Appendix 249. Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination (J.C. Bublitz and R. Merkel, 2012)

Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination

Jan Christoph Bublitz and Reinhard Merkel

J. C. Bublitz (&) R. Merkel Faculty of Law, Institute of Criminal Law and Legal Philosophy, University of Hamburg, Hamburg, Germany; e-mail: [email protected]

Springer Science+Business Media B.V. 2012

Abstract

The neurosciences not only challenge assumptions about the mind’s place in the natural world but also urge us to reconsider its role in the normative world. Based on mind-brain dualism, the law affords only one-sided protection: it systematically protects bodies and brains, but only fragmentarily minds and mental states. The fundamental question, in what ways people may legitimately change mental states of others, is largely unexplored in legal thinking. With novel technologies to both intervene into minds and detect mental activity, the law should, we suggest, introduce stand alone protection for the inner sphere of persons. We shall address some metaphysical questions concerning physical and mental harm and demonstrate gaps in current doctrines, especially in regard to manipulative interferences with decision-making processes. We then outline some reasons for the law to recognize a human right to mental liberty and propose elements of a novel criminal offense proscribing severe interventions into other minds.

Keywords: Mental self-determination Mental integrity Cognitive liberty,manipulation Emotional harm Mental and bodily injury Dualism Freedom of thought

Introduction

Isn’t it a bit strange that unpleasant but rather trivial actions like cutting another’s hair, inflicting some seconds of minor bodily pain or even firmly touching (without sexual
intent) another person may constitute a criminal offense whereas deliberately causing mental suffering often falls squarely out of the purview of the criminal law? Isn’t it remarkable that working conditions dangerous to bodily integrity are shut down and employers are threatened with criminal charges while millions of office workers suffer from diagnosable work-related stress, burn-out and depression without raising any legal concerns?

And isn’t it awkward that a multi-billion-Euro industry with the sole and explicit
purpose of studying and influencing decision-making proudly and successfully applies its
findings to persons, changing their desires, altering their behavior, inducing them to enter
into contracts whereas lying for the same end could land perpetrators in prison?

Concededly, these are rough juxtapositions. But are there really categorical differences
between the respective harms to persons as suggested by the way they are treated by the law?
We have doubts. Rather, these examples illustrate two types of negative interferences with the mental sphere which are neglected in legal thinking: infliction of mental injury, i.e. pain, disorder, impairment of mental health and mental manipulations, i.e. influences on preferences and choice. The underlying normative distinctions separating these interferences from those against which the law provides protection are, we suspect, not well-defined and rely on implicit yet incoherent mind-brain dualisms that become increasingly untenable, systematically undervalue the mental sphere and obscure what may become a key question in the age of neuroscience: What are the legitimate ways of changing other peoples minds?

While legal systems have developed detailed rules of permissible conduct with bodies, have defined exceptions, counter exceptions, conditions of consent, acceptable risks and compensable harm, legal doctrines over conduct with another’s mind are hard to find and strikingly underdeveloped. Why are we so convinced that, while no one is allowed to do anything to another’s body without consent, they are to virtually mess up another’s mind?

Why is scarring souls so different from scarring the surface of the skin?

The basic, but often tacit distinction between mind and brain can already be found in the fundamental rights structuring legal orders. Every constitution guarantees a right to bodily integrity, but few afford protection to mental integrity.1 The law has problems with non-economic damages in general, and mental harms in particular. Mental states, thoughts, feelings, behavioral dispositions hidden from view in the inner citadel of the individuals consciousness are regarded as intangible, evanescent, too elusive for the law to handle.

The subjective and private character of mental states raises many philosophical questions. Their ontological status alone may provoke endless discussions and their peculiar epistemic situation leads to practical problems. How to prove phenomena not directly accessible from the outside, i.e. from the third-person perspective? Relatedly, policy concerns about opening floodgates of litigation and worries about malingering may speak against legal coverage of mental harms. This coincides with a general characteristic of the law, firmly put forth by Kant (1797/1991): to restrict its regulatory purview to external actions and events.

However, arguing from a practical point of view tends to replace procedural with substantive law. Inflicting harms does not become less blameworthy only because harms are harder to prove. Also, denying claim rights simply because granting them might lead to an increase in lawsuits is anything but compelling reasoning. It rather indicates that sub specieiur is something may be amiss. Moreover, the general question of how we should treat minds may become a pressing political issue at least in the western world. The largest EU-wide study so far reports a staggering number of 165 million (out of 500) EU citizens per year suffering from diagnosable brain disorders, with an estimated direct and indirect cost of more than 600 billion euro.2. To the WHO, mental health is one of the challenges of the
coming decade. Surely, there are many reasons for this high prevalence which fall under the
cognizance of the mind-sciences. Still, mental health problems are usually not ordained by
fate but have causes which are at least partially found in the lifeworld, interpersonal relations and the social structures forming them. Legal and ethical norms are the basic forces through which social structures and interactions are formed. Hence it occurs to us that there could be a remote relation between the uncertain normative foundations of permissible conduct with the mental sphere and the problems it increasingly faces.

This alone may prompt reconsideration of the legal status of the mind. But what especially brings the venerable issue of mental harms back on the table of legal theory is neuroscience, promising to reveal subjective states as grounded in objective facts, i.e. in events observable from the third-person perspective. When mental states lose their empirical intractability, the legal disregard for the mind loses its plausibility. Forerunners of this development have already reached courtrooms. Testimony supplemented by functional or structural neuroimaging of physiological correlates of mental injuries and their consequences is increasingly brought forward, not only with the aim of exculpating criminal defendants, but also in ordinary civil and criminal cases in order to prove that real, tangible and recoverable physical harm has been caused. We shall leave aside questions of what such images really show and whether obtaining and introducing them is or ought to be permissible in legal proceedings.3 For the sake of the present argument we assume that these technologies will in the near future be good enough to render claims of mental injuries plausible, at least in combination with psychological expert testimony.

We are thus interested in the ways in which and the extent to which persons may legitimately change others minds and which interventions should be proscribed by law. Beside infliction of mental distress and harm to mental health, we wish to draw attention to another set of worrisome mind-interventions of which the law at present is almost completely unaware, even though it touches issues at the heart of the legal order: mental manipulations that interfere with what we shall call mental self-determination. In short: we argue that concerns about neuro interventions targeting mental phenomena cannot be adequately captured by legal protection of bodily integrity (II). Therefore, rights protecting the mind need to be introduced. We shall outline the contours and origins of what we take to be a human right a right to mental self-determination and some of the ways it may be interfered with (IIIIV).

Finally, we shall present some suggestions for how the law should frame the issue of protecting the mind (V) and some ideas for, and elements of, a novel criminal offense against mind manipulations (VI).

Mental Integrity and Mind-Brain Dualism

Mental and Bodily Injuries

Let us begin with mental injuries. All legal systems apparently draw distinctions between
bodily and mental injuries, especially in tort and criminal law.4

While persons are protected extensively against physical harm, emotional harm is often treated as a ‘‘second class citizen’’ if recognized at all (Grey 2011:203). Distinguishing between these types of harms tends to lead the law into the dualist problem of separating the mental from the physical. In defining the scope of legal protection, many jurisdictions rely on criteria such as ‘‘physically’’ or ‘‘externally manifested’’ or ‘‘somatically objectifiable’’ as opposed to ‘‘purely mental’’ harms or ‘‘emotional disturbances’’. In the absence of bodily effects (deleterious effects on bodily substance or functioning), mental harms often give rise to neither civil claims nor criminal charges. Sustaining these delineations based on rather crude metaphysics becomes a practical problem. Confronted with brain images of supposedly ‘‘pure mental harms’’, judges can hardly maintain that such harms do not manifest objectively.

Despite more than 2,000 years of philosophical argument and recent breathtaking scientific progress, the mind-brain problem persistently defies an all-around satisfactory solution. The law must, nevertheless, recognize some undeniable facts. By all we know, all mental phenomena are somehow connected with brain activity. In describing this relation more concretely, the law should proceed cautiously and avoid adopting speculative views of any provenance, i.e. not only dualist but also eliminativist or (strong) reductionist accounts. It would be equally amiss, however, to ignore the rapid developments in the latter directions. As, at least in these matters, there is no ‘‘ethics without metaphysics’’, the law needs to take a stance for which it should choose the most innocuous position. Presumably, this is a weak ‘‘supervenience’’ claim along the following lines 5

There can be no changes on the mental level without some change on the physical, i.e. neuronal level. Or, to put it slightly differently: mental states not only correlate with particular brain states, but are also ‘‘caused’’ or (somehow differently) ‘‘realized’’ by physical states (‘‘bottom-up’’ causation).

These interdependencies are very likely true; however, a more precise description already presents problems. There is no consensus on whether the mental and the physical are really different levels, nor is the sense of causation or realization fully understood.6. Yet, this abstract position seems to be the most promising one as long as one bears in mind that it does not solve the mystery but only describes the relation in a way that avoids stronger metaphysical commitments. From the supervenience claim ‘‘no mental states without concomitant brain states’’ it can be inferred that there is no such thing as a pure mental harm.

How precise correlates of mental phenomena can be identified on the neuronal level is merely a contingent empirical question. The law can reasonably expect that what is happening at the moment in respect to some detectable mental harms, e.g. post-traumatic stress disorder, will, as science progresses, expand to many if not all allegedly purely mental harms. It is a meaningless enterprise to uphold abstract distinctions a `la ‘‘pure mental harm’’ and then to reconsider every single case in light of the current state of science.

Instead we propose a more radical approach: The law should discard dualistic differentiations, replace them with the assumption that all mental phenomena supervene on (or at least correlate with) neuronal processes and begin to develop a theory of which mental phenomena ought to be protected on this premise.

Alternatives

The tendency to overcome dualism can already be witnessed in some jurisdictions. For
instance, in the UK the House of Lords held:

The phrase ‘actual bodily harm’ is capable of including psychiatric injury. But, it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not in themselves evidence of some identifiable clinical condition.7

While this appears to be a move in the right direction, it cannot be followed by jurisdictions with stricter demands on concreteness and wording of statutes, at least in criminal law. For in its lexical semantics as well as in its colloquial meaning, the phrase ‘bodily injury’ is not capable of including psychiatric injury. In those jurisdictions, new statutes need to be enacted explicitly prohibiting the infliction of mental injuries.

This raises problems. For one, the law needs to define its own threshold criteria, since mental health classifications are often too wide or too narrow and in a constant flux.  Medical definitions of illness themselves involve normative judgments which may be hidden from the eyes of law-practitioners.8 To pick just one problem: Mental illnesses usually require abnormal states or inappropriate reactions. Falling into grief and depression upon hearing of the death of a relative is not considered an illness. But should the underlying medico-normative assumptions be relevant for the law? Consider a type of case
before German courts in the 1950s. Spouses of German prisoners of war were (intentionally) falsely told that their husbands had passed away. As their grief did not constitute a clinical condition, there was no offence.9  Yet, we think this is at least a prima facie case of illegitimately inflicted mental suffering.

Moreover, why should legal protection of the mind be restricted to mental dysfunctioning or inappropriate responses? In view of the principle that offences require their harmful consequences—here: the inappropriate reaction—to be reasonably foreseeable by the offender, liability would be restricted to a handful of exceptional cases, because in general foreseeable reactions are not inappropriate. That is to say, the law needs to define other thresholds; and, furthermore, it should pay more attention to the specific way a mental harm is brought about. It is not only the result, but also the means that matter in normative evaluations. Consider the classic case: marital infidelity generating severe mental suffering for the partner. Criminal offence?—Quite certainly not. Whether it is or should be can depend neither on the (in)appropriateness, nor on the severity or foreseeability of the spouse’s reaction. Rather, the question is which ways of inflicting mental suffering on others are legally permissible. And therefore, it may well be the case that inducing the ‘‘same pain’’ through a different means, say, a lovesickness-pill, triggering identical neuronal activity and evoking the identical phenomenal experience of suffering, should be impermissible.

These exemplary cases demonstrate that harm to mind is in many ways different from harm to body. Bodies have clearly defined boundaries in space, interferences with and infringements upon which can be outlawed without restricting other people’s reasonably defined liberties, whereas mental sufferings often arise in response to social interactions. A general norm stipulating that ‘‘infliction of severe mental injuries shall be punished’’ would potentially interfere with a host of mundane actions of others, exemplifying, as it were, social normality. The law cannot have one-sided regard for the effects on the minds of victims only (even if restricted by criteria such as appropriateness) but has to consider the impacts of prohibitions on all parties involved, on their legally guaranteed liberties, and thus on social life as a whole. It has to distribute risks and burdens of basic liberties of action according to certain principles, and hence separate the mental harms people ordinarily suffer in the normal course of life from those which are neither necessary nor unavoidable (or only avoidable at too large a cost) to legally safeguard equal basic liberties for all. This speaks against an analogical inference from physical to psychological injuries.

Mental Injury is Not Identical to Bodily Injury

Apart from this, there is a more fundamental objection against the inclusion of ‘‘emotional harms under the rubric of bodily injury’’ as sometimes suggested (Grey 2011:204). Strictly speaking—as criminal law is obliged to—mental injuries are not necessarily identical to bodily injuries. The current trend in psychiatry to relabel all mental disorders as brain disorders or to uncritically use these terms interchangeably stands on porous grounds as it runs the risk of confusing levels of explanation. From the fact that strong mind-brain dualism has not much to recommend it, it does not follow that all properties and faculties of the mind can simply be attributed to the body. It is not the brain that ‘‘decides’’, ‘‘suffers’’ or is ‘‘harmed’’; rather, these are mental processes or properties of persons, not qualities of physical objects.10. In other words: Just because two entities stand in a specific relation to one another, properties of one do not automatically become properties of the other. Such an inference is valid only if the relation is of a particular kind (e.g. reductionism). But the law, we urge, should avoid such metaphysical commitments wherever possible. At least for normative purposes involving concepts such as ‘‘harm’’ or ‘‘dysfunction’’ both the mental and the physical level merit attention on their own. Mental dysfunctions arise in respect to psychological (higher-level) functions and to societal norms, not to electro-chemical brain processes. They refer per definitionem to mental or behavioral phenomena, not easily redescribable in terms of physiology, neuroscience or basic physics.

Speaking of depression, for instance, is speaking about specific mental symptoms. Whether a person suffers from depression solely depends on her exhibiting these symptoms. Even if we knew (what we currently don’t) that every instance of depression strongly correlates with chemical ‘‘imbalances’’ in neurotransmitter levels (say Serotonin), a difference between mental and brain dysfunction would remain. On the neuronal level, all there is are events unfolding in accordance with laws of nature. And by themselves, such events cannot be dysfunctional. ‘‘Dysfunctional’’ is a judgment in light of a normative standard, and in the case of depression it is defined on the mental level (Miller 2010).

In regard to legal judgments, the exclusive view from the neuronal side tends to obscure
relevant distinctions. Some neuroscientific findings suggest that ‘‘social pain’’ arising from
problems such as exclusion from groups may be generated by the same neuronal processes
as ‘‘physical pain’’. In terms of brain activation patterns, a broken heart might resemble a
broken arm (Eisenberger and Liebermann 2009). Suppose this is true; should both there-
fore be treated as normatively similar? Again, we think not. For the law, the only relevant
question is whether protection should be afforded against mental suffering due to group
exclusion. The answer does not depend on any neuroscientific fact.

If mental effects were to be evaluated by their neuronal correlates, every libel, every
threat, even yelling at someone else might constitute an interference with bodily integrity
as it may significantly change neuronal states. It would be absurd to charge someone with
having interfered with another person’s neuronal states as such. In many instances of
mental harm, their neuronal counterparts might in no comprehensible sense be more grave
or extended in scope and quantity than the neural correlates of intense joyful experiences
(such as falling in love). What makes the corresponding physical alterations of the brain
important to the person (and the law) is exclusively the mental side, the experience, not its realization, and for that reason alone this strongly calls for a legal prohibition or remedy.

Thus we urge that harm to mind should not be treated as tantamount to harm to brain;
blending both into one category would de-differentiate an age-long development of electro-chemical brain processes. They refer per definitionem to mental or behavioral
phenomena, not easily redescribable in terms of physiology, neuroscience or basic physics.
Speaking of depression, for instance, is speaking about specific mental symptoms. Whether
a person suffers from depression solely depends on her exhibiting these symptoms. Even if
we knew (what we currently don’t) that every instance of depression strongly correlates
with chemical ‘‘imbalances’’ in neurotransmitter levels (say Serotonin), a difference
between mental and brain dysfunction would remain. On the neuronal level, all there is are
events unfolding in accordance with laws of nature. And by themselves, such events cannot
be dysfunctional. ‘‘Dysfunctional’’ is a judgment in light of a normative standard, and in
the case of depression it is defined on the mental level (Miller 2010).

In regard to legal judgments, the exclusive view from the neuronal side tends to obscure
relevant distinctions. Some neuroscientific findings suggest that ‘‘social pain’’ arising from
problems such as exclusion from groups may be generated by the same neuronal processes
as ‘‘physical pain’’. In terms of brain activation patterns, a broken heart might resemble a
broken arm (Eisenberger and Liebermann 2009). Suppose this is true; should both there-
fore be treated as normatively similar? Again, we think not. For the law, the only relevant
question is whether protection should be afforded against mental suffering due to group
exclusion. The answer does not depend on any neuroscientific fact.

If mental effects were to be evaluated by their neuronal correlates, every libel, every
threat, even yelling at someone else might constitute an interference with bodily integrity
as it may significantly change neuronal states. It would be absurd to charge someone with
having interfered with another person’s neuronal states as such. In many instances of
mental harm, their neuronal counterparts might in no comprehensible sense be more grave
or extended in scope and quantity than the neural correlates of intense joyful experiences
(such as falling in love). What makes the corresponding physical alterations of the brain
important to the person (and the law) is exclusively the mental side, the experience, not its realization, and for that reason alone this strongly calls for a legal prohibition or remedy.

Thus we urge that harm to mind should not be treated as tantamount to harm to brain;
blending both into one category would de-differentiate an age-long development of
modern criminal law and, in a way, assimilate it to the ancient Roman conception of
iniuria, a summary notion for any and all offences against a person. We do not consider
that desirable. Instead, the law should define the kinds of mental phenomena worthy of
protection by their mental properties11 and introduce stand alone provisions penalizing
interferences with mental integrity rather than expanding the protection of bodily integrity
to mental integrity. As a consequence, the brain is afforded dual (and sometimes over-
lapping) legal protection: Bodily integrity covers physical interventions, e.g. brain lesions or deleterious effects on brain substance, regardless of their mental consequences. And conversely, mental integrity protects against interventions in virtue of their mental effects.

As for mind-brain metaphysics, this approach rejects any form of substance dualism but
retains a normative–epistemic form which renders it metaphysically safe.12

Having clarified the normative discretness of the mental, we shall turn to the scope of its protect

Besides protection against harms to mental health, it should encompass another dimension
to which we turn in the following: freedom from mental manipulations.

Mental Manipulation Cases

Perhaps even more worrisome than the infliction of pain and suffering are manipulative
interventions altering preferences, will-formation and decisionmaking. This area seems
largely beyond the focus of scholarly attention. Let us begin by presenting some illustrative
scenarios:

Eliciting Emotions

On advice from their food chemist, a restaurant chain struggling with decreasing sales of
its fatty burgers serves a complimentary welcome drink. What customers are not told is
that a low dose of Ghrelin, not hazardous to bodily or mental health, is added. Without any
noteworthy side effects, Ghrelin increases appetite and hence the restaurant’s turnover as
customers order more.13

Manipulating Preferences and Decisionmaking

An online store shows Flash movies to customers which subliminally prime brand C and
cause customers to evaluate C more positively. While stimuli are not powerful enough to
create completely new desires, they tip the scales of inclined consumers towards C’s
product. While overall sales remain constant, C’s products are increasingly bought.14
Hired to investigate corrupt practices in a firm, a private detective orders suspected
employees to testify. To increase the likelihood of them telling the truth, a psychiatrist
stimulates some areas of their brain via harmless transcranial magnetic stimulation
(TMS). Altering the brain networks necessary for deceit makes lying increasingly harder
and therefore easier to detect.15

Non-Consented Neuroenhancement

A financial broker specialized in speed-trading makes profits from short-spanned
volatility in stock prices. His employees have to be constantly alert. Therefore, he
secretly spikes drinks with a psychostimulant increasing vigilance, awareness and
motivation.1613

For Ghrelin in appetite regulation Wren et al. (2001). This example is not completely fictitious; some
food companies are accused by food experts of adding appetite stimulating substances to their products.14 Studies demonstrate measurable behavioral outcomes of subliminal priming. Rather than ignoring it as a myth, subliminal persuasion should be investigated (Dijksterhuis et al. 2005). See Weinberger and Westen’s (2008) studie on subliminal Flash movies transmitted via the Internet.15

Whether this is possible is currently studied (Luber et al. 2009). Relatedly, Klaming and Vedder (2010)
argue in favor of using eyewitness enhancing technology in police interrogations.16
Unwanted neuroenhancements may happen quite frequently, from parents enhancing children to sport
coaches and athletes. Currently, scientific data is inconclusive about the effectiveness of psychostimulants like Ritalin or Modafinil for enhancement purposes (Repantis et al. 2010a, b).

Patient P suffers from severe depression. As he does not respond to pharmaceutical
treatment, a deep brain stimulator is implanted. Neuroscientists can remotely control the
device but P is not aware of the induced changes in his brain’s electric-currents since
brain tissue is insensitive. For scientific purposes and in hope of a ‘‘Nature’’ paper, the
scientists, without consent, frequently change brain activity and monitor P’s reactions. P
consequently experiences sudden mood swings which he attributes to other situational
factors.17

Memory Manipulations

Through suggestive and leading questioning police officers distort witness W’s memory.
W comes to believe the version of the story intentionally implanted in him by the
psychologically skilled officers and testifies accordingly.

V is sexually assaulted. Before letting her go, the offender administers her a substance
thwarting the consolidation of her memory on the molecular level and leaving her with
only a faint and dim recollection of the event. Noticing witness W, the offender gives
him the firm advice not to testify, along with a dose of propanolol blunting the emotional
side of memory so that he cannot remember finer details of the event. Or: W testifies
truthfully, but due to his detached emotional response, judges do not consider him
trustworthy and dismiss his testimony.18

Weakness of Will

Warehouse chain X notices that customers are more susceptible to impulsive purchases
after having encountered and resisted various temptations. To facilitate this, they
restructure the course of their stores and build in many tempting challenges only to deplete
customers’ powers of resistance until they are awaited by many more tempting offers in
queues before checkout counters.

X produces the same result by offering snacks lowering the glucose level in the brain
and thereby diminishing powers of self-control.19

Cognitive—Emotional Phenomena

In the final rounds of a poker competition, P secretly sprays odorless Oxytocin around the
table. Oxytocin manipulates players’ intuitive evaluation of the situation and raises their
trust in others not bluffing. P wins.20

We could easily carry this further. Some of these stories certainly raise questions about
their empirical presumptions, but although empirical matters are admittedly more com-
plicated, none is pure science fiction. And while some, like remote-controlled deep brain
stimulators only apply to extraordinary situations, these cases exemplify prototypes:17
Kohno et al. (2009) warn about security problems of DBS.18  Substances for memory dampening are clinically studied. For its prospects and legal problems see Kolber’s instructive work (2006/2008).
19
See Baurmeister’s et al. (2007) intricate research on willpower, ego depletion and the role of glucouse.20 For the effects of Oxytocin on risk taking see Fehr et al. (2005, 2008).

The more insights neuroscience and psychology provide about decisionmaking and
behavior, the more manipulative interferences become conceivable (Merkel 2007).
In all of these cases, interventions impair mental capacities or alter preferences and will-
formation, but none of them is adequately captured by provisions protecting bodily
integrity or mental health. Does an induced increase in neurotransmitters such as Oxytocin
harm the body? Unless accompanied by other health problems, probably not. To reiterate
our earlier point: although all of these interventions cause changes on the neuronal level, as
such they are insufficient to be considered harms to the body. They are potentially ille-
gitimate only in virtue of their mental effects. None of the affected persons is mentally ill
or experiences pain and discomfort—they have only been manipulated.

Concededly, in some cases the law as it stands might already provide some answers.
Specific substances (e.g. Oxytocin) might be classified and their use and trafficking out-
lawed. In others, tort liability might come into play. However, many legal systems prob-
ably would have to creatively interpret existing statutes in order to adequately handle such
cases. And even then, we suspect, doctrinal troubles could be created by crafting cases
slightly differently. Most of these interventions do not constitute a criminal offence, at least
not one designed to protect mental integrity, but at best violate minor prohibitions such as
the unlicensed use of drugs which lie beyond the core normative problem—i.e. illegitmate
interferences with another’s mental integrity.

Not all of them may appear severe enough to call for criminal prosecution. This cer-
tainly stands to be argued; but in order to do so, we need some principles. Thus, these cases
illustrate gaps in the legal protection of persons and a prima facie plausible claim for legal
protection of the mind, irrespective of bodily injury and beyond deception and fraud. These
interventions are only evaluable by taking the mind seriously, and this requires a coherent
theory of its protection.

Normative Foundation: A Human Right to Mental Self-Determination

Let us place the issue in a broader human-rights and legal theoretical context. The source
of the problem is that the law is astonishingly silent about the Rechtsgut, the interest in
need of legal protection, with which these interventions interfere, although it should count
among the prime objects of the law’s protective concern: the preconditions of the possi-
bility of (mental) self-determination. We claim that a human right to mental self-deter-
mination does exist or is, as a tacit assumption, woven into the law’s structure.
The scope of the right is twofold: In its negative dimension, it protects freedom from
severe interferences by the state and third parties, setting up a defensive wall against
unwanted intrusions through both factual interventions and normative obligations (e.g.
legal provisions regulating what is on or in one’s mind). It also grants what one may call
positive entitlements, freedom to self-determine one’s inner realm, e.g. the content of one’s
thoughts, consciousness or any other mental phenomena. Therefore it affects e.g. current
debates about neuroenhancements.21

But here, we shall leave the positive dimension aside and inquire into the freedom from factual interventions. The problem is that such a right is unfortunately neither expressly acknowledged by
Constitutions or Human Rights Treaties nor given much attention by legal scholars.21
In the current debates about enhancing mental capacities with the help of neurotools, human-rights and constitutional law issues are largely neglected. Thus, many ethicists’ policy recommendations are somewhat premature. Without a clearer understanding of the fundamental rights involved, the legal regulation of neuroenhancements is not advisable (Bublitz 2011b).

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1 The European Union has very recently introduced a right to respect for mental integrity in Art. 3 of the Charter of Fundamental Rights. Also, the European Court of Human Rights includes mental integrity under the scope of Art. 8 (privacy), however, it has not played an important role (yet).2 It should be noted that the study includes neurological disorders such as Parkinsons. Still, numbers are incredibly high (Gustavsson et al. 2011).