A Philosopher's Blog

Academic Freedom & State Schools

Posted in Ethics, Law, Philosophy, Politics, Universities & Colleges by Michael LaBossiere on July 21, 2014
English: Protesting academics in 2006 at UKZN

 (Photo credit: Wikipedia)

Academic freedom is a longstanding and generally well-supported right. In terms of its underpinnings, the obvious foundation is freedom of expression—the right to express views and ideas without being silenced. In the case of academic freedom, the expression is (obviously enough) in an academic context. It is typically taken as being more than just protection regarding making specific claims in that it is supposed to provide fairly broad protection in such matters as selecting books, developing curriculum and so on. It is also supposed to protect professors (tenured professors at least) from being fired or punished for expressing their views (in legitimate ways—it is not a license to say anything without consequences).

Stereotypically, defenders of academic freedom are seen as leftists. However, in somewhat recent years, some conservatives have come forth to accuse “the left” of restricting the academic freedom of conservative thinkers in accord with the doctrines of political correctness. While such matters are overstated in the usual hyperbole of politics, there are enough incidents of faculty being punished for holding views that are regarded as politically incorrect. For example, Mike Adams was apparently denied promotion to full professor on the basis of his political engagement rather than a legitimate lack in his qualifications. There have also been proposals to use a standard of academic justice to replace academic freedom. While the idea of justice certainly sounds nice, the proposal is to substitute an ideological test in place of the general right—in short, academics could research what they wished, provided that it is consistent with the specific ideology. As might be suspected, I have written at length in opposition to this proposal. There have also been proposals from “the left” regarding trigger warnings and these proposals also provide a potential threat to academic freedom—a subject I have also written about.

While I am typically cast as being on “the left”, I take a consistent position regarding academic freedom—namely that I support it. Since I am consistent, this support extends to fellow professors whose views I disagree with—while I think they are wrong, I hold that they have as much right as I do to express these views. Even when (or especially when) they are regarded as “politically incorrect.”

One interesting problem of academic freedom arises for state colleges and universities. While even for-profit schools receive money from the government, state schools receive funding from the state—as decided by the state legislature. While academic institutes, they are subject to the control of the state government. To use a concrete example, Florida’s state legislature recently passed a law changing the general education requirements for all state schools, thus requiring faculty and administrators to implement the changes.

Given that the state government is (in theory) acting in accord with the “will of the people” and that the schools are funded with state money (that is, the people’s money), it is not unreasonable to believe that the state has the right to impose a degree of control over the schools. A rather important question is the extent to which the state should impose on academic freedom. As might be guessed, people answer this question based largely on their ideology.

As noted above, some of the loudest voices crying out for academic freedom these days are coming from the right. Somewhat ironically, one of the harshest impositions on academic freedom in recent years has come from that same right. To be specific, a senate panel of the Michigan senate banned courses at public schools “that promote or discourage organizing efforts.” The penalty for doing so is $500,000.

The University of Michigan was accused of breaking this rule because it offers courses on the history of labor. State Rep. Al Pscholka (who chairs the house panel controlling higher education funding) said, “I believe in academic freedom, and you’re going to have difficult subjects that you’re going to cover at any university. But this is a case where I think we’re almost encouraging labor disputes, and I don’t think that’s appropriate.” Interestingly, Pscholka praised the Supreme Court’s ruling on the Hobby Lobby case as a victory for religious freedom.

This view of liberty is hardly surprising. As Mill noted in his classic work on liberty, people tend to not operate based on a consistent principle regarding what should be allowed and what should be restricted. Rather, people decide based on what they like and dislike. As such, it is hardly a shock that folks on the left and right praise freedom when it is protecting something they like while being quite happy to restrict freedom when it involves something they do not like. But, as one might say, the law is the law and consistency of principle seems to lack legal weight.

That said, there is still the question of whether the state has the right to make such an imposition. As noted above, one avenue of argumentation is that since the state provides the funding and the schools are public institutions, then the state government has the right to dictate to the universities in regards to the content of their courses.

If this line of reasoning is strong, then this would be a general principle and not one just limited to the Republicans of Michigan wanting to keep courses on labor off state campuses. So if a state legislature passed laws forbidding teaching business courses or courses in religion, then that would be acceptable under this principle. It would also be acceptable for a law to be passed banning the teaching of Western history, Western values, anything that is seen as endorsing “the patriarchy”, and anything that is positive about white males and so on. That is, this principle would allow the state to impose the ideology of the day onto the state schools.

I think it is obvious that Pscholka and the others who support the rule in question would be adamantly opposed to the ideology of their opposition setting the content for public schools. As such, it is probably fair to say that they do not actually have a general principle regarding the degree of state control over state schools but rather do not like the idea of the schools teaching about labor. In short, the “principle” is that the school should not teach what they do not like—which is hardly a principle.

I would also be opposed to a leftist agenda being opposed onto state schools, but on the basis of a principle of academic freedom—in this case that the state should not impose ideological restrictions (left or right) on public schools.

 

My Amazon Author Page

My Paizo Page

My DriveThru RPG Page

Ethics & Free Will

Posted in Ethics, Law, Metaphysics, Philosophy, Politics by Michael LaBossiere on July 18, 2014
Conscience and law

Conscience and law (Photo credit: Wikipedia)

Azim Shariff and Kathleen Vohs recently had their article, “What Happens to a Society That Does Not Believe in Free Will”, published in Scientific American. This article considers the causal impact of a disbelief in free will with a specific focus on law and ethics.

Philosophers have long addressed the general problem of free will as well as the specific connection between free will and ethics. Not surprisingly, studies conducted to determine the impact of disbelief in free will have the results that philosophers have long predicted.

One impact is that when people have doubts about free will they tend to have less support for retributive punishment. Retributive punishment, as the name indicates, is punishment aimed at making a person suffer for her misdeeds. Doubt in free will did not negatively impact a person’s support for punishment aimed at deterrence or rehabilitation.

While the authors do consider one reason for this, namely that those who doubt free will would regard wrongdoers as analogous to harmful natural phenomenon that need to dealt with rather than subject to vengeance, this view also matches a common view about moral accountability. To be specific, moral (and legal) accountability is generally proportional to the control a person has over events. To use a concrete example, consider the difference between these two cases. In the first case, Sally is driving well above the speed limit and is busy texting and sipping her latte. She doesn’t see the crossing guard frantically waving his sign and runs over the children in the cross walk. In case two, Jane is driving the speed limit and children suddenly run directly in front of her car. She brakes and swerves immediately, but she hits the children. Intuitively, Sally has acted in a way that was morally wrong—she should have been going the speed limit and she should have been paying attention. Jane, though she hit the children, did not act wrongly—she could not have avoided the children and hence is not morally responsible.

For those who doubt free will, every case is like Jane’s case: for the determinist, every action is determined and a person could not have chosen to do other than she did. On this view, while Jane’s accident seems unavoidable, so was Sally’s accident: Sally could not have done other than she did. As such, Sally is no more morally accountable than Jane. For someone who believes this, inflicting retributive punishment on Sally would be no more reasonable than seeking vengeance against Jane.

However, it would seem to make sense to punish Sally to deter others and to rehabilitate Sally so she will drive the speed limit and pay attention in the future. Of course, if these is no free will, then we would not chose to punish Sally, she would not chose to behave better and people would not decide to learn from her lesson. Events would happen as determined—she would be punished or not. She would do it again or not. Other people would do the same thing or not. Naturally enough, to speak of what we should decide to do in regards to punishments would seem to assume that we can chose—that is, that we have some degree of free will.

A second impact that Shariff and Vohs noted was that a person who doubts free will tends to behave worse than a person who does not have such a skeptical view. One specific area in which behavior worsens is that such skepticism seems to incline people to be more willing to harm others. Another specific area is that such skepticism also inclines others to lie or cheat. In general, the impact seems to be that the skepticism reduces a person’s willingness (or capacity) to resist impulsive reactions in favor of greater restraint and better behavior.

Once again, this certainly makes sense. Going back to the examples of Sally and Jane, Sally (unless she is a moral monster) would most likely feel remorse and guilt for hurting the children. Jane, though she would surely feel badly, would not feel moral guilt. This would certainly be reasonable: a person who hurts others should feel guilt if she could have done otherwise but should not feel moral guilt if she could not have done otherwise (although she certainly should feel sympathy). If someone doubts free will, then she will regard her own actions as being out of her control: she is not choosing to lie, or cheat or hurt others—these events are just happening. People might be hurt, but this is like a tree falling on them—it just happens. Interestingly, these studies show that people are consistent in applying the implications of their skepticism in regards to moral (and legal) accountability.

One rather important point is to consider what view we should have regarding free will. I take a practical view of this matter and believe in free will. As I see it, if I am right, then I am…right. If I am wrong, then I could not believe otherwise. So, choosing to believe I can choose is the rational choice: I am right or I am not at fault for being wrong.

I do agree with Kant that we cannot prove that we have free will. He believed that the best science of his day was deterministic and that the matter of free will was beyond our epistemic abilities. While science has marched on since Kant, free will is still unprovable. After all, deterministic, random and free-will universes would all seem the same to the people in them. Crudely put, there are no observations that would establish or disprove metaphysical free will. There are, of course, observations that can indicate that we are not free in certain respects—but completely disproving (or proving) free will would seem to beyond our abilities—as Kant contended.

Kant had a fairly practical solution: he argued that although free will cannot be proven, it is necessary for ethics. So, crudely put, if we want to have ethics (which we do), then we need to accept the existence of free will on moral grounds. The experiments described by Shariff and Vohs seems to support Kant: when people doubt free will, this has an impact on their ethics.

One aspect of this can be seen as positive—determining the extent to which people are in control of their actions is an important part of determining what is and is not a just punishment. After all, we do not want to inflict retribution on people who could not have done otherwise or, at the very least, we would want relevant circumstances to temper retribution with proper justice.  It also makes more sense to focus on deterrence and rehabilitation more than retribution. However just, retribution merely adds more suffering to the world while deterrence and rehabilitation reduces it.

The second aspect of this is negative—skepticism about free will seems to cause people to think that they have a license to do ill, thus leading to worse behavior. That is clearly undesirable. This then, provides an interesting and important challenge: balancing our view of determinism and freedom in order to avoid both unjust punishment and becoming unjust. This, of course, assumes that we have a choice. If we do not, we will just do what we do and giving advice is pointless. As I jokingly tell my students, a determinist giving advice about what we should do is like someone yelling advice to a person falling to certain death—he can yell all he wants about what to do, but it won’t matter.

 

My Amazon Author Page

My Paizo Page

My DriveThru RPG Page

Checking “Check Your Privilege!”

Posted in Ethics, Philosophy, Politics by Michael LaBossiere on July 16, 2014
Privilege (album)

Privilege (album) (Photo credit: Wikipedia)

As a philosopher, I became familiar with the notion of the modern political concept of privilege as a graduate student—sometimes in classes, but sometimes in being lectured by other students about the matter. Lest anyone think I was engaged in flaunting my privileges, the lectures were always about my general maleness and my general appearance of whiteness (I am actually only mostly white) as opposed to any specific misdeed I had committed as a white-appearing male. I was generally sympathetic to most criticisms of privilege, but I was not particularly happy when people endeavored to use a person’s membership in a privileged class as grounds for rejecting the person’s claims out of hand. Back then, there was no handy phrase to check a member of a privileged class. Fortunately (or unfortunately) such a phrase has emerged, namely “check your privilege!”

The original intent of the phrase is, apparently, to remind a person making a claim on a political (or moral) issue that he is speaking from a position of privilege, such as being a male or straight. While it is most commonly used against members of what can be regarded as the “traditional” privileged classes (males, whites, the wealthy, etc.) it can also be employed against people of classes that are either privileged relative to the classes they are commenting on or in different non-privileged class. For example, a Latina might be told to “check her privilege” for making a remark about black women. In this case, the idea is to remind the transgressors that different oppressed groups experience their oppression differently.

As might be imagined, many people take issue with being told to “check their privilege!” in some cases, this can be mere annoyance with the phrase. This annoyance can have some foundation, given that the phrase can have a hostile connotation and the fact that it can seem like a dismissive reply.

In other cases, the use of the phrase can be taken as an attempt to silence someone. Roughly put, “check your privilege” can be interpreted as “stop talking” or even as “you are wrong because you belong to a privileged class.” In some cases, people are interpreting the use incorrectly—but in other cases they are interpreting quite correctly.

Thus, the phrase can be seen as having two main functions (in addition to its dramatic and rhetorical use). One is as a reminder, the other is as an attack. I will consider each of these in the context of critical thinking.

The reminder function of the phrase does have legitimacy in that it is grounded in a real need to remind people of two common cognitive biases, namely in group bias and attribution error. In group bias is the name for the tendency people have to easily form negative opinions of people who are not in their group (in this case, an allegedly privileged class). This bias leads people to regard members of their own group more positively (attributing positive qualities and assessments to their group members) while regarding members of other groups more negatively (attributing negative qualities and assessments to these others). For example, a rich person might regard other rich people as being hardworking while regarding poor people as lazy, thieving and inclined to use drugs. As another example, a woman might regard her fellow women as kind and altruistic while regarding men as violent, sex-crazed and selfish.

Given the power of this bias, it is certainly worth reminding people of it—especially when their remarks show signs that this bias is likely to be in effect. Of course, telling someone to “check their privilege” might not be the nicest way to engage in the discussion and it is less specific than “consider that you might be influenced by in group bias.”

Attribution error is a bias that leads people to tend to fail to appreciate that other people are as constrained by events and circumstances as they would be if they were in their situation. For example, consider a discussion about requiring voters to have a photo ID, reducing the number of polling stations and reducing their hours. A person who is somewhat well off might express the view that getting an ID and driving across town to a polling station on his lunch break is no problem—because it is no problem for him. However, for someone who does not have a car and is very poor, these can be serious obstacles. As another example, someone who is rich might express the view that the poor should not be helped because they are obviously poor because they are lazy (and not because of the circumstances they face, such as being born into poverty).

Given the power of this bias, a person who seems to making this error should certainly be reminded of this possibility. But, of course, telling the person to “check their privilege” might not be the most diplomatic way to engage and it is certainly less specific than pointing out the likely error. But, given the limits of Twitter, it might be a viable option when used in this social media context.

In regards to the second main use, using it to silence a person or to reject the person’s claim would not be justified. While it is legitimate to consider the effects of biases, to reject a person’s claim because of their membership in a specific class would be an ad hominen of some sort.  An ad hominem is a general category of fallacies in which a claim or argument is rejected on the basis of some irrelevant fact about the author of or the person presenting the claim or argument. Typically, this fallacy involves two steps. First, an attack against the character of person making the claim, her circumstances, or her actions is made (or the character, circumstances, or actions of the person reporting the claim). Second, this attack is taken to be evidence against the claim or argument the person in question is making (or presenting). This type of “argument” has the following form:

1. Person A makes claim X.

2. Person B makes an attack on person A.

3. Therefore A’s claim is false.

The reason why an ad Hominem (of any kind) is a fallacy is that the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made).

Because of the usage of the “check your privilege” in this role, I’d suggest a minor addition to the ad hominem family, the check your privilege ad hominem:

1. Person A makes claim X.

2. Person B tells A to “check their privilege” based on A’s membership in group G.

3. Therefore A’s claim is false.

This is, obviously enough, bad reasoning.

My Amazon Author Page

My Paizo Page

My DriveThru RPG Page

     

    Paying College Athletes

    Posted in Business, Ethics, Philosophy, Universities & Colleges by Michael LaBossiere on July 14, 2014
    English: National Collegiate Athletic Associat...

    (Photo credit: Wikipedia)

    One recurring dispute in college athletics has been over whether or not college athletes should be paid. I remember listening to debates over this when I was a college athlete and, decades later, I am still listening to them. One addition to the debate has been over licensing deals—for example, the NCAA has licensed the likeness of college athletes for use in video games and the players have received nothing for this. In fact, players are forbidden from receiving any specific compensation for such things.

    The obvious counter is that the college athletes who are in the big money sports (football and basketball) do get compensation in the form of scholarships, coaching, medical care, etc. Given the cost of higher education these days, a full scholarship to a college can be worth $25,000 a year or even much more (my nephew is attending a college that costs about $42,000 a year).

    Even athletes in the other sports (such as track, cross country, field hockey and volleyball) can receive compensation in the form of scholarships, coaching, and medical care—although typically less than that received by star athletes in the big money sports.

    As such it can be asserted that athletes are already paid—in that they receive valuable compensation for their contributions. In fact, college athletes have been recognized as being employees with the right to unionize—at least for now (this is being challenged legally). As such, the actual dispute is over the amount and nature of the desired compensation—a classic employee-employer dispute.

    Obviously enough, the NCAA and the colleges want to keep the player compensation to a minimal level. However, the fact that they would rather not provide better compensation is not proof that athletes should not receive more.

    While the NCAA and colleges are fine with specific sorts of compensation (such as scholarships), they are rather draconian about college athletes receiving most other benefits. For example, if a college athlete places in a local road race and the award is a gift certificate, the athlete cannot accept it without violating the NCAA rules and possibly being booted from the team. While, as noted above, the NCAA and the college can license the likeness of a player for use in a video game, the player cannot. As such, the vast majority of the money made in college sports flows to the NCAA and the colleges, rather than the players.

    On the face of it, the players should receive compensation commensurate with their contribution. For example, if a player’s likeness is licensed for use in a video game, he should receive a suitable percentage of that deal. As another example, if selling the TV rights to football games bring in millions of dollars, the players who appear on TV should get a proportional cut. Obviously, the value of what the players receive in terms of other compensation must be factored in as well as part of their pay.

    In some cases, the athletes might already be getting fair compensation. However, the star athletes in the big money sports are probably not—given the money they are bringing in.

    The main (and apparently only) argument that the NCAA and colleges advance for not providing commensurate compensation (that is, paying players what they legitimately earn) is that the college athlete should be an amateur who competes “for the love of the sport.”

    I do admit that this has some appeal. When I was a college athlete, I competed for that reason—I loved to race. I still do—and these days I pay the entrance fees to run in road races (although I do still win from time to time). I get the idea of the amateur athlete who is not sullied by crass commerce and not driven by greed.

    Of course, the amateur athlete who is unsullied by greed must be in a matching context: a complete amateur environment driven by the love of the sport. When I was a college athlete, I was in that context. I competed in cross country and track, both of which are not big money sports. I also went to a division III school—so there were no athletic scholarships. The coaches at the college generally followed the same model that is usually seen at public high schools—they had a primary job at the school and coaching was secondary. For example, the cross country coach was also an exercise physiology professor. The football coach also taught classes. So, we were all amateurs competing for the love of the sport—although we did get boxed lunches and the coaches got some pay.

    When everyone is an amateur and the compensation is rather minimal, it certainly makes sense to not pay athletes and to hold them to the standards of being an amateur athlete (versus being a paid professional). However, this is not the case with the big money sports at the big schools.

    First, the top coaches enjoy truly impressive salaries. There are twenty four college coaches who make over $3 million a year. Interestingly, the highest paid public employee in many states is a college football or basketball coach.

    Second, college football is a multi-billion dollar industry and college basketball brings in millions for the colleges and NCAA. Most of this comes from TV revenue. While the players get some of this in the form of scholarships and other compensation, the vast majority of it ends up going to others, such as well-paid NCAA officials.

    Given the extremely generous compensation for everyone else, it would certainly seem that these college sports are not amateur in any meaningful sense of the term and that the context is not one defined by a love of the game. Rather, this is a big money industry in which those doing the vast majority of the work receive very little while a very few benefit greatly from their efforts. In short, college sports mirrors the larger society. The lie used to avoid justly compensating the athletes is that they are amateurs who are supposed to play for the love of the game. Thus, there is a clear inconsistency between the reality of the situation and what is expected of the athletes.

    In terms of becoming consistent, there seem to be two options. The first is to make college sports amateur and played for the love of the sport. This would require following the model of amateur athletics that I mentioned above: minimal compensation for everyone, coaches who are professors first, athletes who are students first, no big money deals, and so on. As should be blindingly obvious, this is not going to happen.

    The second option is to accept that these big money sports are simply a college version of the pro-sports and they should follow that model: the big money remains, but the athletes are recognized for what they really are—professional athletes. This will mean less money for those who are currently enjoying that massive funnel of cash, but this is what is morally and honesty require.

    Sports that are not big money and colleges that are not in the big money can still operate in the spirit of amateur sports and those that are motivated solely by the love of the game and who wish to be true amateurs can compete in those sports or at those schools.

     

     

    My Amazon Author Page

    My Paizo Page

    My DriveThru RPG Page

    Twitter Mining

    Posted in Ethics, Philosophy, Technology by Michael LaBossiere on July 11, 2014
    Image representing Twitter as depicted in Crun...

    Image via CrunchBase

    In February, 2014 Twitter made all its tweets available to researchers. As might be suspected, this massive data is a potential treasure trove to researchers. While one might picture researchers going through the tweets for the obvious content (such as what people eat and drink), this data can be mined in some potentially surprising ways. For example, the spread of infectious diseases can be tracked via an analysis of tweets. This sort of data mining is not new—some years ago I wrote an essay on the ethics of mining data and used Target’s analysis of data to determine when customers were pregnant (so as to send targeted ads). What is new about this is that all the tweets are now available to researchers, thus providing a vast heap of data (and probably a lot of crap).

    As might be imagined, there are some ethical concerns about the use of this data. While some might suspect that this creates a brave new world for ethics, this is not the case. While the availability of all the tweets is new and the scale is certainly large, this scenario is old hat for ethics. First, tweets are public communications that are on par morally with yelling statements in public places, posting statements on physical bulletin boards, putting an announcement in the paper and so on. While the tweets are electronic, this is not a morally relevant distinction. As such, researchers delving into the tweets is morally the same as a researcher looking at a bulletin board for data or spending time in public places to see the number of people who go to a specific store.

    Second, tweets can (often) be linked to a specific person and this raises the stock concern about identifying specific people in the research. For example, identifying Jane Doe as being likely to have an STD based on an analysis of her tweets. While twitter provides another context in which this can occur, identifying specific people in research without their consent seems to be well established as being wrong. For example, while a researcher has every right to count the number of people going to a strip club via public spaces, to publish a list of the specific individuals visiting the club in her research would be morally dubious—at best. As another example, a researcher has every right to count the number of runners observed in public spaces. However, to publish their names without their consent in her research would also be morally dubious at best. Engaging in speculation about why they run and linking that to specific people would be even worse (“based on the algorithm used to analysis the running patterns, Jane Doe is using her running to cover up her affair with John Roe”).

    One counter is, of course, that anyone with access to the data and the right sorts of algorithms could find out this information for herself. This would simply be an extension of the oldest method of research: making inferences from sensory data. In this case the data would be massive and the inferences would be handled by computers—but the basic method is the same. Presumably people do not have a privacy right against inferences based on publically available data (a subject I have written about before). Speculation would presumably not violate privacy rights, but could enter into the realm of slander—which is distinct from a privacy matter.

    However, such inferences would seem to fall under privacy rights in regards to the professional ethics governing researchers—that is, researchers should not identify specific people without their consent whether they are making inferences or not. To use an analogy, if I infer that Jane Doe and John Roe’s public running patterns indicate they are having an affair, I have not violated their right to privacy (assuming this also covers affairs). However, if I were engaged in running research and published this in a journal article without their permission, then I would presumably be acting in violation of research ethics.

    The obvious counter is that as long as a researcher is not engaged in slander (that is intentionally saying untrue things that harm a person), then there would be little grounds for moral condemnation. After all, as long as the data was publically gathered and the link between the data and the specific person is also in the public realm, then nothing wrong has been done. To use an analogy, if someone is in a public park wearing a nametag and engages in specific behavior, then it seems morally acceptable to report that. To use the obvious analogy, this would be similar to the ethics governing journalism: public behavior by identified individuals is fair game. Inferences are also fair game—provided that they do not constitute slander.

    In closing, while Twitter has given researchers a new pile of data the company has not created any new moral territory.

    My Amazon Author Page

    My Paizo Page

    My DriveThru RPG Page

    Anyone Home?

    Posted in Ethics, Philosophy by Michael LaBossiere on July 7, 2014
    English: man coming out of coma.

    English: man coming out of coma. (Photo credit: Wikipedia)

    As I tell my students, the metaphysical question of personal identity has important moral implications. One scenario I present is that of a human in what seems to be a persistent vegetative state. I say “human” rather than “person”, because the human body in question might no longer be a person. To use a common view, if a person is her soul and the soul has abandoned the shell, then the person is gone.

    If the human is still a person, then it seems reasonable to believe that she has a different moral status than a mass of flesh that was once a person (or once served as the body of a person). This is not to say that a non-person human would have no moral status at all—I do not want to be interpreted as holding that view. Rather, my view is that personhood is a relevant factor in the morality of how an entity is treated.

    To use a concrete example, consider a human in what seems to be a vegetative state. While the body is kept alive, people do not talk to the body and no attempt is made to entertain the body, such as playing music or audiobooks. If there is no person present or if there is a person present but she has no sensory access at all, then this treatment would seem to be acceptable—after all it would make no difference whether people talked to the body or not.

    There is also the moral question of whether such a body should be kept alive—after all, if the person is gone, there would not seem to be a compelling reason to keep an empty shell alive. To use an extreme example, it would seem wrong to keep a headless body alive just because it can be kept alive. If the body is no longer a person (or no longer hosts a person), then this would be analogous to keeping the headless body alive.

    But, if despite appearances, there is still a person present who is aware of what is going on around her, then the matter is significantly different. In this case, the person has been effectively isolated—which is certainly not good for a person.

    In regards to keeping the body alive, if there is a person present, then the situation would be morally different. After all, the moral status of a person is different from that of a mass of merely living flesh. The moral challenge, then, is deciding what to do.

    One option is, obviously enough, to treat all seemingly vegetative (as opposed to brain dead) bodies as if the person was still present. That is, the body would be accorded the moral status of a person and treated as such.

    This is a morally safe option—it would presumably be better that some non-persons get treated as persons rather than risk persons being treated as non-persons. That said, it would still seem both useful and important to know.

    One reason to know is purely practical: if people know that a person is present, then they would presumably be more inclined to take the effort to treat the person as a person. So, for example, if the family and medical staff know that Bill is still Bill and not just an empty shell, they would tend to be more diligent in treating Bill as a person.

    Another reason to know is both practical and moral: should scenarios arise in which hard choices have to be made, knowing whether a person is present or not would be rather critical. That said, given that one might not know for sure that the body is not a person anymore it could be correct to keep treating the alleged shell as a person even when it seems likely that he is not. This brings up the obvious practical problem: how to tell when a person is present.

    Most of the time we judge there is a person present based on appearance, using the assumption that a human is a person. Of course, there might be non-human people and there might be biological humans that are not people (headless bodies, for example). A somewhat more sophisticated approach is to use the Descartes’s test: things that use true language are people. Descartes, being a smart person, did not limit language to speaking or writing—he included making signs of the sort used to communicate with the deaf. In a practical sense, getting an intelligent response to an inquiry can be seen as a sign that a person is present.

    In the case of a body in an apparent vegetative state applying this test is quite a challenge. After all, this state is marked by an inability to show awareness. In some cases, the apparent vegetative state is exactly what it appears to be. In other cases, a person might be in what is called “locked-in-syndrome.” The person is conscious, but can be mistaken for being minimally conscious or in a vegetative state. Since the person cannot, typically, respond by giving an external sign some other means is necessary.

    One breakthrough in this area is due to Adrian M. Owen. Overs implying things considerably, he found that if a person is asked to visualize certain activities (playing tennis, for example), doing so will trigger different areas of the brain. This activity can be detected using the appropriate machines. So, a person can ask a question such as “did you go to college at Michigan State?” and request that the person visualize playing tennis for “yes” or visualize walking around her house for “no.” This method provides a way of determining that the person is still present with a reasonable degree of confidence. Naturally, a failure to respond would not prove that a person is not present—the person could still remain, yet be unable (or unwilling) to hear or respond.

    One moral issue this method can held address is that of terminating life support. “Pulling the plug” on what might be a person without consent is, to say the least, morally problematic. If a person is still present and can be reached by Owen’s method, then thus would allow the person to agree to or request that she be taken off life support. Naturally, there would be practical questions about the accuracy of the method, but this is distinct from the more abstract ethical issue.

    It must be noted that the consent of the person would not automatically make termination morally acceptable—after all, there are moral objections to letting a person die in this manner even when the person is fully and clearly conscious. Once it is established that the method adequately shows consent (or lack of consent), the broader moral issue of the right to die would need to be addressed.

     

    My Amazon Author Page

    My Paizo Page

    My DriveThru RPG Page

    Defining Rape IV: Men as Victims of Women

    Posted in Ethics, Law, Philosophy, Politics, Universities & Colleges by Michael LaBossiere on July 2, 2014
    Women on Top: How Real Life Has Changed Women'...

    (Photo credit: Wikipedia)

    In my previous essay, I ended by noting that while college men are the victims of sexual assault by college women, this matter is rarely mentioned. It certainly does not get the attention of the mainstream media. Perhaps because this would run afoul of the current media narrative regarding the rape epidemic on campus.

    Of course, it might be claimed that men cannot, in general, be victims of women. One common view is that men are not at all picky about sex and a man would be fine with a woman taking advantage of him while he was drunk or unconscious. Or, somewhat less extreme is the view that while a man might not be fine with it, he would not be too put out by it. He might feel some embarrassment if the woman was unattractive or might be angry if she gave him a STD, but he (some might claim) would not be psychologically harmed in the way a woman would be harmed. The gist is that men are psychologically incapable of being raped by woman—that is, a man would always consent or, at the very least, would not be very bothered by the sex.

    Even if this were true (which it is not), the fact that a victim of a crime is not as upset as other victims might be would not seem to make it less of a crime. To use an analogy, if Sally is a stoic and is not very upset when her car is stolen, this does not make it any less of a theft than if she was distraught over the loss. As such, even if men are not as bother by women, this would not entail that men are not or cannot be victims. In any case, as will be shown, men are generally not cool with being assaulted by women—despite the bravado and stereotypes.

    Another approach is to argue that men and women are fundamentally different so that women cannot (in general) rape men. Some people think that a man cannot become erect if he does not wish to do so and hence it is impossible for a man to have heterosexual intercourse without his consent. However, this view is on par with claiming that men have an ability to “shut down” an erection when it is a case of “legitimate” rape. This is, unfortunately, no more true than the claim that a woman can shut down a pregnancy when she is the victim of a “legitimate rape.”

    Yet another counter is to claim that while women could sexual victimize men, it does not happen that often—if at all. This would, if true, be wonderful. Sadly, it is not true.

    While it is rarely discussed and never seems to grab headlines, college men are subject to sexual victimization by college women and are emotionally harmed by it.  While men are often presented as happy to have sex with anyone at any time, this is not true and men can be as hurt by sexual victimization as women. So, to claim that a man wants to be raped by a woman is just as awful as claiming that a woman wants to be raped by a man. While it might be true of some, it is certainly not true of most.

    In a mostly ignored study, 51.2% of college males reported being sexually victimized (ranging from unwanted sexual contact, to sexual coercion to rape). Naturally, given that sexual violence is often unreported and men are extremely likely not to admit to being assaulted by a woman, the number of cases could be quite large. But, of course, it is not possible to make an estimate since this would require claiming to know what is unknown. This does not, of course, stop some people from making estimates about unreported assaults on women.

    Interestingly, being “made to penetrate” is not legally classified as a form of rape. Thus, by this definition, a woman forcing a man to have sex with her is not rape. But if a man commits the same act with an unwilling woman, it is rape. This seems to allow sexual victimization of men by women to be dismissed as less serious than the victimization of women by men, all by definition. To use an analogy, this would be like saying that when a man steals from a woman, it is theft. When a woman steals from a man, it is involuntary lending.

    While men are generally not subject to being forcibly raped by women, women do pursue other tactics that mirror those of male rapists including selecting victims who are impaired or unconscious. If having sex with a woman by these means is rape, then having sex with a man by these means should also be rape.

    It might also be claimed that women are not inclined to sexual violence. While the stereotypes cast men as victimizer and women as victims, the terrible truth is that sexual violence is equal opportunity. As the National Geographic reported, a study determined that males and females commit roughly the same amount of sexual violence by the time they reach the age of 18. This is certainly consistent with the claim that college men are subject to sexual assault by women. As such, evil does not discriminate based on sex.

    At this point I might be accused of having nefarious motivations or of playing the old “victim switch” tactic to get men off the hook. However, my goals are merely to insist on a consistent standard when it comes to sexual assault and to call attention to an important truth: sexual victimization is an equal opportunity crime. I am not asserting that we should dismiss or ignore the assaults on women. Rather, I am saying that we should not be blinded to the fact that men are victims as well. If the campus rape epidemic is going to be stopped, we cannot be concerned with just the victims who are women and just the victimizers who are men.

    My Amazon Author Page

    My Paizo Page

    My DriveThru RPG Page

    Hobby Lobby Repost

    Posted in Business, Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on July 1, 2014
    English: A typical contraceptive diaphragm

    (Photo credit: Wikipedia)

    The Supreme Court has continued along its “corporations are people that are more important than you” march with its recent ruling about the right of corporations to impose religious values on its employees. Beyond condemning the ruling, I have nothing new to say, but will re-post two posts I wrote earlier about the matter:

    In the case of Hobby Lobby,  CEO David Green and his family claimed that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.

    The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

    From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.

    From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.

    For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.

    On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception.  However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.

    It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).

    As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.

    As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations.

    U.S Postage Stamp, 1957

    (Photo credit: Wikipedi

    As noted above, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.

    Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.

    In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.

    Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.

    There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:

    Premise 1: A corporation is a person (assumed).
    Premise 2: Slavery is the ownership of one person by another.
    Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
    Conclusion: The ownership of a corporation is forbidden by the constitution.

    This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.

    It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.

    In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.

    This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.

    It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.

    The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.

    The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).

    If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.

    Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.

    My Amazon Author Page

    My Paizo Page

    My DriveThru RPG Page

    Defining Rape III: Intoxication

    Posted in Ethics, Law, Philosophy, Politics, Universities & Colleges by Michael LaBossiere on June 30, 2014
    A half-drunk glass of beer

    A half-drunk glass of beer (Photo credit: Wikipedia)

    Not surprisingly, most sexual assaults on women in college occur when the women are intoxicated. One reason for this is obvious: an intoxicated person is far more vulnerable to sexual predators than a sober person. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on the matter from the standpoint of morality.

    From an oversimplified moral (and also legal) standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus here will be on the impact of intoxication on a person’s ability to given consent. To be a bit abstract, the philosophical concern here is about what might be called the person’s consent agency (or agency of consent). Roughly put, this is the capacity of the person to give proper consent. What counts as proper consent will no doubt vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree considerably about this matter. However, it should suffice for the purposes of this brief essay to go with an intuitive view of proper consent which involves the person having the capacity to understand the situation and the ability to consciously agree. Setting aside the complexities of the matter, I will now turn to the discussion of intoxication.

    Intoxication is, obviously enough, a proportional impediment to agency of consent. Or, in plainer terms, the drunker a person gets, the less capable she becomes of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree (or, as people say, being drunk makes you stupid). When the person has no consent agency at all, having sex with that person would clearly be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the rather important matter of sorting out at what point consent agency is lost. As with all such things, there will be a significant gray area between the paradigm cases and this area will be the most problematic. I will get the easy paradigm cases out of the way first.

    One paradigm case is that in which the perpetrator intentionally intoxicates his victim using what is known popularly as a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.

    Another paradigm case is that in which the perpetrator is an opportunist: he does not drug his intended victim with a “date rape” drug, but finds someone who has rendered herself unconscious or incapacitated through intoxication. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out in a drunken stupor and someone takes my wallet, she has committed theft. Naturally, I could be justly chastised for being so careless—but this would not change the crime.

    A third paradigm case is that in which a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. So much for the clear cases, now is the time for the grey territory between being unimpaired and being unconscious due to intoxication. Somewhere in this large territory lies the point at which a person loses her consent agency and is incapable of actual consent.

    One obvious problem with finding the boundary at which consent agency ends is that this point might occur well before a person has lost the capacity to engage in behavior that would indicate clear consent by an unimpaired person. For example, an intoxicated woman might say “yes” to a request for sex or even actively initiate the act and then actively and enthusiastically participate. Despite the appearance of consent, the woman might actually be incapable of consent—that is, she can engage in consent behavior but has actually lost the capacity to consent.

    If this can occur, it would create a serious moral and practical problem: how can a person tell when another person is capable of consent behavior without being able to give actual consent? This would obviously be important for the person interested in sex as well as those involved in any legal proceedings that might follow.

    It might be countered that as long as a person can engage in consent behavior, the person still has agency of consent. That is, the apparent consent is actual consent. This does have considerable appeal in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a proper “yes” or merely “yes” behavior without true consent. It also would provide a clear basis by which potential witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. This view could be seen as a presumption that behavior indicates agency.

    This view does have considerable appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted into the drive through). When I wake up the next morning and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

    It is worth noting that a decent person would certainly take into account apparent intoxication and out of a sense of ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would hardly be theft. Likewise, if a woman is drunk but making it clear she wants to have sex with a man, the decent thing for the man to do is refuse, escort her safely home and, if necessary, guard her from the less virtuous when she passes out. However, if he accedes to her request, it would seem odd to claim that she had been raped.

    One might also raise the point that it is better to err on the side of caution and assume that a person who is impaired to almost any degree has lost the capacity for consent, regardless of the person’s behavior. This, however, seems to be too low of a standard and there is the practical problem of recognizing such a low level of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

    The last matter I will consider is a scenario in which both parties are intoxicated. In some college sexual assault hearings the man has countered the charge by asserting since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is certainly sound. To be specific, if sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they are raping each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

    In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that legitimately makes the person accountable for his (or her) actions. As with the agency of consent, this can be impaired in varying degrees or completely eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability.

    Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting  another person or not. Thus, if two people are both too intoxicated to consent, they are also both too intoxicated to be culpable.

    The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.

    If this is the case, then when a man and a woman have sex while both are adequately intoxicated, they are raping each other. However, there seem to be few (any?) cases of women charged with raping men—or both parties being charged with rape. Even a cursory search of the web will reveal that men are (almost) uniformly presented as the aggressors while women are the victims. However, if drunken sex constitutes rape, then it would seem that college men are also being raped—by definition. Yet there is little or no concern or outcry regarding this. I will address this matter in my final essay on this subject.

    My Amazon Author Page

    My Paizo Page

    My DriveThru RPG Page

    Defining Rape II: Consent

    Posted in Ethics, Law, Philosophy, Universities & Colleges by Michael LaBossiere on June 27, 2014
    George Will

    George Will (Photo credit: Keith Allison)

    In my previous essay, I presented some groundwork and stage setting for the discussion to follow. In this essay I will take a look at the matter of consent.

    Intuitively, what makes some activities wrong (and often criminal) is the lack of consent on the part of the victim. Theft, for example, is taking property without the rightful owner’s consent. Kidnapping, as another example, is taking or transporting a person without consent. These misdeeds are similar to rape in regards to the lack of consent. In the case of rape, the activity is sexual in nature (to be deliberately vague) and occurs without the consent of the victim. While these simple definitions have appeal, the matter of sorting out what counts as consent and what constitutes acting without consent is rather more complex. To focus the discussion I will use a recent and controversial example.

    Conservative intellectual George Will triggered a bit of a firestorm among liberal columnists and bloggers with his June 6 column about the alleged epidemic of campus rape. The claim that triggered the most outrage was his assertion that “when they make victimhood a coveted status that confers privileges, victims proliferate.”

    Some of those attacking Will interpreted him as asserting that women want to be actual victims—that is, that women want to be raped. While some awful people do believe just that, this reading might not be Will’s actual position. Another interpretation, which seems supported by the rest of his column, is that some women will embrace a very broad definition of “rape” and interpret their experiences to match that definition. The motivation, at least as it seems to Will, is to gain a “coveted status” that “confers privileges.” My concern here is not with whether or not Will is correct in this matter. Rather, I want to examine what he takes as an example of how one becomes a member of this “privileged” class of rape victims.

    Will uses an example taken from a report about Swarthmore College. In 2013, a woman was in her room with a man “with whom she’d been hooking up for three months”:

    “They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

    As Will notes, six weeks later the woman reported that she had been raped. Will seems to hold that the woman was not actually raped and that she decided to join the “privileged” class of victims by redefining her experience as rape. Others might claim that she had been “brainwashed” by feminist ideology or political correctness to regard her experience as rape. Setting aside the matter of motivation, there is an important question of whether the incident was or was not rape. Those embracing what some would regard as the ideology of leftist feminism would presumably regard it as rape. As Will shows, those embracing a specific form of conservative ideology presumably consider it to not be rape. Obviously, the adherents of the ideologies will regard their view as self-evident and the view of the other as not only in error but driven by vile and wicked motivations. Since I am not a prisoner of either ideology, I can examine the matter more objectively, looking for merits and flaws in the various accounts.

    On the face of it, it is easy enough to contend that the incident is a case of rape. While the man did not threaten the woman or use force to have sex with her, he did engage in a sexual act after she had basically said that she did not want to have sex with him. Sex without consent is rape and thus she was raped.

    To use an analogy, suppose for a few months I had allowed a friend to take money from my wallet, but then we decided (or so I think) that this money taking will no longer be part of our relationship. She reaches for my wallet and I basically say “No, I don’t want to give you money.” She stops, but then returns to my wallet and takes my money. She has, obviously enough, committed an act of theft: she has taken my property without my consent.

    While this view has considerable merit, it is also worth considering an alternative. One obvious complication of the matter is that consent is a matter of communication and communication can be problematic. This creates the practical (and moral) problem of sorting out when consent has been given, when it has not been given, and when a person should know the difference.

    In the specific case under discussion, the two parties had been having consensual sex (“hooking up”) for three months. On the face of it, once a relationship is established then it is not unreasonable to accept an assumption of consent. To use an analogy, I keep beer and snacks on hand for my Sunday Pathfinder game. My longstanding friends do not need to explicitly ask permission to get the beer or snacks, since there is a reasonable assumption that they have standing permission to do so. I would, in fact, have an obligation to tell them if certain beer or snacks were off limit—which would then obligate them to not take the specified beer or snacks.

    In the case at hand, let it be assumed that the woman changed the relationship from “hooking up” to friends without benefits. This would legitimately remove the assumption of consent (unless otherwise informed). As such, the man could no longer assume that she was consenting unless he was told otherwise.

    The woman also notes that she “basically” told him she didn’t want to have sex with him—which would clearly show a lack of consent. The man should have left it at that and not tried again.

    However, a devil’s advocate might make certain claims. The first is that the brains of young people are different from adult brains, especially in areas of judgment and impulse control. The second is that the desire for sex is extremely strong and even the prospect of sex impedes rational judgment. The third is that people in general and young people in particular are bad at communication. The fourth is that communication is not merely a matter words—that consent or lack thereof can also be conveyed by actions. Such a devil’s advocate might allege, in his devilish way, that the young man, driven by basic biological desires and impeded judgment, decided to make another attempt at sex and wrongly interpreted, perhaps due to his immature brain and lack of communication skills, her lack of action as consent. That is, he honestly believed that he had consent and had not raped her. She might have also shared this belief for six weeks.

    The obvious reply is that none of the devil’s advocate’s claims matter: what matters is that the woman said that she did not want to have sex and then the man had sex “with” her. Thus, it was sex without consent and hence the man is guilty of rape. While this view does have great appeal, it might be worth considering the following analogy.

    Suppose I have a nice truck and that my friend Sally really likes driving around in nice trucks. She also prefers to not drive alone. After we have been friends a while, I agree to let her drive my truck and also agree to go with her on her drives. This goes on for three months and I find that I have gotten tired of this aspect of the relationship and tell her so. As far as I can tell, she agrees.

    Then I invite her to come over and sit in my truck. After a while, she reaches for the keys in my pocket and I say “no, I am not letting you drive and I am not riding with you.” Rebuffed, she pulls her hand back. But, a few minutes later she is digging around in my pocket for the key. I do nothing. She takes the key and puts it in the ignition. I say and do nothing. She starts the truck and takes me along for the ride.  I am tired, so I just sit back and let her drive. When she gets back, I take the key out of the ignition. Six weeks later I call the police and accuse her of kidnapping me and stealing my truck.

    This situation does seem parallel to the original situation. After all, theft is taking property without consent and kidnaping is transporting a person without consent. If the woman did not consent in the original situation, then I did not consent in the analogical situation. If the man was a rapist, then Sally was a thief and a kidnapper. However, I suspect that people would react to my claim that Sally kidnapped me and stole my truck by saying that I should have at the very least said something when she reached for the keys a second time—by letting her simply take them and drive away with me without even another word would seem to show that I consented to the trip. After all, her reaching for the key and so on could be seen as requests for consent—I could have easily replied by saying “no.” Of course, it could be countered that this view is wrong: Sally is now a kidnapper and truck thief because of my original statement which withheld consent.  After all, it might be argued, saying “no” once suffices—and until an explicit, verbal “yes” is given the original “no” is in place.

    Naturally, some might want to reject the truck analogy while holding that the original case was one of rape. One obvious avenue of reply is to argue that sexual assault is a special matter and thus it is not analogous to the truck scenario. As such, the man is a rapist but Sally is not a kidnapper and thief.  I might even be accused of trivializing rape by presenting such an analogy. In regards to the first reply, the challenge is to spell out what breaks the analogy—what is the difference that renders the comparison untenable? In regards to the second, it is a mere ad homimen.

    The example considered in this essay did not explicitly involve drinking—however, many sexual assaults on campus do. In the next essay the moral impact of intoxication will be considered.

     

    My Amazon Author Page

    My Paizo Page

    My DriveThru RPG Page

    Follow

    Get every new post delivered to your Inbox.

    Join 2,002 other followers