Liz Swan Ph.D.

The Philosopher Is In

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Brett Kavanaugh: sex, drugs, and the Supreme Court

Posted Oct 04, 2018

Liz Swan
Freeman Swan (author's son)
Source: Liz Swan

The Brett Kavanaugh case is raising lots of ethical, political, historical, social, and legal questions all at the same time. Because this blog is about philosophical questions, those are the ones I'll focus on here. I've been following the case closely and see at least two interesting philosophical problems about personhood emerging in this case:

1) Do people change over time? Specific to this case, should the inebriated 17-year-old version of Brett Kavanaugh be taken into consideration when he's applying for a job decades later? How relevant are former versions of ourselves to our present reality? The people running the hearing and the media as well seem to believe it matters a lot. What's problematic about this assumption is that it implies that people are the same, are stable, and integrated selves over time, even long stretches of time. And the reason this assumption is problematic is simply because our society also values therapy, maturation, personal development, even in its extreme form, like born-again Christians, who used to live a faulty or criminal life but now are healthy and happy members of society. So the philosophical question here is, do former versions of ourselves matter in society's current assessment of us as individuals, and if so, why?

2) Can someone rightfully be charged with a crime or ethical misconduct if he or she doesn't have any memory of the event because he or she was extremely inebriated at the time the event occurred? In other words, does there need to be conscious memory of the event, or just the event itself? In this particular case, it's possible that Brett Kavanaugh was in fact the individual who did the things that Dr. Ford claims he did. At first, I believed her story but thought she might have remembered the wrong individual (Brett) as the person. My thinking was simply, how could an esteemed judge lie under oath? But people do surprising things all the time. It is perhaps more likely that Dr. Ford's account is true and that Brett Kavanaugh has no memory of the event because he was blacked out drunk. To him, he's telling the truth. He may even be able to pass a polygraph (lie-detector test) because in his mind, the event Dr. Ford describes, never happened. His brain has no record of the event because brains don't record memories when they're compromised 'Brett Kavanaugh 1980's style'. If my hypothesis is right, then is Kavanaugh still to blame? Yes, of course. But is he lying under oath? This gets a lot trickier. 

This case has made me think a lot about the connection between alcohol abuse and sexual assault. In a post I wrote here in 2016, I argued that consent is not the best criterion for sexual activity because if consent is given during an alcohol-induced blackout, it won't be remembered, which causes the victim to believe the sexual act was against his or her will. People in blacked out states are not passed out; they are still walking, talking, laughing, or even driving, but just not remembering any of it the next day, once the alcohol has worn off. That blog post raised an interesting philosophical point and unfortunately, people misunderstood it in every way imaginable (read the comments).

But what I find interesting is that, in the scenario I imagined where consent is given during a blackout and not remembered, many readers were upset and read this as blaming the victim — in other words, they didn't like the idea that actions committed during a blackout still matter. But in the Brett Kavanaugh case, the social reaction is the opposite. If Judge Kavanaugh was in fact blacked out drunk and attacked Dr. Ford, then rather than arguing that society should let him off the hook because he was inebriated and doesn't remember doing it, a good portion of society seems to believe that we should hold him accountable for his actions. We can't have it both ways: either we're still responsible for our actions when we're blacked out drunk or we're not.

Thanks for leaving your thoughts and reactions below.

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