Understanding the link between mind science and sexual offenses

Close-up of a married couple embracing. [Getty Images]

When we were navigating through the lives of young youths, our mother would often chide us with the line, “You’re hot-headed,” whenever we were in the wrong.

It appeared to be a blunt way for our mothers to convey that we were acting in the heat of the moment rather than thinking logically.

Although she wasn’t versed in science, her chiding now resonates with a landmark judgment that has delved into the psychology of adults’ thinking processes.

Sometime in April 2014 Rodgers Simiyu Masinde, a boda boda rider, lured a 17-year-old girl into his house.

The girl told the court that she went to the same church with Simiyu. On the date he eloped with her, the victim said that she had gone to a barber shop to shave but found there was no electricity. 

On her way home, she testified, Simiyu convinced her to go his house which she did. According to her, she wanted to live but he told her that she could not.

Simiyu, then a 20-year-old man, assured the victim that he would marry her. Court records read that the two lived together for more than a week and has sex every day.

However, their bliss was cut short after the girl’s grandfather received a tip on her whereabouts. The old man, together with police officers raided Simiyu’s house and had him arrested.

What followed was a two-year trial and a 15-year jail sentence. He was sentenced on September 16, 2016, by Principal Magistrate Christopher Yalwala.

In court, the girl’s grandfather testified that the girl went missing on April 6, 2014. She said he got wind that Simiyu was seen with her and he reported to the police. 

Further, he said, on the day Simiyu was arrested, at least five people came to his house, introduced Simiyu and informed him that they had come to apologise as the young man had taken his granddaughter. 

When he raided Simiyu’s house on the night on April 15, 2014, he found the two in bed.

The man codenamed JWM told the court that after the arrest, Simiyu’s brother again lured the girl to disappear and she was only found after two weeks in a different location.

Aggrieved, Simiyu moved to the High Court. In his appeal before Justice Roselyn Wendoh, he argued that the lower court erred in jailing. However, in his appeal, he never contested what had transpired. 

His only problem was the magistrate court has slapped him with a harsh sentence. According to him, the magistrate ought to have considered that he was a first offender and the circumstances of the offence.

Justice Wendoh on May 9, 2019, dismissed the appeal and affirmed the minimum sentence. Undeterred, he filed an appeal before justices Hannah Okwengu, Joel Ngugi and Hellen Omondi.

Again, his contention was that he had received the mandatory sentence instead of a lesser one. In his second appeal, he argued that he had spent 10 years behind bars, had been fully rehabilitated.

He also said he has a wife and three children whom he would love to go take care of.

In reply, the Director of Public Prosecution (DPP) conceded that Simiyu needed a second chance. According to the DPP, courts in Kenya are currently doing away with the mandatory sentences.

He urged the Court of Appeal to reduce the sentence to the period Simiyu had been behind bars.

The bench headed by Justice Okwengu said that although defilement was a grave offense, they needed to veer off the mandatory 15-year sentence.

According to them, they were convinced about his extreme youthfulness when he committed the offense.

It is at this point that Justices Okwengu, Ngugi and Omondi decided to explore the science of the mind as a justification of his release.

According to them, his actions were driven by an emotionally charged decision-making process that can result in an outcome with a high risk or a high reward.  This is referred to in neuroscience as ‘hot cognition.’ In 1928, Robert Paul Abelson hypothesised that human thinking is influenced by their emotional state or systematic logic process. 

His theory was that there is hot cognition and cold cognition which are driven by the orbitofrontal cortex and dorsolateral cortex brain regions of a brain.

In a nutshell, the orbitofrontal cortex sits right above your eye sockets and has a crucial role in emotional processing. 

In the meantime, the dorsolateral cortex lies approximately in the middle third of the frontal lobe (the front part of the brain) and contributes to your thinking, reasoning or remembering.

Abelson, who was a psychologist, argued that hot cognition is an emotionally driven processing of information that is shallow, rapid, automatic and is in response to environmental factors.

He averred that hot cognition can either result in either a positive or negative act. For example, when police officers are induced with negative emotions or high-stress environment, they are more likely to think that a suspect is guilty than innocent.  

On the flip side, based on Abelson’s argument, men watching football are likely to gamble as the ‘hot cognition’ is stimulated by the excitement of risking money to a loss or to get more out of the betting firms.

When it comes to illegal sex, hot cognition leads a man to immediately satisfy their craving in the present than wait because their social-emotional system is wired towards sensation seeking and high reward.

The high risk on the other hand is being caught or the risk of pregnancy.

On the other hand, cold cognition is a contrast of hot cognition. It is non-emotional information processing and reasoning.

This, according to Abelson’s proposal is that it involves logic and critical analysis.  Here, a person’s cognitive control system effectively regulates emotions, manages stress and withstands peer pressure.

It is argued that the dorsolateral cortex fully matures at the age of 25. Then a person of his age is expected to use the logic, planning or reasoning part of the brain more.

‘Emerging adults’, according to a research by Jennifer Lynn Tanner and Jeffrey Jensen Arnett, have a greater tendency to take risks in a state of hot cognition as compared to a fully grown adult. The estimated age of ‘emerging adults’ is 17 to 24 years.

Abelson’s theory became popular in 1960s but it has finally taken root in Kenya. Judges said despite Simiyu being legally an adult, his age was within the ‘emerging youths’ bracket hence his ‘hot cognition.’

“While legally an adult, we take judicial notice of the fact that as an emerging adult, his ‘hot cognition -- the decision-making neural pathway in an emotionally charged situation -- can result in an outcome with a high risk or a high reward and is different from that of a fully transitioned adult,” the three judges observed. They were of the view that his crime was driven more by menace than force.

“We also take note of the relatively small difference in age between the appellant and the survivor -- three years -- since the survivor was 17 and the appellant was 20 years. All considered we are of the view that the period that the appellant served in custody is sufficient for rehabilitation,” Justices Okwengu, Ngugi and Omondi said.

The ‘hot and cold cognition’ took root first in America.  According to Columbia University Justice lab, California, Colorado, Connecticut, Illinois, Massachusetts and Nebraska have all considered raising the age of juvenile jurisdiction above the 18th birthday to include emerging adults.

In Kenya, an audit done on the country’s criminal justice system indicated that 70 per cent of prisoners are youths ranging from 18 to 35.

It showed that 70 per cent of cases processed through the justice system are offences related to lack of business licenses, being drunk and disorderly and creating a disturbance, which can be classified as economically or socially petty.