Judicature Genes and Justice
The Growing Impact of the New Genetics on the Courts
November-December 1999 Vol 83(3)
The IMPACT of BEHAVIORAL GENETICS on the LAW and the COURTS
by Mark A. Rothstein
The Human Genome Project, officially begun in 1990 and scheduled for completion between 2000 and 2003, has heralded a period in which genetic factors have been identified for numerous disorders. In addition, researchers in the field of behavioral genetics have asserted claims for a genetic basis of numerous physical behaviors, including homosexuality, aggression, impulsivity, and nurturing. A growing scientific and popular focus on genes and behavior has contributed to a resurgence of behavioral genetic determinism—the belief that genetics is the major factor in determining behavior. This could lead to grievous social consequences.
Research in behavioral genetics has been extremely contentious. There are several scientific obstacles to correlating genotype (an individuals genetic endowment) and behavior. One problem is in defining a specific endpoint that characterizes a condition, be it schizophrenia or intelligence. Another problem is in identifying and excluding other possible causes of the condition, thereby permitting a determination of the significance of a supposed correlation. Much current research on genes and behavior also engenders very strong feelings because of the potential social and political consequences of accepting these supposed truths. Thus, more than any other aspect of genetics, discoveries in behavioral genetics should not be viewed as irrefutable until there has been substantial scientific corroboration.
Flawed scientific theories can be refuted by more rigorous science. A more perplexing social quandary involves the permissible societal response to legitimate discoveries in behavioral genetics. Undoubtedly, there is some correlation between certain genes and behavioral traits. The only serious scientific dispute concerns the overall degree of correlation and the applicability of genetic factors in a range of specific behavioral traits. What, then, are the likely psychological, social, political, and legal consequences of such correlations?
As an example, take the case of alcoholism. Several past and ongoing studies have explored whether there is a genetic component of alcoholism.1 Assume such a component exists in some cases of alcoholism. Does that mean that, as a society, we will be more or less tolerant of alcoholics, more or less inclined to mandate genetic testing to detect a particular version of a gene or genes (called "alleles"), or more or less likely to embrace a disease model for this behavior? On the one hand, it could be argued that the genetic component decreases the moral taint attached to individuals with alcoholism.
On the other hand, the genetic, heritable nature of the disorder may increase the stigma, it may increase the pressure for genetic screening for the particular allele, it may contribute to individuals feeling a sense of resignation and a reluctance to enter treatment, and it may lead to disdain for individuals who, despite knowledge of their genotype, continue to drink.
Similar issues are raised with regard to a possible genetic link to homosexuality. If we find a "gay gene," will it mean greater or lesser tolerance? My suspicion is that it will not change the way most people view homosexuals. For individuals who are tolerant of homosexuals, it will reaffirm that the behavior is physiologically based and does not represent moral depravity. For those less tolerant of homosexuality, it will confirm their view that such individuals are "abnormal." It also could lead to proposals that those affected by the "disorder" should undergo treatment to be "cured" and that measures should be taken to prevent the birth of other individuals so afflicted.
Genetic determinism and the law
One consequence of new genetic research may be a resurgence of behavioral genetic determinism. If so, this phenomenon would have major implications for the legal system. I have written elsewhere at length about the effects of genetics on many areas of law, including employment, insurance, commercial transactions, civil litigation, and privacy.2 Rather than discussing specific areas of the law in which behavioral genetics may be important, I will discuss five general principles of law that help to frame the issues of behavioral genetics and the law.
1. The law has established a unitary standard for determining an individual's legal duty. In both the civil and criminal law, the lawfulness of an individual's conduct is determined by reference to the standard of behavior of a reasonable person. The hypothetical reasonable person is not the average person or the average juror, but the personification of a community ideal of reasonable behavior. This is an objective and largely unitary standard.
The reasonable person standard, originally expressed as the "reasonable man" standard, was first applied to negligence law in England in the middle of the nineteenth century.3 The concept was soon adopted in the United States.4 By the beginning of the twentieth century the gender-neutral "reasonable person" came into use and is now used in every state. The reasonable person standard is often expressed as the reasonably prudent person, or some similar terminology, all of which have the identical meaning. Thus, both plaintiffs and defendants in civil negligence cases have the reasonableness of their conduct evaluated in terms of whether it conforms to the standard of a reasonably prudent person under similar circumstances.
Although the law does not consider minor, individual variations in the character and abilities of the individual in establishing the standard for evaluating conduct, there are some exceptions. Children are held to the standard of a reasonable child of the same age. An individual's special talents or training also are considered.
For example, in a medical malpractice case, the "standard of care" is that of a reasonably prudent physician in good standing in the profession, or if the individual is a specialist, the reasonably prudent physician in a certain specialty. If the individual has a physical impairment, the standard is the reasonably prudent person with the same impairment, such as the reasonably prudent person with blindness. Note, however, that the reasonable person standard generally has not been adjusted for mental impairments or behavioral shortcomings. These matters historically were assumed to be impossible to assess accurately. Moreover, excusing the conduct of people because of their asserted individual inability to conform to the reasonable person standard was seen as an invitation to fraud.
The criminal law also recognizes a version of the reasonable person standard. Criminal negligence is defined by reference to a reasonable person. In cases where a murder has been committed in a moment of passion, a reasonable person standard is used to determine whether the circumstances would cause such a reaction. If so, then the charge of murder is reduced to voluntary manslaughter.
The main rationales for the reasonable person standard are:
Inherent in the application of the reasonable person standard is that it is impossible to determine the precise cognitive, physical, or behavioral abilities of the individuals in any given legal proceeding. Notwithstanding this established legal principle, suppose precise evaluation of individual characteristics were possible—or even were believed to be possible. Suppose an expert witness on behavioral genetics were prepared to testify about the innate capability of a specific individual in a civil or criminal proceeding. Would this matter? Should it?
- the required conduct of the individual and the outcomes of cases are more predictable,
- having a unitary, objective standard allows individuals to have reasonable expectations of the behavior of others,
- it is easy for juries to apply,
- it can adapt and change over time,
- it does not need detailed codification.
Philosopher Dan Brock frames the issue in the following way. "If a person's genetic structure is a principal cause of behavior and that genetic structure is completely beyond the individual's control, can an individual justifiably be held responsible for the resultant behavior?"5 It is not clear whether or how behavioral genetic discoveries and claims will affect the law's fundamental assumptions about individuals as responsible agents. If the unitary standard were replaced with a more subjective standard, it would cause a significant change in the law's view of the bounds of individual conduct.
2. The adversary system requires lawyers to present all possible arguments on behalf of their clients, especially in criminal cases. The adversary system of adjudicating lawsuits was transported to the American colonies from England. It can be traced to two Renaissance ideas: the attempt to use reason to understand the world; and the concern for human dignity, whereby individuals on trial should have a wide range of defenses available in attempting to avoid conviction.
The adversary system uses a partisan presentation of the evidence, a largely passive judge, a neutral jury, and a structured trial format. The lawyer's role in both criminal and civil cases is not to determine the truth; the truth will be decided by the impartial trier of fact—either the judge or jury. The lawyer's role is to be the zealous advocate of the position of his or her client. Overreaching, implausible, or untruthful assertions by either side are exposed through the cross-examination of witnesses and the presentation of contrary evidence. Theoretically, this system not only uncovers the truth, but it results in popular support for the judicial system because parties have a chance to present all of their arguments.
Trial lawyers are not merely permitted to be zealous advocates, they are required to be so by legal ethics. The Model Rules of Professional Conduct provide that a lawyer "has a duty to use legal procedure for the fullest benefits of the client's cause."6 The lawyer is duty bound to make any lawful argument in support of the client's position "without regard to [the lawyer's] professional opinion as to the likelihood that the construction will ultimately prevail," so long as the argument is not frivolous. In criminal cases, even frivolous arguments may be asserted, the only limitation being that a lawyer may not offer perjured testimony. During the post-conviction, sentencing phase of a criminal case, defendants are given even wider leeway in presenting mitigating evidence.
Innovative scientific assertions come within the "zealous advocacy" principle in criminal cases. One example involves the use of the post-partum psychosis defense in at least 12 U.S. cases in which mothers were accused of murdering their infants. In most of the cases, the women were found not guilty by reason of insanity or received light sentences, although it is not clear what weight, if any, was given the defense. Premenstrual syndrome and post traumatic stress syndrome also have been asserted as defenses.
For many individuals, the zealous advocacy standard for presenting novel defenses was stretched to the breaking point by the "Twinkie defense" in the murder trial of Dan White, a former San Francisco supervisor charged with murdering Mayor George Moscone and supervisor Harvey Milk in 1978. At trial, forensic psychiatrist Dr. Martin Blinder, then an assistant clinical professor at the University of San Francisco Medical School, testified that the junk food eaten by White could have affected his decision to shoot the victims. After White was convicted merely of voluntary manslaughter, the California Legislature amended the penal code to limit defense attorneys' right to offer such evidence.
In civil cases, such as personal injury litigation, plaintiffs often have a difficult time proving causation—that their injury was caused by the unlawful act of the defendant. Using what detractors have termed "junk science" or "liability science," scientific experts have pushed the frontiers of scientific thinking in asserting that, for example, a particular environmental exposure, pharmaceutical product, or medical device resulted in a particular harm to the plaintiff.
Because of the adversary system, it is virtually certain that parties in both criminal and civil cases will assert behavioral genetic arguments well before there is general support for such views in the scientific community. These arguments are particularly appealing in criminal cases because they can be used to prove that the defendant was compelled to commit the act by uncontrollable genetic factors.
3. Judges and juries have little, if any, expertise in evaluating scientific claims. If the adversary system encourages—indeed demands—that lawyers zealously advocate unproven scientific theories on behalf of their clients, the next important question is how will judges and juries view this evidence? By all indications, both judges and juries are ill-prepared to evaluate the validity of novel scientific assertions, and juries are likely to give too much credence to such arguments.
The initial problem faced by a lawyer in trying to introduce scientific evidence is persuading the court that the proffered evidence is admissible. In an influential 1923 decision, Frye v. United States, the Court held that scientific evidence is admissible if it is generally accepted as valid by the scientific community.
The so-called Frye-test lasted for 70 years, until the Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The Court held that Frye did not survive the enactment of the Federal Rules of Evidence in 1975. Under the Federal Rules, judges cannot defer to the scientific community's acceptance of the evidence in question. Instead, judges are required to make an independent determination of the reliability and probative value of the evidence.
Judges must determine "whether the reasoning or methodology underlying the testimony is scientifically valid." This is composed of four factors: (1) whether the theory or techniques can be or have been tested; (2) the extent to which there has been peer review and publication of the theory or techniques; (3) the known or potential error rate and the existence and maintenance of standards controlling the technique's operation; and (4) the general acceptance of the methodology or technique in the scientific community.
Although there is some disagreement among judges and scholars, most believe that Daubert, at least in theory, made it easier to get scientific evidence admitted into court. There is no dispute, however, that Daubert made things more difficult for trial court judges. According to Judge Jack Weinstein of the United States District Court for the Eastern District of New York:
Many federal judges believe Daubert made their lives more difficult. They are going to have to give a more reasoned statement about why they are letting in evidence. They can't do it on a rubber-stamp basis the way some of them did it in the past.... After all, we're not scientists. We're in strange territory and we want to do the best we can.7
Although Daubert is not binding on state courts, many state courts have adopted the approach of requiring a more active role for trial court judges in deciding admissibility. At the least, the new responsibilities have caused state court judges to diversify their reading materials to include scientific works. Yet, according to one state court judge, both trial and appellate judges "tend to have no particular training in statistical analysis as it relates to scientific research, unless they worked through doctoral programs in science before making the career switch to law."8 In fact, "they tend to be scientifically ignorant, which means they are not acquainted, let alone conversant, with scientific practice or language."9 To increase the scientific acumen of judges, state and federal court administrators have begun programs of scientific education as well as publication of manuals on scientific evidence. It is not clear how successful these efforts have been.
If efforts are under way to educate judges about scientific methodology, no such efforts are being contemplated with respect to jurors. Indeed, the Anglo-American tradition of a lay jury is based on the premise that jurors should be average members of the community and they should not have special expertise. Jurors with expertise in the matters at issue are generally dismissed during jury selection, because lawyers are concerned that the other jurors will defer to the single knowledgeable juror, thereby negating the whole purpose of a jury.
Jurors' lack of scientific expertise has resulted in a demonstrated inability to comprehend scientific evidence. Nevertheless, several studies have documented that jurors tend to put great credence in expert testimony, even though they do not understand it.10 A key factor is the persuasiveness of the expert presenting the testimony.
Putting together the factors discussed above produces the following results. The adversary system demands that lawyers introduce scientific evidence that may not have been rigorously tested, judges without scientific expertise must decide whether the methodology and theories have a valid scientific basis, novel scientific evidence is increasingly being found admissible, and juries often give great credence to the evidence even though they usually do not understand it, so long as the expert appears knowledgeable. There is no reason to believe that behavioral genetic information would not fit this pattern as well.
(Editor's note: Efforts to assist judges and juries with scientifically-complex material are discussed in several articles in this issue—"Keeping the gate: the evolving role of the judiciary in admitting scientific evidence" by Joseph T. Walsh; "Complex scientific evidence and the jury" by Robert Myers, et. al.; and "Educating judges for adjudication of new life technologies" by Franklin Zweig and Diane E. Cowdrey.)
4. The law encourages risk-averse behavior. If lawyers are required by legal ethics and encouraged by financial incentives to assert all possible claims for their clients, unproven scientific evidence increasingly is admitted into evidence, and judges and juries generally lack the expertise to evaluate the evidence critically, what are the effects? Obviously, one effect in personal injury litigation could be to establish the liability of a particular defendant. Another potential consequence is to create a generalized state of risk aversion among other possible defendants.
The concept of "defensive medicine" has been widely discussed. It is difficult to quantify the extent or the effects of medical practices designed primarily to avoid malpractice litigation. Yet, this is merely one manifestation of risk averse behavior caused by concern for tort liability. Other examples include companies ceasing the manufacture of football helmets and the removal of diving boards from public swimming pools. It took an act of Congress, the National Childhood Vaccine Injury Act, to ensure that there would be enough pharmaceutical companies willing to produce vaccines.
In some instances of deleterious environmental health effects, such as those resulting from asbestos and tobacco, the evidence of both industry culpability and causation are overwhelming and irrefutable. In other instances, however, such as the harms allegedly resulting from bendectin and breast implants, the evidence is less clear. Regardless of the scientific community's position on the evidence, the fear of liability often motivates the actions of individuals, institutions, and companies.
Behavioral genetic information could lead to a wide range of risk-averse actions. To illustrate, in a 1994 case a security guard at a Bon Jovi rock concert attempted to rape a 16-year-old patron under the stands. The girl then sued the security company that employed the guard for negligent hiring. She alleged that had the company done a background check, it would have discovered that the man had four prior convictions, including one for second degree robbery. In reversing the trial court's granting of summary judgment for the company, the appellate court observed that upon discovery of a prior robbery conviction, a prospective employer would be on notice that the prospective employee had a propensity for violent behavior. (Carlsen v. Wackenhut Corp., 1994.)
Would employers in the future have a duty to review medical records or conduct their own medical testing to determine whether applicants had genetic indicators of an increased risk for violent behavior? Would it violate the Americans with Disabilities Act or other laws to do so? If behavioral genetic tests were on the market and their use by employers was not unlawful, it is possible that a jury might impose liability for failure to use them, especially in light of the great harms that often befall the plaintiffs in such cases. If there were a single case finding liability, it is easy to imagine other employers being pressured by insurers and the public to require tests of school teachers, day care workers, police officers, home health care workers, and numerous other employees.
It is also possible that behavioral genetic information could be required in other contexts besides employment. For example, suppose a young camper at summer camp unexpectedly and deliberately hit another camper in the head with a baseball bat, causing serious injury. Because statutory liability of parents for the intentional torts of their children is quite limited, and because the child is unlikely to have adequate assets to satisfy a judgment, a negligence action might be brought against the camp. Assuming the children were adequately supervised, the injured child's lawyer might assert that had the camp required behavioral genetic testing of all campers it would have learned that the aggressor child was predisposed to violent behavior. It then could have refused to admit the child, thereby preventing the injury. If the injured child is able to obtain a judgment, or even a settlement, then the risk-averse behavior for every other summer camp, boarding school, college dormitory, and other entities might be to require a review of behavioral genetic test results. Pressure to do so also could come from parents.
These are just two examples of possible liability avoidance measures that could be used for violent or aggressive behavior. A similar response is also possible for asserted behavioral genetic associations involving substance abuse, impulsivity, homosexuality, or other "predispositions."
5. The law has not done a good job of protecting medical privacy. The recognition of a legal right to privacy is largely a twentieth-century development. In American law, the development has proceeded along three separate lines: constitutional privacy, common law privacy, and statutory privacy. In none of these areas, however, has the privacy and confidentiality of medical information been afforded adequate protection.
The federal constitutional right to privacy is based on the Fourth, Fifth, and Fourteenth Amendments. This right to privacy and related interests, such as liberty and autonomy, have been used to prohibit the government from interfering with personal medical decisions, such as providing and withholding medical treatment, procreation, contraception, and abortion. Federal constitutional rights protect against governmental and not private interference, but a few state constitutions also contain privacy provisions applicable to both the public and private sectors.
Even where federal constitutional law applies to protect privacy, the right to privacy is not absolute and often is considered to be outweighed by other governmental interests. For example, New York enacted a statute requiring that in filling all prescriptions for Schedule II drugs an official form must be completed, including the name of the prescribing physician, dispensing pharmacy, drug and dosage, and the patient's name, address, and age. The form is then filed with the state health department, where the information is entered in a computer and stored for five years. In a unanimous decision, the Supreme Court held that the statutory scheme was a legitimate effort to deal with the serious problem of drug abuse (Whalen v. Roe, 1977). Interestingly, the Court relied on the generally diminished privacy rights of patients to support the view that the governmental intrusion was minimal.
Disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.
The second privacy law doctrine, common law invasion of privacy, may be applied to a variety of factual situations. Indeed, the legal doctrine has evolved into four related torts: public disclosure of private facts, intrusion upon seclusion, false light, and appropriation of name or likeness. The first two are especially relevant to medical privacy.
To establish a claim for invasion of privacy based on public disclosure of private facts, the plaintiff must show dissemination or "publication" of private matters (e.g. medical information) in which the public has no legitimate concern so as to bring shame or humiliation to a person of ordinary sensibilities. Some parties, such as employers, have been granted a qualified privilege to disclose certain facts deemed essential to their business interests. For example, where work was disrupted at a nuclear power plant because of rumors that the reason for an employee's illness at work was radiation exposure, a Mississippi court held that the employer had a privilege to tell employees that the plaintiff was ill due to the effects of a hysterectomy (Young v. Jackson, 1990).
The other important basis of invasion of medical privacy is intrusion upon seclusion. "One who intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person."11 Individuals who are in a weaker economic position (e.g. employees, insurance applicants) often are compelled to disclose or release medical information. They are often placed in a no-win situation, which is not aided by the common law doctrine. If they refuse to supply information, even if they are discharged as a result, the courts hold that their privacy has not been invaded. On the other hand, if they supply the information, then they have consented to release of the information and there is no right to legal redress.
The third main legal method of protecting privacy is statutory. A variety of state and federal statutes attempt to deal with one or more aspects of medical privacy. None of these laws provides adequate protection, however. For example, in 1995 Oregon enacted the nation's first state law designed to protect the privacy of genetic information. Subject to various exceptions, the law provides, among other things, that no person may obtain genetic information from an individual without informed consent, no person may retain genetic information without obtaining specific authorization, and no person may disclose genetic information without specific authorization. A similar "procedural" law has been enacted in California.
What has been labeled "genetic privacy" legislation is, in reality, genetic security legislation. The laws only prohibit the unauthorized collection, retention, or disclosure of genetic information. They have no effect on the myriad instances in which individuals can be required to release genetic and other medical information as a condition of employment, insurance, education, commercial transactions, and other matters.
There is no reason to expect that behavioral genetic information will be afforded greater privacy protection than other forms of medical or genetic information. Some constitutional, statutory, or common law theories may be applied to limit some overly intrusive inquiries or unnecessarily extensive disclosures. In general, however, a wide range of substantive limitations in each specific area will need to be enacted to safeguard the privacy of this information.
How will the law respond?
The law does not operate independently of culture, it follows culture. In the 1920s, when eugenics dominated American scientific thinking, it also dominated American culture and American law. How will the law respond to new discoveries in genetics, including behavioral genetics? To what level of legal scrutiny will claims of behavioral genetics be subjected? How will proven associations of genetics and behavior affect a range of legal doctrines related to privacy, autonomy, nondiscrimination, and societal opportunities? How will unproven or outright bogus assertions be received by the courts?
Legislative and judicial responses to new genetic discoveries will have a major effect on whether we are about to enter an unprecedented period of behavioral genetic determinism and, with it, social disruption, or the promised enlightened era of genetic marvels. While history does not preordain the future, it certainly reminds us of the stakes involved.
Mark A. Rothstein is Cullen Distinguished Professor of Law and director of the Health Law & Policy Institute at the University of Houston Law Center.
This article has been adapted and excerpted from Mark A. Rothstein, Behavioral Genetic Determinism: Its Effect on Culture and Law, in Behavioral Genetics: The Clash of Culture and Biology, 89-115. Ronald A. Carson & Mark A. Rothstein, eds. (Johns Hopkins University Press 1999). Reprinted by permission of the publisher.
1. Hamer and Copeland, Living with our Genes 144 (New York: Doubleday, 1998).
2. See Rothstein, Genetic Secrets: A Policy Framework, in Rothstein, ed., Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (New Haven: Yale University Press, 1997); Rothstein, Preventing the Discovery of Plaintiff Genetic Profiles by Defendants Seeking to Limit Damages in Personal Injury Litigation, 71 Ind. L.J. 71 (1996); The Use of Genetic Information for Nonmedical Purposes, 9 J.L. & Health 109 (1995); Rothstein, Genetics, Insurance, and the Ethics of Genetic Counseling, in Friedman, ed., Molecular Genetic Medicine, vol. 2. (San Diego: Academic Press, 1993); Genetic Discrimination in Employment and the Americans with Disabilities Act, 29 Hou. L. Rev. 23 (1992).
3. Blyth v. Birmingham Waterworks Co., 156 Eng. Rep. 1047 (1856); Vaughan v. Menlove, 132 Eng. Rep. 490 (1837).
4. See Holmes, The Common Law 108 (Boston: Little, Brown and Co., 1881)
5. Brock, The Human Genome Project and Human Identity, 29 Hou. L. Rev. 7, 16 (1992).
6. Model Rules of Professional Conduct, Rule 3.1, Comment 1.
7. Sherman, "Junk Science" Rule Used Broadly; Judges Learning Daubert, NatÕl L.J., Oct. 4, 1993, at 3.
8. Gless, Some Post-Daubert Trial Tribulations of a Simple Country Judge: Behavioral Science Evidence in Trial Courts, 13 Behavioral Sci. & L. 261, 263 (1995).
10. Broyles, Taking the Courtroom into the Classroom: A Proposal for Educating the Lay Juror in Complex Cases, 64 Geo. Wash. L. Rev. 714, 721-722 (1996).
11. Restatement (Second) of Torts §652B (1977).
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