Monstrous bodily excess in The Exorcist as a supplement to law's accounts of culpability

Abstract

The Exorcist is an exemplar of the classic horror film trope of possession in the 1960s–70s. In the film, Regan's gradual possession by the devil is depicted by signs of transformation. This article explores how the criminal law would categorise and respond to a case of possession. How does the criminal law conceptualise out-of-control bodies? And who (if anyone) is to blame for harm done? The film suggests that Regan's transformation takes place through an agency that lies outside Regan's will, upsetting the Cartesian assumptions that underlie both the law and mainstream culture, concerning the division between mind/body and the supremacy of the mind in its regulation of physical states. Bodies out of control are categorised at law as involuntary. The concept of voluntariness is itself transgressive of organising concepts within criminal law, including the oppositional structures of actus reus and mens rea, and offences and defences. Additionally, I highlight the ways in which voluntariness operates at the fissures of structural distinctions of criminal law, including the therapeutic and the punitive, tort and crime, and the structural separation of suffering and wickedness.

Acknowledgement

Many thanks to Honni van Rijswijk for sharing her ideas for this paper and providing inspiration.

Notes

¹ The Exorcist is a 1973 American horror film directed by William Friedkin, adapted by William Peter Blatty from his 1971 novel of the same name.

²Dimock (1996).

³Dimock (1996), p 7.

⁴Dimock argues for the cultural domain as a productive supplement in conceptualising justice:

Absolute and categoric in philosophy, negotiable and assignable in law, wayward and unsatisfactory in literature, justice dispensed in different operative theatres, seems to carry different causal circumferences, different modes of evidence, and to yield up different styles of knowledge as well as different descriptive textures of the world. These conflicting images of justice call into question the self-evidence of the concept as well as its claim to being the axiomatic expression of human reason. (1996), p 8

⁵Phillips (2005).

⁶Creed (1993, 1996).

⁷Cohen (1996).

⁸Halberstam (1995).

⁹Lowenstein (2005).

¹⁰Wood (1986), p 75.

¹¹This includes films such as Romero's Living Dead trilogy (Night of the Living Dead (1968), Dawn of the Dead (1978) and Day of the Dead (1985)), The Birds (1963), Dr Strangelove (1964), Planet of the Apes (1968) and arguably The Exorcist (1973).

¹²Ashworth and Horder (2013).

¹³Simester and von Hirsch (2013), Chapter 2.

¹⁴Midgley (1984/2001), Flahault (2003).

¹⁵For example, the rules of the genre include that vampires drink blood and do not like garlic, whilst zombies eat brains.

¹⁶For example, Zillman and Weaver have argued that horror acts on adolescents to shore up societal expectations. They argue that horror films teach boys ‘fearlessness and protective competence’, whilst girls learn ‘fearfulness and protective need’. Zillman and Weaver (1996).

¹⁷This reflects the historic connection of horror films with gothic literature. Halberstam (1995). Female gothic literature in the eighteenth and nineteenth centuries, written by female authors with female audiences, provided a safe genre for female writers to ‘meditate upon the connection between gender norms and female victimisation’. Meyers (2001) p 18.

¹⁸Freud (2003).

¹⁹Kristeva (1982).

²⁰Poole (2011), p 15.

²¹Young (1996).

²²See, for example, Hart (2004), p 76, analysing the attraction for the serial killer Richard Ramirez.

²³ The Exorcist was widely believed to be based on a real-life exorcism.

²⁴Cowan (2008).

²⁵The classic monsters of horror films, zombies, have been used to explain Derrida's ideas about undecidability. Zombies might be

EITHER alive OR dead. But it cuts across these categories: it is BOTH alive AND dead. Equally, it is NEITHER alive NOR dead, since it cannot take on the ‘full’ senses of these terms … in terms of life and death, it cannot be decided. See Collins and Mayblin (1996), pp 17–20

²⁶Douglas (1966/2002).

²⁷Kristeva (1982).

²⁸In his overview of The Exorcist, Martin Scorsese described it as ‘a classic, endlessly parodied, very familiar’. ‘11 Scariest Horror Movies of all time’ The Daily Beast (Oct 28, 2009). http://www.thedailybeast.com/articles/2009/10/28/martin-scorseses-top-11-horror-films-of-all-time.html (accessed 13/3/2015). For example, in the recent Evil Dead (2013, director Fede Alvarez), the fourth instalment of the Evil Dead franchise, serving as both a reboot and a loose continuation of the series, one of the possessed characters states ‘you're all going to die in here’, in a tribute to The Exorcist.

²⁹Creed (1996), p 32.

³⁰It should be noted that The Exorcist is also quite restrained. Much of the violence takes place off screen and is implicit. For example, the audience does not witness Bourke's mutilation and death.

³¹Poole (2011), p 167.

³²Phillips (2005), p 102.

³³Martin Scorsese, ‘11 Scariest Horror Movies of All Time’, The Daily Beast, 28 October 2009, http://www.thedailybeast.com/articles/2009/10/28/martin-scorseses-top-11-horror-films-of-all-time.html (accessed 13/3/2015).

³⁴Poole (2011). 1974 is regarded as one of the great years for horror. Audiences could see a double bill of The Exorcist and The Texas Chainsaw Massacre (1974).

³⁵Cowan has argued, drawing upon research that suggests that a majority of people believe in the devil, that The Exorcist is about the very real fear of possession and widespread religious fears. Cowan (2008).

³⁶ The Exorcist was one of a cycle of films about the demonic child in the 1960s–70s, reflecting a growing fear of and for children. For example, Rosemary's Baby (Satan's baby is born), The Omen, It's Alive (1974) and It Lives Again (1976) (mutant babies create carnage). Children were both endangered and dangerous.

³⁷ Roe v Wade 410 US 113 (1973). Skolinscki has argued that by the mid-1970s Americans were ‘standing about in the ruins of structure that had little more than a decade before, seemed stable and changeless – lifelong marriage, sexual morality and the “traditional” family’. Skolinscki (1991).

³⁸Naffine (2009).

³⁹Duff (1990), p 116.

⁴⁰Descartes (1637/1998), Part IV.

⁴¹Ashworth and Horder state that ‘the general part is comprise of rules and principles of the criminal law whose importance and application can be analysed and debated without necessarily referring to a specific crime’. Ashworth and Horder (2013), p 83.

⁴²In Legal Discourse, Goodrich provides an account of the language of the law and posits three levels of discursive formation – first, the material basis or institutionalisation; second, the self-articulation of internal order, that is intradiscourse; and third, the relationship to other discourses and discursive formations, interdiscourse. Intradiscourse is about the claims the institution makes about itself to itself. Goodrich (1987).

⁴³See, for example, the statement of principle by the High Court in He Kaw Teh (1985) 15 A Crim R 203 approving the statement in Sherras v DeRutzen [1895] 1 QB 918 at 921:

There is a presumption that mens rea, an evil intention, or knowledge of the wrongfulness of the act, is an essential ingredient in every offence … unless displaced by statute or subject matter.

⁴⁴Blackstone (1966 [1769]), p 21.

⁴⁵See, for example, Fletcher (1978), p 117. The dominance of subjective culpability in contemporary attributions of blameworthiness is demonstrated in attempt offences, where an accused can be guilty provided he or she had the necessary criminal intent to commit the offence and went ‘beyond mere preparation’. For example, in Australia, a person found guilty of attempt is liable to the same penalty as if they had completed the offence. The US Code equates an attempt to commit a serious violent felony with committing a serious violent felony for the purposes of sentencing. US Code, Title 18, Part II, Chapter 227, sub-chapter A, 3559. https://www.law.cornell.edu/uscode/text/18/3559 (accessed 29/6/2015).

⁴⁶Ashworth (1993), p 123.

⁴⁷See, for example, Hudson who warns:

the notion of free will that is assumed in ideas of culpability … is a much stronger notion than that usually experienced by the poor and the powerless. That individuals have choices is a basic legal assumption: that circumstances constrain choices is not. Legal reasoning seems unable to appreciate that the existential view of the world as an arena for acting out free choices is a perspective of the privileged, and that the potential for self-actualization is far from apparent to those whose lives are constricted by material or ideological handicaps. Hudson (1994), p 302

⁴⁸See, for example, Pinker (2002), Derrida (1994), Derrida (1987), Foucault (1966/2002), Manderson (2005).

⁴⁹Giddens (1991), Giddens (1990).

⁵⁰Ashworth and Horder (2013).

⁵¹Johnson (1981).

⁵²Pearson (2003), p 188.

⁵³Phillips (2005), p 9.

⁵⁴Jon Landau, ‘Review’ Rolling Stone reprinted in The Story Behind ‘The Exorcist’, Peter Travis and Stephanie Rieffs, Signet Books, 1974, pp 158–162.

⁵⁵The possession of Regan apparently transgresses the boundaries of gender, as the demon sounds male. However, Mercedes McCambridge was the voice of the demon, thus theorists tend to talk about it as a masculinised voice. The novel and film were also based on the real-life exorcism of a boy from Cottage City, Maryland. Creed (1993) argues that the demon is best understood as female.

⁵⁶Crofts (2013), Midgley (1984/2001).

⁵⁷Goodrich (1987).

⁵⁸See, for example, Ashworth (2000), p 228.

The bulk of new offences are characterized by three features – strict liability, omissions liability, and reverse onus provisions for exculpation. All those features lie a considerable distance from the conception of criminal laws held by many university teachers and criminal practitioners. Indeed they are inconsistent with prominent elements of the rhetoric of English criminal law – that there is a presumption that mens rea is a prerequisite of criminal liability, that liability for omissions is exceptional, and that ‘one golden thread’ running through English criminal law is that the prosecution bears the burden of proving guilt.

See also Bronitt and Gani (2009), Brown (2015).

⁵⁹For example, Norrie argues that these offence types potentially contain the moral and political issues the law wishes to ignore. Norrie (1998), p 122. For analysis of alternative models of culpability expressed in criminal law, see, for example, Duff (1990), Binder (2012), Binder (2007), Fletcher (1978), Crofts (2013).

⁶⁰Fletcher (1978), p 389.

⁶¹Fletcher (1978), p 390.

⁶²For example, the quest for ‘general principles’ of criminal law has been described as the ‘Holy Grail of doctrinal scholarship’. Alldridge (2000), p 3.

⁶³Levack (1996).

⁶⁴Manderson (2005).

⁶⁵Stephens (2002).

⁶⁶ Ryan v R (1967) 121 CLR 205.

⁶⁷ Ryan v R (1967) 121 CLR 205. In Kay v Butterworth (1945) 61 TLR 452 at 453 Humphreys J suggested that a driver would not be responsible if his or her car went out of control and caused the death of a passerby where the driver had been attacked by a swarm of bees or wasps.

⁶⁸ Jiminez v R (1992) 173 CLR 572; R v Parks [1992] 2 SCR 871 (sane automatism); R v Burgess [1991] 2 QB 92 (insane automatism).

⁶⁹ R v Stripp (1978) 69 Cr App R 318 at 323 per Ormrod LJ; Re Budd [1962] Crim LR 49.

⁷⁰ Police v Bannin [1991] 2 NZLR 237 (Klein–Levin syndrome); Hughes (1989) 42 A Crim R 270 (myotonia).

⁷¹ R v O'Connor (1980) 146 CLR 64; R v Deviault [1994] 3 SCR 63. For an analysis, see below.

⁷² R v Cottle [1958] NZLR 999; Bratty v AG (Northern Ireland) [1963] 386.

⁷³ R v Falconer (1990) 171 CLR 30; R v Joudrie (unrep, 9/5/1996, Court of Queen's Bench, Alberta, No 9501-1280-C6).

⁷⁴ R v Falconer (1990) 171 CLR 30 at 41-42; Bratty v AG (Northern Ireland) [1963] AC 386 at 406 per Viscount Kilmuir LC; Hill v Baxter [1958] 1 QB 277 at 285 per Devlin J.

⁷⁵This was expressed in Woolmington v DPP [1935] AC 462 at 482 per Viscount Stankey CC:

The requisite physical element of an offence must be performed voluntarily in the sense that it must be willed.

See also R v Vickers [1957] 2 QB 664 at 672 per Lord Goddard CJ; R v Scott [1967] VR 276 at 288–289 per Gillard J; R v Dodd (1974) 7 SASR 151; Ryan v R (1967) 121 CLR 205. Section 13(1) of the Criminal Code (Tas) states that ‘no person shall be criminally responsible for an act, unless it is voluntary’.

⁷⁶Ashworth and Horder (2013), p 136.

⁷⁷Creed (1993), p 40. This builds on Freud's concept of ‘the Uncanny’, which ‘applies to everything that was intended to remain secret, hidden away, and has come into the open’. Freud (2003), p. 132.

⁷⁸ R v Joyce [1970] SASR 184; Broome v Perkins (1987) 85 Cr App R 321; R v Isitt (1978) 67 Cr App R 44; [1977] RTR 211.

⁷⁹See, for example, R v Radford (1985) 42 SASR 266 at pp 275–276.

⁸⁰See, for example, R v Radford (1985) 42 SASR 266 at pp 275–276. Per North P at 745.

⁸¹McSherry (1996), p 6.

⁸²The offence of attempt which places great emphasis on the intention of the accused to commit a crime, still requires some external act to result in culpability. The accused must not only have the intention to commit the crime, but must have gone beyond mere preparation.

⁸³Gardner (2007).

⁸⁴Williams (1982), p 256.

⁸⁵Ashworth and Horder (2013).

⁸⁶In Cottle [1958] NZLR 999 at 1007, Gresson P of the New Zealand Court of Appeal stated:

In a particular case, it may be that the automatism relied on is due to some ‘disease of the mind’ but it is not necessarily so. Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious – in short doing something without knowledge of it, and without memory afterwards of having done it – a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case, the action is one which the mind in its normal functioning does not control. This may be due to a ‘disease of the mind’ or it may not; it may happen to a perfectly healthy mind (e.g. in somnambulism which may be unaccompanied by any abnormality of the mind), or it may occur where the mind is temporarily affected as the result of a blow, or by the influence of some drug or other intoxication. It may on the other hand be caused by an abnormal condition of the mind capable of being designated a mental disease. What are known as the M'Naghten Rules can have no application unless there is some form of ‘disease of the mind’, which is not necessarily present in all cases of automatism.

The American Law Institute's influential Model Penal Code s401 (Mental Disease or Defect Excluding Responsibility) provides that:

1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.

⁸⁷In Stone [1999] 2 SCR 290 the Supreme Court of Canada held that ‘the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact’ and that to discharge the evidentiary burden ‘the defence must satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities’ (Bastarache J at [179] and [182]). This was considered by many to involve the imposition of a persuasive burden on the defence: Healy (2000), Brudner (2000). Subsequently, the Supreme Court of Canada has confirmed that the burden on the defence is an evidentiary burden only: Fontaine [2004] 1 SCR 702, 2004 SCC 27; Cinous [2002] 2 SCR 3, 2002 SCC 29. This complexity in the standards and burdens of proof may reflect the idea that the modern doctrinal approach to distinguishing between offence and defence is more of a feature of criminal procedure and evidence than substantive law, which stems from Woolmington [1935] AC 462.

⁸⁸The transition from girlhood to womanhood was also a source of horror in Brian De Palma's film of Stephen King's novel Carrie. At the onset of menstruation, Carrie became a conduit for powerful forces that ended with a blood-drenched prom-night.

⁸⁹One simple approach is simply to not believe claims of involuntariness. This approach has been adopted in some cases of claims by drivers that they were not conscious when they crashed their cars. For example, Broome v Perkins (1987) 85 Cr App R 321.

⁹⁰A complex question of culpability and intoxication was raised in Kingston [1994] 3 WLR 519. The accused argued that although he had ‘paedophiliac tendencies’ he only sexually assaulted a 15-year-old boy because of the effect of drugs which someone had administered to him without his knowledge. The House of Lords held that evidence of involuntary intoxication which did not negate the presence of specific mens rea for sexual assault, but simply reduced the accused's ability to control his actions, was not an excuse.

⁹¹ Viro v R (1978) 141 CLR 88 at 109 per Gibbs J.

⁹²McCord (1992), Singh (1933), p 529.

⁹³ R v O'Connor (1980) 146 CLR 64; DPP v Beard [1920].

⁹⁴ O'Connor (1980) 29 ALR 449 at 455 per Barwick CJ.

⁹⁵Victorian Law Reform Commission (1999), p 107. Ainsworth (1994) 76 A Crim R 127 at 138 Gleeson CJ stated:

it is the experience of the courts in this State that, where someone has been killed, it is rare for juries to regard the consumption of alcohol by the person responsible for the killing as a matter of excuse. it is true that, as a matter of law, intoxication can go to questions of intent. The great risk for trial counsel who rely on intoxication, however, is that a jury will regard the consumption of alcohol, not as an excuse for what occurred, but simply as an explanation of how it might come about that an otherwise apparently decent person would kill somebody. Reliance on alcohol, therefore, is tactically dangerous.

⁹⁶ Majewski [1977] AC 443; Pt 11A Crimes Act 1900 (NSW). In the US Model Penal Code, self-induced intoxication is not available to argue lack of awareness, 2.08.

⁹⁷See, for example, Ashworth who argues in favour of the O'Connor approach to evidence of intoxication because it conforms best to general principles of criminal law, whilst the Majewski approach breaches it: ‘simple solution compatible with the ordinary and “inexorable” logic of the liability rules’. Ashworth (2003), p 220. See also Orchard (1993).

⁹⁸In his minority judgment in R v O'Connor, Mason J articulated some of the justifications:

[T]here are two strands of thought whose thrust is to deny that drunkenness is an excuse for the commission of crime. One is essentially a moral judgment – that it is wrong that a person should escape responsibility for his actions merely because he was so intoxicated by drink or drugs that his act is not will when by his own voluntary choice he embarked on the course which led to his intoxication. The other is a social judgment – that society legitimately expects for its protection that the law will not allow to go unpunished an act which would be adjudged to be a serious criminal offence but for the fact that the perpetrator is grossly intoxicated. R v O'Connor (1980) 146 CLR 64 at 110 per Mason J

⁹⁹Mill (1859/1982).

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

See also Feinberg (1984). The NSW reforms to greatly restrict the effect of claims of intoxication were framed in a similar way emphasising harmful consequences. See, Second Reading Speech, Crimes Legislation Amendment Act 1996 (NSW), Mr Whelan, NSW Minister for Police, NSW Parliamentary Debates, Legislative Assembly, 6 December 1995.

¹⁰⁰Card (2002).

¹⁰¹See, for example, Fletcher (1978), Binder (2012), Crofts (2013).

¹⁰²O'Connor at 87.

¹⁰³See Robinson (1985). Barwick CJ stated that the blameworthiness which may be attached to the accused's behaviour in becoming so intoxicated in the first place should not be superimposed over the criminal conduct so as to presume that the accused acted voluntarily or with the requisite state of mind. R v O'Connor (1980) 146 CLR 64.

¹⁰⁴Simester has argued that voluntary intoxication is a form of constructive liability. He details the concerns and confusion around intoxication and suggests that it may be fairer to the accused to have a separate offence of intoxicated wrongdoing. Simester (2009).

¹⁰⁵In Robinson v California 370 US 660 (1962) the United States Supreme Court struck down a Californian law that criminalised people for being addicted to narcotics. The court held that drug addiction was a disease, and people could not be criminalised for having a disease. Robinson was the first case to place substantive limits on who or what the government can criminalise.

¹⁰⁶Manderson (2005).

¹⁰⁷ O'Connor (1980) 29 ALR 449 at 477.

¹⁰⁸See, for example, Johnstone (1996a). Drunkenness a way through which a therapeutic criminal justice has developed, see Johnstone (1996b).

¹⁰⁹Lodge (1877–1878).

¹¹⁰ Bratty v Attorney General (Northern Ireland) [1963] AC 386 (at 412) per Lord Denning:

[A]ny mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.

¹¹¹See, for example, Martin JA in R v Rabey (1977) 37 CCC (2d) 461 at 477:

In general, the distinction to be drawn is between a malfunctioning mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional makeup, or in some organic pathology, as opposed to a malfunctioning mind which is the transient effect produced by some external factor such as, for example, concussion.

¹¹² R v Falconer (1990) 171 CLR 30.

¹¹³Loughnan (2012a).

¹¹⁴ Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning.

¹¹⁵Morrow (2010).

¹¹⁶Individual responsibility for crime has come to act as a lynchpin. Loughnan (2012b).

¹¹⁷Lamb and Weinberger (2013).

¹¹⁸Yohanna (2013), Lamb and Weinberger (2005), Lamb and Weinberger (2013), Slovenko (2003).

¹¹⁹Harcourt (2011).

¹²⁰Harcourt (2006), Harcourt (2011), Lamb and Weinberger (2005), Lamb and Weinberger (2013). However, Wallace et al (2004) argue that the impression that deinstitutionalisation has led to an increase in people with mental illnesses in the criminal justice system is false.

¹²¹Wallace et al (2004), p 717. Swartz and Lurigio (1999).

¹²²Lamb (1984).

¹²³Harcourt has complicated studies about trans-institutionalisation by noting that the mental hospital population was largely female, who are statistically less likely to be violent offenders. He concludes his research by asking, given the shift in demographics from the incapacitation of females to males, how can there be continuity in the effect on serious crime? Harcourt has argued that analysts need to consider aggregated institutional incapacitation and questions whether incapacitation of any kind achieves the same results. Harcourt (2006), pp 1783–1784.

¹²⁴Harcourt (2006), p 1781.

¹²⁵Creed (1993).

¹²⁶Some feminist critics of American horror films in the 1970s and 1980s argued that slasher films celebrated violence against women and punished sexual behaviour. However, these readings failed to note that slasher films subvert profoundly conservative messages about the role of women and sexuality. Clover argues that a classic trope of horror films such as Halloween and Friday the 13^th is the ‘final girl’, whose courage and cleverness allows her to outwit and outfight the monster. Clover (1992).

¹²⁷Audiences in 1973–74 tended to read the ending of the film as a triumph for Satan with the death of both priests. However, Friedkin and Blatty insisted this was not the message of the film, and that Father Karras's death should be seen as a sacrificial effort to free Regan. The triumph of good over evil is made clearer in Friedkin (2002).

¹²⁸Phillips (2012), p 120.