Category Archives: Children’s Rights

I am Liza L.’s kid

The author, age 11.

The author, age 11.

This is a hard post to write.

It’s easy to say, in the abstract, that calls for “more mental health services” in the wake of a mass murder are stigmatizing. It’s much harder to talk about how that stigma actually feels, what it looks like, what its consequences are.

Yesterday a lot of people I know started reposting an article called “Thinking the Unthinkable,” or its various re-posts under the title “I Am Adam Lanza’s Mother.” The author of that article discusses, in detail, her 13-year-old son whom she describes as having uncontrollable outbursts. She says she feels that she is out of options for getting his behavior under control and, as a result, she is similarly situated to the mothers of the boys who shot dozens of people in Columbine, Virginia Tech, Aurora, and Sandy Hook. And, although she changed her son’s first name in the article, she published it under her full name and included a recent photograph of her son.

I hated the article. Not because I don’t sympathize with the mother but because I also, and more primarily, sympathize with her child. Even though I never, even at my worst, would have intentionally harmed another person, my mother could have written many of the same things about my behavior when I was around that age. Although actual violence is very rare among people with psychiatric disabilities, the sorts of behaviors that are described in this article – impulsive threats, verbal aggression (e.g., cursing at parents), fights with peers, and a tendency to try to escape, hit, or kick when approached or restrained during a meltdown – are not uncommon among kids with disabilities that affect impulse control, communication, and emotional regulation. As a friend of mine discussed in more detail in her blog post, “I Was One of the Scary Kids,” these kids are still unlikely to deliberately hurt others or engage in premeditated aggression, and their behavior often substantially improves by the time they reach adulthood as they gain the ability to escape from stressful situations.

As I read the article, I couldn’t help but imagine how I would feel if my mother had written something similar about me, documenting her impressions of my worst moments and comparing me to someone who had only recently killed 30 people, when I was only 13 years old. To know that that article was being shared among everyone I knew, including teachers, schoolmates, and extended family. To know that that article, attached to my mother’s full name and my photograph, would likely still be on the Internet years later, when I was applying to college or for jobs. At that age, I had a hard enough time forgiving or understanding my mother when she forced me to get off of the phone and do my homework (I had only two friends and they were the most important things in my life), and that’s the sort of thing that 13-year-olds have some  hope of understanding. How can any 13-year-old, let alone one with mental health issues, “understand” why his mother felt the need to tell the entire world that he is a potential mass murderer and that she’s run out of ideas of what to do about him?

Children with known psychiatric disabilities, especially those who also are seen as having persistent behavioral problems, already get typecast as potential killers despite the fact that there is no useful profile of school shooters and, as of 2009, most school shootings were by people with no history of mental health evaluation and no history of disruptive conduct at school. This typecasting leads to bullying at school, social isolation, and harassment by school administrators. This sort of treatment is not okay, even or even especially when the child actually has serious behavioral problems. How much worse must it be for the child discussed in this article, now that those perceptions have been reinforced, in a highly dramatic and public manner, by one’s own mother?

I would like to think I turned out really pretty well in the long run. I know what I have to do in stressful situations in order to keep myself calm and safe. I get angry a lot, but I’ve found ways to channel it into productive behavior (as I tell my friends, I’ve considered writing a motivational self-help book on how to succeed in stressful and competitive environments, which I plan to call “Do It For Spite”). I graduated high school, college, and law school. I’m now at a point in my life and my career where I have enough of a “track record” showing me to be a competent and non-homicidal person that I can admit to having a disability and having had emotional and impulse control issues in high school.

I’m not sure if I would have been able to do any of those things if my mother had, under her real name and using my photograph, written about my very worst moments in a very public way, and speculated without reasonable basis that I might someday kill people, when I was only 13 years old and still struggling. 

Kids with disabilities and their parents absolutely need support, both in the form of services and the sympathetic ear of others who’ve been there. But parents are not entitled to do things that harm their children in order to get that support. Unlike their children, parents of kids with disabilities are adults, and with that comes privileges and responsibilities their children do not yet have. Parents are far more powerful, both at home and in the public forum, than their minor children (what are the odds that a thirteen-year-old’s complaints about his mother’s unpredictable temper would have gone viral, even though it’s far more terrifying to live with a parent with emotional control issues than with a child?). Thirteen-year-olds aren’t supposed to be good at thinking about their future, but their parents are. Parents are responsible for their children’s lives, not the other way around.

As adults, parents need to consider the effect their public statements have on the long-term best interests of their children and others like their children. A 13-year-old child has the right to evolve and grow, and that right loses its meaning if there’s a dramatic narrative of the worst moments of their life at that age, published multiple places on the Internet, without meaningful protection of their anonymity. Parents also need to consider whether it’s worth saying things that perpetuate their child’s segregation and isolation from the community, in exchange for “better services.” Services help, but I’m not sure that any services help enough to outweigh the harm caused by encouraging people to see your child as a future murderer.

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Filed under Being Weird, Children's Rights, Disabilities, Health Care, Uncategorized

If you really care about mental health…

I’ve been thinking a lot about disability in the wake of the recent school shooting in Connecticut. I am sad that so many people’s reaction is to blame mental illness or autism. It especially bothers me when people call for “more services for mental health.” The implicit assumption that mental health problems make people violent, and that mental health services are mainly  there to help protect non-disabled people from those of us with mental illness, actually hurts people with mental illness. These calls for services sound so benevolent that it’s hard to call people out on it. But one of the main barriers to accessing services is stigma. Another barrier to services is the fact that many programs were created in the wake of violent tragedies like this one, which means that they’re (1) coercive, and (2) only available to people who are seen as likely to become violent.

After I posted these thoughts on Facebook, someone asked me which organizations I’d recommend to people who are interested in donating to a mental health/autism advocacy organization that focuses on actually helping people with disabilities AND helps oppose stigma and discrimination. Here’s a short list of organizations I’ve actually worked with and would wholeheartedly endorse:

  1. Autistic Self Advocacy Network. Run by and for Autistic people, this organization has proven amazingly effective at advocating for policies that improve services AND decrease segregation and discrimination against adults and children on the autism spectrum, including people with a wide range of support needs.
  2. Bazelon Center for Mental Health Law. This organization focuses on the rights people with psychiatric disabilities and has been doing great work advocating for children with serious behavioral needs. They help fight discrimination and advocate for supports and services to help people remain in the community.
  3. Trauma and Learning Policy Initiative. This project of Massachusetts Advocates for Children focuses on helping children who have experienced trauma (such as the children who were affected by the school shooting). They focus on improving teachers’ understanding of the emotional effects of trauma and helping schools become “trauma-sensitive environments.” This helps traumatized children stay in mainstream school environments where they have a better chance of academic success and long-term recovery. Although they’re a project of Massachusetts Advocates for Children, they do nationwide public education and advocacy to help children across the country succeed in school. This is a really small project and it gets limited publicity, but it does a lot of good.
 I intend to post something more personal about this issue today or tomorrow. But it’s hard to write, and I figured in the meantime it would be good to offer people some options for advocacy/donations if they were interested.

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Wrongful birth lawsuits are not about women’s rights

There’s always been a bit of a tension between the pro-choice and disability rights communities regarding the decision to abort fetuses with disabilities, and it’s coming to a head now that the Arizona senate has passed a bill banning “wrongful birth” lawsuits. Many left-leaning sources have characterized this legislation as protecting doctors who intentionally and paternalistically withhold disability-related information from expectant mothers because they think that it will prevent an abortion (see, e.g., HuffPo; Interestingly, Mother Jones has been the voice of reason here, noting that the bill doesn’t prevent lawsuits based on intentional withholding of information). Huffington Post and addictinginfo have also suggested that this bill will make it harder for women to sue for personal injury due to doctors withholding information about ectopic pregnancies.

They need to calm the heck down. There are some very serious threats to women’s health out there, including the ongoing and completely ridiculous debate over whether all employer health plans should be required to cover hormonal contraception (duh; they should). Threats to the ability to bring “wrongful birth” lawsuits are not something feminists should worry about. In fact, there are very good disability-rights-based reasons to support this bill.

First let’s look at the text of the bill. It’s very simple:

12-718.  Civil liability; wrongful birth, life or conception claims; application

A.  A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.

B.  A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.

C.  This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.

D.  This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.END_STATUTE

First note that this bill can’t possibly restrict lawsuits over ectopic pregnancies because it only applies to lawsuits in which a child has been born and allegedly should have been aborted or otherwise not brought to term. Ectopic pregnancies are automatically fatal to the embryo if nature is allowed to take its course; as a result, there is no way that a child can be born from an ectopic pregnancy as a result of the doctor’s failure to tell the mother she had one. Women would pretty clearly be able to sue for personal injury based on failure to diagnose an ectopic pregnancy.

Second, it’s important to know some background about “wrongful life” and “wrongful birth” lawsuits. They’re essentially medical malpractice lawsuits – that is, lawsuits based on negligent conduct, not intentional conduct by a doctor aimed at preventing an abortion – in which the negligent conduct by the doctor is failure to detect that a fetus has a disability and inform the mother. The mother must prove that, had she known of the child’s disability, she would have had an abortion, and the fact that she did not have an abortion based on the child’s disability harmed her (or, in “wrongful life” lawsuits, harmed the child). There may be some situations in which the lawsuit is based on negligent genetic counseling that would have prevented the child from having been conceived in the first place, but that’s not the archetypical case.

Even if one is in favor of these causes of action existing, the Arizona bill is far from radical. About half of the states in the U.S. already don’t recognize “wrongful life” or “wrongful birth” as valid causes of action; many never have.

But there are also good reasons to not want them to exist. Disability law scholars have long criticized these types of lawsuit (see, e.g., this article from Harvard’s Civil Rights-Civil Liberties Law Review). “Wrongful life” suits are particularly indefensible from a disability rights standpoint, as it’s the child who is claiming to have been harmed by not having been aborted and the success of the claim therefore rests on whether or not the jury believes that it’s better to never have been born than to have been born with the child’s disability. Even in “wrongful birth” cases, which theoretically don’t require the jury to believe that the child’s life is absolutely worthless, the success of the claim requires the parent to repeatedly and convincingly state, through a judicial process that might take years, that her (most likely living) child should never have been born; not exactly a recipe for the start of a healthy mother-child relationship.

I will acknowledge that it’s at least ambiguous whether the Arizona bill would prevent lawsuits that I think should be allowed. For example, some pregnancies may be sufficiently dangerous to the mother that the mother herself may suffer physical harm or death if she isn’t informed about the danger and therefore fails to terminate the pregnancy. In a sense, a lawsuit over this type of negligence may be characterized as “a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.” But it’s also possible to construe the statute narrowly and say that this sort of lawsuit isn’t based on the claim that the child shouldn’t have been born but rather the claim that the mother should not have continued the pregnancy. These phrases are equivalent for certain practical purposes but have different implications: a claim that the mother shouldn’t have continued the pregnancy implies that the problem was with the mother’s health, not some undesirable feature of the child. It also helps to keep in mind that a lawsuit based on the doctor’s failure to warn the mother that her pregnancy has become dangerous would not usually be referred to as a “wrongful birth” lawsuit.

I’m also not entirely sure I would oppose a “wrongful conception” claim. As someone with Jewish ancestry, for example, I’ve chosen to get screened for the Tay-Sachs gene to ensure that I do not end up having children with another Tay-Sachs carrier. Tay-Sachs is an excruciatingly painful and fatal disease, and I’m not sure I want to relieve doctors of the duty to take reasonable care in conducting genetic screenings to prevent Tay-Sachs. I’m sure some would argue that it’s hard to draw the line between screening for Tay-Sachs and screening for other disabilities, including the ones I have. But I am pretty sure that there is a line and that it’s possible to say with some certainty that Tay-Sachs screening is on the right side of it.

In any case, the Arizona bill is at the very least not a grand overreaching by pro-life conservatives. The relevant issues are tough ones that go far beyond women’s reproductive autonomy. Although I can imagine someone opposing this bill and still caring about disability rights, framing it as a clear-cut issue is essentially saying that disability rights don’t matter (something that’s unfortunately not all that uncommon).

ETA: if you want an example of how godawfully these suits play out in real life, check out this recent case in which parents won 2.9 million against a doctor for the wrongful birth of a child with Down’s Syndrome. By their own account these parents love their child and only sued in order to get money to provide for her; I don’t blame them. But there’s something creepy about a legal system that offers parents of children with disabilities tons of money to care for them, but only if they say sufficiently convincingly that they did not want those children at all and would have aborted them had they known they’d be disabled (and of course to say that sort of thing convincingly you often have to convince yourself). Parents who can’t establish that their child would never had been born but for a doctor’s negligent failure to detect the child’s disability are stuck either footing that entire $2.9 million bill for services (if they have it) or trying to milk it out of the public safety net (which is terrible).

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Filed under Children's Rights, Disabilities, Feminism, Health Care, The Law as Applied to Weird People & Situations

Arkansas’ Rape Shield Undermined

Here’s another example of what can go wrong when judges are asked to draw legal conclusions about situations and experiences they don’t understand: <a href=”http://www.feministlawprofessors.com/2011/12/only-exception-arkansas-case-reveals-danger-states-undifferentiated-rape-shield-exception/”>a defendant in a sexual assault trial was able to raise the fact that a teenaged girl had previously accused another person of abuse, as evidence of her “credibility.”</a> Continue reading

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The Psychology of Cover-Ups

Time Magazine has a great article on the psychology of cover-ups in the context of the recent events at Penn State (trigger warning for discussions of sexual abuse). Here is a choice snippet:

When the actions of a group are public and visible, insiders who behave in an unacceptable way — doing things that “contravene the norms of the group,” Levine says — may actually be punished by the group more harshly than an outsider would be for the same behavior. “It’s seen as a threat to the reputation of the group,” says Levine.

In contrast, when the workings of a group are secretive and hidden — like those of a major college football team, for instance, or a political party or the Catholic priesthood — the tendency is toward protecting the group’s reputation by covering up. Levine suggests that greater transparency in organizations promotes better behavior in these situations.

The article also makes some other important observations: that people are more intervene if they think that their intervention will be supported by the community around them and not met with hostility for “butting in” to issues that aren’t their business, and that people are less likely to intervene when the bad actor is a respected authority figure and the victim is a member of a marginalized group (for example, a “troubled teen”).

All of these observations are incredibly important not only to the recent Penn State case but also to the law of institutions in general. There’s an institutional bias in our society that is particularly evident in our disability services systems (see, e.g., Bruce Darling’s testimony for ADAPT (accessible PDF)), criminal justice systems, and child services systems. Although abuse and other human rights violations in these institutions are rampant (see any of the links above), many defenders of institutional services delivery will explain abuse as the work of a few “bad apples” and not a problem with the institutions themselves. These explanations have a lot of intuitive appeal to those who have never actually experienced institutionalization or tried to be a whistleblower themselves. People would like to think that they’d report abuse all the way up the institutional hierarchy and also to the police and the media, and that anyone who fails to do so must simply be a bad person who is not like them in any way.

However, as this post by Amanda Forest Vivian illustrates, it’s incredibly difficult even for highly moral individuals to report abuse in many institutional and “community” programs. Like football staff at Penn State, staff at institutional program (and at many “community” programs) tend to form cohesive groups and are invested in protecting their reputation. Because these programs operate more or less out of sight from the rest of the community, they tend to respond to misbehavior by covering it up rather than publicly punishing their own members, as Levine noted in the Time article. Moreover, lower-level staff members often justifiably fear that whistleblowing will not actually end the abuse but instead may lead to retaliation by other staff members and supervisors (especially when the perpetrator is higher-ranking). Like McQueary at Penn State, even when a low-ranking staff member is disturbed enough to report abuse to a supervisor, they frequently do not feel empowered to follow up and report to outside authorities if the supervisor fails to take action; to do so would likely be perceived as insubordination.

This is why social sciences research on the environmental influences on social policing is so important. Unless community members and policy members understand that certain environmental factors are perpetuating and enabling institutional abuse, they won’t be able to commit to eliminating those factors from our service delivery systems.

(h/t to the Situationist for linking to the Time article).

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Filed under Children's Rights, Crime and Punishment, Disabilities, Experimental Psychology, Health Care, Regulation, The Law as Applied to Weird People & Situations

Colorado Supreme Court: no attorney/client privilege for kids in neglect proceedings

The Colorado Supreme Court recently held that there was no attorney/client relationship between children who are the subjects of abuse and neglect proceedings and their court-appointed guardians ad litem (attorneys appointed to represent the child’s “best interests” in a court proceeding). (note: the link is to the court opinion, which includes details of abuse).

More discussion behind the cut:

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