The morality of punishing the innocent

There is a current movement with the expressed intent of reducing or eliminating sexual assault against women by changing current law to make it easier to convict those accused of committing sexual assaults.

The proposed changes would reduce and/or eliminate due process protections currently afforded to the accused in the United States. The war to change these laws is primarily being waged on college campuses by forcing these institutions to eliminate due process when handling cases alleging sexual assault. On many campuses the accused does not have the right to counsel, may not have the right to present evidence on his own behalf, to call witnesses, or to cross-examine witnesses including his accuser, may only be given limited access to evidence against him, and guilt may be determined by a preponderance of evidence (instead of clear and convincing or beyond reasonable doubt), or simply because the evidence of guilt has the greater probability of being true.

This denial of due process almost assures a conviction that can result in anything from reprimand, to sensitivity classes, to expulsion.

To most of us, the “guilty until proved innocent” attitude towards those accused of any crime is reprehensible. The American system of jurisprudence is founded on the idea that allowing the guilty to go free is preferable to jailing the innocent. But to some, the greater good of stopping violent crime (particularly sex crimes against women) supersedes the rights of the accused to due process. For these persons, the unintended consequence of jailing the innocent, while it may be unfortunate, is perfectly acceptable and morally correct. The moral justification for this can be traced to none other than St. Thomas Aquinas and his justification of killing in self-defense.

Aquinas writes “Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. … Accordingly, the act of self-defense may have two effects: one, the saving of one’s life; the other, the slaying of the aggressor.” He further explains that killing in self-defense is morally acceptable only if there was no intent to kill. In other words, if the killing was an unintentional consequence of defending oneself, even if the killing was foreseeable. He qualifies this by stating that the act of self-defense must be in proportion to the act of aggression. However, if the killing was intentional or disproportionate, even if done in self-defense, it is morally unjustifiable.

The Doctrine (or Principle) of Double Effect requires four conditions described in the New Catholic Encyclopedia (p. 1021):

1. The act itself must be morally good or at least indifferent.
2. The agent may not positively will the bad effect but may permit it. If he could attain the good effect without the bad effect he should do so. The bad effect is sometimes said to be indirectly voluntary.
3. The good effect must flow from the action at least as immediately (in the order of causality, though not necessarily in the order of time) as the bad effect. In other words the good effect must be produced directly by the action, not by the bad effect. Otherwise the agent would be using a bad means to a good end, which is never allowed.
4. The good effect must be sufficiently desirable to compensate for the allowing of the bad effect.

Thus it becomes permissible under this doctrine to strengthen the laws pertaining to sexual assault in order to make it easier to convict and imprison accused perpetrators even if that means that more innocent persons will be convicted and jailed. The intent of this action is to reduce harm to women by reducing the number of sexual assaults by creating an effective deterrent: increasing the likelihood of going to prison.

On the surface, most reasonable persons would likely agree that the conditions are met. In fact, they may well be. It is certainly not immoral to make it easier to gain convictions in order to protect members of society. Provided the intent is not to imprison innocent people, and remains only a by-product, condition two is met. Condition three is met if the imprisonment of innocent men is not the direct cause of the reduction of the number of sexual assaults. The increased likelihood of imprisonment of offenders must be the cause of the reduction. Finally, it must be more desirable to protect women from sexual assault than to imprison innocent men. Whether or not this condition is met may be dependent on perspective and the perception of how many women will be protected vs. the number of innocent men imprisoned.

However, what this doctrine does not address is whether or not the proposed action will be effective in producing the desired outcome. Does increasing the likelihood of prison serve as an effective deterrent to sexual assault? In other words, will this actually reduce sexual assault? The doctrine only addresses the intent of the act, not the effectiveness.

For instance, it is acceptable under this doctrine for a physician to administer a potentially lethal dose of pain medication to a dying patient in order to alleviate the pain, even if the physician knows the medication might kill the patient. But what if the medication does not alleviate pain because the patient has developed a tolerance to its pain-relieving effects? The doctor has now increased the risk of death without producing the desired effect; pain relief. Is that moral? By the same token, if increasing the likelihood on imprisonment of offenders does not decrease the number of sexual assaults, but only increases the likelihood of incarcerating the innocent, is it moral? More to the point, is it moral to institute such a policy without being reasonably assured that the policy will produce the intended result, especially when the harm done is almost assured?

It could further be argued that because the consequence of imprisoning the innocent can be foreseen, the intent cannot be denied. The knowledge that a harmful effect will occur as a result of committing an act is tantamount to intentionally bringing about the harmful effect. The Doctrine of Double Effect flows from another Catholic doctrine of doing vs. allowing harm. This can be expanded through a discussion of deontological ethics.[1]

Agent-centered deontology draws a distinction between causing, preventing, and allowing. It is impermissible to cause an evil act, but generally permissible to fail to act to prevent one. It would be morally wrong to push a child into the street in front of a car (causing). There may or may not be a moral obligation to stop that same child from running into the street (preventing). Allowings occur when the action taken involves removing a defense that would have otherwise been in place to prevent evil from occurring, and when the removal of the defense is not the direct cause of harm. Allowings are permitted only when the defense removed had previously been provided and when the removal of that defense allows another good to occur.

When one removes legal defenses that protect the accused in order to allow increased convictions intended to deter sexual assault, one is removing a defense previously provided by law in order to do good and since the removal of that defense is not a direct assault upon the innocent (although it allows the direct assault to occur), it would be permitted under this deontological ethic.

A somewhat weaker defense of changing the laws that protect the innocent is that the change does not cause the evil, it merely enables others to commit the evil (send the innocent to prison). Therefore those who change the law are not morally responsible for sending the innocent to prison. That this statement would be seen by many as morally reprehensible is a criticism of agent-centered deontology as well as the Doctrine of Double Effects.

A second type of deontology is patient-centered and concerned with rights, not duties. At its very foundation, the fundamental right is the right not to be “used only as a means for producing good consequences without consent… It is a right against being used by another for the user’s or others’ benefit.” (Alexander & Moore, 2012). Ethical dilemmas handled one way under agent-centered deontology might be handled differently under patient-centered deontology. The difference is the forbidden practice of using a person without that person’s consent.

In agent-centered deontology, rightness is derived from the mental state of the agent or the agent’s actions in causing the harm. In patient-centered deontology the justification of the results rests on whether or not the victim (the harmed person) is the means of producing the results. Further, in patient-centered deontology, providing aid to another is not required, nor is there a right to receive aid from another. This is derived from the concept of using. Using can only be viewed as a positive act, not an inaction.

So in the example above, the child who runs into the street has no right to be saved, nor does the person who sees the child have an obligation to save it. Consequentialist ethics operate in both versions of deontology. Consequences help to define right and wrong actions in agent-centered deontology and define the moral norms used to guide action in patient-centered deontology.

An agent-centered deontology could be used to justify a change in laws to permit increased likelihood of conviction for sexual assault, including the likelihood of wrongful convictions, if it also reduces the number of sexual assaults. But under a system of patient-centered deontology, it could be argued that this is not justified. First, the goal of reducing the number of sexual assaults could be described as aiding potential victims. Under this system, no one has a right to aid. Second, it could be argued that the wrongfully convicted are being used without their consent to aid potential victims. Consequentialist ethics might intervene in the first case, but not in the second.

The consequence of sexual assault could be said to be so abhorrent that a moral norm be established that it in the interest of all to deter sexual assault. However, that norm would be overruled by using the innocent without their consent to prevent sexual assault. Thus a patient-centered approach would not permit this type of change in the law and those arguing for such a change would be arguing from the standpoint of agent-center deontology.

However, there is a case in which a patient-based ethic might permit such a change in the law. That is if it could be shown that more sexual assaults are prevented than innocents incarcerated or that sexual assault is a less desirable outcome than incarceration of innocents. Take the example of a trolley running loose down a mine shaft towards five workers trapped on the tracks. The trolley cannot be stopped and if left alone will kill all five workers. It is possible to pull a switch and divert the trolley onto a different track, but doing so would kill one worker who would not otherwise be killed.

Pulling the switch could be viewed as permissible if the five lives are considered more valuable than the one. However, because it is a positive act pulling the switch is not obligatory, simply because it is permissible does not relieve culpability. A person has the right not to act and cannot be held culpable for inaction under the patient-center ethic. But once a person acts, the person becomes culpable. So while a change to the law might be permissible, that permission does not relieve culpability. The actor is culpable for killing the one, but would not have been culpable for allowing the five to die. This is based on the separateness of persons.

Each person is a separate entity and wrongs (or rights) cannot be added together to form a greater wrong (or right). It follows that the rights of the majority do not supersede the rights of the minority which is the basis for constitutional law. Simply because the majority vote for a law, that law cannot be enacted if it violates the rights guaranteed under the constitution.

Interestingly, those who argue against sexual assault, argue from the standpoint of patient-centered deontology. No one has the right to use another person without that person’s consent. This is the very foundation for the argument against sexual assault when one uses rights as the basis for the argument. It would seem a contradiction that these same persons would switch their ethical stance from patient-centered to agent-based when the context suits them.

Consequentialist questions remain whether one approaches the issue from the standpoint of the Doctrine of Double Effect and/or agent-based deontology or patient-centered deontology. Will making it easier to gain convictions provide a sufficient deterrent to sexual assault to justify the inevitable increase in wrongful convictions? Without answering this question, the entire argument is moot. Good intentions is simply not enough. As they say, the road to Hell is paved with them.

The Doctrine of Double Effect uses intent as the basis for morality of action and does not appear to consider actions where the outcome is uncertain. Agent-based deontology at least uses consequence as a standard in defining right and wrong. Patient-centered deontology uses moral norms to help define rights. But what happens when we don’t know what the outcome of an action will be?

There are two likely outcomes (consequences) of strengthening the laws pertaining to sexual assault in order to make it easier to obtain convictions. One is that there is a reduction in sexual assaults committed due to the imprisonment of more offenders, paired with an increase in convictions of the innocent. The other is that there is no change in the number of sexual assaults committed although more offenders are imprisoned, paired with an increase in convictions of the innocent. The latter would likely be seen as unethical and immoral when held up to nearly any ethical philosophy.

There is little evidence to support that the first will occur. Many of the arguments against the death penalty are based on evidence that fails to support the reasoning that stiffer penalties results in effective deterrents. That would make the former outcome unethical as well. Therefore, the only truly ethical position is to not change these laws in any manner that would result in a greater number of convictions of the wrongly accused. Any law designed to reduce the number of sexual assaults should be evidence-based and include provisions designed to prevent wrongful convictions.

Alexander, Larry and Moore, Michael, “Deontological Ethics”, The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/win2012/entries/ethics-deontological/.

McIntyre, Alison, “Doctrine of Double Effect”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/fall2011/entries/double-effect/.