Posts Tagged ‘law’

Once in a while, (for which, read: “When we’re lazy”) we’ll be stealing content from compelling guest posters. So today we have belle absente with some thoughts on Law & Order, SVU-flavor. A brief bio then we’re off:

Ghost blogger belle absente is a first year law student at Large State University, where she studies civil rights law. Her extracurricular interests include such wide ranging topics as the private wars of tiny countries, alpaca shearing, and tentacle porn. She appreciates your understanding of her need for anonymity.

I enjoy the Law & Order franchise as must as the next guy. Really, I do. I mean I would be completely lying if I said that some part of my interest in law didn’t come from watching episodes ever since I was little, and admiring strong, confident, intelligent female ADAs.

But. My least favorite series is, unfortunately, the one that used to be my favorite: SVU. There are a lot of reasons… but there was a particularly awful episode on DVR the other night that really set wrong with me. I mean, I’ve always been aware of what a fascist Elliot is… that’s no secret. No warrants, no problem with police brutality, all force no style. And it’s not the first time he crosses the line, but it got to me worse than most of the time.

The episode revolves around the argument of whether or not it is legal (or for that matter ethical) for the state to force a mental health patient to take their medications. This is important to me and stuck with me for two reasons: 1) I’m a law student with a strong interest in human/civil rights, especially disability & mental health law, and 2) I’ve had a lifetime of experience dealing with the mental health system as it exists in this country, and I’m intimately aware of its idiosyncrasies and injustices.

It’s important to not that the episode is, as it should be, designed to locate that argument outside of the standing legal statute, the commonly cited “harm to self or others” rule of thumb. While that may seem to provide a wide berth for interpretation, it actually is fairly well defined, and (also as it should be), difficult to actually prove. At first glance this may cause some readers discomfort: shouldn’t “we”, the “sane people” be allowed to use that ‘golden rule,’ to confine individuals for no reason besides their own good?

No. We shouldn’t. Because the ‘harm’ rule is legally defined and enforceable – for their own good is not. Using the existing laws, the only way to exercise force over an individual for reasons of mental health is to prove that they are an active danger to others, or an immediate suicide risk. I say this because nowadays it is virtually impossible to commit someone on the only other legal avenue available, ie, proving that they are non compos mentis. In other words, the current laws come with a built-in safeguard against abuse of power via the burden of proof. Proving a person is a threat to others requires written statements (which are still hard to use), or actions (at which point they are criminally liable as well)… and proving someone is a threat to themselves basically requires them to be actively attempting suicide. This stuff is fairly straightforward.

But the arguments presented in the episode take it a step further and ask the question – what can the state do about patients who do not fit into the existing legal definitions? I would not be surprised if the majority of readers’ immediate reaction is to lean towards giving the courts more power in these matters. But the question bears a second look. Because when we read deeper, we can see that the question is essentially, how much power are we willing to give the courts, and thus the state, over individual human bodies and minds?

In the situation presented in the SVU episode, the person in question is a schizophrenic with information on a case – not a suspect. The patient has repeatedly indicated his refusal to take medications, and his family supports his decision. During the course of ‘interrogation,’ Elliot tricks the psychiatrist into forcing an injection of anti-psychotics, thus inducing the person to talk. When the doctor realizes what’s happened, he voices his objections and considers resigning. Cabot, the ADA, agrees with him. Elliot, however, sees no reason to question the ethics of the event.

In addition to the issue that increasing state power over our bodies and minds is, inherently, a dangerous and irreversible act, this brings up a more fundamental question: how do we define our sovereignty over ourselves, and, thus, of others’ sovereignty over themselves? And is that sovereignty a basic human right?

Or is it a privilege of those who fit within an arbitrary parameter of normalcy?

The concept of “for their own good” bears some examination. I believehope that it goes without saying that some kinds of “protection” mechanisms inherently carry with them the implication of race/class/ability superiority. These are the kinds of protections that involve force – forced hospitalization, forced medication, forced anything. Because applying this kind of force means we believe we have the right to apply it. We possess something they do not, thus making us more capable of making their decisions than they are. By othering those living with mental health concerns, we separate ourselves from them, and, on a very basic level, justify a difference in rights and privileges.

Of course this isn’t the only time the Elliot Stabler method has trod over human dignity. Yet no matter the case, his justification is always the same – essentially, spare the rod spoil the pervert. If this line or something like it isn’t repeated every single episode without fail, I will eat my non-existent hat: “I did what I had to do to catch the [insert tv new york cop slang for criminal here].” At first glance this may seem to make sense (and if you only watch the show once!), but the logic follows that if whatever you did is irrelevant because you caught a criminal, then you can do anything in the pursuit of anyone you might think is guilty of anything.

To be fair, it’s just a tv show, operating around some basic, cut-out archetypal characters. We have the benevolent but brilliant doctor, the hard-on-the-outside but secretly lonely and sensitive female cop, the cutthroat female lawyer willing for whom the ends always justify the means, and, of course, the heavy handed but well-intentioned hardworking male cop. It’s fiction, obviously, and there’s not much room to move within these archetypes. However, it is hard to imagine that a television franchise so ubiquitous in popular culture has completely escaped the eye of public morality, and it is difficult to deny that what we as a public see in some way informs our moral compass as a society. As such, the show has an obligation to handle situations like this in a more informed manner.

What it comes down to is this: in a society where freedom is enshrined in law, human choice and the entire spectrum of it beyond the rule of harm – and in this case the right to make that choice, is sacred, philosophically and legally. It is fundamental in our society that a person has a right to sovereignty over his or life, up to the point where that sovereignty interferes with either that of another person, or the state’s monopoly over force. And individuals who live with mental health issues do deserve legal protection – but not from themselves; from the people who would define “protection” as synonymous with “force”.

People have a right to protection from the system – from the abuses of the state – not within it. That is what the current law provides, the protection of a burden of proof. A burden of proof that places the same standards on every person, in every situation, every time – as opposed to the Elliot Stabler method of taking the law, and human rights, on a case-by-case basis, assuming without question that a mental health patient does not deserve the same rights and protections that First Class Citizen Elliot Stabler does.

SVU aside, I felt it was important to note that choice, the fundamental human sovereignty over one’s mind, is a right that was not given by the state to any individuals, and can not be taken away by the state; it is a right that transcends ability, age, race, or any other category, because it is an essential right, a human right.

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