Author: Michael LaBossiere

Academic freedom is usually taken as being more than merely the right to freely make specific claims in that it is supposed to provide broad protection in such matters as selecting books, developing curriculum and so on. It is also supposed to protect professors (tenured professors at least) from being unjustly fired or punished for expressing their views. It is, of course, not a license to act without consequences.

While defending academic freedom is often seen as leftist, conservatives have accused the left of restricting the academic freedom of conservative thinkers. While this claim is often hyperbole, there have been past incidents of faculty being punished for holding views that are regarded as politically incorrect. For example, Mike Adams was apparently once denied promotion to full professor based on his political engagement rather than a lack of qualifications. There were past proposals to replace academic freedom with academic justice.  While justice sounds good, the proposal was to substitute an ideological test in place of the general right. In short, academics could research what they wished, if it was consistent with the definition of “justice” in use. There were also proposals for trigger warnings, which also raised concerns about academic freedom. The right, in general, criticized such things and professed to favor freedom. As such, one might think that when they came into power, they would push for freedom.

One specific problem of academic freedom arises for state colleges and universities. While even for-profit schools receive money from the government, state schools receive funding as decided by the state legislature. While academic institutes, they are subject to the control of the state government.

Given that the state government is (in theory) acting in accord with the “will of the people” and that the schools are funded with state money, it is not unreasonable to believe that the state has the right to impose a degree of control over the schools. An important question is the extent to which the state should impose on academic freedom. As might be guessed, people answer this question based largely on their ideology.

As noted above, some of the loudest voices crying out for academic freedom were once on the right. Or rather, those crying out for freedom for certain views. When Republicans have power, they tend to pass laws that restrict freedom. For example, Florida’s state legislature has been busy reshaping the general education of the state schools. The law includes a ban on teaching “identity politics”, it forbids teaching that “systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States” but requires that humanities courses must include selections from the Western canon (even, for example, a GENED class on Japanese literature). And, of course, the Trump regime, which professes to love freedom, has been very busy intimidating universities to push them to conform to his will.

This view of freedom is not surprising. As Mill noted in his classic work on liberty, people rarely make decisions on liberty based on a consistent principle about what should be allowed and what should be restricted. Instead, people decide based on what they like and dislike. As such, it is hardly a shock that folks on the left and right praise freedom when it is protecting something they like while they are happy to restrict freedom when it involves something they dislike.

While the law is whatever those in power say it is, there is still the question of whether the state has the right to make such impositions. As noted above, one way to argue is that since the state funds them and they are public institutions, then the state government has the right to dictate to the universities in such matters as the content of their courses.

If this line of reasoning is good, then this would be a general principle and not one just limited to the Republicans wanting to purge “woke” content and DEI. So, if a state legislature passed laws forbidding teaching business courses or courses in religion, then that would be acceptable under this principle. It would also be acceptable for a law to be passed banning the teaching of Western history, Western values, anything that is seen as endorsing the patriarchy, and anything that is positive about white males and so on. That is, this principle would allow any state to impose any ideology onto the state schools.

Republicans would, one can infer, adamantly oppose to the ideology of their opposition setting the content for public schools. As such, it is probably fair to say that they do not have a general principle about the degree of state control over state schools but rather think that the schools should teach what Republicans like and not teach what they do not like—which is hardly a principle. In my own case, I follow a consistent principle of academic freedom and hence just as I oppose Florida mandating that GENED classes must not teach that “systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States”, I would also oppose a law that required GENED classes to teach this.

 

 

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Years ago, Azim Shariff and Kathleen Vohs had their article, “What Happens to a Society That Does Not Believe in Free Will”, published in Scientific American. This article considers the causal impact of disbelief in free will with a specific focus on law and ethics.

Philosophers have long addressed the general problem of free will as well as the specific connection between free will and ethics. Not surprisingly, studies conducted to determine the impact of disbelief in free will have the results that philosophers have long predicted.

One impact is that when people have doubts about free will they tend to have less support for retributive punishment. Retributive punishment, as the name indicates, is punishment aimed at making a person suffer for their misdeeds. Doubt in free will did not negatively impact a person’s support for punishment aimed at deterrence or rehabilitation.

While the authors did consider a reason for this, namely that those who doubt free will would regard wrongdoers as like harmful natural phenomenon that need to be dealt with rather than subject to vengeance, this view also matches a common view about moral accountability. To be specific, moral accountability is generally held to be proportional to the control a person has over events. To illustrate, consider the difference between these two cases. In the first case, Sally is speeding, texting, and sipping her latte. She doesn’t see the crossing guard frantically waving his sign and runs over the children in the crosswalk. In case two, Jane is driving the speed limit and children suddenly run directly in front of her car. She brakes and swerves immediately, but she hits a child. Intuitively, Sally acted in a way that was morally wrong—she should have been going the speed limit, and she should have been paying attention. Jane, though she hit the children, did not act wrongly, she could not have avoided the children and hence is not morally responsible.

For those who doubt free will, every case is like Jane’s: for the determinist, every action is determined and a person could not have chosen to do other than they did. On this view, while Jane’s accident seems unavoidable, so was Sally’s: Sally could not have done other than she did. As such, Sally is no more morally accountable than Jane. For someone who believes this, inflicting retributive punishment on Sally would be no more reasonable than seeking vengeance against Jane.

 However, it would seem to make sense to punish Sally to deter others and to rehabilitate Sally so she will drive the speed limit and pay attention in the future. Of course, if there is no free will, then we would not chose to punish Sally, she would not chose to behave better and people would not decide to learn from her lesson. Events would happen as determined—she would be punished or not. She would do it again or not. Other people would do the same thing or not. Naturally enough, to speak of what we should decide to do in regard to punishments would seem to assume that we can chose—that is, that we have some degree of free will.

A second impact that Shariff and Vohs noted was that a person who doubts free will tends to behave worse than a person who does not have such a skeptical view. One area where behavior worsens is that such skepticism seems to incline people to be more willing to harm others. Another area is that such skepticism also inclines others to lie or cheat. In general, the impact seems to be that such skepticism reduces a person’s willingness (or capacity) to resist impulsive reactions in favor of greater restraint and better behavior.

Once again, this makes sense. Going back to the examples of Sally and Jane, Sally (unless she is a moral monster) would feel remorse and guilt for hurting the children. Jane, though she would surely feel bad, should not feel moral guilt. This would certainly be reasonable: a person who hurts others should feel guilty if she could have done otherwise but should not feel moral guilt if she could not have done otherwise (although she certainly should feel sympathy). If someone doubts free will, then she will see her own actions as being out of her control: she is not choosing to lie, or cheat or hurt others—these events are just happening. People might be hurt, but this is like a tree falling on them, it just happens. Interestingly, these studies show that people are consistent in applying the implications of their skepticism to moral (and legal) accountability.

One important point is to consider what view we should have regarding free will. I take a practical view of this matter and believe in free will. As I see it, if I am right, then I am…right. If I am wrong, then I could not believe otherwise. So, choosing to believe I can choose is the rational choice: I am right or I am not at fault for being wrong.

I agree with Kant that we cannot prove that we have free will. He believed that the best science of his day was deterministic and that the matter of free will was beyond our epistemic abilities. While science has marched on since Kant, free will is still unprovable. After all, deterministic, random and free-will universes would all seem the same to the people in them. Crudely put, there are no observations that would establish or disprove metaphysical free will. There are, of course, observations that can indicate that we are not free in certain respects—but completely disproving (or proving) free will is beyond our abilities—as Kant contended.

Kant had a practical solution: he argued that although free will cannot be proven, it is necessary for ethics. So, if we want to have ethics (which we do), then we need to accept the existence of free will on moral grounds. The experiments described by Shariff and Vohs seem to support Kant: when people doubt free will, this has an impact on their ethics.

One aspect of this can be seen as positive—determining the extent to which people are in control of their actions is an important part of determining what is and is not just punishment. After all, we should not want to inflict retribution on people who could not have done otherwise or, at the very least, we would want relevant circumstances to temper retribution with justice.  It also makes more sense to focus on deterrence and rehabilitation more than retribution. However just, retribution merely adds more suffering to the world while deterrence and rehabilitation reduce it.

The second aspect of this is negative—skepticism about free will seems to cause people to think that they have a license to do ill, thus leading to worse behavior. That is clearly undesirable. This provides an interesting and important challenge: balancing our view of determinism and freedom to avoid both unjust punishment and becoming unjust. This, of course, assumes that we have a choice. If we do not, we will just do what we do and giving advice is pointless. As I jokingly tell my students, a determinist giving advice about what we should do is like someone yelling advice to a person falling to certain death—they can yell about what to do, but it won’t matter.

 

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As a philosopher, I became familiar with the notion of the modern political concept of privilege as a graduate student. This occurred sometimes in classes and sometimes when I was lectured by other students about my privileges as a white man. Lest anyone think I was exploiting my privileges, the lectures were always about my being a man and my general appearance of whiteness (I am only mostly white) as opposed to any misdeed I had committed. I was generally sympathetic to most criticisms of privilege, but I recognized that it is a fallacy to use a person’s membership in a privileged class as grounds for rejecting their claims. Back then, there was no handy phrase to check a member of a privileged class. Fortunately (or unfortunately) such a phrase emerged: “check your privilege!” Thanks to the victory of the right, this phrase is used less often these days. But as the right has been adept at adopting the tools of the left, I would expect them to have a variation on this to use against those who, in fact, lack privilege.

The original intent of the phrase was to remind someone making a claim on a political (or moral) issue that they are speaking from a position of privilege, such as being a male or straight. While it is most used against members of the traditional privileged classes (males, whites, the wealthy, etc.) it can also be employed against people of classes that are either privileged relative to the classes they are commenting on or in a different non-privileged class. For example, a Latina might be told to “check her privilege” for making a remark about black women. In this case, the idea is to remind the transgressors that different oppressed groups experience their oppression differently.

As might be imagined, some take issue with being told to “check their privilege.” In some cases, this can be mere annoyance with the phrase. This annoyance can have some foundation, given that the phrase can have a hostile connotation, and it can seem like a dismissive reply. But to be fair and balanced, it is no doubt exhausting arguing with the privileged and having a quick reply can save time and effort.

In other cases, the use of the phrase can be taken as an attempt to silence. Roughly put, “check your privilege” can be interpreted as “stop talking” or even as “you are wrong because you belong to a privileged class.” In some cases, people are interpreting the use incorrectly; the privileged are often very defensive and can, oddly, see themselves as the “real victims.”

Thus, the phrase can be seen as having two main functions (in addition to its dramatic and rhetorical use). One is as a reminder, the other is as an attack. I will consider each of these in the context of critical thinking.

The reminder function of the phrase is grounded in a real need to remind people of two common cognitive biases, namely in group bias and attribution error. In group bias is the tendency people have to easily form negative opinions of people who are not in their group. This bias leads people to see members of their own group more positively while seeing members of other groups more negatively. For example, a rich person might think that other rich people are hardworking while thinking poor people are lazy, thieving and inclined to use drugs. As another example, a woman might regard her fellow women as kind and altruistic while regarding men as violent, sex-crazed and selfish.

Given the power of this bias, it is worth reminding people about it, especially when their remarks show signs that this bias is likely to be in effect. Of course, telling someone to “check their privilege” might not be the nicest way to engage in the discussion and it is less specific than “consider that you might be influenced by in group bias.” But an insistence on “niceness” or “civility” is often a tool used to silence critics, so I understand why people would not be inclined to be “civil.” After all, “civil” can often be intended to mean “know your place” or “shut up.”

Attribution error is a bias that leads people to not appreciate that other people are as constrained by events and circumstances as they would be if they were in their situation. For example, consider a discussion about requiring voters to have a photo ID, reducing the number of polling stations and reducing their hours of operation. A person who is somewhat well off might claim that getting an ID and driving across town to a polling station on his lunch break is no problem—because it is no problem for him. However, for someone who does not have a car and is poor, these can be serious obstacles. As another example, someone who is rich might express the view that the poor should not be helped because they are obviously poor because they are lazy (and not because of the circumstances they face, such as being born into poverty).

Given the power of this bias, a person who seems to make this error should be reminded of this. But telling them to “check their privilege” might not be the most diplomatic way to engage and it is certainly less specific than pointing out the likely error. But, given the limits of social media, it might be a viable option when used in this context.

But using it to silence a person or to reject the person’s claim would not be justified. While it is reasonable to consider the effects of biases, to reject a person’s claim because of their membership in a class would be an ad hominen.  An ad hominem is a general category of fallacies in which a claim or argument is rejected based on some irrelevant fact about the author of or the person presenting the claim or argument. Typically, this fallacy involves two steps. First, an attack against the character of person making the claim, her circumstances, or her actions are made (or the character, circumstances, or actions of the person reporting the claim). Second, this attack is taken to be evidence against the claim or argument the person in question is making (or presenting). But such attacks are irrelevant to the person’s claim, whether it is a traditional ad hominem or a “check your privilege” attack.

 

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A longtime issue in college athletics has been whether college athletes should be paid. I heard debates over this when I was a college athlete and, decades later, I still hear them. One addition to the debate has been over branding deals, such as the use of likenesses in video games.

One classic argument is that in the big money sports (football and basketball) the athletes already receive compensation in the form of scholarships, coaching, medical care, etc. Given the cost of higher education, a full scholarship can be worth $27,000 a year or more.

Even athletes in the other sports (such as track, cross country, field hockey and volleyball) can receive compensation in the form of scholarships, coaching, and medical care—although they usually get much less than the star athletes in the big money sports.

Following this reasoning, it can be claimed that college athletes have always been paid—in that they receive valuable compensation for their contributions. In fact, college athletes have been recognized as being employees with the right to unionize. As such, the dispute is over the amount and nature of the desired compensation, which is a classic employee-employer dispute.

Obviously enough, the NCAA and colleges want to keep player compensation as low as possible, since the less the athletes are paid, the more everyone else gets to keep. However, the fact that they would rather not provide better compensation is not proof that athletes should not receive more. 

While the NCAA and colleges have been on board with specific sorts of compensation (such as scholarships), they have often been very draconian about college athletes receiving other benefits. Based on my own experience at road races, college athletes were forbidden from accepting gift certificates they won. While the NCAA and the college can license the likeness of a player for use in a video game, athletes were not allowed to share in the profits.  Because of these practices, most of the money made in college sports flowed to the NCAA and the colleges, rather than the athletes.

On the face of it, athletes should receive compensation commensurate with their contribution. For example, if a player’s likeness is licensed for use in a video game, they should receive a suitable percentage of that deal. As another example, if selling the TV rights to football games brings in millions of dollars, the players who appear on TV should get a proportional cut. Obviously, the value of what the players receive in terms of other compensation must be factored in as well as part of their pay.

In some cases, the athletes might have been receiving fair compensation. However, the star athletes in the big money sports were probably being exploited.  

Over the years, the main argument advanced by the NCAA and colleges for not providing commensurate compensation is based on the view that a college athlete should be an amateur who competes “for the love of the sport.”

This has some appeal. When I was a college athlete, I competed for that reason—I loved to race. I still do, although I am much slower.  In terms of compensation, I did get some shoe money and boxed lunches when we traveled. I understand the idea of the amateur athlete who is not sullied by crass commerce nor driven by greed.

Of course, the true amateur athlete who is unsullied by greed must also be in an amateur environment driven by the love of the sport. When I was a college athlete, I was in that situation. I competed in cross country and track, both of which are not big money sports. I also went to a division III school—so there were no athletic scholarships. The coaches at the college generally followed the same model that is usually seen at public high schools—they had a primary job at the school and coaching was secondary. For example, my first cross-country coach was also an exercise physiology professor. The football coach also taught classes. So, we were all amateurs competing for the love of the sport—although we did get those boxed lunches and the coaches got some pay.

When everyone is an amateur and the compensation is modest it makes sense to not pay athletes and to hold them to the standards of being an amateur athlete (versus being a paid professional). However, this is not the case with the big money sports at the big schools.

First, the top coaches enjoy truly impressive salaries. The top coaches can make millions each year.  Interestingly, the highest paid public employee in some states is a college football or basketball coach.

Second, college football is a multi-billion-dollar industry and college basketball brings in millions for the colleges and NCAA. While the players did get some of this in the form of scholarships and other compensation, the bulk of it goes to others. A cynical person might note that this is a good lesson for the student athletes: the workers do the work and others reap the profits.

Given the money involved, these college sports are not amateur in any meaningful sense and it is not defined by a love of the game. Rather, this is a big money industry in which those doing most of the work receive very little while very few benefit greatly from their efforts. In short, college sports mirror the larger society. The lie that was long used to avoid justly compensating athletes was that they are amateurs who are supposed to play for the love of the game. Thus, there has been an inconsistency between the reality of the situation and what is expected of the athletes.

There is the option to make the ideal a reality and recreate college sports as amateur sports played for the love of sport. This would require following the model of amateur athletics I mentioned above: minimal compensation for everyone, coaches who are professors (or staff) first, athletes who are students first, no big money deals, and so on. Some schools already follow this ideal, such as the school I attended.

There is also the option to accept that big money sports are professional sports, and they should follow that model: the big money remains, but the athletes are recognized for what they really are—professional athletes.

 

 

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The rise of social media created a new world for social researchers. One focus has been on determining how quickly and broadly emotions spread online. Over a decade ago, researchers at Beijing University found that rage spread the fastest and farthest online. Researchers in the United States found that anger was a speed leader, but not the fastest in the study: awe was even faster than rage. But rage was quite fast. As might be expected, sadness was a slow spreader and had a limited expansion.

This research helped explain how social media made the world worse. Rage tends to be a strong motivator and sadness tends to be a de-motivator. The power of awe was an interesting finding, but some reflection shows this does make sense—it tends to move people to want to share. IRL, think of people eagerly drawing the attention of strangers to things like beautiful sunsets, impressive feats or majestic animals.

In general, awe is a positive emotion, and it seems to be a good thing that it travels far and wide on the internet. Rage can be a mixed bag but has largely proven to be a negative influence.

When people share their rage via social media, they are sharing with an intent to express (“I am angry!”) and to infect others with this rage (“you should be angry, too!”). Rage, like many infectious agents, also has the effect of weakening the host’s “immune system.” In the case of anger, the immune system is reason and emotional control. Anger tends to suppress reason and lower emotional control. This makes people even more vulnerable to rage and susceptible to the classic fallacy of appeal to anger. This is the fallacy in which a person accepts anger as proof that a claim is true. Roughly put, the person “reasons” like this: “this makes me angry, so it is true.” This infection also renders people susceptible to related emotions (and fallacies), such as fear (and appeal to force).

Because of these qualities of anger, it is easy for untrue claims to be accepted far and wide via the internet. This is, obviously enough, the negative side of anger.  Anger can also be positive—to use an analogy, it can be like a cleansing fire that sweeps away brambles.

For anger to be a positive factor, it would need to be a virtuous anger (to follow Aristotle). Put a bit simply, it would need to be the right degree of anger, felt for the right reasons and directed at the right target. This sort of anger can mobilize people to do good. As a recent example, people were outraged by the actions of Trump’s ICE. In response, people protested and ICE started murdering citizens. This caused more protests and the Trump regime changed its tactics.

The challenge is, of course, to distinguish between warranted and unwarranted anger. This is a serious challenge—as noted above, people tend to feel that they are right because they are angry rather than inquiring as to whether their rage is justified or not.

It is wise to follow the advice of Aristotle and consider whether the anger is at the right people, at the right time, for the right reasons and to the right degree. But anger, ironically, makes it hard to engage in such assessment.

 

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As I tell my students, the metaphysical question of personal identity has important moral implications. One scenario I use is a human in a persistent vegetative state. I say “human” rather than “person”, because the human body might no longer be a person. For a metaphysical dualist,  if a person is her soul and the soul has abandoned the shell, then the person is gone.

 If the human is still a person, then it seems reasonable to believe they have a different moral status than a body that that was once a person (or once served as the body of a person). This is not to say that a non-person human would have no moral status—I do not want to be misinterpreted as holding that view. Rather, my view is that personhood is a relevant factor in the morality of how an entity should be treated.

Imagine a human in that vegetative state. While the body is kept alive, people do not talk to the body and no attempt is made to entertain the body, such as playing music or audiobooks. If there is no person present or if there is a person present who cannot sense anything, then this would seem morally acceptable—after all it would make no difference whether people talked to the body or not.

There is also the moral question of whether such a body should be kept alive—after all, if the person is gone, there would not seem to be a compelling reason to keep an empty shell alive. To use an extreme example, it would seem wrong to keep a headless body alive just because it can be kept alive. If the body is no longer a person (or no longer hosts a person), then this would be analogous to keeping a headless body alive.

But, if despite appearances, there is still a person present who is aware of what is going on around them, then the matter is morally different. In this case, the person has been isolated—which is very bad for a person. They have, in effect, been sentenced to solitary confinement.

In terms of keeping the body alive, if there is a person present, then the situation would be morally different. After all, the moral status of a person is different from that of a body of merely living flesh. The moral challenge, then, is deciding what to do.

One option is, obviously enough, to treat all seemingly vegetative (as opposed to clearly brain dead) bodies as if the person was still present. That is, the body would be accorded with the moral status of a person and treated as such.

This is a morally safe option—it would presumably be better if some non-persons get treated as persons rather than risk persons being treated as non-persons. That said, it would still seem both useful and important to know.

One reason to know is purely practical: if people know that a person is present, then they would presumably be more inclined to take the effort to treat the person as a person. So, for example, if the family and medical staff knew that Bill is still Bill and not just an empty shell, they would, one would hope, tend to be more diligent in treating Bill as a person.

Another reason to know is both practical and moral: scenarios arise in which hard choices must be made, knowing whether a person is present is critical. That said, given that one might not know for sure that the body is not a person anymore it could be correct to keep treating the alleged shell as a person even when it seems likely that they are not. This brings up the obvious practical problem: how to tell when a person is present.

Most of the time we judge there is a person present based on appearance, using the assumption that a human is a person. Of course, there might be non-human people and there might be biological humans that are not people (living headless bodies, for example). A somewhat more sophisticated approach is to use Descartes’s test: things that use true language are people. Descartes, being a smart person, did not limit language to speaking or writing—he included making signs of the sort used to communicate with the deaf. In a practical sense, getting an intelligent response to an inquiry can be seen as a sign that a person is present. Or that the LLM is working well.

In the case of a body in an apparent vegetative state, applying this test is a challenge as this state is marked by an inability to show awareness. In some cases, the apparent vegetative state is exactly what it appears to be. In other cases, a person might be in “locked-in-syndrome.” The person is conscious but can be mistaken for being minimally conscious or in a vegetative state. Since the person cannot, typically, respond by giving an external sign some other means is necessary.

One breakthrough in this area is due to Adrian M. Owen. He found that if a person is asked to visualize certain activities (playing tennis, for example), doing so will trigger different areas of the brain and this activity can be detected. So, a person can ask a question such as “did you go to college at Michigan State?” and request that the person visualize playing tennis for “yes” or visualize walking around her house for “no.” This method provides a way of determining that the person is still present with a reasonable degree of confidence. Naturally, a failure to respond would not prove that a person is not present, the person could still remain, yet be unable (or unwilling) to hear or respond.

One moral issue this method can help address is that of terminating life support. “Pulling the plug” on what might be a person without consent is morally problematic. If a person is still present and can be reached by Owen’s method, then this would allow the person to agree to or request that they be taken off life support. Naturally, there would be practical questions about the accuracy of the method, but this is distinct from the more abstract ethical issue.

It must be noted that the consent of the person would not automatically make termination morally acceptable—after all, there are moral objections to letting a person die in this manner even when the person is clearly conscious. Once it is established that the method adequately shows consent (or lack of consent), the broader moral issue of the right to die would need to be addressed.

 

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Not surprisingly, most sexual assaults on college campuses involve intoxication. One reason is obvious: an intoxicated person is vulnerable. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on morality.

From an oversimplified moral standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus is on the impact of intoxication on a person’s ability to consent. To be a bit abstract, the philosophical concern is about consent agency, which is the capacity of the person to give consent. What counts as consent will vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree about this. However, it should suffice for the purposes of this brief essay to go with an intuitive view of consent which involves a person being able to understand the situation and consciously agree. Setting aside the complexities, I now turn to intoxication.

Intoxication is a proportional impediment to agency of consent: the drunker a person gets, the less capable they become of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree. When the person has no consent agency at all, having sex with that person would be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the matter of sorting out at what point consent agency is lost. As with all such things, there will be gray areas between paradigm cases and these areas will be the most problematic. I will get the easy paradigm cases out of the way first.

One paradigm case is when the perpetrator intentionally intoxicates victim using a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so they can take my wallet when I am unconscious, they have committed theft. This seems indisputable.

Another paradigm case is when the perpetrator is an opportunist: he does not drug his intended victim but finds someone who has become incapacitated. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out after consuming too much Gatorade and someone takes my wallet, they have committed theft. Naturally, I could be chastised for being so careless—but this would not change the crime.

A third paradigm case is when a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. Now it is time to explore the grey territory between being unimpaired and being incapacitated. Somewhere in this large territory lies the point at which a person loses their consent agency and is incapable of actual consent.

One problem with finding the boundary at which consent agency ends is that it can be reached well before a person loses the capacity to appear to consent. For example, an intoxicated woman might say “yes” to a request for sex or initiate the act and then actively participate. Despite the appearance of consent, the woman might be incapable of consent—that is, she can engage in consent behavior but has lost the capacity to consent.

This creates a moral and practical problem: how can a person tell when another is capable of consent behavior without being able to consent? This is important for the person interested in sex as well as those involved in any legal proceedings that might follow.

It might be countered that if a person can engage in consent behavior, the person still has agency of consent. That is, apparent consent is actual consent. This is appealing in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a true “yes” or merely “yes” behavior without consent. It also would provide a basis by which witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. On this view, there is a presumption that behavior indicates agency.

This view does have appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted incoherently into the drive through). When I regain consciousness and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

It is worth noting that a decent person would certainly consider apparent intoxication and from ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would not seem to be theft. Likewise, if a someone seems drunk but making it clear they want to have sex, the decent thing is to refuse, escort them safely home and perhaps even guard them from the less virtuous if they pass out. However, if someone accedes to the request, it might seem odd to claim that rape had occurred. But some might see it, intuitively, as rape.

One might also argue that it is better to err on the side of caution and assume a person who is impaired to almost any degree has lost the capacity for consent, regardless of their behavior. But this might seem too low of a bar and there is the practical problem of recognizing low levels of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

The last matter I will consider is when both parties are intoxicated. In some college sexual assault hearings, the man has countered by asserting that since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is sound. If sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they raped each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that makes the person accountable for their actions. As with the agency of consent, this can be impaired in varying degrees or eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability. This is one of the many reasons children should not be charged as adults—they are not adults.

Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting another person. Thus, if two people are both too intoxicated to consent, they are also too intoxicated to be culpable.

The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.  If this is the case, if people have sex while both are adequately intoxicated, they are raping each other.

 

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In my previous essay, I presented some groundwork and stage setting for the discussion to follow. In this essay I will look at consent.

Intuitively, what makes some activities wrong (and often criminal) is lack of consent. Theft, for example, is taking property without the owner’s consent. Kidnapping, as another example, is transporting a person without consent. In the case of rape, the activity is sexual in nature (to be deliberately vague) and occurs without consent. While these simple definitions have appeal, the matter of sorting out what counts as consent and what constitutes acting without consent is complicated. To focus the discussion, I will revisit a controversial example.

Years ago, conservative intellectual George Will triggered a firestorm among liberal columnists and bloggers with his June 6 column. The claim that triggered the most outrage was his assertion that “when they make victimhood a coveted status that confers privileges, victims proliferate.”

Some of those attacking Will interpreted him as asserting that women want to be raped. While some awful people believe that, this reading is probably not Will’s actual position. Another interpretation, which is supported by the rest of his column, is that some women will embrace a broad definition of “rape” and interpret their experiences to match that definition. The motivation, at least as it seemed to Will, is to gain a “coveted status” that “confers privileges.” My concern here is not with whether Will is correct. Rather, I want to  re-examine what he takes as an example of how one becomes a member of this “privileged” class of victims.

Will uses an example taken from a report about Swarthmore College. In 2013, a woman was in her room with a man “with whom she’d been hooking up for three months”:

 

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

 

As Will notes, six weeks later the woman reported that she had been raped. Will seems to hold that the woman was not actually raped and decided to join the “privileged” class of victims by redefining her experience as rape. Others might claim that she had been “brainwashed” by feminist ideology or political correctness. Setting aside the topic of motivation, there is an important question of whether the incident was rape. As Will showed, those embracing a specific form of conservative ideology presumably consider it to not be rape.

On the face of it, it is easy to argue the incident was rape. While the man did not threaten or use force, he did engage in a sexual act after she had said that she did not want to have sex with him. Sex without consent is rape and thus she was raped.

To use an analogy, suppose for a few months I had allowed a friend to use my truck, but then we decide (or so I think) that this will no longer be part of our relationship. She comes to borrow my truck and I basically say “No, I don’t want to.” She stops but then returns, takes the keys and drives away. She has engaged in theft by taking my truck without consent. Our previous agreement and behavior are not relevant, since we ended the agreement.

While this view has merit, it is worth considering an alternative. One complication is that consent is a matter of communication and communication can be imperfect. This creates the practical (and moral) problem of sorting out when consent has been given, when it has not, and when (and how) a person should know the difference.

In the specific case, the two parties had been having consensual sex (“hooking up”) for three months. On the face of it, once a relationship is established then it is not unreasonable to accept an assumption of consent. To use an analogy, before COVID moved the game online, I used to keep beer and snacks on hand for my Sunday D&D game. My longstanding friends did not need to explicitly ask permission to get the beer or snacks, since there is a reasonable assumption that they have standing permission. I would, in fact, have an obligation to tell them if certain beers or snacks were off limit—which would then obligate them to not take the specified beer or snacks.

In the case at hand, let it be assumed that the woman changed the relationship from “hooking up” and ended the sexual aspect. This would remove the assumption of consent (unless otherwise informed). As such, the man could no longer assume that she was consenting unless he was told otherwise.

The woman also notes that she “basically” told him she didn’t want to have sex with him—which would show her lack of consent. The man should have left it at that and not tried again.

However, a devil’s advocate might raise certain points. The first is that the brains of young people are different from adult brains, especially in judgment and impulse control. The second is that the desire for sex can be strong and even the prospect of sex impedes rational judgment. The third is that people in general and young people in particular are bad at communication. The fourth is that communication is not merely a matter words—that consent or lack thereof can also be conveyed by actions. Such a devil’s advocate might allege, in his devilish way, that the young man, driven by basic biological desires and impeded judgment, decided to make another attempt at sex and wrongly interpreted, perhaps due to his immature brain and lack of communication skills, her lack of action as consent. That is, he honestly believed that he had consent and had not raped her. She might have also shared this belief for six weeks.

The obvious reply is that none of the devil’s advocate’s claims matter: what matters is that the woman said that she did not want to have sex. Thus, it was sex without consent. But the devil might continue and offer an analog.

Suppose my friend Sally likes driving trucks and hates to drive alone. After we have been friends a while, I agree to let her drive my truck and agree to go with her. This goes on for three months and I find I have gotten tired of this aspect of our relationship and tell her so. As far as I can tell, she agrees.

Then I invite her to come over and sit in my truck. After a while, she reaches for the keys and I say “no, I am not letting you drive and I am not riding with you.” Rebuffed, she pulls her hand back. But, a few minutes later she is after the key again. I do nothing. She takes the key and puts it in the ignition. I say and do nothing. She starts the truck and takes me along for the ride.  I am tired, so I just sit back and let her drive. When she gets back, I take the key out of the ignition. Six weeks later I call the police and accuse her of kidnapping me and stealing my truck.

Theft is taking property without consent and kidnaping is transporting a person without consent. If the woman did not consent in the original situation, then I did not consent in the analogical situation. If the man was a rapist, then Sally was a thief and a kidnapper. However, I suspect that people would react to my claim that Sally kidnapped me and stole my truck by saying that I should have said something when she reached for the keys a second time—by letting her simply take them and drive away with me without another word would seem to show I consented. After all, her reaching for the key and so on could be seen as requests for consent—I could have said “no.” Of course, it could be countered that this view is wrong: Sally is now a kidnapper and truck thief because of my original statement which withheld consent.  After all, it might be argued, saying “no” once suffices—and until an explicit, verbal “yes” is given the original “no” is in place. One should not need to repeatedly say “no” just to maintain the “no”, especially when it comes to sex.

Some might reject the truck analogy while holding the original case was rape. One avenue of reply is to argue that the requirements of consent differ in different contexts, which seems reasonable—the challenge is working out the rules of consent. For example, one could argue that sex always requires affirmative consent each time it is initiated and that if consent is withdrawn it must be explicitly restored.

The example considered in this essay did not explicitly involve drinking—however, many sexual assaults on campus do. In the next essay the moral impact of intoxication will be considered.

 

 

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A basic lesson of philosophy is that terms need to be properly defined. Oversimplifying a bit, a good definition needs to avoid being too narrow and too broad. A definition that is too narrow leaves out things that the term should include. One that is too broad allows in too much. A handy analogy for this is the firewall that your computer should have: if it is doing its job properly, it lets in what should be allowed while keeping attacks out. An example of a definition that is too narrow would be to define “art” as “any product of the visual arts, such as painting and sculpture.” This is too narrow because it leaves out literature. As an example of a definition that is too broad, defining “art” as “that which creates an emotional effect” is defective since such things as being punch in the face or winning the lottery would be art. A perfect definition would be like perfect security: all that belongs is allowed in and all that does not is excluded.

While people have a general understanding of the meaning of “rape”, the usual view covers what my colleague Jean Kazez calls “classic” rape—an attack that involves force, threat or coercion. As she notes, another sort of rape is “date” rape—a form of assault that, on college campuses, often involves intoxication rather than overt violence.

 In many cases survivors of sexual assault do not classify the assault as rape. According to Cathy Young, “three quarters of the female students who were classified as victims of sexual assault by incapacitation did not believe they had been raped; even when only incidents involving penetration were counted, nearly two-thirds did not call it rape. Two-thirds did not report the incident to the authorities because they didn’t think it was serious enough.”

In some cases, a person changes their assessment and re-classify the incident as rape. For example, a woman who eventually reported being raped twice by a friend explained her delay on the grounds that it took her a while to “to identify what happened as an assault.”

The fact that a person changed her mind does not, obviously, invalidate their claim. However, there is the question of what is a good definition of an extremely vile thing. After all, when people claim there is an epidemic of campus rapes, they point to statistics claiming that 1 in 5 women will be sexually assaulted in college. This statistic is horrifying, but it is still reasonable to consider what it means.

One problem with inquiring into the statistics and examining the definition of “rape” is that this can be an ideological issue for some people. For some, “rape” is broadly construed and to raise even rational concerns about the broadness of the definition is to invite accusations of ignorant insensitivity (at best) and charges of misogyny. For some on the right, “rape” is very narrowly defined (including the infamous notion of “legitimate” rape) and to consider expanding the definition is to invite accusations of being woke or a radical feminist man hater.

As the ideological territory is staked out and fortified, the potential for rational discussion is proportionally decreased. In fact, to even suggest that there is a matter to be rationally discussed (with the potential for dispute and disagreement) might be greeted with hostility. After all, when a view becomes part of a person’s ideological identity, the person tends to believe that there is nothing left to discuss and any attempt at criticism is both automatically in error and a personal attack.

However, the very fact that there are such distinct ideological fortresses indicates a clear need for rational discussion of this matter and I will endeavor to do so in the essays that follows. While this is a subject I wrote on back in 2014, the rise of the manosphere and the misogynistic right has pushed me to re-visit this topic.

 

 

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Back in 2014 Michelle Goldberg published a thoughtful essay on the campus rape crisis in the Nation. As one would suspect, the crisis persists and under the Trump regime it might worsen as the new rules are alleged to protect the accused more than the survivors.

When a student is alleged to have sexually assaulted another student, the assault can be reported to the police or brought to the attention of the college (or both). For legal (and moral) reasons, colleges should not ignore such reports.

While colleges vary, it is common practice for colleges to handle allegations of sexual assault like academic misconduct hearings: a hearing is held with a panel composed of faculty members and administrators. Since the panel is not a court of law, it cannot impose criminal or civil penalties as an actual court could. Rather, the panel typically decides whether the accused student should be subject to disciplinary action, with the highest penalty usually being expulsion. As might be imagined, there are some obvious problems with this approach.

The first is a practical problem: while many schools do have their own police forces, faculty and administrators are generally not trained to investigate and judge sexual assaults. In my own case, I am a philosophy professor, not a detective, lawyer, or CSI professional. I would, if I was assigned to such a panel, do my best—just as a detective or lawyer somehow assigned to teach my class would presumably do their best.

There seem to be two main solutions to this problem. One, which seems the most sensible, would be for colleges to cede authority over these crimes to the legal system. That is, the role of the college would be to assist in reporting the crime to the police. Naturally, the college can also have an important role in providing support. There is, however, the concern that such crimes are not always properly addressed by the authorities.

The other would be for the college to ensure that those handling the incidents are trained professionals. This could be done by hiring such professionals or by training faculty and administrators to handle such cases. This would run into the practical concern about cost.

The second is a practical problem with a moral component. A college has a vested interest in protecting its reputation and protecting itself legally and financially. In a practical sense, this leads to a conflict of interest that could influence the rulings of a panel. In a moral sense, this can lead to justice not being done.

As before, there seem to be two solutions to the problem. One is to remove the handling of such cases from colleges. The other is to take steps to ensure that such internal panels act for the sake of justice rather than trying to protect the reputation of the college. I would say that the former option is the better choice.

The third is a moral problem with two aspects. One aspect is that survivors sometimes report that a college’s handling of their situation is yet another violation—a traumatic and harmful experience rather than professionally conducted justice. Obviously, subjecting someone to such an awful experience is morally wrong. The second aspect is that alleged perpetrators sometimes report that the college’s handling of the situation is a kangaroo court devoid of due process. While these might seem inconsistent, the experience could be both a trauma for the accuser and a kangaroo court for the accused.

Once again, there would seem to be two solutions. One is to have such cases handled by the actual legal system. There is, however, the problem that it is not uncommon for the legal system to handle sexual assault cases badly, which is yet another matter of moral concern and a serious problem. Some have even argued that colleges should continue to handle such cases because the legal system has failed so badly. That is, colleges might be bad, but they are sometimes better than the legal system. This points to the need to address the legal system—there is little sense in handing off such cases to a system that is no better or even worse.

The second is to rework the college system to try to ensure that it operates with proper respect while also ensuring that the alleged perpetrators are given a fair hearing. This would prove challenging—but it is a challenge that must be met if colleges are to continue in this role. If the legal system is doing a poor job, then it would be even more important for colleges to revamp their systems.

The third is a moral problem with legal aspects. As many critics of the current system have noted, there is the moral and legal concern with the basis for the college’s authority to handle these cases. As the usual argument goes, colleges do not handle cases in which a student murders another student—that is turned over to the police. By analogy, the same should apply to sexual assault—which is a crime. While a college does have academic authority over students as well as a degree of disciplinary authority, a college would seem to lack the legal and moral sovereignty needed to claim authority over a serious crimes (even if it had the resources and competence to run its own legal system). As such, a college would seem to be overreaching its authority. That said, there can still be a legitimate role for colleges to play in such matters.

While a college should not have the authority to impose criminal (or even civil) punishments on students, it does have some legitimate authority. A college should have a clearly defined sphere of authority based on the agreement between the student and the institution, as spelled out in the rules and policies of the college. The college also has the legitimate authority to impose certain penalties within a very limited sphere. The outer limit of these penalties is, of course, expulsion from the university.

Such authority is intended to allow colleges to some control over student behavior—after all, without the capacity to punish, authority means little. There is also the purpose of maintaining a safe and non-threatening learning environment. This is what justifies punishing students who disrupt this environment. In some cases, maintaining this environment can require expelling students.

Because of this legitimate function, a college can justly claim the right to hold a hearing for a student accused of sexual assault. However, this should not be in place of a criminal trial. Rather, it should be in addition to the criminal trial. The purpose of the college hearing would be to determine whether the alleged perpetrator should be, in addition to whatever punishment imposed by the legal system, subject to discipline by the college.

While it might be tempting to insist that an alleged perpetrator who is found innocent by a court of law should also be exempt from college discipline, it must be remembered that the requirements of a criminal court are (supposed to be) very rigorous, with an assumption of innocence and a standard of proof set at beyond a reasonable doubt.

It can be argued that the standard of proof for a college disciplinary hearing should be lower than that of a criminal court (as civil courts have a lower standard of proof). After all, the standard should be higher when a person might spend years in jail as opposed to being disciplined by a college. For example, an incident might be such that it seems reasonable to believe that something bad occurred, yet the evidence is not enough to establish proof beyond a reasonable doubt. In such a case, an alleged perpetrator might avoid jail yet perhaps be justly expelled from college.

If this view is accepted, then there are the practical and moral problems of determining the standards of evidence and the appropriate punishments. Some colleges accept a weak standard—that of “more likely than not.” That is, if the panel members  believe that it is more likely that the alleged perpetrator committed the misdeed than did not, then the person is guilty. As might be imagined, some critics see it as far too weak and in stark contrast with the usual principle that it is better for the guilty to go unpunished than for the innocent to be unjustly punished.

There is also controversy over punishments.  It could be argued that even the worst punishment that a college can offer (most likely expulsion) would not be enough. While this might be true, it would not be a good reason to grant colleges more power to punish—after all, if the punishments were sufficiently severe, then the standards would need to be equally high. It can also be said that some punishments, such as expulsion, would be too harsh given the weak standard.

It must be noted that sorting out the standard and the punishments is distinct from the issue of whether a college has legitimate authority to discipline students accused of sexual assault. A college has the authority to impose disciplinary action even on a student found not guilty by a criminal court—much as a civil court can impose a penalty on someone found not guilty by a criminal court. However, I have not given sufficient thought to the standard to be used and the punishments that would be just. It might be the case that the punishment should be linked to the standard, the weaker the standard, the weaker the punishment.

It can also be argued that there is behavior that is not covered by the law but can be justly covered by a college’s policies. For example, cheating on tests is usually not a criminal offense, but it does provide grounds for discipline in a college setting. Likewise, some sexual behavior might not be considered criminal yet still be legitimately regarded as problematic enough to warrant discipline from a college. That is, the behavior is not illegal, but not tolerable behavior for a student. To use an analogy, some colleges have dress codes that forbid attire that would not violate the laws relating to public indecency.

To close, colleges should obviously not be handling criminal cases; these should be turned over to the police and the actual legal system. However, colleges can legitimately hold hearings on allegations of sexual assault and subject students to disciplinary action up to and including expulsion. There are, however, important practical and moral considerations that must be addressed and these include:

 

  • Ensuring the competence and impartiality of the college panel members conducting the investigation and hearing.
  • Ensuring that the standard of proof adopted (such as “more likely than not”) is just.
  • Ensuring that the punishments are just.
  • Ensuring that the applications of the standards and punishments are just.
  • Ensuring that both the alleged perpetrator and purported victim are treated with respect and get due process.

 

If these considerations can be properly addressed, then such a system can be legitimately regarded as just—at least within the specific context.

 

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