September 25, 2006

Is this a thought experiment?

I have only been reading only a few blogs for about a year and a half. Unfortunately I had not gleaned the unspoken etiquette and the responsibility I have to the blogger. I had been engaged under another pseudonym, in a discussion with Jeremy Pierce of Parableman in response to a comment he had made at another blog. I was disturbed by his views that I linked to Jeremy Pierce’s post in my comments at Figleaf’s Real Adult Sex. I thought that it might be important to look at his view within the context of the post. I was sarcastic in my comment. I was surprise that he would respond at this blog, and I responded in turn. I realized that something wasn’t exactly right. I had not thought to post here and redirect the response here. Since I still have something to say, I’m better late than never.


At Parableman, Jeremy Pierce has written an essay “Degrees of Slavery and Degrees of Rape.” I have issues with both, but my current gripe is about “degrees of rape.” This is partially how he comes to that point.

If rape, then, depends on consent, then whether something is rape will depend on something that may be a matter of degree. Rape, then, is like what I'm saying is true of slavery. A forced sexual act is more strongly rape than a merely psychologically coerced sexual act, and psychological coercion itself is a matter of degree. If there's any degree of coercion, isn't it that same degree of rape? It should be if rape is coerced sex, and that's how most people define it, at least those who accept date rape as rape.

When a rape occurs, usually the people involved are the only ones at the scene, very seldom any witnesses. So to determine if there is a rape, along with the forensic evidence, if any, the only other thing is to prove who is telling the truth. A woman may lie and say a rape occurred, when it hasn’t. I think these are the instances in which Pierce’s degrees fall. I do think a woman knows when she consents. I don’t think it’s a half ass thought. It may happen in an instant when she changes her mind. I believe the body changes and its responses are not hidden. I can not believe that verbal and visual cues are missed, unless one is under the influence. We do not have to determine what monolog is in her mind at the time. It is not the responsibility for the man to determine this either. At that moment the woman says no, the man should be able to control his libido and back off. I believe both of them know when he becomes coercive.

I not sure what he meant in this opening statement. It sounds like a thought experiment.

The argument is intended to undermine my view by showing that it leads to the ridiculous conclusion that murder, rape, and genocide happen all the time and aren't really wrong when they do except in the extreme cases that we usually call murder, rape and genocide.

After reading the argument I feel it is Pierces’ belief. He continues to defend this argument. What else am I to believe after reading this?

So I think (3) is the correct view about degrees of rape. It is exactly like slavery in its admitting of degrees (in two different ways!), but that's not problematic. It's in fact what we should expect. So why is it an argument against my claim that it entails the view that rape comes in degrees? It does come in degrees. I'm biting a bullet on this, but I don't think it's a very hard or fast bullet to bite. It's just sort of hanging out in the air waiting for me to gobble it up, and it's made out of chocolate.
Read the entire essay

My feeling about this argument is that this definition of rape seems to undermine the current definition of rape. It’s personal to me. I have had experiences that at this time I am not able to discuss in public. I also remember when all one had to do was to bring several other males to court and say they all had sex with this female. I am not using men and women because this happen to a thirteen year old girl I knew. The only time I knew of statutory rape sticking was when the girl’s father was a policeman. In order to prosecute, quite often the woman had to be near death. I fear the idea “degrees of rape,” becoming a normative attitude. I believe it would harm more women and relieve society of its responsibility to teach children the responsibilities of being sexual persons.

8 comments:

Jeremy Pierce said...

I don't think it's necessarily true that when a woman is raped she will automatically know it. She might not have wanted to engage in sex, but she gave in and now blames herself, perhaps. Or maybe she was psychologically pressured and considers it consent of a sort when she wouldn't have consented without that psychological pressure. I think it's downright evil for a man to pressure a woman into sex when her desperate situation leads her to accept. But since it allows even less room for her to resist, I tend to think of cases of physically forced sex are morally worse. Both are wrong. Both are coercion. Both are rape. One has less coercion, and the other has more. How wrong the action is depends partly on how much coercion there is.

I think what you're missing here is how philosophers generally think of vagueness. Consider the case of baldness. If I started plucking hairs out of my head, we wouldn't have to wait until they're all gone before people would call me bald. Several hairs remaining wouldn't stop that. I could have a few hairs and still be called bald. Charlie Brown is bald. But it isn't one hair that makes the difference between being bald and not bald. There are all the clear cases of being bald, and there are all the clear cases of being not bald. If you've got 100 hairs you're not bald, say, but if you've got 400 you're also not bald. It's true of both to say that the person is not bald. But one of them is closer to being bald and thus in a sense is more bald. That's what I'm talking about here. Cases of greater coercion count more strongly as rape, and cases of less coercion count less. It doesn't take a lot of coercion for it to be morally wrong, but greater coercion makes it morally worse (other things being equal, which is not always the case).

I'm not sure how cases of when a woman is lying are relevant. I'm not talking about cases when there is consent but the woman lies and says there is no consent. Those cases are clearly not rape, even if no one besides the two people would be aware of that fact. You seem to be focusing on observers' level of certainty of whether something is rape or how we might investigate a rape charge to determine whether it was rape. That is not at all the issue I'm talking about. I'm talking about what makes something rape, and the uncertainty of investigators sheds no light on that issue. What matters for that is whether consent occurs, not whether it can be proved.

As for verbal and nonverbal cues being missed, I think you are simply wrong. Some people are very good at reading body language. Others are not. I suggest you look into autism and how it affects someone's ability to read body language. People with more extreme cases have a hard time telling emotions from facial expressions. Less extreme cases like Asperger's Syndrome have difficulty sometimes telling sarcasm from seriousness or sometimes miss more subtle clues. The way these features display themselves across the population is not uniform or all-or-nothing. Some people have a lesser degree of this inability than others, not enough to have a diagnosable condition. It's just a scientifically observable fact that some people are much more intuitive than others at reading body language or detecting the difference between real resistance and merely playing hard-to-get for the sake of a challenge. As it happens, men tend to be worse at this anyway. That's not to say that it's morally ok to pursue sex when someone says no. I'm not saying that. I am saying that it seems at least little less bad than outright forced sex with a woman who says in no uncertain terms that she will not have sex. Someone might say, "I'm not really interested. You'll have to do more to convinced me to do it". Someone else might say, "Not now. Not ever. I hate you. Don't come near me." I can't see how forcing sex in the second case doesn't count as more coercive.

Now the opening statement/thought experiment issue: This is part of a series of posts. I am arguing that a number of moral concepts and terms admit of this kind of vagueness. Someone read something I wrote about vagueness in levels of autonomy, where I said some kinds of slavery involve more autonomy for the person who is a slave than is the case with other kinds of slavery. You eventually end up with cases like indentured servanthood, which in one sense is voluntary servitude. Then you move along the spectrum to ordinary employment, where you still are restricted in some ways. The progression from slavery to self-employment is a continuum. Someone read that stuff and then said my view led to an absurd conclusion: that genocide, murder, and rape are also vague concepts, and surely that can't be true, because it would mean that murder, rape, and genocide happen all the time and aren't really wrong when they do except in the extreme cases that we usually call murder, rape and genocide.

This post was my response on the issue of rape. I was arguing that there are difficult cases of whether something counts as rape because there are different levels of coercion, and it's not clear to me that there is a sharp line between the cases that are coercion and the cases that aren't. I would probably include more cases as genuine coercion than most people would, and thus I think rape is more common than most people think. But the point isn't about where the fuzzy line might be. It's that the line is fuzzy.

I don't see how your cases of ridiculous ways of getting out of rape are relevant. It's one thing to say that there are cases when consent is hard to determine or to say that some cases of coercion are less coercive than others. It's quite another thing to say that someone should be absolved of rape charges merely for getting people to say they had sex with someone. How many people have had sex with someone doesn't show whether a particular case was rape, especially if the mere fact that sex occurred means it's rape (as is the case with statutory rape). The law ideally will reflect this. I'm not sure, then, what you are thinking when you say that I'm undermining the legal definition of rape. The legal definition usually takes rape to be forced sex, and more forward-thinking versions will add in psychological coercion. I'm not questioning that something is rape when it is coerced. I'm saying that there are higher and lower levels of coercion. When it's coercion, it's rape. When it's borderline coercion, it's borderline rape. That's not undermining the definition at all. It's just saying that the words we're using aren't always precise. It fully endorses the use of such imprecise words for explaining when something is rape.

Hathor said...

I chose those examples, because of the definition of rape at that time in the fifties, one's sexual history would be counted, also the extent of the assault. With science and changes in the law, a woman who has been raped has a chance for justice. The law changed when society changed their ideas about coercion. For you this is just an argument, even if you would admit your premises are wrong. This is a theory that you are using, to advance a moral system. If your moral system were to be accepted, don't you think that it would have some impact on the legal system? This is what concerns me. It would relive society from having to look hard at a case of rape.

Fuzziness is a part of life. Making moral decisions will always be messy. We will never be able to define the fuzziness. Justice is supposed to limit some of the fuzziness.

I wasn’t being definite about changes in the body occurring for every woman, but there are some physical signs would be hard to miss. For example, if there are no physical signs of arousal or if those signs disappear suddenly. Forensics see vaginal bruising as a way to help determine a rape, why is that? I think that happens when your body says no.

I will not speak for all women, but let me say I knew when I had been raped, even in what you say is a lesser degree. Unfortunately the emotions are not a lesser degree. I can’t say how rape has affected my life until now, except that it greatly changed my freedom. I resent that because I want to travel in the world equally as a man. I don’t want my femininity defined by fear. Walk in twos, don’t travel at night, watch how you speak to men, don’t trust any situation, etc.

Kochanie said...

I thought that it might be important to look at his view within the context of the post.

Hathor,

Quoting from another source, be it a blog, a book or an article, when commenting at a weblog is not a breach of etiquette. I think it enriches the discussion, and for that reason, I am glad that you included the link to Jeremy Pierce's site and this particular essay.

Yes, Jeremy Pierce is presenting an argument, a philosophical argument, but the purpose of such analysis is not to trivialize what you or other rape victims have experienced, anymore than a medical journal of oncology seeks to minimize the suffering of cancer patients. Both disciplines seek definitions that are more precise than vague.

This is a theory that you are using, to advance a moral system. If your moral system were to be accepted, don't you think that it would have some impact on the legal system? This is what concerns me. It would relive society from having to look hard at a case of rape.

With all due respect, Hathor, I don't think that is what Jeremy Pierce is saying in the following quote from his comment: I would probably include more cases as genuine coercion than most people would, and thus I think rape is more common than most people think. But the point isn't about where the fuzzy line might be. It's that the line is fuzzy.

The police and the courts are limited to enforcing the law as it is written. The courts do not exist to dispense justice; they exist to uphold the law. Justice is (or should be) the intent when the law is written. The more precise the terms available to the lawmakers, then the resulting statues will be less arbitrary. Less arbitrary statutes are easier to enforce, and violations of such statues are more readily prosecuted.

So as dry and emotionally distant as a philosophical argument may seem, it is part of the process that brought about what you observed: The law changed when society changed their ideas about coercion.

I thank you for sharing your own experience and concerns, and I look forward to reading your words here and at Figleaf's site.

Hathor said...

kochanie,
Perhaps that fuzzy area might be called something else, like manslaughter is to murder. I don't think laws can be that precise for every instance. I thought mitigating circumstances would cover fuzzy aspects of the crime and this would be considered in each case.

I am not sure I want a sliding scale of morality. I don't think making a bad decision makes any act any less wrong.

Glad you stopped by.

Jeremy Pierce said...

Exactly how is it that my moral theory would change the legal system? I'm not sure what you're getting at, so I can't tell if it's a genuine problem or if you just misunderstand what I'm saying. You've said this several times without indicating exactly how it would undermine justice. In particular, I don't see how what I'm saying would relieve society from looking hard at rape cases. It would seem to me to force us to look harder.

One way I can think of that this would affect the legal system is in the same way that similar issues affect other crimes. For instance, we distinguish between murder and manslaughter, and we also have voluntary and involuntary manslaughter. We've got first-degree, second-degree, and third-degree for each. We have some distinctions in rape also, but I think if my view affected the legal system we'd just have more distinctions with variations in penalties according to the level of the crime. I don't see how that would make it easier not to examine rape. It seems to me that it would make it more difficult to place particular cases, but that doesn't mean we would be avoiding the issues. I think it would mean we'd be looking more carefully and trying to be as exact as we could given the various relevant factors, just as we do with murder and manslaughter.

Rough sex can produce vaginal bruising, so I would hope they aren't using that as evidence in itself without other factors. Signs of arousal are notoriously difficult to quantify, but if there really are none then it would be surprising that it could be consensual. But my understanding is that most cases of rape do involve involuntary signs of physical arousal just from mere physical stimulation, so I don't think this is all that helpful. Arousal isn't a sign of consent, even if non-arousal is a sign of lack of consent. These aren't reasons to ignore these factors, but I think they don't give us very much to work with if they are the only thing that can be used to determine rape (and they aren't, but testimony is also less than certain, since testimony will always go both ways).

My general view is that the place along the fuzzy spectrum where something is rape is much lower on the scale than most people think. I think consent can be undermined enough in cases when most people don't worry about it that I'd call it immoral in those cases. I think it's much more difficult to establish in court that a rape occurred, but I don't think that's because of the fuzzy nature of moral concepts. I think that's just because it's very hard to establish beyond a reasonable doubt to an impartial jury that a rape has occurred. That's unfortunate, but I don't think the issues I'm getting at have anything to do with that. I'd call something rape when most people wouldn't.

Hathor said...

I do not pretend to be any expert of female sexuality and I did not say that all women’s bodies react the same. I was saying only if the body reacted a certain way is should be noticed. I don’t think there is that much confusion as you think. I don’t think it is easy to arouse a woman if she does not want sex. I thought I said that vaginal bruising “as a way to help determine a rape,” implying it was only part of the determination.

You have many more degrees of rape, than degrees of murder and manslaughter. By changing the minds of society, then each person is allowed to define their own set of degrees. I’m just saying that when you define something to the nth degree, there are bound to be misinterpretations of your thoughts, as I may. You say you would probably include more cases of rape, another might decide on fewer cases of rape. I think it would impact the justice system, by creating unanswerable arguments among jurors. I am not saying that this will occur overnight. I think if your ideas become mainstream, if would chip away at the definition of rape as it is now. I’m not sure this will answer your question, but this is how I see it. After reading your essay many times I may not understand, but I have tried.

Outside of your philosophical thought process, I get the impression that you think is a casual act for a woman to accuse someone of rape. I think she knows the gravity of the accusation and most adult women know their responsibility for stupid decisions. I don’t think many “not sure” cases get brought to the attention of the law and when they do I think the prosecutor ask the hard questions. They have to know if it meets the legal requirements. It is hard for many women to talk about their rape, taking it to the legal system is not a nonchalant act.

Hathor said...

(Accidentally truncated my reply)

I rely on my intuition, knowledge and experience. I not trying to be right, but wanted to let people know how I view your essay. I would never be able to extrapolate what happens in the future. I can only guess.

Jeremy Pierce said...

I'm not sure how anything I've said indicates anything about how casual or how difficult it is to accuse someone of rape. I'm not talking about accusing someone of rape. I'm talking about what counts as being rape, whether it's reported or not, whether anyone believes it or not. What makes it rape, not what a third-person objective observer would know to be rape.

I don't think what I've said requires having more legal distinctions than we have with murder and manslaughter. I think the moral issues with murder and manslaughter are much more complex than the legal situation, but you can only do so much with regard to legal distinctions. I'm not sure why we'd need to do more with rape than we do with murder and manslaughter. In the end, maybe it would be best to do less. Something's being morally worse or less bad doesn't mean we should automatically have legal penalties reflecting that. There are some pretty awful things people do morally that we don't have any laws against, and some cases of first-degree murder are worse than others.

As you said, there's a place for consideration of complexities to come in with the penalty phase of a trial. But we do factor some of the complexities into the very charge itself with murder and manslaughter, and I don't see how it would be bad to do so with rape.