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In diverse fields of law, from torts to constitutional law, the legal system treats mental harm differently from physical harm, opines Prof. Ashoka, in the second part of his erudite research paper. An exclusive for Different Truths.
Neuroscientific evidence has been used with significant success to mitigate punishment, particularly in capital cases. In the juvenile death penalty case Roper v. Simmons, the United States Supreme Court seems to have utilised such evidence in support of its decision that it is unconstitutional to impose capital punishment on a minor. Yet some of the more radical claims made by neuroscientists, like the claim that brain imaging undermines the whole basis of criminal responsibility, have been deeply controversial and have not gained much traction in the courts. Moreover, outside of the criminal mitigation context, most efforts to introduce neuroscience evidence in courts have proven unsuccessful. Nonetheless, neuroscience evidence continues to be introduced in civil cases.
There appear to be two broad ways in which neuroscience evidence has made its way into the legal system. The first is the use of case-specific evidence from brain imaging, such as Magnetic Resonance Imaging (MRI) and Positron Emission Tomography (PET) scans, to demonstrate a particular criminal defendant’s defective ability to make rational decisions or to show harm to the brain suffered by a plaintiff. The second use, more important to this essay, is as what has been termed framework or foundational scientific evidence: scientific testimony bearing on how other evidence should be used based on general theories or hypotheses.
These and other uses of neuroscientific evidence have the potential to break down the sharp dividing line the law has erected between mental injury and bodily harm.
These and other uses of neuroscientific evidence have the potential to break down the sharp dividing line the law has erected between mental injury and bodily harm. In diverse fields of law, from torts to constitutional law, the legal system treats mental harm differently from physical harm. Tort law traditionally makes a distinction between physical and emotional harm, “with emotional harm being treated as a second-class citizen. For example, to recover for the negligent infliction of emotional distress, a majority of states require the plaintiff to show not merely mental or emotional harm, but also physical injury.
The reasoning that the courts generally provide for this limitation is that mental harm, unlike physical injury, is essentially subjective and therefore the physical injury requirement will give “a sufficient basis for the trial courts to determine [that the claims of mental harm are] not… fraudulent claims.” Although often reaffirmed, this nexus requirement emerged many years ago, long before the capabilities that modern neuroscience gives us existed.
The American Law Institute’s recent Third Restatement of Torts incorporates as a general rule this clear distinction between physical or bodily injury and mental or emotional injury.
The American Law Institute’s recent Third Restatement of Torts incorporates as a general rule this clear distinction between physical or bodily injury and mental or emotional injury. It does, however, allow for claims of intentional or negligent infliction of pure, stand-alone emotional harm, but only in very circumscribed circumstances, citing, among other things, concerns that “emotional harm is less objectively verifiable than physical harm” and that “some degree of emotional harm is endemic to living in society.”
Neuroscience research at least muddies the distinction between bodily injury and mental harm, and, in the future, it might negate it entirely. One tool that neuroscience can deploy is brain imaging, which allows a window into the altered functioning of the brain under different conditions. This approach has been used to study chronic pain, considered the greatest source of disability worldwide. Neuroimaging has shown that chronic pain does indeed change brain function, altering specific neural pathways broadly, leading some to classify it as a neurodegenerative disorder. The brain changes resulting from chronic pain may not yet reach the standard of being diagnostic on their own. Nevertheless, they are reliable enough to motivate recent reviews putting forward neuroimaging strategies as a potential basis of evidence for both clinical and legal purposes. It is notable that emotional suffering, including chronic anxiety and depression, has an equally profound impact on brain structure and function. Indeed, some of the same brain regions are disrupted in both chronic pain and depression, providing clear biological evidence of the overlap between physical and mental distress.
Other types of mental harm such as Post-Traumatic Stress Disorder (PTSD) can be shown objectively to affect the brain, thereby demonstrating that this emotional injury is also physical in nature.
Other types of mental harm such as Post-Traumatic Stress Disorder (PTSD) can be
shown objectively to affect the brain, thereby demonstrating that this emotional injury is also physical in nature. Indeed, one court has so ruled. In the Michigan case Allen v. Bloomfield Hills School District, the plaintiff was operating a train when he crashed into a bus that had negligently strayed onto the train tracks. The plaintiff developed PTSD because the crash resulted in the deaths of several schoolchildren. The lower court dismissed his tort claim because the applicable Michigan statute required a showing of “bodily injury,” which the court ruled the plaintiff had not proved.
The Court of Appeals reversed the ruling, relying on pet scans of the plaintiff, showing that he had suffered abnormalities in the brain due to the accident. The court noted that “brain injury is a bodily injury.” The “plaintiff presented objective medical evidence that a mental or emotional trauma can indeed result in physical changes to the brain….There should be no difference medically or legally between an objectively demonstrated brain injury, whether the medical diagnosis is a closed head injury, PTSD, [or] Alzheimer’s Disease.” The brain is a part of the body, and hence an injury to the brain that is objectively verifiable should count as physical injury.
The neuroscientific insight that mental pain and harm are sometimes the result of or correlated with brain damage or abnormalities may also play an important role in constitutional jurisprudence
The neuroscientific insight that mental pain and harm are sometimes the result of or correlated with brain damage or abnormalities may also play an important role in constitutional jurisprudence addressing American prison systems’ practices of prolonged solitary confinement.
At any given time, an estimated one hundred thousand prisoners in the United States are held in solitary confinement. Such confinement varies slightly from state to state, but it generally involves a prisoner being kept for approximately twenty-three hours a day alone in a small cell, with minimal social contact and no physical contact with others.
A draconian example of such solitary confinement existed for many years at the Pelican Bay State Prison Security Housing Unit.
A draconian example of such solitary confinement existed for many years at the Pelican Bay State Prison Security Housing Unit. At that prison, built in 1989,
approximately 1,300 prisoners were imprisoned in small, Spartan, eighty-square-foot cells with no windows for almost twenty-three hours a day. For years, they had no view of the outside world; they saw no birds, trees, cars, or grass. For one-and-a-half hours per day, they went out to a recreation “yard” attached to their cell block. This was a facility about twice the size of their cell, with fifteen-foot-high walls and a grate over the top where they recreated, alone. If they went out to the yard at the right time during the day, it was possible to see a little sunlight, but, generally, most prisoners had only fleeting, if any, glimpses of direct sunlight during their stay at Pelican Bay. They were allowed no phone calls at all except in an “emergency,” which was defined as a parent dying, in which case they were allowed a fifteen-minute call with next of kin. They were permitted visits with their family, but no contact visits, meaning they only could speak with their visitors through an intercom, viewing them through a glass window, unable to touch or hug their loved ones. While some had televisions and radios, there was no educational, vocational, or religious programming or activities.
(To be continued)
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