At Loss

WOW. I’m so thankful and taken about being asked to become a
contributor. I promise to try  not to clutter the blog with my postings
as has occasionally happened with the comments. I also apologise for my less than perfect English in advance.  I’ve often wondered
what I would write if I got the chance. I’m nervous but here it goes.

The topic of this posting is influenced by the previous discussion about decision procedures and by this
If I were raped today
article in today’s Guardian. It’s Julie Bindel’s touching piece on how rape victims are treated in the UK currently.

As a philosophers and ethicist one is often at loss in the ‘real world’. You see very real and tragical ethical dilemmas. Given that you have some knowledge of moral theories and ethical thinking you think that you would have some tools, probably short of decision procedures, to cope with these problems. But, when you look at the often very sad cases, you quickly notice that you don’t. This makes you feel even worse. Bindel’s article is an excellent illustration of this.

Bindel says this in her article
"[A] couple of years ago I made a pact with myself, which I vowed never to
reveal publicly. At this juncture I feel I must, though: if I was raped
now, I do not think I would report it to the police."

Now, the question is did she do right in breaking the pact with herself or should she not reveal what she really thinks about the issue? No matter how I think about this, the less sure I am about what to think. And, the more I think about the case the more outraged I become both of the facts of the case and my inability to make a sound judgment.

Bindel has good reasons to say what she says. As awful as it is, it does seem to make sense not to report being raped in the UK currently. Like she says, rape victims risk of being identified, vilified and even criminalised. Only a one in four men are convicted as a result of complaints. The police treats rape victims often with suspision and contempt. As a result, it does seem like a sound advice from Bindel to say that ‘do as I say, do not report rape’.

On the other hand, admitting the state of affairs and giving this advice seems to risk creating even worse circumstances. Some men may see this as a license for rape. What consequences can there be if the women are not even going to report the crime? As a result, there may be even more rape incidents. So, even if it would be wise for women not to report rape in the horrendous circumstances, maybe it would be right not to say this in public.

So, was Bindel right to say what she said publicly? I’m at true loss. I don’t know. I don’t even know how to begin to think about this. Thinking about any ethical theory seems to be so out of place even if it lead somewhere. Were I an utilitarian, I could begin to construct an utilitarian calculus. I know in advance that I could not do this satisfactorily. As a contractualist, I would probably have to think about the worse objection, but I’m not sure how that helps in this case. Kantian would probably say that she is breaking a promise to herself which is always wrong but that doesn’t seem to be a good answer either. Any ideas about what to say? I haven’t got a clue. After ten years of studying philosophy. I would really like to know the opinion of our fellow PEA souper Laurie Shrage.

18 Replies to “At Loss

  1. Nice post, Jussi. Man, when you come aboard, you come aboard!
    I actually think that this is a very interesting yet revealing case of being at a loss, and that your (and my) being at a loss in such a case is due to a kind of empathic inability. I believe that when people engage in actual real world moral judgments (as opposed to moral theorizing), they very often engage in a kind of imaginative projection into the shoes of the judgee and then ask themselves “how would I feel had I done this action in these circumstances?” They then make a moral judgment based on their emotional reactions. But being able to do so depends on being able to understand what it is/was like for that person in those circumstances, and in cases of women-qua-potential-rape-victims I think that, in general, men have an inability fully to understand what living in such a world would be like for a woman. Thus the uncertainty about how to respond. Sure, there may be analogues, but nothing that provides the very specific kind of background fear, powerlessness, impotent rage, and so forth that would likely come with being a woman in a society in which rapes regularly occur. This is why I found it instructive that you appealed to Laurie Shrage for her opinion on the issue.
    So perhaps the general question is this: are there cases of being “at a loss” with respect to real-world moral judgments that don’t involve this specific kind of empathic inability?

  2. David,
    thanks. That may explain some of the feeling of being at loss. But, I’m not sure if it explains all. I have a friend, who is a guy, who was raped by a girl when he was very drunk. Yes, it can happen. He never went to a police for many reasons. I’m sure getting a conviction would have been very difficult in that case too and might have ended up being a hurtful experience. In this case too we might think that there would be reasons to say as a man that if I was raped I would not report it to a police. Same difficulties seem to follow. Of course there are far less women rapers and the experience of being raped probably is a lot different.
    But, a lot of the difficulties seem to remain. It’s true of course that I probably have difficulties in imagining what it is like to be raped as a guy. But, my main worry is how little help many of the moral theories seem to offer even when not many of them require in application to imagine yourself what the relevant experiences are.

  3. Jussi,
    Let me add to the chorus of welcomes to you (and to Eric as well).
    Your sense of being at a loss seems to come from the fact that in a morally better world, women would not feel humiliated, tormented, etc. by reporting rape. The sense of a dilemma comes from the clash between what Bindel ought to do in a better world and what she ought to do in the morally imperfect world as it is. She clearly cares about stopping rape and helping its victims. I guess I’m also not sure about the likely consequences of her publicly affirming ‘don’t report your rape.’ Maybe more men would rape, but maybe the public would be moved to change the procedures by which rape is handled by law enforcement, etc. And I also wonder if there’s room for saying her decision is non-moral in nature — that she has no obligation either way. That certainly seems true in the case of reporting crime (as opposed to recommending that it not be reported): I’m not morally obligated to report the crimes committed against me.

  4. Michael,
    You said: “I’m not morally obligated to report the crimes committed against me.”
    I wonder if this is true generally. On some views, criminal offenses are more than just wrongs against the victims. The state won’t drop a case simply because the victim doesn’t want to press charges, though it will if it needs the victim’s testimony to prosecute. It is probably true, though, that you’re not morally obligated to report a crime committed against you when this would lead to your being humiliated and tormented further.

  5. I hope I can say something useful!
    I don’t have a problem with Bindel’s public statement that she might not report a rape. Her statement offers sad and critical commentary on the inadequacies of the legal system and its response to this crime.
    There are many circumstances in which it might not be prudent for a victim to report a rape to the police: sex workers and wives typically do not, women who delay reporting –making the collection of physical evidence impossible–may decide not to report, if the woman had any prior sexual or romantic relationship with her attacker it will be difficult to prove lack of consent, etc. In a typical “it’s her word against his” case, her credibility will be tested in court in ways that would be humiliating and painful for most of us.
    I don’t know what kind of rape shield laws you may have in the UK, but, in the US, we now have laws that “shield’ rape victims from irrelevant cross-examination typically aimed at discrediting a woman for being “sexually loose” or nonvirtuous. Yet it’s still difficult for many victims to face their attackers or stand up in court, given the shame that surrounds this crime and the tendency to blame victims.
    I served on a rape jury a few years ago, and one thing I observed was that most of the women called to jury duty, when they heard the charges, made every attempt they could to get released from serving. Those who gave their reasons to the judge publicly (reasons why they could not evaluate the case in an unbiased way) mentioned such things as a daughter or friend had been raped, or it made them uncomfortable to discuss the crime (this was an aggravated sexual assault, which involved kidnapping, physical violence and injuries). I too was hoping not to serve, but when most of the women present were excused from service I decided not to try to get excused (I could have volunteered that I taught feminist theory and would probably have been dismissed by the defense attorney!). In the end the jury had 4 women and 8 men. This was a “stranger rape” case in which consent was not an issue, only whether the police nabbed the right suspect. When the DNA tests showed that DNA matching the defendant’s was collected from the woman’s body, and that only 1 in every 3 million people could have DNA that matched the evidence sample, and the probablility that someone whose DNA matched the sample and possessed the other traits of the suspect (based on the victim’s report, e.g., age, size, location, etc.) was much lower (these traits did match the defendant), the jury did not initially feel that this met the standard of “beyond a reasonable doubt.” It took quite a bit of discussion (hours) about how low the probability was that anyone other than the defendant could have committed this crime before the jury would convict. So even in a stranger rape case with physical evidence of rape and the use of physical force and battery, a credible victim (married white mother, who was assaulted as she was picking up donuts for her kids…), and other circumstantial evidence (the defendant was found with items he had stolen from her) a conviction is very difficult to obtain. Unfortunately, it might have helped in this case that the defendant was black–that is, the racial status of the victim and the accused may have shaped the district attorney’s decision to invest time in this case. In LA, following the Simpson trial, however, it also meant the prosecutors devoted several days to convincing us that the DNA evidence was properly handled…In short, few rape survivors get any sort of justice from the legal system.

  6. Dave,

    I actually think that this is a very interesting yet revealing case of being at a loss, and that your (and my) being at a loss in such a case is due to a kind of empathic inability.

    I was actually thinking just the opposite, that the feeling of being at a loss arises because we do in fact empathise. That is, we feel as if we’re at a loss because we have a suspicion that reporting such cases is necessary to reduce, in the long run, a large number of horrible events, but in the short run, this innocent person will have to subject herself or himself to a great deal of additional, undeserved harm in order to help do so. So, we think that in the long run, a great deal of harm can be avoided, but at the cost of a great deal of short-term harm to an already undeservedly-harmed person. I don’t think most folks have any trouble empathising with that person, even if they can’t empathise completely with that person’s specific experience.
    But, Jussi’s question was about the apparent lack of guidance that moral theories can give. Jussie, you chose to focus on the author’s decision to reveal that she wouldn’t report being raped. Let’s take the example, however, of whether to report an actual rape. I don’t see the justification for the pessimism. Here are some questions a consequentialist would ask that could help guide the decision-making: What are all the possible actions I could perform now? Who are all the parties that will likely be affected by each action? What is the likelihood that each party will be affected? What harm will be caused to each party? What is the extent of the harm that would be caused to each party? What is the duration of the harm that would be caused to each party? Etc. Surely all of these questions might help guide a person to perform an act that is morally permissible. The insights from other theories can also help guide one’s behavior. For example, from a virtue theorist: would reporting the rape be an act of courage, or would it be foolhardy? So, while I don’t think these theories can, in this case, guide us to an answer about which we can be *certain*, I don’t see the pessimism about whether these theories can be *useful* in guiding one to perform acts that are at least morally permissible. Or am I missing your point?

  7. Thanks for comments everyone.
    Michael,
    I think you are right. Part of the confusion must be due to the fact many of the moral theories seem to be ‘Ideal theories’ in Rawls’s words – they are appropriate for guiding actions in the Kingdom of Ends. But, the circumstances we are dealing with here are far from ideal and so we would need some ‘Nonideal’ theories to help us. Few moral theorists have concentrated on them.
    There is room for saying that her decision is non-moral choice. But, there seems to moral issues involved. The advice seems beneficent – it may save women of unneccesary humiliations. Giving it may lead to others being raped. So, at least the question goes towards risking of being a moral issue. Ideally, the moral theory we use would tell us whether the issue is moral or not in its nature. But, if we find it hard to apply a theory in the case, it’s not clear that a theory can tell us even this.
    Laurie,
    thanks. Much of what you say makes sense and is helpful as sad as it is.
    Dan,
    it’s true that there are cases where moral theories do offer guidance. Maybe the issue of whether to report a rape or not is one such issue. But, it too is not without problems. At least applying consequentialist framework seems to open a can of other worms. Should the harm done to the rapist as a result of the conviction be taken into account of the calculations? What could the benefit side be from getting the conviction, i.e., would that improve anyone’s well-being? Are the harms for the victim from unjust treatment in the process really something she should take into account in deciding what is the morally right thing to do? Here we get to the problems of the utilitarian punishment theories.
    But, no. You are not missing the point. I guess the worry is that moral theories offer help mainly where we already know what to do and offer little help where the real uncertainty lies.

  8. Hi,
    Because I largely agree with what Dan just wrote (the being at a loss is due to empathising), I’ll express, that from a different tack, an awkward balance is being sought: the ration between false positives to true negatives, ie., how many innocent men do we want going to jail for rape for each rapist who does not? Ideally, we do not want any of either.

  9. First, I’m maintaining that the more we can work ourselves into the concrete circumstances of the judgee, the less “at a loss” we typically are in making real world moral judgments (given that the judgee herself has made a moral decision and so herself isn’t at a loss). Dan, you’ve listed several generic features of the case you claim to be able to empathize with, but there’s nothing terribly *concrete* about those features: there’s some person who’s in a tough spot and bad things might happen to her if she does one things, whereas bad things might happen more generally if she does another. I don’t think appreciation of that sort of general situation is genuine empathy, though, which of course is a matter of degree but consists in understanding what it’s like for that person in her particular circumstances and with her specific set of cares, fears, and the like. It’s the last bits that I think men generally can’t appreciate with respect to women on this particular issue, anyway. And it would be these bits as well, Jussi, that most men couldn’t really appreciate about other men who are raped, as in the case you cited. And again, I find it instructive that Laurie unhesitatingly said, “I don’t have a problem with Bindel’s public statement….”
    The other point I tried to make was that moral theories are typically irrelevant to real world moral judgments. I find it very hard to imagine moral judgers running through their heads the kinds of theoretically considerations Dan mentions (e.g., “Would this be a courageous thing to do?”). But even if such considerations do play a role, we’ve got such a mix of consequentialist, deontological, and virtue-theoretic intuitions that, without some kind of “internal theory-ranker” (which we surely don’t have), we’ll be left at a loss in this instance as well. Perhaps I’ve grown too cynical in my old age (or perhaps I’ve been too influenced by the results of Jonathan Haidt-esque “emotional dog” social psychological conclusions about moral deliberations), but I just can’t see that moral theory plays any real world role in moral judgment.

  10. Jussi

    I guess the worry is that moral theories offer help mainly where we already know what to do and offer little help where the real uncertainty lies.

    That’s where I think I might disagree. It is true that moral theories might fail to provide, as it were, complete or certain help. But I think some moral theories do help folks go through a better moral decision-making process. For example, after discussing consequentialism in class, I think I see my students’ “focus of concern” extend substantially. They become more aware, for example, of so many other people or things that could be affected by their actions, and of how these other people or things might be affected, etc. And I think that that is an important result of understanding and trying to apply ethical theories. But, again, I think you are right that these theories won’t offer, as it were, complete or certain help.

  11. Feminist anti-rape and anti-violence movements have set up crisis centers so that victims do not have to go to the police alone. They help women navigate the dilemma of whether to go to the police, and they provide information on where women can get medical help, and also find trained medical staff to help with the collection of physical evidence in a way that is sensitive to the victim and humane. They also make referrals for counseling and legal help, and some provide sexual assault education in the community.
    I think these crisis centers are a great resource for dealing with this crime, and law enforcement officials have increasingly recognized this.
    I suppose one could ask the question regarding the usefulness of moral theory in a different way. Rather than thinking of theory working on the level of individuals who respond in morally loaded situations, perhaps we could ask if some conception of utility, duty, or virtue shapes our collective decision to organize and support institutions such as crisis centers, or the decisions of people who work at them. Many of the women who volunteer at crisis centers are motivated by political commitments that we would broadly construe as feminist and progressive. But many are also responding to the suffering of women they know, many see a strong relationship between sex equality and personal security, and many are interested in clarifying the moral confusion that surrounds thinking about rape, especially acquaintance rape.
    I would hope that moral theory doesn’t lead us primarily to moralize about the decision of a woman who has been assaulted (or the decision of a woman who might face an abortion after being raped), but rather would make us think about the various ways all the different people and institutions involved should or could behave.

  12. Laurie,
    that most certainly is right. Many theories of justice in political philosophy are useful in assessing which kinds of institutional designs would be just on the abstract general level. Pretty much applying any one of these plausible theories gives us the outcome that the way the relevant official institutions, police and the courts, function in this case does not satisfy the criteria of justice. Of course setting up crisis centers helps to limit the harm caused by the official institutions. It would also be great if something could be done about the official institutions, but the question of how one could go on about doing that I gather is a complicated practical and political question.

  13. The legal standards for obtaining a conviction for rape are high and, I would imagine, most of us would think they should be high, as Adam’s comment above suggests. As much as we sympathize with victims, defendants have rights too, and we should set high standards for a conviction in order to avoid penalizing innocent people. We can ask though whether the standards that juries employ in rape cases are higher than in other cases. And if this is so, what moral choices and options do those dealing with rape have?

  14. There seems to be an assumption in this thread, and maybe on this blog, that we can separate the moral and political dimensions of actions. Can we morally evaluate Bindel’s public statement that she probably would not report a rape without analyzing the political aims and the likely political consequences of her actions? I don’t see Bindel’s statement as morally problematic because of how I am interpreting her broader political aims and because, despite her aims, such a revelation may have some political value (even if it contributes to the underreporting of rape, which I doubt–since this happens for many other reasons). I generally tend to think moral and political judgments are intertwined in this way, but I sense I’m in the minority on this.

  15. Hi Laurie. I agree with you that it is hard, if not impossible, to separate out the moral from the political dimensions of actions, though I’m not sure I see at work in this thread the assumption that we can. It might help if you could give an example from the thread where it looks as if the assumption is being made.

  16. Hallo,
    I left my comment even though I hadn’t finished it as I intended (needed to leave).
    I was going to consider/ speculate how being at a loss can be the ground motivating changes to legislation pertaining to rape. It seemed to me that the laws should be made such that few rapists get away with it (motivated by trying to prevent being at a loss, since its such a troubling feeling). How widespread untried rapes are is at least a part of what it is that leaves us at a loss. Such changes would invariably increase the number of wrongly convicted rapists. I imagine that one could be at loss when learning about one of those wronlgy convicted. This would motivate changes to the legislation to lower the number of wrongly convicted. Here’s what struck me as odd: being at a loss is particularistic, but, with many people being at a loss at a time, it behoves us to change laws in opposite directions.

  17. Dan,
    The assumption that we can separate ethical and political analysis is embedded in the idea that moral philosophers give advice to individuals who act in the real world while political philosophers give advice about larger social arrangements that structure the real world. Bindel has two dilemmas, one is a hypothetical one (would she report a rape) and the other is an actual one (will she reveal in public her current inclination). Can ethics help Bindel solve her dilemmas, and/or can ethics help us address the larger social problems that Bindel’s dilemmas bring into focus? The discussion so far has focused on the former. When I bring up matters pertaining to the latter, Jussi suggests that theories of justice in political philosophy may have something to say about them. Are there really separate enterprises here, since Bindel’s dilemma is about the relationship between individual (in)action and the perpetuation of social injustice?
    My own view is that we can’t resolve Bindel’s moral dilemmas without a better grasp of the social/political context in which she is acting, and this includes understanding all of the reasons women do not report rapes (public humiliation, fear of retaliation, blaming themselves for their victimization, intimidation in the presence of mostly male law enforcement and judicial authorities, lack of results, etc.). Moral theory has to have something to evaluate (whether we’re looking at consequences, motives, virtues), and so to engage in social/political analysis is to provide material for morally evaluating Bindel’s decision. (How can we evaluate the actions of Thelma and Louise–in the film–whose decisions after a rape occurs were far more drastic–without fully understanding the social context in which the actions of the rapist and victim would be judged?) In general, I find that professional ethicists tend to want to dispense with social/political analysis and get right down to applying moral theory.

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