Wednesday, March 16, 2016

The Right to Control What Other People Think

by Sherry F. Colb


In my Verdict column for this week, I consider the question, which arose on a podcast, whether a shoe salesman with a foot fetish has a duty to disclose his fetish to his customers at the shoe store.  In exploring this issue, I also discussed the hypothetical case of the proctologist, urologist, or gynecologist who wishes to use her patients as fantasy material.  Pedophiles (of the non-practicing variety) were the next case.  From one point of view, people who use their privileged access to collect masturbation material are exploiting their customers, patients, or students.  From another perspective, what the customers, patients, and students do not know cannot harm them.

Though I come to a conclusion about these cases in my column, the reality is that these questions are difficult.  People do want to have control about what and how other people think of them, which is why we have torts like defamation and invasion of privacy.   Indeed, managing one's reputation and appearance before the public is something that most people care about.  At the same time, the idea of "thought control" is frightening to most of us, and we would prefer not to regulate (or perhaps even to judge to be immoral) people's thoughts, however peculiar or "exploitative" they might be.

Another way of thinking about the moral questions I pose in my column is to ask whether, if we knew that a particular person exploited access to customers, patients, and students for his fantasy life, would it be legitimate for us to count that practice against the person as a reason not to hire him or perhaps even as a reason to fire him?

In one sense, this seems more benign than saying that the person is doing something wrongful and worthy of a negative judgment in some objective sense.  If I was in charge of hiring doctors for a gynecology practice, and I somehow learned that an applicant for the job liked to fantasize at night about the bodies of the women he examined during the day, I could defend a decision not to hire him by saying that there is something unprofessional about looking at his patients as fantasy material instead of (or even in addition to) looking at them as patients in need of medical care.  Whether or not the particular doctor could control his impulse to fantasize about his patients (and accordingly be blamed for choosing to exploit them), I might determine that his mental conduct could be detrimental (in some difficult-to-pin-down way) to the doctor-patient relationship.

At the same time, it could well seem an inappropriate invasion of the doctor's privacy for me to be basing decisions about whether to hire him on his after-work fantasy life.  For all I know, he takes a fully professional attitude toward his patients during the day and only later in the evening recalls visual and tactile experiences from the day to feed his fantasy life.  Perhaps the things that turns him on when he is not at work are truly none of my business.  Ironically, I may be inflicting the same kind of harm on him--by excluding him from the workplace based on what is rightfully personal and private for him--as I claim he is inflicting on his patients, by taking his memories of their private body parts as fodder for his fantasy life.

Though I am not entirely comfortable with this resolution, I am once again led to conclude that people's fantasy lives must belong to them and not to others who would judge them or wish to take their jobs away.  In truth, most of us have no idea what sorts of fantasy lives others of us lead and might well be shocked and horrified to learn the details of what currently do not know.  Perhaps we cannot help ourselves from judging what we view as exploitative fantasy, just as the fantasizer may not be able to stop himself from having the fantasy in the first place.  Maybe the ideal situation, then, is that we remain ignorant of the fantasy lives of shoe salesmen, proctologists, urologists, gynecologists, and even school teachers, so that in reality--even if not in theory--we allow people the freedom to enjoy whatever fantasy life they like, without intruding with our (possibly inevitable) judgments.