Suppose, however, that all these doubts about Stubblefield’s conviction are mistaken. 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. The contrast does not indicate whether Turner’s sentence was too lenient, or Stubblefield’s too harsh. It does, however, suggest that we should think carefully about what considerations are relevant to sentencing for sex crimes. In determining how severe a sentence is appropriate for a sex crime, it seems obvious that the beliefs and intentions of the perpetrator and the harm done to the victim are among the most important considerations.
Judge Teare described Stubblefield as “the perfect example of a predator preying on her prey” and gave her a sentence that would be fitting for a predatory rapist. Yet no one would or could ever have known that Stubblefield and D.J. had had sexual relations if she had not conveyed to his mother and brother what she believed to be his message to them, via facilitated communication that she conducted in their presence, that he and she were in love and had consummated their relationship. This is the action not of a sexual predator but of an honest and honorable woman in love. Even if she is mistaken in her beliefs about his intelligence and ability to communicate, it is undeniable that these beliefs are sincere and that she was neither reckless nor negligent in forming them. This ought to have been a mitigating, if not wholly exculpating, consideration in the sentencing.
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. 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, 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.--Jeff McMahan & Peter Singer, "Who Is the Victim in the Anna Stubblefield Case?" The Stone New York Times [HT Justin Weinberg@Dailynous]
Yesterday, many professional philosophers expressed shock and outrage on facebook and twitter at the content of McMahan's and Singer's public intervention in the Stublefield case. By the end of the day, Brian Leiter and Philodaria@feministphilosophers* had articulated some of the sources of the professional criticism of McMahan and Singer. Along the way, Jason Brennan chimed in by writing on the "meta-philosophical issue" that "Moral and political philosophy require a license to offend. If we want to do good work, we have to give each other permission to argue on behalf of morally bad or evil things, and (as a corollary) we have to avoid getting outraged by one another."
Because I am a fairly regular critic of Singer in these Digressions (and NewAPPS), and once have also been rather critical of McMahan, it is important to recognize that McMahan and Singer used their public authority as distinguished and famous professors of moral philosophy to call public attention to what they take to be a miscarriage of justice on behalf of somebody who is a critic of their views and not a personal friend. In addition, Stubblefield had received few, if any, public defenses from fellow professional philosophers. (Apologies if I missed one.) So, I applaud the nobility of their stance, and I welcome that.
Moreover, I agree with their concern over the length of the sentence which when I first heard about it struck me (not a lawyer nor an expert on the law) as excessive for a first-time defender not prone, it seems, to violence (but, then again, most American sentences strike me as too harsh). But in reflecting on the case, I wondered if, previously, I did not fully allow myself to reflect on the horror of a sexual assault on a man who was put in her care and who was unable to offer informed consent.
Of course, one might think that the previous sentence tacitly assumes that facilitated communication is no communication at all. And this is precisely what the jury was not allowed to consider.* Singer and McMahan also argue that even if one grants that facilitated communication does not work, there may be "independent evidence suggests that D.J. [Stubblefield's victim--ES] is literate and able to communicate." It may well be the case that the jury should have been allowed to hear evidence of D.J.'s abilities to community if such ability can be established independent of the otherwise discredited practice of facilitated communication. That's not what Singer and McMahan suggest, they believe his "ability to communicate via facilitated communication should be established by independent testing." But it is unclear such independent testing is even possible. In addition, as Brian Leiter has emphasized, because facilitated communication has been discredited scientifically it cannot be used in a New Jersey court (which adheres to a Frye standard).
But even if we assume that facilitated communication were to work, it strikes me as odd that Singer and McMahan ignore entirely Stubblefield's ethical violations toward her charge (the victim). For, Singer and McMahan ignore entirely the victim's dependence on Stubblefield. Assuming for the sake of argument that facilitated communication works, this dependence is non-trivial: it is practical (in order to communicate) and emotional (at the least he would feel enormous gratitude toward Stubblefield who unlocked his brain and put so much effort into him). It is not at all obvious what consent entails in such circumstances even if we grant that the cognitively impaired are, of course, also sexual beings whose legitimate sexual needs are often ambiguous and unheeded. Considerations such as these help explain why, for example, sexual contact with patients (and former patients) by physicians, therapists (etc.) is treated as abuse (and worse) and unethical by professional associations (and the law). It is puzzling that Singer and McMahan entirely ignore such considerations and go on to claim that Stubblefield "was neither reckless nor negligent" in her beliefs.
I have to admit that I was genuinely shocked by the last paragraph of the passage that I quoted above. It seems clear to me that the line of reasoning by Singer and McMahan is the kind of thing that may well be used to justify many forms of sexual abuse of minors and cognitively impaired. The previous sentence suggests that there are good consequentialist reasons to resist Singer and McMahan line of argument, but I don't think that gets at why I was shocked.
As an aside, shock, horror, and outrage can be useful reactive attitudes because they can alert one to serious norm violations. I am assuming that adherence to norms include expectations about other people's behavior and views. Our emotions may, thus, be triggered by the violation of these expectations. It does not follow, of course, that one should not try to challenge or change existing norms or that, ultimately shock, horror, and outrage can eliminate the need for and significance of thoughtful argument. But just as one should not let shock and outrage end philosophical inquiry, it would be a mistake to ignore genuine shock and outrage, too, because they may alert us to relevant moral features of a situation, even the human condition. (Some time soon I return to this.)
I am unsure I can fully explain it, and I will not try to justify theoretically what follows, but here's my best effort after a day of reflecting on other people's comments. There are circumstances in which being incapable of understanding the harm done to oneself, while others are so capable, can be considered a (further,) serious wrong-making feature of an act. We can grasp this instinctively when we consider cases where people are condescended to (or belittled) without grasping that this is the case (or even enjoy the attention). For example, mocking the cognitively impaired seems especially wrongful even if the impaired can't grasp or even feel the harm. It's not so easy to name the nature of such harms, but it is common to call them violations of dignity or of the mutual respect; they remain such violations even if the victim never becomes aware of them or experiences the events in pleasurable fashion.
In fact, in writing out the previous sentence, I recognize what I find truly shocking (and it is not the implied rejection of the significance of human dignity or mutual respect; perhaps, these are superstitious commitments of a to-be-discard moral theory.) Rather, it's the casualness of the claim that "if Stubblefield wronged or harmed him, it must have been in a way....that affected his experience only pleasurably." This presupposes from the armchair without evidence that (the victim's) sexual gratification here can only be pleasurable; if life were only so simple. And my shock is, in part, recognition and awareness of the fact (noted before) that my profession facilitates intellectual habits of thought that make such assumptions far too easy to get away with, even rewards it with authority.