Back to Prindle Institute

The Responsibilities of Sports Organizations

photograph of remote in hand with TV in background displaying NFL logo on screen

Deshaun Watson, the NFL quarterback who recently moved to the Cleveland Browns in a $230 million deal, has been credibly accused of sexual harassment or assault by 24 massage therapists. These allegations are not new: at the time that the Browns signed him this summer, there were 22 therapists who had accused him. Just this week, he settled out of court with 20 of his accusers, though several cases still persist.

Watson is not the only sports player to be accused of horrendous behavior. Manchester City’s Benjamin Mendy has been charged with raping five women; a player for their city rivals Manchester United, Mason Greenwood, is currently on bail after accusations that he raped and assaulted his then-girlfriend. (I have previously written about Ben Roethlisberger and Cristiano Ronaldo, the allegations they face, and how fans should respond.)

Neither player currently plays an active role for their club, but there have been calls for Greenwood to be reinstated – one only needs to search his name on Twitter to see those protesting for his return. The fans calling for his return either do not care that he has done something awful or they do not believe he could do such a thing (in spite of the video and audio clips his ex-girlfriend posted documenting his abuse).

Should these players be allowed to play after credible allegations?

That’s the question I want to take up – and, though I’ll focus on sex offences and hideous behavior towards women, my argument covers a whole range of bad behavior.

Relatedly, Kurt Streeter has argued in The New York Times that Watson should be barred from ever playing in the NFL: “A signal would have been sent: The N.F.L. is no longer willing to put the games and the myth and the money ahead of absolutely everything.” This needs to be a lifetime ban because previous suspensions for awful behavior – like domestic violence – have been for a few games, or half a season, and have had little impact and sent no such message. (There are reports that Watson will be banned for one year.)

Streeter’s argument really does seem to turn on sending a message: “The league needs to send the most potent message it can that sexual misconduct won’t be tolerated.” And his argument can generalize to all the other sports where players act with arrogance and impunity. But is this a good argument? And can it stand against the fact that Watson claims he is innocent and has yet to be found guilty in any legal realm?

Watson’s lawyer has claimed that “happy endings” were a common part of massage, while also claiming that Watson never had any sexual contact during a massage. A peculiar defense. Yet Watson was not charged on any of nine counts put before a grand jury in Texas. The importance of noting this is not, though, to argue that he did not do these things, rather it is to introduce an important distinction between the legal and the moral – and their standards of proof.

One potential response is that we should let the legal system do its job. This defense might carry some weight if we had a perfect legal system, but it is no surprise that rich and powerful sportspeople sometimes avoid appropriate legal sanctions. When Ben Roethlisberger faced allegations of sexual assault, the responding officer had earlier posed for a photo with Roethlisberger and arguably did not treat is accuser’s allegations with the seriousness we might expect – some witnesses claim that the officer was clearly on Roethlisberger’s side.

Further, there are issues with the standards of proof used in the legal realm. You need to show beyond a reasonable doubt that a crime has been committed. But in the moral realm, we might accept that there is a reasonable doubt over whether somebody has committed an offense while still thinking it is very likely they have done it – and wanting to distance ourselves from them as much as possible. You might not want to hang out with a former friend plausibly accused of murder who gets off on a technicality. We cannot rely solely on the legal system in making our moral judgments.

Still, this raises a further question:

should sports be in the moral business at all? Aren’t sports an escape from the rest of the world, a place where we can simply relax and enjoy the skills on display?

Well, no. This might be true of, say, a game of pick-up basketball or a pub league game of soccer. But it isn’t true of the major sports that deal in billions of dollars and attract millions of fans. These are major social institutions. And these institutions have influence.

Much as there’s a powerful objection to engaging with regimes that violate human rights – because to do so is to blemish ourselves morally – couldn’t there also be a similar objection to engaging with people who have shown themselves to be awful? One way of sketching this point is as Streeter’s argument: that major social institutions need to send a message that bad behavior won’t be tolerated. There might be a few reasons for this, but here’s a plausible one: social institutions should try to encourage morally good behavior!

But we can also sketch this in another way and extend Streeter’s argument. It isn’t just that the NFL needs to send a message that such behavior won’t be tolerated, it’s that the NFL’s own moral character is on the line. When FIFA, the world-governing body for soccer, placed the 2022 World Cup in Qatar, despite major concerns about workers’ rights (which have been validated in no uncertain terms), they signaled that they think it’s okay to engage with Qatar. But this isn’t just a signal, they revealed what they think is okay, and in doing so they blotted their own moral character. So, the Browns have blotted their own moral copybook by signing Watson, and the NFL blots its copybook by allowing him to play.

We can bolster this argument with one final important point: the fans are disgusted. Of course, some fans don’t care, some fans are willing to overlook this behavior. But many are appalled that the Browns have signed Watson and do not want him to play for the organization. Diehard Browns fan Robyn Lockher put the point forcefully:

It’s very difficult as a woman to love and support the team you grew up with, that’s been a family tradition your whole life, when it just feels like you’re not being respected or taken seriously by the organization at all.” She thinks Watson could have taken them to the Super Bowl, but thinks it isn’t worth it: :It’s just a shame we sold our soul to Deshaun Watson.

Fans want their teams to be the sort of thing they can respect, not employers of rapists or supporters of human rights abuses. And that solidifies the argument for why Watson should be banned:

we expect our sports and our teams to be morally decent and to care about where they spend their money and who they platform.

And we don’t just want our side to win, we want them to win in the right way, with players we can love and respect. That’s the point of these major sports institutions – the leagues and the teams – and when they fail to hit the standards fans expect they thwart the enjoyment they are supposed to provide.

Finally, I want to go over two potential rebuttals. Firstly, it’s worth noting the possibility of a mistake. The soccer player Ched Evans was found not guilty of rape on appeal after spending time in prison. This certainly does not show us that he had done nothing morally wrong, but it does open the possibility that some people will be credibly accused of a crime or a moral wrongdoing and not in fact have done it.

So, what should we do in those cases? Well, if an injustice is discovered, we should work to remedy it. But some injustices will be undiscovered, some good people will be banned while having done nothing wrong. My position is that it is a cost worth bearing. The alternative is to let rapists and abusers soak in the adoration of thousands of fans. The message that sends, what that indicates, might be more harmful than the possibility that someone unjustly has their career cut short.

Secondly, we need to be clear that this position does not undercut the possibility of redemption. On the one hand, we might think that even if a player is convicted and serves a sentence, we should allow them to reintegrate into society. America does a very bad job of this: it has high recidivism rates, people often struggle to find a job upon release, and many felons cannot even engage in the political system by voting after their release. Allowing sportspeople to return to a position of prominence once they have completed their sentences might be an important message against this punitive system.

But that doesn’t apply in our cases. Employing a sexual harasser who denies it, cheering for a rapist, idolizing a man who would assault his girlfriend and leave her bleeding – this is what we should seek to prevent. But were these figures to be found guilty, serve their time, and then reform, we would be dealing with a very different sort of case. One in which a person has shown that they recognize that what they have done is wrong. Though there may still be good arguments against allowing reformed abusers to compete, the argument above applies with less force: we would not be employing merely a wrongdoer, we would be supporting a wrongdoer who has shown us that they can recognize this wrongdoing and attempt to live their life in a better way. The moral story there is much more complicated.

Sexual Violence in the Metaverse: Are We Really “There”?

photograph of woman using VR headset

Sexual harassment can take many forms, whether in an office or on social media. However, there might seem to be a barrier separating “us” as the user of a social media account, from “us” as an avatar or visual representation in a game since the latter is “virtual” whereas “we” are “real.” Even though we are prone to experience psychological and social damage to our virtual representations, it seems that we cannot – at least directly – be affected physically. A mean comment may hurt my feelings and change my mood – I  might even get physically ill – but no direct physical damage seemed possible. Until now.

Recently, a beta tester of Horizon Worlds – a VR-based platform of Meta – reported that a stranger “simulated groping and ejaculating onto her avatar.” Even more recently, additional incidents, concerning children, have been reported. A safety campaigner stated that “He has spoken to children who say they were groomed on the platform and forced to take part in virtual sex.” The same article talks about howa “researcher posing as a 13-year-old girl witnessed grooming, sexual material, racist insults and a rape threat in the virtual-reality world.” How should we understand these virtual assaults? While sexual harassment requires no physical presence, when we attempt to consider whether such actions represent a kind of physical violence, things get complicated as the victim has not been violated in the traditional sense.

This problem has been made more pressing by the thinning of the barrier that separates what is virtual from what is physical. Mark Zuckerberg, co-founder and CEO of Meta, has emphasized the concept of “presence” as “one of the basic concepts” of Metaverse. The goal is to make the virtual space as “detailed and convincing” as possible. In the same video, some virtual items are designed to give a “realistic sense of depth and occlusion.” Metaverse attempts to win the tech race by mimicking the physical sense of presence as much as possible.

The imitation of the physical sense of presence is not a new thing. Many video games also develop  a robust sense of  presence. Especially in mmo (massive multiplayer online) games, characters can commonly touch, push, or persistently follow each other, even when it is unwelcomed and has nothing to do with one’s progress in the game. We often accept these actions as natural, as an obvious and basic part of the game’s social interaction. It is personal touches like these that encourage gamers to bond with their avatars. They encourage us to feel two kinds of physical presence: present as a user playing a game in a physical environment, and present as a game character in a virtual environment.

But these two kinds of presence mix very easily, and the difference between a user and the avatar can easily be blurred. Having one’s avatar pushed or touched inappropriately, has very real psychological effects. It seems that at some point, these experiences can no longer be considered as merely “virtual.”

This line is being further blurred by the push toward Augmented Reality (AR) which places “virtual” items in our world, and Virtual Reality (VR) where “this” world remains inaccessible to user during the session. As opposed to classic games’ sense of presence, in AR and VR, we explore the game environment mainly within one sense of presence instead of two, from the perspective of a single body. Contrary to our typical gaming experience, these new environments – like that of the Metaverse – may only work if this dual presence is removed or weakened. This suggests that our experience can no longer be thought of as taking place “somewhere else” but always “here.”

Still, at some level, dual presence remains: When we take our headsets off, “this world” waits for us. And so we return to our main moral question under discussion: Can we identify an action within the embodied online world as physical? Or, more specifically, Is the charge of sexual assault appropriate in the virtual space?

If one’s avatar is taken as nothing but a virtual puppet controlled by the user from “outside,” then it seems impossible to conclude that gamers can be physically threatened in the relevant sense. However, as the barrier separating users from their game characters erodes, the illusion of presence makes the avatar mentally inseparable from the user, experience-wise they become increasingly the same. Since the aim of the Metaverse is to create such a union, one could conclude that sharing the same “space” means sharing the same fate.

These are difficult questions, and the online spaces as well as the concepts which govern them are always in development. However, recent events should be taken as a warning to consider preventive measures, as these new spaces require new definitions, new moral codes, and new precautions.

On the Art of Evildoers

close-up photograph of Philip Roth

The fall of a literary star is something to behold. At the beginning of April, Blake Bailey was the toast of the literary world; his new biography of the novelist Philip Roth had been published to acclaim, landing on The New York Times best-seller list. But by the end of the month, Bailey’s fortunes were laid low by horrific allegations made against him, including that he raped two women as recently as 2015 and “groomed” middle school girls when he was a teacher in the 1990s. After they surfaced, his publisher, W.W. Norton, took the rare step of stopping promotion and shipment of the book just days after his literary agent dropped him as a client.

One might very well be tempted to say, “good riddance.” And there is no reason to defend Bailey personally; the accusations against him are credible and multiple. Yet Norton’s decision raises an important philosophical question: how evil does a person have to be in order for it to be impermissible to disseminate their art?

One problem we are immediately confronted with is the issue of arbitrariness. Are there any criteria for setting a threshold for the badness of a person such that it is impermissible to disseminate their art? One fruitful perspective on this question comes from rule consequentialism, which evaluates the rightness of acts according to how much the rules permitting or obligating those acts would promote overall good consequences, however the latter are spelled out. This perspective helps with the problem of arbitrariness because it prompts us to compare, in a morally meaningful way, different thresholds in terms of their hypothetical consequences. Not publishing Bailey’s book implies a rule setting the threshold for permissible publication at rape or sexual assault (or, presumably, worse). What would be the effect of consistently applying that rule as compared to a world in which the rule permitted disseminating just about anyone’s art?

Shockingly, not a few great artists have either admitted to or been credibly accused of rape or worse. William Golding, author of Lord of the Flies, details his attempted rape of a 15-year-old girl named Dora in his unpublished memoir Men and Women. William S. Burroughs killed his wife; Norman Mailer came close. Eldridge Cleaver famously wrote about raping white women as an act of revolutionary violence. Of course, Woody Allen stands credibly accused of sexually assaulting his daughter, Dylan Farrow; Roman Polanski was actually convicted of drugging, raping, and sodomizing a 14-year-old girl. And then there’s Bill Cosby. And Hitler, whose Mein Kampf chillingly lays out the dictator’s plans for the extermination of world Jewry.

The point is this: applied consistently, the rule implied by the act of not publishing Bailey’s work would deprive us in some cases of great works of art, and in other cases of important information. Publishers, producers, and art dealers, hesitant to invest in works that they might end up having to pull, might refuse to enter into contracts with artists without intrusive background checks. Yet the world of the consistently applied rule would also be better than ours in certain respects: victims would not be retraumatized by the fame of their abusers; artists might be deterred from committing heinous behavior by the thought that it would negatively affect their careers. How one weighs these different effects is a matter of fine judgment. In my view, the benefits seem speculative, while the costs seem probable and cumulatively great. But I could be wrong.

Another idea is that it is wrong to benefit people who are guilty of heinous moral wrongs, perhaps because it encourages or emboldens them to continue behaving as they do, or because — if they continue to commit badly — we may take on partial responsibility for their wrongdoing. Here, I think, we can do better than simply throwing up our hands and concluding that we must benefit wrongdoers if we want to benefit from their art— or at least, that we must benefit only them. For example, in Bailey’s case, Norton could have decided to donate all of the proceeds minus Bailey’s royalties from his book to rape survivors’ organizations. This outcome would surely not encourage Bailey, as it constitutes a clear condemnation of him. This would also be a great way of establishing some symbolic distance between the publisher and the author.

There are other compelling arguments against publication from a non-consequentialist perspective. Some may think that it is simply wrong to honor individuals who are guilty of heinous moral wrongs. By “honor” I mean something like expressing admiration for a person in a way that tends to enhance their social status. Perhaps this is wrong because such individuals do not morally deserve to be honored — and not because honoring them would bring about bad consequences. Publishing a person’s book certainly does honor them; thus, it is wrong to publish. The trouble with this argument is that it is arbitrary: when is a moral wrong so heinous that the obligation applies? Is there any reason to prefer the rule that sets the threshold for heinous acts at the killing of ten people rather than the killing of one? There doesn’t seem to be. Without any reason to draw the line at rape or sexual assault rather than, say, the extermination of the entire human race, we might as well choose the higher bar. But if we draw the line at the higher bar, then in effect publishing anyone is permissible.

That we nevertheless tend to believe it is wrong to honor people who don’t deserve it helps to explain why the question whether it is wrong to publish evil people will remain with us for the foreseeable future. Human beings have a well-documented aversion to ambivalence, preferring to hold either wholly positive or wholly negative attitudes towards persons and things. But publishing evil people puts us in the uncomfortably ambivalent position of having to appreciate and honor their talents while abhorring their deeds. This will never be a natural fit for beings like us.

The Ethics of “Media Men” Lists, One Year Later

Photo of two people holding signs at a protest

Editor’s note: This article contains use of a vulgarity.

At around this time last year a Google spreadsheet titled “Shitty Media Men” began being shared by a group of women who worked in various positions involving the media. The document was intended to be a place where women could anonymously make reports about inappropriate conduct of men who they worked with, ranging from unsolicited advances or generally creepy behavior, all the way to accusations of sexual assault and rape. Moira Donegan, the creator of the list, explained her intention at The Cut as “an attempt at solving what has seemed like an intractable problem: how women can protect ourselves from sexual harassment and assault.” As Donegan goes on to note, “informal alliances that pass on open secrets and warn women” called “whisper networks” have been common for a long time. In creating a more widely accessible document, however, Donegan wanted to provide access to this information to a much wider audience, allowing those who might not have been part of a whisper network to gain information and share their experiences.

Once the existence of the list became public knowledge, however, it started to receive backlash. Some worried about the claims on the list being unsubstantiated, and that the men accused on the list were unable to respond to the accusations made therein. And there were repercussions for being named on the list, with some men having investigations performed by their employers into their conduct, and others being fired. The prominent worry, then, was that the accusations made on the list could be false, and the consequence of a false accusation is the punishment of an innocent man.

Recently, one man named on the list, Stephen Elliott, filed lawsuit against Donegan for damages, to the tune of $1.5 million. On the “Shitty Media Men” list Elliott was accused of sexual harassment and rape, amongst other things. In an extensive reply, Elliott has denied all accusations, and claims that as a result of being accused he has suffered in the form of reduced book sales, being cut off from professional contacts, and suffering psychologically.

The fear that innocent men will suffer from being falsely accused is becoming increasingly common in the wake of the #metoo movement, as well as with what appears to be a very gradual shift towards taking women’s accusations of sexual assault seriously. For instance, the response to the recent swearing in of Brett Kavanaugh to the Supreme Court has been divided between those who believed that the testimony of Dr. Christine Blasey Ford ought to have been given much more consideration, and those who believed that to take the testimony of Dr. Ford seriously would be to risk derailing a man’s career on the basis of accusations that they thought did not meet the proper standards of proof. Recently, Donald Trump expressed that it was “a scary time” for men, even going so far as to act out a one-man show in which a falsely accused son explained melodramatically to his tearful mother why he had lost his job.

The ethical worry surrounding things like the “Shitty Media Men” list, then, is that it potentially puts innocent men at risk: merely being named on the list has potential consequences, and since anyone can make accusations anonymously, the worry is that not only will such false accusations be possible, but prevalent. Of course, the existence of such lists also have the potential to bring about a lot of benefits. As Donegan explains, it is often the case that “for someone looking to report an incident or to make habitual behavior stop, all the available options are bad ones”; notably, that “police are notoriously inept at handing sexual-assault cases” and that within a corporate environment, “human-resource departments…are tasked not with protecting employees but with shielding the company from liability.” The benefits of such lists, then, are that women can help other women avoid potential harm, and that women can have an alternative option to make a report. While those like Elliott claim psychological harms from being named on the list, the existence of such a list could also prevent a significant amount of psychological harm suffered by women whose reports are not taken seriously, or who feel that they really have no other way to name their accusers.

One way that we can evaluate whether it’s a good or bad thing to have a “Shitty Media Men” list is by weighing the potential goods versus the potential harms that could come about as a result of its existence. As many commentators have noted, the fear of men being falsely accused tends to be exaggerated: although it is difficult to get an exact idea of how common false accusations are, various sources have put the rate at around 5%, although that number might be as low as 2% or as high as 10%, at least in America. At the same time, while it is again very difficult to get a sense of the numbers, there is good reason to think that sexual assault is generally underreported. It seems likely that providing additional avenues for reporting would then help with the problem of underreporting, which would be a significant benefit to many women. If these lists result in significantly more potential benefits than potential harms, then, there is reason to think their existence really is a good thing.

Calculating costs and benefits in this way, however, may not seem to be very satisfying. Indeed, we might think it would be better if the existing options that women had to report assault weren’t so bad, perhaps if police, human resource departments, and political leaders were better trained. And it may seem callous to suggest that men who are falsely accused are an unfortunate but necessary collateral damage. That being said, given the obstacles that women continue to face in having their reports taken seriously, the continued existence of such lists seems inevitable. In considering whether this is a good or bad thing, we need to keep in mind both the relative paucity of false accusations, and the benefits that the existence of the “Shitty Media Men” list could bring.


This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

Opinion: Kavanaugh Was the Wrong Choice

photograph of Mississippi senator Cindy Hyde-Smith and Brett Kavanaugh smiling while sitting on a couch

It’s a headline we’ve all probably seen in some form during the past month: allegations of sexual assault against nominated justice Brett Kavanaugh disrupted his confirmation to the Supreme Court of the United States. Updates on the interruptions surrounding his confirmation have dominated news cycles since alleged victim of Kavanaugh’s forceful advances, Christine Blasey Ford, testified against him in front of the Senate Judiciary Committee last month. To quickly recap, here is a timeline of significant events that have transpired with Kavanaugh’s confirmation:

           

July 9: President Donald Trump announces his pick as Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court bench.

September 16: Christine Blasey Ford’s accusations of Kavanaugh sexually assaulting her while they were both in high school go public in a Washington Post report.

September 17: Kavanaugh issues a statement denying Ford’s accusations.

September 23: A second woman, Deborah Ramirez, comes forward with sexual misconduct allegations from when the two were in college together. Kavanaugh subsequently denies these allegations.

September 26: A third woman, Julie Swetnick, accuses Kavanaugh of targeting girls for sexual assault. Kavanaugh also denies these allegations.

September 27: Both Kavanaugh and Christine Blasey Ford testify before the Senate Judiciary Committee.

September 28: Senate Judiciary Committee votes to send Kavanaugh’s confirmation to the Senate floor.

October 1: White House directs FBI to interview anyone deemed relevant in their investigation of Kavanaugh.

October 6: The Senate confirms Kavanaugh to the Supreme Court.

These events have brought the push against the #MeToo movement to a head, as Kavanaugh’s defenders elicited many similar arguments that were used in defense of the men who were accused of rape/sexual misconduct soon after the movement’s birth including Louis CK, Al Franken, and Matt Lauer. Perhaps the most commonly-used of these arguments is the presumption of innocence. Actor, comedian, and producer Jeremy Piven stated after being accused of sexual assault that “lives are being put in jeopardy without a hearing, due process or evidence.” In this, Piven refers to the subverting of formal legal processes in these accusations by publicly labeling men as sex offenders when there is no concrete proof or general consensus supporting the accusations. Thus, to Piven, the notion of “innocent until proven guilty” seems to have been wrongly undermined in these situations. More relevant to Kavanaugh’s case, Hans A. von Spakovsky of Fox News writes, “if you believe in the presumption of innocence, based on what we know now it would be unfair to assume that Kavanaugh is guilty of sexual assault and deny him a seat on our nation’s highest court based on uncorroborated accusations.”

Furthermore, Kavanaugh’s backers argued that the instances of sexual assault his accusers detail occurred in 1982, when Kavanaugh was only 17 years old and the culture surrounding sexual assault was much different than it is today. Rod Dreher, an editor at the American Conservative, tweeted, “I do not understand why the loutish, drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge…This is a terrible standard to establish in public life.” In 1982, long before the #MeToo movement and American society’s mainstream prioritizing of sexual consent, forced sex between young people was merely seen as “fooling around” or “boys being boys.” The extent and severity of sexual assaults on young women had not yet been exposed to the public, so most people were not engaged in discourse about the issue. In fact, the first nationally-observed Sexual Assault Awareness Month was not until April of 2001. Therefore, as Kavanaugh supporters argued, how could Kavanaugh have understood the need for consent before discussions about consent were even being had in the mainstream?

Whether for the sake of partisan politics, women’s rights, or molding the future of conversations about sexual assault, Democrats in Congress fought vehemently to block Kavanaugh’s confirmation to the Supreme Court. Dianne Feinstein, a Democratic Senator from California and ranking member of the Senate Judiciary Committee, wrote in an article for The Los Angeles Times, “Supreme Court justices should not be an extension of the Republican Party…I strongly oppose Judge Kavanaugh’s nomination to the Supreme Court.” Feinstein’s argument raises a fair partisan concern, but there are other, more ethically-grounded reasons why Kavanaugh should not have been confirmed to the Supreme Court and why the previously-mentioned defenses of him fall short.

What Kavanaugh’s supporters seem not to realize is that Kavanaugh was not being tried as a criminal, although he and Ford’s testimonial process bore great resemblance to a criminal trial. Rather, Kavanaugh was undergoing intense scrutiny to deem whether he is worthy of holding one of the most prestigious and permanent offices in the United States’ government. Therefore, the presumption of innocence does not apply to this situation. There will be no verdict of “guilty” or “innocent,” but rather one of “fit” or “not fit” to serve on the Supreme Court. Being denied the confirmation would not have “ruin[ed] Judge Kavanaugh’s life,” as Republican Senator Lindsey Graham of South Carolina believes it would have, rather it would have prevented a potential sexual deviant from holding one of the most ethics-centered positions in the U.S. Even if one holds a sound belief that Kavanaugh is innocent of committing sexual assault, why should our country take the risk? Especially in a political climate where sexual assault cases are at the forefront, we cannot afford to do so. Politics aside, President Trump and the Republican Senate could have nominated and confirmed a judge with similar politics and competency as Kavanaugh, but without his questionable past.

Should Kavanaugh’s past be allowed to affect his future? The short answer is that it shouldn’t matter. The extended answer requires us to step back and look at Kavanaugh’s confirmation from a broader view. Bearing the entire country’s already horrific rape culture in mind, Kavanaugh and his individual life should have no bearing on the nation’s future. According to the National Center for Victims of Crime, approximately one-third of perpetrators of juvenile sexual abuse are themselves juveniles, with an overwhelming majority being male. By confirming Kavanaugh to the Supreme Court, the President and Congress have sent a resounding message to the rest of the nation that high school boys can sexually assault their female peers and still grow up to hold one of the highest offices in the nation. The danger of sending this message greatly outweighs threats to Kavanaugh’s individual future.

Unfortunately, the Senate disregarded these points and sided with partisanship over morality and logic to confirm Kavanaugh to the Supreme Court anyways. While the future of our nation looks bleak with the lifetime appointment of Kavanaugh, what can this debacle teach us about the intersection of ethics and politics? Perhaps the most important lesson to take is that public officials, especially politicians, should be judged based on the ethicality of all of their actions, and how they react to those actions. Kavanaugh, vying for the most ethics-centered position in the nation, was accused of an unethical action, and reacted with anger and brute denial rather than understanding and acknowledgement of a social climate in the United States that is dangerous for women. Whether he is guilty or not, his refusal to recognize the backlash that survivors of sexual assault commonly face implies that he does not see consent to be tied directly to ethics. In today’s politics where sexual assault is at the forefront of modern law, the U.S. needs a new justice who will view these cases with objectivity and poise, will set a good example for the rest of the nation, and will have a sound moral compass. Brett Kavanaugh is not that justice.

On Supposed Harm

Image of Sen. Grassley with two people behind him

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the fifth article of that series.   

This past week, Brett Kavanaugh claimed his life and family were significantly harmed by Dr. Ford recounting her experiences with him: “My family and my name have been totally and permanently destroyed by vicious and false additional accusations.” The possibility that he may not receive the position of Supreme Court Justice has been framed by many as a punishment for behavior he performed as a youth, and therefore too stringent a comeuppance. Further, Kavanaugh “losing out” on this opportunity has been cast as part of the current climate brought about by the #metoo movement where supposedly men must be on their guard and are under unjustified attack.   Continue reading “On Supposed Harm”

Sexual Abuse and the Rhetoric of Powerful Men

Photograph of Brett Kavanaugh with his hand raised in anger

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the third article of that series.   

Brett Kavanaugh’s nomination has been contested since Dr. Christine Blasey Ford alleged that Kavanaugh sexually assaulted her three decades ago. Since Ford, Deborah Ramirez and a third accuser, Julie Swetnick, also have alleged sexually inappropriate behaviour from Kavanaugh.  Initially, Republicans attempted to rush through the nomination. But on facing public outcry about their seeming disregard for normal vetting processes, the Republicans permitted Dr. Blasey Ford to testify at a congressional hearing this past week. Dr. Blasey Ford’s controlled testimony about her experience has triggered a nation-wide distillation of grief and rage from sexual assault survivors.

In the wake of #MeToo, women are rejecting silence about their abusers en masse. Men are starting to get alarmed. Here, I focus on men as accused and women as accusers in part because it is reflective of the norm – one in five women are raped in their lifetime, while one in seventy-one men will get raped. Also, men are overwhelmingly represented in powerful positions, and are beneficiaries of social machinery that operate to keep them there. The suggestion that this gendered distribution of power could be challenged is raising serious anxiety for the Republicans, the party with an overwhelmingly male face. As one anonymous White House lawyer summed it up: “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. “

Previously, the burden of responsibility for rape allegations has always been borne by the victim. Women are routinely scrutinized for being the recipients of sexual assault, while men’s actions are diminished as ”horseplay”, or drunken, youthful antics. Here, too, there are gendered laws as to how drink affects agency: a man who drinks automatically has reduced culpability for his actions, while a woman who drinks is de facto responsible for what a man does to her.

Now that the winds appear to be shifting slightly to ask more accountability from men, men are reacting with outsized emotions. Brett Kavanaugh’s petulant tirade following the testimony of his accuser, Dr. Blasey Ford, implied that he was owed one of the highest offices in the land without being subjected to scrutiny. And yet this appears to have worked for Kavanaugh – righteous male rage is an effective strategy to redirect narratives, empathy, and power to male perpetrators rather than to victims of sexual assault.

This indefatigable entitlement also characterizes a broader backdrop wherein men who have been accused by numerous women of misconduct are seeking returns to their former prominence.  Jian Ghomeshi, the Canadian media personality who was accused of sexual abuse by twenty women, was recently given a prestigious platform in the New York Review of Books. Ghomeshi’s self-indulgent essay came under fire for its mischaracterization of his offenses (for example, Ghomeshi said ”several” women had come forward rather than the actual number of twenty, and he characterized his actions, which included punching women in the head, non-consensual choking, and workplace harassment as being ”emotionally thoughtless”). Ghomeshi also expressed claims to newfound empathy, an empathy which seems misplaced in its primary fixation on other accused offenders rather than for the victims of his actions. Widely derided as an editorial choice, the publication of Ghomeshi’s essay triggered the departure of NYRB’s editor, Ian Buruma.  Rather than concede poor professional judgment in publishing an article that was neither fact-checked or published with journalistic due diligence, Buruma mourned that he simply wanted to hear from Ghomeshi after he was tried by a ‘court’ of social media, but found himself ‘pilloried’ in turn.  

This example reflects a common strategy of the sexual politics surrounding #MeToo: men rhetorically adopting the position of hapless victim of hearsay and public shaming, asking for ‘due process’ – whatever that is supposed to mean outside of a judicial system.  Surprisingly enough, judicial-sounding tropes of ‘courts’ and ‘due process’ in the context of public opinion have been rejected by none other than Mitt Romney.  In 2017, Romney tweeted in support of Leigh Corfman against Roy Moore, sayingInnocent until proven guilty is for criminal convictions, not elections.” Mitt Romney has a point. This rhetorical strategy may seem persuasive on its surface, but does not hold up to scrutiny. ‘Innocent until proven guilty’ and ‘due process’ are concepts which reflect a high standard reserved for criminal and civil prosecution, because inflicting punishment by the state is reasonably held to a high standard of proof.

Public opinion, on the other hand, does not and need not operate beyond the shadow of a doubt. Most of our decisions about people’s characters in everyday life and politics are made with reasonably plausible levels of certainty, rather than courtroom levels of certainty.  What these pleas for impossibly high standards of proof in talking about rape truly advocate is preventing any outing of powerful men as sexual offenders. But powerful men do not need our continued support. They need it least of all in a world where only six out of every 1000 rapists will ever end up in prison and it takes sixty female accusers to persuade a court that one powerful man is a rapist. And yet, these same men who rail against their accusers should be the first to seek to clear their names by formal avenues.  If Brett Kavanaugh were truly convinced of his own innocence, he should have pleaded for an FBI investigation, rather than Dr. Blasey-Ford.

Today, op-eds abound asking whether high-profile sexual offenders have finished their time-out yet, or ask whether #MeToo is ‘going too far’, revealing a strong identification and concern for powerful men who have abused their power. Surprisingly, these same voices show a complete lack of curiosity and vision regarding the present and future of victims who have come forth in the tidal wave of confessing their experiences, often at great personal cost.  When do they get to reclaim their power, productivity, joy, and carefree lives?

In this pivotal historical moment, it is important to reflect and critically scrutinize the use of hyperbole as a rhetorical power play. Misapplied uses of language can obfuscate who are the real victims in an imbalanced state of affairs.  Misleading rhetoric can even re-victimize those who have already been violated, while reaffirming the status quo. As Aristotle proposed in the first book of the Rhetoric, citizens and thinkers must peel beneath rhetorical performances to evaluate where the better case for justice lies. It may not necessarily rest with those who are protesting the loudest.

 

We Listen to Accusers, Should We Listen to the Accused?

"Jian Ghomeshi" by Ontario Library Association liscenced under CC BY 2.0 (via Flickr).

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the second of that series.

Our culture has arrived at a moment of reckoning. Substantial strides have been made towards protecting victims of sexual assault and punishing those responsible. The perceived privilege of wealth and power can no longer shield the wealthy and powerful from facing deserved punishment for wrongful actions. But has the pendulum swung too far? In our efforts to unconditionally support victims have we crossed into automatically believing accusers? In doing so, have we failed to consider the account of the accused?

Continue reading “We Listen to Accusers, Should We Listen to the Accused?”

Disrespect for Women—Indelible in the Hippocampus

Two women holding a sign that says "I believe Dr. Christine Blasey Ford"

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the first of that series.

On Thursday, September 27th, Dr. Christine Blasey Ford appeared in front of the Senate Judiciary Committee to discuss her allegation that Supreme Court Nominee Brett Kavanaugh attempted to rape her at a high school get together in the early 1980s. Judge Kavanaugh also testified at the hearing, denying the allegations without qualification.  When asked repeatedly if he would support an FBI investigation that might potentially clear his name, he dodged the question.

By Friday morning, it seemed all but certain that the Kavanaugh nomination would be approved by the committee. There had been some speculation that Senator Jeff Flake (R-AZ) might be a holdout, but a statement released by the senator Friday morning indicated that he would vote to move the candidate forward after all.  Then something remarkable happened. Two passionate women approached Senator Flake with a message: “You’re telling all women that they don’t matter. That they should just stay quiet because if they tell you what happened to them, you’re going to ignore them.”

For many women, this nomination is, essentially, a litmus test for misogyny.  What’s more, it is taking place in a political context in which women already have reason to feel that they aren’t being taken seriously.  In this case, it’s up to a primarily male committee to decide which violations of a woman’s body and dignity deserve to be heard and investigated.

Navigating one’s relationship to one’s body is a challenging and ever-evolving existential feature of being human. No person lives a life untouched by this—we all experience scarring and blemishes, weight loss and weight gain, aging and wrinkling.  Looking on with very little control, our bodies often feel less like who we are and more like vessels in which we are trapped. Current cultural norms exacerbate this existential challenge to maddening levels in the case of women in particular because we are made, in countless ways, to feel as if we are reducible to our bodies.  Nevertheless, when we try to assert any meaningful sense of ownership over them, we are met with resistance. We are told whether and which violations of our bodies matter, and how much they matter. We are not only told that we are reducible to our bodies, we are told which features of our bodies we are reducible to.  

Aristotle argued that virtue is a social enterprise. Successful societies encourage and assist in the development of virtuous citizens.  Young citizens learn good habits by watching the behavior of role models in their governments and communities. We can only hope that today’s young men and women aren’t modeling their traits of character with respect to how to treat women on the behavior of contemporary politicians. Aristotle’s own attitudes toward women weren’t worthy of emulation either, but he was right that young people look to older people to determine how they should behave. They need better role models when it comes to the treatment of women—role models who understand that women’s interests should be taken seriously and their dignity should be respected.

Respect for the dignity of women dictates that women are treated always as autonomous beings, not as prizes in the alpha male Olympics. This goal is, of course, undermined when future presidents brag about being powerful enough approach women and grab them by the genitals and nominees to the Supreme Court boast about female conquests in high school yearbooks and then tell obvious lies when asked about it years later.

Respect for the dignity of women requires the acknowledgment that men and women alike are the authors of their own narratives, and female stories are successful and compelling even in the absence of physically stunning leading ladies.  Our success or failure as women has nothing to do with what we look like, how old we are, or how much we weigh. The understanding of women as creators of their own destinies is undermined by comments like the one then-candidate Trump had for his opponent, Carly Fiorina, in the Republican primaries: “Look at that face, would anybody vote for that?”

Respect for the dignity of women is undermined when we are treated as if we are epistemic inferiors—like we don’t know good evidence from bad evidence—especially when that evidence concerns our bodies. Dr. Ford, a well-respected college professor with dozens of publications, was treated as if she might simply just be confused about the attempted rape. Republicans on the Senate Judiciary Committee were quick to acknowledge that she was a good, credible witness.  During a break, after Dr. Ford had offered her testimony, Senator Orrin Hatch (R-UT) told reporters that he found her to be a nice, attractive woman.  On the topic of whether he believed what she had to say, he said, “It’s too early to say. I don’t think she’s uncredible. But it’s way early.”  Credible, nice people don’t typically invent conspiracy theories to unfairly affect the machinations of government, so what is Hatch trying to say here?  Similarly, after Dr. Ford’s testimony, Senator Lindsey Graham (R-SC) said, “I think something happened to Dr. Ford. I’m gonna listen to Brett Kavanaugh.”  After Kavanaugh’s testimony, Graham said, “I am now more convinced than ever that he didn’t do it, that he’s the right guy to be on the court.”  President Trump got involved in similar speculation.  He indicated a willingness to listen to what Dr. Ford had to say, but also said, of Kavanaugh, “I can only say this, he is such an outstanding man, very hard for me to imagine that anything happened,”

There is a decent amount of speculation that Dr. Ford is not lying, she’s simply mistaken.  This may be one way of interpreting the seemingly contradictory message that Dr. Ford is nice and credible, but that Judge Kavanaugh should be confirmed and is being treated unfairly.  Dr. Ford and Judge Kavanaugh are making statements that can’t both be true. All things being equal, the appropriate response seems like it ought to be suspension of judgment until more facts are known.  That isn’t what happened here. Instead, the conclusion is that Dr. Ford must be mistaken. Knowledge by acquaintance is fairly easily won in our day-to-day lives. For some reason Dr. Ford is being treated as if identifying her rapist in this case is tricky, even though she knew him before he raped her. Women get the message—when the word of a woman is in conflict with the word of a powerful man, it’s probably the man who remembers the event correctly.  In fact, it’s so likely that it is the man who remembers the event correctly that there is no reason for any additional investigation.  

A woman doesn’t have to take the harrowing step of testifying in front of a Congressional committee to have the experience of being treated as if she doesn’t know how to assess evidence.  Legislation across the country forces women’s hands when it comes to access to family planning, contraception, and abortion services. 38 states have “informed consent” laws in place according to which women seeking an abortion must be given a packet of information selected by the state legislature.  They must then wait some period of time during which they are supposed to reflect on the information given to them, often 24 hours. The information on which they are being asked to reflect is not information they sought out, it is unsolicited, and often unwanted, advice from the state legislature on what type of evidence women should take seriously when it comes to their bodies.  The implication is that women don’t know which considerations to take seriously on their own.

In a surprise turn of events, Senator Flake was moved by the words of the women who expressed that they were feeling marginalized.  He changed his vote. It didn’t affect the outcome in committee, but all parties involved know that Judge Kavanaugh is unlikely to win a vote on the Senate floor without Flake’s support.  Flake indicated he would vote no unless an FBI investigation was done into Ford’s allegations. Perhaps all is not lost, maybe some senators are proper role models after all. Then again, the investigation has been limited in scope and is not supposed to last longer than one week. Women’s interests should be given consideration, but not as much consideration as political interests.

 

How Should We Consider Brett Kavanaugh’s Sexual Assault Allegation?

photograph of a woman holding a sign with the slogan "kava-nope" and a picture of Brett Kavanaugh

For several weeks, coverage of the already-controversial proceedings surrounding the confirmation of Supreme Court nominee Brett Kavanaugh has been dominated by the possibility of sexual misconduct on the part of the nominee. Prior to Christine Blasey Ford’s sexual assault allegation, Kavanaugh was already regarded by many to pose a threat to women’s rights. Those voices have now redoubled, resulting in the nomination committee delaying a vote on Kavanaugh’s confirmation until after Ford has testified before the committee. Kavanaugh has denied the allegation.

Given a standoff between two conflicting individual claims—and, as of yet, no formally presented evidence—there is no point to arguing about the validity of Ford’s allegation. Nor would it be fruitful to delve into anecdotes reflecting each party’s character: such a discussion may be interesting, but ultimately comes down to hearsay. Instead, let us take this moment to consider the full ramifications of Ford’s allegation. How should the nomination committee proceed to maintain its ethical integrity?

It seems clear that the decision to delay a scheduled vote in light of the allegation was a sound one. An appointment to the Supreme Court is a decision that will affect politics, policy, and therefore the lives of millions of Americans for years if not decades to come. Unlike the winners of elections, members of the Supreme Court are appointed for life; they will not be removed from their position except in the most extreme cases, let alone in the next election cycle. This suggests that any decision made by the Senate in this situation should be a deliberate rather than a hasty one. It is true that the United States government does eventually need a full Supreme Court to be operating as was intended, so there is a good reason to avoid indefinite delay, but the Court has managed for more than a year with only eight justices, and the court’s role in the government is rarely especially time sensitive—there is no reason to begrudge the committee another few weeks or even months in order to be sure of the correct decision.

When the committee has heard Ford’s testimony, allowed Kavanaugh to respond, and examined the available evidence, what should its reaction be? Perhaps more importantly, what should our reaction be? What are the circumstances that would justify denying Kavanaugh’s confirmation? The most extreme case would be if Kavanaugh were convicted of sexual assault. In that situation, most people would agree that appointing him to the court would be unethical. But it is worth investigating exactly why one would hold this view. Is it a problem to have committed any crime? Some would say yes, especially considering the Supreme Court’s role in interpreting laws for the national legal system. But should that include all crimes, including traffic violations? Most people would not hold themselves to the same standard. A compromise might be to take only felonies or violent crimes under consideration. And would this edict have a statute of limitations? The allegation against Kavanaugh is from when he and Ford were both in high school; can we entertain the possibility of dramatic changes in personality over the span of several decades? Then again, the case is mounting in favor of a pattern of unacceptable behavior on the part of Kavanaugh: a second allegation has been brought to bear, this time from Kavanaugh’s Yale classmate Deborah Ramirez.

Furthermore, should all public officials be held to the same standard? Is it only because Kavanaugh’s potential position involves the administration of law, or is it a matter of putting any kind of criminal in any position of power? The answer to this question would have major implications outside of this case, as allegations of misconduct are brought up in elections around the nation.

Another way of looking at this problem is to ask what is achieved by keeping someone off the bench because of a past crime. There are two distinct possibilities: either the crime compromises the ability of the perpetrator to carry out the duties associated with their position, or the denial of the Supreme Court seat is an extension of the punishment for the perpetrator’s crime. The goal is either to protect the American people from a dangerous agent, or to mete out retribution for a crime.

This conclusion informs our decision about less extreme hypotheticals around Kavanaugh’s case. He has not been convicted of a crime, and the assault alleged by Ford would have taken place when Kavanaugh was a minor, meaning that even if he had been convicted at the time, there would be no continued legal consequences in force today. If keeping Kavanaugh off the Supreme Court were only a form of retributive justice, it would be a difficult argument to support. However, if the aim is to judge Kavanaugh’s overall fitness for the court, taking Ford’s allegation under consideration might be prudent. While it could be argued that Ford’s testimony is very convenient to a perceived liberal political agenda, this fact alone should not be enough to disregard her testimony altogether. Her speaking out is no more politically expedient to the left than her silence would have been to the right. In a case outside of the political sphere, we would not assume ulterior motivation from an alleged victim of sexual assault.

The Moral Messages of Violence in Media

Season two of the The Handmaid’s Tale returns with darker themes and more overt torture and sexual violence directed at the majority female cast. The dystopian drama depicts the practical consequences of misogynistic theocracy that takes power in the face of environmental collapse and widespread infertility, set in an eerily similar near-future America.

The violence in The Handmaid’s Tale is often compared to another hulking series, Game of Thrones. Both use liberal amounts of violence against women to keep their plot moving, but to different effect:

The Handmaid’s Tale isn’t glamorizing atrocities against women, exactly, or sanitizing them in the way that Game of Thrones or other prestige dramas might sanitize rape. The brutality is the point—the show wants us to experience the logical extension of institutionalized misogyny and theocratic governance.”

Indeed:

In shows like True Detective and Game of Thrones, the focus on female debasement is often criticized precisely because female suffering is positioned as entertainment. What happens on The Handmaid’s Tale is different, as violence against women plays out as a kind of morality tale.”

Visceral scenes in books, TV, and movies are a way of conveying the lived experiences and realities that audiences might struggle to relate to. In speculative fiction like The Handmaid’s Tale, showing in detail what would result from misogynist value systems and authoritarian, theocratic regimes can bring home how horrible the lives of the oppressed would be.

Art helps us to relate to experiences and realities that are different from our own, and can have a positive moral impact for this reason. People that read more novels have been shown to have greater emotional intelligence. However, when the perspectives and experiences are particularly graphic and violent, or run the risk of normalizing or sanitizing the persecution or rate of violence against an oppressed group, this raises questions about the ethics of continuing to portray the experiences of violence in detail.

Should we need to experience the pain of others to have their suffering be morally salient to us?

Legislators who become more feminist when they have daughters occupy an interesting dialectical space. While it is a positive step of course, it is good to adopt policies that recognize the fundamental equality of people the fact that they had to care for a daughter in order to tap into the moral reality is more than a bit distressing.

A further complication is the notion that there may just be an epistemically unbridgeable gap between communities that rely on one another for support regarding their experiences. It may just not always be possible to fully grasp another person’s everyday reality. It would be a great misfortune to discover immovable obstacles might bar someone from fully sympathizing with another person and experiencing the appropriate moral emotions regarding their plight.

Moral emotions such as sympathy, indignation, care, and regret play different roles of significance depending on the ethical theory you favor. Consequentialist views such as utilitarianism focus not so much on the emotional or motivational landscape that leads to action, but rather the result of our behaviors. If you make people have a better life out of indifference or kindness, it amounts to the same thing from an ethical perspective for utilitarians. Other views on morality heavily favor the emotions; care ethics and feminist views focus on our relationships to one another and tending to our roles appropriately. A behavior done out of sympathy would have a different moral assessment than the same behavior done out of indifference.

Given these considerations, we could reflect on art that attempts to bring pain and suffering into view in different ways. If the value in question is one of developing the appropriate moral response to suffering, we may ask: is this really necessary? (Isn’t this a case where we should really be able to get to the moral emotions on our own, as in the case of the legislators realizing women are people only when they’ve faced a daughter of their own?) Or, are there countervailing concerns, such as those raised in the discourse around the sexual violence in Game of Thrones? (Is this violence normalizing an already troubling reality?)

There are rich and nuanced questions regarding the consumption of art that includes graphic and detailed violence against marginalized groups. It puts pressure on how we conceive of our moral burdens in relating to one another, and how we experience the messages media sends us.


This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

On Bad Artists, Good Art

Photograph of an older TV with "The Bill Cosby" displayed on it

It is becoming a common occurrence to read in the news that one of your favorite actors, musicians, filmmakers, or other celebrity does not have the quality of moral character that you perhaps thought they did. Examples are plentiful: Bill Cosby has been convicted on three cases of aggravated assault against women (and been accused of many more); Harvey Weinstein was recently indicted on rape chargers; Kevin Spacey has been accused of sexually propositioning a minor; Spotify recently decided to remove the songs of R Kelly from the platform amid many allegations of sexual assault; and most recently (at least, at the time of writing this) Rosanne Barr’s racist tweets resulted in the cancellation of the reboot of her show Rosanne. What inevitably follows each new accusation, indictment, arrest, or general revelation are articles, opinion pieces, and discussions online and in print asking the same question: is it okay for me to watch shows, or movies, or listen to music, made by people who have done reprehensible things? Continue reading “On Bad Artists, Good Art”

Rape by Deception And the (Im)morality of Law

From “It’s On Us” to the MeToo campaign, sexual assault on college campuses and the world at large has garnered a great deal of attention in the past 10 years. Many universities have begun focalizing their commitment to Title IX and their no tolerance policy for sexual assault. Title IX enables the majority of sexual assaults that occur on these campuses to stay within the campus community and university judicial process, and this avoidance of the public criminal justice system is not immune to criticism. However, surrounding communities, whether it be through alienation or gentrification, are not always quick to get involved in campus crimes. Indiana colleges are no different, but an incident that occurred on Purdue University’s campus in February 2017 has many in the surrounding community, and the nation, upset. In an article titled “Bangert: Sex, lies and … wait, that wasn’t rape in a Purdue dorm?” Journal and Courier columnist Dave Bangert reacts to the acquittal of ex-Purdue student Donald Grant Ward, who admitted that in 2017 he knowingly had sex with a student under the false pretences that he was her boyfriend. Ward’s trial and subsequent comments by his lawyer have sparked a debate around the large question: Is rape by deception rape? And possibly more importantly, should rape by deception be considered a criminal offense?

To give some context, Purdue University saw 37 reports of rape during its 2016 school year, and though the 2017 statistic have not yet been released, it is likely that Ward’s case will be considered in these statistics, in light of the university’s reaction. Though 12 Indiana jurors found Ward not guilty of rape in February 2018, Purdue University barred Ward from campus immediately following the incident in February 2017. In other circumstances, such a discrepancy between Purdue’s campus policies and the Indiana criminal justice system could have Indiana citizens frustrated, considering the fact that Purdue is a state-funded University. However, members of the local community — and even prosecutors — seem to take the University’s side over the courts.

But what exactly is rape by deception? And how is what Ward did not considered a criminal offense? In a 2017 article in the Yale Law Review, Luis E. Chiesa explains the legal riddle of what many call “rape by deception.” Chiesa explains, “When people lie to obtain money, we call it theft. When they lie to enter private property, we call it trespass. When they lie to obtain sex… we have no idea what to call it.” Though there is no broad legal consensus about rape by deception, countries like Israel have successfully tried those convicted of it. However, detractors could use these very cases to point out why a rape-by-deception law could have unintended consequences. In 2010, Israeli Arab Sabbar Kashur was convicted of rape after having sex with a woman that was under the impression he was Jewish.  Some argue that this case was racist and in part fuelled by tensions between Jewish Israelis and Muslim Israelis. Increasing the penalty for any crime could fuel and contribute to existing inequalities in the criminal justice system, with the potential for uneven and unjust enforcement.

But supporters of a rape-by-deception law see it as no different from laws that protect property. In New Jersey, one legislator proposed a rape-by-deception law in 2014, after a grand jury found a William Allen Jordan, who lied about his professional status, nationality, and marital status to have sex with Mischele Lewis, not guilty of sexual assault by coercion. Though Jordan actually admitted to defrauding Lewis, the jury still decided he had not broken any law. Singleton aimed to remedy this by introducing a bill that recognized “sexual assault by fraud” and defined it as “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”

Assemblyman Singleton supported this measure, telling those who opposed the bill to ask themselves: should the law “afford less legal protection to a person’s body than it does to that person’s property?” After all, he asked, “if it is a crime to deceive individuals out of their property, how can it be lawful to deceive them out of their bodies?

When Singleton’s bill was introduced, it did not even make it out of the Assembly Judiciary Committee. This could be in part due to the attention it garnered in the media, with fervent anti-rape-by-deception articles being written in the months leading up to the 2014-2015 legislative session. Many who opposed this bill, and the concept of rape by deception in general, ranged from defence attorneys to actually defence sexual assault survivors. Lafayette Attorney Kirk Freeman, the Defence Attorney who represented Donald Grant Ward in 2017, was vocal about his opposition to a rape-by-deception law in an interview with local news station WLFI. Freeman argued that what Ward did — sneaking into his peer’s bedroom and pretending to be someone else — is “not rape just in the fact that lots of women this weekend are going to have sex with Navy Seals, going to have sex with football heroes, going to have sex with guys that rescue kittens from the middle of the interstate, and are going to have sex with men who tell them I love you and I’m ready for a commitment. Just because they are lying or being deceptive doesn’t make it rape.” Some might argue that Freeman’s statements are insensitive, facetious, and even sexist. However, does Freeman have a point? Would expanding the law to include rape by deception really open the door to legally prosecute anybody who lies for sex?

Some legal scholars, such as Jed Rubenfeld, would argue no. Rubenfeld believes that the problem with defining sex by deception as rape is the fact that modern American rape laws fail to correctly define or uphold the concept of consent. In his essay “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy,” Rubenfeld uses the example of rape defined as sex with an unconscious person. The idea behind this statute is that somebody without consciousness is unable to consent, but if one takes a closer look at many of these laws, one notices that “rape will be found only if the intoxication was not self-induced.” In effect, modern American law still puts the burden of not getting raped on the victim, and Rubenfeld argues it is exactly this legal problem that influences legal attitudes toward rape by deception. Rubenfeld, in the end, contends that “courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all.” This idea could in part explain why Jordan was found guilty of fraud, but was not found guilty of sexual assault by coercion in 2014, and by Ward was acquitted in 2018.

From speeding on the highway to jay-walking in the city, many would agree that just because something is a crime, doesn’t make it morally wrong. However, Defence Attorney Kirk Freeman also asserted that “Just because something is not right doesn’t make it a crime.” Though many critical of rape culture might applaud the very idea that rape by deception is even considered unethical, Freeman’s statement unveils a deeper problem. What is the line between what is considered unethical and what we think should be illegal? This question, and the cases of both Jordan and Ward, demands we decide who and what the law is designed to protect, and how much value our ethical conscious holds in the laws that govern us.

Trusting Women and Epistemic Justice

An anonymous woman holding up a sign that says #MeToo

Over the past three months, public figures have been exposed as serial sexual harassers and perpetrators of sexual assault. Survivors of harassment and assault have raised new awareness of toxic masculinity and its effects in a short period of time.

However, as time goes on, supporters of the movement have been voicing rising concerns that something is bound to go awry. There is an undercurrent of worry that an untrustworthy individual will make an errant claim and thereby provide fodder for skeptics and bring the momentum of the movement to a halt. In response to this, it may seem like more vetting or investigation of the claims is the way forward. On the other hand, wouldn’t it be unfortunate to erode trust and belief in women’s stories in hopes of keeping the very momentum in service of hearing women’s voices?

Continue reading “Trusting Women and Epistemic Justice”

Roy Moore’s Tainted Senate Campaign

A photo of the U.S. Capitol dome through trees.

In the past weeks, several women have accused Republican senatorial candidate Roy Moore from Alabama of sexual assault. As the December 12 election nears, Moore has yet to drop out of the race, and most people, including voters and several prominent Republicans, have yet to criticize him or suggest that he drop out of the race. Multiple women have come forward and accused Moore of sexual assault when he was in his 30’s and serving as an assistant district attorney; one of the women was only 14. The Washington Post launched an investigative article on November 9, and D.C. has avoided dealing with the accusations in wake of the upcoming special election. Debate continues over whether or not Moore should drop out of the election.

Continue reading “Roy Moore’s Tainted Senate Campaign”

Is There a Problem With Scientific Discoveries Made by Harassers?

A scientist taking notes next to a rack of test tubes.

The question about bias in science is in the news again.

It arose before, in the summer, when the press got hold of an inflammatory internal memo that Google employees had been circulating around their company. The memo’s author, James Damore, now formerly of Google, argued that Google’s proposed solutions to eradicating the gender gap in software engineering are flawed. They’re flawed, Damore thought, because they assume that the preponderance of men in “tech and leadership positions” is a result only of social and institutional biases, and they ignore evidence from evolutionary psychology suggesting that biologically inscribed differences in “personality,” “interests,” and “preferences” explain why women tend not to hold such positions.

Continue reading “Is There a Problem With Scientific Discoveries Made by Harassers?”

A Story Seldom Told: Sexual Assault In Agriculture

"Agriculture," by StateofIsrael liscensed under CC BY 2.0 (via Flickr)

Recently, sexual assault in Hollywood has been a catalyst for bringing up the topic of abuse and the institutions that place women in vulnerable positions in which assault happens. Harvey Weinstein, Kevin Spacey, and Ben Affleck are only a few Hollywood figures who have been accused of sexual harassment and assault recently. The voices of those abused in Hollywood are being heard, as they should be. However, there is another group suffering from the same abuse, yet few are aware. Sexual assault in the agricultural industry is a pervasive issue seldom discussed, yet it impacts hundreds of women who often feel voiceless and powerless before, during, and after abuse.

Continue reading “A Story Seldom Told: Sexual Assault In Agriculture”

Is it O.K. to Watch Louis C.K.?

A photo of Louis CK at an awards ceremony

Allegations of Louis C.K.’s sexual misconduct—as well as his published response—came out this week, hot on the heels of similar allegations concerning Kevin Spacey. Leaving aside the morality of C.K.’s actions, there is the question of the general public’s response in regard to the media he has produced. HBO has already dropped him from the Night of Too Many Stars and removed his shows from its service in order to distance itself from his work. Was this an ethically informed decision, and, if so, should audiences respond in kind? Even if HBO hadn’t pulled his shows–and considering that they are still available through other services–are fans of the comedian obligated to cease watching C.K. because of his actions? In broader terms, should the morality of an artist be taken into account in the consumption of their art?

Continue reading “Is it O.K. to Watch Louis C.K.?”

The Problem with Uber

"Dundas Square" by Michael Gil liscened under CC BY 2.0 (via Flickr)

Uber has been taking the world of city transit by storm and has become the poster-child of the modern “gig economy.” At first glance, Uber’s service seems like a universal improvement over traditional taxi services: the app makes hailing a cab convenient for passengers, and the drivers are given complete flexibility to work as little or as much they like.

Continue reading “The Problem with Uber”

Telling Stories, Seeking Justice: The #MeToo Movement

"Women's March Austin-1" by Lauren Harnett liscensed under CC BY 2.0 (via Flickr)

When Tarana Burke served as a youth worker, she heard her “share of heartbreaking stories from broken homes to abusive or neglectful parents.” A little girl, Heaven, reached out to Burke to talk in private, relaying stories of “her mother’s boyfriend who was doing all sorts of monstrous things to her developing body.” Unable to handle the horror, Burke interrupted and directed the girl to a different counselor. Haunted by her response, Burked reflected, “as I cared about that child, I could not find the courage that she had found. I could not muster the energy to tell her that I understood, that I connected, that I could feel her pain.” Shocked and hurt by the rejection, Heaven walked away, and Burke remembers the moment: “I watched her put her mask back on and go back into the world like she was all alone and I couldn’t even bring myself to whisper…me too.”

Continue reading “Telling Stories, Seeking Justice: The #MeToo Movement”