A former philosophy professor, Anna Stubblefield has been convicted of raping DJ, a man with cerebral palsy whom she was trying to help communicate.

I suppose much of this case depends upon how one thinks of DJ, the victim in this rape case. To those who think DJ has innate capabilities behind the veil of the symptoms of his condition, might be sympathetic to Anna Stubblefield. Philosophers tend to think of agency as the ability to form life goals; have preferences; and implement these goals and preferences. Those who might think that DJ’s condition does not enable him to form these preferences and goals, and provide consent, might think that Anna Stubblefield was in the wrong. Astonishingly, it seems that those who might think DJ lacks agency will demand a harsher punishment for Stubblefield than those who think otherwise.

Philosopher’s Peter Singer and Jeff McMahan weigh on the case:

I have been very troubled over the last few days about how Singer and McMahan argue about what it means if one doesn’t resist rape. They make it sound as if: if one doesn’t resist rape, it’s not rape. This is a bad patriarchal argument that’s been refuted a zillion times. Which world are they living in?

Now, Singer and McMahan write that DJ, being cognitively impaired, lacks the concept of consent altogether. But they go on to say that the fact that DJ didn’t resist rape means that he might have in fact found it pleasurable, and so as their reasoning goes: because he found it pleasure given that he didn’t resist, Stubblefield did not rape him. This sounds wrong for a reason I have mentioned above. But additionally, reading their argument, I began wondering if feeling sexual pleasure is in fact an ability, and whether this ability that DJ apparently has according to Singer and McMahan, might undermine their premise that DJ is severely cognitively impaired. Does the ability to feel sexual pleasure mean that somebody is less cognitively impaired?I have absolutely no idea, but Singer and McMahan have no idea, either; yet the base their arguments on such a weak premise. If DJ can in fact feel sexual pleasure, it seems obvious to me that he might understand the concept of consent because having the ability to feel sexual pleasure also grants one the ability to feel sexual harm, and if one can in fact feel sexual pleasure and therefore sexual harm, it seems to me that they do not lack the understanding of consent, or what sexual relations mean. This article in ‘Feminist Philosophers’ alludes to this point as well.

While reading these articles I was reminded of Shelly Kagan’s modal personhood argument that he presented at Oxford a couple of months ago. He argued that, morally speaking, our approach to animals should be hierarchical – we should all treat animals in a way that is dignified but from from a maximin point of view: animals must be ranked depending on their cognitive complexity (or agency). All humans however, must be ranked at the same level, including people with severe disabilities because they could’ve not been disabled (hence, modal personhood). I have no idea how one might treat foetuses in this scheme. One could argue that modal personhood doesn’t hold for foetuses because they aren’t people, but one could reply to this by saying that this is true only to following extent: they aren’t people yet; somebody could object that they have the potential to become persons. I have the intuitive urge to resist this modal personhood argument because it might be detrimental to a woman’s reproductive liberties.

So if you reject modal personhood, must you also reject the idea that people with severe disabilities have equal agency to those who aren’t disabled? If indeed you have to, then would you demand a much stricter punishment for Stubblefield? Should Stubblefield be punished on the grounds that DJ doesn’t have agency? This doesn’t sound right. What I am trying to say is: it’s not just utilitarianism’s fault, as this articles claims, that you might reach “repugnant conclusions”; deontology (agency, modal personhood) seems to be leading to the same horrible conclusions. Extending common moral concepts, whether utilitarian or deontological, from the ethics of abortion to animal ethics to ethics regarding disability leads to a confusing moral soup, with astounding counter-intuitive results.

One common misconception that the Current Affairs article presented on utilitarianism was that utilitarians will might be fine with majoritarianism or genocide. This is mistaken because before applying the maximisation principle of utilitarianism, these philosophers presuppose neutrality on ethical judgements – a sort of “impartial spectator”; the way you treat persons must not depend on their caste, religion, race, gender, etc. However, nevertheless, they will often get what it means to ground ethical judgements on neutral factors wrong, as Singer and McMahan’s article show. The way we do practical ethics must (probably) be thrown out of the window going by how badly we are thinking about this case.

From a scientific angle, it seems to me that there are other troubling things that this case throws up: how might one test the scientific validity of Facilitated Communication (FC)? Are control trials the best way to proceed if the outcomes might be influenced by co-dependent factors? Assume that even if you get robust probabilities regarding the efficacy of FC, you get so only at the macro-level, using aggregated data, how then, do you assess individual cases based on macro-level probabilities? This is far from a trivial question, given that how people’s lives go depend on it. Further, should some categories of scientific evidence not be shown in a court of law at all? Scientific evidence is never perfect; so where should one demarcate?

If  you assume that FC is scientifically validated and what Stubblefield’s FC technique  was legitimate, you might conclude that DJ not only has agency to the extent that he provided explicit consent, but also that therefore Stubblefield did not commit rape. If, on the other hand, if it turns out that FC is scientifically validated (say only marginally different from autonomous typing), but the way Stubblefied went about it was wrong, then it might turn out that Stubblefield committed a very serious crime, probably as serious to the case that if it turns out that FC is in fact pseudo-science, and DJ never could provide consent.

So it seems to me that to get morally consistent views in this case, much depends on the scientific questions stated above. FC itself needs to stand trial where the judge is some philosophy of science…

Finally, this case shows that it’s not only hard to draw a distinction between two apparent dichotomies such as providing the resources to somebody else for self-determination, and on the other hand, taking ownership of somebody else. They might in fact be confused with each other.

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