Tag: criminal law

Bioethics Blogs

Criminal Sexual Conduct and the Politics of HIV Disclosure

Michael Orsini and Jennifer Kilty discuss the criminalization of failure to disclose HIV status.

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Calculating and ruthless.” That is how a judge described an HIV-positive man who, on March 9, was found guilty of attempted murder and aggravated assault for failing to disclose his HIV status to sexual partners. For this, the man was sentenced to 14 years in prison – a harsh sentence consistent with Canada’s dubious record as one of the most aggressive countries in prosecuting people for failing to disclose their HIV status.

In an age of anxiety about sexual risk-taking and HIV, the courts appear to be in the business of channeling a range of emotions, notably anger, disgust, and fear. Scholars refer to this process as “the emotionalization of law.”

Judge Bonnie Warkentin’s decision casts the defendant as a veritable “AIDS monster” intent on terrorizing innocent victims with a noxious substance (his semen). His victims are portrayed as being forced to live in an “environment where many countries still stigmatize and discriminate against those living with HIV.” While Judge Warkentin laments that the victim “will live in the shadow of this infection in all aspects of life,” no such sympathy is extended to the defendant. Meanwhile, he faces considerable stigma as the very public face of criminal sexual conduct.

Model of HIV virus – Smithsonian Museum of Natural History (Photo Credit: Tim Evanson, 2012)

In handing down her decision, Judge Warkentin also ordered that the defendant, Steven Boone, be supervised for five years following his release.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Dangers of a Lax Assisted Death Regime

Trudo Lemmens lists a number of concerns with the recent Report of the Special Joint Committee on Physician-Assisted Dying.

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In 2011, the BC Civil Liberties Association, acting on behalf of two women, asked the court to recognize the right to physician-assisted death for those “who are suffering unbearably at the end of life.” Justice Smith granted such a right to those patients in “a state of advanced weakening capacities.”

In 2015, in Carter v. Canada (attorney general), the Supreme Court of Canada confirmed that the absolute prohibition on physician-assisted death could not be justified, but also reaffirmed the role of criminal law in protecting the vulnerable. It invited the Federal Parliament to develop “a carefully-designed” “complex regulatory regime” “imposing stringent limits that are scrupulously monitored and enforced.”

Then, in February 2016, the Special Joint Committee on Physician-Assisted Dying has issued a Report that recommends the opposite. It proposes transforming the Supreme Court’s vague parameters into legal criteria for access. Specifically, the Committee recommends expanding assisted dying to any medical condition (terminal or non-terminal, physical or psychological) that a patient experiences as causing enduring and intolerable suffering. It also recommends eventually expanding access from competent adults to mature minors.

The Committee rejects the need for any prior vulnerability assessment, such as the one recently recommended by a coalition of health and disability advocacy groups. It specifies that only two physicians are needed to determine that the eligibility criteria (including patient competence) are met. It doesn’t require that a psychiatrist be involved at any stage of the process, not even when requests are based on mental health conditions.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Canada Marches Toward Expansive Aid in Dying

Canada is on track to enact one of the most permissive assisted dying legislation in the world, with the exceptions of the Netherlands and Belgium. 

On February 25, the Special Joint Committee on Physician-Assisted Dying, a federal parliamentary committee created especially to address the issue, released a report that marks a turning point. If implemented in legislation, the report would make medically-assisted euthanasia and suicide available to a broad range of suffering people in Canada: those with serious and irremediable illness, including psychological illness; those who expressed a wish for such assistance prior to losing competence; and possibly competent minors.  The committee also recommended that all publicly funded health care institutions—including those with religious affiliation—be required to participate.

This latest Canadian move toward legalized medical aid in dying originated in June 2011, when a small group of people filed a Statement of Claim in the British Columbia Supreme Court in Vancouver.  They argued that the Canadian Criminal Code sections, which make it illegal for physicians to help consenting grievously and irremediably ill adults to die, violated their constitutional rights under the Canadian Charter of Rights and Freedoms to “life, liberty and security of the person” and to “equality.”  Gloria Taylor, a 64-year-old plaintiff with amyotrophic lateral sclerosis, testified that she did not want to suffer a death that is “slow, difficult, unpleasant, painful, undignified, and inconsistent with the values and principles I have tried to live by”.

At trial, the plaintiffs won.  The trial judge’s carefully reasoned 400-page decision, released in 2012, rejected the government arguments that there was a “bright line distinction” between letting die and assisting in suicide or actually killing, and that judicial disregard of the alleged distinction would create a slippery slope leading inevitably to wrongful homicide. 

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Health Law Events at AALS 2016

Next week, the 110th AALS Annual Meeting starts in New York.  I have collected those events at the meeting that relate to health law.

Thursday (Jan. 7) – 1:30 to 3:15P
Hilton, Gramercy West, 2nd Floor
Aging and the Law
Challenging Assumptions About Caregiving
In this session, a diverse group of legal scholars will help reimagine how the law might support both older adults and care providers by challenging common assumptions about caregiving relationships. Specifically, participants will challenge assumptions about the identity of caregivers, the scope of caretaking responsibilities, compensation for care providers, and the impact of traditional approaches to caring for older adults. Topics of discussion will include: (1) the role and legal treatment of non-family care providers, especially in relation to care for LGBT elders, (2) the “taboo” needs of care recipients including needs related to sexual intimacy; (3) the “myth” that surrogate decision-making and guardianship protects older adults; and (4) the Medicaid program’s hidden penalties for those who employ family members as care providers.
Speaker: Alexander A Boni-Saenz, Chicago-Kent College of Law, Illinois Institute of Technology
Moderator: Roberta K. Flowers, Stetson University College of Law
Speaker: Kristin B. Glen, City University of New York School of Law
Speaker: Nancy J. Knauer, Temple University, James E. Beasley School of Law
Speaker: Nina A. Kohn, Syracuse University College of Law
Thursday (Jan. 7) – 3:30 to 4:45P
Hilton, Nassau West, 2nd Floor
Law, Medicine and Health Care
Works-In-Progress for New Law School Teachers
Contracting for Results in Health Care?
Wendy Netter Epstein
Tackling the Social Determinants of Health: A Central Role for Providers
Jessica Mantel
Elizabeth Y.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

MIND THE GAP: Physician-Assisted Death in Quebec

Jocelyn Downie warns that Quebec’s legislation will leave some physician-assisted death legal but unregulated.

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In June 2014, the Quebec National Assembly passed An Act respecting end-of-life care, which will come into force in December 2015. Under the Act, “’medical aid in dying’ means care consisting in the administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death.” In order to obtain medical aid in dying under the Act, a person must:

29(1) be an insured person within the meaning of the Health Insurance Act (chapter A-29);

(2) be of full age and capable of giving consent to care;

(3) be at the end of life;

(4) suffer from a serious and incurable illness;

(5) be in an advanced state of irreversible decline in capability; and

(6) experience constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.

On February 6, 2015, the Supreme Court of Canada declared that the Canadian Criminal Code prohibitions on physician-assisted death (including both physician-assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms. The Court then suspended the effect of that declaration for 12 months to give the federal, provincial, and territorial governments time to design and implement a regulatory framework for physician-assisted death. As a result, on February 6, 2016, the Criminal Code will no longer prohibit physician-assisted death for a competent adult person who:

(1) clearly consents to the termination of life; and

(2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

Science, Virtue, and the Future of Humanity

The new book Science, Virtue, and the Future of Humanity, just published by Rowman & Littlefield, brings together essays examining the future — particularly scientific and technological visions of the future, and the role that virtue ought to play in that future. Several of the essays appeared in The New Atlantis, including essays about robots and “friendly AI,” and most of them grew out of a conference that New Atlantis contributing editor Peter A. Lawler hosted at Berry College in Georgia back in 2011. (Professor Lawler edited this new book, along with Marc D. Guerra of Assumption College.)

Lawler’s own introductory essay is a real treat, weaving together references to recent movies, American and European philosophers, the goings-on in Silicon Valley, political philosophy, and a Tocquevillian appreciation for the complicated and surprising ways that liberty and religion are intertwined in the United States. No one is better than Lawler at revealing the gap between who we believe ourselves to be and who we really are as a people, and at showing how our longing for liberty is really only sensible in a relational context — in a world of families, communities, institutions, citizenship, and interests.

Charles Rubin’s marvelous essay about robots and the play R.U.R. is joined by the essay that Ari Schulman and I wrote on so-called “friendly” AI. The libertarian journalist Ron Bailey of Reason magazine makes the case for radical human enhancement, arguing, among other things, that enhancement will allow people to become more virtuous. Jim Capretta and William English each contribute essays on demographics and our entitlement system.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

The public health implications of HIV criminalization: a special issue of Critical Public Health by Michelle Pentecost

The latest issue of Critical Public Health features a Special Issue on HIV Criminalisation and Public Health. Guest editor Eric Mykhalovskiy outlines the public health implications of HIV criminalization: past, current, and future research directions:

While public health remains the primary site of authority for preventing HIV transmission, recent shifts in the biopolitics of HIV have heightened tensions in the institutional and discursive relations through which the sexual lives of people living with HIV and broader HIV epidemics are regulated. Most notably, over the past decade, criminal justice responses to HIV have gained considerable traction. The growing use of the criminal law to regulate perceived HIV transmission risks has occasioned considerable controversy among people living with HIV, community-based AIDS organizations, health-care providers, public health authorities, prosecutors, judges, and the legal community. This article introduces a special section of Critical Public Health focused on the public health implications of HIV criminalization. The article reviews past and current work on the topic, situates the contributions made by the articles published in the special section, and outlines directions for future inquiry.

HIV disclosure as practice and public policy

Barry D. Adam, Patrice Corriveau, Richard Elliott, Jason Globerman, Ken English and Sean Rourke

 Responses to the largest surveys of HIV-positive people in Ontario show that most either disclose to or do not have partners who are HIV-negative or of unknown status. Non-disclosure strategies and assumptions are reported by relatively small sets of people with some variation according to employment status, sexual orientation, gender, ethnicity, and having had a casual partner.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

New Zealand Case and New York Times Magazine Article Draw Attention to Physician Aid in Dying

Are we reaching a tipping point in the debate over physician aid in dying? A case before the courts in my homeland, New Zealand, combined with a recent New York Times Magazine cover story about an Alzheimer’s patient choosing when to die, have me thinking that the argument for allowing people to receive help ending their lives before illness robs them of meaning is getting very strong indeed.   

The Times story was a careful and beautifully written profile of Sandy Bem, a Cornell University professor emerita and psychologist who decided to die before Alzheimer’s destroyed her ability to participate in the relationships and activities she deemed essential to a good life. As Robin Marantz Henig reported, Bem, after receiving her Alzheimer’s diagnosis, “felt terror at the prospect of becoming a hollowed-out person with no memory, mind or sense of identity, as well as fury that she was powerless to do anything but endure it.” The main struggle, once Bem worked out how to kill herself, was determining when to exit. A right-to-die advocate interviewed for the article noted that a person like Bem must consider giving up “some period of time in which she might still be able to take some small pleasures in her life, just to be certain of ending it while she still could.”

In the end, it seems to me, Bem struck the balance perfectly. In the final weeks her friends noticed that she seemed to take no joy in her life anymore. Days before she drank from a glass containing pentobarbital and fell into her final sleep, she had failed to recognize her own daughter, asking a friend, “Who is that person’s mother?”

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics Blogs

AALS Section on Disability Law Call for Papers/Presentations for 2016 Annual Meeting

The AALS Section on Disability Law issued the following call for papers and presentations for the 2016 AALS Annual Meeting to be held in New York, New York, January 6-9, 2016. Selected papers will be published in the Journal of Legal Medicine.

Program title
The Wounded Warrior Comes Home: Exploring the Impact of Disabled Veterans on Disability, Health, and Other Law and Policy.

Program Description
About a century ago, returning war veterans with disabilities had a profound impact on both cultural and legal attitudes toward disability, shifting us from the charitable model to the rehabilitation model. Today’s soldiers often survive injuries that would have been fatal in prior combat engagements, leaving them with even more significant physical impairments. There is also a growing understanding of the scope of mental impairments associated with military service. 

At the same time, disability has shifted from something personal to the individual that she or he must work to overcome, to something largely attributable to choices made by society, and we now recognize equal opportunity for individuals with disabilities is a matter of civil rights. Veterans with disabilities may once again play a significant role in shaping the future of disability rights law. In addition, in an era of changing norms regarding health care, veterans with disabilities may play a significant role in that context. Beyond those topics, veterans with disabilities may affect issues of criminal law, employee benefits law, and tax law, to name a few. 

This panel will explore the contemporary impact of veterans with disabilities on our law, including ways in which law and policy can be more responsive to the needs of these veterans and those with whom they interact, and how their unique status may help inform various normative conversations.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.

Bioethics News

Attack on Pregnant Woman Complicated by Abortion Politics

(ABC News) – A Colorado woman accused of luring an expectant mother to a basement and cutting the baby from her belly might not face homicide charges in the child’s death because of the way criminal law in the U.S. has become entangled in abortion politics.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.