Author Archives: Rebecca Reilly-Cooper

Lex talionis in the experience machine

When it comes to punishment, I imagine that even the most progressive of us, and even the most consequentially minded of us, continue to hold some pretty strong retributive intuitions. Even if you are thoroughly convinced that the primary justifications for the practice of punishment are forward-looking considerations like deterrence or rehabilitation, you probably still feel the pull of more retributive concerns – the idea that some people ought to be punished because they somehow deserve to be punished; that because they have inflicted suffering on others, it is appropriate that they suffer in return.

Unsurprisingly, I tend to have this retributivist response most strongly with respect to particularly violent crimes or crimes that involve the deliberate infliction of especially painful and long-lasting suffering, and where the perpetrator shows little remorse. For example, the real-life case that most strongly elicited this response in me was that of the two men convicted of throwing acid into the face of model and television presenter Katie Piper. This attack inflicted a huge amount of physical pain and psychological suffering, as well as permanent disfigurement. Indeed, this was the objective; the attack served no other purpose, and can only have been motivated by a desire to inflict suffering and cause permanent damage. Furthermore, the perpetrators of this crime have never expressed any remorse or regret for their actions. When I read the details of this crime, and others like it, the feeling of injustice makes me understandably angry. The fact that these people have knowingly and intentionally inflicted such a huge amount of pain and suffering on an innocent person, and yet do not appear to be suffering in any real sense themselves, feels to me to be a real injustice. It seems to me that it would be a better state of affairs if they could experience the kind of suffering they have inflicted; if they could feel and understand the pain and damage they caused. Not only because this would hopefully deter them from committing future attacks, but also because I can’t help feeling that they deserve to feel pain equivalent to the pain they have inflicted.

Now of course, you may dismiss this response of mine as simply an emotional desire for vengeance which, no matter how understandable, has no place in a civilized society and certainly ought not to be incorporated into our practices of punishment. There are legal systems in some parts of the world where lex talionis is enshrined in law, and inflicting physical suffering on a perpetrator equivalent to that caused by the original crime is a possible form of punishment. In a literal case of an eye for an eye, Iranian courts ruled that as punishment for disfiguring and blinding Ameneh Bahrami by throwing acid in her face, her attacker Majid Movahedi should be punished by having acid dropped into his eyes (although this punishment was never carried out, as Ms Bahrami pardoned Movahedi at the last minute). I share the abhorrence that was most people’s reaction to the initial ruling, and believe that no judicial system ought to punish people by inflicting this kind of physical harm on offenders, no matter what their crime. What I’m interested in though, is the reasons why we believe this kind of judicial punishment is wrong. Is it wrong because it is always wrong for the state to inflict the subjective experience of physical pain on to offenders? Or is it wrong because of the objective harm that would be caused by dropping acid into the offender’s eyes, and the likelihood this would cause lasting, permanent damage? To try to work this out, I’d like to make use of a thought experiment.

Suppose we really had access to experience machines, like the one that Robert Nozick devises in Anarchy, State and Utopia. That is, imagine that there are machines that we can be plugged into, like the people in The Matrix, that are programmed to stimulate our brains in such a way as to replicate any experience. While you are plugged into the machine, you aren’t aware that the experiences are a simulation – you think these events and experiences are actually happening. After a certain amount of time, you can be unplugged, and go back to your normal life. Now let’s imagine that these machines are routinely used as a form of judicial punishment, as a way of enacting a type of lex talionis punishment that, while inflicting the experience of physical pain and suffering, does not cause any long lasting harms. So for example, as punishment for committing an acid attack, the perpetrator would be plugged into the machine, and in the machine, have the simulated experience of having acid thrown into his face. He would feel the same physical sensations that such an attack tends to cause in the real world. Furthermore, he would, in the machine, have the appearance of being physically disfigured, and experience the psychological anguish and distress that usually accompanies this. During his time plugged into the machine, he would not realise this is a simulation; he would believe he was actually having this experience. After a given amount of time – however long we deemed was an appropriate length of time for him to suffer – he would be unplugged from the machine, physically unharmed.

Could such a form of punishment be justified? If we think it could, then that suggests that what is wrong with judicial corporal punishment is not the infliction of physical pain itself, but rather causing objective, long-lasting, possibly irreversible harms. But if we think that lex talionis in the experience machine is wrong, then that suggests that what we think is wrong about judicial corporal punishment is simply that it causes the subjective experience of physical pain, irrespective of any objective or long-lasting harms it inflicts. This may be right – it might be the case that the state ought never to inflict physical pain upon its citizens, no matter what offence they have committed. But this position leads to familiar worries about why the infliction of physical pain is considered unacceptable when the infliction of psychological distress is considered legitimate – clearly for many people, having their liberty restricted by being sent to prison is likely to cause a great deal of psychological suffering, and yet we tend to think this is ok. So the person who thinks lex talionis in the experience machine is an impermissible form of judicial punishment will need to explain why causing subjective psychological pain is acceptable, while causing subjective physical pain is not.

As a tentative conclusion, I’m inclined to think that the reason to object to judicial corporal punishment is that it inflicts forms of physical damage that are objective, that is, that are harmful independently of how the subject experiences the harm. This is why it would be wrong for the Iranian judicial system to have carried out their punishment of dropping acid into the offender’s eyes – this would have blinded him, which is an objective and irreversible harm. But perhaps if we could simulate the pain and suffering caused by having acid thrown in one’s eyes without actually inflicting this objective harm, then this would be an acceptable form of retributive justice. Lex talionis within the experience machine might be a permissible form of punishment.

Assertiveness and testimonial injustice

In my first blog post, I talked about one aspect of the phenomenon identified by philosopher Miranda Fricker as epistemic injustice – namely, hermeneutic injustice. In this post (originally published at my personal blog) I want to talk about the other form that epistemic injustice can take – testimonial injustice, and how this might be perpetuated.

My thoughts on this issue were prompted by an exchange with a friend on Twitter. She was uncomfortable with the themes in a television programme she had watched, and tweeted her concerns. Out of a desire not to appear overly aggressive or confrontational, she preceded her thoughts with a disclaimer along the lines of: “now maybe it’s just me being oversensitive, but…”. A dissenter immediately replied, calling her view stupid, and using that disclaimer against her: “you said it yourself; you’re oversensitive”.

This led to my friend feeling silenced and not taken seriously; her attempts to explain her reasons for objecting to the themes of said tv show were ignored, as she was dismissed as stupid and oversensitive. But crucially, she blamed herself for having been treated in this dismissive way. She thought she had brought it on herself for expressing her opinions in an apologetic, self-effacing manner. By preceding her thoughts with the caveat “maybe it’s just me”, she had invited rude and aggressive responses along the lines of “yes, it’s just you, idiot”.

This got me thinking about my own behaviour, because I do just this sort of thing all the time. Especially in philosophy seminars. When I need further clarification of a point, I will often begin: “sorry, I didn’t quite understand, can you explain point X a bit more for me?” Or “I’m sorry, perhaps you addressed this point and I missed it”. Often this is genuinely done from lack of confidence in my own capacities – I frequently worry that I’m not as smart as the other people in the room, and hence that I don’t know, or don’t understand, something they do. But I also do this at other times. Even when I’m reasonably confident that the question I’m asking isn’t a stupid one, or the comment I’m offering is valuable and interesting, I still frequently preface my contribution with some kind of apologetic, self-effacing caveat.

When discussing my tendency to do this with a friend and colleague, he suggested – like my friend on twitter seemed to be suggesting about herself – that this is something I ought to work hard at eradicating from my speech. Doing this, he said, is to put myself in a position of weakness and inferiority from the outset. I am encouraging others to dismiss my opinions as mistaken. By presenting my thoughts in such a hesitant and apologetic way, I am inviting others to regard what I am saying as probably false, and not worth taking seriously.

Now, I suspect that this is a tendency we are more likely to see from women than by men. (This is mere speculation based on my own experience, and anecdotes of others. I’m sure there must be some empirical data on the subject, but I’m not familiar with it, so I’m just throwing the hypothesis out there for now.) And further, I’m sure many women are familiar with the experience of struggling to be taken seriously, just because we are women. Feminist philosopher Miranda Fricker labels this phenomenon ‘testimonial injustice’: when your credibility as a source of knowledge is deflated due to prejudices held by the hearer. Again, throwing empirical hypotheses around without any attempt to verify them, I have a feeling that this is a form of injustice that women are often subject to. Women are frequently – even if only subconsciously – regarded as less credible sources of knowledge and less competent reasoners than men. This is especially likely to occur in contexts that have historically been dominated by men, or continue to be populated by disproportionate numbers of men. And academic philosophy is certainly one of those contexts.

So then the worry is that when I make these self-effacing, timid sounding preambles to my arguments, I am not only undermining my own status as a bearer of knowledge and encouraging my listeners not to take me seriously. I am also reinforcing these prejudices in the minds of my audience. Given that I am a woman, they may have already been predisposed to deflate my credibility. When I express myself in an apologetic, tentative manner, I thereby present them with more evidence to confirm their biases, both with respect to myself, and women speakers in general. The prejudice is perpetuated, and my listeners are more inclined to dismiss my contributions, and further, those of other women. So perhaps I owe it not only to myself, but also to other women, to try to eradicate these displays of reticence from my speech, and be more confident and assertive. Perhaps I ought to be much bolder, more direct, perhaps even aggressive, in the way so many other people (men?) seem to be when engaging in debate. It’s especially tempting to think like this in the context of the philosophy seminar. These can be highly combative, adversarial environments, and it seems like if I want to keep up, be taken seriously and make a name for myself in this profession, I’m going to have to get over my timidity and get more assertive, quickly.

Perhaps. But I’m not so sure. There are a couple of reasons why I resist that conclusion, even if it might result in me and my arguments being taken more seriously.

First, as I noted above, this self-effacement is not always caused by lack of self-confidence or reticence on my part. Sometimes it is. But often, it’s simply a function of the way I relate to people. I’m just not an especially aggressive or confrontational person (or at least, I don’t think I am, anyway). Being forceful and assertive – especially when expressing disagreement or challenging someone – is something that I find deeply uncomfortable. Maybe this is because I’m not naturally oozing with self-confidence, but I would like to believe it’s at least partly because I’m the kind of person who likes to facilitate social relations, to encourage consensus and harmony, to prevent conflict and people feeling uncomfortable or under attack. Basically, I’m a nice person with a healthy capacity for empathy, so I don’t enjoy seeing people being vigorously criticised or attacked, even when I can plainly see that their arguments are mistaken. And I think that’s a good thing. These are positive aspects of my personality, and I don’t really want to have to change, to become more confrontational and aggressive, in order to be respected as a bearer of knowledge.

Now, the defender of the philosophy-seminar-as-gladiatorial-arena model may respond that it’s all well and good to be nice, but the purpose of a seminar is not for everyone to get along and feel happy and cosy – the purpose is to arrive at the truth. And on the way to the truth, there’s going to be a bit of rough and tumble; a certain amount of hostility and belligerence towards clearly false claims or poor arguments is inevitable. The same can be said of political argument – the purpose is not to respect everyone’s viewpoints equally, no matter how clearly irrational. Rather, the purpose is to work out what is the right thing for us to do. If you can’t stand the heat, get out of the argumentative kitchen.

But, to me at least – see the caveat there? – this seems too quickly to assume that these goals are not compatible: that if we are engaged in the pursuit of truth, we can’t possibly be expected to be nice to one another. And this brings me to my second reason to resist modifying my behaviour: the above response puts the blame for their exclusion squarely on the shoulders of the timid and tentative, rather than considering that perhaps the environment in which we are debating is unnecessarily adversarial and aggressive. It puts the onus for change on those who are less assertive and confident, rather than asking those who are more combative to consider altering their behaviour.

When this happens, everybody loses. Some of the timid people might manage to ‘toughen up’ and get more confrontational, but many more will simply retreat from debate, unable to handle the discomfort. Many shy, hesitant people will stop expressing their opinions altogether, for fear of public embarrassment. And the loss of those voices from the debate isn’t going to help us arrive at the truth.

So I don’t accept that my friend invited the insulting and dismissive response to her cogent and articulate tweets. And I don’t accept that I must get louder, more aggressive and more combative if I want to be taken seriously.

 

Follow me on twitter @boodleoops

Some thoughts on ‘groping’: naming uninvited touching

Thank you Jeremy for the welcome, and thank you for having me at Talking Philosophy. I’m looking forward to joining in the discussion! For my first two posts, I’m going to talk about my own personal experiences of the phenomenon that philosopher Miranda Fricker calls ‘epistemic injustice’. This is the injustice that occurs when someone is wronged specifically in their capacity as a bearer of knowledge. There are two main types of epistemic injustice – hermeneutical, and testimonial. In this first post I’m going to talk about the former, and in my next post I’ll discuss the latter.

Just over a year ago, at an academic conference, something unpleasant happened to me. I would like to be able to tell people about it. I wanted to tell people about it at the time, as it seemed like the kind of thing that should probably be reported to the conference organizers. Unfortunately, I wasn’t sure what it was that had happened. Thirteen months and a great deal of pondering the incident later, and I’m still not. As you can imagine, that makes telling people about it rather difficult.

I can describe the incident in detail, of course. Over a period of perhaps twenty minutes, another delegate at the conference – repeatedly and without my consent – touched my head, hair, neck, lower back, inside of my forearms, all the while indifferent to my distress and discomfort. (I want to go into lengthy detail here to try to explain why I didn’t tell him not to touch me or otherwise put a stop to it, but I’m going to resist.)

There have been many other incidents like this in my life, and I would be so bold as to claim that all women have several of their own versions of this story – most far worse than mine. I can give you a pretty accurate physical description of the incident. And I know that what this person did was wrong, because it is wrong to touch someone without consent. But what I am not sure about is what type of incident this was; what label to give it, what category to assign it to.

Once I had extricated myself from the situation I tracked down the conference organizers and tried to tell them what had happened. But I found myself lost for words. I didn’t possess any vocabulary to accurately report what had happened to me. I was upset and angry, which won’t have helped. But in the time that has elapsed since, I still haven’t figured out what I should have said. After much stopping, starting and stuttering, I eventually told them that the man in question had ‘sexually harassed’ me. I didn’t think that was right at the time, and I still don’t. I just didn’t know what else to say.

The other possibility that immediately springs to mind is ‘sexual assault’. My knowledge of the law and its correct interpretation is not good enough for me to comment on whether incidents like this are legally regarded as sexual assault. The UK Sexual Offences Act 2003 states that intentional touching is sexual assault if the touching is sexual, the person being touched does not consent, and the person does not reasonably believe that they have consented. The issue here would be whether stroking someone’s neck, back or inner arm constitutes ‘sexual touching’. I don’t know, and don’t want to speculate, because it’s not really the legal situation that I’m most interested in here. Rather, what I’m concerned with is the social meaning of events such as these – the label we collectively give them, the category to which we as a moral community assign them.

I didn’t describe this incident as sexual assault to the conference organizers, and whether or not legally it would be regarded as such, it feels to me that it would be inaccurate to use that term. To me – and I think to most people who hear that phrase – sexual assault denotes something much more serious and traumatic than the mildly obnoxious unwanted touching I experienced. If this person had touched the more obviously sexual areas of my body, then I would consider that to be sexual assault. But it just doesn’t seem correct to call unwanted touching of my arm, neck and back to be sexual assault. Not only does it feel overly dramatic and an exaggeration to refer to it in such terms; it also seems to me that to call it sexual assault is to diminish the experiences of other people who have been victims of serious sexual assaults. To equate the mild distress of someone stroking my neck with the trauma and shock that must accompany serious sexual assaults feels attention-seeking, and somehow disrespectful.

Maybe I’m wrong about that. Maybe it’s symptomatic of how widespread such incidents are, and how acceptable our culture considers them, that even their victims resist labelling them as sexual assault. But even if that’s true, the fact remains that I am uncomfortable with that label. It just doesn’t feel accurate to describe these incidents as sexual assaults, and I feel pretty confident that most other people would share that intuition – if I were to say I had been sexually assaulted, and then describe what happened in detail, they would think I was being misleading and melodramatic. The other possible remaining terminology is to say I was ‘groped’, a phrase that’s being employed rather a lot in the popular press just now. But I am not sure if that is correct either – ‘groping’ is a very vague and ill-defined term and I’m not sure exactly what it refers to. Must groping involve only the obviously sexual areas of the body, or can you grope someone’s neck, arms or legs? Is groping different from stroking? Although I have some vague hunches myself about how to answer these questions, the fact I’m asking them suggests there is no clear consensus on what groping is.

So what follows from all this is that I don’t have any label to give to this incident, and others like it. I know what happened; but I don’t know what type of thing happened. And this is a further harm to suffer – not only has an unpleasant thing happened, but I am also unable to name what that unpleasant thing was.

The problem of lacking terminology by which to identify these kinds of minor assaults seems to be a paradigm case of what philosopher Miranda Fricker calls ‘hermeneutical injustice’. This is the injustice that occurs when ‘some significant area of one’s social experience [is] obscured from collective understanding owing to hermeneutical marginalization’. Hermeneutical marginalization occurs when members of a particular disadvantaged group – in this case, women – are prevented from participating as equals in the creation of social meanings. Members of powerful social groups are in a privileged position with respect to the construction of our collective hermeneutical resources. That is, they have more influence over the creation of the social frames of reference by which people make sense of their lives and their experiences, while members of less advantaged social groups have less influence. The result of this marginalization is that there is a gap in our collective frameworks for interpreting and making sense of the social world, a gap which prevents some people – in this case, women – from being able to understand and make sense of their experiences. Historically, women have been under-represented from those jobs or roles that are central for the construction of social meaning – jobs in politics, law or the media, for example. They have therefore been marginalized from the processes whereby we come to recognize and label certain practices or events and place them within a framework of meaning. As a result, they are prevented from understanding or communicating the things that happen to them. As Wittgenstein famously said: whereof one cannot speak, thereof one must be silent.

The very fact that our collective hermeneutical resource – that is, our shared frameworks of meaning and reference – lacks vocabulary for describing the kind of thing that happened to me at this conference suggests that this form of injustice has taken place. It is startling that we do not have the language to adequately capture this kind of event, when it is such a commonplace feature of women’s lives. Most, if not all, women will experience this kind of uninvited physical contact several times in their lives; and yet we don’t have any terminology with which to discuss it. And the crucial claim is that this is an additional injustice – in addition to the wrong of being touched without one’s consent, a further wrong occurs when the victim of this touching is left without the interpretive resources to describe and make sense of what has happened to her. Not only is she unable to accurately report her experience to others. She is unable to understand it herself, and in interpreting it has to rely on the existing set of social meanings – which, in the case of unwanted touching, often represents this as harmless flirtation. This can lead to confusion and distress, as well as a sense of being alone in our experiences, when in fact they are examples of a wider pattern of behaviour for which we currently have no name. Indeed, lacking the interpretive resources to make sense of our experiences can be extremely damaging to our selfhood and identity. On a plausible account of personal identity, we are all engaged in a process of self-understanding, trying to make our actions, beliefs and emotions coherent and intelligible – first to ourselves, and then to others. If the existing set of social meanings – and of course, this is the only set we have to draw on – lacks the resources for us to make sense of the things that happen to us, it denies us the capacity to work our how it is appropriate for us to respond, and denies us the ability to render our own behaviour and emotional responses intelligible. This has a dramatic impact on our identities and sense of self.

So how can we remedy this injustice? I’m not sure, but one possibility (as some feminist bloggers have suggested) is to insist upon calling these incidents sexual assaults, and to try to raise consciousness among both men and women that this is what uninvited touching is. While I am happy with the implication that both men and women ought to be encouraged to take these incidents more seriously, I still worry that calling these minor incidents sexual assault may have the consequence of diminishing the seriousness of other, more obvious cases. So I don’t claim to have the solution. But I’m happy enough here to have highlighted the double injustice that these forms of uninvited touching involve –  first in the wrongness of the touching itself, and second in the effective silencing of those who suffer it.