STIGMA IN THE STATUTE: WHEN THE LANGUAGE OF THE LAW INJURES.

• Date: 01 February 2023
• Author: Tovino, Stacey A.

TABLE OF CONTENTS INTRODUCTION 786 I. CONCEPTION AND TERMINOLOGY: PAST AND PRESENT 789 A. Myth and Misconception 789 B. The DSM: Alcohol Use Disorder 794 C. "Drunk," "Drunkard," and "Drunkenness" 801 D. "Inebriate" and "Inebriety" 803 E. "Intemperate" and "Intemperance" 805 F. "Alcoholic" and "Alcoholism" 807 G. "Addict" 810 H. "Abuse" and "Abuser" 811 II. AN ALCOHOL-RELATED LANGUAGE TAXONOMY 813 A. Difining 814 B. Titling 819 C. Establishing 820 D. Excluding 822 E. Removing 825 F. Penalizing 827 G. Protecting 829 H. Preventing 830 I. Treating 831 J. Equalizing 833 K. Finding 834 L. Mitigating 836 M. Summary 837 III. JUSTIFICATION AND CONTEXT 838 A. Justification 838 B. Context 841 CONCLUSION 848 INTRODUCTION

Jurists frequently consider the extent to which a writer or speaker's harmful statements may be actionable under the law. (1) But what should be done when the law itself contains harmful language? Consider the case of individuals with alcohol use disorder (AUD), defined by the American Psychiatric Association as a "problematic pattern of alcohol use leading to clinically significant impairment or distress." (2) Hundreds of federal and state statutes refer to individuals with AUD as "addicts," "abusers," "alcoholics," "drunkards," "inebriates," and "intemperates." (3) These statutes exist notwithstanding research showing that these words provoke negative thinking by others, (4) including thinking that individuals with AUD are more deserving of punishment and less deserving of treatment. (5) These laws persist in the face of research showing that these words increase the affected individual's sense of shame and anxiety and decrease the individual's likelihood of seeking and remaining in treatment. (6) These laws remain on the books despite research and case law showing that these words reinforce structural, public, and self-stigma associated with AUD. (7) This Article develops an original, alcohol-related language taxonomy that challenges the continued use of injurious statutory language and explores the role linguistic amendments have in ameliorating such injury.

As background, prior scholarship has carefully reviewed research studies investigating the relationship between language and stigma in the context of substance use disorders, including AUD. (8) This research shows that slang, medically inaccurate, and non-person-first (9) terms invite negative judgments about individuals with AUD and that lay and professional community members regard individuals described in these terms as blameworthy, untrustworthy, and dangerous. (10) Prior scholarship also has collected hundreds of state statutes containing references to alcohol-related activities, alcohol-related states, and alcohol-related health conditions, showing that a startling number of these statutes incorporate slang, medically inaccurate, and non-person-first terminology. (11) Notwithstanding, prior scholarship has yet to study the origins of alcohol-related statutory language, explore the impact such history has on society's current perception of disordered drinking, or develop an alcohol-related language taxonomy capable of guiding future law and policy in the context of AUD. This Article completes these important yet outstanding tasks.

This Article proceeds as follows: Part I examines the origins and history of a variety of slang, medically inaccurate, and non-person-first words used in the context of individuals who consume alcohol. These words include "abuser," "addict," "alcoholic," "drunk," "drunkard," "inebriate," and "intemperate." (12) Part I shows how these words have been used in medical, legal, literary, and popular contexts from the Middle Ages to the present. Part I finds that these terms were heavily relied on during time periods in which there was great misunderstanding regarding the etiology of AUD. Part I argues that these words, when used today, reflect and reinforce society's age-old misunderstanding regarding problematic alcohol use. Disordered drinking has long been associated with voluntary madness, moral weakness, deficit of will, disorder of personality, lack of worth, intentionality of abuse, evil, vice, and sin. (13) Part I confronts these myths and misconceptions, explaining the science behind AUD. Changes in brain regions related to the execution of motivated behaviors and the control of stress and emotionality occur in individuals with AUD, making it difficult for such individuals to stop drinking without proper treatment. (14)

Part II of this Article develops an original and innovative taxonomy of alcohol-related statutory language. This taxonomy classifies alcohol-related terms by their primary legislative function, such as "defining," "titling," "establishing," "excluding," "removing," "penalizing," "protecting," "preventing," "treating," "equalizing," "funding," and "mitigating." Within each legislative function, the risks and benefits of using particular alcohol-related terms are considered and statutory amendments designed to minimize risks and maximize benefits are offered. The goal of Part II is to alert lawmakers to the nuanced relationship between language and stigma as well as to guide lawmakers in the future drafting (or amending) of legislation affecting individuals with AUD.

Part III provides justification and context for the statutory proposals set forth in Part II. In particular, Part III carefully analyzes a variety of self-initiated writings of individuals with AUD. These self-initiated writings provide substantial evidence of the perception of public stigma (the negative attitudes and beliefs of others about an individual that lead to fear, rejection, and avoidance of the individual) and label avoidance (an individual's hesitancy or refusal to obtain treatment in order to avoid stigmatizing labels) in the context of AUD. (15) Part III also situates the proposals set forth in Part II within legal scholarship more generally. Language-related scholarship conducted in other fields is examined, parallels are drawn, and distinctions and criticisms are addressed. A conclusion underscores the expressive function of law, including the role of law in creating attitudes and judgments about particular individuals. Moral judgments and condescending attitudes towards individuals with AUD have no place in the language of the law.

I. CONCEPTION AND TERMINOLOGY: PAST AND PRESENT

1. Myth and Misconception

   What do the words "abuser," "addict," "alcoholic," "drunk," "drunkard," "inebriate," and "intemperate" mean? When were these words first used and in what contexts were they employed? Some background information regarding alcohol may be helpful before proceeding. Derived from the Arabic word "al-kuhul," (16) alcohol is naturally produced when yeast ferments sugar into ethanol. (17) Although prehistoric humans likely consumed alcohol in decaying fruits and berries, human-made alcoholic beverages are traceable to approximately 7000 BC. (18) Historians, scientists, and clinicians have long noted alcohol's practical and functional uses, including its medical, nutritional, antiseptic, and disinfectant applications. (19) Historians, scientists, clinicians, novelists, playwrights, and others also have given significant attention to alcohol's intoxicating effects. (20) For example, a Greek play dating from the fourth century BC depicts the effects on an individual of the consumption of ten kraters of diluted wine. (21) According to the play, the first krater leads to good health and the second to love and pleasure. (22) The fifth krater, however, leads to shouting, the sixth to drunken revel, the seventh to black eyes, the eighth to summons, the ninth to bile, and the tenth to madness. (23)

   Throughout history, considerable attention also has been given to the nature and character of individuals who consume alcohol. (24) Much of this attention focuses on the question of whether problematic alcohol use is a voluntary behavior, bad habit, character flaw, moral vice, or disease. (20) The answer to this question is important. On the one hand, conditions classified as voluntary behaviors or bad habits are believed to be subject to personal control. (26) On the other hand, individuals are believed to have less control over diseases. (27)

   The view that problematic alcohol use is a voluntary behavior, bad habit, character flaw, and/or moral vice was espoused early in time. Writing during the post-Augustan age of Latin literature, Roman philosopher Seneca explained that "drunkenness is nothing but voluntary madness." (28) In his multivolume The History of America, historian and clergyman William Robertson similarly believed that drunkenness resulted from moral, rather than physiological, causes. (29) Likewise, the High Court of Errors and Appeals of Mississippi explained in 1860 that a father who was "addicted to intemperance" would be unable to impart to his children principles of "virtue and morality" and would contaminate his children with his "immoral conduct." (30)

   The characterization of disordered drinking as a physiological disease gained a tentative foothold in the early nineteenth century. In 1810, Scottish naval physician Thomas Trotter stated, "I consider drunkenness, strictly speaking, to be a disease; produced by a remote cause, and giving birth to actions and movements in the living body, that disorder the functions of health." (31) Trotter was one of the first medical authorities to remove the blame associated with drinking from the individual and transfer it to a "remote cause" that was beyond the individual's control. (32) Trotter was not the only physician of his time to characterize problematic alcohol use as a disease rather than moral failure. American physician Benjamin Rush stated early in the nineteenth century that dependence on ardent spirits was an "odious disease (for by that name it should be called)." (33) Although Rush classified disordered drinking as a disease, his treatment...