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Friday, 10 May 2013

Pedophilia, Preemptive Imprisonment, and the Ethics of Predisposition

The first two weeks of 2013 were marked by a flurry of news articles considering “the new science” of pedophilia. Alan Zarembo’s article for the Los Angeles Times focused on the increasing consensus among researchers that pedophilia is a biological predisposition similar to heterosexuality or homosexuality. Rachel Aviv’s piece for The New Yorker shed light upon the practice of ‘civil commitment’ in the US, a process by which inmates may be kept in jail past their release date if a panel decides that they are at risk of molesting a child (even if there is no evidence that they have in the past). The Guardian’s Jon Henley quoted sources suggesting that perhaps some pedophilic relationships aren’t all that harmful after all. And Rush Limbaugh chimed in comparing the ‘normalization’ of pedophilia to the historical increase in the acceptance of homosexuality, suggesting that recognizing pedophilia as a sexual orientation would be tantamount to condoning child molestation.

So what does it all mean? While most people I talked to in the wake of these stories (I include myself) were fascinated by the novel scientific evidence and the compelling profiles of self-described pedophiles presented in these articles, we all seemed to have a difficult time wrapping our minds around the ethical considerations at play. Why does it matter for our moral appraisal of pedophiles whether pedophilia is innate or acquired? Is it wrong to imprison someone for a terrible crime that they have not yet committed but are at a “high risk” of committing in the future? And if we say that we can’t “blame” pedophiles for their attraction to children because it is not their “fault” – they were “born this way” – is it problematic to condemn individuals for acting upon these (and other harmful) desires if it can be shown that poor impulse control is similarly genetically predisposed? While I don’t get around to fully answering most of these questions in the following post, my aim is to tease out the highly interrelated issues underlying these questions with the goal of working towards a framework by which the moral landscape of pedophilia can be understood.


Sexual Orientation?

A good place to start seems to be to try to understand the controversy over whether or not pedophilia should be defined as a sexual orientation akin to heterosexuality and homosexuality. In other words, why does it matter how we label it?
In his LA Times article, Zarembo notes:
Like many forms of sexual deviance, pedophilia once was thought to stem from psychological influences early in life. Now, many experts view it as a sexual orientation as immutable as heterosexuality or homosexuality. It is a deep-rooted predisposition — limited almost entirely to men — that becomes clear during puberty and does not change.[1]
Like many, Zarembo implicitly links sexual orientation and immutability; pedophilia, this argument goes, ought to be seen as a sexual orientation precisely because it is unchangeable. It’s far from clear, however, how this would alter our understanding of the morality of being sexually attracted to children. Presumably, if pedophilia were based on childhood experiences, we might attempt more early childhood interventions but it wouldn’t make sense to blame pedophiles for their early environment and upbringing any more than for their biological predisposition: either way it is out of their control. I’ll talk more about these interconnected notions of control, fault, and blame at the end of this post.

Rush Limbaugh and some members of the religious right have argued that recognizing pedophilia as a sexual orientation will have the same result as the relatively recent recognition of homosexuality as a sexual orientation: it will become more acceptable to act upon those sexual desires. This logic seems obviously confused. The reason we think that homosexual intercourse is morally acceptable (and was before society “recognized” it as so) seems primarily to do with the understanding that it is a consensual act, not because it follows from an innate orientation rather than an acquired desire. Similarly, it would be strange to say that we think having sex with a child is wrong because pedophilia is an acquired rather than an innate attraction; we think it is wrong because children are not capable of consenting to sex due largely to their underdeveloped reasoning and decision-making capacities. (This at least partially seems to explain why you might have more trouble judging the actions of an adult who has sex with a 17-year-old than an adult who has sex with an 8-year-old; a 17-year-old hovers around the point at which we think he can make this decision for himself.) Having sex with a child, then, will be wrong regardless of whether the underlying attraction is deeply-rooted in the offender’s biology.

Thus recognizing as a society that certain individuals are intrinsically attracted to children need not and does not imply that we condone acting upon these desires. What it does imply is that attempting to alter such individuals’ desires is like telling a heterosexual man to stop being attracted to women; it won’t be very productive. It implies that a better method for preventing child molestation is focusing on behavior – both by getting pedophiles to empathize with the physical and psychological harm a child would experience if molested and by helping them to identify and exercise control over those types of situations in which their desires are most pronounced.[2]

Risk and Guilt

Even among those who agree that pedophilia is best characterized as a sexual orientation, there is still much disagreement over what society ought to do about identified pedophiles who have not molested a child in any way. This was the motivating question behind Rachel Aviv’s article for The New Yorker. In it, she profiles “John,” a middle-aged American who was sentenced to four and a half years in federal prison for possession of child pornography and attempting to persuade a minor he met in an online chatroom to have sex (the minor was actually an undercover FBI agent). Although he admitted to being a pedophile, he had never molested a child.

Yet a 2006 federal statute, the Adam Walsh Child Protection and Safety Act, allows a Certification Review Panel to detain inmates indefinitely past their release dates if it determines that an inmate is “sexually dangerous” and seriously at risk of molesting a child if released.[3] In John’s case, as has apparently become common, this decision was made based on the testimony of a psychologist who used an actuarial assessment instrument called the Static-99. She determined that John was in the “high risk” category based on the 10-question instrument, which includes risk factors like whether he had “ever lived with [a] lover for at least two years,” whether he had any non-sexual violent convictions, the number of both charges and convictions of prior sex offences, and certain characteristics of victims.

Deeming him a significant threat if released, the Panel decided to hold John past his release date. It wasn’t until four years later that he was able to challenge this decision in trial. At this trial, the judge confirmed the Panel’s decision and sentenced John to “therapeutic confinement” until a time at which he is no longer considered “sexually dangerous.” Again, this judgment relied heavily upon the testimony of the prosecution’s forensic psychologist that John had “roughly a 24.7-per-cent chance of reoffending within five years” using her scaling of the Static-99.[4]

There appear to be two separate questions or concerns one might have after reading this account. First, how accurate are actuarial instruments like the Static-99? In other words, how likely is it on average that individuals given a 40 percent chance of reoffending will reoffend, for example, 38-42 percent of the time? Second, even if we are convinced that the Static-99 is reliable enough to justify the serious consideration of its estimates, is being at a “higher risk” of molesting a child than the average citizen ever sufficient evidence to preemptively imprison someone for a crime he has not yet committed? We have a strong belief that individuals ought to be considered innocent until proven guilty – proven guilty beyond a reasonable doubt in criminal cases – which is perhaps why John’s case is so shocking to many of Aviv’s readers.

But maybe we just think that a 1 in 4 chance of reoffending sets the bar too low for preemptive imprisonment.  What if we could predict – yes or no – whether an individual would molest a child and be accurate 99 percent of the time? Would we be justified in imprisoning these individuals to prevent them from committing this crime? Or would that tenth of a percent constitute reasonable doubt that any given individual will commit the crime? Can the standard of reasonable doubt even apply when the crime in question has not yet been committed?

These questions might feel familiar if you’ve ever seen Steven Spielberg’s Minority Report, a sci-fi film in which Tom Cruise plays an agent of the ‘PreCrime Department,’ which prevents crime using the premonitions of psychic ‘precogs.’ In the Minority Report scenario, the justification for arresting a child molester-to-be seems to lie on the understanding that the precogs’ premonitions are completely infallible. And this seems right; if we could say with 100 percent accuracy that someone would commit a terrible crime, we would be justified in imprisoning him. But the gap, however small, between 99 percent and 100 percent seems to be precisely the problem.

Determinists might think that in the future or at least hypothetically we could identify criminals with perfect accuracy; we just don’t have enough information to do it now. But those who believe in free will would reject the possibility of 100 percent accuracy altogether on the belief that the sum total of an individual’s genes, upbringing, and environment and prior states of affairs cannot infallibly predict what he will do in any given situation. And that seems to be the crux of the problem: if there is a chance, however small, that an inmate will choose to “do the right thing” if we release him after he has served his time for all prior and actual offences, it seems a terrible injustice to imprison him for years more.[5]

Predisposition and Impulse Control

In this final section, I’d like to return as promised to the earlier point concerning the moral implications of recognizing pedophilia as an immutable sexual orientation. In an attempt to convince self-identified pedophiles to seek help controlling their behavior, 2005 advertisements in Germany read, “You are not guilty because of your sexual desire, but you are responsible for your sexual behavior.”[6] Similarly, James Cantor, the oft-cited researcher in recent news stories whose work suggests the biological component of pedophilia, has said, “Not being able to choose your sexual interests doesn’t mean you can’t choose what you do.”[7] And perhaps the strongest take-away from this host of articles is that we cannot equate “pedophile” with “child molester.” All these claims suggest that just because individuals like John are attracted to children or have a history of possessing child pornography does not mean that they will actually act upon these desires.
Contained within the first half of this type of argument is the occasionally explicit but almost always implicit suggestion that because pedophiles don’t “choose” to be attracted to children, because they are “born that way,” or because “it’s in their genes,” we ought not blame or fault them for what most people consider to be an appalling desire. This strikes many people as right – we can’t blame people for what they can’t control. The second half of the argument seems to be the other side of that equation – we can blame people for what they can control. Although pedophiles can’t choose their desires, they can choose not to act upon them and it is this behavior for which we can hold them “responsible.”

But what if future studies show that impulse control has a more significant genetic component than we currently think it does? What if some individuals have a significantly greater difficulty suppressing behavior based upon harmful desires? Such individuals did not “choose” to have below average impulse control. Some might even express overwhelming grief at not being better able to control their behavior; they might spend years attempting to master it to no avail. Do we still “blame” them, is it still their “fault,” are they still “guilty,” if they fail to suppress their desires and instead act upon them? (Note that this impulse control problem applies to all desires that would have harmful consequence if acted upon; it has no special relationship to pedophilia.)

We would, it seems, be justified in imprisoning or institutionalizing them for such an act to prevent them from harming others. But the other justifications for punishment – retribution, rehabilitation, and deterrence – seem not to apply very well. By definition, a prison sentence couldn’t deter an individual from doing something he can’t stop himself from doing and rehabilitation could not change an immutable characteristic. Retribution would be even more problematically incoherent. We believe that a man must be able to do what he ought to do; we could not condemn a man for doing something that we believe he cannot choose not to do.
This of course returns us to the free will/determinism debate.

Perhaps our entire understanding of crime and justice rests upon a belief that when we do bad things we could always have chosen to do otherwise. Thus this hypothetical might be the point at which arguments about fairness cease to make sense in our current moral framework: some people will do bad things because they were unluckily born less able to control their impulses than others, but this is simply what we mean when we talk about “fault” and “responsibility.”

That took us quite far from our original topic of pedophilia. But hopefully it suggests the implications of this post beyond the issue of pedophilia. Research will continue to identify new genetic components of human qualities and traits and our actuarial instruments will become better at predicting human behavior. Now is a good time to begin thinking about how such advancements will fit within our everyday systems of criminal justice and common morality – and whether and which discoveries would require serious adjustments to the framework of either of these two systems.

Friday, 8 February 2013

Type A: The Insidiously Homophobic Arguments

1. “We need to protect marriage.”
The word “protect” implies that gay people are a threat to the institution of marriage. To imply that including same-sex couples within the definition of marriage will somehow be detrimental or even destructive for the institution is to suggest gay people must be inherently poisonous. It also implies a nefarious gay mafia that is out to wreck marriage for straight people. Naturally if such a mafia existed I would be bound by a code of honour to deny its existence. However, it doesn’t exist.
2. “We must preserve traditional marriage.”
Given that marriage has always changed to suit the culture of the time and place, I would refrain from ever calling it “traditional”. If marriage was truly traditional, interracial couples would not be allowed to wed, one could marry a child, ceremonies would be arranged by parents to share familial wealth and the Church of England would still be under the authority of the Pope.
3. “Marriage is a sacred institution.”
The word “sacred” suggests marriage is a solely religious institution. The Office for National Statistics shows how civil, non-religious marriage made up 68 per cent of all marriages in the UK during 2010. Let us not forget matrimony existed long before Jehovah was even a word you weren’t allowed to say.
4. “Marriage has always been a bond between one man and one woman.”
This declaration ignores the legally married gay couples in Canada, Spain, Portugal, Argentina, Denmark, Sweden, Norway, Iceland, Belgium, Netherlands, and South Africa. It conveniently forgets the 48 countries where polygamy is still practised. It also omits from history the married gay couples of ancient China and Rome, Mormon polygamy, and the ancient Egyptians who could marry their sisters. The assertion is obviously false.
5. “Gay marriage will confuse gender roles.”
This hinges on the idea that gender roles are or should be fixed, as dictated by scripture, most often cited for the sake of healthy child development. The love and care homosexual couples routinely provide children are, it would seem, irrelevant. Perhaps it would help to reiterate that gay people are not confused about gender, they are just gay. It is the churches who are deeply confused about gender and sexuality. I would ask them to stop focusing on my genitals, and start paying attention to my humanity.
6. “Gay marriage will confuse the terms ‘husband’ and ‘wife’, or ‘mother and ‘father’.”
Another form of the previous argument. It is not hard but I’ll say it slowly just in case … married men will refer to themselves … as “husbands”, and married women will refer to themselves … as “wives”. Male parents will be “fathers” and female parents will both be “mothers”. Not so confusing really.
7. “Gay people cannot have children and so should not be allowed to marry.”
The Archbishop of York John Sentamu used a barely disguised version of this argument in a piece for the Guardian when he referred to “the complementary nature of men and women”. He is insinuating, of course, that homosexual relationships are not complementary by nature because they cannot produce offspring, and therefore they are unnatural and undeserving of the word “marriage”.
May I refer him to the elderly or infertile straight couples who cannot produce children? If a complementary relationship hinges on procreative sex, are these relationships unnatural? Should they be allowed to marry?
8. “But studies have shown heterosexual parents are better for children.”
No, they have not. Dozens of studies have shown gay people to be entirely capable of raising children. While it is true that many reputable studies have shown two-parent families tend to be most beneficial, the gender of the parents has never been shown to matter.
The studies cited by actively homophobic organisations like the Coalition for Marriage were funded by anti-gay organisations, or have basic methodology flaws – for example, they would compare married straight couples with un-wed gay couples, or they would take a person who may have had a single curious experience with the same sex and define them as exclusively homosexual. Sometimes, the even more disingenuous will reference studies [PDF] which do not even acknowledge gay parents. Same-sex parents are simply presumed by biased researchers to be equivalent to single parents and step-parents, and therefore use the data interchangeably, which as anyone with an ounce of scientific literacy knows is not the way such studies work.
Arguments based on “traditional family” will always be insulting, not just to the healthy, well-adjusted children of gay couples, but to the children raised by single parents, step-parents, grandparents, godparents, foster parents, and siblings.
9. “No one has the right to redefine marriage.”
Tell that to Henry VIII. When marriage is a civil, legal institution of the state, the citizenship has a right to redefine marriage in accordance with established equality laws.
10. “The minority should not have the right to dictate to the majority.”
Asking to be included within marriage laws is certainly not equivalent to imposing gay marriage on the majority. No single straight person’s marriage will be affected by letting gay people marry.
Another form of the above argument is “Why should we bother changing the law just to cater to 4% of the population?” By this logic, what reason is there to provide any minority equal civil rights?
11. “Public opinion polls show most people are against gay marriage.”
A petition by the Coalition for Marriage claimed to have 600,000 signatures in opposition to gay marriage in the UK. It should come as no surprise that the directors of the organisation are religious and manipulation of the results was easy. A single person could submit their signature online multiple times providing they used different email addresses (which were not verified). Programs that allow for anonymity of IP addresses also enabled anyone around the world to add their signature.
The majority of UK polls demonstrate a majority in favour of gay marriage. These include a 2004 Gallup poll, a 2008 ICM Research poll, a 2009 Populus poll, a 2010 Angus Reid poll, a 2010 Scottish Social Attitudes survey, a 2011 Angus Reid Public Opinion survey, and a 2012 YouGov survey.
Even if most people were against gay marriage, which polls consistently show is not the case, majority will is no justification for the exclusion of a minority.
12. “Why is it so important for gay people to have marriage?”
For the same reason it is important to straight people. Our relationships are just as loving and valid as heterosexual relationships, but our current marriage laws suggest it is not. We are equally human and we should be treated by the law as such.
13. “Why do gay people have to get society’s approval?”
To turn the argument on its head, one simply has to ask why society feels the need to segregate our rights from those of heterosexuals. It has nothing to do with approval, and has everything to do with equality.
14. “There are two sides to the argument. Why can’t we compromise?”
Should women have compromised their right to vote? One does not compromise equal rights otherwise they are not equal rights.
15. “Gay people in the UK already have civil partnerships which provide all the same rights as marriage.”
Civil partnerships were born out of politicians pandering to homophobia. A step in the right direction, perhaps, but they are a separate form of recognition that reaffirmed society’s wish to keep homosexuals at arm’s length should we somehow “diminish” true marriage.

Type B: The Arguments That Don’t Even Bother to Hide Their Homophobia

While we must look closely to spot the homophobia inherent in some arguments against gay marriage, with others the prejudice is barely disguised at all.
16. “I am concerned about the impact gay marriage will have on society/schools.”
There is no concern here, only prejudice. We can conclude this because there is absolutely no evidence to suggest gay marriage will harm society. Have the 11 countries where gay marriage is legal crumbled yet? Ultimately the argument turns out to be hyperbolic nonsense designed to instil confusion, fear, and mistrust of gay people.
17. “Gay marriage is immoral.”
If there is something immoral about legally acknowledging the love between two consenting adults, it would help the argument to state precisely what that is. “God says so” is not an argument. And this article, Cardinal Keith O’Brien, is the real “grotesque subversion of a universally accepted human right”.
18. “Gay people should not be allowed to marry because they are more likely to be promiscuous.”
This claim is based on the degrading preconception that gay people do not feel true love and just have sex with as many people as possible. It is also beside the point - straight couples are not precluded from marriage on the basis they may be unfaithful, so why should gay people?
19. “I love my best friend, my brother and my dog. That does not mean we should have the right to marry.”
Thank you for reducing the love I have for my long-term partner to friendship, incest or bestiality. May also take the form: “The state should not be blessing every sexual union.”Thank you, again, for reducing my long-term, loving relationship to just sex.

Type C: The Really Silly Homophobic Arguments

20. “God made Adam and Eve, not Adam and Steve.”
Clearly not a Biology graduate.
21. “If everybody was gay, mankind would cease to exist.”
Ignoring the fact not everyone is gay, and also ignoring the fact gay people can and do have children through donors and surrogates, I actually quite enjoyed the apocalyptic images this argument conjured.
22. “Gay rights are fashionable right now.”
The Suffragettes famously marched together because they needed an excuse to compare clothing. Civil rights activists looked fabulous with hoses and guns turned on them. Nooses around gay Iranian necks are totally “in” right now. We are all mere lambs of our Queen Gaga.
People actually use this argument.
23. “The only people who want gay marriage are the liberal elites.”
If this was really true, how come hundreds of everyday gay people protest outside anti-gay marriage rallies? How come thousands of people voice their support for gay marriage in polls? I do not imagine there are many people who believe they deserve fewer rights or who desire to be second-class citizens.
24. “Gay people do not even want marriage.”
Yes, Ann Widdecombe, we do. We do not appreciate you mischaracterising what millions of us do and do not want, and squaring reality to fit your Catholic bigotry.
25. “Gay people can already get married – to people of the opposite gender.”
This is Michele Bachmann’s demented logic. Yes, gay people can already get married … to people of the opposite gender. No, they are not allowed to marry the people they actually love. This is not just bigotry, it’s also stupidity.
26. “There will be drastic consequences for society if we accept gay marriage.”
Person A: “Have you been to Canada lately? They have free health care, they play hockey, and they’re very peaceful and polite.”
Person B: “That sounds nice.”
Person A: “They have gay marriage too.”
Person B: “Sounds like Sodom and Gomorrah.”
27. “Gay marriage will cause the disestablishment of the church.”
Or to put it another way: “If you don’t stop all this silly talk, we will be forced to go away and leave you in peace.” Scary!
28. “Gay marriage will lead to polygamy/bestiality/paedophilia/etc.”
The truth is that the legalisation of gay marriage will lead to the legalisation of gay marriage. Dire warnings of slippery slopes are scaremongering. In the countries that have so far legalised same-sex marriage, courts have always rejected calls for the legalisation of polygamy.
29. “Gay marriage caused the end of the Roman Empire/September 11th/etc.”
The Roman Empire disintegrated as barbarians from the north overwhelmed them, forcing the last Roman emperor, Romulus Augustus, to abdicate to the Germanic warlord Odoacer. This had nothing to do with homosexuality.
The attacks on the World Trade Center were orchestrated by Al-Qaeda, an extremist Muslim group that detests America. The gay mafia was not involved.
30. “You are too emotionally involved to make a rational argument.”
Of course I’m angry. Wouldn’t you be if you had to listen to arguments like these? I’m passionate about achieving equality and combating prejudice. But, as everyone should know, passion and reason are complementary.
31. “We are in an economic crisis, so we should not be wasting time on gay marriage.”
Is it too much to wish for politicians who can multi-task? And for leaders who don’t consider equality a luxury add on?

Conclusion

In an attempt to portray his campaign to “preserve traditional marriage” as reasoned and unprejudiced, the former Archbishop of Canterbury Lord Carey has argued that supporters of gay marriage shouldn’t resort to name-calling and accusations of bigotry. But then he is a homophobe and a bigot. There is not a single one of his arguments that does not imply the lesser state of homosexuals, or serve to justify the discrimination.
In fact the recent government proposals are only for the legalisation of civil same-sex marriage, and do not allow for ceremonies to be conducted on religious sites. It is an entirely secular proposal, yet Carey and various churches and church-goers are keen to make the civil rights of homosexuals their business. Given centuries of religious persecution of gay people it is entirely justified to call Lord Carey, the Coalition for Marriage, Christian Concern, and all other proactive opponents of gay marriage “bigots” and their arguments homophobic.