Suppose we could erase memories we no longer wish to keep. In such a world, the victim of a terrifying assault could wipe away memories of the incident and be free of the nightmares that such memories often cause. Some memories, however, even quite unpleasant ones, are extremely valuable to society and ought not be eliminated without due consideration. An assault victim who hastily erases memory of a crime may thereby impede the investigation and prosecution of the perpetrator. In a world with memory erasure, our individual interest in controlling our memories may conflict with society’s interest in maintaining access to those memories. We tend to think of our memories as our own in some fundamental way. No one else should have the right to control such an important aspect of our minds. But what if we really could manipulate our memories? Is it so clear that our memories are entirely our own?
Neuroscientists are working to develop drugs that dampen the emotional intensity of traumatic memories. Some research suggests that propranolol, a drug already approved by the FDA for treating hypertension, can dull the emotional pain associated with the memory of an event when taken within six hours after the event occurs. Researchers are now conducting larger studies with propranolol to test these preliminary results and to explore whether propranolol can safely be used to ease traumatic memories from the more distant past. While we already have lots of other drugs that affect the formation of memories once you start taking the drug (common in certain forms of anesthesia, for example), there isn’t much we can do to affect memories that have already formed. And that's what we'd need to treat past trauma. So it's possible that propranolol could fill an important niche.
If propranolol does affect the emotional valence of memory, the effects are probably modest. And it is unclear whether propranolol also dampens factual associations with memories (the PDR lists short-term memory loss as a side effect of the drug). But even if propranolol falls flat, some more potent drug is likely to step into its place. In 2004, U.S. veterans received benefits payments for PTSD totaling $4.3 billion. Clearly, there’s lots of interest in finding comparatively inexpensive pharmaceutical methods of easing or preventing the emotional distress associated with bad memories.
How, if at all, ought the law to change in a world where we can dampen factual or emotional aspects of memory? Memories serve two distinct roles in the legal system. First, they play an indispensable role in fact-finding. We gather memories in depositions, trial testimony, police investigations, lineups, and more to help establish the underlying facts that set the entitlements of disputing parties. We value these memories principally for the information they can provide. Second, memories and their associated affective states can themselves form part of a claim for damages. If you injure me and cause me to have upsetting memories, I can sometimes seek redress for the intentional or negligent infliction of the emotional distress associated with those memories.
So, memory-dampening drugs that affect factual recall could raise interesting legal questions relating to obstruction of justice, spoliation of evidence, hearsay evidence, the value of eyewitness testimony, and more. Drugs that affect the emotional valence of memories raise questions about informed consent, mitigation of emotional distress, the valuation of the harm of erasing memories that should have been kept and the harm of keeping memories that should have been erased, and more. There are also plenty of interesting questions of constitutional law, many of which straddle both factual and emotional aspects of memory.
Admittedly, the technology will have to improve before we have to confront these issues on any regular basis. Nevertheless, drugs like propranolol have already been tested on human subjects who show up in the emergency room with trauma from assaults and car accidents. Suppose, as seems quite plausible, that there is civil or criminal litigation associated with some of those assaults and car accidents. Even if propranolol has no significant effects on memory, courts will at least need to explore and address the scientific validity of claims made about propranolol. After all, a good attorney will certainly ask a witness who participated in one of these studies, “So, is it true that you participated in an experiment by a researcher at Harvard Medical School into drugs that alter the intensity of memories?” We are thus confronted with legal and ethical issues related to memory dampening even before we have effective memory-dampening technologies.
Moreover, in my next post, I’ll discuss a true story that raises several interesting legal and ethical questions related not to some weak form of memory dampening but to what we can fairly call memory erasure. Not only is the story not science fiction, it’s over ten years old! Stay tuned . . . (In the meantime, you can find my much fuller account of the above discussion with citations here. My article challenges some of the ethical claims of the President's Council on Bioethics, which is highly skeptical of the merits of memory dampening.)
As government and other organizations work hard to micro manage our lives and point out our deficiencies I can see
that it would be important to find ways to make us plu-perfect.
It seems to have worked well in cattle and crops.
The first 2 paragraphs of the intro that reference Pursuit of Happiness and making people "more perfect" should make the political sell much easier.
I also noticed that there was already the blurring between therapy and enhancement and therapy appeared to be winning.
So all will eventually be therapy.
From the intro:
"Not everyone likes the idea of “remaking Eden” or of “man
playing God.” Not everyone agrees that this prophesied new
world will be better than our own. Some suspect it could
rather resemble the humanly diminished world portrayed in
Aldous Huxley’s novel Brave New World, whose technologically
enhanced inhabitants live cheerfully, without disappointment
or regret, “enjoying” flat, empty lives devoid of love and
longing, filled with only trivial pursuits and shallow
attachments."
But, apparently, some do like it.
Nietzsche maybe?:
“super-humanization.” It compels attention to what it means to be a human being and to be active as a human being. And it is far from being simply futuristic: current trends make clear how the push “beyond therapy” and “toward perfection and happiness” is already upon us—witness the growing and increasingly acceptable uses of cosmetic surgery, performance-enhancing drugs, and mood- or attention-altering agents.iii
News June '04
Bush plans to screen whole US population for mental illness
Jeanne Lenzer
http://www.whitehouse.gov/infocus/newfreedom/toc-2004.html
I had a Great Aunt, different country different time, she suffered the full weight of a philosophy very similar to this.
Sorry to have veered from you legal issue.
God help us. Is it so hard to see that some things are just bad ideas? Imagine a world where trauma is not stress-inducing, and not just Brave New World but some sort of horrible Heinlein / Howard mash-up should be thrumming in your head.
Lots to think about.
Imagine a world where pain is not stress inducing. If people could erase the physical pain of an injury just by popping a pill, who knows what insane risks we'd run. Society might well collapse.
All things in moderation, man.
If the government exists to serve the people, then clearly the answer is, "Yes, our memories are our own." If the answer is "No," then the people exist to serve the government.
Bruce
Beta blockade also seems to be a good thing under many medically stressful situations because the unchecked response can sometimes carry things metabolically too far. e.g. a physiologically stressed burn or multitrauma patient will consume their own muscle to their detriment dispite administration of protein calories in their diet or blood stream. Only the use of beta blockade (propranolol is one) will stop the body from consuming its own muscle as a source of fuel even in the face of pleanty. Even a perfectly healthy heart, under the surge of stress hormones can go into failure in a manner that is clinically indistinct from other life threatening cardiomyopathies. For this group beta blockade can be life saving, not merely helpful with rememebering the emotional component of the inciting memory.
I don't think there is evidence that propranolol modifies or erases the memory, but it does attentuate the emotional link that can later prove to be debilitating.
But then I suppose an attorney representing their client's interest as a zealot would not be interested in this uncertain analysis, and would hammer away at the propranolol doped witness until they needed propranolol after the cross examination.
As Gasman's technical post states, "there is no evidence that it actually erases memory, but it does alter the emotional connection to those memories."
They featured several trauma victims, some of whom have been reliving very painful memories for decades. But, miraculously, after taking the drug they were no longer bothered by these memories.
For instance, I remember a woman who retained memories of a violent rape. Understandably, this tragedy caused her to have severe intimacy issues. But after the drug, she was a completely different person and was able to live life as if the tragedy never occurred. Again, remarkably, the memories themselves didn't fade. Rather, it was the pain associated with the memories that did.
One need only look a show dogs in the American Kennel Club -- creatures who are perfect in identified criteria but are otherwise largely unable to functiomn in life -- to understand what life will become like for us if health becomes defined, not by empirical experience, but by our desires.
Some of the world's greatest thinkers, artists, and creators have been those who have dealt with and overcome traumas. I wouldn't assume that the human capacity for trauma has no value. Our humanity comes largely from our ability to find meaning in suffering. In a Brave New World where experience is manipulated by drugs, we are not only not human, not only static and unable to develop, but not free. Similarly, 1984 depects a world where human memory is malleable by psychological technique. Freedom requires self-acceptance.
Back to your more sci-fi hypothetical, I doubt that there is any way of preserving the memories prior to their elimination that wouldn't amount to "testimonial hearsay" under Crawford, so I guess our office would just be SOL if it happened. And I can't say I'd disagree with that. Watch "Total Recall" and try to tell me with any kind of certainty whether or not you believe the pre-memory-wipe Arnold is telling the truth in his video statement.
But from how it's being described, this propranol drug just may alter the emotional states attached to a memory, not the recollection of events as such, and so I think common sense would tell us that a witness is still reliable despite having used it, no matter how much of a show the defense attorney will put on about it.
As for the social/cultural impact of such medications, I can't see how it'd be any worse than we already have with the widespread use of psychotropic drugs turning people into mind-numbed, passive, inauthentic beings.
Date rape drugs, on the other hand, block the first stage of memory. In other words, the event is never registered to begin with.
Flashbacks from PTSD are a good example of emotion/hormone filtered memories. Even memories that are not horrifying can come back as "flashbacks" if the triggers are there. In the latter case they may cause a more palatable emotion to arise and would not be considered pathological. And people differ in the ways that they can handle or tolerate flashbacks. We don't know why this is so, but it probably has to do with both brain development and enviromental factors.
In a practical sense, propranolol has not been all that helpful because of the six hour limit (which is not that well proven, only a few patients have been looked at) and because each person has a different response to trauma and there is no objective way to determine if the medication even worked as advertised. Even the statement that it "attenuate(s) the emotional link" is subject to change as we explore this therapy further.
As a speculative exercise it is fun to argue for or against the use of a drug that will selectively mind-wipe you, but we are not at a point where we can say such a drug exists or is even on the horizon. There have been many promising drugs and techniques that have looked good in the initial trials that were utter failures later on so there is no reason to think that the speculation shown in this thread has any validity.
Not for now, at least.
I am a lawyer &I also spent 20 years as a firefighter. May I suggest that there are two other drugs that are in virtually universal use that are more pertinent? Versed (midazolam) and propofol (a/k/a "Milk of Amnesia). These drugs are given by paramedics & ER docs to trauma victims almost in every case. The specific purpose is to induce amnesia. As a paramedic told me: "I am about to paralyze you and stick a tube down your throat -- you want to remember that?"
Versed induces amnesia from the point of injection forward. Propofol induces retrograde amnesia for several hours. This means the memories of assault victims with sever injuries are nonexistent for the most part. To the extent they think they remember what happened, it is because they have been told by others what happened and integrated this in to there memories.
And these people are called to testify as percipient witnesses.
My concern, however, is that, as we have often seen, this drug may do more or less than promised. What are the long terms effects of the drug? Will it dampen down the effects of joyous events? What about future trauma? Will it affect just regular emotions? Then we have the situation that every person is different. Can we be confident that the drug acts the same way in all or most people? Are the effects permanent or temporary?
Then there are the doctors. What if they prescribe too much, or too little? What if they prescribe it in situations where it it not needed or called for?
Okay, so I didn't do my research, which would probably answer some of these questions. But I think we have to be very careful with something like this.
As DaSarge points out, non-general anesthesia is often administered together with tranquilizers, one of whose effects is to eliminate short-term memory retention. I've experienced this at least once when I had a minor surgery. I found it a very disturbing experience.
Ah, yes-- the demonizing "The." The Jews. The Moslems. The Klingons. The doctors.
No broblem if doctors prescribe too little-- right? But if doctors--- the doctors-- prescribe too much, they might try to manipulate and control the minds of innocent little guys like you, huh?
But let me turn to serious qualms about administration of drugs that blunt the emotional impact of specific memories.
What if administration of such drugs were to block the emotional impact of physical trauma sufficiently to prevent post-traumatic stress disorder. Wouldn't you want to offer it to such a person? (We are not talking about erasing memory here.) I certainly would want it if I were a victim of a violent crime or accident. The effects of suffering are not all positive. "Reader Y" should be aware that not all suffering conveys meaning. Some suffering cripples people physically and emotionally. For example, for every Elie Wiesel there were many Holocaust survivors who were miserable, phobic, and neurotic as a result of their experiences, and who derived no humanizing meaning whatsoever from their experiences as guests in Buchenwald or Auschwitz.
And if these drugs reduced the conviction rate, would that be so bad? (Arguably, if the effects of a crime are less, the punishment should be less, or at least this would follow from a retributional theory of punishment.)
And a utilitarian would argue that mitigation of harm to victims is more important than punishing criminals.
Moreover, the degree to which chemically blunting the emotional associations of the event memory itself will reduce or eliminate PTSD is uncertain. Indeed, part of the trauma of the event is what happens afterwards - medical treatment and the legal system can inflict further trauma or exacerbate existing trauma. For some individuals (myself included), the realization that their memory has been altered is itself highly disturbing and stressful.
Finally, punishing criminals is important to society less for its retributional value than for its value as a specific and general deterrent. If treatments such as the one being tested were to become standard and were to affect memory in such a way as to make conviction less likely, offenders could go on to inflict trauma on numerous victims with impunity.
It is one thing for an individual who is suffering PTSD to use a drug that can relieve his suffering at the potential expense of the accuracy of his memory. For one thing, the patient would be able to make an informed choice about the relative value of blunting his memory and mounting an effective prosecution/lawsuit - he could decide to suffer a little longer in order to ensure that his victimizer pays for his acts. It is quite another to preventively administer it to people suffering a wide range of traumatic events within the first 6 hours after the event. Dismissing these issues as theoretical philosphizing by people who don't understand the reality of mental illness is unfair.
(BTW - I speak as someone who has suffered PTSD. Personally, I wouldn't want to have taken such a drug even if it were effective, but I know others who would and recognize that there may be certain events which would cause me to change my mind.)
If people erase their memories, and then hear about them second-hand, i'm sure it's not that bad. It's not like you wouldn't know that you erase the memory of a rape. You'll get the bill from the memory erasing place (which, if it's about the cost of Lasek surgery, many people will pay in installments - a constant reminder).
Victims of violent crimes (and other unpleasant experiences) have controlled (or attempted to control) their memories from time immemorial. (No pun intended). Up until the advent of modern psychopharmacology, they have relied on things like alcohol, hashish, cocaine, morphine, and other similar substances. Without a doubt, these substances affect both the perception of the outside world (dulling some and heightening other emotional experiences) and affect one's memory. (Alcohol abuse is specifically associated with amnesia).
To be fair, since these "crude" drugs are not specifically targetted to memory modifications, they may take some more time to actually affect the societal interest. (I.e., rape victim who starts drinking as a response to the rape is not likely to develop amnesia for years). Nonetheless, because oftentimes trials occur many years after the criminal act, drug or alcohol abuse can play their role.
Furthermore, it is well known that victims of unpleasant events often suppress their memories even without any psychotropic substances, as one of the defense mechanisms. This occurs as a natural consequence and response of being exposed to great stress. It may be that in some cases, such "forgetting" may be overcome with psychotherapy, but it seems doubtful that psychotherapy can be ordered in order to recover memories that may be useful in serving some societal interest. (Even if psychotherapy COULD be ordered, it is doubtful that it would be successful with an unwilling subject).
It seems to me that if the crimes victims can "self-medicate" with alcohol or illicit drugs (and medicate they will), it is a far better policy to allow them to take properly targetted drugs under MD's supervision. Such medications may very well affect societal interest, but only marginally more so than it is currently affected.
Here's an interesting question: Person X witnesses his friend committing a crime. In spite of his moral repugnance for his friend's act, he doesn't want to testify; his friend's well-being weighs more strongly with him than his desire for justice. Legally, he can't refuse to testify. But what if, prior to being served a subpoena, he uses auto-hypnosis to block his memory of the event, until after his friend has been tried? (Which might never happen, of course.)
But the formation of "emotional" memories uses different neurotransmitters, which are not so much affected by the stress hormones. So the "natural" state of someone who has been through a terribly traumatic event is that the person has full recall of the trauma but only fragmented memories of the facts which would be useful in making us believe that we had the right perpetrator.
The legal system already vastly overestimates the accuracy of eyewitness testimony, especially eyewitnesses who would have been experiencing mass waves of adrenalin during the crime. Yeah, these drugs might make things worse, but only marginally. If, as some here have claimed, the drugs have the ability to erase the emotional trauma of the memory but not the unemotional "just the facts" part, then you could certainly argue that they would make things much better. In those eyewitnesses so traumatized by events that they only have emotional memories, and so their eyewitness testimony is substantially "filled in" (i.e. false and invented, albeit unconsciously), the drug will remove the mental incentive to fill in the memories (making sense out of the trauma.) This would be a clear advantage as it would remove eyewitnesses who will unwittingly give false testimony.
Going further than that, what would happen if we could selectively edit memories? What would we do with criminals who choose to simply forget their stint in the penn? Would prison sentences be devalued to nothing, and if so, what could we resort to short of lethal punishment?
While "scarring, painful surgeries and treatments, extended hospitalizations, social stigma" would be covered, they wouldn't be coverable as pain&suffering. The point (in theory) of allowing suits is to restore people to the state they were in prior to the tortuous action, if a doctor's visit will do that with regards to the pain&suffering component then it would seem that a doctor's visit is suffiecent to meet the requirements of justice. If there is ongoing pain I can see an award beyond the doctor's visit for pain&suffering but if the pain is confined to a definite period of time and the emotional associations (suffering) of that pain can be eliminated than a doctor's visit should be sufficent. I agree that, unless one were to craft a new form of compensation to deal with the other long term effects, pain&suffering awards could not become standardized.
Which still leaves the question of Intentional Infliction of Distress, if the distress can be easily eliminated medically, is it still a tortuous act?
2. I also suspect the law has long ago learned how to work in the face of witnesses who die before they can testify. Take a pill, or die. In both cases the memory is lost. Would anyone contend society has the right to force someone to prolong their life simply to get testimony in court?
how did abortion get dragged into this debate? what evidence do you have to show that people who support abortion are being disingenuous with their positions?
It seems to me that planting abuse memories in a child through brainwashing is a horrific crime second only to planting abuse memories in a child through actual abuse, yet this doesn't seem to be a very common idea. Most people seem to see the person wrongly accused of abuse as the victim, and yeah, I see them as victims too, but most people don't seem to see the brainwashed kids who have to live the rest of their lives with these horrible memories as also being victims.
Actually, if pain to victims could be reduced, but at the expense of inflicting pain on the perp, it is a utilitarian no-brainer. There is no trade-off here whatsoever. The victime doesn't feel as bad with this hypothetical drug, and a certain proportion of perps don't get to go to jail.
If PTSD is caused by a sudden, severe trauma, then blunting the emotional empact of that trauma should prevent at least some of it. In any event, the discussion is hypothetical, and I was hypothesizing whether a drug that had such an effect should be used.
That is a controversial statement, with which I happen to agree. However, modifying the severity of the consequences of any criminal act might modify the punishment of the crime. Say it were possible to make all shirts and pants bulletproof with no discomfort or expense to the wearer. The consequences of people illegally shooting other people would drop, and sentences for criminals who shot at others would drop as well, as what would otherwise be murder turned into some degree of assault. I would not opppose making shirts bulletproof on the grounds that we couldn't put shooters into jail for as long as before because they aren't inflicting as much harm. You see the analogy-- if we could blunt the emotional trauma of a crime, that would be GOOD, not BAD, becasue most people would prefer be happier than to get a larger settlement or to see the perp go to jail longer. Saying that the drug won't do that is not a response. Propanolol may or may not, but we are talking about a hypothetical drug that will.
But the drug we are talking about does not wipe out memory; it just blunts the emotional response to it.
Most perps can't pay a lawsuit judgment. Most potential victims would not want to suffer more harm just so those who hurt them suffer more harm as well. I would not force a drug on anyone, but would certainly offer this hypothetical drug to anyone upon whom it would be effective. The principle of informed consent would apply. When a person is unable to consent because of unconsciousness or something like that, there is presumed consent that doctors should do their best to make the patient as healthy as possible. If you were unconscious (in any event, if I were unconscious) and a doctor had the choice of setting a broken arm or cutting it off, I hope he would set it. That's how real doctors operate-- maby not the "the doctors" of Randy R.'s post
Victims consent to suffer more harm in the name of improving the chances that the people who hurt them will be held accountable all the time. Whether it's an uncomfortable medical exam or reliving the experience repeatedly in depositions, witness prep, and court rooms, they make that choice every day because they and society believes that the harm is worth the societal and personal benefit of holding the perpetrator or tortfeasor accountable.
As for whether the doctrine of implied consent would cover this treatment for patients who are unconscious - maybe, maybe not. Since the relevant standard is, at least in some jurisdictions, whether a reasonable patient would consent, it would depend on the likelihood that the treatment would actually reduce the harm, the magnitude of the reduction, and the trade offs that a reasonable patient would face. A small reduction in the risk and magnitude harm might be enough if the treatment doesn't make the victim's testimony less useful in subsequent legal proceedings. A large reduction might also be enough despite a significant risk that the victim's testimony will be deemed to unreliable to be admitted.
As it stands, this is all, as you say, hypothetical.
I agree with you, and so for that matter do Shakespeare and John Milton:
"There is nothing either good or bad, but thinking makes it so." (Hamlet, Act II, scene 2)
"The mind is its own place, and in itself / Can make a heaven of hell, a hell of heaven." (Paradise Lost)
Neither our society's laws nor its morals have yet come to grips with the lessons psychology and neuroscience learned during the 20th century, and continue to learn: that perception and consciousness can be radically altered, and that this alteration can be beneficial or harmful, redemptive or self-destructive. That our selves -- our personalities, our perceptions, and our morals -- are material and chemical in nature, and hence mutable.
Much of our morality is thoroughly prescientific in nature, not out of any fault, but because science is a latter-day feature of humanity, and morality an ancient one. Our ancient instincts -- our fears, our lusts, our xenophobia, our nepotism, our vengeance -- know little of it. We may still wish revenge upon a former psychopathic killer even if it is shown that he has reformed or been treated: that whatever chemical imbalance caused his former rage is gone, and provably will not harm any more innocents.
It was one of American society's medium-sized mistakes that it shoved Prof. Timothy Leary into the counterculture. His early work was widely illuminating: failed members of society -- imprisoned criminals -- could accomplish willing and beneficial psychological changes with a combination of counseling and neurochemical alteration. While the CIA was looking for brainwashing and interrogation techniques using psychedelics, Leary and Alpert were looking for ways to turn bad people good: and to do so through mind-expanding experiences rather than confining, punishing ones. And, to some extent, it worked: or at least, it was promising and worthy of more investigation, rather than being shut down in a moral panic.
Certain of the moral problems of today and the future can only be resolved if we come up with ways to think about selfhood and personhood that acknowledge that it is material and chemical, that it can be changed. When is it right to give a child mind-altering medications (such as Ritalin)? Should psychological differences, such as Asperger's syndrome, be considered useful variety in the human species, or harmful diseases? How shall we deal with the increasing variety of mind- and ability-altering drugs -- therapeutic, recreational, and in-between? What does it mean to be the same person in a world where memory, perception, and mood will be increasingly subject to alteration on demand?
Just have a rule that says people have to give testimony in an adversarial setting before they can erase their memories.
I wish it could be done that way, but it's not practical. The presently available drugs must be administered within a few minutes or at best a few hours after the event. With a victim who has been traumatized badly enough to need such a treatment, even getting informed consent is a problem, let alone getting a coherent account. I expect the drugs will get better, but not good enough for "testimony in an adversarial setting". Who would the "adversary" be? By the time you've identified a suspect and he's hired a lawyer, it's probably weeks or months later. I hope no one ever develops a drug that will erase weeks or more of your past, and I'm quite sure there will never be one precise enough to erase a selected few hours weeks ago.
OTOH, drugs that reduce the traumatic emotional associations without affecting the memories would avoid many of these issues - hopefully including the long-term psychological effects of finding holes in your memory. (I've known schizophrenics that lost huge pieces of memory to the disease, the prescribed antipsychotics, and/or "self-administered" drugs, and this certainly added to their suffering.) What we need is better versions of propanol, not better memory erasers.
I dragged it in. Many contend a woman has the right to control her own body. Under that principle, she would also have the right to control her own memories.
I didn't say people who support abortion are being disingenuous. I offered the observation that we have had a similar discussion regarding the control over one's body for many years.
I offer no evidence because I made no claim.
However, do you think it is consistent for someone to support a woman's right to abort a fetus in her body, but not to abort memories in her body? I see the same principle involved in both.