Welcome to our highly anticipated discussion of Michelle Madden Dempsey‘s “Coercion, Consent, and Time.” The paper is published in the most recent issue of Ethics; you can find it here. Kimberley Ferzan‘s critical précis is immediately below. Please join the discussion!
Kimberly Ferzan writes:
Michelle Madden Dempsey’s “Coercion, Consent, and Time” does exceptional conceptual and clarificatory work. Here’s the problem it addresses. In the wake of the #MeToo/#TimesUp movement, allegations from the past have surfaced, and in response, exculpatory claims have been made. But, Dempsey maintains, the claims of exculpation have blurred three distinct arguments: the argument that the action was not wrongful at the time, the argument that the defendant ought not to be blamed for not knowing his action was wrong back then, and the argument that so much time has gone by that the person should no longer be called to account for past wrongdoing (347). I think this is spot on and incredibility important. I do have some worries about Dempsey’s application of the first two categories to actual examples. Maybe classification is harder than we think.
“But that used to be okay!”
Dempsey begins with wrongfulness norms, which “track critical, not merely positive social morality.” (348). To consider whether wrongfulness norms have shifted over time, Dempsey looks to coercion, which she defines broadly. (350).
Dempsey’s illustration for shifts in wrongfulness norms is the controversy over the song “Baby, It’s Cold Outside,” which has a woman saying she has to go home and the man continually imploring her to stay. Leaving aside the line “hey what’s in this drink?” Dempsey offers two readings of the song: one with the man continually nagging the woman until she gives in (Baby1) and the other as the two as “partners in crime” because she wants to stay, is restricted by social context such that she can’t just say “yes,” and is offered by him reasons she can use to excuse her conduct (Baby 2).
To be sure, “Baby, It’s Cold Outside” is a reminder that we have to be careful about applying a contemporary lens to our understanding of the conduct at issue. And Dempsey is correct to note that certain kinds of conduct might have had a different social meaning, but I can’t help but conclude (as apparently an anonymous reviewer did as well) that there is no coercion in Baby2 so there is no change of the wrongfulness norm. We simply misunderstand the conduct.
Dempsey does then move to Age of Consent where she imagines a twenty-year-old having sex with a sixteen-year-old in the past. Dempsey notes that we might think that is wrong now, but that “[i]f, back then, sixteen-year-olds were properly regarded as having sufficient maturity for a range of practices involving the giving of consent [including sex with twenty-year-olds] then conduct which was genuinely permissible decades ago, in a different social context, would be genuinely wrong today.” (353). Again, I am not sure we have a shift in wrongfulness norms. The trick is that Dempsey says that the teenagers were “properly” regarded as having the capacity to consent.
To back up, conduct may be non-consensual because no consent is given (the person is asleep, held down, etc.) or because the assent given is under conditions that render is morally inoperative (coercion, incapacity, lack of knowledge). Baby1 v. Baby2 is the difference between coercion and no coercion. Age of Consent presupposes a difference in capacity—that sixteen-year-olds did have a capacity to consent then, that they don’t now (an interpretation Dempsey recognizes n.27).
I will confess that I find it hard to come up with a case where the coercive, deceptive, or incapacitative nature of the conduct, and its effect on consent (however we understand that), is held constant, and yet it once was permissible and now is not. I hope we can take up whether there are such cases in this discussion.
Rather, what appear to be shifts in norms will turn on the aptness of a proxy rule, for which based on the knowledge we had then, it appeared that the conduct had less of an impact than we now discover it does. So, the norms back then might have misunderstood what age is generally necessary for capacity, or whether a “no” always tokened non-consent. To my mind, if we thought back then “sex with 16 year-old’s is okay” and it turns out they truly don’t have the capacity to consent, then the changing proxy rule is not about a change of wrongfulness but a question of excusability. Of course, how one views these proxy rules will determine which side of the divide (wrongfulness/excuse) one places such cases on, and, perhaps, diagnose the root of some of our confusion between these categories, as there is a live debate as to how to best understand what a proxy rule is.
“But everybody used to think that was okay!”
Dempsey next considers “cases in which the wrong of nonconsensual sex has been committed, but the wrongdoer honestly, albeit mistakenly, believed the encounter was consensual” (354). As Dempsey understands the category, sex without consent is wrongful, but if the actor honestly and reasonably believed he had consent then he is excused.
For this category, Dempsey analyzes an actor’s mistaken interpretations of silence and stillness and whether they signal consent in a given context. Here, a reasonable belief may excuse, but Dempsey notes that what makes the belief reasonable is what givers of consent “actually did back then to communicate their consent,” not the perhaps widespread wishful thinking by other people in the consentee’s position. (357-58).
I am surprised that Dempsey uses this example because it invites a question about what consent is. Though she acknowledges this possibility (n.31), it means the example is not perhaps the best way to be sure that readers understand what this category is thought to contain. That is, she ultimately distills this excuse into, “But that’s how people used to let you know it was okay!” (358). But, if you believe that consent is communicative, as opposed to a mental act, then actually these are cases where the person was consenting, whether she wanted to or not, because she engaged in the conduct that was widely understood to communicate consent.
Though I believe this example invites potential confusion, the category itself strikes me as a particularly fruitful. Indeed, every time I tried to come up with an example of a shift in wrongfulness norms, I ultimately determined that the case I was considering was better classified as an excuse. It was just reasonable to think that back then.
Here, though, Dempsey does not address (but I think should have) mistake of facts versus mistakes of morality, and whether one can ever be excused for the latter. Dempsey’s case raises the former. But, like the debates over whether ancient slaveholders should be excused because they lacked knowledge their conduct was wrong, we could ask whether there are cases in which mistakes about the moral wrongfulness of an act were so pervasive (“it’s okay to tease a girl by pulling on her string bikini”) that the actor ought to be excused. I am not sure I have a convincing case on hand, but it seems to me that much of the discourse surrounds claims about mistakes as to wrongdoing and not just mistakes as to facts.
“But that was so long ago!”
We are now to assume that the actor’s conduct was wrongful and unexcused, but “the gist of this claim is that too much time has passed for [him] to be held accountable for his past conduct.” (358). Dempsey accepts that if the conduct was not wrongful, the person is excused, or the person has transformed then there is less reason to hold the person accountable. But in instances of serious sexual misconduct, she believes the reasons for public accountability remain because we should call serious wrongs to account and all the more so when we have refused to recognize such wrongs in the past and victims did not have a real opportunity to come forward because their violations would not have been treated seriously previously.
My only gripe with this discussion is that there are a number of questions that could have used Dempsey’s conceptual parsing. There are a many moving pieces at the same time: (1) the underlying wrong and whether, particularly in cases of slight wrongs, something can become less wrong over time (consider rebuking someone over Twitter for pushing you twenty years ago), (2) changes in personal identity over time, and (3) steps the person took to hold himself accountable. All of these questions then intersect with why we would want to hold someone accountable, where Dempsey invokes traditional justifications for punishment at points, including rehabilitation, specific deterrence, and general deterrence. Moreover, though Dempsey distinguishes public accountability from private accountability in detail, we need to justify not only “public accountability,” but also the remedies that are proportionate with respect to all of our concerns. Though this section and discussion could be a bit better organized, Dempsey nicely brings to the fore some countervailing considerations for why a public accounting now for acts of the past might be more important than in other instances of wrongdoing.
