Art on Trial

Confessions of a serial art therapist

The Spinning Moral Compass of Forensic Art Therapy

Moral considerations for an art therapist testifying as an expert witness

Okay, following established ethical standards in our practice is one thing, but what happens if we are called to do something that may put us in a position to examine and question our own moral convictions?

The last post, “Ethics in Forensic Art Therapy: Defined and Conquered”, relied on a paper I presented at the 2014 American Art Therapy Association’s national conference several weeks ago entitled Professional Incongruities: Legal, Ethical and Moral Paradoxes of A Forensic Art Therapist. In it I clarified the difference between legal, ethical, and moral considerations, and examined the ethical struggles I experienced as an art therapist contracted to provide expert witness testimony for a man who murdered. It argued that, in such circumstances, although the established ethics may not always provide a clear blueprint, one can still develop a fair and just trajectory.

But what about morality? Moral considerations require different, very personal, deliberations. While ethics and morals are often seen as two sides of the same coin–one informing, and the other relying on, the other (and which is which often changes)–sometimes, in doing the legal and ethical thing, our own moral beliefs may be threatened. In chapter 6 of Art on Trial: Art Therapy in Capital Murder Cases, I first explored how providing such services for the capital murder case may very well have caused my own moral compass to spin out of control.

This post, adapted from that chapter and from the conference presentation, examines three of my many moral challenges faced and what I did to address them.

1) How dare I defend a man who murdered his child

Although I heard this from several people as I began the process, despite the horrendous act, this was initially not an issue for me.  I had worked with people who had murdered before, and, because of his mental illness, I believed Kevin deserved a robust defense.

What is more, although I feel bad admitting it, at first the murder remained somewhat abstract. When I became involved with this case, my daughter was already a teenager, and I could not readily identify with the victims of this case. I was distant from it. However, as the case progressed it became quite personal; less academic and more real. Why?  

Because, when I finalized arrangements with the defense team on when and how I was to fly out and evaluate the defendant, I was in Peru picking up my newly adopted, fragile, 9-month-old son. Reconciling my responsibilities of providing testimony for someone who did this heinous act with my new responsibilities for my new son was especially difficult.

So, how could I still provide supportng testimony? I’ve said it in presentation after presentation and I will say it here: It was important for me to make clear, first to myself and then to the defense team, that I was neither testifying for nor against the client; rather, I would testify strictly on the art. And the art clearly revealed that he had a mental illness.

Some would see this as semantics or rationalization. I agree it was a combination of the two. However, it did allow me to present the best case possible while maintaining my own personal integrity.

It allowed me to sleep at night.

2) Maintaining objectivity is, and should be, a myth

I have often heard that in presenting such information, particularly in a court of law,  one must remain objective, impartial, unbiased.

Is this why I felt uneasy, because I believed I wasn't objective? Because I wanted “my” side to win? 

However, I have since understood, maintaining objectivity is–and should be–impossible; even, dare I say it, unethical. Tanay points out that the “notion of a single impartial expert witness is an illusion” (2010, p.36).

Presenting the information objectively, logically and without emotion was one thing. Remaining impartial and objective would have been a disservice to the defense team.

I obviously wanted my testimony to mean something, to make sure that my conclusions contributed to the success of the side that hired me. As Tanay further reminded, “Neither ethics nor a sense of fairness demand that the expert witness walk down the middle in a legal dispute. On the contrary, it is the expert’s contractual agreement that upon taking the witness stand, he or she will effectively testify in support of one side” (p.37).

When I agreed to work for the defense, I was expected, to the best of my abilities, to demonstrate how the art revealed that Kevin had a mental illness. I provided the defense team with an initial assessment, which led to them contracting with me to provide this information in formal testimony.  It was up to me to decide if I would accept the contract. Once accepted, it was my responsibility—ethical, legal and moral—to fulfill my contractual obligation.

3) To label or not to label—that was the question

This one, professionally, was a very big deal for me. Throughout my career, I believed strongly in not labeling a person as merely a diagnosis or illness, an issue I examined in the earlier posts “Art Behind Bars” and “Making Something out of Nothing.” As Moon (2000) stressed, art therapists should object to this form of diagnostic labeling simply because there “is always more to a person than his or her illness and more to images than pathological symbolization” (p.62).

A great deal of my own work has focused on using art to allow participants to strengthen their identity and rise above the limitations placed on them. Focusing on a client’s strength allows for therapeutic gain–integrity, self-efficacy and independence–through the art process.

In this case, the goal was to secure a label on the defendant, one that stressed that he had a severe mental illness. To succeed, his whole identity had to be reduced to this one new brand. The hypocrisy was apparent to me–while the defense team and I believed the art could be used to humanize the client and reduce the prosecutor’s attempts to present him as a monster, I was being asked to simultaneously demonstrate he was a particular label and, therefore, not fully responsible for his actions. Furthermore, I could only focus on his art as a reflection of his mental illness and not of his talent. This caused an internal conflict with my identity as an art therapist and the person I had become. However, it would be unethical not to do what was asked of me. If successful, I would essentially help save the life of a man that, if mentally ill, was not fully responsible for his actions. This was something I morally struggled with throughout the experience.

So, then why do it?

These were just a few of the moral concerns experienced throughout. Of course, the question remains, if the experience resulted in such moral quandaries, why did I agree to do this? Let's put this in perspective. I agreed to the case because of my own professional curiosity, my belief that everyone deserves a defense and my own intrigue in the case. And, I confess, my own professional ego was stroked; they asked me to do this, to be partially responsible for another man’s life. However, as the case progressed, a sense of uneasiness set in. One’s moral senses can’t help but be aroused.

Perhaps, it was because of these moral concerns that made for a much more vigilant and indepth evaluation. I needed to convince myself as much as the court.

I feel, when all is said and done, I did my best for this case, and I was proud with what I accomplished. On the other hand, I still struggle with many of the details and as I continue to present and write about the case, these concerns emerge and get reevaluated.

Of course, the question has since been asked of me in many different forums, would I do this again? I’ve asked myself that same question.

Until now.

I now have an answer.

I will be flying out in September to meet with another defendant on death row for murder. I have been asked by his defense team to evaluate him and his art. We’ll see how that progresses…

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Addendum

While these last two posts addressed ethical and moral considerations in my role as an expert witness, the next post will address how legal, ethical and moral considerations collided in a most chaotic heap in a situation that happened when I worked in the prisons. Without giving too much away, it wasn’t pretty…

 

References

Gussak, D. (2013). Art on Trial: Art Therapy in Capital Murder Cases. New York: Columbia University Press.

Moon, B. (2000). Ethical issues in art therapy. Springfield, IL: Charles C. Thomas, Publisher, LTD.

Tanay, E.  (2010). American legal injustice: Behind the scenes with an expert witness. Lanham, MD: Jason Aranson, Publishers.

David Gussak, PhD, ATR-BC, is professor and chairperson for the Florida State University Department of Art Education, and Clinical Coordinator of its Graduate Art Therapy Program.

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