When Human Experimentation is Criminal
45 Pages Posted: 8 Sep 2009
Date Written: September 8, 2009
Medical researchers engaged in human experimentation commit criminal acts seemingly without consequence. Whereas other actors who violate bodily integrity and autonomy are routinely penalized with convictions for assault, fraud, and homicide, researchers escape criminal punishment. This Article begins to scrutinize this undercriminalization phenomenon and provides a framework for understanding why researchers are not prosecuted for their crimes. It argues that their exalted social status, combined with the perceived social benefit of their research, immunizes them from use of the criminal sanction. Whether these constitute sufficient grounds to give researchers a pass from punishment is a significant question because the state's failure to act creates expressive harms. It displays attitudes towards victims and perpetrators that negatively affect the values of autonomy and dignity in medical research Moreover, alternative sanctions not only lack the same expressive impact, but may also inadequately police criminal harm. This Article concludes that this implicit immunity is harmful to society and inconsistent with criminal law policy.
Keywords: Criminal law, retribution, clinical trials, human subject research, punishment, civil liability, moral education
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