Ethical, Legal, Social, and Policy Implications of Behavioral Genetics

Abstract

The field of behavioral genetics has engendered a host of moral and social concerns virtually since its inception. The policy implications of a genetic basis for behaviors are widespread and extend beyond the clinic to the socially important realms of education, criminal justice, childbearing, and child rearing. The development of new techniques and analytic approaches, including whole-genome sequencing, noninvasive prenatal genetic testing, and optogenetics, has clearly changed the study of behavioral genetics. However, the social context of biomedical research has also changed profoundly over the past few decades, and in ways that are especially relevant to behavioral genetics. The ever-widening scope of behavioral genetics raises ethical, legal, social, and policy issues in the potential new applications to criminal justice, education, the military, and reproduction. These issues are especially critical to address because of their potentially disproportionate effects on vulnerable populations such as children, the unborn, and the incarcerated.

Judges’ views on evidence of genetic contributions to mental disorders in court

“…As behavioral genetics is not most judges’ area of expertise and since judges reported putting such a significant amount of trust in experts on this evidence, it is possible that some judges could be overly trusting of genetic evidence, either mistakenly allowing in unqualified testimony because they do not know the scientific validity of the evidence or potentially taking evidence from qualified experts at face value or overestimating its importance. This may suggest, consistent with previously voiced concerns, that some judges could potentially misuse genetic evidence in their decision-making (Berryessa & Cho, 2013; Dreyfuss & Nelkin, 1992; Rothstein, 1999). …”

“…Although one would hope that judges would bring in trained experts if they feel they do not have the proper background to make decisions based upon genetic evidence, Denno (2011) writes that some judges feel that they do not require expert testimony on behavioral genetics evidence and that an expert is not necessary to testify about behavioral genetic factors because the judge or the jury should be readily capable of understanding that an offender’s predisposition to a mental disorder is due to familial inheritance or other genetic factors without expert help. Even if judges do bring in expert testimony on these issues, there has also been concern that judges may be overly trusting of experts, whether they are credible or not, in both evidentiary hearings and court proceedings; many fear that some judges may take genetic evidence at face value or overestimate its importance without knowing its scientific soundness, which could potentially lead to some judges making misguided decisions based upon this evidence (Berryessa & Cho, 2013; Dreyfuss & Nelkin, 1992; Rothstein, 1999). …”

Potential Implications of Research on Genetic or Heritable Contributions to Pedophilia for the Objectives of Criminal Law

“…Although still uncommon, defendants have increasingly presented genetic research in recent decades as evidence in court in an attempt to explain or contextualize their behavior as caused or influenced by their genetics. These include arguments such as genetic predisposition to specific types of criminal behavior, issues with behavioral or impulse control due to genetic susceptibility, or a familial history of criminal behavior, all with hopes of negating or mitigating responsibility for their crimes [14, 15, 75]. Previous literature has shown the use of genetics evidence in past cases has described as a “double edged sword” – meaning either a mitigator or aggravator – in court for judges and juries concerning sentence type or severity; either the offender is more dangerous because his genes are unchangeable, or the offender is less responsible for his actions because he did not “choose” his genetic makeup [14-17].…”

“…Indeed, Farahany and Bernet [15] argued that future research on specific geneenvironment interactions possibly correlated to sexual disorders, such as pedophilia, could in the future be used in court by experts to portray offenders with these factors as unlikely to be rehabilitated and more likely to recidivate. This could be an especially effective strategy for the prosecution, as there has been past concern that judges and juries, who often do not have scientific expertise or background, may misjudge or overestimate the level of influence an individual’s genetic makeup has over his behavior when making decisions about offenders in court [75, 77]. …”

Behavioral Economics: Where Is It Heading?

“…In a similar vein, behavioral genetics is growing as an approach for uncovering the genetic underpinnings of behaviour in psychology. Although it too has its current problems (Berryessa & Cho, 2013), it is becoming much more integrated with psychological research and neuroscience as a way of understanding complex behaviors such as moral reasoning (Haidt, 2007, Marsh, Crowe, Yu, Gorodetsky, Goldman, & Blair, 2011, numeracy skills (Libertus, Feigenson, & Halberda, 2011), and even political voting behavior (Hatemi, Alford, Hibbing, Martin, & Eaves, 2008;Jost, Glaser, Kruglanski, & Sulloway, 2003). Again, the same potential extends to BE, and may be another avenue that is exploited in BE research in the near future.…”