Peter Singer and the Sexual Abuse of the Cognitively Impaired

Ethicists Peter Singer (Princeton and Melbourne Uni) and Jeff McMahan (Oxford Uni) have co-written an article in the New York Times raising questions about the culpability of a woman recently convicted of sexually assaulting an intellectually disabled man.

Peter Singer is the famous Australian ethicists well-known for his work on animal rights, environmental ethics, as well as contending for the permissibility of euthanizing infants with disabilities. For obvious reasons, many disability advocates like the late Stella Young hold grave reservations about Singer’s views about disability and the right to life.

Singer enters into controversy again by teaming up with Jeff McMahan to offer mitigating reasons in the recent sentencing of Anna Stubblefield, a former professor of ethics at Rutgers University, who was found guilty in October 2015 of two counts of aggravated sexual assault on a 30 year old man with severe cerebral palsy known to the court as DJ.

Singer and McMahan focus on Stubblefield’s claim that she was able to communicate with DJ through a controversial method called “facilitated communication” where a carer assists a disabled person to communicate by holding their arms or hands as he or she types messages on a key board. Through facilitated communication, Stubblefield believed that she and DJ were in love and had entered into a consensual sexual relationship. She was the one who informed DJ’s mother and brother about the relationship. There was also additional evidence from an expert witness who spent considerable time with DJ that he could communicate given certain strategies, but the judge would not allow the expert’s testimony to be heard in court since he determined the expert to have assisted DJ in communicating to some degree.

Singer and McMahan contend that Stubblefield, even if she was mistaken in her ability to communicate with DJ, acted out of sincere and genuine motives, there is no evidence of harm, so it did not warrant a twelve-year jail sentence compared to the sentences given for other sexual offences of a more brutal nature.

What is troubling is how Singer and McMahan imply that the sexual assault of a person with cognitive impairment is mitigated by the disabled person’s inability to grasp the concept of consent. They do not deny that in this particular instance that DJ might have been wronged, but if there is an absence of cognitive grasp of consent, it is “less clear what the nature of the wrong might be.” In other words, is an act of sexual violence mitigated if the victim does not know that they are being violated?

In addition, Singer and McMahan think it “reasonable to assume that the experience was pleasurable to him.” But why? They can only infer this from his failure to actively resist. However, the experience might just as well have been confusing or fearful and DJ’s reasons for not resisting could simply be that he trusted Stubblefield. If DJ cannot communicate effectively the fact is we do not know how he felt at the time or how he feels about the incident now, so no presumption of consent or pleasure should be made in the absence of empirical evidence which indicates it to be so.

I think Singer and McMahan raise valid points about the complexity of consent for the intellectually disabled and establish that Stubblefield’s sentence was disproportionate to the nature of her offence.

What they fail to acknowledge is that the Stubblefield’s claims to have communicated with DJ through facilitated communication is dubious because facilitated communication has been convincingly debunked by the American Psychological Association. So the bedrock of her defence to have communicated with DJ is in the least very dubious.

Furthermore, what is genuinely alarming is that Singer and McMahan provide grounds for mitigating the sexual assault of the cognitively impaired based on their inability to comprehend the concept of consent and they make a presumption of pleasure based on the absence of active resistance. In other words, in the case of a sexual assault on someone intellectually disabled, the offence is not necessarily as severe as it would be for a person who does comprehend consent, and in the absence of evidence for actual resistance, the burden of proof rests on proving that the disabled person did not enjoy the sexual act.

These are controversial claims, one’s that make me nervous, which is why I would like to see disability activists, ethicists, and criminal lawyers discuss this extraordinary case and see if Singer and McMahan’s mitigation of Stubblefield carries weight.