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The Grand Jury Trial in Ferguson: Why Public Outrage Doesn’t Matter

November 18th, 2014 by Elijah Weber · No Comments

As the Grand Jury charged with determining whether Darren Wilson, the police officer who shot Michael Brown, should be tried in a criminal court prepares to issue a decision, Ferguson is preparing for the worst.  The state National Guard has been mobilized.  The governor has declared a state of emergency.  Contingencies are in place to allow local schools to ensure that their students will be able to get home safely.  Everyone seems to be preparing for the possibility of protests, rioting, and violence.

What’s perhaps most troubling about this situation is the seeming indifference, displayed by many protestors, to the question of whether Wilson is, in fact, guilty of a crime.  Their signs read “We want an indictment,” as opposed to “we want justice” or “we want truth to prevail.”  In the meantime, the FBI has located numerous websites calling for violence against police if no charges are filed.  There is little concern, it seems, for getting the decision right.  Rather, the message seems to be “we want an indictment, or there will be blood.”

The Grand Jury potentially faces a difficult decision.  They may find either that Wilson did not commit a crime, or that there is insufficient evidence to go to trial.  This is their job, to determine whether a criminal trial should move forward.  However, if they find that a trial should not move forward, they must issue that decision with full knowledge that there will be violence that follows.  This is not an easy thing to do.

Perhaps this difficult decision will not come up.  Perhaps the Grand Jury will find that criminal charges are appropriate, and that a trial should move forward.  But if this is their decision, it must be made on the basis of careful consideration of the relevant facts.  That some people will respond to their decision with violence is not one of these facts.  Either there is sufficient evidence that Darren Wilson committed a crime to justify moving forward with a criminal trial, or there is not.  For the purpose of answering this question, how the public will respond to the Grand Jury’s findings just doesn’t matter.

→ No CommentsTags: Applied Ethics · Political and Legal Philosophy · Social Ethics

Who Should Decide if a Life is Worth Living? The Case of Brittany Maynard

November 11th, 2014 by Elijah Weber · No Comments

On November 1st, 2014, Brittany Maynard, a 29-year old woman suffering from terminal brain cancer, ended her life via assisted suicide.  Maynard had previously achieved some degree of notoriety as an outspoken and very public advocate of the right to assistance in dying for those with terminal illnesses.  Maynard’s case understandably evoked a wide range of emotions.  Many spoke out in support of her. Others criticized her decision, as well as its very public nature.

The Brittany Maynard case is socially and politically important.  It provides us with another opportunity to have a frank, open discussion about when, if ever, physician-assisted suicide ought to be permitted.

However, this case also raises a number of interesting philosophical issues.  For example, Maynard’s own words made it clear that she regarded a life that involved a continuation of aggressive cancer treatment, hospice care, or both, to be a life not worth living.  Her perspective is surely understandable from a certain point-of-view.  But it also raises a broader question, which is significant for thinking about this issue:  who should decide if a life is worth living?

Some people, and Maynard appears to be in this group, seem to think that whether one’s life is worth living is up to the individual whose life it happens to be.  Only our own unique perspective, one might claim, allows us to determine whether a particular life path is worth pursuing.  From this point-of-view, when we ask whether a life is worth living, we are asking whether a person’s life is worth living for them.

This perspective is not without its problems, however.  For example, some contend that life is the sort of thing that is always worth living, that being alive and having a life worth living amount to the same thing.  From this point-of-view, folks like Maynard are mistaken when they regard certain life paths as lives not worth living.

Others might worry that when we prioritize the individual’s own perspective in this way, we allow for a significant margin of error in these sorts of judgments.  For example, perhaps one is overestimating how terrible a particular life path might be, or underestimating their ability to cope with it.  If one suffers from a terminal illness, there’s a chance that depression is also a factor, which may lead one to adopt an unduly negative view about their future prospects.

Individuals who have these sorts of concerns may advocate for an objective criteria of when lives are worth living.  Objective criteria can take a number of forms.  Sometimes, they will consist of a list of features, whereby one’s life is worthwhile insofar as one’s life has these features.  Others may appeal to one feature in particular, such as a positive balance of  enjoyments over suffering, or the satisfaction of one’s desires, as indicators that one’s life is worth living.

This is not to say that such criteria are easy to assess.  Rather, the point is that the standard by which such assessment takes place is not simply a matter of determining the individual’s point-of-view, but rather an evaluation of criteria that may diverge from that person’s settled judgments about whether their life is worth living.  Objective views allow for the possibility that one can be mistaken about whether their life is worth living.

Was Brittany Maynard’s life no longer worth living?  From her perspective, the answer was a definitive “yes.”  However, even if we think that objective criteria might have yielded similar results, we should be careful about assuming that the individual’s own perspective is the only one that matters.  In our efforts to provide persons with terminal illnesses some measure of control over their own deaths, we should be mindful of the possibility that in some cases, a belief that one’s own life is not worth living may be mistaken.

→ No CommentsTags: Applied Ethics · Medical Ethics · Social Ethics

Does it Matter if Jahi McMath is Alive or Dead?

November 5th, 2014 by Elijah Weber · No Comments

Jahi McMath is a 13-year old girl from California who suffered complications related to surgery to correct her sleep apnea problems in December of 2013.  Several days after complications ensued, Jahi McMath was declared brain dead, and her family was informed that life support systems would therefore be removed.

Since then, the Jahi McMath case has taken a number of significant turns.  Her family raised objections to her being removed from life support systems, and have since pursued numerous legal actions against the hospital where her surgery was performed.  Those actions have thus far been unsuccessful, and Jahi has since been moved to a hospital in New Jersey that was willing to continue to provide her with supportive technologies.

What’s surprising about this case is not that McMath’s family objected to her being withdrawn from life support.  This is something that we might reasonably expect any grieving family to do.  What’s surprising is the nature of their objections.  McMath’s family is challenging the determination that Jahi is brain dead.

Only two states, New York and New Jersey, allow for religious objections to a finding of brain death.  These objections are usually based on a rejection of the brain-based criteria for death utilized in contemporary medical practice.  For example, if one believes that death occurs when the soul leaves the body, and takes the beating of the heart to be an indicator that the soul is still present in the body, one will regard someone whose heart is still beating as alive, even if this is only because they are connected to supportive medical technologies.

Though McMath’s family has claimed that they regard Jahi as alive because her heart is still beating, it’s not clear that theirs is a religious objection to brain-based criteria for death.  Further, their legal challenge is not based on a disagreement about the proper criteria for a determination of death.  Instead, they are challenging the finding of whole-brain death.  By the standard of death that contemporary medicine accepts, they contend, their daughter is still alive.

There is much to be said about this case.  However, for the moment, I want to focus on one question in particular.  Given the medical facts of this case, does it matter if Jahi McMath is alive or dead?

Now, in one sense, it does matter significantly whether Jahi is alive or dead.  It’s generally thought that whatever obligations a physician has to their patients, those obligations cease to obtain when their patient is no longer alive.  To put it crudely, physicians have no obligation to treat dead people.  So if Jahi McMath is dead, any discussion about what sort of treatment or support she might be entitled to is irrelevant–the dead aren’t entitled to anything in the way of medical services.

Further, if Jahi McMath is alive, this would support the moral permissibility of her family’s opting to continue to utilize life supportive technologies to keep her that way, especially if the expense of this continued support was borne directly by the family, or by financial support from other sources, and such support did not deny anyone else equal access to such technologies.

On the other hand, suppose for the sake of discussion that Jahi McMath is determined to be alive.  Would this entitle her to continue to receive technological support?  Does the mere fact that she is alive imply that she now has a right to a ventilator, nutrition and hydration, and any other interventions that might be required to keep her alive?

While the idea that someone once thought to be dead might turn out to be alive is significant for medicine,bioethics, and a number of interrelated social and legal debates, there’s an important sense in which establishing that Jahi McMath is alive will imply much less than her family and their attorneys might think.  Even if Jahi McMath is alive, continuing to provide her with technological support may not be medically appropriate.  After all, these technologies do not address her underlying condition.  Even if Jahi McMath is alive, continuing to treat her might be medically non-beneficial, and therefore not something that physicians have an obligation to do .

The McMath case is scheduled to return to court this month.  While much will be made about the outcome, whatever it happens to be, we should ask ourselves whether anything significant is truly at stake here.  Unless Jahi McMath can be diagnosed with a treatable, potentially reversible condition with some hope for a positive prognosis, there’s little reason to think she is entitled to life-sustaining supportive technology.  And while McMath’s family is presently insisting that she is alive, that she is responsive, and that she will recover, they may feel differently if required to bear the cost of her care themselves.

→ No CommentsTags: Applied Ethics · Bioethics · Social Ethics

How Should We Value Domestic Work?

October 29th, 2014 by Elijah Weber · No Comments

Over at PEA Soup, a popular blog about ethics and political philosophy, they periodically host discussions of new work in Ethics, a leading philosophy journal.  At the moment, they are hosting a discussion about a 1902 article by Zona Vallance, along with a contemporary response from philosopher Amy Baehr, regarding the social importance of domestic work.

Vallance argues that while work in the home is widely acknowledged as both valuable and socially important, it also creates fundamental inequality between men and women.  Because women, especially during Vallance’s era, are expected to bear the burden of domestic work, they are rendered economically dependent on their husbands.  Thus, continues Vallance, any moral or political theory that emphasizes equality faces a problem–if certain social facts make the equal pursuit of one’s goals and opportunities impossible, this can’t be what matters from a moral or political perspective. It makes no sense, for example, to claim that we ought never to treat others as a mere means if social structures are such that half the population is unavoidably treated in this way.

However, continues Vallance, these social structures are not unavoidable, but merely contingent.  We could change them if we wanted to, and she thinks that we should do so, beginning by providing direct compensation for those who perform domestic work.

This is an interesting proposal, and I recommend reading both Vallance’s original article and Baehr’s reply.  Both can be accessed here.  In the meantime, however, I think we can ponder Vallance’s proposal from a slightly different perspective.  Does appropriately valuing domestic work require that we compensate those who work primarily in the home?  Or can we properly value domestic work simply by having certain attitudes about it?  How are our attitudes about domestic work and our social acknowledgement of the value of domestic work related?  Must one precede the other, or are they separate concerns?

Post a comment and share your thoughts on these questions, or anything else about Vallance and Baehr’s articles that you found interesting.


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Preparing for Ebola: Should the U.S. Close its Borders?

October 21st, 2014 by Elijah Weber · No Comments

Last week, I talked about some of the ethical issues that arise within the context of advanced screening for Ebola.  However, this is not the only ethical issue that Ebola preparedness raises.  Some people have suggested that one way, perhaps the best way, to protect ourselves against an outbreak of Ebola is to close our borders to international travelers.

There are a couple of ways that this “close our borders” strategy might be formulated.  First, we might simply prohibit entry into the country altogether, no matter where a person is trying to enter from.  This is probably not necessary–there’s no evidence that anyone with Ebola has been in South America, for example.  A more plausible scenario is to restrict entry into the U.S. for people coming from countries where Ebola is known to have occurred, or where it is especially prevalent.

There are at least two groups of individuals to whom this sort of restriction might apply.  First, it might apply to non-citizens who wish to enter the country to visit family, or perhaps vacation.  Here, a case can be made for the permissibility of restricting access.  Non-citizens don’t have any sort of right to enter a nation of which they are not a citizen.  Entry into a sovereign country can be restricted or limited for a variety of different reasons, and preventing an outbreak of a deadly virus seems like a pretty good reason for doing so.  So there’s no obvious rights-based argument against prohibiting non-citizens from entering the U.S. for this reason, and a fairly good argument for thinking this sort of policy is morally permissible.

Things get more complicated for American citizens seeking to return from Ebola-affected areas.  One might plausibly claim that a U.S. citizen has a right to re-enter their home country if they wish to do so, and that denying them access is a violation of this right.  For example, suppose that an American citizen is returning from a visit with family in Sierra Leone, one of the nations currently being most seriously affected by Ebola.  Does this person not have a right to come home, even though they may now be a carrier of the disease?

If you think that the answer to this question is no, it’s probably because you are concerned about the public health impact of allowing people coming from Ebola-affected nations to enter the U.S., whether they are American citizens or not.  But does concern for public health really outweigh something as significant as a right to access one’s home?

This issue, just as we saw in our earlier discussion about involuntary quarantine, again points to a difficult, more general ethical question–what sorts of individual interferences can be justified on grounds of public health?  On the one hand, we do think that public health is a serious consideration that sometimes does justify inconveniencing people in certain ways.  On the other hand, there’s a very real concern that one could attempt to justify extremely serious rights violations based on these same concerns.

We should, at least, be mindful of the possibility that in attempting to do only the former, we may end up doing the latter as well.

→ No CommentsTags: Applied Ethics · Political and Legal Philosophy · Social Ethics

Does Public Health Justify Involuntary Confinement? The Case of Ebola

October 18th, 2014 by Elijah Weber · No Comments

As public concern about a possible Ebola outbreak grows, health care institutions have had to start making some difficult decisions.  While some people think that the danger is being overblown, public health workers do not have the luxury of thinking this way.  If an Ebola outbreak were to occur in the U.S., it might be extremely serious, and because of the nature of the virus, it would be exceedingly difficult to provide certain treatments to Ebola patients without considerable risk to medical staff.

How to safely treat Ebola patients without undue risk to medical personnel is just one of the ethical questions that the possibility of an Ebola outbreak requires the medical community to cope with.  But there is another, and it’s already coming up within the context of advanced screening for Ebola.  Once someone is identified as a possible carrier of the virus, their carrier status must be confirmed, or refuted, via a blood test.  For the sake of certainty, this test is completed a second time.

However, the samples required to complete this screening must be sent to special labs that are equipped to deal with these sorts of samples.  As a result, it can take up to 48 hours for someone who is identified as a possible carrier to be confirmed as virus-free.  In the meantime, these individuals are held in isolation.

Recently, I asked a high-level hospital administrator what would happen if such a person decided that they wanted to go home.  I was told that, for reasons of public health, such a person can be held against their wishes.

On the face of it, this might seem like an obvious case of good sense.  Ebola is a potentially serious risk to public health.  Thus, it seems, we can justifiably hold someone, against their wishes, if we think that allowing them to leave would constitute a serious risk to others.  We can justifiably detain such a person, it seems, for the sake of preventing harm to others.

However, there are two reasons that this answer is actually somewhat surprising from an ethical perspective.  First, we don’t think that in general, individuals with infectious diseases can be justifiably detained, against their wishes, in order to protect others.  People with influenza, for example, are not subject to any sort of involuntary confinement.  But influenza kills far more people every year than Ebloa, and it’s much easier to transmit to others.  In some respects, it is a far more dangerous disease.

If risk of harm to others is sufficient to justify involuntary confinement in the case of Ebola, and influenza is a more dangerous disease than Ebola, then risk of harm to others is sufficient to justify involuntary confinement in the case of influenza.  But we don’t think involuntary confinement is justified for influenza patients, so perhaps we shouldn’t think that similar reasoning justifies involuntary confinement in the case of Ebola either.

There is another reason that the seeming acceptance of involuntary confinement for Ebola patients is surprising.  We seem to think that this practice is also acceptable when someone is merely a possible carrier of Ebola.  So it’s not just risk of harm to others, but merely possible risk of harm to others that is being appealed to as justification.

But we don’t generally think that the possibility that someone may put others at risk of harm is sufficient to justify their involuntary confinement.  If we did, bad drivers, career criminals, former spousal abusers, and people with anger management problems would all be justifiably subject to involuntary confinement, for a seemingly indefinite period of time.

In general, the reasons one is inclined to give as justification for the practice of involuntarily confining not only Ebola patients, but also individuals who are merely possible carriers of Ebola, are not generally thought to be good reasons to subject someone to involuntary confinement.

So what makes Ebola so different that these seemingly bad reasons suddenly become good reasons to confine someone against their wishes?

→ No CommentsTags: Applied Ethics · Bioethics

“No Means No” or “Yes Means Yes”? Weighing the Pros and Cons of Each

October 10th, 2014 by Elijah Weber · No Comments

Last week, I discussed California’s recent decision to alter the way that consent to sex is evaluated for sexual assault cases.  I noted that, while there are some good ethical reasons to move to a “Yes Means Yes” standard, and away from a “No Means No” standard, this shift does not alter the fundamental problem of uncertainty that plagues these sorts of cases.

Given the potential significance of this shift, especially if it becomes the new national standard for consent in sexual assault cases, it seems worthwhile to consider the pros and cons of both standards, and determine whether a definitive case can be made for either.

As we noted in an earlier post, the argument for the “Yes Means Yes” standard is twofold.  First, the idea that an absence of refusal amounts to consent fails to capture what consent is really about.  For example, informed consent in a medical setting requires that one understands what they are agreeing to, that they are not coerced, and that they are competent to make this sort of decision for themselves.  Simply failing to definitively refuse would not count as a legally-significant form of consent in any other context, so it’s difficult to see why it should count as such here.

In addition, the “Yes Means Yes” standard avoids the ethical problem of re-victimizing the victim.  Too often, legal investigations of sexual assaults have been unduly invasive, often resorting to tactics like questioning the sexual history and reliability of the victim, in an effort to cast doubt on the notion that they refused the advances of the accused.  So “Yes Means Yes” is an appealing standard, in part, because it protects victims of sexual assault from being further victimized by both law enforcement and defense attorneys.

However, there are also some significant costs to the “Yes Means Yes” standard.  As we noted previously, moving to a “Yes Means Yes” standard does little to alleviate the “he said–she said” nature of many sexual assault cases.  While “No Means No” makes it very difficult for victims to prove that they refused sex, “Yes Means Yes” makes it equally difficult for the accused to prove that consent was given.

Though the epistemic uncertainty associated with each standard might seem like a wash, the consequences of being unable to prove what one must prove in each case are not equivalent.  When a victim is unable to prove that they refused sex, it creates the possibility that a guilty person may go free.  Such persons may commit similar crimes in the future, and some victims will struggle with the lack of closure that this outcome creates.  This can have serious personal consequences for the victim.

However, when the accused is unable to prove that they received a consent, it creates the possibility that an innocent person may lose their freedom.  You might think, and the structure of our legal system supports this notion, that it’s preferable for guilty people to sometimes go free, rather than innocent people going to prison.

Both of these possibilities are terrible.  But which is worse?  The problem of how to evaluate consent to sex in sexual assault cases is something of a tragic dilemma, a situation where every available course of action is morally bad.  But like all tragic dilemmas, we must choose.

As a society, which of these undesirable consequences should we prefer, that the guilty sometimes go unpunished or that the innocent are sometimes imprisoned?  Typically, we’ve opted for the former, on the grounds that losing one’s freedom is the worst sort of injustice.  But do we still think this is true?  Is there something about sexual assault that should motivate us to think differently?  Share your thoughts below, and let’s try to work through this one together.

→ No CommentsTags: Applied Ethics · Political and Legal Philosophy · Sexual Ethics · Social Ethics

What Does it Mean to Respect the Dead?

October 7th, 2014 by Elijah Weber · No Comments

According to the National Funeral Directors Association (NFDA), its members have “an ethical obligation to care for each deceased person with the highest respect and dignity.” This principle is highly plausible, and its demands seem both clear and obvious, so much so that the NFDA saw little reason to provide specific guidance regarding how this obligation is to be met. Vague offerings like “show proper care during transport” and “the body shall be properly covered” are given as sufficient to guide the professional conduct of NFDA members. Morticians, it seems, have an intuitive understanding of what is required to show respect for the body of the deceased.

However, this principle is difficult to vindicate from a philosophical perspective.  Concepts like respect and dignity are easily applied to living humans, and can sometimes be plausibly extended to non-human animals and the natural environment.  However, neither of these accounts of respect tell us much about why a dead person’s body is also deserving of respect.  In many ways, a dead body is like any other non-living, inanimate object.

Most people hold one of two possible views on this topic.  Some claim that we should respect the body of the deceased because it’s a way of showing respect for the person who has died.  By showing respect for their corpse, it’s thought, we show respect for the person that once occupied this body.

While this view is intuitively plausible, it doesn’t explain why we are obligated, as the above principle claims, to show respect for the body of the deceased.  From the fact that we can show respect for a deceased person by treating their corpse with respect, it doesn’t follow that we must do so.  This explanation might account for why many people do treat the bodies of deceased persons with respect, but it doesn’t explain why this is something that we are obligated to do in every case.

Alternatively, one might claim that we ought to respect the body of the deceased because we have an obligation to their family or loved ones.  By showing respect for one’s corpse, it’s thought, we show respect for the living persons who have been left behind.

Again, this view is intuitively plausible, but it can’t be the whole story.  In some cases, the dead have no family or loved ones.  Thus, there is no living person to whom respect for the corpse is owed.  And yet, we think the corpse should still be treated with respect.  So while this explanation does capture why there sometimes can be obligations to respect the body of the deceased, it doesn’t explain why such an obligation obtains in every case.  And yet, that’s precisely what the above principle says.

In general, though we often do treat the bodies of the deceased with respect, it’s not clear that this is an obligation, nor that this is an obligation that obtains in every case.

One possibility, though some moral philosophers may not like this explanation, is that the obligation to respect the body of the deceased is a cultural norm, rather than a universal moral principle.  This view captures the notion that morticians have an obligation to respect corpses, and allows for historical and cross-cultural variation regarding the ways in which respect for corpses can be demonstrated. However, it also allows that there’s nothing immoral about cultures that fail to respect, or even actively disrespect, the bodies of deceased persons.

What do you think?  Is an obligation to respect the body of the deceased a universal moral norm?  If not, is it just a social norm based on cultural preferences?  If the former, on what grounds does this obligation rest?  If the latter, is this a problem for the claim that we ought to respect the bodies of deceased persons?

→ No CommentsTags: Applied Ethics · Medical Ethics

Should Murderabilia Be for Sale?

October 2nd, 2014 by Elijah Weber · 2 Comments

Last night, I watched an episode of Taboo, a television show on the National Geographic channel that focuses on “taboo” practices, traditions, and professions.  One such profession is the sale of “murderabilia,” items connected in some way to famous serial killers.  Murderabilia dealers sell everything that can plausibly be connected to a highly publicized murder, from artwork by Richard “The Nightstalker” Ramirez to dirt from a dump site used by the Craigslist killer.  If it’s connected to a famous serial killer, murderabilia dealers will try to sell it.

The sale and collection of murderabilia is taboo, to be sure, but is it morally problematic?  Murderabilia dealers claim that they are simply trying to make a living by meeting a market-based demand.  What they are doing does not, in most cases, violate any laws or regulations, and while some people think their profession is creepy, the fact that something is creepy doesn’t make it morally wrong.

Further, even if it were morally wrong to sell murderabilia, this wouldn’t necessarily show that the sale of murderabilia ought to be legally prohibited.  Opponents of the trade in murderabilia must explain why murderabilia is not only morally problematic, but sufficiently so that it ought to be legally prohibited

The opponents of murderabilia are not without arguments to this effect.  Some people see the sale of murderabilia as a re-victimization of the victims and their families, who may be deeply disturbed by the fact that the death of their loved one is being profited from in this way.  It’s especially troubling, they claim, that the killers themselves are sometimes compensated for providing murderabilia items to dealers.  And while the sale of murderabilia is not federally prohibited, eight states have outlawed the sale and purchase of murderabilia, and there are similar efforts underway elsewhere.

Here’s the question:  Should we allow people to sell murderabilia?

Some might be inclined to say yes, perhaps arguing that in free market societies, we should allow consumer demand to dictate the sorts of products that can be sold.  And while we don’t permit the sale of certain items that are especially dangerous or potentially harmful, it’s not clear that murderabilia is similar to those sorts of items.  Murderabilia is surely less harmful than alcohol or cigarettes, for example, and we readily allow the sale of these items.

In their forthcoming book, Markets without Limits:  Commercial Interests and Moral Virtues, philosophers Jason Brennan and Peter Jaworski offer a rationale that also seems to support permitting the sale of murderabilia.  Their analysis is driven by the claim, roughly stated, that if it’s permissible to give something away, it’s also permissible to sell it.  Thus, things like the sale of vital organs and prostitution ought to be permitted in a free market, because organs and sex are both things that can permissibly be given away, so to speak.

This claim also seems to support the permissibility of selling murderabilia.  Surely it’s permissible for letters or works of art to be given by famous serial killers, for example.  By Brennan and Jaworski’s principle, it would also be permissible to allow such items to be sold.

That said, there does seem to be something disturbing about the sale and collection of items made collectible by their connection to the killing of others.  But what is it about this activity that makes it so disturbing, and does this feature justify legal prohibition on the sale of murderabilia?

I confess that as of now, I don’t know the answer to this question.  But if you have something to say about this, post a comment below, and we’ll try to figure it out together.




→ 2 CommentsTags: Applied Ethics · Social Ethics

Is “Yes Means Yes” a Good Standard for Sexual Consent?

September 30th, 2014 by Elijah Weber · No Comments

Recently, my home state of California passed a measure that redefines the way consent to sexual activity is typically understood.  Typically, the standard for determining whether someone has given consent to sex is characterized as a “No Means No” standard.  This standard problematically places the burden of proof on victims of sexual assault, who must prove that they adequately expressed their refusal to consent.

The “Yes Means Yes” standard shifts the burden of proof away from the victim, and onto the alleged perpetrator.  Now, when someone is accused of sexual assault, they must prove that they were given consent.  The absence of a refusal is no longer regarded as consent.

On the face of it, you might think this is a really good thing.  After all, sexual assaults continue to be a serious problem in the United States, and part of the California legislature’s motivation was to put pressure on colleges and universities to do more about the especially serious problem of sexual assaults on our nation’s academic campuses.

Plus, surely the absence of a refusal isn’t akin to giving consent.  Imagine if during a medical examination, your physician discussed the benefits of receiving a flu shot, you nodded in agreement throughout the discussion, and your physician then gave you a flu shot without your consent, insisting that your lack of explicit refusal, plus your vigorous nodding, was adequate to justify their giving you the flu shot.

The “No Means No” standard has clearly created problems in the way that we treat victims of sexual assault, and it most likely makes it too easy to get away with these sorts of crimes.  However, part of the problem with the “No Means No” standard is that it’s incredibly difficult to determine whether someone has refused to consent to sex.  Whether a particular instance of sexual activity counts as sexual assault depends almost entirely on whether consent has been given, so this difficulty is a big part of what makes sexual assaults so difficult to prosecute.

While the motivation of the California legislature was clearly based on ethical concerns, the more difficult issue here is not an ethical concern, it’s an epistemological problem. Prosecuting sexual assaults requires that we know something that, in almost every case, it’s impossible to know with any degree of certainty or confidence.

The relevant question for determining whether a sexual assault has occurred is “did everyone consent?”.  Now, it seems clearly mistaken to think that the absence of a refusal counts as a consent, so in that regard, the shift to a “Yes Means Yes” standard is a positive step.  However, it’s not clear that it’s any easier to determine whether a positive consent occurred.  Either way, we’re mostly relying on the testimony of the involved parties, and occasionally a witness or two, to determine whether a consent was given.

Shifting to a “Yes Means Yes” standard has the positive feature of more closely tracking what’s relevant to consent, as well as the ethical benefit of minimizing the re-victimization of the victim that has become all-too-common in many sexual assault investigations.  However, “Yes Means Yes” does not resolve the deep epistemological problems associated with sexual assaults.  Whether “Yes Means Yes” or “No Means No,” determinations of guilt or innocence in sexual assault cases remain largely a matter of he said–she said.*

*I use the phrase “he said-she said” for rhetorical purposes, and to reflect the fact that most sexual assaults involve female victims of male assailants.  However, this should not be taken to imply that same-sex sexual assaults do not occur, or that they are any less serious.*

→ No CommentsTags: Applied Ethics · Sexual Ethics · Social Ethics