The principle foundation of our constitutional republic is the rule of law. During a time of declared national emergency or otherwise the rule of law must remain immuted. Whether one believes that a viral contagion constitutes an emergency, the individuals’ rights to freedom of speech and free association amongst others shall not be curtailed absent a compelling governmental interest. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In the wake of the SARS CoV-2 / Covid-19 panic various governments have instituted ad hoc quarantine orders or curfews purportedly to curtail person-to-person contact or potential passing of the virus. Additionally, some public places have been closed or restricted.
Some public spaces, such as streets and parks, are known as “traditional public forums,” which means that they generally are open to all people to express themselves by speech-making, demonstrating, or leafleting, and the like. The public fora expression is the essence of the right to free speech. Access to the public arena may be restricted “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.”[fn1]
Broad, sweeping prohibitions of public gatherings or the closing of public spaces may run afoul of constitutional protections. The U.S. Department of Justice [DOJ] was aware of this potential which it expressed during a symposium held in 2006 to address the issue of maintaining rule of law during a forthcoming SARS pandemic.[fn2]
The DOJ was cognisant of the likelihood that politicians would overreact and violate the rights of business owners or individuals. The DOJ recommended that states develop plans to ensure that courts remain functional during a viral pandemic panic so that lawsuits by business owners or individuals could be heard.
In defending against these suits the various governments will claim that they were acting “in good faith” under the auspices of a “rational belief” that a health emergency existed. Thus, during bona fide health emergencies of finite duration governments may invoke emergency orders which suspend constitutional rights.[fn3]
The SARS CoV-2 pandemic is not of a finite duration like the aftermath of a hurricane in which there is a limited time in which the public may be endangered by untreated effluent or decaying bodies.
In filing suit against a state, its governor, law enforcement agencies and any others involved in a deprivation of rights the movant would claim that there was not a rational basis for the restrictions nor were they made in good faith.
The “good faith” claim can be shot down easily by the exceptions made to the quarantine rules. Many governors have made exceptions for “essential” business services such as sale of liquor or the daily warehousing of children at those centers.
The pivotal question becomes, “Do you have a good faith belief that child daycare centers are less likely to be a conveyance for a virus than a golf course?” Anyone who has observed groups of children in action know that they are masters at spreading contagions. At least much more so than old guys wearing plaid trousers while strolling across a vast manicured lawn.
The next attack is on the restrictions being necessary. That would be that the government had a “compelling interest” for suspending constitutional rights.
If the SARS CoV-2 pandemic would endanger or harm a vast portion of the population, despite individual protective actions, if left unconstrained then the government could meet its burden. Keep in mind that the well-regulated roadways, accessible to a particular qualified and licensed population, during normal operation, result in an annual death toll exceeding 30,000 people per year. That rate occurs during times of intense regulation. But could the SARS CoV-2 have killed many more if not for the panic response and constitutional suspensions?
Comparative circumstances
One of the difficulties in comparing action to innaction sequent to the outcome in a real world setting is that the events cannot be replicated. This makes scientific analysis difficult at best. However, when a corollary event is present in the contrary state then an objective comparison is more likely to produce an apt result.
So, while we cannot return to a time when the SARS CoV-2 virus was incipient and take no inhibitory action, we can look to a similar virus which propagated concurrently, and previously, to study the impact of the action taken. That is to say, we can observe the historical progress of a similar virus in a previous season and that same virus as it progressed during the current season while the inhibitory measures for SARS CoV-2 were in place which have the same inhibitory effect. For this the prime candidate is the Influenza virus.
The question for analysis then becomes; What effect did the quarantine measures for SARS CoV-2 have on the proliferation of the Influenza virus during the 2019-2020 season as compared to previous seasons when the same inhibitory measures were not in place?
The answer to that question will provide a basis for an approximation to the directly unanswerable question; What would have been the infection rate for SARS CoV-2 if inhibitory measures such as quarantines had not been enacted? That is a question which may not be resolved easily as the people holding the keys to the answer are those who will be defending themselves in these forthcoming lawsuits.
Falsified numbers
Back in March I was discussing the irrationality and panic responses to this novel SARS virus with a statistician. On point we discussed the legal and compensatory liabilities of the states enacting provisions depriving businesses the opportunity to lawfully operate as well as constitutional deprivations of citizens.
As I have noted, the measure for the efficacy of quarantine and other purported inhibitory actions imposed would be the proliferation of Influenza during the same period. So, how does the government substantiate itself and relieve itself of billions of dollars in liabilities?
Although we are not conspiracy theorists the answer was clear to us. The number of deaths attributed to the SARS CoV-2 virus would need to be inflated while concurrently the number attributed to Influenza would have to be suppressed. That would be a sure way to show, at least statistically in a court of law, that the inhibitory efforts were effective at reducing the spread of Influenza and thus the potential cases of Covid-19 were proportionally reduced. Thus the defendants would meet the “compelling governmental interest standard” for curtailing constitutional liberties.
Expect to see a corporation with deep pockets making public records request for death certificates by the thousands and then spending weeks deposing coroners and pathologist with questions like, “Exactly what tests or procedures did you perform to determine that this individual died as a proximal result of infection by the SARS CoV-2 virus and not any other cause?”
A final note for thought. The World Health Organization [WHO] in 2018 published a paper detailing the likelihood of a future SARS pandemic and its recommendations on how to curtail its spread.[fn4] Additionally, WHO made recommendations on how governments could avoid fomenting panic. Various state governments and the federal government in the United States acted in a manner contrary to those recommendations.
Footnotes
[1] Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 800 (1985)
[2] Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts, March 2007 - Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice.
[3] Smith v. Avino, 91 F. 3d 105 - 1996
[4] World Health Organization; 2018 [Cited 2020 March 24] Managing epidemics: key facts about major deadly diseases ISBN 978-92-4-156553-0. Available at: https://www.who.int/emergencies/diseases/managing-epidemics-interactive.pdf
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Sunday, April 19, 2020
SARS CoV-2 / Covid-19 Quarantine Efficacy and Civil Rights
Monday, April 6, 2020
Demanding a Speedy Jury Trial during SARS CoV-2 and Covid-19 outbreak
“Courts are not like ordinary businesses, as they must continue operating to maintain the rule of law and ensure an orderly society under any circumstances. Criminal laws must continue to be enforced, personal rights and liberties must continue to be protected, cases must be adjudicated, and controversies resulting from pandemic conditions must be addressed.” [fn1] * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In this time when there is a slight increase in the likelihood of being infected by a contagion and there is a disproportional high rate of paranoia and social avoidance, is the right to a speedy jury trial absolute?
In criminal cases the right to a speedy trial is found under the Sixth Amendment to the U.S. Constitution.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The federal Speedy Trial Act provides that; “In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.”[fn2]
States generally have a similar speedy trial act which delineate the particulars for the right to a speedy trial within their respective state courts. Indiana has Rule 4 of the Indiana Rules of Criminal Procedure which provides, in relevant part, that;
“No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate embracing more than six months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later) . . . [A] trial court may take note of . . . an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a[n] . . . emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so detained shall be released on his own recognizance at the conclusion of the six-month period aforesaid and may be held to answer a criminal charge against him within the limitations provided for in subsection (C) of this rule.”
The right to a jury trial is found in Article III, Section 2 of The United States Constitution -- “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury” -- and the Sixth Amendment -- ”“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”
During a time of pandemic courts will need to balance a dual obligation of maintaining the rule of law while concurrently protecting the welfare of the public and court personnel.
The American Bar Association proclaims that “It is the duty of all legal organizations-the courts, the organized bar, prosecutors, public defenders, providers of legal services to the poor, individual lawyers, police, and prison and jail officials-to undertake adequate planning and preparation to insure that the legal systems, both civil and criminal, can continue to dispense justice in times of major disaster.”[fn3]
But, a court may find that continuing to have jury trials would put members of the public, jurors, witnesses, law enforcement personnel, lawyers, judges, and court employees at an unacceptable level of risk to their health and for some at an unacceptable level of risk for the loss of their lives. In doing so, operation of the courts could cease temporarily. Such a delay could trip a speedy trial deadline rendering dismissal of a criminal charge.
However, the right to a speedy trial is not absolute. There are numerous factors which may toll the clock on the time limit. These include affirmative acts by the defendant to delay the trial such as discovery motions or interlocutory appeal. Tactics by the defendant, such as evading arrest following indictment, which may delay a trial also toll the clock. Additionally, if the defendant is subject to a previous ongoing trial that may toll the clock on new charges.
Particular to the question at bar is the granting of a continuance upon the judge’s own motion. For this I look to the federal act[fn2] and case law for guidance. The clock will not toll if the court sets forth in the record its reasons for finding that by granting a continuance the ends of justice are served which outweigh the best interests of the public and the defendant in a speedy trial.
The federal or any state supreme court, as they have jurisdiction over their respective courts, may temporarily continue all criminal or jury trials because of a health emergency. However, there may be statutory guidelines or requirements which the court must follow. Again, such a delay may not toll the clock, particularly if a defendant is incarcerated.
In November of 2005 President George Bush released a report addressing the topic of court operations during the time of a viral pandemic, particularly a SARS outbreak. In May of 2006 the U.S. Department of Justice’s Bureau of Justice Assistance held a symposium titled, “Justice and Public Health Systems Planning: Confronting a Pandemic Outbreak. Director Domingo S Herraiz said, “Of critical importance . . . is that local and state justice systems be prepared to respond to and uphold the rule of law throughout any crisis, whether natural or man-made.”[fn1]
Each state should have a statutory framework detailing a Continuity of Operations [COOP] plan for the courts as well as when an emergency may be declared and courts may be closed. A COOP plan should prioritize necessary operations of the courts relevant to a pandemic. These may include novel matters such as issuing orders against a person, medical testing, mandatory treatment as well as challenges to the closures of businesses. For example, during a pandemic if I was ordered to confine myself to my home or only depart for “essential” business then I would file a court challenge [habeas corpus] arguing that such an arbitrary order violated my constitutional rights to freedom of association and freedom of speech.
Germane to the question at hand are the ongoing cases and “potential impact on constitutional rights, including the right to have a speedy trial, and confront witnesses” which should be delineated well in advance.[fn1]
As the U.S. Department of Justice [DOJ] stated in 2006, local and state courts should have plans in place to deal with a viral pandemic such as those which occured in the United States during 1918, 1957, and 1968. The report particularly noted, courts should be prepared for a SARS pandemic. The DOJ recommended that planners ensure continuing court operation by seeking “alternative sites outside the threatened area, including other government buildings or public facilities such as theaters, warehouses, or office buildings” in which trials could be conducted to avoid constitutional violations.
On its face a pandemic and any subsequently declared public emergency does not suspend the operations of the courts or toll the time for a speedy trial. Courts may restrict certain operations consistent with the statutory framework enacted by the various state legislatures. A defendant claiming a speedy trial or jury violation should base an appeal on the constitutional mandate and, if the statutory procedures were not followed by the court or the COOP plan was not followed or non-existent (particularly in light of the 2007 DOJ recommendations concerning SARS), that the state was negligent in its requirement to maintain the rule of law.
Finally, an argument can be made that the current closing of some courts and the tolling of a speedy trial clock is based upon an irrational response and panic. Annual, on average, influenza outbreaks in the United States afflict approximately 30,000,000 people which result in the deaths of 40,000.
It is precisely the irrational response and panic to instant situations from which the framers of the United States Constitution sought to protect. Hence, the specific legislative framework that seeks to encumber immediate changes in the law. They sought to achieve somewhat of a cooling-off period.
However real or imagined the threat of contagion it cannot come at the expense of the rights of the citizenry. Most notably, those innocent individuals who are incarcerated while awaiting trial which should be delivered expeditiously. In simple terms, the government cannot now plead emergency and lack of resources in an effort to toll the right to a speedy jury trial when it was the prosecutorial arm of the United States Government which said 13 years ago that courts must have a contingency plan to stay open during a SARS pandemic.
Footnotes
[1] Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts, March 2007 - Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice.
[2] 18 U.S. Code § 3161(c)(1)
https://www.law.cornell.edu/uscode/text/18/3161
[3] American Bar Association, Rule of Law in Times of Major Disaster (2007), http://www.aba net.org/litigation/ruleoflaw/rol-disaster.pdf.
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Monday, March 30, 2020
Coronaviruses, SARS CoV-2, Covid 19, and a Social Responsibility
The SARS CoV-2 is a recent virus that is making its way through the human population currently. The resulting disease experienced by some people is COVID-19. The underlying family from which SARS CoV-2 emerged is a coronavirus. Contrary to that to which many people refer, coronavirus is not a single virus, nor novel. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Coronaviruses are a large family of viruses which may cause illness in animals or humans. In humans, several coronaviruses are known to cause respiratory infections ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS)[fn1].
The occurrence of the SARS CoV-2 outbreak is relatively small. The overall burden of influenza for the 2017-2018 season in the United States alone was an estimated 45 million influenza illnesses, 21 million influenza-associated medical visits, 810,000 influenza-related hospitalizations, and 61,000 influenza-associated deaths[fn2].
But just as Influenza comes and goes seasonally other coronaviruses, rhinoviruses and parainfluenza viruses have periodic outbreaks. In the last 40 years, Ebola has surfaced in almost 25 separate and deadly outbreaks, often after long spells in which it has apparently lain dormant[fn3].
SARS was unheard of before 2003. But it affected more than 8,000 people, killing about one in ten of them, causing fear and panic across the world, and inflicting enormous economic damage, especially in Asian countries[fn3].
The Ebola epidemic in West Africa (Guinea, Liberia, and Sierra Leone) in 2014 was unlike the previous 24 localized outbreaks observed since 1976. Instead of being restricted geographically, this one seriously affected three African countries and spread to six other countries in three continents, and sparked alarm worldwide[fn3].
In 2018 it was predicted with a high degree of certainty, that when the next viral outbreak comes, there will be “(a) an initial delay in recognising it; (b) a serious impact on travel and trade; (c) a public reaction that includes anxiety, or even panic and confusion, and (d) this will be aided and abetted by media coverage. The fear generated by the emergence of a previously-unknown infection may be greatly out of proportion to its real public health impact.”[fn3].
But even with this foreknowledge in hand the response to the less virulent SARS CoV-2 some 16 years after the first outbreak has followed the predictions made by the World Health Organization (WHO). There was an initial delay in recognising it. There has been a serious impact on travel and trade. The public reaction includes anxiety, panic and confusion. This public response has been aided and abetted by media coverage. Finally, the fear generated by the emergence of this infection has been greatly out of proportion to its real public health impact.
We are not without historical data by which a rational response could be formulated to address the SARS CoV-2 virus. The influenza pandemic of 2009 reached all continents in less than nine weeks. That is a similar timeline to this current viral pandemic. That influenza outbreak provides good guidance for the life-span of the SARS CoV-2.
Irrational Response
As predicted by the WHO the response has been irrational and far from proportional to the risk. Many irresponsible people are strictly implementing or following quarantine procedures. Businesses are being ordered closed without regard to the risk of transmission based upon business models or practices.
However, this direct-threat response ignores the collateral consequences. One who is knowledgeable about pathogen life spans is aware that the final phase of a pathogen pandemic is reduced transmission when human-to-human transmission decreases because of acquired population immunity. That is, as the people who first contracted and passed the ailment recover they can no longer pass it and those interactions are no longer a threat[fn3]. Thus, it is important early on for people to get and recover from the ailment so that it does not linger in the population thereby allowing a mutation to spread and reinfect those who have recovered.
The far greater concern that I have about the collateral consequences is the psychological impact. While focus on physical well-being during this time of a statistically insignificant rise in mortality risk is prominent the lack of attention to mental health is problematic.
It is collateral consequences or secondary impact that is often ignored or not recognized which can do more harm than prevented by the primary action. This is something I discussed with numerous legislators and judges in regards to protective orders used to separate children from parents. Although they understood my point they were quite cognizant that they depend on election results to maintain their position and a typical response was something like, “Stuart, you know the public isn’t intelligent enough to understand that.”[en1]. This time I think it may be the officials who don’t understand the consequences of a quarantine.
Over the course of a lifetime, nearly half of all Americans will meet the criteria for a mental health disorder[fn4]. Mental illness is now the leading cause of disability in the United States[fn5]. Yet, armed with this knowledge public health officials and, of greater note, politicians along with media outlets are deliberately exacerbating adverse mental conditions or susceptibilities in the general population.
Particularly I will assess the potential for the saturation of SARS CoV-2 attention and the resulting panic and isolation to induce anxiety and loneliness and the effects of these on the immune system and overall health of individuals.
Anxiety and depression
Studies have found what may be apparent to lay observers which is an association between exposure to televised trauma and anxiety among children and adolescents[fn6, 7]. For my depressive or anxious clients I recommend that they abstain from general news reporting. Clients following this advice have consistently reported elevated mood and reductions in anxiety. Reduction of anxiety is not the end goal though. While anxiety may be discomforting it is the effect on the immune system which is important to understand during times of viral contagion.
The study of the relationship between mental states and the immune system is known as "psychoneuroimmunology". In the early 1980s, psychologist Janice Kiecolt-Glaser, PhD, and immunologist Ronald Glaser, PhD, of the Ohio State University College of Medicine, were intrigued by animal studies that linked stress and infection. From 1982 through 1992, these pioneer researchers studied medical students. Among other things, they found that the students' immunity went down every year under the simple stress of the three-day exam period. Test takers had fewer natural killer cells, which fight tumors and viral infections. From there the field of psychoneuroimmunology burst onto the scene and psychological researchers conducted hundreds of studies. The results were clear.
Anxiety can trigger a person’s flight-or-fight stress response and release a flood of neurotransmitters and hormones into the system. This prepares the body to respond appropriately to an intense threatening, whether imagined or actual, situation. The immune system may even experience a brief boost. During periods of occasional stress the body returns to normal functioning when the immediate stressor passes.
However, exposure to repeated stressors or protracted stressful events can lead to the condition of general anxiety where the body never gets the signal to return to normal functioning. This can weaken the immune system which increases susceptibility to viral infections and frequent illnesses.
Protracted general anxiety can also lead to depression. Although some mediational variables have been tested, the mechanism through which anxiety might affect later depression is currently unknown in naturalistic settings. One variable which may explain the naturalistic longitudinal relationship between anxiety and depression is avoidance[fn8]. In response to the discomfort caused by anxiety, persons experiencing anxiety may limit their exposure to these perceived threats (avoid) to reduce their levels of discomfort.
In the case of the SARS CoV-2 virus it is the carriers (other people) who are perceived as the threat. Thus, those people experiencing anxiety as a result of the constant attention given to this virus will avoid interacting with other people. While avoiding the potential threat -- people -- may mediate the negative potential of the virus it comes at the expense of the positive benefits of social interaction[fn9].
People who are socially isolated or quarantined also miss out on positive events of daily life or nature. One recent study found a significant relationship between earlier anxiety and the later onset of depression in a naturalistic setting[fn10]. As previously stated, it is avoidance which leads to depression and in the matter of SARS CoV-2 it is the avoidance of people, or social isolation, which is detrimental to health.
Social Isolation
The most recent U.S. census data show that more than a quarter of the population lives alone—the highest rate ever recorded[fn11]. This may be why nearly half of adults report they sometimes or always feel alone[fn12]. This feeling of loneliness, or not connected to community or humanity at-large, is not social isolation but can lead to it. While loneliness is a state-of-mind, social isolation is an objectively perceived physical state. Likewise, social-isolation can lead to loneliness[fn13].
There are two bases for these outcomes. The first, loneliness, can lead to social isolation because the subjective feeling that one is alone may cause the person to limit social contacts and withdraw from social interactions. The other, social isolation, can lead to loneliness because the objective experience of being alone can logically lead to one feeling alone.
Naturally, there is often an overlap between the two states. Similarly, for those who don’t feel lonely or are not socially isolated many still feel that their relationships are not meaningful.
One meta-study found that lack of social connection heightens health risks as much as smoking 15 cigarettes a day or having an alcohol use disorder, and increases health risks twice as much as obesity[fn14]. It is significant to note that there was no difference found between measures of objective and subjective social isolation. That is, whether one was objectively isolated or well connected but felt isolated made no difference on health outcomes. That is the crux of the matter when individuals are quarantined.
It has been speculated since the time of the telegraph that as communication technology advanced that those who employ it regularly would suffer ill effects from lack of face-to-face contact. Yet, others contend that social media provides individuals with greater social connections. However, it is the quality of the social connection such as whether it provides bonding or bridging social capital that is relevant to affective outcomes[fn15]. Although persons who are quarantined may be able to use social media and technology in general to maintain social contact, those forms of mediated communication are comparably less fulfilling of social contact needs[fn16]. As previously stated, this lack of perceived connection has an adverse outcome on the immunity system.
Failure to build and maintain perceived social capital places one at great risk for physical ailments. The subjective sense, perception, is the key component to the wellness effects of social connection. Controlling subjective assessments of affective stimulus is difficult, at best, for most people. Hence, the prescriptive use of cognitive behavioural therapy (CBT) in mediating moods. It’s adjusting the perception of the glass as half-empty or half-full.
An anecdote from my early adulthood provides an example. When I was in prison I was often provided lodging in a private suite with room service three times a day. It was also referred to as “the hole” or, officially, the “segregation unit”. During all of my stays there I refused to come out for “rec time” or speak to the hacks or other inmates. Yet, I felt a strong sense of social connection during those times. I simply knew I would step right back into my regular place in the social order following my respite.
So, during times of reduced objective social connection it is important to have a subjective sense of social connection or the risks to physical health will exceed that of the physical ailment being avoided.
Assessing the risks
Whether to live in an urban or suburban environment involves a calculation of risks. Likewise, to live in a traditional home or a cave under layers of rock when contemplating death by meteorite involves a calculation of risks. Humans do poorly at evaluating risks!
One way in which humans do poorly at measuring risks involves base rates. If a doctor evaluates a patient and indicates a 30% risk for developing lung cancer in the next five years the patient may assume a lower risk because he is not a smoker, thereby ignoring recommendations for this high risk assessment. The fallacy here is that the evaluator has already considered tobacco use in the risk assessment. That’s an easy one to see. But other ways in which humans fail to accurately assess risks are more subtle.
Fear exaggerates perceived risks. In the appraisal of dangers, those who are fearful of the situation produce pessimistic estimates and make risk-averse choices[fn17]. A person who is afraid of heights may perceive the risk of professionally assisted skydiving or bungee jumping as far greater than driving to work regularly. This is especially true if the person has recently heard news accounts of a skydiver’s death during a jump.
But why would a person perceive the risk of death from skydiving -- 1 in 500,000 -- as much greater than the risk of using the roadways where the lifetime probability of dying is 1 in 106?[fn18] One would have to skydive nearly 5,000 times to reach the same rate of death as using the roadways. This miscalculation of risk comes from two logical fallacies; the Salience Bias and Availability Bias.
The Salience Bias is the tendency to focus on items that are more prominent or emotionally striking and ignore those that are unremarkable, even though this difference is often irrelevant by objective standards. The thought of helplessly plummeting to Earth and being smashed like a pancake has greater emotional resonance than getting in a car and driving along jamming to the latest tunes which may lead to lying in a hospital ICU with a ruptured liver, multiple broken bones and a spreading infection which results in death a week later. One has more immediate emotional punch than the other.
The availability bias is the human tendency to think that examples of things that come readily to mind are more representative than is actually the case. The risk of injury from a shooting in a school is far less than being struck by a vehicle. But when school shootings fill news space and social media postings the risk appears escalated.
The current situation with the SARS CoV-2 virus provides a good example of the Base Rate Fallacy. The base rate fallacy, also called base rate neglect or base rate bias, is another cognitive fallacy. If presented with related base rate information and specific information the mind tends to ignore the former and focus on the latter.
Here is a beautiful example of base rate neglect. After sipping champagne one evening from a freshly opened bottle let it remain open overnight. But first hang a stainless steel spoon handle in the bottle. Would you be surprised that by using that spoon trick the champagne still retains its bubbly in the morning? You shouldn’t be. The base rate for champagne to lose its carbonation is on a continuum terminating in three to five days after opening and is temperature dependent.
To assess the risk from a viral outbreak one should first determine a base rate for contracting a viral infection in any given year. In the United States Influenza would establish a good comparative base for SARS CoV-2. Although it is not inclusive of all viral contagions it is the most prolific, tracked, aerosol transmission pulmonary infection. In recent years there have been around 30,000,000 cases and 40,000 related deaths per year in the United States[fn19].
Using Influenza as a base one can then see that the resulting infection from SARS CoV-2, COVID-19, currently has an infection prevalence of less than 1% and a mortality rate of around 4%. Or said another way -- you’re 100+ times more likely to catch the flu and 25 times more likely to die from the flu contagion.
Be Responsible
There is no best universal approach to managing risks. Every person has a different constellation of factors which affect her or his susceptibility to any harm be it pathogenic or behavioural. Each person has the responsibility to manage his or her risks. This should be done in consideration of a social obligation to not do harm or do least when facing a harm continuum. As explained herein social isolation likely does harm either to self or others. Therefore, each person must exercise responsibility to weigh the risk of harm to self or others from cutting off face-to-face social interactions when confronted with a presumption for quarantine during a time of pandemic.
Individuals also have the responsibility to control their access to media. Parents should do so for children. Anxiety disorders are the most common psychiatric condition in youth. It is especially troubling that the rates of any anxiety disorder in children is now over 30% and ever increasing[fn20]. Global or general anxiety is not related to any acute incident but, rather, a general feeling of foreboding -- such as there is a virus ravaging humanity and civilization is likely to end. These children are the candidates for suicide. Adults, particularly the media and other profiteers, are potentially worrying children to death.
When modifying behaviour to accommodate a risk make a logical assessment. While it may be best for some people to quarantine themselves there are risks for adverse outcomes associated with social isolation. Likewise, although it is not best to ignore all reporting on an issue one should be selective in obtaining information so as to reduce sensationalism and the adverse health consequences of that sensory input. The vast majority of news I receive about SARS CoV-2 comes from WHO and the US CDC.
As Positive News founder Sean Dagan Wood said in a 2014 TED talk, “A more positive form of journalism will not only benefit our well-being; it will engage us in society, and it will help catalyze potential solutions to the problems that we face.”[fn21]
We have an obligation to each other as a society -- a social contract -- which requires us to establish laws for orderly conduct, to provide for the general welfare of each other, and to protect our individual and collective rights to pursue and live our lives. Therefore, as with any assessment of risks, we must consider the social contract. While we have no obligation to mitigate another’s susceptibility to risk we should model behaviours that reduce risks -- to lead by example. This is the primary way in which learning takes place early in life. Babies and young children learn by what we model to them. Specific to the threat of a contagion would be demonstrating proper eating habits, sufficient exercise, weight management, limiting airborne and contact contaminants, engaging in meaningful face-to-face relationships, and maintaining a positive attitude. All attributes which facilitate healthful immune system functioning.
End notes
[1] In addressing the topic of false allegations of domestic violence, sexual abuse or other offenses as means by which to obtain protect orders and gain strategic advantage in child custody cases I discussed possible solutions with legislators and judges. They ranged from elevating the standard of proof to criminal charges for unsubstantiated allegations.
One judge told me, “When these women come into my court and try to pull that **** I tell them you better have some proof or I’ll throw your *** in jail for perjury.” She was quite adamant that she was not going to allow patently false allegations to be used to manipulate custody cases.
But all seemed to agree that it is better to issue 999 bogus protective orders and one which is legitimate than not issue those 1000 and have someone get killed. This was true even knowing of the psychological harm to the children from being deprived of access to a parent -- who may be the more emotionally sound and supportive parent -- and the disruption to their routine.
That’s because the immediate death of one of the parties is more salient to the general public than the numerous children who end up sexually abused, having substance abuse issues, plagued by anxiety, or suffer any of other numerous ill effects from that lack of parental contact. Simply put they know that the general public is too stupid to see these secondary harms and thus would boot a judge or legislator out of office for “allowing someone to get killed.”
Footnotes
[1] Coronaviruses. NIH: National Institute of Allergy and Infectious Diseases. [Cited 2020 March 23] Available at: https://www.niaid.nih.gov/diseases-conditions/coronaviruses
[2] US CDC [Cited 2020 March 24] Estimated Influenza Illnesses, Medical visits, Hospitalizations, and Deaths in the United States — 2017–2018 influenza season. Available at: https://www.cdc.gov/flu/about/burden/2017-2018.htm
[3] World Health Organization; 2018 [Cited 2020 March 24] Managing epidemics: key facts about major deadly diseases ISBN 978-92-4-156553-0. Available at: https://www.who.int/emergencies/diseases/managing-epidemics-interactive.pdf
[4] Lifetime prevalence and age-of-onset distributions of DSM-IV disorders in the National Comorbidity Survey Replication. Kessler RC, Berglund P, Demler O, Jin R, Merikangas KR, Walters EE Arch Gen Psychiatry. 2005 Jun; 62(6):593-602.
[5] National Institute of Mental Health. Bethesda (MD): NIMH; 2015. [cited 2020 March 26]. U.S. leading categories of diseases/disorders [Internet] Available from: http://www.nimh.nih.gov/health/statistics/disability/us-leading-categories-of-diseases-disorders.shtml
[6] Busso, D. S., McLaughlin, K. A., & Sheridan, M.A. (2014). Media exposure and sympathetic nervous system reactivity predict PTSD symptoms after the Boston Marathon bombings. Depression and Anxiety,31, 551–558.
[7] Pfefferbaum, B., Nixon, S. J., Tivis, R. D., Doughty, D. E., Pynoos, R. S., Gurwitch, R. H., & Foy, D. W.(2001). Television exposure in children after a terrorist incident. Psychiatry, 64, 202–211.
[8] Behavioral avoidance mediates the relationship between anxiety and depressive symptoms among social anxiety disorder patients. Moitra E, Herbert JD, Forman EM, J Anxiety Disord. 2008 Oct; 22(7):1205-13.
[9] Why do people with anxiety disorders become depressed? A prospective-longitudinal community study. Wittchen HU, Kessler RC, Pfister H, Lieb M. Acta Psychiatr Scand Suppl. 2000; (406):14-23.
[10] Avoidance mediates the relationship between anxiety and depression over a decade later. Nicholas C. Jacobson* and Michelle G. Newman. J Anxiety Disord. 2014 Jun; 28(5): 437–445. [cited 2020 March 27] Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4957550/
[11] In 2019 the rate of single member households was 28.4%. United States Census Bureau [2019] One-Person Households on the Rise. [cited 2020 March 27] Available at https://www.census.gov/library/visualizations/2019/comm/one-person-households.html
[12] 46% of respondents report feeling lonely all or some of the time. CIGNA 2018 U.S. LONELINESS INDEX. The State of Loneliness In America. [cited 2020 March 27] Available at https://www.cigna.com/assets/docs/newsroom/loneliness-survey-2018-updated-fact-sheet.pdf
[13] Myeloid differentiation architecture of leukocyte transcriptome dynamics in perceived social isolation. Steven W. Cole, John P. Capitanio, Katie Chun, Jesusa M. G. Arevalo, Jeffrey Ma, and John T. Cacioppo. PNAS December 8, 2015 112 (49) 15142-15147; first published November 23, 2015. [Cited 2020 March 27] Available at: https://www.pnas.org/content/112/49/15142
[14] Loneliness and Social Isolation as Risk Factors for Mortality: A Meta-Analytic Review. Julianne Holt-Lunstad, Timothy B. Smith, Mark Baker. First Published March 11, 2015. [cited 2020 March 28] Available at: https://journals.sagepub.com/doi/10.1177/1745691614568352
[15] A meta-analysis of social capital and health: a case for needed research. Gilbert KL, Quinn
SC, Goodman RM, Butler J, Wallace J - J Health Psychol. 2013 Nov; 18(11):1385-99.
[16] Comparing the happiness effects of real and on-line friends. Helliwell JF, Huang H - PLoS One. 2013; 8(9):e72754.
[17] Lerner, J.S., & Keltner, D. (2000). Beyond valence: Toward a model of emo-
tion-specific influences on judgment and choice. Cognition and Emotion, 14, 473-493.
[18] Lifetime odds of death for selected causes, United States, 2018. [cited 2020 March 28] Available at: https://injuryfacts.nsc.org/all-injuries/preventable-death-overview/odds-of-dying/
[19] US CDC [Cited 2020 March 28] Disease Burden of Influenza. Available at: https://www.cdc.gov/flu/about/burden/2017-2018.htm
[20] Anxiety Disorders in Children and Adolescents: New Findings. 2019 February 25, Karen Dineen Wagner, MD, PhD [Cited 2020 March 29] Available at: https://www.psychiatrictimes.com/child-adolescent-psychiatry/anxiety-disorders-children-and-adolescents-new-findings
[21] The positive future of journalism | Seán Dagan Wood | TEDxSussexUniversity
2014 September 15. [Obtained 2020 March 29] Available at https://www.youtube.com/watch?v=zPy0xnymGR0
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Wednesday, September 4, 2019
How Todd Meyer and other public officials escape accountability for Sexual Harassment
Workplace sexual harassment can significantly impair workplace productivity for both victims and bystanders as well as have a devasting impact on the victims. According to the American Psychological Association [APA] “decades of research has documented the extensive damage suffered by victims of sexual harassment, including anxiety, depression, eating disorders, drug and alcohol abuse, job turnover and post-traumatic stress.” But if it has such a negative impact on the workplace then why haven’t companies done more to reduce it and why do so many perpetrators escape accountability? * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
Columbia University psychology professor Elissa Perry, PhD, who has researched sexual harassment training programs, says, "It's not just about providing one training and you're done. It's got to be a comprehensive approach,". "The tone is set at the top. Are they just checking a box? If they are only doing it for legal reasons, then they don't care if it works." I note that she says the tone is set at the top. So what happens when the person at the top, who is setting the tone, is the abuser?
Often it means that the abuse goes unreported. The ADA reports that the EEOC estimates that less than 14 percent of individuals experiencing harassment ever file a formal complaint. It is this lack of reporting that gives a green light to perpetrators.
If something is so detrimental and no one seems to want perpetrators to go free to abuse others then why the low reporting rate? What happens to those who report? Often organizations close ranks and ostracize the victims who are seen as impeding productivity or casting a dark cloud over the organization. Additionally, victims may be fired or retaliated against in other ways. According to the APA more than 70 percent of EEOC sexual harassment charges filed during fiscal years 2016 and 2017 included charges of retaliation. In the end victims often feel that the costs of reporting exceeds the benefit.
When news broke in late July 2019 that DCS Associate Director Todd Meyer had resigned without explanation some of us had an inkling as to the root of his sudden, unexpected and unexplained departure. When I received confirmation on 12 August 2019 I posted the following on Facebook;
I am seeking YOUNG GIRLS/WOMEN who were offered plea bargains or reduced charges in exchange for sex during October 2002 - June 2018 on Boone County Indiana charges. Please send message. Also anyone who was referred to the Juvenile Court by Jerry Taylor who formerly worked for Western Boone Schools.
Those dates were while Todd Meyer was the Boone County, Indiana Prosecuting Attorney. That is when some victims allege Meyer used his authority to coerce them into yielding to his unwanted advances.
It wasn’t until 29 August 2019 that the popular media disclosed that Meyer resigned because he sexually harassed an intern beginning immediately after he hired her in May 2019. Meyer located the young woman on Linked In and asked her to come work for him although she wasn’t seeking such an opportunity.
This was the first time that a young woman had officially complained against Meyer. Yet I have a list of other victims and, based upon long ago complaints, I raised the issue of a child sex ring operating in Boone County beginning more than 12 years ago. At that time the community rallied against me while supporting the abusers.
Meyer and I battled each other at the time. He filed false criminal charges against me numerous times but as a competent litigator I defeated them and even went so far as to seek reinstatement of the felony charge after a special prosecutor sought dismissal. I also got the Disciplinary Commision of the Indiana Supreme Court to charge him with “misconduct”. So imagine what a young woman would face if she came forward. Particularly if she was already facing criminal charges.
In 2006 when Jerry Taylor, an assistant principal at Western Boone High School, abruptly retired the community held a support rally for him. He subsequently left the county. The victim, who told me that Taylor had sexually assaulted her, complained to school administrators and Todd Meyer but did not attend that rally. Taylor claimed that he had an “arrangement” with Boone County Juvenile Court Judge Steve David when speaking about young girls and referring them to the court. Implicit in the conversation was that it was girls who were not receptive to his, as Todd Meyer would say, “friendliness”. Meyer refused to investigate the sexual assault allegation or prosecute.
This sexual harassment went unpunished because those facilitating it were the people in power. For Taylor it was kept from the public because, like Meyer, he simply resigned. The school administration, of course, didn’t want to publicize it because who wants to be known for running a school that employs a man leching after young girls who also sexually assaults a parent.
If not for members of the community pressuring the media and a young woman coming forward and disclosing Meyer’s communications to her his offense would have remained opaque. His employer, DCS, kept quiet about it and wouldn’t disclose the reason for Meyer’s sudden departure. This is how they save face and perpetrators get by with it. Those in power who could publicize it choose not to, and like the Catholic Church, are just pleased to have the perpetrator removed from the environment of the current victims. The perpetrators are then free to shop for new victims to sexually abuse from whatever batch of people they are exposed to in their new location.
But according to James Campbell Quick, PhD, a professor of leadership and management at the University of Texas at Arlington, "Sexual harassment is really not about sex. It's about power and aggression and manipulation. It's an abuse of power problem,". If it is a power issue then that gives us an additional dynamic to add to the rubric for formulating strategic responses and creating formulas to mitigate opportunities for harassment to occur.
Clearly the people in positions of power should receive greater scrutiny. When these positions are in government offices, such as Meyer has worked in, policies need to be established that provide greater transparency to the public. DCS should not be allowed to keep silent about one of its workers being sexually harassed just because the perpetrator took advantage of a legal way to avoid disclosure of the offense.[fn1]
When Meyer was the elected prosecutor for Boone County he was the person who held the greatest power in the office. He was the second most powerful official in the county. He was his own overseer. It is no coincidence though that sexually abusive people seek positions of power. As it has been stated, sexual harassment is not about sex but it is about power, aggression, and an abuse of power.
On Meyer’s Linked In page he notes that he is the Founder and President of Sylvia's Child Advocacy Center. This association along with prosecutorial access to the communications between sexual abusers and their young victims have exposed Meyer to the grooming practices used to manipulate and test the receptiveness of young girls. The texts of Meyer’s sent to the young intern clearly demonstrate grooming practices. The Indiana Governor, Eric Holcomb, called these messages “disgusting” while Meyer referred to them as “positive” and “friendly”. That says quite a bit about his personality and ability to perform a psychological self-assessment.
The APA studies this issue and the roots behind it but they say more research is needed to identify personality traits that may contribute to sexual harassment. One study published in a 2017 issue of Personality and Individual Differences found a positive association between sexual harassment proclivity and the "dark triad" personality traits. Those are narcissism, psychopathy and Machiavellianism. These are three traits which Meyer clearly expresses.
Employers should look for these traits in prospective employees, especially those who will be in a supervisory position. They should also create a culture which demonstrates that workplace sexual harassment will not be tolerated. This would include favouring the more costly ongoing sexual harassment prevention programs rather than the less expensive sexual harassment claim settlement insurance. Finally, it is imperative that governments promote transparency by requiring disclosure of verified sexual harassment complaints rather than the current veil of secrecy such as that used by the Department of Child Services regarding Todd Meyer.
Footnotes
[1] The Indiana Access to Public Records Act makes termination notices of public employees part of the public record but not resignation letters.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
