There is no liberal right to sex with students

There is a long and distinguished history of conceptualising liberal democracy in terms of basic rights to which, all other things being equal, everyone is entitled. Sexual freedom is rightly counted among these. But should this right apply where one person is in a position of power and authority over the other? Doctors are sanctioned if they have sex with their patients, as are lawyers who sleep with their clients. Should sexual relationships between professors and students in the same department also be off limits?

Read on.

On Kipnis, Sexual Assault, and Sexual Agency

Jonathan Jenkins Ichikawa has another really excellent blog post today.

One of the central themes in Unwanted Advances is Kipnis’s suggestion that campus “sexual paranoia” stands in tension with a recognition of female sexuality and sexual agency. She attributes to the contemporary American university a Victorian sensibility, treating women as precious, featureless, sexless wards requiring zealous protection. I think this is a serious misreading of the cultural situation, and of the nature of agency.

Read on.

 

 

Northwestern Graduate Students on Kipnis

The Northwestern Philosophy Graduate Student Association has published an open letter on Kipnis’s book.

Several people, including a graduate student in the department of philosophy at Northwestern University, were recently targeted in a book by Radio, Television and Film faculty member Laura Kipnis. In “Unwanted Advances: Sexual Paranoia Comes to Campus,” Kipnis constructs a narrative around a series of events — which have been largely centered within our own department — to support her claim that Title IX fosters a sense of sexual paranoia and creates an environment hostile to academic freedom.

In doing so, Kipnis dedicates a chapter of her book to questioning a sexual assault allegation our fellow graduate student brought against a faculty member. Kipnis questions this allegation on the basis of a limited set of evidence, without consulting with our colleague or those close to her to check a number of important details in the case. Moreover, Kipnis reinforces her claims with unsubstantiated speculations. Her construction of the narrative is, as a result, irresponsible. We feel compelled to express how dissonant Kipnis’ retelling of these events is with our first-hand experiences of them and with the people involved in them, and to express our concern for Kipnis’ conduct, both as an author and as a faculty member at NU.

Read on.

A Reply to McMahan and Singer on the Stubblefield Case

Jeff McMahan and Peter Singer have a piece in the Stone today at the New York Times that I think is woefully ill-argued, in which they conclude that Anna Stubblefield has been treated unjustly by the courts, and question whether or not the man she was convicted of sexually assaulting was really harmed by her. I’m not going to address every point in their piece — but I do think it’s important to say a few things.

First, while I haven’t seen all of the evidence they have apparently been made privy to, there is enough in the public domain to know that their description of the events which transpired is deeply misleading.

For example, on the matter of John Doe’s* communicative capacities, they write,

“Sheronda Jones, an undergraduate at Rutgers at the time, volunteered to assist [John Doe] by using facilitated communication so that he could write papers for an English class he was auditing at Rutgers. Before the trial, Jones had told a detective in the Essex County Prosecutor’s Office: “He pretty much read the books. I didn’t know any information about the book. I made sure never to read any of the information. I can’t tell you what he read. And he typed out the information.” Jones did not attend the class [John Doe] took. If she did not read the material on which his work was based, how could she have produced writings that respond to that material?”

They fail to mention that Jones’ statement went on to note that one of her roommates was in the same class, and she knew that her roommate and John Doe produced similar writings for the class. So, how could she have produced writings that responded to the class material which she had not read? By reading her roommate’s homework.

They also fail to mention that despite training in how to use facilitated communication, neither John Doe’s mom or brother was ever able to successfully use it to communicate with John Doe, and that they believed the purported communications facilitated through Stubblefield conflicted with what they knew about John Doe from experience living with him (e.g., according to Stubblefield, John Doe didn’t like gospel music, but according to his family, his behavior suggested he particularly enjoyed it).

As another example, on the matter of the assault itself, they write:

“If we assume that he is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation. These are, after all, difficult to articulate even for persons of normal cognitive capacity. In that case, he is incapable of giving or withholding informed consent to sexual relations; indeed, he may lack the concept of consent altogether.

This does not exclude the possibility that he was wronged by Stubblefield, but it makes it less clear what the nature of the wrong might be. It seems reasonable to assume that the experience was pleasurable to him; for even if he is cognitively impaired, he was capable of struggling to resist, and, for reasons we will note shortly, it is implausible to suppose that Stubblefield forcibly subdued him. On the assumption that he is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.”

Now, just on the question of if John Doe was forcibly subdued, set aside for the moment that of course assault is not actually the sort of thing where all perpetrators lurk in dark alleys, twirling their mustaches as they lay in wait, ready to do obvious physical violence, and one need not have been forcibly subdued in order to be a victim of assault — as a matter of fact, the evidence does suggest that John Doe tried to get away from Stubblefield, at least on the first occasion they had sexual contact. As the New York Times wrote on this case back in 2015,

“They met the following Sunday at [John Doe]’s house, while his mother was at church. They tried to kiss while lying down on [John Doe]’s bed, on the theory that it would be easier, given his impairments. But [John Doe] kept sitting up, and then he lowered himself onto the floor. Anna offered him the keyboard and asked if anything was wrong. Nothing’s wrong, he typed, he was very happy, but also overwhelmed — he needed a minute. Anna said O.K., and [John Doe] scooted out into the hall.”

Stubblefield performed oral sex on John Doe a few minutes later.

Second, philosophically, this argument is quite astounding. One’s being incapable of giving or withholding informed consent to sexual relations makes unclear what the nature of the wrong of sexual assault could be? Seriously? Why ever should we think that one must have the cognitive capacity to conceptualize precisely how one has been harmed in order to have been so harmed? Are small children not even possibly victims of sexual assault? Can animals not be unjustly exploited? Are persons with severe brain damage incapable of being victims of theft?

Why think experiencing pleasure precludes genuine harm? And even if one wanted to subscribe to a principle so readily met with counter-examples, why ignore that, again, according to Stubblefield’s own description of events, on many occasions John Doe expressed discomfort?

On the question of predation, McMahan and Singer write:

Judge Teare described Stubblefield as “the perfect example of a predator preying on her prey” and gave her a sentence that would be fitting for a predatory rapist. Yet no one would or could ever have known that Stubblefield and [John Doe] had had sexual relations if she had not conveyed to his mother and brother what she believed to be his message to them, via facilitated communication that she conducted in their presence, that he and she were in love and had consummated their relationship. This is the action not of a sexual predator but of an honest and honorable woman in love. Even if she is mistaken in her beliefs about his intelligence and ability to communicate, it is undeniable that these beliefs are sincere and that she was neither reckless nor negligent in forming them. This ought to have been a mitigating, if not wholly exculpating, consideration in the sentencing.

Stubblefield was aware of the controversial nature of facilitated communication. She may have believed that the experts which determined it to be pseudoscience were mistaken — I suspect she genuinely did — but she also knew that others who had diligently attempted to learn the methods of F.C. had failed to communicate with John Doe. She knew that she was in a particular position of power over him, and that she had an interest in virtue of her own feelings, in his communicating particular things.

But more importantly, McMahan and Singer confuse self-conceptualizing as having good intentions with failing to engage in predatory behavior. They confuse a willingness to articulate one’s position with being honorable. If these characteristics were genuinely interchangeable, multitudes of paradigm instances of exploitation through grooming, and even through violence, would be mitigated or exculpated. How many victims of childhoood sexual abuse have been told that their assailant loved them?  How many cult-leaders have thought they were doing what was best for the souls of their followers? How many perpetrators of domestic violence believed they were doing what was best to keep their families as they should be?

Intending to do good is not in any way inconsistent with doing enormous harm.

[Update: An earlier version of this post used the victim’s initials rather than the pseudonym John Doe. I’ve removed his initials in an attempt to do a better job of respecting his privacy.]

Bright on Inconsistency

Liam Kofi Bright has a blog post from November that seems useful to raise today in light of some of the responses to newly publicized allegations regarding sexual harassment against John Searle (story here). Originally posted to register how concerns regarding racism in the US election were addressed, Bright’s post also captures the way responses to sexual harrassment allegations too often transpire, particularly in the philosophy blogosphere.

Informal Omega Inconsistency is when people agree to a general claim but will stubbornly deny or remain absurdly sceptical as to every particular instance of it you produce. So, somebody may well agree that there are bad drivers in Pennsylvania — but every time one points to a particularly erratic person on the road in the state they will say that, no no, this is not a bad driver, this is somebody whose car has suddenly and inexplicably stopped working, or is cursed, or at least they will not believe it is a bad driver till these possibilities have been ruled out, or… whatever. Just for some reason every instance that might witness the existential claim granted turns out not to be granted as an actual instance, no matter what lengths must be gone to deny as much.

Sounds wacky, right? Maybe, but I think it will be easily recognised as a very common by anybody who has ever argued about racism. Of course everybody will agree there are racists, certainly, it’s still a terrible problem and there are lots of liberal pieties I could complete this list with that would gain equally near universal assent in my social circles. But this or that particular instance? Oh no, you have to understand, he’s a very kind soul, you must be misinterpreting what he meant by “All coloureds must die” — maybe he was talking about a novel method of rendering crayons reusable? And, look, he really likes dress up even months after halloween, so that was probably just a ghost costume, and of course he’s a very devout man so he likes to build crosses wherever he goes, but alas he’s a smoker (nobody’s perfect!) so he probably was getting his lighter out then he tripped and fell and it just happened to set the cross ablaze, and….

I parody, but not by as much as you’d like. Lots of people are Informally Omega Inconsistent and it’s super annoying. I think what prevents more general recognition of this fallacy is two things. First, it’s a fallacy that is only recognisable in aggregate. On any one occasion it’s consistent to deny that this witnesses one’s general claim — it only becomes Informal Omega Inconsitency once it’s apparent that this is a matter of policy, that this is how the person always responds to apparent instances of the general claim being made. Second, for reasons that are a bit opaque to me, we tend to think that people `want’ to make the strongest claim they can, so it seems that if somebody wanted to make the general claim they’d be only too happy to grant some instances — but not so, as this experience has taught me.

 

Freedman on Galloway, Boyden and Implicit Misogyny

In recent months, the Canadian literary and academic worlds have been rocked by sexual harassment allegations against former UBC Creative Writing Program Chair Steven Galloway. In brief, UBC fired Galloway, whereupon CanLit golden boy Joseph Boyden published an open letter to UBC  deploring what he saw as a breach of due process in the case. The letter was signed by 88 luminaries of Canadian literature (including, most notably, feminist author Margaret Atwood). A Twitter war ensued.

As Canadian feminist philosopher Karyn Freedman observes, the complainants in the case have been effaced from the public discussion.

Today is Canada’s s National Day of Remembrance and Action on Violence Against Women — a day, it bears observing that marks the anniversary of the so-called Montréal Massacre, in which 14 women Engineering and Science students were murdered for being women. To mark the day, Freedman has published a piece on HuffPo Canada, decrying the implicit misogyny that led to the effacement of Galloway’s accusers, and urging Boyden and his fellow signatories to retract the letter.

You can read Freedman’s post here.

Another lawsuit against a sexual harassment victim

As so often happens, yet another sexual harasser is suing his victims.

A University of California, Berkeley professor who is the subject of three sexual harassment complaints has filed lawsuits against the women he is accused of victimizing, an unusual step that the students say will not deter them from speaking out.

Blake Wentworth, assistant professor of south and south-east Asian studies, has accused the women of defamation and “intentional infliction of emotional distress”, with new lawsuits filed nearly a year after university investigators concluded that he had violated sexual harassment policies.

 

Responding to sexual harassment in academia: punishment or pedagogy?

Eric Schliesser has an interesting discussion posted at D&I (which we linked to earlier) of the piece in the Chronicle by Brian Leiter, regarding the ethics of how we respond to sexual harassers in academia.  I think the exchange is worth reading, but that both pieces assume the wrong framework for approaching the issue.* That is, it would be more productive to think about the appropriate role of sexual harassers going forward in academia through the lens of pedagogy rather than punishment.

Leiter’s piece begins with a discussion of Colin McGinn – particularly, the question of whether or not he should be allowed to teach again. Leiter fears that disproportional punishment in response to sexual harassment in academia is trending (e.g., firing, refusal to hire); Schliesser notes that other offenses in the academic community aren’t treated under the kind of proportionality principle Leiter is advocating for (e.g., some plagiarists are shunned from the academic community; we don’t typically give students a second chance before a plagiarized paper receives an F). But, when the administration at East Carolina University vetoed the faculty’s offer of a teaching position, was this an instance of punishment? When a commentator on a blog suggests that having been fired for sexual misconduct disqualifies one for future teaching positions, are they thereby advocating for punishment of offenders?

I don’t think so. If I learn that Jane betrayed her friend John’s trust, and on that basis I decline to form a friendship with her, my failing to become friends with Jane is not a punishment. It is a negative consequence of her conduct towards John, but not all negative consequences are punishments. I wouldn’t put Bernie Madoff in charge of my finances; I wouldn’t leave my dogs with Tony Barbara; and though I’m sure she would never need it, I wouldn’t loan my car to Lindsay Lohan. I wouldn’t be punishing Lindsay Lohan – she’s just not entitled to my car, and I wouldn’t want to take the risk.

Of course, if I don’t choose to engage in a particular kind of relationship with someone on the basis of their past conduct that doesn’t entail that they will never be able to enter into such a relationship with someone else. This contrasts with the kind of case Leiter is considering where a sexual harasser cannot find another position in academia at all. But, as Jonathan Jenkins Ichikawa pointed out in a comment on facebook, neither is there some general governing body handing out teaching positions: “[T]here’s a job market. No person or organization faces the question of whether [some sexual harasser] should ever be allowed to teach again. The question faced, by each of a bunch of departments, is, should we hire [this person] to teach here?” In any given instance, that will be a complicated question to answer. (If for no other reason than that the academic job market is flooded with candidates. For any one, no matter whether they’ve engaged in misconduct or not, what are the odds there isn’t a better qualified candidate out there?)

Suppose I’m wrong about all of this, though, and that there is a punitive element to the refusal to hire a sexual harasser. Even so, I think it would be more productive to think about this issue through the lens of pedagogy rather than punishment. As Leiter writes, “[s]exual harassment of students by their professors betrays the fundamental idea of a university as a place where everyone can come to learn and master an intellectual discipline, and be evaluated on their intellectual competence, rather than their sexual desirability.” (NB: with Schliesser, I suspect much sexual misconduct is not about desirability.)

Some kinds of relationships only function properly if certain preconditions are met. Friendship must be given willingly. Being a doctor requires that one have medical knowledge. Practicing as a social worker requires licensure. Rather than asking if we ought to keep those who engage in sexual misconduct on faculty so as to not send harassers out into the world for someone else to deal with as Leiter does, or asking if refusal to hire is proportionally punitive, we ought to be asking what’s pedagogically appropriate. Certainly, we have moral responsibilities – to victims and perpetrators of sexual misconduct. But examining this through the framework of pedagogy rather than punishment has the dual benefit of not privileging our responsibilities to wrong-doers over those who are wronged and keeping our guiding aim, qua educational community, centered. Are those who betray the fundamental idea of a university fit to be employed by one? If so, why? If not, what would it take for them to become so again?

I would be opposed to my department hiring McGinn, but it’s not a question of punishment. I would be opposed to my department hiring McGinn because he doesn’t seem to think he did anything wrong, and I don’t know how someone who thinks it’s appropriate to treat students in that way could be entrusted with their educations.

*There’s a lot more to say about all of these issues, but I just want to briefly note that with Schliesser, I also don’t think the Chronicle piece gets the cases quite right. For example, it reads:

On the other hand, there are cases like that of Sujit Choudry [sic], former dean of the law school at the University of California at Berkeley, who was found to have violated the university’s sexual-harassment policy, though there was no finding that he acted with a sexual intent . . . A dean of a major law school should not be hugging his secretary on a regular basis, as Choudry [sic] did. Such a dean may not be a sexual harasser, but he is sufficiently insensitive to professional norms and legal rules to be unfit for administrative responsibilities, including responsibility for ensuring that others comply with legal rules regarding sexual harassment . . . But now Berkeley wants to fire him for the offense for which he lost his deanship and some salary already. He is now spending tens of thousands of dollars defending his right to remain as a professor, even though there has been no public allegation about misconduct in that role. In cases like this, vindictive hysteria appears to have replaced a proportionate response to the actual misconduct.

Choudhry was found not merely to have hugged his administrative assistant on a regular basis – rather, he admitted to (1) hugging her regularly, (2) kissing her on the cheek regularly, (3) touching her shoulders and arms, (4) holding her hands to his waist, and (5) not engaging in similar conduct with male colleagues or staff. Leiter is right that there was no finding that he acted with a sexual intent, but neither was there a finding that he did not. The investigation report notes that Choudhry’s defense was that he did not act with a sexual intent, but then goes on to explain why this is irrelevant to the question of whether or not he engaged in sexual harassment for the purposes of university policy (i.e., he engaged in intentional physical touching that was unwelcome, and only directed at women, consistently over a seven month period).

Law Professors on the Preponderance Standard in Title IX cases

A group of more than 90 law professors have signed on to a white paper regarding the preponderance of the evidence standard’s use in campus sexual misconduct cases. I recommend reading the entire document, but here’s a snippet:

The consistency of the 2011 DCL with civil rights legal doctrine means that, had the 2011 DCL indicated tolerance for other standards of proof in sexual violence cases, it would have approved treating sexual violence and harassment victims differently from all other victims of all other discrimination prohibited under our nation’s anti-discrimination civil rights laws, and done so without any justification for that differentiation. Because differential treatment by the government without justification is itself a form of discrimination, OCR making such an exception in a specific set of sexual harassment cases, but in no other civil rights matters under its jurisdiction, would have been incompatible with the agency’s mission to secure gender equality in education.

Departments changing social activities

As soon as the prospective graduate students visiting Northwestern University’s philosophy department reached the top of Chicago’s lofty John Hancock Center, the cocktails began to flow. Later that evening, everybody had dinner at a prominent professor’s high-rise apartment, where the partying continued well past midnight.

Those raucous recruitment weekends were once routine in the department. But the big, boozy nights are over. Now prospective students spend an early evening with professors at a local Thai restaurant. No one orders alcohol, and the director of graduate studies often brings her children.

That is the new reality as colleges are increasingly vigilant about sexual harassment. When a well-known philosopher at Northwestern, who had hosted the party at his apartment, was pushed out of the university after a female graduate student filed a high-profile complaint of sexual misconduct, the department examined not only his behavior but also its context. “These events all provided a really easy opportunity for nonprofessional relationships,” says Jennifer Lackey, director of graduate studies in the department.

Read on.