Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, November 30, 2007

R. George on law and culture

In recent days, a number of us have been discussing the contraception-subsidy proposal, which Michael P. called to our attention.  And, our examination of this proposal has touched on, among other things, the law-culture-conduct dynamic.  On this matter, MOJ-friend Robby George sends in the following for our consideration:

Crimes involving the use of date rape drugs are increasingly common on campuses and elsewhere.  The overwhelming majority of such crimes are committed by men on women.  Evidently, the drugs are widely available and easily obtained.  There doesn't seem to be much that can be done to prevent men who want the drugs from obtaining and using them.

Rape is in itself a horrible crime--always and everywhere.  It is, in my opinion, an intrinsically--and gravely--evil act. Where date rape drugs are used, the offense has additional dimensions.  Often the drugs are themselves harmful and dangerous.  Victims can suffer lasting injuries and even die as a result of ingesting the drugs.

Now, imagine that a date rape drug is synthesized which is just as effective as the ones sold on the street, but (in itself) considerably less dangerous to victims.  The risk of injury and death is substantially lower.  The cost, however, is higher.

How should we respond to a proposal to make the new, safer drug available through the University Health Center on a subsidized and confidential basis?  (Let us stipulate that there is no legal impediment to doing so.  Imagine that the drug is sometimes legitimately distributed over the counter as a "sleep aid.")  The argument is that, though we don't want to encourage date rape and the use of date rape drugs, we need to be realistic.  Date rape happens and will continue to happen despite our ongoing efforts to discourage it; date rape drugs are going to be used; we are not going to be able to turn back the clock and makes these drugs cease to exist.  Let's at least lessen the potential harm to women who are victimized.

Speaking for myself, I would firmly say no to this proposal.  But, then, I am a moral conservative.  I don't think we should subsidize and facilitate immoral behavior, even for the sake of preventing injuries and deaths a certain number of which will surely occur as a result of date rapists using unsafe drugs instead of the safer drugs they would have been using had we subsidized them and made them available.

What I don't know is whether liberals would agree with me as to whether the proposal should be rejected.  My sense is that most liberals do not share the general principle on the basis of which I myself would reject the proposal.  But, perhaps other grounds are available to them for rejecting it.  I don't think they would want to say that by subsidizing and distributing safer date rape drugs we are tacitly approving date rape.  They might, however, say that the policy of subsidizing and distributing the drugs would result in more date rape by contributing to a cultural climate in which date rape comes to be regarded by potential perpetrators as acceptable conduct.  But, then, liberals generally don't reason this way about, say, promiscuity when considering whether to subsidize and distribute contraceptives on campus.  Most liberals I talk with seem to believe that the policy of distributing birth control pills, placing condoms in jars in student lounges, etc. doesn't affect students' beliefs about sexual morality or alter their conduct.  The amount of promiscuous sex will remain the same, they say, whether or not condoms are subsidized and distributed; the only difference is whether the sex will result in unwanted pregnancies and venereal diseases that might have been prevented had condoms been used.

In any event, let's assume, just to test the principle, that we have reliable studies to show that easy access to cheap safer date rape drugs does not increase the number of date rapes in general or the number of date rapes in which date rape drugs are used.  It does not turn non-rapists into rapists.  The rate of date rape snd the use of date rate drugs will remain the same.  The only difference will be that victims will have a lower incidence of injury and death from the drugs themselves.

On this assumption, what is the correct answer from the liberal point of view?  Should a University Health Center subsidize and distribute the safer date rape drugs or not?


Garnett, Rick | Permalink

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