NationStates Jolt Archive

http://www.news.com.au/common/story_page/0,4057,11930785%255E2,00.html

OK – Here’s an interesting one. Accused of murder and allegedly shot in the act. Videotaped in the act and confessing to the crime. Yet the police still say they need the accused to undergo surgery to retrieve the bullet lodged in his back. He, of course, is reluctant for several reasons.

I wonder what people think of this? Before you knee jerk with “NO! Absolutely not under any circumstances! Evereverevereverever!” or “Absolutely. This guy is a criminal and therefore has no rights. Cut the scum open!” pause and think for a second. Put yourself in both situations – Accused but not convicted of anything, would you be willing to undergo a dangerous procedure with risk of death or disability in order to assist the police case? How about if a loved one of yours was the victim? Would you hesitate to call for this procedure to be performed, regardless of the accused’s wishes if it was what was needed to prove the case?

Should the State ever have the right to order surgery even if the recipient is unwilling? Why? Why not?

Myself, I'm not so sure, yet. I have an opinion, but I am interested in reading other viewpoints - they may sway me :)

The state already has the legal power to invade your body. The police can obtain blood and epithelial cell samples by court order in many countries. If they can do this then they can clearly order surgery. The problem here is not the surgery in itself, but the risk to the life of the accused that the surgery represents. The article does not make it clear what the level of risk is, nor where the bullet physically is in the accused's body. The decision in this case should be made using medical consultation in addition to consulting the law.

Also as far as I understand, witholding evidence is in itself a criminal offence. There are, therefor both the precedents of taking blood and the legal framework to insist on the surgery, however this does not mean that it would necessarily be right to order the surgery.

I do not know if Australia has any equivalent to the fifth ammendment, but if it does, would this be covered by it. The right to not incriminate yourself has to include physical evidence as well as verbal, surely, or the ammendment is fundamentally flawed.

Now, is this right or not, is another question. For me, ethically, the state does not have the right to order surgery against the subjects own desire under any circumstances, where the subject is an adult. If the subject is a minor then the state does have the right to order medical intervention to benefit the subject (The Jehova Witness situation in the UK at least). In this case the state would have to make its case without the bullet and add on a charge of witholding evidence if it so desired.

Videotaped in the act and confessing to the crime. Yet the police still say they need the accused to undergo surgery to retrieve the bullet lodged in his back.
If he has signed a confession there really is no need for the bullet. This should not be allowed in this instance as it would be cruel and unussual punishment. It could be considered torture (surgery would be done only to cause pain since there is no valid need) which could violate international human rights law.
Accused but not convicted of anything. The argument that he has no rights because he is a criminal would not even be true if he were convicted. I'm not sure how it works in Austrailia but in the U.S. persons who are convicted maintain most of their rights except for ones needed to keep them in jail and protect the security and safety of workers, other inmates, and society.

Should the State ever have the right to order surgery even if the recipient is unwilling? Why? Why not? There may be instances where surgery may be forced. For instance if a suspect swallowed a bag or balloon with drugs in it surgery may be required to both recover evidence and save the persons life. There would have to be a compelling reason for it. If the evidence is not needed for the case, or if it would risk the life or possibly cripple the accused then no it should not be compelled. If the evidence is crucial to the investigation and no permanant harm is caused to the defendent then it should be allowed.
I don't believe this would fall under self incrimination as this not something the defendent is being forced into testifing to, it is simply recovering evidence.