Torture and Dignity

This lecture to the New School’s General Seminar was originally published on the above date. Given the recent revelations concerning the CIA’s program of torture, we are highlighting Bernstein’s reflections today, Dec. 12, 2014. -J.G.

I. The Abolition of Torture

Human beings are the sorts of being who can undergo devastation: they can be destroyed in their standing as a person, as being possessed of morally inviolable intrinsic worth; they can have their dignity and self-respect destroyed. When one loses her dignity she also loses her trust in the world. Dignity is the representation of self-respect, where self-respect is the stance of one who takes herself to be of intrinsic worth and acts accordingly. Thus to respect human dignity is to respect an individual’s standing as being possessed of intrinsic worth. Respect for dignity and self-respect are the third person and first person perception of the same intrinsic worth that requires the insistent affirmation of the self and the continuous acknowledgement of (respect from) her others to be sustained in existence. Self-respect requires the affirmation of bodily autonomy, while respect for dignity requires the recognition of bodily integrity. Because even the human corpse can be dispossessed of its dignity, then we understand the human form as the bearer of the idea of human dignity, and hence as a summons to dignity respecting regard and treatment.

If it was not known earlier, we certainly learned from the Nazi atrocities that human beings can have their dignity destroyed, that they can be humiliated, devastated, and then turned into garbage. In learning this we simultaneously learned being human in its robust evaluative sense is a status subject to destruction. Jean Améry’s At the Mind’s Limits tracks these consequences of the Nazi genocide with unblinking rigor. In following his lead, my effort has been to provide conceptual weight to Améry’s austere presentation. Once we discover that the intrinsic worth of the human is dependent on the entire range of social practices – beginning with the first love necessary for engendering an intrinsically worthy life, and terminating with care for the dead – through which bodily autonomy and physical integrity of the human are emphatically recognized, sustained and expressed, then we simultaneously recognize that the fundamental pulse of moral life turns on the recognition of moral injury as what should not be suffered by any being having the human form, that no being having the human form should suffer humiliation, degradation, devaluation, or devastation.

The collective horrified response to the Nazi atrocities was not as universal as it might have been, and its full moral impact on our collective moral self-understanding was deferred for two decades and it is still incomplete.[1] Nonetheless, in one important respect a small group did recognize the stakes and meaning of what had occurred, and in response penned and then with political brio managed to get international agreement for the Universal Declaration of Human Rights. The Declaration should be construed as a repetition of that moment in the eighteenth century when citizens responded to the sight of sovereign torture not with festive delight but with repugnance and moral alarm. It thus becomes plausible to interpret the Declaration as the determinate negation of the Nazi genocide in a manner sufficient to allow for the emergence of human rights that is thus analogous to the way in which the determinate negation of sovereign torture provisioned the uprising of the rule of law.

After stating that “All human beings are born free and equal in dignity and rights” (Article 1), and that “Everyone has the right to life, liberty and security of person” (Article 3), the Declaration goes on to spell out the minimum necessary conditions entailed by these two affirmative provisions, namely, that “No one shall be held in slavery or servitude” (Article 4) and “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). The opening five articles provide the moral premises of the Declaration: without them one cannot begin, but with them a robust rights’ architecture becomes possible. Assuming the opening articles form a moral prologue makes sense because there then follow a series of articles that quickly gather together and translate the upshot of our moral consensus into a series of legal human rights, rights to legal personhood. These are summarized pointedly in Article 6: “Everyone has the right to recognition everywhere as a person before the law.”[2] I understand the plain meaning of Article 6 to be that all humans have a right to have rights.

Article by article, the opening dozen articles of the Declaration operate as negations of the Nazi perversions of law and state power, as, we might say, negations of their negation. While fashioned one at a time, they arguably amount to more than a series of discrete items.[3] There is a deep if rough logic, a philosophical argument of sorts, running through the opening articles of the Declaration that recapitulates in a formal mode the experiential exigencies of the emergence of rights in the eighteenth century. Roughly, we spell out the dignity of the human through the moral intolerableness of slavery, torture and cruel treatment or punishment; the joint banning of these forms the basis for and is equivalent of the rule of law coming to replace the rule of one man over another: the slave body and the tortured body are emblems of a (devastating) power of one person over another that neither any individual nor any state should have. For no one on earth to have such legitimate access to the body of any human is for each to be entitled to be a legal person. The rule of law, so understood, is what we mean by recognizing the intrinsic worth — the dignity — of each; the rule of law is offered as the primary institutional bearer of our humanitarian moral consensus. The rule of law routinely has this connotation for the majority of citizens in democratic states, and especially for those living under tyrannical or totalitarian regimes who come to see the rule of law as what they are deprived of: they know all too well the difference between the sovereign law of torture, law as pure positivity, and the rule of law. Sometimes the rule of law does not seem to carry this moral weight: because positive laws can, formally, have whatever content the sovereign body decides, law can be a form of domination, devastation, and destruction. Over the past two centuries, that the law has too often been a form of domination, control, and repression is beyond reasonable doubt. As a consequence, the thought that the rule of law is the primary institutional bearer of our humanitarian moral consensus does not share the transparency or agreement possessed by its moral premises.

The eighteenth century rights revolution and the fashioning of the Declaration were both motivated by the necessity of providing moral substance to the idea of the rule of law against the background of, on the one hand, five centuries in which the European legal system included unspeakably cruel torture practices as an integral and fully sanctioned element in its methods of interrogation and punishment, and, on the other hand, a regime which had used the law to install and forward transparently barbarous purposes; the Nazi use and abuse of the law is a recurrent deliberative theme among the Declaration’s drafters. From a particular angle of vision, it seems urgent to be able to argue that the legal systems of early modern Europe and Nazi Germany were not simply different from the kind of rule of law we have come to prize, but perversions of the very idea of law itself, even if in the case of the late medieval and early modern legal system that label only becomes applicable retrospectively. In both cases the prohibition on the use of torture is a component of an effort to infuse the understanding of the rule of law with a demanding moral vision: the civil inviolability of the citizen-subject that is implied by the prohibition on torture provides a first marker for what is demanded by the recognition of human dignity, which in its turn becomes the moral fundament for the idea of the rule of law; hence, the governance of the rule of law in which all citizens are possessed of legal personality — and all persons everywhere entitled to recognition as legal persons — becomes the primary bearer of what is required for the recognition of human dignity. On this construction, the statement that “everyone has the right to recognition everywhere as a person before the law,” which did not appear in the original drafts of the Declaration and the inclusion of which was strongly debated, becomes the pivot connecting the unassailable moral propositions opening the Declaration with the six succeeding articles that lay out the principal legal human rights – equality before the law; effective legal remedy; the presumption of innocence until proven guilty; a fair trial; etc. All these, I should remind you, were the substance of Beccaria’s fashioning of criminal law, and the content of his argument for the abolition of torture and the death penalty. Those opposed to Article 6’s inclusion thought it both redundant, its central claim implied by the list of legal rights, and semantically opaque. To those who insisted on Article 6’s inclusion, the Nazi production of civil death, through the deprivation of all civil rights to designated groups, is the paradigm of the denial human dignity and the exclusion of individuals from the human community.

The new idea of human dignity was both presupposed by and a product of the constellation of ideas and experiences that enabled the banning of torture to be connected with the moral charging of the rule of law in the eighteenth century; in light of the atrocities of World War II, the Declaration attempted to once more forge a morally saturated, dignity protecting conception of the rule of law — a trajectory and construction that my moral argument has meant to repeat. In order for that history and my repetition and moral reconstruction to make sense, something like the following must be the case: moral modernity, or, what is the same, the moral foundation of political modernity, is perspicuously realized and articulated in the series of acts whereby, throughout Europe, torture was banned. Torture became, and sotto voce remains, a if not the paradigm of moral injury, of what must never be done to an individual because it is intrinsically degrading and devaluing: it harms the human status — the dignity of the human — as such by intentionally harming the present exemplification of it.[4] Torture does more than morally injure, it devastates individuals in their standing as human. Even when torture is regarded — however mistakenly — as morally justified, it remains violation, degradation, and devastation. Because judicial and penal torture were state actions, then the prohibition on torture spells out the limit of state action: if the state has rights over the bodies of its subjects, however restricted and conditional, then, finally, those citizens have no rights since there is no effective limit on state action. The body of the torture victim is the meeting place of state and citizen, and hence the place where the morally saturated body of the citizen meets the legal apparatus of the state: either the rule of law recognizes bodily autonomy as its own moral basis — broken laws standing for broken bodies — or the law becomes a vehicle of sovereign authority that knows no limit. Thus, it is the morally charged conception of the rule of law that holds together the ban torture with the recognition of human dignity: remove the prohibition on torture and neither the liberal state nor modern moral life is intelligible.

To state that there should be an absolute ban on the use of torture by the state misstates the meaning of the abolition of torture. If my reconstruction of the inner logic of the early sections of the Declaration is even near correct, it follows that the right to life and liberty is given moral meaning by the banning of torture, slavery, cruel and unusual punishments, which in turn provide the minimum contours of what it means to regard humans as possessing morally inviolable dignity, where so regarding them requires as its necessary minimum institutional expression the claim that “everyone has the right to recognition everywhere as a person before the law.” The first five articles are not a series of very basic rights; rather they form the moral premises through which the right to life means the right to be treated with dignity, which requires for its actuality the right to have rights. In the first six articles, a negative ethics driven by the extreme instances of torture, slavery, and barbarous penal practices gives a minimal form — the form of bodily autonomy and bodily integrity — to the idea of human dignity; and the idea of human dignity given institutional actuality in the idea of legal personhood and the right to have rights. Finally, given how the very idea of the right to legal personhood is generated, it follows that nothing will count as a legal system unless it operates in accordance with the substantive conception of the rule of law that is spelled out in the following articles. As I argued in Chapter One, following Beccaria and Jeremy Waldron, torture is conceptually and morally incommensurable with legality. There can be no state sanctioned torture that does not undermine the legality of the state as such. The ban on torture is necessarily absolute, not from moral qualms or prudential wisdom, but because without it the very idea of the rule of law would dissolve. What I have meant to accomplish in these pages is to demonstrate the conception of human dignity that emerges in this way is viable and necessary: torture destroys human dignity, and that is why it is morally wrong.[5]

Yet, the practice of torture continues, and reasonable people think that the absolute ban on torture involves a naïve propounding of moral absolutes in a world that has long ago given them up. Ignore their mistake about the meaning of moral notions. The great puzzle is why does torture remain? What makes torture a continuing temptation? How do we explain the centuries long persistence of torture? What is it that makes us animals that torture? That we find ourselves unable to resist the temptation to torture? The persistence of torture, I want to argue, is best understood as a — perhaps indelible — illusion of the moral imagination. It is one of the deformations that the human imagination is irresistibly drawn to despite its proven disutility and barbarity.

The continued practice of torture and the presumption of its moral permissibility depend on two interconnected fantasies that are deeply embedded in our moral imagination. In the first, we imagine ourselves in the position of both victim and torturer. I know that there are persons who have resisted torture and are, apparently, unafraid of the pain. But I am not so constituted: I assume that even if much counted on my resisting, I am so terrified of pain, especially the kind of pain caused by old-fashioned methods of torture — finger-nail pulling, scalding water, burns, drilling into a live tooth (that scene from Marathon Man remains terrifying), a nail hammered into my sexual organs, not to speak of beatings of various kinds — that I am morally certain that I would submit, indeed I would surrender all even before I was touched. (Recall Améry’s easy capitulation before his torturers.) Perhaps, I might try deceit for as long as I could, but assuming my torturers would not be so easily satisfied – they would want to test the veracity of my claims with further inflictions of intolerable pain — I would submit. I cannot imagine holding out for long.

From the other side, I know if a kidnapper had my children planted in a place in which they would die soon (say, from lack of oxygen), and I had no other resources available — no reason to think I could simply persuade the kidnapper to surrender the information because he had nothing to gain by giving me the information — then being without resource, I would turn to torture, to some crude infliction of intolerable pain as a way of getting him to talk. When the situation is urgent and we sense ourselves without resources, we are imaginatively driven to consider the use of violence and the infliction of pain as the action of last resort. I would do whatever it takes to save my children, and I would feel morally justified in so doing. In our imagining ourselves on both sides of the equation, we our relying on our knowledge of the awfulness of pain, its intolerableness, our vulnerability before others, on other’s vulnerability before us, and on our capacity for cruelty.

The second imaginary scenario is captured by the ticking bomb situation. The power of this scenario depends on it eliminating all the contingencies operative in a real-life situation: we have the individual who knows where the bomb is; we know time is short and that numerous lives will be saved; there are no alternatives available, etc. In so eliminating all the counterfactual possibilities, the ticking bomb scenario de facto operates as a retrospection, that is, what it really imagines is a situation in which using torture in the described circumstances will have saved numerous lives, and therefore our decision will have been vindicated. By operating with an effectively retrospective picture, the ticking bomb example shows that there are circumstances where torture would have been morally vindicated. Logically, if there are situations in which an action would have been morally vindicated, then there are rare, extreme, and isolated situations in which committing that action is morally permissible that have no implication for further institutional practice.[6] Conversely, to imagine circumstances in which we would have been morally vindicated in doing a morally atrocious act must entail that, in those circumstances, had we not acted, we would have been morally liable for the death of numerous innocent persons. The ticking bomb situation surreptitiously constructs a situation in which not torturing would have been morally wrong, propounding a dogmatic moral absolutism concerning the rights of the terrorist and a brute moral insensitivity to the lives and rights of the victims.

I assume that these two moral fantasies work in harmony: the first engages our moral psychology, showing why torture has a place in the lives of human beings, roughly, because we are intrinsically vulnerable beings who are utterly dependent on others, and that the exploitation of vulnerability on the one side and power over others on the other side belongs to moral economy of intersubjective life. The reality and fear of pain, and our willingness to cause pain to others in extreme circumstances is how the idea of torture gets its claws into our imagination. The ticking bomb takes that minimal moral psychological imaginary and gives it a robust institutional setting in which utilitarian, cost-benefit calculations have legitimate purchase (numbers do sometimes count, sometimes do trump other moral considerations, sometimes the lesser evil is all there is). The point of convergence between the two fantasies is the lack of alternative in the first, and the elimination of all contingencies (the retrospective vindication) in the second. I assume, finally, that these are not mere fantasies; they capture something about how we do act in extreme situations, situations, I am suggesting, that are inevitably already saturated with these imaginary features. Add to this saturation other real-life conditions — soldiers poorly trained and under great stress; hatred for an enemy; fear of having done less than is necessary to protect loved ones; militaries stocked with those who chose it in order to act out fantasies of power and vengeance; politicians not wanting to appear weak; racism; etc. — and we have the awful brew that has made torture a prevalent phenomenon in the political life of the modern world.

None of this is meant to suggest that torture is in anyway a morally or politically acceptable practice. It is the paradigm of what is not morally or legally acceptable. The criticisms of torture are now sufficiently developed and numerous not to need elaboration here.[7] Nonetheless, let me rehearse the central elements in the standard critique.

  • The epistemic conditions that would be needed to be present to justify the use of torture are rarely if ever satisfied: we know with moral certainty we have a person who possesses the information necessary; we know with moral certainty he is “guilty” to the extent of being directly involved in the plot (we are never permitted to torture the innocent); we know with moral certainty that the threat is imminent; we can torture him effectively in order to get the results needed in a timely manner; and that this extreme circumstance has no implications for the use of torture in non-extreme circumstances. It is the imagination of the satisfaction of these conditions that led me to call the ticking bomb scenario a functionally retrospective fantasy. In the Iraq war, for example, the vast majority of those tortured were innocent by-standers; and in Quantanamo, the presumptively successful tortures were achieved over long periods of time.
  • In order for the use of torture to be permissible there would need to be no reasonable alternative to its use. Because moral evaluation is often and necessarily retrospective, it is impossible to argue that there are always and necessarily feasible alternatives. But for all intents and purposes, there is always one reasonable alternative, namely, interrogation based on the development of a rapport with the individual to be interrogated. All professional, trained interrogators who have spoken out claim that building rapport is more effective in getting an individual to speak and more reliable than torture. In more urgent situations of the kind that the ticking bomb imagines, torture is even less effective since torture depends finally on breaking the victim, but fast-paced torture generates either an analgesic effect or intense resistance or overshoots, disabling the victim’s capacity to speak or to remember.[8] Arguments that attempt to defend torture as somehow necessary or a form of self-defense turns on there being no plausible alternative. Once we acknowledge that there is not only a morally preferable alternative but a more efficient, reliable, and effective alternative, then necessity and self-defense arguments wither.
  • Once it is agreed that the epistemic conditions necessary are, under real conditions, effectively never satisfied, and that there is always an alternative, then the only possible justification for the use of torture runs: because of the features in the imagination of torture, it will be used anyway (its prohibition cannot be empirically satisfied because it is so tempting), therefore it is better to regulate its use by making it legally permissible. This is the argument for torture warrants developed by Alan Dershowitz. The “If you cannot successfully ban it, then legalize it” is not an obviously false proposal: heroin use is deadly, but banning has made it the center of a huge criminal industry. State regulation – making heroin available through the state — might affect usage, and would certainly flatten the criminal industry of the drug trade. The arguments against this are: (a) if warrants do not track the needs for moral certainty, how will they be justified? Will judges have the information necessary to make legally justifiable decisions? Will not the military quickly discover “friendly” judges that allow it to operate without effective scrutiny? (b) Since the group we are trying to control are our military, and they have used torture when it was illegal, why think a warrant system will minimize rather than encourage the use of torture? (c) Bad practice drives out good: because torture is apparently user-friendly, less sophisticated and more accessible than rapport-building techniques of interrogation, the issuing of warrants will drive out the best methods of interviewing. (d) Legalizing torture means training soldiers to torture. This does incalculable harm to both the soldiers themselves and the military. Further, once all the effort has gone into training soldiers to use torture, the temptation to use tools one has available becomes difficult to resist, hence making the likelihood of the use of torture overwhelming. (e) Legalizing torture would make whatever nation did so an outlaw, it would make its own soldiers less safe, and it would erode public trust in the government. (f) Once civilized nations legalize and institutionalize torture, then other nations will follow suit, making torture the world-wide norm for interrogation. We have quickly arrived back in the Twelfth century.
  • Finally, as I argued above, the logic of ticking bomb scenarios is necessarily overly permissive: in justifying the minimum necessary conditions to make torture permissible one opens a floodgate since there are no non-arbitrary ways of delimiting moral or legal permissibility once one’s only touchstone is utility. If it is agreed that torture is necessarily morally wrong, then justifying torture means lifting a ban on what is absolutely non-derogably illegal. The principle for so doing is that more lives will be saved than the harm caused. But once this is the only effective moral guideline, then it looks as if anything goes as long as that guideline itself is satisfied: torturing and killing innocents related to the terrorist; raping and violating women and children related to the terrorist; a small-scale genocide of an innocent population related to the terrorist; and on and on.

There are endless variations on the ticking-bomb scenario, the most popular of which at present is that of the “conscientious torturer,” the torturer who takes on himself responsibility for doing what must never be done because the situation demands it.[9] The appeal of the conscientious torturer is that he has our morals, our doubts, our concerns that torture not be institutionalized or legalized, but nonetheless feels morally compelled to do the awful thing, and he is willing to suffer the legal consequences for so doing. It is attractive because we imagine real life choices are like this, difficult, tragic, with no clean hands. Nonetheless, it is still all imagination and fantasy, all idealization and abstraction. There are no good tortures. Torture is always morally wrong. And there are no reasons whatsoever to make the ban on torture anything other than absolute. The prohibition on torture was designed to be non-derogable; it is and should remain that way.

II. Moral Alienation: On The Persistence of Rape

Because the imaginary of torture remains, then torture will continue to have its official and unofficial defenders for the foreseeable future. Nonetheless, in the case of torture the preponderance of argument, the moral consensus, and the direction of legislation nationally and internationally have tended toward sustaining and strengthening abolition. The American misadventure in Iraq drew down righteous ire from every direction, generating the latest salvo of defenses of abolition, including this one. With sufficient political vigilance, one might even hope that the practice itself might be forced to the extreme periphery of state practices. In this case, at least, the arc of the moral universe does appear to be bending toward justice. The same cannot be said about rape; and if this is so, then perhaps the judgment about the fate of torture is less secure and more morally illusory than it at first appears.

While the law against rape is absolute, it remains virtually idle: the vast of majority of rapes are never reported; of those reported, few are prosecuted; and of those prosecuted, fewer still are convicted. At best estimate, counting in unreported rape, only between 3 and 5 percent of rapists ever spend a day in jail. And we now know that things are, in this regard, even worse in the US military. Despite claiming a policy of “zero tolerance,” in 2012 there were 26,000 sexual assaults, with fewer than 1 percent resulting in a court-martial conviction. Over their entire career, one in three women soldiers were sexually assaulted.[10] In the wider population, somewhere between one in five and one in six women will suffer rape or attempted rape in the course of their lifetime (slightly down from a generation ago).

Rape persists in staggering numbers despite its unequivocal legal and moral condemnation; despite its universal condemnation, rape does not appear to be generally considered as morally atrocious as torture, even though the fact that rape is used as a method of torture is widely known. There is then a massive moral disconnect between the legal and moral status of rape, and the persistence of the practice of rape. Nor is there any reason to suppose that either race or class are, in the case of rape, significantly exacerbating factors: college age white women suffer from rape at an even slightly higher rate than the wider population; it is not them but we who rape.[11] Something in the moral understanding and perception of rape is wildly askew, as if somehow abstract moral knowledge and concrete moral perception were here so systematically disconnected that the former cannot and certainly does not successfully inform the latter. Although there are immense legal issues surrounding the reporting and prosecution of rape, which I shall briefly comment on below, my judgment here is that, at least in the first instance, the phenomenon in desperate need of explanation is the persistence of rape, with my hypothesis being that the persistence of a rape culture depends essentially on what I am calling the moral disconnect between abstract moral knowing and concrete moral experience, especially among the perpetrators, with the further lemma that one element in the moral disconnect is a failure to appreciate the how morally injurious rape is.

Failure to appreciate how morally injurious rape is, how it is at least standardly and perhaps always devastating, depends on a whole raft of pervasive social scripts and perceptions: that sexual exhibition is a direct invitation; that even rape is a form of sex and must, therefore, be finally enjoyable; that the only available alternatives for men are to be sexually aggressive or a eunuch; that the refusal to be sexually cooperative under normal circumstances is grounds for resentment and anger; that there is a morally significant gap between physical force and other forms of coercion sufficient to make the use of the latter, no matter how forceful, legitimate and therefore different from rape; that women desire to be overpowered; and on.[12] In a carefully done ethnography and analysis of sexual assault in a party oriented Midwestern university, the authors carefully integrate three levels of analysis: personal characteristics; the standard dynamics of a “rape culture” (like the scripts just noted); and, the authors’ primary focus, the structure of particular settings, as here: parties at male fraternities amongst a party-going, homogeneous upper middle-class cohort in which much alcohol is consumed.[13] Their analysis reads as utterly plausible — the fraternity setting, the gendered hierarchy, the structure of men assuming the role of aggressor and women assigned the role of sexual gate-keeper, the place of alcohol, with, finally, the unexpected judgment by women in this cohort that when assaults and rapes occurred (and they did in the course of the academic year), it was the victim who was to blame, not her rapist — this judgment operating as a mechanism for protecting the party-culture as a whole. What is so disturbing about this study is that neither students nor researchers underlined or thought even to mention how morally atrocious rape was; the devastation of rape was invisible. For all intents and purposes, rape was viewed as the end-point along a sexual continuum, sexual assault and rape showing up as something like unwanted sex, or perhaps extraordinarily bad sex.[14]

The institutional conditions and the powerful cultural clichés structuring the social interactions that occur in them matter; but they could not circulate in the easy way they do if rape was emphatically understood as more morally injurious than killing. Again, if the justificatory burden for torture is higher than that for killing, and if rape is a form of torture, then rape is — at one level — more morally injurious than killing: killing need not shred the fabric of the human status of the victim, while torture and rape do, either as an explicit intent or as implicit element of the practice. It is difficult to imagine that rape could persist if it was universally held to be as morally abhorrent and as morally atrocious as torture. Adopting the slogan “Rape is torture” would not be a bad beginning.

How are we to understand the failure to regard rape as being as massively morally degrading and abhorrent as it, in fact, is? While inadequate to the enormity of the issue, four streams of thought essential to my overall argument do seem central here: (i) the contrast between moral rules and moral injury; (ii) why rape is not sex; (iii) the moral perception of women’s bodies; (iv) the abuse of the public/private distinction in the understanding of fundamental rights. This last issue will take me back to questions about rape and the law. I will be focused and brief, with the full discussion these issues deserve reserved as a topic for another occasion.

The very opening of my argument began: Moral rules and principles, whether taken as natural laws or laws of reason, are without force and meaning in a wholly secular universe; the very idea of moral rules as forming the core of morality is a hangover from a theological age. Commands without a sufficiently powerful commander are idle; and obeying rules is not transparently the same as acting morally. Even if there is an absolute moral rule that states “Rape is wrong”, or its action-guiding equivalent “One ought never to rape”, the skeptical question cannot be evaded: what morally happens if I break the rule? I assume the answer “I feel guilty” (or not) cannot be to the point. Rule moralists will urge that implied by the rule is the thought that in breaking the rule one fails to show due respect for the other. This is better; but in this setting, the notion of respect idles too. The college students in the above study considered that sexual self-respect comes from knowing the local rules for partying and sexual conduct – how to dress, who to party with, how much to drink, which fraternities are safe, who to sleep with and when, etc. – which will garner appropriate respect from males.[15] But this is just the flip-side of the judgment that victims always were asking for it: they lacked either the requisite knowledge or the self-esteem needful for sexual respect, and therefore deserved none. In Kirby Dick’s The Invisible War, we are shown the military as routinely blaming the victim, in two cases charging rape victims with adultery, although single, because their rapist was married. In a final judgment, one victim’s case is dismissed because rape, she is told, is a normal hazard of military service.

Torture and rape are always radical acts of dispossession, a severing of the victim’s voluntary body from her involuntary body. Lack of consent entails the violation of bodily autonomy; the violation of bodily autonomy is fulfilled by the violation of bodily integrity; and the violation of bodily integrity involves dispossession: lesser bodily integrity means lesser bodily privacy, which means lesser human significance. We cannot even begin to gather the sort of wrong rape is until and unless it is regarded as morally injuring — devastating — the victim in her standing as a human. No matter the mechanisms for its achievement, rape accomplishes a violent act of dispossession that degrades and devalues, treating another human as subhuman, or seeking to make her so. Without the language and understanding involved in an embodied conception of human dignity as realized through bodily autonomy — where the practice of consent in sexual practices is our primary mechanism for securing and fostering the norm of bodily autonomy — nothing of the moral devastation of rape can be understood or become socially actual, for victims and perpetrators.

The morality of rules, I am arguing, morally alienates perpetrators and victims from the actuality of moral injury and devastation, and thereby effectively empties moral experience generally of its intelligibility and meaning. Moral alienation is the actuality of morality in our social world. The persistence of rape is both cause and effect of moral alienation: without the morality of rules we could not secure a moral culture that nonetheless tolerates and suppresses the devastation of rape; but the persistence of rape, which requires the morality of rules for its continuance, derives from the eons-long degradation of women as, in being bound to their bodily life, are bound to nature in a manner that the morality of reason repudiates as without moral significance on its own.

Second, then, without beginning with some deep sense of bodily autonomy as fundamental to an individual’s understanding of her self-worth, we cannot even begin to explain why rape, although deeply involving a woman’s (or man’s) sense of their sexuality, of how their bodily is sexually contoured, and hence what touching and penetrating it involves, nonetheless is not itself the act of one person having sex with another. As Ann Cahill has pointedly expresses it, “rape is sexual but not sex, from the victim’s perspective.”[16] It is not sex from the victim’s perspective precisely because it happens without her agency, without her giving herself, without her welcoming and wanting, without her consent. When that occurs, it is not that the act is missing some tincture of mental assent, some mental nod of affirmation. Rather, the victim is dispossessed of having any control over the appropriate relation between her voluntary body and her involuntary body. And when this occurs, her body is no longer her own. To be dispossessed of the power to control the relation between one’s voluntary and involuntary body is to be dispossessed of one’s standing as a person. Because even good sex involves a surrender to bodily involuntariness, then it can seem as if the moment a rape victim surrenders to her violation she is doing what she would do if the sex was voluntary, and hence this is, just, unwanted sex. When the rape is manifestly an act of physical overpowering and invasion, a battering of her sexual organs, this is manifestly not so. It is an assault. But the act does not suddenly become sex when for fear of being battered the victim stops physically resisting, or from fear does not physically resist at all. There is not only the syndrome of blaming the victim, but my hunch is that the metaphysical confusion that is a moral confusion about the meaning of surrender here is one of the factors in promoting the sense by the victim herself that she must have been at fault for not fully or properly resisting. So the moral illusion persists that there was always more she should have done.

Third thesis. One apparently utterly socially routine feature of the college party scene points to a deep structure of male domination and its metaphysical misogyny, namely, that women were encouraged and indeed wanted to look “hot” (but not slutty), to look erotic, where failure to do so was to court social disapproval, while men could dress how they pleased, and were not, all things being equal, meant to flaunt their sexuality. Has it not always been so? In Chapter Three, following the thought of de Beauvoir and Judith Butler, I argued that the sexual framing of the female body was a component of a fundamental structure of patriarchy in which the whole of bodily involuntariness was projected onto women, with men culturally preserving for themselves the entire set of entitlements and self-understanding that compose bodily voluntariness. So viciously invariant are these cultural archetypes, that the male conception of embodiment, that is, a body is mine if and only if I can manage to ideally control it, to bring all of it within the purview of the rational will, became the Western metaphysical idea of what bodies are like, and hence what the appropriate relation between the mind or rational will and the body should be. All this, we know, simply denies the existence of the involuntary body as a distinct stratum of human existence. What allowed this prima facie implausible conception of embodiment to become universally accepted (by men) was that the burden of bodily involuntariness was deposited on women, leading to women, thereby, being excluded from full and equal standing in the polity. But this cultural severing of the voluntary and involuntary body into gender different locales could not be indefinitely sustained unless the involuntary body was not only deposited as constitutive of female embodiment, but that conception of embodiment tacitly repudiated, abjected.

For at least some significant portion of the male population, to perceive a “hot” woman is to perceive a woman as already abject, as one whose body condemns her to involuntariness, especially the involuntariness of sex and reproductive events, and hence as destined for sexual invasion. To so perceive women is to perceive them as not entitled to moral control or bodily autonomy. Women’s sexuality is realized through sexual possession by some man, making every woman always already possessed by men, theirs. In The Invisible War, a Navy rape victim records how after raping her, her assailant ran his hands over all of her body, and then stated “All this is now mine.” Rape, I argued, is the effort to pin a woman to her abject body, and for the man to appropriate to himself the whole of bodily voluntariness, to affirm, again and again, his possession of and entitlement to it — a logic, I have argued, that is equally what “breaking” the victim in torture amounts to, and hence accounts for the sexual subtext of all torture. Even before the deformed perception of female bodily abjection has come on the scene, the work of moral derogation has been accomplished: having dispossessed women in general from having full access to bodily autonomy — what the differential dress code means to accomplish — they have been equally dispossessed of full human dignity since fully human dignity is in fact accomplished through having an appropriate control over the relation between one’s voluntary and involuntary body.

If anything like this train of argument is true, it follows that from the patriarchal perspective, women are incapable of suffering moral injury: already bound to bodily involuntariness, they might deserve some moral regard, as all humans do, but nothing in the nature of their way of being human would prevent them from being violated, dispossessed, and devastated as such. The all-too-familiar moral construction whereby it is the husband or family who are dishonored by a woman’s violation, or, until very recently following the dictates of the marital exemption clause, a woman could not charge her husband with rape, both point to a deeper moral syndrome in the perception of female subjectivity. If, in what is a paradigm of moral dispossession, women cannot be regarded as suffering moral injury through rape, then there is no socially effective category of moral injury; or more accurately, sexist and racist culture generates a deracinating moral alienation whereby our collective failure to recognize the moral substance of our fellow citizens entails the severing of ethical experience from its conditions of possibility. In disavowing vulnerability and bodily involuntariness as conditions and components of moral experience — which is what sexism, patriarchy, and racism do — we thereby make unintelligible to ourselves our own moral experiences and fiercest commitments. The name this alienation goes under is: moral principles. Culturally, for a huge swathe of the population, convergent with but independently of the ordinances of religious ethics, there are only moral rules, principles, laws, and commandments; entailing that the stakes of morality are, finally, solely issues virtuous obedience and defiant (or indifferent) disobedience. The idea that morality is a matter of moral rules and principles, and the societal abridgement or denial of women’s bodily autonomy, their bodily abjection, re-enforce one another, effectively silencing women’s moral experience and placing the social presentation of moral injury out of discursive reach of all. The moral metaphysics of male embodiment, the moral metaphysics of the autonomous will, is itself a product of patriarchy, of disavowal, that necessarily prevents the very idea of moral injury from coming fully into view. Hence in the name of principled morality, the suffering of women becomes invisible. Women know they have been violated and dispossessed, without having reliable and usable discursive access to the kind of moral metaphysics of embodiment that would substantiate their knowing. Arguably, most men know that rape is wrong, even terribly wrong, without knowing that it is destructive of a woman in her standing and status as a person. Devastating.

Unless and until rape is seen as dignity destroying, as violative, degrading, and devastating the very idea of moral injury cannot accede to its authoritative place as the fundament of moral experience, even as it operatively continues to function sotto voce in the language of humiliation, degradation, mortification, et. al. Yet, fourth, something like the thought of moral injury is implicitly present in the judgment that torture is the worse thing a human being can suffer, including the thought that rape is a form of torture. Built into our understanding here is the belief that the state must be denied authority over any individual’s body for unless one has some moral sense that his or her body is his or her own, beyond the touch of the state, nothing could be morally his or her own. And this fundamental sense of bodily autonomy, I argued, is what is at stake in the prohibitions on torture, slavery, and cruel and unusual punishments, where these prohibitions are the moral ground funding the notion of dignity necessary for the claim that each is entitled to the right of recognition of being a person before the law. This right, however, cannot be secure without buying into an appropriate moral metaphysics of embodiment, and the persistence of rape is a clear block to that moral metaphysics being fully embraced. To state the issue bluntly, we are both utterly committed to and utterly divorced from the conception of bodily autonomy and integrity necessary for a coherent conception of human dignity. And the reason for this is patent: the full public right to bodily autonomy in each person’s relation to the state has manifestly failed to cross over into each person’s private right to bodily autonomy. I will not repeat the elaborate, detailed, and blistering feminist critical analyses of how the distinction between “public man” and “private woman” has formed and deformed the tradition of western political thought.[17] I would only add here, that what finally drives the public man/private woman distinction is precisely the gendered metaphysics of embodiment in which men appropriate to themselves the whole of the voluntary body as a mechanism for the suppression for subjugating women, while disavowing the need for an explicit recognition of the sort of bodily autonomy necessary to capture the wrong of rape. The public man/private woman distinction is effectively the legal legitimation of rape, it is the legal form of every rape culture.

Without a massive transformation in moral culture in which the morality of rules is replaced by robust conception of human dignity as the respect due to each of us as dependent, vulnerable beings subject to the depredations of humiliation and devastation, rape will persist. Nonetheless, transforming our legal culture might form a wedge into the transformation of moral culture. What would an explicit and public recognition of bodily autonomy sufficient to capture the moral harm of rape look like? Although far from sufficient, a beginning would be made if each person had an absolute right to sexual autonomy, where full autonomy is taken to include “mental capacity, awareness of the available options, adequate information, and freedom from outside interference with the process of choice,” together with what I have argued to be at the core of our notion of the person, “a physical boundary, the bodily integrity of the individual.”[18] By making bodily autonomy central without explicit mention of sexual autonomy, the law has targeted the defense of public man while privatizing (and even abjecting) the bodies of women. The sexual body has always been the bearer of our idea of the involuntary body; without explicit acknowledgement of sexual autonomy, the actuality of bodily involuntariness is denied and repudiated. In privileging bodily autonomy without sexual autonomy, the law has distorted the moral experience and legal rights of women, letting rape remain effectively under the radar of the law until that moment where physical violence itself suddenly makes a woman’s body legally visible. In most jurisdictions it remains the case that rape requires force, where force is only taken as actual when imprinted on a woman’s body, thereby making her words, decisions, and choices prior to that moment empty of any legal meaning — and for too many men, empty of moral meaning. Rape laws requiring force deny men’s and women’s bodily autonomy.

I owe the thesis that sexual autonomy should be an explicit right, and that abridgments of autonomy rather than the use of force should be the criterion for recognition of valid consent, to Stephen Schulhofer, whose Unwanted Sex argues for it with power, analytic subtlety, and legal rigor.[19] As he states his core thesis: “In a regime that prohibits not only physical force but all unjustified impairments of autonomy, an impermissible threat is, by definition, an improper interference with freedom of choice… A wrongful threat intended to induce sexual compliance is coercive in itself, just as a wrongful threat intended to obtain money is sufficient in itself to constitute the criminal offense of extortion.”[20] How to distinguish legitimate inducements from threats, what forms of economic pressures, nonviolent threats, and professional authority are going to generate violations of autonomy are complex matters that Schulhofer analyzes with convincing care. But once we include within sexual autonomy the “freedom to seek intimacy with persons of our own choosing and to seek sexual fulfillment as a valued goal on an intimate relationship,” then, by removing even the idea that sex should be an item in an exchange of goods, at least the outline of what it means to possess sexual autonomy can begin to emerge.[21]

But my reason for introducing the idea that there should be an explicit right to sexual autonomy was not to settle, in a few short paragraphs, all the problems besetting rape law. Getting the law right is vitally important, but if the morals governing sexual interaction are as weak and flawed as they now are little will change. The essential good of having an explicit right to sexual autonomy is to provide full institutional recognition of the sexual component of the right to bodily autonomy and integrity, thereby making the full meaning of bodily autonomy itself visible. A first step to giving moral injury the kind of physiognomy it requires is to make explicit that the harm of rape is a violation of bodily autonomy and integrity, legally and morally. Squaring our moral and legal intuitions with one another in this way would begin to make powerful and visible the injurable and vulnerable bodies that in their moral inviolability are the actuality of human dignity.

In Chapter Five I argued that an essential measure of the moral well-being of a society was the extent to which its citizens enjoyed trust in the world, since it, again, is the ethical substance of everyday life: trust is the ethical actuality of persons recognizing one another as persons. I further stated that trust is an unequally distributed social good. Nothing more emphatically distinguishes the everyday life of men from women in our society – and the everyday life of most whites from most African-Americans – than their experience of trust in the world.[22] Fear of rape belongs to the everyday comportment of most women: when and where they can walk alone, and when and where not; whom it is safe to be alone with and who not. All women must routinely take precautions that most men never even consider.[23] Women’s lives in our society have a lining of fear that most men’s lives do not. Nothing will count as confronting the full extent of our moral deformity that does not address the social reproduction of fearful lives and the unequal and unjust distribution of trust. To provide full and explicit legal and institutional expression of the right to sexual autonomy, and so make explicit and visible the character and possession of the bodily autonomy and dignity of each citizen body is a necessary step to providing a civilization in which each citizen could be free from the threat of humiliation, and each capable of having equal enjoyment of trust in the world.


[1] For a detailing of this, see Jeffrey C. Alexander, “On the Social Construction of Moral Universals: The “Holocaust” from War Crime to Trauma Drama,” in his The Meanings of Social Life: A Cultural Sociology (New York: Oxford University Press, 2003), pp. 27-84.

[2] The immediately succeeding six articles spell out in more detail what legal human rights amount to: equality before the law (Article 7); the right to effective legal remedies for any abridgement of rights (Article 8); freedom from arbitrary arrest or detention (Article 9); the requirement for fair hearings before an independent judiciary with respect to all criminal charges (Article 10); the presumption of innocence (Article 11); rights to fundamental areas of privacy (Article 12).

[3] For the debates and argumentation leading to these articles, underlining their item by item anti-Nazi origin see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), Chapter 2. For a useful corrective to this reconstruction that underlines the longer history leading up to the writing of the Declaration, including the role of smaller states in it, see Susan Waltz, “Reclaiming and Rebuilding the History of the Universal Declaration of Human Rights,” Third World Quarterly 23/3(June 2002), pp. 437-448.

[4] The Declaration plausibly places torture together with cruel and unusual punishments, and slavery. Together, with rape and domestic abuse, these form a more or less unified syndrome of moral injuries – or so I have claimed. Because torture was historically primary in the eighteenth century, it has remained something of a moral marker for the syndrome as a whole, and thus intimately connected with our understanding of the modern state. My focus on torture was thus in part an archeology of the moral meaning of the modern state, not for the sake of excluding slavery, rape, and cruel punishments, but, on the contrary, as a mechanism for schematizing their moral presence.

[5] My present intention is take up the defense of the substantive rule of law in a companion volume to this one.

[6] This is unrealistic in itself, since torturing takes practice, training, institutional provisions for research, etc. For a pointed account of the institutional prerequisites are see Jean Maria Arrigo, “A Utilitarian Argument Against Torture Interrogation of Terrorists,” Science and Engineering Ethics 10/3 (2004), pp. 543-572. Once one acknowledges all the real life requirements for successful torture in a rare circumstance, one has thereby set in place structures, practices, policies, and political investments that entail that the situation is not a one off, but part of a recurrent state practice. As Henry Shue argues, in an essay that has the same argumentative shape as the one I am pursuing here, “The ticking-bomb hypothetical is too good to be true – it is torture conducted by wise, self-restrained angels… One can imagine rare torture, but one cannot institutionalize rare torture.” Henry Shue, “Torture in Dreamland: Disposing of the Ticking Bomb,” Case Western Reserve Journal of International Law 37/2-3 (2006), pp. 231-9. He considers the issues I take up under the imagination under the notions of “idealization” and “abstraction”.

[7] Apart from the numerous works already mentioned, the interested reader should consult: Bob Brecher, Torture and the Ticking Bomb (Oxford: Blackwell Publishing, 2007); J. Jeremy Wisnewski, Understanding Torture (Edinburgh: Edinburgh University Press, 2010), which contains an immensely useful bibliography; Sanford Levinson, Torture: A Collection (New York: Oxford University Press, 2004); Michael Davis, “The Moral Justifiability of Torture and Other Cruel, Inhuman, or Degrading Treatment,” International Journal of Applied Philosophy 19/2 (2005), pp. 161-178; Steven Lukes, “Liberal Democraatic Torture,” British Journal of Political Science 36/1 (2006), pp. 1-16; ; Christopher Tindale, “Tragic Choices: Reaffirming Absolutes in the Torture Debate,” International Journal of Applied Philosophy 19/2 (2005), pp. 209-222.

[8] This is what happened to Henry Alleg during the Algerian War; Henry Alleg, The Question trans. John Calder (Lincoln: University of Nebraska Press, 2006), with a fine Introduction by Sartre (that had originally appeared as a review). It is the most graphic account of a torture of which I am aware. Of course, torture does sometimes work; for a painful documentation of one case, also from the Algerian War, see Giselle Halimi, Djamila Boupacha: The Story of the Torture of a Young Algerian Girl Which Shocked Liberal French Opinion, trans. Peter Green (New York: MacMillan, 1962); with a powerful Introduction by Simone de Beauvoir.

[9] For the best version of this, see Oren Gross, “The Prohibition on Torture and the Limits of the Law,” in Levinson (ed.), Torture, pp. 229-253. Shue, “Torture in Dreamland,” has Gross’s argument as its target.

[10] Jennifer Steinhauer, “Sexual Assaults in the Military Raise Alarm in Washington,” The New York Times, May 7, 2013. The issue of rape in the military has received renewed attention in significant part due to the deeply disturbing documentary film by director Kirby Dick, The Invisible War (2012).

[11] Following the National Institute of Justice report The Sexual Victimization of College Women (1997) by Bonnie T. Fisher, Francis T. Cullen, and Michael G. Turner.

[12] See, for openers, Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Cambridge, MA: Harvard University Press, 1998), Chapter 3; Robin Warshaw, I Never Called it Rape (New York: Harper & Row, 1988).

[13] Elizabeth A. Armstrong, Laura Hamilton, Brian Sweeney, “Sexual Assault on Campus: A Multilevel, Integrative Approach,” Social Problems 53/4 (2006), pp. 483-499. They report that campus rape and sexual assault numbers have not shifted for the past five decades.

[14] One patent fault in the study, given its own orientation, is that the focus is on a female dormitory cohort without a consideration of a parallel male cohort, and hence without even an attempt at gathering the dominant and controlling moral attitudes. I should say, despite my fundamental criticism, I do not disagree with their reasonable policy recommendations: more diversity and heterogeneity on college campuses generally, and in housing arrangements in particular; more controlled public spaces for socializing; better control of and education about alcohol consumption.

[15] Ibid., pp. 493-4.

[16] Cahill, Rethinking Rape, p. 140. Cahill goes on to provide sharp criticisms of both Catherine’s MacKinnon’s view that women never have any meaningful choice about intercourse in a patriarchal setting (where there is none other), and Susan Brownmiller’s view that precisely because a woman was denied her sexual agency, then nothing sexual occurred; it was an act force only, a bodily assault; battery. Cahill’s distinction between an event being sexualized, that is, having sexual significance, and it being an act of one person having sex with another is important and well-drawn.

[17] I take the classic works here to be: Susan Moller Okin, Women in Western Political Thought (Princeton: Princeton University Press, 1979); Carole Pateman, The Sexual Contract (Oxford: Political Press, 1988); Jean Bethke Elshtain, Public Man, Private Women: Women in Social and Political Thought (Princeton: Princeton University Press, 1993).

[18] Schulhofer, Unwanted Sex, p. 111.

[19] For a pioneering earlier effort in the same direction, see Susan Estrich, Real Rape: How the Legal System Victimizes Women Who Say No (Cambridge, MA: Harvard University Press, 1987). For powerful defenses of autonomy in sexual relations, see Drucilla Cornell,Beyond Accomodation: Ethical Feminism, Deconstruction, and the Law (New York: Routledge, 1991); and her The Imaginary Domain: Abortion, Pornography and Sexual Harassment (New York: Routledge, 1995).

[20] Schulhofer, Unwanted Sex, p. 131. As he notes earlier, rape laws requiring force fall well below the standards for property theft, where the law “punishes taking by force (robbery), by coercive threats (extortion), by stealth (larceny), by breach of trust (embezzlement), and by deception (fraud and false pretenses). All these methods violate my right because they impair – with no adequate justification – my control over my property” (p 101).

[21] Ibid., p. 121.

[22] Janine Jones is pursuing an analysis of the (immediate) perception abject black bodies that, I suspect, will provide a parallel with my account of the (immediate) perception of abject female bodies. Because that perception of black bodies is so widespread amongst whites and law-enforcement officials, including amongst African-American law-enforcement officials, then the depth of the problems facing that community are ethically distinct, calling for a separate accounting.

[23] For documentation and analysis, see ibid., Chapter 3; and Cahill, Rethinking Sex, Chapter 5. Neither is operating with my thick ethical conception of trust; it is the experience fear they home in on.

Jay M. Bernstein

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