McMahan & Singer: Stubblefield Is A Victim Of Injustice (updated)


In an essay at The New York Times’ “The Stone,” two of the most prominent living moral philosophers—Jeff McMahan, White’s Professor of Moral Philosophy at Oxford University, and Peter Singer, Ira W. DeCamp Professor of Bioethics at the University Center for Human Values at Princeton University—argue that Anna Stubblefield, a former professor of philosophy at Rutgers University-Newark, was treated unjustly during the proceedings that led to her conviction on two counts of felony first-degree aggravated sexual assault of a disabled man known as “D.J.”, and a 12-year prison sentence.

The occasion of the essay is Stubblefield’s appeal of her conviction, which, according to Professor McMahan, will be argued this Tuesday. He adds, “our aim is for it to create additional publicity and to call attention to what we believe is the terrible injustice she has suffered.”

To recall the basic outline of the story:

Stubblefield originally met D.J. in 2009 through his brother, then a Rutgers student, who was taking a course of Stubblefield’s during which the professor showed a video about the method. The brother later asked her for more information about the method to see if it might help D.J. Over the following two years, Stubblefield worked with D.J. through the technique. She claimed he was able to communicate through the typing method, including by writing papers that were presented at conferences and essays for a literature class at Rutgers.

Stubblefield said she and D.J. fell in love and ultimately disclosed their sexual relationship to his mother and brother in May 2011.

After the sexual assault allegations surfaced, Rutgers placed Stubblefield on administrative leave without pay and stripped her of the title of chairwoman of the philosophy department.

But [Essex County Assistant Prosecutor Eric] Plant presented testimony from experts who had evaluated D.J. and collectively found he has intellectual disabilities and is unable to consent to sexual activity. D.J. also is physically disabled, wears diapers and requires assistance with walking, bathing, dressing and eating, his family members said.

Plant also highlighted how studies have shown facilitated communication does not work and that several scientific organizations have issued statements that the technique is invalid.

McMahan and Singer support Stubblefield’s appeal based on the trial judge’s refusal to allow the presentation of potentially exonerating evidence, and that, even if the facts were as the prosecution allege, the 12-year sentence would be “utterly disproportionate to the nature of the crime.”

More specifically, on the matter of evidence, they write:

1. Studies showing the lack of effectiveness of facilitated communication and that facilitators can “come to believe that they are enabling a disabled person to communicate when in fact they are the ones who are writing the sentences” do not prove that Stubblefield was misled about D.J.’s abilities.

2. “Independent evidence suggests that D.J. is literate and able to communicate” and this evidence was excluded at trial. The evidence includes the remarks of one of D.J.’s academic assistants, Sheronda Jones, to a detective investigating the case, and the results of tests conducted by Rosemary Crossley, not based on facilitated communication, that suggest D.J. was not as cognitively impaired as the prosecution argued. The judge did not allow Jones nor Crossley to testify.

3. The jury may have been misled into believing that D.J. was cognitively impaired because the judge allowed the prosecution “to display D.J. to the jury for a few moments in his mute and spastic condition.” McMahan and Singer write, “It is well established in the psychological literature that people tend to infer cognitive disability from severe physical disability, especially when the disabled individual is unable to speak” and note that “fewer than 50 percent of those with cerebral palsy have any degree of cognitive impairment.”

4. The investigation, trial, and sentencing phases never involved conducting any potentially exonerating independent testing to determine D.J.’s ability to communicate via facilitated communication.

On the matter of proportionality, they write:

5. There is substantial variety in the sentences for sexual assault, and that in determining the appropriate degree of severity, the relevant factors are “the beliefs and intentions of the perpetrator and the harm done to the victim.”

6. Stubblefield’s voluntarily telling D.J.’s family about their sexual relations “is the action not of a sexual predator but of an honest and honorable woman in love.”

7. “If we assume that [D.J.] is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation… it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.”

8. “If, by contrast, we assume that he has normal cognitive capacities, certain uncontested facts make it difficult to believe that he was forced to have sex against his will.”

They add, “For someone to spend 12 years in prison for a sexual act that took place in the context of a long-term, caring relationship that was motivated by love—at least on Stubblefield’s part—and about which there is no evidence that it caused any harm is, in our view, outrageous.”

You can read the whole essay here.

UPDATE (April 3, 2017): Commentary from elsewhere in the philosophical blogosphere (I will try to keep this list regularly updated; feel free to send stuff in:

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Alfred MacDonald
Alfred MacDonald
4 years ago

it’ll be interesting to compare/contrast the attitudes toward this vs. toward the Searle incidentReport

Rebecca Kukla
Rebecca Kukla
Reply to  Alfred MacDonald
4 years ago

Why? Just because both are gross sexual abuses of power? I don’t see any other interesting points of comparison.Report

David Mathers
David Mathers
Reply to  Rebecca Kukla
4 years ago

I wonder if the two cases are even *that* similar in being ‘gross sexual abuses of power’. Whilst I think that Singer and McMahan are being irresponsible in suggesting that D.J. probably wasn’t harmed, I don’t think the motives/psychological state of someone who believed they had consent *because of a prior, not at all sexually motivated or gendered belief in a quack scientific view about communication* is likely to be relevantly much like that of the typical rapist, whether or not the latter deludes themselves . Or at least, it’s not obvious to me that they would be. It seems a very unusual circumstance. Stubblefield clearly acted very wrongly, but I suspect that the process by which she came to do so is very different from that by which most people who commit acts of sexual violence come to do so.

Having said that I know very little about the psychology of sexual violence, so my guess here could be totally wrong. Report

David Mathers
David Mathers
Reply to  Rebecca Kukla
4 years ago

To be clear: I do think Stubblefield was culpable for he wrong action, not just unlucky, and that punishment was merited (though I’m not endorsing the specific jail sentence either.) Report

Clement
Clement
4 years ago

A different perspective from Mark Sherry’s article in the journal “Disability and Society”:

” I am deeply concerned that there has been a lack of critical reflection from disability studies scholars as to the danger of their role becoming de facto rape apologists. ”

http://www.drmarksherry.com/wp-content/uploads/2012/09/Facilitated-communication-Anna-Stubblefield-and-disability-studies.pdf Report

Kathryn Pogin
Kathryn Pogin
4 years ago

This is horrifyingly ignorant regarding how sexual abuse takes place, how victims respond, and what perpetrators look like. I don’t even know where to begin. Report

Grad Sockpuppet
Grad Sockpuppet
Reply to  Kathryn Pogin
4 years ago

This is so very, very important. The ignorance on display is simply breathtaking.

Maybe one place to start is by observing that quite a lot of sexual abuse is perpetrated by people who don’t *think* that’s what they’re doing. It happens at home, not out in the world, and is perpetrated by people close to the victim who purport to love her, not by callous strangers.Report

Hey Nonny Mouse
Hey Nonny Mouse
Reply to  Kathryn Pogin
4 years ago

What do perpetrators look like?Report

Kathryn Pogin
Kathryn Pogin
Reply to  Hey Nonny Mouse
4 years ago

Well, they don’t look like a uniform group of folks who sit at home thinking about how they can harm other people, and who never take themselves to be in love with their victims. Report

AnotherPostDoc
AnotherPostDoc
Reply to  Kathryn Pogin
4 years ago

Also, rape can occur without physical resistance. Rape can be enjoyed. Rape can occur within the context of a committed relationship (e.g., marital rape). Those who are raped sometimes deny it is rape and subsequently protect their rapist.

I can’t summarize it better than Grad SockPuppet: “The ignorance on display is simply breathtaking.” Yes. This. A million times this.Report

Gopher
Gopher
4 years ago

‘2. “Independent evidence suggests that D.J. is literate and able to communicate” and this evidence was excluded at trial.”‘

‘7. “If we assume that [D.J.] is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation.’

How do these two claims not at least implicitly contradict each other?

On the one hand, if D.J. was literate, then 7 is plausibly false: he was not so profoundly impaired that he could not understand the significance of sexual relations.

On the other, if D.J. was so profoundly incapacitated that he could not understand the meaning and significance of sexual relations, how can 2 be true (how can he be literate)?

Finally, how is 7 not just another reason to think that utilitarianism is a false and morally dangerous doctrine?

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another grad
another grad
Reply to  Gopher
4 years ago

I think the claim in (2) is more that it is unfair that certain relevant evidence was excluded in the trial.

And then claim (7) is like on the one hand, if DJ is profoundly cognitively impaired, then it’s unclear what the nature of the wrong or harm is, followed by claim (8) which says on the other hand, if DJ isn’t profoundly cognitively impaired, it is unclear that he didn’t consent to sex. To reach the conclusion that whether or not DJ is cognitively impaired, there’s reason to think Anna Stubblefield’s behaviour was acceptable, or at least undeserving of harsh punishment.

In any case, I agree that (7) seems like just another reductio of utilitarianism, and further that (8) basically relies on a rehearsal of pernicious rape myths.

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David Mathers
David Mathers
Reply to  Gopher
4 years ago

It’s not a straight contradiction because 7. is a conditional, and so it’s like asserting ‘P’ and then asserting ‘if not P, then Q’. Having said that, there’s still a major problem for Singer and McMahan’s argument here: namely that if they think it is uncertain whether D.J. is really very profoundly cognitive disabled, or in fact, perfectly normal cognitively, then surely there is a major risk that he is somewhere in between, in which case, even on their account of when people are harmed by sexual contact, Stubblefield’s action will not have been harmless. (I assume that they think that an adult having sex with someone with roughly the cognitive capacity of the average 10 year old will either always or at least very likely constitutive or result in a harm to the latter.) Report

Shelley Tremain
Shelley Tremain
4 years ago

I strongly object to the use of the victim’s initials in the post at Feminist Philosophers. Report

Philippe Lemoine
Reply to  Shelley Tremain
4 years ago

Why?Report

Shelley Tremain
Shelley Tremain
Reply to  Philippe Lemoine
4 years ago

Because the identity of this victim, like every other, should not be disclosed and circulated. The courts did not reveal his initials nor the name given to an article that he allegedly composed. These were disclosed and put into circulation by members of the disability studies community. That was a serious breach. We should not reproduce the problem. I have discussed this concern with someone at Feminist Philosophers who intends to remove the initials from the post.Report

Matt
Reply to  Shelley Tremain
4 years ago

“The courts did not reveal his initials… These were disclosed and put into circulation by members of the disability studies community

I cannot find the actual decision (trail court decisions on often not published, but I also don’t have access to westlaw or lexis at home, and have only done a brief google search, not turning it up) but I doubt this is true, for a few reasons. First, because all of the news articles I’ve seen, both before and during the actual trial, used the initials, and secondly, it’s also a completely normal thing for a court to do. (I am, among other things, a lawyer who works in immigration law. In lots of asylum cases, the initials of asylum applicants are used. And, in many, many court cases involving juveniles, initials are used.) I very strongly suspect that the court used initials here, because that’s the normal thing to do in cases like this. Unless someone can link to the actual opinion, and the initials are not used, I think we should believe that this claim is incorrect, for what that’s worth.

(Maybe courts should not even use initials. I don’t have a very strong opinion on this matter. But, at least in the U.S., they typically do do so. Unless there’s specific evidence that they did not do so in this case, despite it being the normal practice in cases like this, I think that the criticism of the use of initials by others is misguided.) Report

Shelley Tremain
Shelley Tremain
Reply to  Matt
4 years ago

I take it from your comment that you have not been privy to discussions in the disability studies community about this issue. This issue was the subject of much debate and animosity among disability scholars for some months. If you read the article by Mark Sherry (cited above), you will see that the victim was referred to as “John Roe”.

Here’s a relevant passage from the article:
“Another disturbing element of the response of disability studies scholars to the Stubblefield case concerns the identification of the victim. In both a civil case against Stubblefield and Rutgers University, and in the criminal prosecution of Stubblefield, the victim was known as ‘John Roe.’ Unfortunately, some disability studies writers have decided to use a more identifiable name – they call him ‘D-Man,’ an identifier which would be recognizable to those who met him at SDS because the conference paper attributed to him is published in Disability Studies Quarterly under that name. Some critics have demanded the removal of this paper from Disability Studies Quarterly, given the court findings that he was incapable of writing it. This is a position I would support, but it is too far removed from the emphasis of this article to discuss in detail here.

The shameful decision to use this more identifiable name, in contrast to the approach of the court and his guardians, was never publicly justified by such scholars. I will not use it here again.”Report

Matt
Reply to  Shelley Tremain
4 years ago

Thanks for the follow up. That’s interesting to know. It’s not a general pattern in such cases, where the use of initials isn’t unusual. Report

James T. Todd
James T. Todd
4 years ago

I was the final witness in the case. I cannot contribute on the technicalities of philosophical ethics. Then again, the Singer and McMahan piece is so incompetent in its failure to contact the realities of the case that there would seem to be little point in getting technical.

For instance, there was real no question that the victim understands significance of sex. The victim’s very severe cognitive disability was established by independent medical evidence. Howard Shane, one of the world’s best at developing adaptive communication devices for people with disabilities, also did an examination of the victim, confirming that he has essentially infantile capabilities. The victim is not “locked-in,” as Singer and McMahan suggest. He is simply incapable of giving consent. He should also not be hidden away. The whole point of facilitated communication is to replace the non-speaking person with a fantasy of another’s making. The jury should not have been put in a position to imagine the erudite, willing sexual partner created by Stubblefield’s imagination, but be able to know the real one.

Singer and McMahan are entirely wrong that there was no testimony about facilitated communication. I know, because I gave copious testimony about it in response to many statements by the defense, including by Stubblefield (who, ill-advisedly, testified on her own behalf, confessing under oath to most of the legal elements of rape). Certain aspects of FC were disallowed for jury consideration under the Frye standard. But as a scientific matter, FC was thoroughly covered.

As for insanity, it would be too high a legal bar when speaking of a philosophy department chair, writer of books and articles, recipient of early tenure. However, it seemed at points that the defense was trying to suggest some kind of diminished capacity, at least focal to Stubblefield’s continued belief in facilitated communication despite the massive scientific evidence against it. That is, it seemed her attorney was trying to suggest that she was blinded by her own desires. She knew how to test the validity of authorship, yet she did nothing of the sort. You’d think a professional ethical consultant might at least check things out. What I am saying is that you only need one sympathetic juror for a mistrial, and a good defense is going to use all the available options. The problem is that a convicted person who fails to show insight into the crime does not usually do well at sentencing.

The practical problem we face in my work this is that using FC for generating false consent for sex is actually “a thing.” Stubblefield is not the only one. She was the second conviction for raping an FC client just that year, the other being in Australia. Using FC for consent for sex is openly recommended by FC advocates, even in course materials for disabilities students. In 2012, based on these naive and dangerous recommendations, I warned that this kind of thing would happen (see below). It did. It will again.

James T. Todd, Ph.D.

Todd, J.T. (2012). The moral obligation to be empirical: Comments on Boynton’s “Facilitated Communication—what harm it can do: Confessions of a former facilitator.” Evidence-Based Communication Assessment and Intervention, 6(1), 36-57.

http://www.tandfonline.com/doi/abs/10.1080/17489539.2012.704738?mobileUi=0&journalCode=tebc20
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Lucy
Lucy
Reply to  James T. Todd
4 years ago

Thank you, this is very helpful.Report

Philippe Lemoine
Reply to  James T. Todd
4 years ago

Something weird happened with my comments above. They were posted as replies to a comment made by someone other than James, who was expressing her surprise that Stubblefield’s lawyers had not tried to plead insanity. Earlier today, they were displayed as a reply to that person’s comment, but now they are showed as a reply to James and the comment to which I was replying disappeared. I have no idea what happened, but I wanted to explain it, since otherwise it’s not clear what “this” refers to in my comment when I say “this is exactly what I thought”. I was referring to the other commenter’s point that it was surprising that Stubblefield’s lawyers had not tried to plead insanity. Anyway, while I’m at it, I want to thank James for his comment, which not only explains why Stubblefield’s lawyers couldn’t plead insanity but also contains a lot of shocking information.Report

Tudor Eynon
Tudor Eynon
Reply to  James T. Todd
3 years ago

Nice to hear your cogent comments again James Todd. I agree on this totally though we have almost diametrically opposed view on the nature and origin of language and its learning or teaching. I had no idea this case was to be retried until today and am really dismayed as to the grounds given for the retrial.
We converge on some points of fact here. It is disappointing to see highly regarded ethicists be so out of touch with the evidence against FC. They proceed to my mind in a totally abstract way on the basis of the bare and supposed logical possibility of an unknown variant of ‘locked in syndrome’ in the type of case under discussion.

Unlike the Judge in the initial trial Singer seems to have made no effort to establish the veracity and credibility of Rosemary Crossley and the techniques under discussion or how easy it is to provoke responses and “aid” clients using FC and Augmented Communication Devices. To put words into clients mouths in fact. The matter is, to my mind, empirical at that point rather than ethical. The issue can be traced back to “Clever Hans” and further really and requires intellectual honesty and very little else.
I never cease to be amazed though at how gullible people are on this topic and how little a career based, supposedly, on intellectual rigor can protect one. It should introduce some humility in us all maybe? Maybe as an exercise Singer et. al. might like to review videos made by “Carly Fleischmann” and others currently doing the rounds and misleading folk left right and center in what, were it not so sad, a comically transparent way.

I do, as I have said before, consider Stubblefield’s sentence to have been harsh on the basis of the fact that she believed, in some sense, that the victim was of normal intelligence. That is in fact where philosophical and ethical interest lies I would have thought? What is our moral responsibility towards getting our facts right? I find the problem troubling and intractable. At what point does a false and self serving or ideologically driven belief become a question of moral failure and culpability? This to my mind is where Anna Stubblefield is and was ethically; Singer and MacMahan see the issue as lying elsewhere and, as you say James, unnecessarily remotely in other questions about ‘harm’ and moral status..

The severity of the sentence makes me sympathetic to reviewing the case in some terms However I think the grounds and points made by Singer and others are totally irrelevant and ignorant as to what is known about FC and its variants. Report

Saba Bazargan-Forward
Saba Bazargan-Forward
4 years ago

McMahan and Singer make claims particular to the Stubblefield case, as well as more general moral claims. I can’t speak to the former. But I’d like to say something about the latter. Critics have seized on a particular moral claim that McMahan and Singer make:

“On the assumption that he [John Doe] is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.”

Critics have argued that an implication of this argument is that it seems to justify non-consensual sexual predation against children who are also cognitively “incapable of understanding” the wrong that they are suffering. This would clearly serve as a reductio against McMahan’s and Singer’s position.

But there are morally relevant difference between a normal child, and someone who is severely and permanently impaired cognitively. If such a person is incapable of consenting to sex due to his or her cognitive condition, and if this morally prohibits sexual intimacy with him, then this means he or she has to go the rest of his or her life without experiencing a certain kind of good — i.e., sexual intimacy. They might have an interest and a liberty-right to that kind of experience at some point in life. Alan Wertheimer makes this point in his article on Consent to Sexual Relations. He says:

“We have reason to be concerned to facilitate the (albeit limited) positive autonomy of the retarded as well as to protect them from predators. Although the moderately retarded[*] may have cognitive competence that is no greater than those of nonretarded minors, there is more reason to be concerned about protecting the positive autonomy of the retarded. If we say that minors are unable to give transformative consent, we do not preclude sexual experience over the course of their lives. Minors get older. By contrast, to say that a retarded female cannot give transformative consent is to deny her permanently the opportunity to legitimately experience intimacy and sexual pleasure.”

If Wertheimer is correct, permitting sexual intimacy in such cases risks violations of negative autonomy, while prohibiting it risks violations of positive autonomy. This isn’t to say that it’s a draw — there are a host of considerations that might militate erring in favor of one side rather than the other. But Wertheimer’s point is that right to or value of positive autonomy should not be left out of our moral deliberation.

Whether this sort of argument, if correct, applies to John Doe in particular will depend on just how cognitively impaired he is. This is because Wertheimer’s argument suggests that there are lower standards of morally transformative consent for those who are severely and permanently cognitively impaired. This means there might still be permanently impaired individuals who are unable to rise even to that lower standard. John Doe might very well be below that threshold (I’m not sufficiently familiar with his case in particular).

But again, my aim here is not to show that McMahan and Singer are right about John Doe and Stubblefield in particular, but only that the point they make about consent does not imply a permission to sexually prey on children incapable of consent.

*I find Wertheimer’s use of the term ‘retarded’ unfortunate, but I found it useful to quote him in full here. Report

Carnap
Carnap
Reply to  Saba Bazargan-Forward
4 years ago
PhilStudent
PhilStudent
4 years ago

Tried to condense my frustrations with this piece into a comment but found i had more to say than I thought:
https://thingscanonlygetmeta.blog/

Overall, I find the piece extremely problematic and hugely harmful. Report