Daily Archives: 4 August 2014

At the Intersection of Science and Human Rights

Inmates sew at a compulsory drug rehabilitation centre in Kunming.

A study by Xue et al, published in Science‘s 13 April 2012 issue, tested an experimental treatment for addiction on 66 former heroin users confined at two detention centers in Beijing.

According to Reuters:

Studies published by Science must have approval from an ethics board; the Chinese scientists say their study had such approval from Peking University.

BUT…

Again quoting Reuters:

Joseph Amon, director of the health and human rights division at Human Rights Watch, charged in [a] letter that in both [detention centers] addicts are ‘detained without due process’ and, he told Reuters, ‘held in a closed institution where monitoring of human rights abuses is not allowed.’ It is not clear from the study whether the addicts ‘were voluntary patients’ at the facilities or forcibly held, Amon said in his letter.

Mr. Amon, who is also an associate in the department of epidemiology at the Bloomberg School of Public Health at Johns Hopkins University and a lecturer in public and international affairs at Princeton University, is correct. Arrest for illegal drug use in China can lead to compulsory treatment (for a minimum of 2 years) at detention centers that function as de facto penal colonies where inmates are fed substandard food and denied basic medical care. The detentions are enforced by police, where the drug user has no opportunity to have a trial, face a judge, or raise an appeal. When a drug user leaves detention, the problems do not end there: their having been arrested for drug use is noted on their national identification card, making future employment difficult and leaving them vulnerable to frequent and humiliating searches by police.

This is not a rare phenomenon: according to a May 2009 report by the Joint United Nations Programme on HIV/AIDS (UNAIDS), half a million people are confined in drug detention centers in China at any given time. Most reports indicate that “treatment” during detention looks like punishment, exploitation, or merely lame, consisting of unpaid labor in chicken farms or shoe factories, or in the form of untested “therapies” like sandbox play, art, or boxing.

The study by Xue et al was conducted at Beijing Ankang and Tiantanghe Drug Rehabilitation Centers, but these are two of the facilities that have raised concerns about human rights violations over the past years.

‘The journal is not an investigative body,’ a spokeswoman for Science told Reuters. ‘On the basis of the authors’ response as well as (the editors’) own internal review, which included a science ethicist, the concerns about human rights seem to have been addressed, and the paper remains in good standing at this time.’

Daniel Wikler, a bioethicist at the Harvard School of Public Health in Boston, publicly commented:

Human Rights Watch has published valuable reports on inhumane treatment of drug addicts in many lands, including both China and the United States…But why brand the experiment by Xue et al as unethical?… Mr. Amon’s objections to the Xue et al study do not amount to much. He seems to be using the publication of the study as a means of drawing attention to wrongs in China’s treatment of addicts… it would be a shame if Mr. Amon’s letter tarnished the reputation of Chinese and U.S. scientists who seem to have conducted an innocuous (but valuable) experiment… [emphasis added]

Wikler is a frequent lecturer on ethics and health in the PRC and Hong Kong and holds honorary appointments at two Beijing research institutions, but he is no expert on the Chinese government’s attitude toward human rights and the rule of law. It seems at least equally plausible that Mr. Amon is using the wrongs in China’s treatment of addicts as a means of drawing attention to the unethical nature of the Xue et al experiment.

Inmates take an oath to resist drugs at a mandatory rehab center in Wuhan, China. (Stringer Shanghai/Reuters).

The authors of the study included 11 scientists at Peking University, led by Yan-Xue Xue, and two scientists, David Epstein and Yavin Shaham, at the National Institute on Drug Abuse (NIDA), which is part of the U.S. National Institutes of Health. The NIDA declined to allow the two U.S. scientists to speak about the study. And the two NIDA researchers did not sign the response, nor did three of the Beijing University scientists. So the response to Amon’s letter published by Science in their 3 August 2012 issue was actually signed by only eight authors, all from Peking University, out of the total of 13.

In the authors’ response, the scientists explain that their work used subjects who they say were “court mandated” — but as noted before, drug users are usually sent to detention centers without any formal trial, never seeing the inside of a courtroom, because drug abuse in China isn’t considered a criminal offense. They dismiss Amon’s charges by stating, “The human rights violations mentioned by Amon would have violated China’s new National Narcotics Control Law and Chinese law in general…Patients who work are always paid. This provision has been put into effect for many years, and recently has been written in the National Narcotics Control Law, which bans forced labor.” This sounds like something written by the Chinese Communist Party (CCP). Such naivete about China’s respect for fundamental freedoms and human rights is disturbing. Chinese laws hardly justify confidence in the humane treatment of their study subjects.

There is a well-known saying in China that makes despotic officials (such as those staffing detention centers) happy: “the heaven is high and the emperor, far away”; therefore even if the central government is good and has formulated good laws, regulations, rules, codes, policies, etc., a despotic official may still do whatever he wants. China is too large and the central government is too far away to be aware of their malpractices; while the God who always upholds justice, is too high away to meddle.

In institutional settings, where conformity and compliance are rewarded, people may not feel that they have a real choice. Prisoners are aware that behavior is continuously monitored and assessed, and that this can have very real consequences.

As a scientist, I am appalled at the glib way the AAAS addresses human rights concerns. With drug user detainees in such circumstances in China, is voluntary informed consent of participants really possible? Are researchers who conduct research in these facilities complicit in the ill-treatment of drug users at the hands of Chinese authorities? I believe so.

Although the NIDA didn’t provide direct funding for the study, it did contribute financial support for the paper by paying the salaries of Epstein and Shaham. In a statement released to the Associated Press on April 22, the NIDA explained that its scientists “advised on the experimental design of the preclinical studies, and were involved in the data analyses and in the preparation of the manuscript.” Science magazine’s guidelines, as well as the NIDA’s code of conduct and standard scientific protocol, state that all co-authors are responsible for the sum total of any article published in its pages. By allowing their names to be published on the study, Epstein and Shaham took responsibility for the entire contents of the report, including the ethics of the research. Since these two scientists were significant enough contributors to the research to warrant authorship, should the study have also been reviewed under the (rather stringent) U.S. regulations governing prisoner research? I believe so. If it had been, would it have passed muster? I believe not. For one thing, under American law, federally funded research on inmates must be approved by a panel that includes at least one prisoner who volunteers to serve (see Title 45 CFR Part 46.304(b)).

I strongly urge Science magazine to retract this study for not adhering to standards protective of human subjects; verification of compliance with human rights standards should be obtained from third-party sources, not affiliated in any way with the CCP (which includes Peking University), as a matter of policy whenever considering publication of such studies from China.

References:

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August 4, 2010 (a Wednesday)

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.

— John Adams, “Argument in Defense of the Soldiers in the Boston Massacre Trials,” December 1770

Zen stones

Scales of Justice

On this date, U.S. District Judge Vaughn R. Walker ruled in Perry v. Schwarzenegger that Proposition 8, the amendment to the California Constitution that banned same-sex civil marriage, was in violation of the U.S. Constitution. The ruling put Walker, a Republican, at the forefront of the gay marriage debate and marked the latest in a long line of high-profile legal decisions for the longtime federal judge. He was appointed by Ronald Reagan in 1987, but his nomination was held up for two years in part because of opposition from gay rights activists. (As a lawyer, he had helped the U.S. Olympic Committee sue a gay ex-Olympian who had created the Gay Olympics, an athletic competition.)

Ironically, most major media organizations, from the New York Times and ABC News to the Washington Post and National Public Radio, have lately reported on Judge Walker as gay or had commentators saying it. In fact, he has never confirmed to anyone in the media what sexual orientation he may be. As Michelangelo Signorile recently pointed out in the Huffington Post:

[T]he outrageous hypocrisy here on the part of the corporate media — and one that shows how they are manipulated by the right — is the fact that, even with proof and evidence, news organizations refuse to report on the secretly gay sexual orientation of conservative, anti-gay politicians and public figures when the argument for their exposure is made from the left. [emphasis added]

Lawyer Brian Levine, an attorney who practices civil litigation in San Francisco, wrote an analysis of the Perry ruling in which he said:

Most of the decision (the first 109 pages) is the “factual findings.” This is crucial, and here’s why. On appeal, Judge Walker’s conclusions of law are basically irrelevant. Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference. On the other hand, only a trial court can make factual findings. A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony. Judge Walker knows this. He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law — unlike the facts — ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court.

So, the trial court’s findings of fact and rulings on credibility are here to stay, no matter whether Scalia, Thomas, Roberts, or Alito approve of same-sex marriage or not. Lawyer Paul Hogarth, an attorney at the Tenderloin Housing Clinic in San Francisco, identified several important findings of fact, including:

[Fact #] 27. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.

(. . .)

[Fact #] 32. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependents. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.

Homosexual couples and heterosexual couples are equal.

These two factual findings together lead to the logical conclusion that restricting marriage to heterosexual couples is an archaic concept that relies on a presumption that men and women are different, and somehow both indispensable to form a marriage. The times are changing, and justices in the Supreme Court of the United States (SCOTUS) cannot simply “stick their heads in the sand.” Three more factual findings are also noteworthy:

[Fact #] 58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

(. . .)

[Fact #] 67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.

(. . .)

[Fact #] 79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

These three factual findings together strongly suggest that Prop 8 was motivated by an irrational fear (animus) toward gays and lesbians. In ruling on Perry, Walker stated:

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. . . .

At trial, proponents’ counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. . . . The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual. . . .

The testimony of George Chauncey places the Protect Marriage campaign advertisements in historical context as echoing messages from previous campaigns to enact legal measures to disadvantage gays and lesbians. The Protect Marriage campaign advertisements ensured California voters had these previous fear-inducing messages in mind. The evidence at trial shows those fears to be completely unfounded.

Judge Vaughn R. Walker

Walker correctly recognized that the rhetoric of “defending marriage”, which proponents have always been unable to explain satisfactorily in my view, actually amounts to simply saying that heterosexual couples are morally better than homosexual couples. Note that both Judge Walker in his ruling and David Fleischer in The Prop 8 Report identified the same campaign strategy used by Prop 8 proponents as responsible for the passage of the initiative. Fleischer observed:

Recycling a lie as old as Anita Bryant’s “Save Our Children” campaign in 1977, the anti-gay Yes on 8 campaign whipped up fears about kids to move voters to its side. . . . Yes on 8’s fear-mongering about children was particularly effective because No on 8 waited sixteen of the thirty days remaining until the election was over to directly respond.

Judge Walker’s ruling concluded:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. . . . Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Supporters of same-sex marriage march from San Francisco's Castro neighborhood to celebrate the ruling on Prop 8.

After the ruling was announced, a lawyer on the defense team, Jim Campbell, repeated their familiar but nevertheless misleading refrain:

In America, we should uphold and respect the right of [the] people to make policy changes through the democratic process, especially changes that do nothing more than uphold the definition of marriage that has existed since the founding of this country and beyond.

As a lawyer, Campbell should know better — that the will of the majority is not unlimited. A minority who must depend on the benevolence of those outside of its community is always subject to popular attacks. And as the framers envisioned, the role of the judiciary is to act as “counter-majority” in order to protect minorities from the tyranny of the majority. I remind Campbell and the rest of his defense team of what Thomas Jefferson, the third President of the United States, the author of the Declaration of Independence, and one of the most influential Founding Fathers, said in his first Inaugural Address (1801):

All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.

Likewise, John Stuart Mill wrote in 1859 in his famous essay, On Liberty:

The “people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. [emphasis in original]

This idea was embedded in a 1943 SCOTUS decision, West Virginia State Board of Education v Barnette (319 US 624). Judge Walker quoted in Perry from the opinion written by Justice Robert Jackson 67 years ago:

One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.

In the case of West Virginia, the SCOTUS did a rare reversal of itself, acknowledging a mistake it had made in a Jehovah’s Witness case three years earlier. What happened between 1940 and 1943 to Jehovah’s Witnesses gave Judge Walker in 2010 his most potent precedent to show that voter will does not trump the protection of minority rights. Lillian Gobitas was among thousands of Jehovah’s Witness children expelled from public school for not saluting the flag. This religious sect believes that the flag salute is an idolatrous act of worship of a man-made symbol, which is forbidden by their God. Her case, Minersville School District v Gobitis (310 US 586), went to the SCOTUS and a fundamental question was asked: Should a free society force its citizens to engage in patriotic ritual? In 1940, the court answered “Yes.” National unity was at stake. It also said the threat of being expelled from school was a good way to achieve compliance. If anyone felt put out, the court said, he could seek remedy at the ballot box by asking the majority to see it his way.

At the height of World War II, when the U.S. was fighting nationalism in Germany, where Jehovah’s Witnesses were being sent to concentration camps for refusing to do the Nazi salute, the SCOTUS revisited the case. When Justice Jackson got the chance, he tackled the ballot box notion head-on. He wrote that the “very purpose” of the Bill of Rights was to protect some issues from the volatility of politics and “place them beyond the reach of majorities.”

Of course, Walker’s ruling is not the end of Perry v Schwarzenegger; both sides are preparing for an appeal. The appeal would go first to the U.S. Court of Appeals for the Ninth Circuit, then to the SCOTUS if the high court justices agree to review it. And, Prop 8 proponents may ultimately prevail, especially in the SCOTUS as presently constituted. But regardless of the final outcome, even if Prop 8 is ultimately upheld, Judge Walker’s ruling has broken ground in American jurisprudence and I believe his reasoning will someday be affirmed by the nation’s highest court.