Can Human "Non Persons" be Molested?
Personhood theorists claim that one who becomes permanently unconscious has lost personhood. Some even claim that such people are "dead." In any event, personhood theorists hold that a permanently unconscious human being is of materially less moral value than persons (perhaps including animals), and hence, can be harvested for organs and used in medical experimentation in ways that would be wrong to do in persons.
I disagree adamantly with that. But this terrible story about the sentencing of a sexual predator of the profoundly disabled makes me wonder: If a patient who is non aware has lost much of their moral value due to their cognitive disability, can they truly be sexually molested? If so, is the crime just as wrong, or should it be deemed akin to violating a corpse--which under law is punished less severely as sexually assaulting a living person.
The creep got 45 years in a plea bargain, the least he deserved. True, some of his victims were conscious. But should that matter? No! And it didn't in this case, in which the prosecutors treated the violation of the unconscious just as seriously as that of the conscious. This is as it should be because the unconscious are--and should be so treated--as fully human persons possessing full human dignity, not as mere meat or quasi-cadavers.
posted by Wesley J. Smith @ 11:38 AM
4 Comments
4 Comments:
To answer the question posed in the title - yes. I don't need to dig into personhood philosophy to answer it.
Cats are non-humans. They can be molested.
Dead bodies are human non-persons, and I would argue they can be molested too.
But I think what you want to get it is whether there is either physical or psychological harm to a molested person who is in a PVS.
Physical - depends on the facts.
Psychological - I lean towards no, for the same reason that in torts law, common law recognizes psychological harm of a person who knows he's in danger as greater than someone who was unaware of it the whole time.
Now back to criminal law, I find the victim-compensation rationale of criminal justice one of the more persuasive for non-lethal crimes. As such, yes, victim awareness is critical to the injury and hence, the level of punishment.
(Before you ask, yes, I think that is quite compatible with your philosophies on equal human worth)
So, I would be more inclined to give this creep a lighter criminal sentence simply because the comatose person is unaware of the crime.
Afterwards, send him straight to a mental facility. Thank you Kansas v. Hendricks.
Ah, but in some states bestiality isn't a crime or is a mere misdemeanor. And if somebody "felt up" a cat or took picture of its genitalia, I doubt anything would be done. Moreover, the issue is often whether the animal was harmed physically or could "consent." (You might recall that I wrote a piece about the horse incident in Washington State in which I argued that the real issue was the violation of human dignity to have sexual congress with an animal.)
But Royale, based on your comment, you seem to believe that raping a conscious woman is worse than raping an unconscious woman due to the former's awareness of the crime. I think the opposite argument could be made. A conscious woman can fight back. An unconscious woman cannot.
As for me: I hold both to be equally reprehensible.
"But Royale, based on your comment, you seem to believe that raping a conscious woman is worse than raping an unconscious woman due to the former's awareness of the crime."
Yes, it would be. And yes both are reprehensible.
In the latter, I'd give 10-20 years of jail time, for the former, 15-25.
And should someone kill the assailant, I'd acquit.
Spoken like a true lawyer, except the last part.
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