Confusion and apologies

There have been two posts up with the same three first words:

Power and empathy: this is scary
And
Power and empathy.

There was some glitch with the first, andd it would not display its second half. So I eventually trashed it. Our dashboard says 35 people clicked on it. My apologies for any confusion this all caused.

Power and empathy

A professional academic will probably be situated within at least two hierarchies of power: that in their profession and that in their institution. And each hierarchy can have different types of sub-hierarchies. A female philosophy professor might turn to the more powerful members of these hierarchies for help when dealing with problems of, for example, egregious harassment.

And the response she receives might show a stunning lack of understanding. And if you are like me, you may be left wondering how a seemingly wise person can miss out on so much. How does acute understanding come to have such limited scope? Don’t we inhabit the same communities?

One answer from the social sciences is that power limits empathy.

Can people in high positions of power — presidents, bosses, celebrities, even dominant spouses — easily empathize with those beneath them?

Psychological research suggests the answer is no. Studies have repeatedly shown that participants who are in high positions of power (or who are temporarily induced to feel powerful) are less able to adopt the visual, cognitive or emotional perspective of other people, compared to participants who are powerless (or are made to feel so).

I think these findings are very troubling. When I looked recently at a committee formed to deal with some climate issues, I was shocked to see a particular powerful person on it. This person is quite happy to say that he doesn’t think academic women are discriminated against. Even if we grant his belief is within the circle of permissible opinions, at least he should see that his opinion is problematic. And he didn’t.

So when bias and bigotry can undercut the credibility of bottom-up efforts at reform in a profession, why haven’t there been more top down efforts? Particularly from the dominant majority? Could powerful members of a dominant majority just care much less? And if so, does that explain the large stretches of neglect we see in, for example, reactions of indifference to scandals of abuse? Or even support for abusers?

And then there’s the men of the US Supreme Court.
Aaaaaarrrrrggggh!

Philosophers interested in standpoint theory may profit from looking at the references in the article quoted. Some research suggests that having power can alter our neuropsychological capacity for social knowledge.

A Reply to Leiter

Professor Leiter has responded to my post from earlier today via an “update” to his original post, with a critique of Judge Flanagan’s ruling that goes beyond his original objection that Flanagan’s law degree does not come from a high-ranked law school.

In the update, Leiter argues that Flanagan’s ruling is flawed because: (1) “rape is always a kind of sexual assault, but not all sexual assaults are a kind of rape”; (2) the Sun-Times replaced the word “rape” with “sexual assault” in the headline once contacted by Ludlow’s attorney, which Leiter takes to mean that the Sun-Times “recognized the meanings were different”; and (3) contra Flanagan, Leiter feels that the “sting” of being accused of rape is not the same as the “sting” of being accused of sexual assault.

I’ll take each of these points in turn.

In response to (1): to argue for non-equivalence based on the assumption that rape is a subcategory of sexual assault is to miss the point of the paragraph in my original post which provides examples of various state laws. There are many states in which rape is not a subcategory of sexual assault, and indeed, many states – and many universities – in which the terms ‘rape’ and ‘sexual assault’ are no longer used at all, due to the fact that many state statues, university policies, and individuals have recognized that “mere” unwanted sexual touching, in which an individual’s sexual autonomy is violated, can be just as damaging as unwanted penetration. As any victims’ advocate will attest, many victims are so profoundly impacted by “mere” nonconsensual sexual contact – even fully clothed sexual contact – that they have been diagnosed with the full range of post-traumatic symptoms: PTSD, depression, anxiety, etc. (Recall that the undergraduate student involved in the Ludlow case was so distressed by the incident that she attempted suicide in the weeks following. Is the fact that Ludlow didn’t penetrate her really of much interest?)

In other words, to put some special emphasis on penetration is, quite frankly, bizarre, and jarringly out-of-synch with contemporary mores and sensibilities. In both U.S. culture and U.S. law, there has been a distinct shift over the past couple of decades, away from a focus on penetration, towards the protection of sexual autonomy. As one advocate wrote in a message to me earlier today, “what is the point of compartmentalizing violent sexual acts, when they’re all violations?” To insist that unwanted penetration is worse than unwanted sexual contact is offensive because it dismisses and belittles the reality of the actual experiences of most of the victims and survivors.

A brief review of trends in rape law might help paint the picture here. Not long ago, whether or not a sexual act was consensual was irrelevant to whether or not it was legal, and almost all acts of sex, with or without penetration, were illegal. If an unmarried man and woman had sex, it was fornication. If one of the two was married, it was adultery for the married party and fornication for the other. If a man lured a woman into bed through a promise of marriage, he committed the crime of seduction. If the couple were from two different races, they could be charged with miscegenation. If both were male, it was sodomy. Even married couples who engaged in consensual sex, in some states, could be charged with a crime if they used certain sorts of birth control to prevent conception.

In other words, the only legal sex was heterosexual, copulative, marital intercourse involving exactly two cisgendered partners. Obviously such laws – though still in piecemeal existence in different states – would be woefully out of synch with contemporary mores, for all kinds of reasons. One of these reasons, I’d argue, is because such laws focus on regulating penetration, in the interest of protecting pre-marital virginity and enforcing the idea that intercourse is for conception, rather than on protecting the sexual autonomy of the individuals involved. And, though I don’t have space to press this point here, I’d argue that there has been a corresponding revolution in sex law over the past two decades (it’s generally not even called “rape law” anymore), in which sexual autonomy has emerged as a sort of fundamental right. Indeed, many of the state laws codify this right by placing sex crimes in which an individual’s autonomy is clearly violated – e.g., in which, say, the offender takes advantage of the fact that the victim is inebriated to initiate a sexual act, without or without penetration – in the category of first-degree criminal offenses. (Ohio is a good example of this.)

Just in case I didn’t make this clear enough in my original post: note that, based on the examples provided by Yale’s sexual misconduct committee, Ludlow’s actions – actions that he himself has admitted – would be grounds, if he were a student, for expulsion. The fact that he is a senior professor and the student was a first-year undergraduate student – i.e., that there was a clear power differential – only makes it worse.

In response to (2): I have no idea why the Sun-Times’ act of replacing the word “rape” with “sexual assault” in the headline would necessarily imply that they recognized a difference. If the editors felt there was a significant difference, presumably they wouldn’t have used the words interchangeably in the first place. A much more plausible explanation of the change is simply corporate risk management.

In response to (3): Really? A re-reading of the response to (1) should make it clear why claiming that rape is worse that sexual assault is not merely wrong-headed, but offensive to survivors who have been harmed by sex crimes that don’t involve penetration.

Is sexual assault the same as rape?

In a ruling earlier this week, an Illinois Cook County Circuit Court Judge, Honorable Kathy M. Flanagan, dismissed Peter Ludlow’s defamation case against Sun-Times Media LLC and two other media defendants, arguing that the terms “rape” and “sexual assault” are interchangeable.

Ludlow’s case was based not on the accuracy of the news reports in question, but rather on the use of “rape” in the headline as a fair representation of the complaint, which was described in both the news reports and the student’s complaint as “sexual assault.” In other words, Ludlow’s attorneys attempted to argue that, while he may have sexually assaulted a student, he did not rape a student.

“In common usage and in dictionaries, the terms ‘rape’ and ‘sexual assault’ are synonymous,” Flanagan writes in her decision, “The Merriam-Webster definition of ‘rape’ cited by [the plaintiff, Ludlow] has ‘assault’ listed as a synonym, and the definition of ‘sexual assault’ has ‘rape’ listed as a synonym.”

So perhaps citing Merriam-Webster wasn’t a particularly well-thought-out move by the plaintiff’s attorneys. Setting dictionary definitions aside, we might wonder: are sexual assault and rape the same thing, in the eyes of U.S. law?

The short answer to this question is “yes, in many states” – though please note that I am not a legal expert, and am offering this answer not as advice, but rather as an observation based on reading the relevant statutes and codes. Readers who need legal advice should seek the advice of an attorney.

Penal codes throughout the U.S. make use of a wide variety of classification systems for sex crimes. In some states, like Ohio, rape is defined as “sexual conduct with another… when [for example] for the purpose of preventing resistance, the offender substantially impairs the other person’s judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.” The state of Washington characterizes rape as one of many different types of sexual assault. And In other states, like New Jersey, the phrase sexual assault has simply replaced the word rape in the statutes, with different degrees of sexual assault and sexual contact. The New Jersey Criminal Code characterizes “intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor” as a crime in the fourth degree. In some states neither term appears in the law. South Carolina, for example, avoids mention of rape and instead refers to unwanted sexual intercourse and unwanted sexual contact as “criminal sexual conduct.” A very helpful interactive map with links to the relevant laws for each state is available at the Rape, Abuse & Incest National Network (RAINN) State Law Database.

In other words, it appears that Judge Flanagan’s argument that “sexual assault” and “rape” are interchangeable is quite reasonable, notwithstanding Brian Leiter’s ill-advised ad hominem attack on the pedigree of her law degree.

We might also wonder: are sexual assault and rape the same thing in the eyes of U.S. universities?

The short answer to this question, again, is “yes, at many universities.”

The story behind this is an interesting one. Over the past 10 or 15 years, universities have begun shifting to the use of “nonconsensual sexual acts,” in place of “rape” or “sexual assault.” The terms “nonconsensual sexual intercourse” and “nonconsensual sexual contact” were originally introduced when Title IX compliance consultants discovered that universities were reluctant to categorize acts of sexual misconduct – even acts that clearly involved force and penetration – as “rape” or “sexual assault.”

The use of “nonconsensual sex” and related phrases, however, is highly contentious. Many activists feel that calling an incident “nonconsensual sex” enables universities to avoid expelling or dismissing the perpetrator. In July of 2013, my own alma mater, Yale University, released the biannual report required by the Office of Civil Rights as part of a voluntary resolution in the wake of a Title IX complaint. In addition to 61 new complaints, the report revealed that there were four cases from previous reports in which there was “sufficient evidence” that an offender had engaged in “nonconsensual sex” – and yet all of the student perpetrators were allowed to continue pursuing their degrees. Headlines read: “Yale Fails to Expel Students Guilty of Sexual Assault,”and a Change.org petition rapidly collected more than 1,500 signatures.

In response, Yale administrators explained that nonconsensual sex does not always mean sexual assault, and produced an unprecedented “Sexual Misconduct Scenarios” document which provided a detailed description of different “scenarios” that would fall under the umbrella of nonconsensual sex – along with the corresponding punishments. (Much of the credit for this goes to philosopher Michael Della Rocca, who has just ended a three-year stint as the Chairperson of Yale’s University-Wide Committee on Sexual Misconduct.)

One of the scenarios reads as follows:

Tyler and Jordan are both drinking heavily at an off-campus event. Tyler becomes extremely drunk. Jordan offers to take Tyler home. On the way, Tyler has trouble walking, and makes several wrong turns. Once in Tyler’s room, Jordan initiates sexual activity. Tyler looks confused and tries to go to sleep. Jordan has sex with Tyler.

There was no consent to have sex. A person who is incapacitated—lacking the ability to make or act on considered decisions to engage in sexual activity—cannot give consent. The UWC penalty would be expulsion.

It’s worth pointing out here that, in the past, it was rare for a university to expel a student who is found guilty of this or other forms of serious sexual misconduct. According to a 2010 investigation by the Center for Public Integrity, only 10 to 25 percent of students found “responsible” for sexual assault were actually permanently prohibited from returning to the university.

It’s also worth pointing out that a much-cited 2002 study of rapes on college campuses, in addition to a 2009 study of the DNA in 11,000 rape kits in Detroit, have demonstrated that: (1) as many as 6 in 10 rapists are serial offenders, and (2) alcohol is a very common tool for serial predators to use.

Revised: Female genital mutilation Fatwa in Northern Iraq

Correction: Isis have denied issuing the Fatwa, describing it as a hoax, and one document circulated on social media purporting to be a copy of the edict, turns out to be a photo-shopped Syrian document dated 2013. The Guardian and BBC both reported growing doubts, rather than accepting the hoax verdict. To do more than reserve judgement, at this point, seems like accepting the word of a violent and extremist group over that of a (female) UN official.

 

As if things weren’t bad enough in Northern Iraq, ISIS has issued a Fatwa ordering the genital mutilation of all girls and women in and around Mosul, the city they took in early June. Until now, genital mutilation in Northern Iraq affected 8% of girls aged 15-29, compared to 36% in the 29 African and Middle East countries in which it is most common. According to the UN co-ordinator in Irak, Jacqueline Badcock, 4 million girls and women are at risk if the Fatwa is carried out.