"Talks a good game about freedom when out of power, but once he’s in – bam! Everyone's enslaved in the human-flourishing mines."

Determining Consent

A question most people successfully avoid asking: can institutionalized patients ever have sex? The answer is ‘mostly no, unless they are very good at sneaking past nurses’. They also can’t kiss, hold hands, cuddle, or have any other form of romantic contact.

I worked in a mental hospital where two patients snuck past nurses and had sex once. It was treated as a public health crisis of approximately the same urgency as somebody throwing a bucket of Ebola-laced chimp blood all over the dining room. Both patients lost all their privileges, earned themselves 24-7 supervision by nurses, got restricted to their rooms, and had to go through a battery of tests for every STD in the book. We the doctors got remedial training with helpful tips like “If two patients seem to like each other too much, put them on opposite sides of the unit so they’re never in contact.”

Why the security? Mostly the hospital was terrified the patients would come back and sue them for letting it happen. It didn’t matter that they consented at the time; it wouldn’t have mattered if they’d signed consent forms in triplicate beforehand in front of a notary public. Psychiatric patients are treated as having inherently less ability to consent than the mentally intact.

This makes some sense. A lot of mentally ill people are confused and can make bad decisions during the height of their illness. And in this case, the two patients were only temporarily inconvenienced; we treated them for a couple of weeks and then discharged them back to the real world where they could have as much sex as they wanted.

Unfortunately, not all stories end this well. A small percent of very seriously ill people end up in long-term institutions, where they stay anywhere from a few months to a lifetime. And these lifers are sentenced not just to lifetime confinement but to lifetime celibacy.

The most heartbreaking cases are the severely and permanently intellectually disabled. Suppose somebody doesn’t have the intellectual capacity to understand language. This doesn’t mean they lack a sex drive any more than it means they lack a hunger drive. In fact, their sex drive is often stronger than normal – something to do with decreased frontal inhibition, I think. But none of these people are going to be saying “I hereby exercise my right to affirmative consent for sexual activity” anytime soon.

This is a hard problem. If the only people institutionalized patients consistently encounter are hospital staff and other patients, well…we definitely don’t want them having sex with staff. Even non-institutionalized visitors seems like potentially too much of a power imbalance. That leaves other patients. But it seems like most encounters between two patients will involve one of them “initiating” in some sense. And even if we grant that the initiator has implicitly non-verbally consented, what about the one who’s not initiating?

As far as I can tell, there are two ways to handle this. The first is the extreme position that no person beyond a certain level of intellectual disability should ever be allowed to have sex or even non-penetrative romantic contact like kissing or hand-holding. The second is that we need to relax the usual standards of consent to something more like “Well, we know both these people pretty well, and we’ve got a pretty good idea what they’re like when they’re happy versus upset. And we know they have the capacity to resist things they don’t want, because they’ve done it before, eg when we try to give them medications they don’t like. And right now they look pretty happy, and not at all upset, and they’re not doing any of the things they do when they want to resist something, so it looks like they’re consenting, so maybe we won’t send nurses to burst in on them and pry them apart.”

This second one should make us very uncomfortable. But the first one isn’t exactly encouraging either. Like, in the early 20th century a lot of eugenicists sterilized the mentally ill. And by the mid-20th century, people decided that was morally wrong, because parenthood is an important part of the human condition and it’s unacceptable to take away that right even if you believe it’s for a greater good. But I’m not sure it’s moral progress to move from “these people must never become pregnant” to “forget about pregnancy, these people must never even have sex”. If we’re even stricter in our prohibitions than the eugenicists, what right do we have to feel superior to them?

So, as much as I would like a better option, I think I support the second standard. In cases where people are so disabled that they cannot consent verbally, rather than force them into lifelong celibacy we should try to do our best to figure out what they want in other ways.

As best I can tell, this is what Peter Singer is saying in his New York Times editorial on the Stubblefield case. Anna Stubblefield was a professor who believed in “facilitated communication”, a Ouija-board-esque technique whose proponents say it allows them to talk to nonverbal disabled people who can’t communicate any other way, and whose opponents think it’s probably pseudoscience. She used facilitated communication on a nonverbal young man named DJ and “received” the message that he wanted her to have sex with him, so she did. When the story reached the wider non-pseudoscience-believing world, it looked like a pretty obvious case of rape.

Singer seems to think facilitated communication might work, but he thinks Stubblefield’s actions might have been acceptable even if it doesn’t. He says:

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.

Singer’s phrase “cannot understand the normal significance of sexual relations” is a reference to the legal standard for consent in most states, which say that disabled people can consent to sex if and only if they do understand this. What he’s saying is, as far as I can tell, the same thing I said above. Some people may not have the cognitive capcity to understand sex and consent in an intellectual way, but for these people to be forcibly kept celibate their entire lives seems hardly better than the eugenicists who would have just sterilized them and gotten it over with. Instead, we should try to judge their feelings from things like whether “the experience was pleasurable to him” or whether “he was capable of struggling to resist.” Singer’s position – and without knowing the disabled man involved I don’t know if this is true, and some people I trust say it isn’t, but it seems to have been his position – is that this was someone who was incapable of the complex cognitive process of consent, but pretty happy with the whole situation.

I once knew a very extreme libertarian who said that white settlers taking Native Americans’ land wasn’t “theft” because the Native Americans didn’t have a concept of property, so no harm done. I worry that people are misinterpreting Singer as saying the same thing here – something like “this guy doesn’t have a concept of consent, so you can’t violate it”. This is not how I interpret the sentence about consent in the first paragraph of the quote. I think Singer is using “consent” to mean an inherently verbal/symbolic/cognitive process – someone explicitly understands what it means to consent and intentionally expresses that to others. So when I say “we are forced to infer consent from nonverbal rather than verbal cues”, Singer expresses the same idea as “since we can’t use consent, we need to fall back on simpler ideas like those of pleasure versus harm.”

The second paragraph makes it sound like if there was any sign DJ wasn’t okay with what was happening – if he were screaming or resisting or even frowning – Singer would no longer be okay with this. It seems to be Singer’s belief/assumption (though likely false) that DJ’s nonverbal behavior presented strong evidence that he was enjoying the sex and wanted it to continue. When he says that “nobody was harmed”, he’s not saying that disabled people don’t count as somebody. He’s saying that if two people both enjoyed a sex act, both of them seemed to be participating voluntarily, and neither person suffered any physical or emotional harm (including the harm of feeling like one’s preferences were being violated) this is probably the best moral test we can apply in a situation where the usual test of consent is absent.

So of course everybody writes thinkpieces with titles like Now Peter Singer Argues It Might Be Okay To Rape Disabled People:

Again, let’s be clear on what they are 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. (Singer is also offering a variation on his own prior arguments in favor of bestiality, which work because Singer believes disabled people and animals are the same for purposes of ethical analysis.)

I think it’s a pretty good principle that, if you don’t want to consider disabled people and animals the same for purposes of ethical analysis, you break the equivalence in favor of the disabled people. Yet I notice that when two animals have sex, we trust them to make their own decisions. If a female dog in heat has jumped a fence to find a male dog, and the male dog jumps over his fence and starts humping the female dog, we might separate them because we’re not willing to take care of the puppies, but nobody would separate them because the dogs are just animals and so too stupid to understand the nature of consent. If one of the dogs was screaming and yelping and trying to get away, we would try to rescue it. But if both dogs sought it out and seem to be enjoying themselves, we grant them enough respect to assume they know what they’re doing.

And again, I would hope that part of being against equating dogs and people (of any level of intellectual ability) is that you give more respect to the people. And part of that, to me, seems to be that if two people seek out sex and seem to be enjoying themselves, we grant them enough respect to assume they know what they’re doing. And this seems true whether or not they have the intellectual capacity to form the words “I consent”.

Everything about this situation sucks, and there is no good answer, and honestly I hate to have to talk about this. But since people keep asking me, fine, here’s what I think.

From a legal point of view, Anna Stubblefield should absolutely 100% go to jail. Whether or not DJ wanted sex with her is irrelevant. Even if he did (and we have no evidence other than the testimony of the alleged rapist that this is the case) she committed an action which put her at extreme risk for raping somebody, without any system in place to minimize that risk. A world where people can go around having sex with random disabled people as long as they say “I’m pretty sure he was in favor of it” is a world where many disabled people who are not in favor of it will end up being raped. As long as that’s the situation, the law against doing so is just and needs to be enforced. I think I legitimately disagree with Singer on this.

(also, she was his translator and that creates a power imbalance. I don’t want to get into this further because I don’t think it relates to the thesis here, but it’s obviously an important point.)

From a political point of view, I wish there were a system in place to protect disabled people from sexual abuse while not banning all sexuality entirely. If you want to do surgery on a disabled person who can’t consent, lots of doctors and lawyers and friends and family get together and do some legal stuff and try to elicit information from the patient as best they can and eventually come to a conclusion. The result isn’t perfect, but it’s a heck of a lot better than either “no one can ever operate on a disabled person” or “any surgeon who wants can grab a disabled person off the street and do whatever operation they feel like”. If there were some process like this for sex, and they decided that DJ wanted to have sex with Anna, then (again ignoring the power dynamics issue) I think this would be better than either banning him from all sex forever, or letting her have sex with whoever she wants as long as she can make up convincing enough pseudoscience. If a legal procedure like this had been followed, I would not think that she should go to jail.

From an ethical point of view, I think it’s correct to abstract away all the features of the problem mentioned above, the same as we avoid issues of how well you understand the physics involved when we think about the Fat Man problem (or, as the Internet likes to call it, “Now Judith Thompson Argues It Might Be Okay To Throw Obese People In Front Of Trains”). In this abstract and conditional world, the question is whether we must completely prohibit someone from having any kind of sexual life if they’re unable to verbally consent but able to give reliable cues that they want the sex and are enjoying themselves. I think the answer is “not always”. I agree it is probably bad to connect this abstract ethical view to a real case where real people are harmed unless you are very sure that all of your assumptions hold true, homework which it looks like Singer might not have done.

From a philosophical point of view, I think that if we are to be at all better than the BETA-MEALR Party, we need to acknowledge that we are not promoting consent if we enforce the same position on everybody no matter how strongly they seem to want the opposite, even if we talk incessantly about how much we love consent while we’re doing so.

The Current Affairs article argues that Singer’s views discredit utilitarianism, since utilitarians are these annoying people who always seem to be coming to weird conclusions that would be much more convenient to ignore. I agree that Singer’s views are related to his utilitarianism, and that this philosophy produces more than its share of weird conclusions that would be more convenient to ignore.

But ignorance isn’t a suitable foundation for ethics. It’s incredibly easy to ignore disabled people being sentenced to a life of involuntary celibacy, because ignoring marginalized people is always easy and convenient, plus enforced celibacy isn’t the same sort of flashy human rights violation that has a death toll in the thousands and helps sell newspapers. People who cobble together their moral systems from whatever helps them ignore bottomless pits of suffering most effectively will always have more convenient and presentable moral systems than people who don’t. But if we’re going to try to be good, we need to work for something better.

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483 Responses to Determining Consent

  1. Protagoras says:

    Excellent discussion, as usual. I also have found the dogpiling on Singer ugly.

  2. James Miller says:

    Giving the severely intellectually disabled access to sexbots might be the answer. We wouldn’t have to worry about pregnancy, STDs, or exploitation.

    • Callum G says:

      Good idea! Although that doesn’t help with issues like with DJ and Stubblefield where they (she?) claimed they were in love.

    • Error says:

      Sexbots would solve a lot of problems in the world. But since sexbots don’t exist yet (as far as I know?), another alternative might be escorts.

      This discussion reminds me of a Maggie Mcneill piece reflecting on a case where she had a client who’d been disabled-by-fire, to the point where it was basically impossible for him to attract a mate in the usual way. It was touching, but I can’t find the link.

      • James Miller says:

        Yes, and in a saner world we would perform a randomized experiment on mental hospital patients where we attempted to measure the benefits of giving them access to escorts. I would bet that for many condition such as suicidal depression having such access would greatly improve patient outcomes.

        • John Schilling says:

          “Access to escorts” seems rather vague for the heavy lifting it’s being asked to do here. How many mental hospital patients can afford escorts? Wouldn’t most (involuntary) mental hospital patients be deemed incompetent to handle their own finances even if they had a sufficiently well endowed bank account?

          • James Miller says:

            How many mental hospital patients can afford escorts?

            What if the experiment showed that one hour per week with an escort had a greater beneficial effect (and so could be substituted for) a few hours per week of time with a high paid doctor? It might be cheaper for the hospital to use escorts.

          • John Schilling says:

            It might be cheaper for the hospital to use escorts.

            If they were allowed to, perhaps, but they won’t be. Certainly not if you sell the plan by dialing it down to “allowing access” to prostitutes, and realistically I don’t see this happening anywhere no matter how you sell it.

          • US says:

            “I don’t see this happening anywhere”

            Well, James did say: “in a saner world….”

            If access to prostitutes lead to better outcomes in terms of significantly faster recovery for non-chronic mental health conditions, the benefits would incidentally be much larger than the difference between paying for doctors and paying for prostitutes; mental health institutions are expensive (rent, supervision, cleaning, catering, etc., etc.), and a large proportion of those costs are presumably not related to what you pay the doctors.

            Of course subsidizing prostitutes for people with mental problems might lead to some interesting dynamics when you start to think about the incentives..

        • Jiro says:

          Allowing experiments on unconsenting patients creates really bad incentives, even if the patients themselves are not harmed.

        • vV_Vv says:

          I suspect that most people with suicidal depression already have access to escorts. In most countries prostitution, at least in some form, is either legal or if it is illegal, the ban is not strictly enforced.

          There might be still a financial issue, but I don’t think that so many people with suicidal depression are so poor that they can’t afford prostitution, considering that that heroin addicts can afford heroin.

          • Matt M says:

            It’s worth noting that the strictest enforcement is typically focused on the most affordable options. If your budget only allows for cheap street-walkers, your odds of encountering law enforcement are a LOT higher than they would be if you stuck to “professional escorts”

          • vV_Vv says:

            A bit of googling reveals that the cost for a hour of sex in a brothel or “massage parlor” in the US can be between $ 100-300 at minimum.

            For comparison, the daily cost of heroin addiction is about the same, except that you presumably don’t go into withdrawal syndrome if deprived of sex for more than a day, so the monthly cost of heroin use is likely much higher than the monthly cost of prostitution use.

            (btw, I never cease to be amazed at how much instructive the Internet is)

      • Loquat says:

        I don’t see how hiring prostitutes would solve the problem of whether a severely intellectually disabled nonverbal person can consent to sex. Are you suggesting a scenario like, the prostitute shows up and hangs out for a while and if the disabled person initiates sexual contact during that time we count that as consent?

        It also brings the possibility of STDs and pregnancy back into the picture, and adds a whole new potential for exploitation (of the prostitutes).

      • mupetblast says:

        I recall the scene from 1985’s Mask wherein Cher gets her terribly deformed son a prostitute: http://bit.ly/2oKewO2

    • Squirrel of Doom says:

      It’s not an answer to the ethical question. At best it’s a way to avoid answering it.

    • vV_Vv says:

      Is there any fundamental difference between a sexbot and a human prostitute?

      We wouldn’t have to worry about pregnancy, STDs, or exploitation.

      None of these seem insurmountable difficulties. In fact, in some European countries the state actually pays prostitutes for disabled people.

      • Matt M says:

        I apologize as I know I’ve posted this before, but I really can’t get enough of it.

        Don’t worry, the SJWs will be lining up to defend the rights and prevent the exploitation of sexbots, too…

        • vV_Vv says:

          Don’t worry, the SJWs will be lining up to defend the rights and prevent the exploitation of sexbots, too…

          They already are.

          Of course, sexbots means woman-like sex dolls, vibrators are totally a-ok.

          • Brad says:

            Yes, let’s ask Milo Yiannopoulos what so-called social justice warriors think. That’s bound to be a good procedure for understanding the world.

          • vV_Vv says:

            LOL, I had opened the first search results in multiple tabs and meant to link the BBC News one, not Breitbart. Didn’t even notice it was Milo.

            But Milo’s article does indeed link that BBC News article in the first paragraph, and hopefully BBC can’t be suspected of wrongthink, which suggests that you just stopped at the author’s name without even bothering to look at the first paragraph. This doesn’t exactly looks like a good procedure for understanding the world.

      • Protagoras says:

        Employing human prostitutes creates service jobs, while using sexbots creates manufacturing jobs? And I guess the manufacturing jobs are likely to in turn be mostly done by robots, so employing human prostitutes may create more human jobs overall. Though that’s another way of saying it’s likely to cost more.

      • rlms says:

        “Is there any fundamental difference between a sexbot and a human prostitute?”
        I checked the parent comment to see if this made sense in context, but it doesn’t seem to. In answer to your question: yes, yes there is.

        • vV_Vv says:

          In moral and practical terms, assuming that human-quality sexbots were available.

          • rlms says:

            Humans have moral relevance (even if prostitutes), sexbots do not.

          • vV_Vv says:

            Sure, but how is this any different than automating any other job?

          • Protagoras says:

            @rlms, Yes, but is there any way in which the moral relevance of humans affects the question of whether one should think one policy is acceptable and the other not? Hence my answer above, since it could potentially be argued that giving humans employment opportunities is morally desirable, while of course there is no moral argument for providing work for sexbots.

            I suppose depending on the kinks of the patients, there might be some services that the sexbots would provide that it would be expensive or even impossible to find a human willing to do. But I thought it would be a digression to go into that; discussing sex is already a tricky enough subject without bringing in kinks.

          • rlms says:

            It’s different in as much as automating any two jobs differs due to differences in the different jobs. For instance, automating bomb disposal (or some other stereotypically dangerous jobs) would save human lives, which is a point in its favour that automating fast food work doesn’t have. If you “deautomate” prostitution (replacing sexbots in James Miller’s hypothetical with humans), you need to add a major new part to your analysis: how the situation affects the prostitutes. This is the fundamental difference I’m talking about. I agree that the possible ethical problems aren’t insurmountable, but they are still worthy of consideration: there are probably some unenlightened people who consider prostitution especially undignified and would be horrified to e.g. see their daughter choose it as a career.

    • anonymousskimmer says:

      It’ll take a while to read through the comments to see if this point has been made, so I’ll make it anyway.

      This is a wonderful (IMO) argument from Scott, but he misses a very salient part of it.

      ““If two patients seem to like each other too much, put them on opposite sides of the unit so they’re never in contact.””

      Allowing people to have sex with humans or robots does not address that, for many people, intimacy comes before sex. The intimate Relationship comes before sex. It is more important than the act itself.

      How do you expect those who need intimate relationships (whether sexual or not, because intimacy often does not equate to sexual interest) to live a fulfilling, or even sanity-inducing life if you prevent a close friendship from forming? How can offering sex with a robot or a prostitute make up for that? It can’t. It doesn’t address the fundamental human need.

      (I wish all psychs would read about the instinctual variants. Screw the Enneagram, screw any other personality typology, just spend 10 minutes reading about the instinctual variants.)

      • Murphy says:

        Scenario: you’re both hungry and thirsty. Someone offers you a glass of water.

        Do you

        1: slap it out of their hands and declare that they shouldn’t because you’re both hungry and thirsty

        or

        2: accept the water and keep looking for food.

        The desire for intimacy and the desire for sex are related but satiating even one of them is better than sating neither.

        Also, once we can build realistic humanlike robots I doubt it will be long before they can emulate intimacy well enough for some people to be made happier. Some people can feel better simply from sleeping hugging a pillow. Not everything is transcendental and impossible to emulate.

  3. coreyyanofsky says:

    I’m looking forward to commentary from @LeahLibresco.

  4. ilkarnal says:

    The problem is the idea that ‘rape’ matters very much at all, as a matter separated from the assault part of it. If someone punches me in the face that is a violation. Fucking around with my genitals isn’t any more or less relevant. We can judge the severity of physical assaults by the physical consequences – if someone punches me lightly in the shoulder I don’t get to go around screaming and get him thrown in jail, because nobody will take seriously an ‘assault’ with no discernible physical consequence. The same standards, and the same attitudes should apply to assault that has a sexual element. No harm doesn’t mean no foul, but it does mean small enough amounts of foul to not merit much attention. That doesn’t change when you happen to be playing around with genitals. Plenty of people have been crippled or killed by punches – you’re still silly and probably very sheltered if you take every instance of someone getting punched seriously.

    • doubleunplussed says:

      I find it similarly difficult to fathom, but I’m happy to accept that different people’s brains work differently, and that plenty of people feel very strongly about it, and that it’s not about the physical act at all so much as an emotional one.

      And yes, there are people with incentives to hype it up beyond recognition, so for those people I don’t just accept that “oh they must be being sincere, their brains just work differently to mine”, no I assume they’re actively trying to deceive. But, plenty of people in other contexts, present and past, treated rape as extremely bad, so I’m happy to assume that the idea was not recently fabricated.

      • ilkarnal says:

        You don’t get to attach arbitrary significance to something and wave it off as ‘that’s how my brain works.’ If you let people do that you open the floodgates of endless nonsense. I mean, that’s what children do in disputes and arguments – try to game the moral system by throwing the significance of some slight or injury wildly out of proportion. The problem is that stretching any moral system in this way destroys any utility it might have had.

        A functional moral system means deciding how significant various things are, and sticking roughly to those weights. If we’ve decided that insults are extremely important – we’re an ‘honor culture,’ if you like – then we don’t get to act like insults are no biggie later on when we insult someone. Or rather, we do get to do that, but the price we pay is the erosion of our moral system. If we do it enough it stops being anything but an outdated and misleading guide.

        We can decide that sex is super meaningful, and act accordingly. Or we can decide that sex is basically as important as a vigorous handshake, and act accordingly. We don’t get to act like sex no big deal and then turn around and pretend it’s still a huuuuuuuuuge deal when it benefits us.

        So no, sorry, no-one gets to say that their physical violation trumps someone else’s spectacularly in importance because it involved genitals. The significant issue is the physical violation, and those matter in proportion to the physical damage caused. If we want to go back to sex mattering super-duper much, with the necessary attendant restrictions – then sexual misconduct can matter more in proportion. But the current discordant attitude is bullshit, and the kind of bullshit that is very dangerous.

        • Scott Alexander says:

          “You don’t get to attach arbitrary significance to something and wave it off as ‘that’s how my brain works.’ If you let people do that you open the floodgates of endless nonsense. I mean, that’s what children do in disputes and arguments – try to game the moral system by throwing the significance of some slight or injury wildly out of proportion. The problem is that stretching any moral system in this way destroys any utility it might have had. ”

          I think we do get to do that. For example, if you slam doors next to someone with PTSD who gets panic attacks whenever they hear loud noises, you’re a bad person.

          I want to defend this case pretty hard, because I’ve found this is really important in my personal life. I used to live with some people who thought that my noise intolerance (I basically can’t function if people are being loud around me) was completely ridiculous. It wasn’t that they decided that utilitarian-ly the costs of staying quiet were too high. It was that they thought my preference was stupid and so they didn’t have to take it into account at all. Later I moved in with better people who understood this was an issue, and my life vastly improved. I admit I have problems with noises that 99% of people would consider totally okay, but they’re real problems and if people ignore it on principle my life ends up miserable. I would like to extend the same level of respect to everyone else.

          • drethelin says:

            I’m still convinced by the objections to your old post on salmon-zapping on Lesswrong: the problem with that system is it incentivizes people to self-modify (or just lie) such that they can extract infinite concessions from you.

            The current status quo of not respecting all sorts of complaints that are in fact hugely important to the people making them irrespective of the advantages of people submitting to their will may be suboptimal, but I think that means we need a principled way towards “Accept more people’s statements about their internal life” rather than “you get to attach arbitrary significance to stuff and people have to allow it”

          • albertborrow says:

            @scott

            I think that’s a good objection, but it’s just as worth pointing out the false equivalence between sexual harassment and noise intolerance. Conditions like tinnitus or hyperacusis are provable, perhaps even to a greater extent than PTSD, simply because we can observe the physical damage to the inner ear. For someone like you, it’s not too hard to get a doctor’s note to pass around to neighbors and friends.

            But how provable are sexual issues? How treatable are sexual mental issues? What would an effective treatment even look like? What behavior, if any, could be considered “standard”? What’s the appropriate degree of punishment for slapping a stranger on the ass? I believe the fact that questions like these are divisive indicates a strong cultural component to how we react to sexual taboo. And even if we try to respect other’s standards on sexuality, there are too many variables involved to have anything concrete.

            The biggest problem here is that we have no sense of scale or direction. You can measure the decibel level of your neighbors with a phone app, but there is no common measure of “harassment” that we can all agree on and reprimand according to the harm of the misdemeanor. I don’t agree with @ilkarnal’s take that preferences shouldn’t factor in at all, but the analogy you use is dangerously close to the naive straw-man he was arguing against. Common sense is a nice standard to work off of when you have a “common sense” of the problem, but in terms of sex it feels like everyone has their own set of preferences and mores that they want to impose.

          • Scott Alexander says:

            Albert, to me it seems the opposite. Maybe 1/100 people have noise issues as serious as I do, and I have to special-plead that I’m weird.

            It seems to me that (almost?) all women have problems with sexual harassment and rape. This doesn’t even seem to be a “you have to accept some people are different” issue, it seems to be a “most people are actually pretty similar” one. The only thing that’s weird is that it seems to differ by gender, ie a lot of men have trouble understanding why it seems so violating to most women.

            (though there’s actually a really strong evo psych explanation for why this should be – see here)

            Granted that there’s probably a lot of variation on who gets upset by how much, but I assume this is normally distributed just like everything else, with some people on either end of the distribution.

          • AnonYEmous says:

            accepting this premise as true

            why is physical assault wrong?

            doesn’t it being wrong imply that at some level we accept that most if not all people don’t like this and it is wrong?

          • leoboiko says:

            Scott, I very much agree with this. I had similar experiences about things that are real problems for me, but which other people said they weren’t problems and shouldn’t matter.

            When I was young I was often berated, humiliated and shamed for being bisexual (or, more accurately, for failing to be able to perform a properly male gender role in a Latin-American country). That made me miserable. Sometimes it was aimed at me directly; a few times it exploded into actual physical violence. But in a way, the general impersonal atmosphere was even worse: overhearing family or friends making jokes about sissies, while being too timid to say how bad it made me feel. I just lurked in my corner and developed clinical depression.

            As I became an adult, the general, unspoken public behavior rules changed from “it’s shameful to hand holds with a male in public; let’s shout at them and make jokes” to “it’s shameful to shout at or make jokes about males holding hands in public”. This change made my life infinitely better.

            The forces which changed society from state 1 to state 2 above are what the right-wing/libertarian corners of the Internet call “political correctness” and “SJWs”. They think that the right to e.g. talk berating things about LGBTs (or women etc.), or make jokes, is part of free speech and should be paramount. They think I should just “man up” (gendered speech intended) and stop getting depressed about these things. But I think social states 1 and 2 are mutually exclusive; either it’s shameful for a boy to display affection for another male, or it’s shameful to berate boys for displaying affection for another male. Furthermore, state 2 is to me pretty obviously progress. I think it’s evident that, from the point of view of any system of ethics (utilitarian, deontological or virtue-based), society is fairer in state 2 than in state 1. That’s why I support the things that right-wingers/libertarians call “political correctness” and “SJWs”.

          • albertborrow says:

            Scott, I feel like you’ve misjudged my comment. It’s not about whether women care about sexual harassment. If they didn’t, we wouldn’t have sexual harassment laws. The point is that we have no way to judge the severity of the offense. Pretty much everyone agrees that a slap on the ass is rude, the question is whether the reaction to that rudeness should change relative to something more harmful. It’s the difference between politeness and political correctness. You csn talk to any woman and most will tell you they don’t want to be harassed, yes, but some women want to crucify the offender and some don’t care nearly as much. Which is more reasonable?

          • Whatever Happened To Anonymous says:

            I think it’s evident that, from the point of view of any system of ethics (utilitarian, deontological or virtue-based), society is fairer in state 2 than in state 1.

            I don’t think this is evident at all on utilitarian grounds, and there’s probably “deontological” ethics where this is the opposite of true.

          • Nancy Lebovitz says:

            Scott, men do experience sexual assault and rape from women, and they don’t like it, for values of don’t like which go up to PTSD.

            I believe the failure of understanding is that most men don’t experience sexual harassment and also are generally treated as though they aren’t sexually attractive. The result (perhaps of other factors as well) is that they imagine sexual harassment as being like a woman they find attractive coming on to them a little forcefully.

            Anecdata: A man in his thirties telling me that after dealings with a particularly awful woman that now he understood what women mean by sexual harassment.

          • Tibor says:

            @leoboiko: I don’t know which libertarians you talked to, but essentially there’s a difference between
            a) “X is shameful and therefore it should be made illegal”,
            b) “X is shameful but making it illegal is a cure worse than the disease because there are important principles it would violate, causing more harm than good and also making X illegal might just hide the issue instead of solving it”
            and
            c) “X is not a big deal, grow up!”

            I don’t know who you talked to but I’d say b) is a more typical libertarian position on things like “hate speech” etc and c) is a more conservative one.

            Btw, it is interesting that you’re mentioning Latin America. I have a friend from Brazil, who is very much left-wing, although also aware of some problems on the left. However, when she talks about Brazil I am asking myself whether I would perhaps not be a left-winger myself, had I been born over there. The Brazilian “right-wing” seems to stand mostly for cronyism and the businesses seem to often prosper because they have special connections and priviliegia from the government (such as a company in Porto Alegre – I think – which has a legal monopoly from the city government to run the public buses). Likewise, as far as machismo and disrespect of women or gays goes, Latin American countries are also very different from what I grew up around. She told me that when a woman goes out by herself in Brazil, it is not uncommon for men to be really aggressive towards her – e.g. push her against a wall trying to kiss her and stuff like that or generally not letting her be when she clearly states she’s not interested in talking to them or that she has a boyfriend (they’d just ask things like “so why is your boyfriend not here with you?” and keep pushing). If a Czech guy does that, he’s likely to get beaten by other guys, so it pretty much never happens. But in Brazil it seems it is viewed very differently.

            What I’m getting at is that the “SJW” stuff seems quite outlandish and exaggerated to me but I do acknowledge that if the above is the normal state of things in your country than a “little bit of SJW” is the right direction and then it is easier to sympathize with that from that perspective. Similarly, if you right wing talks about free markets and self-determination etc but really supports cryonism and social conservatism instead (your left might also support cryonism, but at least they openly say they want the state to have more power), then it is easy to disregard it all. And similarly, things like “campus rape” seem completely outlandish to a mainland European. To my knowledge this simply is not an issue here, I am not sure why, maybe it is because the campuses are different themselves and essentially don’t exist in the form they do in the US with the student population dispersed across the town and generally living the same way the non-students do in the city, except that in the morning they go to lectures instead of work. But maybe there is actually something bad about the way things are done in the US and while the “SJW” answers might not be the best, perhaps it is an actual problem there.

            Essentially, what I’m getting at is to get a full view of some ideas, it is a good idea to look at other countries. One often has a certain cultural background and takes it for granted but things might be sufficiently different in other places that it makes one rethink or refine his conclusions. I am not sure if that is a trivial statement or not. Also knowing history really well helps. Not the names and dates but what happened and what it lead to and why. There will necessarily be multiple interpretations of those, so one should also try to see more than one of them. But I generally tend to agree with the statement that “history is all the data we have so far”.

            One interesting historic example I learned about recently is that left-handedness was probably a non-issue for the most part until something like 19th century. So instead of it being the case of “bigoted medieval primitives”, it seems to be a case of an obsessive need of enlightenment (and slightly beyond) intellectuals for evenly spaced grids and standardization of everything. Fortunately, the idiotic practice of force teaching left-handers to do things with the right hand died out again around the time of my grandparents. But even minor things like these make one think about some ideological narratives a bit differently.

          • liskantope says:

            It seems to me that (almost?) all women have problems with sexual harassment and rape. This doesn’t even seem to be a “you have to accept some people are different” issue, it seems to be a “most people are actually pretty similar” one. The only thing that’s weird is that it seems to differ by gender, ie a lot of men have trouble understanding why it seems so violating to most women.

            (though there’s actually a really strong evo psych explanation for why this should be – see here)

            Yes, most women have a very big problem with sexual harassment and rape, and IME most men have a problem with women being sexually harassed and raped also (as well as not liking it happening to them, of course). That is, modulo differences of opinion about varying forms of everything that falls under the category of “sexual harassment” and “sexual assault”, in which men probably do judge many acts less harshly on average, but there’s enormous variance in how women react to and judge these acts as well! What commenters like ilkarnal are driving at, I believe, is that in cases of certain relatively mild flavors of sexual harassment and assault as well as other offenses, there is a wide variance in reactions on the part of the victim, and in some individual cases these are more “necessary” than others. We should all be open-minded about accepting people’s testimonies of their own personal limits and particular sensitivities, while at the same time critically scrutinizing our own sensitivities (up to a point within reason, of course) to make sure that our negative reactions are really the best we can do.

            To give an example that comes to mind, around a decade ago I had a girlfriend who from time to time went out to dance clubs with some other friends of hers without me (after realizing that clubs really aren’t my cup of tea). After one such evening out, she told me that a guy suddenly came up from behind her and grabbed her by the waist in the parking lot. As she described the scene, she said she was ready to turn and punch him in the gut to defend herself, but at that moment one of her guy friends intervened. She related this very casually to me the next day and I took the story with sympathy but also casually, as we both sort of accepted that this is just the way a lot of guys behave at clubs. This experience didn’t seem to traumatize her in the slightest and didn’t deter her from going out to more clubs (I was mildly nervous about her safety but knew she was careful and tended to stick with her guy friends). It never occurred to me, nor did it seem to occur to her, to use the words “sexual assault” to describe what happened.

            Now that was back when we were all college-age and basically proto-feminists (in my case, more of a proto-rationalist-skeptical-about-some-parts-of-proto-feminism) and when anti-assault activist culture wasn’t quite what it is today. Nowadays it is obvious to me that this was an instance of sexual assault and completely unacceptable, and that we were tacitly adding to the problem by adopting the “boys will be boys at clubs” mentality. This is a good and much-needed development. But I wonder whether if it happened to my ex-gf (who has since made the full transition into modern SJ-ish feminist) today, or to another woman steeped in anti-sexual-assault culture, they would have a more negative reaction. I know that for many people (possibly including myself; I have no way of knowing), such an experience is traumatizing on some level regardless of their cultural environment, and that they are perfectly normal. I know that there’s nothing they can do about that, and that the onus of blame is entirely on the perpetrators of this ugly behavior. But I’m also sure that it’s not the case for everyone, and I’m glad it evidently wasn’t the case for my ex-gf, and I don’t care for anti-assault rhetoric that implicitly dictates that all women who suffer each and every form of sexual assault have to react extremely negatively.

            The fact that men have a harder time understanding why certain milder forms of sexual harassment and assault are horrible IMO doesn’t require any weird, creative evo-psych explanation. I think Nancy above more or less nailed it: a lot of men are rather starved for sexual attention and don’t have to put up with the constant overabundance of it that many women do. So when they try to put themselves in the place of victims without considering the full context of women’s experiences, their kneejerk opinion is “it couldn’t be all that bad”. Case in point (I’m a man): if I got catcalled on the street tomorrow, I don’t think I’d find it at all scary as long as it wasn’t at night, and I’m pretty sure it would make my whole week. If it happened a second time, I’d probably still be smiling broadly. But on the hundredth time… not so much.

            I’m afraid I’ve put some of this a little crudely and not explained myself that well, but unfortunately I’ve got to go for now.

          • blaisorblade says:

            > Anecdata: A man in his thirties telling me that after dealings with a particularly awful woman that now he understood what women mean by sexual harassment.

            While I fully respect LGBTs, stereotypical male homophobia is probably another example of men understanding sexual harassment. Though using it in an educational campaign would be problematic.
            Homophobe men seem afraid (unreasonably) to be violated by gay men, either through rape or through simple harmless desire, because they assume gay men would fuck every man if they could (like hetero men, to a very rough approximation, would fuck every woman if they could).

            Once a gay man complimented a hetero’s man legs. The latter (a homophobe) was disgusted and later said so.

            I’m not defending homophobia, I’m just modeling a mechanism which might explain it, even though gay men aren’t in fact busy raping heteros.

            I dreamed up this idea recently, but it seems well-known. Yet, somehow most of us men don’t get why women are disgusted by harassment.
            http://www.bidstrup.com/phobia.htm
            https://www.democraticunderground.com/10022829248

          • Hyzenthlay says:

            @leoboiko

            I’m also glad that the norms have changed in this regard. I’m bisexual too; I kept it hidden for a long time so I didn’t experience the same degree of bullying, but I don’t want to go back to a world where people are shunned or ridiculed for this.

            I wonder how much of the change, though, is due to things like “shaming people for making gay jokes” and how much of that change is due to other forces. During the nineties, a lot of gay and bisexual people were coming out; I think that’s partly because the Internet made it possible for people to connect and find each other and see that there were actually a lot more of us than we thought, and that it wasn’t actually that unusual. And the more people came out, the more everyone realized that they personally knew one or more non-straight people–that they had gay/bi friends, neighbors and family members–and furthermore, that most actual queer people didn’t fit the media stereotypes.

            I often feel conflicted, because I do appreciate the social progress and the huge shift in the Overton window that has occurred over the past few decades. But I’m also deeply uncomfortable with the aggressive shaming tactics used by people in the SJ community. It’s not at all uncommon to see someone’s career ruined, or see someone made a target of an organized online shaming campaign (complete with death threats and harassment) for making an ambiguous remark that someone interprets as racist/sexist/homophobic.

            This is not a comfortable environment to exist in, because even if I am a member of several minorities, I also enjoy a lot of politically incorrect humor (of the non-hateful variety) and am socially awkward and have a bad case of foot-in-mouth syndrome. So even though I am one of those marginalized people they’re supposedly trying to protect, SJ zealots are often just as scary to me as bigots. And I know I’m not alone in that regard.

            I’d like to believe that we don’t have to choose between option 1 and 2. “A world where people are mocked/shamed/ostracized for being different” and “a world where people are mocked/shamed/ostracized for any remark that might be interpreted as offensive” both seem like bad options to me.

          • Hyzenthlay says:

            @liskantrope

            anti-assault rhetoric that implicitly dictates that all women who suffer each and every form of sexual assault have to react extremely negatively.

            I think a lot of the feminist rhetoric around rape is actually really harmful to rape survivors.

            I mean, I am glad that people are more concerned about consent now and aware that grabbing/touching anyone without their consent shouldn’t be tolerated. But there’s a tendency in a lot of circles to talk about rape (or any form of unwanted sexual contact) as though it’s the worst, most degrading, most unpersoning possible thing that could happen to a human being. I’ve heard numerous people make the claim that rape is worse than murder, because the victim is left alive to suffer the psychological repercussions. This always angers me, because I know rape survivors, and the people who say stuff like this are basically telling them that they would be better off dead.

            I can’t imagine it helps much in the recovery process either. Most people who have been through something traumatic need hope and encouragement, assurances that the traumatic incident doesn’t define them and doesn’t have to ruin their life. What they get instead from the feminist community (the more extreme ends, anyway) is people saying that what happened to them is “worse than murder.”

            I would personally say “rape can be really traumatic but it is one of many traumatic things that can happen to a person.” And that murder is worse than all these things because it ends any potential for recovery.

          • Kevin C. says:

            @Hyzenthlay

            But there’s a tendency in a lot of circles to talk about rape (or any form of unwanted sexual contact) as though it’s the worst, most degrading, most unpersoning possible thing that could happen to a human being… numerous people make the claim that rape is worse than murder… people who say stuff like this are basically telling them that they would be better off dead.

            This is hardly a new view, though, so much as an old one in new clothing. After all, examine the history of the phrase “fate worse than death“.

          • Matt M says:

            Most people who have been through something traumatic need hope and encouragement, assurances that the traumatic incident doesn’t define them and doesn’t have to ruin their life.

            Completely agree.

            I’m sure people will find this analogy offensive, but I’ll make it anyway. When a child falls down, you don’t freak out and start crying and sobbing about it – that’s what they are likely to do. Instead you head them off by quickly picking them back up, putting them on their feet, and saying “You’re fine, aren’t you?” You do everything you can to give them the impression that this is no big deal, that they can just shake it off and move on.

            I’m not suggesting we tell rape victims it was “no big deal” – but there’s definitely a happy medium here somewhere in between “no big deal” and “you’d be better off dead” and I think we’re slowly and steadily straying farther and farther away from it.

          • liskantope says:

            I agree with all three commenters just above me, although I maintain that there is less somewhat variance in reactions to rape as opposed to harassment and assault, and that most men are pretty much in agreement on the awfulness of rape.

            I interpret this as yet another instance of the ubiquitous tension between the deterministic mindset (which has the advantage of leading to higher levels of sympathy/support/understanding of victims of horrible things, which will hopefully result in greater prevention of those things) and the “free-willistic” mindset (which has the advantage of being more empowering to victims). A careful balance of these is necessary, but lately in dealing with rape/assault/harassment the pendulum IMO has swung too far in the “deterministic” direction. (As some of you may know, my pet political theory is that the two main sides of the political spectrum are currently clustered roughly according to deterministic vs. free-willistic thinking, and indeed, rape/assault/harassment awareness has been taken up mainly by the Left.)

          • Jiro says:

            the problem with that system is it incentivizes people to self-modify (or just lie) such that they can extract infinite concessions from you.

            That may be a good point in the abstract, but it doesn’t really apply to “people are upset about being raped”. People aren’t upset at being raped because they have self-modified in order to extract concessions from you. People are upset at being raped because being raped naturally upsets them.

        • Mark says:

          We can decide that sex is super meaningful, and act accordingly….

          So no, sorry, no-one gets to say that their physical violation trumps someone else’s spectacularly in importance because it involved genitals.

          You seem to have revoked option one there in the space of about three sentences.

          (I’d say that most people, even the most liberal, do act as if sex were super-meaningful. Are there any people for whom sexual contact is as meaningless as hand contact, for example?)
          ——-
          I guess this comes down to the old adage “You can’t manage what you can’t measure.”

          Perhaps the better solution is to stop trying to manage.
          Our methods of measurement are not yet sufficiently advanced, so we cannot manage – vs. – we must manage in accordance with the data we currently have.

        • doubleunplussed says:

          Of course you can’t let people attach arbitrary significance to things. Interpersonal utility comparison is a hard problem. I didn’t say we should base a legal system around respecting people’s announcements of their preferences in general, I was talking specifically about rape.

          And I appealed to history and the diversity of different cultures that all seem to hold this same value, because that makes it more likely that it’s a real preference and not just invented to benefit a specific group in a specific political context.

          It’s not bulletproof, but I’m happy to say I don’t think they’re making this one up.

          It’s the same distinction as the post itself is making – you can admit there is an underlying truth and express opinions about it whilst also saying that the law should not in general allow people to have that much discretion.

          Actual consent is hard to determine, so the legal system relies on proxies for it like explicit consent.

          Actual preferences are hard to determine, so I don’t know what the legal system should do in general, but it certainly shouldn’t just take people’s word for it.

          Individuals though are free to use their judgement as to whether they’re facing a utility monster or not.

    • ashlael says:

      So… to be clear, under this philosophy exactly how much sexual contact would I be able to have with a woman against her will without going to jail?

      • ilkarnal says:

        You going to jail or not should depend on the damage you do. Just like if you punched someone. Ask all the same questions about punching someone – just how many times can I punch someone and not go to jail? What if I make a really angry face while I am doing it? All that can be said is – the consequences to you should be fairly proportional to the consequences to the person you’re punching. If you punch someone a thousand times without any physical damage being done, no it isn’t a big deal. That doesn’t mean it should be socially tolerated, it just means that going full code red, bring in the armed peacekeepers is really stupid.

        • Scott Alexander says:

          Are you sure this is true? I think it’s correct for drunk drivers to get punished even if they luck out and don’t hit anybody. The same is true of terrorists whose bombs fail to go off. But that’s a case of literally zero damage, so it doesn’t seem like punishment should depend on how much damage you do.

          • Jack Sorensen2 says:

            According to Mothers Against Drunk Driving, there were 121 million episodes of drunk driving in 2015, and 10,265 people were killed in drunk driving accidents. My understanding is that the number of people who are “killed by drunk drivers”, in the sense that most people imagine, is much lower still – MADD’s own cite for this (in addition to not having numbers from 2015 as they claim, but rather 2014) shows that 64% of such fatalities were the drunk driver themselves, and another 15% their passengers.

            Anyway, depending on whether you discount those deaths, that means a given drunk driving incident has either a 1 in 10,000 or a 1 in 60,000 chance of killing someone.

            To punish all drunk drivers equally, you’d either have to let the ones who kill people off pretty easy, or punish a lot of people who statistically were unlikely to kill anyone.

          • Mammon says:

            Hypothesis: the calculus of punishment ought to take into account not what damage you have or haven’t caused, but what damage you/me/a reasonable person might have expected you to cause.

          • Evan Þ says:

            Based on Jack Sorensen2’s statistics, a reasonable person would expect any given drunk driver to cause little damage. Would you be fine with that consequence of your hypothesis?

            I wouldn’t.

          • Protagoras says:

            I think expected harm is the right thing to be concerned with, but that proportional punishment isn’t exactly the right standard. For a utilitarian, proportionality is at best a heuristic; if in a particular case they are especially effective in reducing offenses so that the punishments don’t need to be inflicted very often, much harsher than proportional punishments may be the utilitarian optimum (or of course conversely if in a particular case much milder than proportional punishments are sufficient to effectively deter extremely bad behavior, then punishments should be much milder than proportional).

            Still, it is often a decent heuristic, so more should perhaps be said. Taking the case of drunk driving, while the harm should be mulitplied by the risk, it actually makes some sense to do the same with the punishment. And only a tiny fraction of those drunk driving episodes lead to arrest and conviction. So a relatively harsh punishment is still fairly small when multiplied by the risk of it being actually inflicted, and as a result while the expected damage done by each drunk driving trip may also be small, that doesn’t necessarily mean we aren’t actually being close to proportional by inflicting fairly harsh punishments. Something similar may apply to the rape cases, though I don’t have as reliable of statistics conveniently at hand for that one.

          • keranih says:

            I think it’s correct for drunk drivers to get punished even if they luck out and don’t hit anybody.

            Scott, you think that, like most of your generation thinks that, because MADD poured tons of money and oceans of tears into shifting social mores until just about everyone born after 1980 buys the idea that having a drink whilst being in possession of a set of car keys is the moral equivalent of wanting to mow down a bunch of school girls.

            It wasn’t always like this.

          • Brad says:

            The driving enthusiasts that want to flip the rule that driving drunk is a relatively minor felony and reckless driving (speeding etc.) mostly violations because — hey who’s being harmed — ought to also support flipping the rules regarding actual crashes.

            As it stands today it is extremely rare for a vehicle fatality to be charged as manslaughter, much less depraved heart murder. Speed down a residential street, blow throw a stop sign, plow into a grandmother crossing the street and as long as you aren’t drunk in the most of the US you won’t spend a day in prison.

            If we aren’t going to have prophylactic rules that attempt to minimize vehicle harms than we need to have swift, certain, and harsh post hoc punishment in the hundreds of thousands of cases a year where serious harms occur.

          • Tom Crispin says:

            +1 for Brad

            That sober driver in his example should certainly face at least manslaughter charges

            An alternate legal regime would involve no laws against drunk driving per se but strict liability for alcohol use. That same incident would be capital murder in the drunk driving variant.

          • episcience says:

            If we aren’t going to have prophylactic rules that attempt to minimize vehicle harms than we need to have swift, certain, and harsh post hoc punishment in the hundreds of thousands of cases a year where serious harms occur.

            How does this make sense? Preventative rules are justified on consequentialist grounds — how many lives are saved by the rule? Post hoc punishment regardless of intent is justified on punitive grounds — it feels good to punish a wrongdoer. These are incommensurate! What measure are you using which allows equivocating between different philosophies of punishment like this?

          • Brad says:

            Post hoc punishment, especially where it is swift and sure, is justifiable on consequentialist grounds via deterrence.

            N.B. both negligence and intentional behavior can be deterred.

          • Spookykou says:

            My understanding was that drunk drivers often face a fine, at least for their first offense, I am not sure how hefty the fine is, but I also don’t know the current monetary value of a human life. Would it be possible to divide out what an approximately fair fine for engaging in behavior that has a 1 in 10,000 chance of killing someone would be?

            Also, this seems to be assuming that the laws against drunk driving do not reduce the number of drunk drivers.

          • baconbacon says:

            Post hoc punishment, especially where it is swift and sure, is justifiable on consequentialist grounds via deterrence.

            It cannot without an abundance of evidence in favor of deterrence, which consequentialists who favor deterrence have a tendency to assume, and not produce. It also requires that the other side effects of the deterrence don’t cause problems (which they often do).

          • pdbarnlsey says:

            Spookykou,

            The value of a statistical life is around USD3 million (my accurate values are for Australia).

            FWIW, negligence law adopts the “egg shell skull rule” which holds that conduct which would not have damaged a normal victim is not negligent simply because a particular victim was unusually vulnerable, but that the plaintiff is liable for any additional, unusual, damage suffered by the vulnerable victim.

            You also have to ask if the unusually vulnerable victim should have been within the plaintiff’s contemplation – so blindness is common enough that leaving something lying around which is dangerous only to a blind person can still be negligent.

          • Zakharov says:

            Taking $3M as the value of a statistical life, and a 1/30000 chance of killing someone else while drunk driving, that puts the cost of drunk driving at $100 per incident. The probability of getting caught is around 1/200, so a proportional fine would be $20,000 for getting caught drunk driving. This seems significantly steeper than the current punishment, but I haven’t taken into account the nonlinear utility value of money, which might affect things.

        • ashlael says:

          What does “damage” mean in this context? E.g. If a woman is raped, is the rapist liable for any bruises inflicted during the rape but not the rape itself?

          Or to use a less extreme example, if I give a woman an unsolicited pat on the bum, that should be considered no different to a pat on the back, regardless of how unwelcome she finds it?

        • habu71 says:

          I would absolutely agree with ilkarnal, but only if all of the damage caused by a specific action is taken into account. That is, for the example of the terrorist, a lack of punishment for an attempted bombing might encourage others to try. If one person’s driving drunk acts to make drunk driving more socially acceptable – and therefore more common – this can of course damage to others.

          In general I would posit that the full extent of damages from a particular action are rarely calculable – at least, with any degree of precision. Thus, in order to account for the errors and uncertainties in our calculations, we (as a society) tend to be conservative in our damage calculations. This seems to me to be especially true regarding actions for which there is a high variance in the distribution of potential damages – e.g. sex.

        • wintermute92 says:

          You going to jail or not should depend on the damage you do. Just like if you punched someone.

          Strongly disagreed. One of the deeply screwed up traits of our legal system is the way it reacts judges people based on unknowable factors external to their behaviors.

          If you punch someone, and they turn out to have an aneurysm, and it ruptures, and they get a crappy doctor who doesn’t save them when a better surgeon would have, that’s murder or at best voluntary manslaughter. If any of those exogenous factors didn’t pan out that way, it’d only be assault. No difference whatsoever in your behavior or intent, but a difference of ~20 years in prison.

          Under a rehabilitative or deterrent system of justice, this is insane. If anything the killer is probably less likely to reoffend, and the story is already a deterrent since most people who throw a punch don’t want to kill someone. It’s a purely retributive decision, and even in that context it’s only fair from a very narrow perspective.

          I grant that this is complicated. Proportionality is good in terms of predictable/intended consequences, and intention is not always a great metric for sentencing. Lots of fairly-functional laws ignore intentionality for practicality. (You can’t attempt murder with a voodoo doll, no matter how much you believe it’ll work. Although I think you can attempt murder with a broken gun you thought worked, which is further evidence that this is a broken system.)

          I think you’re talking about the practical consequences point, where sentencing people for hatred is stupid and we shouldn’t criminalize mindset behind a harm. I’m on board with that, but in practical terms it often involves criminalizing bad luck, and I think it’s something we need to be extreme wary of.

          • Matt M says:

            If you punch someone, and they turn out to have an aneurysm, and it ruptures, and they get a crappy doctor who doesn’t save them when a better surgeon would have, that’s murder or at best voluntary manslaughter.

            Can confirm. I once rented a duplex where the former tenant was in jail for manslaughter because he punched a homeless man trespassing on his property (technically, he chased him down the street and THEN punched him, which is why the authorities charged murder and he plead down to manslaughter), and it turned out the guy had a ton of medical problems and later died.

            All the pleading of “I just punched him once, with normal force, how the hell was I supposed to know he’d die?” did him approximately zero good.

          • pdbarnlsey says:

            See my comment above regarding the “egg shell skull rule”, which I think makes a reasonable amount of sense given the transaction costs associated with the legal system. You “take your victim as you find them”, so if you do something which would inflict harm on anybody, you take your chances as to their fragility.

            You’re not quite right, in theory, about the bad surgeon, etc. The legal system asks if any of the subsequent misadventures “breaks the chain of causation” between your criminal act and its outcome. It’s a deeply unphilosophical process, but, more or less, you’re up for anything which is the sort of thing that’s liable to occur, but not for any really unlikely stuff. So medical negligence, probably, ambulance crashing on the way to the hospital, probably not. In practice, in the cases I’ve read at least, not much actually serves to break the chain of causation.

        • AnonYEmous says:

          If you punch someone a thousand times without any physical damage being done, no it isn’t a big deal.

          i was wondering if you’d say this

          don’t you see the problem here, though?

          Like first of all, why does it even matter if you suffer damage? Let’s say I break your hand, so you can’t make money. So? What do you need money for? Some signals in your brain which I can’t verify? I don’t need money.

          If you want to drill down you can go down endlessly and so we’ve basically said, look, if most people agree, and if almost all if not all people have this certain feeling, then we’ll treat it as real. Sexual assault happens to be one of those things. If you’re one of the lucky few people who doesn’t feel pain, or doesn’t care about being raped, or could do everything with one hand tied behind your back, then bully for you, but everyone else disagrees.

        • Cliff says:

          Just to be clear, are you saying that it would be perfectly fine for someone to kidnap you, tie you up and anally rape you 5-10 times as long as they were gentle and there was no physical damage?

    • Jack Sorensen2 says:

      You can argue that there are various types of damage that specifically have to do with rape – psychological, sex-related (e.g. scar tissue forming that makes it harder to enjoy later), pregnancy/STIs, etc.

      But on some level all these rules about what’s legal rely on some sense of morality, and rape just offends our moral sensibilities. Rape is wrong for the same reason assault is wrong; it just is.

      You can try to justify assault being illegal based on some objective idea of “harm”, but that can’t be right, because there are other types of harms – measured in terms of how the victim is affected – that are not illegal. This is less the case for physical harm caused directly, but even so it’s not clear why we should be privileging “physical harm caused directly”. You could come up with some reason, and I could probably come up with some counter-example, and back and forth, but ultimately I think it really just rests on our inherent sense of morality.

    • herbert herberson says:

      The vast majority of people experience sex differently than than other forms of contact and if you want to participate in the discussion and/or not look like a weirdo, you ought to deal with that.

    • wysinwygymmv says:

      he problem is the idea that ‘rape’ matters very much at all, as a matter separated from the assault part of it. If someone punches me in the face that is a violation. Fucking around with my genitals isn’t any more or less relevant.

      Strenuously disagree. The brain has very different circuitry for processing sexy times vs smashy times — they are different things for most people from a phenomenological point of view, and we should be able to take that into account in law and other institutions that we use to deal with conflicts of interests, rights, privileges, etc.

      Verbal abuse alone can cause serious PTSD, incidentally. I guess if you take psychological damage into account it’s fine, but since that’s even more susceptible to your objection, I doubt you’re interested. But even serious physical wounds can often heal completely while undetectable psychological wounds can often ruin people’s lives.

    • agh says:

      The problem is the idea that ‘rape’ matters very much at all, as a matter separated from the assault part of it.

      Imagine I develop a pill which causes 95% of the population to become chronically depressed for the next three decades. If I pass that pill out to children, should I be punished more than someone who passes out gummy bears? Yes, you can claim that depression is a “physical effect,” but, hey, the physical neurological effects of raping someone are pretty well established too.

      See, I don’t want to minimize physical consequences, I want to minimize “subjective harm.” Unfortunately that’s more difficult to measure, and yes, I don’t want to allow people to game the system as you describe. So we have a few options. Here are two:

      – basically decide upon a schedule of subjective harms, and allow only minor deviations from that schedule. This is similar to Scott’s “be nice until you coordinate meanness” rule–if the vast majority of people agree that rape is uniquely bad, then we’ll write laws that treat rape as uniquely bad. If I alone claim that being punched in the shoulder is deeply injurious, then no one will write laws that support me in this.

      – alternatively, declare that only physical consequences matter. This has the advantage of being easy to measure and hard to game, but the disadvantage that I can’t be punished for many harmful things. It’s hard to think of a reductio that’s *more* absurdum than the example of rape, but, uh… kidnapping a baby and raising it as one’s own causes no physical harm to anyone, but it causes lots of subjective harm and we punish it accordingly.

    • carvenvisage says:

      This is like saying that because a boxing gym is a more violent place than normal, you can kill anyone you find there “because they’re violent anyway”.

  5. Nornagest says:

    In fact, their sex drive often stronger than normal

    I think you a verb.

    • DominikPeters says:

      Also: Jeff McMahan is a co-author of the piece (he is a prominent Oxford ethicist), so it may be useful to mention his name somewhere.

  6. Gazeboist says:

    Your BETA-MEALR link goes to a google search, rather than to your article on the subject. This doesn’t seem to be deliberate?

  7. doubleunplussed says:

    I completely agree, the only sense in which I don’t is that I’m less hesitant about it.

    *Actual* consent is the gold standard. That’s what you want. Animals can give it without understanding it, and for the vast majority of human sexual encounters, people know consent when they see it without having to communicate it.

    *Explicit* consent is a legal invention to make it easier to enforce the edge cases. It’s a convenience, because we don’t want judges and juries to have to to get to know every person on a personal level in order to work out what they like, and we don’t want people to be trying to be tempted to fool the legal system. Even if they fail and always end up in jail, we want them to not even try.

    Honestly I think we need to chill about it a bit more. Explicit consent is being treated as the gold standard purely because it’s more measurable. People are forgetting that it is just a proxy for an underlying thing and treating it as a sacred value in itself.

    I was thinking of the animal example before you gave it. I’ve heard the argument used to justify bestiality (“Your honour, my dog came on to me!”), and I find the it totally compelling from a moral perspective, it’s just that it’s not convenient to fit it into a legal system without creating undesirable incentives.

    • HeelBearCub says:

      Yes, actual consent is the gold standard.

      However, I think the general issue is not that people don’t understand that actual consent is the standard, but rather that we wish all parties involved to actually know that everyone is actually consenting.

      • keranih says:

        However, I think the general issue is not that people don’t understand that actual consent is the standard, but rather that we wish all parties involved to actually know that everyone is actually consenting.

        Emm. No, not for me. I wish for people who don’t consent to be not involved. The non-consent has to be obvious, as does their non-involvement.

        I know I’m getting to quibbling, but this whole mess is about quibbling, and fuzzy lines, and deliberate lack of clarity.

        • HeelBearCub says:

          @kerinah:
          And how is a non-communicative MS patient supposed to do what you are asking?

    • Randy M says:

      Consent is not actually a compelling justification for outlawing bestiality, especially given the other areas where the beast’s consent is disregarded. Show me a dog that wants to be on a leash (once you’ve left the indoors, anyway). On the other hand, animal breeders are not monitored to make sure both parties are enjoying the mating.

      • The original Mr. X says:

        Consent is not actually a compelling justification for outlawing bestiality, especially given the other areas where the beast’s consent is disregarded. Show me a dog that wants to be on a leash (once you’ve left the indoors, anyway).

        Or, indeed, the cow that wants to be killed and eaten.

        • Jiro says:

          The cow that wants to be killed and eaten falls under blissful ignorance. You need to look at the preference of a hypothetical base-state cow. , not a cow which no longer considers being eaten to be harm.

  8. metacelsus says:

    I commend Singer (and McMahan) for publicly stating a well-thought argument, even though they knew their conclusion would be politically unpopular. Too often, good ideas are kept silent for fear of ostracism.

  9. blacktrance says:

    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

    If someone said “they didn’t struggle to resist, so it wasn’t rape” about a mentally competent person, everyone would rightly be up in arms, and it seems even worse in this case.

    • Scott Alexander says:

      I think that’s because in people who are capable of verbally consenting, it’s a powerful safeguard to make sure they verbally consent, and so the legal system has an interest in enforcing that safeguard.

      In cases where it’s impossible to use that safeguard, I would rather try to do the best we can with what we have.

      I’ll again make the analogy to surgery. If someone’s too disabled to consent to surgery, we let doctors and lawyers make the decision among themselves. This is good even though we shouldn’t allow doctors and lawyers to make that decision for somebody who is capable of consenting.

      I am also not in favor of using “they didn’t resist” as a lone criteria so much as one of many things that try to get at whether they are clearly in favor of or against what’s going on.

      • AnonYEmous says:

        also mentally competent people can register their displeasure via merely words, i.e. saying “no”

        in other words it’s more about “this person showed no signs of resistance”; there are extremely creepy edge cases where women show literally zero resistance, and I even read about one once, but usually if you show literally zero resistance I just chalk it up as “not my problem”.

        • wysinwygymmv says:

          @AnonYEmous:

          in other words it’s more about “this person showed no signs of resistance”; there are extremely creepy edge cases where women show literally zero resistance, and I even read about one once, but usually if you show literally zero resistance I just chalk it up as “not my problem”.

          Have you ever been driving late at night, encountered a deer in the road, and had to slam on your brakes because the damn thing is stupidly staring at you as you barrel towards it in a 1.5 ton hunk of metal and plastic?

          “Fight or flight” is an incomplete description of the mammalian fear response. A more complete description: “fight, flight, or freeze”.

          It is incredibly common for human beings when faced with potentially existential danger to simply freeze up. Not just women.

          But in the case of women, they tend to be socialized to take more passive, less-confrontational approaches to problems of all sorts, and I think it should be expected that this socialization would carry over to cases of sexual violence. Since I know you are on the conservative/reactionary side of things, it seems to me like you should take this point seriously — are you sure you want to encourage women to be more like men with respect to how they respond to physical violence?

          Finally, there is the consideration that fighting back during a sexual assault or rape invites escalation of physical violence. If a woman doesn’t fight back against her attacker it may be because she fears she will be wounded more seriously or even be killed if she does so. This doesn’t mean that rape isn’t bad, just that rape plus serious injury or death is even worse. The badness of the rape shouldn’t be nullified because the woman decided to be cautious regarding the potential fallout from fighting back. This seems like the most important point to me. A woman shouldn’t have to risk her health or life to ensure that her attacker is held accountable for his actions.

          • HeelBearCub says:

            I feel like this comment from the next post is especially cogent.

            The guy in charge is looking the participant in the face, under completely controlled conditions *in a room full of breathable air*, giving him the signal to switch gas sources, and the participant is looking right back at him, slightly bugeyed, not doing it.

          • Squirrel of Doom says:

            I’m sure there is some truth to this, but it seems unusable as a standard for being sure that the person you’re having sex with is *really* consenting.

            If fear can make you not resist or not say “no”, surely it can also make you say “yes”, sign sex consent forms, or fulfill any other criteria.

          • wysinwygymmv says:

            @Squirrel of Doom:

            I think you may have misunderstood my comment:
            1. I’m talking about instinctual panic reactions, not what people will do if they are threatened or otherwise under duress.
            2. My point is that when someone fails to resist while being raped, the assumption should not be that they are consenting. In light of this, I do not understand when you say: “it seems unusable as a standard for being sure that the person you’re having sex with is *really* consenting.”

          • AnonYEmous says:

            Finally, there is the consideration that fighting back during a sexual assault or rape invites escalation of physical violence.

            A meta-point and a relevant one: I do not view physical resistance as a requirement to rape; verbal resistance is just fine. However, the meta-point – in this case verbal resistance or verbal consent is impossible, which means we must resort to cruder means, like physical resistance, which we, or at least I and many others, would prefer to not have to resort to, under the understanding that it may cause a higher-than-average failure rate, but may also be better than the alternative.

            Since I know you are on the conservative/reactionary side of things, it seems to me like you should take this point seriously — are you sure you want to encourage women to be more like men with respect to how they respond to physical violence?

            Sadly you’ve pegged me incorrectly, and I would love this. Seriously, unless we’re actually going to regress back to that type of a society (and I express no explicit desire for such), women cannot simply freeze up in the face of violence, because there are no societal safeguards to protect them. If no one will come running when you scream, then you have to do more than just scream.

            As an aside, I’d view myself as fairly conservative, but “anti-SJW” more than reactionary. I’m not interested in oppressing women, just defeating false claims of oppression.

            “Fight or flight” is an incomplete description of the mammalian fear response. A more complete description: “fight, flight, or freeze”.

            Fascinating, but to actually get all the way through a sexual act and still stay frozen sounds like, well…I don’t know why HBC posted that because it kind of proves my point:

            The guy in charge is looking the participant in the face, under completely controlled conditions *in a room full of breathable air*, giving him the signal to switch gas sources, and the participant is looking right back at him, slightly bugeyed, not doing it.

            Unless the woman in question is literally experiencing unsafe levels of blood Co2, it seems like in most cases she’d be able to at least do something minimal like say “no”. And like I said, those few edge cases are incredibly creepy…which is why feminism should get back to empowering women so they don’t fall into those edge cases.

          • HeelBearCub says:

            @AnonYEmous:
            Oh, c’mon now.

            I’m simply proving (well, providing one anecdotal point in support of the point) that it’s possible for the brain to enter a state which renders someone essentially paralyzed, even when any truly rational actor would behave differently.

            This kind of shot happens all the time in all sorts of situations. You can’t just wish it away because it would be convenient if it were not true.

          • AnonYEmous says:

            Oh, c’mon now.

            Couldn’t resist trying to pull a reversal. And I think I managed it well enough, to be honest.

            I’m simply proving (well, providing one anecdotal point in support of the point) that it’s possible for the brain to enter a state which renders someone essentially paralyzed, even when any truly rational actor would behave differently.

            This kind of shot happens all the time in all sorts of situations. You can’t just wish it away because it would be convenient if it were not true.

            But I’d argue that, again, except for a few truly creepy edge cases, it doesn’t happen this way. Maybe I’m wrong and there’s strong proof of me being wrong. But it sure seems to me like there isn’t. And again, if there is, I task feminism with empowering women such that they don’t freeze up like this. After all, they’re not dealing with Co2 flooding their veins, just a guy who may or may not be a rapist. (Note that if he is, obviously just saying “no” isn’t going to stop the rape, but it will criminalize his action. If he’s not, hopefully he stops, or at least gives you enough signal that he’s not a rapist.)

          • HeelBearCub says:

            @AnonYEmous:
            Freezing in stressful situations is not extremely rare, it’s well known. And it has a low-level biological explanation.

            Sure training can mitigate this risk, but that would require honest conversations to be had about sex. You might have noticed that people who are in favor of a greater emphasis on consent are also in favor of comprehensive sex ed.

            What the consent movement wants is for people to have (more) honest conversations about sex before they have it. If someone stops responding in the middle of sexy-times, the person still acting has a responsibility to figure out what the heck is going on. If they just assume they know, that’s on them.

          • AnonYEmous says:

            Freezing in stressful situations is not extremely rare, it’s well known. And it has a low-level biological explanation.

            But we’re talking about situations where you’re, at least hopefully, engaging in sexual relations with someone you know to some extent. How long can you stay frozen? And if it’s that easy to just paralyze you completely, then that does signal a severe lack of disempowerment.

            Understand that the consent movement, which you refer to, is trying to move the incredibly lower bar up a couple of notches. But currently the bar for avoiding the ambiguous situation is incredibly low – say “no” once or twice.

            Sure training can mitigate this risk, but that would require honest conversations to be had about sex. You might have noticed that people who are in favor of a greater emphasis on consent are also in favor of comprehensive sex ed.

            Good for them!

            What the consent movement wants is for people to have (more) honest conversations about sex before they have it. If someone stops responding in the middle of sexy-times, the person still acting has a responsibility to figure out what the heck is going on. If they just assume they know, that’s on them.

            They have, perhaps, a moral responsibility to know. Not a legal one. I’m fine with condemning certain cases as creepy; see above. I just balk at the overall idea of declaring creepy men to be rapists.

    • caryatis says:

      You’re confusing “not resisting” with “non-verbally consenting.” Those are very different things.

    • doubleunplussed says:

      They would be up in arms, and they’d be right that it’s not a good argument in court, but they’d be wrong if they’re implying some fundamental moral principle had been violated. The vast majority of human sexual encounters don’t involve explicit consent, but people manage to keep their wits about them and not declare most sex to be rape. I know perfectly well that my girlfriend is consenting whether she says it or not, and I’m absolutely using her lack of objection as evidence of consent. I know that she would be likely to object if she didn’t want to bang, therefore lack of objection is Bayesian evidence for consent.

      It’s not that hard, and people are twisting themselves in knots trying to act like the legally pragmatic idea of explicit consent is the platonic ideal of actual consent, when it’s not. It’s just a particularly strong piece of Bayesian evidence for it.

      • blacktrance says:

        Consenting partners typically indicate their desire somehow, even if not explicitly and verbally. But lack of resistance isn’t an indication of desire.

      • wysinwygymmv says:

        It’s not that hard, and people are twisting themselves in knots trying to act like the legally pragmatic idea of explicit consent is the platonic ideal of actual consent, when it’s not. It’s just a particularly strong piece of Bayesian evidence for it.

        1. It’s in the interest of people who want to commit rape to blur the lines around consent as much as possible.
        2. A common and possibly quite sensible response to sexual assault and/or rape is to avoid resisting at all to avoid escalating any physical violence that might be involved.

        Combine these and you see why people might tie themselves in knots about this issue even if they are not actually Platonists.

        • doubleunplussed says:

          Sure and I don’t mind the self-knot-tying when it comes to discussions about the law – I’m just complaining about confusing it with having purely academic discussions about morality. The law, as well as certain publicish conversations, should take into account the incentives they create. But conversations between individuals should be allowed to disregard the very small incentives they create and talk about what’s actually moral, rather than “what would it be best for us to say is moral”.

        • Brad says:

          I think part of the problem in terms of people talking past each other is that we are framing adjudicatory rules for the primary purpose of establishing norms rather than because they are plausibly useful in adjudication.

          In narrow terms of adjudication what difference does it make what the exact contours of the definition of rape is? People on both sides will say what they need to say and the adjudicator will have to do a credibility assessment.

          The main purpose of promulgating a rule that consent must be explicit is to try to convince people out there in the wild to seek and offer explicit consent.

          Whether or not it’s a good idea to promote such a norm I don’t think that way of doing so is particularly great either in terms of establishing norms or having an effective adjudicatory process.

  10. Ozy Frantz says:

    Actually, DJ appears to have attempted to nonverbally refuse consent. From an article about the case:

    They met the following Sunday at D.J.’s house, while his mother was at church. They tried to kiss while lying down on D.J.’s bed, on the theory that it would be easier, given his impairments. But D.J. 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 D.J. scooted out into the hall. ‘‘Look, whatever we’re going to do, you set the pace,’’ she told him. ‘‘You call the shots. This is all about what feels right for you. I just love being close to you in whatever way works for you and for your body. No pressure.’

    A few minutes later she was naked.

    ‘‘I’ve dreamed about this,’’ he typed.

    At his request, she said, she pushed down his pants, loosened his diaper and performed oral sex on him.

    When she initially kissed him, he sat up, lowered himself onto the floor, and scooted away. This seems to me to be a pretty clear nonverbal revocation of consent. She then had oral sex with him anyway. If that does not count as nonverbal revocation of consent, I’m not sure what does.

    I think that there is a time and a place for abstracting away practical considerations in order to consider the philosophical issues, and the time and the place is not an article about a rape victim in which you are arguing for clemency for his rapist.

    • Scott Alexander says:

      Then I agree that this case is very bad and Stubblefield should go to jail (which I already agreed with) but continue to think it’s a useful principle that if people do seem to welcome advances we should respect their expressed opinion.

      • Ozy Frantz says:

        It seems to me that either:

        (a) Singer failed to read publicly available information about the case (the NYT article I linked is the #2 result for “Anna Stubblefield” when I search in incognito mode, the #1 being Singer’s own article) before claiming that DJ does not resist, which seems extraordinarily negligent.

        (b) Singer does not consider attempting to leave a situation to be resistance (in general? for cognitively disabled people?), which seems to be a clearcut case of rape apologism.

        Regardless, it seems a bit unreasonable to characterize the situation, as you did, as “It’s very clear from the second paragraph that if there was any sign DJ wasn’t okay with what was happening – if he were screaming or resisting or even frowning – Singer would no longer be okay with this.” DJ did express unwillingness and Singer is either extraordinarily negligent or fine with it.

        I agree that how to handle the sexuality of disabled people who can’t use words is an important problem. But it seems to me to spread far more heat than light to connect this to Anna Stubblefield, a woman who has achieved the remarkable feat of committing rape at least three different ways at the same time.

        • Scott Alexander says:

          I think the second paragraph, especially “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”, suggests that Singer either doesn’t know about the point you mention, or doesn’t interpret it the same way you do. It definitely looks like he is making his assumption that DJ wanted it a centerpiece of his case.

          I agree Singer should have been more careful. But I think if this is the true objection – that he linked a complicated real-world case to his abstracted-philosophical-opinion without checking whether it met all his conditionals – that it’s also more heat than light to frame this as “Peter Singer supports raping disabled people, he should never be treated as a credible ethicist again”

          • Ozy Frantz says:

            We have other points of disagreement, but I don’t expect to get you to change your mind about them. However, this seemed like a clear factual error on your part (presumably you hadn’t read the article I had) and so I was optimistic that I could persuade you to edit the post to fix it.

          • Scott Alexander says:

            I did edit the post to include some discussion of this and a link to your comment.

          • benquo says:

            Well, then the question is, why he dug up a whole bunch of stuff that looked like exculpatory evidence, but was lazy about the evidence on the other side, including evidence that would have invalidated the exculpatory evidence.

            That sure seems like the sort of thing you do if you like your conclusion, not the sort of thing you do if you’re being moved by your arguments, and it’s entirely fair to describe that sort of motivated reasoning as liking your conclusion, not as bringing up some interesting arguments.

          • Protagoras says:

            @Benquo, Perhaps also the sort of thing one might do if one had space constraints, and felt that the case for the other side had been adequately made by others.

          • nelshoy says:

            @benquo

            I think there’s also a distinction to be made between motivated reasoning to be right about the case, and motivated reasoning to search out an interesting ethical quandary.

        • Sniffnoy says:

          I agree that how to handle the sexuality of disabled people who can’t use words is an important problem. But it seems to me to spread far more heat than light to connect this to Anna Stubblefield, a woman who has achieved the remarkable feat of committing rape at least three different ways at the same time.

          Agree; this is exactly the sort of thing that is going to confuse people. More separation between the point and the particular case, and how this case doesn’t really actually illustrate that point, would probably be helpful.

        • Evan Þ says:

          As a footnote, Google results in incognito mode can still be partly-personalized, since they do some of their tracking by IP address. Yes, this could be considered creepy.

          Though in this case, that article’s also #2 for me (#1 being another New York Times article), and I’d never heard of the case before now. So, it seems to me your criticism of Singer is quite apt.

        • 27chaos says:

          a woman who has achieved the remarkable feat of committing rape at least three different ways at the same time.

          1. Normal rape.
          2. Disability rape.
          3. Power imbalance rape.

          Is this correct?

    • baconbacon says:

      When she initially kissed him, he sat up, lowered himself onto the floor, and scooted away. This seems to me to be a pretty clear nonverbal revocation of consent. She then had oral sex with him anyway. If that does not count as nonverbal revocation of consent, I’m not sure what does.

      Wait a second

      They met the following Sunday at D.J.’s house, while his mother was at church. They tried to kiss while lying down on D.J.’s bed, on the theory that it would be easier, given his impairments. But D.J. 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 D.J. scooted out into the hall. ‘‘Look, whatever we’re going to do, you set the pace,’’ she told him. ‘‘You call the shots. This is all about what feels right for you. I just love being close to you in whatever way works for you and for your body. No pressure.’

      XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

      A few minutes later she was naked.

      What happens in the XXX section is the relevant point. If he scoots out to the hall, and she takes off her clothes and follows him that is obviously very bad. If he comes back into the room on his own and comes near her that is a whole different ball game.

    • rahien.din says:

      I think there are legitimate and important concerns about the immense and obvious power imbalance, the murky role of facilitated communication, the sanctity of the patient-provider relationship, and the motive-state of a woman who “promised to sign a formal declaration saying she would leave her husband in five years and marry DJ.” Any of those things should have prevented this encounter.

      But I don’t see how you construe this interaction as coercive.

      According to your quotation, DJ indicated the following things :
      – He had dreamed about having sex with Anna
      – At first, he said he was happy to be having a sexual encounter with her, but also overwhelmed
      – After he took a pause and contact was reinitiated, he specifically asked her to have sex with him

      If each of those things is true – if we take him at his word – then DJ’s actions do not represent withdrawal of consent. Instead, it’s a forthright request for a slower pace. This is successful honest communication that exceeds the standard set by many initial sexual encounters. (I certainly couldn’t have managed it that well the first time I had sex.) Moreover, Anna recognized his hesitation, directly elicited his state of mind, immediately respected his need for a pause, and expressly told him they would only do what he was comfortable with. That is the exact standard of compassion to which we hold our sexual partners.

      So, from your quotation, we can’t reject the competing hypothesis : that DJ was honest about his needs and Anna was compassionate in her response, in a way that preserved his agency and permitted his consent. That’s antipodal to coercion.

      • Brad says:

        I think the scenario under discussion is under the premise that the entire facilitated communication thing is bullshit, and the question is: can we nonetheless infer anything from Anne’s testimony regarding DJ’s actions.

        They met the following Sunday at D.J.’s house, while his mother was at church. They tried to kiss while lying down on D.J.’s bed, on the theory that it would be easier, given his impairments. But D.J. 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 D.J. scooted out into the hall. ‘’Look, whatever we’re going to do, you set the pace,’’ she told him. ‘‘You call the shots. This is all about what feels right for you. I just love being close to you in whatever way works for you and for your body. No pressure.’’

        A few minutes later she was naked.

        ‘‘I’ve dreamed about this,’’ he typed.

        At his request, she said, she pushed down his pants, loosened his diaper and performed oral sex on him. They never finished — ‘‘I was close,’’ D.J. typed

        • rahien.din says:

          I thought I addressed this :
          – There are legitimate and important concerns about … the murky role of facilitated communication
          if we take him at his word

          Seems sufficiently caveat’ed.

          • Christopher Hazell says:

            That kind of feels like a “no duh” statement though: If we accept Stubblefield’s testimony than DJ is a mentally competent person who consented to sex with his therapist.

            Not only are there reasons to doubt that scenario, but such a scenario is completely irrelevant to what both our host and Singer and MacMahon want to talk about, so of course it’s glossed over.

          • rahien.din says:

            Christopher Hazell,

            My objection was to Ozy Frantz’s claim that DJ’s physical actions necessarily constituted a hard withdrawal of consent. That is entirely dependent – as I said – on whether we can trust the account describing his communication.

            Again, again : seems sufficiently caveat’ed.

          • vV_Vv says:

            if we take him at his word

            If we take him at “his” word then he is a smart and very articulate man who expressed explicit verbal consent to sexual intercourse, so there is no case, as Stubblefield still desperately argues.

            But the point is that we can’t take him at “his” word because facilitated communication is almost certainly nonsense, and he is a very low IQ, non verbal, man who is obviously incapable of expressing verbal consent, and may not be even able to understand the concept of consent to sexual intercourse. The point is whether he nevertheless expressed some kind of non-verbal consent or at least some form of willingness to partake to sexual intercourse.

            From the article it seems to me that he most likely didn’t, and in fact was probably at the very least annoyed by sexual acts being performed on him.

          • gbdub says:

            Seconding rahien.din here – Ozy’s quote implied that Singer is a bad man, and Scott wrong to defend him, because the description of the events Ozy quoted should have made it obvious to Singer that a rape occurred.

            But that’s only obvious if you presume Anna was lying – and that’s rather begging the question. There may be other reasons to doubt Anna, but Ozy didn’t provide those.

            Because if you do “take him at his word”, which is kind of the point of Scott and Singer’s exercise, it is at least plausible, given the quoted description, that “he was initially overwhelmed, but wanted to continue after a break” is a truthful, not-rape explanation of the event. Both consent AND non consent ought to be voluntarily revocable.

            (Now, overall I find the case disturbing since I do think facilitated communication is open to abuse at best and total bullshit at worst, and doubly so when it’s the communicator/caretaker using it to justify their own behavior. But I also think that it’s enough of a gray area that using the case as a jumping off point for a discussion of the ethics of consent from the non-verbal shouldn’t be totally out of bounds)

          • Aapje says:

            @gbdub

            Singer builds his case around a lack of resistance by DJ, but Anne herself testified that DJ resisted and that she interpreted this resistance as a desire to take it slow.

            Singer doesn’t explain why getting onto the ground and scooting to the hall is not evidence of major resistance. It also strongly undermines the story that the sex involved consent, when DJ couldn’t indicate that he wanted to talk before she stopped kissing him and had to take such a drastic measure like moving to the floor, before Anne would use FC to try to get feedback. In itself, I consider this sufficient to consider Anne a predator who was far too insensitive to resistance.

            Imagine that DJ understood what was going on, but that Anne was making up her own narrative and unconsciously typing it out. If he didn’t want sex and resisted by getting on the floor, but he realized that Anne would rationalize any resistance as ‘take it slow,’ the logical outcome is that Anne would just tire him out until he couldn’t resist anymore and then abuse him. So in that scenario, DJ eventually no longer resisting can just as easily be taken as him being too tired to resist or resignation that he can’t stop the abuse no matter what he does.

          • Brad says:

            @gbdub

            Because if you do “take him at his word”, which is kind of the point of Scott and Singer’s exercise, it is at least plausible, given the quoted description, that “he was initially overwhelmed, but wanted to continue after a break” is a truthful, not-rape explanation of the event.

            I don’t think Scott at least is giving FC the benefit of the doubt. Look at this paragraph from the post:

            Anna Stubblefield was a professor who believed in “facilitated communication”, a Ouija-board-esque technique whose proponents say it allows them to talk to nonverbal disabled people who can’t communicate any other way, and whose opponents think it’s probably pseudoscience. She used facilitated communication on a nonverbal young man named DJ and “received” the message that he wanted her to have sex with him, so she did. When the story reached the wider non-pseudoscience-believing world, it looked like a pretty obvious case of rape.

            Scott’s position, pre-edit, was that disregarding the FC there were signs on non-verbal consent. Ozy pushed back and he edited in “(though likely false)”. That was the crux of the exchange — disregarding FC, what can we infer.

            There’s nothing wrong per se with rahien.din taking the position “hey maybe there’s something to this FC” but the place to make it wasn’t as an interjection between two people having a discussion coming from the premise that there isn’t.

            Contra Scott, Singer and McMahan are much more sympathetic to FC.

          • rahien.din says:

            vV_Vv, Aapje,

            Singer doesn’t explain why getting onto the ground and scooting to the hall is not evidence of major resistance.

            Missing the point entirely. We have acknowledged, unequivocally, that this behavior was at the very least a request for a pause.

            It was, however, not necessarily a permanent revocation of consent.

            From the top : we see a set of behaviors. One hypothesis is that DJ tried to nonverbally revoke consent, but eventually acquiesced. The competing hypothesis is that DJ asked for a pause without revocation of consent, and eventually got exactly what he wanted.

            I can not reject the first hypothesis. Granted. But even if we take as axiom that FC is bullshit, we still do not have sufficient grounds to reject the competing hypothesis.

            Consider the possibility that Anna correctly interpreted DJ’s desires throughout the entire encounter. FC doesn’t have to be valid in order for that to be true. In fact, it is possible that Anna’s FC’ing was entirely a pantomime on her part, but represented an acting-out of her intuitions regarding his desires. All is required is that she know him well.

            For comparison, (forgive the analogy – disabled people are not animals) think of how people communicate with their dogs. When speaking on their dog’s behalf (“Do you want to go outside? Yes, mommy, I want to go outside for a walk, get my leash!”) people are interpreting their dog’s actions and reactions, and using communicative faculties that the dog does not possess in an elaborate pantomime of verbal conversation. But the dog and their mommy are actually communicating in a mutual and successful fashion. If the human was to take the dog’s paw, and do FC, and conclude that the dog wanted its leash and to go for a walk, sure, the method is pseudoscientific at best but the conclusion is correct. And it is correct because the dog and owner know each other.

            No one – neither me, nor you, nor anyone else – has failed to imagine the myriad ways in which this could have been a coercive encounter. Plenty of people, though, are failing to imagine the ways in which this was actually not coercive. They’re ignoring DJ, who should be the most important person in this entire story.

            And that’s the thing I am driving at : making these leaps of judgment is essentially denying DJ any agency and writing him out of his own life, purely because he is disabled. It’s no better than when his mom held his tiny spastic body up to the jury for squick and said “Look at my son,” as though he were a piece of meat.

          • Aapje says:

            @rahien.din

            And that’s the thing I am driving at : making these leaps of judgment is essentially denying DJ any agency and writing him out of his own life, purely because he is disabled. It’s no better than when his mom held his tiny spastic body up to the jury for squick and said “Look at my son,” as though he were a piece of meat.

            The whole issue is that handicaps can make it very difficult or even impossible for some people to express their desires. A person whose preferences are impossible or extremely hard to ascertain requires that people make choices for this person. People who can’t express their desires or act on them, simply don’t have agency. This is not denied to them by man, but by nature.

            The standard in these situations is that we mostly assume the average preferences of able humans, but with restraint. Most able humans seem to prefer to be fed over starving, so we feed people who can’t feed themselves and can’t express that they don’t want to be fed. In contrast, most able humans seem to dislike having sex with random people who they did not choose as sex partners, so we tend to forbid sex with people who can’t express that they don’t want to.

            All these choices, both action and inaction, are choices made for the handicapped person that they may not agree with. We don’t do this because we are happy about violating agency, but because we simply can’t do any better.

            A lot of people want to do better, which is exactly why FC is so popular. However, that strong desire that you express over doing what the handicapped person wants, runs a big risk of people seeing what they want to see, which is exactly what scientific evidence strongly suggests tends to happen when FC is used.

            A huge risk is that people then let go of the rules that are appropriate for people who cannot express their desires, legitimizing it by claims that they can discern the desires, even though the methods they use are absolutely inappropriate to determine them. So they replace treatment that can reasonably be assumed to cause minimal harm on average with treatment that can reasonable be assumed to cause more harm on average. Also known as: abuse.

            Stubblefield most likely deceived herself about what DJ wanted and there is sufficient scientific evidence that she should have known about and acted upon to suggest that this was likely. She didn’t, which makes her extremely negligent. It’s perfectly reasonable to put people in prison for a very high level of negligence.

            PS. I disagree that his mother holding him up has the same chance of causing serious harm. I have never heard of a person who suffered from being held up as a kid, but I have heard about people who suffered from having sex when they were a child.

          • Brad says:

            @rahien.din

            FWIW, I think this latest post is much better and explains how we could conceivably get to consent with the premise that FC is bullshit.

            If that’s what you were going for all along then I think most of us missed it.

          • vV_Vv says:

            @rahien.din

            Ok, let’s have a look at these sexual encounters, according to the article [bracketed comments are mine]:

            “At his request [through the pseudo-scientific FC], she said, she pushed down his pants, loosened his diaper and performed oral sex on him. They never finished [he didn’t come] — ‘‘I was close,’’ D.J. typed [again FC]— but they had tickets for a disability-­related film festival at the Metropolitan Museum of Art. [sounds like a hell of an excuse]”

            “A week later, Anna recalled, the couple tried to have sex in Anna’s office at Conklin Hall, with condoms, a blanket and an exercise mat. It didn’t work, and they ended up just sitting on the floor together, Anna talking and D.J. typing. Anna asked him if he might want to see some pornography [she doesn’t say what didn’t work, but given she proposed watching porn as a solution, it means that he didn’t have an erection]”

            “The following Sunday in her office, it finally happened. D.J. ‘‘was very happy with what was going on,’’ she said in court [really?]. If he needed to say something, he would bang the floor [so happy], and she would pause to set him up with the keyboard. ‘‘It was a few hours from getting undressed to afterglow,’’ she said. [few hours during which he banged the floor multiple times for her to stop]”

            Does this looks like the behavior of a person, or even a dog, who wants to have and is enjoying sexual activity? If you disregard the pseudo-scientific FC thing, at no point he manifests any kind of interest or enjoyment, and in fact his behavior is consistent with him trying to resist and finally giving up after being exhausted by the “few hours” of her “love”.

            And mind you that this description of the events is based on Stubblefield’s own account, which is likely sympathetic to her. The true events could have been much worse.

          • Christopher Hazell says:

            rahien.din:

            “No one – neither me, nor you, nor anyone else – has failed to imagine the myriad ways in which this could have been a coercive encounter. “

            I can name two people who failed to do that:

            Singer and MacMahann.

            They take it as a given that DJ showed no signs of resistance and that the experience could only have been pleasurable for him.

            Yes, your story is a possible interpretation of what happened as we heard it; so is Aapje’s story about a man too confused or exhausted to continue resisting.

            No, a person physically attempting to leave a situation does not always, in every possible situation, indicate that they want it to stop.

            However, in many cases (Perhaps a majority?), it does indicate a desire to evade an unpleasant situation.

            Pete Singer is supposed to be some kinda intellectual big shot.

            He’s supposedly talking about what our policy, as a society, should be towards people who likely have adult sex drives but do not possess the intellectual ability to explain consent in a legalistic or philosophical way.

            If that’s what he’s doing, then he really ought to explain why we shouldn’t take an attempt by DJ to physically withdraw from Stubblefield as an indication of displeasure on his part.

            Aapje, me, you, we all understand why it certainly could be such an indication. And I think there are good philosophical, moral, legal reasons for in fact assuming, in cases of people who are otherwise non-verbal, that physical withdrawal from a situation indicates displeasure with that situation.

            Singer doesn’t address this: instead, he simply pretends that there is nothing in DJ’s behavior we could possibly see as an indication of displeasure.

            That seems unacceptably sloppy to me, and is also what I took to be Ozy Frantz’s objection.

          • rahien.din says:

            All,

            I hope it is needless to say, but, I am really enjoying talking with you.

            Aapje, vV_Vv, Christopher Hazell,

            I agree with much of what you say. It is immensely difficult to communicate with severely disabled persons, their mental capacities fall anywhere in a range from infant-level to adult-level, and thus the risks for this type of encounter are extraordinary. If you would claim that those risks completely disqualify these encounters from a practical standpoint, okay. Also : I fully acknowledge that one interpretation of Anna’s testimony is that DJ was utterly raped. You may be right that Singer is not allowing for that possibility – I, though, do. While I think this is clear, I’ll accept any blame for lack of clarity.

            These are strong points. I have patients similar to DJ, and if I ran into my own Anna Stubblefield, I would likely err on the side of extreme caution.

            But, as our host said :

            [I]gnorance isn’t a suitable foundation for ethics. It’s incredibly easy to ignore disabled people being sentenced to a life of involuntary celibacy, because ignoring marginalized people is always easy and convenient, plus enforced celibacy isn’t the same sort of flashy human rights violation that has a death toll in the thousands and helps sell newspapers. People who cobble together their moral systems from whatever helps them ignore bottomless pits of suffering most effectively will always have more convenient and presentable moral systems than people who don’t. But if we’re going to try to be good, we need to work for something better.

            If there is any single most important aim of this discussion, it is this : how can we grant or facilitate agency for severely disabled people, even in sexual encounters, given the known difficulties?

            The bare minimum requirement for this discussion is to presume that DJ could have wanted such an encounter to occur, and could have tried to communicate. This allows us to approach the problem more scientifically : formulate a hypothesis (DJ’s actions demonstrate significant resistance and/or revocation of consent) and a null hypothesis (DJ’s actions demonstrate his greater need for emotional or physical assistance during sex but not necessarily resistance and/or revocation of consent) and then examine the evidence.

            The extent of the responses to my null hypothesis have taken the form of the following claim : FC is bullshit, Anna is deluded, and communicating with disabled people is hard, therefore it is impossible that DJ’s actions constituted anything other than resistance and/or revocation of consent. Or, worse, resignation to rape at the hands of his interpreter.

            No. That claim is a serious error. For one, it objectifies DJ in order to focus the discussion on how deluded Anna is, or how pseudoscientific FC is. Those are the bailey. DJ, the only person of true importance, is in the motte. For two, it is entirely circular : DJ was raped, which we know because we interpret his actions as resistance, and we have that interpretation because we know he was raped.

            DJ is a 30 year old virgin whose disabilities likely extend to his sexual physiology and who can only perform certain gross motor actions. What would you expect a successful sexual encounter with DJ to look like?

            His mom commits the same error when she lifts him up by the armpits in the courtroom and squicks out the jury. Thinking from his perspective, if DJ is at all aware then this could be seen as a betrayal, almost regardless of the true events of the case.

            Brad,

            Thanks! But to be fair to everyone here, my original post was A. intended to pull toward agnosticism of FC, B. admittedly, a challenge, and C. only posed with the limited scope of a competing hypothesis to Ozy’s interpretation. Whatever improvement in my position, I owe that improvement to the ensuing discussion (y’all).

          • Aapje says:

            @rahien.din

            herefore it is impossible that DJ’s actions constituted anything other than resistance and/or revocation of consent. Or, worse, resignation to rape at the hands of his interpreter.

            Let’s be clear here: even Stubblefield interpreted it as resistance. She just claims that it was temporary resistance by DJ to pace the situation.

            I’m not claiming to know that she was wrong. I’m claiming that she had no good reason to assume that she was right. If a person has sex with someone who shows resistance and they have no good reason to assume that the resistance is not a lack of consent, then that is rape and deserves a conviction. It’s not necessary for them to know for sure that the resistance was permanent.

            Her entire defense is built around what DJ supposedly told her through FC methods. FC has been scientifically shown to often result in the facilitator influencing the outcomes. The fact that he had sex with him shows that she wanted sex with him. So the facilitated communication was consistent with her desires. A disability studies scholar and Professor of Ethics (Stubblefield) can be expected to be familiar with the scientific evidence for and against methods that she uses, as she has access to papers through her university, ought to be intelligent enough to interpret the papers correctly, etc. This evidence would have told her that what she was doing was completely irresponsible.

            So the most generous interpretation that I can give is that she is severely negligent, unprofessional and that she ignored the scientific standards that she was taught due to tunnel vision in a misguided attempt to help this person. This crossed so many ethical boundaries that it is unreasonable for society to let this happen or give her just a minor correction.

        • Nornagest says:

          Those responses sound awfully… conventional for someone who, whatever his mental capacity, certainly has very little experience. And the voice doesn’t sound much like the Wesley/Anna/DJ conversation below.

        • 27chaos says:

          Thanks for rewriting this, it helps clarify the objection a lot. I’d forgotten about the details of this incident.

      • dndnrsn says:

        This would require accepting Stubblefield’s claims that she was accurately reporting things DJ had actually communicated to her. The coverage of this whole situation raises a lot of questions in that regard – and FC is extremely controversial.

        • Randy M says:

          Have their been studies on it? Get three “interpreters” to work with the same patient without communicating with each other and ask simple questions to him determined by a third party, etc.? It seems like the reliability shouldn’t be unknowable.

          • Loquat says:

            Apparently the family in this case tried an impromptu test after learning about the relationship, and the results weren’t great. From the article Ozy linked above:

            Anna agreed to the test, and Wesley asked, ‘‘Who is Georgia?’’

            With Anna’s hand on his, D.J. typed an answer, very slowly, over several minutes: ‘‘Georgia in high school worked for Mom.’’

            Georgia, who died before Anna got to know the family, was D.J.’s ‘‘auntie.’’ She had often cared for Wesley and D.J., helping out when their mother was at work. Wesley said later that Georgia was D.J.’s other mom, that he loved her as much as anyone and that she made the best scrambled eggs and toast in the world.

            Then Wesley said he had a second question, and Anna objected.

            ‘‘Well, this is just a follow-­up question,’’ he continued. ‘‘Tell me who Sally is.’’ Sally was a nickname that D.J.’s family used for Georgia.

            Now D.J. typed, with Anna’s help, something about ‘‘Mom’s little nephew,’’ but the answer trailed off. As Anna remembered it, Wesley shook his head and said he hoped Anna could work out her marital difficulties. (In court, Anna’s lawyer argued that the answers to Wesley’s questions were correct: Georgia had ‘‘worked for Mom,’’ in the sense of helping her with child care, and she was ‘‘Mom’s little nephew’s kin.’’)

          • dndnrsn says:

            By “him”, I now assume you mean Singer – I thought by “him” you meant DJ; if that’s the case I misunderstood you.

          • dndnrsn says:

            Or, I didn’t. I don’t know if that’s enough of a caveat – evidently more than one person read it the way I did.

            FC’s role isn’t “murky” so much as, in this case at least, an ouija board that led to an evidently unbalanced woman raping a disabled guy, believing he was consenting. It’s not his word, is the problem.

        • rlms says:

          @Randy M
          My impression is that there have been, and they indicate it doesn’t work. But of course some interpreters claim that those in the studies didn’t know how to do it properly.

    • Ohforfs says:

      >I think that there is a time and a place for abstracting away practical considerations in order to consider the philosophical issues, and the time and the place is not an article about a rape victim in which you are arguing for clemency for his rapist.

      That is complete nonsense – you invalidate his own (if we assume the story is true which we do) communication about how he was “overwhelmed” and “needing a minute” (which is completely understandable in such situation) and his own actions which confirms his word (his getting out of the situation and then coming back).

      If anything he is acting more according to his needs than an average person who would probably angst about hurting their partner by “needing a minute” or scooting out.

      Consent is ongoing. He did consent at first, then did not and then went back again. Not rape not even anything close to it.

      • Evan Þ says:

        Problem is, “facilitated communication” is a hoax. We’re assuming that all the rest of Stubblefield’s story is true, but that part was coming from her not from DJ.

        • baconbacon says:

          Even if FC is a hoax (and I am willing to grant that as the null hypothesis), using the NYT’s summary which clearly cuts out the most relevant part of the event (ie what happens in the time between him scooting out of the room and the actual act), is problematic.

          • Brad says:

            If any of us cared enough we could pull the trial transcripts and check to see if there’s more, but at the end of the day we aren’t going to get great clarity here.

            We don’t have video. The only witness that can testify as to what happens is Anne. Even leaving aside the obvious conflict of interest, it is to my mind very likely that she has managed to convince herself that FC is real. Even if she 100% wants to testify truthfully on what occurred her memories are inevitably going to be corrupted by the communications she thinks took place.

        • Ohforfs says:

          Ah. Okay. Well, in that case, it does not matter much, as we (actually, no one) basically have no information.

  11. ashlael says:

    I think you get things backwards in your comparison between the mentally handicapped and animals, Scott. The reason we are so much more eager to prevent handicapped sex than animal sex is not because we care about animals more and want them to get it on. It’s because we care about animals much less and honestly don’t really care if they rape each other sometimes.

    Personally if I had to choose between a life without sex and a life where I got sex but there was a certain increased probability that I would be raped, I would pick the former. I think the status quo is the correct choice out of, as you said, a bunch of bad choices.

    • Evan Þ says:

      I think that’s part of the explanation, but I think that another part is our infantalization of the mentally handicapped: we don’t want to think of them as people who want sex. Look at how many parents are insistent that their perfectly able-minded teenagers were raped.

      • ashlael says:

        Speaking as someone with a severely autistic brother, I’m not sure how possible it is to not think of the mentally disabled as not sexual. They often lack the kind of social awareness of what is and is not appropriate behaviour. For men at least, the normal high sex drive coupled with a lack of inhibition means there’s not really any ignoring it.

        • Aapje says:

          I think that there is a big difference between ‘it’s impossible to not notice’ and ‘it’s impossible to ignore (= act on).’

          You seem to be arguing the former, but that doesn’t prove the latter.

        • Evan Þ says:

          What Aapje said. Parents manage to ignore it often enough for normal teens.

        • vV_Vv says:

          It’s not that we don’t notice it, it is that we intuitively think that it is wrong.

          It’s easy to make an evolutionary psychology argument about why the mere thought of severely mentally disabled people having sex triggers our disgust response, no matter our professed beliefs about parenthood being an universal right.

          • Brad says:

            It’s easy to make an armchair evolutionary psychology argument for anything. Doesn’t you mean you should.

          • vV_Vv says:

            Neither it means that you shouldn’t.

            Do you have any particular objections about the obvious evopsych argument here?

          • baconbacon says:

            What obvious evo psych argument is there?

          • Brad says:

            It’s a random just so story you made up. It is illegitimate for you to steal the positive associations the scientific project has earned by dressing your story up in science-y language.

            Is that a sufficient objection for you?

          • vV_Vv says:

            What obvious evo psych argument is there?

            That healthy people consider sex with or between severely disabled people (especially in the case of congenital disabilities) revolting as an adaptation to prevent faulty genes from propagating.

            Healthy people consider the severely disabled as unworthy sexual partners for themselves, their kin, and to some extent even for healthy strangers or other severely disabled if they are then expected to take care of the (possibly also disabled) kids. This prevents spending effort and resources on low-fitness genetic lines, allowing to concentrate them on the most promising ones.

            Apparently this offends Brad, for some reason.

          • baconbacon says:

            That healthy people consider sex with or between severely disabled people (especially in the case of congenital disabilities) revolting as an adaptation to prevent faulty genes from propagating.

            For a tendency to be genetic and spread across the overwhelming majority of the population there has to be persistent selective pressure acting on it. For this supposition to be true there had to have been tens to hundreds of thousands of years of mentally disabled people being born and living to reproductive age and reproducing.

            This is implausible. Infant mortality rates for humans were high, and significant mental defects are fairly rare (and heavily selected against on their own genetically). For small bands of hunter gatherers to have even a single one reach reproductive age in each generation is extremely unlikely.

          • vV_Vv says:

            significant mental defects are fairly rare

            Huh? Prevalences of autism and schizophrenia are about 1%, for bipolar disorder it is over 2%. Depression and anxiety disorders are even more common in modern society, but you could argue that they are probably more environmental and might not have been as common in the environment of evolutionary adaptation.

            And these rates only consider presentations of these disorders which are so severe that require treatment. Sub-clinical variants are even more common.

            It seems plausible that even in a small band of ~100 hunter gatherers there would be a few people with obvious mental abnormalities that reached fertile age.

            And in addition to the congenital disorders there were disorders caused by parasite infections, which would have caused additional selective pressure to evolve contact (sexual or otherwise) avoidance as an infection prevention mechanism.

          • Montfort says:

            Prevalences of autism and schizophrenia are about 1%, for bipolar disorder it is over 2%

            I’ll grant you the more severe forms of autism, but do most people feel a revulsion at the idea of people with bipolar disorder, schizophrenia, depression, anxiety disorders, asperger’s, etc. having sex? Not “don’t personally want to have sex with them” but “don’t think they should have sex with anyone”?

            I think that’s more the case for developmental disabilities.

  12. Thecommexokid says:

    The Nathan Robinson piece was infuriating, in the ways that you mentioned but most especially to me when it moved further from the specifics of the case to criticizing utilitarianism in general.

    Utilitarian reasoning can lead you to believe that there’s no such thing as “good” and “bad,” only “better” and “worse” (which means that genocide isn’t inherently bad, and in fact could be fine if it’s the least-worst available option in a certain set of circumstances).

    So, like, by what metric does he suggest making a decision between a slate of “bad” options, if not to choose the “least-worst”?

    But Robinson’s one possibly-interesting point was the discussion of the value, in utilitarian terms, of Singer publishing this op-ed and his various other “controversial” statements in the same vein over the years:

    For a utilitarian, Singer does not seem to think much about the utility of sabotaging his credibility as an ethicist in order to make callous and inflammatory comments about disabled people.

    It seems plausible to me that publishing this editorial was net-negative utility for what I assume are Peter Singer’s values.

    • Scott Alexander says:

      I was also confused by this. I don’t know if he’s just bad at modeling other people or whether he thinks truthful-opinion-sharing is some incredibly important meta-principle.

      Then again, I can’t blame him, because it was stupid of me to write this, but I was just really annoyed and annoyance is a powerful motivator.

      • shakeddown says:

        I found this post intellectually helpful in framing a coherent framework about this kind of confusing situation (without being controversial for the sake of provocation), so that’s definitive evidence t has at least some light rather than heat.

        • AnonYEmous says:

          scott this was a hot post, don’t worry about it. It’s the kind of content I would like to see more at SSC.

          on the subject of utilitarianism, I try to fuse it and general moralism; genocide is still wrong but it might be the least-wrong options. It’s imperfect, as any system without strong principles is, but it avoids running afoul of terrible edge cases, like any system without strong principles does.

          • Christopher Hazell says:

            This is an utter tangent, but I think I’ve realized that I support a blanket ban on genocide at all times and in all places on what might be sort of “meta-utilitarian” grounds:

            Basically, yes, perhaps there is, at some point, a place where genocide is, legitimately, the least bad of all options, somehow the least destructive, least misery-inducing solution to some complex problem.

            However, in practice, the vast majority of the time, genocide is one of the worst solution to any given problem. It was, for example, a terrible solution to the problem of racial tension between Jews and Gentiles in Nazi Germany. By, like, any metric you might care to name.

            And the thing is, as long as leaders and soldiers believe that sometimes, genocide is okay, they will be tempted to use it, while telling themselves that it’s their only choice.

            In other words, they’ll get a sort of utilitarian false positive: They’ll convince themselves that genocide is the only answer to some seemingly intractable problem, and then carry it out, despite the fact that numerous other solutions would be better.

            On the other hand, a strong commitment to not committing genocide, no matter what the circumstances, on the part of the populace and the ruling class completely eliminates all of those false positives. And, yes, it also eliminates that theoretical actual positive, hamstringing society in that odd situation where genocide is actually the least bad solution, but actual positives are massively, hugely outnumbered by false positives, so the net result of a non-utilitarian ban on genocide is still justified, on what seem like utilitarian grounds.

            I’m sure I’m not the first person to think of things this way.

          • meltedcheesefondue says:

            @Christopher Hazell:

            >I’m sure I’m not the first person to think of things this way.

            See Eliezer’s “Ends Don’t Justify Means” (among humans).

            http://lesswrong.com/lw/uv/ends_dont_justify_means_among_humans/

          • Prosthetic Conscience says:

            @Christopher Hazell and @meltedcheesefondue:

            It appears to me that this is basically the insight underlying R.M.Hare’s Two-level utilitarianism.

      • Evan Þ says:

        I don’t know if he’s just bad at modeling other people or whether he thinks truthful-opinion-sharing is some incredibly important meta-principle.

        See also his view that not only is it okay to abort babies in the process of being born, it’s perfectly fine to kill five-month-old babies. That lost him so much credibility that in the Christian circles where I was growing up, he was being used as a byword for modern immorality.

        • ashlael says:

          I have to admit it threw me pretty badly the first time I saw Scott speaking approvingly of Singer. Kind of like seeing him give Mein Kampf a positive review.

        • 27chaos says:

          Personally, I tend to have more respect for philosophers who are willing to bite bullets.

          • Mary says:

            Biting bullets is not the measure of the value of a philosopher. Indeed, an avid desire to be the sort of person who bites bullets probably makes any person a public menace.

      • John Schilling says:

        I was also confused by this. I don’t know if he’s just bad at modeling other people or whether he thinks truthful-opinion-sharing is some incredibly important meta-principle.

        Or possibly he correctly models the one percent or so of the population that will engage in a rigorously utilitarian discussion of the ethics of doctor(*)/patient sex with someone most famous for his rigorously utilitarian discussion of the ethics of infanticide, and finds leading that discussion to be a better use of his time than being one of a thousand would-be thought leaders to the other 99%.

        One hopes he has a clear understanding of what he is trying to accomplish and how, because he is establishing for himself a very narrow and limited sort of credibility that will constrain him going forward.

        *Very loosely speaking

    • wysinwygymmv says:

      @Thecommexokid:

      So, like, by what metric does he suggest making a decision between a slate of “bad” options, if not to choose the “least-worst”?

      Someone could easily take the position that genocide is so bad that in a situation where it is your “best choice,” the only ethical action is to fight to the literal death for a non-genocide option that seems like it might be impossible to achieve.

      Taking the least bad choice over and over seems like another incarnation of Moloch, so I’m open to arguments that sometimes it’s wrong to just accept the least bad choice.

      In context, it’s clear that Robinson is criticizing the fact that under utilitarianism, nothing is just “morally wrong” full stop, it can only be more or less desirable according to whatever set of criteria you’re using. Robinson probably believes that there are some things that are definitely morally wrong and disagrees with utilitarianism on those grounds. There are probably a lot of commenters here who likewise believe that some thing are definitely wrong, contrary to utilitarianism.

    • Christian Kleineidam says:

      Peter Singer might have the influence he has precisely because he’s willing to voice controversial opinions. Public intellectuals are mostly in Nassim Taleb’s words anti-fragile and gain influence when they get attacked after voicing controversial positions.

      We get thought leaders like Peter Singer because that’s what it takes to be a thought leader in today’s landscape of ideas.

  13. I find it interesting when people talk about how young people or the mentally handicapped “can’t really fathom the full ramifications and emotional nuances of sex.” I don’t dispute that, of course, but this is usually said to imply that, come a certain magical age, “adults” suddenly do comprehend the full ramifications and emotional nuances of sex. I would question whether anyone “really” ever fully can anticipate the full ramifications of anything. Obviously nobody is a perfect predictor. Obviously many adults initiate sexual encounters and other decisions that end up deeply hurting them and that they end up regretting. So, where do we draw the line?

    I understand that legal systems have to, by their nature, turn shades of gray into stark lines of black-and-white. Age of consent laws are a necessary evil; otherwise, perverse incentives have free reign and abuses will outweigh the good stemming from a few edge cases of “16 year old has fulfilling sex with 18 year old.” But I fear that many people have forgotten that our laws are part of the map and not the territory. The map looks clean and demarcated, but we should always keep in mind that the territory, reality, is never so neat.

    Concretely, even in cases where people must suffer legal judgment for violating consent laws (which I would not dispute), I wish the public would reserve *moral* judgment until they had extensive inside knowledge of the nuances of each case. But then again, we are a gossipy social species that loves to heap moral outrage and shame on defectors (you see that in the unfair sensationalist news headlines against Singer), and humans gonna human, so whaddayagonnado….

    • Controls Freak says:

      come a certain magical age, “adults” suddenly do comprehend the full ramifications and emotional nuances of sex

      I like really tugging at people’s political positions – if the knowledge prong of consent is the relevant feature in denying legal consent to youth, can early comprehensive sex education enable youth to consent at a younger age?

    • Jon Gunnarsson says:

      otherwise, perverse incentives have free reign and abuses will outweigh the good stemming from a few edge cases of “16 year old has fulfilling sex with 18 year old.”

      How is that an edge case? 16 year olds having consensual sex with 18 year olds is a completely normal thing that happens countless times every day all over the globe and has been going on since long before our ancestors had the intellectual capacity to even conveice of age of consent laws.

      • Itai Bar-Natan says:

        If we have a set determined by the condition x>17, the edge of that set would be when x=17. In this case, x is age and the condition is the condition for being able to consent (assuming we’re in a jurisdiction where the age of consent is 17). When talking about an “edge case” the edge is meant in a less precise sense so we include x close to 17, such as 16.

        • HeelBearCub says:

          Just to foreclose some arguments and background on age of consent laws.

          Consent laws may have a “close in age” exception. 2 years is, I think, common.

          Which still makes the example an edge case.

        • Jon Gunnarsson says:

          It seems I misunderstood what an edge case is. Thank you for explaining.

          • Said Achmiz says:

            @Jon:

            Not so fast… the explicit meaning of “edge case” is indeed what Itai Bar-Natan said, but — as you rightly intuited — colloquially, “edge case” is often used to mean “a non-central example of the reference class we’re concerned with”, or “thing that doesn’t happen very often”.

            The implication is something like “these edge cases aren’t really the sort of thing we’re talking about, and yeah sure they exist but meh, they’re not that important and let’s not concern ourselves overmuch with them”.

            Then, contra objections, folks come in and give the explicit meaning. It’s one of them decentralized-motte-and-bailey situations.

            Consider the usage in the top comment of this thread:

            Age of consent laws are a necessary evil; otherwise, perverse incentives have free reign and abuses will outweigh the good stemming from a few edge cases of “16 year old has fulfilling sex with 18 year old.”

            a few edge cases”. This, clearly, is not a comment about the structural properties of the cases in question, but about their relative prevalence. (This interpretation is, of course, supported by the context; there’s only “a few” edge cases and therefore they’re outweighed by etc. etc.)

            (And the ploy — which, again, is decentralized, so no single commenter can take the blame — worked! The explicit definition was given, and you backed down from your objection, even though the explicit definition is, in fact, completely non-responsive to the actual substance of the argument given in the thread’s top comment…)

    • Error says:

      I’ve always found judgment of consent by age irritating. I know it’s a bandaid on a difficult social problem, but it seems to me that no age is appropriate. What makes a person understand what consenting to sex means is actually having sex. You can never fully understand what you’re getting in to the first time.

      • Luke Somers says:

        I’m pretty sure that by the time I had sex I knew what I was getting into. The only surprise was the actual sensation. There were no ethical or moral surprises.

        • rahien.din says:

          Bit like saying “By the time I ate my first hamburger, the only surprise was the taste.”

        • Spookykou says:

          I have actually never really had a firm understanding of what people mean when they talk about understanding what sex really means. The only thing I can think of is, the state of mind where having sex is not traumatic/distressing. However, that definition does not explain, at all, what someone actually needs to understand. I am curious what particular information does someone need to reach that point?

          Or maybe my ‘not traumatic’ idea is off, and I don’t understand sex, or I don’t understand what I understand about sex.

          • Randy M says:

            A lot of people experience changes in their intensity of feeling for their partner out of proportion with a similarly vigorous handshake, for example, feelings which are difficult to adequately inform prospective sexers of.

          • Protagoras says:

            As best I can recall, when I was young I was frequently experiencing sharp changes in the intensity of my feelings for various people even when I wasn’t having sex with them. Sex didn’t produce all that dramatic a change in the magnitude of the shifts in feeling I experienced, it was just one more thing that contributes to irritatingly sharp shifts.

          • Randy M says:

            I bet you’ve also never gotten pregnant 😉

    • BBA says:

      This reminds me of an article I read a couple of years back about Jerry Seinfeld’s skeezy relationship with Shoshanna Lonstein, 22 years his junior, who was a few weeks shy of 18 when they met. Implicit in this story was that it was somehow far worse when she was 17 years and 364 days old than after she turned 18, while to me it’s the same level of skeeziness regardless of when her birthday was. The especially odd part about the article’s attitude was that they lived in New York, where the age of consent was and is 17.

      • Matt M says:

        Back in my teenage years, I used to post on this online forum where a common fad was to post some pictures of some very attractive woman, typically well developed with large breasts, who had every appearance of a fully mature adult – then wait until several people had commented on how they thought she was hot – then say “HA HA SHES ACTUALLY 16 YOU FILTHY DISGUSTING PEDOPHILES!!!”

        As if being aroused by a picture of someone who looks 25 but is 16 is some sort of egregiously terrible behavior, but being aroused by someone who is 25 but looks 16 (as entire genres of porn exist to fulfill) would be normal, healthy behavior…

        • Aapje says:

          A lot of people don’t actually understand what pedophilia is (it’s actually attraction to prepubescent children, not an age limit).

  14. nelshoy says:

    I wonder at what point in our evolutionary history was born the first Rapist. Cursed to be born above the intelligence threshold necessary to fully understand consent, and forced to pass her intelligent genes by mating with one of her fellow tribesman who couldn’t.

    • Aapje says:

      That person could just as easily be the first rape victim.

      • nelshoy says:

        True! But there wouldn’t yet be a first rapist unless she voluntarily had sex with someone else!

        • Aapje says:

          It depends on whether you require mens rea or not. Quite a few people describe non-voluntary sex by animals as rape and those animals clearly don’t understand consent.

    • Anonymous says:

      I wonder at what point in our evolutionary history was born the first Rapist. Cursed to be born above the intelligence threshold necessary to fully understand consent, and forced to pass her intelligent genes by mating with one of her fellow tribesman who couldn’t.

      And that’s pretty much the reason I think a definition of rape based solely on consent is deficient.

    • vV_Vv says:

      I seem to recall a certain tale about a woman handing over a forbidden fruit to a man after being persuaded by some strange snake…

  15. HeelBearCub says:

    This post is excellent. I completely agree that sexual relations for the mentally impaired or uncommunicative patient is a hard problem, but that we shouldn’t be willing to simply deny them sex and intimacy. I continue to think that America especially has problems with issues like these because the societal attitude toward sex is so dysfunctional.

    The whole post is excellent, except for one point.

    McMahan and Singer’s editorial is good. The information about all of the potentially exculpatory information that was excluded is important and needs to be better known. The point about the relative lengths of sentences for various offenders is cherry-picked, but it is still an interesting point to point to the vast discrepancy in sentencing.

    But they badly flub consent, and there really isn’t an excuse for that. You seem to be engaging in some facilitated communication yourself, because they spend most of the article arguing that consent actually occurred, but then argue that, even if it didn’t, it would still be OK! Because lack of resistance.

    Look at it this way. He would have to be capable of consent to resist! He would need to understand what was happening in order for it not to be OK. If he was in a coma, he wouldn’t resist then either, but that isn’t the same thing as consent.

    They aren’t making the argument you are, and I’m not sure why you think they are making the same argument.

    • AnonYEmous says:

      same on the excellence

      I also think this ties into a previously held thread of a conflict between personal decisions and large institutions, both in the sense of the obvious, the mental hospital that could get sued, and even the law.

    • Scott Alexander says:

      Thanks for framing your criticism so carefully. I agree it’s possible to interpret it the way you did, but I think that assumes Singer (who I usually find intelligent and very concerned with doing the right thing) is being uncharacteristically stupid and unethical. I think it’s more likely he means approximately what I do. This is what I tried (maybe unsuccessfully) to say here:

      I worry that people are misinterpreting Singer as saying the same thing here – something like “this guy doesn’t have a concept of consent, so you can’t violate it”. This is not how I interpret the sentence about consent in the first paragraph of the quote. I think Singer is using “consent” to mean an inherently verbal/symbolic/cognitive process – someone explicitly understands what it means to consent and intentionally expresses that to others. So when I say “we are forced to infer consent from nonverbal rather than verbal cues”, Singer expresses the same idea as “since we can’t use consent, we need to fall back on nonverbal cues.”

      I think translating from Singer’s language to my language, we get:

      “This patient can’t consent” to “This patient cannot verbally consent”
      “The patient didn’t resist” to “As far as we can tell, the patient wanted the sex, with some evidence for this being that he looked happy and that he didn’t resist”.

      In other words, I don’t think “he didn’t resist” is itself the standard, in the sense that if you don’t resist something it doesn’t count as bad. I think it’s being used as a clue to determine the actual standard, ie “he was in favor of it and nonverbally consenting”.

      I predict Singer would agree that having sex with somebody who doesn’t resist because eg they’re paralyzed with fear, is rape and is exactly as abhorrent as we think. I think he’s saying here that nonresistance is one of many cues which, in the absence of more explicit cues, can help us figure out whether sex is wanted.

      • caryatis says:

        I think it’s confusing to talk about nonresistance at all. Aren’t we really discussing nonverbal consent, where not resisting is one element but one of the least important ones?

        I may be weird, but 100% of my sexual encounters have involved nonverbal consent, with maybe 1% verbal consent too. So it’s strange to see so much resistance to the idea that yes, a person can communicate that they want to have sex without explicitly saying so.

        • Spookykou says:

          I thought nonresistance was coming up in the context of someone who doesn’t actually understand what consent is, so it is not just that they can’t give verbal consent, but that they can’t really consent to anything. In that situation how do you determine if they like or don’t like something that is happening to them. One thing to look at what be resistance, it is obviously not ideal, but the whole situation is very murky.

      • HeelBearCub says:

        @Scott Alexander:
        They might agree that the patient paralyzed with fear was raped, but in the objectionable part of the editorial they talk exclusively in terms of objection and forego the concept of consent altogether.

        This passage doesn’t seem compatible with your interpretation that they are talking about verbal consent:

        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.

        And that is in a passage where they are specifically talking about cognitive ability.

        So, going back to the person paralyzed by fear, the key question, ethically speaking, is “what is the standard by which you assess your own knowledge of the other participant’s consent?”

        Edit:
        I realized this is treading over ground you already covered.

        So, why don’t I think this maps the way you think it maps?

        Because Singer and McMahan don’t talk about non-verbal signs of consent in their passages. If they are capable of resisting, they are capable of taking actions indicating that they would like an act to continue. That would be what they would emphasize.

        Instead they are taking about harms to people who can’t conceptualize consent. As long as it isn’t painful, and therefore provoking resistance, it’s OK.

        • Aapje says:

          @HeelBearCub

          As long as it isn’t painful, and therefore provoking resistance, it’s OK.

          Something can be painful and yet not provoke resistance, even for normally able people. You can’t just equate the two, especially for disabled people who are more likely to have atypical responses.

          • HeelBearCub says:

            @Aapje:
            I’m not characterizing it that way, they are.

            Although they are using the word “harm” rather than pain.

            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.

            In other words, if he is profoundly cognitively disabled, he can’t perceive psychological harms, so they don’t count. And unless he struggled, they assume he perceived only pleasure. Therefore they consider only some sort of physical harm to be cogent, and they further posit that physical harms would manifest in him struggling. I loosely summarized this as pain.

            I do totally agree that someone who has profound physical impairments is going to have a much different relationship to pain than the average person. Indeed, anyone, no matter how abled, might very much wish to engage in sexual activity despite it being painful (in some physical ways) simply because it is so fulfilling in other ways, both cognitively and physically.

            But I don’t think we can read Singer and McMahan as making that argument.

      • vaniver says:

        I think that assumes Singer (who I usually find intelligent and very concerned with doing the right thing) is being uncharacteristically stupid and unethical.

        I worry sometimes about what I think of as the ‘reverse’ Fundamental Attribution Error, or the related thing that Duncan Sabien calls “toxic respect.” In the first, you think you have enough evidence about people’s enduring natures that you underweight the importance of the thing you’re seeing right now (whereas in the FAE you have the latter and overestimate what it tells you about the former). In the second, you see someone you respect about to make what you think is a mistake, and think to yourself “well, they must know what they’re doing,” leading to them making the mistake and wondering why no one warned them about it.

        I think the thing you’re trying to do is more of “okay, Singer said something that looks wrong, but observe the adjacent thing that looks right, which might have been what he meant to say.” And the general practice of pointing out adjacent arguments that are correct is a good practice that I endorse (and, somewhat less frequently, the practice of pointing out adjacent arguments that are incorrect). But I’m not sure how much sense it makes to assume that’s what they had in mind.

        • HeelBearCub says:

          It seems also related to “arguments are (not) soldiers”.

          “They made all these great points in support of a position I have, therefore I must defend this other, wrong, argument, lest support for the position be lost altogether.”

        • Desertopa says:

          I feel like the idea of “toxic respect” is probably a productive one as it applies to refusing to appropriately update on how much respect someone deserves in the face of compelling evidence. But personally, I’ve had far more experience with the opposite problem. Someone provides consistent evidence that they are intelligent, thoughtful, considerate, etc., and then say or do something which is, in fact, entirely consistent with this, but could also be interpreted in a less creditable light, and the people engaging with them fail to apply the evidence of the person’s usual character in interpreting the basis for their actions.

      • vV_Vv says:

        I agree it’s possible to interpret it the way you did, but I think that assumes Singer (who I usually find intelligent and very concerned with doing the right thing) is being uncharacteristically stupid and unethical.

        Are you sure you aren’t giving Singer too much credit? I mean, the guy advocates involuntary (or as he likes to call it, “non-voluntary”) euthanasia for severely mentally disabled infants, highly senile elderly people, etc.

        I’m not sure if somebody like “D.J.” would qualify as one of these people that Singer consider permissible (and hence necessary, as utilitarianism doesn’t make the distinction) to euthanize. If he does, then presumably Singer thinks that if he has no right to live, then he has no right to sexual integrity as well, at least as long as the act doesn’t cause him much suffering (precisely, as long as the act doesn’t cause him more suffering than the pleasure it causes to his rapist).

        Even if Singer thinks that D.J. has a right to live, because his life brings to the world more pleasure than suffering, then he may think that he has no right to sexual integrity because he is unable to understand the possible negative drawbacks of sexual intercourse other than some superficial momentary physical discomfort, a discomfort which Singer claims (most likely incorrectly, but this is besides the point) not to have occurred in this case.

        If D.J. was somebody in temporary coma and some member of the hospital staff had sex with him, with the proper precautions against pregnancy and STDs, would Singer condemn or condone the act? It seems to me that if we follow his arguments to their logical conclusion he should condone it. After all, the act causes pleasure to the rapist and no harm to “D.J.” or anybody else.

        I don’t know if Singer has ever made an explicit claim about this scenario, but Robin Hanson, another utilitarian, took the condone position in a largely equivalent scenario, in his infamous “Gentle Silent Rape” post, for which he took a lot of flak.

        Now, I’m not saying that we should hound Hanson or Singer with torches and pitchforks, but if their ethical philosophy consistently yields moral judgments that we consider highly unethical, then maybe this is evidence that there is something very broken about it.

        • carvenvisage says:

          I mean, the guy advocates involuntary (or as he likes to call it, “non-voluntary”) euthanasia for severely mentally disabled infants, highly senile elderly people, etc.

          Does he advocate that as in recommend that people do that in our culture, (where utilitarianise it would have massive extra costs from brutally violating the norms of the culture ignoring schelling points etc, or does he say that it would be a better arrangement if we accepted those kind of actions for the greater good. (in which case those highly senile elderly people would have known all their lives that this would happen and would have had time to prepare for it, and avoid it/go out on their own terms).

          • vV_Vv says:

            You can read the article yourself.

            In general, utilitarian ethics rejects cultural relativism.

          • Desertopa says:

            In general, utilitarian ethics rejects cultural relativism.

            But acknowledges the practical constraints of having to operate within existing cultures.

        • TheWorst says:

          …consider permissible (and hence necessary, as utilitarianism doesn’t make the distinction)

          Wait, what?

          • vV_Vv says:

            Wait, what?

            According to utilitarianism, in any given circumstance, the only morally correct action is the one that maximizes the expectation of some global interpersonal utility function. Therefore there is only “should”, not “can” (except in the case of ties).

          • Nornagest says:

            We could just as easily say that “permissible” means “forbidden” under utilitarianism, though — most “permissible” actions after all are not going to turn out to be globally optimal.

            I haven’t read enough Singer to know if he’s a hedonic or a preference utilitarian, but if he’s the latter, then talk about something being permissible probably unpacks to the choice not being worse under all reasonable preference combinations, which seems reasonable enough to me. It’s probably optimal (and thus morally obligatory) for somebody under utilitarianism, but it’s not like it’s hard to conjure up weird counterintuitive obligations no matter what system of ethics we’re running.

            If he’s a hedonic utilitarian, then it straight-up doesn’t make sense and so he’s probably not wearing his utilitarian hat.

          • TheWorst says:

            That sounds odd. I’m not perfectly familiar with utilitarianism, so if there is a flaw in the logic that follows, someone point it out:

            Let’s say I need to use the restroom, and there are two routes between me and the nearest restroom. The distance and convenience of both routes are identical, as are every other detectable consideration. Choosing to take one route over the other has, as far as is perceptible, zero impact on any utility. It seems improbable that there are many utilitarians who wouldn’t answer in the affirmative to the question “is either route permissible?”

            Can you name three utilitarians who think it is necessary for me to take both routes at once?

          • The original Mr. X says:

            Wait, what?

            Mill and Bentham, at least, argue that we ought to do what leads to the greatest happiness, in ways that don’t really leave much room for a permissible/necessary distinction.

          • The original Mr. X says:

            Can you name three utilitarians who think it is necessary for me to take both routes at once?

            If there are two actions which produce exactly the same amount of utils, of course it’s permissible to choose between them. But that’s about the only sense in which an action can be “permissible” (as opposed to obligatory or forbidden) under utilitarianism.

          • vV_Vv says:

            @TheWorst

            quoting myself:

            Therefore there is only “should”, not “can” (except in the case of ties).

          • Protagoras says:

            In addition to the highly unlikely precisely calculated utility is precisely equal cases, there are also the cases of uncertainty. Extreme uncertainty seems to be extremely common. Suppose there are exactly three options (though of course in reality how many options there are is one of the things we’re usually uncertain about) and the evidence is such that it is really hard to tell between A and B(1), but there is a preponderance of evidence suggesting that C is probably worse than either, a utilitarian is going to say A and B are permissible and C is not. Mill at least makes it clear that he considers uncertainty very important, and I would say that that seems to me to be generally true of most utilitarians.

            (1) You might think the thing to do in this case is keep working on the calculation until you do get a decisive answer, but this would almost never be true; doing more detailed utility calculations takes time and effort that could be used doing useful things. Even if it succeeds, the benefit will rarely outweigh the opportunity cost, and it usually doesn’t succeed. Only in rare cases is it in fact the preferable option for a utilitarian.

  16. NikVetr says:

    Would there be some equivalent of Blackstone’s ratio here, for some some level of necessary implicit consent?

    “Better that ten individuals incapable of explicit consent be sexually frustrated and forced into a life of celibacy than one individual incapable of explicit consent suffer from sexual abuse”

    As we add greater and greater requirements for what constitutes sufficient implicit consent, more and more individuals will be sexually frustrated to prevent that one individual from being harmed, and as we lessen the requirements, more individuals will be harmed for a given number that appropriately have their sexual desires fulfilled. Unlike criminal guilt/innocence, it seems trickier here in principle to determine, far after the fact, whether or not consent was obtained, but given uncertainty in the present, I’d reckon we still would need to make some decision regarding what ratio of satisfaction:harm is acceptable.

  17. jaed says:

    They also can’t kiss, hold hands, cuddle, or have any other form of romantic contact.

    It strikes me that denial of physical contact—other than restraint or other hostile contact—is a very good way to drive someone crazy. Or crazier.

    Of course, it will do considerably less harm if it’s kept up for a couple of weeks than if it goes on for years. Still, if a person is in a psychiatric crisis, I don’t think denying them human contact even for a couple of weeks is necessarily harmless.

    • Evan Þ says:

      Still, if a person is in a psychiatric crisis, I don’t think denying them human contact even for a couple of weeks is necessarily harmless.

      When I’m in emotional turmoil, that’s the time I especially want human contact, including physical contact. I don’t think I’m unusual in this.

    • Murphy says:

      If I lost most of my cognitive abilities that sounds like it would be a pretty well crafted personal hell for me.

      If I was given the choice between a life with 100% no possibility to ever kiss, hold hands, cuddle, or have any other form of romantic contact or, alternatively, jumping into a high speed macerator I’d go with the maceration.

      I gather some people would consider such a choice absurd, possibly people who have similar views on intimacy as some asexuals to to sex but for me…. terminal value isn’t quite the right term because it’s easy enough to live with some subset of terminal values going unfulfilled.

      It would be more like asking me if I would be willing to go through life never eating or drinking again, never dying of hunger but every day the feeling of starvation getting worse.

  18. Jack Sorensen2 says:

    This is a response to the “fake consensualism” post, not this one, but whatever.

    Take the argument about legalizing prostitution. People argue that someone can be forced into it by economic circumstance. Others counter, well if they’re poor, then they have to work some job; and if they’re choosing prostitution, then that must mean the alternative is worse for them; so by making it illegal you’re forcing them to work “nonconsensually” in an even worse job!

    A counter-argument to this I heard, is that prostitution being a legitimate choice in our legal system could affect the set of other choices a person is seen to have. Say a state has unemployment benefits, but only if you look for a job and can’t find one. If prostitution is illegal, a woman who can’t find a job elsewhere will get her benefits. But if it’s legal, that woman can never say that she couldn’t find a job. She could always become a hooker!

    I think this affects the calculus on whether to legalize things like prostitution or euthanasia, because it’s not just a question of being pressured into consenting. It’s also that legalizing that option makes the other legal options, worse. And it also hurts the people who still decide to not take the newly-legalized option.

    Also, your argument about euthanasia comes down to an empirical question, right? I mean, if instead of euthanasia it was “stick your hand in a jar of acid”, and instead of old people it was 13 year olds, we might come to the opposite conclusion. Nobody would freely choose to do it, but some small number of 13 year olds might somehow get peer pressured into it by cool kids fucking with them. So there, it would seem to be a net benefit to make it illegal.

    • AnonYEmous says:

      yeah, but to be fair, the people denying welfare are usually also the ones who don’t like prostitution

      i’m fine with illegalizing euthanasia personally because I’m scared people I love will not want to ‘be a burden’ though

    • Jon Gunnarsson says:

      Speaking as someone who lives in a country where prostitution is legal, this concern doesn’t seem to be very well founded. Here in Germany no one is denied unemployment benefits for refusing a job as a prostitute, and I’m not aware of any other country where this is the case.

      Nor should this be surprising. After all, in countries where prostitution is illegal, other kinds of sex work (e.g. stripping or pornography) are often legal, yet as far as I know people generally are not excluded from unemployment benefits for refusing such jobs.

    • Protagoras says:

      What you are discussing is essentially the utilitiarian steelman version of the arguments, and Scott gives his reasons in the original post for why he thinks that isn’t actually a plausible interpretation of people’s real objections. Certainly as Jon suggests you don’t do a very convincing job of justifying anti-prostitution laws. But you are right when you say the argument comes down to an empirical question; it’s not that no argument similar to the utilitarian steelman arguments could ever be legitimate.

    • Aapje says:

      If prostitution is illegal, a woman who can’t find a job elsewhere will get her benefits. But if it’s legal, that woman can never say that she couldn’t find a job. She could always become a hooker!

      This was actually an issue in The Netherlands. Dutch unemployment benefits law defines ‘fitting work’ based on various criteria. If the unemployment agency finds a job for a person and they refuse, they can lose their benefits if it is ‘fitting work.’

      After the Dutch legalized brothels in 2005, the minister (= secretary of state) declared that prostitution was ‘fitting work’ for people who formerly worked as prostitutes and had no objection to the work. This made the more conservative Dutch parties very upset, as they objected to the unemployment agency mediating between brothels and sex workers. The more progressive parties objected to the possibility of sanctions for sex workers who refused to work for a specific brothel and especially that people who preferred other work might be pushed back into prostitution by the government. So the minister was forced to declare that sex work is not ‘fitting work.’

      Since then, Dutch unemployment law has become way more strict by only letting people refuse non ‘fitting work’ if they have unemployed for less than a year. So legally, the Dutch government might be able to force a person into prostitution after that time. There have been no cases of this though and either the judiciary or the senate will surely put a stop to that if the unemployment agency does so.

      • random832 says:

        objected to the possibility of sanctions for sex workers who refused to work for a specific brothel

        Why is this worse than the possibility of sanctions for other workers who refuse to work for a specific employer? If the thinking in the other cases is that abusive employers should be dealt with by the state rather than by the market, why are brothel owners excluded from this?

        • Aapje says:

          The legal standard is that employees should accept a certain level of unpleasantness/abuse (of course, it’s not explicitly called abuse, but that’s what it boils down to). In these times, it seems like a non-starter to argue that women should accept a non-zero level of sexual abuse, which is what employer abuse in the sex industry will often be.

          So it seems currently acceptable to force people into low-grade non-sexual abuse that they cannot escape, but not the sexual kind.

          • Evan Þ says:

            On the object level, part of me shares their objections.

            On the meta level, I’m reminded of the story of the prostitute who, when her client refused to pay up, reported him for rape. Once you bend definitions around sex work in one such way…

          • Mary says:

            I’ve read an account by a prosecutor of sex crimes that prostitutes (in her jurisdiction) routinely reported johns who didn’t pay for rape.

          • Protagoras says:

            I would think an obvious reason for a prostitute to report a non-paying client as rape is that it’s rape. At least the impression I get is that most people think that rape by fraud is a thing, and if there is such a thing as rape by fraud, this would surely be an instance.

          • Mary says:

            Rape by fraud statutes tend to be A LOT narrower than that. And it’s a moot point anyway, because what they report is rape by force.

  19. psmith says:

    lots of doctors and lawyers and friends and family get together and do some legal stuff and try to elicit information from the patient as best they can and eventually come to a conclusion…. If there were some process like this for sex….

    There was, once. Not just for disabled people either.

    • hnau says:

      I lol’d. A good point, well made.

      It makes me wonder if those social structures exist partly because, on a deeper level, no one can really consent. What with hormones, biological imperatives, and so forth, none of us is acting primarily on rational thought when it comes to sex.

    • Evan Þ says:

      However, the Church fought a long and ultimately successful war to ensure that no one could enter that process without giving free and explicit consent.

      • HeelBearCub says:

        Well, not just the Church. Society as a whole.

        • Evan Þ says:

          IIRC it was mostly the Church in the early and High Middle Ages that first fought for it, against an upper class that really wanted to marry off their not-quite-willing daughters as a means of making alliances. And once they got the principle firmly established, then as you say, society as a whole’s continued to reinforce it.

          • HeelBearCub says:

            I don’t think it’s nearly that simple?

            I appreciate the information about the Church and consent. It’s novel information for me.

            But I really doubt that the Church originated the concept of marrying for love (sounds ridiculous, right?)

            I believe (citation needed) we can find the themes of love and duty, and the tensions caused when they clash, to go back as far as we have literature.

          • Randy M says:

            But I really doubt that the Church originated the concept of marrying for love (sounds ridiculous, right?)

            Marrying for love and consenting to marriage are not quite synonyms. Just like there is ground between slavery and hobbies.

          • Anonymous says:

            But I really doubt that the Church originated the concept of marrying for love (sounds ridiculous, right?)

            It’s mostly an issue of not requiring anything except mutual consent and a priest. Certainly not some nobleman’s permission; this is Church turf – what the Church says here, goes. Or at least that’s what the Church thinks. 😉

          • HeelBearCub says:

            @Randy M:

            Marrying for love and consenting to marriage are not quite synonyms.

            Sure, but the concept of consenting to marriage is inextricable bound up in the idea of “forbidden” loves and “lost” loves and the like. In the common, memetic, stories, one is denied the possibility of consenting to the marriage one would wish, and frequently denied the possibility of remaining single. Frequently this is expressed as being forced to marry.

            I’m just pointing out that the concept of the downsides of marriages which aren’t really (or fully) consensual has been out there for quite a while.

  20. Le Maistre Chat says:

    I’ve long thought that penitentiaries and mental hospitals are monasteries for moderns, where they can throw bad people until they repent/reform (whereas monasteries started out consensual). So it really didn’t surprise me to learn that the Rule of a mental hospital includes enforced celibacy.
    It’s more surprising to me that prison rape is a joke rather than something the authorities prevent.

    • Douglas Knight says:

      Do you mean to draw attention to the religious concept of penitence? It is commonly claimed that the word “penitentiary” was introduced, in contrast to “prison,” by reformers advocating a monastic model, c1800. I’m not sure that’s really the origin of the word, but the reformers were real.

  21. hnau says:

    I think it’s a pretty good principle that, if you don’t want to consider disabled people and animals the same for purposes of ethical analysis, you break the equivalence in favor of the disabled people. Yet I notice that when two animals have sex, we trust them to make their own decisions. If a female dog in heat has jumped a fence to find a male dog, and the male dog jumps over his fence and starts humping the female dog, we might separate them because we’re not willing to take care of the puppies, but nobody would separate them because the dogs are just animals and so too stupid to understand the nature of consent. If one of the dogs was screaming and yelping and trying to get away, we would try to rescue it. But if both dogs sought it out and seem to be enjoying themselves, we grant them enough respect to assume they know what they’re doing.

    And again, I would hope that part of being against equating dogs and people (of any level of intellectual ability) is that you give more respect to the people. And part of that, to me, seems to be that if two people seek out sex and seem to be enjoying themselves, we grant them enough respect to assume they know what they’re doing. And this seems true whether or not they have the intellectual capacity to form the words “I consent”.

    This seems to me to be missing the point spectacularly.

    Many animal species, including relatively “intelligent” ones, routinely have sex in situations that we would interpret as rape. (See, for example, https://en.wikipedia.org/wiki/Dolphin#Reproduction_and_sexuality .) People don’t seem to be overly bothered by this. The dog example obscures this fact by (implicitly) introducing a human owner who has taken on some kind of moral responsibility for this particular pet’s well-being.

    But if we’re OK, in principle, with non-consenting sex in animals, why is that? Apparently it’s not because the animals are unable to clearly demonstrate consent; if we thought consent was relevant in this kind of situation, then we’d be much more concerned about the dolphins. I’d say the better moral intuition is that the animals are unable to respect consent. They are not moral agents; they can’t know any better. In this view the one receiving consent, not the one giving consent, is the focus.

    But if we take that view, it turns the line about “more respect” completely upside down. Which is more respectful: to treat disabled people like animals, or to treat them like moral agents? Showing respect for them means treating them as being responsible for their actions!

    That’s not to say that I necessarily disagree with Scott’s conclusions. Once the argument gets turned on its head in this way, it forces us to address the real ethical conundrum here. Namely: to what extent should we treat disabled people as being responsible for their actions? This is obviously a harder question and one could make a case for various points of view, including that some such people aren’t responsible for their actions and therefore shouldn’t be held to the standard of consent. (And that view, in turn, also would not imply that we’d be justified in sterilizing them, or in putting them in situations where they couldn’t deny sex to other disabled people. The institution staff have a duty of care, just as the pet’s owner does.)

    This view also has the advantage of making the Stubblefield case exactly as easy to analyze as it ought to be. A morally responsible person should not be initiating sex with someone who can’t consent. Period, end of statement.

  22. withallrespect says:

    Thanks for writing this. Given the minefield surrounding this topic and the vitriol that is sure to be hurled at whomever even dares to approach it, I have to say I admire your courage. Heck, the topic scares me so much that I made a who new account just to thank you for writing it.

    Regarding the article, the following quote stuck out to me:

    If, by contrast, we assume that he has normal cognitive capacities, certain uncontested facts make it difficult to believe that he was forced to have sex against his will — for example, that he cooperated in the process of revealing to his family that he and Stubblefield had had sexual relations. 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. Evidence of such hostility would have strengthened the prosecution’s case.

    I am extremely surprised that Signer makes this argument. I am under the impression that a large portion of the people who passionately care about the subject of rape would posit that there is no correlation between being one being raped and one’s behaviors and attitudes in the weeks and months following said rape.
    (My current thought is that providing specific examples individuals promoting this position would generate more heat than light, but if needed examples can be given.)

    I do not necessarily entirely agree with the zero-correlation position, but given the position’s (in my opinion) high popularity, it greatly surprises me that Signer would make this argument here without any mention of the assumption behind it.

    • Philosophisticat says:

      If you think a “large portion” of people passionately concerned with rape think there is no correlation between being raped and subsequent behavior, then something has seriously gone awry with your ability to assess what others believe. You’re probably filtering something some people do believe, namely that facts about an alleged victim’s behavior after the incident are not conclusive or very strong undermining evidence against a rape accusation, through some kind of bias towards thinking people who disagree with you are complete morons.

  23. suntzuanime says:

    It seems like the crux of your argument is “let’s not be like the eugenicists, who were Bad”, but you don’t really make an argument for that. The only mentioned justification is “parenthood is an important part of the human condition”, but I’m sure you don’t actually believe that, good liberal that you are.

    • Anonymous says:

      The “eugenicists” (in this context) were bad because they used inappropriate, tyrannical methods to enact changes they were insufficiently informed about. (We probably still count as underinformed on the subject matter.) I don’t see anyone protesting the kind of eugenics that many Jews practice in Israel – voluntary checkups by couples who want to have children, to see if they are carriers of some of the endemic Jewish genetic maladies that would make their offspring likely to be afflicted.

      • vV_Vv says:

        The “eugenicists” (in this context) were bad because they used inappropriate, tyrannical methods to enact changes they were insufficiently informed about.

        Why would this be the case?

        They believed, to a large extent correctly, that lots of the mental disabilities they were trying to cull were inheritable to a significant extent and they believed, again correctly, that even if these severely mentally disabled people had healthy children they would be bad parents.

        • baconbacon says:

          Depends on who “they” are, but “they” also frequently attributed mental defects to groups the didn’t like (Jews, Blacks etc), blamed many or all social ills on mental disabilities, and some went as far as to claim that a short term eugenics project would eliminated these problems practically forever.

  24. Null Hypothesis says:

    For good, ill, or benign pragmatism, it seems as though we treat people according to how intelligent and mature they will be at their peak.

    If someone has had a mental breakdown, we don’t let them make decisions about their lives until this temporary bout of insanity has passed. Same thing goes for if they’re drunk. And that seems right because once they’re back into their ‘right state of mind’ they will appreciate the choice we helped them make or not make.

    But how is any one state of mind of a person really more ‘real’ or ‘true’ than the others? Some people let loose and choose and say what they really want when drunk.

    In the story “Flowers for Algernon” who is the real Charlie? Was it the Charlie before the procedure? The Charlie when he was at his peak? Was the real Charlie the retarded Charlie before the procedure, but afterwards the theoretical preferences of smart-Charlie now get precedence when decisions are made for Charlie from here on out? Even though he’ll never be like that again. Should Smart-Charlie be considered a drunk or drug-induced temporary state of mind, even though by our standards he seemed exceptionally lucid?

    And magic surgery aside, in the kind of scenarios discussed in Scott’s essay, if someone will never be capable of meeting the consent thresholds we set for other people, do we give them a pass and keep our hands off the situation? How do you justify letting two incompetent adults with the intelligence of 8 year olds sleep together, but justify separating two consenting, mentally healthy 8 year olds? (Please, dear God do this. I’m just asking for the principled justification.)

    You could find a plethora of children more intelligent and ‘capable of consent’ than some of the disabled people involved here. But we still place the age of consent much higher under the notion that, when they are an adult, they will be thankful they weren’t allowed to have sex as children. Or in the reverse, children can be forced to have procedures done to them, directly or implicitly, by their parents and doctors, because “they’ll thank us for this later.”

    Do we have the right to make them beholden to the hypothetical desires of their future selves? When do their own opinions, fears, joys, desires, preferences, and pains take precedence over that? Braces? Sex? Limb amputation?

    This opens up a lot of interesting questions. Is consent a threshold based on intelligence? Based on some minimum fraction of total mental capacity/stability a person is exercising? Based on percentage of potential mental capacity/maturity? How do other people fairly judge when they’re justified to step in and tell someone: “The real you really does/doesn’t want this, even if you don’t think you do right now.” ?

    Suicide would be another depressing, but excellent example of this.

    Are you justified in forcing someone to do something against their will, under the rational that they’ll later change their minds about it? Depending on what kind of spin you want to put on it, that can seem like deliberately inducing Stockholm syndrome.

    I can make many practical arguments towards that effect, from a number of angles. But I have yet to construct a sound, moral, principled argument that establishes when you can be paternalistic and invalidating towards someone’s current state of mind in the service of some potentially different state of mind.

    As the old dark joke goes: If someone with a split-personality is threatening suicide, is it a hostage situation?

    • How do you justify letting two incompetent adults with the intelligence of 8 year olds sleep together, but justify separating two consenting, mentally healthy 8 year olds?

      My intuition is it’s the fact that the state of being a mentally healthy 8 year old is necessarily temporary is what makes it acceptable to prevent people in that state from having sex. Prevention of adults with the intelligence of 8 year olds* from sleeping together is a prevention of the possibility of having sex, which seems much worse than a prevention due to a temporary circumstance. I think I value people having the ability to pursue sex (and romantic partnership, and children) highly, although whether they actually manage to get these things is less important.

      * Aside: how rough is the metaphor of mental age? How far can we assume somebody who’s intellectually disabled and described as having a mental age of 8 shares all the relevant characteristics of 8 year old children that make us consider them incapable of giving consent?

      • Brad says:

        Aside: how rough is the metaphor of mental age? How far can we assume somebody who’s intellectually disabled and described as having a mental age of 8 shares all the relevant characteristics of 8 year old children that make us consider them incapable of giving consent?

        In my, admittedly somewhat limited observation, it isn’t a very good metaphor. Someone might have the ability to give change, the vocabulary, or reading ability of a typical 8 year old, but she or he has had decades of life experience and the eight year old obviously has not. Absent something more than just low intelligence that implies a large rough wisdom advantage over the eight year old.

    • This is basically the problem of figuring out someone’s “coherent extrapolated volition” (CEV). “Even though you don’t want this now, you would want it if you were older/wiser/knew more/etc.” Although Eliezer Yudkowsky might have been the first one to give this concept a label, clearly human beings have been using this concept since time immemorial, judging by the examples you gave. It’s what we have always enforced onto children, for example.

      What scares me is that human beings still lack any systematic or conscious system for ascertaining the CEV of others. It’s still up to every parent’s/authority’s intuitive gut feelings, received moral/legal traditions, etc. It’s not a solved problem. We know that we routinely get this wrong all the time; children grow up and say, “No, even looking back as an adult, I still really wish that you had let me do X” (I have this opinion about a number of things that my well-meaning parents did, bless their hearts). Thankfully, with humans in charge of ascertaining CEV, the stakes are still low. If a parent screws up, it only messes up their children. If a legal system screws up, it only affects a small proportion of humans.

      With AGI, the stakes will be much higher because all humans will be mental children compared to it. If AGI screws up and is wrong about “here’s what you’d really want if only I could explain the universe to you and make you understand,” then we’re screwed…because the AGI will certainly be able to enforce its will much more easily than any human parent has been able to enforce his/her will on a child. Star Trek: TNG had a couple of good episodes about this issue, one that I remember in particular with Lt. Barclay becoming superintelligent and basically saying, “I know what’s good for the Enterprise better than all of you” and taking over the ship’s controls, force fields, etc. In that episode, the Enterprise and probably the galaxy itself was saved from the tyranny of a well-meaning Lt. Barclay only because the race that took over his brain and made him superintelligent hard-coded a shut-down once a certain explicit goal had been met (bringing Barclay and the Enterprise within proximity of the race’s home planet). Otherwise, they would have been screwed.

      • Mary says:

        Huh. Sounds like the problem was more that the race had clearly programmed him to do something on that pretext.

    • Desertopa says:

      As I see it, the fundamental difference between a person who is permanently stuck at the mental capacity of an eight year old having sex, and an eight year old or a heavily drunk person having sex, is that the eight year old or drunk person will eventually reach a different mental state where they are likely to have a very different perspective on actions they took earlier.

      Children who consent to sex with adults (consent in the actual mental and communicative sense, not the legal sense which they’re not considered to have the capacity for,) very often experience emotional trauma when they grow older and reexamine those events in a different emotional context. Likewise, people are often happy to consent to sex drunk which they feel deeply disturbed by when they sober up. In these cases, the harm occurs when the person’s mental state changes and they cease to be comfortable with the activities they were involved in earlier, but security can only be practiced before the fact, when their mental state has yet to change, in light of an understanding of what sort of changes are likely to occur.

      The person who is permanently stuck at a mental age of eight is not going to experience such a transition, so you can’t reason according to the sorts of changes in perspective which would be likely to create retrospective harm in the case of the eight year old or drunk person. Their present preferences are much more reliable evidence of their future preferences.

      • AnonYEmous says:

        Also those people have the option to wait and simply grow up or get less drunk. I don’t know if a mentally handicapped person who’s stuck as an eight-year-old wants to have sex, but if that were to be the case, they can’t just wait until they’re “older”, and neither can anyone else with a mental handicap. It’s not a choice between “sex now” and “wait for sex when it makes more sense”, most of the time, instead it’s “either I have sex like this or I never do”.

      • Matt M says:

        Didn’t this happen to Liz Lemon’s brother (played by Andy Richter IIRC) in 30 Rock? Aside from Liz being slightly annoyed, nobody treated it as rape!

        • AnonYEmous says:

          True, but in the case you’re talking about he believes himself to be 17 years old, which is only a big deal if you’re a big believer in statutory rape (and I’m pretty sure you specifically aren’t, most others on this site probably aren’t either.)

          This really brings up the question, though: if you believe yourself to be extremely young, like 5 years old or so, but your brain has still developed as an adult’s has (Or maybe the brain stops developing entirely?), then would you be able to handle adult situations? Or would simply being in that mindset render you unable to, say, enjoy sex without being traumatized by it? (Of course, the show isn’t the best example of this – Liz tells him he’s really 40 and that’s the end of it, he instantly accepts it too.)

      • Jiro says:

        The person who is permanently stuck at a mental age of eight is not going to experience such a transition, so you can’t reason according to the sorts of changes in perspective which would be likely to create retrospective harm in the case of the eight year old or drunk person

        We’re back, yet *again*, to the blissful ignorance.problem with utilitarianism.

        Many people would prefer that they know bad things, even if the bad things make them less happy. Many people would also prefer, for instance, their spouse not cheating on them behind their back even though, by definition, something happening behind their back cannot make them unhappy.

        Likewise, the fact that someone doesn’t know that they were harmed, because of lack of mental capacity, doesn’t mean that they weren’t harmed. Harm that is unrecognized because of blissful ignorance is still harm.

        It doens’t matter that they aren’t going to get any smarter, any more than it matters if the spouse being cheated on never finds out.

        • baconbacon says:

          I think that the trouble is you cannot know which you prefer without experiencing it. Some cases are obvious, your spouse is cheating frequently with high probability of contracting STDs that they might pass on? Holy crap I need to know! My spouse cheated once, 9 years ago and we currently have two small children together? Maybe I don’t want to know for another 15 years or so (or never if it never happens again). Perhaps 10 years after the divorce you are happy and remarried and perhaps you drink to much, bad mouth the ex in front of the kids and have trust issues. Or maybe life is pretty much the same after a notable sum of money is spent on counselling or divorce.

          • Matt M says:

            I actually think there’s something to be said for “ignorance is bliss.” That it’s often underrated as a concept.

            I once had a girlfriend who told me she needed to see other people as well. I basically told her “Do whatever you want, just don’t tell me about it and don’t leave any evidence.” I don’t consider myself poly. I would have preferred a faithful/monogamous relationship to be sure. But I also didn’t have any better options at the moment.

            (Ultimately, even that was considered an unreasonable demand. She wanted to talk to me about the other guys she was sleeping with.)

          • Anonymous says:

            I once had a girlfriend who told me she needed to see other people as well.

            I will never understand why someone would agree to such a thing, rather than considering it grounds to dump the other on the spot.

          • Matt M says:

            As I said, no better options. I take a sufficiently pragmatic approach to human relationships such that it makes it difficult to maintain them. Looking back, I think that whole thing may have been a test – which I failed. Maybe she wanted me to yell and scream and put my foot down. To show some “passion” rather than the cold, calculating, logic for which I am typically known.

          • Anonymous says:

            Yup. Probably a shit test.

        • Desertopa says:

          Many people would prefer that their spouse not be cheating on them behind their back, but if they never find out, they haven’t been harmed. Their preferences have been violated, and there are all sorts of ways that they could find out or otherwise be affected by consequences of the cheating, so there are plenty of good reasons to say that it’s better not to cheat. But just because it’s better not to cheat does not mean that a person is thereby harmed even in scenarios where no evidence ever reaches them.

          Utilitarianism does not necessarily mean “no harm, no foul,” the ethics of an action can be judged on the basis the distribution of outcomes that could be predicted at the time it was made. A “bad” action can fail to harm people if none of the possible bad outcomes result, while a “good” action can have net-negative consequences (although it should have positive expected value.) It’s not necessary to suppose that if we see an action as unethical, it must entail a harmful outcome.

          • Anonymous says:

            Many people would prefer that their spouse not be cheating on them behind their back, but if they never find out, they haven’t been harmed.

            Yes, they have been harmed. They just don’t know it.

          • Desertopa says:

            Yes, they have been harmed. They just don’t know it.

            On what basis do you say that? What kind of terms can we define harm in which returns such results which are at all useful to us?

  25. Christopher Hazell says:

    I have to say, Scott, you chose your example MUCH better than Singer and MacMahan did.

    In terms of two inmates in an asylum who have sex with each other, and express no regret or rage once they are discharged and have returned to a mentally competent states, the question “What is the nature of the harm?” suddenly becomes difficult to answer. I mean… it doesn’t make a lot of sense to say that they raped one another, does it?

    Singer and MacMahan seem to have possibly a poor grasp on the facts involved in the stubblefield case, and honestly a lot of the sexual ethics thinking they do is, in my opinion, pretty piss-poor.

    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.

    Or, you know, the actions of a delusional stalker. Six of one, half a dozen of the other, I suppose.

    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.

    Except, like, no, that is not obvious at all, since those beliefs seem to rely heavily on an extremely controversial, if not fully discredited method of assessing DJ’s intentions. It is entirely possible and comprehensible to argue that basing your assessment of consent entirely on facilitated communication is an inexcusably reckless way of doing things.

    • Aapje says:

      IMHO, Singer and MacMahan suffer greatly from a black and white worldview, where someone is either a predator or a saint. If only things were so simple…

    • Protagoras says:

      This seems like a very bad reading of the Singer/McMahan article. They don’t deny that Stubblefield was reckless; rather they note that we generally treat being reckless as bad but less bad than being malicious, and complain that Stubblefield is being treated as if malicious rather than reckless with no apparent justification for why she is put in the worse category. And their points about how the court restricted which evidence the defense was able to present do seem to represent questionable decisions by the court; they admit that it isn’t clear how much difference the excluded evidence should have made, but their belief that the jury should have been the ones to decide that doesn’t look unreasonable (and that issue is one of the largest parts of their discussion).

      • Deiseach says:

        Well, there are cases of women schoolteachers who became infatuated with their students, even becoming pregnant by them, and it’s certainly a woman with some kind of personality or behavioural or mental problem – reckless rather than malicious, as that puts it.

        It’s still treated as wrong; an adult initiating a sexual relationship with a minor is still a crime, even if it’s “But I love him!” If Stubblefield has a tendency to fall in love with her patients and try to have relationships with them, she should get into a different line of work. And look into getting therapy for why she has this neediness for vulnerable people while she’s at it.

        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.

        Or of someone who is under suspicion of taking advantage of a vulnerable person and is trying to paint herself in the best possible light: we’re in love! i wanted it! we’re in a relationship! The trouble is, she’s the interpreter of what he is allegedly saying, and we have no idea if she’s being honest or if he’s trying to say i didn’t want it and she’s translating that as we’re in love.

        Best case scenario: she’s telling the truth, he’s saying he’s in love with her and consented. It’s still unprofessional as hell and would get her in trouble for the care worker-patient violation of boundaries even if there wasn’t also the question of is he or isn’t he cognitively disabled.

        Less good scenario: she’s deluded herself that this is a consensual relationship and that he’s in love with her and he’s perfectly able to give consent because despite what everyone including his own family thinks, she is the one person who recognises that he is cognitively normal – she’s the Annie Sullivan to his Helen Keller but with bells on.

        Worst case scenario – we don’t have to spell this one out.

      • Christopher Hazell says:

        A big problem with Singer and MacMahon’s article is that they’re kind of addressing two separate issues:

        1. How should the legal system prioritize and punish violations of consent?

        2. How do we interpret “consent” when speaking of adultswho may have a sex drive but not the psychological capacity to understand it in the legal sense?

        By trying to cram both of those into one article, the authors did a disservice to both issues.

        Like, they bring up the Brock Turner case, but the reason for the disparity in sentencing there is that our legal system is built and maintained by a large number of people who have differing goals and moral systems.

        Also, Turner himself, and the people who wrote asking for leniency in his sentence, certainly don’t characterize him as malicious: Instead, they say he was reckless in getting as drunk as he did, but once he was drunk he just did what any drunk man would have done in that situation, so punishing him as though he were being malicious would be like punishing him for stumbling or slurring his speech after having a little too much to drink.

        Speaking of crimes we punish in spite of the fact that they involve recklessness rather than malice: Drunk driving.

        I don't think Singer and MacMahon do a good job of establishing that Stubblefield is being treated as malicious rather than reckless, I don’t think they do a good job of explaining why they think she was reckless, rather than malicious, and I don’t think they do a good job of explaining why recklessness and maliciousness should be separated in cases like this.

        And I think none of those questions bear on the question of what consent should mean in terms of mentally incapacitated adults.

      • vV_Vv says:

        This seems like a very bad reading of the Singer/McMahan article. They don’t deny that Stubblefield was reckless; rather they note that we generally treat being reckless as bad but less bad than being malicious, and complain that Stubblefield is being treated as if malicious rather than reckless with no apparent justification for why she is put in the worse category.

        Because after a certain point recklessness (e.g. “gross negligence”) becomes malice.

        If D.J. was a mentally normal 3 years old child, would Stubblefield behavior, including disclosing the relationship herself, constitute exculpatory evidence?

  26. Aapje says:

    The Current Affairs article argues that Singer’s views discredit utilitarianism, since utilitarians are these annoying people who always seem to be coming to weird conclusions that would be much more convenient to ignore. I agree that Singer’s views are related to his utilitarianism, and that this philosophy produces more than its share of weird conclusions that would be more convenient to ignore.

    I think that individual humans are generally quite poor at thinking through all the consequences of choices, as they often forget of or are not aware of some facts, mechanisms, etc that change the outcome. This is one of the main reasons why I seek out debate (and see it as a societal good), to realize the things that I/others missed. Only once I gain substantial expertise in an area and the various arguments, I feel that I can make relatively solid predictions that enable utilitarian decision making.

    My experience with/stereotype of philosophers is that they have a strong tendency to engage in extensive logical reasoning for areas where they have fairly little expertise, and then feel obliged to share this with the world as some major contribution. However, due to their lack of knowledge of the topic, they are often unaware of how limited their view actually is and how inappropriate it is to draw the kind of strong conclusions that I often see.

    In other words, people who call themselves philosophers tend to piss me off, because I am often disappointed by how they use their intellect and skills poorly, by not actually making others more correct, but by legitimizing one-sided points of view. Utilitarianism based on one-sided points of view is pretty easy to counter with an example that the one-sided point of view fails to account for, so philosophers who act like this tend to give utilitarianism a bad name.

  27. Salem says:

    As usual, Scott, this is an excellent article, and I hope you don’t regret writing it.

    But I can’t help wonder at the huge gap between your careful, thoughtful position and the McMahan/Singer article. Part of the reason people have reacted so negatively to Singer on this point is that it’s in the middle of an article where he uses misdirection, half-truths and flat falsehoods*, throwing the kitchen sink of arguments in an attempt to exonerate Anna Stubblefield. If you act like a partisan advocate, it becomes hard to then demand the benefit of the doubt. Power imbalance, abuse of trust, duty of care? Singer doesn’t even mention them. And then there’s this gem.

    [I]f 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.

    We would never accept Singer’s argument applied to children. Abused a young child in your care? Don’t worry, they enjoyed it at the time, or at least didn’t object too much! Err, yeah, of course it’s possible to wrong or harm someone in a way they don’t understand, that caused them a pleasurable experience at the time, and this risk is especially acute if someone doesn’t have full cognitive faculties. Maybe Stubblefield should have euthanized D.J. with morphine – he wouldn’t have understood what was going on, he’d have found it pleasurable in the moment, and that way there’d be no witnesses to the rape!

    Of course, given his abysmal record on children, nothing surprises me with Singer.

    *I’m not saying Singer is lying – it looks like he’s uncritically repeating propaganda by the defense team. He’s merely culpably negligent.

    • Deiseach says:

      I]f 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.

      Yeah, I mean, feck’s sake, suppose it was a case where a mentally/cognitively impaired person had a trust set up for them or some kind of money left in order to pay for their living expenses and care, and the solicitor or trustee persuaded them to sign a paper giving over control of that in exchange for – let’s say, a bar of chocolate. The person doesn’t understand the legalities of signing away their money, they really enjoyed their favourite bar of chocolate, how were they harmed? And this crap happens in the real world all the time, where caretakers take advantage of those in their care. And yes, cultivating a close and even emotionally intimate relationship is part of it:

      3. Cultivating a personal connection

      For many older adults, a caregiver quickly becomes a trusted friend, often the only person they see from day to day. With such consistent and intimate contact, close bonds are common. But keep your eyes open for anything that seems to step over the boundaries of professionalism. Watch and listen for signs that your loved one is becoming emotionally involved with or dependent on his or her caregiver, such as talking about the caregiver all the time or seeming to consider that relationship more important than friendships or family ties.

      Why it’s worth worrying about: Typically, thieves planning a scam will gradually “prime the pump,” seducing an elderly target with greater and greater shows of affection until he or she becomes emotionally dependent on the caregiver. “It can start very subtly: touches on the arm, little gifts, shows of affection,” says caregiving author Carolyn Rosenblatt. Hugs, compliments, and attention become stepping stones to building a connection that’s overly intimate. Some concerned family members have found themselves in situations in which their loved ones bought their caregivers cars or gave other expensive gifts, paid their rent, or “loaned” them money that was never repaid.

      I’ve never yet read anything by Singer that convinces me of the great reputation I’m told he has as a thinker on ethical problems and principles. I think he’s one of those people that loves animals and doesn’t have much time for humans, or Chesterton’s description of modern humanitarians:

      The modern humanitarian can love all opinions, but he cannot love all men; he seems, sometimes, in the ecstasy of his humanitarianism, even to hate them all.

      • Jiro says:

        Err, yeah, of course it’s possible to wrong or harm someone in a way they don’t understand, that caused them a pleasurable experience at the time, and this risk is especially acute if someone doesn’t have full cognitive faculties.

        I’ve often complained here that utilitarianism doesn’t handle blissful ignorance well, and this is another case of it. If a hypothetical version of the person with baseline human knowledge and mental capacity wouldn’t have consented, then the “consent” from the blissfully ignorant person is meaningless.

        “Did they complain or object” would lead you to conclude that not only is it okay to have sex with the disabled, but also with many children.

        As for animals, remember that one man’s modus podens is another man’s modus tollens. Yeah, our consent rules fail when applied to animals; our rules about “don’t use the other guy as the main course for dinner” also fail when applied to animals. Maybe the right answer is to stop treating animals as people rather than to keep discovering that human rules produce ludicrous results for animals.

        • Hyzenthlay says:

          Yeah, our consent rules fail when applied to animals; our rules about “don’t use the other guy as the main course for dinner” also fail when applied to animals. Maybe the right answer is to stop treating animals as people rather than to keep discovering that human rules produce ludicrous results for animals.

          Or to realize that a lot of our rules are actually pretty arbitrary and contradictory to begin with, and exist more because they’re convenient or familiar to us than because there’s a really solid logical foundation beneath them.

      • Nancy Lebovitz says:

        There’s the matter of consent and contracts– what does it take for a person with ordinary mental capacities to understand a contract? What about contracts which are designed to be hard to understand?

      • Desertopa says:

        Yeah, I mean, feck’s sake, suppose it was a case where a mentally/cognitively impaired person had a trust set up for them or some kind of money left in order to pay for their living expenses and care, and the solicitor or trustee persuaded them to sign a paper giving over control of that in exchange for – let’s say, a bar of chocolate. The person doesn’t understand the legalities of signing away their money, they really enjoyed their favourite bar of chocolate, how were they harmed?

        From a utilitarian standpoint? Pretty clearly by losing all their support resources. They might not understand what they signed away, but they’ll certainly suffer for a lack of it. Or, if whoever their legal caretakers are find some other means to secure funds for them, then harm is caused by the additional labor and the resources lost from whatever source they get the money from.

        This is part of a wide pattern of criticisms launched at utilitarianism in the form of “this action causes clear harm, but utilitarianism fails to guard against it!” Except, well, the action causes obvious harm, and utilitarianism guards against it on exactly that basis.

        The cases which utilitarianism legitimately fails to guard against, which some people regard as strong points against it, are actions which defy some people’s moral intuition, but don’t have any net expectation of harm. If your impulse is to say that it’s wrong because someone is left worse off than they would otherwise be, utilitarianism should (at least as far as your assessment is reasonable) already oppose it. If your impulse is to say that it’s wrong despite nobody being worse off than they would be otherwise, then utilitarianism will probably not guard against it, but maybe it shouldn’t. The failure of utilitarianism to guard against consenting private sodomy, for instance, would seem like a serious failing to someone convinced that any sound ethical system ought to prevent such a thing. But this is not necessarily to the detriment of utilitarianism.

    • Jiro says:

      Part of the reason people have reacted so negatively to Singer on this point is that it’s in the middle of an article where he uses misdirection, half-truths and flat falsehoods*, throwing the kitchen sink of arguments in an attempt to exonerate Anna Stubblefield.

      I’m reminded of the post where Scott wonders why people are upset when a preacher goes into a detailed thought experiment about raping atheists’ daughters.

      And the answer is that in the real world, people aren’t just logical machines. Rationality is often used in service of something. Robertson wasn’t just creating a thought experiment which examined the logical consequences of atheists’ beliefs. He may technically have been doing that, but he wasn’t just doing that; his choice of scenario and his verbiage was done to promote outgroup hatred in a particularly vicious way. Scott may ignore the non-literal aspect of his words, but both Robertson’s audience, and atheists who were outraged by Robertson, knew very well that this non-literal aspect was there.

      Singer is a similar case here. Singer wasn’t just making a logical argument. Singer was making a case using rhetoric that, like a lot of other rhetoric, ignored facts, skipped over objections, and was generally one-sided. The fact that a couple of sentences of that could, taken by itself, be framed as a logical argument doesn’t change this, and engaging only with his logical argument is missing the point.

  28. keranih says:

    Good, God, Scott. Gutsy as hell. Well done, too.

    I have a bit more to say about your analogy to non-human animals, but I need to think and edit down what I want to say rather than word vomit before work.

    If you want to do surgery on a disabled person who can’t consent, lots of doctors and lawyers and friends and family get together and do some legal stuff and try to elicit information from the patient as best they can and eventually come to a conclusion.

    As others have pointed out, yes, we used to do this sort of social confab for sex for people of average mental state, too. I’m not convinced that we-as-Western-society have entirely benefited from the idea that “once you’re an adult, you are given leave to make and deal with all sort of choices on your own.”

    However, we did decide that this was one of the principles that we would go by – that ordinary people, once reaching adulthood (however we defined that) would be treated as people of self-agency, as reasoning things who could forecast consequences and who should be trusted to make the best decisions for themselves. And live with the consequences. Even if we were being dumbasses.

    This is consent throughout our entire lives – the part where we enter debt, make commitments, trade resources and bind ourselves to others – and I think we sometimes lose track of the idea that human individual liberty rests on our social ability to make or withhold consent as we individually see fit.

    It is part of the whole thing where no one is master of another.

    I also think that we lose sight of how human society rests on the requirement that we are subject to the consequences which we have had the liberty of consenting to. Which consequences I see a lot of nominally adult people trying to shed, trying to deny the existence of, or trying to delay taking up.

    Finally, wrt the idea that we should bring in educated experts in medicine, law, and other areas in order to make the most correct decision concerning people who can not consent (in other words, who lack complete individual agency) – I do not doubt that the majority of professionals do so with consciousness regard for the person in question. But I wonder how many errors are made because the educated experts try to imagine what they would do or want to do in a situation, and as those experts are of a different tribe/race/social class/whatever, they come to a conclusion that matches their own best preferences, not that of the person under consideration.

    I wonder what the process is of reaching out to people of other ethical/moral frameworks, in order to ensure that all possible actions are given appropriate weight.

    (Again, Scott, really good job. Thanks for writing this.)

    (Singer has always vastly annoyed me, on accounta he’s seemed to be incapable of communicating his points in a way that doesn’t outrage people. Of course, he gets lots of help from people who uncharitably summarize his work.)

  29. omegaxx says:

    Just curious: If severely mentally incapacitated, institutionalized people are to have sex (and I can readily get behind that position), how do you envision implementing birth control?

    —-If birth control is to be implemented, the most effective way to achieve it would be a sterilization procedure. This brings us right to square one with eugenics.
    —-If birth control is not to be implemented, based on a respect for “parenthood as a universal experience to which nobody should be excluded”, then what happens to the pregnancies and/or offsprings?

    I wonder if the current practice of just keeping people from having sex stems from above icky questions that would inevitably ensue from permitting sex.

    • sconn says:

      This was my main thought. If a person doesn’t understand the connection between sex and pregnancy, how can they consent to sex when we don’t know whether or not they would like to be pregnant?

      I mean, I remember a Call the Midwife episode where two disabled adults had a baby together, and it was really sweet and beautiful and they both more or less understood that they were having a baby, which they wanted. But what about more profound disabilities, where a person might have sex, get pregnant, and then be very upset about the changes to their body they don’t understand? Do we give them an abortion? What if they are scared of having an abortion and refuse to cooperate with the doctor, but at the same time cry about how bad they feel? How can we make that decision for another human being — and how CAN’T we, given that a decision does in fact have to be made?

      And it’s not an imaginary situation — I heard a friend’s story about her disabled sister, who was intellectually about 8, living in a group home with some independence. She liked having money to spend on her favorite things … so she would have sex with strangers for five dollars or so. She did get pregnant, didn’t want to be, but her guardians were prolife so they didn’t tell her abortion was an option for her. Like, what exactly do you DO in that situation? Do you take away her independence so she will stop practicing prostitution? Do you sterilize her? Do you tell her “oh well, you’re having a baby”? Once she has the baby, what if she wants to keep it? She almost certainly isn’t competent to take care of it, but it will also traumatize her to take it away from her. On and on and on.

      • Evan Þ says:

        …how can they consent to sex when we don’t know whether or not they would like to be pregnant?

        Perhaps the same way someone of ordinary sound mind can consent when she herself doesn’t know whether or not she’d like to be pregnant? Or, perhaps, when she’s using contraception but she’s the one-in-however-many failure case?

        (I mean, I get your point, and I’m already feeling sorry for the hypothetical child. But since we’re already chasing this analogy…)

        • omegaxx says:

          At least a person of ordinary mind is aware that pregnancy (and childbirth, depending on her stance towards abortion and the local environment) is a possible consequence whenever one has sex?

          It’s very hard for me to consider these things logically because one of my buttons is people who shouldn’t be having children, having children. How do I even determine if someone should or shouldn’t be having children, you ask. Right, that’s what I mean, it’s not a hyper-rational sentiment but rather my own projection.

          • Evan Þ says:

            Nope. Many people assume that contraception will work, when there’s a chance of failure. A lot of people assume that their partner’s taking contraception, when he/she isn’t. Some people assume that a vasectomy will work, when even it’s not guaranteed.

          • Protagoras says:

            I think it’s important to note that the two points you raise aren’t remotely comparable, Evan. You’re right that lots of people don’t use contraception because they assume their partner is doing so, or inexplicably decide that it won’t be a problem if they don’t use contraception this one time; those are extremely frequent problems. On the other hand, actual contraceptive failure is very different; it’s quite rare (most of what gets classified as contraceptive failure is really failure to use contraceptives). It doesn’t benefit anybody to give people the misleading impression that there’s no reason to bother with contraception because it doeasn’t help much anyway; it makes an enormous difference.

          • omegaxx says:

            Amen, Protagoras. I also think there is a qualitative difference between having imperfect information but at least being aware of the theoretical consequence versus having no mental ability to comprehend the link between one’s actions and consequences.

            Re: contraceptive effectiveness, here’s one of the best studies done on it (in St. Louis, where the investigators were able to give contraceptives free of charge to women): https://www.ncbi.nlm.nih.gov/pubmed/22621627. Failure rate was 0.3 pregnancies per person-year for long-term reversible contraceptives (like IUDs) and 6 pregnancies per person-year for stuff like pills, Nuvaring and patch. The general expected pregnancy number for sexually active people having unprotected sex is usually in the 80 per person-year ballpark. So contraceptive works–it’s not perfect, but pretty darn close.

          • Montfort says:

            omegaxxx, do you mean per 100-person-years? That’s the units the results you link seem to be in. Otherwise you seem to be implying the average woman on the pill is getting pregnant six times a year.

          • iloveSSC says:

            Yes, it’s per 100 person-years.

            And these failure rates are *scarily* high to me! I doubt that most people understand that using a ring or the pill means that each year they have a 6% chance of an unwanted pregnancy.

            Even if they “know” that it’s around 6% (from high school health class or something like that), I doubt they understand just how high that is.

            If someone becomes sexually active at 18 and doesn’t want to be pregnant until 30, that’s a very high probability of getting pregnant in the interim.

  30. Jack V says:

    I sort of agree with the conclusion, but also the anger at what (AIUI) Singer wrote. Like, A was in a position of power over B. We don’t know if B enjoyed, participated or initiated the sex. We only have A’s very biased opinion whether B wanted it. A clearly acted unethically (eg. they could have got SOMEONE ELSE to take over their role as facilitator to form a romantic relationship).

    And yes, if none of those things were true, if A and B didn’t have a power difference and both clearly participated enjoyably, I’d say, “yes, that should be ok even if it’s difficult”[1].

    But “Just after A did a bad thing to B” seems like the worst possible time to come out with an argument like “but if all the facts were different, it would be ok”, even if that’s an important argument to make.

    [1] Apart from certain practicalities like whether they use protection or contraception or not.

    • Anonymous says:

      And yes, if none of those things were true, if A and B didn’t have a power difference and both clearly participated enjoyably, I’d say, “yes, that should be ok even if it’s difficult”[1].

      There ain’t nothing wrong with an imbalance of power.

      • Nancy Lebovitz says:

        That reminds me– there’s a lot of power imbalance that doesn’t get considered. One partner in a marriage might be physically incapsitated compared to the other.

      • hydro says:

        There ain’t nothing wrong with an imbalance of power.

        I’m…confused. The way you phrased this seems kind of joking, but upthread you also had some unusual opinions about consent.

        Even if the mental state of consent itself is not something you think legal systems should heavily weigh, the harm caused by having unwanted sex is something to be taken into account, and in situations of severe power imbalance a ‘yes’ or ‘no’ may be predicated primarily on factors other than the actual desire for/enjoyment of the propositioned sex. This should be discouraged.

        Or were you saying that – beyond consent – we should discount all mental/emotional/internal states as important considerations in calculating harm? (This seems like a strawman? As I said, I am confused.)

        • Anonymous says:

          I’m…confused. The way you phrased this seems kind of joking, but upthread you also had some unusual opinions about consent.

          My opinion is that an imbalance of power is pretty much the basis of a stable and lasting marriage. You WANT an imbalance of power, if you don’t want a divorce down the road. Egalitarian “marriage” doesn’t work for a Standard Model Human. A normal male wants a wife who is submissive and obedient. A normal female wants a husband who is dominant and powerful.

          Even if the mental state of consent itself is not something you think legal systems should heavily weigh, the harm caused by having unwanted sex is something to be taken into account, and in situations of severe power imbalance a ‘yes’ or ‘no’ may be predicated primarily on factors other than the actual desire for/enjoyment of the propositioned sex. This should be discouraged.

          What, indeed, is the harm? Is it worse than a non-aggravated beating? Worse than compulsory military service? Worse that doing homework when you don’t feel like it? Worse than doing anything much that you don’t want to? Why?/Why not? IMO, the “unwanted activity” part of rape is the least wrong part of it.

          Or were you saying that – beyond consent – we should discount all mental/emotional/internal states as important considerations in calculating harm? (This seems like a strawman? As I said, I am confused.)

          It shouldn’t give them much credence or importance. It might play a role in the decision on what punishment to lay down, but mind-reading technology is in its infancy. It probably should not be used to determine guilt.

          • Unsure says:

            My opinion is that an imbalance of power is pretty much the basis of a stable and lasting marriage. You WANT an imbalance of power, if you don’t want a divorce down the road. Egalitarian “marriage” doesn’t work for a Standard Model Human. A normal male wants a wife who is submissive and obedient. A normal female wants a husband who is dominant and powerful.

            Given the fact that there was a feminist tradition for centuries before it became influential and the historical record of clearly dissatisfied women, surely you would have to agree that there are a significant minority (I think a lot more than that, but I’m going with what I can establish from memory here as I’m no historian) of women who feel fundamentally unsatisfied with being dominated by men?

            If you do, how do you think the culture SHOULD (as opposed to what is realistic) be given the needs of such women? If you don’t, how do you explain the passion and effort of women, and the literature of women unsatisfied with traditional lives and husbandly authority?

            Also, how you define a non-egalitarian marriage? Is it enough that the wife tends to do more of the chores while the husband concentrates on the work more but the wife has plenty of say if not an equal say in decision making? That would be a major stretch as an interpretation of your post, but those marriages are egalitarian to you how do you explain how they survive?

            On a minor note, have you heard of criticisms of groups such as the Quiverfull movement and the impact of an imbalance of power (e.g. http://www.patheos.com/blogs/nolongerquivering/)? If you have, I’d be curious to know what you think of them, and similar stories across the blogosphere where women who have gotten out testify that they have far greater life satisfaction than they did.

          • Jiro says:

            What, indeed, is the harm?

            Humans are wired to treat unwanted sexual activity as significant harm. It’s like asking what the harm is from causing someone pain.

          • Matt M says:

            Humans are wired to treat unwanted sexual activity as significant harm. It’s like asking what the harm is from causing someone pain.

            Is the “wiring” biological, or is it socially conditioned? Also, we know that for mentally disabled people, very generally speaking, their “wiring” is not the same as it is in normal humans. So why should we assume that the harm is also the same?

          • vV_Vv says:

            Is the “wiring” biological, or is it socially conditioned?

            Who cares? Is the wiring to, e.g. not capture people from your neighboring tribes in order to eat them bioogical, or is it socially conditioned?

            Also, we know that for mentally disabled people, very generally speaking, their “wiring” is not the same as it is in normal humans. So why should we assume that the harm is also the same?

            Because severally mentally disabled people don’t get to discuss social morality rules, we do.

          • Anonymous says:

            Given the fact that there was a feminist tradition for centuries before it became influential and the historical record of clearly dissatisfied women, surely you would have to agree that there are a significant minority (I think a lot more than that, but I’m going with what I can establish from memory here as I’m no historian) of women who feel fundamentally unsatisfied with being dominated by men?

            Sure.

            If you do, how do you think the culture SHOULD (as opposed to what is realistic) be given the needs of such women? If you don’t, how do you explain the passion and effort of women, and the literature of women unsatisfied with traditional lives and husbandly authority?

            Hard cases make bad law, as Daisy said the other day. The only thing I can suggest to these women is either not to marry, or choose husbands who will give them more than the typical amount of liberty – it’s not as if there aren’t any (there are probably more such unusual men than there are such unusual women, given the greater male variability).

            Regarding culture, you can’t make it from scratch. It’s an organic process, so attempts to define what it “should” be are counterproductive. I would like the pro-egalitarian propaganda to end, because it counterproductively attempts just this; remove the ludicrous amounts of effort spent to normalize egalitarianism, and it’ll snap right back to something closer to reality.

            Also, how you define a non-egalitarian marriage? Is it enough that the wife tends to do more of the chores while the husband concentrates on the work more but the wife has plenty of say if not an equal say in decision making?

            In general, the non-egalitarian model I’m thinking of is the traditional one – man earns a salary, wife stays home and takes care of children. If they’re farmers, they obviously both work on the farm, but the man will obviously do most of the manly work, and the woman will do most of the womanly work. The man also takes the leadership role; he’s the head of the household, and has responsibility to make the hard, far-ranging choices.

            That would be a major stretch as an interpretation of your post, but those marriages are egalitarian to you how do you explain how they survive?

            How do you explain that the eskimos survive on a vitamin-deficient diet?

            On a minor note, have you heard of criticisms of groups such as the Quiverfull movement and the impact of an imbalance of power (e.g. http://www.patheos.com/blogs/nolongerquivering/)? If you have, I’d be curious to know what you think of them, and similar stories across the blogosphere where women who have gotten out testify that they have far greater life satisfaction than they did.

            I’ve heard of them, but I don’t really know much about them. I’m sympathetic to their goals as far as I know them, even though they’re heretics. The woman in question seems to be an exception, an outlier. Not something for which you should reform society and eat stability hits.

        • Brad says:

          Gender as noun–even better Bayesian evidence than random capitalization.

  31. J Mann says:

    Scott (and others):

    Are there two questions: (1) whether we are going to let the cognitively disabled have sex with anyone and (2) whether we are going to let them have sex with non-cognitively disabled people?

    In the cases of teenagers and animals, we (often) let them have sex with each other with mutual consent, but not with adults or humans, respectively, regardless of consent. I’m not confident I can fully explain why that is, but it seems to be a prevalent and well accepted rule.

    Presumably, something like that might apply to the cognitively disabled. I think most people would be uncomfortable if a facility wanted to host mixers for the cognitively disabled and area adults, albeit maybe not Singer.

  32. Corey says:

    This is a live issue for me. I have a 10-year-old daughter who:
    – is severely autistic, barely verbal, generally cognitively about like a 3-year-old
    – just hit menarche
    – wanks a *lot* (whether for sexual or plain sensory purposes is unknown)

    She’s starting Depo anyway to suppress the periods (she’s not going to be able to manage them; recently found out this is common for mentally handicapped women). The ideal would be to just have a hysterectomy (why have 30+ years of periods if you’ll never be able to take care of kids) but we don’t actually know whether she’ll be this non-functional forever so it’s way early to think about sterilization. And of course there’s the bad NC Eugenics Board-style history.

    No idea what to do once she has a fully armed and operational sex drive. Or how to know, even – maybe when she starts trying to hump classmates at school? How would we distinguish a case of predation from an ordinary boyfriend? (Heck, some people think sex *should* be a predator-prey relationship).

    She also just got off the waitlist for disability waiver services (thanks, Paul Ryan, for being unable to gut Medicaid yet) and the community guides there may have some insight. At least they could help us with the legalities. Maybe it’s not legal for us to let her have boyfriends at 16, for example.

    • coreyyanofsky says:

      +1 for the Death Star reference, other Corey. Here’s hoping you get the help you need.

  33. J Mann says:

    In a related point, a few years back there was a lot of coverage of a case where a guy was charged with assault for having sex with his wife, who was suffering from severe dementia. (IIRC, the motivating factor was that she told her daughters from a previous marriage about it – my recollection was that she sounded pleased, but was also substantially confused about what was going on as a general matter.)

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/23/78-year-old-iowa-ex-legislator-acquitted-of-having-nonconsensual-sex-with-his-wife-who-was-suffering-from-alzheimers/?utm_term=.e67409d32047

    My preferred rule in those cases is to give first preference to the subject’s wishes expressed in a living will, albeit not enough to override resistance post-dementia. (My wife and I have given each other carte blanche if this comes up, but if one of us is resisting, that should trump.)

    • Matt M says:

      I remember reading a few articles on this and was going to bring it up.

      I’ll just add that this sort of thing has added to my paranoia of seeking any sort of psychological help, under the logic that IF some “professional” decides that I really AM crazy, “the right to have sex” is another item potentially on the chopping block right there with things like firearms ownership, living arrangements, etc.

      The more basic human rights you take away from the “mentally ill” the more you encourage people to avoid any scenario that might get them classified as mentally ill. All the “let’s talk about depression” Twitter hashtags in the world won’t change that basic logical calculus.

  34. Deiseach says:

    I was going to comment in the light of certain cases I know about, but this is too much of a minefield of a topic. I’ll just say that the idea of sexual and romantic relationships for the disabled (whatever way we define that, and it includes (a) physically disabled (b) mentally or cognitively impaired (c) mental problems but not cognitive impairment and any mix’n’match of these three) is very difficult.

    Because people – ordinary, normal, average, able bodied and minded, you and me people – are scum.

  35. foobarbaz says:

    Proponents of facilitated communication seem to believe that it is the mechanical stabilization of disable person’s arm that allows them to express themselves. If this is true, then would mechanical stabilization by some other, neutral means (perhaps a robotic device? obligatory “I am not an engineer”) eliminate the possibility of the facilitator responding for the disabled person?

    • Evan Þ says:

      That would appear to follow. But from my cursory knowledge, facilitated communication’s already been disproven in other ways?

      • coreyyanofsky says:

        It’s very easy — just give information to the disabled person (“here is a picture of a boat”) but not to the facilitator and then ask the disabled person to communicate it back to you with the help of the facilitator (“I showed you a picture five minutes ago. What was it a picture of?”).

        • xXxanonxXx says:

          And when they do this the subject allegedly communicating consistently fails the test. If you watch the videos the subjects are frequently not even looking at the board they’re supposed to be using to communicate. From a dispassionate point of view the whole thing is obviously bunk, but try telling that to a parent who thinks there’s even a chance they can communicate for the first time with their child. Hell, my wife and I don’t even have kids, but when I told her I’d read more on the technique and was certain it was delusion or outright deception she looked like I’d just shot her dog.

  36. John Schilling says:

    I believe I have said it here before, but I’m pretty sure it was a mistake for Blue Tribe to adopt a position so sex-ultra-positive that “consent” was the one and only condition for Good Non-Rapey Sex, and encode that in law and policy. There’s no shortage of cases where better than 90% of humanity would say, “This is Bad Rapey Sex”, where the law will ban sex, but where it would be absurd to suggest that the actual mental state of everyone involved was anything less than enthusiastic consent.

    So, instead of having a simple, frank discussion about the lines between good sex, bad sex, illicit sex, and outright rape, we have to invent contrived definitions of “consent” that have little to do with the plain meaning of the word and which derail the discussion when we try to extend it beyond narrow bounds.

    • wysinwygymmv says:

      It wasn’t like anyone just “made a decision”. Some people think that it’s too easy to get away with rape under the current system. Some people thought that other kinds of sex were being unfairly punished where they should not. They all pursued what they perceived as their interests. The changes you editorialize about are the result of the uncoordinated actions of thousands of human beings.

      Also, considering how recently marital rape was outlawed, I can’t help but think that at least some of the changes have been really positive.

      • Brad says:

        What you didn’t get your Blue Tribe ballot form? You should contact your precinct chairperson to make sure your address on file is correct.

        • wysinwygymmv says:

          Sssh, we need some plausible deniability on the whole alevolentmay-ivemindhay-akingtay-overay-ethay-orldway thing!

  37. Another problem too is that children are hitting puberty and developing sexual impulses earlier and earlier, which is outpacing their mental maturation more and more. If someone hits puberty at age 10, and starts seriously thinking about sex at age 12, it is unnecessarily onerous to force them to repress their impulses for 6 more years. I say “unnecessarily” because, if there were no birth control, then I’d be tempted to say, “Yeah, it sucks, but 12 year olds can’t raise children, so yeah, it sucks that they have these impulses, but they just need to deal with it…just like people need to deal with gravity being a drag.” But we have birth control. We are no longer at the whims of fate in this area. That’s progress. If adhered to, birth control could at least remove the financial implications of sex…which would leave the emotional/social implications.

    If I were dictator, I would mandate comprehensive sex-ed at age 12 that covered not just the biological nuts-and-bolts of sex (no pun intended), but also the subtle emotional/social/legal/ethical/financial implications of sex. Have students read testimonials from adults talking about very confusing sexual situations. Yeah, a lot of it might go over their heads without first-hand experience, but it would help. (And yes, many parents would object

    Then, lower the age of consent to 16 (which is already common in many countries other than the U.S.) and allow consensual sex between people less than one year apart in age, starting with 13 years of age.

    • Anonymous says:

      This solution would also destroy these people’s chances at having stable marriages in the future (inasmuch as I parse it as “let’s subject every barely-pubescent child to casual sex”). Not sure if your reign would be remembered as “at least he’s not Mugabe” or “I wish we got Mugabe instead”.

      • Jon Gunnarsson says:

        Data showing a correlation between early sexual activity and divorce rates does not imply that lowering the age of consent will increase divorce rates. For example, the causal relationship might be something like: people who break age of consent laws are more likely to have a cavalier attitude about their marital vows.

        Also, there are many countries in Europe with age of consent as low as 13 or 14, without any obvious negative consequences.

        • Anonymous says:

          If you have some data showing that this is all wrong, I’d like to see it. To me, it strongly suggests that the more promiscuous you are, the worse your overall life outcomes will be.

          • Jon Gunnarsson says:

            I’m perfectly willing to believe that promiscuity is correlated with bad life outcomes. But it does not follow from that that lowering the age of consent will lead to either promiscuity or bad life outcomes.

          • Anonymous says:

            Sure. No objections to that. I mean, we had *no* ages of consent at all for a good long while. And when they started going into fashion, they were set a bit lower than we’re used to now. Doing away with ages of consent, or lowering them, on its own, will not cause bad life outcomes.

            Promoting extramarital intercourse and promiscuity is another matter.

      • loki says:

        That data was hopelessly confounded and the way it is presented in those charts state causal relationships that are not proven.

        1: (‘Effects of Early Sexual Activity on Promiscuity’) It seems very likely that something else, like personality or high sex drive, could be the cause of both starting to have sex early, and having a lot of partners.
        2: (‘Effects of Early Sexual Activity on Happiness/Depression’) The real drop in happiness and increase in depression is found in people who had sex at 14 or younger. So ‘rape victims tend to be less happy’. Shocker.
        3: (Marriage Success/Stability) Hopelessly confounded by the fact that having zero sexual partners before marriage is highly correlated with a specific view of marriage in which divorce is unacceptable or highly frowned upon, and membership in a religion and community that will judge you harshly for it.
        4: (Marriage Quality) While I’ve read research for the other stuff, I don’t know where this chart is from and thus have no idea what metric is being used to judge the ‘quality’ of a marriage. Self report would be confounded by the same cultural factors as #3.
        5: (Pregnancy/STDs) Preventable with education and availability of birth control and testing/treatment.
        6: (Sexual Promiscuity and Depression) The prevalence of depression in all groups comes out as lower than the prevalence in women in general (x, x)? Also no indication as to whether this is current or lifetime or what.

        • Anonymous says:

          As above, if you have data that contradicts mine, feel free to bring it up. Worst case, I’ll accept it and put in my repository of hate facts for later reuse.

          1: (‘Effects of Early Sexual Activity on Promiscuity’) It seems very likely that something else, like personality or high sex drive, could be the cause of both starting to have sex early, and having a lot of partners.

          Could be.

          2: (‘Effects of Early Sexual Activity on Happiness/Depression’) The real drop in happiness and increase in depression is found in people who had sex at 14 or younger. So ‘rape victims tend to be less happy’. Shocker.

          Are you suggesting that there aren’t substantial amounts of promiscuous early teens? Or that promiscuity at that age constitutes rape, and since rape is traumatic, therefore promiscuity in early teens is traumatic? Not sure what to make of your argument.

          3: (Marriage Success/Stability) Hopelessly confounded by the fact that having zero sexual partners before marriage is highly correlated with a specific view of marriage in which divorce is unacceptable or highly frowned upon, and membership in a religion and community that will judge you harshly for it.

          And?

          5: (Pregnancy/STDs) Preventable with education and availability of birth control and testing/treatment.

          You overestimate how much self-control and discipline people in general have. And how far education can change that. Especially in context of sex.

          6: (Sexual Promiscuity and Depression) The prevalence of depression in all groups comes out as lower than the prevalence in women in general (x, x)? Also no indication as to whether this is current or lifetime or what.

          No idea myself.

    • christhenottopher says:

      I just wanted to give a quick note on your last statement:

      Then, lower the age of consent to 16 (which is already common in many countries other than the U.S.)

      (emphasis mine)

      I would say that actually the age of consent being 16 is quite common in the US, just not universal since the age of consent is solely handled on the state level (which itself is not uncommon, many countries have local or regional governments handle age of consent). Over half of all US states set their age of consent to 16 (though since many of the largest states including California, Texas, Florida, and New York set it higher over half the US population lives in a 17+ age of consent state, wikipedia on this: https://en.wikipedia.org/wiki/Ages_of_consent_in_the_United_States).

  38. baconbacon says:

    Whether or not DJ wanted sex with her is irrelevant. Even if he did (and we have no evidence other than the testimony of the alleged rapist that this is the case) she committed an action which put her at extreme risk for raping somebody, without any system in place to minimize that risk. A world where people can go around having sex with random disabled people as long as they say “I’m pretty sure he was in favor of it” is a world where many disabled people who are not in favor of it will end up being raped. As long as that’s the situation, the law against doing so is just and needs to be enforced. I think I legitimately disagree with Singer on this.

    I thought the entire piece was between good and great except for the above. This is an extremely naive view of how people work, and what types of rules produce what types of outcomes. The simple outline

    1. Non verbal, poor communicators (non communicators) aren’t ever going to be able to turn in their rapists.
    2. Rapists will only ever be caught by being really careless, or bragging.
    3. Making “example” cases whenever you can might deter a few but for the most part will only show (those paying attention) that you have to hide these things.
    4. The most caring people are the ones you end up driving away. “I liked him a lot, and thought he wanted me to kiss him” = “throw her in jail” if you are trying to punish for preventive purposes, meanwhile a serial rapist will just not say anything and go along abusing his victims horribly.

  39. baconbacon says:

    Lots of things bug me about this situation.

    1. Prevent any harm is not a standard we apply ANYWHERE outside of these types of conversations. My 2 year old daughter has bumps and scratches from falling over, but doesn’t where a helmet, shin guards and leather gloves all the time. However there is a certain amount of falling over where I would consider it, and an amount when I thought it totally necessary. Some of those considerations would me made entirely for her, but some would also be made for me. This isn’t even a standard we hold for our pets (one of my dogs has had Lyme disease probably gotten from one of many walks through fields). Everything is a balancing act between benefit and harm, but the position of do no harm is easy to state so it becomes the dominant meme.

    2. Relationships are incredibly important to people. Some people will put up with terrible abuse rather than to feel alone, yet we don’t strip all of their autonomy away to prevent every kind of abuse (though we will for some kinds). No one views their own relationships solely through the prism of their worst interaction, but virtually all commentators will view another’s relationship this way. We should try to protect those that are vulnerable, but that shouldn’t start with positions of preventing them from having relationships. That should be a last recourse and not a standard.

  40. mnemesis2 says:

    Singer gave a pretty convincing argument that the guy in question actually is capable of communicating and giving consent. Then he said: “and, even if we concede that point for a second, (Very Controversial Thing)”.

    People asked you about Very Controversial Thing, and you gave us a nice discussion of that point, but partway through you said: “From a legal point of view, Anna Stubblefield should absolutely 100% go to jail” and “(and we have no evidence other than the testimony of the alleged rapist that [DJ consented])”.

    I think this is underselling Singer’s case.

  41. rahien.din says:

    reliable cues that they want the sex and are enjoying themselves

    A person could display those same cues in order not to provoke anger or violence from their assailant.

    One disturbing possibility is that Stubblefield was correct about DJ’s mental capacity and that she was right about his ability to communicate via FC, but that she slowly became infatuated with him and their relationship turned coercive. Her status as his interpreter would have a profound ability to manipulate his family and to coerce his behavior. He might not have much of an option but to acquiesce to her demands.

    • Zodiac says:

      Maybe I’m being too simplistic but how do we determine consent in any situation then? I mean any verbal or non-verbal cue can possibly be faked out of the fears that you describe.

      • rahien.din says:

        This situation is fairly unique because of the degree to which Anna could keep DJ captive, being that she was his sole conduit of communication. Most people aren’t under such threat of captivity, and thus, the corresponding incentive to be sexually acquiescent/obsequious wouldn’t be present.

        In other situations with strong power imbalances, sure, we would have some reason to doubt some of the verbal or non-verbal cues.

  42. baconbacon says:

    To throw a wrench into the consent thing, a hypothetical.

    A guy and a girl are dating, they have not had sex yet. One night the guy gets a text from the girls number that reads

    “The reason we haven’t had sex is that I am virgin, and I am a virgin because I have a very specific sex fantasy that I am embarrassed to tell anyone about. I fantasize about you sneaking into my room at night, tying me to the bed while I sleep and waking me with your censored censored censored”, I want you to be the one to take my virginity”

    So the guy does exactly what the text message said, but it turns out someone stole her phone and sent that text unbeknownst to her.

    Does they guy who earnestly believed that he was respecting the girl’s wishes deserve jail?

    • Skivverus says:

      Tricky. I mean, he’s clearly an idiot for not checking that the text actually came from her – this should not be terribly hard, and any attempts to make him speed this up without confirming with her first in person should raise stolen-phone red flags (“wait, why is she moving so fast all of a sudden?”), but there’s still room for extenuating or aggravating factors (e.g.: phone security features, plausibility of message), and there’s mixed opinion on whether rape is a strict-liability situation.
      Absent further details, I’d defer to the judgment of the girl.

    • lvlln says:

      It seems to me that the legal justice system should disincentivize the action that that guy took; that is, a text message shouldn’t ever be perceived as consent for that kind of simulated rape, because of the possibility that the text was not genuine. So I think that guy should go to prison.

      However, that guy should also be acknowledged as a victim of fraud by whatever party stole the girl’s phone and sent that text message. Thus he would also deserve leniency and compassion. And whoever sent that text message should be punished at least as much as the guy.

      I’ll admit that I’m kinda imagining this in a sort of idealized world. IRL, if the guy got convicted of rape or sexual assault, he would be branded a rapist for life and shunned & bullied for the rest of his life even if the legal punishments were lenient, so it’s not realistic to expect his full punishment to be much better than if he had maliciously committed rape and gotten convicted of it.

      Given that reality, it’s tempting to say that he shouldn’t be convicted at all (of course, simply being accused of committing rape comes with its own very large punishments, but I do think there’s pretty large gap between being accused and being convicted in a court of law). But then we’d no longer be discouraging people from interpreting unverifiable text messages as consent to simulated rape, which is also troubling.

      This sure would be easier if society had gradations of rape like with murder/homicide, but as best as I can tell, the dominant mindset seems to be “rape is rape,” and any attempts to distinguish the honest misinterpretation of signals with malicious coercive assault get labeled as rape apologia.

    • rahien.din says:

      Why was he so credulous as to act on such an extreme and dangerous request, on the strength of a single text message, with no attempt at verification? Of course he should go to jail.

      • baconbacon says:

        You can fill in the gaps however you want, and you can tone down the extremeness of the request. What if they had dated for a long time and she had hinted about a dark fantasy.

        What if it was her actual fantasy, but someone sent the text (fill in gaps here to make it sound less implausible, ie she told her friend, her friend decided to pull a prank not knowing she told the guy).

        The point isn’t the situation, it is the observation that you can hurt someone while trying to do right or believing you are doing right, and that screws up this analysis.

        • rahien.din says:

          My objection is that the guy in this scenario isn’t clearing the bar for “trying to do right.” You can pick any situation you like. There is still a necessity to consider both the risks of fulfilling the request, and the likelihood that the request is true, before fulfilling the request. Anything else is negligence, and confers blame to the degree that one’s actions have caused harm.

          Change the situation entirely. What if he texts his girlfriend “What should I feed your cat?” and the reply comes back, “Force-feed my cat two cups of dry cornmeal.” What if a small-town cop gets a text from his supervisor saying “Arrest and jail your partner the next time you see them, they’re secretly the kingpin of a Colombian drug cartel.” What if a nuclear engineer gets a text saying “Drain the containment pools and remove the control rods, turns out we were dead wrong about nuclear physics.” If he does so, is it any defense for him to claim that he followed instructions in the text? No. He hasn’t tried hard enough to do right.

          In the converse, let’s say he gets a text requesting almond milk in her smoothie, and he complies, not knowing she was powerfully allergic to almonds. These allergies are uncommon, and the request is entirely plausible, so due diligence does not require much of a verification at all. So, in this case he’s done nothing wrong and is simply a victim. This is the case in which one can do harm by truly trying to do right.

          Extraordinary claims require extraordinary verification. In order to claim this guy is not negligent and blameworthy, you have to claim that A. it is not extraordinary for someone to want to lose their virginity via simulated rape, and/or, B. that a single unsolicited text message is sufficient verification for anything.

    • Salem says:

      Something like this really happened in the UK. They weren’t virgins, and it was online not via text, but those are incidental details. Fortunately, the man realised something was up when the woman started defending herself and didn’t go through with it. The perpetrator was another woman, jealous of the victim – she was convicted of attempted rape among other crimes.

      • simon says:

        There was also another case in the UK where some guys were told by a woman’s husband that she wanted to be raped and that she would resist but it wouldn’t be lack of consent. They did go through with it and were convicted, and it was upheld on appeal, but the court said that in principle they could have been acquitted if they had genuine belief in consent, no willful blindness etc. (but on the facts they weren’t believed about their belief in consent).

    • simon says:

      That scenario could result in an acquittal (lack of mens rea) as long as it was found that the belief in consent was genuine and he wasn’t willfully blind to lack of consent (not checking the veracity of the text might possibly be taken as an indication of willful blindness).

    • Anonymous says:

      Does they guy who earnestly believed that he was respecting the girl’s wishes deserve jail?

      Are we talking current legal framework, or one’s preferred legal framework?

      Assuming the latter – yes, absolutely, though perhaps a lighter sentence than otherwise. (The phone thief should hang, though.)

  43. JW says:

    Can I just say how much I love that that this blog and Current Affairs, two of the most interesting sites on the Internet, are in dialogue with each other? Please keep it up; hopefully it will ensure that neither publication descends to the level of the New York Times or Wall Street Journal.

  44. Garrett says:

    How do we determine that sex is a fundamental part of the human existence which needs to be provided for in law or in custom for disabled people? Put another way: how do we put sex in that category, vs. anything else?
    Things like food and medicine we recognize are necessary to life, and so must be provided.

    But what about hikes in the woods? Or sky-diving? Or going to a rock concerts? Much like sex, these are not required for life. But a lack thereof (especially the choice to do so, even if not taken) would leave many people’s lives worse off. Sure, sex is part of many more people’s lives. But asexuals exist. And if we are going to worry about the lack of fulfillment in the lives of disabled people, why not of those residents of /r/incel (warning – despondent view of humanity)?

    • Nornagest says:

      Seems to me that there’s a line between “provided” and “provided for” that’s being glossed over here. You can assume with high confidence that an adult is going to have an adult sexuality, and it behooves you to take that into account if you’re serious about ensuring their future happiness; but that doesn’t oblige you to get them laid, at least not without mixing in some fairly exotic moral philosophy.

      • Matt M says:

        but that doesn’t oblige you to get them laid, at least not without mixing in some fairly exotic moral philosophy.

        Why not?

        We often consider society obligated to ensure people’s needs are sufficiently met in numerous other areas relating to quality of life, do we not?

        • Nornagest says:

          That’s not a question that’s going to have a rigorous answer. The obligations “we” recognize of “society” don’t come out of any analytical process; they’re the endpoint of a long series of intuitive approximations. Also, the details of those obligations, and of which parts of society we foist the obligations off onto operationally, are going to vary wildly depending on which “we” we’re talking about.

          That said, one fairly consistent feature is that they’re not utilitarian; they recognize a distinction between inaction and positive action, and they generally only require positive action in circumstances where failure to take action would cause immediate and lasting harm. Folk ethics-wise, then, we could reasonably say that willfully disregarding someone’s desires is unjust, particularly if they’re as strong and as basal as sexuality usually is, but it takes a lot more for failing to meet them to be unjust.

          (Consequentially, we could justify a lot this in terms of asymmetrical information; but I’m not really interested in tying myself down to a particular meta-ethics here.)

          • Matt M says:

            The obligations “we” recognize of “society” don’t come out of any analytical process; they’re the endpoint of a long series of intuitive approximations.

            Which is exactly why it’s a question worth asking (and why I predict the situation is subject to change in the future)

    • HeelBearCub says:

      Sex is literally required for future life, and the desire for it is built into us, generally speaking.

      I think it’s a pretty easy case that it is in a separate category from lots of other things that might be categorized as pleasures.

      • AnonYEmous says:

        also the only thing out of all the stuff he’s mentioned that has existed since our beginning as a species, and even before that

        that’s partly picking on his examples, but point is that, as I know it, animals don’t do much except necessary stuff, socializing, play, and sex, which is why we try to allow for all of those things (play and socializing meaning a lot of different things, but we try to accommodate as much as possible and reasonable). Same goes for very early cavemen, assuming they had sparse resources.

      • Evan Þ says:

        If we’re ignoring exotic possibilities like in-vitro fertilization, yes, somebody having sex is necessary for future life. Whether or not I have sex has absolutely no bearing on the issue. Similarly, someone farming/hunting/gathering food is necessary for future life, but I’m free to spend all my day on the computer and get my food from the grocery store. I don’t see why sex should be put in a special category.

        Then, on the other hand, the US Supreme Court apparently disagrees with me and says it’s a fundamental right…

        • HeelBearCub says:

          yes, somebody having sex is necessary for future life.

          I don’t think it’s very productive to only respond to half of my sentence. I said it was built in to us (by evolution). That’s true for the vast majority of individuals, regardless of whether they ever actually procreate.

          Your point about food doesn’t seem very cogent. The fact that is now exceptionally easy to gather food doesn’t have any bearing on whether we need to eat or not.

        • AnonYEmous says:

          Similarly, someone farming/hunting/gathering food is necessary for future life, but I’m free to spend all my day on the computer and get my food from the grocery store. I don’t see why sex should be put in a special category.

          Why is acquiring food the analogue to having sex? “Eating” makes a much stronger analogue to having sex, and “dating” makes a better analogue to gathering food. And just like you can gather food online, you can also date online. Fast food, and Tinder. So sure, technology marches on and new options become available.

  45. MB says:

    To me, it’s one thing when two patients have sex with each other and quite another when a patient has sex with his/her doctor, nurse, or caretaker.
    I see this as roughly analogous to two children having sex with each other, versus one of them having sex with an adult; same with a student having sex with his or her teacher versus with another student, two animals having sex together versus a human using one for it, etc..
    Of course, absent a Procrustes’ bed, it’s impossible to achieve complete equality (and even then), but there are degrees of difference. Maybe our society can only function if all its members are roughly equal; too much inequality and it fails. In practice, the law makes allowance for many types of inequality, with the weaker individuals having fewer rights, but also being to some extent guarded against exploitation.
    This is why, for example, pets cannot currently legally “consent” to sex with their owners, no matter how enthusiastic they may be about it or how much pleasure they may derive from it. This is why children are not allowed to enter into binding contracts. This is why we have trade unions and collective working agreements. This is why normal people are forbidden from making certain investments — or why alcohol and gambling are forbidden in some places. It is all to protect them from others, but also from their own self-damaging selves. Absent such (imperfect, but tested in practice) safeguards, our society would perish, so they protect society too.
    Liberty, equality, and consent are wonderful concepts, but need some common-sense limitations and exceptions. Like any mechanism, they work within a reasonable range, but fail (become absurd) outside of it.
    Modern society just decrees everyone equal, so that nobody needs protection. With young children choosing sex reassignment, even against their parents’ wishes, with “right to work” laws — and soon with widely accepted pet and child marriage, as drug use or the Islamic veil already are — all laws, norms, and traditions in the way of this modern épanouissement are being swept away.
    There is no longer room for the idea that what is good for you is not necessarily what you think makes you happy. Il est interdit d’interdire, that’s all.
    Finally, a moment of honesty: would Peter Singer have mounted the same public defense if, all else being equal, the facilitator were an older man having sex with an immobilized younger woman? What if, say, instead of sex, the older man smuggled in cigarettes? What if he performed a secret baptism?
    I find such thought experiments revealing. We have replaced the old taboos with new ones, and gained nothing in the exchange.

  46. Matt M says:

    It might also be worth everyone thinking through and trying to answer the following hypothetical. Which of the following two fates would you find worse?

    Option A: You are taken advantage of, one time. Someone, who is known to you (let’s say they are of average appearance – if that matters), and fully believes you to desire and consent to sexual activity, has sex with you when you prefer that they would not – but you find yourself unable to communicate this desire or stop the activity for whatever reason.

    Option B: You never have sexual contact, with anyone, again, for your entire life. It is known to everyone around you that anyone who attempts to have any sexual contact with you faces a likely prison sentence. You maintain a normal human sex drive throughout this period of time.

    • Aapje says:

      You maintain a normal human sex drive throughout this period of time.

      I have no idea what a normal human sex drive is. Do you mean ‘not asexual’ or do you mean the average of human sex drives? If so, it would be dependent on the current age of of the person answering your question and the expected decline of libido. For example, an 18 year old answering your question would normally be at the peak of his libido, while a 50 year old who answers your question would normally already have a far declined libido. So an older person would on average give up less by answering B. Are there any actuarial tables for libido, with an objective test that I can take to determine how my libido matches up to the average for my age, so I can calibrate?

    • Protagoras says:

      I also am not sure what a normal human sex drive is, and I’m kind of skeptical of these sorts of thought experiments, but I have to admit that for my own case B looks much, much worse to me than A.

    • Matt M says:

      I’m asking you, the individual, to answer the question. Assume your own age. Assume your own sexual appetite is average, unless you happen to believe for various reasons that it is not (and adjust accordingly).

      • Aapje says:

        Then, given my circumstances, it’s almost a wash.

        I’m not looking for a relationship and consider casual sex to be too much bother to get and also fairly risky, relative to the advantages. So B is almost no loss. I suspect that I overthink things to such an extent that I won’t be very traumatized by A, so that wouldn’t be very mentally damaging.

        However, many people seem to really need sex with others, so perhaps my sex drive is lower than average.

    • TheWorst says:

      Speaking as someone who’s probably closer to being normal in the relevant ways: Option B, no question.

      I’m not the kind of person prone to contemplating suicide, but Option B would have me strongly considering it within the hour, and likely going through with it by day 2.

    • Mark V Anderson says:

      In my teens and twenties, I would definitely find option B worse. I remember a Physics class when I was in high school, where the teacher mentioned that Sir Isaac Newton apparently died a virgin. I remember this vividly, because of my horror at the time that this might happen to me.

      On the other hand, Option A doesn’t sound like a big deal. Obviously it is not a brutal rape, but simply a mistakenly coercive one. Not that I’ve ever been in this position to know what it is like; but I can’t imagine it being worse than Option B.

      Matt, you need to answer this yourself, since you brought it up. My guess is you would answer it similarly to me, based on the way you phrased the question?

      • Mark V Anderson says:

        Oh you said assume your own age. But that doesn’t make sense, since Option B is no longer a valid choice. I am now 60, and there is much in my past. If the choice was no more sex the rest of my life vs one unwanted sex act, I’d again choose Option A, but it would be closer.

      • Matt M says:

        Well the funny answer would be, if everyone treated me as if having sex with me would result in life in prison, would I even notice the difference?

        I’m probably weird in that neither outcome seems that bad to me. I’ve long thought to myself “I probably wouldn’t mind being raped by a female, and even if it was a male, I could probably convince myself to enjoy it a bit.” My standards are rather low and my desperation rather high, I’ve met *very* few women I wouldn’t voluntarily have sex with.

        On the other hand, I’m also a huge introvert such that my demands for human interaction are significantly below average. I’d rate my sex drive as closer to normal, maybe only slight below average. But I’m now in my 30s, have only had sex a few times, and have essentially resolved to put no particular effort towards obtaining it anymore. It’s entirely possible that I’ll never have sex again in my life anyway.

        Ultimately I would say that B is worse. I certainly think most people would claim it to be worse. Another hypothetical I’ve thought of is, “What if government enforced life-long celibacy was a punishment for crime (most likely rape).” On the scale of things, how severe of a punishment would we rate it? Presumably under the death penalty and life in prison. But maybe worse than just about everything else. I imagine the ACLU would protest. We wouldn’t take it lightly to enforce that on someone, even someone who clearly and obviously committed a horrible crime.

        And yet, current mental health policy enforces it on a large number of people who have done absolutely nothing wrong with rather little “due process” involved and nobody bats an eye.

    • Protagoras says:

      A big problem with trying to draw conclusions from this sort of hypothetical, and really a lot of our discussions of sex, is that people consistently lie about sex. They’re so used to lying about sex, they lie when there’s no reason to. They even lie to themselves. And as usual they typical mind; since they lie about sex, they assume everybody else does (which is largely true). But they also assume everyone else thinks pretty much what they do (typical mind again, but this time, as is more usually the case, getting things quite wrong), and since they assume everybody lies, when others say that, no, they think something different, the immediate assumption is that probably the people who claim to think differently are just doing the typical thing of lying about sex, rather than that they actually think differently. And so the discussions are about as productive as one would expect in an environment where everybody assumes everybody else is lying.

  47. baconbacon says:

    The Rules

    The first rule of The Rules is they are there for the benefit of those writing the rules.

    “Don’t rat”- who makes the rule? Bosses. Who has the most to lose from rats? Bosses. Who has to most to gain from ratting? Street soldiers.

    “no fraternization between management and staff” Who makes the rule? Upper management. How do they benefit? They have to deal with fewer messy breakups. Who suffers? The people who would have had decent, mature relationships but also respect the rules. That brings up rule two of The Rules. Rule Breakers Love Rules. No fraternization means that the scumbag manager gets to use the “I’d lose my job if anyone found out I liked you this much” line. Makes the person feel special and as a bonus encourages the junior person to keep it a secret. Who loves to get others to keep their secrets? Fucking scumbags do. Don’t tell your friends because I might get fired if you do, not because your only 16 and I’m 24 and one of them might talk you out of it, no, because of that other thing. Also don’t tell your other coworkers because I might get fired, and not at all because I am using the same line on them so I can date 3-4 of you without anyone saying a word.

    Authoritarian organizations like the police and the military always have two sets of standards. First every must follow this very lengthy and strict code of conduct. Also no ratting, everything stays in house. Who benefits? Upper management. They get to keep people who habitually obey rules in line with words on paper. Who else? Habitual rule breakers who never get turned and are always covered for. Who is the most hated guy in the unit? The one who obeys all the rules, including the one that says you should turn in your fellow soldiers/cops if they are bad, everyone knows the unwritten rule comes first.

    This goes double for sex. The controlling father who says “no dating till your 18, no sex till marriage” isn’t doing that for his daughter’s sake, the obedient ones go forth awkwardly into their lives trying to figure stuff out with a 5 or 10 year disadvantage, and the disobedient ones have no where to turn if their rebellion goes badly as it often will. The only one who wins is the father who gets some weird peace of mind not having to think about uncomfortable stuff, the good girl never questions it and the bad one becomes an expert at hiding it.

    If you think that there ought to be a rule against having sex with the mentally handicapped, is it really for their sake? Is there no situation where they would benefit from the same types of relationships that the rest of us have? That physical intimacy doesn’t carry benefits for them? Or is it for those of us who don’t want to think about it, who don’t want to look at a situation and say “I can’t figure it out, guess we just have to roll with it”.

    • AnonYEmous says:

      psssh…nothing personal kiddo *teleports behind u*

      The first rule of The Rules is they are there for the benefit of those writing the rules.

      Interesting hypothesis.

      “Don’t rat”- who makes the rule? Bosses. Who has the most to lose from rats? Bosses. Who has to most to gain from ratting? Street soldiers.

      That reminds me of the time that I got ratted out for breaking the rules at my job and then the boss benefited as a result. Except that never happened, because that rule actually benefits me, and the other “street soldiers”.

      “no fraternization between management and staff” Who makes the rule? Upper management. How do they benefit?

      So we’ve transitioned from talking about implicit societal rules to explicit corporate rules. Hey, you know who makes the rules about “not arriving to work on time late”? Upper management. And it really benefits them, too!

      They have to deal with fewer messy breakups. Who suffers? The people who would have had decent, mature relationships but also respect the rules.

      This is a more interesting interplay of rule vs. no rule, but inherent in that interplay is that there are those who won’t follow the rules and will then have to deal with messy breakups – heck, you’ve pointed it out right there, but obviously the people going through the breakup themselves will suffer greater consequences than the bosses. Not to mention all the other people around them.

      That brings up rule two of The Rules. Rule Breakers Love Rules. No fraternization means that the scumbag manager gets to use the “I’d lose my job if anyone found out I liked you this much” line.

      As a beginning: If you think managers and workers should be able to have open relationships, then managers will use their sexual power on pretty much any opposite-gender employee they want and we will probably reach an equilibrium where men do not accept jobs with female bosses and women do not accept jobs with male bosses, especially the latter. (Make appropriate substitutions for different sexualities, if you wish.)

      If not, then by definition all of the things you talk about below WILL happen. So, let’s find out just what those are:

      No fraternization means that the scumbag manager gets to use the “I’d lose my job if anyone found out I liked you this much” line. Makes the person feel special and as a bonus encourages the junior person to keep it a secret. Who loves to get others to keep their secrets? Fucking scumbags do. Don’t tell your friends because I might get fired if you do, not because your only 16 and I’m 24 and one of them might talk you out of it, no, because of that other thing. Also don’t tell your other coworkers because I might get fired, and not at all because I am using the same line on them so I can date 3-4 of you without anyone saying a word.

      So he gets to use a line, and runs the risk of being fired for doing so? Why on earth is that the preferable scenario? Oh, in case he’s dating a sixteen-year-old, a literal crime, and in case she doesn’t have any friends outside of work – or family members – to discuss this scenario with. If she does, and she does discuss it with them, he goes to fucking prison, but great system. Oh, and now he can date multiple co-workers without anyone else knowing, which surely is a boon, but if he were allowed to have these relationships then he’d have even more because it would be all about the power.

      Authoritarian organizations like the police and the military always have two sets of standards. First every must follow this very lengthy and strict code of conduct. Also no ratting, everything stays in house. Who benefits? Upper management.

      Notice that we’ve gone from “upper management” to “lower management” to “upper management”. Well, which is it? Should I just throw away your middle example? Because upper management definitely makes those rules in corporations too.

      They get to keep people who habitually obey rules in line with words on paper. Who else? Habitual rule breakers who never get turned and are always covered for. Who is the most hated guy in the unit? The one who obeys all the rules, including the one that says you should turn in your fellow soldiers/cops if they are bad, everyone knows the unwritten rule comes first.

      “Don’t rat”- who makes the rule? Bosses. Who has the most to lose from rats? Bosses. Who has to most to gain from ratting? Street soldiers.

      Good to see that the street soldiers who benefit from ratting hate the guy who rats the most because he rats THEM out.

      This goes double for sex. The controlling father who says “no dating till your 18, no sex till marriage” isn’t doing that for his daughter’s sake, the obedient ones go forth awkwardly into their lives trying to figure stuff out with a 5 or 10 year disadvantage, and the disobedient ones have no where to turn if their rebellion goes badly as it often will.

      For most of recorded history, women who got pregnant without a husband would need some male figure to support them, like their father. After that, we got the era of teen pregnancy. Recently, technology and attitudes towards it have advanced enough to allow teen girls to be promiscuous with no real consequences, though they often get pregnant anyhow. Unsurprisingly, paternal attitudes have shifted.

      So let’s be clear: the obedient ones have a 5-to-10 year disadvantage in figuring out sex, in exchange for a 5-to-10 disadvantage in the form of a teen pregnancy. And the disobedient ones…well, either their father supports them, the father of the child mans up, or they deal with it somehow. But the father being controlling and the father disavowing, are in no way necessarily linked; they often go together, but one doesn’t compel the other.

      The only one who wins is the father who gets some weird peace of mind not having to think about uncomfortable stuff, the good girl never questions it and the bad one becomes an expert at hiding it.

      ‘uncomfortable stuff’ like his 16-year-old daughter making love to her 24-year-old manager?

      If you think that there ought to be a rule against having sex with the mentally handicapped, is it really for their sake?

      It’s fair to ask this question of yourself. But come on, you must admit that a lot of people will carefully consider it and still say “yes”.

      Is there no situation where they would benefit from the same types of relationships that the rest of us have? That physical intimacy doesn’t carry benefits for them? Or is it for those of us who don’t want to think about it, who don’t want to look at a situation and say “I can’t figure it out, guess we just have to roll with it”.

      As I said from the start, this is the much more interesting interplay: good relationships lost vs. bad relationships prevented. How many of each, and how can bad relationships be mitigated within a system?

      Anyways: this just-so story seems to confirm your ideology or even serve as a pillar to its platform. But, sorry to say, it’s full of holes.

      • baconbacon says:

        That reminds me of the time that I got ratted out for breaking the rules at my job and then the boss benefited as a result. Except that never happened, because that rule actually benefits me, and the other “street soldiers”.

        See part two, where rule breakers love the rules, because they selectively enforce the ones they like and break the ones they don’t. Rule followers get constrained.

        So we’ve transitioned from talking about implicit societal rules to explicit corporate rules. Hey, you know who makes the rules about “not arriving to work on time late”? Upper management. And it really benefits them, too!

        This is written sarcastically, but it confirms rule 1. Rules are written for the benefit of those that write them. I never said there should be no rules ever, only that you change the perspective of who the rule is good for when you remember this.

        For most of recorded history, women who got pregnant without a husband would need some male figure to support them, like their father.

        So in other words the rules were written for the benefit of the writer? Interesting, I hadn’t considered that approach.

        Of course most of these societies married girls off much younger than ours does, and many of them without any consent of the girl. Lots of rules, all benefiting those that are making the rules.

        ‘uncomfortable stuff’ like his 16-year-old daughter making love to her 24-year-old manager?

        Yep. Of course the “rule” doesn’t prevent the affair totally, but encourages secrecy even further so that when affairs happen they tend to be of the worst kind, and the healthiest ones are those that end up prevented.

        then managers will use their sexual power on pretty much any opposite-gender employee they want

        Some managers will try to do this, but there is a near perfect overlap between them and the ones who will use the no dating rule to exploit the vulnerable. The rule almost always serves to keep apart the 24 year old and the 22 year old who like each other but not the 24 year old who has found that tricking 16 year olds is relatively easy.

        So let’s be clear: the obedient ones have a 5-to-10 year disadvantage in figuring out sex, in exchange for a 5-to-10 disadvantage in the form of a teen pregnancy.

        This isn’t the exchange because outside of the rule there isn’t some binary world where you have to either get pregnant by a totally feckless loser or remain chaste and never date or kiss even once. The girl who follows the no dating rule is also the one most likely to listen to good advice about sex (wait until you are ready, don’t date guys that pressure you, use a condom).

        Teen pregnancy of course used to be the norm in a “You marry this guy and bear his children since he will give me 14 sheckles and a goat” if you do sort of way. Really the only loser in these societies is the goat, am I right?

        It’s fair to ask this question of yourself. But come on, you must admit that a lot of people will carefully consider it and still say “yes”.

        It is something you have to consider before you think about what kind of rule you support. The purpose is to have this in mind before you decide what kind of rule you would support. My initial reaction to this type of case would probably be to support a “no sex for the handicapped” as at least a go to heuristic, it would only be later when I read a piece like this (or never) that I would think about how important physical and sexual contact is in my life as well as many other people’s lives. This is a poor way to make rules that benefit those that need protecting.

        Notice that we’ve gone from “upper management” to “lower management” to “upper management”.

        We have? Originally it was “upper management” sets the rules and benefits from them, and then a handful of “lower management” types abuse the rules in specific ways to gain an advantage. There are two rules about the rules, they benefit those making the rules, and rule breakers, but benefits to rule followers are most likely to be incidental.

        But, sorry to say, it’s full of holes.

        Oh its full of holes, but it starts from the correct place- thinking extensively about the needs of those we are trying to protect.

        • baconbacon says:

          I’m only going to reply to one point right now because it is a fundamental, and often misunderstood point.

          Of course most of these societies required the father to pay an expensive dowry, probably because he’d be stuck paying for his daughter if she didn’t get married off.

          Dowry systems almost always (always?) arose because women had no legal value, not no material value. Women were either restricted or outfight forbidden when it came to property ownership, which led to a bunch of odd outcomes.

          1. If a father wanted to bequeath something to his daughter the dowry system was one mechanism. I recall reading (but don’t recall the source, so grain of salt this) about traditions where a family would legally adopt a son with the intention of marrying him to their daughter. This way they could get around inheritance issues and directly bequeath to the son (and also threaten to disown if he treated her to badly).

          2. Much of the time dowries were political, increasing the father’s status when he bought himself into a relationship with a more respected family.

          3. Dowries were usually largest when there was a shortage of men (due to war or other event) and there was more competition for husbands. Males buying brides was also common in times of shortages of women. Check this (unverified) link text for a modern example.

          4. Hopefully someone like David Friedman will correct me if I am wrong here, but there were times and places where women were so powerless that a 40 year old widow who had outlived her parents would go looking for some distant male cousin and buy his approval for re marriage.

          The common thread in these societies were that women were legally inferior men, and those rules (written and enforced by men, mostly benefiting men) were not a reflection of the material value of women, but of how the dominant males sought to control that value.

          • AnonYEmous says:

            Dowry systems almost always (always?) arose because women had no legal value, not no material value.

            True. But that’s intertwined with the reality that, back in the day, women couldn’t create that much value. When the main job is either backbreaking work or a trade…well, women shouldn’t have been excluded from trades, but given that they were, they didn’t have much economic value. In other words, they needed someone to support them.

            those rules (written and enforced by men, mostly benefiting men) were not a reflection of the material value of women,

            Obviously not – they’re a reflection of the material value of men. In exchange for a man’s work in supporting the woman instead of her father, he gets some money and so forth. And I’m not really here to have a complex discussion about ages-old sexism, but you can’t deny that primitive societies had to deal with different realities either.

            3. Dowries were usually largest when there was a shortage of men (due to war or other event) and there was more competition for husbands. Males buying brides was also common in times of shortages of women. Check this (unverified) link text for a modern example.

            I’m sure they were, but think about that for a moment; men in this case function as a private good, whose demand and supply curves meet; if the supply curve shifts then the demand curve meets it at a different point. Women, on the other hand, being “free” until a shortage comes along, are like a public good, say water: water is very valuable, no question, but you can get it easily until there’s a shortage. In other words, there’s a clear difference here, and it’s that a man’s labor, in a primitive society which denies women certain opportunities, becomes much more valuable than a woman’s labor.

          • baconbacon says:

            But that’s intertwined with the reality that, back in the day, women couldn’t create that much value.

            Multiple anthropologists have found that women produce most of the value in these types of societies. They are simultaneously child rearers, farmers and cooks and often work 20+ hours a week more than their husbands do.

          • AnonYEmous says:

            Multiple anthropologists have found that women produce most of the value in these types of societies. They are simultaneously child rearers, farmers and cooks and often work 20+ hours a week more than their husbands do.

            Personally, I have a feeling that these anthropologists have a skewed definition of “value”. To boot: do they produce their own resources? I suppose that’s where “farmers” comes in, but if women are simultaneously farming all of the food, cooking it, and taking care of the children…then the husband has nothing left to do and maybe you’re right, but somehow I doubt that’s the case. So there’s probably some need for the man’s strength or acquired trade, and that is the key; the woman’s job is going to be possibly even more valuable, but much more easily replaceable.

          • Iain says:

            Women were also deeply involved in textile production, which was a large part of the economy before the Industrial Revolution. That’s where “distaff” comes from as a metonym. If you poke around at the numbers on this page, you can see that a good wool tunic was worth about half as much as an entire cottage in the 14th century; a lot of that value came from the amount of (traditionally female) labour necessary to spin the wool.

      • AnonYEmous says:

        See part two, where rule breakers love the rules, because they selectively enforce the ones they like and break the ones they don’t. Rule followers get constrained.

        But if the rules I was breaking didn’t exist, I wouldn’t need a rule to protect me from that either. How does the overall system of rules then benefit me? And given that one of these is an unspoken societal rule between workers – for our own benefits – and the others are explicit managerial rules – there’s really no coherent philosophy behind “the rules”.

        This is written sarcastically, but it confirms rule 1.

        But only in the most obvious way which doesn’t seem to transfer to any other situation. Does this also apply to laws? Interpersonal rules about politeness? Interrelational rules about sexual conduct?

        Rules are written for the benefit of those that write them. I never said there should be no rules ever, only that you change the perspective of who the rule is good for when you remember this.

        So in other words the rules were written for the benefit of the writer? Interesting, I hadn’t considered that approach.

        i really can’t parse if this is sarcasm or not. You can’t possibly have never considered this, but…

        Of course most of these societies married girls off much younger than ours does, and many of them without any consent of the girl. Lots of rules, all benefiting those that are making the rules.

        Of course most of these societies required the father to pay an expensive dowry, probably because he’d be stuck paying for his daughter if she didn’t get married off. In other words, if your father is financially responsible for you, then of course he gets to make some self-serving rules – but getting married off can benefit you too, because now you have a husband to take care of you.

        Yep. Of course the “rule” doesn’t prevent the affair totally, but encourages secrecy even further so that when affairs happen they tend to be of the worst kind, and the healthiest ones are those that end up prevented.

        Or it makes sure that it doesn’t happen that often because the 24-year-old doesn’t want to risk going to jail.

        Some managers will try to do this, but there is a near perfect overlap between them and the ones who will use the no dating rule to exploit the vulnerable.

        But the no dating rule is pretty dang difficult to use to exploit the vulnerable, because it inherently leaves you wide open to getting fired.

        The rule almost always serves to keep apart the 24 year old and the 22 year old who like each other but not the 24 year old who has found that tricking 16 year olds is relatively easy.

        Until, of course, the 16-year-old tells, which can certainly happen. She’s got two years to do it, really. If she has even a single friend she thinks she can trust, the information comes out, and now it’s a matter of time until the friend tells her to tell someone and so on and so forth.

        This isn’t the exchange because outside of the rule there isn’t some binary world where you have to either get pregnant by a totally feckless loser or remain chaste and never date or kiss even once. The girl who follows the no dating rule is also the one most likely to listen to good advice about sex (wait until you are ready, don’t date guys that pressure you, use a condom).

        “Wait until you are ready” is very difficult advice to follow, and I already explained about condoms. Besides, there isn’t a binary world between “good girl” and “bad girl” either; there may be many “bad girls” who still listen and thus don’t get pregnant.

        Teen pregnancy of course used to be the norm in a “You marry this guy and bear his children since he will give me 14 sheckles and a goat” if you do sort of way. Really the only loser in these societies is the goat, am I right?

        The losers in these societies are widespread because these societies are primitive and lack technology; I’m unconvinced that a more libertine system would’ve produced great gains in that regard. At the very least, who would take care of you in your old age? And what would happen when the lack of kids leads to some other country or city conquering your country or city?

        We have? Originally it was “upper management” sets the rules and benefits from them, and then a handful of “lower management” types abuse the rules in specific ways to gain an advantage.

        I’d argue that much of the benefit accrues to lower management rather than upper management. But I’ll concede that point, in exchange for noting that the cases in this story would probably be more likely absent a law.

        Consider that the manager knows that the girl’s parents and friends will not approve of this relationship, if she’s 16. So it’s easy for him to say “keep it secret or your parents will hate us”. And in this theoretical world where the “rules” aren’t being abused by the “rule breaker”, he doesn’t risk going to jail for this OR getting fired for this.

        Oh its full of holes, but it starts from the correct place- thinking extensively about the needs of those we are trying to protect.

        Yes and no. I’d say it seems like a just-so story designed to support libertarianism, and it starts from that root.

    • Anonymous says:

      This goes double for sex. The controlling father who says “no dating till your 18, no sex till marriage” isn’t doing that for his daughter’s sake, the obedient ones go forth awkwardly into their lives trying to figure stuff out with a 5 or 10 year disadvantage, and the disobedient ones have no where to turn if their rebellion goes badly as it often will. The only one who wins is the father who gets some weird peace of mind not having to think about uncomfortable stuff, the good girl never questions it and the bad one becomes an expert at hiding it.

      Sexual promiscuity is strongly associated with bad outcomes, like unstable marriages, divorce, STDs, unwanted pregnancies, depression and whatnot. Before you tear down a fence, do try to imagine why a reasonable person would want to put this fence up in the first place, rather than imagining them some sort of ignorant, self-absorbed imbecile randomly doing harm.

      The obedient daughter from your example would have a great start on marrying well, and living a happier life than her more promiscuous counterpart.

      • baconbacon says:

        Sexual promiscuity is strongly associated with bad outcomes, like unstable marriages, divorce, STDs, unwanted pregnancies, depression and whatnot. Before you tear down a fence, do try to imagine why a reasonable person would want to put this fence up in the first place, rather than imagining them some sort of ignorant, self-absorbed imbecile randomly doing harm.

        You have started from the presumption that the rule prevents these things. This isn’t binary where teenagers go blindly into the world sucking and fucking or don’t have sex because dad said they weren’t allowed. There are many methods for reducing teen pregnancy, but strict codes don’t work particularly well (teen pregnancy rates are highest in the US among black and Latino communities which have a high incidence of religious affiliation, and also in rural white communities, which also have a high incidence of religious affiliation).

        • Anonymous says:

          You have started from the presumption that the rule prevents these things. This isn’t binary where teenagers go blindly into the world sucking and fucking or don’t have sex because dad said they weren’t allowed.

          You’re right. You not only need the rules, you need the rules actually being enforced. Which they aren’t in our society. A father has little to no authority over a daughter anymore. If he tries too hard, he risks going to jail.

          There are many methods for reducing teen pregnancy, but strict codes don’t work particularly well (teen pregnancy rates are highest in the US among black and Latino communities which have a high incidence of religious affiliation, and also in rural white communities, which also have a high incidence of religious affiliation).

          The race is a definite confounder here. Compare apples to apples, please.

          • xXxanonxXx says:

            The race is a definite confounder here. Compare apples to apples, please.

            I somehow doubt you’re referring to any of the races that constitute less than 10% of the U.S. population when you ask that apples be compared to apples. That makes it white, black, or Latino. He cited examples of all three.

          • Anonymous says:

            Mea culpa, I missed that rural white bit. Objection withdrawn.

    • The original Mr. X says:

      That brings up rule two of The Rules. Rule Breakers Love Rules.

      People who don’t want to find themselves at the mercy of more powerful people’s arbitrary whims also love rules.

      This goes double for sex. The controlling father who says “no dating till your 18, no sex till marriage” isn’t doing that for his daughter’s sake, the obedient ones go forth awkwardly into their lives trying to figure stuff out with a 5 or 10 year disadvantage, and the disobedient ones have no where to turn if their rebellion goes badly as it often will. The only one who wins is the father who gets some weird peace of mind not having to think about uncomfortable stuff, the good girl never questions it and the bad one becomes an expert at hiding it.

      Even if we accept your claims here (and, as Anonymous points out, it’s not actually a given that delaying dating and sexual activity is a bad thing), the conclusion that the father in question “isn’t doing that for his daughter’s sake” is a non sequitur. It might be, for example, that the father is genuinely trying to help his daughter, but is mistaken as to the best way of doing so.

      • baconbacon says:

        People who don’t want to find themselves at the mercy of more powerful people’s arbitrary whims also love rules.

        I am happy to clarify.

        This is about writing rules that apply for others, not universal rules. “Don’t murder” works really well as a rule, as it potentially benefits everyone. “No sex for the disabled” and “no dating until you are 18” and “no fraternization between lower management and staff” tend to be heavily asymmetric. If a mob boss says “no ratting”, who was he going to rat on himself? His ratio of potential people ratting on him to him ratting on them is skewed heavily in favor of “don’t rat”.

        • AnonYEmous says:

          Heavily asymmetric, as in: the manager, who has more to lose from getting fired, can be fired just as easily?

          Seriously, if the rule didn’t exist what stops the manager from just doing it, but out in the open?

          At this point I think I’ve watched multiple movies where the mob boss turns out to be an FBI informant, and one where he gets killed explicitly for this reason. Moreover, street soldiers can rat on each other and so forth, and the boss has no reason to employ you if you’re going to rat on him.

          • baconbacon says:

            Seriously, if the rule didn’t exist what stops the manager from just doing it, but out in the open?

            You mean besides a variety of other laws and social norms? Sexual harassment laws exist (for good or ill) outside of these corporations, and angry mothers, fathers, boyfriends, aunts uncles and pundits also exist. The corporate rules in place typically serve as an effort and legal shield (hey, we said it wasn’t allowed, and had we a known we’d a fired him). Do you honestly think that some manager with a bunch of complaints from his female employees would keep his job* because there wasn’t a specific “no dating” rule in place?

            *some of these rules exist to make firing people who act this way easier, it gets messy.

          • AnonYEmous says:

            Sexual harassment laws exist (for good or ill)

            but as we already know, rules exist to benefit the rule-breakers

            Seriously, if the rule can be used to create a veil of secrecy, why the hell can’t a sexual harassment law? And if it can’t be used to create a veil of secrecy, what are we even talking about? Besides, whether or not this rule exists the manager can still be hit with a sexual harassment lawsuit, no?

            Are you saying that the presence of the rule makes the employees less likely to report the lower management because it would implicate them too? But they could still report the manager immediately, right? Not to mention sue him or such.

          • baconbacon says:

            but as we already know, rules exist to benefit the rule-breakers

            No, if you had read closely it says that rules exist to benefit the rule makers. Rule two said that Rule breakers also like rules, not that the rules were made for them.

            Seriously, if the rule can be used to create a veil of secrecy, why the hell can’t a sexual harassment law? And if it can’t be used to create a veil of secrecy, what are we even talking about? Besides, whether or not this rule exists the manager can still be hit with a sexual harassment lawsuit, no?

            If sexual harassment laws and other norms exist already why does a corporation feel the need to implement their own rules (at a cost)? Why, if sexual harassment laws are effective do you need rules, and if they are not effective why would some corporate law against it with fewer penalties behind it (and probably fewer resources enforcing it as well) suddenly be effective?

          • AnonYEmous says:

            No, if you had read closely it says that rules exist to benefit the rule makers. Rule two said that Rule breakers also like rules, not that the rules were made for them.

            Sorry, maybe I should’ve written “rule breakers love rules” as Matt originally posted. I don’t think it would’ve mattered, honestly.

            If sexual harassment laws and other norms exist already why does a corporation feel the need to implement their own rules (at a cost)?

            I’d imagine it’s because some people make the rational choice to engage in a relationship with their boss for favors; this doesn’t count as “sexual harassment”, but upper management and the other employees both suffer, as does the company itself.

            The point is: Matt M argued that rules allow for a creation of a veil of secrecy. So why do rules about statutory rape and sexual harassment not do this, but corporate rules about workplace relationships do? And if they do and we get rid of those rules, then why would management even need a veil of secrecy? Ultimately there either is a punishment for inappropriate behavior, which Matt believes can create a veil of secrecy, or there isn’t, in which case inappropriate behavior happens regardless.

      • Aapje says:

        People who don’t want to find themselves at the mercy of more powerful people’s arbitrary whims also love rules.

        Like people with low status, who get less leeway in a system where the rules are not fixed, but based on status.

        And also people who are bad at recognizing and/or following unspoken rules.

      • Matt M says:

        People who don’t want to find themselves at the mercy of more powerful people’s arbitrary whims also love rules.

        They love rules that are universally and consistently enforced, sure.

        I think bacon’s point here is that such rules, in actuality, are quite rare. Seriously, haven’t we all worked in an office where there’s a rule against dating co-workers, only to hear a week later that the manager is suddenly engaged to the cute receptionist, and nobody bats an eye or seems particularly surprised?

        Have we not all witnessed someone get fired, or at least berated, for being late – while others who are consistently late are never called out for it because they’re more popular, have better connections, etc.?

        Perfectly enforced rules are not the problem here. The problem is that no rules are perfectly enforced.

        • Anonymous says:

          Perfectly enforced rules are not the problem here. The problem is that no rules are perfectly enforced.

          Yep. That’s why the “[p]eople who don’t want to find themselves at the mercy of more powerful people’s arbitrary whims” generally like few and clear rules, and highly dislike complex systems of contradictory dictums.

          • Matt M says:

            Eh, I still think you’re missing the point. Yes, few and clear rules are better than complex system of contradictory dictums, sure.

            The question is, are few and clear rules – inconsistently applied and enforced (as the vast majority of rules in society are), better or worse, than no rules at all?

            The point is, if you’re sufficiently weak, you are STILL subject to the whims of the more powerful, even if there are rules against it, if the rules are not properly enforced. A “no sexual harassment” rule does not, in and of itself, prevent the powerful boss from sexually harassing his secretary. Let’s assume he harasses her anyway and gets away with it, because he’s the boss and he’s too important to fire. You might argue the existence of the rule makes the secretary worse off, as outsiders assume it’s not possible for her to be harassed – after all, it’s against the rules! Or that, if the company was honest and said “sexual harassment may happen here if you work for a powerful boss” she never would have applied in the first place.

            I’m not saying I’m certain this is the right position – but I do think it’s up for debate.

          • Protagoras says:

            Yes, few rules, as that makes enforcement more likely. But beyond that it is often possible to make some reasonably well informed guesses as to which rules will be more or less successfully and consistently enforced. And I take it to be part of baconbacon’s point that some of the rules about relationships that various people have advocated fall into the realm of rules that we can be almost certain will not be enforced consistently. The details of particular proposed rules are surely debateable, but as a general point this is certainly something that needs to be taken into account.

          • Anonymous says:

            I think what’s missing is the prevailing social belief that even the mightiest are subject to the rules – which they don’t make, and cannot change. You don’t see kings deposed and exiled for violating the sanctity of a home, or emperors held in a beef storage room for failing to pay their debts.

          • Aapje says:

            @Matt M

            This is one of the advantages of bureaucracy: separating the rule makers from the rule enforcers. The lack of flexibility that is often bemoaned is also a strength.

        • AnonYEmous says:

          So then what are you actually saying?

          It’s certainly an issue where rules are not followed and some people do break the rules and get away with it. So is your recommendation to simply abolish those rules? What about all of the people who break the rules and get punished for it, or all the people who don’t break the rules because they don’t want to risk it?

  48. Squirrel of Doom says:

    The state of affairs the post describes smells like a product of contemporary US culture much more than something derived from universal ethical truths to me.

    Anyone know how it is/was handled elsewhere?

    • baconbacon says:

      The state of affairs the post describes smells like a product of contemporary US culture much more than something derived from universal ethical truths to me.

      It is a commentary on power structure.

  49. mdahlhausen says:

    A related topic. Voting. A few states bar people from voting for certain mental disabilities. It used to be the case in several states that being under guardianship would disqualify you from voting. But this was deemed unconstitutional in the Doe vs. Rowe case in Maine. Advocates seem to be erring on the side of most rights for the mentally disabled – as taking away someone’s voting rights is a serious thing that shouldn’t be messed with unless they are proven incapable.

    So in many states, there are many cases where mentally disabled people are deemed capable enough to vote, but not capable enough to give consent.

    There is quite a bit of “facilitated communication” voting that takes place each election by guardians.

    • Matt M says:

      I’ve mentioned this in a few other posts, but firearms ownership (a right explicitly guaranteed by the constitution) comes up here too. A few weeks ago there was some controversy wherein Trump signed an executive order ALLOWING MENTALLY ILL PEOPLE TO BUY GUNS!!! but it turned out all it did was make it so that being under guardianship did not automatically disqualify someone from purchasing a firearm.

  50. Ohforfs says:

    Hm. Actually i had a sex in psychiatric hospital, as a patient, once. Quite good, i would say, too (well, you don’t have a place to masturbate even, so the physical desire tends to be pretty high despite the medications).

    But there are a few things:

    1. It was my partner who came to visit me. I don’t see it talked about much – and this situation seems pretty clear to me, i mean, not my legal spouse, but still…

    2. Masturbation. There should be facilities for it, which is so bloody obvious, yet it is obviously not going to happen (and this is larger and pretty depressing/infuriating problem regarding disabled people sexuality)

    • Mark V Anderson says:

      Don’t you get privacy in the bathroom? Or are they so concerned about self-harm that they even watch you defecate?

      • Zodiac says:

        They don’t watch you but there are facilities where it is common practice to lock bathrooms and only unlock them on request because of self-harm and people with bulimia.

        • Mark V Anderson says:

          But once they let you in, you can do what you want in there. I would bet people masterbate in the bathroom.

          • Zodiac says:

            It probably happens but personally I’d be too worried about the personal coming to check on me because I might take too long. That’d be one awkward conversation that I wouldn’t want to have.

      • Zodiac says:

        Can’t edit my comment for some reason.
        I find it relevant to add that in facilities with underage patients they also do that to prevent them from smoking, so even if there are no patients with a risk of self harm or anything the bathrooms might still be locked.

  51. Abaleth says:

    Really interesting stuff. The restriction of sex to mentally ill or disabled patients is disturbing, however, I think the enforced lack of affectionate physical contact, hugging, kissing etc is far worse. This is a great deal worse than people are treated in prisons, and so I think the restriction of these basic human actions for the permanently interred needs to be looked at as the gross violation of human rights which it is.

    As has been very thoughtfully considered above, finding systems to allow these involves some very thorny ethical problems, however, they would seem to be somewhat more easily tackled than the problems of allowing full intercourse.

  52. greghb says:

    No content warnings? Just pointing out because you’ve made clear that you like them, and it seems like that sort of post.

  53. The original Mr. X says:

    Since consent-based sex education has come up in the comments here, I thought I’d quote a few paragraphs from an article on the topic I came across recently:

    The way to combat rape, the reasoning goes, is to emphasise the importance of consent. But in order to make the message more palatable, and not look like an old-fashioned taboo (which, of course, it is), this message is accompanied by the constant reiteration of the idea that, given consent, everything is ok. The need for consent is the only limit on the morality of sexual acts, or, to express this in a different way, you can do whatever you (and the other people involved) are ‘comfortable’ with. If you don’t feel comfortable with a particular proposal, you can and should say ‘no’. If you do feel comfortable, then go ahead, that’s fine (with the appropriate contraception in place, naturally).

    One problem with this, which could easily be missed, is that it is unlikely that either the people who created this ideology or those who deliver it in classrooms actually believe it. It is in fact only believed by sexual libertines of an almost sociopathic extreme; ordinary men and women have at least a troubled conscience about sexual infidelity, for example, and promiscuity, and much more than that about incest, bestiality, and a few other things which I hardly need to mention.

    If you don’t believe me, just consider what reaction you would get if you called the average 25-year old woman a slut. She will reveal a certain moral sensitivity to that accusation: she cares about whether her sexual standards are perceived as too low. For it is not just a personal thing, a matter of taste, how many people you choose to sleep with: it is something which has a social importance, which is reflected in the way that others view you. Or so your 25 year-old friend will explain, a little breathlessly, when she has finished crushing your skull with the nearest blunt instrument.

    It is a problem that the teachers delivering the message do not believe the message, both because it is an indication that the message is not readily believable, and because they will not make good advocates for it. The core message of sex ed is actually make-believe, which is part of the reason it does not have the effect on children that its designers hoped it would have. It is a sort of official ideology to which everyone must pay lip-service, but which everyone snaps out of as soon as they are off-duty.

    Another problem with the ideology is that it is undermining of many legal limitations on sexual freedom, particularly the age of consent. When footballers go to bed with 15-year-olds they do so after more than a decade of education in the maxim: ‘if there is consent, then it is ok’. Internalising this message can land you in prison for a long time.

    Another problem is raised by domestic abuse. Thanks to the ‘Fifty Shades’ books and films, sado-masochism must be officially ok: it’s just a matter of consent, isn’t it? Whatever kind of brutalisation or humiliation is involved, it is all empowering and feminist-approved if there is consent. The problem is that within an abusive relationship the concept of consent can get a little over-stretched. Did I just write ‘abusive relationship’? The sex ed ideology wants to replace any objective notion of an abusive relationship with a subjective understanding: it is ok if both parties consent. If everything comes down to consent, if there are no objective criteria (clinical depression? bruises?), you are literally handing a ‘get-out-of-jail-free’ card to a sufficiently manipulative abuser. The use of psychological pressure to establish and maintain some kind of ‘consent’ is the very first thing that happens in abusive relationships.

    Even worse is the related problem of child abuse. As Caroline Farrow puts it at the end of her post on the subject, sex ed as we know it is a ‘groomers’ charter’, because it undermines children’s natural sexual reserve. The idea is that the best way to protect children from abusers is to emphasise to the children that they have the right to say ‘no’. This plays into the hands of the abusers, however, who want nothing better than an opening for conversations with their targets in which these intimate matters can be frankly discussed, and their ‘consent’ winkled out. It isn’t real consent, of course, because, as the law correctly says, young children are incapable of giving consent to sexual acts. You’d think that this would be enough to throw doubt on the idea that they need to hear about nothing but consent, consent, consent, all the time in sex ed. In any case, what the abuser of children, like that of adults, typically wants is some form of guilty acquiescence, and he (or she) is going to have the best chance of getting it if the child thinks that the only thing wrong with a proposed act is his or her own feelings of discomfort, which may be alleviated by familiarity.

    What the child needs to know is that the paedophile’s proposals are wrong and that people who make those proposals are bad people. What an adult in an abusive relationship needs to know is that a partner’s cutting them off from their family and friends, psychological degradation, and physical assaults, are wrong and the person who is doing does not, really, love them. You might assume that our modern sex educators would be keen to tackle these problems, but what they are doing is handing the keys to the trust and intimacy of the most vulnerable over to manipulative abusers.

    Riddle me this, you sex ed campaigners. If a young woman does not feel comfortable about performing a sex act, but feels even more uncomfortable about enduring peer pressure, bullying, and ostracism, if she does not perform it, and accordingly, after considering the matter, performs the act: what sort of consent was that? Sex education, by robbing her of any objective moral compass apart from her own decision to do it or not do it, has opened her up to blackmail and manipulation like an oyster. And the reality is that performing sexual acts on demand for the school bullies is not good for young people’s self esteem, personal development, or mental health. I want to say to these sex ed people: you idiots, can’t you see what you are doing?

    • baconbacon says:

      I’m having a hard time getting over this part early on

      If you don’t believe me, just consider what reaction you would get if you called the average 25-year old woman a slut. She will reveal a certain moral sensitivity to that accusation: she cares about whether her sexual standards are perceived as too low. For it is not just a personal thing, a matter of taste, how many people you choose to sleep with: it is something which has a social importance, which is reflected in the way that others view you. Or so your 25 year-old friend will explain, a little breathlessly, when she has finished crushing your skull with the nearest blunt instrument.

      Slut isn’t a neutral term. Rewrite it to have “raging bitch” in place of assertive, independent woman. Can I conclude that my wife doesn’t value being an assertive, (relatively) independent woman because she dislikes being called a raging bitch?

      • The original Mr. X says:

        If you were to phrase yourself in a more rhetorically neutral way, along the lines of “You have had more sexual partners than you ought”, I don’t think you’d get a much better reaction, at least from the twenty-something girls I know.

        • rlms says:

          The word “ought” implies moral judgement, which people frequently react poorly too. You can be annoyed by sanctimonious vegans telling you “you shouldn’t eat eggs” without secretly agreeing with them.

          • The original Mr. X says:

            You can be annoyed by sanctimonious vegans telling you “you shouldn’t eat eggs” without secretly agreeing with them.

            Most people would be annoyed by their sanctimony, not with the mere fact that they think eating meat is wrong.

        • baconbacon says:

          ought carries that same negative connotation, that is just a more polite way of saying “slut”.

          People tend to think their choices are good/appropriate. Anything you say that casts those choices in a bad light will elicit a negative reaction, that doesn’t support the point though. In some societies women who had any sex outside of marriage (even with those they eventually married) would be treated in a shit way.

          The author tries to tie current acceptable standards (by “ordinary” people which is a fucking bullshit term, as there is no such thing for humans), and imply that promiscuity and infidelity have rigid definitions. Most people don’t have problems with promiscuity when using a puritanical definition, most define it based on what they already do (or want to do). He puts the cart before the horse and straight up says that women not liking the label “slut” means that promiscuity is bad, which is akin to saying black people not wanting to be called the N word have a problem being black.

          • The original Mr. X says:

            ought carries that same negative connotation, that is just a more polite way of saying “slut”.

            In discussions of morality, it’s impossible to avoid words with at least some negative connotation.

            People tend to think their choices are good/appropriate. Anything you say that casts those choices in a bad light will elicit a negative reaction, that doesn’t support the point though.

            Not to nearly the same degree, though. If somebody suggested that you should become a vegetarian, you probably wouldn’t be that offended, even if you have think vegetarianism is stupid and pointless.

            The author tries to tie current acceptable standards (by “ordinary” people which is a fucking bullshit term, as there is no such thing for humans), and imply that promiscuity and infidelity have rigid definitions. Most people don’t have problems with promiscuity when using a puritanical definition, most define it based on what they already do (or want to do). He puts the cart before the horse and straight up says that women not liking the label “slut” means that promiscuity is bad, which is akin to saying black people not wanting to be called the N word have a problem being black.

            No, he’s saying that the fact people have such a strong negative reaction to being accused of X is evidence that they think X is bad. Incidentally, you seem to be having a very strong negative reaction to even talking about accusing people of X. Perhaps you should ask yourself why this is.

          • HeelBearCub says:

            You seem to be asserting that the N word, when deployed as a slur, has some objective definition that is identified as bad.

            If you call a black person a n***** (and it isn’t being used as a sign of ingroup solidarity) you aren’t really saying anything other than that you don’t like black people. And that persons objection will be based on that fact.

            Of course, what you are really doing is trying find something that is maximally offensive to them, but that still doesn’t mean that you are using any meaning other than that are black.

      • Matt M says:

        I think the article has this right. No matter how neutral you try to frame it, offense will be taken. I don’t think the average woman would be significantly less offended if you said to her “I happened to notice that you seem to have had more sexual partners than the average woman of your age typically does.” Interestingly, I think offense is *also* taken in the other direction. Most women wouldn’t be too happy if you called them a prude either.

        The mere notion that you are in any way judging their sexual behavior is considered inherently offensive. In a much more clear and aggressive way than telling someone “you sure do go running a lot more [or less] than most of your peers” would be.

        • Mark V Anderson says:

          The mere notion that you are in any way judging their sexual behavior is considered inherently offensive.

          Exactly. You explained it better than bacon.

    • rlms says:

      One possible view is that consent is necessary but not sufficient for good sex. My personal experience of consent-based sex education is that it focuses on the inability of unconscious people to consent, rather than how otherwise dubious sex is actually OK if there’s consent.

    • Matt M says:

      I agree with most of this, but I think it’s inaccurate in a few parts, particularly stuff like:

      If a young woman does not feel comfortable about performing a sex act, but feels even more uncomfortable about enduring peer pressure, bullying, and ostracism, if she does not perform it, and accordingly, after considering the matter, performs the act: what sort of consent was that?

      The standard, boiler-plate, progressive view of consent is way ahead of him on this one already. Plenty of schools and workplaces count things like “repeatedly asking for a date” as sexual harassment. Or have clauses wherein you can report a sexual encounter as rape if you were “emotionally manipulated” into it. There are PSAs about this sort of thing, showing a hypothetical boyfriend emotionally manipulating a hypothetical girlfriend and encouraging her hypothetical friends to report it to the authorities.

      Basically, it comes down to power dynamics. So long as it’s clear that the woman holds the power, everything is fine (including all the “the sub ultimately is in control in BDSM” type stuff we’ve discussed on here before). But cast some doubt on the situation such that anyone has cause to speculate the man actually holds the power (through, say, emotional manipulation) – it’s a moral outrage that must be responded to with police involvement.

      Edit: To clarify, it doesn’t HAVE to be a male/female thing, it just usually is. Whoever has the highest claim to “victim status” must be the person holding the power, otherwise an offense has taken place. A teenage boy being seduced by an older man would thus qualify – while the jury remains out on teen boy/older woman relations, with about half the country treating it as a serious criminal offense, with the other half adopting the South Park theory…

      • The original Mr. X says:

        I agree with this, and indeed I’ve argued in a previous open thread that the whole “campus rape culture” hysteria is basically the result of people trying to fit non-consent-based intuitions about sex and sexual morality into the sort of consent-based ethics they consciously hold. To steelman the article a bit, since sex ed as given in British comprehensive schools tends towards the “As long as you consent, it’s fine” position rather than the “Asking someone repeatedly for sex makes you a rapist” position, it makes sense to ignore the latter view and focus on criticising the former.

        • Zodiac says:

          Huh,I never realised that in English speaking countries the focus of sex ed is that much on consent/rape. The sex ed I remember from school (Germany) mostly focused on contraception, technicalities of intercourse as well as pregnancy. Consent was just worth a little side note (and basically it was “you can say no whenever and the other person has to respect that”, so no “yes means yes approach”).
          The girls did have one lesson extra but as far as I’m aware those mostly dealt with menstruation as well as with their questions that they might be afraid to ask when the boys are in the room.

          • Brad says:

            Not to put too fine a point on it, but I’d hesitate to change your view of the English speaking world’s approach to sex ed too much based on the anecdotes of a couple of people with axes to grind.

          • rlms says:

            My (British) school sex ed lessons didn’t focus much on consent/rape either (I think it was mostly about contraception, pregnancy and STDs, but I don’t really remember). But British (and I think American) universities student groups often give workshops on consent as well.

          • The original Mr. X says:

            British sex ed has a lot on contraception and pregnancy too; we were talking about education over when sex is OK, so naturally we’re focusing on that aspect and ignoring the extraneous stuff.

          • The original Mr. X says:

            Not to put too fine a point on it, but I’d hesitate to change your view of the English speaking world’s approach to sex ed too much based on the anecdotes of a couple of people with axes to grind.

            Not to put too fine a point on it, but people who toss around unsubstantiated insinuations of bad faith like this generally have axes of their own to grind.

    • teageegeepea says:

      I think a citation of the specific article would be a good idea here.

    • Two things bug me about this:

      sado-masochism must be officially ok

      I must have missed the argument why it inherently isn’t, as the author appears to be suggesting (though I acknowledge I might just be being uncharitable in my reading). I’d ask for an explanation of this point of view, but since I’ve got long-running healthy BDSM relationships going, let’s be serious, it’s unlikely to change my mind, as I have practical experience telling me that it’s totally fine (from my masochistic perspective, it’s in fact quite awesome). Abuse is not sadomasochism, though. Which brings me to the next point:

      Generally, the author keeps talking about consent in situations where people assume consent cannot be given. Even if you have the axiom “consent is all that matters”, if you’ve decided a child cannot consent (i.e. nothing the child does is ever consent), then the axiom is all you need to stop there being acceptable sexual relations with a child.

      In other words, the author seems to want to be an authority on what ‘consent’ means so he can rub it into the face of the people who use it. Ultimately, that’s putting words into people’s mouth and makes for a very poor argument.

      One might still successfully make an argument that consent is not all that’s needed (I think it’s an argument worth making, e.g. potentially along the infidelity axis they briefly brush), but telling people “this is consent” when they don’t use the term that way is not it. “Consent is something you can give only if you’ve got reasonable control over a situation” may seem like an arbitrary restriction of the word to the author, but IMO they should then argue as much.

      It’s like getting out a dictionary on a word to try and argue that an encyclopaedic entry is invalid.

      From my perspective, their beef seems to be with the practical trappings of sex education, not with the consent axiom, in which case I’d quite prefer they instead focussed on constructive remarks, i.e. “it would be better if”. (I must admit I have rather uncharitable expectations of what the author might write based on the paragraphs I’ve read so far.)

      —-

      …more so now that I’ve finished writing the previous bits of this comment, opened up another tab, and found the source of the paragraphs. That’s the source of my strike-out. Apparently their beef is with sex education being offered to four year olds. Link: http://www.lmschairman.org/2017/03/what-exactly-is-wrong-with-sex-ed-for.html

      Worth quoting because it seems to be near the root of the perceived problem:

      This is helpful because it reminds us that, contrary to many claims made about sex ed, it is not primarily about giving young people necessary information. No useful biological information is going to be imparted to four-year-olds. With older children the sex ed programme competes with an avalanche of information available off the internet. (There are ways of stopping this flow of information, at the level of the state and of the family, but the sex ed people show little interest in doing this.) No doubt there are gaps in information gleaned at random from Google, but the educators’ most urgent task, as they see it, is to set the information children are getting anyway into some kind of moral or ideological context. The reason the sex ed industry wants to get their hands on children as young as this is to lay the foundations for their favoured ideology of relationships.

      Which explains why the thing isn’t written constructively, because what would you suggest in response to that? That parents have a moral obligation to offer a balanced point of view from the tender age of four? That children be forced to attend church, which then balances it for them? Or, indeed, that sex education be reformed in some way that offers balanced points of view? All of these require a lot of effort. As in, I’m not at all holding that against the author – if this is his actual issue, I can see why he’d rather just rant about it.

      He seems to be leaning toward the first of those options:

      Parents need to find out exactly what their children are being exposed to in sex education in school, and take responsibility for protecting their children.

      Which gets very little criticism from me.

      Unfortunately, the author also reveals he isn’t interested in balanced points of view, which I find disappointing (emphasis mine):

      The problem which is emerging among young adults is a sexual culture which is totally amoral, in which people seek to satisfy desires fuelled by pornography, with the help of dating aps like Tindr, without any regard for the harm which may be done to their partners or offspring.

      It’s an unfortunate completion of a paragraph that, in all fairness, beings like this:

      I want to make as clear as possible that the educators’ concern is a comprehensible one, before I show what the problem is with their response.

      So I’m assuming he would not be happy if the parents did not conform to his worldview. Motte: Parents should take care to monitor what their children are told (and not told) in sex education. Bailey: Porn is bad, Tindr is bad, BDSM is bad, probably polyamoury is bad, et cetera.

      I’m OK with the motte!

      (I notice with some irony that the context of all of this is amongst other things that four-year-olds cannot possibly decide whether or not education is right for them – which of course also implies they can’t possibly decide whether or not the education their parents give them is right for them. In fact, at that age, they have greater incentives to just accept what their parents tell them than they do do just accept what (pre)school tells them. Something something inability to consent something something? I think we can likely all agree it’s not an easy problem – be it in education or in sexuality.)

  54. Josh says:

    So when I say “we are forced to infer consent from nonverbal rather than verbal cues”, Singer expresses the same idea as “since we can’t use consent, we need to fall back on simpler ideas like those of pleasure versus harm.”

    This does not appear to be a direct quote from Singer. I say this, not just as a minor quibble, but because the lack of a direct quote to use here is a red flag. Peter Singer is an enormous figure in contemporary philosophy. I hold his public writings to a higher standard than “Scott can save this.” I think we all should.

  55. vV_Vv says:

    This second one should make us very uncomfortable. But the first one isn’t exactly encouraging either. Like, in the early 20th century a lot of eugenicists sterilized the mentally ill. And by the mid-20th century, people decided that was morally wrong, because parenthood is an important part of the human condition and it’s unacceptable to take away that right even if you believe it’s for a greater good. But I’m not sure it’s moral progress to move from “these people must never become pregnant” to “forget about pregnancy, these people must never even have sex”. If we’re even stricter in our prohibitions than the eugenicists, what right do we have to feel superior to them?

    So, as much as I would like a better option, I think I support the second standard.

    So if we allow the severely mentally disable to have sex, how do we deal with pregancy?

    If we permanently put them on birth control and/or abort any resulting pregnancy, then it is functionally equivalent to sterilization, and we are back to the eugencists case.

    If we allow them to have children, quite possibly also disabled, then who should take care of these children? Who should pay for their support?

    • Mark V Anderson says:

      It is very politically incorrect to say so these days, but maybe those eugenicists were largely correct? At least in the principle. It sounds to me like a very good idea to sterilize those with a healthy sex drive but no ability to care for children. The stories one hears about the old days is that they may have done this for people that simply were a bit dumber than average, or racial groups that were assumed to be dumb. I disagree with that approach, but there are definitely people out there that cannot take care of kids, either mentally or physically.

      Someone upthread talked about his disabled daughter who he wondered if he should sterilize, for exactly these reasons. But he hesitated because he thought she might improve somewhere down the road. I completely agree with that, both about the sterilization when needed, and the conservatism about when this is needed.

      • Zodiac says:

        I’d consider this one of the cases where I would be very afraid of a slope effect. If we do this right now for only the very disabled we might end up at a point where the poor are not allowed to have children since there are high probabilities their children will end up taking drugs and become dysfunctional members of society etc. In the extreme case only people in the best situations are allowed to have children. Considering parenthood is quite important to many people I’d see that as undesirable.

      • Anonymous says:

        It is very politically incorrect to say so these days, but maybe those eugenicists were largely correct?

        I’m a Death Eater and I think that’s going far too far.

      • vV_Vv says:

        I’d actually tend to agree with sterilization of the severely disabled and also of the poor who have children without being able to provide for them (their fitness wouldn’t be zero but at least it wouldn’t be as high as it currently is in modern welfare state societies, and in addition to the eugenic effect we would save taxpayer money).

        Puny death eaters… 🙂

        • Anonymous says:

          Any reason this wouldn’t quickly turn into “let’s sterilize people we don’t like under the pretense that they’re disabled”?

          Sterilization at least as bad as a death sentence, and possibly worse. And then you lot propose that doing it to people who committed no crime is somehow alright? At least be consistent that gassing them would be more efficient, lots more taxpayer money saved that way, since they’re not productive citizens anyway. Do you believe this also?

          • vV_Vv says:

            Any reason this wouldn’t quickly turn into “let’s sterilize people we don’t like under the pretense that they’re disabled”?

            Same reason why we don’t lock up in the madhouse and throw away the key people we don’t like under the pretense that they’re disabled.

            Or maybe we do to some extent, but most laws and regulations can be in principle abused by those who enforce them. This is not (necessarily) a good reason not to have laws and regulations.

            Sterilization at least as bad as a death sentence, and possibly worse.

            Maybe we have different sensibilities, but if I had to choose between my life and my swimmers I’d certainly choose my life.

            Do you believe this also?

            No.

          • Montfort says:

            Sterilization at least as bad as a death sentence, and possibly worse.

            And are you going to be consistent and advocate all currently sterile people be euthanized or offered assisted suicide to put them out of their alleged misery? Ban hysterectomies and castration even as cancer treatment? What about menopause?

          • Anonymous says:

            And are you going to be consistent and advocate all currently sterile people be euthanized or offered assisted suicide to put them out of their alleged misery?

            Not a fan of euthanasia in the first place, so no. I alleged no misery (though I easily understand why someone forcibly sterilized would take their own life afterwards); I alleged that the punishment was as bad as a death sentence, if not worse.

            Ban hysterectomies and castration even as cancer treatment?

            AFAIK, these are undertaken voluntarily. Volenti non fit injuria.

            What about menopause?

            I hope they find a cure for this condition soon.

          • Anonymous says:

            Same reason why we don’t lock up in the madhouse and throw away the key people we don’t like under the pretense that they’re disabled.

            Or maybe we do to some extent, but most laws and regulations can be in principle abused by those who enforce them. This is not (necessarily) a good reason not to have laws and regulations.

            But there is a reason not to have laws that permit, or mandate, punishment of people whose only crime is existing.

          • Matt M says:

            Silly anon.

            None of our laws “punish” the mentally ill. We only protect them. We’re heroic like that!

    • yossarian says:

      Personally, I feel more negative about preventing people from having sex than about preventing them from becoming parents. Sex is a biologically programmed need, so for me it feels wrong to restrict it unless it’s really necessary. Sex is also an activity involving only the actual participants.
      Reproduction, however, is an activity that involves the actual participants and the future citizen who will be created in the process, who at the moment has no ability to provide or withold his/her consent due to not yet existing, so there is yet another interested party whose (theoretical) consent we should consider. In fact, I often feel kind of confused by the fact that such an important part of human society as reproduction is so little regulated relative to others.

      • Aapje says:

        Forced contraception tends to involve things like sterilization, which has a history of having been used on ‘undesirables.’

        • vV_Vv says:

          which has a history of having been used on ‘undesirables.’

          Prisons have a history of having been used on ‘undesirables.’ This is not an argument on banning prisons

  56. Cauê says:

    I missed this post somehow.

    “since we can’t use consent, we need to fall back on simpler ideas like those of pleasure versus harm.”

    My culture is very similar to the US in most respects, but sometimes I still feel a clash.

    Worrying about harm in a subsidiary way when you can’t worry about consent, from where I’m standing, looks like Goodhart’s Law acting on efforts that were originally supposed to avoid harm.

    (also, that only make sense to worry about as long as the point is to avoid harm)