According to Blasey, Kavanaugh was drunk when he assaulted her. While people sometimes try the drunk defense, it is usually not particularly effective. It is, however, a matter of philosophical interest, if only because John Locke considered the subject in his discussion of personal identity.
Locke argued, at length, that a person is their consciousness. Roughly put, memory is the basis of personal identity. Locke carefully distinguishes being the same person from being the same man. Being the same man for Locke involves being a collection of matter bound together by the same life; this could be looked at as biological rather than personal identity. When Locke considers the drunk defense, he notes that drunkenness could result in a person being unable to remember what was done. And if the person did not remember, then there would be no continuity of personal identity—thus, they would not be that person. Locke does note that human law, which must rely on the available facts, does not accept the drunk defense. After all, there is currently no way to establish or disprove a claim of metaphysical identity. As a practical matter, guilt goes along with being the same man (or woman) and this is not changed by a person being drunk. Since God is omniscient, He knows whether it was truly the same person or not and punishes accordingly. As such, unless God does a full memory restore on Judgment Day, people would not be morally accountable for what they permanently cannot remember because they would not be the person who did those actions. From a practical standpoint, Locke does note that the metaphysics of personal identity is not relevant—so the moral drunk defense would not work until Judgment Day (or until there is a means of determining metaphysical identity). Laying aside the metaphysics of personal identity, there are also important questions about moral agency and intoxication.
Intoxication, by its nature, impairs a person’s capacity to make judgments. As such, it is reasonable to consider that intoxication would impact a person’s agency. One controversial subject regarding agency is, of course, the matter of consent. The extreme end of the spectrum admits an easy and obvious answer to the question of consent: a person who is unconscious or almost completely incapacitated due to intoxication is incapable of granting consent. At the other end of the spectrum, a completely sober person (who is otherwise competent) can give consent. Between these two extremes lies a realm of controversy because it is not clear at what point exactly a person can no longer grant consent. It would, because of the line drawing fallacy (to reason that because one cannot draw an exact line between X and Y it follows there no way to distinguish between X and Y), be unreasonable to insist that precise boundary be drawn. Rather, we must settle on a somewhat fuzzy boundary and accept that their will be controversial cases. Fortunately, I do not even need to sketch the boundaries here, for the discussion will focus on cases in which one or more of the people involved are too intoxicated to consent.
If a person is too intoxicated to consent (and has not given prior permission), then engaging in sexual activity on them would be sexual assault (or rape). This is because the person’s intoxication has deprived them of the agency needed to grant consent. If it is agreed that intoxication can impair agency to a degree that consent is not possible, then it must be asked whether intoxication can impair agency to a degree that a person who engages in assault is not morally accountable for their actions.
One obvious point that might be brought up here is that a person incapacitated by intoxication would not be physically able to engage in assault while a person incapacitated by intoxication could still be assaulted. This is obviously true, so the matter hinges on whether there is a level at which a person is so intoxicated they cannot give consent, yet still capable of physically engaging in assault. If not, then the matter is settled. However, this does not seem to be the case—it does seem that there are levels of intoxication at which a person’s agency is so impaired that they cannot give consent, yet they are still physically capable of engaging in assault or rape. One can imagine someone who is stumbling drunk, cannot form complete sentences or thoughts and is yet capable of groping or engaging in sexual activity. As such, there does seem to be a matter to settle here.
If it is accepted that there is a level of intoxication at which a person lacks the agency to grant consent, yet is still physically capable of sexual assault, then the question is whether this lack of agency extends to accountability for sexual assault (or other evil actions). On the face of it, if a person lacks the agency to make judgments that allow them to consent, they also lack the agency to make judgments that would make them accountable for their actions. One way to look at the matter is that a lack of agency transforms a person into an object. While an object, like a falling tree, can do a lot of damage, it cannot be held accountable because it lacks the agency that grounds accountability. The obvious problem with this view is that while sufficiently intoxicated people cannot grant consent, it entails that sufficiently intoxicated people cannot be accountable for sexual assault.
One way to counter this view is to argue that an intoxicated person has their agency impaired rather than eliminated, so that an adult becomes analogous to a child (or animal). On this view, an impaired victim cannot grant consent because they lack the agency to do so. An attacker would, however, still retain enough agency to be accountable. To use an analogy, they would be like a dog that bites someone: the dog does not grasp concepts like consent but is still expected to know not to attack humans. As such, an intoxicated person would not be capable of granting consent but would still be accountable for attacking someone. The challenge here would be to argue that a person intoxicated to the degree that they cannot consent still retains enough agency to be accountable for engaging in non-consensual sexual activities.
A plausible approach is to argue that consent requires more agency and mental competence than recognizing assault and knowing that it is wrong. To use an analogy, an intoxicated person would be hard pressed to operate a complicated machine or solve a challenging logic or math problem, but they can still engage in basic tasks like opening another beer or working a remote control. So, expecting an intoxicated person to make judgments about giving their consent would be unreasonable, but expecting an intoxicated person to know better than to assault someone would be quite sensible.
How is the average inebriated horny guy supposed to tell if his inebriated girlfriend’s “yes” is invalidated because she is too inebriated and lacks agency?
This goes way beyond opening another beer.
Kevin Henderson says
“expecting an intoxicated person to know better than to assault someone would be quite sensible”. The expectation comes from the fact that persons’ behavior can easily be predicted without impairment.
Impairment does not imply proclivity to act. Any human unwilling to harm or take advantage of another person while not impaired is still likely not to harm or take advantage when impaired.
I prefer to attack this as would Sherlock Holmes. Let’s establish facts first. And to show how the narrative is spun for maximum political impact at all times, the key question that has not been asked: Has Kavanaugh even met Ford? Can any third party verify that these people were ever even in the same area?
So far, Ford has named 4 other people that were in the house with her when this happened. All four have said they weren’t there.
So, supposing that Ford is lying–just supposing of course because I would never let the fact that she has no supporting evidence and in fact has witnesses who say the opposite of what she does, what does this say about the subsequent woman who is now accusing him?
What does this say about men’s future and the feminist movement and about humans in general?
“According to Blasey, Kavanaugh was drunk when he assaulted her. While people sometimes try the drunk defense, it is usually not particularly effective.”
To be clear, this is not a defense on Kavanaugh’s part. He has categorically denied every allegation, including even being at the alleged party.
It is part of Ford’s, or rather, the Democrats’, offensive attack. (You can use whatever meaning of the word “offensive” you like, I mean both).
The picture they are trying to paint of him is one of wild underage drunken debauchery – much more of a “one-two” punch (the pugilistic, not the party-beverage, sense of that word) – not handing him a handy defense strategy.
For the record, I stand firmly in the “this is a disgraceful smear” camp.
The point about accountability while drunk is interesting, especially in the context of Locke. I will comment on that if I have time later. It certainly worked for Ted Kennedy.
In a historic sense, the “It wasn’t me” (temporarily inmpaired) defense was first used by the Republican representative from NY, Dan Sickles, in the late 1850s. He murdered Philip Barton Key (son of Francis Scott) in cold blood, suspecting that Key was having an affair with his wife. He was successfully defended by Edwin Stanton, who later became Lincoln’s Secretary of war.
After the trial, Sickles went back to his job as US Representative the next day.
To illustrate how differently moral issues were viewed back then, Sickles also brought a prostitute to London with him on a diplomatic mission to meet Queen Victoria, because his wife was pregnant at the time and couldn’t travel.
For the record, I stand firmly in the “this is a disgraceful smear” camp.
Agree. But I would go further. Any discussion of “drunken debauchery” or such in the context of a discussion about Kavanaugh is itself a disgraceful and disgusting passive-aggressive style smear that I say is beneath the dignity of an honorable person. But such is the decline in decorum and such in our society that people are willing to do such a thing and then turn around and bemoan the decline in civility in social and political discourse.
There is nothing, zero, zilch, nada evidence that Kavanaugh did any such thing. If we were to have even a remotely justifiable tangential discussion we would be discussing how women need to be taught not to lie about sexual assault. How we need to talk to young women about how to keep their emotions under control. But to be discussing “drunken debauchery” when there is no evidence that any such thing actually happened and when numerous people who have been called out as being present have denied any knowledge of such an event is nothing more than an attempt to control the narrative. The vast majority of people in this country really should be ashamed of themselves. But since they all have each other to reinforce the lies that they want to believe, it won’t happen. This is how you get to Nazi Germany and such. Ah, but now I’m the Goodwin one who’s gone “too far”, right? Idiocy. Pure and simple. But if everyone does it, it’s normal. In an Idiocracy it’s the sane who are mad.
Yes, I’ve been thinking the same. How many questions have been begged and premises assumed in this ordeal to get to the point where we are asking questions about the ethics of drunken, debauched decision making without even figuring out if chapter 1 of the story ever happened. Do these people even know each other? All we need is a flow chart: Plaintiff asserts asserts 3 people are witness to her primary claim of assault. All 3 witnesses deny plaintiff’s claim. Flow chart returns user to beginning “Begin Leftist smear campaign again”. With of course zero consequences for the accusers or the hacks in the media whom can’t even track down people to corroborate stories they publish on tight deadlines.
The Harry Reid Doctrine: “He didn’t win, did he?”
I agree completely – however –
I have been consistently critical of this forum and of Mike, for descending into a superficial, tribal discussion of politics and “Anti-Trumpism” which all too often departs from the tenets of critical thinking and actual philosophy and wallows in the mud of talking points and the justification of behaviors and policies simply because they come from your “team”.
So in this instance, if we just ignore the first two sentences of this post, we have a question not of current events or politics, but of true philosophical interest. The reference to Ford and Kavanaugh is even incorrect – as I pointed out before the “drunkenness” idea is not being used as a defense by Kavanaugh, but rather as a secondary attack by his detractors.
There are some very interesting questions here. Do we become different people when inebriated? Can we be held accountable for our actions when performed in that state?
Kevin Henderson states that “Impairment does not imply proclivity to act.”. I’m not sure I agree with that statement – as we all know that alcohol is a lubricant that helps to break down inhibitions in many people, and gives them the courage to act in ways that seem counter to their personalities.
Kevin also points out that “Any human unwilling to harm or take advantage of another person while not impaired is still likely not to harm or take advantage when impaired.”, something else I don’t entirely agree with. I guess it depends on why the human is unwilling to take advantage of another person while not impaired. It may well be that they want to very badly, but their inhibitions or conscience may prevent it – and the alcohol might provide just enough voice to the devil on your left shoulder while quieting the angel on the right.
Maybe an appropriate analogy might be to the cautions offered with certain medications. Studies have shown that certain medications used to treat depression and Parkinson’s disease can alter moral decision-making in healthy people. Other drugs, like euphoriants, come with cautions to the patient to not make important decisions while taking the medication.
Back in the 1990’s, when the stock market was booming on practically no real financial reason, I mused that perhaps there was a correlation between the inexplicable rise in the market and the increasing popularity of Prozac.
The actual chemistry of these medications as they relate to brain function is not completely understood – at least not by me – but the results definitely point to a higher incidence of “altered” capacity and agency. So my questions would be the same – i.e., “Is this really a “different” person, acting in this unusal way?” and “Can this person be held accountable, either morally or legally, for actions taken while on this medication?”
Of course, the same questions can be asked about alcohol. There are literally thousands of peer-reviewed studies from all approaches – legal, medical, psychological, professional – about the direct and indirect effects of alcohol on self control, situational decision-making, morality and a vast array of opinions and conclusions.
John Locke, of course, did not have the benefit of this kind of broad scientific investigation, but his questions are still valid. I have known at least one person in my life who was a “blackout” alcoholic. He was a completely functional, well-disciplined, intelligent man of high morals and values, one who exercised a natural self control and reserved personality that earned him the respect of his peers. I knew him as a student, and he was always at the top of his class.
Give this guy a couple of drinks, though, and he became a completely – and I mean completely different guy. We, his friends, both enjoyed his antics and teased him for his “Jekyll and Hyde” personality, and worried that he was very likely to get himself into some serious trouble or bring harm to himself physically.
The thing is, he never remembered anything the next day. He could have been faking, of course, but it did not seem likely. He was truly interested in learning about the things he said and did, which caused him as much worry as it caused us.
This is probably what Locke is talking about – the discontinuity of personalty and gaps in “being”. While “I was drunk at the time” may not be a valid legal defense in most cases, I think that what we know about brain chemistry and psychology today might yield a different determination in cases like that of my friend.
In case you are wondering, my friend came to a party one evening, had a few drinks and became “Mr. Hyde” – he ended up diving off a dock into shallow water, and broke his neck. He was extremely lucky – all the rest of us at the party were lifeguards and EMT’s – he received immediate and proper first aid treatment and healed with no long-term damage. He quit drinking entirely, and is now a physician. I don’t remember him ever doing anything overly aggressive with a girl, but it was a different time and place and that sort of behavior was more the norm than it is today. If he had – I wonder if he could be held accountable for it today? Should it be brought up in some tribunal or evaluation of his suitability for some high level position in his field?
Of course, I don’t think this story has anything to do with current politics – because I think the immoral behavior is on the part of the other players in this game.
With regard to the kind of story that the Democrats are trying to cook up about Kavanaugh (and not regarding the specifics of this case – and also with regard to the points Mike makes in his essay – I think a missing ingredient might be the actions of the alleged “victim”. The case, of course, is hypothetical.
I can easily imagine a high-school party where an ordinarily reserved young woman, her inhibitions eroded by alcohol, may be excited and somewhat aroused in the heat of the moment. She may willingly duck into a room with an equally aroused and similarly uninhibited young man. Perhaps she puts up a mock-objection, but ultimately does as her hormones command.
Perhaps she is pushed down onto the bed – but it’s not an attack, it’s rough horseplay, and it’s consensual.
Suddenly, as quickly as the passion arose – up wells the guilt and regret, and she tries to put a stop to things. Misreading the signals, the boy presses harder – after all, his hormones are raging, his inhibitions are eroded, and he is operating on the basis of an initial consent – whether “impaired” or not.
So finally, in a final show of strength, she pushes him off, shouts “NO” and storms out of the room. Ashamed by her actions, she does not want to admit to herself or her friends that she initially consented and then changed her mind (“That’s not who I am!”), so her justification, which she may truly believe, is that she was attacked.
It is not uncommon for human beings to block out memories of bad behavior, or to justify them in such a way that the story changes just a bit, to fit into ones own self-perception – and we remember that justification as the truth, regardless of what really might have happened.
He, on the other hand, wonders what happened – what he did wrong – and is confused by the accusation that he attacked her. “That’s just not who I am!” He would never take advantage of another person like that – and she did say yes, didn’t she?
So who is who here? Is the young woman really who she really is at all times? Can she be held accountable for her behavior, even though she doesn’t remember it they way it really happened?
Was he “himself” throughout this? Is it reasonable for him to pick up on signals quickly when they speak directly to his libido and inebriation, but slowly when they indicate an abrupt change?
I agree, this is an interesting philosophical subject. But I refuse to discuss it in the context of Kavanaugh. This is an inexcusable and I would also say unethical context for this discussion, given how this man is being slandered in both the media and elsewhere. I will not play this narrative’s game. If you care to take it to another page or post I would be happy to engage. Pick one, any one.
Yeah, I get it. I wasn’t discussing this in any current context – or I was trying not to. That’s why I separated the opening remark. I guess that’s not really possible, given the way things are these days.
I was in fact trying to steer the conversation back toward the philosophical and away from the political.
If you (or I) can get past the anger and outright shame that arises from this situation and of being an American citizen these days, the concept of self is a pretty good topic for discussion.
Same holds for our relative morality and the value we put on different behaviors.
After Lincoln’s assassination, and well into the impeachment trial of Johnson, the Radical Republicans acted in some pretty despicable ways, including an all out smear campaign on Edmund Ross, the single holdout vote. Ross was living at a boarding house, and the accusation was made that he was carrying on with the owner’s daughter.
On the night before the vote, Dan Sickles went to talk with him, but was told that Ross wasn’t there.Sickles went in and began a conversation with the daughter, Vinnie.
They sat at the dining room table all night talking, while Ross stood hiding behind a door. Sickles knew he was there, and even though he was talking to Vinnie, the conversation was directed at Ross, who knew that Sickles knew he was there. Decorum and social mores prevented either of them from revealing the ruse.
A murderer, philanderer, whoremonger, and consummate liar (as well as an exceedingly corrupt politician) was too genteel to expose another gentleman in a potentially awkward and embarrassing situation.
So today we have similar inconsistencies – starting with Hillary pretending to be on the side of women everywhere, Ted Kennedy literally getting away with murder on the John Locke defense, our latest ex-President’s history of criminal activity in school with his drug buddies, and now this feigned moral outrage at some made-up story in the name of abortion.
And all within the context of some bizarre moral outrage directed at Trump, whose only immorality is being himself, and not hiding behind some false face that masks the despicable, immoral characters lurking within, like the rest of our government. By unabashedly being himself, Trump threatens to expose all those pretending to be someone else. Turns out he doesn’t have to.
The joke is on them, though. They cannot see a moral and ethical jurist standing right in front of them, because they only see what they think they understand themselves. They expect in others what they see in themselves. Kinda makes it easy to understand the outrage, actually.
There are two possible outcomes to this.
One is that they’ll lose this battle big, and Americans will see them for who they are (maybe). The #meToo movement will lose credibility and we’ll swing back to something that at least more closely resembles sanity…
Or, they’ll win this one. Kavanaugh will go home, and the Supreme Court will get a justice who is far more politically motivated, who may just pursue what the left fears most – an overturn of Roe V. Wade.
They don’t believe Kavanaugh when he says he has no intention of pursuing that, but they’d better believe that someone will.
Either way, my intense anger pales in the face of my embarrassment and shame. I’ve been around a while, and I’ve got a pretty good grasp on the cultural and political history of this place, and I don’t think it has ever been as bad as this. At least the pro slavery people and the anti-communist folks were acting out of a moral conviction. This is just pure unmitigated hate, and an audacious effort to win at all costs. I don’t believe there is any remorse at the destruction of another human being – because an old white conservative does not deserve it.
Michael LaBossiere says
I didn’t claim that Kavanaugh used the drunk defense; my interest was in considering the general issue of drunkenness and accountability.
Then why drag Kavanaugh into it? If you want to discuss these things in general, why not tell us all the wrong things you did in high school? This is quite literally the meaning of pissing on someone’s back and saying it’s raining. Don’t pretend you’re not playing a BS political game here. It’s fucking cowardly.
Michael LaBossiere says
I’m not sure of the statute of limitations for my misdeeds. Also, my confessions might implicate Whitewolf71. Back in Old Town, we were all menaces to society in our youth.
You’d make a.pretty good journalist for a tabloid, or maybe a cheap lawyer. Yeah, you’re right…you never directly made that claim. And I never said you did. But your headline certainly bears some heavy implication.
Imagine an article, one in a series about you, with this headline:
“Michael LaBossiere III: Sexual Predators Who Stalk Vulnerable Female Freshmen”,
…followed by a subhead that reads,
“many allegations have been made on college campuses across the country that tenured professors are developing extra-curricular relationships with their young female students.”
When you bring the author into court, he’d say,
“I didn’t claim that LaBossiere ever took advantage of his students…”
Michael LaBossiere says
I did consider law school; but never journalism.
Well, if I was accused of stalking vulnerable females as part of a congressional hearing, then I would be fair game for blog posts.
I think you miss the point. If that were the accusation, then I’d say you’re right – but what if it weren’t? What if there was an accusation that you had say, inflated grades? Or maybe your degree was in question – or something totally unrelated, and that there had never been an accusation of stalking, and it was never even brought up?
That’s the point The”drunk defense” has never, ever, been a part of this Kavanaugh debacle, yet your headline conflates the two – and for anyone who doesn’t read below the fold, the takeaway would be that it was.
And yes – it’s true that you never made the claim, but c’mon – you did everything but that, and in just a couple of well placed sentences.. While the concept of the continuity of consciousness as being part of “self” is an interesting concept – there was absolutely no reason to use the title you did except to put the “drunk defense” and Kavanaugh together in people’s minds.
If you were a lawyer, I’d say that’s typical and completely expected. If you were a journalist I’d say you had some ethical problems that would keep you from writing for anything but the tabloids. But you’re a philosopher, and academic, a critical thinker …
I think you miss the point
Again, you’re working under the assumption that he gives a damn about your point. I think you’re beginning to grasp the degree of sophistry that goes on here but you’re still being way to charitable. Of course, your choice. Just saying. I had a couple paragraphs written above to this clown in response to his disingenuous response to my comment but decided, fuck it. What’s the point? Anyone who would waste five posts playing this game, disparaging a good man by taking seriously completely unsubstantiated charges purely for political advantage isn’t worthy of a response. He’s nothing more than an egregiously unethical charlatan, like way too many in academia. Which is how we got the country, really Western Civilization in general, in this situation in the first place. Outside of hard-science based STEM education, the academic world consists of nothing more than making a bad copy of a bad copy of a bad copy of an idea. For generations we have pretended that there are no consequences for perpetuating such. But while the Gods of The Copybook Headings may be temporarily (on their timelines) distracted, they will not allow themselves to be ignored forever and will strike back with a vengeance.
More to this subject, much like the unsubstantiated claims of Ford and the other women (not bothering to look up their equally unworthy identities) have negative consequences for real rape victims, those who take advantage of their academic standing, deservedly or not, undermine the credibility of their fields of study, and unfortunately the world being what it has always been, to a larger extent the value of academic scholarship in general. This clown is really screwing academia itself. The only question is, is it intentional?
Michael LaBossiere says
The drunk part is relevant because Kavanaugh was alleged to be drunk at the time. It is certainly worth arguing that if he did it, then his age and being drunk would mitigate his accountability. Everyone knows people who were drunken fools doing bad things as kids who got it together and became good people; so the moral question is how accountable should anyone be for such misdeeds in their drunken youth?
I’m treating Kavanaugh as I would anyone in such a situation: the claim about him has to be assessed in terms of the credibility of the sources, the credibility of any witnesses and the credibility of available evidence. As it stands, it is his credibility against her’s (although Judge should testify under oath). There are apparently no other witnesses and no available evidence.