Ethics January Article Discussion Forum

Welcome to our highly anticipated discussion of Michelle Madden Dempsey‘s “Coercion, Consent, and Time.”  The paper is published in the most recent issue of Ethics; you can find it here.  Kimberley Ferzan‘s critical précis is immediately below. Please join the discussion!

Kimberly Ferzan writes:

Michelle Madden Dempsey’s “Coercion, Consent, and Time” does exceptional conceptual and clarificatory work.  Here’s the problem it addresses.  In the wake of the #MeToo/#TimesUp movement, allegations from the past have surfaced, and in response, exculpatory claims have been made.  But, Dempsey maintains, the claims of exculpation have blurred three distinct arguments: the argument that the action was not wrongful at the time, the argument that the defendant ought not to be blamed for not knowing his action was wrong back then, and the argument that so much time has gone by that the person should no longer be called to account for past wrongdoing (347).  I think this is spot on and incredibility important.  I do have some worries about Dempsey’s application of the first two categories to actual examples.  Maybe classification is harder than we think.

But that used to be okay!

Dempsey begins with wrongfulness norms, which “track critical, not merely positive social morality.” (348).  To consider whether wrongfulness norms have shifted over time, Dempsey looks to coercion, which she defines broadly.  (350).

Dempsey’s illustration for shifts in wrongfulness norms is the controversy over the song “Baby, It’s Cold Outside,” which has a woman saying she has to go home and the man continually imploring her to stay.  Leaving aside the line “hey what’s in this drink?” Dempsey offers two readings of the song: one with the man continually nagging the woman until she gives in (Baby1) and the other as the two as “partners in crime” because she wants to stay, is restricted by social context such that she can’t just say “yes,” and is offered by him reasons she can use to excuse her conduct (Baby 2). 

To be sure, “Baby, It’s Cold Outside” is a reminder that we have to be careful about applying a contemporary lens to our understanding of the conduct at issue.  And Dempsey is correct to note that certain kinds of conduct might have had a different social meaning, but I can’t help but conclude (as apparently an anonymous reviewer did as well) that there is no coercion in Baby2 so there is no change of the wrongfulness norm.  We simply misunderstand the conduct.  

Dempsey does then move to Age of Consent where she imagines a twenty-year-old having sex with a sixteen-year-old in the past.  Dempsey notes that we might think that is wrong now, but that “[i]f, back then, sixteen-year-olds were properly regarded as having sufficient maturity for a range of practices involving the giving of consent [including sex with twenty-year-olds] then conduct which was genuinely permissible decades ago, in a different social context, would be genuinely wrong today.” (353).  Again, I am not sure we have a shift in wrongfulness norms.  The trick is that Dempsey says that the teenagers were “properly” regarded as having the capacity to consent.

To back up, conduct may be non-consensual because no consent is given (the person is asleep, held down, etc.) or because the assent given is under conditions that render is morally inoperative (coercion, incapacity, lack of knowledge).  Baby1 v. Baby2 is the difference between coercion and no coercion.  Age of Consent presupposes a difference in capacity—that sixteen-year-olds did have a capacity to consent then, that they don’t now (an interpretation Dempsey recognizes n.27).  

I will confess that I find it hard to come up with a case where the coercive, deceptive, or incapacitative nature of the conduct, and its effect on consent (however we understand that), is held constant, and yet it once was permissible and now is not.  I hope we can take up whether there are such cases in this discussion.

Rather, what appear to be shifts in norms will turn on the aptness of a proxy rule, for which based on the knowledge we had then, it appeared that the conduct had less of an impact than we now discover it does.  So, the norms back then might have misunderstood what age is generally necessary for capacity, or whether a “no” always tokened non-consent.  To my mind, if we thought back then “sex with 16 year-old’s is okay” and it turns out they truly don’t have the capacity to consent, then the changing proxy rule is not about a change of wrongfulness but a question of excusability.  Of course, how one views these proxy rules will determine which side of the divide (wrongfulness/excuse) one places such cases on, and, perhaps, diagnose the root of some of our confusion between these categories, as there is a live debate as to how to best understand what a proxy rule is.

But everybody used to think that was okay!

Dempsey next considers “cases in which the wrong of nonconsensual sex has been committed, but the wrongdoer honestly, albeit mistakenly, believed the encounter was consensual” (354).  As Dempsey understands the category, sex without consent is wrongful, but if the actor honestly and reasonably believed he had consent then he is excused.  

For this category, Dempsey analyzes an actor’s mistaken interpretations of silence and stillness and whether they signal consent in a given context.  Here, a reasonable belief may excuse, but Dempsey notes that what makes the belief reasonable is what givers of consent “actually did back then to communicate their consent,” not the perhaps widespread wishful thinking by other people in the consentee’s position. (357-58).

I am surprised that Dempsey uses this example because it invites a question about what consent is.  Though she acknowledges this possibility (n.31), it means the example is not perhaps the best way to be sure that readers understand what this category is thought to contain.  That is, she ultimately distills this excuse into, “But that’s how people used to let you know it was okay!” (358).  But, if you believe that consent is communicative, as opposed to a mental act, then actually these are cases where the person was consenting, whether she wanted to or not, because she engaged in the conduct that was widely understood to communicate consent.  

Though I believe this example invites potential confusion, the category itself strikes me as a particularly fruitful.  Indeed, every time I tried to come up with an example of a shift in wrongfulness norms, I ultimately determined that the case I was considering was better classified as an excuse.  It was just reasonable to think that back then.  

Here, though, Dempsey does not address (but I think should have) mistake of facts versus mistakes of morality, and whether one can ever be excused for the latter.  Dempsey’s case raises the former.  But, like the debates over whether ancient slaveholders should be excused because they lacked knowledge their conduct was wrong, we could ask whether there are cases in which mistakes about the moral wrongfulness of an act were so pervasive (“it’s okay to tease a girl by pulling on her string bikini”) that the actor ought to be excused.  I am not sure I have a convincing case on hand, but it seems to me that much of the discourse surrounds claims about mistakes as to wrongdoing and not just mistakes as to facts.

But that was so long ago!

We are now to assume that the actor’s conduct was wrongful and unexcused, but “the gist of this claim is that too much time has passed for [him] to be held accountable for his past conduct.” (358).  Dempsey accepts that if the conduct was not wrongful, the person is excused, or the person has transformed then there is less reason to hold the person accountable.  But in instances of serious sexual misconduct, she believes the reasons for public accountability remain because we should call serious wrongs to account and all the more so when we have refused to recognize such wrongs in the past and victims did not have a real opportunity to come forward because their violations would not have been treated seriously previously.  

My only gripe with this discussion is that there are a number of questions that could have used Dempsey’s conceptual parsing.  There are a many moving pieces at the same time: (1) the underlying wrong and whether, particularly in cases of slight wrongs, something can become less wrong over time (consider rebuking someone over Twitter for pushing you twenty years ago), (2) changes in personal identity over time, and (3) steps the person took to hold himself accountable.  All of these questions then intersect with why we would want to hold someone accountable, where Dempsey invokes traditional justifications for punishment at points, including rehabilitation, specific deterrence, and general deterrence.  Moreover, though Dempsey distinguishes public accountability from private accountability in detail, we need to justify not only “public accountability,” but also the remedies that are proportionate with respect to all of our concerns.    Though this section and discussion could be a bit better organized, Dempsey nicely brings to the fore some countervailing considerations for why a public accounting now for acts of the past might be more important than in other instances of wrongdoing.

36 Replies to “Ethics January Article Discussion Forum

  1. First, let me offer my sincere thanks. Thank you to Kim for the excellent summary and critical comments on my article, to Kerah for organizing this discussion, to Tom Dougherty for allowing me to work with him in organizing the Ethics symposium on coercion and consent, to Hallie Liberto, Mollie Gerver, Quill Kukla, Victor Tadros, and Tom for their brilliant contributions to the symposium and participation in a workshop on the papers at Villanova in February 2019. And, of course, thank you to the peer reviewers for helpful suggestions and critical comments – and to Julia Driver, Connie Rosati and the associate editors at Ethics for agreeing to publish the symposium.

    To avoid writing a super long post, I’ll organize my responses to Kim into three parts – wrongfulness norms, excusability norms, and accountability norms. As you’ll see, I’m still grappling with many issues raised in the article – and so I look forward to the discussion and learning from any responses Kim and others may want to offer.

  2. Wrongfulness norms: Kim wonders if my discussion of the “Baby” and “Age of Consent” cases illustrates a genuine shift in wrongfulness norms. I’m on the fence about this issue, too. I wish I’d been clearer (in my own mind, and in the article) on this point.

    There are at least two kinds of arguments someone might be offering when they claim, “But that used to be okay!” –

    (1) Wrongfulness norms have genuinely shifted over time; or

    (2) That kind of behavior was just different back then (the social meaning/context differences means it wasn’t the same kind of act as it would be now).

    In this article, my primary goal was just to flag up the distinction b/w these kinds of arguments – not to adjudicate between them (fn 27). (And, of course, more generally, the goal of the article was to flag up distinctions among arguments grounded in wrongfulness norms, excusability norms, and accountability norms.)

    Maybe my goals were too modest. Perhaps I should have been more skeptical about whether wrongfulness norms can genuinely shift over time – and done more to explain the kind of arguments that would need to be made in order to succeed in using the “But that used to be okay!” defense.

    If wrongfulness norms don’t shift with time, then the “But that used to be okay!” defense must rely on arguments along the lines of (2) above. Such arguments would have to run something like this:

    *Given the social meaning back then, the conduct in Baby1 was actually just Adam and Barb acting as collaborative “partners in crime” – so, Adam wasn’t ignoring Barb’s “no” or coercing her – he was demonstrating proper respect for Barb and she genuinely welcomed sex with him. It’s not that it used to be okay to coerce people into having sex – it’s just that what Adam did was not coercive back then. (BTW – This is the interpretation of the song offered by Slay Belle in “Listening While Feminist: In Defense of ‘Baby, It’s Cold Outside,’” Persephone Magazine, http://persephonemagazine.com/2010/12/listening-while-feminist-in-defense-of-baby-its-cold-outside. I float this interpretation in the article, but don’t endorse it. It’s just a song – interpret as you wish. Peronally, I prefer the remake by Lydia Liza and Josiah Lemanski: https://www.youtube.com/watch?v=amK4U4pCTB8)

    *Given the higher maturity level/greater capacities of 16 yr-olds in decades past, the conduct in Age of Consent1 was genuinely consensual. It’s not that it was okay for older people to have sex with immature people back then – it’s that the maturity of 16 yr olds was just different back then. (FWIW, you can pick your ages to run this argument. The 16-20 yr old divide was suggested by a peer reviewer in some very helpful comments – so I went with it. The structure of the argument works even if we shift ages.)

    In sum, I’m sympathetic to Kim’s skepticism re: whether there can be a genuine shift in wrongfulness norms. I wish I’d done more to motivate the conclusion that if someone wants to defend himself with a “But that used to be okay!” kind of argument – then he needs to build an argument like the one in (2) above. That is, he needs to establish that his conduct (which, he should admit, would be wrongful if committed today), was just different back then, given the social meaning/context at the previous time.

    I’m curious to know what others think.

  3. Excusability norms:

    I’ll offer two quick responses to Kim here. First, regarding the ontology of consent. Second, regarding mistakes of morality.

    Consent: Kim thinks my example in the hypo Silence invites confusion – and she might be right. I thought I could bracket the issue of whether consent is a mental act or a communicative act. In foonote 31, I tried to do so by noting that most if not all reasonable beliefs regarding consent will be grounded in a belief that there was a communication that could reasonably be interpreted as signaling consent. (So, the mistaken belief is grounded in an interpretation of the meaning of a communicative act, even if consent is a mental act.) Further, I stipulated that in both Silence1 and Silence2, Barb’s silence and stillness are intended by her to communicate nonconsent to being sexually penetrated by Adam.

    Maybe I should’ve just bitten the bullet and confessed that I think of consent as a mental act. (Kim and I agree on that point.) That said, when it comes to accountability norms, I think there might be a good case for treating consent as if it were a communicative act – so I’m inclined to support affirmative consent policies/laws. (Kim and I disagree on that point.)

    Mistakes of morality: Kim thinks I should’ve addressed mistakes of morality, and whether one can ever be excused for the latter (eg, “whether ancient slaveholders should be excused because they lacked knowledge their conduct was wrong.”) On the point re: whether I should’ve addressed mistake of morality, Kim is entirely correct. I should’ve at least dropped a footnote to say that I don’t think mistakes of morality excuse.

    While I don’t think mistakes of morality excuse, I am open to the possibility that they impact accountability norms. Kim’s phrasing in the bit I quoted above it telling: it might be true (in some cases) that people who committed unjustified/unexcused wrongs in the past because they were laboring under a mistake of morality “should be excused” in the sense that (in some cases) we should not blame them for their conduct. (I can say more about that if anyone wants to discuss further – but I’ll leave it there for now.)

  4. Accountability Norms

    Kim is right to observe that there are many moving pieces in this section. One of my goals in this section was to distinguish private and public accountability. (My explanation involves a longish hypo about a dirty microwave in a law faculty common room and various parties’ responses to the messy culprit.)

    I offered this framework in hopes of motivating a view of the distinction between private/public wrongs which depends on the justifiability of calling someone to account in a particular way (privately or publicly). On my view, the following is true:

    1) Both private and public accountability call for justification;
    2) When private accountability is the only justifiable response to wrongdoing, then the initial wrong should be understood as merely a private wrong;
    3) When public accountability is justifiable, then the initial wrong can properly be understood as a public wrong; and
    4) The distinction between public/private wrongs is scalar.

    Kim wonders “whether, particularly in cases of slight wrongs, something can become less wrong over time (consider rebuking someone over Twitter for pushing you twenty years ago).” I view that question as one which concerns wrongfulness norms – not accountability norms. If we wanted to raise a slightly different question (one that focuses on accountability norms), we could ask “whether the justification for calling someone to account can become weaker over time.”

    To that question, I think the answer is clearly yes. Kim notes a couple of the reasons why the justification for calling someone to account can become weaker over time: changes in personal identity over time (a debate I bracketed in footnote 56) – and steps the person took to hold himself accountable (a point I thought weighed against the justifiability of holding him to account).

    Of course, the justification for holding someone to account might grow stronger over time. That’s the point I was trying to make about the #MeToo/#TimesUp movement. Although, I fear my point was not clear. Here’s the gist: when a society is experiencing a positive norm transformation, and it starts to reach a tipping point, then the case for contributing to that transformation (by holding accountable wrongdoers who violated the salient norm) becomes stronger. What might previously have been wasted effort in trying to hold someone accountable for that kind of wrongdoing now becomes a valuable contribution to positive norm cascade. In this way, the justification for holding someone accountable can grow stronger over time.

    I went even further to suggest that perhaps holding someone accountable can become a duty. In footnote 49, I tried to bracket the issue of whether victims have duties – but on that issue, I highly recommend the two articles I cited (Sandra Marshall, “Victims of Crime: Their Station and Its Duties,” Critical Review of International Social and Political Philosophy 7 (2004): 104–17. See also Ashwini Vasanthakumar, “Epistemic Privilege and Victims’ Duties to Resist Their Oppression,” Journal of Applied Philosophy 35 (2018): 465–80). Also, Ashwini does a stellar job of defending the view on the Philosophy 247 podcast, which can be found here: https://philosophy247.org/podcasts/victim/

  5. Hello all —

    Michelle Dempsey’s “Coercion, Consent, and Time” is a superb piece of moral philosophizing, containing an elegant conceptual framework that significantly advances our understanding of a real-world problem of true urgency. It’s the kind of piece that, once you’ve read it, will inform how you think about that problem forever after.

    At an abstract level, Dempsey’s distinction between the “that used to be okay” defense and the “everybody used to think that was okay” defense is a powerful one. Nevertheless, I believe, along with Kim Ferzan, that the distinction can be hard to maintain once we start looking at real cases. Ferzan states, “every time I tried to come up with an example of a shift in wrongfulness norms, I ultimately determined that the case I was considering was better classified as an excuse.” My own experience was very nearly the converse: most of the time I looked at what could be claimed to be merely an excuse, I ended up thinking it would be better understood as a shift in norms.

    Consider the case of Adam, who, in Dempsey’s hypothetical, sexually penetrates his partner, Barb, after she has remained still and silent in the face of his advances. Even in the 1950s, Dempsey seems to say, people understood that it is wrong to have sex without consent. But because of then-prevailing cultural understandings, they were prone to “mistakes” about when such consent actually existed. Thus, for Dempsey, the case of Adam and Barb (circa 1950), is best understood not as involving a shift in wrongfulness norms, but instead as involving a (reasonable) mistake about the application of norms. It is thus analogous to the case of the person who has no problem recognizing that there is a clear norm against taking another’s umbrella without consent, but is simply mistaken, and reasonably so, about which umbrella is his.

    That seems to me a misreading of the Adam and Barb hypothetical. If we could go back in time and interview Adam and Barb, I believe we would find that they – both of them — really did believe that it was not wrongful to have sex with a person who remained still and silent in such circumstances; they would not think they had made a mistake, and they would be quite surprised to learn that seventy years in the future people might think otherwise.

    In that sense, the Adam and Barb hypothetical is hard to distinguish from Dempsey’s “Age of Consent” hypothetical, in which a twenty-year-old at some point in the past had sex with a sixteen-year-old. Let’s assume that both parties understood, at the most general level, that it is wrong to have sex without valid consent, and that consent is valid only if the consenting party is competent to give it. Here again, it would be strange to say that they had made a “mistake” with respect to the proper age of consent. For them, being sixteen was old enough to decide to have sex, and it would seem strange to suggest otherwise.

    Part of the problem here is the level of generality at which the wrongfulness norm is stated. The more abstract and generalized the norm – e.g., “it’s wrong to have sex without consent” – the more likely we are to view a past deviation as a mistake in applying the norm. But the narrower and more specific the norm – e.g. “it’s wrong to have sex with a sixteen-year-old,” “it’s wrong to have sex with someone who has not given affirmative consent” – the more likely we are to view the deviation as an actual change in the norm. And until we can decide which is the right level of generality at which to state the norm, I think we will have problems in deciding which of Dempsey’s exculpatory categories properly applies.

  6. READ THIS POST FIRST. (I thought I posted this one before the ones on excusability norms and accountability norms – but it got eaten, so I’m reposting.)

    Wrongfulness norms: Kim wonders if my discussion of the “Baby” and “Age of Consent” cases illustrates a genuine shift in wrongfulness norms. I’m on the fence about this issue, too. I wish I’d been clearer (in my own mind, and in the article) on this point.

    There are at least two kinds of arguments someone might be offering when they claim, “But that used to be okay!” –

    (1) Wrongfulness norms have genuinely shifted over time; or

    (2) That kind of behavior was just different back then (the social meaning/context differences means it wasn’t the same kind of act as it would be now).

    In this article, my primary goal was just to flag up the distinction b/w these kinds of arguments – not to adjudicate between them (fn 27). (And, of course, more generally, the goal of the article was to flag up distinctions among arguments grounded in wrongfulness norms, excusability norms, and accountability norms.)

    Maybe my goals were too modest. Perhaps I should have been more skeptical about whether wrongfulness norms can genuinely shift over time – and then done more to explain the kind of arguments that would need to be made in order to succeed in using the “But that used to be okay!” defense.

    If wrongfulness norms don’t shift with time, then the “But that used to be okay!” defense must rely on arguments along the lines of (2) above. Such arguments would have to run something like this:

    *Given the social meaning back then, the conduct in Baby1 was actually just Adam and Barb acting as collaborative “partners in crime” – so, Adam wasn’t ignoring Barb’s “no” or coercing her – he was demonstrating proper respect for Barb and she genuinely welcomed sex with him. It’s not that it used to be okay to coerce people into having sex – it’s just that what Adam did was not coercive. (BTW – This is the interpretation of the song offered by Slay Belle in “Listening While Feminist: In Defense of ‘Baby, It’s Cold Outside,’” Persephone Magazine, http://persephonemagazine.com/2010/12/listening-while-feminist-in-defense-of-baby-its-cold-outside. I float this interpretation in the article, but don’t endorse it. It’s just a song – interpret as you wish.)

    *Given the higher maturity level/greater capacities of 16 yr-olds in decades past, the conduct in Age of Consent1 was genuinely consensual. It’s not that it was okay for older people to have sex with immature people back then – it’s that the maturity of 16 yr olds was just different back then. (FWIW, you can pick your ages to run this argument. The 16-20 yr old divide was suggested by a peer reviewer in some very helpful comments – so I went with it. The structure of the argument works even if we shift ages.)

    In sum, I’m sympathetic to Kim’s skepticism re: whether there can be a genuine shift in wrongfulness norms. I wish I’d done more to motivate the conclusion that if someone wants to defend himself with a “But that used to be okay!” kind of argument – then he needs to build an argument like the one in (2) above. That is, he needs to establish that his conduct (which, he should admit, would be wrongful if committed today), was just different back then, given the social meaning/context at the previous time.

    I’m curious to know what others think.

  7. This is a really interesting discussion. I’m afraid I’m jumping in a bit blind, as I haven’t yet had a chance to read Michelle’s article (though I certainly will). But hopefully this comment will still be meaningful.

    I’m going to engage on the point about whether norms really change, and I’m going to start with Stuart’s helpful comment about the degree of generality of the norm. I think all participating in this discussion would agree that reasonably general–though far from maximally general–norms like “sex must be consensual to be permissible” don’t change. There was never a time when it was really permissible to have sex with unconsenting others, no matter what people at that time might have thought about slaves, women, or whatever class of people they thought were there for their using.

    If that’s right, then the meaning of “Wrongfulness norms have genuinely shifted” can really only be that there are certain applications of general norms that have shifted. That is to say that what Michelle calls argument (1) about “That used to be OK” always collapses into argument (2): “That kind of behavior was just different back then (the social meaning/context differences means it wasn’t the same kind of act as it would be now).”

    Looking at the age of consent example, it does seem plausible that in an age when kids were expected to take on more responsibilities at a younger age, then it would be reasonable to expect that the average age at which a person knew themselves well enough to give consent could have been younger than today, when kids are sheltered longer. (Note the nature of sheltering also has shifted. Now, most parents seem less willing to let their kids take a bus across town on their own at age 12 than in the 50s, but those kids are seeing a LOT more porn by age 12. Which is more relevant to being able to offer legitimate consent is an interesting question. But let’s put that aside and assume, for the sake of argument, that kids today are, on average, more sheltered in the relevant respect.)

    What I want to flag is the relevance of “on average” and Kim’s notion of proxies. Can we really say that age proxies show that the consent of 16 year olds was ever sufficient if that 16 year old was not, as a matter of fact, able to consent, or that it was ever insufficient if that 16 year old was, as a matter of fact, able to consent? I’m pretty sure that the proxy notion tells us Nothing about what is really OK, but only about what a person can reasonably Assume is OK. And even then, we need to be clear about what it meant to reasonably assume. I think they can assume it in the sense that they have a defense to a prosecution, and maybe it would be relevant to the default assumptions they bring to assessing the person they are considering having sex with. But ultimately, it will do little to shield them from blame for wrongful conduct.

    Let me then end, then, by saying something about that extra note of complexity. I think the legality principle is important, as reasonable regulation does add, for reasons Antony Duff spells out, an extra moral reason to act. If the law says: no sex with people 16 or younger if you are 20 or older, and if that is a reasonable balancing of risks, then if you are 20 you have an extra reason Not to have sex with a 16 year old. If the law reasonably changed to 17, then that would give you a moral reason to shift your behavior. And all of that would be relevant to punishment. But none of it would be relevant to whether you Actually had sex with a non-consenting person. And insofar as That is the basis for blame, then you might be open for blame whatever the law says–that is if you, in your epistemic condition, could reasonably be expected to determine that your younger partner didn’t know herself (or himself) well enough to legitimately consent.

  8. Thank you for your kind and helpful comments, Stuart.

    It’s good to know you find it at least plausible to think wrongfulness norms might shift over time. As I admitted in my response to Kim on that point, I’m still on the fence about it.

    Regarding the Silence1 cases (circa 1950), I would say Adam’s mistaken belief *might* have been reasonable, *if* people in Barb’s positioned typically did signal their consent through silence. (That’s an empirical question, on which I offer to argument, but simply defer to the studies gathered in Husak/Thomas.) So, my conclusion on the reasonableness of Adam’s mistaken belief is conditional. My hope was to make it clear that the condition at issue is how people in Barb’s situation typically behaved when they were signaling their consent (not what people in Adam’s position typically believed about that fact). So, on my view, Silence1 is not so much about a reasonable mistake “about the application of norms” – but a reasonable mistake about what Barb’s silence signaled.

    Your analysis of the Silence case underscores Kim’s criticism re: this hypo inviting confusion and taking me to task for not being clear re: whether I think consent is communicative or mental. If I’m understanding your point correctly, you seem to regard consent as a communicative, not mental act. Is that right? (You wrote, “If we could go back in time and interview Adam and Barb, I believe we would find that they – both of them — really did believe that it was not wrongful to have sex with a person who remained still and silent in such circumstances…” – which is what makes me think you regard consent as communicative.) If consent is mental, then it seems less plausible to suppose there could be a shift in wrongfulness norm against nonconsensual sex.

    I think you’re entirely right to press me on the level of generality at which to state the norm. That point tracks a helpful comment offered by one of the anonymous reviewers discussed in footnote 27. Conduct that is identical at one salient level (A) of description constitutes importantly different types of conduct at another level of description (B), such that one is permissible and the other is wrongful. For example, the conduct in the Baby cases, described at level (A) is simply: Adam continues to pursue sex with Barb, even after she repeatedly says, “no.” Described at level (B), the conduct is either innocuous collaboration (“partners in crime”) or wrongful coercion. As I mentioned in my response to Kim re: wrongfulness norms, someone who invokes the “But that used to be okay!” defense is either claiming that there has been a genuine shift in wrongfulness norms, or claiming that the social meaning of the conduct described at level (A) has shifted over time, such that it makes sense to think of the conduct, described at level (B), as wrongful nowadays, even if it wasn’t wrongful back then. My hope in this part of the paper was just to identify these two ways of understanding the “But that used to be okay!” defense.

    Thank you for your generous comments and taking the time to join the conversation. I’m deeply grateful to you!

  9. Michelle Dempsey’s paper does an excellent job distinguishing between wrongfulness norms, excusability norms, and accountability norms in the context of sexual misconduct. I agree with Michelle that wrongfulness norms should track “critical morality, not merely positive social morality.” My objections deal primarily with Michelle’s position on excusability norms, and accountability norms, namely (i) the availability of the defense of mistake; (ii) the duty to make people publicly accountable for past sexual misconduct; and (iii) the reevaluation of seriousness of past sexual misconduct.

    1. I do not believe that, in cases of the perpetrator’s mistake about the victim’s consent, the defense should be available only for a reasonable mistake. Even though this standard reflects the current state of law in most U.S. jurisdictions, I would argue that, at least with respect to the sexual transgressions of the past, the standard for conviction should be higher. I agree with Michelle that the argument “But that used to be okay!”, even when true, does not eliminate the wrongfulness of the perpetrator’s conduct. I believe, however, that that argument has more force than Michelle is willing to afford it, when considered from the excusability perspective. The concept of reasonableness is inherently time specific. It seems plainly unfair to apply our today’s standard of reasonableness to a mistake made many years ago when social conventions for sexual behavior were different. At the same time, I doubt we would want the court today to apply an old standard which is no longer acceptable in society (e.g., that mere lack of physical resistance means consent or that “no” means “yes”). Instead, I would argue that the proper standard of conviction should be based on recklessness, and accordingly, the defense should be available for any honest mistake, including an unreasonable mistake.
    2. I was not persuaded by Michelle’s argument that, “[i]n the wake of the #MeToo/#TimesUp movement, there may be a duty to use more public methods of calling people to account for their past sexual misconduct.” First, I wonder whether Michelle believes that we, as society, always have a duty to make people accountable for their misdeeds or we merely have a right to do so? If it is the latter, I would like to see a basis for treating the past sexual misconduct differently. If it has to do with the victims’ not being able to receive justice when they were wronged, would Michelle maintain that, whenever victims did not receive justice at the time of the wrongdoing (e.g., because, under the laws or social conventions of the time, the wrongdoing was not deemed serious enough), society owes them a duty to prosecute the wrongdoing under the new laws and social norms? And second, I am bothered by the suggestion that a social or political movement should affect how someone’s misconduct should be treated. If the misconduct was such that it warranted public accountability, then it should be accounted for publicly. If, however, it warranted only private accountability (e.g., a harmless lie or trivial manipulation), I doubt the #MeToo/#TimesUp or any other movement should change one’s accountability.
    3. Most importantly, I am worried that Michelle’s theory of accountability allows—in fact, demands—reevaluating past misconduct under new norms (from “not very serious” or even trivial to “very serious”) and holding the wrongdoers accountable under these new stricter norms. Clearly, in law, such reevaluation would be unthinkable as violative of the principle of legality. We may (and should) criticize bad norms and laws of the past, but we should not hold individuals who followed those norms and laws accountable under the norms and laws that did not exist at the time. Notice and “due process” are required for any accountability, public accountability in particular.

  10. This is a wonderful article. Thank you Michelle.

    I wonder if an example with marital rape might be interesting here. In England in R v R the House of Lords abolished the marital rape exemption. In effect this enabled the conviction of men who could have said “at the time marital rape was a defence”. In part the argument was a man engaging in marital rape knew there was no real consent.

    But I wonder if there the claim we [Michelle and I] have made that a sexual penetration is a prima facie wrong which requires justification, if correct, becomes important. Most of the changes in moral in sexual behaviour have shifted from behaviour which in the past was “dodgy” to being now clearly wrong. But “dodgy consent” should never be enough to justify a prima wrongful act. I don’t think there has been a change in attitdues from clearly justified sex to being clearly unjustified.

  11. Thank you, Vera! I appreciate your joining the discussion. As ever, your comments were intriguing and productive. Let me see if I can meet some of your concerns.

    1. I take your first point to concern the legal doctrines/standards/rules we should adopt when using the criminal law to hold people accountable for past wrongdoing. As such, I would understand that point to concern accountability norms, not excusability norms. That is, it might be the case that the wrongdoing is unexcused from a moral perspective, but the criminal law should provide an (legal) excuse nonetheless. (Of course, the criminal law does this with specific intent crimes like theft. So, if Abby takes Ben’s umbrella while laboring under the mistaken belief that the umbrella belongs to her, she might lack a moral excuse if her mistake is unreasonable – but she surely would have a legal excuse based on her honest belief, even if that mistake is wholly unreasonable.)

    Based on what I wrote in this article, it’s open to me to agree with you that the criminal law should provide a legal excuse to Adam, even where his mistaken belief as to Barb’s consent is unreasonable. But to take up your point directly, I don’t agree that the criminal law should excuse on the basis of unreasonable beliefs (at least when it comes to mistakes about sexual consent). That is, I think it would be justifiable for the criminal law to impose a negligence mens rea for sexual offenses, such that unreasonable mistakes would not exculpate. (Kim and I disagree on this point. She prefers to set mens rea at the level of recklessness – and, indeed, views any supposedly higher mens rea as just a variation of recklessness.) I’m not convinced that negligence is the appropriate mens rea for the highest level of sexual offenses (as in the UK’s Sexual Offenses Act 2003’s definition of Rape in §1(1)(c))– but I think negligence can be justifiably used lesser offense.

    You wrote, “the defense [of mistaken belief in consent] should be available for any honest mistake” – which raises a question: Would you endorse a mens rea of recklessness or knowledge on this issue? That is, what would you say about a case where the defendant honestly believed the victim consented, but he also recognized and disregarded a substantial and unjustifiable risk that she might not be consenting?

    2. You asked whether I believe that “we, as a society, always have a duty to make people accountable for their misdeeds [wrongs] or we merely have a right to do so?” I would start by saying that I think that any act of holding people accountable for their wrongs requires justification. So, if the phrase “a right to do so” means “it would be permissible to do so,” then I would say “whether it is permissible to do so depends on whether doing so is justified all-things-considered.” Moving to the question of duty – I don’t think we always have a duty to make other people accountable for their wrongs. But sometimes we do. In those cases, we have conflicting duties: whether we hold them accountable or not, our actions/inactions call for justification.

    When it comes to holding people accountable for their past sexual wrongdoing in light of the norm transformation/cascade brought about by the #MeToo/#TimesUp movement, I think more people, more often, have such a duty. Here, I don’t mean to focus only on victims’ duties (which presents a more difficult case)– but also bystanders’ duties. Screenwriter Scott Rosenberg’s comments about Harvey Weinstein (cited at footnote 53) provide a good illustration of what I have in mind. After acknowledging that he witnessed Weinstein’s sexual misconduct (not the worst of it – “not the rapes”) back in the early days of Miramax, he recognized his complicity and called on others to hold Weinstein accountable as bystanders to his past wrongdoing:

    “So, yeah, I am sorry.
    Sorry and ashamed.
    Because, in the end, I was complicit.
    I didn’t say shit.
    I didn’t do shit.
    Harvey was nothing but wonderful to me.
    So I reaped the rewards and I kept my mouth shut.
    And for that, once again, I am sorry.

    But you should be sorry, too.
    With all these victims speaking up…
    To tell their tales.
    Shouldn’t those who witnessed it from the sidelines do the same?
    Instead of retreating to the cowardly, canopied confines of faux-outrage?
    Doesn’t being a bystander bring with it the responsibility of telling the truth, however personally disgraceful it may be?”

    Reflecting on what could have been done before the #MeToo/#TimesUp movement to hold Weinstein accountable, Rosenberg correctly observes there was little to be gained:

    “…this is as pathetic as it is true:
    What would you have had us do?
    Who were we to tell?
    The authorities?
    What authorities?
    The press?
    Harvey owned the press.
    The Internet?
    There was no Internet or reasonable facsimile thereof.
    Should we have called the police?
    And said what?
    Should we have reached out to some fantasy Attorney General Of Movieland?
    That didn’t exist.
    Not to mention, most of the victims chose not to speak out.”

    You wrote, “I am bothered by the suggestion that a social or political movement should affect how someone’s misconduct should be treated.” But sometimes a social or political movement makes it possible to realize values through holding people accountable which simply could not have been realized without it. And with that new possibility comes new reasons to hold wrongdoers accountable. Those reasons can do two things: (1) make it the case that what previously would have been an unjustifiable act of holding a wrongdoer to account is now justifiable; and (2) make it the case that we not only have first-order reasons to hold a wrongdoer to account, but that we might have a categorical, protected reason to do so (that is, we might have a duty to do so).

    3. Regarding your final point, I’m entirely in agreement with you that holding wrongdoers accountable under new stricter norms violates the principle of legality. (I see that Jonathan Herring raised the case of R v. R in the UK, which illustrates this worry well. I’ll comment on that soon.) However, I’m not so sure the same considerations apply with equal force when it comes to any kind of accountability. (Much depends on whether there can be a genuine shift in wrongfulness norms from a moral perspective. Clearly, legal norms regarding wrongfulness can shift, since law is posited. As my exchange with Kim and Stuart illustrates, I’m a bit on the fence regarding whether there can be a genuine shift in wrongfulness norms viewed from a moral perspective.)

    I wonder what you would make of this case (call it Age of Consent/Regret): Many years after what they both had viewed as a consensual, non-exploitative sexual affair back when Barb (the younger) was in her teens, Barb contacts Adam (significantly older) and explains something along the following lines, “You know, when we were together, I thought of myself as very mature and able to consent. It didn’t feel like you were exploiting me back then. But over the years I’ve come to realize just how immature I was back then. That’s the thing about being too immature to make good decisions about sexual partners… you’re too immature to realize you’re being exploited. I think you owe me an apology.” How should Adam respond? Is Barb’s calling him to account unjustifiable?

    Again, thank you, Vera! I’m deeply grateful for your help in thinking through these issues.

  12. Hi Alec – Thank you for joining the conversation! If memory serves, you gave me some really helpful tips after a presentation of an early draft of this paper back at Rutgers in April 2019 – so you’re not entirely jumping in blind. (No doubt, I failed to integrate all of your helpful comments – but I do remember you pushing me to include considerations of excuse, which was absent from early drafts.)

    I think the only point I have to offer about your discussion of proxies is, “I mostly agree.” One way to think about proxies is to view them as distinct wrongfulness norms, along the lines of endangerment. So, if 15yr old Barb is actually mature enough to consent, and does consent to 20yr old Adam, then Adam does not commit the wrong of nonconsensual sex against Barb – but if there is a justifiable age proxy in place (either as a legal rule or social norm) that sets the age of consent at 16yrs, then Adam commits a wrong in having sex with Barb (a wrong along the lines of endangerment). Does that make sense? In sum, I might push back a bit when you write, “the proxy notion tells us nothing about what is really OK” – because I think it might tell us something about what is okay in terms of (not) endangering others.

    Thank you for your help on the draft – and for your comments now. I’m deeply grateful to you.

  13. I do, of course, remember the Rutgers presentation in 2019, so I felt a little better about jumping in half-blind. Anyway, glad we mostly agree. And I take your point about endangering… I look forward to reading this latest version.

  14. A quick thought on the “legality” concerns raised by both Alec and Vera. For Alec, the fact that a given type of conduct is actually recognized as prohibited offers a moral reason not to engage in it. For Vera, the concern is with the possibility that someone might unfairly be held responsible under norms and laws that did not exist at the time. I think both of them are on to something, but I want to add a third claim, which is that even apart from shifts in prohibitory norms, we should also be concerned with shifts in punishment or accountability norms. Let’s assume that Adam understood that he was violating a wrongfulness norm by pressuring Barb to stay the night. Even so, in 1950, the worst he could have expected in terms of accountability would have been a harsh rebuke from her, a breaking off of relations, perhaps a (literal) slap in the face. He might even have anticipated the possibility that Barb would tell her friends that he is a creep and they shouldn’t go out with him. All of that would be fair punishment. What he couldn’t have expected is the possibility that, at some point in the distant future, he would be “named and shamed” on a not-yet-invented worldwide information network. He couldn’t have expected that, for anyone Googling his name (whatever that is), one of the top-ranked results would be a blog posting alleging that he had engaged in sexual misconduct. The point is not that such “punishment” might not be appropriate for conduct committed today. My concern is with the fairness of imposing such unanticipated punishment on conduct committed in the distant past.

  15. Thank you for the opportunity to join this forum and comment on this compelling and illuminating article. I have three comments that each culminate in a question for Michelle Madden Dempsey.

    1. the test case for shifts in wrongfulness norms

    I find it interesting the suggestion that the “better test case for isolating a shift in wrongfulness norms” (352) involve conventional norms (or “social customs (including laws) that existed at the time” (353). When it comes to the age of consent, I think we can all appreciate that, rather than leaving for individuals to assess maturity, vulnerability and capacity, we generate conventional norms (accepting that they will be over-extensive) that determine capacity by age. The ‘best test case’ is then – by analogy – a case of officially induced error. Under this test case, the convention at T1 was AC1, however that convention (AC1) miscalculated the maturity, vulnerability and capacity of some young people, but it was (at the time) a conventional norm. I think it is worth differentiating between what the underlying wrongfulness norm and how we specify the requirements of the norm. The underlying wrongfulness norm is the same at T1 and T2: the ‘consent’ obtained from someone who lacks the capacity to consent to sex is not consent. The only shift is the customary or official guidance as to how to identify the incapacity. In this way, the wrongfulness norm is untouched, but the conduct might otherwise be excused.

    Compare the AC test case with a potentially different shift in the underlying norm. For example, we have perhaps seen a new norm emerge: (PD) ‘that power differentials themselves (such as, employer-employee / professor – student) at least problematize intimate or sexual relationship’. PD could be seen as a new wrongfulness norm that governs intimate interactions.

    So, much question is: Do you think there is a difference between AC and PD, and if so, is that difference relevant to how we test excuses following a shift in wrongfulness norms?

    2. Reasonable mistakes and ordinary mistakes

    There is a point raised in John Garnder’s ‘The Many Faces’ that continues to trouble me. He notes that, in assessing whether is a reasonable but mistaken belief in consent, it is unclear whether the finder of fact should “masquerade as what she imagines to be the person on the street” or should “just think for herself about how to behave in sexual matters” (The Many Faces, 584). And I can see this come through in the analysis – it is, as you note “not primarily a matter of what the “average Joe….would have believed” (footnote 39, p357).

    As you explain at page 358, “where social practices regarding the communication of consent have shifted over time, this version of the defence may provide a successful excuse”. I am minded to agree, but I do feel there is some residual wrong or culpability. That culpabilities lies in not being attentive to the (albeit changing) social practices regarding the communication of consent. Amongst many other things, what the MeToo and TimesUp movements have illuminated is the inattention or disregard that men have had for the change that has occurred around them. My concern is that even an “honest and correct understanding of how people communicated in the past” (358) seems primarily a matter of average Joe-in-the-past would have believed. I am worried that the version of the defense (at page 358) therefore omits the requirement, that to be reasonable, we ought ‘to think about how to behave in sexual matters’ in the milieu that we find ourselves in.

    So, my question is: is the honest-and-correct-past-understanding of consent the same or different to an average-Joe-in-the-past-understanding?

    3. Public Accountability

    I find the account of public and private accountability to be too proceduralists when the shift in accountability has been driven by substantive notions. Both in terms of how we understanding the wrong and our substantive notions of accountability.

    The microwave scenario seeks to demonstrate that “the extent to which a response to wrongdoing is private or public often depends on who is making the response” (361). This seems to me to be a proceduralist claim. I tend to think that whether a private individual or public official engages a process does not itself explain why something is private or public. Rather, there is something about the wrong (some threat to a value) that gives reasons for private individuals and / or public officials to engage a process. The microwave scenario can misled: it is perhaps akin to common property – insofar as it is a network of private or horizontal claims (if I don’t have lunch at work, I have no concern for the faculty microwave, and I not part of that network). It is fundamentally different from, say, a faculty member using a racial slur in the staff room. That goes against a value that everyone in the faculty takes a shared and mutual concern for, and therefore triggers a Faculty response.

    Part of the shift in public accountability has been driven by institutions and organisations identifying concern for a set of values that were previously regarded as private values (or, values that govern the horizontal relationship between individuals). As the paper details elegantly, there is growing recognition and acceptance that there is inappropriate behaviour that institutions and organisations now have a concern for, and because of this, individuals are able to hold perpetrators accountable to those ‘public standards’. Which opens up a different (albeit weak) himpathy defence: “that used to be my private life” in the sense that ‘I’ would not have previously been held to account for this conduct by my employer, sponsor, electorate, etc. But perhaps the nerve that this type of defence pinches is a concern about which organisations and institutions can appropriately “pursue the aims of holding [people] to account” (365).

    So, my question is: does the extent to which a response to wrongdoing is private or public depends on who is making the response or the character of the wrongdoing?

  16. Thank you, Michelle, for providing a timely and insightful framework for us to use when evaluating responses to the #MeToo/#TimesUp movement.

    I find myself in agreement with much of what the paper argues, but I do have concerns about the details of the excusability norms and with how often I catch myself humming “Baby It’s Cold Outside.” I’m afraid there is nothing to be done about the second, and so I’ll focus on the first. To be more specific, my concern relates to how we determine reasonable mistakes regarding what a communicative act signals. Michelle notes that “the reasonableness of mistaken beliefs regarding consent to sex often turns on what nonverbal conduct is reasonably taken to signal consent in the given context.” (355) So far, so good. However, she then asserts that “[t]he reasonableness of his [Adam’s] mistaken belief turns on whether, in each social context, people in Barb’s position typically do communicate consent in that way.” (357) It is this last step that I have concerns about, and these concerns mostly stem from confusion/uncertainty about how we determine who counts as “people in Barb’s position.”

    First, are the people members of Barb’s linguistic community or of Adam’s? While this might not matter in “Baby It’s Cold Outside,” consider this example: Adam, an American, is vacationing in the U.K. when he meets Barb, a Brazilian, at a night club. He asks Barb if he can kiss her, and Barb gives him an “O.K.” sign. In the U.S., this sign would reasonably be interpreted as giving consent. In Brazil, it would reasonably be interpreted as the American equivalent of a middle finger, and so probably means no. If Adam kisses Barb and the relevant linguistic community is Barb’s then it seems as if Adam has made a very reasonable unreasonable mistake. However, if the relevant linguistic community is the listener’s, then I worry about cases (unlike the example above) in which the listener’s community has adopted morally problematic interpretations of nonverbal communication (e.g. wearing “revealing” clothing means you want sex and aren’t picky about who with).

    Second, since this is a paper about consent to sex, do we look to people of the same gender identity and sexual orientation when assessing reasonableness? If so, then we will need an account of why. If not, do we then ask what straight men of the relevant time period would do if they were about to be penetrated by another man, or do we ask what men of the relevant time period would do if they were a woman and about to be penetrated? (I doubt that the former is relevant, and the latter is at least complicated.)

    Third, is what is relevant whether “people in Barb’s position typically do communicate consent in that way” or what Barb’s conduct done by people in Barb’s position typically communicates? Here is the difference I am trying to get at:

    (a) Of 100 who want to have sex and are in Barb’s position, 99 of them communicate consent by silence.
    (b) Of 100 people who don’t want to have sex and are in Barb’s position, 99 of them communicate consent by silence.

    In other words, silence is used by people in Barb’s position to communicate both consent and lack of consent. Is this a communicative nightmare? Yes. However, it doesn’t seem far off from reality in some cases – particularly when our communicative conventions are in transition (e.g. going from a norm of “lack of no means yes” to one of affirmative consent.) In such a case, should we look to what those wanting to indicate consent typically would do (indicate consent by silence) or what the behavior generally communicates (silence would then indicate a lack of consent, assuming those in group b outnumber those in group a).

    Perhaps my concerns here focus too much on the weeds; I readily admit that I don’t think it threatens Michelle’s larger points. However, questions these will most likely arise as we apply her apt framework, and so I would welcome any thoughts about how to address them.

  17. Thank you, Jonathan! I appreciate your joining the conversation.

    Yes – R v. R is a good example of how legal wrongfulness norms can shift. (As Vera observes in her comments, such shifts come with a real cost to the principle of legality when there is a lack of notice – so, ideally, legal wrongfulness norms will shift through prospective legislation, not retroactive judicial law creation.)

    But, maybe something like the “thin ice” principle operates in morality as well as in law? (For those unfamiliar with the principle, coined by Andrew Ashworth, it is derived from “Lord Morris’s observation in Knuller v DPP (1973) that ‘those who skate on thin ice can hardly expect to find a sign which will denote the precise spot where he [ sic ] will fall in’.” See Andrew Ashworth and Jeremy Horder, PRINCIPLES OF CRIMINAL LAW (OUP) p. 62.)

    If the “thin ice” principle operates in morality, then it might explain small shifts in wrongfulness norms from a moral perspective (what was then wrongful insofar as it was “skating on thin ice” is now more clearly wrongful).

    Or (as I’m increasingly disposed to think), maybe there’s just nothing to the idea that (moral) wrongfulness norms can genuinely shift. (In which case, Alec is right that arguments along the lines of “But that used to be okay!” always collapses into arguments along the lines of “That kind of behavior was just different back then (the social meaning/context differences means it wasn’t the same kind of act as it would be now).”) What do you think?

  18. Dear Michelle, thanks for your comments and questions.
    1. Regarding the first set of questions, I was actually focused on excusability rather than accountability. I wanted to say that, at least with respect to temporarily remote not very serious wrongs, the standard should be recklessness even if we keep the negligence standard as a general rule for sexual assault. The reason for that is that the meaning of what mistake may be viewed as reasonable (and thus excusable) changes dramatically over time, particularly with respect to less serious misconduct. I did not address whether we should change the standard to recklessness for all sexual crimes, but since you ask, then yes, I would prefer the recklessness (but not knowledge) standard, with an honest albeit unreasonable mistake as a defense.
    2. My other two points dealt with accountability. I understand the reasons behind your belief that, as a result of the rethinking prompted by #MeToo/#TimesUp movement, we may now owe a duty to hold the wrongdoers accountable for past misconduct. I am still concerned with the ex post facto rethinking of the meaning of wrongdoing and reevaluation of its seriousness, particularly when such rethinking and reevaluation do not reflect consensus in society but come from one politically engaged group. This concern is related to my next point about legality, due process and notice. I believe any kind of accountability requires them, but this claim is particularly strong if we talk about public accountability which inevitably involves shaming and reputational losses.
    3. Finally, to your hypothetical. I believe that the answer is very fact specific. If Adam’s exploitation consisted merely of having sex with a very young person (although above the minimal age of consent), I do not think he owes Barb an apology. In my mind, such apology would show disrespect to Barb: it would mean that, even though normally a young person of Barb’s age is deemed legally competent to make decisions, Barb did not have the emotional or mental competence of a normal young woman. True, we make mistakes when we are young (and later too), but I don’t think it is fair to blame our mistakes on others whenever we recognize that we have made a mistake. Mistakes happen; bad decisions are part of growing up. On the other hand, if Adam exploited the age difference and/or Barb’s naivete in some ways beyond simply having consensual sex with her, the apology could be appropriate.
    Thanks for the very interesting discussion, Michelle!

  19. Thank you, Michelle, for this beautifully written, thoughtful, and timely paper.

    Here are a few questions and observations on each of the three norms that Michelle discusses in her paper: I’m proceeding in reverse order to Michelle, starting with accountability norms.

    Accountability Norms

    Michelle’s elaboration of the dimensions along which private and public accountability can differ is highly illuminating, especially since the distinction is often presented in binary terms. Although Michelle groups the relevant dimensions under three headings (which are, roughly, 1. the set of victims; 2. the identity of the respondent and the party or parties they represent; and 3. the level of publicity given to the response), she isolates at least seven dimensions along which the publicity of a form of accountability could be assessed:

    1. the set of victims (e.g. one person, several people, a large number of people)
    2. the set of concerned or interested parties (e.g. the victim(s); persons other than the victim(s); communities other than this community)
    3. the relationship between the wrongdoer and the victim(s)
    4. the relationship between the wrongdoer and the interested parties
    5. the relationship between the wrongdoer and the respondent
    6. the mode of response and the level of publicity it gives to the wrong (e.g. a one-on-one conversation or a public sign declaring that “Someone is using the microwave inconsiderately.”)
    7. the level of publicity that the response gives to the identity of the wrongdoer (e.g. a non-identifying sign or a dean’s announcement that Alice has been using the microwave inconsiderately).
    I do not have a critical comment to make here, but would be interested to know how many other dimensions we might add to this list, especially ones which are relevant to sexual misconduct, such as:
    1. the level of publicity given to, and relevance attributed to, the wrongdoer’s past wrongs or their wrongs in other spheres of conduct,
    2. the nature of the wrong done.

    Excusability norms

    Michelle considers how excusability norms might shift over time, such that mistaken beliefs that were reasonable at some point in the past might be unreasonable now. Could it be that once excusability norms shift in a seemingly progressive way (i.e. “we were mistaken to believe that X was ok”), they might shift back again? One reason to think excusability norms do not (or cannot?) shift back lies in a feature of the relationship between our society now and our society in the past (a feature that does not define the relationship between our society and other societies), and that feature is the role that new information, knowledge, and understanding play in the way we think about our society and its values. Briefly, once we have new information and understanding which is absorbed into our society to such an extent that it changes our society’s excusability norms, we as a society become wedded to those new norms in a specific way; we now appreciate the factors that make it less reasonable to mistakenly believe X is ok. We have a duty as a society not to lose sight of those factors. And, possibly, if we do lose sight of those factors, that is irrelevant. The norms have changed. (When we compare our society to other, synchronous societies, we tend not to say (if we’ve objectivist leanings) that wrongfulness or excusability norms change from location to location. Rather, we tend to say that some society has got it wrong on some issue or that the contexts of two societies are sufficiently different that seemingly similar behavior is morally distinct in each context. (This relates to the issue of generality which Stuart and Alan explored.))

    Wrongfulness norms

    In her precis, Kim Ferzan issued a challenge (which has been discussed in Stuart’s reply and the subsequent conversation): “I will confess that I find it hard to come up with a case where the coercive, deceptive, or incapacitative nature of the conduct, and its effect on consent (however we understand that), is held constant, and yet it once was permissible and now is not. I hope we can take up whether there are such cases in this discussion.”

    I cannot think of a case in which nonconsensual sex was once permissible in the past and now is not, but wonder whether there could be an apocalyptic future case in which what is now impermissible could become permissible (or at least could become sufficiently less wrong to represent a genuine norm shift). It would only be in extraordinary circumstances, I think, that we could credibly argue that the wrongfulness of nonconsensual sex has genuinely changed, e.g. in a future in which our infrastructure, technologies, and institutions have broken down and our species is on the brink of extinction. If we accept the (debatable) assumptions that our species is worth saving at all costs and all other procreative options are closed off, we might – might! – face a context in which the wrongfulness norms of procreative nonconsensual sex have genuinely changed and such sex is not as wrong as it is at present. Short of such a doomsday scenario, however, it is difficult to envision a context – past or future – in which the wrongfulness norms of nonconsensual sex are sufficiently different from current norms to give legs to the ‘But that used to be okay!’ defence. We might want to say – following Michelle’s (2) above – that the social meaning that sex has in an apocalyptic context is different from the social meaning it is now. (All of the people involved might be committed to the project of prolonging the existence of our species even if they do not consent to their specific procreative arrangement.) But, taking that line – that the social meaning is different – might occlude specific ways in which that sex is still wrong.

  20. Dear Jesse – Thank you for your comments and questions. I’m so grateful you’ve joined the conversation. I was just reading your great paper, “Public Wrongs and Private Wrongs” (2018) Canadian Journal of Law & Jurisprudence 177. (Highly recommended, even though we disagree.)

    Let me try to answer your questions:

    1. Do I think there is a difference between AC and PD, and if so, is that difference relevant to how we test excuses following a shift in wrongfulness norms?

    First, a point of clarification (due to my own failure to be clear in the article, not any lack of clarity on your part). In your discussion of AC, I think there are two wrongfulness norms in play: (1) don’t have sex with someone who lacks the capacity to consent; and (2) don’t have sex with someone who is under the age of consent stipulated by law/social norms. As mentioned in my response to Alec, I view the second wrongfulness norm as concerning endangerment.

    In describing PD, you write “that power differentials themselves (such as, employer-employee / professor – student) at least problematize intimate or sexual relationships” – and then you raise the possibility that “PD could be seen as a new wrongfulness norm that governs intimate interactions.” Again, I think (or at least I *think* I think – since I’m still mulling it over) that I’d have the same response to PD. That is, I think there are two wrongfulness norms in play: (1) don’t pursue sex with someone who lacks the power to refuse your advances due to power differentials; and (2) don’t have sex with your employee, student, etc.

    In both AC and PD, the wrongfulness norm in (2) is meant to be a proxy for the underlying wrongfulness norm in (1). Whether (2) is ever a good proxy for (1) depends on the social context (eg, are 16yos in that society typically mature enough to consent to sex? Is there a significant power differential b/w bosses and employees, such that it would undermine the employees’ consent?)

    So, I think my answer to your first question is that I don’t think there’s a significant difference between AC and PD. (But maybe I’ve misunderstood the question, in which case, I’m sorry!)

    2. Do I think “the honest-and-correct-past-understanding of consent [is] the same or different to an average-Joe-in-the-past-understanding?”

    It’s possible that the “average-Joe-in-past-understanding” might track the “honest-and-correct-past-understanding” – and we should all hope that it does. But, sometimes, widely-held understandings about consent are not correct understandings. The risk of divergence is particularly high where one’s beliefs are motivated by wishful thinking. So, the fact that a mistaken understanding was widely held by average-Joes does not establish its reasonableness.

    (Side note: here, I’m focused on moral, not legal, norms. It might be justifiable for the law of excuses to track only “average-Joe” understandings.)

    I’m relieved to know you agree with my view that “where social practices regarding the communication of consent have shifted over time, this version of the defence may provide a successful excuse” – and I really like your point about the possibility that, even in such cases, “there is some residual wrong or culpability.”

    Certainly, I agree there is still a wrong (and not merely a residual one). After all, in cases where we’re considering excuse, it is already the case that the person in Adam’s situation did commit a wrong – and not merely a pro tanto wrong, but an all-things-considered wrong. (If that were not the case, then we would have no need to consider Adam’s possible excuse.)

    The interesting question is whether there is some residual culpability/blameworthiness in these cases. Assume Adam holds an honest and reasonable belief that Barb consented, based on Barb’s X-ing (actions/words typically used by people in Barb’s situation to signal consent). In that case, Adam is excused for his wrong of non-consensual sex with Barb (and thus he is not culpable/blameworthy for *that* wrong).

    But, if I’m understanding your point correctly, you raise the important question of how we should view Adam’s culpability/blameworthiness in cases where typical methods of signaling consent are shifting. Here, too, I’m inclined to say there are two kinds of wrongs in play: (1) the wrong of non-consensual sex (with respect to which Adam is, ex hypothesi, wrong all-things-considered, but excused in virtue of his reasonable belief, and thus not culpable/blameworthy); and (2) the wrong you note, of “not being attentive to the (albeit changing) social practices regarding the communication of consent.” (FWIW, there is a great NYT Op-Ed by Lindy West on this point, concerning the Aziz Ansari case – “Aziz, We Tried to Warn You” – https://www.nytimes.com/2018/01/17/opinion/aziz-ansari-metoo-sex.html.) I can imagine a situation in which someone would be excused with respect to (1) while still being culpable/blameworthy as to (2).

    3. Does the extent to which a response to wrongdoing is private or public depends on who is making the response or the character of the wrongdoing?

    On my view, the extent to which a *response* to wrongdoing is private or public depends, inter alia, on who is making the response. A public response to wrongdoing involves responding to [purported] wrongdoing in a way that bears some or all of the following hallmarks:

    (A) Public responses to wrongdoing relate to or belong to some group of people, in the sense that the response is made by members of that group (rather than merely being made by the victim).

    (B) Public responses are made in the interests of the community (rather than merely in the interests of the victim).

    (C) Public responses to wrongdoing are made in such a way that they are open to general observation by those within the community.

    In contrast, private responses to [purported] wrongdoing are offered by the direct victim (or perhaps by close friends or family), in the interest of the direct victim (not a broader community), and are offered in such a way that only a small number of people (typically only the wrongdoer) are made aware of the response.

    It makes sense that you would view my account as “too proceduralist.” (My account has more in common with Simester and Edwards’ view, which you criticize as proceduralist in the great article I cited at the start of this comment.)

    However, there is a point on which we agree. You wrote, “I tend to think that whether a private individual or public official engages a process does not itself explain why [a wrong] is private or public.” On that, we agree. I think the question of whether a wrong is a public or private wrong turns on whether a public or (merely) private response to the wrong is *justifiable*. That is, on my account, when we’re thinking about what counts as a public or private wrong, the order of explanation is reversed. (Specifically, it’s reversed from your order, and the order embraced by Antony Duff and Sandra Marshall.) We don’t start by asking about the character of the wrong (eg, whether it is public or private in virtue of its being “shared” with the community, or being a matter of “mutual concern”). Rather, we start by asking things such as, “What kinds of *responses* to this wrong would be justifiable?” – “Are they merely private responses? – or would a public response be justifiable?” To the extent that a public response to a wrong is justifiable, it counts as a public wrong. (Recall that, on my account, the distinction between private/public wrongs is scalar.)

    One benefit to my account of public wrongs (or so I like to think) is that it takes on board reasons grounded in what I call “constitutive value” – reasons grounded in the value of (re)constituting the character of the community in valuable ways (eg, to cultivate less patriarchal, racist, etc. character traits). (Shameless self-promotion: this point was a central theme of my book, Prosecuting Domestic Violence: A Philosophical Analysis.)

    I hope I’ve correctly understood your questions and offered some plausible responses. I’m a huge fan of your work and deeply honored that you took the time to join this conversation. Thank you, Jesse!

  21. I’m working on responses to Beth, Kim, Stuart and Vera… while hoping this storm doesn’t kill our electricity. (As with several commentators here, I’m in the eastern US, currently getting pummeled by a snow/ice storm.)

    The comments are all so rich that I’m going to take the night to think them over. Hopefully a good night’s rest will help me return with more coherent responses tomorrow!

    Thank you to everyone who is contributing to this conversation!

  22. Hi Beth! Thanks so much for joining the conversation. I appreciate your help in thinking through these issues.

    Your questions/comments are excellent – and I fear I don’t have very good responses – but let me try to float some ideas.

    Your concern relates to how we determine reasonable mistakes regarding what a communicative act signals. Primarily, my concern was to motivate the conclusion that reasonableness is not determined by the listener’s community (what people in Adam’s position typically believe about what signals consent) – because, like you, I worry about morally problematic interpretations of nonverbal communication (e.g. wearing “revealing” clothing means you want sex and aren’t picky about with whom you have it).

    Side note: It seems entirely possible that few if any people in Adam’s position actually hold such beliefs – and that, instead, the belief they hold is one regarding accountability norms. Consider two possibilities:

    1) Adam actually believes Barb’s wearing “revealing” clothing means she wants sex and isn’t picky about with whom she has it;
    2) Adam believes Barb’s wearing “revealing” clothing means he can have sex with her, whether she consents or not, and he won’t be held accountable.

    It seems to me that #2 is what is really going on. I’m old enough to remember the days when girls were told not to wear revealing clothes because “it will give boys the wrong idea.” (I hope those days are past?) This advice always struck me as gaslighting. Any mentally competent human being knows that style of dress does not constitute consent to sex. Telling girls otherwise seems little more than saying, “Don’t expect anyone to have your back or hold the boy accountable if you get yourself raped.”

    But I digress…

    You raised the very interesting and difficult issue of how to determine the reasonableness of a mistaken belief regarding consent where Adam and Barb are from different linguistic communities (Adam from US, Barb from Brazil, meeting in UK – with a misinterpretation of an “OK” hand signal). I’m inclined to think that an assessment of the reasonableness of Adam’s mistaken belief would include the fact that he’s in the UK (so, maybe we need to assess reasonableness against how consent is typically signaled in the UK?). And what if they’re in the UK, but at a Brazilian nightclub, such that Adam is on notice that he might be communicating with a Brazilian. In that case, I’m inclined to say an assessment of the reasonableness of his belief would have to attend to the way consent is communicated in Barb’s linguistic community (Brazil).

    Thankfully, when it comes to sex, communicating consent typically involves many more signals than flashing an “OK” hand signal. (In a somewhat embarrassing passage of the article, I summarize a few non-verbal actions that might be used to signal consent to sex.) My main concern is to avoid thinking that the reasonableness of mistaken beliefs re: consent to sex turn on the actual beliefs of people in Adam’s position.

    Regarding your second question, I’m inclined to think that gender identity and/or sexual orientation would be relevant to assessing the reasonableness of mistaken beliefs in consent, if it informs how people communicate consent. (The structure of the argument would be similar to the US/Brazil in UK hypo you raised.)

    I’m not sure I followed your third question correctly. In both (a) and (b), you wrote that the 99 communicated consent through silence. In that case, I suppose I would have to conclude it could be reasonable for someone to mistakenly believe silence signaled consent. (I’m sorry if I’ve misunderstood your point!)

    In any event, you’re quite right to press me on the vagueness of the phrase “people in Barb’s position.” As your hypo and questions illustrate, there are many salient features that might be in play here. For now, I don’t have a good account of which features are salient (eg, that Barb is a Brazilian in the UK) and which are trivial (eg, that Barb ate Wheatabix for breakfast). My main hope is that we will focus on whatever features are salient with respect to understanding what Barb communicated, rather than deferring to Adam’s wishful thinking about what he wanted her to communicate.

    Thank you for these questions – and please keep me posted as you continue thinking about them! I’m a huge fan of your work, so I’ll be looking to you to sort this out! 🙂

  23. Accountability and Resistance

    I’m sorry I’m late to the discussion of Michele Dempsey’s really fantastic paper on Coercion, Consent, and Time. For the most part, I’m pretty persuaded by Dempsey’s account of justification and excuses in the context of coercion, consent, sexual assault and rape.

    For me, the more thorny issues, for me revolve around accountability, and in particular, accountability delayed. Dempsey’s account of justification and excuse shows that the passage of time does not alter the nature of the act as unjustified and inexcusable. The difficult questions revolve around whether the survivor of a sexual assault or rape has a duty to call her assaulter or rapist to account, and when.

    It’s first worth recognizing that accountability presumes both a relationship and a power. As Dempsey has argued elsewhere, even if there is are reasons that apply to all of us to prevent or ameliorate wrongdoing, there are countervailing reasons that argue against getting involved in someone else’s business by holding them or others to account for some act of wrongdoing. Some of these reasons are epistemic: strangers are often not well placed to understand the ins and outs of the situation; lacking context, strangers should leave it people who are better placed to call the parties to account for their actions. Perhaps more directly, strangers often lack the sort of relationships with the parties that give them standing to hold the parties to account. Bystanders who have a relationship with the parties both occupy a better epistemic position to understand the context necessitating their intervention, and which may impose additional role-based duties to intervene that the rest of us lack. Certainly, we all have a duty to intervene to check everyone is okay when we see someone we think is threatened with sexual assault. But the various individuals and institutions with standing to call the assaulter to account is more complex and depends upon our social roles and institutions. Or so Dempsey has persuasively argued elsewhere.

    Dempsey argues that victims certainly have standing to hold their assaulters accountable. However, she is a little wooly on whether victims have a duty to do so. She says, “it may be that both survivors and others who are well-placed to do so have a duty to hold people accountable for their previous sexual misconduct.” (364). The prevarication that “it may be that” survivors have standing covers a lot of recent philosophy, some of it Dempsey’s own, in the area of victim’s duties to resist oppression and their oppressor.

    The issue of victim’s duties to hold their victimizers accountable for their wrongdoing is a fraught one. The basic idea is that victimhood is a hierarchical relationship of domination and subordination between wrongdoer and victim. There are various epistemic and moral reasons for recognizing that the victim has a duty to call out the wrongdoer canvassed in some recent feminist philosophy by Carol Hay, Ashwini Vasanthakumar, Kate Manne, and Dempsey herself, as well as many others. All of them recognize that suggesting that the survivors of sexual assault have a duty to call out wrongdoing and demand some accounting is to pile insult onto injury. Dempsey, in this article, gives the example of Professor Martha Nussbaum, who decided not to hold her assaulter to account because of the personal and professional consequences of doing so. The same goes for many victims of sexual assault.

    The idea of a victim or survivors duty to call out (or “resist”) the wrongdoer is complicated by our ideas of duty. For example, the Kantian tradition makes duties really weighty things; another view, however, is that duties are just mandatory, categorical reasons. They are impersonal and persistent, but they need not be particularly weighty. Duties can be overridden or canceled by other reasons, or changes in the world. Professor Nussbaum’s example shows how: it can be that the stakes of acting on that persistent, impersonal reason are so high that they are defeated (for the moment) by other reasons. Another way to put this is that the survivor lacks the personal and social resources that could empower her to hold her assaulter to account. But the persistence of reasons in general, which includes mandatory, categorical reasons, even in the face of defeat (for the moment) provides another reason to think that Dempsey is right about the temporal persistence of accountability.

    The victim’s-duty-to-call-to-account view suggests that survivors who choose to call out past wrongdoing always had a duty to do so. One of the vicious features of oppression—sexual, racial, on the basis of disability, and so on—is that the persistence of the duty to call out wrongdoing is one of the ways in which oppression continues to have its cost. That the duty cannot be acted upon is one of the ways in which oppression oppresses: oppression disempowers the people it oppresses from acting on that duty. it is morally corrupting to the victim or survivor, because they cannot act on some of the reasons they have to call the wrongdoer to account precisely because the structure of oppression raises the costs so high. We could characterize the inability to call out the wrongdoer as a form of post-injury coercion; a second and distinct injury that society heaps upon the survivor. Thus, for example, calling out a racist police officer may not be an option for people of color because to do so risks further oppression and death. Calling out a sexual assaulter risks stigmatization and further assault. This can feel like complicity, which is why moral emotions such as guilt are persistent, and why putting them in their place can be hard. The reasons to hold accountable persist despite oppression-created reasons not to act on them.

    This account of the persistence of reasons to call to account is another reason to endorse Dempsey’s account of accountability. Where the duty was defeasible before, because the stakes were so high, now it is not, because the stakes are different. Indeed, the persistence of those reasons suggests there may be a moral imperative to call the assaulter to account. If the cost of calling to account have been lowered, because the world has changed in ways that provide the survivor with more support (power) either personally or structurally, then the balance of reasons now tip in the direction of accountability.

    Dempsey provides some reasons to think that there may be some other reasons, now, why calling out the wrongdoer is inapt. Some of these are by analogy with legal doctrines such as the statute of limitations and laches. In other words, there may be good reasons now to let sleeping dogs lie. Some of these reasons, however, are oppression reasons: they seem like a form of gaslighting. They take the form of: “you should have protested at the time of the injury, even though you couldn’t (safely), and now you can’t protest because it’s too long ago and we should just get over it.” Dempsey has some interesting things to say about these reasons, which I’d like to respond to in a later post.

  24. Hi Kim! Thank you so much for joining the conversation.

    I’m so pleased you found the discussion of private and public accountability illuminating. Admittedly, it’s only scratching the surface – so your comments re: the various dimensions in play is incredibly helpful. Let me try to offer something about how the nature of the wrong informs whether it is a private or public wrong. (This explanation picks up from some of what I wrote in response to Jesse Wall.)

    Some kinds of wrongs are grounded, at least in part, in wrongful structural inequalities in the communities in which the wrongs occur. For example, the wrongs like rape and domestic violence are grounded, at least in part, in patriarchal structural inequality. (So, on this understanding, the wrongness of rape cannot wholly be explained in terms of violation of autonomy, bodily integrity, “sheer use” (Gardner/Shute), etc. A full accounting of the wrongness of rape must include an explanation of how patriarchy informs the nature of the wrong. Absent patriarchy, it would still be wrong to have sex with someone without their consent, but it would not be quite the same kind of wrong that we know as rape.) When this is the case, and the structural inequality is entrenched in the character of community, the occurrence of such wrongs has a tendency to sustain and perpetuate those structural inequalities. (So, with rape, not only is the nature of the wrong partly grounded in patriarchy – it also tends to sustain and perpetuate patriarchy.)

    One value that can be realized in responding to wrongs like rape is that the community can condemn the wrong as one that is grounded, at least in part, in this wrongful structural inequality. (That is, their response can make salient the patriarchal nature of the rape, not merely its autonomy-violating, etc. features.) In responding to rape in this way, the community can not only condemns rape as an autonomy-violating, etc. wrong – it condemns it as a wrong that tends to sustain and perpetuate patriarchal structural inequality. By habitually condemning rape in this way, the community realizes what I call constitutive value – the value of reconstituting its wrongful patriarchal character into what I characterize as a more feminist character.

    The constitutive value that can be realized by the community condemning rape in this way grounds reasons for the community to do so. Those reasons contribute to making it the case that a community-wide response to the wrong is justifiable. If a community-wide response to a wrong is justifiable then, on my account, it is a public wrong. (So, contra Duff/Marshall, I don’t think rape is a public wrong b/c the community shares the wrong with the victim. I think it’s a public wrong (at least in part) because there is constitutive value to be realized in the community responding to it in the right way. (Note: it would probably be a public wrong even in a post-patriarchal world, but the explanation for why it would be a public wrong would be different.)

    Does that make sense?

    Excusability norms

    Regarding excusability norms, you ask, “Could it be that once excusability norms shift in a seemingly progressive way (i.e. “we were mistaken to believe that X was ok”), they might shift back again?” If I’m understanding your point correctly, it seems like you might be raising the issue of our society coming to realize that, in the past, it was laboring under a moral mistake. So, first, I should say that I don’t think moral mistakes provide an excuse (although they might impact whether it is justifiable to hold people accountable). I like your hopeful suggestion that once we make moral progress, we do not (or cannot?) shift back. I wish I could be as hopeful. (The recent insurrection hasn’t left me very hopeful about the stability of moral progress.) But, perhaps I’m misunderstanding your point – in which case, I’m very sorry!

    Regarding wrongfulness norms, your apocalyptic future case reminds me a bit of The Handmaid’s Tale – where the dystopian Gilead arises, in large part (?), due to a dramatic drop in births due to environmental toxins/nuclear waste/etc. Of course, one of the scariest things about The Handmaid’s Tale is how the dystopian future echoes so much of our present society – but I digress. To take up your point directly, I agree with you that “the social meaning that sex has in an apocalyptic context [would likely be] different from the social meaning it is now.” It would still be a violation of autonomy, etc. but if its main social function was to prolong the existence of our species, rather than to sustain/perpetuate patriarchy, then it would still be a wrong, but meaningfully distinct from the wrong we know as rape.

    As always, Kim, your contributions are so rich and evocative. Thank you for thinking through these issues and taking the time to share them. I miss getting to see you in person – but it’s great to catch up with you, if only online.

  25. Michelle – Thank you so much for your response and kind words! I’ll just briefly follow-up in reverse order, mostly because my last point had an embarrassing typo. The (a) and (b) should have said:

    (a) Of 100 people who want to have sex and are in Barb’s position, 99 of them communicate consent by silence.
    (b) Of 100 people who don’t want to have sex and are in Barb’s position, 99 of them communicate LACK OF consent by silence.

    The upshot was supposed to be that the same behavior is used by people in Barb’s situation to communicate two different and contradictory things. My concern with this example is that we might be in a society in which women are afraid to communicate affirmative consent due to fear of social judgment (and so remain silent) while also being in a narrower context in which even those women who don’t want to consent will still remain silent out of fear of their attacker. To use Barb and Adam, imagine Adam is physically much larger and stronger than Barb, is prone to anger, and has what we could (hopefully) consider archaic beliefs about how women should act during sex. Knowing this, women in Barb’s position who consent to sex with Adam would be quite as well as women who don’t consent to it. In this particular case, I am inclined to blame Adam (especially if Adam has good reason to think those in group (b) far outnumber those in group (a)), but on a strict reading of some of your wording I’m not sure we can.

    An alternative way of determining reasonableness which still focuses on those in Barb’s position could then be “is the behavior typically used by people in Barb’s position to communicate consent?” This would contrast with asking “do ‘people in Barb’s position typically… communicate consent in that way’?” (357). Under the standard from the article, we look at whether those who would want to consent act like Barb did and so focus only on those who want to consent. On the suggested alternative, we look at all people who would act like Barb did – whether they would want to consent or not – and ask what all those behaviors mean.

    I agree with your point on 2, but also am at a bit of a loss for how to get at the relevant vs irrelevant distinctions (or, alternatively phrased, how fine-grained does the description of “in Barb’s position” need to be?). After sleeping on it, my current best guess is that sometimes who says something impacts its meaning. In certain social contexts, the social role of the speaker impacts the meaning of the utterances. For example, a classmate reviewing a paper and saying “are you sure your summary of Kant is right?” has a different meaning than a professor reviewing a paper and saying exactly the same words. Given gender norms and sexual norms in our society, it would be reasonable to think that the gender of the speaker impacts how utterances are interpreted. However….I then worry that we are in a position that invites similar worries to the wearing “revealing” clothing concern.

    Returning to the first point…I have reservations that what a person in Adam’s position would actually believe is irrelevant to the reasonableness of mistaken beliefs. Imagine the night club is in Brazil, and Adam is absolutely clueless that the OK hand sign means something different there. He did his due diligence in learning Portuguese, but somehow he just completely missed this fact. In such a case, I’d be inclined to excuse him. However, I have no such inclination if Adam started grinding against Barb in a nightclub because he mistakenly thought dancing “provocatively” in a short skirt indicated she consented to such behavior (even if such a belief is common). This leads me to believe that something other than “what someone in Adam’s position would believe” does the normative heavy lifting. I’m not entirely sure what that would be, but here’s an initial guess: is the grounds for linking the communicative act with the giving of consent grounded in sexist, racist, etc. beliefs? If so, then the mistake is not reasonable. If it isn’t, then it may be reasonable (though other terms and conditions may apply – e.g. if the mistake relies on a belief that the Earth is flat).

    The other relevant normative factor I think that applies to excusability norms is how we should treat the risk that we misinterpreted a communicative act. It seems plausible that when consent is to something that carries with it a risk of great harm if we are wrong, we have an obligation to verify that our understanding is correct. For example, if I ask my friend if I can borrow her priceless family heirloom that she values above all else for target practice and I’m only 75% sure she said “yeah” instead of “nah,” I probably have some sort of moral obligation to double check. Same too with physical contact. Having sex with someone when there is a significant risk that they didn’t consent is to risk doing them a great harm. Disregarding that risk even if the person believes they have consent seems problematic. However, in a way this simply kicks the can down the road, for surely the same questions about whether it was reasonable to be certain or not arise here, and so in the end I’m not sure if this suggestion actually leads to progress or not.

  26. Some thoughts on public and private accountability.

    I find Dempsey’s description of public and private interests helpful in thinking through the issue of belated accountability for wrongdoers. I’m interested in the notion that public *accountability* is scalar, which I think is a really useful idea since the distinction between public and private *interest* need not be. There is a private interest in seeking redress; and a public interest in doing so too, on occasion; but where there is a public interest, there are different degrees of publicity in holding to account.

    Dempsey’s idea is that as between perpetrator and victim, the victim has the right to call the wrongdoer to account in private. However, where the wrong also impacts public interests, there may be more or less public ways of calling out the wrongdoer—through a bystander, rather than the victim speaking directly to the wrongdoer on behalf of the public interest; or a bystander speaking to the wrongdoer in a public forum, and so advertising the wrong to the relevant, interested community; or through a public official speaking to the wrongdoer through official community channels.

    Are these really scalar (quantitative) notions of what is public or are they conceptually different (qualitative) notions of what is public? We might distinguish between the sorts of institutions at play here: the institutions of private friendship or collegiality, of civil society, and of the institution (the college, the state). I tend to think that there is a difference in kind between these publics. In other words, it’s one thing to take criticism of Alice, the microwave-mucking colleague, out in the open, so everyone knows it was Alice. Here, we have the court of public opinion, but there is no shared set of norms in how to respond. However, even in the civic realm, there are ways in which our shared community standards of civility govern how we respond to microwave-muckers. Going the civility route may result in Alice being sent to Coventry. There are roles and offices or just influential or charismatic people in civil society who determine how we govern ourselves short of seeking more formal redress, and we can use these shared normative institutions and the critical reflective or responsive attitudes (pick your H.L.A. Hart or Strawson terminology) to enforce accountability in civil sphere.

    Finally, there is the conception of “public” that fits the sort of “public accountability” enforced by the institution (college) or the state. Hence, when the Dean speaks to Alice about her microwave mucking, he must place himself in one of these realms, publicity, civil society, or official institution. Dempsey’s discussion really helped me in distinguishing among these realms, but again, I wonder if the difference between them is scalar or something else.

    Another of the things that is helpful about the distinctive realms, however conceptualized, is that victims and survivors of wrongdoing may seek different forms of vindication through these different options. It is one thing simply to call Alice out in public, and quite another to get the community to rally round and support Ben, or to get the institution to condemn Alice and her microwave-mucking. In part, it makes a difference on whose behalf support is extended to Ben and accountability meted out to Alice. The differences are between individualized accountability (and support)—we find out who our friends really are, and which among our colleagues are principled even if not friends—group- or community-based accountability (community vindication), and institutional accountability (institutional vindication). Each of these has different personal and role-based impacts, and each of these may be more or less easily mobilized to generate accountability. Again, Dempsey’s model may be particularly useful in a world in which we are thinking about alternatives to criminalization and focusing on non-state- or alternative-to-state-based ways of vindicating the rights of victims and survivors, and so asking the question of which public matters for that purpose.

  27. First response to Eric Miller (as I haven’t yet read his second post, b/c I’ve been writing this response):

    Hello, Eric! Thank you for joining the conversation. You have an uncanny ability to take stuff I’ve written and make it at least 10 times clearer – and 100 times more compelling.

    As you correctly observe, I dodged the issue of whether victims/survivors have duties in this article. As you know, I adopt a rather deflationary account of duties, as just categorical/protected (bearing mandatory force) reasons – and I didn’t want to get stuck explaining/defending that view as against the more robust/demanding Kantian account of duties. (Thank you for mentioning Carol Hay’s and Kate Manne’s excellent work on the topic of victims’ duties. I cited Manne’s book for another point, but didn’t cite Hay’s work – which was an oversight on my part. Highly recommended! Here’s a link: https://philpapers.org/rec/HAYTOT-2)

    While I agree with everything you wrote, I particularly admire this phrasing: “[T]he persistence of the duty to call out wrongdoing is one of the ways in which oppression continues to have its cost. That the duty cannot be acted upon is one of the ways in which oppression oppresses: oppression disempowers the people it oppresses from acting on that duty. It is morally corrupting to the victim or survivor, because they cannot act on some of the reasons they have to call the wrongdoer to account precisely because the structure of oppression raises the costs so high.”

    Yes! To that, I would add that the notion that “the duty cannot be acted upon” relates not only to (1) the high cost that the victim would bear b/c the structure of oppression raises the costs so high – but also to (2) the ways in which oppressive structures make some responses to wrongdoing impossible – they silence victims, depriving their words/actions from bearing their intended perlocutionary force (and maybe even illocutionary force).

    To be honest, I don’t quite understand why the claim that victims have duties to call out past wrongdoing is thought (by some, not us) to be so controversial. When I think back waking up no October 16, 2017, when the #MeToo hashtag went viral – it seemed pretty clear that I had a duty (at very least) to tweet #MeToo. Given that I have had these experiences, not tweeting #MeToo would’ve felt very much like leaving others hanging, not having their back, almost like gaslighting them by denying the reality of how widespread sexual harassment/assault is. On the other hand, of course, there is obviously still a huge cost paid by people who speak out about their experiences. So, while I think victims/survivors have a duty, I also believe that failure to conform to that duty (at a given time) can be justifiable. And, as you correctly note, duties are persistent – they continue to bear rational force over time, even if we can’t/don’t conform to what they would have us do at the time they first demanded conformity. So, while failure to conform might be justifiable (or excusable?) now – the rational remainder of the non-conformed to reason still bears its normative force into the future. (I should note how much of this part of the conversation b/w Eric and me is informed by the late John Gardner’s work. I owe almost every good idea I’ve ever had to John – at least when it comes to philosophy.) 🙂

    As ever, Eric, I am grateful for your generous reading and clear explanation of some issues I dodged in this article. Thank you for this contribution. No doubt, I will return to your post over time, as it expresses so many important ideas so eloquently.

  28. Stuart Green raises an interesting and important issue in his most recent comment. I’ll rephrase it slightly (hopefully without changing the gist of his concern – but, no doubt, Stuart will correct me if I mangle his meaning):

    Assuming Adam was blameworthy for his sexual misconduct way back when (circa 1950), is it fair to hold him accountable now? Stipulate that Adam could not have reasonably anticipated the risk that his conduct would actually lead to him being held accountable so far into the future. As Stuart correctly points out, concerns about fairness are particularly salient if the means used to hold Adam accountable now were not in existence back then (eg, Twitter/internet).

    No one will be surprised to find I think the answer to this question is, yes – usually it’s fair to hold folks like Adam accountable, even after a long time has passed – and even when the means by which Adam is held accountable are different than those he could have reasonably anticipated way back when. (Eric Miller’s post does a good job of explaining some of the reasons why accountability of oppressors for wrongs committed in the distant past can be justified, and indeed, holding these folks accountable may amount to a duty (depending on what you think a duty entails).)

    That said, I don’t know that I have strong views about any of the following:

    (1) What methods of holding to account are justifiable when the wrong was committed in the distant past? Private accountability seems justifiable – but as we move up the scale to more public forms of accountability, the justification needed to hold someone (here Adam) to account becomes more demanding.

    In my response Kim Ferzan re: excusability norms, I mentioned my view that moral mistakes don’t excuse, but they might impact accountability norms. If Adam was laboring under a moral mistake that was widely-held back then, perhaps individual accountability for each morally-mistaken wrongdoer becomes less crucial – and, instead, what we need is something like truth-and-reconciliation. Colleen Murphy , et al’s work is interesting on this point: https://illinoislawreview.org/wp-content/uploads/2019/03/Robbennolt.pdf (In this regard, it’s worth recalling that #MeToo was not originally intended by its founder, Tarana Burke, to focus on individual accountability – nor accountability of perpetrators at all, for that matter.)

    My sense is that much turns on whether Adam was laboring under a genuine moral mistake – or if he just thought he could get away with it. In the latter cases, I tend to think accountability (even criminal accountability, where the wrong was also a crime at the time it was committed) for actions committed in the distant past are justifiable (eg, Cosby, Weinstein, Jeffrey Epstein in re: sexual wrongs – and Thomas Edwin Blanton Jr. and Bobby Frank Cherry, convicted nearly 40 yrs after the Sixteenth Street Baptist Church bombing in Birmingham, Alabama).

    (2) What justificatory burdens attach to hyper-public forms of accountability, such as twitter-shaming? While surely less than the justificatory burden of using the criminal law, it seems that these relatively new ways of holding people publicly accountable can be pretty hard to justify. (Certainly, they seem harder to justify than just posting a sign in a faculty room about a messy microwave, or even calling a colleague out at the next faculty meeting for for making a mess.) I’m not saying twitter-shaming and the like can’t be justified – I’m just saying the burden seems heavier than pre-internet forms of non-criminal public accountability. Also, not all twitter-shaming is equal. Some tweets go viral, others are like shouting into the wind.

  29. Thank you for your response, Vera!

    Due to my fingers cramping and brain draining, I will only address your point re: whether Adam owes Barb an apology in Age of Consent/Regret.

    You wrote, “such apology [by Adam] would show disrespect to Barb: it would mean that, even though normally a young person of Barb’s age is deemed legally competent to make decisions, Barb did not have the emotional or mental competence of a normal young woman.”

    If Adam had approached to Barb to apologize without her first asking for an apology, then I might be inclined to agree with you. But in the hypo, Barb is the one who has come to discover (and approaches Adam to tell him) that she now recognizes that she lacked the maturity to consent.

    I tend to think Adam’s refusal to apologize would be unjustified – as a denial of the truth that Barb (now) is expressing regarding her past self. (Surely, she is in a better position to judge whether her past-self had the maturity to consent.)

    No doubt, we will continue to discuss these and related issues. I look forward to post-COVID opportunities to connect in person. Thank you, again, for your challenging contributions to this discussion!

  30. Thank you, Michelle. Congratulations with this excellent paper! I look forward to getting together in some relatively near future and continuing discussion. Be well.

  31. Response to Eric Miller, Part Two:

    First, thank you for introducing me to the idiom, “being sent to Coventry.” I’m embarrassed to admit that I lived in the UK for seven years without becoming familiar with that phrase. (I did live near Coventry… so perhaps that explains it? I imagine the idiom is somewhat less in circulation around those parts.) 🙂

    You make an excellent point about whether “public accountability” is different in kind (not just scalar), depending on the institution that enforces the accountability (eg, college, workplace, state, etc.). Given my views about how the nature of a wrong can inform whether it is public or private (see my response to Kim Brownlee at “February 2, 2021 at 12:37 pm” above) – I have to give more thought to whether the distinction b/w public/private wrongs is wholly scalar. Maybe I should think of responses made on behalf of some institutions (eg, state) as public (insofar as they are responses made on behalf the entire polity, and are thus comprehensively public in that sense) – even if those responses don’t bear the other hallmarks of a public response. (Usually they will bear those hallmarks – but, yes – I should agree that the fact that they are made by the state/on behalf of the entire polity means they are an example of “public accountability.”)

    In any event, I agree entirely that it makes a difference on whose behalf support is extended to victims/survivors and on whose behalf accountability is meted out to wrongdoers. By habitually supporting victims/survivors, a community can cultivate valuable character traits of fellow-feeling. By habitually denouncing/condemning wrongs grounded (at least partly) in structural inequalities, a community can cultivate valuable character traits that stand in opposition to those that ground the wrong (eg, becoming more feminist/less patriarchal).

    I’m flattered (perhaps unjustifiably so) by your comment that “Dempsey’s model may be particularly useful in a world in which we are thinking about alternatives to criminalization and focusing on non-state- or alternative-to-state-based ways of vindicating the rights of victims and survivors…” I only wish Dempsey (me) knew more clearly how her (my) model can be useful in this regard. While I share concerns/critiques of criminal law offered by abolitionists, one worry I have is how to shape our responses to wrongs like rape, so that it is possible to have a comprehensively public response, which is denunciatory/condemnatory of the wrong (in a way that makes salient its patriarchal features), on behalf of the entire polity/community, without sustaining/perpetuating the many wrongs (structural and otherwise) that seem to be baked into the criminal legal system (at least in the US).

    I hope some of this makes sense. No doubt, I will be following up with you in hopes of benefiting from your always spot-on, illuminating explanations. With luck, one of those “follow ups” will be in person, once COVID is done. Thank you, Eric. I’m deeply grateful to you.

  32. Thank you, Michelle, for your thoughtful response, as always. I can’t plead cramped fingers from typing, but my back does hurt a bit from shoveling snow. I’m relieved to hear you say that at least some of these new, hyper-public forms of accountability can be hard to justify. There is an aspect of rough justice in them that ought to concern us. There was a time back in early 2018 or so when there were new #MeToo allegations in the media almost everyday. I asked a friend, a very thoughtful guy who is a top editor at a major publication, how they decided which allegations to give prominent coverage to when they were getting so many new ones every day. Was it the seriousness of the conduct alleged? The prominence of the person accused? The prominence of the accuser? The strength of the corroborative evidence? The effect the allegations might have on the accused’s reputation, family, and career? Was there any kind of algorithm they used to decide? Perhaps not surprisingly, his response was a bit vague. Basically, he said, they just used their journalistic instincts about which stories they thought were worth covering.

  33. Thank you for your follow-up, Beth!

    Briefly, if the same behavior is used by people in Barb’s situation to communicate two different and contradictory things, then I think it would be unreasonable for people in Adam’s situation formulate/maintain a belief that the behavior means one thing (consent) over the other (non-consent). So, in the example you gave, Adam should just ask Barb directly/explicitly, “Can I kiss you?” If there are genuinely “blurred lines” re: what the conduct signals, then the reasonable thing to do is it to seek clarity. (I think this response is consistent with your point re: having a moral obligation to double check in cases of possible uncertainty, where the stakes are high – in re: the priceless family heirloom.)

    I think you’re right re: “sometimes who says something impacts its meaning” and the “gender of the speaker impacts how utterances are interpreted.” And yes, I agree re: how this “invites similar worries to the wearing ‘revealing’ clothing concern.” (Rae Langton’s work on pornography and silencing is on point here, right?)

    Regarding Adam (from the US) being in a Brazilian night club (in Brazil, not UK) – I think his role (a visitor in Brazil) bears on whether his mistaken belief is reasonable. As you pose the hypo, “Adam is absolutely clueless that the OK hand sign means something different there.” – But perhaps he should not be so clueless. Perhaps his failure to know this fact bears on whether his mistaken belief is reasonable. You write, “He did his due diligence in learning Portuguese, but somehow he just completely missed this fact.” That sentence seems key to me.

    Excuses (on the account I’m shamelessly borrowing from John Gardner’s “The Gist of Excuses”) vary according to our roles. So, we’d have to ask something along the lines of, “What constitutes ‘due diligence’ in learning how to communicate in Brazil?” – does it include learning not only the spoken/written language of Portuguese, but also the nonverbal language? More specifically, we might ask, “What constitutes ‘due diligence’ for a man from the US (Adam) in learning how to communicate with Brazilian women, before kissing Barb (a Brazilian woman)?”

    Roles and their expectations for reasonableness differ, I think, depending on what one seeks to do while in that role. (Adam might commit an easily justifiable, or at least excusable, wrong by irritating a passerby when bungling his Portuguese while asking for directions to the nearest train depot. Yet, Adam would commit an unjustified, and probably inexcusable, wrong in kissing Barb, who just gave him a hand signal that (in her linguistic community) means something like “F***-Off”!)

    So, I think here we might disagree. You’d be inclined to excuse Adam, but – depending on the correct role morality of US-male-tourists-seeking-sex-in-Brazilian-nightclubs- I might be disinclined to excuse Adam.

    Does that make sense?

    There are so many intriguing and difficult issues raised in your comments – and no doubt, I’ve not even begun to provide adequate answers – but I thank you for raising them, and I look forward to continuing the conversation (hopefully in person!) once COVID is done.

    With great appreciation and respect, Beth – many thanks!

  34. Thank you Michelle for your crisp and clear responses, that address my concerns and have given me plenty more to think about. Thanks also for your kind words of encouragement. All the best from New Zealand.

  35. To close out the conversation, let me end by once again offering my thanks. While the last two days have been exhausting, I’m grateful to have spent time in community with so many people I respect and admire.

    Thank you to everyone who participated in the online discussion – especially Kim Ferzan, who got this party started. Thank you to Stuart Green, Vera Bergelson, Alec Walen, Jonathan Herring, Jesse Wall, Beth Valentine, and Eric Miller for your helpful and generous comments/questions – and to those who offered behind the scenes support and comments (Nicola Lacey, Kate Greasley, Ekow Yankah, and my very first feminist philosophy professor, Marcia Baron).

    Huge thanks to Kerah Gordon-Solmon, who organized this online discussion – (and who took on the unexpectedly difficult role of adjudicating a dispute b/w Ferzan and me re: the true identity of the rodent in Caddyshack). #HappyGroundhogsDay – https://www.youtube.com/watch?v=krVXRCcr2M4

    If you haven’t already done so, please check out the excellent papers in this Ethics symposium on Coercion & Consent:

    Hallie Liberto’s “Coercion, Consent, and the Mechanistic Question” https://www.journals.uchicago.edu/doi/10.1086/711207

    Mollie Gerver’s “Consent and Third-Party Coercion”
    https://www.journals.uchicago.edu/doi/10.1086/711208

    Quill Kukla’s “A Nonideal Theory of Sexual Consent”
    https://www.journals.uchicago.edu/doi/10.1086/711209

    Victor Tadros’s “Consent to Sex in an Unjust World”
    https://www.journals.uchicago.edu/doi/abs/10.1086/711210

    Tom Dougherty’s “Sexual Misconduct on a Scale: Gravity, Coercion, and Consent”
    https://www.journals.uchicago.edu/doi/10.1086/711211

  36. Michelle,
    Many thanks for your thoughtful engagement with everyone and for writing such a rich and interesting paper. I think the rest of us were exhausted just reading all of your responses–thank you for engaging so seriously and openly. I know I have learned a ton from this exchange.

    But, there is one thing you were decidedly wrong about. That rodent is not a groundhog. It is a gopher. That is all.
    Kim

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