Criminal responsibility now forms the subject of a rich vein of socio-historical scholarly work. But finding concrete ways to grasp the social dimension of criminal responsibility has proved challenging. This article presents one way of examining the social dimension of responsibility practices in criminal law: taking a social, rather than a traditional, or typical, legal unit of analysis, it presents a study of returned service personnel charged with serious offenses after returning home to Australia. I argue that, premised on veterans as a distinct social category, ex-soldiers are accorded special status in criminal adjudication and sentencing practices — as “veteran defendants.” The special status of “veteran defendants” has two substantive dimensions: “veteran defendants” as über-citizens, civic models or exemplars, to whom gratitude is owed and who generate responsibility in others involved in the adjudication and evaluation process, on the one hand, and legal persons with “diminished capacity” who have impaired or reduced responsibility for crime, on the other hand. These two substantive dimensions of the specialness of “veteran defendants” are underpinned by a formal quality of “veteran defendants”—that they are “see-through subjects,” both more known and more knowable than other defendants. In the Australian context, there is a historical interplay between the two substantive dimensions of the specialness of “veteran defendants,” with the latter becoming more prominent over time.Loughnan states
Criminal responsibility is experiencing something of a “moment” in historicized studies of law. Socio-historical scholarship on criminal responsibility, which has developed in part in critical dialogue with the legal-philosophical scholarship that still dominates the field, has now come to form a vibrant domain in its own right. Like other work in the sociohistorical scholarly tradition, this scholarship subjects criminal responsibility principles and practices to analysis in light of the substantive social, political and institutional conditions under which these principles and practices are given life. This approach has generated (and continues to generate) deep insights into criminal responsibility. Scholars working in the socio-historical tradition chart the dynamic relationship between ideas about criminal responsibility and the development of the modern state, the changing coordination and legitimation requirements of criminal law into the current era, the role of the police power, and the influence of Enlightenment liberalism on the structures and operation of the criminal law. These accounts reveal the complex and non-linear ways in which individual responsibility for crime has become the central organizing principle of the criminal law in the current era.
In order to build on existing socio-historical scholarly work on criminal responsibility, this article explores the social dimension of responsibility for crime, and presents one way in which it might be examined in concrete terms. By the social dimension of responsibility for crime, I refer to the way in which criminal responsibility practices refract (rather than reflect, in a straightforward or direct way) social norms around responsibility. As their name implies, socio-historical (and critical) scholars are particularly interested in the social dimension of responsibility for crime. As Nicola Lacey argues, criminal responsibility is an idea which is “located within a social practice” of holding individuals to account, and the “social, intellectual and institutional environment within which legal ideas emerge” influences the way legal rules are developed and applied. Alan Norrie suggests that, in criminal law, individual responsibility is always intermixed with social responsibility for wrong-doing. Finding concrete ways to examine the social dimension of criminal responsibility practices has not proved straightforward, however. As Lacey notes, in relation to conceptual accounts of criminal responsibility, the connection between the account and broader social ideas and institutions “too often slips out of view.” And for socio-historical scholars, who are aware of the significance of “the social” in criminal responsibility, translating this awareness into specific research projects has proved challenging.
How might we move beyond invocation of the significance of the social dimension of criminal responsibility, to examine it in concrete ways? One way to explore the social dimension of responsibility for crime is to adopt social (or, at least, more selfevidently social) rather than legal units of scholarly analysis. By this, I suggest taking a unit of analysis that differs from traditional legal units of analyses, which, typically, concern acts that can be committed by anyone. While there are multiple examples of “social” units of analysis that might be of interest in socio-historical and critical legal study, it is notable that socio-historical scholars typically borrow standard doctrinal or theoretical units of analysis for socio-historical inquiry (all defendants convicted of violent offenses, or child sexual assault, for example). There is, however, a good reason to adopt different units of analysis—it opens different ways of thinking about criminal responsibility. Studying a social category or group cuts across familiar legal categories and presents a way of tapping broader currents of meaning around responsibility.
For the empirical study presented in this article, I adopt the social category of exsoldiers or war veterans. Ex-soldiers are a particularly apt social group for the study of criminal responsibility for two main reasons. First, they are a distinctive and privileged group, and, in the Australian context, enjoy a high profile. Over the course of the twentieth century, war has loomed large on the Australian social landscape, and it has proved to be important in Australia’s self-understanding, both popular and scholarly. War has played a crucial role in development of Australian national identity, and was integral to the project of nation building in the period after the end of the colonial era. Australian experiences of war in the twentieth century - World War I (WWI), World War II (WWII), Korea, Vietnam, and Iraq and Afghanistan - and other military engagements - such as East Timor - have varied significantly. But, despite declining numbers of active military personnel, fewer military casualties and scant public support for war or overseas deployment of Australian troops, the social status of returned service men (and women) has remained high. Second, veterans are a particularly apt social group for the study of criminal responsibility because, as former agents of the state, they bring the state into the criminal courtroom in distinctive ways. In the modern era of “mass soldiering in an age of total war,” soldiers are a group set apart from others, licensed to kill on behalf of the state which otherwise enjoys a definitional monopoly on violence. This complicates the standard criminal law dynamic of “state versus individual” and opens the way for different, and more complex, responsibility dynamics to appear.
This article offers an analysis of the criminal legal treatment of men (all my cases concerned men) who, having been in the military, and, in some cases, having served in war, face serious criminal charges after returning home to Australia. The cases examined in this study span the period of the twentieth century (and the first years of the twentyfirst century). The cases comprise reported and unreported criminal trials, appeals and sentencing hearings, in which the defendant was identified as an ex-soldier. Neither military justice cases nor civil cases are included in this study. My research indicated that there were a number of decisions in which the defendant’s military or war service was mere background to his or her trial or sentencing (such as when military or war service took place much earlier in the defendant’s life), and did not appear to have played a real role in evaluation of the defendant. This was the case even when the military service resulted in the defendant developing post-traumatic stress disorder (PTSD). In the majority of cases, however, military or war service was considered by the court to be relevant in some way: as my study reveals, military or war service has multiple effects in criminal adjudication and evaluation practices, and such effects vary over time and place. In some trials, military or war service relates to claims of mental incapacity, and thus to defenses that go to criminal responsibility. In some sentencing decisions, military or war service is considered in relation to (prior) good character, and interacts with other factors, such as age, guilty pleas, and remorse.
Premised on the status of veterans as a distinct social category, ex-soldiers are accorded special treatment in criminal adjudication and sentencing practices. To reflect this special status, I label them “veteran defendants,” a legal status arising from the social meanings of war, soldiers and soldiering. As I discuss in this article, the specialness of “veteran defendants” centers on the ex-soldier as a complex figure, simultaneously agentic and victim-like, courageous and vulnerable, both more and less than other defendants. I suggest that the special status of “veteran defendants” has two substantive dimensions: “veteran defendants” as über-citizens, civic models or exemplars, to whom gratitude is owed and who generate some form of responsibility in others involved in the evaluation and adjudication process, and as individuals with “diminished capacity” whereby “veteran defendants” have impaired or reduced responsibility for crime. These two substantive dimensions of the specialness of “veteran defendants” are underpinned by a formal (as opposed to substantive) quality of “veteran defendants”—as “see-through subjects,” both more known and more knowable to the criminal law than other defendants. There is a historical interplay between the two substantive dimensions of the specialness of “veteran defendants,” with the latter becoming more prominent over time, as over the course of the twentieth century, ideas about war, soldiers and soldiering have changed.
In this article, I present my study of “veteran defendants” in three parts. In Parts II and III, I discuss the two substantive dimensions of the criminal legal treatment of returned servicemen that I suggest capture the special status of the “veteran defendant” in criminal law—the idea of the individual veteran as an über-citizen and the idea of exsoldiers as legal persons with “diminished capacity.” In Part IV, I discuss the formal quality of “veteran defendants” that underpins each of these two substantive dimensions of specialness, “veteran defendants” as “see-through subjects.” I conclude with a brief discussion of the implications of my analysis for scholarly study of criminal responsibility