Does culture impact on notions of criminal responsibility and action? The case of spirit possession

Introduction to spirit possession: A case study

One night during May 2009 in Leicester, UK, 18-year-old Lorraine Mbulawa attacked her mother with a kitchen knife as she lay sleeping (“Mercy for Witchcraft Girl,” 2011). Sisbsisiwe Mbulawa sustained serious injuries to her face and neck and her daughter was subsequently arrested and charged with attempted murder. The trial took place in early 2011. A psychiatric assessment revealed no mental disorder but observed that Ms. Mbulawa, originally from Zimbabwe, held strong beliefs in witchcraft and, at the time of the incident, believed that she was possessed by the spirit of her dead grandmother. The psychiatrist considered her to still be at risk of further episodes of spirit possession. Justice Keith accepted Ms. Mbulawa’s defense and took into account character references from her family, which depicted her as intelligent, confident, and poised. The charge attempted murder was reduced to unlawful wounding for which she was convicted and received a 12-month suspended sentence and 120 hours of unpaid work. At the trial, Ms. Mbulawa had an emotional reunion with her mother who has since made a full recovery.

Providing an explanation of the cultural context for the actions committed by Ms. Mbulawa contributed to the subsequent reduction of charge and sentencing. This explanation emphasized the rupture in behavior that the incident in 2009 represented compared to her typical behavior. Introducing the notion of spirit possession and explaining how this experience was embodied suggested that the actions committed were not solely the responsibility of Ms. Mbulawa as an autonomous agent. Significantly, Ms. Mbulawa was 18 years old at the time of the incident, and had recently moved to the UK following the death of her father. Her developmental years, including those that are most significant for the formation of her identity and self, were in Zimbabwe, a society in which there is an overt presence of a belief in witchcraft and spirit possession. A psychiatric assessment that concluded Ms. Mbulawa was mentally ill would have decreased her agency further, and increased her vulnerability to further ruptures in her behavior. Interpreting her behavior within the legal system was facilitated by considering the interaction between different cultural values.

There are several important points to be drawn from this case study, which provide the basis for our discussion. In the psychiatric assessment of Ms. Mbulawa, no mental disorder was diagnosed. This was significant because from a legal vantage point, Ms. Mbulawa was an adult fully responsible for the actions she committed. However, interestingly, the legal team accepted a culturally informed narrative of the circumstances and state of mind of the defendant at the time of the alleged offence. The element of spirit possession contributed to a lesser sentence than would have otherwise been given should the defendant have been considered wholly accountable for her actions. We examine this process of reasoning throughout this article.

As a starting point, in order to analyze this recent case study, we contextualize spirit possession with respect to the relevant legal framework. We will then analyze the case study against the backdrop of the ontology of spirit possession and cultural embodiment of action and then place it in the context of the mind–body relation assumed in the legal framework. Through this analysis we will consider the normative use of the cultural defense (Renteln, 2004) in legal settings.

The ontology of spirit possession

Spirit possession manifests as a spirit gaining hold of a human being (Boddy, 1994, p. 407) and, most significantly for the concerns of legal analysis, controlling their actions. Typically, these spirits exert a greater force than the possessed individual can counteract. As a result, the person’s actions are subjugated to the spirit, which is considered to possess its own free will and agency. In some religious practices, spirits are invited to possess an individual. However, this is only undertaken during rituals or ceremonies and under strict regulation. Spirit possession of the kind we discuss in this paper is typically unwanted, and can also be a sign of a person’s lack of faith, which can bring shame onto the person’s family. In 2009, Nalia Mumtaz, aged 21 years, and six months pregnant, was murdered by her husband and his family, who thought that she was possessed; all four were convicted of murder in Birmingham, UK (“Naila Mumtaz Killing”, 2012). This illustrates the potential impact of culture on action, and on the legal interpretation of criminal responsibility.

One of the implications of globalization is that within a country’s population, people may reflect a hybrid of multiple cultural influences. At times of crisis or ruptures in everyday experience, such as during medical, legal, or political conflicts, individuals’ values are brought to the surface. Spirit possession is still a common response to such ruptures in many contemporary social contexts (Dawson, 2011, p. 2). Furthermore, as Boddy (1994, p. 407) points out, the ontological claims inherent in the spirit possession by virtue of its reference to the supernatural require a transcendent dimension to our existence (i.e., how we experience the afterlife). In summary, spirit possession is an important feature of many contemporary societies and further efforts are needed to understand both how spirit possession manifests, its implicit ontology, and the bearing this may have on medical and legal contexts.

Individual and societal action

Kirmayer, Rousseau, and Lashley (2007, p. 98) point out that in the “contemporary world, most people are between cultures, forming their own distinctive hybrid identities in which their relationship to community and tradition is shifting, ambiguous, and often contentious.” Cultural formulation then is more than simply identifying the “Other” in terms of their particular social status or background. Rather, culture should be understood as a unifying structure that provides perspectives on the factors that shape “personal identity, emotional responses, and patterns of reasoning” as well as influencing “motivation and intent in situations involving criminal action” (2007, p. 98).

When individuals with different cultural backgrounds live in a shared community, it is inevitable that interpretations of actions will vary. In this discussion, we are not attempting to distinguish which actions are “right” or “wrong”—for example, when we proceed to discuss criminal action during spirit possession. Rather, we consider a person who committed a crime to have performed an action that has been constructed within a particular setting. In this case, therefore, the study of culture in forensic psychiatry can contribute by helping to contextualize an offender’s action and experience (Dein & Bhui, 2013, p. 769). An action may be judged morally wrong, but the extent to which a person is held criminally responsible is subject to variation.

Importantly, since our actions are subject to normative evaluation during legal standings, we must exercise a certain awareness of what constitutes an action. Actions cannot be treated as objects by themselves. Clearly, for Ms. Mbulawa, her actions, regardless of their final significance, were filtered through internal processes (involving her memories, beliefs, and experiences) that were shaped by her external relationships to the world around her. As conceptualized by O’Neill (2002), we integrate our relationships to the surrounding society in our bodies, through processes of embodiment. In other words, our actions are subject to both our own agency and the embodied experience of living in a relational world. Recognizing this is imperative when confronted with relational systems that differ from the dominant norms in a particular society, which may challenge the basis on which actions are interpreted in the law.

Spirit possession, agency, and action

A characteristic of spirit possession is that the body is bracketed off from individual agency and related aspects of the social world. This conforms to a distinction made by Douglas (2004, p. 72) between the natural and the social body. In the former, the body is observed as an empirical entity—the acts and behavior committed by a body are merely physiological movements. However, the social body is subject to influence by those surrounding the body. In recognizing that we are social bodies, we are able to become aware of the ways that we may act, and evaluate our choices in accordance with how our society is structured. Yet, a possessed body is characterized by the lack of such awareness and agency—the mind is delimited and displaced so that the body responds to the possessing spirit. The possession of a body places the person in an extremely vulnerable state because the body is at risk of acting and behaving in ways that are outside of the person’s own agency.

Possession can be found in many belief systems around the world. The case study we present involves an individual belonging to an African diasporic community in the United Kingdom. What role, then, does culture play for such a person originating from a society where the existence of spirits (both “good” and “bad”) is widely accepted, who is living in a society based on different values and beliefs that reject the possibility of spirit possession? To what extent should a cultural defense be applied in this context?

Renteln (2004, p. 6) describes the main obstacle for introducing culture to the courtroom as follows: “no matter what the legal question, [it] is the attitude on the part of judges that individuals from other cultures should conform to a single national standard.” Such a “single national standard” conforms to the premise that an individual is either criminally responsible for the act in question, or is exempt from the charge of criminal responsibility. This contention has been subject to much debate and also confusion, with roots in Aristotle’s Nicomachean Ethics. Aristotle considered agency and actions to be inherently related. For example, for a person to be subject to the judgment of “guilty” or “innocent” their actions must have been voluntary—that is, the person had both, the capacity to carry out the action and the choice to not carry out the action. An involuntary action, therefore, is a result of impaired capacity or a lack of choice.

Defining criminal responsibility

The legal system identifies a philosophical difference between actions and mere body movements. This is illustrated in the potential for the accused to be acquitted if that person behaved unconsciously, for example, while sleepwalking or following a severe head injury. Here, it may be the case that no actus reus (guilty act) happened even though a physical act did occur because of the way the law clearly defines action—a person must be conscious in order to perform an action and their behavior, determined by reason. In unconscious states, a person’s physiological behavior is simply bodily movements.

Identifying actions where the person consciously performing them is not criminally responsible, however, is very difficult in practice even though there are circumstances where, intuitively, it can clearly be argued that the person should not be defined as criminally responsible. This is most obviously applicable to persons suffering from a mental disorder.

In the English legal system, criminal responsibility remains difficult to define. The U.S. legal system is clearer. Article 16 of “Section 7: Criminal Offense, Criminal Responsibility, & Commission of a Criminal Offense” defines a person who commits a criminal offense as criminally responsible if (O'Connor et al, 2007, p.63):

(a) He or she commits a criminal offense, as defined under Article 15, with intention, recklessness, or negligence as defined in Article 18.

(b) No lawful justification exists under Articles 20–22 of the MCC for the commission of the criminal offense.

(c) There are no grounds excluding criminal responsibility for the commission of the criminal offense under Articles 23–26 of the MCC; and

(d) There are no other statutorily defined grounds excluding criminal responsibility.

Mens rea (guilty mind) is premised on the presence of certain mental states. In some circumstances, such as when there is a “disease” or “abnormality” of the mind, the mental state of the individual may be impaired. In order to argue lack of mens rea as a defense for a particular act, certain mental conditions must be evidenced. A mental disorder, for example, leads to what is termed “diminished responsibility.” When used in a defense against murder, evidencing a diminished responsibility can reduce the crime to manslaughter.

Criminal responsibility in Western legal ontologies, therefore, is a reflection of mental responsibility. Walker (1968) takes this argument further. He considers responsibility to be a mental faculty. Evidently, then, the law prioritizes mens rea—the mental state of the individual—as constituting the matter to be judged within the legal system.

Possessed bodies, agency, and mental state

In her comparative cultural and historical study of possession, Keller (2005) proposes that a possessed body has “instrumental agency” and is no longer an autonomous agent. Keller develops the concept of instrumental agency to explain a possessed person’s paradoxical authority, namely that he/she obtains his/her identity, or differentiated power, from the community’s view that he/she is no longer an autonomous agent. As Keller notes, “[p]ossessed bodies are extremely different from the Western model of proper subjectivity” (2005, p. viii). Clearly, then, possessed bodies pose serious challenges to legal and psychiatric systems alike which need to consider in what ways possession fits an abnormal mental state account of action. To explore this question, we must evaluate agency in the context of possession.

During possession, both physical and mental spaces may be occupied. In cases that involve “bad” spirits, the sole intention of the spirit is to cause harm. In this case, locating a causal explanation for action during possession is almost irrelevant. The intention to commit the criminal act is present. However, the key point is that the agency driving the criminal act is not that of the individual whose body commits the actus rea.

Mental states can be affected by physiological factors such as a brain tumor. However, a brain tumor does not have agency. The person may have acted differently if he or she was not afflicted with a brain tumor but it cannot be said that the brain tumor intended for the criminal act to occur. In this sense, spirit possession cannot be compared with the alteration of mental states secondary to physiological problems. When a person is possessed, their behavior is primarily and directly related to the spirit—in other words, the person exhibits varying degrees of misconduct and experiences loss of agency because this is the teleology of action for spirits. As a result, Keller observes that “within their communities, possessed bodies are rigorously scrutinized in order to determine that in fact an ancestor, deity, or spirit had overcome them” (2003, p. vii).

A cultural understanding of possession permits a multiple ontological view of self and identity. As Janice Boddy (1994) writes of a possessed person, spirits “permanently attend her self” and “unlike her equally well socialized kin, the spirits are ineluctably Other; they form a non-self component of her person that continuously affirms the veracity of her self by providing it negative ground and assuming some blame for its violation” (Boddy, 1994, p. 422). Upon possession, a person ceases to be the agent driving action. Actions therefore are not representative of the agency or capacity of an individual who is freely making choices of behavior. Among those who accept this ontology, persons who are possessed are often “not held personally responsible for their actions by their communities” (Keller, 2005, p. vii). Given the conceptual structure of such cultural understandings of possession, how should action during possession be assessed, and normatively evaluated, during legal proceedings?

Assessing action

The current two options for assessing action present both, problems and difficulties for the circumstance of possession. The first option would be to question the actus reus. The possessed person, however, is conscious. The second option, and the one that is usually preferred, is to scrutinize the mens rea. To find a person not criminally responsible by way of mens rea is to pronounce that the mind was impaired at the time of the crime such that the mind was not autonomous, meaning the person had lost agency. Assessing a person’s sense of agency, or autonomy of action, determines whether the person may be held accountable for their actions. Typically, proving that a person should not be held accountable would require diagnosing a pathological state in the mind of the person who committed the crime. However, this poses certain difficulties and, most crucially, the nature of these difficulties make the action of a possessed person a unique situation in which the juxtaposition of agency and pathology does not hold, thus, suggesting that a cultural defense may be the most valid way to proceed.

One consequence of making a clinical diagnosis in the case of a person allegedly experiencing spirit possession is that it may detract even further from the individual’s potential for agency. Agency is a central notion in spirit possession (Cohen, 2008; Cohen & Barrett, 2008). Within a cultural understanding of possession, possession itself is an action but not of the individual—it is the manifestation, personification, and embodiment of evil and malevolent spirits that have preyed upon the person. The causation of possession could be considered on a sliding scale of vulnerability—the greater the vulnerability, the greater the opportunity for spirits to find an “entry-point.” Vulnerability to spirit possession may be increased by the cursing or deliberate summoning of a spirit to attack another individual and mitigated by various factors, including the person’s religious devotion. When spirits possess, the body is considered to be a dangerous space because the body carries out the spirit’s action—in such instances, it is the spirit acting as the body’s agency, not the mind of the possessed person. Thus, there is a violation of the person’s agency, as well as a change in character. The possessed person, therefore, is acutely vulnerable and acting out of character in this way may even be a traumatic experience.

When a cultural defense is used, criminal responsibility can be negated or mitigated for acts “committed under a reasonable, good-faith belief in their propriety, based upon the actor’s cultural heritage or tradition” (Choi, 1990, p. 81). With regard to the case study, Ms. Mbulawa was assessed by a psychiatrist and it was concluded that she was not suffering from any form of mental illness. Furthermore, in line with Choi’s definition, Ms. Mbulawa was indeed acting in accordance with her cultural norms and beliefs, namely the belief that spirits are able to possess a person and, at times, cause the person to act maliciously. Thus, it was appropriate to apply the cultural defense in Ms Mbulawa’s case since she was acting in good faith according to the cultural norms with which she was most familiar.

Conclusion

Cultural forces play a role in defining our actions and agency. These actions are subject to normative assessment as part of judging individuals’ responsibility as members of a particular society. Defining the normative value of an action becomes difficult when individuals participate in multiple cultures. This requires further exploration and development of the relevant tools to formulate cases in ways that allow the use of a cultural defense when appropriate. The study of culture in forensic psychiatry can help contextualize an offender’s action and experience (Dein & Bhui, 2013).

From some cultural perspectives, possessed bodies have “instrumental agency” and are no longer the site of the individual’s autonomous agency. Spirit possession, therefore, presents a challenge for legal interpretation. In globalized societies, such culturally specific behavior is vulnerable to misinterpretation. Criminal responsibility, as a mental faculty or capacity, is premised on the person’s ownership and responsibility for the actions of the body as an expression of individual agency. Cases like Mbulawas’ require a more nuanced and culturally informed view to address the vulnerability of the individual at risk of ethical harm as well as that of the wider society.