I’m currently working a paper that considers the crime of rape from the perspective of dual-process theory of moral judgment. The argument is tricky, but in the end, I claim that rape may sit in a moral blind spot because neither of processes hypothesized by Cushman and others to generate moral judgments are well-suited to handle rape. Here’s the current abstract:
Empirical research has distinguished judgments of wrongness or permissibility of action and judgments of punishment. Studies indicate that the former rely principally on the mental states of agents, while the latter rely on both mental states and the causal connection of an agent to outcomes or harmful consequences; hence, some argue humans use a “dual-process system” of moral judgment (Cushman 2008, Kneer and Machery 2019). Reliance on the outcomes of action means that punishment judgments may be subject to the problem of moral luck. However, Kumar has argued that the tendency to hold unlucky agents responsible for harm is not performance error – say, due to error in assessment of probability of harm – but instead, is justified by consequentialist aims of punishment (Kumar 2019). In contrast, judgments of wrongfulness and blameworthiness are primarily retributive. In this chapter I use the dual process theory of moral judgment to examine the crime of rape. Kumar claims that punishment judgments focus on external, public harm because this increases the reliability of punishment as well as its deterrent effect. Rape is notoriously underreported and difficult to prosecute, and punishments can vary wildly between jurisdictions. If Kumar is correct, this may be in part due to the private nature of harm caused in sexual assault cases. If results are not easily identifiable to law enforcement or a court, this may undermine the results-oriented process of moral judgment, and the forward-looking aims of criminal punishment may not be achieved. Further, the process of moral judgment that focuses on an act and mental states may also fail to produce reliable judgments about rape due to the difficulties in and biases related to assigning mental states in rape cases. It may be that rape sits in a moral blind spot.