Archive for the 'In the news' Category

Taboo: Nature vs. Nurture, Part 2.

Posted in In the news, Taboo Subjects on May 6th, 2007

Earlier, I discussed incest as a moral value that stems from instinct. One might think that it springs, as many of our moral values do, from a societal and intellectual analysis of the risks involved, namely in the form of genetic disease and birth defects. Pinker demonstrated the difference by discussing the various cultures that have shared this disgust , which predates our knowledge of genetics. It has also been seen in the animal kingdom, which could not spring from scientific knowledge. Yet could it spring from a mere observation of the harms of incest, spread from one generation to the next?

And what about the isolated Japanese cultures who seem to have little taboo around this, even in the fact of laws prohibiting it?

He also demonstrated its innateness by posing a hypothetical where there is no harm. Our disgust still remains. Yet could it be that once we tie the act to disgust, removing the cause is insufficient to eradicate what we have set in our minds? Besides, when it comes to cousins (admittedly less of an instictive taboo) there is not that significant of an increased risk.

A study conducted in the United States found that 1.69 percent of the offspring of marriages between cousins showed genetic-related disorders, compared to a rate of 1.02 percent for offspring of ordinary marriages.

Statistically significant? Sure. But to the average person, these numbers would not indicate a compelling reason for such a strong taboo. And yet we have such a taboo against relationships with cousins, a taboo that has lead to legislation here in the US as well.

I think I have discovered somewhat compelling evidence that it derives strongly from an instinctual component. We have no taboo against exposing children to genetic risks. I’ll demonstrate that with an excerpt from a listserv I belong to:

Remember the case of David Vetter, a/k/a the Boy in a
Bubble? His two fucking worthless idiot parents, David Joseph Vetter
Jr. and Carol Ann Vetter, were desperate to have a boy to “carry on
the family name.” Never mind the fact that a minor affliction called
Severe Combined Immune Deficiency (SCID) ran in the family and that
each boy therefore had a 50% chance of being born without an immune
system. Never mind the fact that they already had a daughter and
already had one boy born sans immune system who died. (What was that
boy’s name? David Joseph Vedder III. Big shock there. Utterly barf-
inducing. Talk about selfish!)

Because they were devout Catholics, they believed it was their God-
ordained duty to shit out a boy named David III and “carry on the
family name.” Any sane person would have opted for a vasectomy and
an adoption to do that, but noooooo. Ancient fairy tales perpetuated
by impotent Italian aristocratic men in dresses once again won out
over common sense. But Wait, There’s More!

Their doctor, also a Catholic, in fact a Holy Cross brother, had a
brilliant idea. If their son was born with SCID, he would be
isolated in a sterile environment until a cure (which, of course, was
“right around the corner”) could be found. No thought was apparently
given to how a complete lack of human contact would affect their
little trophy’s psychological development, no no no, they had God on
their side!

At the age of three, the kid was asking his (!) personal psychologist
why he was angry all the time. At seven, he was smearing his own
shit all over the inside of the enclosure. When he finally became
unmanageable, they attempted a bone marrow transplant using marrow
from his sister, but she had the Epstein-Barr virus. The kid died a
horrible death two weeks later, his body riddled with tumors.

Just as you are thinking that the presence of such a rant on a listserv may be indication that there is a taboo for such actions, consider that this group exists to circumvent taboos; as a safe haven for things you cannot say elsewhere. This is why I had to get this information off of an e-mail. There is not much presence for derisions of this sort on the internet, let alone in our society. We do not have a general taboo against getting pregnant when you have an increased risk of disease. Indeed – we have a whole industry based around it!

Many types of fertility treatments result in disproportionate amounts of birth defects. When implanting extra embryos to increase the odds of conception, we know we are taking the risk of creating twins, triplets, or far worse. These multiple births represent extreme risk to the children, even to the point where doctors often recommend aborting one to save the other/s. Yet many parents refuse. A minority criticize that choice, but there is not the widespread condemnation of risking those lives that one would expect to see. If you cause risk to a fetus by punching a pregnant woman or committing incest, there is a taboo. But an act that creates a much greater risk to the fetus is essentially given a pass!

The first week of class, fertility treatments were mentioned as something that has lost its taboo or its moralization. The original aversion to artificial creation of life, as against “god’s design” or in violation of Catholic doctrine against destruction of sperm/eggs has indeed faded. But where is the new taboo – the one that springs not from abstract religious values, but from the actual harm being caused?

This is not the only context in which people playing god while risking harm to their children gets a free pass. Situations as above, when people have diseased children but create more, go on all the time without the slightest peep from society. Fertility treatments are given to women with multiple miscarriages, creating an increased risk that whatever was causing them to miscarry will damage the child (often the body knows what it is doing). But we blindly and thoughtlessly defend such actions, then coo with sympathy at the poor parents who care for a disabled or sick child.

But this is aside from my point. I will say “enough is enough!” and move on. More relevantly, the lack of taboo attached to this relatively greater risk of harm disabuses us of the notion that the taboo against incest springs only from the risk. There is something more to it. Perhaps it is that the act is more direct, less subtle. That may make it easier for us to condemn. But it also may be that there is an instinctive drive there, something that is more compelling than a rational assessment of the risks. Some inborn aversion to it combines with the knowledge we have (be it “this person is my sister” or “this risks birth defects” to create a moralization. As time goes on, perhaps greater knowledge will attach to other instincts, like the drive to protect a helpless child. Perhaps then we will see a new moralization to overcome the weakness of will we seem to be suffering.

Note to McCain – RTFM!!

Posted in cyberlaw, In the news, The Law on February 8th, 2007

Senator to propose surveillance of illegal images

It also covers obscene images of minors including ones in a “drawing, cartoon, sculpture, or painting.” (The language warns that it is not necessary “that the minor depicted actually exist.”)

OK, I’m only a law student, but this immediately triggered a WTF? reaction since SCOTUS has recently held that you cannot ban cartoons or rendered images. Indeed, the first amendment requires a showing of ‘actual harm’ to a child in order to overcome the free speech protections. SCOTUS held that that actual harm exists not in viewing the images,but in the taking of them – at the outside, the potential psychological harm to the child that the image is ‘out there’.

Indeed this has presented evidentiary difficulties that nearly require production of the child in the image. Prosecutors have struggled to otherwise prove that it was a real image -with software and FBI experts’ declaration that an image is real and not rendered recently held insufficient. Of course, Thomas’ concurrence in the original holding postulated that the severe evidentiary burden, if it imposed too high a bar to prosecution, could be sufficient a cause to ban fake images. And while the recent problems may lean that way, a statement in one concurrence does not really provide McCain with legs for this bill.

What is he basing this law on? Does he really think that the recent decisions will cause SCOTUS to overturn its holding? Or is he just not paying attention to what the First Amendment jurisprudence? One would think the job of Senators includes RTFM, or at least getting their staff to do so. One would think that if this case was re-testing the holding, this would be articulated somewhere in the platform, in the article. Instead, it seems oblivious to the existence of the precedent.

Supreme Court strikes down ban on ‘virtual child porn’.

FYI – I’m actually behind Thomas’ concurrence. I would go so far as to say that the holding presents an evidentiary hurdle so high that it justifies a ban on virtual child porn. But it troubles me that the senators don’t seem to be paying attention.

The Mooninite “Hoax Device”: What is the law?

Posted in In the news, The Law on February 2nd, 2007

I was curious how placing LEDs as part of a viral marketing campaign could constitute a felony.  So I used my magic-power as law student and looked it up:

§ 102A1/2.  Possession of Hoax Device.

(a) Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment.

(b) For the purposes of this section, the term “hoax device” shall mean any device that would cause a person reasonably to believe that such device is an infernal machine. For the purposes of this section, the term “infernal machine” shall mean any device for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically. For the purposes of this section, the words “hoax substance” shall mean any substance that would cause a person reasonably to believe that such substance is a harmful chemical or biological agent, a poison, a harmful radioactive substance or any other substance for causing serious bodily injury, endangering life or doing unusual damage to property, or both.
. . .
(d) The court shall, after a conviction, conduct a hearing to ascertain the extent of costs incurred, damages and financial loss suffered by local, county or state public safety agencies and the amount of property damage caused as a result of the violation of this section. A person found guilty of violating this section shall, in all cases, upon conviction, in addition to any other punishment, be ordered to make restitution to the local, county or state government for any costs incurred, damages and financial loss sustained as a result of the commission of the offense. Restitution shall be imposed in addition to incarceration or fine; however, the court shall consider the defendant’s present and future ability to pay in its determinations regarding a fine. In determining the amount, time and method of payment of restitution, the court shall consider the financial resources of the defendant and the burden restitution will impose on the defendant. ALM GL ch. 266, § 102A1/2

Breaking it down: a court would need to find that the device was placed “with the intent to cause anxiety, unrest, fear or personal discomfort .”  I’m beginning to understand why the defendants were talking about hair after their court appearance, and why the judge thought the charges were ridiculous.  There is no way that the prosecutors can prove that intent – the mens rea is completely absent.

Furthermore, the definition of hoax device as one that “would cause a person reasonably to believe that such device is an infernal machine” indicates yet another gaping hole in the case.  The blogosphere is buzzing with commentators pointing out that a Lite Bright would not have a threatening appearance to reasonable people, that the police overreacted. However, with intent completely gone, I doubt a court will find on this issue.  Would you want to be the judge (in a post-9/11 world) who tells the police they overreacted?

Furthermore, even if they do have a view of the statute or actions that might imply intent, why are they going after two artists and not Turner Broadcasting?  If the intent behind the items was to cause fear, then why would those who placed the items, for pay, have any less intent then those who hired them to do so?  The statute’s language, by including anyone who “causes another to knowingly or unknowingly possess, transport, use or place” would seem to include these parties as well.  Is it that the prosecution does not want to face the BigLaw attorneys that Turner would hire; that such attorneys would not only get the case dismissed as to all parties, but might even retaliate with a malicious prosecution lawsuit in civil court?  They have already stated publicly that jurisdiction is not an issue, and that they intend to file a civil suit against Turner.