The Case of Mistaken Identity

Jonah Bossewitch
PHI 535
Professors H. Frankfurt & G. Rosen
January 14, 1997

"Art, like morality, consists of drawing the line somewhere."
							G. K. Chesterton
	
	Nowadays it seems as if everybody always has an excuse for everything, and our notions of personal responsibility are eroding under the weight of mass uncertainty and ambivalence.  Metaphysical issues inevitably rear their heads as genetic predispositions, environmental upbringing, and neurological disorders have all become a part of our civilizations everyday vocabulary.  Current events challenge our moral eyesight daily, as defendants and lawyers construct their arguments on foundations of quicksand.  Is there any strategy which can provide us with a map for navigating this treacherous landscape?
	Rigorous analyses that demand necessary and sufficient conditions often fail to withstand the onslaught of clever philosophers with witty counter examples.  For some concepts, it is fruitless to expect this type of  definition, although much can be learned by attempting to find one.  In these cases it is sometimes helpful to search for prototypes, paradigm instances of the concept,  which can provide a basis that spans the meaning of concept without rigidly defining it.  Peter Strawson suggests this approach in his analysis of responsibility.
	Strawson has argued that "there is no independent notion of responsibility that explains the property of the reactive attitudes.  The explanatory priority is the other way around: It is not that we hold people responsible because they are responsible;  rather, the idea (our idea) that we are responsible is to be understood by the practice, which itself is not a matter of holding some propositions to be true, but of expressing our concerns and demands about our treatment of on another."  By defining responsibility in terms of people's reactive attitudes, Strawson sets us up an account of responsibility that resists rigorous analysis.

Gary Watson's summary of Strawson’s position.  "Responsibility and the Limits of Evil." p. 121.

	It has been shown experimentally that human knowledge representation operates according to the prototype model.  That is, when asked to identify whether an object B is a bird, we do not employ  a propositional conditional that  is satisfied just when B is a bird.  Rather, we compare B to an prototypical bird (i.e. a canary) and determine the similarity of B to the prototype.  This feature of human cognition is easy to detect through introspection in the case of moral evaluations.  We often do not first know what our reactive attitude "should" be, and although an attitude is supposed to be an instinctive response, even our intuitions are at a loss in some cases.  In these instances we tend to compare the case with other cases whose evaluations we are sure of by extracting the relevant features and determining if the uncertain case fits the mold (much like identifying object B).  However, in order for this strategy to be effective we must have available clear cut, prototypical examples with which we can preform this comparison.

Edward Smith, "Concepts and Categorization," An Invitation to Cognitive Science: Thinking, Volume 3. Edited by Edward Smith and Daniel Osherson.  The MIT Press, Cambridge, Mass. 1995.

	Actually, instead of being defined with positive examples, responsibility is usually defined in terms of who is not responsible, namely that A is responsible for X, unless Y, where Y is a condition that exculpates A, or alternatively, with prototypical scenarios of agents who are not responsible.  Exculpating conditions are generally divided into two categories:  "(1) Defenses.  If an offence is attributed to someone he may attempt to refute the allegation outright, either by denying authorship, or by offering a justification, i.e., an argument designed to show that the alleged offence was not actually an ofense at all.  (2) Excuses.  When a defense is not available — i.e., if it is admitted that there was a genuine offence committed by the person in question — then the question arises as to whether that person has an excuse for committing that offence. . . . Excuses, then enter the picture when we are attempting to mutually assess the agent in the light of a particular offence he has committed."  While many have attempted to provide explicit conditions that specify valid excuses, Strawson provides a general characterization along with some specific examples.   Being a child, being under great strain, being hypnotized, being a sociopath, or being unfortunate in formative circumstances are examples that Strawson  uses to specify the notion of a valid excuse.  "His general characterization of [excuses] is that they present the other either as acting uncharacteristically due to extraordinary circumstances, or as psychologically abnormal or morally undeveloped in such a way as to be incapacitated in some or all respects for 'ordinary adult interpersonal relationships.'"  This characterization is far from a complete definition, as we are left wondering what is meant by phrases such as 'extraordinary circumstances,' and 'ordinary adult interpersonal relationships.'

Robert Cummins, "Culpability and Mental Disorder," Canadian Journal of Philosophy,  Volume X, Number 2, June 1980.

Watson, p. 123.

	Strawson's construction does not preclude attempts to extract underlying common principles from the prototypical cases.  In fact, the very act of comparing one case to another involves an abstraction of the principles involved.  These principles will greatly resemble the traditional conditions of Aristotle, 'ignorance' and 'compulsion,'  but it is crucial to recognize the directionality of the argument.  While Strawson would acknowledge that the child's ignorance is entangled with our excusing their behavior, 'ignorance' is not why their behavior is excused.  Their behavior is excused because of the nature of our reactive attitudes towards the child, which in turn depend upon how this event compares to the prototypical cases in our memory.  Of course this comparison will involve conditions which might sound foundational, and this creates a delicate dialectic between the prototypical instances and the principles which connect them.  However, this relationship should not be confused with a reductionist approach to responsibility, despite the similarity in appearances.
	There is an apparent flaw with this model that need to be addressed before it can considered as an viable alternative to the standard model.  First, since people change their reactive attitudes over time, there must be a mechanism for overriding a prototype without dismantling the entire system of beliefs about responsibility.  It seems that this can be accomplished by postulating a set of weights distributed over the prototypical cases that would enable the evaluator to reassess the appropriateness of a reactive attitude for a given situation.  Intuitions should not be treated like dogma, but they do demand significant consideration, since they form the foundations of our beliefs about responsibility.
Theoretical Insanity.
	"Our moral intuitions encourage us to treat insanity as an excuse in the context of the criminal law.  In most people the discovery that the murderer was mentally unbalanced brings with it a shift in attitude: indignation and blame give way, at least a little, to pity and exoneration.   I do not wish to question the rightness of these intuitions, but to ask why insanity would excuse."  

Jennifer Radden, "Deseases as Excuses:  Durham and the Insanity Plea,"  Philosophical Studies 42 (1982) 349.

	In recent years, a number of philosophers have raised serious concerns regarding the practice of absolving agents of responsibility on the basis of their mental illness (not to be confused with psychopathy).  A typical objection first attempts to show how insanity is not an excuse in itself, rather it is a condition which indicates that a primary excuse is applicable.  They then proceed to show that mental illness does not always necessitate the applicability of a primary excuse, and hence is irrelevant to the determination of their moral culpability.  No explanation is offered for why the common sense  intuitions are misleading, and this question may propel us into startling new territory. 
	One response to challengers of mental illness as an excuse preempts the question and forces it to be recast.  The intuition that mental-illness does constitute adequate grounds for getting off the moral hook is widespread—even those who dispute its validity, acknowledge its prevalence.  "It is widely held that the insane are not culpable for their offences, or at least that they are not culpable for those offences which are specific manifestations of their disorder.  Indeed, this is generally regarding by philosophers as a platitude."  

Cummins, p. 207.

	Strawson's account provides us with a tactic which can be employed to challenge this approach, on the grounds that it is our intuitions that are primary in our assignment of blame, and not some abstract, distilled condition. According to Strawson, we need to be clear as to what type of response we expect  when we pose the question "why is mental illness an excuse?"  Strawson would object to Cummin's formulation that "mentally disordered persons are culpable for their offences unless they satisfy one of the 'ordinary' exculpating conditions."  Being mentally ill in itself might exculpate the agent, in the same way that being a child might, on the basis of our reactive attitudes towards these people.  This does not imply that agent is free once this condition is met, since implicit in this view is the fact that the excusing instances must be relevant.  A pedophile will probably not be exculpated for tax evasion, since the prototypical model depicts a complete scenario, including the crime and context.  Comparison with the paradigm ought to reveal whether or not the agent's excuse bears on the action.
	 Not to suggest that mental illness is an excuse solely on the grounds that people tend to view it as such, however  perhaps we ought to trust our intuitions enough to give them a fair hearing. In fact, this approach may allow us turn the tables, and deal with the traditional philosophical position on its own terms.  Even those who maintain that there must be primary exculpating conditions, may be forced to admit that they do not have the complete picture.  Trusting our intuitions about mental illness suggests that we question whether or not there is more to exculpation than compulsion and ignorance.   
"The presence of mental disease cannot be said to constitute a third excusing condition, which deserves a place alongside ignorance and compulsion.  Rather, as I shall show, the presence of mental disease can excuse inasmuch as it can be explained in terms of one or the other traditional condition.  (There may yet be some other condition of which I am unaware which servers to excuse as ignorance and compulsion do, bu disease, at least, cannot be said to be such a  one).",

Radden, p. 350.

	I will not try to refute this argument on metaphysical Strawsonian grounds, as it would be difficult to get further than a head-butting session about the foundations of our justifications for assigning responsibility.  I introduced the topic in this manner primarily to provide the impetus for considering this issue, although it does provide a potential objection to the Aristotelian tradition that tries to reduce responsibility to a formula.  Rather, working within this framework I will show that there is indeed a third exculpating condition, which is often manifest in conjunction with mental illness.  Thus, the case of mental illness provides the springboard for exposing this other condition which may exculpate some agents who are not mentally ill.  In effect, this is precisely the dialectic that the Strawsonian position advocated, and from this perspective, both approaches accomplish very similar descriptions.
	"We shall not feel resentment against the man for the action done by the man he is not; or at least we shall feel less."

Peter Strawson, "Freedom and Resentment," p. 51.

	Strawson offers this excuse to explain the group of excuses characterized by the agent "not being himself," including "being under great strain," and "acting under post-hypnotic suggestion."  This category of excuses touches upon many interesting questions, and demands further elaboration.  What does it mean for an agent "not to be himself, "  and how inclusive is this category?  Should not being yourself serve as an exculpating excuse?  Can it be explained in terms of ignorance and/or compulsion, or does it constitute a third condition?  
	Just as in the case of responsibility, it may suffice to provide an account of what it means not to be yourself, without offering a positive account of what it means to be yourself.  Without solving the long-standing riddle of what, if anything, preserves personal identity over time, it is still possible to point to instances where an agent's identity is certainly discontinuous from his "normal" identity.  We can also assume that there exists some account that allows us to blame X for something that X did in the past, by identifying the past X with the present X, and that sometimes this identification breaks down.  
	To help illustrate this, imagine a comic strip villain who dresses up as Spiderman and commits a crime in order to frame the authentic super hero.   In this case, if Peter Parker could prove that he was not the person wearing the suit during crime, he would unequivocally prove his innocence.  In other words, despite the fact that the evidence shows that someone who everybody thought was Spiderman committed the crime, proof of physical and psychological discontinuity from the actual criminal exculpates Spiderman from the charges against him.  Does this simple case of mistaken identity count as an excuse, the way that we have defined it?
	It is tempting to classify Peter Parker's defense as a Cumminian defense since it seems that Peter Parker is "denying authorship" of the crime.  However, from another perspective, Peter Parker has conceded that Spiderman did commit the crime, but that Spiderman has an excuse, since he "was not himself that night."  Since nobody knows his true identity, Spiderman is defined by the average New Yorker as the person who is wearing the Spidersuit and acting like Spiderman.  We should not push the analogy too far and claim that identity is defined in terms of the body "suits" that we all wear, however it seems that this flavor of excuses has precedence outside of the funny pages.  While this latter style of interpretation may seem outlandish, it is analogous to other cases of mistaken identity that more clearly seem to be excuses, but are not necessarily considered good ones.
	Consider Tom, who is acting on a posthypnotic suggestion to tweak the noses of anybody under six feet  tall.  Upon being confronted about his invasive behavior (which he does not remember), he might respond in one of two ways: (1) Yes I'm sorry I did that, but I had no control over my actions—I was hypnotized. (2) I'm sorry that happened, but I didn't do it, some other person, who happens to share my body (call him TomN), did it while I was not around—I was hypnotized.  These two accounts are similar, but while these two types of excuses may overlap in some cases, they may diverge in others.  Before we demand a more thorough examination of their differences, it is worthwhile look at a few more cases of mistaken identity.
	Long before the prevalence of hypnosis, many human cultures identified with a similar (and similarly controversial) phenomenon known as possession.  Possession, often induced by entering an altered state of consciousness, resulted in a complete change of identity.  Possession  was often postulated in order to explain certain modes of behavior that were foreign to the individual who was possessed.  The agent was not held responsible for his actions while he was possessed (although the spirit possessing him might have to be punished or prevented from returning), since the actions were not his, but were attributed to the spirit in possession of his body.  The spirit in question operates according to its will, and while it controlled the motions of the host's body, the host's personality was not considered active or aware of these actions as they occurred.  It is important to mention that the authenticity of possession is not at stake here.  Regardless of what was actually happening to those possessed, the example demonstrates that the members of these cultures recognized the excuse of "not being yourself" as a valid and distinct from compulsion and ignorance.
	According to their phenomonological descriptions, hypnosis often sounds like a modern day incarnation of possession.  Tom might feel as if he were a helpless prisoner in his own body, trapped to observe the actions that were suggested to him under hypnosis.  This version sounds like compulsion, and it raises the question of whether or not it makes a difference whether Tom objected to or condoned the action.  However, Tom might have no awareness during (or recollection after) the action, in which event he may offer the second explanation for his actions: denying that he did it and claiming that some other person, either TomN or perhaps the spirit of the hypnotist, was acting and ought to take the blame.  
	This "possession" excuse fits the Spidey model in the sense that Tom admits that a person who is wearing the body of Tom committed the act, it is just that Tom was not himself that afternoon and that the person who looked and sounded like Tom was not  in fact Tom, and so the case is a case of mistaken identity.  Just as it would be wrong to blame Peter Parker for the crimes of a villain disguised as Spiderman, the possessed or hypnotized person can claim that he should not be blamed for the actions of the agent who disguised themselves in his body.  It does not seem fair to blame someone for an action they did not commit, and the challenge becomes determining when someone becomes someone else.
	Before considering the requirements for morphing an identity, we will investigate whether this phenomenon is simply an instance of  compulsion and/or ignorance.  Compulsion generally involves an agent forced, either physically or psychologically, to act against his will..  A typical example of complusion is the bank teller who hands over the day's receipts to the back robber holding a gun to his head.  Similarly, an act motivated by a physical threat to loved ones or blackmail would be considered an act carried out under compulsion.  All of these examples seem to require the agent willingly resisting the attempted coercion.  Although it would be difficult to prove, we would not be as sympathetic towards the bank teller had he willingly  or spitefully cooperated with the demands of the robber.  However, they would not be treated as if they had perpetrated the crime simply for being pleased with its occurance, since they would not have carried out the robbery on their own.

"What sort of acts then, should be considered compulsory?  We answer that without qualification actions are so when the cause is in the external circumstances and the agent contributes nothing."  Aristotle, Nicomachean Ethics, Book III, IIIO^b, 1-3.

	Imagine a scenario in which Sam is napping and Fran forces him to press a button which deletes a computer file.  Surely Sam would not be held responsible for such an action (he was a tool in someone else’s action)—but would we say he was compelled?  We might also say that in this scenario Sam never acted, and therefore could not have been compelled to act.  Fran was the only agent who was acting, although she used Sam in her action, as the saying goes "guns don't kill people, people do."
	It is reasonable to define compulsion in such a way that it requires willful resistance or remorse towards the act on the part of the agent.  We see this principle in action when we compare the willing addict to the unwilling addict.  Both are compelled by a force of great strength, however we are far less sympathetic to the willing addict who submits to his addiction without a struggle, even if the fight was hopeless from the start.  Perhaps we condemn this man on the grounds that he has failed to live up to some idealistic notions of heroism and courage, however we should not be surprised that intentions, good or bad, count for something in the domain of ethics.
	Once this restriction is placed on the applicability of compulsion, we find that someone who has no awareness of what is transpiring, cannot be considered compelled to act, since it will be impossible for him to resist.  If he is not acting based on his own intentions and beliefs, then based on the standard theory of action we can not say that the agent has acted at all.  Who then, has acted?  How can we ascribe ownership to a belief or intentions?  

J. David Velemean, "What Happens When Someone Acts?," Mind, 101 (1992): 461-481.

	In the case of the sleeping file deleter or the impersonated super hero, these questions are easy to answer, since beliefs and intentions can be ascribed to agents outside the body of the suspect.  However, cases such as hypnosis, possession, being stressed out, and being mentally ill introduce complications that are not so easily resolved. 
"Why are our responses under stress not reflections of our moral selves—namely, reflections of the moral self under stress?"

Watson, p. 129.

	Strawson presents "being stressed out" as an example which he thinks exemplifies the "not being yourself" class of excuses.  Being stressed out is just a mild form of many types of mental conditions, and research has shown that being stressed out can actually trigger psychotic episodes.  It is apparent that much of what we say about being stressed out is also applicable to other instances of mental conditions, such as paranoia and affective disorders.  Strawson probably does  not mention these conditions in this context since he considers them to be obviously excusable without recourse to the mistaken identity excuse.
	Returning  to Strawson's framework, Watson writes that "reactive attitudes are sensitive not only to the quality of others' wills, but depend as well upon a background of beliefs about the objects of those attitudes. . . . [They] are incipiently forms of communication, which make sense only on the assumption that the other can comprehend the message" 
	Among the reasons for which not being yourself might be considered a valid excuse are the degradation of the quality of will and the alteration in the agent's set of beliefs.  Of course, an agent's set of beliefs is continuously in flux; however, when someone is not himself, his personality takes a quantum jump and is transformed into an fundamentaly different mode of operation.  While this alter identity retains a template of resemblance to the base identity, and may even be a caricature of the original, it is still unmistakably distinct.  All of the agent's friends and loved ones would assert that the agent is not behaving like himself, so the question remains how could somebody not behave like himself?  Wouldn it not be preferable to concede that if we had known the person better, his behavior would seem typical?
	Leslie is known to have a bad temper, and she completely loses herself when she loses her temper.  Her judgement is severely impaired, her belief system is transformed, and she "loses control."  When her friends see her in this state, they treat her with kid gloves, as they know that she is not herself, despite the fact that she gets this way once in a while.  And yet, if asked to describe Leslie's personality, they might mention her horrible temper, thereby including within Leslie's personality the altered states that her temper induces.  Should furious Leslie be considered a subset of Leslie's personality, or should she be considered a separate person?
	It is tempting to think that the solution to this riddle is simply a question of frequency.  Someone who regularly losses her cool when stressed out should have that aspect of her personality factored into her character profile, while someone who often gets stressed but rarely loses it would not.  However, this solution can not be right since someone could get hypnotized daily, become someone else during each of those sessions, and yet maintain a firm boundary between herself and her hypnotized self.  Which leads one to suspect that we ought to consider the circumstances that bring about such shifts in personality.  
	Often the agent willingly brings about the personality shift, as in the case of a non-alcoholic who walks into the bar with the intent of getting drunk.  Other personality shifts, such as panic attacks, may strike without warning or effective method of prevention.  In such cases, it may be appropriate to conceive of the agent being coerced into an alternate state, that is being forced into the state unwillingly, and resisting while he is still himself.  However, the coercion in these cases indirectly excuses the actions performed in that state, since the actions themselves are preformed willingly, but must be treated as if they were preformed by another person.  Ignorance may also indirectly excuse, in cases where the agent willingly allowed himself to become someone else, but was unaware of the potential outcome (such as someone who willlingly drinks a beverage not knowing that it contains a mind altering substance, or a man who is hypmotizd by someone who betrays his trust and has him commit a crime).  Once he comes back to his senses, there is no sense in holding the original agent responsible for an action he did not himself commit, unless there is some way he could have prevented its occurrence.  So the excuse of "not being yourself" is not a blanket excuse, but depends upon the conditions that lead up to the agent's losing themself.  Nevertheless, while coercion or ignorance may  be invoked indirectly, not being yourself is a distinct excuse for immoral behavior.

If the agent has undergone a permanent shift in personality, say after a traumatic head injury or severe amnesia, then the "not being yourself" excuse would not be valid, since this altered self has become the primary self, and the self which acted is the one being held culpable.  It is important to note that in the above discussion it is assumed that the agent being charged/blamed has reverted to his normal self at the time that the reactive attitudes are formed.

	Still we are left with the puzzling case of Leslie, whose fury might be considered a part of her personality or an alternative to it.  It seems as if this type of case needs to be decided on an individual basis, using the model of comparison outlined above.  During their rages, some Leslies act like they are hypmotized, others act like they do resist the lure of the state, and others act more like their fury is just an aspect of their personality.  Only by comparing Leslie's behavior to fixed prototypes in our memory can we hope to have an informed reaction to her behavior.
	With this analysis in hand, we can turn to Cummins' claim that mental disorders should be equated with character vices and should be treated accordingly.  Cummins argues that there ought to be no difference in our reaction to a coward who fails to rescue a drowning victim and the way we treat a hydrophobe in the same situation.  The phobe's "conduct manifested a relatively permanent and undesirable tendency which is part of his psychological make-up or nature.  In all this our man is indistinguishable from someone who manifests plain cowardice in not rescuing the child."   Cummin fails to distinguish between the onset of phobia and  the onset of cowardice, and thus misses the distinction between traits that are subsets of a personality, and traits that represent an different personality.  Phobias typically grip the victim suddenly and relentlessly, transforming a normal, rational agent into a quivering mass of raw emotions.  Despite the fact that the phobia may be longstanding, it is wrong to ascribe the phobic state to the agent's nature, as its behavior suggests that it transforms the agent's personality to an altered one.  Rather, it is in his nature to succumb to coercion or fall victim to ignorance in the same way that anybody else would.  After all, the hydrophobe might have no trouble rescuing someone from  a burning building (provided he was not sprayed excessivly with the hoses).  The phobe is tragically a victim of bad moral luck since he is repeatedly coerced into becoming somebody else. But being unlucky is surely not a culpable vice.  The coward, on the other hand,  acts according to his cowardly nature manifesting an aspect of his personality as opposed to being transformed.  The fact that his cowardice is a part of his nature is partially indictaed by the fact that ordinarily he can overcome his fear with enough resolve, disqualifying him from the "mistaken identity" excuse.  Of couse, particular cases are concievable in which the coward can use the mistaken identity excuse, and the phobe cannot, however our technique of comparing boundary cases to cases that we are sure of will guide us through these apparent contradictions.  Once we embrace the concept of the mistaken identity excuse, it will prove invaluble in our evaluation of moral agents, and contribute to a more enlightened formation of reative attitudes.

Cummins, p. 213.

	The example of the phobe extends to other mental disorders, such as paranoia, affective mood disorders, and alcoholism.  None serve as an  excuse unto itself, nonetheless they are all indicative of a situation of mistaken identity.  These disorders should not be lumped together with prototypical versions of character vices such as cowardice, selfishness, and cruelty, since the victims in the former instances can often claim to have an excuse distinct from coercion and ignorance, whereas the latter group is ussualy without such recourse.  Even when an immoral act is not coerced or performed in ignorance, the agent's primary excuse may be that he was not himself.  However, this excuse is only valid when the agent entered the altered state due to coercion or ignorance.
	Starting with the Strawsonian model of responsibility, we have examined the prototypical example of insanity in light of the recent doubts that have been raised with regard to its validity as an excuse.  The trail of the investigation has led to an argument that works in a conventional framework, and suggests the possibity of a third exculpating condition, connected to, but distinct from, ignorance and compulsion.  For a non-Strawsonian, insanity alone will not serve as a blanket excuse, and someone who is suffering from a mental condition will only be excused if his case fits one of the exculpating conditions.  However, the analysis of the case of insanity has suggested a third exculpating excuse, the excuse of not being yourself, or the case of mistaken identity, which is closely associated with mental illness.  This condition has allowed us to draw a distinction between cowards and phobes, or more generally, character vices and mental conditions.  We have emphasized the importance of the circumstances of the identity switch-over, so that, for instance, a mental patient who refuses to take his medication is not able to claim that he was compelled to have an episode.  
	The mistaken identity excuse has broad applications that are not covered by the two conventional excuses, including being stressed out, mood disorders, and alternative formulations of hypnosis and chemically altered states.  It operates in conjuction with compulsion and ignorance, however, these conditions alone would not serve to exculpate all of the cases that this new condition does.  This new excuse opens up many difficult questions, including the precise nature of identity and a more thorough guidline for when it is applicable. However, we have shown that this third excuse is a strong contender which would vindictate our original intuitions, and allow us to rest easier knowing that competing philosophical approaches have been harmonized to a certain degree.  While it may not yet be polished enough to stand up in a court of law, this excuse warrants future research and thought, promising to yield important insights into the ongoing discussion concerning insanity and the limits of responsibilty.

My primary self pledges his honor, that he has not violated the honor code, even defensibly or excusably, writing this paper.

									Jonah Bossewitch