Psychology

I Feel the Rush: Chemsex and Consent Laws

June 17, 2025
Food and Drug Law, Pharmaceuticals, Psychology

Violet Butler, MJLST Note/Comment Editor

Sex and drugs don’t mix. Or do they? A scroll on the popular LGBTQ+ hookup and dating app Grindr will show many users looking to have a good time (in more ways than one). Chemsex, more commonly known as “Party and Play” in the United States, is the practice of using psychoactive drugs as a part of having sex.[1] Chemsex became more popular amongst queer men in recent years, with over ten percent of queer men in the United States reporting engaging in chemsex in a 2021 study. The same study found it was more popular in the global community.[2] With the surging prevalence of chemsex across the world, is our legal system capable of handling chemsex?

The practice may seem odd—or even dangerous—to some, but there are a variety of reasons why queer men might engage in chemsex. A study out of Kazakhstan found that people commonly engage in chemsex for self-empowerment, sexual liberation, detachment, and as part of social dynamics.[3] Whatever their personal reason for doing so, the men who engage in chemsex acknowledge its risks. The men in the aforementioned Kazakh study described risks associated with mental health, physical health, and the risk of violence.[4] One of the largest risks is how psychoactive substances such as GHB or meth—some of the drugs commonly used in chemsex—renders users mentally incapacitated.[5]

Because the law is not currently set up to handle the voluntary intoxication associated with chemsex, it is helpful to understand how those who choose to participate in chemsex create their own subcultural understanding of consent when they can no longer rely on the law. A gay male from Chicago said that consent in chemsex is often based on the ability to read body language or facial expressions instead of verbal affirmations of consent.[6] This can make ensuring consent in a chemsex encounter more difficult, and he said that “people give somewhat more grace to anyone who initiates unwanted contact” during a chemsex encounter because of these fuzzy lines of consent.[7] Additionally, chemsex participants report that people can change behavior and preferences when under the influence of drugs, which can create feelings of remorse after becoming sober.[8] In order to navigate these messy lines of consent, some chemsex participants give forward-looking consent to “whatever happens … (within reason).”[9] More concerningly, some chemsex participants have reported feeling as if they have “relinquished any version of consent” when drugs become involved.[10] Although many individual chemsex encounters may be perfectly consensual, it seems that chemsex does not have the same clear culture of consent found in other sexual subcultures, such as kink (or BDSM) culture.

But can the law fix this problem? Considering the heavy risks involved in chemsex and a possibly fuzzy culture of consent, this question doesn’t have a clear answer. One possible solution is the use of sexual advance directives. More commonly seen in the healthcare world, advanced directives can either be instructive directives (giving or blocking consent for future actions) or proxy directives (authorizing a third party to give consent in the person’s stead).[11] The use of sexual advanced directives could clear up the issues of fuzzy, “in the moment,” consent that is common in chemsex, providing guardrails for people who are at high risk of sexual exploitation. Instructive sexual advanced directives could provide a list of “dos and don’ts” or “yesses and noes” that all parties sign onto in advance. The primary benefit of these instructive directives is that they would set out clear expectations for all participants, hopefully reducing any crossing of lines. However, using substances such as meth can have a strong impact on one’s behavior and there is no guarantee that the boundaries signed onto while sober will still be respected once the participants start using drugs. Chemsex users have reported violence associated with drug use as a major concern in the chemsex community.[12] If an accusation of consent being crossed arises after the fact, an instructive sexual advanced directive could help clarify what was and was not consented to before drugs got involved.

The use of proxy sexual advanced directives could provide another layer of protection for chemsex encounters. Participants would have one or more, depending on the size of the chemsex encounter, people be their proxies, giving these proxies the power to step in and make consent decisions for them in situations where it might seem like consent has gotten fuzzy.[13] While it may seem awkward for a sober third party to just be sitting and watching someone have sex, the use of consent proxies can prevent a situation from going too far when chemsex participants can no longer advocate for themselves in a situation.

Ultimately, even if legal systems can be set up to protect chemsex participants, it will take both public health campaigns and community buy-in to create a stronger and clearer culture of consent in the chemsex scene. Absent legal guardrails, some steps can be taken to ensure a safer chemsex encounter, such as only participating in it with a trusted partner and being familiar with the drug being used.

 

Notes

[1] Viiv Healthcare, Chemsex: Navigating Pleasure, Safety, and Health, 2021,https://viivhealthcare.com/ending-hiv/stories/community-engagement/chemsex/#:~:text=In%20the%20USA%2C%2010.3%25%20of,in%20the%20past%2012%20months.

[2] Id.

[3] Lunchenkov et al., “A Way to Liberate Myself”: A Qualitative Study of Perceived Benefits and Risks of Chemsex Among Gay, Bisexual, and Other Men Who Have Sex with Men in Almaty, Kazakhstan, Drug & Alcohol Dependence 1, 5–6 (Oct. 10. 2024).

[4] Id. at 7.

[5] Viiv Healthcare, supra note i. See also, Alexander A. Boni-Saenz, Sexuality and Incapacity, 76 Ohio State L.J., 1201, 1212 (2015) (giving intoxication as an example of “temporary transient incapacity”).

[6] Interview with a Gay Man Living in Chicago (Feb. 11, 2025) (on file with author).

[7] Id.

[8] Healy-Cullen et. al., Understanding How Gay Men Construct ‘Good’ Chemsex Participation Using Critical Discursive Psychology,15 Psych. & Sexuality 539, 548 (2024).

[9] Interview with a Gay Man Living in Chicago, supra note viii.

[10] Zachary Zane, It’s Time to Talk About Chemsex and Consent, Advoc., (Sept. 11, 2017 7:00 AM) , https://www.advocate.com/current-issue/2017/9/11/its-time-talk-about-chemsex-and-consent#toggle-gdp.

[11] Alexander A. Boni-Saenz, Sexual Advance Directives, 68 Ala. L. Rev. 1, 11 (2016).

[12] Lunchenkov et al., supra note iii at 7.

[13] It is also possible to have some combination of written instructive and proxies to ensure the most clarity in sexual encounters. See, Alexander A. Boni-Saenz, supra note xii at 12–13 for a brief introduction to hybrid directives.

Tomorrow’s Originalism: Would a Time Machine Solve Originalism’s Implementation Problem?

January 23, 2025
Constitutional Law, Ethics, Psychology, Sociology

Solomon Park, MJLST Staffer

I. Tomorrow’s Originalism: After Original Public Meaning Originalism & the Implementation Problem

When interpreting the Constitution, the threshold question is what “meaning [did] the text ha[ve] for competent speakers of American English at the time [the relevant] provision of the text was framed and ratified?”[1] This philosophy—known as Public Meaning Originalism (“PMO”)—has become the predominant way judges approach Constitutional questions.[2] But PMO hasn’t always been the majority methodology.[3] Contrary to the prevalence of PMO in the Roberts Court, it was only relatively recently in District of Columbia v. Heller, that PMO really found its footing. As Justice Scalia then wrote: “in interpreting [the Constitution] we are guided by the principle that ‘[t]he constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’”[4] This passage in Heller— and subsequent cases involving constitutional challenges—would usher in a new age of originalism and solidify the prevalence of PMO in modern constitutional jurisprudence.[5]

Although today’s originalism has been defined by PMO as the initial starting point, significant debate persists with how originalism should be implemented. Known as the “implementation problem,” legal scholars have critiqued originalism for its inability to “address how practicing judges and attorneys should apply originalist theories.”[6] This concern over implementation—and workability writ large[7]—has proven to be a significant point of contention in recent Supreme Court cases. And no case better exemplifies these challenges than United States v. Rahimi—a Second Amendment case decided just last term. In five separate concurring opinions, and a single dissent, the Justices took originalism to task—engaging with each other to express their support and concerns with PMO.[8]

This current discord preludes tomorrow’s originalism. But unlike the shift from Original Intent to Original Public Meaning, tomorrow’s originalism will likely not be one of substantive form—but rather of content (i.e. not whether PMO is the correct starting point, but rather what tools should be permissible/given more weight to conduct PMO analysis). Foreshadowing the future, we might consider the wealth of literature that surrounds textualism (i.e. rules surrounding semantic/substantive canons, as well as legislative history) as an indicator of the rigor that originalist jurisprudence might eventually arrive at.

This blog post suggests that before we arrive at tomorrow’s originalism, it may be helpful to take a step back. At its core, PMO has a simple premise: competent speakers of American English around ratification had an idea of what the Constitution meant, and it is this meaning that lawyers, judges, and Justices should now strive to locate.

Focusing on the fundamentals, what if we could literally go back in time and ask these speakers of American English? How exactly would we go about doing so? What sort of parameters would shape the questions we ask? Who would we seek out? This very brief blog post, proposes and shows how the following Mondale Time Machine hypothetical could: concretize ongoing discussions about implementation, and provide a way to clarify, and evaluate, existing originalist tools.

II. The Mondale Time Machine (“MTM”) Hypothetical: Core Capabilities & Limitations

The Mondale Time Machine (“MTM”) Hypothetical—Somewhere in the depths of Minnesota Law’s library, there is a time machine…

This very real device has yet to have been activated but can teleport willing “speakers of American English” to the present. The current plan is to then survey these speakers about the Original Public Meaning of a specific provision of the Constitution.

MTM possesses the following initial capabilities, it can teleport any number of people: from anywhere (i.e. geographic area); from anytime (i.e. can limit the search to a specific range of years); and can even teleport people possessing any permutation of specific characteristics or demographics (i.e. of a certain socioeconomic class, race, or gender). Note: this list of capabilities is non-exhaustive and additional capabilities can be added/subtracted by the reader.

MTM requires researchers—meaning the reader—to actually make these decisions. In preparation for the first round of time travel, and in order to best reflect PMO’s objectives, the reader has been asked to provide parameters—and their rationale—to the list of the above capabilities.

III. MTM Raises Two Core Questions/Opportunities:

This hypothetical raises at least two core questions. First, as a procedural matter how much of an issue is the implementation problem—as well as other problems that have been leveled against PMO? Afterall, if we conclude that not even asking a thousand people from the founding era would be sufficient, then the implementation problem is indeed serious. Some of the best arguments for this side could be that: any number of time travelers are probably under inclusive; the selected time travelers would not be representative of the founding era as a population; and evaluation problems could arise when there is disagreement amongst the time travelers.

Second, the hypothetical provides an opportunity to clarify and evaluate desirable features in current/future originalist tools. For example, if we conclude that teleporting an expert linguist from the founding era would be sufficient—then tools like dictionaries (which reflect the opinion of a small but highly educated group of people) should also receive an elevated status. Answering the hypothetical provides a clear platonic ideal for originalism. For example, if we decide that the time machine should transport people possessing various demographics, then the tools we use for originalist analysis should also reflect this ideal. For this reason, a tool which fails to capture these perspectives lacks a signature quality—perhaps even a necessary one—which should demote the persuasive weight given to the tool.

IV. Conclusion: Would a Time Machine Solve Originalism’s Implementation Problem?

 “Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult… Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.”—Justice Gorsuch, United States v. Rahimi[9]

This passage from Justice Gorsuch’s concurrence in Rahimi captures two simultaneous truths. Originalism is, and likely will remain, the “imperfect guide” used to interpret the Constitution. But at the same time, originalism has challenging flaws which arise out of its implementation.

Ultimately, my hypothetical highlights these two realities. On the one hand, a gut feeling tells us that a time machine should be able to solve the implementation problem. Afterall, if not even a thousand people from the founding era could resolve the issue, then what could? On the other hand, working through the hypothetical shows the line drawing problems created by the implementation critique. In the face of that difficulty—and as Justice Gorsuch reminds us—that doesn’t mean the inquiry is over.

I hope this blog post presents an interesting, and entertaining, thought experiment. My answer to the hypothetical would take too many words to write. However, I do think that the hypothetical probably strengthens tools that are capable of more holistically representing communities—such as Corpus Linguistics.

 

 

Notes:

[1] Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B. U. L. Rev. 1953, 1957 (2022).

[2] See, e.g., Lawrence B. Solum, Original Public Meaning, 807 Mich. St. L. Rev. 897, 810 n. 5-7 (2024) (providing an in-depth analysis of the use of PMO in: the Supreme Court, various federal courts of appeal, and state supreme courts); John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 761 (2009) (“Original public meaning is now the predominant originalist theory”); see also William Baude, Is Originalism Our law?, 115 Colum L. Rev. 2349, 2391 (2015) (concluding that “originalism seems to best describe our law”). But see Justice Stephen Breyer, Pragmatism or Textualism, 138 Harv. L. Rev. 718, 722 (2025) (“While the Court may well be in the midst of a paradigm shift toward textualism and originalism, the unworkability of these approaches in practice will push the Court back toward the traditional approach — gradually and with time”).

[3] See generally Keith E. Whittington, The New Originalism, 2 Geo. J. L. & Pub. Pol’y 599, 599-613 (2004) (describing and explaining the shift from Original Intent Originalism to Original Public Meaning Originalism).

[4] District of Columbia v. Heller, 554 U.S. 570, 570 (2008).

[5] See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev.  1095, 1095 (2009) (“District of Columbia v. Heller has been hailed by its supporters as a model of ‘new originalism,’ a methodology that focuses on original public meaning and eschews any concern for original intent.”).

[6] Michael L. Smith and Alexander S. Hiland, Originalism’s Implementation Problem, 30 Wm & Mary Bill of Rts. J. 1063, 1064 (2022).

[7] See generally Kurt Eggret et al., Chapman Law Review Debate: Does Originalism Work?, 26 CHAP. L. REV. 237, 244 (2023) (manuscript of a debate between Professor Kurt Eggert and Professor Lee Strang over Originalism’s workability issue); see also Justice Stephen Breyer, supra note 2, at 722.

[8] Compare United States v. Rahimi, 602 U.S. 680, 692 (2024) (“the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition) (citing N.Y. ST. Rifle and Pistol Ass’n., Inc v. Bruen, 597 U.S. 1, 26-31 (2022), with Rahimi, 602 U.S. at 702-703 (Sotomayor, J. & Kagan, J. concurring) (critiquing the dissent as being “so exacting as to be useless”), with id. at 711-712 (Gorsuch, J. concurring) (writing to emphasize the importance of originalism. “Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow”), with id. at 714, 719, 719-731 (Kavanaugh, J. concurring) (clearly supporting original public meaning originalism, and examining the role of “pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text”), with id. at 737-738, 739-740 (Barrett, J. concurring) (explaining the “basic premises of originalism,” and explaining the problem of “level[s] of generality”), with id. at 744, 745-747 (Jackson, J. concurring) (explaining that Bruen’s test has led to serious workability issues for lower courts, and that significant questions remain with originalism’s scope), with id. at 753-763 (Thomas, J. dissenting) (explaining why “[t]he Government does not offer a single historical regulation that is relevantly similar to [the applicable statute]”).

[9] United States v. Rahimi, 602 U.S. 680, 711 (2024) (Gorsuch, J. concurring).

Digital Literacy, a Problem for Americans of All Ages and Experiences

May 10, 2022
COVID-19, Cryptocurrency, Cyber Security, Data, Education, Ethics, Internet, Psychology, Sociology

Justice Shannon, MJLST Staffer

According to the American Library Association, “digital literacy” is “the ability to use information and communication technologies to find, evaluate, create, and communicate information, requiring both cognitive and technical skills.” Digital literacy is a term that has existed since the year 1997. Paul Gilster coined Digital literacy as “the ability to understand and use information in multiple formats from a wide range of sources when it is presented via computers.” In this way, the definition of digital literacy has broadened from how a person absorbs digital information to how one develops, absorbs, and critiques digital information.

The Covid-19 Pandemic taught Americans of all ages the value of Digital literacy. Elderly populations were forced online without prior training due to the health risks presented by Covid-19, and digitally illiterate parents were unable to help their children with classes.

Separate from Covid-19, the rise of crypto-currency has created a need for digital literacy in spaces that are not federally regulated.

Elderly

The Covid-19 pandemic did not create the need for digital literacy training for the elderly. However, the pandemic highlighted a national need to address digital literacy among America’s oldest population. Elderly family members quarantined during the pandemic were quickly separated from their families. Teaching family members how to use Zoom and Facebook messenger became a substitute for some but not all forms of connectivity. However, teaching an elderly family member how to use Facebook messenger to speak to loved ones does not enable them to communicate with peers or teach them other digital literacy skills.

To address digital literacy issues within the elderly population states have approved Senior Citizen Technology grants. Pennsylvania’s Department of Aging has granted funds to adult education centers for technology for senior citizens. Programs like this have been developing throughout the nation. For example, Prince George’s Community College in Maryland uses state funds to teach technology skills to its older population.

It is difficult to tell if these programs are working. States like Pennsylvania and Maryland had programs before the pandemic. Still, these programs alone did not reduce the distance between America’s aging population and the rest of the nation during the pandemic. However, when looking at the scale of the program in Prince George’s County, this likely was not the goal. Beyond that, there is a larger question: Is the purpose of digital literacy for the elderly to ensure that they can connect with the world during a pandemic, or is the goal simply ensuring that the elderly have the skills to communicate with the world? With this in mind, programs that predate the pandemic, such as the programs in Pennsylvania and Maryland, likely had the right approach even if they weren’t of a large enough scale to ensure digital literacy for the entirety of our elderly population.

Parents

The pandemic highlighted a similar problem for many American families. While state, federal, and local governments stepped up to provide laptops and access to the internet, many families still struggled to get their children into online classes; this is an issue in what is known as “last mile infrastructure.”During the pandemic, the nation quickly provided families with access to the internet without ensuring they were ready to navigate it. This left families feeling ill-prepared to support their children’s educational growth from home. Providing families with access to broadband without digital literacy training disproportionately impacted families of color by limiting their children’s growth capacity online compared to their peers. While this wasn’t an intended result, it is a result of hasty bureaucracy in response to a national emergency. Nationally, the 2022 Workforce Innovation Opportunity Act aims to address digital literacy issues among adults by increasing funding for teaching workplace technology skills to working adults. However, this will not ensure that American parents can manage their children’s technological needs.

Crypto

Separate from issues created by Covid-19 is cryptocurrency. One of the largest selling points of cryptocurrency is that it is largely unregulated. Users see it as “digital gold, free from hyper-inflation.”While these claims can be valid, consumers frequently are not aware of the risks of cryptocurrency. Last year the Chair of the SEC called cryptocurrencies “the wild west of finance rife with fraud, scams, and abuse.”This year the Department of the Treasury announced they would release instructional materials to explain how cryptocurrencies work. While this will not directly regulate cryptocurrencies providing Americans with more tools to understand cryptocurrencies may help reduce cryptocurrency scams.

Conclusion

Addressing digital literacy has been a problem for years before the Covid-19 pandemic. Additionally, when new technologies become popular, there are new lessons to learn for all age groups. Covid-19 appropriately shined a light on the need to address digital literacy issues within our borders. However, if we only go so far as to get Americans networked and prepared for the next national emergency, we’ll find that there are disparities between those who excel online and those who are are ill-equipped to use the internet to connect with family, educate their kids, and participate in e-commerce.

“I Don’t Know What to Tell You. It’s the Metaverse—I’ll Do What I Want.” How Rape Culture Pervades Virtual Reality

April 17, 2022
Artificial Intelligence, Criminal Law, Data, Data Privacy, Discrimination, First Amendment, Internet, New Technology, Psychology, Social Media, Sociology, Video Games

Zanna Tennant, MJLST Staffer

When someone is robbed or injured by another, he or she can report to the police and hold the criminal accountable. When someone is wronged, they can seek retribution in court. Although there are certainly roadblocks in the justice system, such as inability to afford an attorney or the lack of understanding how to use the system, most people have a general understanding that they can hold wrongdoers accountable and the basic steps in the process. In real life, there are laws explicitly written that everyone must abide by. However, what happens to laws and the justice system as technology changes how we live? When the internet came into widespread public use, Congress enacted new laws new laws to control how people are allowed to use the internet. Now, a new form of the internet, known as the Metaverse, has both excited big companies about what it could mean for the future, as well as sparked controversy about how to adapt the law to this new technology. It can be hard for lawyers and those involved in the legal profession to imagine how to apply the law to a technology that is not yet fully developed. However, Congress and other law-making bodies will need to consider how they can control how people use the Metaverse and ensure that it will not be abused.

The Metaverse is a term that has recently gained a lot of attention, although by no means is the concept new. Essentially, the Metaverse is a “simulated digital environment that uses augmented reality (AR), virtual reality (VR), and blockchain, along with concepts from social media, to create spaces for rich user interaction mimicking the real world.” Many people are aware that virtual reality is a completely simulated environment which takes a person out of the real world. On the other hand, augmented reality uses the real-world and adds or changes things, often using a camera. Both virtual and augmented reality are used today, often in the form of video games. For virtual reality, think about the headsets that allow you to immerse yourself in a game. I, myself, have tried virtual reality video games, such as job simulator. Unfortunately, I burned down the kitchen in the restaurant I was working at. An example of augmented reality is PokemonGo, which many people have played. Blockchain technology, the third aspect, is a decentralized, distributed ledger that records the provenance of a digital asset. The Metaverse is a combination of these three aspects, along with other possibilities. As Matthew Ball, a venture capitalist has described it, “the metaverse is a 3D version of the internet and computing at large.” Many consider it to be the next big technology that will revolutionize the way we live. Mark Zuckerberg has even changed the name of his company, Facebook, to “Meta” and is focusing his attention on creating a Metaverse.

The Metaverse will allow people to do activities that they do in the real world, such as spending time with friends, attending concerts, and engaging in commerce, but in a virtual world. People will have their own avatars that represent them in the Metaverse and allow them to interact with others. Although the Metaverse does not currently exist, as there is no single virtual reality world that all can access, there are some examples that come close to what experts imagine the Metaverse to look like. The game, Second Life, is a simulation that allows users access to a virtual reality where they can eat, shop, work, and do any other real-world activity. Decentraland is another example which allows people to buy and sell land using digital tokens. Other companies, such as Sony and Lego, have invested billions of dollars in the development of the Metaverse. The idea of the Metaverse is not entirely thought out and is still in the stages of development. However, there are many popular culture references to the concepts involved in the Metaverse, such as Ready Player One and Snow Crash, a novel written by Neal Stephenson. Many people are excited about the possibilities that the Metaverse will bring in the future, such as creating new ways of learning through real-world simulations. However, with such great change on the horizon, there are still many concerns that need to be addressed.

Because the Metaverse is such a novel concept, it is unclear how exactly the legal community will respond to it. How do lawmakers create laws that regulate the use of something not fully understood and how does it make sure that people do not abuse it? Already, there have been numerous instances of sexual harassments, threats of rape and violence and even sexual assault. Recently, a woman was gang raped in the VR platform Horizon Worlds, which was created by Meta. Unfortunately and perhaps unsurprisingly, little action was taken in response, other than an apology from Meta and statements that they would make improvements. This was a horrifying experience that showcased the issues surrounding the Metaverse. As explained by Nina Patel, the co-founder and VP of Metaverse Research, “virtual reality has essentially been designed so the mind and body can’t differentiate virtual/digital experiences from real.” In other words, the Metaverse is so life-like that a person being assaulted in a virtual world would feel like they actually experienced the assault in real life. This should be raising red flags. However, the problem arises when trying to regulate activities in the Metaverse. Sexually assaulting someone in a virtual reality is different than assaulting someone in the real world, even if it feels the same to the victim. Because people are aware that they are in a virtual world, they think they can do whatever they want with no consequences.

At the present, there are no laws regarding conduct in the Metaverse. Certainly, this is something that will need to be addressed, as there needs to be laws that prevent this kind of behavior from happening. But how does one regulate conduct in a virtual world? Does a person’s avatar have personhood and rights under the law? This has yet to be decided. It is also difficult to track someone in the Metaverse due to the ability to mask their identity and remain anonymous. Therefore, it could be difficult to figure out who committed certain prohibited acts. At the moment, some of the virtual realities have terms of service which attempt to regulate conduct by restricting certain behaviors and providing remedies for violations, such as banning. It is worth noting that Meta does not have any terms of service or any rules regarding conduct in the Horizon Worlds. However, the problem here remains how to enforce these terms of service. Banning someone for a week or so is not enough. Actual laws need to be put in place in order to protect people from sexual assault and other violent acts. The fact that the Metaverse is outside the real world should not mean that people can do whatever they want, whenever they want.

Mind Over Matter: Needed Changes to the Use of Hypnosis in the Criminal Justice System

February 21, 2021
Criminal Law, Health, Law Enforcement, Psychology, Sociology

Jordan Hughes, MJLST Staffer

When most people think of hypnosis today, they imagine stage-show demonstrations and over dramatized mind-tricks. Perhaps they picture people lined up, making ridiculous noises and actions seemingly without control of their own bodies at the behest of an entertainer. Despite such popular images, hypnosis has a wide range of psychological and medical applicability outside of entertainment. Trained professionals have found hypnotherapy useful as a tool to treat pain, depression, phobias, habit disorders, skin conditions, and many other psychological and medical problems. Clinical researchers lament that the public expectations of hypnosis, built up by its use for entertainment and its dramatization in media, make it more difficult to take advantage of a psychological tool that people throughout society could be benefitting from.

One group of people was quick to accept and explore the untapped potential of hypnosis in their work: criminal investigators. In the 1950s, the now partially de-classified MKUltra program began conducting hypnosis experiments on mental health patients, including experiments “hypnotically increasing ability to observe and recall a complex arrangement of physical objects.” This practice was generally considered “experimental” until a highly publicized case in 1976. A bus driver and 26 children were abducted and buried alive; after escaping, a hypnotist helped the bus driver to accurately recall the license-plate numbers on the vans used in the abduction, leading to the apprehension of all three kidnappers. After this case, police departments across the country began using forensic hypnosis as a part of investigations.

Since the 70s and 80s, the scientific validity of forensic hypnosis has been called into question. Studies have revealed that hypnotically recovered memories may be inaccurate, incomplete, or based on a leading suggestion. False memories introduced through hypnosis can be “hardened,” so that subjects cannot distinguish them from genuine memories. Courts have been split on the admissibility of hypnotically enhanced testimony at trial, and are becoming increasingly wary of its use. See Sims v. Hayette, 914 F.3d 1078, 1090 (7th Cir. 2019) (“The concealed hypnosis . . . calls into question everything [the hypnotized witness] said at trial.”).

Despite these hesitations and the scientific backlash, the Department of Justice maintains that there is a use for hypnosis in criminal investigations. According to the DOJ Criminal Resource Manual, while hypnosis should only be used “on rare occasions” and recalled memories should be corroborated, forensic hypnosis is considered an aid that investigators may employ. The DOJ states that hypnosis may be used where there is a “clear need for additional information,” and where hypnosis “can be useful” in aiding a witness’s memory.

Hypnotherapy, as described above, has been found useful in other contexts. And many of those contexts could be of help in the world of criminal justice. The things that make hypnosis dangerous for establishing facts in a court room—a subject’s openness to suggestion and confidence that the hypnosis will work—make the practice valuable in clinical settings.

In the clinical world, the field of hypnotherapy was pioneered by Milton H. Erickson, who founded the American Society for Clinical Hypnosis in 1957. Hypnotherapy has since been found effective as a tool for overcoming narcotic addictions, managing pain, fighting depression, and curing all kinds of anxieties and phobias. Hypnotherapy has also shown promise in helping survivors of domestic and sexual abuse overcome complex PTSD, helping adults to overcome childhood traumas, and providing a means to deal with traumatic grief. Different people are receptive to different types of hypnotic intervention, and trained hypnotherapists are able to tailor their interventions to the individual patient.

Addictions, pain, anxiety and depression, PTSD and other forms of trauma . . . all of these are conditions that are known to influence criminal behavior. A criminal justice system focused on prevention of crime would employ hypnotherapy with a public health approach, exploring the potential of hypnotic interventions to help people mold the physical and psychological conditions that can lead to criminal activity. Instead of featuring it in the DOJ Criminal Resource Manual as an investigation technique, we should be seeing hypnotherapy embraced by the Bureau of Prisons, probation officers, and case managers as a means of creating “correctional facilities” that live up to their name. Unfortunately, the will to explore this tool as a curative measure has not found its way to the prison system.

The problems with where hypnosis is used in the criminal justice system underscores a broader systemic issue. There is an overemphasis in the system on using innovative techniques to catch criminals. Whether a behavioral science that promises to “unlock” memories, or a piece of military tech that allows for dragnet-style spying on unsuspecting civilians, zealous investigators are often keen to employ novel tools to get ahead of the suspects they are after. This is at the expense of innocent civilians, whose constitutional and natural rights are inevitably contravened.

By and large, this desire for innovation has not crept into the world of those focused on helping to rehabilitate past convicts. Over one nine year study, 83% of the state prisoners released were rearrested for committing new crimes. Arrest data tells us that over two-thirds of state drug offenders are rearrested within five years of their release. 24% of sex offenders commit another sex crime with fifteen years of release and a much higher percentage of sex offenders are estimated to recidivate by committing non-sexual crimes that are nonetheless sexually motivated. These high rearrest rates are part of why America has the largest per-capita prison population of any country in the world.

But it does not have to be that way. Hypnotherapy is one of many techniques that, with investment and proper oversight, could prove essential to curing drug addictions and affecting long-term behavioral change. Federal courts in Minnesota have already created a unique one-on-one mentorship program to help rehabilitate offenders as they reenter society. An investment in this and similar programs, and a commitment to developing novel ways of helping people avoid criminal activity, could be the fundamental change that we need in order to see a criminal justice system that does more protecting of our society than punishing it.

Timing Trouble: To What Extent Should We Assume People Will Break the Law?

February 15, 2020
Artificial Intelligence, New Technology, Psychology, Public Safety, Sociology

Jack Brooksbank, MJLST Staffer

City planners and civil engineers across the country face a little-known, yet extremely important, question when designing road systems: how long should the green lights last? Anyone who has ever had a regular commute probably wishes the answer was simply “longer,” but this seemingly minor detail can get quite complex. Traffic light timing decisions are made by both government officials and specialist consulting firms, based on extensive studies, and supported by academic papers. The practice of traffic light timing is so established that it has its own lingo.

Perhaps the most important part of traffic light timing is coordination. Engineers try to set the cycles of lights on a given route in concert, so that a car passing through one green light finds the next light turning green in time for it to continue. “The intent of coordinating traffic signals is to provide smooth flow of traffic along streets and highways in order to reduce travel times, stops and delay.” When done well, it leads to a phenomenon known in the industry as a “green wave,” where a car hits every green light in a row and never needs to come to a stop.

It’s not just a minor detail, either. Coordination can have some serious benefits for a city. One town revamping its timing scheme estimated it would reduce travel times by as much as 10%. And although making the morning commute go more smoothly is a worthy goal in itself, proper light timing can create other benefits too. Efficient traffic light timing can even help the environment: by reducing the number of stops, and the total time spent driving, coordinated traffic signals reduce the amount of fuel burned, and greenhouse gasses produced, by commuters.

However, timing traffic lights relies in large part on one central assumption: that a car leaving one green light takes a certain amount of time to get to the next one. This raises a potential problem: drivers don’t follow the speed limit. Indeed, one study found that nearly 70% of all drivers regularly speed! When timing traffic lights, then, designers must make a choice: do they time the lights based on the legal speed limit, or based on the speed drivers actually go?

If timing is based on the speed limit, many cars will still arrive at the next light before it has turned green. The coordination of signals won’t have mattered, and the cars will still have to come to a stop. By basing the timing on the wrong speed, the designers have negated the benefit of their careful work, and might as well have saved the time and money needed for figuring out how to coordinate the signals in the first place. But, if instead timing is based on the speed drivers really travel, designers are essentially rewarding illegal behavior—and punishing those drivers who do actually follow the law with extra stops and delays!

Most major cities now rely on actuated controllers, or devices that detect when cars are approaching in order to trigger light changes without human input. Some cities are even experimenting with AI-based systems that take the design out of human hands completely. Advances in technology have thus heavily favored the “actual speed” approach, but is this because a decision was made to accommodate speeding drivers? Or have cities, in their enthusiasm to reduce congestion, simply adopted the latest in technology without considering the policy choice that it entails?

Also, if traffic lights should be timed for the actual speed cars travel, it may raise further implications for other areas of law that rely on questionable assumptions of human behavior. Perhaps most notable is the law of contracts, which generally relies heavily on the assumption that people read contracts before signing them. But as electronic devices, apps, and online content proliferate, this assumption gets farther from the truth. And people can hardly be blamed for agreeing without reading: one investigation in Norway found that people have an average of 33 apps on their smartphones, and that reading the terms and conditions of that many apps would take an average of 31 hours. Another investigation found that simply reading all the website privacy policies an average internet user encounters in a year would require 76 eight-hour days of reading! If we should time traffic lights to account for people being too impatient to follow the legal speed limit, surely we should update the laws of contract to account for such a crushing reading load. Perhaps it is time to reform many areas of law, so that they are no longer grounded on unrealistic expectations of human behavior.

 

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