Mens Rea & Dr. Gokal

We have the read the articles, and by now we all know it well.

The story about the physician from Houston facing criminal charges for trying to salvage spoiling vaccines, by giving soon-to-be-spoiled doses to his acquaintances and family. Dr. Gokal is his name, and his case has become an internet sensation of sorts.

At the heart of the matter is whether Dr. Gokal truly committed a crime. He undoubtedly took the vaccines and administered them to those who otherwise were not scheduled nor immediately qualified to receive the vaccine. The actions are undeniable, but that is not the question. Rather, the question is – do the actions constitute a crime?

American criminal law is based upon the common law system, an originally British system in which the law and its interpretation are derived heavily from judicial precedent, or the ruling of judges. The American Constitution is based upon common law, which means many of the current laws that apply principles from the Constitution reference older common law customs.

For example, the First Amendment Right of Access, a doctrine that states the public should have access to court documents for criminal cases, is derived from an older common law principle emphasizing transparency in the courts.

Common law is different from law as most of us understand it. What we think of law is actually statutory law, or laws based upon definitions and rules. Though most of the laws today are statutory laws, these statutory laws must comply with original common law and the Constitution in order to be truly legal.

And when legal courts are presented with an unusual case, or an unusual set of circumstances, common law principles are utilized in the legal decision-making process as existing statutes or rules are often not directly applicable.

This is the situation we find ourselves in with Dr. Gokal. Yes he took the vaccines, but the vaccines were spoiling. Yes he administered the vaccines to patients, but the patients were not scheduled at the time nor were immediately eligible to receive the vaccine according to Texas state guidelines.

In such complex cases, the courts should apply common law principles to understand whether the actions constitute a crime – instead of attempting to retroactively fit statutes outside of its original, intended context.

Common law requires that the accused must demonstrate mens rea, which is Latin for ‘guilty mind’ in order to be convicted of a particular crime, which modern courts have distilled into four classifications.

Acting purposely – the defendant had an underlying conscious object to act

Acting knowingly – the defendant is practically certain that the conduct will cause a particular result

Acting recklessly – the defendant consciously disregarded a substantial and unjustified risk

Acting negligently – the defendant was not aware of the risk, but should have been aware of the risk

When applied to most criminal cases, mens rea can appear in one of two ways. The first is when the defendant deliberately commits an act knowing the act is criminal in nature or has criminal consequences. The second is when the defendant deliberately does not commit an act, either knowing that the lack of action will result in a criminal consequence or recklessly disregarding knowledge that he or she should have had.

Most nonfinancial healthcare crimes are prosecuted the second way, where a prosecutor attempts to show that the lack of action or the blatant disregard on the part of the physician were criminal.

It is not clear how prosecutors will construct the legal argument against Dr. Gokal, nor exactly how they intend to prove criminal intent. We attempt to hypothesize how prosecutors will use each of the four frameworks to prove mens rea and predict the likelihood that the particular frameworks would succeed.

Acting purposely

This is nearly impossible for any credible prosecutor to demonstrate. Dr. Gokal informed the health system that he was taking the vaccines and he garnered no illicit gain from administering the vaccine to his acquaintances.

Acting knowingly

Again, Dr. Gokal acted with altruistic intentions, and he was transparent about his actions. He clearly believed he was doing the right thing.

Acting recklessly

Prosecutors may attempt to frame a legal argument around the notion that Dr. Gokal was knowingly reckless in his actions, but Dr. Gokal can refute this by proving that he behaved within the scope of a caring physician – acting in the best interest of his patients, his healthcare system, and those whom he administered the vaccine to.

Acting negligently

The fourth and final framework is the most likely argument, and the easiest argument for the prosecutors to substantiate, as this is the framework in which the prosecutors can use the infamous ‘should have known’ argument. The prosecutors can argue that Dr. Gokal should have known that stealing vaccines from the government was wrong, but he did it anyways. And by doing so, he blatantly disregarded otherwise important healthcare laws governing access and distribution of vaccines.

But having the strongest argument does not necessarily make it a valid argument – because a strong argument is not necessarily a valid argument, a subtle but critical distinction which forms the foundation for constructing a legal argument.

According to legal experts, there are two types of arguments, inductive and deductive arguments. Inductive arguments are called strong arguments, because they piece together evidence, which in certain situations or when pieced together, could likely demonstrate a crime. Deductive arguments are called valid arguments because they are right in all circumstances, regardless of whether a specific piece of information was included or not included.

The difference between the two arguments defines whether the legal  burden of uncertainty, otherwise known as reasonable doubt, has been addressed sufficiently – a threshold prosecutors must cross in order to convict the accused. Inductive arguments fall short of this threshold, compared to deductive arguments which, being valid in all circumstances, leave no uncertainty in the guilt of the accused.

But how can prosecutors reasonably demonstrate criminal intent in a physician who administered vaccines to patients in the middle of a pandemic?

This leads us to the second common law term that comes into play, actus reus, which refers to the act or omission of an act that comprises the physical elements of a crime – the physical act that proves the criminal intent.

If correctly argued, deductively, prosecutors would be able to prove that a specific act or set of acts support one of the four frameworks of criminal intent.

This becomes a tall order for the prosecutors attempting to convict Dr. Gokal.

Because there is no specific act that can truly define criminal intent without being fundamentally inductive.

If prosecutors state that Dr. Gokal exhibited criminal intent for taking the vaccines despite receiving permission, he can argue that he would be harming the public by letting the vaccines go to waste.

If prosecutors state that Dr. Gokal exhibited criminal intent for administering the vaccine to those not immediately eligible, he can argue that short lifespan of the vaccines justify his actions since he was attempting to establish herd immunity by finding anyone to give the vaccine.

Every prosecutorial argument is fundamentally inductive because there is an equally plausible counter argument justifying how any purported criminal act is, in fact, not criminal. Every legal argument breaks down into a sequence of circular logic, with each argument and counter argument revolving around the other.

This is good news for Dr. Gokal, who will likely emerge a hero out of this whole escapade. But is bad news for the legal system, because this case demonstrates the flaws within the legal system when adjudicating nonfinancial healthcare crimes.

We need to hearken back to the roots of the common law system to develop more relevant, and more easily applied frameworks for these types of legal cases – in which the statutory laws are not directly pertinent. Unfortunately no one has had the wherewithal to propose such an idea.

Common sense is not so common, it would seem.

 

(We would like to thank the Legal Information Institute at Cornell Law School for their support in drafting this article.)

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Vaccine Passports: what we need to know

The COVID-19 pandemic has killed more than half a million people in the US and has seriously impacted our daily lives. The granting of Emergency Use Authorizations for COVID-19 vaccines has been a game changer in helping to reverse the pandemic onslaught. Demand for the vaccines currently far exceeds supply nationwide. They have become the golden ticket that can transport us back to a time when routine activities, such as attending school or taking vacations, didn’t seem fraught with danger. What’s the best way to go about re-establishing these activities? One idea that’s getting discussed seriously is giving those who have been immunized a vaccination passport (VP).

What is a vaccination passport?

Let’s start by clarifying some terminology. VPs are documents that show that someone has been given a vaccine(s) and is therefore presumed to be immune from getting and sharing that disease. These are distinct from diagnostic tests to determine if a person is or is not infected with a particular virus (PCR and viral antigen tests) or has been exposed to a virus (antibody tests). VPs are the modern day equivalents of the “letters of transit” that played a key role in the film Casablanca. They’ll enable you to travel freely.

Why give vaccine passports?

Vaccinated people are unlikely to transmit the virus that causes COVID-19 with others, though this has yet to be definitely proven. So, what’s the primary rationale for giving vaccination passports? It seems the goal is to incentivize people to get vaccinated. Folks might be more likely to seek out the vaccine if it bestows upon them certain privileges, such as being able to travel freely. While the idea might sound appealing at one level, the road to vaccine passports is pockmarked with political potholes and littered with logistical land mines.

Administrative issues

There are a lot of important questions that need to be answered before VPs can become widespread; it’s unlikely there will be a “one size fits all” solution. What might VPs look like? Pieces of paper (that could easily be lost or counterfeited), or a digital key or document you store on your smartphone (that many older folks still don’t have)? If you lost one, how would you get it replaced? Would your vaccination records be tied to your other medical records, and if so, what kind of privacy and security protections would be needed to safeguard your data? How would the passport administrator verify that you got vaccinated in the first place? Who is responsible for correcting any errors that crop up? Given how much we’ve struggled as a nation to simply solve the scheduling of vaccinations, VPs might be significantly more difficult to manage.

Who’s going to run the program?

A coalition of health tech leaders (including Epic, the Mayo Clinic, Microsoft and Salesforce) has started the Vaccination Credential Initiative to create an internationally accepted digital health card. Its vision – as stated on its website – is “to empower individuals to obtain an encrypted digital copy of their immunization credentials to store in a digital wallet of their choice. Those without smartphones could receive paper printed with QR codes containing World Wide Web Consortium (W3C) verifiable credentials.” Some European countries (e.g. Denmark) are working on developing their own immunization passports, and the President of the European Union Commission has voiced support for them.

We already have a hodgepodge system designed to keep folks with COVID-19 from traveling. Many airlines are requiring proof of non-infectivity to board a plane – these are distinct from VPs. The methods adopted vary from airline to airline: United uses Travel Ready Center, American uses VeriFly while others use Common Pass. Saga cruises are the first in the UK to demand proof of vaccination, but not everyone is on board with the concept. The World Travel and Tourism Council stated its opposition to allowing travel only by those who have been vaccinated, on the grounds that it is discriminatory.

Discrimination concerns

The concept of gaining advantage from one’s immunological status is not a new one. In New Orleans in the mid 19th century, great economic value was attached to those who survived the onslaught of epidemic waves of yellow fever. A mix of structural racism and a system valuing “immunocapital” ranked men and women highly if they were yellow fever survivors. Those that had not had the disease yet found it difficult to obtain work or obtain credit and women could not marry. Slaves were similarly revalued, with larger assessments attached to survivors. This legacy of viral discrimination casts a long shadow over current discussions surrounding vaccination passports.

Also problematic is the fact that not everyone will be eligible for VPs. Some people can’t be vaccinated for medical reasons but would still like to participate in whatever activities the passports enable (such as travel opportunities). These individuals will likely file complaints if they are denied VPs, arguing that they’re discriminatory in nature. Vaccine opponents will no doubt also file lawsuits seeking to block the use of VPs, claiming they represent an attack on their freedoms and personal choice.

Others may be shut out of VP programs because they don’t have the computer skills to register online, a problem that’s turned out to be widespread with the vaccinations. Don’t have any ID? In some places this prevents the most vulnerable from getting the COVID-19 vaccine, and therefore VPs as well. Many Black and marginalized communities are already deeply suspicious of the medical establishment, and wary of receiving a COVID-19 vaccine. Restrictions that prevent these groups from participating in various societal activities because they don’t have VPs will echo the Jim Crow days of poll taxes and literacy tests that were required to vote.

Enforcement issues

VPs bring up a similar issue as mask mandates: who is going to enforce them? It is one thing for a cruise line to do so, since reservations are required and extensive paperwork needs to be filled out in advance. Who is going to keep non-vaccinated people out of restaurants or concerts that require proof of vaccination? We’ve already seen anti-maskers storm department stores, ignore requirements to wear masks on planes and even kill a security guard who confronted them.

Black market for vaccine passports

Many airlines are now requiring proof of a negative COVID-19 test before they will let their customers fly. This has led to a black market for fake negative COVID-19 test results for those who are looking to game the system. Similarly, bogus cards claiming that the cardholder was exempt– for medical reasons – from having to wear a mask, have been manufactured and distributed. It’s not hard to imagine that a similar market will emerge for VPs.

Overcoming vaccine hesitancy

Given the multitude of issues and concerns listed above, moving forward with issuing vaccination passports seems highly problematic. If the primary purpose of having VPs is to drive up immunization rates, that can be better accomplished by running public service announcements and ads illustrating how liberating it is to start doing normal activities once vaccinated. A nationwide campaign to do just that is already in the works. I personally can think of a better use for the time and money that will be spent on establishing VPs: use them to focus efforts on overcoming vaccine hesitancy in concert with combatting the high tide of online vaccine misinformation and disinformation.

Source: Technology Networks

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