Singer on Stubblefield

A year ago I wrote on the case of Anna Stubblefield for the Los Angeles Review of Books. Here's a long excerpt, stay with me:

Michael Gill has just published Already Doing It: Intellectual Disability and Sexual Agency (University of Minnesota Press, 2015). Gill’s book emphasizes the prevalence of sexual ableism, a “denial of ability to be sexual (or desexualization) for individuals with intellectual disabilities.” While much of the book focuses on sexual education, media representation, and other issues that may not be directly relevant to the Stubblefield trial, Gill’s overall framing of the project matters. In the opening of Already Doing It, Gill draws on Nigerian author Chimamanda Ngozi Adichie’s aphorism, as recorded in this TED talk, about “the danger of a single story.” Adichie, focusing on race and perceptions of Africa, argued that reducing people to one aspect “makes our recognition of our equal humanity difficult.” When it comes to sex and intellectual disability, Gill suggests, we pursue a single story of victimhood, unaware of the multiplicity of possible narratives.

We bring our own idea of what that story must be to the facts, warping them to fit our preconceived biases. Gill writes,

When discussing this project, I often encounter a response that imagines the most “severe” case. These responses, a type of single story, seek to discredit any effort to advocate for the sexual and reproductive rights of individuals with intellectual disabilities […].

It was, of course, the prosecutor’s job to present a single story of the worst-case scenario. That’s how trials work. In fact, understanding the Stubblefield case requires simultaneously holding two possible mutually exclusive stories in our minds: both terrible. In the first, Stubblefield used FC to help D.J. communicate with the world for the first time in his life. He and she became close. She helped him enter school and collaborated on an academic publication. Then they became lovers. When they told his family, though, they accused her of sexual assault and took away D.J.’s communication device. In the second, D.J. was never able to communicate, and Stubblefield unknowingly manipulated his communications, deluded herself into believing they were in love, and raped him. In the first, she is going to jail and he is trapped without the power to communicate. In the second, she abused a defenseless individual.

For the judge, only the second story was possible. His rulings on D.J.’s testimony, and the decision of the family in how they presented their son, shaped how the jury might be able to perceive D.J. From the beginning, he was an object, rather than a person.

 Disability advocate Julie Equality, who attended the trial, described how D.J., instead of using “a wheelchair, walker, or crutches,”

was physically supported by his mother. He looked like a baby being guided to take his first steps. […] D.J. was not seated in the courtroom for the trial because he was not considered a conscious person. He was presented only as an exhibit, and I mean that literally, not metaphorically.

The refusal to consider even the possibility that D.J. might be a person, able to move, to communicate, to desire, to consent, solidified the single story of the worst-case scenario. The jury accepted this narrative, grafting their own ideas about the undesirability of disability onto D.J.’s body. Reporter Bill Wichert interviewed a juror who “couldn’t understand” the relationship between Stubblefield and D.J. once she saw D.J. in court. “I was like … ‘You’re going to leave your husband and your kids for someone like this?’”

This unnamed citizen of New Jersey believed that D.J. was unable to consent and so in need of protection. He’s a victim, but not an appealing one, and she puzzled over the reasons that Stubblefield might jeopardize her career, family, and freedom for this unappealing object. To the juror, sexual desire for a disabled body, clad in a diaper (lack of feces control often emerges in narratives intended to minimize agency for disabled adults), is a mark of deviance. So although the purpose of the trial, ostensibly, was to determine whether D.J. required protection and to avenge wrongs done to him, the juror’s determination of guilt depended on disgust. She could not imagine genuine attraction; therefore, the sex acts must have been criminal. The worst-case story won.
Despite the guilty verdict, we still have no idea which one of the stories — both tragic, but only one criminal — is true. As an advocate, caught between the presumption of competence and the desire to protect the vulnerable, I would have made every effort to grant D.J. the agency to testify, trying all possible techniques. That didn’t happen.

I offer you this excerpt because Peter Singer, who routinely opines on the ways that disabled people cause less happiness than normal people, so can be killed (I summarize), has collaborated on a 95% good essay on the Stubblefield case for The New York Times. He and Jeff McMahan, a colleague of Stubblefield's, write about the sentencing of the woman for 12 years, then make two different kinds of arguments. The first is the same as mine about the "single story," albeit marked with language that a disability rights advocate would never use ("mute and spastic").

Rosemary Crossley, the defense’s expert on communicating with people with physical disabilities, assessed D.J.’s ability to communicate, spending 12 hours with him over three days, and found that he “wanted to communicate and was able to communicate, given appropriate strategies.” Her assessment was filmed by cameras in two positions. It was not based on facilitated communication but on methods that could have been viewed and judged by the jurors, such as requiring D.J. to touch, unaided, a “yes” or “no” button on a communication device and to answer multiple-choice questions, most of which he had to read for himself. Under these conditions, D.J. correctly answered 43 of 45 factual questions. The judge refused to allow Crossley to testify about her assessment, claiming that Crossley improperly assisted D.J. during the evaluation. The judge also did not allow the members of the jury to see the videos, which would have enabled them to judge for themselves whether Crossley had influenced the outcome.

She did, however, permit the prosecution to display D.J. to the jury for a few moments in his mute and spastic condition. It is well established in the psychological literature that people tend to infer cognitive disability from severe physical disability, especially when the disabled individual is unable to speak. There is no reason to suppose that the members of the jury were immune to this tendency. Yet fewer than 50 percent of those with cerebral palsy have any degree of cognitive impairment. In an amicus brief, intended to be heard in conjunction with Stubblefield’s appeal, the American Civil Liberties Union, joined by various disability rights organizations, said that in exhibiting D.J. to the jury in this manner, the court had failed to protect his rights. The appellate court, however, has refused to consider the A.C.L.U.’s brief.

This is the "single story." Only DJ as victim is presented, he never gets to be an agent, or even has a chance to have his agency assessed. I'm glad these paragraphs were written, though (see below), I think it contradicts with everything Singer has ever written on disability.

Alas, the essay then turns to rape. Singer will be Singer, so he writes that either DJ could consent, in which case consent ought to be part of the trial, or DJ can't consent, in which case he's not really rapable so long as he's having a good time.

A central issue in the trial was whether D.J. is profoundly cognitively impaired, as the prosecution contended and the court seemed to accept, or is competent cognitively but unable to communicate his thoughts without highly skilled assistance, as the defense contended. If we assume that he is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation. These are, after all, difficult to articulate even for persons of normal cognitive capacity. In that case, he is incapable of giving or withholding informed consent to sexual relations; indeed, he may lack the concept of consent altogether.

This does not exclude the possibility that he was wronged by Stubblefield, but it makes it less clear what the nature of the wrong might be. It seems reasonable to assume that the experience was pleasurable to him; for even if he is cognitively impaired, he was capable of struggling to resist, and, for reasons we will note shortly, it is implausible to suppose that Stubblefield forcibly subdued him. On the assumption that he is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.

Oy. So on the one hand, Singer says that personhood is complex and should always be considered in its complexity. This runs contrary to his decades of anti-disability writing. Did McMahan draft it and Singer just casually pass it over? His attitude towards disability has, in fact, always been slapdash, never engaging the evidence that might push him to rethink his core principles. On the other hand, he suggests that if you're too disabled to consent or not, you might not be rapeable, not really.

On the third hand, there's a Current Affairs write up that uses the Singer piece to attack Facilitated Communication. FC is complex, too. I wrote:

FC has been controversial since its inception in the late 1980s and early 1990s. It was hailed at first as a miracle, as the “silent” disabled suddenly could “speak,” but its reputation was quickly tarnished when a number of individuals seemed to use FC to make accusations of sexual abuse against their parents, accusations all later proven false. These accusations say at least as much about the era of broader hysteria over repressed memories of sexual abuse than the specific technique used to unearth such alleged repressed memories. In other, comparable cases of “false memories” elicited through talk therapy, the false accusations have failed to discredit the techniques by which they are elicited. FC, alas, pushes back against ableist norms that presume incompetence in the disabled, absent absolute evidence to the contrary. Its role in eliciting false accusations, therefore, permanently tarred it, for many, as a pseudoscience.

When it comes to FC, simple answers must be avoided. There’s ample evidence of individuals who have moved through FC to independent typing. They describe having been aware and attempting to communicate throughout their lives, including while using FC; therefore, there must be some people who can only communicate through FC, attesting to its validity. At the same time, it’s clearly possible for facilitators to fall prey to what has been called the “ideomotor effect,” unconsciously turning random movements of their clients into speech. Too many people, looking for a perfectly neurotypical mind inside a neurodiverse one, have fooled themselves into finding what they think must be there. Those people who passed through FC to independent communication stand as testimony to the technique’s possibilities, and to the intense and exhausting work required to make progress.

Let's avoid simple answers. Let's not use our avoidance of simple answers to dehumanize disabled people.