assumption of risk Archives - Prindle Institute

June 3, 2022December 14, 2022

Law Enforcement, Role-Based Duties, and Bodily Autonomy

On May 24th 2022, 21 people from Uvalde, Texas, lost their lives in an elementary school mass shooting. As people across the country experienced vicarious horror hearing the stories of the children who witnessed the atrocity, discrepancies and changes in the police report started to grab the attention of the general public. In all, the Uvalde police department made a total of 12 report updates and amendments, finally settling on one attention-grabbing fact: of all 19 armed officers and guards who were present at the active crime scene when the shooting began, none of them entered the room where the gunman had barricaded himself with a class full of students. This continued for 78 minutes, until the classroom was finally breached and the shooter killed.

Much of the public conversation surrounding the response of the Uvalde Police Department has focused on the motivations behind the officers’ reluctance to enter the classroom. Namely, on their own admission, they were concerned they would get shot. This is clearly not an irrational fear: they would have to enter the classroom not knowing the position or state of the gunman. Like anyone confronting another with a gun, they would be in danger. But most people’s views of the situation seemed unmoved by these facts.

The overwhelming public consensus was that this danger was precisely part of the role of police officers. By failing to take on this risk, the officers were neglecting a crucial aspect of their duties.

The question of the extent of self-endangerment obligations is one that has arisen in other cases of controversial uses of deadly force among law enforcement officers: for example, Darren Wilson’s killing of Michael Brown and Philip Brailsford’s killing of Daniel Shaver, among many other cases. In many cases where the self-defense plea was used to argue the officer’s case, the plea was successful: officers could kill to preserve their own life, if they legitimately feared for it. Leaving aside the crucial question of how racism and subconscious bias factored into the officers’ perception of threat, we are left wondering: if the officers did feel threatened, isn’t their primary duty still to the public, even when that public currently seems threatening? More simply: under what circumstances are law enforcement officers required to risk their lives for the sake of helping others?

In the wake of the Uvalde shooting, a 2005 Supreme Court decision began making the rounds on social media for its surprising answer to the above question.

Namely, the Court ruled that law enforcement officers had no constitutional duty to protect a person from harm. They would violate no constitutional duty to refrain from assisting someone who needed, or even requested, their assistance.

Of course, this does not mean that there is no sense in which officers must risk their lives for the public. Officers are supposed to respond to orders to serve — orders which come from their captain or chief of police. In the case of Uvalde, the chief of police had not told the responding officers to move in on the shooter. But what if he had? Can someone’s job ever obligate them to risk their life for the sake of another?

In a strictly moral sense of “obligation,” the answer seems to be, very plausibly, yes! Many philosophers accept a category of moral obligations that are attached to specific relational or social roles. For example, one may think that someone ordinarily has no moral obligation to donate a kidney to someone in need of one. But they may also believe that this obligation does kick in if the person in need of the kidney is the donor’s child. The changing variable in this case is the relationship that the donor stands in to the recipient: they have special obligations to the recipient based on their social or familial role.

The idea of role-based obligations goes back at least as far as the ancient Chinese philosopher Confucius. The Analects, a collection of his teachings, describes the following exchange:

Duke Jing of Qi asked Confucius about government. Confucius replied: “Let the ruler be a ruler, minister be a minister, father be a father, son be a son.” The Duke said, “Excellent! Indeed, if the ruler is not a ruler, the ministers not ministers, fathers not fathers and sons not sons, even if I have food, how can I eat it?”

Here, Confucius points to the importance of role-based obligations for maintaining social cohesion. It is clear that, if parents universally and routinely ignored their special role-based obligations to their children, there would be a huge humanitarian crisis to contend with. It is clear that, if law enforcement officers or other kinds of civil servants ignored all role-based obligations to protect those they serve, the social order would lack a class of protective services that, under ideal conditions, seem crucial to the well-being of a nation.

The legal question of such obligations, however, is more complicated. In the majority of U.S. states, commercial surrogacy (contracting paid gestational labor from another) is illegal. In these states, such contracts are prohibited because they are deemed unenforceable: a citizen cannot sign away their rights to bodily autonomy, even of their own volition. Therefore, most terms of the contract would be unenforceable, as a surrogate would maintain the right to, say, obtain an abortion as allowed under the particular state’s abortion laws. Would a labor contract that required law enforcement officers to risk their lives on command be less of a voluntary relinquishing of bodily autonomy than a surrogacy contract?

On the other hand, there is an obvious and prominent counterexample to the idea that no contract can oblige someone to surrender some bodily autonomy: military service.

When someone signs up for military service, they relinquish their right (while on duty) to choose their own clothing, haircut, and innumerable other aspects of their day-to-day life.

Of course, they also obviously contract themselves into a potentially highly-dangerous job. A military, to function, must assume that personnel are obligated to follow orders into battle, even if those orders put their lives at serious risk. At various times in history, we have even drafted people into the army, forcing them to take up arms in defense of the nation, or else face jail time. While many are critical of a draft, few question the right to voluntarily sign away significant portions of bodily autonomy in order to (as a free choice) join the military.

At the crux of this issue lies a seeming-conflict between two incompatible propositions: 1) in order for a nation to flourish, there must be a way of holding law enforcement, and other civil servants, to their role-obligations to risk their own well-being for the sake of the public; 2)the right to bodily autonomy is inalienable, and the voluntary relinquishing of autonomy cannot be legally enforced. Finding a way to reconcile the two — or to carve a middle ground between them — may be helpful for determining future matters of contract policy and responsibility.

August 27, 2021December 14, 2022

Risk, Regret, and Sport

photograph of two soccer players competing in air for ball

The legendary soccer player Denis Law recently announced that he has been suffering with dementia for several years. Law attributes his dementia to heading soccer balls. We’ve known for decades – in 2002 Jeff Astle’s death from dementia was linked to heading – that there is a link between heading and brain damage.

Other sports face similar issues. American football’s problem with Chronic Traumatic Encephalopathy (CTE) is well documented. CTE can lead to, amongst other things: aggression, depression, and paranoia that can arise in people in their 20s; it also can bring memory loss, dementia, and eventually death. Other sports like rugby and hockey also have links to CTE, and they have their own problems with brain damage.

Broadly, people who partake in sports that involve collisions (including things like headers) are at risk of brain injury. This is true especially when playing at higher levels of competition (as opposed to playing occasional pickup games), where impacts are bigger and players spend more time playing their sport.

How should players think about this risk? Last year, Jamie Carragher, a former top-level player for Liverpool FC and current pundit, said: “If I suffer from dementia in my old age and research suggests that is because of my football career, I will have no regrets.” Carragher recognizes that we are now better informed about the risks and need to make changes to minimize the risks (here is one: fewer headers in training), but he thinks the risks are still worthwhile, and that we must keep some of the risky elements in football: players should still be able to challenge each other in ways that risk sickening head-clashes.

I think Carragher’s thoughts are widely shared. Playing soccer, or rugby, or football is worth the risk of dementia later in life, so much so that players won’t regret playing their sport. But I think this line of thought rests on some troubling assumptions.

The first is the temptation to make a false comparison between the ordinary risks of sport and brain damage. We should obviously grant that some injuries are acceptable risks. I played rugby for over a decade, and I spent several months with sprained ankles and bad shoulders. It’s no surprise that I now occasionally get the odd ache. Almost every sport carries some risk of injury, and if we grant (as I think we should) that playing sports can be a meaningful part of our lives, these risks should not get in the way of us playing. When Carragher says that “there was a danger of injury every time I played,” he is right, but he misses the point. These brain injuries are not the same as (to take his example) a broken leg. They are highly damaging – far more long-term and life-changing than a broken leg usually is.

This leads to a deeper point. Living with dementia can involve a loss of awareness, a loss of memory, and confusion; CTE can lead to personality changes. We might reasonably think of these as transformative experiences. L. A. Paul developed the notion of a transformative experience. To take one of her examples, it’s impossible to know what it is like to be a parent – what it is to love your offspring, what it is to have such a particular duty of care – before becoming a parent. We can only know what it is like to be a parent by becoming a parent. But that means that choosing to become (or not become) a parent is always shrouded in ignorance. (Her other major example is becoming a vampire: we can’t tell what it will be like to be immortal creatures of the night.)

Perhaps the decision to play a sport that might lead to a serious brain injury involves some element of a transformative experience: you can’t know what your life would be like if you had CTE or dementia – confused, with a ruined memory and a changed personality – so perhaps you shouldn’t be so keen to declare that you won’t regret it. You might not feel that way when dementia takes its grip.

Here is another problem. Carragher’s line of thought also assumes that regret lines up with justification. That is to say, if you won’t regret something, then you were justified in taking that risk – you were right to do it. But, as R. Jay Wallace has argued, this isn’t always the case. In Wallace’s example, a young girl might get pregnant. She was far too young, and both she and her child would have had a better time of it had she waited several more years. Her decision to have a child was unjustified. Yet she surely cannot regret her decision: after all, she loves this child.

It isn’t surprising that people who have dedicated decades to their sports – sports that make their lives meaningful – won’t regret what they have done. But that doesn’t mean they made the right choice. There are plenty of other meaningful options out there: like taking up sculpting, squash, or chess.

Yet thinking about regret and justification also brings up something in favor of taking these risks: some people will have nothing to regret at all because brain damage is far from guaranteed, even in football. Bernard Williams argued that we might sometimes take a risk and that risk will be justified by the results. If you abandon your wife and children to set off on a career as a painter, you might have made a grave error if you fail in your career – but perhaps it will all have been worth it if you succeed. Likewise, Carragher, if he avoids dementia, might have been perfectly justified in playing soccer. Others might not be so lucky.

Sports play a meaningful role in many of our lives, and we are all happy to live with some level of risk. But we shouldn’t just say: “I won’t regret playing, even if I get dementia.” To note that you wouldn’t regret playing just because of a broken leg is to compare chalk and cheese; we don’t really know what our lives would be like with dementia, so we shouldn’t be confident in such assertions; and even if we end up with no regrets, that doesn’t mean we did the right thing. This discussion requires serious conversations about risk management and the meaningfulness of sport – it shouldn’t be conducted at the level of glib sayings.

July 12, 2019December 14, 2022

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

black and white photograph of judges' library

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads.

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV.

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it.

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors.

There are reasons to take on risks to one’s health and well-being, and we adopt these risks daily. Having sex with someone is certainly in the realm of behaviors that are risky, but that we have reason to take part in: sex is part of a fulfilling life for many people. There is risk of becoming pregnant for some sorts of sexual interactions, and broadly speaking, because of the intimacy of sex and its place in our social lives, there are biological and physical safety risks as well.

So what sort of risk can we assume a potential partner has consented to in engaging in sexual behavior and what risks require disclosure? The fear behind the exposure laws seems rooted in cases where someone has knowledge that they have a disease and deceptively and intentionally transmits the disease to another person by engaging in sexual behaviors. However, it is important to note that these are not the cases that typically are at stake in the trials (Recent studies of the criminalization of HIV transmission also found that: “Records of arrests and prosecutions reveal that many cases involve non-sexual behaviors or sexual activities that pose little to no risk of HIV transmission.”) Also, in the case of transmission of illness the relevant ethical questions involve exposure to risk and are more like the host/food-safety cases than a physical assault/murder model that Johnson was tried by.

In principle, meeting the burden of these ethical question is difficult because there is not a clear standard of reasonable risk aversion for particular domains. Is it reasonable to eat fugu? How frequently should you eat at a buffet? Some cases are clear: don’t poison your guests and use standard food safety preparation methods. However, there aren’t clear standards for sexual disclosure methods. Perhaps the closest we can get to a principle of responsibility is that if someone is aware that, in engaging in a particular sexual activity, they are at particular risk of some particular harm, then this seems to let the partner off the ethical hook for the exposure to risk. Satisfying this criteria may come down to further sexual education and responsibility training.

Consider the range of responses to engaging in behavior that exposes you to risk. You can put it out of your mind entirely and take part in the behavior without safeguards or protections. You can put your faith in the available protections (condoms, typically), and not put stock in the reliability of your partner(s). You can ask for verbal confirmation that the health status of your partner(s) meets a bar you find acceptable (when were they last tested, for what, how many partners have they had since). You can abstain until you receive documentation of such tests and take verbal confirmation of their activities since such tests have been performed. These options represent quite an array of actions you can take before engaging in sexual activity with a new partner. The first may sound excessively precarious as it can expose you to quite a bit of risk; your eventual health status depends on your partners and anyone they have interacted with sexually. The last may sound excessively cautious, yet is the standard for many non-monogamous individuals. Note that none of the strategies ensure a risk-free engagement, and whatever your risk-aversion strategy, your potential partner(s) may have another.

These considerations, when coupled with the empirical evidence associated with the treatability and transmission of sexually transmitted infections, point to the ethical trickiness in criminalizing health statuses. There isn’t a clear model for the ethics of exposing someone to a possible illness. Further, while it may be ethically problematic or wrong to expose someone to an illness, it does not follow that it should be illegal. We are deceived and harmed by sexual, intimate, romantic partners and loved ones throughout our lives, and frequently in ways that cause us lasting harm. It does not follow that these harms should be criminalized. Lies, cheating, breaking agreements and leases, these are not illegal, and the burden should be on those seeking to criminalize the immoral behavior to justify why some ways a partner lets us down should be. When such behavior is placed in the stigmatized and oppressive social context of racism, homophobia, and lack of empowering sexual education, criminalizing exposure to disease becomes even more problematic.