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:

• “A Reply to McMahan and Singer on the Stubblefield Case” by Philodaria at Feminist Philosophers
• “Moral Philosophy Needs a Moral License to Offend” by Jason Brennan at Bleeding Heart Libertarians
• “On Philosophical Authority (McMahan & Singer on the Stubblefield case)” by Eric Schliesser at Digressions & Impressions
• “Moral Philosophy Doesn’t Need a License to Cause Harm” by Andrew Cullison at The Prindle Post