Wednesday, December 15, 2010

Saletan on Adult Incest

Here.

One way to characterize Saletan's argument is like so:

He's trying to preserve two "intuitions"; to wit, (a) homosexuality is morally permissible, and (b) incest is not morally permissible.

(Analytic philosophers, clearer than most philosophers on many scores, are lamentably confused about so-called "intuitions" and their role in philosophy; but that's a different complaint for a different time.)

Thing is, I, like many people, don't share the latter intuition.

I'm not in a very strong position to argue against (b); I don't have any sisters, and I don't have any daughters. Perhaps the wrongness of consensual incest would be clearer to me if I did. But I doubt it.

Discussing incest is a little bit like discussing cannibalism. First, there's the ick factor. But, second, people who think the two are morally wrong tend to focus on the obviously impermissible cases--incest involving children, and cannibalism involving murder. But those cases are clear and uncontroversial--nobody thinks they're o.k.

What we need to think about are the clearest cases on the other end of the spectrum--consensual, non-murderous cannibalism, and consensual incest between consenting adults. In both of those cases--putative ickiness aside--it's pretty hard to find a decent argument for moral impermissibility.

But, uh, let's let the cannibalism case wait for another time...

Saletan rightly notes that the reproductive argument against consensual adult incest fails. First, there's birth control. Second, it doesn't rule out incest involving one or more people incapable of reproduction (e.g. on account of age).

Saletan then tries the "social roles" argument--that families involve social roles of certain well-known types, and that sex confuses those roles. That may be right, but here Saletan makes a common error. He confuses finding some kind of argument against x with finding a sufficiently strong argument against x. This often happens when we're inclined against something and flailing around in search of an argument to support our inclinations. Sure, being, say, a brother typically involves a certain type of familial role, as does being a father. Sure, having sex is inconsistent with those roles. But there's nothing there that comes close to entailing that incest is morally wrong. Being good friends with your children constitutes a transgression of such boundaries, but--though some might think it imprudent--no one would judge it to be immoral. Furthermore, this type of argument entails that it is immoral for, e.g., adult step-siblings to have sex. It also seems to fail to rule out sex between biological siblings who do not grow up together, and who do not fill the relevant familial social roles--a consequence that Saletan, it seems, would not welcome.

Peirce says something sensible about such cases somewhere, with his typical go-slow moral conservatism; he says, roughly, that anyone who would give up on the incest taboo on the basis of a little bit of thinking about it is a fool. That's a view I can respect, but only on general fallibilist grounds. I think we have to admit that there are no obvious--at least no obviously good--reasons for thinking that consensual adult incest is morally wrong. Consequently, I don't see any way to defend laws against it. The idea that someone like professor Epstein should face prosecution for it is astonishing to me.

7 Comments:

Anonymous Anonymous said...

The standard to which you subject Salatan's argument here is too high. After reading the column, it seems clear that he is arguing in favor or laws against incest as commendable public policy, not that adult, consensual incest is always impermissible in a moral sense. That the wisdom of the ban is his target is obscured by Salatan's insistence on using moralistic language in his argument (the "cancer on the life of the family" bit, his calling sex here "banging") for the laws.

It's weird for someone who writes much on biotech related ethical questions to ignore how those cases are illuminating here. Salatan has in the past worried about the possibility of unintentional incest between half-siblings fathered by the same sperm donor. On the basis he argues here, there is no basis to punish participants in such relationships. If they have already started a family by the time they learn of their consanguinity, then their subsequent intentional incest shouldn't be grounds for dissolving a valuable family unit. Even further, if someone wanted to go to shared-sperm donor support groups to look for dates, then this too should not be banned by Salatan's lights. Since such a case would still have the ick factor, I would be curious to see what he would say.

For cases like the NYU professor though, the policy argument in favor of an enforced ban is strong, like for bans on polygamy or statutory rape: It's possible for a genuinely consensual incestuous relationship to arise between a parent and child. It's possible for someone to genuinely wish to enter into an asymmetrical marriage arrangement that puts her at an objective disadvantage compared to her husband. (I have in mind here traditional, old style polygamy where the wives are married to the husband, but not each other. Symmetrical, Heinlein-style group marriages are a whole 'nother can of worms.) It's possible for a 13 year old to really have the mental faculties required to consent to sex with an adult. But most of the time the "consent" will be a fig leaf for some kind of coercion, which is likely to be injurious to the coerced party. Since the coercion involved in personal relationships like this is very hard to determine in a legal context and the costs to people being forbidden such relationships not especially high, the state ought to ban such relationships to protect people against being injured.

12:15 PM  
Anonymous Anonymous said...

The standard to which you subject Salatan's argument here is too high. After reading the column, it seems clear that he is arguing in favor or laws against incest as commendable public policy, not that adult, consensual incest is always impermissible in a moral sense. That the wisdom of the ban is his target is obscured by Salatan's insistence on using moralistic language in his argument (the "cancer on the life of the family" bit, his calling sex here "banging") for the laws.

It's weird for someone who writes much on biotech related ethical questions to ignore how those cases are illuminating here. Salatan has in the past worried about the possibility of unintentional incest between half-siblings fathered by the same sperm donor. On the basis he argues here, there is no basis to punish participants in such relationships. If they have already started a family by the time they learn of their consanguinity, then their subsequent intentional incest shouldn't be grounds for dissolving a valuable family unit. Even further, if someone wanted to go to shared-sperm donor support groups to look for dates, then this too should not be banned by Salatan's lights. Since such a case would still have the ick factor, I would be curious to see what he would say.

For cases like the NYU professor though, the policy argument in favor of an enforced ban is strong, like for bans on polygamy or statutory rape: It's possible for a genuinely consensual incestuous relationship to arise between a parent and child. It's possible for someone to genuinely wish to enter into an asymmetrical marriage arrangement that puts her at an objective disadvantage compared to her husband. (I have in mind here traditional, old style polygamy where the wives are married to the husband, but not each other. Symmetrical, Heinlein-style group marriages are a whole 'nother can of worms.) It's possible for a 13 year old to really have the mental faculties required to consent to sex with an adult. But most of the time the "consent" will be a fig leaf for some kind of coercion, which is likely to be injurious to the coerced party. Since the coercion involved in personal relationships like this is very hard to determine in a legal context and the costs to people being forbidden such relationships not especially high, the state ought to ban such relationships to protect people against being injured.

12:16 PM  
Blogger Winston Smith said...

I think what you write is sensible, A. (Though I disagree that the problem is that I was holding S to too high a standard. I think what you really mean is that I was holding them to the wrong standard--he's offering something more like a public policy argument than a moral argument.)

Arguments like yours and Saletan's are very fishy--as you'd probably admit. They're weak and speculative, based on some hand-wavy stuff about family roles, and lots of questionable empirical premises about effects on the family, odds of consent, and so forth. That's not to say that I think they'll ultimately fail...just that I think you and I would both agree that these are sketches of arguments with lots of obvious weak spots...not clear, strong arguments that we should be willing to rely upon.

Can we separate such public policy arguments from moral arguments? Even "thoughtcrime" has its public policy consequences... I really do need to think about his general issue more...

I'm in no way convinced of the justice of prosecuting the folks in question (though, actually, it sounds like only the male is a target of prosecution... Huh.) Your worries about consent are reasonable worries, but they're very unlikely to work as the grounds of legislation. Adults are adults, and that's an end on it. Speculative worries about their inability to consent won't work for some pretty obvious reasons. Hard-core feminists tried such arguments against pr0n--that females could never really give consent to be in it. Even ignore all the better arguments as allegedly sexist and "phallocentric," they finally had to give up on the position on the grounds that it "infantilized" females, relegating them to permanent juvenile status by making it impossible for them to enter into certain types of contracts.

Fah. I have to think about this more.

I will say that I think traditional polygamy is seriously, seriously fecked up, and I want it to remain very illegal...but I'm worried that I'm very wrong about that...

9:14 AM  
Anonymous Anonymous said...

It would be nice if we could decide every legal question by appeal to general liberal principles and a conceptual analysis of the actions involved, but we can’t. Between the laws demanded and forbidden to a rights respecting government is a vast space where consequences matter, so questions of whether a particular law is justified often turn on empirical fact. I don’t think it’s hand waving to claim that, while incestuous relationships are not coercive by some kind of conceptual necessity, for people as they are incestuous relationships are likely be coercive and injurious to one or both of the people in them. That’s something based on observation of how people live in families, rather than on the essence of a free agent. Nor are family roles really that vaguely defined. Marriage and family law create all sorts of positive and negative duties for parents, children, and siblings, many of which outlast the minority of the children. Finally, the burden placed on people obeying anti-incest laws is not that high, since it keeps one away from a few, particular, just maybe consenting adults instead of a whole class of adults without a high likelihood of being massed up by the attention.

It makes things less clear to position arguments for incest laws as backstopping a slippery slope created by eliminating laws against homosexuality. Arguments in favor of incest laws don’t have to do that work, since adult homosexuality and adult incest aren’t on some kind of severity continuum. Except for involving sex, the issues are nothing alike. The only reason we (or Salatan) are even tempted think they’re similar is because conservatives have been making as if they were – along with bestiality, pedophilia, and anything else that will mash the sexual Eew! button. If adult incest is on a severity continuum, it on the far bad end of one that includes psychologist/patient, officer/soldier, and student/teacher sex. In each case, it is the role that matters. In fact, student/teacher sex, between adults, really isn’t that bad, with risks to the student deserving perhaps a bit more caution on the teacher’s side. But see how this judgment depends upon the facts surrounding how the student/teacher relationship is actually constituted? Were kids generally shipped off to a boarding school where they stayed from 6th grade to their BA, were teachers still to have a 19th century level of power over their charges, laws against sexual relations between adult students and teachers might be appropriate. Were kids grown in bottles and raised in dorms, a la Huxley, then incest, defined genetically, would be cause for little more than caution when it came to having kids. (The crèche director though…) We’re already there to some extent, as I alluded to with the sperm donor’s kids. If by some unhappy miracle someone unknowingly ends up in bed with their father by sperm bank, then prosecution would be unwarranted. But for parents, children, and siblings as currently defined, incest law is well justified. Prof. Epstein violated his duties as a father, those defined in law and well known, and deserves to be prosecuted.

4:31 PM  
Blogger Winston Smith said...

Well, I think I now understand your position better, but it still seems fairly clear to me that this is a weak argument--not weightless, by any stretch of the imagination, but probably not capable of supporting the weight you (and the state) want it to bear. I'm a little surprised that you don't recognize this. The "role-crossing" argument is very tenuous, speculative and non-standard.

Of course consequences and specifics often matter--and nobody here has suggested that all such questions could or should be answered by leaning on rights very abstractly conceived of and conceptual analysis of types of action. But I didn't suggest otherwise.

As for whether family relationships ground special *moral* obligations, and whether such obligations outlive the minority of the children...well, that's something I have very serious doubts about. As for the law...well, part of what's at issue here is obviously the relationship between the law and morality.

Perhaps we can agree on the following point: there is no *absolute* moral prohibition against incest. Specifically, incest among consenting adults (say, adult siblings, even those who grew up living as brother and sister). But, if so, the legal case is revealed to be rather difficult to sustain.

You claim that we can't show incest to be coercive by conceptual necessity...but then to on to say that, given the way people actually are, such relationships are likely to be coercive. But course I'd not claim otherwise; that's a Red Herring. My position is clearly that, while such relationships are probably often coercive, they aren't always. The rational way to deal with the problem (note: there isn't one--these cases are very rare), then, is case-by-case. If coercion can be shown, then it should be prosecuted; if not, not. That's the standard way to approach such cases. Guilt by generalization--not a good idea.

This is the way similar cases are treated. It's common for there to be systems in which, if, say, an employee and a manager strike up a romantic relationship, they file paperwork, the manager's manager makes sure there's no coercion, and that's that.

At the very least, in such cases, charges should be dropped if consent can by proven.

11:26 AM  
Blogger Winston Smith said...

tl;dr:
We already have laws against non-consensual sex.

11:32 AM  
Anonymous Anonymous said...

Winston, I’ll take one more shot at this. Can’t help it.

I think we would agree on these points: One, the probability that an incestuous relationship is coercive is much higher than the probability that a non-incestuous sexual relationship is coercive. [P(C|I) >> P(C|I’)? I don’t know, but it looks good.] Two, coercive sex should be outlawed, and the state is failing in its duty if it fails to offer credible protection to its citizens from coercive sex. Three, proving consent or its lack is hard in most cases, and super hard where some factor or another diminishes the probative value of normal consent signals. Four, incestuous relationships involve social and psychological factors, stemming from the family roles, that diminish the probative value of normal consent signals. Five, obeying laws against incest are not generally very burdensome.

You say prosecute these cases as sexual assault on a case by case basis. But think for a moment just how enormously difficult that will be. Say the professor’s daughter claims that she felt unable to say no to her father, because he was her father. Certainly what she would claim is psychologically plausible, but how on earth can one whether its really true? The certainty achievable in such a case could never rise to the level of overcoming reasonable doubt, so as a practical matter taking these cases one by one means allowing a whole class of assault which we know is there but is hard to detect piecemeal. The victims of such crimes would be left without recourse. Persons susceptible to the kind of coercion that a parent can work on an (adult) child are left unprotected. The state can protect them from real, severe violations of their rights by banning the whole class of acts where coercion is likely but also difficult to distinguish from the minority of non-coercive cases. They can do so without burdening people unduly, since avoiding incestuous relationships is not generally difficult.

Sex with the grossly intoxicated is illegal. So too is sex between psychologist and patient, or between an adult and a 13 year old. In none of these cases is consent in principle impossible, but it’s both unlikely and difficult to tell the consenting from non-consenting cases. The co-worker case you cite is both less likely to be coercive and easier to distinguish based on things like that form. Like the student teacher case, one can compensate for the increased risk by being more diligent in seeking consent. In these other cases, the factors gumming up the usual consent signals make this response inapplicable.

So, asks our inner Mill, whom do we harm by engaging in a genuinely consensual incestuous relationship? Answer: All the coerced parties that, if are unpunished for our act, will be more likely to have their victimizers get away with theirs. There are burdens associated with the epistemic limits of the legal system, and banning acts that are both likely to victimous and epistemically murky keeps these burdens from falling unfairly on a few.

3:11 PM  

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