June 26, 2013
We Name It as Torture by Tina Minkowitz
To respond to controversy and resistance developing in response to the recommendation of Special Rapporteur on Torture Juan E. Méndez for an absolute ban on nonconsensual psychiatric interventions, I suggested to use June 26, the International Day in Solidarity with Victims of Torture, to raise awareness and support for the recommendations. What started out way more ambitious became a relatively informal call put out over email lists, Facebook and with the help of the Mad In America website, to MIA bloggers. I
suggested “that we use June 26 as a day to write blogs and statements on psychiatric torture. This can be done as a response to or reflection on the UN rapporteur on torture’s recommendations that forced psychiatric treatment of all kind be banned, or however you might think to raise awareness on the topic. What is the value of naming nonconsensual interventions as torture, and what are the implications of doing so?” In attempting my own writing, I was reminded of the need for solidarity not only in creating a remedy, but even for the stories of injustice to be heard.
When I read the U.S. Supreme Court cases on civil commitment and forced psychiatry I had to fortify myself with a drink to dull the edges of pain. How does it feel to read casual descriptions of torture that read like “how many angels on the head of a pin?” – abstruse irrelevant scholastic figures justifying what they cannot begin to understand.
Spending a lot of time in UN meetings I have come to feel like I am operating an avatar of myself, letting something come through me that uses logic and legal reasoning to add up to the inevitable conclusion, based on the definition in the Convention against Torture, forced psychiatry is an act of torture. But it has begun to feel curiously cold, as if it is more a trick than the truth. UN advocacy is all about getting the right words on paper, and it can breed cynicism on all sides.
What I’ve done when I allow something to come through me in those meetings, is at best to allow the truth to speak itself. It is always hard to call up that state of being in myself that can remember and critically shape advocacy at the same time; it is justified when the creative force shapes ideas in a new way so that I am bringing something into the world. But when it feels like I am just dressing up the same ideas in new clothing, trying to sell my orphans to the highest bidder, I get tired.
We need more than the right words on paper. We need allies who are in it with us for the long haul. We need to build our own bases of power, and to share power and resources with each other so that no one has to feel rejected; there are too few of us for rivalry to make any sense. We need to not exploit each other.
There’s also a gender dimension to this. In the male-dominated culture to which I am accustomed, violation of integrity in all respects – privacy, sexual autonomy and desire, mental space, physical space, touch, etc. – is a condition of life imposed on females of all ages. Escaping from these violations and establishing boundaries of our own choosing is a life-struggle that we win or lose, every time. Both forced psychiatry and the burden of proof placed on us to convince someone else that we have been harmed and that this harm is cognizable under international human rights law and must be stopped, are violations of this nature. I cannot speak to men’s experience but as a female it feels to me like a turning into the dirt, rubbing my being into the oppression so deeply it will never come out.
Even “winning” the struggle can be a pyrrhic victory if it reinforces the binary; losing is just losing.
When and how will we stop the violence? When and how will we stop appeasing aggressors and even inflicting violence on ourselves first in order to demonstrate our compliance and in order to take some measure of control?
I want to say, it’s time to leave torture behind. It’s time to reject the experience, the definition of self that the torturers left behind, the silencing at so many levels. It’s time to reject the lies told about what the experience is and is not, the state repression that makes us outlaws with the mark of Cain though we have killed no one; we might wonder if any of our missteps were really so bad as to merit this punishment. It’s time to say: Enough.
We are the ones who call for an absolute ban on forced psychiatry. We are the ones who say, it is torture if it happens without the person’s own free and fully informed consent – that force is not only whether they hold you down and inject you but also what the neuroleptic does to you inside your brain and mind, even if you took it in your hand and put in your own mouth because you knew what would happen if you didn’t.
“Only justice will stop a curse,” yet it’s a curse that seems to boomerang while we invent ways to not feel so alone and rejected, while we seek integrity or companionship, creativity or choice, looking for ways across the divide that will never heal. It’s not in our power to heal the rejection because we didn’t create it. Yet we are the ones who suffer and not those who harmed us. It’s unjust and will always remain so. The power we have to create a curse, a curse that will only be stopped by justice, is to name the violence, to name the human rights violation.
We name it as torture. We wrote the definitions that were adopted by the United Nations in the Convention on the Rights of Persons with Disabilities; that were adopted by the Committee on the Rights of Persons with Disabilities that has the authority to interpret this treaty; that were adopted by two UN Special Rapporteurs on Torture and by the Office of the UN High Commissioner for Human Rights.
Forced psychiatry is torture because:
It meets the criteria for the definition of torture, in Article 1 of the UN Convention against Torture. That is: it is an act that intentionally inflicts severe mental or physical pain or suffering, by or with the acquiescence of state officials, for purposes such as interrogation, coercion or intimidation, punishment, or for any reason based on discrimination of any kind.
Intentional infliction: “Intent” here does not imply that the perpetrator necessarily has a subjective desire to cause harm, although we know from experience that when there are no witnesses who matter to them, psychiatrists, nurses and others in the system directly express sadism and cruelty in relation to their infliction of forced interventions on us. Examples: a) From my own experience, on my first day in lockup, as a scared and naïve 18-year-old, a large nurse brushed away my stammering refusal of haloperidol, saying with laughter, “We’ll see what you say tomorrow.” That scared me enough literally out of my own wits and skin, so that the next day like a zombie I was able to do what was required of me. b) Something I witnessed, when visiting Ellen Glick Haley (who later died of complications in an operation to disimpact her bowels, made necessary by the effects of clozapine, which she was forced to take under outpatient commitment): Ellen was in lockup and the psychiatrist had gotten a court order and was forcing her to take ziprasidone, which made her vomit and feel generally miserable. I asked the psychiatrist why she was doing this to Ellen, and she answered, “To get her to take risperdone.” Here there was not even a pretense that the drug being forced on her was directly intended to improve Ellen’s health or well-being; instead it was intended that the suffering inflicted would break Ellen’s resistance and coerce her into accepting another drug that she knew would harm her in other ways. c) Early literature on both neuroleptic drugs and electroshock show that psychiatrists were aware of, and sought, the zombifying effects of neuroleptic drugs and the punitive impact of shock. In particular, shock was considered desirable to punish women as a means of maintaining male dominance, shock being salaciously referred to as a “mental spanking.”
Special Rapporteur on Torture Manfred Nowak said in 2008 that discrimination based on disability satisfies both the intent and purpose required under this definition. When psychiatrists dismiss our subjective feelings, reactions, refusal, wishes, they violate our personhood and exhibit the most profound discrimination. Self-serving justifications and self-delusion by perpetrators that the harmful act is somehow for the victim’s own good cannot remove these acts from the category of torture. As Nowak said, severe acts of discrimination cannot be justified by the “good intentions” of medical professionals. Current Special Rapporteur on Torture Juan E. Méndez has elaborated on this, saying that the doctrine of “medical necessity” cannot justify forced psychiatric interventions, and that this requires reconsideration of contrary jurisprudence in the European Court of Human Rights.
Severe mental or physical pain or suffering: Forced psychiatry causes both physical and mental suffering. Physical suffering includes the harm caused to bodily systems (like metabolic and endocrine disorders) and to the brain (including movement disorders like tardive dyskinesia and changes in brain structure and function that affect thinking and feeling and selfhood and initiative, and can also result in withdrawal syndromes). Mental suffering includes the trauma of having these changes forced on one’s mind and body against one’s will, the awareness of one’s mind and will, the very center of the self, being subverted by external agency not under one’s own control. Given the nature of forced psychiatry as being designed to affect the mind through the brain, there is an interplay between physical and mental suffering that itself is an infliction of suffering.
Neuroleptics and other psychiatric drugs were recognized as a form of torture in 1986 by the first Special Rapporteur on Torture, P Kooijmans, because they make a person apathetic and dull the intelligence. The Inter-American Convention to Prevent and Punish Torture includes in its definition an alternative prong aimed at mind-altering drugs, in particular, that torture also includes the use of methods intended to obliterate the personality of the victim or to diminish the victim’s physical or mental capacities, even if they do not cause physical pain or mental anguish. This points to the inherent nature of harm caused by such methods, which directly violate the human personality.
By or with the acquiescence of state officials: State (government) culpability can be shown in three ways. State officials may be directly involved, e.g. if the torture was committed by employees of a public institution, or if a judge approved the forced drugging or electroshock. State acquiescence is also given when employees of a private institution act pursuant to powers given them by law; in effect they are acting as an arm of the state in carrying out commitment and forced interventions and the state has given its general approval to these acts. Human rights mechanisms have also found that failure of a state to exercise due diligence to protect against the infliction of severe suffering by purely private actors incurs liability for torture and ill-treatment on the part of the state. States must not only withdraw their approval for psychiatric commitment and forced interventions by repealing the laws that authorize it, they must also enact and enforce laws criminalizing these acts of violence.
Purposes such as: The most obvious purpose is discrimination based on perceived disability, which is always present. Other purposes include discrimination based on gender, race, sexual orientation, physical or sensory disability, economic circumstances, political or religious beliefs, etc., as well as interrogation (drugging as part of a campaign to convert you into believing you are mentally ill and “need” to be enslaved to the system for life); coercion or intimidation; and punishment. The purpose of obliterating the personality and diminishing mental and physical capacities (e.g. use of drugs or shock explicitly for behavior control, to disable the person from acts of resistance and self-defense) is also relevant, even beyond the jurisdiction of the Inter-American Convention, as a purpose similar to those named in the CAT definition.
International human rights law is beginning to support us:
There is a growing body of jurisprudence in international human rights law that agrees with us that forced psychiatry is torture, not only when it is done against political prisoners who have been certified as “sane” by a psychiatrist who is not part of the repressive regime, but in its ordinary everyday manifestation that we know so well. Manfred Nowak was the first human rights expert outside of our own movement to take this position, albeit tentatively, saying that such interventions “may constitute torture or ill-treatment” and that they are forms of torture and ill-treatment practiced against persons with disabilities.
Juan E. Méndez, the current Special Rapporteur on Torture, acknowledges that nonconsensual medical interventions against persons with disabilities – including restraint or solitary confinement for any period of time, as well as nonconsensual administration of electroshock, psychosurgery or mind-altering drugs such as neuroleptics – always amount to at least inhuman and degrading treatment, arguably meet the criteria for torture, and are always prohibited by international law. He calls for an absolute ban on forced psychiatric interventions, saying it is an immediate obligation that cannot be postponed due to scarce financial resources. In a statement to the Human Rights Council, Méndez said that detention on mental health grounds is never justified and in particular that it is not justified based on a motivation to protect the safety of the person or others. In saying this he reversed a conflicting statement in the report, bringing his position into line with the CRPD and with his own recommendations, which call for repeal of legal provisions that are contrary to free and informed consent, such as those authorizing confinement and compulsory treatment in mental health settings. Méndez also states that reparations are due to survivors, and that the reparations framework “opens new possibilities for holistic social processes that foster appreciation of the lived experiences of persons, including measures of satisfaction and guarantees of non-repetition, and the repeal of inconsistent legal provisions.”
The Committee on the Rights of Persons with Disabilities has recommended consistently that countries change their legislation and practices so as to ensure that all mental health services are based on the free and informed consent of the person concerned. This means respecting the legal capacity of every person to make her own decisions about health care; a person might ask her own chosen supporters to help with decision-making but she remains in control and the state may not exercise any compulsion over her treatment decisions or allow anyone else to do so. Legal capacity is in many ways the content of reparations due to survivors of forced psychiatry on a collective level: what is necessary, beyond repeal of the torture-authorizing laws themselves, to ensure that it will not happen to us again. It gives us back the right to defend ourselves and the security of expecting that the state will enforce our right to be free from violence, rather than inflicting violence against us or colluding in it and looking the other way.
To my comrades:
I mention these tools because they are hard-won and potentially useful to comrades in the struggle. It is a real challenge to use the hierarchical means and methods of law to vindicate our aspirations for self-determination and control over our own destinies. We need the circle of comradeship to remember that we have the power to name, if nothing else. We also, depending on our individual skills, training, gifts and desires, have power to make a difference in each others’ lives and in the ways that people throughout the world can understand justice, madness, trauma, spirituality, culture and freedom. In the past I have often said that we will win, if only enough of us pull together, if only we find the right openings and opportunities to influence the systems that control much of our lives, if only the vision being promoted in the CRPD can act as a magnet to draw all the iron shards in one direction. It’s finally dawned on me, given the centuries-old struggles against racism and colonialism, against patriarchy and capitalism and war, for the rights of indigenous peoples and for a living earth, and given how much our own struggle is intertwined with all of these and cannot easily be assimilated to the existing power structures, I can’t hold out that hope as inevitable; maybe I am confronting more deeply the source of my own pain. I want more spaces for us to inter-see with each other and affirm the faith that it is doable, that society’s well-being does not depend on our suffering, that we can hold the space for each other with our affirmations and our own willingness to be there. Thank you to the survivors and allies who are joining me in this day of action in solidarity with victims, survivors and resisters of psychiatric torture… and especially to Faith Rhyne who shared her work with me and helped me to remember how to write something like this.
 The character Celie, in Alice Walker’s book The Color Purple.
 See materials at www.chrusp.org, and my article The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1481512.
 Peter R Breggin, Brain Disabling Treatments in Psychiatry (2008); David Cohen, “A Critique of the Use of Neuroleptic Drugs in Psychiatry,” in Fisher and Greenberg, eds., From Placebo to Panacea: Putting Psychiatric Drugs to the Test (1997).
 An author from the UK who wished to remain anonymous sent me her writing some years ago on “Punishment ECT,” which cited the following articles: Abse & Ewing, Transference and Countertransference in Somatic Therapies, J. NERVOUS & MENTAL DISEASES (1956) (which had the quote on “mental spanking”) and Ruffin, et al., Attitudes of Auxiliary Personnel Administering Electroconvulsive and Insulin Coma Treatment: a Comparative Study, 131 J. NERVOUS & MENTAL DISEASES 241-46 (Sept. 1960). See also Bonnie Burstow, Electroshock as a Form of Violence Against Women, 12 VIOLENCE AGAINST WOMEN 372 (Apr. 2006).
 Interim report of Special Rapporteur on torture, July 28, 2008, A/63/175 [Nowak report], para 49. Available at: www.ohchr.org/Documents/Issues/Disability/A.63.175.doc.
 Report of Special Rapporteur on torture Juan E. Méndez, Feb 1, 2013, A/HRC/22/53 [Méndez report], para 34-35. Available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf.
 http://ap.ohchr.org/documents/E/CHR/report/E-CN_4-1986-15.pdf, para 119.
 Nowak report. Relevant paras are 38, 40, 41, 44, 47, 49, 50, 55-65, 71-76.
 Méndez report, para 81.
 Méndez report, para 89(b).
 Méndez statement to Human Rights Council, available at: http://www.madinamerica.com/wp-content/uploads/2013/03/torture.pdf.
 Méndez report, para 85(e).
 Méndez report, para 84.
 See Concluding Observations on countries’ reports, available at: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Sessions.aspx. Relevant recommendations are found under articles 12, 14, 15, 17, 19 and 25.
 Convention on the Rights of Persons with Disabilities (CRPD), Article 12; see Concluding Observations under Article 12. See also materials on legal capacity at www.chrusp.org/home/resources.
Mad Law and Human Rights: An attorney and psychiatric survivor, Tina Minkowitz writes on the new perspectives in human rights law that emerged in the work by users and survivors of psychiatry on the Convention on the Rights of Persons with Disabilities.
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