In Book 3, Ch 10 of his Essay Concerning Human Understanding John Locke warns us of the use of figurative language in discourses that pretend to inform and instruct. He understood that the use of metaphor, while it may indeed serve to illuminate, can also obscure. In his words:
"... if we would speak of things as they are, we must allow that all the art of rhetoric, besides order and clearness; all the artificial and figurative application of words eloquence hath invented, are for nothing else but to insinuate wrong ideas, move the passions, and thereby mislead the judgment; and so indeed are perfect cheats: and therefore, however laudable or allowable oratory may render them in harangues and popular addresses, they are certainly, in all discourses that pretend to inform or instruct, wholly to be avoided; and where truth and knowledge are concerned, cannot but be thought a great fault, either of the language or person that makes use of them."
I used some of this quotation in one of the first essays I published as an academic lawyer (Swans Reflecting Elephants: Imagery and the Law) and I was reminded of it after being alerted by a friend to a 2010 blog post by Professor Julian Savulescu, Director of the Oxford Uehiro Centre for Practical Ethics in the Faculty of Philosophy at the University of Oxford. As is clear from his CV, Professor Savulescu is a highly respected ethicist with an impressive publication history. His expertise in the field of medical ethics has been widely acknowledged and he directs a number of important research initiatives.
It is because Prof Savulescu is such an expert and because his work is so highly regarded that I feel compelled to respond to his blog entry, which discusses the case of Nadja Benaissa. Ms Benaissa, it will be recalled, is living with HIV and was convicted in 2010 on three charges relating to unprotected sex with partners. She received three convictions, one for causing grievous bodily harm to a man who was diagnosed with HIV and two for attempted grievous bodily harm (against partners who did not test HIV positive). She admitted that she had not disclosed her HIV status to her partners prior to sex with them.
In a nutshell, Professor Savulescu suggests that the criminal conviction is right and that those who argue otherwise (and I would include myself in that camp, even though I have not published specifically on this case) are wrong. He writes:
"When we know our behaviour could kill people, and fail to warn them to allow them to protect themselves, we should be held accountable."
This, I accept, is an entirely sustainable position, at least as a relatively abstract moral-philosophical principle. What I do not think is sustainable is the use of analogy - or figurative language - to make the point, or the conclusion that it is a principle that should apply in the case of reckless HIV exposure and transmission.
Let me explain. Professor Savulescu compares Nadja Benaissa to a chemist who buries radioactive waste in the ground. He opens his blog post as follows:
"Imagine that Herman has toxic radioactive waste from his laboratory. He decides to bury it in the ground next to his laboratory, knowing that it will expose the surrounding houses to dangerous radiation. As a result, Gertrude develops cancer some years later and dies at the age of 37."
Let's stop there for a moment and think about what we are being invited to do. First, we are being asked to identify HIV with "toxic radioactive waste". While this may be a superficially attractive analogy (people with HIV may be asymptomatic for some time, HIV is incurable etc), it is both logically and politically problematic. Politically, I would suggest that it is offensive for all those people living with HIV to compare an important aspect of their physiology and identity to toxic waste. I wonder whether Professor Savulescu would describe Gertrude's cancer in those terms? Logically, it seems to me to be a flawed comparison. First, Herman buries the toxic waste to get rid of and hide it. A person with HIV does not have sex to get rid of or "hide" the virus (whatever hiding might mean in this context). Herman knows that the act of burying radioactive waste is definitely dangerous whereas Nadja Benaissa and others with HIV on effective anti-retroviral treatment - especially when this results in an undetectable viral load - are told that unprotected sex will not necessarily result in onward transmission. Second, Gertrude - because she is unaware of the risk of radiation - can take no protective steps. Any person having sex with a partner about whose HIV status they are unaware or unsure can take protective measures. Nadja Benaissa did not disclose by her own admission, but she did not lie. Those who are prepared to have sex with people without protecting themselves when they are in a position to do so (but choose not to) arguably bear some of the responsibility for adverse outcomes. (If, instead of HIV infection the consequence of unprotected sex had been the conceiving of a child would Professor Savulescu argue that the responsibility for the conception lay wholly with Ms Benaissa I wonder?).
Prof Savulescu continues with his analogy in the following terms:
"Herman never intended to cause Gertrude to get cancer. He merely foresaw that his actions risked giving her cancer. However, the defence that he merely foresaw but not intend her developing a malignancy is empty. He should, ethically, be as blameworthy as if he put the waste in her food. He is responsible and blameworthy for her cancer. "
OK. Here's the nub of it. Risking someone's health makes someone as blameworthy as acting intentionally. It's not clear, but I'm assuming that Professor Savulescu is suggesting that the moral fault of Ms Benaissa is the same as it would be had she injected HIV into her partners' bloodstream.
I am not a moral philosopher, nor am I an ethicist. And perhaps I'm missing something. But in what school of thought, is (a) risking harm the same as intending harm; and (b) moral accountability necessarily equivalent to criminal responsibility? Take (a). If risking harm and intending harm do comprise the same moral fault, then presumably all non-accidental killers should, in fact, be treated as murderers. The person who throws a brick over a wall, where it lands on the head of another person and kills him is - morally - no different from a contract killer. I simply don't believe that Prof Savulescu thinks that, and yet this is what his analogy suggests. And as for (b) moral accountability has never been sufficient basis for criminal responsibility. If it were, lying and adultery would both be crimes. They aren't, and for good reason. I am sure that it is possible to come up with a strong ethical argument about the moral fault of people with HIV who do not disclose their status to sexual partners. I don't want to make that argument, but I can see that a convincing one could be developed. What I cannot see is how that translates necessarily (as Prof Savulescu seems to imply) into the criminalisation of people who fail to disclose their status to partners.
The problem, I think, lies in using analogies - using figurative language - to make arguments. Having sex with a person is not like burying waste. A person living with HIV having sex is not like a chemist seeking to hide toxic radioactive waste. The moment we start doing this kind of reasoning, and using this kind of language, we become vague, create obscurity. We start talking about that which we are not talking about. If we want to argue about behaviour we should argue about THAT specific behaviour, on its terms, using the evidence we have to explain that behaviour where appropriate. When we are arguing that rape and genocide are wrong, we don't resort to similes - and if we did, we would be justifiably criticised.
A concrete example from the trial of Feston Konzani (taken from my book Intimacy and Responsibility) will, I hope, make my point clearly. Feston Konzani was convicted on three counts of recklessly transmitting HIV to female partners. He too failed to disclose his status. In directing the jury, the trial judge spoke in the following terms:
"I leave you with this acid test which you may find of practical use. If a little bird had whispered in [the particular complainant’s] ear as she was about to have unprotected sexual intercourse with Feston Konzani, “Would you be doing this if you knew he was HIV infected?” and that little bird had gone on to describe what that meant […] would she reply, “No, I wouldn’t” or would she reply, “It doesn’t matter, I’ll be all right”? If you are sure she would say, “No, I wouldn’t”, then that would lead you to a guilty verdict. If it is your judgment that she would have said or may have said, “It doesn’t matter”, then he is not guilty."
Unsurprisingly perhaps, the jury concluded that with this knowledge (which they didn’t have, and which appears now to have become critical to explaining the presence or absence of consent) the complainants would not have agreed to have unprotected sex. A complex trial with real evidence given by real people was reduced to a fictional bird on the shoulder of somebody contemplating unprotected sex, surreptitiously chirruping information that was not, in fact, provided to them at the time.
None of the foregoing should be taken to suggest that I deny the legitimacy of comparing and contrasting situations and behaviours, but the level and nature of contrast should be clear. Thus, it would be possible (I suggest) to argue from Professor Savulescu's position that informed parents who fail to have their child immunised against MMR, where that child develops measles and infects a classmate who dies, should be criminalised. The parents have knowledge of the risk, they fail to avoid the risk when they are in a position to do so, and serious harm follows. I might think that there is a case for holding these parents morally accountable, I might EVEN want to argue for their criminal liability; but I should not do so on the basis that they are LIKE people living with HIV who fail to disclose their HIV status to sexual partners. I don't need to do that, and it's not helpful if I do.