My post today will concern the recent NYT article, written by Peter Singer and Jeff McMahan, in response to the sentencing of Anna Stubblefield. It might be preferable if the first substantive post on this blog were on a less unpleasant topic. However, given that the establishment of this blog has coincided with the NYT piece, and much of the discussion surrounding it displays exactly the problems I hope to discuss here, it seems somewhat unavoidable. I have seen many other responses to the articles, focusing on different aspects, and here will attempt to work through the article fully addressing all major points of interest. The only thing I will ignore here is the debate regarding the ethics of publishing this piece when viewed as a PR mistake (given the authors’ involvement in the Effective Altruism movement) as I consider that to be a wholly distinct debate.
I will begin by noting that whatever we may make of the contents of the article it is, in my view, poorly written and atrociously argued. I consider that much to be evident from the response: that so many could generate such wildly different interpretations from a single paragraph (contrast this and this) suggests the passage was under-explained. Further, the article seems entirely confused as to whether it is offering a legal critique (which the authors’ are unqualified to offer) of Stubblefield’s sentencing or a moral critique of the court’s approach to these kinds of cases. Given the sensitive nature of these topics, I consider such poorly constructed arguments to be not simply unprofessional but reckless. The focus of this post will be the author’s claims regarding (1) Stubblefield’s proclaimed love for her victim as a mitigating factor and (2) the supposed ambiguity as to how the victim was harmed.
First, however, I will briefly run through some generally problematic aspects of the article. One problem, that has been noted by others, is that despite the fact that the article seemed to demonstrate considerable knowledge of the case, the authors repeatedly disregard aspects of the case that would weaken their points. Much of their argument seeks to prove that, by not permitting expert testimony on the validity of facilitation communication (FC), Stubblefield was not granted a fair trial. Yet this disregards the fact that New Jersey operates under a Frye Standard, only permitting expert testimony when it is considered valid by the wider scientific community, and there is a wealth of evidence debunking FC as a method. Indeed, even were New Jersey to be a Daubert jurisdiction expert testimony claiming FC is a valid means of communication would likely not have been permitted. Further, the authors appeal Rosemary Crossley’s testing of the victim which concluded that D.J. was indeed literate. The judge did not allow this testing as evidence concluding that Crossley has influenced the outcome of the testing. In criticising this choice Singer and McMahan fail to mention that Crossley was, in fact, one of the original proponents of FC. These omissions are so glaring and so consistently beneficial that they – at best – render the research of the article hugely incompetent.
Before turning to my main points I would also like to note how bizarre the following passage is:
“Even on that assumption, a sentence of 12 years in prison is excessive both in itself and in comparison with other recent punishments. It is, for example, in striking contrast to the penalty given to Brock Turner, the former Stanford student who is now free after serving only three months of a six-month sentence for raping an unconscious woman.”
In attempting to demonstrate that the sentencing is overly harsh they appeal to a case which is not only different in almost every respect but one which was so widely criticized for its light-sentencing that it became infamous and led to calls for the judge to be removed from the bench. It is this kind of poor argument which makes it hard to believe this article was written by two of the world’s most prominent living ethicists.
I will now turn to the most problematic aspects of the article. Firstly they repeatedly point out that Stubblefield appears to be genuinely ‘in love’ with D.J. and did not (quite plausibly does not) believe she was in the wrong. There are two glaring flaws here. Firstly Stubblefield continuing to stand by her actions is quite possibly a motivating factor for her harsh sentencing; the criminal justice system tends to favour those who display repentance and understanding. Secondly, Stubblefield believing she was in love being portrayed as a mitigating factor is at best confusing. To be sure, there may be a worthwhile debate regarding which is worse: a paedophile who believes themselves to be genuinely in love with their victim, or an aggravated rapist who knowingly acts against their victims wishes. But it is surely clear that the perpetrators in both of these scenarios are very much in the wrong and should be punished accordingly. In the case of the paedophile, their belief that they act out of love does little to protect their victim. I am left confused by exactly what the authors sought to achieve in appealing to Stubblefield’s belief she was in love unless they believe that this belief precludes her behaviour being perceived as predatory: an extraordinarily mistaken belief, if so.
The authors’ argument as to why we ought to assume Stubblefield did not seriously harm D.J. is contained within the paragraph which has caused most of the controversy surrounding the article:
“A central issue in the trial was whether D.J. is profoundly cognitively impaired, as the prosecution contended and the court seemed to accept, or is competent cognitively but unable to communicate his thoughts without highly skilled assistance, as the defense contended. 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. […] 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, and, for reasons we will note shortly, it is implausible to suppose that Stubblefield forcibly subdued him. On the assumption that he is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.
[…] On the assumption that he has normal cognitive abilities, he would surely have found a way to express his hostility to Stubblefield on that occasion or subsequently.”
Essentially, either D.J. is not cognitively impaired in which case his lack of hostile response to Stubblefield indicates she did not assault him, or he is indeed cognitively impaired, in which case he cannot conceive of the harm that was done to him and thus he was not harmed significantly. I will begin by dealing with the first horn of the argument, on which it is assumed that D.J is not cognitively impaired. This is simpler to deal with, and less significant given that Stubblefield was convicted on the second assumption.
Singer and McMahan’s argument here is a rather classic one. If D.J is not impaired, why didn’t he appear hostile to Stubblefield. We see this argument frequently. In cases of non-impaired adults being raped, they are often criticised for not fighting back more, screaming louder etc. Those who accuse their bosses of assault often find their choice to remain in the same job is cited as evidence they are lying. Presumably, the author’s do not hold that, in the case of teachers who assault their students, the victims’ level of hostility towards the teacher is an indicator of whether the teacher was wrong in his actions. To cite D.J.s lack of hostility towards Stubblefield as evidence she did nothing wrong, given the evidence to the contrary which I address below, is not just mistaken it is repulsive.
I will now move into the most problematic aspect of the argument: if D.J. is as impaired as the expert evidence of the prosecution contends, it is unlikely Stubblefield harmed him much at all. I consider it necessary to outline my exact understanding of this passage here, given many have found alternate meaning (see here ). Some have attempted to claim that the authors are discussing the difficulties of those incapable of giving consent but whom nevertheless desire to have sexual relations. This is indeed a problem within disability ethics. It is not, however, a reasonable interpretation of the author’s words.
They do not assume here that D.J. is incapable of providing consent, they assume he is incapable of “understanding the normal significance sexual relations between persons or[…] Sexual violation”. This is not a matter of communication (covered in the other half of their argument) but one of cognition. They assume he is “incapable of giving or withholding informed consent”. The alternative, more convincing, argument that many have chosen to interpret Singer and McMahan as making is not a remotely reasonable understanding of these words. Therefore, I will proceed on this understanding of the author’s argument.
It scarcely seems necessary to outline why this argument is so repulsive and mistaken. However, as so many continue to defend it with flawed reasoning I will nevertheless attempt to do so. It is true that if D.J is impaired to the point that he has infantile capacities (as indicated by the prosecution’s expert testimony) he may well not conceive of himself as harmed. I will grant that. Indeed, given the author’s overall (especially Singer’s) ethical stance, I find the statement that “it is hard to see what the nature of the wrong might be” shockingly equivocal. The obvious conclusion given the argument presented and the fact that Singer is a preference satisfactionist is that if D.J. wasn’t harmed then he wasn’t significantly wronged. One could perhaps appeal to this emotional trauma of the family but the authors’ seem to reject that the family has been harmed at all by events.
I confess that most ethical systems can imply atrocious conclusions when subjected to reductio. I am reluctant to take a philosophers core beliefs, decide for myself the implications and then critique the individual for holding such views. However this is not what is happening here; Singer does not frequently write op-eds entreating governments to randomly kill healthy citizens and then harvest their organs, in the name of net-gain. He and McMahan chose to advocate for this argument, chose to defend Stubblefield and chose to highlight the claim that if the victim cannot conceive how they have been harmed, then the harm must be viewed as hugely limited by that fact.
This is excellent news for those who groom minors: after all the effects of grooming often lead to victims believing they were the ones who pursued the relationship. In fact, the assault of minors, in general, is now minimally harmful provided the victim is young enough to not understand how they are being wronged. (The authors’ can of course appeal to adults who realise they were wronged as children, so this is a worse conclusion for the disabled and the mentally abused.) Let us not minimise what is being claimed here: we should abandon our current notion that if an individual is incapable of conceiving of consent, all sexual relations with them are violations. Instead, if one cannot conceive of consent one cannot conceive of oneself as wronged and thus one hasn’t been. There is a caveat here, but it is a pathetic one.
The authors also appeal to the idea that if Stubblefield wronged him “it must have been in a way that affected his experience only pleasurably”. In all fairness, I do not believe that the author’s here are claiming that sexual interactions are inherently pleasurable. Instead, they appeal to the fact that he was capable of struggling to resist. I have already noted why this is a flawed argument generally to address victims of assault: failing to fight off an attacker and providing enthusiastic consent are not the same. Further, the authors make this claim by neglecting to mention key points of testimony. Consider the following from another NYT piece, describing the events shortly before Stubblefield and D.J.’s first sexual contact:
“They met the following Sunday at [John Doe]’s house, while his mother was at church. They tried to kiss while lying down on [John Doe]’s bed, on the theory that it would be easier, given his impairments. But [John Doe] kept sitting up, and then he lowered himself onto the floor. Anna offered him the keyboard and asked if anything was wrong. Nothing’s wrong, he typed, he was very happy, but also overwhelmed — he needed a minute. Anna said O.K., and [John Doe] scooted out into the hall.”
I have removed the FC here since it is our assumption on this account is that D.J was not capable of communicating in that manner. Don’t the actions above seem exactly like the actions of someone trying to avoid Stubblefield’s advances? Given the depth of the authors knowledge in some areas, it is hard to believe they were unaware of this evidence, rather than simply ignoring it. Thus we are left with the claim that individuals who cannot conceptualize how they have been wronged have not been obviously wronged. I fail to see how anyone can defend these claims, without deliberately misinterpreting the authors’ arguments.
There are obviously many other complicated issues caught within this debate, and let us not forget that much of the ethical arguments surrounding this issue are situated within utilitarianism which is woefully ill-equipped to deal addressing the wrongs of sexual assault (a point I will likely return to in later posts). In addition, the piece has given rise to much discussion displaying problematic reasoning e.g. the conflation of seeking to obtain sexual pleasure with the ability to give consent, the idea that no conversations are out of bounds for philosophy etc. For now, I feel I have highlighted why so many are horrified at the piece (as many seem genuinely mystified) and why responses that attempt to generously interpret the piece are simply mispresenting the author’s claims.
If you have thoughts on the piece or on my response, please comment below.