Ethics

Suppose I am closed in a room with an unconscious man who drank too much. It is a hot day and I try to keep the window open, to get some air, but it does not stay so. Case 1: I use this man's body (one of his feet) to prevent the window from getting closed. Case 2: I get sexually aroused and I have sex with this man. In both cases, he does not wake up, and he gets some bruises from my acting, but he comes to know what I did only some days later. Morally speaking, it seems that what I did in Case 1 was a minor offence (if it is an offence at all), but what I did in Case 2 was a serious crime, it was rape. But what difference between the cases justifies these different moral judgments? In both cases I used a man as a tool to advance my interests, I did something that he would probably not want, and I caused him some bruises. The difference, I suppose, is that he would see or feel that my action in Case 2 was more serious, more offensive. And that "society" would see or feel the same. But, morally speaking, can my action BE more serious or offensive only because other people see it so?

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You ask: "morally speaking,

You ask: "morally speaking, can my action BE more serious or offensive only because other people see it so?

Suppose there was someone weird enough to think that your sleeping man would be indifferent between having his feet used to prop a window open and being raped in his sleep. And to make things clearer, suppose this person thinks that the sleeping man wouldn't mind either. It's hard to imagine the psychology of such a person, and may not even be clear if he would be a competent moral agent, but set that aside. What should we say?

Perhaps we would say that we shouldn't judge this person more harshly for doing one of these things rather than the other. No harm was meant; it's just that the person was massively, unimaginably clueless. This would be someone we should keep close watch over; if they actually carried out the rape, we would be fully justified in confining them in some way. We might abstain from moral judgments about the person himself, but there's another question we can ask: if the sleeping man was raped, is what happened to him worse than it would have been if he'd merely had his feet used as a window-stick?

It's a pretty safe bet that he would think so, and that matters. In fact it matters a lot. We don't count up harm or moral offense solely in the coin of bruises. A morally competent person knows that if someone would strongly prefer not to be treated in a certain way, that is, as far as it goes, a reason not to do it; not an all-things-considered reason, of course, but a reason that normally deserves to be taken into account. Indeed: if there's no weighty reason to ignore the person's strong preference, it will normally count as a decisive reason not to do so.

Why? I suppose a certain crude form of utilitarianism might make that look like a good question, though if it came to it it wouldn't be hard to conjure up consequentialist reasons not to rape sleeping people (let alone people who aren't asleep.) But set that aside. Part of what morality demands of us is that we respect the dignity of other people, and that we not treat them simply as means. Using someone's feet as a window stick without their consent is not a way to respect their dignity, and amounts to using them as a mere means, but raping them while asleep is so much further along both scales that to most people it will feel like a whole different kind of offense. To say that most people could be wrong about this would require a very special story to be believable. The example you've given doesn't promise one.

What makes things offensive is, no surprise, closely tied to what people find offensive. What makes something a violation is—again, no surprise, closely tied to what people would see as a violation if it happened to them. The link isn't inviolable, but it's not accidental either. It's difficult to make sense of the claim that something is not actually a violation or an offense even if most thoughtful, informed people would see it as such.

Now of course we sometimes work our way to moral insights that we once were blind to. Understanding the deep wrongness of slavery, for example, is such a case. This happens when people learn to see things that they had overlooked or ignored or turned away from. It's typically a matter of coming to see something from another's point of view. But that is exactly what's missing in the example you offer. In effect, we're asked to ignore the point of view of the person whose point of view seems prima facie most relevant.

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