'“Society Owes Them Much”: Veteran Defendants and CriminalResponsibility in Australia in the Twentieth Century' by Arlie Loughnan in (2015) 2(1)
Critical Analysis of Law comments
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