Twitter Mining

Image representing Twitter as depicted in Crun...

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In February, 2014 Twitter made all its tweets available to researchers. As might be suspected, this massive data is a potential treasure trove to researchers. While one might picture researchers going through the tweets for the obvious content (such as what people eat and drink), this data can be mined in some potentially surprising ways. For example, the spread of infectious diseases can be tracked via an analysis of tweets. This sort of data mining is not new—some years ago I wrote an essay on the ethics of mining data and used Target’s analysis of data to determine when customers were pregnant (so as to send targeted ads). What is new about this is that all the tweets are now available to researchers, thus providing a vast heap of data (and probably a lot of crap).

As might be imagined, there are some ethical concerns about the use of this data. While some might suspect that this creates a brave new world for ethics, this is not the case. While the availability of all the tweets is new and the scale is certainly large, this scenario is old hat for ethics. First, tweets are public communications that are on par morally with yelling statements in public places, posting statements on physical bulletin boards, putting an announcement in the paper and so on. While the tweets are electronic, this is not a morally relevant distinction. As such, researchers delving into the tweets is morally the same as a researcher looking at a bulletin board for data or spending time in public places to see the number of people who go to a specific store.

Second, tweets can (often) be linked to a specific person and this raises the stock concern about identifying specific people in the research. For example, identifying Jane Doe as being likely to have an STD based on an analysis of her tweets. While twitter provides another context in which this can occur, identifying specific people in research without their consent seems to be well established as being wrong. For example, while a researcher has every right to count the number of people going to a strip club via public spaces, to publish a list of the specific individuals visiting the club in her research would be morally dubious—at best. As another example, a researcher has every right to count the number of runners observed in public spaces. However, to publish their names without their consent in her research would also be morally dubious at best. Engaging in speculation about why they run and linking that to specific people would be even worse (“based on the algorithm used to analysis the running patterns, Jane Doe is using her running to cover up her affair with John Roe”).

One counter is, of course, that anyone with access to the data and the right sorts of algorithms could find out this information for herself. This would simply be an extension of the oldest method of research: making inferences from sensory data. In this case the data would be massive and the inferences would be handled by computers—but the basic method is the same. Presumably people do not have a privacy right against inferences based on publically available data (a subject I have written about before). Speculation would presumably not violate privacy rights, but could enter into the realm of slander—which is distinct from a privacy matter.

However, such inferences would seem to fall under privacy rights in regards to the professional ethics governing researchers—that is, researchers should not identify specific people without their consent whether they are making inferences or not. To use an analogy, if I infer that Jane Doe and John Roe’s public running patterns indicate they are having an affair, I have not violated their right to privacy (assuming this also covers affairs). However, if I were engaged in running research and published this in a journal article without their permission, then I would presumably be acting in violation of research ethics.

The obvious counter is that as long as a researcher is not engaged in slander (that is intentionally saying untrue things that harm a person), then there would be little grounds for moral condemnation. After all, as long as the data was publically gathered and the link between the data and the specific person is also in the public realm, then nothing wrong has been done. To use an analogy, if someone is in a public park wearing a nametag and engages in specific behavior, then it seems morally acceptable to report that. To use the obvious analogy, this would be similar to the ethics governing journalism: public behavior by identified individuals is fair game. Inferences are also fair game—provided that they do not constitute slander.

In closing, while Twitter has given researchers a new pile of data the company has not created any new moral territory.

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Religion as helpful precaution
Colleagues may find this article of mine, co-authored with Nassim Taleb, of interest. Suitably-provocative, perhaps, for philosophers, who are often inclined to think that religion is for morons, and that we are outgrowing it. Our case is that religion is probably on balance helpful to all of us (even philosophers: it is an absurd rationalistic delusion, an utter fantasy, to suppose that everything ought to be thought through from the beginning on every occasion, as some philosophers seem to suppose is an ideal), and that it might well be essential for species-survival / for the avoidance of ruin.

(I address the standard criticism – that lots of religion has been bad – here: http:// , and in my book PHILOSOPHY FOR LIFE.)

GM Food: Three Essential Considerations: Framing, Evidence, Precaution

[This article was co-authored by Phil Hutchinson myself. It appeared earlier this summer in THE PHILOSOPHER'S MAGAZINE. For those of you who missed it in print, here it is belatedly online.
Note: in the forthcoming issue of the magazine, there are what might be described as 'follow-up' articles by myself and (in a looser sense) by Nassim Taleb. Articles on precaution and uncertainty. [Advt.]]

We’ve moved on from “Frankenfood” scare stories. Haven’t we? Indeed, might we talk of GM food having its “Nuclear Power moment”? Just as prominent environmentalists such as Monbiot and Lynas took a decision to move from principled opposition to nuclear power to, along with Lovelock, promote the technology on pragmatic grounds, leaving their former activist fellow travellers feeling somewhat bewildered, and in some cases betrayed, one might be forgiven for believing that the same is now happening with GM crops. We will not here say anything further on the nuclear issue, though one might ultimately generate a position on this from what we propose below. However, on GM crops, Mark Lynas has certainly been very vocal in championing the GMO cause over the past year, both in the promotion of proposed new trials and in the criticism of those who oppose these. The rationale can appear, on the face of it, to be similarly pragmatic: population growth and climate-change related reductions in harvest yields will lead to increasing food shortages and food price-rises. Higher-yielding crops and crops with enhanced nutritional value are one, obvious, way to respond to such problems, and if GM crops might deliver higher yields and enhanced nutritional value, then it would seem sensible to forego principled, or certainly ‘knee-jerk’, objection to them and explore their potential. Right?
Would that it were so straightforward!
There are a wealth of considerations which should feed into our judgment on the proposed/alleged pragmatism of adopting GM crops. It is these, here, that we wish to focus on, and in particular those on which philosophy can shed some light. So, we will not here dwell, for instance, on the corporate dominance of most GM-research: on the profit-motive impelling the likes of Monsanto to gamble with our commons inheritance. There are powerful political arguments against GM, in connections such as this; we will largely leave these aside, in the present piece. We will divide the considerations that we shall focus on here into three categories: Framing, Evidence and Precaution.

Here’s the problem:
Global population growth + human-influenced climate-change-related lowering of crop yields = food crisis.
Framed this way it seems obvious: To solve the conundrum, we need to change the equation, so as to elicit a different outcome. We need to restrict population growth or reverse the crop yield decline such that it will compensate for the population growth.
But do we need to accept the equation? We would argue not. Indeed, it is the propensity to simplify the problem in a manner akin to this equation that is a key part of the problem. The equation prejudices one’s view of the problem by framing it in a particular way, because, while the global population does continue to grow, that population’s eating habits are also changing, becoming more western and meat-based. This is significant driver of food scarcity: feeding a cow maize and eating the cow is a very inefficient use of land, maize and water. The more meat we eat the more planets we require to provide our food, and extra, suitable planets are hard to find… . Moreover, while human-influenced climate change will affect crop yields, we can take steps to slow down that change rather than simply thinking in terms of adapting to the change as if it were inevitable.
The way ‘our’ equation frames the issue, if invoked to justify a pragmatic argument in favour of GM food, implies a false dichotomy: it implies that there are no other ways to enhance crop yields, rationalise food markets and supply-chains, radically reduce food waste, and rationalise consumption habits. Put another way, the proposed GMO solution to our problem can seem obvious and natural, or the most pragmatic one, because of basic liberal and individualist assumptions about the undesirability of seeking to change people’s (individuals) eating habits (desires, such as the desire to eat more meat). People have a right to eat what they want. Don’t they?
We can, and should, challenge the frames. At the very least, we should be cognisant of the way in which the argument tends to be framed, so that we might then subject that framing to rational scrutiny: is it obvious that when there is increased food stress, we should be handing more and more crop-worthy land (and food crops) over to beef production, all because we respect the ‘rights’ of consumers to buy more steak (or we respect the ‘market’)? Should we hand over more land for the growing of biofuels, because we (incorrectly) believe that will help us meet carbon targets and achieve energy security without infringing on the ‘rights’ of drivers as we allegedly would if we were to cap fuel/carbon emissions or to allow fuel prices to continue to escalate?
One of Lynas’s refrains, when pushed in a certain direction on these issues, is to respond to his disputant that they are advocating veganism; this response, delivered with a tacit sneer or an explicit chuckle, is sometimes accompanied by him ‘wishing them luck’ with that project. Changing eating habits, or simply trying to reverse recent global trends in eating habits, is just not seen as worth considering. We want our cake and we want to eat it, even if that means it is made with GM wheat.
Our response is to move beyond the hegemony of liberalism as a political philosophy. We urge that, at this point in history, it is particularly vital to challenge the cultural dominance of the idea of the ‘individual-as-consumer’ (home economicus), and of the alleged sacrosanctness of their choices and of choice itself.
In short: We need new frames. Only their illicitly-presumed absence can make GM look like a no-brainer.

Our second category is evidence. We are all now becoming familiar with the mantra, in policy circles at least, that one’s proposals be evidence-based.
Quite right. But “what counts as evidence?” is an important question to be asked. And “what, in addition to the evidence, are also important factors in our deliberations?” is equally crucial.
So, you might see our section on Precaution, below, where we argue that precaution should always accompany evidence in the policy decision-making process. And we would also suggest that one beware of “evidence” being used as a buzzword or as Unspeak . Like “Freedom” and “Democracy”, “Evidence” is a “Hooray word”. Surely no one would/can be against evidence! But here’s the rub; if a word is so unremittingly good then people will use it to cover-up the bad, or to pass-off the not so good as good. German Democratic Republic anyone? (i.e. democracy that involves very few recognisably democratic institutions; where the _demos_, the people, have no role in policy). Cato Institute style Freedom anyone? (i.e. freedom that transpires to be the freedom of corporations to deny freedom to all kinds of non-corporate groups.).
But let us here consider the evidence in a recent widely-reported and high-profile case. A GM company in Hertfordshire, Rothamsted Research, made a press release in late January 2014. They were all over the British media, from an early morning slot on BBC Radio 4’s Today programme on January 24th, where they talked-up the health benefits to humans of Omega 3 enhanced crops, to reports in all the newspapers and on TV news bulletins. Mark Lynas joined the party, and promoted their press release via Twitter, while also working as a kind of tweet-tag-team with the Rothamsted publicity department.
There were two stories wrapped up in one: one was a story about Omega 3 camelina; the other was a kind of meta-story about this being an obviously good-news and game-changing story about GM; one that even the most dyed-in-the-(non-GM)-wool Monsanto-haters would see was good news. The Today programme pushed both angles. Rothamsted must have been pleased.
See how the second story kinda shows how the Rothamsted press release was just swallowed by the same media, as if it were an easy to swallow Omega 3 fish oil capsule? Should journalists not rather have subjected the press release to some scrutiny?
Well, what’s not to like? Everyone knows that Omega 3 is a wonder-oil, which prevents all kinds of health problems. Health gurus, magazine covers, newspaper articles, food packaging, even some medically trained celebrity doctors, have all been telling us for over a decade now that Omega 3 oil is important: it prevents cancer, heart disease, and both increases and decreases the aggression of prostate cancer (no, really). It increases intelligence, both in a person eating it and in a foetus through a mother ingesting it while pregnant, though we assume the claim is that it increases intelligence later in life, since foetus-intelligence is a young science. Moreover, Omega 3 has been claimed to prevent all kinds of behavioural conditions in children and adolescents, and make school boys and prison inmates less aggressive. You can even polish the screen of your widescreen LED TV with it and thereby increase your popularity with all the neighbourhood cats. Yet not everyone has a taste for, or can afford, to eat the oily fish in which it is most readily found. If we cannot grow fish on trees, then how about the next best thing: grow fish genes inside a plant. Eureka. Meow.
Well, what’s the evidence? We mean: surely we’re not here basing our enthusiasm on over a decade of food industry and supplement purveyors’ propaganda about Omega 3 rather than well founded data, are we..? Well yes, it does seem that we might be. One might, for example, read the chapter of Ben Goldacre’s book Bad Science, where he discusses claims made for Omega 3. One might even conduct one’s own survey of RCTs, and even some meta-analyses of RCTs, on the claimed and widely assumed health benefits of Omega 3 oil supplements. Use Pub Med, etc. What one will find is the following:
a. There is NO conclusive evidence for health-related benefits of Omega 3 fish oil, which demonstrate it as beneficial when consumed separately from the fish, i.e. as a supplement.
b. Indeed, the evidence for it being beneficial when consumed as part of the fish is barely conclusive. Study after study notes something akin to the following: it is difficult to discern whether the good health of those studied emerges from the consumption of oily fish or from the overall diet and lifestyles enjoyed by those people who tend to eat a diet containing large amounts of oily fish.
c. There is NO evidence that we need fish oil omega 3 (EPA & DHA) over and above that which our bodies already convert from vegetable-based ALA Omega 3, which can be gained from things like flax, hemp, chia and green leafy vegetables, if we have a healthy diet.
In short: The past decade of Omega 3 hype has been market-driven, not evidence-driven.
Repeatedly, one finds there are good evidence-based reasons which count against GM-hype. Such reasons need to be developed specifically, in each case.
GM’s defenders will respond that there is at least scant evidence of harm from GM (unlike nuclear). This takes us to our next and final category of consideration. Absence of evidence of harm, even when genuine, is not evidence of absence of harm:

Taking a gene from a fish and sticking it in a vegetable is reckless. It is to act in a way radically without natural precedent. Now, defenders of GM sometimes say that nevertheless there is an absence of evidence of harm from GM. But: Even if this is true, it is not good enough. The burden of proof is on them, the GM engineers, to provide evidence of absence of harm from GM. And that is what we don’t have, and what will be very difficult ever to get without taking an unconscionable risk. Because field trials expose the entire environment to the risk of contamination. They are not like controlled indoor laboratory trials.
There are powerful forces in our world today seeking to shift the burden of proof. These forces – which include the US and UK Governments — wish us to have to provide an ‘evidence-base’ against (e.g.) GM, an evidence-base of actual harm, before we act precautiously in respect of it. They wish, in effect, to abolish the Precautionary Principle and to replace it with a purely backward-looking methodology of ‘evidence-based’ interventions. Such an ‘evidence-based’ approach is valid when the stakes are not that high and when we can learn from tinkering and from study of the results. It is not valid when we may face ruin as a consequence. As is the case with GM (and also with geo-engineering, the next gamble that we will all soon be invited to embrace, on the extraordinary basis that there is as yet no evidence of harm from it!). One is cautious when one has reason to be so; when one has reason to believe there is a danger or a threat. The logic of precaution, we suggest, should be understood as follows: when what we do now has unpredictable though potentially catastrophic future consequences then we should exercise precaution. We are not exercising caution based on a perceived threat, but exercising precaution because we do not have good reason to believe there is an absence of threat, while also having reason to surmise that where a threat might materialise it would be significant.
Regarding GMO, we have not been provided with good reason to believe that there will not transpire to be a threat, even from field trials, much less a move to widespread farming, and that such a threat would be, should it transpire, be insignificant and reversible. These are then rational grounds for invoking precaution. While there is no directly-perceived threat to be cited in advance, we have no grounds for believing no threat will emerge, while having reasonable grounds for believing any such threat would be significant and probably irreversible. This is enough to rationally motivate invoking the precautionary principle.
We have a responsibility not to be blinded by science: to combat scientism. We have a responsibility to show the way beyond scientism, and to help science flourish in its true area of application. We have a responsibility to highlight the categorial distinction between science and technology: being pro-science, in its true sense, has no implications for whether one supports the social implementation of one or another particular form of technology or engineering.
We propose a more considered, rational approach, which resists the frenzy around ‘evidence-based’ approaches, when these are proposed separate from their frames and from rational precautionary considerations.
We have a responsibility to support responsible evidence-based methodology, where such methodology is appropriate: we have given an example of this above, vis a vis camelina. Another (not unrelated) genus of examples is the use of EBM to undercut the claim of various pharmaceuticals, as Ben Goldacre has helpfully done.
We have a responsibility to bring thought to bear on issues of framing, in the kind of way practiced by Lakoff, Poole, Crompton, and others. We have a responsibility to challenge conventional wisdom: e.g. the cultural ‘common-sense’ of liberal individualism in the West today. But not to carry such ‘scepticism’ into a deniallism about what science, in its correct area of application, teaches us: As Wittgenstein remarks in Culture and Value, the philosopher must avoid getting into the predicament of an incompetent (would-be) manager, trying to do others’ jobs for them.
Perhaps above all, we have a responsibility to speak truth to power concerning the would-be managerialist and profit-motivated replacement of long-term considerations of precaution with a covertly short-termist rhetoric of being ‘evidence-based’, a rhetoric that is ignorant of the philosophical issues around uncertainty and risk that are present and explored in the recent work of Nassim Taleb, among others (Cf. Read’s co-authored work with Taleb: e.g. & And that underly the attitude of the likes of James Hansen to the climate threat facing our world at present: Philosophers and intellectuals more generally carry a heavy responsibility to not be tricked by rhetorics or ideologies of ‘evidence’ and ‘research’ into waiting to set out crucial warnings until it is too late.

On both evidential grounds, and precautionary grounds, the case for Omega-3 GM camelina is disastrously weak. To generalise: evidence-based thinking can undercut the case for GM, as well as sometimes supporting it. Precautionary thinking, a vital complement to (and more fundamental than) evidence-based thinking, will generally count as a heavy consideration against GM. When one adds in the power of reframing and of reflection on frames, as found initially in the work of Wittgenstein, Kuhn, Lakoff and Johnson, etc, then one has a powerful cocktail indeed in one’s hands. Our recommendation is: to drink it. Or perhaps better: to throw it.

The Speed of Rage

English: A raging face.

(Photo credit: Wikipedia)

The rise of social media has created an entire new world for social researchers. One focus of the research has been on determining how quickly and broadly emotions spread online. The April 2014 issue of the Smithsonian featured and article on this subject by Matthew Shaer.

Not surprisingly, researchers at Beijing University found that the emotion of rage spread the fastest and farthest online. Researchers in the United States found that anger was a speed leader, but not the fastest in the study: awe was even faster than rage. But rage was quite fast. As might be expected, sadness was a slow spreader and had a limited expansion.

This research certainly makes sense—rage tends to be a strong motivator and sadness tends to be a de-motivator. The power of awe was an interesting finding, but some reflection does indicate that this would make sense—the emotion tends to move people to want to share (in the real world, think of people eagerly drawing the attention of strangers to things like beautiful sunsets, impressive feats or majestic animals).

In general, awe is a positive emotion and hence it seems to be a good thing that it travels far and wide on the internet. Rage is, however, something of a mixed bag.

When people share their rage via social media, they are sharing with an intent to express (“I am angry!”) and to infect others with this rage (“you should be angry, too!”). Rage, like many infectious agents, also has the effect of weakening the host’s “immune system.” In the case of anger, the immune system is reason and emotional control. As such, rage tends to suppress reason and lower emotional control. This serves to make people even more vulnerable to rage and quite susceptible to the classic fallacy of appeal to anger—this is the fallacy in which a person accepts her anger as proof that a claim is true. Roughly put, the person “reasons” like this: “this makes me angry, so it is true.” This infection also renders people susceptible to related emotions (and fallacies), such as fear (and appeal to force).

Because of these qualities of anger, it is easy for untrue claims to be accepted far and wide via the internet. This is, obviously enough, the negative side of anger.  Anger can also be positive—to use an analogy, it can be like a cleansing fire that sweeps away brambles and refuse.

For anger to be a positive factor, it would need to be a virtuous anger (to follow Aristotle). Put a bit simply, it would need to be the right degree of anger, felt for the right reasons and directed at the right target. This sort of anger can mobilize people to do good. For example, people might learn of a specific corruption rotting away their society and be moved to act against it. As another example, people might learn of an injustice and be mobilized to fight against it.

The challenge is, of course, to distinguish between warranted and unwarranted anger. This is a rather serious challenge—as noted above, people tend to feel that they are right because they are angry rather than inquiring as to whether their rage is justified or not.

So, when you see a post or Tweet that moves you anger, think before adding fuel to the fire of anger.


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Anyone Home?

English: man coming out of coma.

English: man coming out of coma. (Photo credit: Wikipedia)

As I tell my students, the metaphysical question of personal identity has important moral implications. One scenario I present is that of a human in what seems to be a persistent vegetative state. I say “human” rather than “person”, because the human body in question might no longer be a person. To use a common view, if a person is her soul and the soul has abandoned the shell, then the person is gone.

If the human is still a person, then it seems reasonable to believe that she has a different moral status than a mass of flesh that was once a person (or once served as the body of a person). This is not to say that a non-person human would have no moral status at all—I do not want to be interpreted as holding that view. Rather, my view is that personhood is a relevant factor in the morality of how an entity is treated.

To use a concrete example, consider a human in what seems to be a vegetative state. While the body is kept alive, people do not talk to the body and no attempt is made to entertain the body, such as playing music or audiobooks. If there is no person present or if there is a person present but she has no sensory access at all, then this treatment would seem to be acceptable—after all it would make no difference whether people talked to the body or not.

There is also the moral question of whether such a body should be kept alive—after all, if the person is gone, there would not seem to be a compelling reason to keep an empty shell alive. To use an extreme example, it would seem wrong to keep a headless body alive just because it can be kept alive. If the body is no longer a person (or no longer hosts a person), then this would be analogous to keeping the headless body alive.

But, if despite appearances, there is still a person present who is aware of what is going on around her, then the matter is significantly different. In this case, the person has been effectively isolated—which is certainly not good for a person.

In regards to keeping the body alive, if there is a person present, then the situation would be morally different. After all, the moral status of a person is different from that of a mass of merely living flesh. The moral challenge, then, is deciding what to do.

One option is, obviously enough, to treat all seemingly vegetative (as opposed to brain dead) bodies as if the person was still present. That is, the body would be accorded the moral status of a person and treated as such.

This is a morally safe option—it would presumably be better that some non-persons get treated as persons rather than risk persons being treated as non-persons. That said, it would still seem both useful and important to know.

One reason to know is purely practical: if people know that a person is present, then they would presumably be more inclined to take the effort to treat the person as a person. So, for example, if the family and medical staff know that Bill is still Bill and not just an empty shell, they would tend to be more diligent in treating Bill as a person.

Another reason to know is both practical and moral: should scenarios arise in which hard choices have to be made, knowing whether a person is present or not would be rather critical. That said, given that one might not know for sure that the body is not a person anymore it could be correct to keep treating the alleged shell as a person even when it seems likely that he is not. This brings up the obvious practical problem: how to tell when a person is present.

Most of the time we judge there is a person present based on appearance, using the assumption that a human is a person. Of course, there might be non-human people and there might be biological humans that are not people (headless bodies, for example). A somewhat more sophisticated approach is to use the Descartes’s test: things that use true language are people. Descartes, being a smart person, did not limit language to speaking or writing—he included making signs of the sort used to communicate with the deaf. In a practical sense, getting an intelligent response to an inquiry can be seen as a sign that a person is present.

In the case of a body in an apparent vegetative state applying this test is quite a challenge. After all, this state is marked by an inability to show awareness. In some cases, the apparent vegetative state is exactly what it appears to be. In other cases, a person might be in what is called “locked-in-syndrome.” The person is conscious, but can be mistaken for being minimally conscious or in a vegetative state. Since the person cannot, typically, respond by giving an external sign some other means is necessary.

One breakthrough in this area is due to Adrian M. Owen. Overs implying things considerably, he found that if a person is asked to visualize certain activities (playing tennis, for example), doing so will trigger different areas of the brain. This activity can be detected using the appropriate machines. So, a person can ask a question such as “did you go to college at Michigan State?” and request that the person visualize playing tennis for “yes” or visualize walking around her house for “no.” This method provides a way of determining that the person is still present with a reasonable degree of confidence. Naturally, a failure to respond would not prove that a person is not present—the person could still remain, yet be unable (or unwilling) to hear or respond.

One moral issue this method can held address is that of terminating life support. “Pulling the plug” on what might be a person without consent is, to say the least, morally problematic. If a person is still present and can be reached by Owen’s method, then thus would allow the person to agree to or request that she be taken off life support. Naturally, there would be practical questions about the accuracy of the method, but this is distinct from the more abstract ethical issue.

It must be noted that the consent of the person would not automatically make termination morally acceptable—after all, there are moral objections to letting a person die in this manner even when the person is fully and clearly conscious. Once it is established that the method adequately shows consent (or lack of consent), the broader moral issue of the right to die would need to be addressed.


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Defining Rape IV: Men as Victims of Women

Women on Top: How Real Life Has Changed Women'...

(Photo credit: Wikipedia)

In my previous essay, I ended by noting that while college men are the victims of sexual assault by college women, this matter is rarely mentioned. It certainly does not get the attention of the mainstream media. Perhaps because this would run afoul of the current media narrative regarding the rape epidemic on campus.

Of course, it might be claimed that men cannot, in general, be victims of women. One common view is that men are not at all picky about sex and a man would be fine with a woman taking advantage of him while he was drunk or unconscious. Or, somewhat less extreme is the view that while a man might not be fine with it, he would not be too put out by it. He might feel some embarrassment if the woman was unattractive or might be angry if she gave him a STD, but he (some might claim) would not be psychologically harmed in the way a woman would be harmed. The gist is that men are psychologically incapable of being raped by woman—that is, a man would always consent or, at the very least, would not be very bothered by the sex.

Even if this were true (which it is not), the fact that a victim of a crime is not as upset as other victims might be would not seem to make it less of a crime. To use an analogy, if Sally is a stoic and is not very upset when her car is stolen, this does not make it any less of a theft than if she was distraught over the loss. As such, even if men are not as bother by women, this would not entail that men are not or cannot be victims. In any case, as will be shown, men are generally not cool with being assaulted by women—despite the bravado and stereotypes.

Another approach is to argue that men and women are fundamentally different so that women cannot (in general) rape men. Some people think that a man cannot become erect if he does not wish to do so and hence it is impossible for a man to have heterosexual intercourse without his consent. However, this view is on par with claiming that men have an ability to “shut down” an erection when it is a case of “legitimate” rape. This is, unfortunately, no more true than the claim that a woman can shut down a pregnancy when she is the victim of a “legitimate rape.”

Yet another counter is to claim that while women could sexual victimize men, it does not happen that often—if at all. This would, if true, be wonderful. Sadly, it is not true.

While it is rarely discussed and never seems to grab headlines, college men are subject to sexual victimization by college women and are emotionally harmed by it.  While men are often presented as happy to have sex with anyone at any time, this is not true and men can be as hurt by sexual victimization as women. So, to claim that a man wants to be raped by a woman is just as awful as claiming that a woman wants to be raped by a man. While it might be true of some, it is certainly not true of most.

In a mostly ignored study, 51.2% of college males reported being sexually victimized (ranging from unwanted sexual contact, to sexual coercion to rape). Naturally, given that sexual violence is often unreported and men are extremely likely not to admit to being assaulted by a woman, the number of cases could be quite large. But, of course, it is not possible to make an estimate since this would require claiming to know what is unknown. This does not, of course, stop some people from making estimates about unreported assaults on women.

Interestingly, being “made to penetrate” is not legally classified as a form of rape. Thus, by this definition, a woman forcing a man to have sex with her is not rape. But if a man commits the same act with an unwilling woman, it is rape. This seems to allow sexual victimization of men by women to be dismissed as less serious than the victimization of women by men, all by definition. To use an analogy, this would be like saying that when a man steals from a woman, it is theft. When a woman steals from a man, it is involuntary lending.

While men are generally not subject to being forcibly raped by women, women do pursue other tactics that mirror those of male rapists including selecting victims who are impaired or unconscious. If having sex with a woman by these means is rape, then having sex with a man by these means should also be rape.

It might also be claimed that women are not inclined to sexual violence. While the stereotypes cast men as victimizer and women as victims, the terrible truth is that sexual violence is equal opportunity. As the National Geographic reported, a study determined that males and females commit roughly the same amount of sexual violence by the time they reach the age of 18. This is certainly consistent with the claim that college men are subject to sexual assault by women. As such, evil does not discriminate based on sex.

At this point I might be accused of having nefarious motivations or of playing the old “victim switch” tactic to get men off the hook. However, my goals are merely to insist on a consistent standard when it comes to sexual assault and to call attention to an important truth: sexual victimization is an equal opportunity crime. I am not asserting that we should dismiss or ignore the assaults on women. Rather, I am saying that we should not be blinded to the fact that men are victims as well. If the campus rape epidemic is going to be stopped, we cannot be concerned with just the victims who are women and just the victimizers who are men.

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Defining Rape III: Intoxication

A half-drunk glass of beer

A half-drunk glass of beer (Photo credit: Wikipedia)

Not surprisingly, most sexual assaults on women in college occur when the women are intoxicated. One reason for this is obvious: an intoxicated person is far more vulnerable to sexual predators than a sober person. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on the matter from the standpoint of morality.

From an oversimplified moral (and also legal) standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus here will be on the impact of intoxication on a person’s ability to given consent. To be a bit abstract, the philosophical concern here is about what might be called the person’s consent agency (or agency of consent). Roughly put, this is the capacity of the person to give proper consent. What counts as proper consent will no doubt vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree considerably about this matter. However, it should suffice for the purposes of this brief essay to go with an intuitive view of proper consent which involves the person having the capacity to understand the situation and the ability to consciously agree. Setting aside the complexities of the matter, I will now turn to the discussion of intoxication.

Intoxication is, obviously enough, a proportional impediment to agency of consent. Or, in plainer terms, the drunker a person gets, the less capable she becomes of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree (or, as people say, being drunk makes you stupid). When the person has no consent agency at all, having sex with that person would clearly be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the rather important matter of sorting out at what point consent agency is lost. As with all such things, there will be a significant gray area between the paradigm cases and this area will be the most problematic. I will get the easy paradigm cases out of the way first.

One paradigm case is that in which the perpetrator intentionally intoxicates his victim using what is known popularly as a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.

Another paradigm case is that in which the perpetrator is an opportunist: he does not drug his intended victim with a “date rape” drug, but finds someone who has rendered herself unconscious or incapacitated through intoxication. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out in a drunken stupor and someone takes my wallet, she has committed theft. Naturally, I could be justly chastised for being so careless—but this would not change the crime.

A third paradigm case is that in which a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. So much for the clear cases, now is the time for the grey territory between being unimpaired and being unconscious due to intoxication. Somewhere in this large territory lies the point at which a person loses her consent agency and is incapable of actual consent.

One obvious problem with finding the boundary at which consent agency ends is that this point might occur well before a person has lost the capacity to engage in behavior that would indicate clear consent by an unimpaired person. For example, an intoxicated woman might say “yes” to a request for sex or even actively initiate the act and then actively and enthusiastically participate. Despite the appearance of consent, the woman might actually be incapable of consent—that is, she can engage in consent behavior but has actually lost the capacity to consent.

If this can occur, it would create a serious moral and practical problem: how can a person tell when another person is capable of consent behavior without being able to give actual consent? This would obviously be important for the person interested in sex as well as those involved in any legal proceedings that might follow.

It might be countered that as long as a person can engage in consent behavior, the person still has agency of consent. That is, the apparent consent is actual consent. This does have considerable appeal in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a proper “yes” or merely “yes” behavior without true consent. It also would provide a clear basis by which potential witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. This view could be seen as a presumption that behavior indicates agency.

This view does have considerable appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted into the drive through). When I wake up the next morning and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

It is worth noting that a decent person would certainly take into account apparent intoxication and out of a sense of ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would hardly be theft. Likewise, if a woman is drunk but making it clear she wants to have sex with a man, the decent thing for the man to do is refuse, escort her safely home and, if necessary, guard her from the less virtuous when she passes out. However, if he accedes to her request, it would seem odd to claim that she had been raped.

One might also raise the point that it is better to err on the side of caution and assume that a person who is impaired to almost any degree has lost the capacity for consent, regardless of the person’s behavior. This, however, seems to be too low of a standard and there is the practical problem of recognizing such a low level of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

The last matter I will consider is a scenario in which both parties are intoxicated. In some college sexual assault hearings the man has countered the charge by asserting since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is certainly sound. To be specific, if sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they are raping each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that legitimately makes the person accountable for his (or her) actions. As with the agency of consent, this can be impaired in varying degrees or completely eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability.

Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting  another person or not. Thus, if two people are both too intoxicated to consent, they are also both too intoxicated to be culpable.

The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.

If this is the case, then when a man and a woman have sex while both are adequately intoxicated, they are raping each other. However, there seem to be few (any?) cases of women charged with raping men—or both parties being charged with rape. Even a cursory search of the web will reveal that men are (almost) uniformly presented as the aggressors while women are the victims. However, if drunken sex constitutes rape, then it would seem that college men are also being raped—by definition. Yet there is little or no concern or outcry regarding this. I will address this matter in my final essay on this subject.

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Defining Rape II: Consent

George Will

George Will (Photo credit: Keith Allison)

In my previous essay, I presented some groundwork and stage setting for the discussion to follow. In this essay I will take a look at the matter of consent.

Intuitively, what makes some activities wrong (and often criminal) is the lack of consent on the part of the victim. Theft, for example, is taking property without the rightful owner’s consent. Kidnapping, as another example, is taking or transporting a person without consent. These misdeeds are similar to rape in regards to the lack of consent. In the case of rape, the activity is sexual in nature (to be deliberately vague) and occurs without the consent of the victim. While these simple definitions have appeal, the matter of sorting out what counts as consent and what constitutes acting without consent is rather more complex. To focus the discussion I will use a recent and controversial example.

Conservative intellectual George Will triggered a bit of a firestorm among liberal columnists and bloggers with his June 6 column about the alleged epidemic of campus rape. The claim that triggered the most outrage was his assertion that “when they make victimhood a coveted status that confers privileges, victims proliferate.”

Some of those attacking Will interpreted him as asserting that women want to be actual victims—that is, that women want to be raped. While some awful people do believe just that, this reading might not be Will’s actual position. Another interpretation, which seems supported by the rest of his column, is that some women will embrace a very broad definition of “rape” and interpret their experiences to match that definition. The motivation, at least as it seems to Will, is to gain a “coveted status” that “confers privileges.” My concern here is not with whether or not Will is correct in this matter. Rather, I want to examine what he takes as an example of how one becomes a member of this “privileged” class of rape victims.

Will uses an example taken from a report about Swarthmore College. In 2013, a woman was in her room with a man “with whom she’d been hooking up for three months”:

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

As Will notes, six weeks later the woman reported that she had been raped. Will seems to hold that the woman was not actually raped and that she decided to join the “privileged” class of victims by redefining her experience as rape. Others might claim that she had been “brainwashed” by feminist ideology or political correctness to regard her experience as rape. Setting aside the matter of motivation, there is an important question of whether the incident was or was not rape. Those embracing what some would regard as the ideology of leftist feminism would presumably regard it as rape. As Will shows, those embracing a specific form of conservative ideology presumably consider it to not be rape. Obviously, the adherents of the ideologies will regard their view as self-evident and the view of the other as not only in error but driven by vile and wicked motivations. Since I am not a prisoner of either ideology, I can examine the matter more objectively, looking for merits and flaws in the various accounts.

On the face of it, it is easy enough to contend that the incident is a case of rape. While the man did not threaten the woman or use force to have sex with her, he did engage in a sexual act after she had basically said that she did not want to have sex with him. Sex without consent is rape and thus she was raped.

To use an analogy, suppose for a few months I had allowed a friend to take money from my wallet, but then we decided (or so I think) that this money taking will no longer be part of our relationship. She reaches for my wallet and I basically say “No, I don’t want to give you money.” She stops, but then returns to my wallet and takes my money. She has, obviously enough, committed an act of theft: she has taken my property without my consent.

While this view has considerable merit, it is also worth considering an alternative. One obvious complication of the matter is that consent is a matter of communication and communication can be problematic. This creates the practical (and moral) problem of sorting out when consent has been given, when it has not been given, and when a person should know the difference.

In the specific case under discussion, the two parties had been having consensual sex (“hooking up”) for three months. On the face of it, once a relationship is established then it is not unreasonable to accept an assumption of consent. To use an analogy, I keep beer and snacks on hand for my Sunday Pathfinder game. My longstanding friends do not need to explicitly ask permission to get the beer or snacks, since there is a reasonable assumption that they have standing permission to do so. I would, in fact, have an obligation to tell them if certain beer or snacks were off limit—which would then obligate them to not take the specified beer or snacks.

In the case at hand, let it be assumed that the woman changed the relationship from “hooking up” to friends without benefits. This would legitimately remove the assumption of consent (unless otherwise informed). As such, the man could no longer assume that she was consenting unless he was told otherwise.

The woman also notes that she “basically” told him she didn’t want to have sex with him—which would clearly show a lack of consent. The man should have left it at that and not tried again.

However, a devil’s advocate might make certain claims. The first is that the brains of young people are different from adult brains, especially in areas of judgment and impulse control. The second is that the desire for sex is extremely strong and even the prospect of sex impedes rational judgment. The third is that people in general and young people in particular are bad at communication. The fourth is that communication is not merely a matter words—that consent or lack thereof can also be conveyed by actions. Such a devil’s advocate might allege, in his devilish way, that the young man, driven by basic biological desires and impeded judgment, decided to make another attempt at sex and wrongly interpreted, perhaps due to his immature brain and lack of communication skills, her lack of action as consent. That is, he honestly believed that he had consent and had not raped her. She might have also shared this belief for six weeks.

The obvious reply is that none of the devil’s advocate’s claims matter: what matters is that the woman said that she did not want to have sex and then the man had sex “with” her. Thus, it was sex without consent and hence the man is guilty of rape. While this view does have great appeal, it might be worth considering the following analogy.

Suppose I have a nice truck and that my friend Sally really likes driving around in nice trucks. She also prefers to not drive alone. After we have been friends a while, I agree to let her drive my truck and also agree to go with her on her drives. This goes on for three months and I find that I have gotten tired of this aspect of the relationship and tell her so. As far as I can tell, she agrees.

Then I invite her to come over and sit in my truck. After a while, she reaches for the keys in my pocket and I say “no, I am not letting you drive and I am not riding with you.” Rebuffed, she pulls her hand back. But, a few minutes later she is digging around in my pocket for the key. I do nothing. She takes the key and puts it in the ignition. I say and do nothing. She starts the truck and takes me along for the ride.  I am tired, so I just sit back and let her drive. When she gets back, I take the key out of the ignition. Six weeks later I call the police and accuse her of kidnapping me and stealing my truck.

This situation does seem parallel to the original situation. After all, theft is taking property without consent and kidnaping is transporting a person without consent. If the woman did not consent in the original situation, then I did not consent in the analogical situation. If the man was a rapist, then Sally was a thief and a kidnapper. However, I suspect that people would react to my claim that Sally kidnapped me and stole my truck by saying that I should have at the very least said something when she reached for the keys a second time—by letting her simply take them and drive away with me without even another word would seem to show that I consented to the trip. After all, her reaching for the key and so on could be seen as requests for consent—I could have easily replied by saying “no.” Of course, it could be countered that this view is wrong: Sally is now a kidnapper and truck thief because of my original statement which withheld consent.  After all, it might be argued, saying “no” once suffices—and until an explicit, verbal “yes” is given the original “no” is in place.

Naturally, some might want to reject the truck analogy while holding that the original case was one of rape. One obvious avenue of reply is to argue that sexual assault is a special matter and thus it is not analogous to the truck scenario. As such, the man is a rapist but Sally is not a kidnapper and thief.  I might even be accused of trivializing rape by presenting such an analogy. In regards to the first reply, the challenge is to spell out what breaks the analogy—what is the difference that renders the comparison untenable? In regards to the second, it is a mere ad homimen.

The example considered in this essay did not explicitly involve drinking—however, many sexual assaults on campus do. In the next essay the moral impact of intoxication will be considered.


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Defining Rape I: Definitions

A picture of a dictionary viewed with a lens o...

A picture of a dictionary viewed with a lens on top of it, at the word “Internet” (Photo credit: Wikipedia)

One of the basic lessons of philosophy dating back to at least Socrates is that terms need to be properly defined. Oversimplifying things a bit, a good definition needs to avoid being too narrow and also avoid being too broad. A definition that is too narrow leaves out things that the term should include. One that is too broad allows in too much. A handy analogy for this is the firewall that your computer should have: if it doing its job properly, it lets in what should be allowed into your computer while keeping attacks out. An example of a definition that is too narrow would be to define “art” as “any product of the visual arts, such as painting and sculpture.” This is too narrow because it leaves out what is manifestly art, such as movies and literature. As an example of a definition that is too broad, defining “art” as “that which creates an emotional effect” would be defective since it would consider such things as being punch in the face or winning the lottery as art. A perfect definition would thus be like perfect security: all that belongs is allowed in and all that does not is excluded.

While people have a general understanding of the meaning of “rape”, the usual view covers what my colleague Jean Kazez calls “classic” rape—an attack that involves the clear use of force, threat or coercion. As she notes, another sort of rape is what is called “date” rape—a form of assault that, on college campuses, often involves intoxication rather than overt violence.

In many cases the victims of sexual assault do not classify the assault as rape. According to Cathy Young, “three quarters of the female students who were classified as victims of sexual assault by incapacitation did not believe they had been raped; even when only incidents involving penetration were counted, nearly two-thirds did not call it rape. Two-thirds did not report the incident to the authorities because they didn’t think it was serious enough.”

In some cases, a victim does change her mind (sometimes after quite some time) and re-classify the incident as rape. For example, a woman who eventually reported being raped twice by a friend explained her delay on the grounds that it took her a while to “to identify what happened as an assault.”

The fact that a victim changed her mind does not, obviously, invalidate her claim that she was raped. However, there is the legitimate concern about what is and is not rape—that is, what is a good definition of an extremely vile thing. After all, when people claim there is an epidemic of campus rapes, they point to statistics claiming that 1 in 5 women will be sexually assaulted in college. This statistic is horrifying, but it is still reasonable to consider what it actually means. Jean Kazez has looked at the numbers in some detail here.

One obvious problem with inquiring into the statistics and examining the definition of “rape” is that the definition has become an ideological matter for some. For some on the left, “rape” is very broadly construed and to raise even rational concerns about the broadness of the definition is to invite accusations of ignorant insensitivity (at best) and charges of misogyny. For some on the right, “rape” is very narrowly defined (including the infamous notion of “legitimate” rape) and to consider expanding the definition is to invite accusations of being politically correct or, in the case of women, being a radical feminist or feminazi.

As the ideological territory is staked out and fortified, the potential for rational discussion is proportionally decreased. In fact, to even suggest that there is a matter to be rationally discussed (with the potential for dispute and disagreement) might be greeted with hostility by some. After all, when a view becomes part of a person’s ideological identity, the person tends to believe that there is nothing left to discuss and any attempt at criticism is both automatically in error and a personal attack.

However, the very fact that there are such distinct ideological fortresses indicates a clear need for rational discussion of this matter and I will endeavor to do so in the following essays.


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Colleges, Rape & Justice


Justice (Photo credit: donsutherland1)

A thoughtful and well-reasoned article on the college rape crisis by Michelle Goldberg was recently published by the Nation. Reading through the article caused me to reflect on the various issues, most especially the matter of the role of colleges in handling sexual assault and rape cases.

When a student is alleged to have assaulted or raped another student, the purported victim can report the matter to the police or bring the matter to the attention of the college (or both). For legal (and moral) reasons, colleges should not ignore such reports and so a college has to take some action.

While colleges vary, it is common practice for colleges to handle allegations of sexual assault and rape internally in a manner rather similar to academic misconduct hearings: a hearing is held with a panel composed of faculty members and administrators. Since the panel is not a court of law, it (presumably) does not have the authority to impose criminal or civil penalties as an actual court could. Rather, the panel typically decides whether or not the accused student should be subject to disciplinary action, with the highest penalty usually being expulsion. As might be imagined, there are some obvious problems with this approach.

The first is a practical problem: while many schools do have their own police forces, faculty and administrators are generally not trained to properly investigate and judge such matters. To use myself as an example, while I can teach classes, serve on committees and so on, the skills needed to conduct a detailed and proper forensic investigation of an alleged assault/rape is not in my professional toolkit. I am a philosophy professor, not a detective or CSI professional. I would, if I was assigned to such a panel, do my best—just as a detective somehow assigned to teach my class would presumably do her best.

There seem to be two main solutions to this problem. One, which seems the most sensible, would be for colleges to cede authority over these crimes to the actual legal system. That is, the role of the college would be to assist the purported victim in reporting the alleged crime to the police. Naturally, the college can also have an important role in providing support to the purported victim. There is, however, the concern that such crimes are not always properly addressed by the authorities.

The other would be for the college to ensure that those handling the incidents would be properly trained professionals. This could be done by hiring such professionals or by training existing faculty and administrators in how to handle such cases. This would run into the practical concern regarding cost (schools would, in effect, have to support their own “CSI” staff and detectives).

The second is also a practical problem with a moral component. A college has a vested interest in protecting its reputation and protecting itself legally and financially. In a practical sense, this leads to a conflict of interest that can influence the rulings of a panel. In a moral sense, this can lead to justice not being done in regards to finding the truth and ensuring that wrongdoers are punished and the innocents are not.

As before, there seem to be two solutions to the problem. One is to remove the handling of such cases from colleges. The other is to take steps to ensure that such internal panels act for the sake of justice rather than trying to protect the reputation of the college. I would say that the former option is the better choice.

The third is a moral problem with two aspects. One aspect is that purported victims sometimes report that a college’s handling of the situation is yet another violation—a traumatic and harmful experience rather than a professionally conducted act of justice. Obviously enough, subjecting someone to such an awful experience is morally incorrect. The second aspect is that alleged perpetrators sometimes report that the college’s handling of the situation is a kangaroo court devoid of due process. If such charges are true, they would certainly be cases of wrongdoing.

Once again, there would seem to be two solutions. One is to have such cases handled by the actual legal system. There is, however, the problem that it is not uncommon for purported victims to report poor handling of such cases—which is yet another matter of moral concern and a very serious problem. Some have even argued that colleges should continue to handle such cases because the actual legal system has failed the purported victims so badly. That is, colleges might be bad at this, but they are sometimes better than the legal system. This certainly points to a clear need to address the legal system—there is little sense in handing off the handling of such cases to a system that is no better.

The second is to rework the college system to try to ensure that the purported victims are treated with proper respect while also ensuring that the alleged perpetrators are given a fair hearing in accord with due process. This, needless to say, would prove challenging—but it is a challenge that must be met if colleges are to continue in this role. If the legal system is doing a poor job, then it would be even more important for colleges to revamp their systems.

The third problem is also a moral problem with legal aspects as well. As many critics of the current system have noted, there is the moral and legal concern with the basis for the college’s authority to handle such cases. As the usual example goes, colleges do not handle cases in which a student murders another student—that is a matter for the police. By analogy, the same should apply to sexual assault and rape—those are actual crimes. While a college does have academic authority over students as well as a degree of disciplinary authority, a college would certainly seem to lack the legal and moral sovereignty needed to claim authority over serious crimes (even if it had the resource and competence to run its own legal system). As such, it would seem that a college would overreach its authority in attempting to handle criminal cases such as sexual assault and rape. That said, there can still be a legitimate role for colleges to play in such matters.

While a college certainly should not have the authority to impose criminal (or even civil) punishments on students (that is, a college should not be able to maintain jails or conduct executions), a college does have some legitimate authority over students. To be specific, a college has a (hopefully) clearly defined sphere of authority based on the agreement between the student and the institution, as spelled out in the rules and policies of the college. The college does also have the legitimate authority to impose certain penalties within a fairly limited sphere. The outer limit of these penalties is, of course, expulsion from the university.

Such authority is intended to allow colleges to have some degree of control over student behavior—after all, without the capacity to punish, authority does not amount to much. There is also presumably the purpose of maintaining a safe and non-threatening learning environment. This is what justifies punishing students who disrupt this environment. In some cases, maintaining this environment can require expelling students.

Because of this legitimate function, a college can justly claim the right to hold a hearing for a student accused of sexual assault or rape. However, this should not be in place of a criminal trial. Rather, it should be in addition to the criminal trial. The purpose of the college hearing would be to determine whether the alleged perpetrator should be, in addition to whatever punishment imposed by the legal system, subject to discipline by the college.

While it might be tempting to insist that an alleged perpetrator who is found innocent by a court of law should also be exempt from college discipline, it must be remembered that the requirements of a criminal court are supposed to be very rigorous, with an assumption of innocence and a standard of proof set at beyond a reasonable doubt.

It can be argued that the standard of proof for a college disciplinary hearing should be lower than that of a criminal court (as civil courts have a lower standard of proof). After all, the standard should be higher when a person might spend years in jail as opposed to being disciplined by a college. For example, an incident might be such that it seems reasonable to believe that something wrong occurred, yet the evidence is simply not enough to establish proof beyond a reasonable doubt. In such a case, an alleged perpetrator might avoid jail yet perhaps be justly expelled from college.

If this view is accepted, then there are the practical and moral problems of determining the standards of evidence and the appropriate punishments. At this time, many colleges accept a very weak standard—that of “more likely than not.” That is, if the panel members (who are, as noted above, usually not trained in such matters) believe that it is more likely that the alleged perpetrator committed the misdeed than did not, then the person is guilty. As might be imagined, some critics of this standard regard it as far too weak and in stark contrast with the usual principle that it is better for the guilty to go unpunished than for the innocent to be unjustly punished.

In regards to the punishments, there is also considerable controversy. It could be argued that even the worst punishment that a college can offer (most likely expulsion) would still not be enough. While this might be true, it would not be a good reason to grant colleges more power to punish—after all, if the punishments were sufficiently severe, then the standards would need to be equally high. It can also be contended that some punishments, such as expulsion, would be too harsh given the weak standard.

It must be noted that sorting out the standard and the punishments is distinct from the issue of whether or not a college has legitimate authority to discipline students accused of sexual assault or rape. I certainly hold that a college has the authority to impose disciplinary action even on a student found not guilty by a criminal court—much as a civil court can impose a penalty on someone found not guilty by a criminal court. However, I have not given sufficient thought to the standard to be used and the punishments that would be just. It might be the case that the punishment should be linked to the standard—that is, the weaker the standard, the weaker the punishment.

It can also be argued that there is behavior that is not covered by the law but can be justly covered by a college’s policies. For example, cheating on tests is usually not a criminal offense, but it does provide grounds for discipline in a college setting. Likewise, some sexual or sex-related behavior might not be considered criminal, yet still be legitimately regarded as problematic enough to warrant discipline from a college. That is, the behavior is perhaps not technically illegal, but not tolerable behavior for a student. To use an analogy, some colleges have dress-codes that forbid attire that would not violate the usual laws relating to public indecency.

To close, my considered position is that colleges should obviously not be handling criminal cases—these should be turned over to the police and the actual legal system. However, colleges can legitimately hold hearings on allegations of sexual assault or rape and subject students to disciplinary action up to and including expulsion. There are, however, important practical and moral considerations that must be addressed and these include:

  • Ensuring the competence and impartiality of the college panel members conducting the investigation and hearing.
  • Ensuring that the standard of proof adopted (such as “more likely than not”) is just.
  • Ensuring that the punishments are just.
  • Ensuring that the applications of the standards and punishments are just.
  • Ensuring that both the alleged perpetrator and purported victim are treated with respect and get due process.

If these considerations can be properly addressed, then such a system can be legitimately regarded as just—at least within the specific context.


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