anotherpanacea

In a previous post, I argued deception robbed sexual and marriage partners of their capacity to grant informed consent:

attempts to reduce consent to the simple act of saying “yes” actually ignore the ways in which fraudulently representing oneself may be coercive. We can hate the bigotry and prejudice that make the lies seem necessary without embracing deception.

I still think this is true, in principle. I believe that a person’s bodily inviolability is important enough that we should all be able to set the rules for who touches us and how, and that it’s wrong to violate someone’s rules for sexual touching, whether through force or deception. This same version of informed consent is why we punish fraud, and we should protect a person’s sexual autonomy more strictly than we protect their finances. Even bigots and transphobics have a right to this kind of protection.

However, something can be morally wrong without being legally wrong, and even legal harms come in degrees. Deception in a marriage could be grounds for annulment or for divorce, but annulment is much more serious than divorce, it voids the marriage itself as if it had never happened. Having sex with someone under false pretences can be a tort or a crime, and as a crime, it can be a misdemeanor or a felony. So just establishing that a wrong has occurred is only the start of the question: perhaps the more important question is adjudging the degree of wrongness and developing an equitable, proportionate punishment. This is the question of remedies: if something is wrong, what will make it right?

Looking further at the two cases, it now seems clear to me that the punishment is disproportionate and inequitable. Consider the case of Nikki Araguz, who allegedly misled her husband about her birth-gender. The problem here is that Araguz didn’t have the option of honesty, at least with regard to the state of Texas. Sex changes are not recognized there, which means that the Araguz marriage would be voided or annulled merely by the revelation that two people born male had been married. It’s one thing to suggest that the deception might have been grounds for an at-fault divorce: it’s another thing to say the marriage never existed, and should never have existed,  in the first place. This robs Thomas Araguz of the right to consent, given full information. That’s clearly more unjust than a minor deception about his wife’s birth-gender.

A similar problem arises with the case of Sabbar Kashu. Certainly, he acted wrongly, and to my mind he is guilty of at least a civil tort… battery, for instance, is the tort of unwanted touching, and if he had been honest, his touch would (apparently) have been unwanted. Rape-by-deception is not a new crime, in Israel:

In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.

High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a “person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him.”

The precedent here has nothing to do with ethnicity or religion, and it seems reasonable enough, but again, even bigots have a right to bodily inviolability. However, a commenter at PrawfsBlawg notes that it’s not in keeping with the English common law tradition, which certainly doesn’t restrict Israeli jurists, but often drives American assumptions about justice:

At common law, fraud in the inducement, as occurred here, could not be grounds for rape, while fraud in the factum (e.g., doctor tells woman he is placing a medical instrument inside her during a pelvic exam but it is actually his penis) could. As long as the woman knew she was having sex, it was not rape, even if she was duped. The sole exception was where a woman was defrauded into thinking she was having sex with her husband. The theory, apparently, was that sex outside of marriage itself was a crime (adultery or fornication, depending on whether the parties were married to others), so that the woman, being a willing participant in one crime, could not claim a different crime occurred — sort of an “unclean hands” doctrine. See Anne M. Coughlin, Sex and Guilt, 84 Va. L. Rev. 1 (1998). Thankfully, we have mostly rejected that premise. However, there is still an unsettling “slippery slope” aspect of recognizing rape based on a fraud-in-the-inducement theory.

Distinguishing “inducement” from “factum” does seem like a reasonable way to proceed. It also addresses my troubled analogy with a rapist who uses an unloaded gun as a threat. But the Israeli practice could also work, so long as remedies and punishments are equitable. Here, they don’t seem to be: in addition to TWO YEARS of house arrest with an ankle tracker, Kashu now faces eighteen months imprisonment, for a crime that usually is punished as a slap on the wrist: a suspended sentence and time served.

Added to this, a lot of the news coverage has ignored that this case started as a traditional rape case. Andrew Sullivan quotes a reader:

A point which is rarely mentioned in the coverage of the “rape by deception” case – either by Israeli or foreign media – is that the case started out as a regular rape case. The woman claimed she was forcibly raped by Kashour. Once on the stand, however, the defense demolished her story and she admitted she lied and that they had consensual sex. She admitted that after learning Kashour lied to her, she felt humiliated and went to the police. It was at that point the prosecution came up with the plea bargain. A normal court would have just acquitted Kashour, but this court decided to convict.

Several further points:

1. If the woman had told the true story to the police in the first place, there would have been no trial, not to mention any conviction.

2. Kashour has no earlier convictions. In another “rape by deception”" case, which involved a lesbian masquerading as a man in order to have sex with women, she received only six months of suspended sentence. Kashour got 18 months of incarceration.

3. One of the three judges is Moshe Drori, who was embroiled in a scandal last year, when he refused to convict a very well connected yeshiva boy who admitted – and was filmed – running over a security guard with his vehicle. The security guard was an Ethiopian woman. Drori, a Jewish Orthodox, forced the guard to accept the apology of the yeshiva boy, and then invoked a judgment by 12th century scholar Maimonides (I shit you not), which says once an apology is accepted by the victim, the case is closed. And he closed the case. He is apparently a Maimonidas affectionado. The case was overturned in the Supreme Court, and this schtick cost Drori his chance at becoming a Supreme Court justice. Let’s say that a non-Jew masquerading as a Jew won’t stand much of a chance in the court of Judge Drori.

That’s neither equitable or proportionate. I do suspect there’s room here for a civil tort claim of some sort: if not battery, than intentional infliction of emotional distress. But not three-and-a-half years of detention and imprisonment.

• Biological Altruism

Where human behaviour is concerned, the distinction between biological altruism, defined in terms of fitness consequences, and ‘real’ altruism, defined in terms of the agent’s conscious intentions to help others, does make sense. (Sometimes the label ‘psychological altruism’ is used instead of ‘real’ altruism.) What is the relationship between these two concepts? They appear to be independent in both directions, as Elliott Sober (1994) has argued. An action performed with the conscious intention of helping another human being may not affect their biological fitness at all, so would not count as altruistic in the biological sense. Conversely, an action undertaken for purely self-interested reasons, i.e., without the conscious intention of helping another, may boost their biological fitness tremendously.

Sober argues that, even if we accept an evolutionary approach to human behaviour, there is no particular reason to think that evolution would have made humans into egoists rather than psychological altruists. On the contrary, it is quite possible that natural selection would have favoured humans who genuinely do care about helping others, i.e., who are capable of ‘real’ or psychological altruism. Suppose there is an evolutionary advantage associated with taking good care of one’s children — a quite plausible idea. Then, parents who really do care about their childrens’ welfare, i.e., who are ‘real’ altruists, will have a higher inclusive fitness, hence spread more of their genes, than parents who only pretend to care, or who do not care. Therefore, evolution may well lead ‘real’ or psychological altruism to evolve. Contrary to what is often thought, an evolutionary approach to human behaviour does not imply that humans are likely to be motivated by self-interest alone. One strategy by which ‘selfish genes’ may increase their future representation is by causing humans to be non-selfish, in the psychological sense.

• Towards a Philosophical Account of Explanation in Behavioral Genetics

We need to emphasize that the rough schematic quasi-functionalist approach, as borrowed and modified from the philosophy of mind, stands in contrast with a standard functional analysis found typically in biology.  Functional analysis in biology ends with identifying particular functions for biological items in specific contexts with respect to particular goals.  In the absence of a relevant biological goal or end there cannot be a function.  The case with genes, however, seems importantly different.  While it is reasonable to assign functions to certain activities of certain genes in terms of bringing about certain states which would be needed to accomplish certain biological goals, it seems most unlikely that every single human gene and every active combination thereof equally has a function in this sense.

Thus, one can speak of the “functional role” of a set of genes or of a “functionalist account” of some specific genetic activity without thereby being committed to finding a corresponding distinct biological function which that activity carries out.  For example, it seems likely that there is a set of genes which do have the function of enabling speech, as speech is clearly an important element for normal human functioning, and, given our evolutionary history, it has been important for humans to have it.  But, although there also seems undoubtedly to be a genetic contribution, it also seems, so far as we now know, unlikely that the correspondingly involved set of genes would have the function of creating a voice of a specific quality, such as a first tenor voice.  There need not be a specific function for every distinct functional role.

• Is Kant’s Moral Psychology Implausible?

…what Kant was trying to do was, precisely, to (1) figure out how we ought to act, and (2) give the conditions of possibility for so acting. And the problem with the “ought implies can” principle is that either you base your moral philosophy entirely on moral psychology (people want x & y, therefore they should do p & q; alternatively, people have the psychological traits a & b, therefore they should do or can be expected to do p & q), or you figure out your morality independently of empirical data. Only the second approach allows you to say what we ought to do, rather than just what we should do, or what it would be best for us to do given what we are like as natural beings. And, in fact, you can only figure out what we oughtto do by refusing to start out with how we are by nature. And this position becomes more tenable still, I think, if you ask yourself why we should reject psychologism in mathematics and logic, but maintain it with regard to moral philosophy. (Imagine: “Some philosophers claim that the square root of 2 has a determine value, regardless of whether human beings can calculate it in their head. I maintain that to have a determinate value is to have a value determined by actual human capacities.”)

• If you lie about your ethnicity in order to procure consent for sex, is that rape?

Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left.

• If you lie about your birth-gender in order to get married, should it be annulled?

The family of a Wharton firefighter who died battling a massive egg farm blaze is fighting to keep his widow from receiving death benefits, arguing that the 37-year-old had found out his bride of two years was born a man. Thomas Araguz III separated from his wife after learning her history two months prior to being trapped in the fatal July 3 fire, according to attorney Chad Ellis, who is representing Araguz’s parents in the lawsuit.

My gut tells me the answer to both of these questions ought to be “no,” but in these cases, I think my gut is wrong.

Both cases violate the standard conception of informed consent. To a bigot, ethnicity is highly germane to decisions about intercourse, just as birth-gender matters quite a lot to transphobics. So attempts to reduce consent to the simple act of saying “yes” actually ignore the ways in which fraudulently representing oneself may be coercive. We can hate the bigotry and prejudice that make the lies seem necessary without embracing deception. While lying about one’s “true” origins is one of the well-worn strategies of the marginalized and oppressed, it is a strategy that bolsters the very racist or heternormative regime it is trying to circumvent. In contrast, disclosure subverts that regime by forcing potential partners to acknowledge the appeal of the supposedly-abject Other, and leaves open the possibility of acceptance and true consent.

In a post on the fate of the university, Steve writes:

We appear to have a situation where the public will not invest in education because it is more concerned in distributing the state’s patronage to older citizens, which has created an education system which has had to cut spending on public service, and saddled students with costs, and is raising a generation of young people who have had less opportunity for public engagement [...] and what experience they have had has been watching older generations use political institutions to shift costs unfairly onto their backs.

Insofar as the vast majority of so-called “welfare” spending in the US is directed towards senior citizens rather than the poor, I wonder if he might be right. Certainly, old age is not the same kind of disability as the disadvantages generated by class, race, or gender, but as a group, seniors are good candidates for the least-advantaged. They are very vulnerable to poverty and imminent mortality. However, this may be one reason to calculate privilege and disadvantage over a lifespan rather than over shorter life-cycle episodes like childhood, middle-age, and end-of-life: America’s current crop of senior citizens enjoyed the greatest lifetime wealth in history, and presided over the most transfer payments to themselves ever. As they stopped needing universities, they forced states to stop funding them. As their incomes increased, they lowered taxes. As they started needing cheap pharmaceuticals, they forced Medicare to pay for prescription drugs.

I think it makes some sense to see current conflicts over entitlements and the absence of satisfying non-military public service as generational. The real key here is that the Millenials are the new Baby Boomers: because they represent a demographic bulge, they will decide our country’s politics and economic priorities over the next fifty years in the same way that Boomers did over the last fifty.

The Baby Boomers organized for peace in Vietnam, civil rights, and women’s equality, which profoundly influenced their thinking about citizenship. What have the Millenials done? They’re a bit too young to fight for gay rights, and they appear to be ambivalent about the rights of undocumented workers. They turned out for Obama, but now they’re disappointed. So what will their cause be, in a world that they do not trust? How will they vent their ire that their parents outsourced all the good jobs and are generating record debt levels? Where, they may ask, is their New Deal, their Space Race, their War on Poverty, their great cause? What makes citizenship and public institutions worth investing in?

Peter Levine gets it right, as usual:

But it’s a mixed picture. Optimism about careers is one thing; confidence in other people is a different story. Perhaps protective Baby Boomers failed to raise kids who trusted the outside world, or perhaps it’s a simplification to say that today’s generation was raised by protective parents. The young man in today’s Times profile was raised by a married couple in exurban Grafton, MA, with a family income in the national top ten percent. But 258 students enrolled in the Chicago Public School system were shot last year–quite a different context in which to grow up. And most young Americans fall somewhere in between: neither coddled nor terrorized, but hardly secure.

The Millenial generation is so large that none of us can get hold of the whole thing. We’re only at the leading edge of this new Boom. Any defining moment or attitude that emerges will be a fiction projected onto a plurality, a doomed attempt to make the morass of experiences and opinions meaningful, a summative count that disguises those left unaccounted for.

• Was the credit crisis like an asteroid impact?
• A Thomist take on Hayek and ‘Scientism’: Part 1 and Part 2
• An answering machine can help nudge us into monitoring our energy usage
• Implicit racial bias in empathic responses to the pain of others
• Does Stuart Buck’s Acting White echo the claims of Akerlof and Kranton’s Identity Economics? If so, even our preference structures are not our own!