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Drinking alcohol or using drugs during pregnancy could become a crime

Recently a neuroscientist discovered he was a psychopath. He was studying the brain scans of psychopaths, and intended to use some brain scans of family members and one of himself for the control group. Now one of the brain scans from the control group show clear signs of psychopathy, so he thought he must have misplaced it. He checked the reference number, and found out it was his own brain! This came as a total surprise to him, he never showed any signs of psychopathy, yet, he was very convinced that if his brain scan showed similarities with that of psychopaths, he must be a psychopath himself. Retrospectively his wife admitted that she thought he had some of the signs like lacking in empathy, and he found some famous murderers in his family. Instead of hiding this intimate fact about himself, he wrote a book about it, showing how amazing brain scans are. His book argued that brain scans can detect a psychopath like him, who never had any compelling symptoms of psychopathy.

I hardly see any critical analysis on this story. Many important questions go unanswered, such as: what defines someone as a psychopath? Is it a brain scan? Or should someone express some psychopathic behaviour? We clearly live in the age of the brain. Our scientific knowledge and our self-concept have taken a neuroscientific turn. Neuroscientific explanations of our behaviour and our lives have become increasingly popular.

Let us now look at addiction. There has clearly been a neuroscientific turn in the study of addiction, although it seems to take a different shape than in the study of psychopathy. Netherlands remarks that in the 80’s, 18 studies were published in medical and scientific journal on the neuroscience of addiction. In the 90’s this number rose to 129 studies. Between 2000 and 2009 however, this exploded to 1,117 studies. The neuromolecular gaze has become our common vision of life. Since the late 90’s, NIDA (the National Institute on Drug Abuse) has strongly emphasised that ‘addiction is a brain disease and it matters’. The neuroscience of addiction has revealed many mechanisms that make it very hard for substance dependent people to control their behaviour.

Although we live in the era of the brain, with regard to substance use, legislations seems to take an opposite turn. Recently some new legislation around substance dependency caught my eye. They seem to herald a new, more punitive approach to substance dependency and crime that seems oppose the underlying ideology of this recent neuroscientific turn.

  • In Australia, voluntary intoxication by drugs or alcohol has recently been removed as a mitigating factor for crimes. (see my earlier blog)
  • More surprising is the recent decision of the American state of Tennessee to pass a bill that allows women to be charged with criminal assault if they use illegal drugs during pregnancy and the foetus or newborn is considered harmed as a result.  Salient is the fact that Tennessee has no health care programs for pregnant substance dependent women. In a very sad case in America recently, a young woman faces murder charges after giving birth to a stillborn child. However the cause of death of the child is not at all clear. The umbilical cord of the baby was wrapped around her neck, but traces of cocaine in her blood were enough to make the mother face criminal charges.
  • Also in the UK drinking alcohol while pregnant could become a crime. In a landmark test case it will be argued that a six-year-old girl is the victim of a crime because she suffered brain damage when she was exposed to alcohol in the womb – a risk that her mother was aware of.
  • Australia’s Northern Territory also is considering legislation that could see pregnant women prosecuted or restrained if they drink dangerously.

These legislations do not seem to be well-informed by science in general or brain science specifically. Experts emphasise that a punitive approach won’t help, but rather that we need good health care programs for pregnant women with substance abuse problems. There are very few of these programs, and most programs don’t allow the pregnant woman to bring their older children. What is also lacking is good, clear, scientific and realistic information about substance use in pregnancy. Very little is known about how much alcohol will harm a foetus.
Do we live in the era of the brain, or is this better defined by sociologists Beck and Giddens as the ‘era of the choice biography’? According to Beck and Giddens we are increasingly held responsible for our own behaviours. Self-management has become our primary responsibility. All the pressure is on the individual to make his or her life a success, and the outcome of that life is the sole responsibility of the person.

We’re being torn apart between the era of the brain, which seems to define people by their brains, holding them less responsible, and the era of choice biography, which holds us extremely responsible for every possible outcome of our lives. Both are extremes, and although the neuroscientific gaze seems to need a counter movement, the way the current legislations are going are very worrying. The counter movement to the neuroscientific gaze seems not to be to hold people extremely responsible for everything they do, but to bring the brain back in the person, the body, and the social environment. Pregnant substance users need insights in the compulsive mechanisms behind their use, they need clear information about which substances are harmful in what amounts, and most important, they need good health care programs, adjusted to their needs. They should feel supported by institutions rather than being criminalised and stigmatised, which would only drive them away from them, resulting in more harm for mother and child.

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3 Comment on this post

  1. Great article! I’d not come across that self-diagnosed psychopath story before. I had me reaching for my battered copy of Wittgenstein and his remarks about the grammar of “thinking” not caring whether the inside of somebody’s head was made of sawdust or not. Is the grammar of psychopathology now coming to encompass brain, regardless of behaviour? I wonder if this guy’s book is just a brilliant example of Hacking’s ‘looping’ phenomenon.

    On the ‘era of the brain’ v the ‘era of choice’, you might be interested in the literature connected with Article 12 of the UN Convention on the Rights of Persons with Disabilities, which argues for ‘equality’ in how people with cognitive, intellectual and psychosocial disaiblities are treated by the law – including rejecting ‘guardianship’ and forced detention and treatment mechanisms, but also rejecting the insanity defense.

    1. The insanity defense is anyway rather separate from normal questions of mental illness, since it is based on lacking the capacity to recognize legal or moral course of action – there has to be a pretty big disconnect from reality for it to come into play.

      The real problem with the choice biography approach is that many events have multiple causes, and many such causes are not under anybody’s control or cannot be predicted efficiently. Taking cocaine during pregnancy might increase the probability of umbilical strangulation, but the actual reason it occured in the American case could still be random. Responsibility for small nudges of probability is problematic both ethically and legally.

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