A former chair of philosophy at Rutgers University had sex with a man who can't speak. The resulting court battle raised questions about when and why suffering matters in sentencing — and Anna Stubblefield went to jail.

You might remember reading about it in the New York Times.

For a minute it looked like the story would end there: Stubblefield looking open-mouthed over her shoulder in the black and white jailhouse photograph, impassive bailiff at her elbow.

She had been sentenced to 12 years for rape — a rape that, according to Australian ethicist Peter Singer, did no harm to its victim.

Stubblefield had slept with a man known only by the pseudonym DJ, who has cerebral palsy and to this day has never spoken.

That's not to say he can't communicate, though it's not to say he can, either — that's what is at issue.

Stubblefield says he can. She had been volunteering with DJ for years at his family's request, running what is known as facilitated communication sessions, where she would steady his hand over a keyboard so he could type.

Facilitated communication has its critics in the disability community. In some cases facilitators haven't been able to answer simple questions that their assistee would know the answer to.

People who've read Freud are nervous that it might turn people with disabilities into screens for facilitators' own thoughts — just as dead relatives speaking through ouija boards have an odd tendency to say exactly what the ouija board operator would want them to.

But a community of academic researchers still believe that facilitated communication can give some people with disabilities the power to communicate, and Stubblefield is among them.

She told the court that over the course of her sessions with DJ she came to believe he was not cognitively impaired, as doctors had said, but that he was a competent adult, and that he typed that he loved her and wanted to have sex with her.

They had sex twice, and when Stubblefield told his family they brought a rape charge. The court found that DJ was mentally incapable of giving consent to sex and that Stubblefield, therefore, was guilty of rape.

Examining the arguments

The moral adjudication of her actions requires the elucidation of some philosophical points that courts are usually spared.

It's worth taking a moment to examine the argumentative tectonic plates that the rival views here rest on.

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Here's one: what makes rape wrong? And I mean that seriously.

When we spoke to Singer for an episode of The Philosopher's Zone, he told us — in concordance with popular intuition and legal philosopher David Archard — that there are two "wrongmaking" features of sexual assault: first, that the victim is forced to act against their will (in meek and academic terms a rape victim has their "autonomy" violated), and second, that they're made to suffer.

Most of the time the two coincide, because it's hard to violate someone's autonomy without causing them suffering. It feels unpleasant to be forced to act against your will.

This means that courts are rarely called upon to adjudicate cases where a person is raped, but not clearly made to suffer, and those scenarios are usually left to ghoulish Ethics 101 classes ("but what if the victim had amnesia?") and Quentin Tarantino.

But in an article in the New York Times, Singer and Jeff McMahan proposed that the Stubblefield case is exactly one such case: if we suppose DJ is unable to consent, as the prosecution did, then Stubblefield couldn't have violated his autonomy.

The only grounds left on which to adjudicate the wrongness of her action, then, are the suffering grounds: but — say Singer and McMahan, anyway — there's no evidence that DJ suffered.

"It's very likely that he found the experience pleasurable," Singer told RN.

To be clear: nowhere do Singer or McMahan argue that Stubblefield should not be convicted if DJ is incapable of giving consent. The law is clear; you cannot have sex with someone without their consent. Their argument is about her sentence.

Nonetheless, the crucial thought here deserves some examination.

Is it right to say that if DJ can't consent, suffering is the only remaining moral ground?

Singer and McMahan belong to the utilitarian tradition, in which the guiding moral principle is that an action is as good as the happiness that it creates.

Utilitarians reasonably differ about what exactly happiness is (pleasure? The satisfaction of preferences?), but the important point is captured in Jeremy Bentham's bumper-stickerable injunction to create "the greatest good for the greatest number".

The photonegative is obvious: an action is as bad as the pain it creates.

What do we do about guts?

A well-trodden objection to utilitarianism is that some things are grave wrongs even though they don't cause suffering. Think of undiscovered embezzlement, or sacrificing one innocent life to save the many.

Utilitarians reply that such cases can almost never exist in real life, and that even if they do, the correct response is not to codify rules like "embezzlement is fine as long as it goes undiscovered" or "kill innocent people where that works out best on the whole", because those rules themselves cause suffering — even though the individual cases might technically be permissible.

So suppose DJ can't consent. And suppose he didn't suffer. An arch utilitarian will tell you that what Stubblefield did was in some sense permissible, but that by and large the rule against sexual contact with people unable to consent still produces the best balance of pleasure over pain. How does that feel in your gut?

And there's another moral schism that courts are often spared: what do we do about guts?

For philosophers like Judith Thomson or Robert Nozick, the fact that a view yields an uncomfortable-feeling conclusion is a good enough reason to jettison the view. So, if our theories of moral action don't agree with our guts, we should keep trying until they do.

What else is there to take as desiderata in moral reasoning but gut?

For Singer, who has famously argued that bestiality might be permissible as long as it doesn't cause suffering and that failing to donate superfluous income to charity is as grave as letting a child drown to save one's suede shoes, things seem to work the other way around: if the conclusion doesn't match the gut, throw out the gut — and give it to someone who needs it more.

Whatever you make of Singer's view, it's worth examining the philosophy underneath criminal proceedings.

At least one New Jersey judge will shortly have to. Stubblefield's conviction was overturned last week, and she will now face a new trial.