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The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma


Karen H. Rothenberg


University of Maryland Francis King Carey School of Law

Alice Wang


Public Defender Service for the District of Columbia - Appellate Division


Law and Contemporary Problems, Vol. 69, No. 1/2, pp. 343-365, Winter/Spring 2006
University of Maryland Legal Studies Research Paper No. 2007-1

Abstract:     
Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your twenty-one-year-old son may be susceptible to the condition as well. Do you agree to participate in the study?

Now imagine that, with your participation, the study concludes that Tracy Islanders with the particular gene variant have a ten percent chance of becoming alcoholics, whereas Tracy Islanders without the gene variant have only a five percent chance. Although the scientists are careful to note that the gene variant exists in the general population and is not the cause of alcoholism, the sound-bite reported by the media is that Tracy Islanders are hardwired to become alcoholics.

That same day, your son gets drunk at a bar and pushes an off-duty police officer through a window, killing him. Your son is charged with murder, and his lawyer wants to use his genetic predisposition toward alcoholism as a defense. Some members of your family and community are concerned that this approach will only further stigmatize Tracy Islanders as alcoholics. How do you advise your son and his lawyer?

These scenarios were presented to a panel of scientists, legal experts, journalists, and community leaders in a recent PBS television program entitled Genes on Trial: Genetics, Behavior, and the Law. This article uses the television program as a framework for exploring the implications of behavioral genetics research for the individual, family, community, and society. In particular, it focuses on the unique potential for behavioral genetics research, when placed in the context of criminal law, to stigmatize racial and ethnic minority groups through the blame-shifting mechanisms of genetic reductionism and genetic determinism. Like the scarlet A in Nathaniel Hawthorne's famous novel, DNA associated with criminal or antisocial behavior might become a scarlet gene that marks the individual, his family, and his racial or ethnic community as flawed, compromised, and somehow less than fully human.

This article proceeds in six parts. The remainder of Part I summarizes the Genes on Trial program and introduces the issues raised by it. Part II explains why behavioral genetics research tends to focus on discrete and insular populations that overlap with socially constructed racial or ethnic groups. Part III locates behavioral genetics research on a spectrum spanning from single-gene disorders to complex behavioral traits, positing that the behavioral end of the spectrum carries the most potential for stigma. Part IV explores how the blame-shifting mechanisms of genetic reductionism and genetic determinism affect the individual, family, community, and society when genetics research focuses on criminal or antisocial behavior. Part V analyzes how racial and ethnic stigma arise from behavioral genetics research and perpetuate inequality. Part VI concludes by considering the ethical dilemmas that geneticists face when choosing who and what to study.

Number of Pages in PDF File: 24

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Date posted: January 5, 2007  

Suggested Citation

Rothenberg, Karen H. and Wang, Alice, The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma. Law and Contemporary Problems, Vol. 69, No. 1/2, pp. 343-365, Winter/Spring 2006; University of Maryland Legal Studies Research Paper No. 2007-1. Available at SSRN: http://ssrn.com/abstract=955254

Contact Information

Karen H. Rothenberg (Contact Author)
University of Maryland Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
Alice Wang
Public Defender Service for the District of Columbia - Appellate Division
No Address Available
Feedback to SSRN


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