The Right to Bodily Integrity and the Rehabilitation of Offenders Through Medical Interventions: A Reply to Thomas Dougl
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ORIGINAL PAPER
The Right to Bodily Integrity and the Rehabilitation of Offenders Through Medical Interventions: A Reply to Thomas Douglas Elizabeth Shaw
Received: 12 April 2016 / Accepted: 24 August 2016 # The Author(s) 2016. This article is published with open access at Springerlink.com
Abstract Medical interventions such as methadone treatment for drug addicts or Bchemical castration^ for sex offenders have been used in several jurisdictions alongside or as an alternative to traditional punishments, such as incarceration. As our understanding of the biological basis for human behaviour develops, our criminal justice system may make increasing use of such medical techniques and may become less reliant on incarceration. Academic debate on this topic has largely focused on whether offenders can validly consent to medical interventions, given the coercive environment of the criminal justice system. Both sides in this debate share the assumption that administering medical interventions to offenders without their valid consent would be unethical. Recently, Thomas Douglas has mounted a formidable challenge to this Bconsent requirement^. Essentially, his argument rests on a comparison between prison and medical interventions. Douglas asks: if the state is entitled to impose a prison sentence on a criminal without the criminal’s consent, why is consent required for the imposition of a medical intervention? The most obvious way of defending the consent requirement against Douglas’s challenge appeals to the fact that incarceration merely interferes with the right to free movement, but medical interventions interfere with the right to bodily integrity. This argument rests on what Douglas calls the Brobustness claim^—the claim that the right to bodily integrity is more robust than the right to
E. Shaw (*) School of Law, University of Aberdeen, Aberdeen, UK e-mail: [email protected]
freedom of movement. In other words, the right to freedom of movement loses its protective force in a wider range of circumstances than the right to bodily integrity. Douglas’s article seeks to undermine the robustness claim, by arguing that neither case-based intuitions, nor theoretical considerations support this claim. In this article, I will attempt to raise some doubts about Douglas’s challenge to the consent requirement and the robustness claim. Keywords Moral enhancement . Neuroenhancement . Consent . Rehabilitation . Bodily integrity . Criminal justice . Human rights
Introduction Medical interventions such as methadone treatment for drug addicts or Bchemical castration^ for sex offenders have been used in several jurisdictions alongside or as an alternative to traditional punishments, such as incarceration. As our understanding of the biological basis for human behaviour develops, our criminal justice system may make increasing use of such medical techniques and may become less reliant on incarceration. This topic has great practical and current significance across jurisdictions. The Lord Justice Clerk, Lord Carloway, has recently stat
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