In April of this year, ethicists Peter Singer and Jeff McMahan wrote an op-ed in The New York Times addressing questions of how we ought to approach issues of sexual consent in the case of severely cognitively or verbally disabled individuals. The op-ed came as a response to the Anna Stubblefield trial. Stubblefield was a disability rights advocate accused of sexually assaulting a disabled young man in her care, known to the court records as DJ.
The controversy surrounding the trial arose from the fact that DJ had severe cerebral palsy and was unable to communicate sexual consent verbally or otherwise unambiguously (for instance, he could not write down whether he had consented to Stubblefield’s advances). The communication method through which Stubblefield claimed to have received consent from DJ was a discredited Ouija-board like technique called “facilitated communication” that the judge ruled inadmissible. DJ’s inability to communicate also meant that it was unclear whether or not he was cognitively disabled as well. This had further implications for DJ’s ability to consent, as consenting to anything requires an understanding as well as an acknowledgement of what it is that one is consenting to, and, as the op-ed points out, a sufficiently cognitively impaired individual might not be able to understand the “significance of sexual relations between persons.”
The moral ambiguity of this situation comes from the fact that by the standards set in this trial, disabled individuals like DJ are both protected from predation but also denied the right to any kind of romantic or sexual relationship. There is some possibility that Stubblefield and DJ were indeed in a loving and consensual relationship for which she was sentenced to 12 years in prison.
Singer and McMahan suggested this moral ambiguity can be resolved as follows:
“If we assume that he is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation. These are, after all, difficult to articulate even for persons of normal cognitive capacity. In that case, he is incapable of giving or withholding informed consent to sexual relations; indeed, he may lack the concept of consent altogether. This does not exclude the possibility that he was wronged by Stubblefield, but it makes it less clear what the nature of the wrong might be. It seems reasonable to assume that the experience was pleasurable to him; for even if he is cognitively impaired, he was capable of struggling to resist.”
This statement generated a substantial amount of outrage. In a piece for Current Affairs magazine, tastefully titled “Now Peter Singer Argues It Might Be Okay to Rape Disabled People,” Nathan Robinson interpreted Singer’s statement as saying, “if someone is intellectually disabled enough, then it might be okay to rape them, so long as they don’t resist, since a lack of physical struggle justifies an assumption that someone is enjoying being raped.” That is, he accuses Singer of dismissing the gravity of a disabled person being raped because they might not understand “the meaning and significance of sexual violation” and of recklessly defending a rationalization that potential predators might use.
Hot on his heels was blogger and psychiatrist Scott Alexander of the blog SlateStarCodex. In a post titled “Determining Consent,” Alexander argued that Singer’s arguments were better interpreted not as “this guy doesn’t have a concept of consent, so you can’t violate it”, but rather “this guy doesn’t have a concept of consent, so we need to fall back to the next best thing,” which would be something in the space of using nonverbal cues to infer things like willingness, pleasure, displeasure or unwillingness. The cost of refusing to venture into this gray area, says Alexander, is to defend the position that anyone without the ability to understand and express consent the way you or I might must be kept from any sexual or romantic contact their entire lives.
I am not looking to defend Stubblefield’s actions or assess Singer’s argument. Rather, I’d like to look at how we address hard ethical problems that touch on taboo issues. The consent issue is a hard problem. Any loosening of the standards of consent leaves people vulnerable to predation, but refusing to do so has the potential to deny the same people agency and doom them to a lifetime of loneliness and enforced celibacy. I think it would be exceptionally cruel and callous to deny the gravity of either case, and especially reckless to make it harder to investigate their significance or explore the space of possible solutions.
I think one of the ways people will regularly make it harder to explore these problems is by deliberately cultivating outrage. Alexander’s piece reads as a cautious ethical investigation that tries to present both sides of the argument. Robinson’s piece reads like an attempt to demonize Singer and criticize The New York Times for granting his depraved arguments legitimacy. Trying to solve hard ethical problems while ensuring your language is unambiguous and making all the necessary disclaimers is harder to do than simply trying to solve hard ethical problems. If the consequences of doing the latter without the former is being dog-piled on by a hungry outrage media, a lot of good people are likely to reason – correctly – that it would be better for them to shut the hell up. What this means is that some pretty crucial ethical considerations will be systematically ignored, and we will continue to live with their consequences while people like Robinson righteously pat themselves on the back. If instead the media and wider society were to encourage people to interpret one another’s arguments in the best light possible, rather than the worst, we might collectively stand a better chance of resolving hard ethical problems like this one. Why? Because at the moment, contributing an opinion on a sensitive issue is risky business. We have to face the possibility that the arguments we need to hear might not perfectly worded the first time. I would rather people make those arguments anyway, and leave it to the rest of us to interpret them without trying to play “gotcha.”
It’s woefully naive to assume our current set of taboos and values will always guide us in the right direction. As a society, we are hopelessly, tragically addicted to finding ways to convince ourselves that people who say things that upset us are entirely depraved or moronic. I think nearly everyone is acutely aware that pointing out how bad other people are is an easy path; it’s always more comfortable to pretend there’s never any cost to our attempts to do the right thing.
If we are to do better, a good place to start would be to recognize and be systematically skeptical of any and all efforts to direct offense and outrage at arguments. We should try to avoid interpreting efforts to elevate the status of new moral concerns (like nonverbal disabled people being barred from relationships) as dismissals of the importance of existing ones (like that of protecting them from sexual abuse). We should make an effort to “bite the bullet” and recognize that these concerns do trade off against each other (enforcing stricter consent standards necessarily outlaws some positive and real relationships, but loosening them leaves people more vulnerable to predation). We need to practice accepting that even our most sacred values are in fact commensurate, rather than being offended at attempts to weigh or make analogies between different concerns (yes, that means letting Singer get away with drawing parallels between intellectually disabled people and animals for the purpose of elevating the moral status of animals). The safest thing to do is assume people want to do the right thing, and give them the space to try.
Contact Nick Pether at npether ‘at’ stanford.edu.