Saturday, October 21, 2017

Utilitarianism, Deontology, and Campus Rape Policy

A few weeks back, Betsy DeVos announced changes were likely to the Obama-era Department of Education policies pertaining to sexual assault, after months of looking into the issue and meeting with both sides.

Like everything else pertaining to Secretary DeVos, the left did not greet this news warmly.  One of my friends made a Facebook post lamenting the change, to which I responded with this article defending the change.  Below is the exchange that ensued.

Me: My TLDR position is that I agree sexual assault is a real problem warranting serious resources to combat, and realize college campuses present a uniquely susceptible environment for it; however, I think this should be addressed through an affirmative consent standard in local law enforcement, rather than through campus tribunals ill-equipped to investigate such matters and strongly pressured by DoE threats to withhold federal funds.

Her: Yeah, I pretty much agree. I'm not sure that the Yoffe article gets at your TL;DR. What about the article interested you? To me, we're bound to get some victims screwed over (let's call these false negatives) and some people falsely accused (let's call these false positives). The data shows that there are far more false negatives than false positives. In general, I think the effect of what Yoffe wrote, regardless of her intentions/framework/anecdotal evidence misrepresentative of the larger data, is fixing false positives at the expense of incurring more false negatives. I'm not sure what the first step to fixing the system is (campus tribunals are ill-equipped but I don't know that law enforcement is better, until I find data on it) - I guess there needs to be many different kinds.

Me: I think whenever we’re in the business of imposing severe punishments for alleged crimes, there are broader moral implications than the raw bean counting of how many false negatives v. false positives we will produce. 

As you alluded, there’s good reason to believe that false rape accusations are rare – probably no more common than they are for any other violent crime.  But for every other violent crime, our criminal justice system is deliberately designed to place the benefit of the doubt with the accused anyway, even if that results in more guilty people walking away free than it does innocent people being caged.  And for every other violent crime, progressives are not merely okay with that, but actually at the forefront of defending and expanding the rights of the accused so as to reduce the number of false positives even further.  I get that a college education is not a legal right, so schools are not *constitutionally* obligated to provide similar protections before expulsion.  But it still feels hypocritical for the progressive left to now push for reduced protections on the accused as soon as the crime in question comports with the broader narrative of patriarchal oppression they’re trying to advance. 

When the Innocence Project provides anecdotal evidence of black men being improperly convicted for rapes or murders they didn’t commit, it is not enough for criminal prosecutors to retort that such anecdotes are misrepresentative of the larger data on black/inner-city crime rates.  Whatever the context, the logic that most of the accused are probably guilty (and those who aren’t are necessary collateral damage towards the larger aim of being tough on _____ crime) is an inherently conservative position, and I’d argue a regressive one. 

There’s an old saying that “it’s better for a hundred guilty men to go free than it is for one innocent man to be convicted.” That’s sort of hackneyed and over-simplified, and it may not even be true (perhaps the acceptable ratio varies depending on what the crime is, or on the recidivism rate, or the expected strength of the deterrent effect, etc).  But still, that underlying sentiment comes from a certain deontological strain in our moral reckoning that tells us it matters who inflicts the injustice. 

By analogy, doctors could plausibly cure a larger total number of patients overall by being a bit more aggressive with their treatment programs, but in so doing they may also injure or kill people who were never previously in any danger.  Our medical system rejects that strategy on the basis that those creating and enforcing medical procedures have a moral obligation to “first, do no harm.” 

I’d argue the government has similar obligations.  As someone interested in policy (and specifically the abuse of state violence), it matters to me that the false positives in this case are created by a government acting on our alleged behalf (through a deliberately aggressive, centrally imposed national policy with unintended consequences) whereas the only ones who can be held morally responsible for false negatives are the rapists themselves. 

And, as a feminist, I think the long-term project of reducing sexual assault in society is more impeded by the bad PR of excessive campus expulsions (feeding an inaccurate narrative that all or most campus rape accusations are frivolous feminism gone wild) than it is aided by a marginal increase in offenders kicked off campus.  This is especially true for so long as the investigative bodies are extralegal, such that those found guilty aren’t even jailed anyway, and remain free to walk the streets potentially assaulting people off-campus just as freely as they formerly did on campus.  No policy can un-victimize those already raped; so, if Obama-era DOE policy risks victimizing the not-guilty without preventing the guilty from victimizing again, how is it reducing the number of victimized persons?

Her: I think we're approaching this from two different frameworks of morality (neither of which is wrong). On a sort of related note, if you have interest in that sort of thing (moral frameworks in political dialogue) I recommend Jonathan Haidt's "The Righteous Mind."

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