TOP 2018-01-09

Frontiers of Liberty: Coercive Treatment, Prisons, Animal Rights and the Oppression of Children

No individual should ever be the property of another. While that may sound obvious in a culture that has abolished human slavery, there do remain areas where an individual’s autonomy is denied either because they are legally property or are being treated as if they were. Today, an individual’s freedom is routinely denied if they are (1) a child, or person who has not reached a legally-defined age, (2) considered ‘mentally ill’, (3) a person who has broken the law, or (4) a non-human animal. To eliminate coercion and pave the way for a truly caring society, I argue that these violations of freedom must also be addressed, in particular through the abolition of, respectively, (1) compulsory education and plenary guardianship of children, (2) coercive treatment, (3) the punitive justice system (prisons), and (4) animal agriculture and the property status of non-human animals.

These issues may seem different on the surface but are fundamentally congruent - they all involve coercion, a violation of consent. Compulsory schools, psychiatric hospitals, farms and prisons are all types of prison for different classes of individual that society chooses to oppress. Knowing that non-white people and minority groups in many instances face harsher and more frequent sentences for the same crimes, this really does apply to prisons. And while it may not be possible to eliminate coercion entirely from the justice system, we can and must build alternatives that respect the most fundamental rights of both victims and offenders, as we’ll see later.

It’s no surprise that people who have experienced these institutions sometimes describe them metaphorically as one of the others. Jolijn Santegoeds says of her experience in the Dutch psychiatric system that she felt like “a caged animal in a test farm”. In her view, “Coercion is one of the most horrific things that people can do to each other, while good care is actually one of the best things that people can offer to each other. There is a fundamental difference between coercion and care.”[1]

It’s also no surprise that these different kinds of discrimination can overlap. Aubrey Ellen Shomo, another psychiatry survivor, relates how her mother was able to get her admitted against her will: “I was furious. I wanted a hearing. I wanted to challenge the accusation. I wanted due process. But I was a child”[2]. This is a form of double discrimination.

Through a blog on prison abolition I’ve found out about the “school-to-prison pipeline”[3], where harsh school disciplinary procedures against disadvantaged groups often results in those same people being later incarcerated.

Just as there’s a school-to-prison pipeline, there is also a prison-to-psychiatric-institution pipeline, with many criminals being diverted into psychiatrict institutions where coercion is again mistaken for care. Tina Minkowitz talks about the double discrimination experienced by prisoners with mental health issues, who face more abusive treatment than other prisoners. She writes, “Irreparable harm is done by the coerced ingestion of mind-numbing drugs (the main modality of forced treatment), and by the narrative of incapability that removes a person from responsibility for, and confidence in, making deliberate choices to shape his/her own life”[4].

Of course it’s thankful that there isn’t also a psychiatry-to-farmyard pipeline that destines school drop-outs to be slaughtered for leather, but the comparison with non-human farm animals is still surprisingly useful[5]. Farm animals are kept either in literal cages or in enclosures and their human owners interfere in all pertinent decisions about their lives, routinely denying their bodily autonomy. Non-human animals are frequently placed in inherently stressful conditions that may cause depression.

While I’ve mentioned the double discriminations in these four issues, there are of course the triple and quadruple discriminations once race and gender are taken into account. Activism should recognise the intersections between these identities. Ageism, mentalism, speciesism and discrimination based on criminal record can be connected to racism, sexism, heterosexism, classism and ableism.

There is already a legal basis for the abolition of forced psychiatry in the UN Convention on the Rights of Persons with Disabilities (CRPD), Article 12 in particular; it just needs to be fully implemented in the states that have signed up to it. The International Disability Alliance CRPD Forum has published principles for a “supported decision-making” model to assist people with disabilities in making decisions about their lives, to replace all coercive models in use. This kind of model has also been endorsed by the Council of Europe’s Human Rights Commissioner[6].

Rights for Children

For disabled people, the supported decision-making model replaces the ‘substitute decision-making’ model where someone else makes a person’s decisions. I argue we need a similar kind of paradigm shift for children. Though there are many pragmatic considerations, recognising the legal capacity of children at birth would still have important consequences for the rights of children as individuals, so they don’t occupy some sort of middle ground between free and slave. A parent would be understood as someone who provides care similar to the care of the disabled, including supported decision-making. While infants may not communicate in the same way as adults, they do still communicate their needs and preferences.

As a ‘minor’ I remember being mystified by the ‘age of majority’. What is it that magically changes on a person’s 18th birthday that makes them suddenly worth taking seriously? I was an abolitionist then, but later entertained the idea that ‘cut-off ages’ are a pragmatic necessity, and while they need to be reduced a whole lot, perhaps they can’t be eliminated. Now I think the abolitionist in me is right after all. Different people develop and change differently, so if autonomy is a basic right, a person should be able to make a decision about their own life as soon as they become able to do so, not when someone else says they can. They may need the input, guidance, or interpretation of their supporters, but the final decision is ultimately theirs.

A child should have the right to decide their own care arrangements using the supported decision-making model. Children should have the power to ‘sack’ their parents - not when someone else decides it’s necessary, and not to go where the state tells them to in a custody ruling, but to be able to decide on their own care arrangements for any reason, whether with new guardians, in communal care facilities, or even in shared housing spaces with their peers if they so desired. Social services would still have a role in preventing abuse or neglect, but they would do so as part of a model that supports children in making their own informed decisions.

A person’s capacity to act must be respected as soon as they demonstrate their informed capacity to act in that area of life. For example, if a person passes a college entrance test at the age of 12 then they should not be discriminated against on the basis of age, and nobody else’s permission should be required, whether that is a parent, a guardian or the state itself.

The right to sign a contract must not be denied on the basis of age, and other labour laws including the concept of ‘reasonable accommodation’ for relevant care needs should likewise be applicable. Any minimum wage laws that discriminate against people based on age are unethical, just as they are if they discriminate based on gender or race. The coercive situations surrounding child labour are bad because they are coercive, not specifically because they involve children. The labour market is a coercive institution for everyone: currently all employment contracts are signed under duress (the threat of poverty, social ostracism, survival anxiety etc). As a first step, a universal basic income is an important demand in remedying this situation by giving people a valid right of exit from the labour market as an institution. Contrary to many existing proposals, the basic income must be provided at birth if it is not to contribute to ageist oppression (though a supporter may need to administrate the money until the recipient can take control of it personally).

Film classification laws and censorship of media for children need to be replaced with content descriptors and trigger warnings so that people of all ages can make informed decisions about their exposure to media.

In democracies, the right to vote must also be recognised. Currently the concept of ‘universal suffrage’ is a farce, conveniently rendering children invisible, prohibited from participating even in the political decisions that affect them the most. While some countries have laudably reduced the voting age, there will not be universal suffrage until everyone is theoretically allowed to vote. Voting rights should be granted upon completion of an application, regardless of the applicant’s age. Since adults are currently permitted to vote even if they have no political awareness, have totally misunderstood a campaign, or make their voting choices by rolling dice, there need be no special requirements attached to this application.

I won’t say there are never any grey areas, but I think it’s important to start from an assumption of full rights - and then recognise grey areas - rather than an assumption of incapacity with rights trickling down to you at legally-imposed and non-negotiable thresholds. If a child wants to run into a busy road or play with a knife, we may still ethically stop them on the understanding that they did not intend to hurt themselves by doing so. On the other hand, a person who plays with knives and fully understands the implications is probably practising self-harm, and while people need to understand the risks and dangers of self-harm in the same way they need to understand the risks and dangers of alcohol, smoking and driving a car, nobody has the right to prohibit a person from self-harming - including suicide - by their own free choice.

Similarly, a person needs to be able to make informed choices about engaging in sexual activity. Distinguishing between consent and non-consent is possible - and indeed easier - in the absence of a legally-imposed ‘age of consent’, which in any case does not appear to be effective in preventing sexual abuse. If we oppose all forms of coercion, it is clear that sexual activity under conditions of fear, manipulation or physical force are immoral; simultaneously, the state’s insistence that it knows what consent is and isn’t based entirely on age results in a violation of fundamental rights to freedom. Rape and sexual assault are violations of bodily autonomy; but prohibitions on consensual sex fail to respect a person’s exercise of their own bodily autonomy, therefore implying that their body is owned by someone else.

Consent laws are unusual since the ‘default answer’ depends purely on entrenched cultural norms and not on ethics. In the case of consent to sex, a “yes” is taken to mean “no” on the basis of age alone; conversely, in those countries where marital rape is not considered a crime, any “no” is taken to mean “yes”. When it comes to education, the legal incapacity to make an informed choice is the reverse of the laws surrounding sex; your lack of consent is considered your consent, as with marital rape. Society is fundamentally ageist[7]: those under the ‘age of majority’ are treated as if they were private property, with the state and legal guardians being allowed to make these essentially arbitrary decisions about what they are and are not allowed to do. Practices such as female genital mutilation and circumcision of males demonstrate that many cultures consider children’s bodies to be not fully their own. The fundamental rights of the person to self-determination and autonomy are systematically denied, purely on the basis of age.

Accordingly, compulsory education must be abolished. Forced education is immoral in principle just as forced labour is[8]. Education, like care, must be voluntary. While I won’t go in to the full details of the alternatives, I refer to Ivan Illich’s ideas on ‘deschooling’[9]. He suggests that more of the world should be opened up to educational inquiry on people’s own initiative. He also suggests that educational vouchers be paid directly to people instead of having an education budget entirely controlled by the state, these vouchers being used to contract tutors, mentors and other educational services on a consensual basis at any time of life. Meanwhile, he proposes that recruitment decisions be based only on tests of skill that are relevant to the job in question, and not on educational pedigree, years of schooling or mere possession of an academic certificate.

Penal Abolition

An interesting consequence of recognising universal legal capacity is that the ‘insanity defence’ for criminal acts would also be abolished. And not only neurodivergent people who might have used the insanity defence, but children too would be held to the same level of accountability as everyone else. But this is not so scary in the context of our next topic, prison abolition. We can switch to an alternative justice system that respects people’s individual needs and circumstances as a matter of course, regardless of age or mental health status.

The present system of punitive justice is disproportionately cruel. Imprisonment breaks apart families and social networks and destroys careers, then removes the person from society entirely. Meanwhile, if the crime had any victims, the needs of these people - for closure or answers - tend to go unaddressed. As we’ve touched on already, it tends to be society’s most vulnerable people who are targeted by the justice system. What most of those people need is care; what society gives them is violence. This tends to escalate the problem. In many countries there also tends to be a racial or ethnic bias in punitive measures, and this fact in particular has led more people into the movement for prison abolition.

Alternatives to prison are already known and practised in limited cases around the world, and the prison abolition movement merely wants to expand their use so that they can eventually replace prisons. In the first instance, many acts can and should be decriminalised entirely, and many victimless crimes and minor offences can be shifted into civil law and addressed with restitution (e.g. compensation, fines) tailored to individual circumstances.

For other crimes, restorative justice is a paradigm that focuses on healing the harm caused by crime, for victims, offenders and the community alike, usually via victim-offender reconciliation processes. But it is transformative justice that offers the most robust paradigm for alternative justice.

Transformative justice engages offenders and victims or the community in a co-operative process that aims to identify the social, environmental and/or interpersonal issues that precipitated the crime. It aims to support not just victims, but also address what the offender needs to re-integrate into the community (such as housing or treatment), while still holding them accountable for their actions and working out what they can do to heal the harm they caused (which may include recompense or affirmative action). There are various ways in which transformative justice can work - many deriving from indigenous peoples whose practices pre-date the use of prisons - so this is necessarily just a short outline.

The transformative paradigm also includes measures to address the wider issues of social inequality and social justice which are vital in preventing crime before it starts. Crimes should be analysed not as isolated acts of deviance but for what they might imply about the social, economic and environmental conditions that gave rise to them, pointing towards the need for a wider concept of healing and a wider concept of transformation that includes the whole community and society in general. Particular crimes, for example, might be traced back to family breakups, to economic hardship, or other key areas on which a community can take action.

But people will always ask - what about offenders who are really dangerous? I don’t wish to wave away this question as if good socio-economic policy can solve all problems and prevent all crime. The needs of a community to feel safe (perhaps while a transformative justice process takes place) remain important. Supervisory services can be provided to such offenders as a compromise between the community’s safety and the criminal’s fundamental rights to autonomy. Something similar is already available in probation and parole systems, but we might imagine how to move these systems away from punitive logic.

At the same time, even the most fervent prison abolitionists suggest a continuum of supervision that includes housing in special communities. There’s a regrettable element of coercion here, and it arises due to a conflict between the rights of the offender and the rights of others to security of person. Both are fundamental rights, so we need to find a compromise between them. But any coercive tactics beyond what is necessary to guarantee security of person are unjustified and unethical. Hence I offer the following principles as a paradigm for supervision:

  1. Supervision should be conceived in essence as a form of care, both for the offender’s need for autonomy and for the security needs of communities, but if an alternative to supervision is available that satisfies these conditions then it should be used instead,
  2. restraint and supervision must only be used as a last resort where no other option is compatible with public safety, and it must never be used for retribution or punishment,
  3. supervision should allow the maximum amount of autonomy compatible with the community’s safety,
  4. the right to life is inviolable; the death penalty must be abolished,
  5. at the same time, the right to die is also inviolable and must not be denied to criminals, notwithstanding the need to guard against manipulation and duress in this decision,
  6. there must always be a time limit on any imposed measures; life sentences must be abolished,
  7. coercive treatment or coerced ‘rehabilitation’ must be illegal, but treatment can certainly form part of a co-operatively agreed justice plan,
  8. forced labour is a fundamental rights violation and must be abolished, but work opportunities can certainly form part of an agreed jusice plan.

One way of satisfying these conditions is if offenders choose from a ‘free market’ of standards-compliant supervisory services so that they retain control over the important aspects of their life. Such services could be run as co-operatives with the participation of offenders in decisions that affect them (analogous to prisoner-run prisons which I understand have had some success).

Alternatives to prison must not fall into the trap of just being prison by other names - what’s needed is a paradigm shift into approaches based on care, transformation and healing.

Currently it can be very hard for ex-prisoners to reintegrate into society; their criminal record follows them around and may be a barrier to certain opportunities. As a result, it is easy to fall back into the same patterns that led to their criminality. In fact, prison is often just an opportunity to learn from more experienced criminals about how to continue a criminal lifestyle. In the transformative paradigm, a person must not be discriminated against once they have finished the transformative process, whether it is in work, education or other areas of life. Just as the offender agrees with the community to take responsibility and change their behaviour, the community agrees to reintegrate the offender with full rights. Both parties must uphold their side of the bargain.

Outlook

As the discussion illustrates, many of the progressive changes that I advocate here are already skirting the borders of the mainstream. A legal basis for the abolition of forced psychiatry already exists. Though inadequate, the United Nations has already published the ‘Rights of the Child’. Many countries are successfully decriminalising certain victimless crimes and are managing to reduce prison populations while also reducing crime rates. And veganism is a movement that is constantly gaining support and public attention. Changes to society tend to go through phases, starting off in a radical fringe, then gradually gaining acceptance through a series of battles and victories big and small. At the end of the process, the change becomes the new normal, where practically nobody even questions it anymore, and those that do - they become the dangerous, radical fringe.

Human slavery - an institution that for millennia was considered so normal as to be unquestionable - has passed through the complete arc of radical change. In these movements, there is often a tension between radicals calling for total abolition, and reformists calling for minor changes. Eventually the radicals win. No longer do people call for slavery to be ‘reformed’ or for slaves to be just ‘treated better’; incidents of modern slavery now face international condemnation in the strongest possible terms, regardless of the details.

Unfortunately, society doesn’t always just go from progressive victory to progressive victory, and this is no more obvious than in the case of children and minors. Rights for children have improved in many areas, and got worse in others: compulsory state-mandated education is an invention of the past two centuries only[10]. Worryingly, compulsory education - as opposed to just education - is even included as a ‘human right’ in the UN’s famous declaration[11]. I would tentatively predict, therefore, that liberation for children may be the most difficult of these goals to achieve. While a vegan world could be attained, in theory, with individual decisions alone, child liberation will require tense political battles, campaigning and legislation at least as vigorous as historical feminist movements.

In my view, all four of these changes will inevitably enter the mainstream and become the new normal, whether they take fifty years or five hundred. On all fronts though, we still have a long way to go.