I’m a Slave 4 U: #FreeBritney, Human Rights, and Capacity Assessments

• guardianship
• trafficking
• disability
• conservatorship
• capacity

The term “conservatorship” (also known as guardianship) has crept into public consciousness via pop singer Britney Spears’s high-visibility struggle to get out from under one. Ms. Spears, 40, mother of two, was declared incapacitated at age 26 but continued to perform and be financially productive. “Framing Britney Spears” shows her early attempts to end the conservatorship that has controlled her money, personal decisions, social life, medical treatment, and reproductive rights. “Controlling Britney Spears” documents the interactions between the conservatorship and the private security agency that monitored her. These dynamics have been accompanied by a growing social movement, #FreeBritney, whose stated mission is advocating for the end of Ms. Spears’s conservatorship. The movement accelerated in 2019, after she was put under an involuntary psychiatric hold, the details of which are unknown. The episodes track the movement and events behind Ms. Spears’s situation. We believe there are implications for how forensic professionals handle such assessments.

At the center of the controversy has been Ms. Spears’s father Jamie Spears, whom she portrayed as the enemy in court testimony:The control he had over someone as powerful as me — he loved the control, to hurt his own daughter, one hundred, thousand percent. He loved it. I packed my bags and went to that place. I worked seven days a week, no days off, which in California the only similar thing to this is called sex trafficking, making anyone work, work against their will, taking all their possessions away — credit card, cash, phone, passport card — and placing them in a home where they work with the people who live with them. They all lived in the house with me — the nurses, the 24-7 security. There was one chef that came there and cooked for me daily, during the weekdays. They watched me change every day — naked — morning, noon, and night. My body — I had no privacy door for my room…(Ref. 1, p 7)

The performer’s argument to terminate conservatorship analogized her situation to sex trafficking. Under federal law, trafficking of persons is grouped with slavery and peonage (debt servitude).² Human trafficking, as a general concept, involves the exploitation of humans through use of threat, force, abuse of power, position of vulnerability, or payments or benefits to achieve control over another person.³ Exploitation can include sex, forced labor or services, or organ procurement. Definitions and legal status have largely been established by the United Nations Convention Against Transnational Organized Crime (known as the Palermo Protocol) and its supplementary Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, signed by United Nations participatory nations in 2000.⁴ Women and girls together make up 70 percent of trafficking victims, of which more than 80 percent are sexually exploited.⁵ Victims may be trafficked within their country of origin, by known persons, without being physically held, and in otherwise legal industries.⁶ As the filmmaker’s #FreeBritney subjects assert, their idol has been working as a slave.

The United States signed both the Palermo Protocol and the supplementary protocol in 2000, but Ms. Spears would not have recourse in conservatorship litigation. Anti-trafficking organizati-ons have taken note of her statement.⁵ Without affirming her claim, the Polaris Project writes that “the degree of financial and personal control Spears described resembles the forms of control and coercion tactics used by traffickers in situations of labor trafficking” (bold in original).⁶ It also provides a list of other Spears-arrangement factors that resemble human trafficking, as noted in her testimony: taking advantage of legal loopholes, physical and emotional isolation, exploitation of mental illness, constant surveillance, withholding of money and identity documents, and coercive contracts. Even conservative news media have supported her claim, with The View’s Meghan McCain stating, “If she were any other person not named Britney Spears, this is a human trafficking issue and should be treated as such” while calling for FBI involvement.⁷

Ideally, the conservatorship would be terminated when Ms. Spears regains capacity. A proposed alternate legal remedy for persons such as Ms. Spears is available through the Trafficking Victims Protection Act (TVPA) of 2000 (updated most recently in 2017).⁸ Section 213 requires the Secretary of Health and Human Services and the Attorney General to have assistance programs for trafficked United States citizens, while other sections provide accordant penalties for traffickers. A model state law was approved by the 2013 annual meeting of the American Bar Association House of Delegates (though the legislation has not yet been enacted by California). The Reauthorization Act of 2013 (TVPRA)⁸ provides for human trafficking to be charged under the Racketeering Influenced and Corrupt Organizations Act (RICO) and allows for victims to sue their traffickers. Ms. Spears has in fact mentioned wanting to sue her family.¹

In parallel, California legislators have been moved to rethink conservatorship along the lines of rights of the disabled.⁹ Ms. Spears, meanwhile, had been living under conservatorship since the original temporary assignment in 2008 following two psychiatric holds relating to odd behaviors under pressure from paparazzi and a custody dispute. The documentaries explore how the public viewed the unraveling of a closely scrutinized young adult whom the misogynistic world expected to function according to its high expectations yet drove her to do otherwise. Her subsequent behaviors have been largely controlled by her father, as she is assumed unable to manage herself and her affairs. Guardianship aims to protect the conservatee’s decisions or finances. Ms. Spears’s conservatorship is responsible for both; it is plenary. She has claimed that her ability to manage a grueling work schedule and even teach her dancers the choreography for performances speaks to her capacity.¹⁰ There are supposed to be mechanisms in place for review of conservatorship, but they are largely left to the court to pursue independently. Under California procedures, Ms. Spears was presumed incompetent to choose her own attorney but bore the burden of obtaining counsel to make arguments for termination, which she was doing at the time of writing. Conservatorships, as usually applied to older adults, are expected to be permanent.¹¹ The outdated nature of California’s and other states’ guardianship laws in relation to contemporary views of autonomy and disability were highlighted in a recent symposium at the National University of Ireland-Galway.¹² It appears that nations which have moved disability rights into focus have embraced international accords.

Given the tight control over her behaviors and communications, the public knew little about her arrangement throughout the years. This silence largely changed with the first documentary, which was followed by continuous New York Times coverage and a New Yorker article,¹³ the singer’s own testimony in Variety,¹⁴ and general media, public discussion, and legal commentary.¹² Many of those who may not have taken her claims of human trafficking seriously nonetheless began to question the arrangements of her conservatorship in articles, interviews, podcasts, and panels. #FreeBritney adherents have supported her testimony, asking how Ms. Spears remained under a conservatorship as a functioning woman who has been working nonstop. They have pointed to financial exploitation, given Ms. Spears’s massive estate from which she pays the very people who control her life. Her assistant, Felicia Culotta, who was marginalized by the management team, describes Ms. Spears’s abilities and her own doubt about the conservatorship. Jamie Spears’s attorney, Vivian Lee Thoreen, explained in the film that a conservatorship could prevent an impaired person from being duped into giving away money.

The #FreeBritney movement has questioned the seeming cruelty of California’s laws, but they are merely a barometer of American disability law. While the United States has signed on to conventions against human trafficking, it has remained fundamentally silent on the rights of disabled persons, and one of the only countries that has not signed on to the 2008 United Nations Convention on the Rights of Persons with Disabilities (CRPD).¹⁵ The purpose of the CRPD is to protect full human rights, freedoms, and dignity of persons with disabilities by granting them participatory involvement in the policies that affect them. It operates from an empowering disability lens rather than through an authoritarian medical model. Accordingly, even when disabled persons’ decisions may be compromised, they must be able to access support for them from a substituted decision-making perspective, not a best-interests standard. Jamie Spears’s attorney, in the film, lauds acting “in the conservatee’s best interest.” Even Ms. Spears’s new attorney, Mathew Rosengart, in the “Controlling” episode, insists that his client’s best interest be acknowledged, rather than a rights-forward position.

Without the ability to refer to the CRPD, states have retained a panoply of approaches to guardianship. Other countries, such as Costa Rica and Peru, have changed or abolished their conservatorship mechanisms altogether.¹² California has one of the most conservative sets of guardianship policies in the United States.¹⁶ By contrast, articles of the CRPD include rights to owning property, living independently, marriage and reproduction, education, and health, among others (CRPD).¹⁵

The incongruence between California and the CRPD has been wedged open by stigma against the inclusion of disabled persons in decisions that concern them. While less restrictive options to conservatorship should be exhausted before appointment, they are rarely reviewed or even considered. Legal advocates have called for enactment of supported decision-making to buttress, rather than exclude, legal capacity.¹⁷ Other mechanisms include health care proxies, advanced directives, powers of attorney, notarized statements, and representation agreements.¹⁸

The documentaries are relatively one-sided, in that interviewed parties are vocal #FreeBritney advocates, while court representatives and mental health providers maintain appropriate confidentiality. In the “Controlling” episode, however, insiders’ comments support Ms. Spears’s claims. Psychiatrists are accustomed to suggesting less restrictive levels of clinical care, and forensic testimony could and should review less authoritarian attempts at supported decision-making. Recommendations would include possibilities to try before plenary guardianship is enacted, as well as the ways in which they could aid decision-making and maintain capacity. If these avenues are unlikely to be effective, they should nonetheless be presented and thoughtfully considered. Further, forensic psychiatrists can be involved in reviews of existing conservatorships rather than leaving the process solely to internal procedures of the courts. In these ways, psychiatrists can be disability advocates while staying well within their professional roles. In our view, a voice is needed given the fact that attempts to detail the extent of abuse of guardianship have been inconclusive because of lack of data.¹⁵ That media attention may have led to the accomplishment of many of #FreeBritney’s aims by the time of this writing speaks to just how effective forensic psychiatry may also be in raising corresponding ethics and procedural concerns.

• © 2022 American Academy of Psychiatry and the Law