My main problem with Laura Kipnis’ much-discussed essay “Sexual Paranoia” is the excluded middle it outlines. Practicioners of dialectic modes of argument often claim that this approach is necessary in order to locate and recommend that middle. It’s the “Untouchables” theory of rhetorical struggle: they put one of yours in the hospital, you put one of theirs in the morgue! Until it’s all over and everybody gets to live in peace and drink because Prohibition was repealed, or something like that.
I think Kipnis is right that building rules and formalisms that encode a particular kind of person who depends upon institutions and governments to protect them from harm is a mistake in a great many ways. I think she’s wrong in imagining that the alternative is an empowered human subject who makes decisions about sex, erotics and love within the alternative formalism we’ve chosen to call “consent”, a sort of contractual relation between autonomous self-owning individuals. In the new rules, we forbid relationships that we definitionally hold to be non-consensual because of how we describe power as a function of formal institutional roles. In the old rules that Kipnis extols, we sort every erotic and sexual relationship into consent and non-consent and apply an if-then assessment. If non-consent, criminal; if consent, allowable.
The excluded middle here is the messiness of being human, which Kipnis says she prizes (and her powerful, important scholarship throughout her career backs that statement up). But that messiness has to include the possibility that acts, feelings, relations which satisfy even the new rules as being “affirmatively consensual” could be nevertheless profoundly objectionable in those same messy, human terms. And some of them are sufficiently objectionable that they would not just be a “you say tomato, I say tomato” kind of matter for individuals to sort out on their own, but that institutions might in totally human and subjective terms decide to act upon. Kipnis is against the new rules, but in many ways implicitly is defending the old rules (which are just as much rules): that you might suffer the contempt of friends and colleagues, but you should never fear the discipline of institutions. I think the most human thing would be for institutions to act as humanely as we dream of individuals acting: as judicious, wise, complex, sensitive but also strong, decisive and resolute where need be. To act not just because they must (the lawyers say!) or not act because they mustn’t (the lawyers say again!)
Kipnis doesn’t name him by name, but the case of Peter Ludlow at Northwestern is clearly on her mind. In the excluded middle, why not just say what clearly should be said? That he should not have done what he himself admits that he did, and that the wrongness of its doing doesn’t depend on the particulars of consent? That an ideology that maintains that we own ourselves, that we can give consent or refuse it as autonomous individuals, is also an ideology that should allow that we can and should own ourselves sufficiently to keep our zippers zipped in many circumstances? If we’re to hold on to liberal autonomy, let’s hold on to most of it. The worst of all worlds would be to hold on to consent as a liberal form of contract but to dispense with its associated aspiration for self-control and self-mastery. The specter of a self that can consent but cannot be expected to act differently across different social and professional worlds, that has its desire spilling over the walls because that self is a dark romantic kernel inside the rational contracting shell is a familiar ghost, but we shouldn’t welcome its recurrent haunting.
The case that makes this point most clearly for me is of the Yale moral philosopher described by a graduate student who had an affair with him. The details are depressingly familiar, as the author herself recognizes as the essay wears on: an older man who lies proficiently about his marital status, about his sex life, about his intentions. Who turns out to tell the same lies to many women. If that were all of it alone, then that alone is worth writing about, worth sharing, worth accusing. Why not? Why should serial deceit be rigorously private and protected? Surely real individual freedom, especially in matters of sex, love and desire, should include the freedom to share our stories–and our warnings. But also in this case, and all cases of relationships between people, power matters. Because it turns out that the Yale moral philosopher isn’t just a serial liar and intellectual hypocrite, but very possibly is also in breach of the old rules of consent that Kipnis agrees are still vitally important to maintain and enforce. She says of them that the real harassers should suffer all that is coming to them: but we should hardly wait to see a fire break out every time there’s smoke in the air. In all our institutions in modern life, the air is thick with smoke. The lies that old men tell, the advice that fraternity brothers give about drunk women at parties, and so on: our lives are often like the former mining town of Centralia Pennsylvania, where coal seams burn underground unchecked, the fire of harassment and assault always underneath. Kipnis invokes Andrea Dworkin as if to laugh at where we’ve arrived, making mainstream institutional systems of discipline and punishment that affirm her view of all heterosexuality as contaminated by power. Kipnis is right to reject the essential gloominess of Dworkin’s view of so many human relationships as fundamentally contaminated and irredeemable, but Dworkin’s description of power being everywhere in sexuality (and otherwise) is fairly on the mark.
So why not a Yale University which in human and humane terms says to that moral philosopher: we don’t approve of what you’re doing with your reputation as a scholar and teacher, of what you’re doing as a human being, even if you’ve been careful enough to follow some writ, to discipline your desire just enough so as not to hurt and lie to a person who is at this moment your student, to follow the rules just enough. We don’t approve in general of how you use your influence and your power, we don’t think very much of a moral philosophy that applies so very little to your own conduct. And so: go somewhere else? When did a few books full of moral philosophy and a bunch of lectures become so valuable that they earned someone a lifelong place no matter whom they’ve hurt or how they act? Why not imagine institutions that could be just wise enough, just knowing enough, that they might act in human terms, just as we expect from our wise and knowing friends and acquaintances? (Even, perhaps, from our wise enemies.) Why not imagine institutions less as stern sovereigns, or as machines that protect us from both messy desire and weary wisdom? Why not imagine communities–including communities of work–as legitimately collapsing public and private together, as being just as messy as individuals are in how they reward and forbid, act and fail to act? If we want the notion of individuals consenting–and individuals being responsible for their consent–then perhaps we should add to that another shopworn idea, that with great (or even modest) power comes great (or even modest) responsibility.
A defense of the necessary, even desirable, messiness of human life is not about painting a huge unknown “grey area” and saying that everything within it is nobody’s business but the people in the grey. It’s not saying that what happens in Vegas stays in Vegas. It ought to be the opposite: a brutally honest commitment to humanistic empiricism, to the vivisection of the human heart, to the unflinching witnessing of what we do, what we are, what we feel. And if we see, when we see, lies and pain and suffering, we shouldn’t rush to call it desire and pleasure and freedom.
My parents are both professors. I was taught young that professors having affairs with students is common, and that it is wrong; an ethical professor eschews such, even with graduate students, no matter what the rules are. Knowing that such affairs are wrong, avoiding them without needing to be compelled, and acknowledging that they often happen, still seems to me a sufficiency of relevant wisdom.
So you’re saying the philosopher should lose his job, not for any job-related actions (no one is accusing him of being bad at teaching philosophy or writing philosophy) but for actions committed in his off hours, as it were. Of course, this “transgression” happened at a philosophy conference, but if it had happened at a bar would that have been grounds for dismissal? Just how far should this scrutiny of individuals’ “private” lives, not directly related to work, go? Just their sex lives? How about their finances? Their actions in regard to the environment and the biosphere? Their treatment of animals?
And who should decide? Are there fixed, written rules about what is right and wrong (and if so, who formulates them), or does it depend on “our” moral attitudes? And who is the us, by the way? Is it “die gesunde Volksmeinung” (the healthy opinion of the people) as they used to say in Nazi Germany, a regime where formal, written procedures were often attacked? Do we all share the same point of view?
How is this person to be dismissed? Does he get a hearing? Before what body? How can he defend himself? Or does an accusation suffice?
You might want to think a little bit more about the implications of your proposal. By breaking down distinctions between public and private, between job-related and personal, you are attacking fundamental elements of concepts of civil liberties and civil rights.
All I know as I get older is that the point that Kipnis herself makes–that a system driven by rules and formalities mostly seems to teach people a kind of blindness to how much of life is not lived within rules or formalities–applies as much to the commission of harm as it does to being harmed. Meaning that taking those formalized distinctions between public and private, work and personal, as utterly impermeable and sacrosanct, we’re creating a habitat that certain individuals then work to their maximum advantage, using the rules and formalisms almost as an instruction manual about where they can misuse their influence and power without any danger of retribution or consequences.
One of the reasons that many professions established codes within the profession that have some degree of quasi-legal force is precisely that they were trying to distinguish “good” professionals from bad ones, essentially for market reasons–to promise people seeking out that kind of service that the vetted, authenticated professionals had been trained properly and followed a strong code of conduct.
“Don’t sleep with clients” was in those codes for many professions precisely because the professions recognized that clients were often in a state of precarious psychological dependence on professionals providing certain kinds of services, that the client was in peril or at risk, that they were vulnerable. If we understand sex, erotics and love in contractual terms, as “traditional consent” asks us to, then we also understand that one of the oldest principles of contract applies: a contract signed under duress is definitionally invalid.
So who are the “clients” of a professor, especially a notable scholar with a strong reputation in a particular field of study? I’d argue that those clients very much include graduate students in that field even if that professor doesn’t teach them directly. We in fact act as if that’s the case otherwise: faculty at research universities are often ask to mentor students that they are not directly responsible for grading; to assess and review and comment upon their work; to serve as discussants on panels; and so on. This is actually the idealized professional narrative that academic disciplines tell about themselves, that they are communities within which all accomplished scholars are in some sense responsible to and for all upcoming, aspirant scholars.
So: don’t sleep with your clients (including graduate students who connect with you precisely because they are strongly interested in your scholarly work) is in force. So the question is now how should professions monitor compliance with this code–a compliance which doesn’t breach the public and private at all, because it’s essentially something that operates entirely on the market side of our society. A commercial association doesn’t have to admit any business that wants to be admitted–the association can establish criteria for admission, enforce those criteria, and establish whatever procedures it likes for monitoring adherence. If I establish an association of Ethical Foie Gras Producers with other farmers that authenticates the product of all members as ethical, and we create a process for monitoring members and expelling them, no harms against civil liberties are being done. Even if there might be strong consequences to being kicked out if consumers come to trust that label. If the Ethical Foie Gras Producers are arbitrary and capricious in how they enforce the standard, sooner or later you’d hope that consumers would hear of that, and stop trusting the label, thus allowing members to drop out with impunity.
So professions similarly promise: if we’ve vetted this person, they’re a legit doctor or lawyer or academic. In many cases, governments get in on the action too, and require that vetting for professionals to operate legally because of the dangers involved from unvetted or untrained practice. That makes being kicked out of the profession something that has some degree of “civil liberties” implications, because government is involved somewhere in the mix. But if the primary mechanisms for supervision and enforcement are within the profession, it’s still fairly similar to the Ethical Foie Gras Association. A single hospital or the entire AMA could establish any procedure it likes for vetting accusations of sexual misconduct by a doctor. If those procedures were capricious, arbitrary, or unrealistic (say, if they established that all of humanity is a potential ‘patient’ and therefore that doctors should never sleep with anyone) then at some point doctors would stop tolerating those procedures and patients would stop respecting the profession’s attempts to force compliance. Hence the need for hearings, investigations, etc. at the level of a hospital (or the whole professional association): because due process of some kind is a functional, practical method to protect against being capricious or arbitrary. Not because professional governance must of necessity imitate the protections that citizens have against their governments.
So in this case? Why not have procedures that effectively “de-certify” a teacher or scholar, when the conduct of that teacher or scholar is sufficiently in contradiction to his or her professional obligations? In fact, we do have such procedures. Plagiarism generally is a civil rather than criminal matter, but academic professionals take accusations of plagiarism very seriously beyond what the law provides precisely because they strike to the heart of what we’ve professionally certified about a Ph.D-holding scholar. So why not do the same in the case of a scholar who habitually targets vulnerable graduate and undergraduate students in his field and tells them a variety of lies in order to get them into sexual relationships? Those individuals are “clients” in a very meaningful sense. Why not do that especially if the scholar in question strenuously argues in his own scholarship for a capacious definition of moral action that obligates us to treat our private, everyday lives as the source of suffering in the world and calls upon us to act differently in order to relieve suffering? That’s not just hypocrisy, it is a kind of misconduct that invalidates the scholar’s own work on some level, as surely as laboratory fraud would invalidate the work of many scientists.
Isn’t it odd, though, if only plagiarism and sleeping with your clients (broadly defined) can get you kicked out of the profession, along with, I expect, criminal convictions that get you imprisoned.
Yes. I think different professions can and should have other conduct violations that they specify, though not all need to lead to removal of professional certification. Many professions do, at least on paper.