The morality of punishing the innocent

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Author: Walter Romans (TDOM)

There
is
a
current
movement
with
the
expressed
intent
of
reducing
or
eliminating
sexual
assault
against
women
by
changing
current
law
to
make
it
easier
to
convict
those
accused
of
committing
sexual
assaults.

The
proposed
changes
would
reduce
and/or
eliminate
due
process
protections
currently
afforded
to
the
accused
in
the
United
States.
The
war
to
change
these
laws
is
primarily
being
waged
on
college
campuses
by
forcing
these
institutions
to
eliminate
due
process
when
handling
cases
alleging
sexual
assault.
On
many
campuses
the
accused
does
not
have
the
right
to
counsel,
may
not
have
the
right
to
present
evidence
on
his
own
behalf,
to
call
witnesses,
or
to
cross-examine
witnesses
including
his
accuser,
may
only
be
given
limited
access
to
evidence
against
him,
and
guilt
may
be
determined
by
a
preponderance
of
evidence
(instead
of
clear
and
convincing
or
beyond
reasonable
doubt),
or
simply
because
the
evidence
of
guilt
has
the
greater

probability

of
being
true.

This
denial
of
due
process
almost
assures
a
conviction
that
can
result
in
anything
from
reprimand,
to
sensitivity
classes,
to
expulsion.

To
most
of
us,
the
“guilty
until
proved
innocent”
attitude
towards
those
accused
of
any
crime
is
reprehensible.
The
American
system
of
jurisprudence
is
founded
on
the
idea
that
allowing
the
guilty
to
go
free
is
preferable
to
jailing
the
innocent.
But
to
some,
the
greater
good
of
stopping
violent
crime
(particularly
sex
crimes
against
women)
supersedes
the
rights
of
the
accused
to
due
process.
For
these
persons,
the
unintended
consequence
of
jailing
the
innocent,
while
it
may
be
unfortunate,
is
perfectly
acceptable
and
morally
correct.
The
moral
justification
for
this
can
be
traced
to
none
other
than
St.
Thomas
Aquinas
and
his
justification
of
killing
in
self-defense.

Aquinas
writes
“Nothing
hinders
one
act
from
having
two
effects,
only
one
of
which
is
intended,
while
the
other
is
beside
the
intention.

Accordingly,
the
act
of
self-defense
may
have
two
effects:
one,
the
saving
of
one’s
life;
the
other,
the
slaying
of
the
aggressor.”
He
further
explains
that
killing
in
self-defense
is
morally
acceptable
only
if
there
was
no
intent
to
kill.
In
other
words,
if
the
killing
was
an
unintentional
consequence
of
defending
oneself,
even
if
the
killing
was
foreseeable.
He
qualifies
this
by
stating
that
the
act
of
self-defense
must
be
in
proportion
to
the
act
of
aggression.
However,
if
the
killing
was
intentional
or
disproportionate,
even
if
done
in
self-defense,
it
is
morally
unjustifiable.

The
Doctrine
(or
Principle)
of
Double
Effect
requires
four
conditions
described
in
the
New
Catholic
Encyclopedia
(p.
1021):

  1. The
    act
    itself
    must
    be
    morally
    good
    or
    at
    least
    indifferent.
  2. The
    agent
    may
    not
    positively
    will
    the
    bad
    effect
    but
    may
    permit
    it.
    If
    he
    could
    attain
    the
    good
    effect
    without
    the
    bad
    effect
    he
    should
    do
    so.
    The
    bad
    effect
    is
    sometimes
    said
    to
    be
    indirectly
    voluntary.
  3. The
    good
    effect
    must
    flow
    from
    the
    action
    at
    least
    as
    immediately
    (in
    the
    order
    of
    causality,
    though
    not
    necessarily
    in
    the
    order
    of
    time)
    as
    the
    bad
    effect.
    In
    other
    words
    the
    good
    effect
    must
    be
    produced
    directly
    by
    the
    action,
    not
    by
    the
    bad
    effect.
    Otherwise
    the
    agent
    would
    be
    using
    a
    bad
    means
    to
    a
    good
    end,
    which
    is
    never
    allowed.
  4. The
    good
    effect
    must
    be
    sufficiently
    desirable
    to
    compensate
    for
    the
    allowing
    of
    the
    bad
    effect.

Thus
it
becomes
permissible
under
this
doctrine
to
strengthen
the
laws
pertaining
to
sexual
assault
in
order
to
make
it
easier
to
convict
and
imprison
accused
perpetrators
even
if
that
means
that
more
innocent
persons
will
be
convicted
and
jailed.
The
intent
of
this
action
is
to
reduce
harm
to
women
by
reducing
the
number
of
sexual
assaults
by
creating
an
effective
deterrent:
increasing
the
likelihood
of
going
to
prison.

On
the
surface,
most
reasonable
persons
would
likely
agree
that
the
conditions
are
met.
In
fact,
they
may
well
be.
It
is
certainly
not
immoral
to
make
it
easier
to
gain
convictions
in
order
to
protect
members
of
society.
Provided
the
intent
is
not
to
imprison
innocent
people,
and
remains
only
a
by-product,
condition
two
is
met.
Condition
three
is
met
if
the
imprisonment
of
innocent
men
is
not
the
direct
cause
of
the
reduction
of
the
number
of
sexual
assaults.
The
increased
likelihood
of
imprisonment
of
offenders
must
be
the
cause
of
the
reduction.
Finally,
it
must
be
more
desirable
to
protect
women
from
sexual
assault
than
to
imprison
innocent
men.
Whether
or
not
this
condition
is
met
may
be
dependent
on
perspective
and
the
perception
of
how
many
women
will
be
protected
vs.
the
number
of
innocent
men
imprisoned.

However,
what
this
doctrine
does
not
address
is
whether
or
not
the
proposed
action
will
be
effective
in
producing
the
desired
outcome.
Does
increasing
the
likelihood
of
prison
serve
as
an
effective
deterrent
to
sexual
assault?
In
other
words,
will
this
actually
reduce
sexual
assault?
The
doctrine
only
addresses
the
intent
of
the
act,
not
the
effectiveness.

For
instance,
it
is
acceptable
under
this
doctrine
for
a
physician
to
administer
a
potentially
lethal
dose
of
pain
medication
to
a
dying
patient
in
order
to
alleviate
the
pain,
even
if
the
physician
knows
the
medication
might
kill
the
patient.
But
what
if
the
medication
does
not
alleviate
pain
because
the
patient
has
developed
a
tolerance
to
its
pain-relieving
effects?
The
doctor
has
now
increased
the
risk
of
death
without
producing
the
desired
effect;
pain
relief.
Is
that
moral?
By
the
same
token,
if
increasing
the
likelihood
on
imprisonment
of
offenders
does
not
decrease
the
number
of
sexual
assaults,
but
only
increases
the
likelihood
of
incarcerating
the
innocent,
is
it
moral?
More
to
the
point,
is
it
moral
to
institute
such
a
policy
without
being
reasonably
assured
that
the
policy
will
produce
the
intended
result,
especially
when
the
harm
done
is
almost
assured?

It
could
further
be
argued
that
because
the
consequence
of
imprisoning
the
innocent
can
be
foreseen,
the
intent
cannot
be
denied.
The
knowledge
that
a
harmful
effect
will
occur
as
a
result
of
committing
an
act
is
tantamount
to
intentionally
bringing
about
the
harmful
effect.
The
Doctrine
of
Double
Effect
flows
from
another
Catholic
doctrine
of

doing
vs.
allowing
harm
.
This
can
be
expanded
through
a
discussion
of
deontological
ethics.[1]

Agent-centered
deontology
draws
a
distinction
between

causing,
preventing,

and

allowing
.
It
is
impermissible
to
cause
an
evil
act,
but
generally
permissible
to
fail
to
act
to
prevent
one.
It
would
be
morally
wrong
to
push
a
child
into
the
street
in
front
of
a
car
(causing).
There
may
or
may
not
be
a
moral
obligation
to
stop
that
same
child
from
running
into
the
street
(preventing).

Allowings

occur
when
the
action
taken
involves
removing
a
defense
that
would
have
otherwise
been
in
place
to
prevent
evil
from
occurring,
and
when
the
removal
of
the
defense
is
not
the
direct
cause
of
harm.

Allowings

are
permitted
only
when
the
defense
removed
had
previously
been
provided
and
when
the
removal
of
that
defense
allows
another
good
to
occur.

When
one
removes
legal
defenses
that
protect
the
accused
in
order
to
allow
increased
convictions
intended
to
deter
sexual
assault,
one
is
removing
a
defense
previously
provided
by
law
in
order
to
do
good
and
since
the
removal
of
that
defense
is
not
a
direct
assault
upon
the
innocent
(although
it
allows
the
direct
assault
to
occur),
it
would
be
permitted
under
this
deontological
ethic.

A
somewhat
weaker
defense
of
changing
the
laws
that
protect
the
innocent
is
that
the
change
does
not
cause
the
evil,
it
merely
enables
others
to
commit
the
evil
(send
the
innocent
to
prison).
Therefore
those
who
change
the
law
are
not
morally
responsible
for
sending
the
innocent
to
prison.
That
this
statement
would
be
seen
by
many
as
morally
reprehensible
is
a
criticism
of
agent-centered
deontology
as
well
as
the
Doctrine
of
Double
Effects.

A
second
type
of
deontology
is
patient-centered
and
concerned
with
rights,
not
duties.
At
its
very
foundation,
the
fundamental
right
is
the
right
not
to
be
“used
only
as
a
means
for
producing
good
consequences
without
consent…
It
is
a
right
against
being
used
by
another
for
the
user’s
or
others’
benefit.”
(Alexander
&
Moore,
2012).
Ethical
dilemmas
handled
one
way
under
agent-centered
deontology
might
be
handled
differently
under
patient-centered
deontology.
The
difference
is
the
forbidden
practice
of
using
a
person
without
that
person’s
consent.

In
agent-centered
deontology,
rightness
is
derived
from
the
mental
state
of
the
agent
or
the
agent’s
actions
in
causing
the
harm.
In
patient-centered
deontology
the
justification
of
the
results
rests
on
whether
or
not
the
victim
(the
harmed
person)
is
the
means
of
producing
the
results.
Further,
in
patient-centered
deontology,
providing
aid
to
another
is
not
required,
nor
is
there
a
right
to
receive
aid
from
another.
This
is
derived
from
the
concept
of

using
.

Using

can
only
be
viewed
as
a
positive
act,
not
an
inaction.

So
in
the
example
above,
the
child
who
runs
into
the
street
has
no
right
to
be
saved,
nor
does
the
person
who
sees
the
child
have
an
obligation
to
save
it.
Consequentialist
ethics
operate
in
both
versions
of
deontology.
Consequences
help
to
define
right
and
wrong
actions
in
agent-centered
deontology
and
define
the
moral
norms
used
to
guide
action
in
patient-centered
deontology.

An
agent-centered
deontology
could
be
used
to
justify
a
change
in
laws
to
permit
increased
likelihood
of
conviction
for
sexual
assault,
including
the
likelihood
of
wrongful
convictions,
if
it
also
reduces
the
number
of
sexual
assaults.
But
under
a
system
of
patient-centered
deontology,
it
could
be
argued
that
this
is
not
justified.
First,
the
goal
of
reducing
the
number
of
sexual
assaults
could
be
described
as
aiding
potential
victims.
Under
this
system,
no
one
has
a
right
to
aid.
Second,
it
could
be
argued
that
the
wrongfully
convicted
are
being
used
without
their
consent
to
aid
potential
victims.
Consequentialist
ethics
might
intervene
in
the
first
case,
but
not
in
the
second.

The
consequence
of
sexual
assault
could
be
said
to
be
so
abhorrent
that
a
moral
norm
be
established
that
it
in
the
interest
of
all
to
deter
sexual
assault.
However,
that
norm
would
be
overruled
by
using
the
innocent
without
their
consent
to
prevent
sexual
assault.
Thus
a
patient-centered
approach
would
not
permit
this
type
of
change
in
the
law
and
those
arguing
for
such
a
change
would
be
arguing
from
the
standpoint
of
agent-center
deontology.

However,
there
is
a
case
in
which
a
patient-based
ethic
might
permit
such
a
change
in
the
law.
That
is
if
it
could
be
shown
that
more
sexual
assaults
are
prevented
than
innocents
incarcerated
or
that
sexual
assault
is
a
less
desirable
outcome
than
incarceration
of
innocents.
Take
the
example
of
a
trolley
running
loose
down
a
mine
shaft
towards
five
workers
trapped
on
the
tracks.
The
trolley
cannot
be
stopped
and
if
left
alone
will
kill
all
five
workers.
It
is
possible
to
pull
a
switch
and
divert
the
trolley
onto
a
different
track,
but
doing
so
would
kill
one
worker
who
would
not
otherwise
be
killed.

Pulling
the
switch
could
be
viewed
as
permissible
if
the
five
lives
are
considered
more
valuable
than
the
one.
However,
because
it
is
a
positive
act
pulling
the
switch
is
not
obligatory,
simply
because
it
is
permissible
does
not
relieve
culpability.
A
person
has
the
right
not
to
act
and
cannot
be
held
culpable
for
inaction
under
the
patient-center
ethic.
But
once
a
person
acts,
the
person
becomes
culpable.
So
while
a
change
to
the
law
might
be
permissible,
that
permission
does
not
relieve
culpability.
The
actor
is
culpable
for
killing
the
one,
but
would
not
have
been
culpable
for
allowing
the
five
to
die.
This
is
based
on
the
separateness
of
persons.

Each
person
is
a
separate
entity
and
wrongs
(or
rights)
cannot
be
added
together
to
form
a
greater
wrong
(or
right).
It
follows
that
the
rights
of
the
majority
do
not
supersede
the
rights
of
the
minority
which
is
the
basis
for
constitutional
law.
Simply
because
the
majority
vote
for
a
law,
that
law
cannot
be
enacted
if
it
violates
the
rights
guaranteed
under
the
constitution.

Interestingly,
those
who
argue
against
sexual
assault,
argue
from
the
standpoint
of
patient-centered
deontology.
No
one
has
the
right
to
use
another
person
without
that
person’s
consent.
This
is
the
very
foundation
for
the
argument
against
sexual
assault
when
one
uses
rights
as
the
basis
for
the
argument.
It
would
seem
a
contradiction
that
these
same
persons
would
switch
their
ethical
stance
from
patient-centered
to
agent-based
when
the
context
suits
them.

Consequentialist
questions
remain
whether
one
approaches
the
issue
from
the
standpoint
of
the
Doctrine
of
Double
Effect
and/or
agent-based
deontology
or
patient-centered
deontology.
Will
making
it
easier
to
gain
convictions
provide
a
sufficient
deterrent
to
sexual
assault
to
justify
the
inevitable
increase
in
wrongful
convictions?
Without
answering
this
question,
the
entire
argument
is
moot.
Good
intentions
is
simply
not
enough.
As
they
say,
the
road
to
Hell
is
paved
with
them.

The
Doctrine
of
Double
Effect
uses
intent
as
the
basis
for
morality
of
action
and
does
not
appear
to
consider
actions
where
the
outcome
is
uncertain.
Agent-based
deontology
at
least
uses
consequence
as
a
standard
in
defining
right
and
wrong.
Patient-centered
deontology
uses
moral
norms
to
help
define
rights.
But
what
happens
when
we
don’t
know
what
the
outcome
of
an
action
will
be?

There
are
two
likely
outcomes
(consequences)
of
strengthening
the
laws
pertaining
to
sexual
assault
in
order
to
make
it
easier
to
obtain
convictions.
One
is
that
there
is
a
reduction
in
sexual
assaults
committed
due
to
the
imprisonment
of
more
offenders,
paired
with
an
increase
in
convictions
of
the
innocent.
The
other
is
that
there
is
no
change
in
the
number
of
sexual
assaults
committed
although
more
offenders
are
imprisoned,
paired
with
an
increase
in
convictions
of
the
innocent.
The
latter
would
likely
be
seen
as
unethical
and
immoral
when
held
up
to
nearly
any
ethical
philosophy.

There
is
little
evidence
to
support
that
the
first
will
occur.
Many
of
the
arguments
against
the
death
penalty
are
based
on
evidence
that
fails
to
support
the
reasoning
that
stiffer
penalties
results
in
effective
deterrents.
That
would
make
the
former
outcome
unethical
as
well.
Therefore,
the
only
truly
ethical
position
is
to
not
change
these
laws
in
any
manner
that
would
result
in
a
greater
number
of
convictions
of
the
wrongly
accused.
Any
law
designed
to
reduce
the
number
of
sexual
assaults
should
be
evidence-based
and
include
provisions
designed
to
prevent
wrongful
convictions.

Alexander,
Larry
and
Moore,
Michael,
“Deontological
Ethics”,

The
Stanford
Encyclopedia
of
Philosophy

(Winter
2012
Edition),
Edward
N.
Zalta (ed.),
http://plato.stanford.edu/archives/win2012/entries/ethics-deontological/.

McIntyre,
Alison,
“Doctrine
of
Double
Effect”,

The
Stanford
Encyclopedia
of
Philosophy

(Fall
2011
Edition),
Edward
N.
Zalta (ed.),
http://plato.stanford.edu/archives/fall2011/entries/double-effect/.



[1]

Deontological
ethics
is
a
system
of
ethics
that
holds
that
some
choices
cannot
be
justified
by
their
consequences.
What
makes
a
choice
right
is
its
conformity
to
moral
norms.
In
agent-centered
deontology,
agents
have

permissions

and

obligations
.
Obligations
may
be
positive
(parents
are
obliged
to
protect
their
own
children),
while
others
are
negative
(doctors
take
an
oath
to
do
no
harm).
Permissions
are
acts
permitted
to
certain
agents,
but
not
others
(a
parent
would
be
permitted
to
save
its
own
child
even
at
the
cost
of
death
to
more
children
than
could
otherwise
have
been
saved
while
another
agent
would
be
required
to
save
as
many
children
as
possible).
Agent-centered
deontology
is
duty-based,
while
patient-centered
deontology
is
rights-based.

Original Story on AVFM
These stories are from AVoiceForMen.com.
(Changing the cultural narrative)

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