Posts Tagged ‘sociology’

Q&A Roundup Part 2

Friday, September 18th, 2015

I’m writing a response to an essay on “consent as a felt sense” and looking for a deeper explanation of mens rea and the reason why it ought form the basis for not just a legal system, but for the social norms of a community. I know there is some good discussion in the Elonis v. US case, but who are some good sources to read that really lay out the reason why we should (or should not) examine an actors mindset when judging culpability?

Mens rea isn’t really the basis of our legal system, nor is it really the basis of social norms. Mens rea is the legal term for the mental state that makes an act punishable by the state. If I accidentally tripped on a crack in the sidewalk and fell on you, bruising your arm, yes I caused injury to you, but because I had no culpable mental state – no mens rea – that’s not an injury the law wants to punish me for. Whereas if I intentionally whacked you on the arm and bruised it, the state could send me to jail. Same act, same harm, but only punishable because I was trying to harm you.

That’s a very small subset of the law. Mens rea doesn’t come up much in, say, corporate law or contracts or wills or real estate, etc. There may be some question of what parties intended or meant to do, but that’s not the same analysis as whether (or to what degree) they were being evil.

Mens rea doesn’t underlie social norms, either, but is instead a way of looking at why they were broken. It’s the difference between merely being rude or awkward and criminal stalking or harassment. It’s the difference between an accidental killing and murder one. The social norm would be what is or is not done, whereas mens rea is how purposefully you violated it.

Rather than mens rea forming a basis for “just a legal system,” it is instead a basis of “a just legal system,” ensuring that we only punish those who deserve it, who chose to break the rules. Injustice often arises when we punish without caring about mens rea. (See my chapter on strict liability, “Guilt without Fault,” for example.)

As for “consent as a felt sense,” be careful discussing it in the same breath as the law. That phrase is an attempt to redefine “consent” to mean something else. The law is very clear about what consent means.

“Consent” means voluntarily agreeing (or acquiescing) to something, so that it can now happen. If you ask me if you can borrow my bicycle, and I say yes, then I consented to you borrowing my bicycle. Even if while riding my bike you hit a pedestrian, and oh my god if I’d known you were going to do that I’d never have said yes, it doesn’t change the fact that I let you do it. The future doesn’t change the fact that I gave consent now. By the same token, if you steal my bicycle and later ask me if it was okay, even if I say yes I still did not consent to you taking it in the first place. You still committed theft. The fact that I’m okay with it now doesn’t change the past. That’s ratification or something like that, not consent.

“Consent as a felt sense” is really the opposite. It’s a way of saying consent works backwards in time, rather than forwards. It lets me “take back” my consent to you riding my bike, after I find out you later hit a pedestrian. If it was internally consistent, it would let my later acquiescence convert your crime of theft into a non-criminal borrowing, after the fact. The law doesn’t work like that.

It usually comes up in the context of rape – specifically wanting to call consensual sex nonconsensual rape, if afterwards one of the participants feels like he/she wouldn’t have agreed to it if they knew how they’d feel about it now. In other words, “taking back” one’s consent because they regret what they consented to. The law doesn’t work that way, but those who speak of “consent as a felt sense” tend to say “so what,” and say we shouldn’t be so concerned with whether the rules were obeyed at the time as with how people felt afterwards.

The problem in that world – and it’s a big one – is that mens rea is irrelevant. Who cares whether you were trying to do anything wrong or whether you were trying to do the right thing. The important thing isn’t your culpability then, but my feelings now. In that world, you could be punished even though you did everything right, and did nothing wrong. It embodies all the injustice of strict liability crimes, with all the unpredictability of a world without rule of law, where nobody knows what they might go to jail for or why. Can you imagine what kind of a hell that would be?

This is why lawyers – especially criminal lawyers – are super leery of this kind of sociological definition-changing. Utopians tend to make misery. Especially when they don’t understand the law and why it is the way it is.

Another reader’s response: I’m clearly not as experienced as lawyer as this guy (two thirds of a 1L criminal law class woo!), but I thought I’d share my two cents.

I think the above lawyer’s analysis fails in regarding consent as something that is given once, rather than a continuous process.  It is not precisely analogous to the bike-giving example because that’s a bailment created for a limited duration of time; meanwhile, in order for an act to be truly consensual there must be consent at each individual action that occurs, and at each moment.  To clear up some possible strawmen, I’m pretty sure that the above lawyer thinks that people can verbally revoke consent in the middle of a sex act.  Conversely, I don’t mean that explicit verbal consent must be gotten every time e.g. someone goes from touching one body part to another.

I think the “consent as a felt sense” can be better understood to modify the actus reus of rape, rather than the mens rea.  Rape is then redefined as “any sexual act done without the subjective experience of consent with another person.”  I think this is the proper definition, since it focuses the crime on where the harm actually occurs; e.g. inside the mind of the person being victimized.  Of course, in order to be morally culpable, much less criminally answerable, there must also be a mens rea; was someone intentionally, knowingly, recklessly, or negligently violating someone’s subjective experience of consent?  Or did they have no way of knowing?  Obviously if someone has no clue that consent was no longer experienced, and had no way of knowing it, they’re not culpable.

So far this looks pretty similar to today’s rape law, but I’d like to bring in an example from my own life to illustrate.  When I was 17, I engaged in my first relationship with a 39-year old man.  Things proceeded pretty quickly, and we started having sex.  When we finally got there, I was clearly distressed; I was shaking, not just trembling, and drenched in sweat that went beyond normal sexual aerobics.  My voice caught in my throat.  I think it’s far to characterize that situation as one where the subjective experience of consent was no longer there, but I also did not have the means to verbalize that to my partner.  My partner, to his credit, stopped what he was doing, we had a discussion, and two weeks and a couple drinks later I had the best experience of my life.

But was it simply to my partner’s credit?  I think what the people who define consent as a felt experience would say that it’s not.  It’s the bare minimum of morally acceptable behavior.  Even if I had given verbal consent prior, anyone who would continue having sex with someone who is clearly in distress merely because they met the empty formalism of rape law is morally culpable.

Spreading the idea of consent as a felt experience, or encoding it into law, is about crystallizing that insight.  Torts law is often about placing the burden of preventing harm on those who are in the best position to be able to do so (to be fair, I got this from my heavily law-and-economics torts professor, so I have no idea if this is the mainstream view).  Surely that’s the person who lost felt consent, since they can verbalize it, but the initiator is also in a position to minimize harm by stopping if they think felt consent has been lost.  It makes sense to incentivize people to stop if they have reason to believe consent is no longer present.

Rape law, and current mores around rape, would say that what my boyfriend did was not obligatory.  I think it is, which is why I want to spread the idea of consent as a felt experience.

You raise a couple of really intriguing points.

The first is the concept of consent as a continuous process. There are at least two excellent classroom discussions to get out of that. First would be whether it’s actually a continuing process. If you have happily consented to have sex with your boyfriend, must you really consent to each tickle, touch, or thrust before it can take place, or have you actually consented to the experience as a whole, however it may unfold? I suspect that the common understanding is the latter, rather than the former – in which case, if your understanding is the former, it might behoove you to so inform your partner, lest there be any unfortunate misunderstandings that ruin your experience or his life.

Still on that first point, another excellent discussion could be whether, and at what point, such consent is revocable. Is it a hard-and-fast rule that, no matter when, the moment you withdraw consent any further continuation of the act is rape? Or is there more of a continuum? Take these three situations: (a) You say “let’s go to bed” and you partner eagerly agrees, but before anyone’s jeans are off you change your mind and say not tonight. (b) You’ve been happily having intercourse, well past the penetration stage, and while he’s going hot and heavy you remember something he did that upset you, you immediately lose interest in continuing and tell him to stop, but he doesn’t stop immediately so you push him off. © You had sex and it was great. Now it’s the next day and you feel really bad that you had sex. Maybe he turned out to be a jerk in the morning, or whatever. The point is you no longer want it to have happened. The question would be, do all three of those acts count as revocation of consent, do only (a) and (b) count, or does only (a) count, and why? The trick with these discussions, of course, is to dig down to the underlying principles behind people’s different positions, to ensure that people aren’t talking past each other despite using the same language.

The second intriguing point you raise is when you say you think it is obligatory for sex partners to do what your boyfriend did. You were exceedingly nervous at the prospect of losing your virginity, but never made it known that you didn’t want to go through with it. Your partner picked up on the fact that this wasn’t very enjoyable for you, and had the good grace to wait until you were more comfortable with it. You would make mandatory his ability to distinguish your distress from the normal apprehension and excitement that accompany many first forays into sex. You would make mandatory his ability to correctly interpret your internal feelings when you have not communicated them. You would make mandatory the gentility and wisdom of an experienced, middle-aged man, and impose them on every 17-year-old trying sex himself for the first time, possibly as distressed as you were.

And to be clear, you’re saying that anyone who gets it wrong, anyone who mis-reads the cues, anyone who isn’t as sensitive or mature as this ideal, should have his future taken away, should be branded a felon, should be imprisoned, should be registered as a sex offender and despised for the rest of his life, denied the opportunity for most education, employment, social involvement, and relegated to an underclass of citizens we like to pretend don’t exist. Because that’s what happens when you make this stuff obligatory.

Hey, maybe that’s exactly what you want. Maybe it isn’t. Don’t let me put words in your mouth. But as someone who’s defended both men wrongfully accused of sex crimes and women charged with making false accusations, I’d caution anybody urging such mandates to be very clear on the outcome they desire. Good intentions, and all that.

“More Law?” – Pure Sociology Gets It Wrong

Monday, November 28th, 2011

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the (more…)