The Ethicist: Is Sex With a Brain-Damaged Man Assault?

September 10, 2017 by Joshua
in Ethicist, Nonjudgment

Continuing my series of responses to the New York Times’, The Ethicist, here is my take on today’s post, “Is Sex With a Brain-Damaged Man Assault?

There is a man in our congregation who suffered a head injury in an accident. He is now permanently cognitively damaged. He lives in his own home with helpers. He has difficulty speaking and says that he has greater difficulty understanding what is said to him. When I write ‘‘says,’’ it sounds as though he speaks normally and conveys his meaning in normal sentences. He doesn’t.

My understanding is that he lives comfortably because there was a financial settlement due to the accident, but I don’t know any of the details. A woman in our church became pregnant by this man. They don’t live together, and I don’t believe they have an ongoing ‘‘relationship.’’ The baby is, naturally, in her custody. The father is heartbroken about how little time he gets with the child. It is a very sad situation. If the situation were reversed — if a cognitively damaged woman who could not live on her own became pregnant by a cognitively normal man — assault charges would most likely have been brought. Why has this not happened? This man speaks of how helpless he feels. And yet, people accept this situation that seems to me like a case of abuse. I don’t understand this at all. Name Withheld

My response: Amid your expression of confusion and sadness, your question is why assault charges haven’t been brought. The reason, as best I can tell, is that people feel more empathy for women than men so want to protect and help women more. We feel their suffering more. A woman friend once asked me, “Do men feel emotions?” She had graduated from an elite college, but society had never communicated to her that men felt emotions—happiness, sadness, joy, suffering, misery, and so on. She said she thought men “just did things.” I don’t think she’s unique.

I’m just sharing an observation. I don’t know if science backs me up so I’m happy to change my belief if people show me otherwise. Still, there are many places where the law helps one sex over the other—sometimes in writing, sometimes in enforcement. People get riled up when differences advantage men but far less so when they disadvantage men. I think it’s based in how we empathize with men versus women, again, based in anecdotal observation.

The New York Times response:

There are considerations here that pull us in different directions. We want to protect people who are cognitively impaired from abuse, including sexual abuse. But that doesn’t necessarily mean we think they should be consigned to permanent celibacy. Sexual autonomy involves rights to engage in sex as well as rights not to engage in sex. Does the fact that this man isn’t ‘‘cognitively normal’’ mean that he has entirely forfeited such rights?

This question casts a long shadow. Most people will experience mental deficits as they age, sometimes severe ones. Alice Munro’s masterly story ‘‘The Bear Came Over the Mountain’’ tells of a woman who develops the symptoms of Alzheimer’s and, at a residential-care facility, has an affair with another such patient. Munro’s subtle narrative suggests more than it states (and it leaves open exactly what happens between the two); one thing it doesn’t suggest is that physical intimacy in this context would count as assault. The standard toggle-switch model of consent seems inadequate to the reality of such disabilities.

You say that this man can’t express himself in normal sentences. But can he effectively say no? In your account, the man, despite his deficits and significant aphasia, also seems to have appropriate and coherent beliefs and desires: He knows he has a child, wants to see that child and grieves because that child has been kept from him. You don’t give us reason to think that, in a sexual situation, he wouldn’t be able convey the sentiment ‘‘I don’t want this.’’ For that matter, we don’t know whether he or the woman initiated the sexual activity.

I’m suggesting that sex involving the cognitively disabled isn’t, ipso facto, assault. I’m not concluding that what happened here was right. Even if the sex itself wasn’t violative, the man may not have been in a position to discuss whether he wanted to have a child with this woman, and therefore to think about contraception. If the woman knew this, she wronged him. (You don’t discuss her motives here, except to say they don’t have a relationship. If she had been trying to get access to his resources — his financial situation is comfortable, you say — this would be a further wrong: exploiting another person’s vulnerabilities to your own advantage.)

A second question is whether she should allow him to see the child more often. That he’s heartbroken not to see his offspring more isn’t the only relevant consideration. There is also, centrally, the issue of what is good for the child and reasonably convenient for the mother. Because he sees the child sometimes, the mother presumably doesn’t think that the visits are harmful; it would probably be kind to permit more. Whether it would be easy for her to do so, I am not in a position to judge, and perhaps you aren’t, either.

None of this settles the hovering question you didn’t ask, which is what, if anything, you should do. Do you have sufficient connection with these people to be entitled to intervene in their lives? How sure are you of the facts here? Would it do any good to the child or to his father to have the mother charged as a sex offender? Do you have the standing with the mother to urge her to allow the father more time with the child?

Here’s a suggestion. You know about these events because you and these people belong to the same church. Wouldn’t it make sense to bring these questions to your pastor? He or she could then take up with the child’s mother whatever concerns seemed appropriate.

I am a software developer at a small, quickly growing start-up. Last week, my boss asked me to write a program that would send frequent text messages to our customers, without first getting their assent, or ‘‘opt in.’’ Aside from my general distaste for unsolicited business communications of any kind, I became aware (via Googling) of various terms of service and industry regulations that specifically prohibit the sending of commercial text messages without first getting a recipient’s explicit permission.

I brought these issues up to a group of company managers, who debated the point in an email thread among themselves. The decision that came down was that it was worth the risk, and we should go ahead.

I understand why they may feel, given how much is invested in the company, that this is a corner that merits cutting. But from my perspective — despite the fact that I have some stock options, I am mostly a rank-and-file worker and don’t have as much at stake — what jumps out is that by writing the code I am being asked to write, I may be breaking a law, or at least some very clear industry standards.

Given the consensus toward ‘‘just doing it’’ around the office, would I be in the right to refuse this assignment? Would I be in the wrong to take it? Should I go even further and resign on principle? Name Withheld

My response: Asking whether you’d be right or wrong is just labeling your behavior with opinion. The people asking you to do the work consider it right. Some would consider it wrong.

Instead of asking how people would label your action, I suggest you consider the results of your actions on other people, what options you have, what options you can create, what resources you have, what skills you have and can develop to resolve the conflict you feel.

Then you can approach the situation with a problem-solving perspective based in empathy instead of a labeling one.

The New York Times response:

Your firm’s execs seem more eager to send messages than to read them. The Federal Communications Commission’s position on this topic is pretty clear. Federal law prohibits unsolicited autodialed text messages — ‘‘robo texts.’’ (The F.C.C. can exact penalties of nearly $19,000 per violation, after a warning citation has been issued.) And if an investigation was triggered, that email thread wouldn’t look good in any legal proceedings.

Maybe your company is right about the odds of getting away with it. Still, thinking about breaching legal and professional codes only in terms of the risk of being penalized is dodgy ethics. The laws against cellphone spam shouldn’t be necessary, because anyone who thinks responsibly about it can see that spam generally makes people’s lives worse. That’s why it’s professionally and socially frowned on. What your company proposes is inconsiderate, discourteous and antisocial. (One reason unsolicited texts are worse than email spam is that, depending on the recipient’s phone plan, they could cost money.)

That means there’s a business risk, too. People don’t like being spammed, and unless your company’s service is really terrific, you may lose customers. (The plan, you say, is to text only people who are customers already.) Either way, this blithe disregard for the ethical and legal violations here is worrisome. If you think that a boss who can’t see what’s wrong here will tolerate your pointing all this out, go for it. If he will also tolerate someone who refuses assignments, say you won’t be part of it. But given that you’re clearly someone whose skills are much in demand, you should give serious thought to parting company with these scofflaws and scapegraces.

Last week, a colleague rear-ended me. I work in a large organization and hadn’t met him until the accident. He asked if he could pay for the repairs, as he didn’t want his insurance rates to go up. While not grievously injured, my neck was hurting, and I worried more about that than the bumper and told him so. I had no idea how much the medical expenses would be, and the doctor wanted it to go through insurance, as it was a car-accident injury. It became clear that I would have to do a lot of work, and I decided to let him know that I would go through insurance because of this. Should I just get over trying to be nice to people, or could I have handled this in a more ethical way? Name Withheld

My response: I don’t know what you mean by a “more ethical way.” Are you saying you behaved unethically? I’m not sure what criteria you used to determine something’s ethics. The law may be clear (or not) for being written, but ethics are opinions. I know of no book in the sky that objectively tells the ethics of something that everyone would agree with.

I also don’t understand what you mean by “get over trying to be nice to people.” You seemed to generalize from one interaction to the universal, which looks like more of an extrapolation that I see the interaction warranting.

The New York Times response:

Employment at the same organization is not an intimate relationship. It certainly doesn’t carry the responsibilities of friendship. So he shouldn’t have asked you not to submit an insurance claim, and you had no reason to acquiesce. (As usual, I’m talking ethics here. You may have had legal duties as well.) For one thing, insurance rates are meant to reflect actual driving experience, not a fictional version of it. One failure to report an accident like this doesn’t harm the system, but a pattern of them will make it less fair. That’s why we all have reason to adopt a policy of reporting accidents when they occur. I’d find other things to be nice about in the future.

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