How Genetics Impact Criminal Behavior and the Justice System?

How Genetics Impact Criminal Behavior and the Justice System?

The twenty-first century has been predicted to be the century of genetics and information technology. Genetics has brought the nature vs. nurture debate to the fore as well as reinforced the deterministic approach of human behavior.

The outcome of the Human Genome Project has largely uncovered the mysteries of our genetic code, providing remarkable new insight into the unique human characteristics that operate at the molecular level.

Discoveries in genetics will touch every sphere of human life. New discoveries have far-reaching impacts on legal doctrines related to privacy, free will, responsibility, autonomy, non-discrimination, and societal opportunities.

Judges, lawyers, legislators, researchers, human rights activists—all the people of different countries related to law and associated with the justice system should be ready to encounter the future challenges ensuing from genetic development.

Ongoing research on genetics and its findings have brought many questions before us; in particular, it has a major bearing on criminal behavior and the criminal justice system.

  1. How will law respond to new discoveries in genetics?
  2. To what extent will the relation between genetics and behavior affect legal doctrines related to privacy, autonomy, non-discrimination, and societal opportunities?
  3. What will happen to the concepts of individual responsibility and free will?
  4. If any individual commits a crime due to genetically inherited traits, how will his/her responsibility be determined? How will he/she be punished?
  5. Should he/she be punished, or should they be treated like insane persons without having any criminal responsibility?

In this chapter, an endeavor has been made to find answers to the above questions.

How should researchers, students, teachers, and people associated with the criminal justice system respond to the challenges brought by the new discoveries in genetics?

Those relevant questions will also be discussed briefly.

Heredity and Continuity of Life

All the existing species of the animal world have to maintain the rules of heredity. From the time of antiquity, the facts of heredity were taken for granted. An old proverb says that “like begets like.” Human babies usually resemble their parents.

Not only human beings but all species of animals resemble their ancestors in their body shape, size, color, and other characteristics.

The Journey to Understanding Heredity

Heredity is a common phenomenon known to everyone; nevertheless, it took a long time to understand essential facts of heredity.

Mythical stories stated that human beings arose from animals, trees, or stones, and men were turned into natural objects. Even Aristotle accepted the general belief of his time that plants and complex animals like fleas, mosquitoes, and snails arise spontaneously from decaying matter.

Belief in spontaneous generation withered away after a succession of brilliant and subtle experiments.

The Scientific Rejection of Spontaneous Generation

Finally, Louis Pasteur (1822-1895) established that the spark of life could be kindled only by life itself. Spallanzani, Pasteur, and their followers proved that heredity and living matter are coextensive. The existence of one certainly presupposes the existence of the other. In all organisms, like begets like.

“This meant that all organisms, from bacteria to man (human), reproduce themselves by converting materials taken from the environment—food—into the living stuff of their own bodies. Heredity, in the last analysis, is self-reproduction, the common property of all life and the property that distinguishes living from non-living matter.”

The Continuity of Life Through Heredity

All the existing living organisms evidence the unbroken continuity of life and uninterrupted succession of living beings on this earth. In the remote past’s mists, life’s actual origin was lost.

But the fossil record of ancient times proved that the animals and plants of today are direct lineal descendants of earlier organisms.

All living organisms grow old and die, so the continuity of life is maintained by the transmission of heredity to their offspring through a process of reproduction.

The Role of Reproduction in Heredity

Among plants and animals, reproduction is sexual, presupposing the union of two sex cells, or gametes, which form a single cell or zygote. A new living organism develops from this zygote.

So, a physical link between parents and the offspring exists both in sexual and asexual reproduction. A part of the parents grows and later develops, and it will become the body of the offspring.

So, living species, including human beings, resemble their parents in their physical disposition, mannerisms, and traits.

Development of Genetics

There are three branches of the study of genetics: transmission, molecular, and population. Transmission genetics studies the transmission of traits from one generation to the next.

Molecular genetics studies the subject from its fundamental base, molecules.

This study concerns the molecules that constitute genes, the molecules that control genes, and the molecules that are the products of genes. This branch of genetics studies the structure and expression of genes at the molecular level.

Population genetics visualizes the genetic differences between species and studies the variation of genes between and within populations.

Chromosomes and Genetic Information

Chromosomes are tiny parts like threads in animal and plant cells that carry genetic information on the particular characteristics that each animal or plant will have.

Chromosomes are the discrete physical entities that carry the genes.

A mixture of compounds in the cell nucleus, called nuclein, was discovered in 1869. Deoxyribonucleic acid (DNA) is the major component of nuclein. Chemists got an idea of DNA’s general structure and a related compound, ribonucleic acid (RNA), by the end of the nineteenth century.

Both are chains of small compounds called nucleotides. Each nucleotide comprises a sugar, a phosphate group, and a base. Linking the sugars to one another through their phosphate groups usually forms the chain.

Genes and Their Functions

Chromosomes are composed of a string of genes, and DNA comprises the genes. Genes exist in a linear array on chromosomes. Each gene carries the information for making one polypeptide chain (a single protein chain is often called a polypeptide).

Most genes are made of double-stranded DNA arranged in a double helix. They are complementary to each other. The information for making an RNA is carried by a gene’s linear sequence of bases.

It contains the information for making a protein chain. A mutation (change) in this sequence may change the protein product. There are various activities that come within the domain of genes.

The Structure of DNA

Like a twisted ladder, a DNA molecule consists of two ribbon-like strands that wrap around each other. In humans and other higher organisms, the DNA constitution is similar.

The ladder rungs are made up of chemicals called bases, abbreviated as A, T, C, and G. Each rung has a pair of bases; it is either A and T or C and G.

Most of the human cells have three billion base pairs (six billion bases) of DNA; this is called the human genome. The sequence of bases is different for everyone, and that makes every human unique.

Human Genome and Chromosomes

Due to the impact of the environment and the variation in base sequence, we observe diversity among humans.

The complete human genome is packaged into 46 pieces of DNA called chromosomes. Every human gets 23 pairs of chromosomes from his/her parents. A complete set of 46 chromosomes is found in trillions of human cells.

Genetic Mapping and Its Utility

Among the 23 pairs, 22 are identical; one is different, which determines the sex of a child. Females receive an X from each parent (XX), and males get an X from the mother and a Y from the father (XY). “A genetic map of the human genome is a map of the chromosomes having polymorphic DNA markers at determined intervals.

A polymorphism means that different sequences of DNA are found in the population at the same locus. The utility of such a map is to facilitate the localization of disease and behavior genes by family linkage and the population studies.”

Behavior and Genetics

There are two types of behavior: instinctual behavior and learning behavior. Instinctual behavior is acquired by birth; genes are the basis of this kind of behavior. In the animal world, hereditary characteristics are transmitted from parents to their offspring.

A high degree of instinctual behavior is seen among mammals. Learning behavior develops through interaction with the surrounding milieu and the outer world. Instincts and environment together have accumulated an impact on human behavior.

Genetic and environmental factors heavily contribute to the variation in human behavior.

How far do genes and the environment influence the commission of criminal activity?

That has become a fascinating subject to be inquired into by the inquisitive minds of humans.

Heredity and Environment

Each offspring gets a single gametic nucleus from its parents, which is too small to be seen by an unaided eye.

Nevertheless, this is the only physical link between parents and offspring, and everything is transmitted from one generation to the next through it. A new individual develops from a particle of parental body and then undergoes growth.

An individual’s body is about fifty billion times greater than that of the fertilized egg from which it developed. The enormous increase that has occurred in mass is due to the food the organism consumes. Organic and inorganic foods incorporated into the body cause the growth of a living organism.

The Essence of Heredity

“The parental organism reproduces itself in its offspring by organizing in its own peculiar way the materials taken from the environment. The essence of heredity is thus self-reproduction of the organism at the expense of the environment.”

Heredity of a living organism continuously interacts with the environment. This interaction determines the present and future development of that organism.

Genotype and Phenotype

In 1911, Danish Geneticist Johannsen proposed to distinguish the ‘genotype’ of the organism from its ‘phenotype’.

“The genotype is the sum total of heredity, the genetic constitution that an organism receives from its parents. The phenotype is the appearance of the organism, the sum total of all its characteristics, such as color, form, size, behavior, chemical composition, and structure, both external and internal, gross and microscopic.”

Stability and Change in Genes

The individual entity of any species of animal or plant is recognized by their phenotypes. With the advancement of time, the phenotype changes. For that reason, physiological changes constantly occur in an individual.

This is witnessed by a series of photographs of a person taken at different ages from childhood to old age. ‘Genotype,’ in contrast to the ‘phenotype,’ is relatively stable throughout the whole life of an individual.

Environmental Influence on Development

From infancy to senility, an individual has similar genes.

What ‘genotype’ an individual possesses can be identified by observing its impact on the ‘phenotype’ and by studying the ancestry. If two or more individuals have been nurtured in a similar environment, but their phenotypes are different, then the conclusion will be inevitably that they possess different genotypes.

On the other hand, individuals having similar genotypes may have quite different phenotypes when grown in different environments.

Unique Environmental Conditions

The environment in which organisms have been nurtured is never the same in different places and at different times. For this reason, no two individuals are ever exactly alike.

Two plants growing side by side cannot receive the same amounts of light, water, and minerals. The quantity and quality of food consumed by two animals differ at the same stage of development.

Environmental Variations and Genetic Mutations

When two individuals having the same genotype encounter different conditions of food, temperature, light, humidity, and other external factors, then their phenotype will be different.

Organisms of similar heredity, when experiencing these sorts of differences, are called environmental variations or modifications.

Heredity vs. Environment

Except for identical twins, no two persons are likely to possess a similar genotype, which is called hereditary or genotypic variation. The elements responsible for heredity and genes, when undergoing changes, are known as mutations and result in genotypic variation.

The changed gene may then be entered into a variety of combinations with other changed or unchanged genes, which gives rise to genotypic variation.

Geneticists’ Study on Heredity and Variation

The likeness of heredity (like begets like) and variation both have universal applications, but likeness does not mean complete similarity.

Geneticists have focused on different aspects of heredity and variation. The causes of similarities and dissimilarities between the developmental patterns of different organisms are studied by geneticists.

The Interplay of Genotype and Environment

Which is more important – heredity or environment? This type of question is meaningless in the sense that both are necessary and important. The genotype of any organism, through an interaction with the environment, produces the phenotype.

Thus, an individual is a product of growth and development brought about by a genotype in a certain atmosphere.

The environment of a particular moment does not determine the phenotype of a person at a given moment; rather, the whole succession of environments that an individual has experienced during his/her lifetime determines his/her phenotype.

Thus, every individual has become a product of his/her genotype and life experiences.

Heredity and Crime

The common sense observation that children resemble their parents in appearance and mannerism reveals the fact that people tended to explain human behavior in terms of heredity from ancient times.

Scientific theories of heredity originated around 1850 when Francis Galton and Karl Pearson used new statistical methods to measure degrees of resemblance.

When conducting studies on criminals, Charles Goring utilized the new statistical techniques, and he concluded that crime is inherited like other physical traits and features.

Robert Dugdale conducted a study on generations of an American family, and his findings were published in 1877 under the title “The Jukes”.

He collected information about 1000 descendants of Ada Jukes (a pseudonym) and found 280 paupers, 60 thieves, 7 murderers, 140 criminals, 40 venereal disease victims, 50 prostitutes, and other deviants. He claimed this case study as an example of inherited criminality.

Henry Goddard conducted a similar case study, and it was published in 1912 in his “The Kallikak Family”. One Martin Kallikak “fathered a child out of wedlock to a ‘feeble-minded barwench’, a large number of the descendants of whom were feeble-minded or deviant”.

Kallikak’s marriage to a respectable woman gave birth to offspring of the highest moral and mental standard, which Goddard took as proof of the relation between heredity and crime.

Later on, studies were made on twins and adoptees to measure the impact of heredity on behavior. There are two types of twins: identical and fraternal twins.

If genetic factors influence delinquency, then identical twins will be more likely to commit crime than fraternal twins. Adopted children usually live with their adoptive parents. If their behavior resembles the behavior of their biological parents, to that extent heredity influences behavior.

Criminal Genes

Genetics has enormous utility in criminal law. In rape cases, it is used for identifying defendants. It is also used as a defense to exculpate or provide mitigating reasons for a crime.

When any guilty act is committed in pursuance of a culpable intent (mens rea), that act is punishable in criminal law. Without a criminal state of mind, criminal liability is rarely imposed. The rationale behind the theories of punishment is that the threat of penalty will deter criminals.

An individual acting without knowledge or intent remains beyond the deterrent effect of the law. If any criminal defendant makes a mistake of fact or law, what will happen?

Ignorance or mistake of fact or law is a defense under a Model Penal Code when it negates the mens rea. It (mens rea) can be inferred from negligent and reckless behavior. A criminal defendant is said to possess a culpable state of mind if he knowingly disregards a grave and unjustifiable risk.

“Is a person culpable for his conduct when he has a genetic disease that is responsible for his criminal behavior?

Consider the hypothetical case of John Wilson, who had been in trouble with the law since a teenager. He had served prison time on several different occasions for assault, burglary, and disorderly conduct.

One night, Wilson had been out drinking at a bar when he stopped off at an all-night convenience store.

Wilson took a bottle of soda to the cash register, but before paying for it, he pulled out a gun from his jacket and pointed it at the store clerk, ordering him to empty the money in the cash register into a brown paper bag.

The clerk followed Wilson’s directions, filling the bag with the contents of the register. Wilson was sure that there was another money stash, having seen clerks reach below the register in previous visits to the store.

When the clerk denied any knowledge of it, Wilson became very angry, believing that he was being lied to and disrespected. He walked the clerk to the back of the store.

Forcing the clerk to kneel on the ground, Wilson placed his gun behind the base of the clerk’s skull and fired the gun. The clerk was killed instantly. Wilson fled.

Two days later, Wilson was arrested when he was pulled over for speeding, and the police found the murder weapon on the car floor.”

At the trial of the charge of murder, Wilson’s attorney pleaded that Wilson did not have mens rea. He called a medical geneticist to substantiate his defense and argued that Wilson had a genetic X-linked disorder causing mild mental retardation and aggressive behavior.

This genetic disorder was visible in four generations of males in Wilson’s family. When Wilson killed the store clerk, two of his uncles were serving sentences, and his grandfather was sentenced to death for a charge of murder.

The geneticist argued that Wilson was not in a conscious state of mind and he did not commit the offense voluntarily.

They maintained that his genetic disorder had compelled him to commit violent activities. The attorney argued that alcohol induced Wilson to do violent activities.

In the hypothetical Wilson case, some very crucial questions have been raised in the context of numerous links between genes and behavior established by tremendous scientific research.

Human genes are responsible for variation in human behavior, including aggression, anxiety, and depression.

If one’s genes control his/her behavior, how will the criminal justice system cope with these facts? Under criminal law, a person is punishable when s/he commits any offense voluntarily with guilty intention.

If it is proved that a particular gene is responsible for a defendant’s violent behavior, how will the criminal justice system respond? Is it fair to hold that person accountable for his/her violent activities?

In Wilson’s case, a number of questions come to the fore.

  • Are the violent activities the outcome of direct and voluntary action on the part of the accused?
  • Or is it an emotional outburst of the accused?
  • Or do criminal genes compel the accused to commit punishable activities?
  • Or does a toxic element induce him/her to commit violent activities?

In Wilson’s case, the medical expert testified that alcohol incited Wilson to violence.

  • Should he be held responsible for the alleged crime because he voluntarily took alcohol and knew, or should have known, that it would arouse violent behavior?
  • “Should the terms of punishment consider the causality between the crime and an individual’s biological status?

In the Wilson case, the defense team argued that Wilson was not responsible for his conduct because he had a genetic disorder that caused him to commit violent acts.

One of the difficulties of Wilson’s argument is establishing direct causality between the act and the genetic defect. A more reasonable formulation may ask what the probability is that an individual with a particular genotype will lead to criminal conduct.

If it is 100%, do we let him off on the grounds that either the act was not voluntary or he could not have possessed mens rea because of the genetic defect? If the defect only establishes a propensity to criminal activity, say 20%, then should his punishment be adjusted accordingly.”

Principles of criminal responsibility have some exceptions.

Children and mentally disordered persons are kept beyond the framework of punishment because they are incapable of understanding the consequences of criminal activity.

Even the deterrent effect of punishment is quite useless for them.

Now, the question comes, whether people having behavior disorders caused by their genes should be treated like children and insane persons, who are devoid of criminal responsibility?

A woman sought the help of Dr. Han G. Brunner, a medical geneticist, for a problem in her family.

Many males of her family for generations had been prone to violent and unprovoked aggressive activities. Information collected about the matter of the family revealed that nine of them exhibited aberrant and violent behavior.

One of such males was convicted of the rape of his sister, another attempted to run his boss over with a car, another would enter his sisters’ bedrooms at night and force them to undress. Two of the family members were convicted arsonists.

Brunner and his colleagues made DNA analysis of tissue samples of 24 members of the family. They identified a DNA marker on the X-chromosome among the affected males, but unaffected males did not have this DNA marker.

“The DNA marker was located at the locus of the structural gene for monoamine oxidase a (“MAOA), an enzyme involved in the metabolism of the monoamine neurotransmitters dopamine, serotonin, epinephrine, and norepinephrine. Affected males also displayed a marked disturbance in monoamine metabolism, suggesting

that MAO A was defective.” In Turpin V. Mobley, it was revealed that the last three generations of the Mobley family had exhibited aggressive and antisocial behavior. These people included a murderer, a rapist, an armed robber, several substance abusers, and several spouse abusers.

Behavioural Genetics and Law

Scientific and popular focus on genes and behavior is increasing, igniting the resurgence of behavioral genetic determinism. The core concept of genetic determinism is that genetics is the major determining factor of human behavior. This has grave social, legal, and ethical consequences.

Mark A. Rothstein has discussed the effects of genetics on many areas of law, including employment, insurance, commercial transactions, civil litigation, and privacy. He has outlined five general principles of law that help frame the issues of behavioral genetics and law.

1. Unitary Standard of Legal Duty

The lawfulness of an individual’s conduct is determined with reference to the standard behavior of a reasonable person, both in civil and criminal cases.

The activities of the plaintiff and defendant are evaluated in terms of whether they conform to the standard of a reasonably prudent person under similar circumstances. It assesses whether a person of average rationality could have done the same thing as testified with the help of a unitary ‘reasonable person’ standard.

Originally, it was the ‘reasonable man’ standard, first applied to negligence law in England in the middle of the nineteenth century. The legal system of the United States soon adopted the concept. The gender-neutral “reasonable person” came into use by the beginning of the twentieth century.

The reasonable person standard makes the required conduct of individuals and the outcomes of cases more predictable. This unitary and objective standard allows individuals to have reasonable expectations of the behavior of others.

In criminal law, criminal negligence is defined with reference to a reasonable person. A murder may be committed in a moment of passion, and the reasonable person standard is employed to determine whether a moment of passion can cause a murder.

If so, the charge of murder is reduced to voluntary manslaughter. The reasonable person standard implies that it is not possible to determine the precise cognitive, physical, or behavioral abilities of individuals in any legal proceedings.

Nevertheless, suppose a precise evaluation of individual characteristics were possible, and an expert witness were prepared to testify about the innate capability of an individual in a case, civil or criminal. Would this matter? Should it?

According to Dan Brock, a philosopher, “If a person’s genetic structure is a principal cause of behavior and that genetic structure is completely beyond the individual’s control, can an individual justifiably be held responsible for the resultant behavior?”

A significant change in the law’s view of the bounds of individual conduct would be made if the unitary standard were replaced with a more subjective standard.

2. Impact of Behavioural Genetics on the Adversary System

A partisan presentation of the evidence, a passive judge, a neutral jury, and a structured trial format characterize the adversary system. Under this system, the truth is not determined by the lawyers but by the judge or jury. Lawyers’ role is to provide zealous advocacy on behalf of their clients.

The presentation of exact evidence and cross-examination of witnesses finally uncover the truth. Advocates on both sides put forward all possible arguments on behalf of their clients.

Professional ethics require lawyers to be zealous advocates. Lawyers should utilize the legal procedure to the fullest benefit of the client. Lawyers are expected to present every possible argument, no matter how weak it may be, in favor of their client, particularly in criminal cases.

Defendants are given even wider leeway in submitting mitigating evidence during the sentencing phase of a criminal case. The “zealous advocacy” principle in criminal cases has led to innovative scientific assertions.

In 12 US cases, mothers were accused of murdering their infants, and post-partum psychosis was argued as a defense. The women received light sentences or were found not guilty.

Post-traumatic stress syndrome and premenstrual syndrome were also argued as defenses. Sometimes, in some notorious killings, the convicted received a lesser sentence because of innovative scientific assertions, which kindled severe criticism.

In civil cases, such as personal injury litigation, plaintiffs encounter a difficult time as they cannot prove whether the unlawful act of the defendant caused the injury.

Because of innovative scientific discoveries, “junk science” or “liability science” has emerged. Scientific experts have pushed the frontiers of scientific thinking in favor of defendants.

They assert, for instance, that a particular environmental exposure, pharmaceutical product, or medical device resulted in a particular injury to the plaintiff.

“Because of the adversary system, it is virtually certain that parties in both criminal and civil cases will assert behavioral genetic arguments well before there is general support for such views in the scientific community. These arguments are particularly appealing in criminal cases because they can be used to prove that the defendant was compelled to commit the act by uncontrollable genetic factors.”

3. Challenges for the Judges

The adversary system encourages lawyers’ zealous advocacy, further encouraging lawyers to utilize unproven scientific theories in their client’s favor. The next important question is how judges [and juries] will consider this evidence.

The available data shows that both judges [and juries] are ill-prepared to evaluate the validity of novel scientific assertions. And juries have a tendency to give much credence to arguments based on novel scientific discoveries.

Regarding scientific evidence, the lawyers face the initial problem as they have to persuade the court to view the evidence as admissible. This question was settled in the US in 1923 in Frye V. United States.

In this influential case, the court held that scientific evidence is admissible if it is generally accepted as valid by the scientific community.

The Frye-test lasted for 70 years until it was replaced in 1993 by a Supreme Court decision in Daubert V. Merrell Dow Pharmaceuticals, Inc. The court held that the Frye principle was inconsistent with Federal Rules of Evidence. Under the Federal Rules, judges cannot defer to the scientific community’s acceptance of the evidence in question.

Judges are needed to make an independent judgment to determine the reliability and probative value of the evidence. Judges must determine “Whether the testimony’s reasoning or methodology is scientifically valid.” “This is composed of four factors:

  • whether the theory or techniques can be or have been tested;
  • the extent to which there has been peer review and publication of the theory or techniques;
  • the known or potential error rate and the existence and maintenance of standards controlling the technique’s operation; and
  • the general acceptance of the methodology or technique in the scientific community.”

In spite of disagreement among judges and scholars, the Daubert principle, at least in theory, made it easier to get scientific evidence admissible in court. But for trial court judges, undoubtedly, Daubert made things more difficult. State and federal court administrators have started programs of scientific education and publication of manuals on scientific evidence to increase judges’ scientific acumen.

Lawyers under the adversary system are required to introduce insufficiently tested scientific evidence. Judges who do not have scientific expertise must decide whether methodology and theories have a valid scientific basis.

Courts are increasingly admitting novel scientific evidence, and juries often give great credence to scientific evidence. Behavioral genetic information certainly fits this pattern.

4. Genetics and Risk-Averse Behaviour

Behavioral genetic information could lead to a wide range of risk-averse actions. Carlsen V. Waekenhut Corp.33 is a good illustration of such a case. In 1994, at a Bon Jovi rock concert, a security guard attempted to rape a 16-year-old patron under the stands.

The girl then sued the security company that employed the guard for negligent hiring. She alleged that the company should have inquired into the background of the security guard before employment.

The company would then have discovered that the man had four prior convictions, including one for second-degree robbery.

The appellate court reversed the trial court’s summary judgment for the company and held that upon the discovery of a prior robbery conviction, a prospective employee had a tendency to commit criminal activities.

From the above case, a number of questions emerge.

  • Would employers in the future be put under an obligation to review medical records or make their arrangements to test whether applicants had genetic indicators of an increased risk for violent behavior?
  • Would it transgress the Disabilities Act or other laws?

A court might impose liability for failure to utilize behavioral genetic tests if they were on the market and their use by employers was not unlawful.

In an age of genetic science, people and insurers will create pressure on school teachers, daycare workers, police officers, home health care workers, or other employees to make use of genetic tests. Besides employment, behavioral genetic information could be used in other fields.

Summer camps, boarding schools, college dormitories, or other authorities will be pressed to review the genetic information of campers and students to ascertain who has genetic indicators of an increased risk for violent behavior.

5. Genetic Information and Medical Privacy

With the development of individualism, the right to privacy has taken hold. The recognition of a legal right to privacy is largely a twentieth-century phenomenon.

Under American Law, the development has taken place along three separate lines: constitutional privacy, common law privacy, and statutory privacy.

The privacy and confidentiality of medical information have not been afforded adequate protection in any of these areas. The federal constitutional right to privacy has been used to restrict the government from interfering with personal medical decisions, such as providing and withholding medical treatment, procreation, contraception, and abortion.

In serious problems like drug abuse or other problems related to the health of the people, the government can interfere.

In Whalen V. Roe, 1977, the Supreme Court unanimously held that, “Disclosures of private medical information to doctors, hospital personnel, insurance companies, and public health agencies are often an essential part of modern medical practice, even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community does not automatically amount to an impermissible invasion of privacy.”

The second privacy law doctrine, common law invasion of privacy, has evolved into four related torts: public disclosure of private facts, intrusion upon seclusion, false light, and appropriation of name or likeness. The first two are especially relevant to medical privacy.

The plaintiff must prove that private medical information has been published or disseminated to the public to establish a claim for invasion of privacy. The plaintiff has to show that the public has no legitimate concern in that matter and it will only bring shame or humiliation to an average reasonable man.

Some authorities, like employers, have a qualified privilege to disclose certain facts that are necessary to keep their business interests. In Young V. Jackson, 1990, in a nuclear power plant, rumors spread that the reason for an employee’s illness was radiation exposure.

As a result, work was disrupted in the power plant. A Mississippi court held that the employer could disclose the fact. The employer had the right to tell employees that the plaintiff was ill due to the effects of a hysterectomy.

The third main legal method of protecting privacy is statutory. Various state and federal statutes deal with one or more aspects of medical privacy, but adequate protection has not been provided by any of these laws.

Oregon enacted the nation’s first state law in 1995 to protect the privacy of genetic information.

Subject to various exceptions, the law provides, among other things, that no person may obtain genetic information from an individual without informed consent, no person may retain genetic information without obtaining specific authorization, and no person may disclose genetic information without specific authorization.

A similar ‘procedural’ law has been enacted in California.” The laws only prohibit the unauthorized collection, retention, or disclosure of genetic information.

There are many instances where the law has nothing to do with individuals being needed to give genetic or other medical information as a condition of employment, insurance, education, commercial transactions, and other matters.

Behavioral genetic information will not get better privacy protection than other types of medical or genetic information. Constitutional, statutory, or common law theories may limit some overly intrusive inquiries or unnecessarily extensive disclosures.

To safeguard the privacy of genetic information, a wide range of substantive limitations in each area will be enacted.

The Genetic Information Non-discrimination Act (GINA)

The Senate of the USA passed the Genetic Information Non-discrimination Act unanimously on April 24, 2008.

President George Bush has promised to sign it and is expected to do so within days. Senator Edward Kennedy hails GINA as “The first civil-rights bill of the new century.”

Louise Slaughter, a woman ahead of her time, deserves credit for passing GINA, as over the past 13 years, she has repeatedly tried to get Congress to adopt legislation to prevent the abuse of an individual’s genetic information by insurers or other third parties.

In the past few years, scientists have discovered genetic causes of diseases, and now various firms offer direct-to-consumer genetic tests.

It has been apprehended that insurance companies and employers will use genetic information against people, and now they are convinced about it.

The positive feature of GINA is that it will protect health data, as companies will be prevented from using genetic information in deciding whether to employ someone. This Act will also enjoin the insurers not to discriminate against individuals because of their genetic proclivities.

The bad news is that GINA will cover conventional health insurance, not life insurance or “long-term care” insurance. Health is not the only area where genetic privacy is threatened; more interestingly, it involves the police.

Following Britain’s footsteps, Californian officials have expanded the “familial searching,” which allows officials to pursue a suspect by examining any DNA of his relatives already found on official databases, even if those relatives are not suspected of the crime in question.

The American Civil Liberties Union considers this a “dramatic expansion of police power,” which will unfairly interfere with the privacy of blacks, as they are over-represented in the criminal database.

Kathy Hudson of the Genetics and Public Policy Centre points out that many mothers lie to their partners about their children’s paternity as they apprehend that the inspectors could reveal the secret, which may needlessly break up families.

The battle for genetic privacy goes on despite the fact that GINA is going to be passed.

Implications of Genetics on Law

Not only genetics, but spectacular developments in different branches of science have created multifarious implications for the law.

Scientific inventions require proper legislation for their smooth regulation on the one hand and resolution of matters that touch and create complexity in human life by the court on the other.

At the threshold of the twenty-first century, the interdependence between law and science is expanding. People associated with the legal and scientific arenas are developing extensive interrelations.

Without this interrelation and interdependence, both law and science cannot keep pace with the exigency of the times.

In Judicature, Justice Stephen Breyer very eloquently underlines the interdependence of science and law and writes that “law itself increasingly needs access to sound science” and that scientifically complex technology “increasingly underlies legal issues of importance to all of us.”

Justice Breyer reminds us that “a judge is not a scientist and a courtroom is not a scientific laboratory,” but that “to do our legal job properly we [need] to develop an informed, though necessarily approximate, understanding of the state of… relevant scientific art.”

The aim of the Human Genome Project, formally started in 1990, is to identify the estimated 3 thousand or more human genes and determine the sequence of 3 billion base pairs. Due to the tremendous progress, the Human Genome Project was completed in 2003.

This titanic development in genetics has heavy implications for the legal system. Should a court of law admit scientific evidence? This has long been a crucial issue and has been considered by the US Supreme Court in a number of cases.

As early as 1923, the court held that scientific evidence was admissible provided that the scientific community accepted it as valid. This decision was a guideline for the courts to accept scientific evidence for a long time until another landmark decision replaced it.

In 1993, the United States Supreme Court abandoned the 70-year-old Frye test and established a new standard, which introduced a method to verify the reliability of scientific evidence and cast heavy responsibility on the trial judge, who was assigned to perform a gatekeeper’s role.

The Daubert principle created difficulty for judges as it placed extensive responsibility on them to examine the reliability of scientific evidence and accordingly determine the relevancy of evidence when deciding a case.

The Supreme Court, in a recent decision, clarified and further elaborated the gate-keeping role of a judge regarding evidence.

In Kumho Tire Co. Ltd. V. Carmichael, 1999, an action was brought for recovery of injuries caused due to a tire blowout. The plaintiff solely relied on the testimony of an expert for the proof of the causation of injury, and the expert said that the tire was defective.

Applying the Daubert principle, the trial court excluded the expert’s testimony because it found the opinion lacked sufficient grounds to rely on. The Court of Appeal took a reverse view and held that the subject of the expert’s opinion, tire technology, fell outside the scope of the Daubert principle.

US experience underlines the role of judges, who need to develop expertise to verify the reliability of scientific evidence and its utilization in making legal decisions, specifically in criminal cases. Lawyers are increasingly tending to present mitigating reasons to exculpate their clients with reference to new discoveries in genetics.

Modification of legal principles and making of new laws are suggested in the context of increased interdependence between law and genetics.

First, an individual’s legal responsibility is usually determined by the unitary principle with reference to the standard behavior of a reasonable person.

This principle is not applicable to children, the insane, and people who have a behavior disorder. A model criminal justice system keeps insane persons and children beyond culpable responsibility, as they cannot understand the consequences of their (criminal) activities.

A person requires condonation if he commits a crime due to genetically transmitted traits. Legal experts, therefore, suggest that the unitary standard of the reasonable person needs to be modified and replaced by a more satisfactory principle.

Constitutions of most countries have protected citizens’ right to privacy. But constitutions and laws safeguard only the external aspect of the right to privacy. They did not foresee its internal (or biological) aspect, which recent genetic developments have uncovered.

For example, the Bangladesh Constitution protects every citizen’s right to be secure in their home against entry, search, and seizure, as well as the privacy of their correspondence and other means of communication. Like most constitutions and laws, it does not protect individuals’ genetic privacy because genetic information was not available when those laws were made.

New scientific discoveries have seriously threatened the privacy of genetic information. Violation of genetic privacy takes place if genetic information is made publicly available.

The government, employers, educational institutions, or any other authority may ask students, prospective employees, and individuals to submit their genetic information.

To avoid any possible deviation, they may intend to be on the safe side.

The authorities’ view may collide with the interests of the people, who seem reluctant to submit their genetic information, apprehending a violation of their genetic privacy and their submission to public ridicule.

Appropriate laws are, therefore, required to give legal protection to the right to genetic privacy.

Some countries, most of which are developed, have already enacted new laws or amended constitutions or are considering making new laws to guarantee the genetic privacy of citizens.

However, developing and poor countries have yet to consider this aspect of regulation.

Challenges for Judges and Lawyers

The Daubert principle puts judges in a position to play the role of gatekeepers; hence, they require scientific knowledge to scrutinize scientific evidence. Claire L. Heureux-Dube very correctly noted that “the law cannot lag behind science; in the best-case scenario, they will complement each other and thus serve the public interest optimally, and for this, they need adequate scientific knowledge.”

The Daubert standard requires judges to screen expert testimony due to a very sound rationale: lay jurors, when determining the truth, may be adversely influenced if they are exposed to unscrutinized scientific testimony.

In the context of tremendous genetic development, judges require special science education to understand complex cases and adjudicate the matter to promote the cause of justice. Workshops, conferences, seminars, and symposiums are being held to give judges sufficient information about genetics.

The Einstein Institute for Science, Health, and the Courts (EINSHAC) initiated a series of conferences; the first was held in May 1997. Conferences were held in Chicago, Salt Lake City, Orlando, and Cape Cod throughout 1998.

A combination of laboratory science, background, and judicial application problems was the main focus of eleven molecular science conferences. The curriculum of the three-day EINSHAC conferences included genetics, molecular biology, and biotechnology.

Around 1,100 judges attended the conferences. In 2000 and 2001, six more conferences were held, catering to 1,000 judges, training to keep them abreast of the latest developments in genetic science.

Genetic science has created wide opportunities for lawyers in common law countries.

In common law legal systems, lawyers on both sides put forward all possible arguments on behalf of their clients. They try to maximize the full advantage of the adversary system; particularly in criminal cases, genetic arguments are more likely to provide mitigating reasons.

The more informed they are about the development of genetic science, the more strongly they can defend their clients, and the more likely they will win the case.

Lawyers in developed countries like the USA, UK, and Canada seem to be aware of the recent developments in genetics. Among them, there is an increased tendency to invoke scientific findings. They seem to have taken up the new challenge.

But lawyers in developing countries like Bangladesh are far behind in taking up the challenge. Even the judges and people in the justice system remain in the wilderness. They need to develop scientific expertise to cope with the changing needs.

Ongoing developments in genetics have legal, ethical, and social implications. Society should be prepared to deal with the new developments. They must also be wary of the possible dangers of misusing and manipulating genetic information.

Countries will require collective and individual efforts to minimize misuse and utilize genetic information to the best advantage of their citizens.

Very soon, the genetic revolution will pervade every sphere of human life and revolutionize the whole human society, leaving no corner untouched.

Judiciary personnel will be the foremost actors to be trained sufficiently and to handle cases involving genetic determination in a way that prevents a miscarriage of justice.

The Human Genome Project envisions a radical change in human society, suggesting the development of sufficient tools to handle the aftermath of the revolution, a challenge that humanity has never met.