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A Duty to Rape?

with 23 comments

Robin Hanson gamely bites the bullet I offer up in my Rape Doctor Hypothetical, a thought experiment I devised to test intuitions about risks of inflicting harm and benefit on others, in cases where a proxy for consent must be used because actual consent is impossible.

Consent is nice, when you can get it. When consent is impossible, as it often is – when providing medical care for unconscious patients, for example, or when parents make decisions for their children (at least preverbal children), or when we bring a new being into life – we must decide whether to use a proxy for consent. These might include:

  • Ex-post ratification (examined in my piece The Moral Effect of “Being Glad It Happened”)
  • Predictions based on the ex-post ratifications of similarly-situated others (as I think Robin Hanson would have us use in the procreation case)
  • Predictions based on a mental model of the nonconsenting being, including perhaps its likely utility function and the costs and benefits of the action.

All of these, of course, involve probabilities; they are unlikely to be perfect, and are in fact virtually guaranteed to result in some margin of error. How good should we require the predictions to be before using them? How much risk is too much for the nonconsenting beings we are acting on behalf of?

Many accepted proxies for consent are used to avoid harm (e.g., treating an unconscious patient to save his life – since most people wish to remain alive). But what about using proxies for consent to provide a pure benefit – with some risk of harm?

Please read my whole hypothetical for details, but in short, I posit a situation in which a doctor has identified a class of patients with Forced Sexual Contact Arousal Syndrome, who are only capable of sexual arousal through rape and will be benefited, not harmed, by being raped:

Based on his research, Dr. A has statistical grounds to believe that, of FSAD patients who meet Criteria A, B, C, and D, 99.9% will experience sexual enjoyment exclusively from forced sexual contact. Beyond that, Dr. A notices that his FSCAS patients who have been raped are much more socially and emotionally well-adjusted than those who have not. It is statistically reasonable for him to believe that, out of 1000 patients with FSCAS who have not been raped, 999 will experience a great deal of sexual enjoyment and a much better quality of life if raped; one will experience the usual extreme distress that rape would cause a normal woman.

So should Dr. A rape his patients? Robin Hanson says: “I’ll bite the bullet and say that the rape has expected good consequences in this case.” I take this to mean that the special rape under these circumstances is at least permissible, and perhaps that Dr. A even has a duty to rape his FSCAS patients.

Intuitions are the stuff of ethics. Here, Robin Hanson is taking (I think) a position I describe in my article as an extreme form of consequentialism – the idea that the suffering of a few is offset by the pleasure of others. It is the move from humane Pareto efficiency to ugly, realist Kaldor-Hicks efficiency – that the suffering of a few is a fair price for the benefit of the many, even if that suffering is not consented to.

Hanson and I disagree as to whether a 99.9% chance of pleasure and life benefit is worth a 0.1% chance of the ordinary harm of rape. A more general phrasing of the question is this:

The Dilemma of Impossible Consent: In cases where consent is impossible and a proxy for consent must be used, how risk-averse should we be on behalf of those our decisions will affect?

My answer to this, supported by my own intuition and what I see as commonly-held intuition across a variety of situations, is: extremely risk-averse. In addition to the thought experiment above, I examine this notion in my post on dosing strangers with ecstasy. Seana Shiffrin examines this position in her paper “Wrongful Life, Procreative Responsibility, and the Significance of Harm” (Legal Theory 5:117-148, 1999), which I summarize here. It is a notion that is usually uncontroversial – except when it is brought to someone’s attention that antinatalism is among its ethical conclusions.

How risk-averse should we be when potentially dealing out unconsented harm to others? I think the position Robin Hanson is articulating is: not that risk-averse. How risk-averse, then? As I mention in the comments, how far would we have to skew the probability in the Rape Doctor Hypothetical to make the rape impermissible (or, if there is a duty to rape under my facts, to make it permissible to refuse)?

There is a related question which I think is separate from the first, and that is:

The Dilemma of Uncompensated Suffering: To what extent may a few be made to suffer greatly, without their consent, so that many people will be benefited?

This is a separate question from the first, although both are appropriate perspectives to consider in the case of creating or refusing to create a person (and raping or refusing to rape a likely rape-beneficiary). The first question inquires how we should treat risk in a decision affecting a non-consenting other; the second inquires how we should balance and compare interpersonal utility functions.

I am interested in (but have not encountered) a strong defense of the position that some may (or must) be sacrificed for the benefit of many. John Leslie carefully considers the issues in his book The End of the World: the Science and Ethics of Human Extinction (he’s anti-extinction, by the way), but acknowledges that he fails to provide anything like a proof of the position. (Note that this was written before Benatar’s Better Never to have Been was published, and Leslie does not consider Benatar’s arguments.)

Again, ethics must be based on intuitions. The most interesting ethics happens when intuitions conflict. My intuition is that it is never permissible to seriously harm one in order to provide a pure benefit to many; Robin Hanson’s intuition (and that of many others) is that this is fine, under some circumstances. My intuition is that we must be very risk-averse on behalf of others if we may harm them seriously without their consent; Robin Hanson’s intuition (and that of many others) is that we can be utility-maximizing without any special regard for risk-aversion. In other words, there are real ethical disagreements regarding the basic intuitions underlying the ethics of reproduction.

In addition to my two dilemmas, I pose a third:

Dilemma of Ethical Uncertainty: Given ethical disagreement between epistemic peers, what is the proper course of action in the real world regarding reproduction?

See also Chip Smith’s One Man’s Exquisite Treasure.

Correction: I incorrectly refer to risk aversion (preference for certainty) throughout this piece when I mean loss aversion (desire to avoid harm is greater than desire to realize gain of the same magnitude). I leave the text as is since comments were made before I noticed my error. In other news, I have a hard time telling left from right and I tend to pronounce “scourge” phonetically.

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Written by Sister Y

September 13, 2010 at 5:13 pm

The Rape Doctor Hypothetical

with 28 comments

Dr. A is a research psychologist who also has a private clinical practice. He specializes in treating Female Sexual Arousal Disorder (DSM-IV 302.72) – similar to what used to be called frigidity. Female Sexual Arousal Disorder consists of a persistent or recurrent inability to attain, or to maintain until completion of the sexual activity, an adequate lubrication-swelling response of sexual excitement. The inability must cause marked distress or interpersonal difficulty, and is not better accounted for by another disorder (e.g. depression), a general medical condition, or substances, including medication. From the DSM-IV:

The individual with Female Sexual Arousal Disorder may have little or no subjective sense of sexual arousal. The disorder may result in painful intercourse, sexual avoidance, and the disturbance of marital or sexual relationships.

Dr. A has identified a syndrome (a cluster of symptoms) common to a subgroup of his FSAD patients with a particularly severe version of FSAD – Criteria A, B, C, and D. Members of this subgroup, he believes, are unable to achieve sexual arousal except in cases of forced sexual contact. A highly statistically significant number of patients who meet Criteria A, B, C, and D who have been raped report the rape as their only enjoyable sexual experience, compared to rape victims who do not meet the criteria. Dr. A labels his syndrome Forced Sexual Contact Arousal Syndrome (FSCAS). Based on his research, Dr. A has statistical grounds to believe that, of FSAD patients who meet Criteria A, B, C, and D, 99.9% will experience sexual enjoyment exclusively from forced sexual contact. Beyond that, Dr. A notices that his FSCAS patients who have been raped are much more socially and emotionally well-adjusted than those who have not. It is statistically reasonable for him to believe that, out of 1000 patients with FSCAS who have not been raped, 999 will experience a great deal of sexual enjoyment and a much better quality of life if raped; one will experience the usual extreme distress that rape would cause a normal woman.

You can probably guess where I’m going with this. Should Dr. A rape his FSCAS patients?

I think it’s hard to answer anything but CHRIST, NO! to this one. The harm of rape is so intrusive and severe that any possible benefits to its victims simply do not count against the harm that may be sustained. It is not conscionable that one person should be raped to provide a pure benefit to even 999 others. (Note, however, that it may be moral to allow the rape of one person in order to prevent extreme harm to an enormous number of others.) Both those who identify as consequentialists and those who subscribe to a more deontological perspective would likely share this conclusion (though some more extreme consequentialists would not).

I have highlighted the common intuition that, in the case of a serious violation or harm, the possible benefits do not count against the possible harms (in an essay about dosing someone with ecstasy against his will – see Inflicting Harm and Inflicting Pleasure on Strangers). My correspondent Arthur Tilley points out that there is a limit to this intuition, however. While the intuition about the ecstasy case is strong, he says, “we probably can’t say that doing nothing is ALWAYS better than taking a (teeny tiny) chance at doing harm.” His example:

Consider my setting up a cookie stand by the side of the road and offering free cookies to passersby. It is probably reasonable to
assume that a percentage of the population (one not nearly as high as the percentage that doesn’t like being dosed, but still nonzero) has some sort of phobia of cookies or aversion to being offered free things.

But it seems that in these cases where the probability of harm is really low, the action (in this case, having the cookie stand) is morally permissible.

Arthur’s insightful example illustrates that, though the intuition that inflicting serious harm to strangers cannot be offset by providing them pleasure, taking a chance on inflicting minor harm to strangers can definitely be balanced by the probability that one will do them good. How could we live otherwise, since all actions or inactions entail some possible unconsented harm? The morally restricted action is one that will produce serious or especially intrusive harm.

One antinatalist argument, propounded by Seana Shiffrin, is based on just this intuition: that, while it is fine to inflict harm on a stranger in order to prevent greater harm (e.g., to break his arm in order to rescue him from a burning car), it is not permissible to inflict harm on a stranger in order to provide a pure benefit.

A major, though often unspoken, point of contention between pronatalists and antinatalists is what counts as harm. Pronatalists often only admit that harm has occurred through procreation if, on balance, the person brought into existence finds his life not worth living. Since most people report finding their lives worthwhile, to a pronatalist, the risk of “harm” in bringing a being into existence is slight.

Antinatalists, on the other hand, recognize as harm all suffering inflicted on a being who is brought into existence – pain, hunger, unrequited love, violence, sickness, aging, and ultimately death. Most lives include positive aspects such as pleasure, love, and a sense of meaning – but the persons experiencing these benefits also experience extreme harm – at the very least, the harm of death.

Dr. A may not chance inflicting the harm of rape on a patient in order to likely provide her with pleasure and increased quality of life. It follows that, since the harm of life (separate from its pleasure and meaning) is so serious and so great, it may not be inflicted on a person in order to provide him with a pure benefit (that is, the pleasure and meaning of life). The harm of life is not slight or unlikely. It is extremely great. The pleasures and benefits are also likely and extremely great; what I wish to illustrate is that, in similar cases, that simply does not matter.

Written by Sister Y

May 1, 2009 at 2:54 am