Nonconsensual Neurointerventions and Expressed Disrespect: a Dilemma

Written by Gabriel De Marco and Tom Douglas

This essay is based on a co-authored paper recently published in Criminal Law and Philosophy

Neurointerventions—interventions that modify brain states—are sometimes imposed on criminal offenders for the purposes of diminishing the risk that they will re-offend or, more generally, of facilitating their rehabilitation. A commonly discussed example is the use of hormonal agents to reduce the sex drive of certain sexual offenders. Some suggest that in the future, we will have a wider range of such interventions at our disposal, possibly including, for instance, treatments to reduce aggression or impulsivity, or treatment to enhance capacities for empathy or sympathy.

In a recent paper, we consider an objection to the imposition of such neurointerventions without the offender’s prior agreement. Some object to these ‘nonconsensual neurointerventions’ (or ‘NNs’) by claiming that they express disrespect for the offender. This, according to the objection, gives us reason not to implement them. On a strong version of the objection, NNs are invariably wrong because they always express disrespect.

In the most developed version of this objection, Elizabeth Shaw argues that NNs express disrespect by expressing a negative misrepresentation of the offender. We begin by addressing a strong version of this objection, on which NNs are invariably wrong because they always express disrespect in this way.

What exactly is the message that the NN is supposed to express? Shaw doesn’t make this 100% clear, but at some points she seems to suggest that it is a message about the offender’s moral status. For instance, NN’s might express the message that it is morally OK to interfere with offenders’ bodies. This message would be disrespectful if, in fact, interfering with offenders’ bodies is not OK.

If this were the message, then the expressivist objection would face a problem of circularity. Why is the message disrespectful? Because it states that the action is morally OK when in fact, it is not. Why is the action not morally OK? Because it expresses a disrespectful message.

To avoid this problem, we instead construe the message differently. We suppose that NNs might send the message that, setting aside the messages that they express, interfering with an offender’s body is morally OK. For brevity, we will use the term “OK*” as shorthand for this. That is, when we say that an action is OK*, we mean to say that, taking all moral considerations into account except for those concerning expressed disrespect, the action is morally OK.

Suppose, then, that the message expressed by the implementation of an NN is:

It is OK* to interfere with an offender’s body.

But we argue that if this is the message expressed, the Shaw will face a dilemma. We begin by noting that the message is either true, or it is false.

Suppose, first, that the message is true in some case–it is OK* to interfere with the offender’s body. In this case, the message gives an adequate representation of the offender’s moral status; it does not misrepresent his status, and so is not, on Shaw’s view, disrespectful. Thus, if the message expressed by the NN is true, then the NN does not express disrespect.

Suppose instead, then, that the message is false: it is not, in fact, OK* to interfere with the offender’s body.

In that case, expressing the claim that it is OK* to interfere with the offender’s body will be disrespectful. But now Shaw faces a different problem. In order to convince someone that the message is disrespectful, Shaw needs to argue that the message is false. That is, she needs to argue that it is not OK* to interfere with the offender’s body. But if it is not OK* to interfere with the offender’s body–that is, if it is not OK even leaving aside the possible expression of disrespectful messages–then the expressivist objection becomes redundant: the purpose of the objection–to show that NNs are not morally OK–has already been achieved.

While we do not have the space to discuss them here, in our paper we also consider, and respond to, different potential responses to this dilemma.

Having responded to these objections, we then show how the dilemma we present applies to weaker versions of the objection, according to which expressed disrespect only sometimes makes a difference to whether NNs are morally OK.

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