Original posting: September 7, 2007
Revised November 10, 2007
Did you once have the scare of your life while behind the wheel of a car -- thinking that you just barely escaped committing a crime that could blight the rest of your life and even land you in jail? Perhaps you were a bit drowsy, or maybe you were distracted. Anyway, you were cruising along in the city, speeding a bit. Let's just say that you were not attending to business. It was near dusk, and you were driving west: the setting sun was interfering with your vision. You were moving through an intersection at a good clip when suddenly someone popped into your line of vision and your car's path: you were about to hit him! You swerved, he made a leap, and -- thanks be to God! -- there was no collision. Because you were moving faster than you should have been, you were past the scene of what was almost a crime before you knew it. Should you slam on the brakes and go back and apologize to the guy you almost ran over? Yeah, maybe you should, but you don't. Your heart is racing, you are in a deep sweat, and you drive on -- slowly!
Then you begin to think. Are you a wicked person who belongs in jail? Are you pond scum? No, you reflect to yourself: I'm basically a good person. I've never been in trouble with the law. And nothing happened, -- that is, no one was hurt. We both got a good scare -- that's all.
And then your thoughts turn to a boring lecture you heard a few years back (at least, you thought it was boring at the time). It was part of a philosophy class you took at university. The prof had been droning on about the "person-affecting principle," which he related to environmental ethics. If no one is affected or hurt by an incident or a near-incident or something that happens, there is really no wrongdoing to be spoken of -- and surely no crime. And so you think to yourself: All's well that ends well.
You start to feel better. Your breathing slows considerably, and you begin to wax philosophical yourself. After all, things of this sort happen often in human life. True, you weren't as careful as you should have been, but then, neither was he. And so you decide that you're not a fugitive on the lam -- you're just someone who barely escaped being in an accident, someone who should pay more attention to his driving, especially when going west into a sunset.
Let's reflect on your near-crime (yes -- you might well have been charged with negligent homicide if things had turned out really badly). The point I wish to make here is that it differs in structure from the situation that sets up the classic "whodunit." In a whodunit we are dealing with a murder. You recognize, of course, that the old idea that there is no murder if the police cannot produce a dead body does not come into the picture in your close call: there almost was a dead body -- almost! But if we are to have a whodunit that will entertain us for a couple of hours, the whole thing needs to starts with an actual dead body. A potential corpse will not do.
In this regard, a whodunit is like the O.J. Simpson case: I'm sure you remember it. Mr. Simpson was acquitted. He even put up some money to finance further investigation, for there was an enormous, distressing fact at the center of the case, a fact that simply could not be ignored -- two dead bodies! You may be the world's biggest O.J. Simpson fan, you may believe that he's as pure as driven snow, but in the many arguments you've been involved in, you always came up against this one fact. There were two dead bodies. If O.J. didn't do it, then who did? A horrible crime was committed -- that's for sure!
The theme of this essay is that nowadays we make a distinction between crimes rooted in facts (e.g. two dead bodies, leading us to ask: whodunit?) and crimes rooted in interpretation, crimes in which it is hard to determine just who was harmed, or perhaps how. The latter category of crime is indeed recognized in our judicial system and also in some other procedures for investigating wrongdoing; yet the crimes that fall under the second heading are tricky. The very notion of crimes based on interpretation requires some elucidation. We will see that such crimes may have to do with thoughts, intentions, mental acts.
I'm not sure whether the Bible sheds much light on the distinction I just made between two kinds of crimes, but there is one passage that has surely influenced the thinking of all who know the Bible well and work in the law or in law-enforcement. It's the one where Jesus talks about committing adultery in your heart:
You have heard that it was said, "You shall not commit adultery." But I say to you that every one who looks at a woman lustfully has already committed adultery with her in his heart. [Matthew 5:27-28]
There are different schools of thought as to what this passage means. I am among those who would argue that Jesus was not giving advice to legislators here. He was not suggesting that the thought of committing a crime or even the intention to commit a specific crime is just as bad as the crime itself. But there are some who have tended in this direction -- especially if, for purposes of discussion, we can downgrade the term "crime" to "misdeed." They seem to think that a husband who has never fallen into the misdeed of engaging in sexual relations with a woman other than his wife is in essence just as bad as a husband who is an admitted philanderer: after all, the former husband has (probably) lusted after other women in his heart. Former U.S. President Jimmy Carter lent considerable support to this point of view when he gave his famous interview to Playboy magazine, in which he declared:
... I'm just human and I'm tempted and Christ set some almost impossible standards for us. The Bible says, "Thou shalt not commit adultery." Christ said, I tell you that anyone who looks on a woman with lust has in his heart already committed adultery. I've looked on a lot of women with lust. I've committed adultery in my heart many times .... This is something that God recognizes, that I will do and have done, and God forgives me for it. But that doesn't mean that I condemn someone who not only looks on a woman with lust but who leaves his wife and shacks up with somebody out of wedlock. Christ says, don't consider yourself better than someone else because one guy screws a whole bunch of women while the other guy is loyal to his wife. The guy who's loyal to his wife ought not to be condescending or proud because of the relative degree of sinfulness. [NOTE carter]
I would wish to be more lenient than Mr. Carter was here, perhaps because I would like to take a little credit for myself and claim that in this specific respect I am better than the admitted philanderer (and my wife is grateful, by the way). Yet Psalm 139 makes me nervous:
Search me, O God, and know my heart! Try me and know my thoughts! And see if there be any wicked way in me, and lead me in the way everlasting! [Verses 23-34]
Yes, there are wicked ways in my mind and heart -- I admit it. I would certainly not like all my nasty and uncharitable thoughts to be exposed to public scrutiny.
Even so, I am opposed to basing felony prosecutions and official investigations of wrongdoing on thoughts and intentions. It is my experience and conviction that they're just too hard to nail down: they shift over time. We often don't know our own intentions and motives when we act, and it's all too easy to lie about them afterward. In explaining this point to students, I often quote from a distinguished American, James Conant, who once wrote:
Why did I retire from the presidency of Harvard at the age of sixty in order to become High Commissioner in Germany? Or why, after four years in Germany, did I choose to make a study of the American comprehensive high schools? Frankly, I am always skeptical of writers who attempt to answer such personal questions. The answers provided seem to be rationalizations after the event. They may or may not provide entertaining reading, but in the light of modern psychology they can only be regarded as a form of fiction. Evidence of this fact is my recollection of the changing ways I have viewed my decision to accept the presidency of Harvard in 1933. The explanation I then had in mind was not the same as I would have offered, say, in 1953, and today I would describe my motives in still a different fashion. [NOTE conant]
But not all legislators take my courses and follow my preachments. Consider, if you will, this business of tax avoidance vs. tax evasion and the laws governing these things. (Here I am basing my remarks on my knowledge of Canadian law: I am not sure to what extent these matters are paralleled by laws and procedures in other Western countries.)
Tax avoidance is perfectly okay: if you can lower your taxable income through government-sanctioned savings plans intended to help you in retirement, for example, then go for it! And there a number of other tax-break possibilities out there that were designed for you by legislators and officials in the tax office. But you must be very, very careful not to slip into tax evasion, for that's a crime. You could wind up in jail.
Sobered by this warning, you ask: So what's the difference between the two? The answer: Tax evasion is illegal tax avoidance. You don't find this a helpful answer, and so you probe further. Okay, please tell me which tax avoidance measures are illegal. Well, it turns out not to be so easy to sort out. But one principle is quietly explained to you by your financial advisor: if you go into investment plan such-and-such with the intention of lowering your taxes and not with the intention of making a profit, you have slipped into tax evasion territory, and you may get into big trouble.
By this point you sense the ground shifting beneath your feet, and so you ask your advisor to go over it once more. You wonder what new equipment the feds have purchased recently from some fancy lab in Silicon Valley or maybe in Texas whereby they will be able to ascertain that your intention is to lower your taxes rather than to turn a tidy profit. You are told in response that the operative rule here is what you say. If you are ever questioned about investment such-and-such and why you went into it, you must not say that you wanted to lower your taxes. Instead you must declare that you saw prospects of profits and went after them.
To stay out of trouble with the income tax authorities, then, you must be very careful about what you say when questioned. It's as though political correctness had finally infiltrated the ranks of the bureaucrats. And that's precisely the connection I wish to make in this essay. The thought police, armed with a mandate to check out your intentions, to determine whether they are pure or not, are also present on campus: they don't offer their services only to the tax authorities.
If you have ever been investigated for sexual harassment, you may well know what I mean. Now, I wouldn't wish such a charge or investigation on my enemies -- to say nothing of my friends -- but such a thing can happen. To drive my point home, I need to relate some particulars of an actual case with which I am familiar.
The man who was accused in the case I have in mind sought advice and support from lots of people. One of the most sober pieces of wisdom he got in response came from an acquaintance who said he had undergone some sexual-harassment training in a corporate setting (i.e. training in how to stay out of trouble). What it basically comes down to, his acquaintance explained, is that if she feels harassed, it's harassment. In other words, what lives in her heart and mind is determinative. Facts as ordinarily understood do not seem to come into it all that much. Sobering words.
Close calls akin to the story that I presented at the beginning of this essay can also take place on campus, leaving one vulnerable to a charge of sexual harassment. Many male professors can report an incident or two in which a female student comes into the office and closes the door behind her: it's happened to me as well. You're uneasy, but you're not quite sure why. You want to get up and open the door again, but because that would involve a bit of a journey from where you are seated, it would be quite a pointed measure to take and might therefore prove offensive, and even provocative. So you leave it shut and sweat it out.
As the conversation unfolds, you become even more uneasy. Hairs start to rise on the back of your neck, and soon you're thinking about that David Mamet movie Oleanna (1994). After a while she leaves. You remember the incident clearly for a long time: perhaps you even make some notes on it. But the end of the terms passes, and nothing has happened. You decide you're in the clear. A close call, you think to yourself. A kind providence was watching over you.
A sexual harassment charge can easily arise out of such a situation. But that's not what happened in case I mentioned above. When a sexual/gender harassment investigation was launched, the basis for the investigation was a student complaint containing essentially three elements. The first two are of no concern to us here, for they do not bear on the theme of this essay. But the third element in this case nicely serves to illustrate the difference between offenses that hinge on facts (i.e. the whodunit cases, leading us to ask: If O.J. didn't kill his wife and Ron Goldman, then who did?) and offenses that hinge on interpretation. In cases of the second sort, investigators get to probe intentions and motives.
The third element in the case I have in mind involved a conversation after class (conducted in the classroom, with at least one other student present). The man who was accused (a professor) is alleged to have said something out of line to the student (I'll call her "Jane Doe"). When he was charged more than two months later, he wondered just how such a thing could be investigated and prosecuted. There was no audiotape or videotape of the after-class conversation. And Jane Doe, in her document of complaint, did not claim to remember just what he said to her. But she did remember what he was implying: it was an inappropriate comment on her sexual history, and she experienced it as humiliating.
The professor searched his recollections but didn't come up with much. He reports that he couldn't remember exactly what he had said, but he was sure he had not said anything that would have justified Jane Doe's conclusion. How could he be so sure? Two reasons. First, he didn't know anything about Jane Doe's sexual history and therefore wasn't in a position to comment on it. Secondly, the sort of commentary attributed to him is just not the sort of thing he would say to a student -- let alone a student he hardly knew. And so he stoutly denied the allegations.
The prosecuting authorities appointed investigators, who talked to the students in the class and found one who was present at the conversation. That student was asked just what the professor had said to Jane Doe. She didn't remember either, but she did remember the topic of the conversation: it had to do with the lecture, with the point to which Jane Doe took strong exception.
What happened next illustrates my thesis in this essay: there are offenses based on facts (how do you account for two dead bodies?) and there are offenses based on thoughts or intentions as interpreted by others. Once you realize this, you have come to understand that there are thought police in our society.
What should have happened in the case I am discussing? The final tribunal should have said simply: there is no evidence here to prove that something out-of-line was said in the after-class conversation. Case dismissed! Instead the final tribunal, manifesting amazing powers of divination, read the professor's mind, discerned what intention was in his mind that afternoon, decided that he lied when he denied having any such intention. On the basis of such reasoning, he was found guilty (the conviction was eventually overturned).
Outrageous? Yes! Unheard of? I wish I could again answer yes. But these things happen, sad to say. That's the kind of world we now live in.
So what do I make of all this? The point that needs emphasis, it seems to me, is that sexual-harassment charges based on alleged speech are very, very hard to defend against if the investigators and jurors are encouraged to read people's minds to see what intentions were present there, intentions that can be interpreted as motives for what they said and did. Remember what the accused professor's acquaintance learned in a corporate setting: if she feels harassed, it's harassment -- and so he must have intended to harass her. His words may have sounded innocent, but he was implying ....
Did Jesus set us up for all of this misery through some ill-considered remarks in the Sermon on the Mount which he later came to regret? (See Matthew 5:27-28 as quoted earlier in this essay.) No. The two verses in Matthew have a plain or surface meaning. As for you men who have never crossed the line with another woman -- or so you maintain -- who are you trying to kid? You're not as pure as you think you are.
Jesus was not suggesting that since you're now guilty of a seventh-commandment trespass anyway, you might as well go ahead and have the pleasure you were anticipating! No, the Christian tradition has always maintained: if you can possibly turn back from the path of wrongdoing before the point where intention turns into action, then do so. David was an adulterer not just because he lusted after Bathsheba from a rooftop but because he had illicit sexual relations with her! He even impregnated her. The child born of their union died. It's a sad but deeply moving and instructive story (see chapters 11 and 12 of II Samuel).
The Bible is realistic and practical about these things. James 3 contains wonderful advice -- if only we could take it to heart! We could then discharge a whole load of thought police and reassign them to productive duties. We read:
Let not many of you become teachers, my brethren, for you know that we who teach shall be judged with greater strictness. For we all make many mistakes, and if any one makes no mistakes in what he says he is a perfect man, able to bridle the whole body also. If we put bits into the mouths of horses that they may obey us, we guide their whole bodies. Look at the ships also; though they are so great and are driven by strong winds, they are guided by a very small rudder wherever the will of the pilot directs. So the tongue is a little member and boasts of great things. How great a forest is set ablaze by a small fire! And the tongue is a fire. The tongue is an unrighteous world among our members, staining the whole body, setting on fire the cycle of nature, and set on fire by hell. For every kind of beast and bird, of reptile and sea creature, can be tamed and has been tamed by humankind, but no human being can tame the tongue -- a restless evil, full of deadly poison. With it we bless the Lord and Father, and with it we curse men, who are made in the likeness of God. From the same mouth come blessing and cursing. My brethren, this ought not to be so. [verses 1-10]
James is right -- teachers need to watch what they say and bridle their tongues. But sometimes they don't, and so they must be held accountable for what they say. Also for what they think, even when they bridle their tongues and manage not to give utterance to their nasty thoughts? The thought police would say yes.
I've had my share of nasty and uncharitable thoughts about students since embarking on a career as a full-time teacher some 36 years ago. I don't have such thoughts about all students, especially not the ones I hardly know. Now, I'm not proud of myself for having such thoughts, and I don't defend them. I wrestle with my sin, just as you do. And I seek absolution before I go to the Lord's table.
If the Sinless One is my judge, I stand condemned. But what if I stand before a human tribunal and am accused of having harbored unkind thoughts? I suppose I must plead: No Contest (Nolo Contendere). But then another saying of Jesus comes to mind: Let him who is without sin cast the first stone (see John 8:7). [END]
NOTES
NOTE carter
The interview was published in the November 1976 issue of Playboy and reprinted five years later in The Playboy Interview, ed. G. Barry Golson (New York: Wideview Books, 1981). The book is a lengthy collection of interviews which the magazine conducted over the years with notable figures in public life: included among them is Marshall McLuhan.
NOTE conant
Two Modes of Thought (New York: Trident Press, 1964), pp. xxv-xxvi.
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