Determining Consent

A question most people successfully avoid asking: can institutionalized patients ever have sex? The answer is ‘mostly no, unless they are very good at sneaking past nurses’. They also can’t kiss, hold hands, cuddle, or have any other form of romantic contact.

I worked in a mental hospital where two patients snuck past nurses and had sex once. It was treated as a public health crisis of approximately the same urgency as somebody throwing a bucket of Ebola-laced chimp blood all over the dining room. Both patients lost all their privileges, earned themselves 24-7 supervision by nurses, got restricted to their rooms, and had to go through a battery of tests for every STD in the book. We the doctors got remedial training with helpful tips like “If two patients seem to like each other too much, put them on opposite sides of the unit so they’re never in contact.”

Why the security? Mostly the hospital was terrified the patients would come back and sue them for letting it happen. It didn’t matter that they consented at the time; it wouldn’t have mattered if they’d signed consent forms in triplicate beforehand in front of a notary public. Psychiatric patients are treated as having inherently less ability to consent than the mentally intact.

This makes some sense. A lot of mentally ill people are confused and can make bad decisions during the height of their illness. And in this case, the two patients were only temporarily inconvenienced; we treated them for a couple of weeks and then discharged them back to the real world where they could have as much sex as they wanted.

Unfortunately, not all stories end this well. A small percent of very seriously ill people end up in long-term institutions, where they stay anywhere from a few months to a lifetime. And these lifers are sentenced not just to lifetime confinement but to lifetime celibacy.

The most heartbreaking cases are the severely and permanently intellectually disabled. Suppose somebody doesn’t have the intellectual capacity to understand language. This doesn’t mean they lack a sex drive any more than it means they lack a hunger drive. In fact, their sex drive is often stronger than normal – something to do with decreased frontal inhibition, I think. But none of these people are going to be saying “I hereby exercise my right to affirmative consent for sexual activity” anytime soon.

This is a hard problem. If the only people institutionalized patients consistently encounter are hospital staff and other patients, well…we definitely don’t want them having sex with staff. Even non-institutionalized visitors seems like potentially too much of a power imbalance. That leaves other patients. But it seems like most encounters between two patients will involve one of them “initiating” in some sense. And even if we grant that the initiator has implicitly non-verbally consented, what about the one who’s not initiating?

As far as I can tell, there are two ways to handle this. The first is the extreme position that no person beyond a certain level of intellectual disability should ever be allowed to have sex or even non-penetrative romantic contact like kissing or hand-holding. The second is that we need to relax the usual standards of consent to something more like “Well, we know both these people pretty well, and we’ve got a pretty good idea what they’re like when they’re happy versus upset. And we know they have the capacity to resist things they don’t want, because they’ve done it before, eg when we try to give them medications they don’t like. And right now they look pretty happy, and not at all upset, and they’re not doing any of the things they do when they want to resist something, so it looks like they’re consenting, so maybe we won’t send nurses to burst in on them and pry them apart.”

This second one should make us very uncomfortable. But the first one isn’t exactly encouraging either. Like, in the early 20th century a lot of eugenicists sterilized the mentally ill. And by the mid-20th century, people decided that was morally wrong, because parenthood is an important part of the human condition and it’s unacceptable to take away that right even if you believe it’s for a greater good. But I’m not sure it’s moral progress to move from “these people must never become pregnant” to “forget about pregnancy, these people must never even have sex”. If we’re even stricter in our prohibitions than the eugenicists, what right do we have to feel superior to them?

So, as much as I would like a better option, I think I support the second standard. In cases where people are so disabled that they cannot consent verbally, rather than force them into lifelong celibacy we should try to do our best to figure out what they want in other ways.

As best I can tell, this is what Peter Singer is saying in his New York Times editorial on the Stubblefield case. Anna Stubblefield was a professor who believed in “facilitated communication”, a Ouija-board-esque technique whose proponents say it allows them to talk to nonverbal disabled people who can’t communicate any other way, and whose opponents think it’s probably pseudoscience. She used facilitated communication on a nonverbal young man named DJ and “received” the message that he wanted her to have sex with him, so she did. When the story reached the wider non-pseudoscience-believing world, it looked like a pretty obvious case of rape.

Singer seems to think facilitated communication might work, but he thinks Stubblefield’s actions might have been acceptable even if it doesn’t. He says:

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.

Singer’s phrase “cannot understand the normal significance of sexual relations” is a reference to the legal standard for consent in most states, which say that disabled people can consent to sex if and only if they do understand this. What he’s saying is, as far as I can tell, the same thing I said above. Some people may not have the cognitive capcity to understand sex and consent in an intellectual way, but for these people to be forcibly kept celibate their entire lives seems hardly better than the eugenicists who would have just sterilized them and gotten it over with. Instead, we should try to judge their feelings from things like whether “the experience was pleasurable to him” or whether “he was capable of struggling to resist.” Singer’s position – and without knowing the disabled man involved I don’t know if this is true, and some people I trust say it isn’t, but it seems to have been his position – is that this was someone who was incapable of the complex cognitive process of consent, but pretty happy with the whole situation.

I once knew a very extreme libertarian who said that white settlers taking Native Americans’ land wasn’t “theft” because the Native Americans didn’t have a concept of property, so no harm done. I worry that people are misinterpreting Singer as saying the same thing here – something like “this guy doesn’t have a concept of consent, so you can’t violate it”. This is not how I interpret the sentence about consent in the first paragraph of the quote. I think Singer is using “consent” to mean an inherently verbal/symbolic/cognitive process – someone explicitly understands what it means to consent and intentionally expresses that to others. So when I say “we are forced to infer consent from nonverbal rather than verbal cues”, Singer expresses the same idea as “since we can’t use consent, we need to fall back on simpler ideas like those of pleasure versus harm.”

The second paragraph makes it sound like if there was any sign DJ wasn’t okay with what was happening – if he were screaming or resisting or even frowning – Singer would no longer be okay with this. It seems to be Singer’s belief/assumption (though likely false) that DJ’s nonverbal behavior presented strong evidence that he was enjoying the sex and wanted it to continue. When he says that “nobody was harmed”, he’s not saying that disabled people don’t count as somebody. He’s saying that if two people both enjoyed a sex act, both of them seemed to be participating voluntarily, and neither person suffered any physical or emotional harm (including the harm of feeling like one’s preferences were being violated) this is probably the best moral test we can apply in a situation where the usual test of consent is absent.

So of course everybody writes thinkpieces with titles like Now Peter Singer Argues It Might Be Okay To Rape Disabled People:

Again, let’s be clear on what they are saying: if someone is intellectually disabled enough, then it might be okay to rape them, so long as they don’t resist, since a lack of physical struggle justifies an assumption that someone is enjoying being raped. (Singer is also offering a variation on his own prior arguments in favor of bestiality, which work because Singer believes disabled people and animals are the same for purposes of ethical analysis.)

I think it’s a pretty good principle that, if you don’t want to consider disabled people and animals the same for purposes of ethical analysis, you break the equivalence in favor of the disabled people. Yet I notice that when two animals have sex, we trust them to make their own decisions. If a female dog in heat has jumped a fence to find a male dog, and the male dog jumps over his fence and starts humping the female dog, we might separate them because we’re not willing to take care of the puppies, but nobody would separate them because the dogs are just animals and so too stupid to understand the nature of consent. If one of the dogs was screaming and yelping and trying to get away, we would try to rescue it. But if both dogs sought it out and seem to be enjoying themselves, we grant them enough respect to assume they know what they’re doing.

And again, I would hope that part of being against equating dogs and people (of any level of intellectual ability) is that you give more respect to the people. And part of that, to me, seems to be that if two people seek out sex and seem to be enjoying themselves, we grant them enough respect to assume they know what they’re doing. And this seems true whether or not they have the intellectual capacity to form the words “I consent”.

Everything about this situation sucks, and there is no good answer, and honestly I hate to have to talk about this. But since people keep asking me, fine, here’s what I think.

From a legal point of view, Anna Stubblefield should absolutely 100% go to jail. Whether or not DJ wanted sex with her is irrelevant. Even if he did (and we have no evidence other than the testimony of the alleged rapist that this is the case) she committed an action which put her at extreme risk for raping somebody, without any system in place to minimize that risk. A world where people can go around having sex with random disabled people as long as they say “I’m pretty sure he was in favor of it” is a world where many disabled people who are not in favor of it will end up being raped. As long as that’s the situation, the law against doing so is just and needs to be enforced. I think I legitimately disagree with Singer on this.

(also, she was his translator and that creates a power imbalance. I don’t want to get into this further because I don’t think it relates to the thesis here, but it’s obviously an important point.)

From a political point of view, I wish there were a system in place to protect disabled people from sexual abuse while not banning all sexuality entirely. If you want to do surgery on a disabled person who can’t consent, lots of doctors and lawyers and friends and family get together and do some legal stuff and try to elicit information from the patient as best they can and eventually come to a conclusion. The result isn’t perfect, but it’s a heck of a lot better than either “no one can ever operate on a disabled person” or “any surgeon who wants can grab a disabled person off the street and do whatever operation they feel like”. If there were some process like this for sex, and they decided that DJ wanted to have sex with Anna, then (again ignoring the power dynamics issue) I think this would be better than either banning him from all sex forever, or letting her have sex with whoever she wants as long as she can make up convincing enough pseudoscience. If a legal procedure like this had been followed, I would not think that she should go to jail.

From an ethical point of view, I think it’s correct to abstract away all the features of the problem mentioned above, the same as we avoid issues of how well you understand the physics involved when we think about the Fat Man problem (or, as the Internet likes to call it, “Now Judith Thompson Argues It Might Be Okay To Throw Obese People In Front Of Trains”). In this abstract and conditional world, the question is whether we must completely prohibit someone from having any kind of sexual life if they’re unable to verbally consent but able to give reliable cues that they want the sex and are enjoying themselves. I think the answer is “not always”. I agree it is probably bad to connect this abstract ethical view to a real case where real people are harmed unless you are very sure that all of your assumptions hold true, homework which it looks like Singer might not have done.

From a philosophical point of view, I think that if we are to be at all better than the BETA-MEALR Party, we need to acknowledge that we are not promoting consent if we enforce the same position on everybody no matter how strongly they seem to want the opposite, even if we talk incessantly about how much we love consent while we’re doing so.

The Current Affairs article argues that Singer’s views discredit utilitarianism, since utilitarians are these annoying people who always seem to be coming to weird conclusions that would be much more convenient to ignore. I agree that Singer’s views are related to his utilitarianism, and that this philosophy produces more than its share of weird conclusions that would be more convenient to ignore.

But ignorance isn’t a suitable foundation for ethics. It’s incredibly easy to ignore disabled people being sentenced to a life of involuntary celibacy, because ignoring marginalized people is always easy and convenient, plus enforced celibacy isn’t the same sort of flashy human rights violation that has a death toll in the thousands and helps sell newspapers. People who cobble together their moral systems from whatever helps them ignore bottomless pits of suffering most effectively will always have more convenient and presentable moral systems than people who don’t. But if we’re going to try to be good, we need to work for something better.