A Stitch in Haste

Paternalism run amok:

David Oliver Burleson, 49, an anesthesiologist whose license was suspended for two years in October 2005 … acknowledged to the Oregon Board of Medical Examiners that he inappropriately touched women whom he had sedated before surgery.

The board … gave its findings to the Multnomah County district attorney’s office. Prosecutor Christine Mascal presented the grand jury with a witness who balked at providing names of other possible victims of Burleson. … The witness, through his lawyer, argued instead that patients, if told about the abuse, might be scared away from further medical treatment.

The judge agreed with the witness and turned down the district attorney’s demand that the witness provide the names of other victims.
…
“If the sexual contact was touching only without penetration, then the victims would be living in a state of ignorant bliss about what had happened to them,” [one attorney] said.

This is, of course, utter nonsense.

Some hasty stitches:

–The test for liability (in this case, for the intentional tort of battery, or sexual battery) is harm, not “knowledge of harm.” The fact that Dr. Burleson’s victims may not realize that they were sexually battered does not, as a matter of law, change the fact that they were sexually battered. The “blissful ignorance” factor may go to the level of damages, but not to liability itself. Unless the judge is somehow (i.e., without a trial or even discovery) concluding that no crime or tort occurred, his ruling is simply preposterous.

–Suppose a victim, currently “blissfully ignorant” of the fact that she was sexually battered, would rather have money (i.e., from a lawsuit or settlement) than her “ignorant bliss”? Perhaps some victims would rather know and be compensated; perhaps others would prefer never to know. But there is no way for us, or the judge, to predetermine which. All tastes and preferences are subjective, including the preference for money or ignorance. It is pompous paternalism for anyone — you, me, the prosecutor or the judge — to pretend to know “who would want what.”

–Meanwhile, the witness’ argument (i.e., that the “victims might be scared away from further medical treatment”) cuts both ways. If I am contemplating having surgery or some other procedure that requires sedation, then I’d like to think that the people who will have access to my unconscious body will be deterred by the thought that, if they molest me, then I might find out about it and sue the bejesus out of them. A “bliss shield law” doesn’t protect me; it protects them — it removes a deterrent against the sexual battery. How is that a wise policy?

An all-around mess for consequentialists and utilitarians — how do you objectively prioritize that which is strictly subjective, and how do you put the interests of some innocent people above those of other innocent people?

Simple: you don’t. You stick to the law. Crimes (and torts) were committed, and the prosecutor should be allowed to pursue them.

That’s my ruling — any dissents?

(Via ACSblog.)

For Discussion #1: Supposed you were an undisclosed victim of Dr. Burleson. Would you want “blissful ignorance” or cold hard cash? How much money would it take?

For Discussion #2: One of the rationalizations of infant male circumcision is that the baby “forgets” the trauma of the procedure and “suffers no harm” from it later in life. Discuss in the context of this post. (Inspired by Rolling Doughnut.)