this chapter shifts the focus to the boy child – a figure who was often evoked during discussions of child marriage and the age of consent in India. This chapter uses the boy child as a heuristic device to study a cluster of Hindu patriarchal anxieties that congealed in a discourse of boy protection and compares Har Bilas Sarda’s Hindu Child Marriage Bill with other bills concerned with the ages of marriage and consent. It showcases how adjustments to the ages of consent and marriage also affected the boundaries of boyhood. This chapter shows how patriarchal considerations were articulated along the axes of age as well as sex and gender; it traces the Hindu patriarchal considerations that underwrote the Child Marriage Restraint Act; and finally, it analyzes the seemingly peculiar logic of “boy protection” as discussed by Hindu reformers to reflect on peculiarities of the liberal sex/age system that have become invisible to us.

This chapter provides an overview of forensic mental health assessments in criminal, civil, and juvenile and family court settings. We begin with a general discussion of the nature and method of forensic assessment, highlighting the various data sources on which a forensic assessment is based and the hypothesis testing nature of the evaluation process. We then turn to an overview of the most common types of assessments conducted within the criminal forensic context (adjudicative competence, criminal responsibility, risk assessment and management), the civil forensic context (personal injury, disability determination, worker’s compensation), and the juvenile and family court contexts (parenting capacity, child custody, juvenile waiver to criminal court). Finally, we end with a general discussion of the importance of the written evaluation report.

This chapter makes the methodological case for my study of criminal responsibility. It proceeds from the conviction that space and time are crucial to a deep understanding of criminal responsibility principles and practices. This chapter introduces the socio-historical methodological approach I adopt in this book and accounts for my timeframe, the spatial and temporal scope of my study. As I discuss, my focus is on the development of criminal responsibility over the twentieth century in the context of Australian criminal laws, a delimited frame centred on a new set of jurisdictions which enables me to develop a located or grounded analysis of criminal responsibility.

This chapter picks up the historical story in the middle of the twentieth century. Against a background of an enhanced sense of independence and confidence of people and institutions that developed following World War I and World War II, I argue that it was in the middle of the twentieth century, from the 1930s to 1960s, that Australian criminal law came into its own – measured in terms of an orientation around national coordinates, and in the self-confidence of its practitioners and academics. I demonstrate that, with close reference to the decisions of English courts, and commentaries such as that of Glanville Williams – and, increasingly over the period, to US developments like the Model Penal Code – Australian lawyers and commentators came to forge an independent path for the criminal law in the mid-century. Working over and above developments that occurred within state jurisdictions, and across code and common law modes of criminal law, practitioners and scholars were thoroughly engaged in a global debate about the development and improvement of the law of crime, and in a complex and subtle negotiation between what Australia shared with others, and what might be thought mark it out. In the mid-century, it became possible to think about Australian criminal law as such, to conceptualise Australian criminal law as a meaningful idea.