Thursday, October 27, 2005
Willfully Blinded: On Date Rape and Self-Deception, Harvard Journal of Law & Gender, by Howard CrimProf Andrew E. Taslitz. SSRN Abstract: This article takes seriously the proposition that many men are telling the truth when they say that they honestly believed that a woman in a date rape case had consented when she in fact did not do so. The article argues, however, that the men are generally truthful at a conscious level, while being aware unconsciously that the truth is otherwise. Furthermore, the absence of conscious awareness is the result of self-deception. Drawing on research in philosophy and cognitive psychology, this article defines the various forms of self-deception and explains how they work in date rape cases. Date rape liability often involves a negligence analysis: Should the man have known of the woman's non-consent? Yet the penalties imposed for negligent date rape are often quite severe, more so than for most crimes of negligence. The article argues that self-deception is best understood as a form of negligent conduct but explains why it is morally far more reprehensible than other sorts of negligence. Next, the article responds to concerns about the morality of punishing men for unconscious thoughts and the problems posed for proving those thoughts and for free will. In particular, the article suggests a form of negligence liability in date rape cases that is meant to discourage male self-deception in sexual intercourse and that does not require proving what any individual male's unconscious state was in a particular case. The article further responds to arguments about the wisdom of such an approach given that it will unquestionably catch some non-self-deceiving males. The law's fear of imposing liability for unconscious desires is based upon a flawed conception of the nature of the conscious and unconscious minds that ignores the teachings of cognitive science. Those teachings establish that there are strategies for changing unconscious thoughts that motivate socially undesirable action even when we are not in the short run aware of the contents of our unconscious mind.