The Problem of the Subject: The Politics of Post-mortem Rights in the Aftermath of Drug-related Deaths

Abstract

In recent years, drug-related deaths have soared around the world. Some of these are overdose deaths, some are due to state violence as part of the ‘war on drugs’. Images of these deaths are often widely circulated in mainstream and social media. They are mobilised by anti-drug campaigners, anti-prohibitionists, family members seeking to memorialise their loved ones, and researchers. In all of these instances, of course, there is no question about whether the dead can consent to the sharing of such images, for they are no longer alive to do so. Where consent is not possible, how should the sharing of such images be approached? This article explores this issue. We focus on two concepts often mobilised when assessing the validity of post-mortem rights claims: shame, and what we call dignity-as-reputation. Through an analysis of two case studies of drug-related death, we explain why these concepts are an inadequate framework for assessing what is at stake within the specific and unique context of drug-related deaths. We argue that posthumanist legal theory and feminist scholarship on emotions provide an alternative foundation for legal approaches to images of death, and argue that post-mortem rights should be reworked.

Acknowledgement

The authors wish to thank the editors of the special issue and the anonymous reviewers for their feedback.

The authors wish to thank Janice Richardson, Caroline Henckels and Sacha Molitorisz for their advice, encouragement and interest and for directing us to relevant literature. We also thank organisers and attendees at the ‘Positioning the Politics of Consent in Law and History’ symposium, held at the University of Technology in Sydney from 7–8 November 2019, for the invitation to present an early draft of this work and for their invaluable suggestions.

Notes

1 For a general overview of some of these issues and the forces that have shaped current debates about post-mortem rights, see: L. Edwards and E. Harbinja, ‘Protecting post-mortem privacy: Reconsidering the privacy interests of the deceased in a digital world’ (2013) 32(1) Cardozo Arts and Entertainment Law Journal 85.

2 M. Trabsky, Law and the dead: Technology, relations and institutions (Routledge 2019).

3 R. Brown and A. Morgan, The opioid epidemic in North America: Implications for Australia, Trends & Issues in crime and criminal justice (Australian Institute of Criminology 2019).

4 Special Advisory Committee on the Epidemic of Opioid Overdoses, National report: Apparent opioid-related deaths in Canada (January 2016 to March 2019) (Public Health Agency of Canada 2019).

5 Brown and Morgan above note 3.

6 Australian Institute of Health and Welfare, Alcohol, tobacco & other drugs in Australia (Australian Institute of Health and Welfare).

7 Office for National Statistics, Deaths relared to drug poisoning in Engladn and Wales: 2018 registrations (Office for National Statistics). Available at: https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/deathsrelatedtodrugpoisoninginenglandandwales/2018registrations (accessed on 19th August 2020).

8 Amnesty International, ‘They just kill’: Ongoing extrajudicial executions and other violations in the Philippines’ ‘War on Drugs’ (Amnesty International 2019).

9 D.T. Johnson, and J. Fernquest, ‘Governing through killing: The war on drugs in the Philippines’ (2018) Asian Journal of Law and Society 359.

10 M. Wells, ‘Philippines: Duterte’s ‘war on drugs’ is a war on the poor’, Amnesty International, 4 February 2019. <https://www.amnesty.org/en/latest/news/2017/02/war-on-drugs-war-on-poor/> (accessed 19 May 2020).

11 K. Seear, Law, drugs and the making of addiction: Just Habits (Routledge 2020).

12 United Nations Chief Executives Board for Coordination (2019). Summary of deliberations. United Nations: New York.

13 See, for example: World Health Organization, UNAIDS, UNDP and the International Centre on Human Rights and Drug Policy (2019). International Guidelines on Human Rights and Drug Policy. United Nations: Geneva.

14 See, for example: K. Seear, K. Lancaster and A. Ritter, ‘A new framework for evaluating the potential for drug law to produce stigma: Insights from an Australian study’ (2017) 45(4) Journal of Law, Medicine and Ethics 596; Department of Health, National Drug Strategy 2017–2026 (Commonwealth of Australia 2017).

15 See, for example: K. Lancaster, K. Seear and A. Ritter, Reducing stigma and discrimination for people experiencing problematic alcohol and other drug use. Drug Policy Modelling Program Monograph Series, 26 (National Drug and Alcohol Research Centre 2018); C. Lloyd, Sinning and sinned against: the stigmatisation of problem drug users (UK Drug Policy Commission 2010).

16 S. Fraser, A. Farrugia, and R. Dwyer, ‘Grievable lives? Death by opioid overdose in Australian newspaper coverage’ (2018) 59 International Journal of Drug Policy 29.

17 S.Blackman, ‘Chilling out’: The cultural politis of substance consumption, youth and drug policy (Open University Press 2004); K. Tupper, ‘Drugs, discourses and education: a critical discourse analysis of a high school drug education text’ (2008) 29(2) Discourse: Studies in the cultural politics of education 223; T. Linneman and T. Wall, ‘This is your face on meth: The punitive spectacle of white trash in the rural war on drugs’ (2013) 17 Theoretical Criminology 315; A. Farrugia, ‘Assembling the dominant accounts of youth drug use in Australian harm reduction drug education’ (2014) 25 International Journal of Drug Policy 663; A. Farrugia, ‘Gender, reputation and regret: The ontological politics of Australian drug education’ (2017) 29 Gender and Education 281.

18 Linneman and Wall above note 17; For more on the images of drug use and drug death, see, for example: P. Guy, ‘Bereavement Through Drug Use: Messages From Research’ (2004) 16(1) Practice: Social work in action 43; G. Cape, ‘Addiction, stigma and movie’ (2003) 107(3) Acta Psychiatrica Scandinavica 163; S. Boyd, ‘Media Constructions of Illegal Drugs, Users, and Sellers: A Closer Look at Traffic’ (2002) 13 International Journal of Drug Policy 397; R. Coomber, C. Morris, and L. Dunn, ‘How the Media Do Drugs: Quality Control and the Reporting of Drug Issues in the UK Print Media’ (2000) 11(3) International Journal of Drug Policy 217.

19 There are also notable exceptions to this, as in cases where drug use or drug death is dealt with more ‘sympathetically’. Often, however, these more ‘sympathetic’ responses to drug use and death rely on the availability of particular explanatory frameworks, such as occasions of past trauma, neglect or abuse. The selective nature of these occasionally less stigmatising approaches to drug use and death has been the subject of critique, on the basis that they foreclose other ways of thinking about drug use and/or have the effect of constituting drug consumers (and fatalities) as either ‘deserving’ or ‘undeserving’. See, for example: K. Seear and S. Fraser, ‘Beyond criminal law: The multiple constitution of addiction in Australian legislation’ (2014) 22(5) Addiction Research & Theory 438.

20 Fraser, Farrugia and Dwyer above note 16.

21 J. Butler, Precarious life: The powers of mourning and violence (Verso 2006).

22 Fraser, Farrugia and Dwyer above note 16 at 34.

23 As above.

24 There are some parallels, in this respect, with the lives of other historically devalued subjects, such as victims of domestic violence. Rebecca Scott Bray notes that dead women are one of the main ‘figures and fantasies that have become locked in law’s imagination’, although the kind of value judgments that adhere to women and people who use drugs differ in some key respects. See: R. Scott Bray, ‘Uneasy evidence: The medico-legal portraits of Teresa Margolles and Libia Posada’ (2013) 22(1) Griffith Law Review 28 at 34. See also: R. Scott Bray, ‘Teresa Margolles’s Crime Scene Aesthetics’ (2011) 110(4) The South Atlantic Quarterly 933.

25 R. Lines, Drug Control and Human Rights in International Law (Cambridge University Press 2017).

26 We have chosen not to reproduce the images here for reasons that will become clearer as our analysis progresses.

27 N. Vitellone, Social science of the syringe: A sociology of injecting drug use (Routledge 2017) 94.

28 M. Riddell, ‘Every mother’s worst nightmare’ The Guardian (online) 3 March 2002 https://www.theguardian.com/observer/focus/story/0,6903,660951,00.html (accessed 1 November 2019).

29 C. Chynoweth, ‘Why images of Rachel’s death may not shock youth away from heroin’, <https://www.cyc-net.org/profession/readarounds/ra-chynoweth.html> (accessed 1 November 2019).

30 ‘Heroin photo used in BNP leaflet’, BBC News (Online) 10 March 2008 http://news.bbc.co.uk/2/hi/uk_news/england/hereford/worcs/7287139.stm (accessed 31 October 2019).

31 As above.

32 <http://lancasteruaf.blogspot.com/2008/08/bnps-fraudulent-preston-pals-lie.html> (accessed 31 October 2019).

33 <https://www.raffylerma.com/about> (accessed 31 October 2019).

34 The Pietà is an image commonly used in Christian art, which shows Mary holding the dead body of Jesus Christ.

35 J. Gutierrez, ‘Body count rises as Philippine president wages war on drugs’, New York Times, August 2. <https://www.nytimes.com/2016/08/03/world/asia/philippines-duterte-drug-killing.html> (accessed 31 October 2019).

36 A. Katz, ‘This photo has given the war on drugs in the Philippines a human face’, Time Magazine, 3 August 2016 <https://time.com/4436655/rodrigo-duterte-philippines-drug-newspaper/> (accessed 31 October 2019).

37 As above.

38 J. Gutierrez, ‘Body count rises as Philippine president wages war on drugs’, New York Times, August 2. <https://www.nytimes.com/2016/08/03/world/asia/philippines-duterte-drug-killing.html> (accessed 31 October 2019). We note that in some accounts this is translated differently, as ‘Well that’s very dramatic’. See for example: <https://edition.cnn.com/interactive/2017/03/world/city-of-the-dead/> (accessed 14 August 2020).

39 E. Harbinja, ‘Does the EU data protection regime protect postmortem privacy and what could be the potential alternatives?’ (2013) 10(1) Scripted 19.

40 This is the tradition from which we write, and which is most relevant to Rachel’s death. We acknowledge, of course, that it is less relevant to the Philippines context. We acknowledge that we write explicitly from a Western legal tradition and standpoint and that there is a need for comparative analyses of how these images might be both viewed from and governed by, different legal systems.

41 J.C. Buitelaar, ‘Post-mortem privacy and informational self-determination’ (2014) 19(2) Ethics and Informational Technology 129.

42 As above at 132.

43 After: J. Feinberg, The Moral limits of the criminal law volume 1: Harm to others (Oxford Scholarship Online 1987).

44 Buitelaar above note 41 at 132.

45 S. Winter, ‘Against posthumous rights’ (2010) 27(2) Journal of applied philosophy 186 at 189.

46 As above at 187.

47 I. Kant, The metaphysics of morals. Translated and edited by Mary Gregoe, with an introduction by Lara Denis (Cambridge University Press 2017) 82.

48 As with legal approaches to ‘honour’ killings’ and cases where the partial defence of provocation has been used by men who have killed women. See, for example: C. Romany, ‘Women as aliens: A feminist critique of the public/private distinction in international human rights law’ (1992) 6 Harvard Human Rights Journal 87; D. Tyson, Sex, culpability and the defence of provocation (Routledge, 2012).

49 Although compare Winter, above note 45 at 192, who notes, simply, that although my reputation may matter to me now, ‘nothing matters to dead people’.

50 J. Feinberg, ‘Harm and self-interest’ in P. M. S. Hacker & J. Raz (eds) Law, Morality, and Society: Essays in Honour of H. L. A. Hart (Clarendon Press 1977) 285; see also Feinberg above note 43.

51 R. Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate (Princeton University Press 2006) 79.

52 J.C. Buitelaar, ‘Post-mortem privacy and informational self-determination’ (2014) 19(2) Ethics and Informational Technology 129.

53 Basic Law of Germany (1949) Article 1: ‘Human Dignity is inviolable. To respect and protect is the duty of all state authority’; For other examples, see: C. Henckels, R. Sifris and T. Penovic, ‘Dignity as a constitutional value? Abortion, political communication and commensurating dignity claims’, work in progress.

54 We are indebted to Caroline Henckels for her assistance on these points.

55 For an overview, see: K. Biber, ‘Dignity in the digital age: Broadcasting the Oscar Pistorius trial’ (2019) 15(3) Crime Media Culture 401.

56 A. Addis, ‘Human dignity in comparative constitutional context: In search of an overlapping consensus’ (2015) 2(1) Journal of International and Comparative Law 1.

57 For a discussion, see: C. Henckels, R. Sifris and T. Penovic, ‘Dignity as a constitutional value? Abortion, political communication and commensurating dignity claims’, work in progress; C. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655.

58 K. Biber above note 55.

59 Addis above note 56.

60 Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] Feb. 24, 1971, 30, 173, translated in J. A. Weir, Institute for Transnational Law, Foreign Law Translations, University of Texas at Austin School of Law, <http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=1478>, 6 (accessed on 11 August 2020).

61 Winter above note 45 at 186.

62 As above at 193.

63 E. Partridge, ‘Posthumous interests and posthumous respect’ (1981) 91(2) Ethics 243 at 248.

64 P. Roth, ‘Privacy Proceedings and the Dead’ (2004) 11(2) Privacy Law and Policy Reporter 31 at 50.

65 See also: S. Taylor, ‘Outside the outsiders: Media representations of drug use’ (2008) 55(4) Probation Journal: The journal of community and criminal justice 369.

66 For a helpful discussion on authenticity and the crime scene photograph, see: K. Biber, P. Doyle & K. Rossmanith, ‘Perving at crime schenes: Authenticit, ethics, aesthetics: A conversation’ (2013) 22(3) Griffith Law Review 804.

67 K. Seear, R. Gray, S. Fraser, C. Treloar, J. Bryant and L. Brener, ‘Rethinking safety and fidelity: The role of love and intimacy in hepatitis C transmission and prevention’ (2012) 21(3) Health Sociology Review 272; S. Fraser and k. valentine, Substance and Substitution: Methadone Subjects in Liberal Societies (Palgrave 2008); L. Maher, Sexed work: Gender, race and resistance in a Brooklyn drug market (Oxford University Press 1997).

68 As above.

69 We draw this concept from: R.K. Sherwin, Visualizing law in the age of the digital baroque: Arabesques and entanglements (Routledge 2011) 2.

70 For more, see: N. Vitellone, Social science of the syringe: A sociology of injecting drug use (Routledge 2017).

71 Biber, Doyle & Rossmanith above note 66.

72 For more on the gender of drugs, including within licit contexts, see: E. Johnson (ed.) Gendering drugs: Feminist studies of pharmaceuticals (Palgrave 2017).

73 J. Richardson, ‘Spinoza, feminism and privacy: Exploring an immanent ethics of privacy’ (2014) 22(3) Feminist Legal Studies 225 at 230.

74 As above.

75 B. Spinoza, The collected works of Spinoza, Volume I. Translated by Edwin M. Curley (Princeton University Press 1985).

76 See, for example: M. Gatens and G. Lloyd, Collective imaginings: Spinoza, past and present (Routledge 1999); G. Deleuze, Spinoza: Practical philosophy. Translated by Robert Hurley (City Lights Books 1988); G. Lloyd, The man of reason: Male and female in Western philosophy (Metheun 1984).

77 R. Braidotti, The posthuman (Polity Press 2013) 56.

78 As above.

79 Richardson above note 73 at 230.

80 As above at 237.

81 Deleuze above note 76 at 27.

82 Richardson above note 73 at 235; original emphasis.

83 As above at 238.

84 It is beyond the scope of this paper to examine other approaches to privacy law in depth but we note that other scholars have also experimented with different conceptualisations of privacy rights, influenced in part by new technologies and digitalisation. These scholars see privacy as, variously, networked, relational or as belonging to groups. For more, see, for example: S. Molitorisz, Net privacy: How we can be free in an age of surveillance (NewSouth Publishing 2020); A. Marwick, and d. boyd, ‘Networked privacy: How teenagers negotiate context in social media’ (2014) 16(7) New media and society 1051; L. Taylor, L. Floridi, and B. van der Sloot, Group privacy: New challenges of data technologies (Springer International Publishing: Switzerland 2017); L. Taylor, L. Floridi, and B. van der Sloot, Group privacy: New challenges of data technologies (Springer International Publishing: Switzerland 2017).

85 S. Ahmed, The cultural politics of emotion (Routledge 2015, 2nd edn) 4.

86 B. Spinoza, Spinoza’s ethics: And on the correction of the understanding. Translated by A. Boyle. (Everyman’s Library 1959) 85.

87 Ahmed above note 85 at 9; original emphasis.

88 Ahmed above note 85 at 10.

89 As above at 15.

90 Feinberg above note 43.

91 Richardson above note 73 at 236.

92 See also: R. Braidotti, Posthuman knowledge (Polity Press 2019).

93 Winter above note 45.