Why We Fear Genetic Informants: Using Genetic Genealogy to Catch Serial Killers

Consumer genetics has exploded, driven by the second-most popular hobby in the United States: genealogy. This hobby has been co-opted by law enforcement to solve cold cases, by linking crime-scene DNA with the DNA of a suspect\u27s relative, which is contained in a direct-to-consumer (DTC) genetic database. The relative’s genetic data acts as a silent witness, or genetic informant, wordlessly guiding law enforcement to a handful of potential suspects. At least thirty murderers and rapists have been arrested in this way, a process which I describe in careful detail in this article. Legal scholars have sounded many alarms, and have called for immediate bans on this methodology, which is referred to as long-range familial searching ( LRFS ) or forensic genetic genealogy ( FGG ). The opponents’ concerns are many, but generally boil down to fears that FGG will invade the privacy and autonomy of presumptively innocent individuals. These concerns, I argue, are considerably overblown. Indeed, many aspects of the methodology implicate nothing new, legally or ethically, and might even better protect privacy while exonerating the innocent. Law enforcement’s use of FGG to solve cold cases is a bogeyman. The real threat to genetic privacy comes from shoddy consumer consent procedures, poor data security standards, and user agreements that permit rampant secondary uses of data. So why do so many legal scholars fear a world where law enforcement uses this methodology? I submit that our fear of so-called genetic informants stems from the sticky and long-standing traps of genetic essentialism and genetic determinism, where we incorrectly attribute intentional action to our genes and fear a world where humans are controlled by our biology. Rather than banning the use of genetic genealogy to catch serial killers and rapists, I call for improved DTC consent processes, and more transparent privacy and security measures. This will better protect genetic privacy in line with consumer expectations, while still permitting the use of LRFS to deliver justice to victims and punish those who commit society\u27s most heinous acts

Needles, Haystacks, and Next-Generation Genetic Sequencing

Genetic testing is becoming more frequent and the results more complex. Not infrequently, genetic testing conducted for one purpose reveals information about other features of the genome that may be of clinical significance. These unintended findings have been referred to as incidental or secondary findings. In 2013, the American College of Medical Genetics ( ACMG ) recommended that clinical laboratories inform people if their genetic analyses indicate that they have certain secondary mutations. These mutations were selected because they probably cause a serious disease, which is treatable, and may go undetected. The ACMG\u27s recommendations galvanized critical responses by the genetics and ethics community

Denying Death

Terminal cancer patients are being kept in the dark about the purpose of their care. Several studies show that these patients undergo expensive and painful interventions because they are holding out hope for a cure, even when their physicians know that a cure is very unlikely. The current Medicare reimbursement system encourages this false hope by incentivizing physicians to medicate and operate on patients, rather than to talk about whether or why to do these things. Our culture also encourages this false hope by treating cancer as a war that must be won. As a result, patients are admitted to the ICU, infused with toxic chemotherapy, and operated upon within the last few days of their lives. They pursue risky, painful, and expensive treatments that they might not otherwise undergo if they knew they were gaining weeks instead of months, or not gaining any time at all. Whatever their wishes for their death, a substantial number of patients are not given a chance to articulate them because nobody asks. This situation is a disaster on many levels. In this Article, I explore the reasons for this complex phenomenon—scouring the medical, psychological, and legal literature. I then conclude with ten legal mechanisms that could be used to cut against this current state of affairs

Addiction as Disease

The opioid addiction epidemic is the most overwhelming public health crisis our country has faced. It is now creating a legal crisis, as the its poisonous fruits spill over into the criminal, tort, and family courts. The epidemic costs the U.S. economy about $500 billion every year, and the pressure is crippling our legal systems. This Article is an attempt to relieve some of that pressure, by advocating for a comprehensive public health campaign based upon a new model of addiction. Research shows that the prevalent “moral choice” model of addiction has facilitated stigma and discouraged treatment, by viewing affected individuals as blameworthy, different in kind, and hopeless. Even when programs are accessible, which they often are not, individuals will not seek treatment because they fear adopting the label of “addict.” In this Article, I affirmatively reject the moral choice model, identifying it as an obstacle to mitigating the opioid epidemic. In its place, I offer a model of addiction that more closely tracks its complex disease etiology, while humanizing people with addiction, removing stigma, and encouraging treatment. I refer to this model as the “integrated disease model,” or IDM, as it explains addiction as a neuro-genetic phenomenon, but does not locate addiction entirely in the brain. Rather, it places addiction on equal footing with other chronic diseases, such as lung cancer or diabetes, each of which has significant genetic, behavioral, and environmental causes. This Article will explain 1) how the moral choice model leads to no treatment and poor treatment, 2) how the law has furthered stigma through the criminalization of addiction, 3) and why we need to fund a comprehensive public health campaign based upon findings from neuro-genetics and public health. The IDM emphasizes the biological continuum of genetic risk factors to which we are all susceptible, the neurological networks that are impaired once the addiction has taken hold, and finally, the incredible power of evidence-based treatments. Explaining addiction in this way – as a treatable, complex disease — has been shown to reduce stigma and encourage treatment

Demystifying Mindreading for the Law

To lawyers, mindreading conjures up flamboyant images of crystal balls or charlatans. However, it is a deeply serious endeavor for the law. The primary role of fact-finders in civil, criminal, and administrative trials in the United States is to serve as highly-regulated mind readers—to listen to the testimony and decide whether the witnesses are credible and telling the truth. Because it can be so easily biased, we must directly acknowledge how jurors and judges (in addition to voters and employers) automatically and imperfectly read minds. We must remove the “mystique of mindreading,” and see how ordinary assessments of mental states drive legal decision-making. If we want to have any hope of mitigating the psychological biases at play, we cannot continue to pretend that they do not occur

Crisis at the Pregnancy Center: Regulating Pseudo-Clinics and Reclaiming Informed Consent

Crisis Pregnancy Centers (CPCs) adopt the look of medical practices-complete with workers in scrubs, ultrasound machines, and invasive physical exams-to deceive pregnant women into thinking they are being treated by licensed medical professionals. In reality, CPCs offer exclusively Bible- based, non-objective counseling. Numerous attempts to regulate CPCs have faced political roadblocks. Most recently, in NIFLA v. Becerra, the Supreme Court held that state efforts to require CPCs to disclose that they are not medically licensed are unconstitutional violations of CPCs’ First Amendment right to free speech. In the wake of that decision, pregnant women in crisis-a disproportionate percentage of whom are low-income women, minority women, or women in vulnerable or dangerous situations-continue to be subject to CPCs’ ideological marketing, masquerading as medical advice

Needles, Haystacks, and Next-Generation Genetic Sequencing

Genetic testing is becoming more frequent and the results more complex. Not infrequently, genetic testing conducted for one purpose reveals information about other features of the genome that may be of clinical significance. These unintended findings have been referred to as “incidental” or “secondary” findings. In 2013, the American College of Medical Genetics (“ACMG”) recommended that clinical laboratories inform people if their genetic analyses indicate that they have certain secondary mutations. These mutations were selected because they probably cause a serious disease, which is treatable, and may go undetected. The ACMG’s recommendations galvanized critical responses by the genetics and ethics community. One of the most important open questions concerns the scope of negligence liability for clinical laboratories if they failed to provide any of these SFs to patients who never requested them. To answer this question, this article argues that while there might be an ethical or professional obligation to share knowledge about these specific genetic mutations, laboratories should not be subject to tort liability for failure to share secondary findings directly with patients

Minding Accidents

Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence is misleading, because unreasonable actions are not necessary for negligence liability, while a negligent mental state is. Unfortunately, when we assume that foreseeability can be assessed objectively through conduct, this encourages significant hindsight bias. Jurors are left rudderless—free to replace what *could* have been foreseen with what they think *should* have been in retrospect. Further, while the outputs of mental states can be labeled reasonable or unreasonable, the underlying mental states themselves cannot be. There is no such thing as “objectively reasonable memory” or “objectively reasonable perception.” If there were, it would need to be keyed to a population standard of poor performance, as typical adults are lousy at foresight. If we are committed to negligence being based on breach and not being simply a form of wealth redistribution or compensation, we must pay more attention to whether a particular defendant is capable of foresight. This article argues that foresight has been deemed a “vexing morass” and a “malleable standard” precisely because we fail to treat it as an epistemic construct—similar to intent, knowledge, or recklessness. Given the foregoing, I propose a revision to the elements of negligence to recognize foresight as mental state. While relying heavily on the current prima facie elements, I reshuffle them to focus the jury’s attention on the descriptive inquiries and the judge’s attention on the normative ones. In addition to reducing hindsight bias by emphasizing the defendant’s capacity for foresight, my proposal also has the added benefit of better distinguishing the tests for duty, breach and proximate cause, which presently overlap and blur the roles of judge and jury

Crisis at the Pregnancy Center: Regulating Pseudo-Clinics and Reclaiming Informed Consent

Crisis Pregnancy Centers (CPCs) adopt the look of medical practices — complete with workers in scrubs, ultrasound machines, and invasive physical exams — to deceive pregnant women into thinking they are being treated by licensed medical professionals. In reality, CPCs offer exclusively Bible-based, non-objective counseling. Numerous attempts to regulate CPCs have faced political roadblocks. Most recently, in NIFLA v. Becerra, the Supreme Court held that state efforts to require CPCs to disclose that they are not medically licensed are unconstitutional violations of CPCs’ First Amendment right to free speech. In the wake of that decision, pregnant women in crisis — a disproportionate percentage of whom are low-income women, minority women, or women in vulnerable or dangerous situations — continue to be subject to CPCs’ ideological marketing, masquerading as medical advice.This Article employs tort law to offer a novel way to regulate CPCs’ deceptive practices. It proposes that women who submit to physical exams or ultrasounds under CPCs’ false pretenses could successfully raise a battery claim. The intimate touching of a woman would most certainly be considered objectively offensive, and while the woman might technically consent to the touching, this consent is meaningless if it is based on misrepresentations. Contrary to popular understanding, the touching need not be intentionally malicious or result in physical injury to the plaintiff.This Article makes two contributions to the literature. First, it provides a practicable, novel solution to an urgent and timely issue. By relying on private causes of action, this Article’s proposal sidesteps the collective action problems and political willpower obstacles that have long hampered larger-scale attempts to regulate CPCs. It places the injured woman in the driver’s seat and allows her to be compensated for the dignitary harm imposed when CPCs use deception to gain access to her body. Second, this Article contributes to robust literatures in torts, informed consent, and medical ethics by reinforcing an increasingly blurry line between medicine and pseudo-medicine. Informed consent means something; it is not merely a vehicle through which ideology can be shoehorned. Where CPCs are not licensed, they should be sued for battery, which honors the individual’s dignity and is not deferential to an industry standard of care. Physicians should be allowed to have political voices. So, too, should pro-life activists. But each should have their policy debates, and win or lose them, in the political sphere. It does violence to the physician-patient relationship, and the trust that it requires, when this relationship is leveraged for ideological gains