Let’s talk about rapist doctors.

I’m not talking about doctors who take advantage of anesthetized patients. That’s a problem law enforcement can deal with. What I’m talking about is someone like Dr. Michael Parsa, who works at the University Medical Center of El Paso, and who essentially raped an unidentified woman for the police, according to a lawsuit filed by the ACLU:

39. After the X-ray, Ms. Doe was again handcuffed to the examination table. CBP agents Portillo and Herrera and Medical Center personnel were present in the room. Defendants left the door to the examining room open, and Ms. Doe could see hospital personnel at the nurses’ station in the hallway. She was angry that CBP had not released her and scared about what would happen next.

40. Defendant Parsa entered the examination room and barked an order that Ms. Doe spread her legs. She complied.

41. Ms. Doe was mortified. Defendants did not even have the decency to close the door to the examining room so that Ms. Doe would not also be subjected to being observed by passersby as she endured a forced gynecological exam.

42. Defendant Parsa then conducted a series of examinations. While agents Portillo and Herrera and other Medical Center staff watched, he inserted a speculum into Ms. Doe’s vagina and observed the interior cavity. According to medical records, Defendant Parsa did not see any foreign objects or evidence of internal drug smuggling.

43. Defendant Parsa also stuck his fingers into Ms. Doe’s vagina while palpitating her abdomen. This bimanual cavity search was negative: According to medical records, Defendant Parsa did not feel any foreign objects or evidence of internal drug smuggling.

44. Defendant Parsa also conducted a rectal examination: he inserted his fingers into Ms. Doe’s rectum and probed the orifice for foreign bodies. According to medical records, Defendant Parsa did not feel any or find evidence of internal drug smuggling.

45. While her rectum was being probed, agents Portillo and Herrera and Medical Center staff watched. Ms. Doe felt that she was being treated less than human, like an animal.

The police didn’t even have a warrant, which means that if these allegations are true, then a bunch of people brought a woman into the University Medical Center of El Paso against her will, and just because they asked him to, Dr. Michael Parsa inserted his fingers and a foreign object into her vagina and rectum against her will. That sounds like rape to me.

When something similar happened to David Eckert at the Gila Regional Medical Center last January — multiple medical explorations of his rectum — the police had at least gone through the trouble of obtaining a search warrant. I’m not convinced that getting an okay from a judge for this kind of violation makes it any better, but in theory the warrant compelled David Eckert to comply with the probings.

It did not, however, compel the doctors to perform the probings. I’m not a lawyer, so don’t use this as legal advice, but until the doctors performed their examinations, they were completely uninvolved with the investigation, and therefore beyond the judge’s jurisdiction. Judges can compel people to produce evidence and reveal knowledge that they already have, but they don’t generally have the authority to order random third parties to obtain evidence and discover knowledge. They can’t, for example, order random photographers to go take pictures of a crime scene for them. David Eckert may not have had a choice, but the doctors did, and I think they chose unethically.

As I pointed out a few years ago, when the subject of forced catheterization came up in connection with a DUI testing incident, the general ethical requirement is that medical procedures should only be done with the informed consent of the patient, and for the benefit of the patient. Consent has its exceptions — in cases where the patient is incompetent to consent, due to mental defect, unconsciousness, or minor status, certain family members can give consent, and there have been cases where a judge overrode a guardian’s refusal to give consent (e.g. had religious objections) to a lifesaving medical procedure, but in each of these cases the treatments were still done for the patient’s benefit.

That’s not what happened here. The examinations performed in all of these cases were not done in any way to benefit the patient, but to benefit the government’s war on drugs. I think the only ethical response to such requests is to refuse to do them.

There’s plenty of precedent for physicians refusing for ethical reasons to do things which they government wants them to do, the most prominent example being the refusal by nearly all American physicians to perform court-ordered executions. And although I can’t find any AMA ethics rules that specifically address forensic examinations conducted against the patient’s will, the AMA rules about participating in court-ordered medical treatments seem sort-of relevant:

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control.

So, for example, doctors might use drugs to calm a prisoner with a mental disorder that causes extreme agitation and self-harm, but they shouldn’t simply drug prisoners to make them more manageable for the benefit of the prison staff. Since the examinations conducted in these incidents have no clear medical purpose, they seem a lot more like the latter than the former.

I should note that I’m not saying that Dr. Parsa (or any of these other genital-handling doctors) is a rapist in the usual sense of the word: There’s no indication they did any of these things for their own enjoyment, and they certainly weren’t charged with the crime of rape. My guess is that they were all just having another busy day in the emergency department when someone in charge said “Go help those officers,” and so they did their thing and moved on to the next patient without thinking it through. But here are a few things they should probably think about next time some cops come in wanting someone examined:

Dr. Parsa and the others may not have been charged with rape, but I’ll bet that at least a few of them are rapists in the legal sense of the word. The key to most rape laws is the consent of the victim, not the motivation of the rapist. I’m pretty sure prosecutors never have to prove that the rapist enjoyed it.

And while you might think a doctor would be immune from prosecution because they were working with the police or participating in a court-ordered exam, the thing is that many states’ criminal statutes are notoriously poor at exempting law enforcement actions. For example, in states with the death penalty, the legal definition of murder might not include an exemption for legal executions. My guess is that the rape statutes in many states are no more thoughtfully written and do not include exemptions for law enforcement cavity searches, because no prosecutor would ever charge that. This does mean, however, that any doctor who participates in such searches is probably at the mercy of the District Attorney — and any succeeding District Attorneys — until the statute of limitations runs out.

Or perhaps more to the point, do you really want to do anything to an unconsenting human being that might or might not be rape only because a judge or a cop told you it would be okay? Shouldn’t you make that decision for yourself? And shouldn’t the right answer be obvious?

The title of this post is a lie. No means no. There is no medical exception.

I’ve been staying away from the Lance Armstrong mess because I don’t follow sports and I haven’t been paying attention to what’s been happening. However, a few days ago at Ethics Alarms, Jack Marshall tore into a Washington Post op-ed in which Professor Braden Allenby argued that the sporting world should allow performance enhancing drugs. Jack thinks he’s badly wrong, and gives a lengthy explanation of why. I don’t think I have to know too many details to explain why I think both of them aren’t thinking clearly.

To start with, it doesn’t help Allenby’s case that he seems to be defending Armstrong:

In the past month, cyclist Lance Armstrong has been stripped of his seven Tour de France titles. His commercial sponsors, including Nike, have fled. He has resigned as chairman of Livestrong, the anti-cancer charity he founded. Why? Because the U.S. Anti-Doping Agency and the International Cycling Union say he artificially enhanced his performance in ways not approved by his sport and helped others on his team do the same.

This may seem like justice, but that’s an illusion.

Allenby is conflating two arguments here. The first is his main argument that cycling and other sports should allow performance enhancing drugs. The second is that Lance Armstrong was right to use performance enhancing drugs even though they are not allowed. You can agree with the first argument and still find fault with the second. This may seem to contradict my arguments elsewhere that some rules and laws are so outrageously wrong that that it’s ethical to disobey them, but I don’t think that applies here because sports rules are different from other kinds of rules.

The key thing to remember when discussing ethical issues in sports (and games in general) is that most of the rules are, by definition, arbitrary. Basketball players have to dribble the ball when taking steps, football players can only throw a forward pass from certain positions on the field, and neither is allowed to use a bicycle to get around the playing area. These rules have no intrinsic moral or ethical basis. They’re just the rules of the game.

(Safety rules are an exception. I’m assuming for purposes of argument that we’re only talking about relatively safe performance enhancing drugs.)

This has a couple of consequences. If there’s no ethical dimension to the rules, there’s no ethical argument against changing the rules. Again, they’re just the arbitrary rules of the game. You might think this cuts in Lance Armstrong’s favor, but it doesn’t, because if there’s no ethical dimension to the rules, there’s no ethical argument for breaking them.

As far as I’m concerned, Lance Armstrong is free to ride his bicycle on whatever (non-dangerous-to-others) drugs he wants. But when he enters competitions, he promises to obey the rules of the competition, and there is an ethical dimension to keeping your promises. It is precisely because the rules are arbitrary that there’s no appeal to higher principles when disobeying them.

But that doesn’t mean there isn’t an argument for changing them, and this is where Jack goes wrong when he discusses the flaws he sees in Allenby’s argument.

Allenby’s argument would extend to allowing students to plagiarize material on the web and present it as their own as well. The theory that the “status quo” must be accepted as the ethical starting point is systemically suicidal as well as philosophically invalid.

Jack is comparing apples and oranges here. School is not a sporting competition: It has rules for reasons that matter. That’s not the case with most sporting rules.

This is also the first appearance of Allenby’s bias. His field is engineering and technology; naturally he believes that more is better. He and his colleagues are the people who develop the technologies athletes use to cheat. Of course he thinks they should be allowed to do it openly and legally, and the more the better.

Which doesn’t mean he’s wrong. And calling this a “bias” is as silly as saying that musicians are biased in favor of music.

Allenby really thinks that sports lovers care most about how well athletes can perform. Undoubtedly, some would be happy to watch freaks and robots compete, but the love of sports is fueled in most fans with admiration for human beings competing using their own abilities, perfected to the level that they can perfect them, without artificial, not to mention surreptitious, enhancements.

That’s a fair argument, but it’s a non-ethical consideration. It’s an argument about the design of sporting competitions.

It’s not even a very good argument about the design of sporting competitions. Seemingly outrageous changes to the rules of a sport usually just result in other sports. Allowing cyclists to put small gasoline engines on their bikes would be a perversion of the values of cycling, but it’s the definition of motorcycle racing. Heck, if fans want to see athletes “competing using the own abilities,” why are they allowed to ride bicycles? Wouldn’t it be more natural if they were on foot?

Again, the rules are arbitrary. Fans may not want cycling to change in certain ways, but that doesn’t make the changes unethical. Cycling with performance enhancing drugs may not be cycling as we know it — or want it to be — but that doesn’t make it unethical. That just makes it a different sport.

“Why not add drugs and other technologies to the list of legal enhancements, especially when most of us are enhancing our workplace concentration with a morning coffee or energy shot?”

Yes, this educator, scholar and lawyer really makes this fatuous and hackneyed argument. To begin with, it’s a non sequitur. How does the widespread use of coffee argue for the legalization of human growth hormone? At best, it is a poor excuse for allowing amphetamines in sports, so athletes can be alert too.

I don’t know how Jack doesn’t get this. It’s an analogy. Both caffeine and human growth hormones enhance the performance of the people who take them. Why is one legal and the other not? Again, the rules are arbitrary.

The real foolishness of this argument is that most people’s performance in the workplace isn’t a competition in which fairness [and] the appearance of integrity is paramount.

And integrity wouldn’t be an issue in the competition if everybody was allowed to use performance-enhancing drugs.

One of the things Jack accuses Allenby of (with some justification, I think) is using a “False definition of the opposing position.” Unfortunately, Jack mischaracterizes Allenby’s position in the next section:

“My anecdotal class surveys show that students have significant skepticism about the reported side effects of such treatments and drugs, as well as perceptions of bias among regulators against enhancement. As a result of such attitudes, there’s a tendency to play down the risks of some technologies. Call it the “Reefer Madness” response — ignoring real risks because you think the danger is exaggerated. This is ignorance born of prohibition.”

I give the professor kudos for a truly original crack-pot justification. Make something legal so you can prove that it’s more dangerous than we already think it is.

Allenby is arguing here that sports regulatory bodies have fallen behind the times when it comes to performance enhancing drugs. Like it or not, athletes are using them, so the responsible thing to do is to make sure they have the information to use them responsiby. It’s kind of like teaching children about safe sex: Would you rather they got advice from experts or tried to figure it out themselves?

I should emphasize that Jack Marshall’s post does have some very good points. In particular, he hits hard on the importance of integrity in sports, a point that Allenby misses by defending Lance Armstrong. The rules of any given sport may be arbitrary, but they are also the definition of the sport. Armstrong may have been very fast on a bicycle, but if he was breaking the rules, he wasn’t playing the sport he was supposed to be playing. It only makes sense that he shouldn’t win awards for a sport that he’s not even playing.

But as I said, the issue of Armstrong’s obedience to the rules is a different matter from whether the rules are wise. I know very little about competitive cycling, but Jack paints a picture of sport that is riddled with cheating to the point where it’s likely that anyone who wins is probably cheating, and anyone who plays with fairness and integrity is probably going to lose.

Those are terrible values. It’s the worst possible situation. The people in charge have created an environment where only the lawless can thrive. As bad as Armstrong was for the sport, the people who created this situation are far worse, because they have created a situation that rewards and encourages cheaters like him.

It’s the completely predicable result of creating a set of rules that you cannot or will not enforce, and there are only two ways out of that situation: You can do what Jack wants and enforce the rules, or you can do what Allenby wants and remove a rule that’s hard to enforce. I don’t know enough about cycling to have an opinion on which is better for the sport, but either is better than what they’ve been doing.

In Jack Marshall’s list of 24 unethical rationalizations for bad behavior, the number one rationalization — the king of all rationalizations — is “Everybody Does It.” Although I agree in principle, I find it interesting to explore the nuances and exceptions. In Part 1 I discussed cultural norms, and how sometimes ethical behavior is defined by what everybody does.

This time around, I’d like to talk about a much broader exception to the rule which occurs when you’re applying the ethical analysis not to yourself but to other people in a group.

Suppose it’s right before an election, and you read a credible news story claiming that one of the candidates for office used his official position to do small favors for friends. That probably counts against him in terms of gaining your vote. But supposed that the next day you read another credible story claiming that all the other candidates for that office also did small favors for friends. That kind of negates the information you had about the first candidate.

It’s not that “everybody does it” makes it better. It’s that your knowledge of one particular person’s bad behavior isn’t helpful if you know all the other people are engaged in the same bad behavior. When you’re making decisions about the relative merits of other people, the absolutism of rejecting “everybody does it” won’t help you. It would be irrational to hold one person more responsible than others for the exact same bad behavior.

Marshall himself uses this form of “everybody does it” in defending Mitt Romney over stories about his bad behavior when is was a very young man:

The Washington Post’s despicable exposition of ancient recollections of Mitt Romney’s mean-spirited and boorish conduct while being enrolled in that well-known cauldron of mean-spirited and boorish conduct–prep school–has caused me serial episodes of shock. […]

Guys in school assault each other, batter each other, punch each other, and do horrible things to each other that would get them arrested if they did it to a stranger on the street. That doesn’t make them “criminal,” and it doesn’t make them sociopaths. It’s called “growing up.” […] Why does Rick assume that Mitt Romney is different? Why doesn’t he see that it is unfair to assume that he is?

Obviously, if there are nuances to bad behavior, you can (and should) make judgements on those nuances. If all of your candidates are 35-year-old men who had sex with 16-year-old girls, it probably makes a difference if the relationship was a drunken hookup at a party, a teacher and his student, a client and a prostitute, or a father and his daughter.

But if the situations are identical (or at least somewhat comparable), then it doesn’t matter how reprehensible the conduct, nor how high the stakes, as long as you have to choose among a fixed group of people and there’s no way to postpone the decision or add other candidates. If it comes to light on election eve that all our presidential candidates are child molesters, then you’re going to have to hold your nose in the voting booth and choose which child molester you want to be President.

A few weeks ago at the Ethics Alarms blog, Jack Marshall published his list of 24 ways people justify unethical behavior. He starts the list with an old rationalization that is the basis for several others:

1. The Golden Rationalization, or “Everybody does it”

This rationalization has been used to excuse ethical misconduct since the beginning of civilization. It is based on the flawed assumption that the ethical nature of an act is somehow improved by the number of people who do it, and if “everybody does it,” then it is implicitly all right for you to do it as well: cheat on tests, commit adultery, lie under oath, use illegal drugs, persecute Jews, lynch blacks. Of course, people who use this “reasoning” usually don’t believe that what they are doing is right because “everybody does it.” They usually are arguing that they shouldn’t be singled out for condemnation if “everybody else” isn’t.

Since most people will admit that principles of right and wrong are not determined by polls, those who try to use this fallacy are really admitting misconduct. The simple answer to them is that even assuming they are correct, when more people engage in an action that is admittedly unethical, more harm results. An individual is still responsible for his or her part of the harm.

If someone really is making the argument that an action is no longer unethical because so many people do it, then that person is either in dire need of ethical instruction, or an idiot.

Despite Jack’s warning in the last paragraph, I’d like to write a few posts about situations where “everybody does it” is a actually a pretty good argument. I’ll let you decide whether I’m in need of ethical instruction or if I’m just an idiot.

I’ll start with the most obvious example: I don’t think anyone in this country doubts that driving on the left-hand side of a two-way road is unethical. First and foremost, it creates an immediate and potentially deadly hazard to oncoming traffic. Second, even if there’s no traffic, driving on the left side increases the possibility that a pedestrian will get hit because he or she was looking the other way. It’s so dangerous that I think we can safely say that only drunks and maniacs drive on the left-hand side of the road.

Or Englishmen. At least while they are in England, because everyone there drives on the left-hand side of the road.

I’m not sure how people ended up driving on different sides of the road in different countries — the best explantions I’ve heard have something to do with differences in the types of wagons pulled by horse-drawn teams — but whatever the reason, once one side began to dominate common practice, it would have been a huge gain in safety and efficiency to require everybody to drive on that side.

In other words, it’s the right thing to do because everybody does it.

(Arguably, the ethical rule is not “drive on the left side of the road” but rather “drive on the agreed-upon side of the road.” Driving on the other side is unethical not because there’s something bad about that side, but because it violates our common agreement about how to drive safely. That common agreement is exactly the sort of consensus ethical rule I’m talking about when I say that “everybody does it” can be a good justification.)

For another example, in the condo building where I live, except for the occasional party, I never hear the sounds of my neighbors’ lives. It would be rude for any of us to play lound music or crank up the television. If was a persistent problem, it would be cause for a complaint to the board.

This is very different from when I lived in a college dormitory, and everyone played loud musing all day and late into the night. It’s not that my college dorm mates were any less ethical than my condo neighbors. They were just younger and in college. Tolerating their neighbor’s loud music was a small price to pay for being able to play their own loud music. If anyone had complained, he would have been the one behaving rudely.

It was a case of different cultures, different rules. When the rules are defined in terms of cultural norms, then “everybody does it” isn’t just an excuse, it’s the way the rules are made.

It’s important to note that cultural norms variation of “everybody does it” only works when everybody involved is a willing participant in the culture. It’s no excuse for cultural practices such as gay bashing, slavery, or burning the heretics.

A couple of days ago, I posted about this silly graph, which shows the wage gap between men and women:


The dotted gray line on the graph at first seems to show that “Women’s Wages as a Percentage of Men’s Wages” are dropping, but that turns out to be because the dotted gray line is plotted against the right-hand scale, which is printed upside down, with the larger numbers at the bottom. I called this a sin against graph design.

My co-blogger Ken suggested in a comment that this might not be such a terrible sin:

I often run into a graph like that where the right-hand scale is reversed when reading scientific papers. It’s often used to emphasize a reduction such as this one. The graph clearly shows an overall reduction in the gap between wages and demonstrates the variations by time.

It’s actually a good graph, but fails to make the point James Park was trying to make. The question is if James Park created the graph with the intention of deceiving, or just copied the graph from an analysis done that Park failed to understand.

A little research indicates it was the second option. The graph appears to be Figure 8 from the report “Women and the Economy 2010: 25 Years of Progress But Challenges Remain” dated August 2010, which appears on the “Women and the Economy 2010 Series” website. The report is credited to “the Majority Staff of the Joint Economic Committee” of the United States Congress.

So, it’s your tax dollars at work. I imagine James Park probably just took the graph from that report without worrying too much about the details. After all, it’s from Congress, right?

In any case, it’s still a bad way to show data. I realize that data sometimes has to be massaged to show results–such as plotting data against a reciprocol or logarithmic scale–but inverting the scale like this just seems wrong, especially since you could just as easily plotted the size of the gap itself, which really would slant downward on a normally-oriented scale.

I suppose one possibility is that for some historical reason wage differential graphs are always presented in this format. That sort of thing sometimes happens. For example, the traditional way to draw supply and demand curves in economics is to put price on the vertical scale and demand on the horizontal scale, which swaps the dependent and independent variables from the usual scientific practice. However, since it was an economist’s blog that first brought his to my attention, this seems unlikely.

If you know anything about graphic presentation of data, especially if you’ve read Edward Tufte’s Visual Display of Quantitative Information, you know that there are lots of ways to cheat to make the data appear to support your argument more than it really does. But James Parks at the AFL-CIO Now Blog has a post about the need to close the wage gap between men and women which goes beyond mere graphic cheating. This graph is a sin:


A quick glance shows that men’s and women’s wages are graphed against the left-hand scale. As you can see, both show a slight rising trend in constant dollars. The gray dashed line shows women’s wages as a percentage of men’s wages, and it’s declining, which seems to show a loss of parity for women. This is odd, because the colored wage lines above are visibly getting closer together. Also, we may not be living in a paradise of equality, but does anyone who’s been paying attention for the last 25 years really think things have gotten worse for women?

The explanation for this mystery becomes apparent when you realize that the gray line showing women’s wages is plotted against the right-hand scale, which is printed upside down. Women’s wages are in fact rising slightly faster than men’s wages, so if the scale was printed correctly, the graph would be slanting up. Unless you resort to outright fabrication, data presentation doesn’t get more deceptive than this.

[Update: More here, including James Park’s apparent source for that misleading graph.]

(Note: Such a broad-based comparison between men and women is nearly useless anyway, even if printed correctly, unless you control for things like age, education, the type of job, and years of experience.)

(Hat tip: Steve Landsburg)

Some of the lawyers on my blogroll have been poking fun at a guy named Jack Marshall. He calls himself an “ethicist,” runs a consulting firm called ProEthics, and has a blog called Ethics Alarms. I don’t really know anything about him, but I thought his blog might make a good source of stuff for me to write about.

For the most part, his blog turns out to be about ethical situations I don’t find interesting — baseball, politics, frivolous lawsuits — but then I found one from a few days ago that I can work with:

Ethics Pop Quiz: “What’s Unethical About Auctioning Intern Positions?”

Are you ready to exercise those ethics brain cells?

The News Alert blog is reporting that the Huffington Post auctioned off an intern position for $9000, and another internship–three weeks of it with Richard Branson, founder of Virgin Atlantic Airways, and three weeks with hip-hop entrepreneur Russell Simmons — was auctioned off for $85,000, to benefit Simmons’s charity, Rush Philanthropic.

Question: Is there anything unethical about this, and if so, what?

My answer will not surprise my regular readers: No, there is nothing unethical about this. Neither the organizations providing the internships nor the people bidding for them are being coerced. The transaction would not have gone through unless all parties found it acceptable. Since everyone involved likes the outcome, there’s no ethical objection.

Marshall, however, sees a problem:

Answer: It is unethical to have interns do substantive work without paying them, and it is more unethical to make them pay for the privilege of being exploited.

How did HuffPo or Virgin make people pay? It’s hard to imagine a more voluntary market activity than casting bids in an auction.

When a for-profit organization allows an intern to work without compensation, it is 1) taking advantage of workers desperate for experience, 2) skirting the minimum wage laws, and frequently 3) using unpaid interns to take a job that an unemployed worker could fill.

Wow. That single sentence has an amazing amount of muddled thinking. Start with the qualifier “for-profit.” None of the issues he mentions in the rest of the sentence depend on the for-profit or non-profit status of the organization. Marshall is saying these interns are being exploited, but by singling out for-profit organizations, he’s implying that it’s okay for non-profit organizations to exploit people. I suspect he thinks there’s nothing wrong with non-profit organizations accepting volunteers, and he’s trying to hand-wave the distinction.

The first issues he raises, “taking advantage of workers desperate for experience,” is probably the strongest one, in the sense that not paying people for productive work seems exploitive to a lot of people. However, the fact that people have volunteered for these positions, and even paid for them, implies that they must believe they are getting something valuable in return. I think “taking advantage of workers desperate for experience” is probably better read as “providing experience to people desperate to acquire it.”

The second issue, “skirting the minimum wage laws,” is a mind-boggling muddle all by itself. First of all, correct me if I’m wrong, but if you’re skirting the laws, aren’t you obeying them? Second, the minimum wage laws have the same logical form as the ethical issue itself, so appealing to them is a form of begging the question. Third, it implicitly assumes that anything illegal is also unethical, which seems to make it impossible to ever change the law.

The third issue, “using unpaid interns to take a job that an unemployed worker could fill,” is the silliest of them all. What possible change could we make to the intern’s terms of employment that would not take a job that an unemployed worker could fill? Even if the company paid their interns 10 million dollars per hour, the other guy would still be out of a job. And if we give the intern’s job to the other guy, doesn’t that leave the intern unemployed?

If the internship has no real educational value and consists of medial tasks, it’s unfair to the intern for that reason too.

If the internship has no real educational value and consists of menial tasks, don’t you think the intern would quit? I’m sure people wanted these internships because they expected to get something out of them.

The fact that someone agrees to be mistreated doesn’t relieve a person or an organization from the ethical obligation not to mistreat them. Just because you know you can get someone to work for unfair compensation doesn’t make the compensation fair.

I’m not sure why you need a concept of “fair” beyond the fact that people are willing to work for it. To put it another way, if the people who accept the compensation think it’s fair enough for them, who are we to question their judgement?

Auctioning off the exploitive internship to the highest bidder just compounds the unfairness. The interns are now being chosen according to financial means rather than merit. Whether or not the money goes to charity, this is ethically indistinguishable from a bribe or a kickback.  “Okay: we have ten good candidates for this internship. Who’s willing to pay the most for it? Cash only!” This method of choosing interns would be unethical for paid internships.

What makes bribes unethical is that the person receiving the bribe is dishonoring a duty. A facilities manager who picks a roofing contractor because he got a kickback is betraying the interests of his employer in finding a good roofer, and a building inspector who overlooks faulty wiring because of a bribe is betraying the city that pays him to keep buildings safe. In the case of the auctioned internships, no one is being betrayed. A professional ethicist should be able to spot a distinction like this.

I imagine that spending time at a major media organization or hanging out with captains of industry is a pretty educational experience. I’m sure plenty of people are willing to pay for those experiences. If there’s an ethics issue here, it’s not that people paid for internships, it’s whether or not they got good value for their money…which is the same question we have about any purchase.

This is priceless:

Dear Professor Lessig:

I have been informed that you are having former New York Governor Eliot Spitzer speak on ethics this Thursday November 12, 2009. This sounds fascinating and I would love to attend but the restrictions of my probation won’t allow me to travel out side New York City.

For nearly 5 years, I supplied Mr. Spitzer with high priced escorts while he was both Attorney General and Governor.  For this crime, I served four months on Rikers Island, had all of my assets confiscated and am now considered a sex offender on 5 years probation. Mr. Spitzer broke both state and federal laws and walked away free.

I am greatly intrigued as to what Mr. Spitzer could contribute to an ethical discussion when as Chief Executive Law Enforcement Officer of NY he broke numerous laws for which he has yet to be punished. As Attorney General he went around arresting and making examples out of the same escort agencies he was frequenting.

That’s Manhatten madam Kristin Davis, who has a few questions for the former Governor, such as:

3. Is it ethical for you to tip off your favorite escort service days before a bust so that they may disappear?

4. Is it ethical to try to book an assignation with a escort under a fake name after you were banned by my agency for being abusive to women?

I’m guessing he won’t have a lot of answers.

(Hat tip: Hit & Run)

There’s been an interesting discussion of manufactured apparent expertise over at SJ, which appears to have inspired Bennett to weigh in here

The spark for the discussion was one of the many blogs that not-quite-promises to generate huge wads of cash for lawyers by gaming social media and them what loves it:

The thought of becoming an “expert” in 6 months may seem impossible to you. But I did it and I’m going to show you how.
But first let me share my story with you a bit because I think it’s instructive.

Well, yeah, it was instructive:  I learned that somebody can, with some study and careful choice, become acknowledged by Google as an expert in some subject he may or may not give a damn about in less time than it takes to make a baby.

I mean, seriously — this guy spent only six months studying this stuff, and then he’s an expert?  Sheesh.

So, there I was, last weekend, giving a speech, billed as “Second Amendment Expert Joel Rosenberg”.  (The speech is here; you can watch it, if you don’t mind downloading a quarter gig — one of the many things I’m not an expert in is turning a long .MOV video into a shorter one in some other format.)  I think it was a decent speech, and was well-received, by and large, by the crowd.   (And it was actually a lot of good, clean fun quoting Hillary Clinton and Hubert Humphrey to a crowd of conservatives, and then telling them an Eleanor Roosevelt story.  When it comes to issues around rights, there are folks who get it — and who, alas, don’t — all along the political spectra, which was one of the points that I was trying to make.  Successfully?  I’m the last person to be an expert on that.)

I don’t fault the organizers of the event for billing me that way, and that’s not just a reluctance to bite the hand that helped me up on to the stage.  I was invited there to talk about the Second Amendment, and it’s a matter that I do have some knowledge of, and a fair amount of passion about. And when it comes to gun laws, Lorman thinks I know enough about them to do a CLE class for cops and lawyers on the subject, so maybe that’s not unreasonable.

Until I put it into context.  I know real experts on the subject, and have read their writings voraciously, for, well, years.  Professor Joseph Olson, who founded Academics for the Second Amendment — now, there’s an expert.  Eugene Volokh?  Ditto.  Glenn Reynolds?  Yup.  Clayton Cramer, an amateur who has written the definitive study on the racist roots of gun control?  You betcha.  (It’s called, perhaps unsurprisingly, “The Racist Roots of Gun Control,” and it’s worth a read.  In my expert/inexpert/whatever opinion.) 

Me?  In that context, well, not so much.  Yeah, I started studying the Heller opinion about three minutes after it was posted to the Internet — but it wasn’t me who picked up the implications of the problematic paragraph in it, but Scott (it’s the last sentence on p. 54):

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

I studied it; Joe Olson, having been one of the midwives of the modern 2A acadmic movement. helped write one of the amicus briefs, and helped Gura prep for oral argument.  That’s an expert.  In that context, if I held myself out as a “Second Amendment Expert,” I’m not sure I could do it with a straight face.

But . . . there is that other thing, and I think — and hope — it differentiates me in a useful way from the Six Months to Google Expert types:  I know a fair amount about my subject, and can — at times — explain stuff* about the issues around the Second Amendment to folks who want to have stuff* about the issues around it explained to them.

Does that make me an “expert”?  I dunno.

Does remind me of an old joke:

A very successful young bowling ball salesmen brings his parents to the marina, one bright Saturday morning, and takes them aboard his new yacht.  The only time he’s been to sea was on a Carnival Cruise, but he’s bought himself a boat:  it’s fifty feet long, and tricked out with all the nautical gear necessary to sail across the Atlantic, and back.  He excuses himself for a moment, and ducks down the companionway, coming back with dressed out with a neat blue blazer, and ascot, and a
captaincap.jpgnifty captain’s cap, complete with gold braid and such, on his head.

“Look, Mom and Dad — I’m a captain!”

The father shakes his head.  “By me, sure, you’re a captain.  By your mother, okay, you’re a captain, but by a real captain, you’re no captain.”

I don’t mind if others want to call me an expert, not really.  But I’m pretty sure I’m not going to be getting business cards that say, “Joel Rosenberg, Second Amendment Expert.”

Or, for that matter, a captain’s cap.

* Technical term.  

A few days ago, when I wrote about a guy who was forcibly catheterized to test if he was driving drunk (he wasn’t) it seemed to me that this violated the requirements of medical ethics that medical procedures should only be done with the consent of the patient and for the benefit of the patient.

At the time, I thought that the AMA Code of Medical Ethics might address this in opinion 2.065, but I wasn’t sure if I was reading it right, so I emailed the AMA press office:

I write about legal issues and civil rights. I’d like to know if the AMA has a policy addressing issues raised by a recent news story.


It appears that Lawrenceburg, Indiana, police arrested Jamie Lockard, 53, for drunk driving, and got a judge to sign a warrant for a blood and urine test.  At Dearborn County Hospital, someone inserted a urinary catheter against against his will.  (All this according to a lawsuit he has filed.)

Some questions I have:

Has the AMA issued a statement about this incident or the lawsuit?

What is AMA policy with regard to medical testing (and associated procedures) conducted solely to satisfy a police investigation—i.e. there is no medical benefit to the patient?

Shouldn’t medical professionals refuse to perform the test if the patient does not consent?

If a medical professional is faced with a patient who has been ordered by a court to undergo a medically unnecessary procedure against his will, does the court order override the usual concerns about consent and medical efficacy? As long as the medical professional himself is not a subject of the court order, isn’t his primary duty still to the patient rather than the legal system?

The response from the AMA was minimal, which is what I expected given that I’m just a humble blogger. They sent me to these two sections of the code of ethics: 

E-8.08 Informed Consent

The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice. The patient should make his or her own determination about treatment. The physician’s obligation is to present the medical facts accurately to the patient or to the individual responsible for the patient’s care and to make recommendations for management in accordance with good medical practice. The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice. Informed consent is a basic policy in both ethics and law that physicians must honor, unless the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent. In special circumstances, it may be appropriate to postpone disclosure of information, (see Opinion E-8.122, “Withholding Information from Patients”).

Physicians should sensitively and respectfully disclose all relevant medical information to patients. The quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients. Physicians need not communicate all information at one time, but should assess the amount of information that patients are capable of receiving at a given time and present the remainder when appropriate. (I, II, V, VIII) Issued March 1981. Updated June 2006, based on the Report “Withholding Information from Patients (Therapeutic Privilege).”
E-2.065 Court-Initiated Medical Treatments in Criminal Cases

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control. While a court has the authority to identify criminal behavior, a court does not have the ability to make a medical diagnosis or to determine the type of treatment that will be administered. In accordance with ethical practice, physicians should treat patients based on sound medical diagnoses, not court-defined behaviors. This is particularly important where the treatment involves in-patient therapy, surgical intervention, or pharmacological treatment. In these cases, diagnosis can be made initially by the physician who will do the treatment, but must then be confirmed by an independent physician or a panel of physicians not responsible to the state. A second opinion is not necessary in cases of court-ordered counseling or referrals for psychiatric evaluations.

A recognized, authoritative medical body, such as a national specialty society, should pre-establish scientifically valid treatments for medically determined diagnoses. Such pre-established acceptable treatments should then be applied on a case-by-case basis.

The physician who will perform the treatment must be able to conclude, in good conscience and to the best of his or her professional judgment, that the informed consent was given voluntarily to the extent possible, recognizing the element of coercion that is inevitably present. In cases involving in-patient therapy, surgical intervention, or pharmacological treatment, an independent physician or a panel of physicians not responsible to the state should confirm that the informed consent was given in accordance with these guidelines. (I, III) Issued December 1998 based on the report “Court-Initiated Medical Treatment in Criminal Cases,” adopted June 1998.

That second section is the one I thought might apply.

Technically, the AMA spokesperson didn’t even go so far as to say these sections apply to the incident under discussion, so this is hardly definitive, but I think I’m on the right track. Something went wrong here.

I don’t understand how stuff like this happens:

According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March.

A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.

Police said they obtained a warrant, but Lockard’s attorney said his client was shackled to a gurney and had a catheter inserted against his will.

Scott Greenfield discusses some of the legal issues in his post “Places No One Should Ever Go”, but I’m wondering about the medical ethics. I’ve been dealing with a lot of doctors lately, and they all seem to follow the ethical requirements that medical procedures should only be done (A) with the consent of the patient, and (B) for the benefit of the patient.

Sticking a tube up some guy’s penis to see if there’s evidence to convict him of a crime meets neither of these requirements, so I’m a bit surprised that medical personnel are willing to participate.

Knowing as little as I do about medical ethics, I decided to see what the AMA Code of Medical Ethics has to say. It’s huge, and not written for questions like this, but opinion 2.065 sounds like it might apply:

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control.

The forced catheterization was a test, not a treatment, but I wouldn’t think that would change the ethical question significantly.

I don’t think the warrant changes the situation much either. A judge may be able to force a suspect to submit to an investigative medical procedure, but I’m pretty sure there’s case law that a judge can’t force an uninvolved third party to perform the procedure.

“A lie gets halfway around the world before the truth has a chance to get its pants on.” — Winston Churchill

For those of you who didn’t follow it, an amendment to a bill in the US Senate was defeated this week, on a 58-aye, 39 nay vote.  (Yeah, I know that sound strange; another time, okay?)  You’ll find a remarkably typical MSM take on it here, and, honest, I’d love to discuss all the issues involved, but let’s save that for another time; that’s not this story. 

Part of the fight against passing this was the notoriously anti-gun advocacy group, the “Violence Policy Center,” headed by Josh “Sugar Daddy” Sugarman*, and, as you’d expect, they were slaughtering trees, right and left, to turn out their agitprop, foremost among it, a “study” (actually, a collection of unreliable anecdotes, including at least one just plain lie) that purports to show that shouts that “Concealed Handgun Permit Holders Kill 7 Police, 44 Private Citizens Over Two-Year Period”, which is, presumably, a bad thing and, putatively, some sort of reason that a law-abiding citizen who has been issued a carry permit in Minnesota can’t be trusted to, say, carry a handgun in New York. 

(Pinky swear, since right about now I know that a bunch of you are reaching for your keyboards:  yes, there’s a whole lot of other issues, around Federalism, states rights, carry permit laws, full faith and credit and all that stuff.  Not now, okay?)

Enter John Lott. Dr. Lott first came to public attention with the Lott/Mustard study that shows — pretty clearly, I think; others disagree — that among the effects of modern, mainstream, “shall issue” permit laws are to drive violent crime down slightly (when controlling for other factors), drive property crime up, also slightly.  By profession an economist, he’s kind of been dragged, kicking and screaming only a little, into the national gun debate, and like anybody else who has been around for awhile, noticed that the antigun folks need to spend a whole lot of money on Nomex undies, what with their pants bursting into flame from lying a lot.

He noticed an unlikely anecdote on page 17:

# Concealed Handgun Permit Holder: Michael C. Iheme
Date: July 24, 2008
People Killed: 1
Circumstances: On July 24, 2008, Michael C. Iheme shot and killed his wife after she left
her job at an assisted living center. Court records show that she had an active harassment
restraining order against him and suggest a history of domestic abuse, including threats to kill her. After the shooting, Iheme called 911 and said, “I have killed the woman that mess my life up….” Iheme, who had a concealed handgun permit, was found guilty of second degree murder.

Source: “911 call: ‘I have killed the woman that mess my life up,” Minneapolis Star-Tribune, July 26, 2008;
“Man found guilty of killing estranged wife in St. Louis Park,” Minneapolis Star-Tribune, February 6, 2009.

Yeah.  That does look strange, and unlikely, if you know anything about the subject.  The subject of a domestic OFP having a carry permit?  Unlikely.  Somebody with a history of domestic abuse being issued one?  It’s not impossible, but it’s not the way to bet.  Know a bit more, and it gets more unlikely — Sheriff Stanek’s office screwing up by issuing a permit to a domestic abuser with an OFP out on him?  Nah. 

But “nah” isn’t a debunking.

Lott dropped an email to Andrew Rothman, a local Minnesota activist — he’s a friend of mine, and also the Executive Director of MADFI — asking him to check it out, and Andrew got busy, sending one flunky off to see if there was some wisdom on the subject (check, but the flunky knew that) and interest in helping out on the part of David Gross (one of the few essential people in Minnesota Second Amendment activism, David’s also an attorney, who knows the laws around this stuff backwards and forwards, having been involved in the writing of some and the practice of a lot of them for decades), and dispatching another — John Pierce, second year law student at Hamline — to the courthouse to look for the documentation that would have existed if Iheme had been a carry permit holder arrested on suspicion of murder.

Gross struck paydirt — Hennepin County Sheriff Rich Stanek, who would have been the issuing sheriff, took a quick look at both the relevant laws, regulations, and facts, and went on the record that Iheme not only had not had a carry permit, but had never even applied for one.

Yup. Stanek didn’t say it — I am — but the VPC was lying.  What they said just ain’t so.

And Pierce, looking for the nonexistent orders around the carry permit, stumbled across the smoking gun:  the police report that showed that what had been seized was Iheme’s purchase permit.  Iheme had a permit to purchase a firearm, not one to carry.  But that fact had been carefully left out of the Star Tribune’s reporting with the Strib’s reckless disregard for the truth, and picked up and repeated by the folks at the VPC, who — having endlessly picked at all of the states’ carry laws — had every reason to believe that the Strib had gotten it wrong, but just passed off the lie to their easily-gulled audience.

How easy?  Well, the next morning, on the Senate floor, Robert Menendez of New Jersey quoted the VPC “study”, as though it proved something — only to be shot down (metaphorically, honest) by the sponsor of the amendment, John Thune, who had been informed that there were provable lies in it, this among them.

What can we learn from this?

Well, we can’t learn, alas, that 58 yes votes is enough to get something through the Senate; it wasn’t, the other day.  We can’t learn that the Star Tribune, in knowing and reckless disregard for the truth, will carefully leave out the word “purchase”, when talking about a “gun purchase permit” held by a murderer — we already knew that.  That’s just how they roll.

We can’t learn that the anti-gun folks like the VPC simply don’t care about truth — we already knew that, too.

We can learn, though, that networked grassroots activism can do things that the highly-paid lobbyists — from the VPC or anywhere else — just plain can’t do.

That’s worth learning, again.

* Okay, okay:  I don’t have the slightest idea if Josh Sugarman has a nickname, and, if so, what it is. 

Is it ethical to sell-off a criminal’s possessions to pay restitution to his victims? You’d certainly think so. After all, he took something from the victims, so he should have to give them back enough money to make up for what they lost. It’s a basic case of making good for the damage done.

When the crime is murder, of course, the victim isn’t around any more, and money can’t really make up for the loss of a life, but as a practical matter, the courts usually award a large sum to families of the victims. All the criminal’s money can be taken, and his assets can be seized and sold at auction to raise money for the families of the dead.

But what if the murderer is a famous murderer, and his only assets are worthless junk that is nevertheless valuable for being the property of a famous murderer? Is it ethical to pay restitution to the families of the victims from the sale of property that is only valuable because its owner murdered those same victims?

In the case of Unabomber Ted Kaczynski, Norm Pattis doesn’t think so.

My paying job has kept me too busy to blog much, but I’ve been thinking about a particular application of something Fernando Tesón wrote on Tuesday about how to distinguish between moral posturing and genuine moral principles:

We propose The Display Test: a position is genuinely moral when the speaker can accept, without embarrassment, its bad consequences. For example, I am prepared to publicly accept, without embarrassment, that criminal defendants should have a number of rights, even if someone shows me that implementing those rights increases crime. If the speaker cannot concede without embarrassment the bad consequences of her proposal, then she is perpetrating discourse failure.

This made me thing of something that bothers me about the case of Richard Paey, who was sentenced to 25-years in prison for improper use of medically necessary painkillers.

First, consider this statement in another context by Virginia prosecutor Tom McKenna:

…we do have important cases to try, like the murder sentencing I finished today, an emotionally exhausting ordeal of shepherding the victim’s family through the process of seeing punishment meted out (42 years for 1st degree murder).

Now here’s a quote from a Reason article about Paey’s long sentence:

“It’s unfortunate that anyone has to go to prison, but he’s got no one to blame but Richard Paey,” Assistant State Attorney Mike Halkitis told the St. Petersburg Times. “All we wanted to do was get him help.”

Locking a man in a cage for many years is a terrible thing. That he’s a criminal who has done something terrible doesn’t change the terrible nature of his punishment. It just means his punishment is justified. He deserves terrible treatment for what he’s done.

Tom McKenna knows this and acts on it as a moral principle. He rightly takes pride in putting a murderer in a cage for a very long time.

Halkitis, on the other hand, is trying to dodge responsibility for the consequences of his actions. He doesn’t take pride in Paey’s sentence. He doesn’t believe Paey received justice. He isn’t standing on a moral principle. He’s just posturing.

When they kick at your front door
How you gonna come?
With your hands on your head
Or on the trigger of your gun

I recently ran across the above lyric somewhere on the web that I can no longer remember. You might think, as I did, that it sounds like a piece of gangsta rap about some gangbanger deciding between surrendering to the police or trying to shoot it out. In other words, trying to decide between being smart and being hard.

If you know more about music than I do, however, you recognized it right away as “The Guns of Brixton” by The Clash off of their landmark 1979 album London Calling. It’s about police violence against blacks in Brixton (a part of London). Apparently, police were assaulting and sometimes killing blacks at an alarming rate. This eventually lead to riots and then to reform of the Brixton police.

Now consider this part of the same song:

When the law break in
How you gonna go?
Shot down on the pavement
Or waiting on death row

These lines appear at first glance to present a similar choice between aquiescence and resistance. But the situations are radically different. In the first situation, there is uncertainty about the outcome. If the police kicking down the door are not killers, it makes sense to give in peacefully instead of starting a violent confrontation that can’t be won. Many members of inner-city drug gangs are aware of this, and once the police catch them, they come along peacefully. That’s because they know the police are going to take them in but do nothing worse to them, so why get themselves injured in the process?

In the second case, there is no uncertainty. The pounding on the door is a death squad, coming to shoot you down. The only choices they offer are certain death or a chance to die fighting…or maybe, just maybe, to escape.

(I have no idea what was going on in real life Brixton. I’m just responding to the lyrics here.)

It’s an important distinction. Throughout history, people have often found themselves in the uncertainty of the first situation without knowing that they were really in the second situation.

When the Nazis started to clear all the Jews out of the Warsaw ghetto in the late summer of 1942, most Jews believed that the Germans were sending them to work camps, and that resistance would only result in their needless deaths. Better to stay alive, even if it meant working as a slave.

In reality, the Germans were sending the Jews to the death camp at Treblinka, and they only stopped when they ran out of Jews. The Jewish population was reduced in 52 days from about 380,000 people to perhaps 60,000. Most of those remaining were either working for the German war effort or hiding.

In January 1943, the Nazis set out to exterminate the remaining Jews. This time the Jews knew what was going on and resisted, attacking and killing the German soldiers. The peak of the resistance was from mid-April to mid-May, 1943 and is known as the Warsaw Ghetto Uprising. Ultimately, however, the Nazis prevailed, and the Jews who had survived the fighting were sent to the death camps. This was the first uprising against Nazi rule in Europe, but it wasn’t the last. The bravery and determination of the Warsaw resistance fighters was an example to others and remains so to this day.

We have a more recent example as well. When hijackers took over four airplanes on September 11th, 2001, the passengers and crew of three of the planes did not resist (as far as we know). Faced with uncertainty about the outcome, they did what appeared safe and cooperated with the hijackers, believing that to resist would be to provoke their own deaths.

We shouldn’t be critical of them, however, because they didn’t know what we now know. In any previous hijacking they would have been right, for the simple reason that once the plane landed somewhere, the hijackers would lose their advantage and eventually be forced off or, more likely, pursuaded to surrender. That didn’t work this time because the hijackers had no intention of landing. Not knowing the true intent of the hijackers, the passengers didn’t see that cooperation wouldn’t work. They knew they were in the first situation, but didn’t realize they were in the second. They didn’t see that resistance would cost them nothing.

On the fourth plane, however, the passengers got word of what had happend to the other planes. They knew the full price of aquiescence. So they chose to act, to resist. To do otherwise would be to accept death. So they fought.

Although they probably saved the lives of a lot of people on the ground, at whatever the plane’s target was, they lost their personal struggle. As with the Jewish resistance in the Warsaw ghetto, their fight remains as an inspiration for others.

Addendum: I can’t find the Clash’s version of “Guns of Brixton” online, but you can hear a nice cover of it at Nouvelle Vague’s MySpace page. (You’ll have to click the link to the song. I can’t figure out how to link direct.)