Imagine You Are a Judge: Ayahuasca in the Courtroom
Written by Constanza Sánchez Avilés, Ph.D., Benjamin K. De Loenen, M.A., and José Carlos Bouso Saiz, Ph.D.
While the harsh regime dealing with psychoactive substances is slowly making space for a more sensitive and health-oriented approach, alarm bells went off when new psychoactive substances started to become popular as attractive legal alternatives to the classical psychoactives. As little or nothing is known about the short and long-term health risks involved in the use of these new drugs, the phenomenon quickly became a serious concern for national and international policymakers and regulatory bodies. Countries started to outlaw these new compounds and blends, and monitoring systems were put in place. The simultaneous growing interest in ancient plant materials and preparations like ayahuasca (which has more than a decade of scientific research behind it and centuries of use in indigenous traditions) became part of this debate, often framed as part of this growing trend of seeking out “exotic” ways to get high, leading to an upsurge in repression and legal prosecution of its use and distribution.
Since 2010, the International Center for Ethnobotanical Education, Research, and Service (ICEERS) Foundation (iceers.org) has been contacted on many occasions by ayahuasqueros, ayahuasca churches, and individuals whose interest in ayahuasca led them to have an unexpected encounter with law enforcement, and has assisted in the defense of a significant number of these cases in Europe and abroad. As an object of litigation, ayahuasca is a relatively new issue for judges and lawyers accustomed to dealing with drug trafficking cases involving more “traditional” illicit substances, produced and distributed in black markets and sold on the street, in clubs, and so on. We believe that many ayahuasca-related lawsuits resulting in convictions or fines have been the consequence of a lack of understanding of the cultural, pharmacological, social, and legal aspects of ayahuasca.
The following (fictional, but based on real life) story sketches the experience of a judge who is confronted with this rather peculiar subject matter, finding himself in the abyss between prohibition on one hand and human rights and scientific evidence on the other. By stepping into the shoes of a criminal judge, we can see how difficult it is to disentangle the legal threads surrounding ayahuasca, and to understand the political complexity and value of the Amazonian brew.
Imagine you are a judge: middle-aged, in a Western European country. You spent quite a few years digesting books on criminal law, studying late nights. Then you spent another few years preparing for a public selection process, finally managing to make the courtroom your professional arena. You get accustomed to dealing with crime and criminals: murder, rape, child abuse, theft, corruption, and drug trafficking become your daily bread.
Over 20 years, you have judged hundreds of drug trafficking cases. You are routinely confronted with the drug trafficking business, dominated by the black market kingpins and their many helpers in the violent search for wealth. But you have also found yourself in situations where it was necessary to drop your wooden gavel, condemning the poor drug mules who had—for a moment—found a spark of hope in their financial despair. Despite your best efforts to serve justice, you grew used to the look in their eyes as you sentenced them to years of imprisonment.
One day, a new case arrives at your desk. Again, drug trafficking—a crime against public health. But this time, the file concerns a rather exotic substance you have never heard of before: ayahuasca.
The accused is a 45-year-old woman with no criminal record. She is accused of having sent eight liters of liquid from Peru to Europe, which was then intercepted at European customs. The analysis shows that the bottles contained an illegal psychoactive substance called N,N-Dimethyltryptamine (DMT). In her declaration, the woman states that she has been drinking the brew in ceremonial settings to treat her anxiety disorder, and that she runs groups where participants seek personal development and healing from mental and physical issues. The prosecutor, however, sees things rather differently; for him, five years of imprisonment seems to be a fair treatment for this woman.
Since in your experience this type of drug trafficker profile is a bit atypical, you do a little research—Google might have the answers. You type in “ayahuasca” and are surprised to see thousands of results. It seems to be more popular than you expected. You open the first link: It explains the ayahuasca brew is a mixture of various Amazonian plants capable of inducing an altered state of consciousness, used for centuries by indigenous communities all over the Upper Amazon, and by a couple of Brazilian churches that use it as a sacrament. You open the second link: An American woman tells how she succeeded in overcoming depression after participating in a healing retreat with ayahuasca in Iquitos, Peru. You open the third link: A baby was sacrificed in a cult ceremony involving ayahuasca. You are shocked. Then you see a few more reports on negative ayahuasca-related incidents.
The day of the trial, the accused woman appears in front of you. The prosecutor begins the session with a speech:
The dimethyltryptamine preparation called ayahuasca that we confiscated is an illegal substance, imported by the defendant for administration to participants she attracts for the sessions, in which their safety and health is being endangered. DMT is a dangerous hallucinogenic substance that can induce psychosis, panic attacks, depersonalization, heart problems, seizures, convulsions, and even death. The literature and media report a number of incidents involving drug-induced psychosis and death. The behavior of the defendant is irresponsible and a threat to public health.
He continues: “The 1971 United Nations Convention on Psychotropic Substances (Single Convention), and our national law, are clear about which substances are illegal and which ones aren’t, and in the case of DMT there is no doubt that it is prohibited to manufacture, import, possess, and distribute. Drug trafficking is a serious violation of the law, and therefore I ask you to sentence the defendant to five years in prison.”
Then the defendant’s lawyer takes his turn, addressing himself to you:
We have just heard the prosecutor explain how my client is irresponsible and a danger to society by importing and administering a harmful illegal substance. Unfortunately, he doesn’t seem to have done his research into what we are talking about today: a cultural practice that has existed for centuries, involving the ingestion of ayahuasca, an ethnobotanical decoction made with various botanical species. The most important component has the Latin name Banisteriopsis caapi, or ayahuasca, which the brew is named after. This vine is often boiled together with a plant of the coffee family called chacruna, or Psychotria viridis. The ayahuasca vine contains harmaline alkaloids, and the chacruna contains small amounts of DMT—the latter of which is also found in many other plant species, animal species, and even human spinal fluid. There is even evidence of DMT’s presence in the brains of mammals.
He proceeds: “We are not here today for a court case about the production and sales of pure DMT. We are here to talk about a ceremonial practice that involves traditional elements such as icaros (traditional songs that are only sung in ayahuasca ceremonies), a carefully prepared botanical tea made according to a traditional recipe, and Western and Eastern elements such as meditation, psychological preparation, and integration work. Ayahuasca is a product of intercultural dialogue and synergy, as complex as the pharmacological interplay of the numerous compounds present in it, synergistically working together.”
The lawyer takes a letter from his desk, written by the International Narcotics Control Board (INCB), and continues: “The same organization that scheduled DMT under the 1971 Single Convention states that no plant or plant concoction (such as ayahuasca) containing DMT are currently under international control. I understand this might seem contradictory, because DMT itself is forbidden, but not only is the context of use completely different from most uses of pure DMT, but also smoking the pure alkaloid is pharmacologically very different from drinking the tea. DMT was not added to the 1971 Single Convention because there was an epidemic of ayahuasca addiction or abuse threatening the Amazonian regions and Brazilian churches; rather, the convention was aimed at addressing the production, distribution, and use of the pure alkaloid. The traditional uses of ayahuasca practiced by the native Amazon communities are even recognized as a cultural patrimony by the nation of Peru.”
The lawyer continues quoting a number of documents affirming ayahuasca is not included in the Single Convention, including the INCB Annual Reports for 2010 (paragraph 284) and 2012 (paragraphs 328 and following), or the Commentary on the 1971 Convention (mainly regarding Article 32, especially paragraphs 5 and 12), which states that Schedule I does not include any natural hallucinogenic materials, but merely the chemical substances which constitute the active principles.
At this stage, you feel a bit lost. Even though it indeed seems that the legal status of ayahuasca is different from what the prosecutor wants you to believe, and even though the topic of the day is indeed a practice with a clear set, setting, and cultural history, you still feel that it is important not to underestimate its risks. While ayahuasca may not be under formal international control, it is also clear from the INCB that it can still have serious health risks. If you acquit, you wonder, are you giving a green light for the defendant and others like her to continue endangering public health?
Now an expert witness—a doctor of pharmacology—takes his place in the witness chair, placing on the desk in front of him ICEERS’ Technical Report on Ayahuasca. You listen carefully as he starts speaking:
During the last decades, many clinical trials and observational studies have been carried out in many parts of the world. In sum, these studies have demonstrated the following facts: (1) DMT and ayahuasca have different pharmacodynamics and are therefore not comparable in terms of physiological and psychological effects or safety profile; (2) Clinical trials carried out with volunteers, both in laboratory conditions and natural contexts, suggest that ayahuasca is physiologically very safe and its impact on the cardiovascular system is minimal, producing slight increases in blood pressure and cardiac rate; (3) It has also been shown in human research that ayahuasca does not produce tolerance and has a low potential for abuse, as shown in neuroimaging studies showing no activation in brain reward centers, and in longitudinal studies with long term users; (4) Evidence from a number of studies since 1996 indicates that ayahuasca may be a useful tool in the treatment of addictions; and (5) No evidence has been found of neuropsychological or psychopathological changes due to continued consumption of ayahuasca, and several studies have found lower occurrences of psychopathology and greater psychosocial integration in habitual ayahuasca users. The literature on the short-, medium-, and long-term effects suggests that ayahuasca is acceptably physiologically and psychologically safe.
After the expert testimony, you are now even more confident that ayahuasca is not a typical drug of abuse. Still, the responsibility weighs on your shoulders. You tell the expert: “Everything you have said here today is very interesting, and it all seems evidence-based and factual, but in practice there are still harmful incidents, published in the media and the literature, related to these practices. How can the safety of participants ever be guaranteed with a psychoactive brew like ayahuasca?”
The pharmacologist replies: “First of all, regarding the reported incidents, it is important to study each case in order to come to conclusions on the factual cause of the adverse event. Most of these public reports provide no information about the chemical composition of the brew in question. Whether for privacy reasons or because nobody knows, most of these stories also lack autopsy information and/or relevant facts about victims’ prior health status, including possible interactions with medication they may have been taking. There is also the potential harm caused by external factors such as an unsafe setting, environmental conditions, or criminal incidents. This lack of information makes it impossible to make any definitive conclusions regarding the existence of a causal relationship between ayahuasca per se and cases of poisoning, injury, or fatalities.”
He continues: “With any drug use, including ayahuasca, there is never a 100% guarantee of safety. Even in cases where participants are carefully prescreened, where a controlled setting is created and ample attention is given to integration and follow-up care, some participants may not tell (or even know) the whole truth about their psychiatric background and medication use. There is, however, a 100% guarantee that criminalizing the practice drives it underground, creating a higher risk than if it were done aboveground with adequate regulation and accountability. It is only by creating legal frameworks for these practices that safety can be maximized, and that unethical or irresponsible practices can be reported and stopped. The clinical research setting is one example of a legal, controlled setting with safety measures and participant prescreening. In indigenous cultures, ayahuasca use also has a very clearly defined setting, as do the religious practices of churches that utilize the brew as a sacrament, as shown in observational and anthropological research.”
The defense lawyer stands up once more: “To conclude my opening statement, I would like to read a declaration that was written by the Ibiza Expert Committee on the Regularization of Psychoactive Ethnobotanicals. It is a call for governments to work toward creating a constructive legal and human rights-based foundation for the use of ayahuasca:
“Every human being should be free to choose ways and tools that facilitate healthy personal growth and spiritual development, to overcome mental or physical illness, and to nurture individual flourishing, social bonding and family life, as well as to cultivate spiritual meaning. Moreover, at a time when humans collectively are living on the precipice of social, environmental, and economic crisis, it is vital that intercultural dialogue and holistic policies promote a sustainable existence for our species, embracing our diversity in a world with interconnected societies, in harmony with the planet and its other inhabitants. It is intrinsic to the evolution of humankind to seek new methods, and to improve those we have at hand, to effectively reach these goals.
Unfortunately, this seems not to apply when it comes to certain tools of ethnobotanical nature utilized for centuries by indigenous and pre-modern societies in ceremonial practices, passed on orally from generation to generation. One of these, ayahuasca…has played a quintessential role in the spiritual, medical, and cultural traditions of peoples who have inhabited the upper part of the Amazon basin. In the past few decades, various traditions and new modalities of ayahuasca drinking have been taken up beyond the frontiers of the Amazon, embarking on a new multi-cultural symbiosis.
The lawyer finishes reading the declaration. You close the court hearing, but your work has just begun. You now have two weeks to give it more thought and decide on a verdict.
Since 2010, these types of court cases have become common in numerous European and some Latin American countries. Ayahuasca, which has been mostly under of the radar of law enforcement in most countries, has suddenly come under legal pressure.
ICEERS was involved in the defense of a significant number of similar lawsuits, and in 2014, with the collaboration of many non-profits and NGOs including MAPS, we decided to organize the World Ayahuasca Conference (AYA2014) in Ibiza, Spain. This was the largest international conference of its kind yet, with over 100 presenters and 650 participants from over 60 countries. An important objective of AYA2014 was to bring together lawyers who have successfully defended ayahuasca trials, and drug policy reform experts such as Ethan Nadelmann (Drug Policy Alliance), Pien Metaal (Transnational Institute), Kasia Malinowska-Sempruch (Open Society Foundation), and Amanda Feilding (Beckley Foundation), to discuss the current legal and political situation around ayahuasca and other ethnobotanicals. We also established the Ibiza Expert Committee on the Regularization of Psychoactive Ethnobotanicals, with which we aim to further develop our legal defense activities, as well as work towards legal frameworks and greater acceptance of these practices in our globalized world.
Please help us with this effort by making a tax-deductible donation to ICEERS. For more information, visit our website (iceers.org/legal-defense.php).
The materials mentioned above are also available online: