Category Archives: LGBT Issues

The Law of Excuses

I’ve been thinking a lot recently about a particular legal double-bind faced by people with disabilities that affect behavior and, to a certain extent, people in commonly misunderstood situations that affect people’s emotional state (e.g., poverty, abuse, and certain crises of identity). When members of these groups find themselves facing criminal, financial, or disciplinary sanctions for behavior that they feel was related to their disability or situation-induced emotional state, it may be in their interest to seek leniency in light of their disability or situation. On the other hand, because such arguments for leniency are often interpreted by the broader society as confirming stereotypes that members of these groups are unpredictable, incapable of making sound decisions, and even dangerous. These stereotypes, in turn, can perpetuate the group’s exclusion from employment, segregation from the community, and even deprivation of access to their own children.

I actually started thinking about this in the context of the trial of Pfc. Manning, who leaked classified State Department memos to Wikileaks. Defense attorneys cited Manning’s growing discomfort with being perceived as male – discomfort that had been expressed to numerous people, including at least one superior officer – as evidence that Manning was unstable and thus should not have continued to have access to classified materials. (Washington Blade). Understandably, a representative for the National Center for Transgender Equality objected to the suggestion that people in the process of coming out as transgender are inherently unstable and shouldn’t have access to classified materials, arguing that Manning’s gender identity was “totally unrelated” to the leak to Wikileaks.

Here’s another (less recent) example involving autism, since I seem to talk about nothing but autism lately: Reginald Latson, a 17-year-old boy with diagnoses of Asperger’s, ADHD, and Intermittent Explosive Disorder was convicted of assault on a police officer when he fought back (and caused pretty serious injuries) against a police officer who tried to arrest him. His attorneys pled insanity, arguing that the boy’s disabilities, combined with the stress of being forcibly grabbed by the officers (for, as far as I can tell, just being an African-American guy sitting around doing nothing), caused an “irresistible impulse” to fight back (FYI, this kid’s state, Virginia, is one of the few states that allow an insanity plea to be based on the existence of an irresistible impulse. Other states usually require much more severe cognitive impairment such that the defendant doesn’t understand the wrongfulness of their actions).

ThAutcast took issue with both the Washington Post’s reporting on the trial (which implied that violent, explosive behavior was very common among Autistic individuals and which didn’t include an interview with anyone who was actually Autistic), with the suggestion that it was autism that made the defendant attack a police officer, rather than, say, Intermittent Explosive Disorder.

Now, most likely, the reason why they didn’t focus on Intermittent Explosive Disorder either in the defense or in the Washington Post article is because, most likely, you can’t actually base an insanity defense on Intermittent Explosive Disorder. IED, like Oppositional-Defiant Disorder and Antisocial Personality Disorder, is one of those DSM-IV diagnoses that are defined exclusively in terms of the person’s propensity to antisocial behavior (yes, I’m citing Wikipedia, but you can also check the DSM-IV if you have access to it), without any particular regard to the person’s capacity to inhibit it or the underlying root of the behavior (other than that it can’t be due to other disorders like ADHD or Alzheimer’s). To courts, an insanity defense based on IED sounds a lot like saying “I’m not responsible for going off on that cop because I go off on people all the time.”

ADHD and Autism, on the other hand, are particularly fruitful sources of an “irresistible impulse” defense, because both are known to affect individuals’ capacity for emotional regulation in at least some situations, and emotional regulation is (in most people) a key component of self-control. It’s something that I and many disability advocates don’t like to acknowledge because we don’t want to contribute to people’s unreasonable fears, but it’s something that can’t be totally ignored. To do so would be a disservice to people with disabilities who are more likely to come into contact with the criminal justice system – for example, African-American teenaged boys like Latson – and who may not be able to meet the expectations police officers have for how a “non-criminal” would act when confronted by the police (i.e. – verbally and physically compliant even when subjected to rough physical force by the police officer). As ThAutcast has suggested, it’s perfectly plausible that the defendant in this case lashed out, not because his Asperger’s made him particularly aggressive, but because his Asperger’s made him totally panic when he was unexpectedly confronted and pushed around by a police officer.

Going back to Manning, I wonder if anyone would bat an eye if, instead of being transgender, Manning had been in the process of losing a job or becoming estranged from family and had cited these as sources of emotional instability. Both of these are pretty distressing in and of themselves, and, judging from conversations that Manning had with the person who eventually tipped off the police, Manning potentially faced both of these as consequences of coming out as transgender. Some people might say that potential job loss and family issues are not good excuses for Manning’s behavior, but few would fear that such a defense was maligning all people who faced job loss or estrangement from family.

Perhaps such attempts to “normalize” requests for leniency, by phrasing them as similar to more commonly understood phenomena such as feeling threatened or feeling overwhelmed by a difficult life situation, are the best way to reconcile the need for leniency and the need for acceptance.

For example, instead of forcing people with mental disabilities to use the “insanity defense” when they act out of a perceived need for self-defense, we actually gave them access to a modified “self-defense” plea that required only that they sincerely feel that they are in danger, and that this feeling be reasonable for a person with that disability? Similarly, what if, instead of focusing on Manning’s gender identity itself, defense attorneys had focused on the consequences that Manning anticipated as a result of coming out as transgender, many of which would, in and of themselves, cause most people serious distress? Would these arguments still risk encouraging stereotypes that members of these groups are inherently unpredictable or unstable?

These are all just initial thoughts; this issue probably deserves a much longer post. But it’s an interesting question to me and I wanted to bounce it off of people.

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Filed under Crime and Punishment, Disabilities, LGBT Issues, Race, The Law as Applied to Weird People & Situations, Uncategorized

Prioirites and Proposition 8

On November 4th, voters in California approved Proposition 8, an amendment to the state Constitution that bans same-sex marriage. Since then, more has been written about the Proposition than in the months before it passed. Before the election, political writers more or less assumed that their readers had made up their minds about same-sex marriage, so there was little to write except perhaps to encourage their readership to donate campaign funds to either the “Yes on 8” campaign or the “No on 8” campaign. People were also distracted by the upcoming presidential elections, which was more complex and was seen as more important.

Now that Proposition 8 has passed, however, it’s become interesting. Writers still appear relatively uninterested in arguing over whether the new amendment is a good addition to California’s constitution, as readers still aren’t likely to be interested in changing their opinions about the issue. The question of why the proposition passed, however, is much more interesting, if only because everybody seems to have a different opinion. People have blamed the mismanagement of the “No” campaign, the Church of Jesus Christ of Latter-Day Saints, which funded much of the “Yes” campaign and may even have planned the campaign for several years. Some blamed homophobia in the African-American community, while others blamed the racial bias of the white gay community and the Proposition 8 campaign. Some have also argued that support for same-sex marriage is itself racially biased, since marriage is not a priority for gay, lesbian and bisexual people of color. Rather than focus on marriage, the argument goes, the queer community should focus on more pressing issues such as health care, HIV prevention, and economic justice.

This is not the first time that people have argued that same sex marriage is primarily a white issue. Interestingly, though, while earlier articles such as this one from 2004 had dealt with efforts to gain recognition for same sex marriage or efforts to block legislation that preemptively outlawed same sex marriage, Proposition 8 took away marriage rights that people already enjoyed. Should this fact alone change how we judge the priorities of people who campaigned against Proposition 8?

At first glance, campaigning against a constitutional amendment banning same sex marriage may seem relatively equivalent to campaigning for a referendum approving same sex marriage. Because California’s constitution may be amended by a simple majority of voters, it would only take a couple more votes to pass a referendum approving gay marriage than it would have taken to block Proposition 8.

However, taking away a previously held right is widely perceived as different from granting a new one. It is difficult for many to swallow the idea of taking away the rights of minorities through a simple majority vote, as Kermit Roosevelt of UPenn Law has pointed out. But if same-sex marriage advocates in California had put same-sex marriage on a statewide referendum three years ago, and it had lost by the same margin by which Proposition 8 has passed, few would be arguing that it should take a supermajority to defeat the referendum because the referendum concerned minorities’ rights.

The loss of rights is also perceived differently by the individuals whose rights are at stake. As Judith Warner writes in her blog for the New York Times:

It’s easy, if you’re straight, to file away the gay marriage issue in a little folder in your mind, to render it, essentially, inessential. It can fall into the category of “bones you throw the religious right because things could be so much worse.” Or “things that would be great in a perfect world.” Or “what’s the big deal?” because you don’t actually get what a big deal it is to be able to get married when you’ve never had to consider the alternative.

Many of the gay men and lesbians I spoke or e-mailed with this week didn’t fully realize what a big deal it was to be married either. Until they were.

“I don’t think I had realized until then what it felt like to be equal,” Swanson told me. “Paul and I went on a honeymoon in Santa Fe. People would ask and we’d say we’re on our honeymoon; we just got married. We could say it not because it was a political statement but because it was a fact.

“I don’t feel equal anymore. It was a great feeling, while it lasted.”

Because humans are fundamentally loss-averse: we tend not to feel as strongly about gaining new rights or privileges as we do about losing ones that we had, even for a short period of time. Even some gays and lesbians in California who had no plans to marry may not have felt as strongly about Proposition 8 as those who had already gotten married or engaged. Loss aversion explains why opponents of Proposition 8 donated millions of dollars more to the No on 8 campaign than it most likely cost the attorneys for the plaintiffs in the California Supreme Court decision to pursue their legal case. Conversely, it explains why proponents of Proposition 8, even if they had been planning such an effort for years, put the proposition on the ballot only after the California Supreme Court issued its decision: opponents of same-sex marriage were motivated to canvass donate money to the campaign by their fear of “losing” the traditional family and various religious freedoms.

This loss aversion may also explain some of the disconnect between those who felt strongly about Proposition 8 and those who saw the issue as a pointless diversion from more pressing issues. When evaluated side by side, issues such as poverty, lack of health care, HIV, or housing may overshadow the effort to have the state recognize same-sex couples as spouses and not merely domestic partners. As Jasmyne Cannick, the author of the article I linked above, asked, “Does someone who is homeless or suffering from HIV but has no healthcare, or newly out of prison and unemployed, really benefit from the right to marry someone of the same sex?” But even those who consider health care, economic and justice, and corrections reform higher priorities than marriage in the grand scheme of things may expend more effort to preserve a right that they have – especially one that is relevant to their lives – than to change the status quo.

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