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July 01, 2007

Negligent Sexism

There’s an interesting discussion going on in the comments to a post at the Official Shrub.com Blog that I thought worth commenting upon. And when I say “commenting upon,” what I mean is “utterly ruining with a drawn-out legal discussion.”

The essential question is this: If a person makes a sexist comment but does not intend the comment to be sexist, is the comment sexist nonetheless?

Any time you start talking about actions, intentions, and culpability you start me thinking about the criminal law. One of the basic principles of the anglo-american judicial system is that every crime must have two components, a physical one (the "actus reus" or guilty act) and a mental one (the "mens rea" or guilty mind). We require the guilty mental state to avoid punishing non-criminal acts that seem, superficially, to violate the law. To give an example: Imagine a man who approaches the baggage carousel at an airport, takes a piece of black luggage, and walks off with it. The luggage does not belong to him. We can imagine two mental states for that person. It is possible that the man is a thief and he has taken the bag knowing it doesn't belong to him because he wishes to steal it. He has a guilty mental state and has committed a crime. On the other hand, suppose he owns a piece of luggage that looks exactly like the one he took and has mistaken this bag for his own. He lacks the necessary mens rea to be guilty of a crime

This would seem to indicate that the answer to the question is "no, a comment cannot be sexist without sexist intent." But there is more that needs to be explored about the mens rea requirement.

For every crime there is an explicitly defined mental state that is necessary for its commission. There are four mental states that you'll see in most penal codes: Purposely, Knowingly, Recklessly, and Negligently.

A crime is committed purposely when the criminal knows what he is doing, knows what the likely result of his actions will be, and engages in those actions with the purpose of bringing that result about. An example of this would be a premeditated murder.

More tricky to define is the knowingly standard, which is the defined mental state for most crimes. A criminal commits a crime knowingly when he knows what he is doing, knows the likely result of his actions, and proceeds to act even though he realizes the likely result of his actions. This encompasses some of the lower degrees of murder. For example, a bank robber might shoot a security guard in the chest in the course of a robbery. The robber's action is knowing, since he realizes that death is a probaby outcome of being shot in the chest, but it is not purposeful, since he is shooting the guard to stop the guard's pursuit, not specifically to kill the guard. Murder is one of the few crimes where there is a meaningful purposely/knowingly distinction; knowing crimes and purposeful crimes overlap in about 90% of cases.

The recklessly standard is different. To commit a crime recklessly, the criminal must know what he is doing, have a sense that what he is doing has a high probability of leading to a bad outcome, but then must consciously disregard that probability and do it anyway. As an example, imagine a person who shoots a gun into the ground. The bullet ricochets off the ground and strikes a bystander in the leg. The shooter did not intend to shoot the bystander in the leg, nor is the bystander being hit the natural, inevitable outcome of shooting a gun into the ground. However, firing guns, even into the ground, is a dangerous activity. One seldom fires a gun without considering the possibility that someone will be hurt by it. Therefore, it is likely that the shooter considered the possibility that someone would get hurt when he shot the gun, but then went ahead and did it anyway. If whatever crime he was being charged with required a reckless state of mind, he would be culpable.

Negligence is similar to recklessness, but it doesn't even require that the criminal have considered the risks of his actions. A criminal is negligent when he doesn't know what he is doing, or when he acts without taking the proper care. Negligence is an interesting standard because it's a sort of negative mens rea; what makes you guilty isn't what you're thinking, but what you're failing to think about. If you leave a loaded gun around your house and it accidentally fires and kills someone, you could be guilty of negligent homicide.

Which brings us back to the question of sexist comments. I think the problem becomes more clear when we examine it through the lens of different mental states. A purposely sexist comment is one that the speaker knows to be sexist, realizes will be taken as sexist, and speaks with the purpose of demeaning women. A knowingly sexist comment is one that the speaker realizes is sexist. The speaker might not specifically intend to demean women with the comment, but he nonetheless realizes it will be taken that way. A recklessly sexist comment is made when the speaker knows that what he's saying is probably sexist, but which he goes ahead and says anyway. A negligently sexist comment is a comment that is objectively sexist and which the commenter made without realizing that it might be considered sexist.

So, can a comment be sexist without sexist intent? I think the answer is, "Yes, with a qualification." A sexist remark is still sexist if made with negligence to its potential sexism.

It must be remarked that in criminal punishment the wider the net cast by the mens rea requirement, the less bad we consider the crime. Negligent homicide isn't as bad as reckless homicide, which isn't as bad as manslaughter, which isn't as bad as premeditated murder. At the same time, they're all still crimes and all receive punishment.

Similarly, it seems as though negligent sexism is less bad than reckless sexism, which is less bad than knowing or purposeful sexism. The negligent sexist simply isn't thinking about his privilege. The knowing sexist realizes his sexism and actively forces it upon others. In the middle is the reckless sexist, the person who ought to know better. We might think of these as liberal guys who realize that what they're saying is sexist but who decide to say it anyway. It is interesting to note that this makes them more culpable than the negligent sexist (though less so than the purposeful sexist), which seems about right to me.

Also note that this doesn't suggest that the negligent sexists should be let off the hook, merely that they exist at the less culpable end of the spectrum of sexists.

That's how I would frame the issue, looking at it solely through the lens of the criminal law. I'm not saying, of course, that sexist remarks should be criminal; I am merely using the theoretical framework of the criminal law to examine the issue. There are other theoretical frameworks that are probably more appropriate for this problem, but criminal law is what I know, so damnit, that's what I use.

Posted by Zach at July 1, 2007 10:58 PM


This is great! Thank you for expounding.

Posted by: iolight at August 21, 2007 06:02 AM

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