O.K., you tell me what evidence is so vital that it justifies the state forcibly inserting anything into a human being and draining bodily fluids?
Kirsten Hunter said her 3-year-old son, Aksel, was forcefully catheterized at the Avera hospital in Pierre in late February after her boyfriend failed a urine analysis. Authorities wanted to have her and her two children tested to see if they also had drugs in their system.
Pierre police officers and a Department of Social Services employee showed up at her home and said if her kids couldn’t produce urine, they would be taken from her. Hunter said her son isn’t potty-trained. So while she and her 5-year-old daughter were able to provide a urine sample, her young son couldn’t.
He was held down and forcibly catheterized by nurses.
“They just shoved it right up there, and he screamed so bad,” Hunter said. “He’s still dealing with a staph infection, and we are still giving him medication” [Mark Walker, “Hooded, Handcuffed, and ‘Violated’: South Dakota’s Use of Forced Catheterization,” that Sioux Falls paper, 2017.04.07].
Walker reports that Avera St. Mary’s in Pierre collaborates in this violation of human rights. Sanford Health issued a statement to the press saying it does not secure samples by force.
In a letter to our Department of Social Services, the American Civil Liberties Union of South Dakota says sucking urine out of a three-year-old boy is “unconcscionable and inhumane,” “barbaric,” and quite possibly a violation of the Fourth Amendment. “Individuals have a right to bodily privacy and integrity and a child should be accorded the right to remain free of catheterization in all circumstances related to the work of DSS,” writes ACLU-SD.
Apparently case law is still unclear on forced catheterization. South Dakota Supreme Court Justice Richard Sabers mentioned forced catheterization in his dissent in a 1999 case concerning a urine sample obtained under alleged threat:
Although the police did not use physical force to obtain the sample of Hanson’s urine, the officer who obtained the sample testified that he was “going to take a urine sample one way or the other.” Had Hanson refused to comply with his order, forced catheterization would have been used to obtain the urine sample. The majority cannot argue that that procedure would be “more reasonable and less intrusive … than … attempting to secure a warrant.” Forced catheterization would be a substantial intrusion of the integrity of an individual’s body. It goes well beyond the intrusion involved in obtaining a blood sample from a person suspected of driving under the influence of alcohol [Justice Richard Sabers, dissent, State v. Hanson, 1999].
The Fourth Amendment argument here should be pretty clear: if police cannot force a suspects to surrender words, police should not be able to force suspects to surrender fluids or anything else from within their bodies. If case law can’t make that clear to South Dakota police officers and the medical personnel collaborating in this torture, then statute should. Legislators, in 2018, you need to outlaw forced catheterization.
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions [United Nations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1 Section 1, 1984.12.10].