Law, Morality And Justice

In October, President Trump suggested the midterms would be “an election of Kavanaugh, the caravan, law and order and common sense.” I’ve altered the slogan a bit to explore the ethical impact of involvement in military endeavors and #MeToo incidents that conflict with the participants’ deeply held moral values. In particular, I’m interested in those individuals whose fidelity to legal obligations requires their involvement in or silence about events that violate their moral code. It should be obvious how direct participation in illegal acts, such as deliberately targeting civilians in war or engaging in rape, are violations of societies’ and most individuals’ moral codes and ought to be experienced as such.

But what of those in the military who are required to engage in or witness lawful but awful acts that result in civilian casualties? What of those persons who abide by the terms of non-disclosure agreements or other confidentiality requirements when those agreements facilitate another party’s engagement in or lack of accountability for rapes, sexual assaults, sexual harassment, and related wrongdoing? Such individuals may find themselves in a bind where their value of commitment to law and order then requires behavior that conflicts with other values such as not killing innocent people or not facilitating immoral behavior against current or potential #MeToo victims. Under such circumstances, deeply conflicted individuals may suffer from a moral injury which is defined as “the lasting psychological, biological, spiritual, behavioral and social impact of perpetrating, failing to prevent, or bearing witness to acts that transgress deeply held moral beliefs and expectations.” While moral injuries share with PTSD many symptoms such as “reexperiencing the traumatic event, sleep disturbances, self-harming activities like substance abuse and recklessness, and suicidal thoughts,” moral injuries are distinct from PTSD because they leave their sufferers with a “persistent sense of guilt and shame, and an ethical ‘drift,’ whereby [its sufferers] no longer have a clear sense of right and wrong, or of what makes their lives meaningful.”

In this essay, I explain how circumstances giving rise to such conflicts can arise and offer some initial suggestions of how persons experiencing moral injury might make peace with their value conflict.

Caravans

President Trump has ordered over 5,000 troops to secure the southern border of the United States from a caravan of Latin American asylum seekers. Given the vast diversity of American troops and their varied political preferences with the possibility of another 10,000 to join, surely some among them find the assignment deeply objectionable and at odds with their moral commitments. My point is not that troops should find the assignment immoral (and certainly, many will not) but rather, given troops’ preexisting moral codes, to observe that some soldiers will find deeply problematic the order to guard the border, with force if necessary, from those lawfully seeking asylum or even from those seeking unauthorized entry. Current soldiers may and in fact are obliged to refuse unlawful orders, but sending the troops to secure the border is not on its face a manifestly unlawful order. Conscientious objector doctrine has traditionally been understood to allow only refusal to be inducted into the military or withdrawal of duties for those already in the military on the basis of objection to all combat related violence, not based on individual objections to the reasons for a deployment or based on the risk of lawful violence to which the individual is morally opposed. Thus, one could be committed to serving in the military and believe in the use of state based violence, but still find an individual use of violence to be deeply incompatible with one’s moral intuitions.

I hope that any interactions between the troops and members of the caravan will remain peaceful, but what if events turn violent as they did in Mexico? That clash between Mexican authorities and individuals in the caravan resulted in the death of a migrant. Mexican police also imposed dozens of injuries on other members of the caravan. For the purposes of argument, assume the Mexican police acted lawfully. For those Mexican officers who believe that the police unjustly escalated the situation resulting in violence or that the imposition of casualties on members of the caravan was immoral, independent of its legality, those who participated, witnessed, or learned of such events may be prone to suffer from moral injury.

This problem of moral injury is hardly limited to border settings, but inheres in most settings where the use of violence is either legally permitted or legally required. Think, for example, of police officers who fail to prevent their fellow officers from engaging in a lawful shooting that they personally believe to be deeply morally problematic, or soldiers in Afghanistan or Iraq who witnessed or participated in lawful, but awful killings of civilians. Even without violence, government agents might experience moral injury when their fidelity to the law conflicts with their deeply held views. Imagine those agents working for immigration and customs enforcement in the United States or those government actors responsible for sending migrants to control centers in Europe who believe that such centers are deeply immoral, even if not viewed as unlawful by their governments. While many government employees will experience such conflicts as an inevitable and manageable part of their jobs, the experience may inflict a devastating moral injury on some.

Kavanaugh

While the moral injury literature has traditionally focused on settings of state-based violence, I, along with others, suggest it applies equally well to settings of private violence where legal obligations preclude individuals from speaking out against acts that violate their deeply held moral codes. Such moral conflicts might come up in the #MeToo setting. Take, for example, the leaking of information regarding Dr. Ford’s letters to Representative Eshoo and Senator Feinstein of Justice Kavanaugh’s alleged sexual assault and attempted rape. We can only guess whether the leaker’s motivations were to allow a full investigation of Kavanaugh’s fitness for the Supreme Court, to seek justice for Dr. Ford, or to bring down a candidate he or she opposed for unrelated political reasons or some combination of these reasons and others. But imagine an alternate universe in which the individual had not leaked the letter, believing that while the matter was essential to the determination of whether Kavanaugh was morally fit for the job or to achieving justice for Dr. Ford, felt compelled by law or by a competing moral obligation to keep the letter confidential, knowing that Dr. Ford did not wish it disclosed. Such a person seems a likely candidate to suffer a moral injury. Or to take what actually did happened, the leaker might have believed that the disclosure was morally required to uphold the integrity of the Court, but also sharply at odds with deeply held principles of victim confidentiality. Such a person might also suffer a moral injury.

While the Kavanaugh letter might have been sui generis, contractual requirements of non-disclosure of sexual misconduct by not just the victim, but by other employees exist. Think of President Trump, known for his aggressive use of NDAs, asking all private employees to sign them and potentially many public employees as well. A person who both felt (a) a moral obligation to reveal information regarding President Trump’s misdoings to the public or more discreetly to future possible employees and (b) a moral or legal obligation to abide by the terms of the non-disclosure agreement would face an intractable conflict.

Such a situation is not mere conjecture. Over a third of American workers are bound by nondisclosure agreements as a condition of employment. While some states have introduced bills to invalidate nondisclosure agreements as pertains to sexual harassment, they remain a lawful option for most American employers. So think, for instance, of a male employee who works for a serial predator like Harvey Weinstein who witnessed his wrongdoing and wishes to leak the story to the press, but chooses not to do so because he also holds a moral belief in compliance with his legal obligations.

Or take educational settings with their confidential Title IX investigations and determinations. Individuals might feel a strong sense of moral fidelity to the legal obligation to keep information they learn in their administrative role confidential or to the confidentiality concerns of unnamed or even named participants, but a competing moral obligation make the information known to ensure the safety of the community as a whole. Or think of professors who comply with their mandatory reporter status out of a sense of fidelity to the law, but feel they have acted contrary to other moral principles because reporting violates the wish of a student who wishes not to have her situation known or investigated by others. Again, this is not to say that all who face these choices should or will suffer from moral injury, but to recognize that some individuals will and that experience can be devastating.

Reconciling Law and Order with Moral Injury

How might those suffering from moral injury find a way forward? This question is important, as law often demands tragic choices between competing moral concerns. While I have written extensively about apologies and forgiveness in this space (here, here, here, and here) and others, something more and different is required here.

Others writing about moral injury have suggested the importance of atonement or amends. They suggest the emergence of a moral injury is a response to “split loyalties—of having to make the impossible decision of betraying one ideal for another.” Forgiveness might be valuable but it does not undo the commission of the act and Aaron Pratt Shepherd suggested under conditions of moral injury, “Seeking forgiveness is like tossing a snowball into the hell of the irrevocable.” Rather, scholars, including myself, are suggesting that “proving one’s loyalty to the cause and community that have been betrayed—is the only way to regain one’s moral self and restore the moral integrity of the community.”

Atonement is the effort to undertake deeds that attend to the community who “lost” in the struggle between competing moral principles. So for those individuals who might experience moral injury in settings of state-sanctioned violence, they must think creatively about how to attend to the affected community in a way that recognizes the impact of their choice in the initial conflict. For instance, Vietnam veterans could volunteer for or donate to programs in Vietnam that offer direct, personal assistance to the ongoing victims of Agent Orange. In the #MeToo setting, individuals can push for a variety of legal changes such as striking down non-disclosure agreements or reforming the high standards to prove sexual harassment. Or for those individuals who felt the law was appropriate even as it may sometimes create a moral conflict, they can attend to the affected community, creating a climate of respect for victims and changing social barriers that make speaking out difficult or engaging in bystander interventions when acts of sexism or sexual harassment occur.

I want to conclude by distinguishing atonement from pinkwashing. As I wrote recently, pinkwashing is (1) an institution’s or individual’s deployment and publicity of policies and practices (2) in response to the identification of a #MeToo or sex discrimination related grievance, (3) which does not address the underlying concern of the aggrieved and (4) is intended to establish, maintain, burnish, or restore institutional reputation. In atonement, the individual suffering from moral injury ought, to the extent permitted by law, acknowledge his or her conflicted loyalties. Even when the law precludes someone from speaking fully, the individual can still and ought to acknowledge the underlying #MeToo grievance and concern while acting to make the community a better place. Atonement is not about deflecting or even undoing the original tragic choice, it is about making the world in which such tragic choices are inevitable a better place.

Source : https://verdict.justia.com/2018/11/13/caravans-kavanaugh-law-and-order-and-moral-injury

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