Wednesday, February 27, 2019

Using the Meaning of Words to Obscure Cruelty

by Sherry F. Colb

In my Verdict column for this week, I talk about ways in which the law has used definitions of words to obscure harmful activity. I focus on a new law in Missouri that defines "meat" to exclude plant-based and cultured meats and an older federal law that defined marriage to exclude same-sex couples. In this post, I want to apply the same analysis to the marital rape exemption, which was part of the law in this country from its founding through the late twentieth century.

What is the marital rape exemption? It is an exclusion from the law of rape for perpetrators who rape their wives. In other words, if a perpetrator does to a victim what the law would ordinarily classify as rape, but the two parties are married to each other, then under the exemption, there is no rape. The exemption exemplifies the use of language to conceal or enable harm because of how the law worked. It did not simply say that when a husband raped a wife, he would avoid punishment. It said that a man could not be guilty of raping his wife. In other words, the law provided that marital rape was impossible.

If one were not paying much attention to what the rape exemption actually did, it would be easy to conclude that it was doing the exact opposite. What it actually did was to say that men could rape their wives without having to endure a trial or punishment of any kind. What it sounded like it was saying was that husbands are simply incapable of raping their wives, as though the act of marrying someone magically eliminates one person's capability of raping the other.  Even as the law authorizes a violent crime, it simultaneously--and with the same pronouncement--reassures everyone that the crime cannot be taking place. All through the vehicle of definition.

The Animal Welfare Act (AWA) does something similar when it defines the category of "animals" to exclude birds, mice, and rats. Scientists can do whatever they like to these animals (even beyond what they can easily do to other animals). Yet in response to a question, a person could say, based on the way the law uses the word "animals," that none of the mice or rats suffered unlawful cruelty in any laboratory in the United States. That is remarkable. Note that the AWA regulates treatment of animals outside of the experiments themselves, but it is the same animals.

We use the word "animals" to include birds, mice, and rats, under ordinary circumstances, and this use allows the deception to work. If the AWA had come up with a different word, like "geranimals" for the included or excluded group, then people would ask, "What are those?" and receive the response, "they are animals other than birds, mice, and rats." The next question might be "Hmm. Do scientists only rarely experiment on birds, rats and mice?," to which the honest answer would be, "Actually, birds, rats, and mice are part of the overwhelming majority of experiments." It would then be obvious that the law was specifically not regulating treatment of the lion's share of animals used in research.

A similar process is at work in defining the phrase "marital rape." People have a particular definition in mind and therefore, when they hear that a man "cannot" rape his wife, it sounds like they are hearing something about the acts that the man cannot commit against his wife. If the law instead said that if the perpetrator of a rape is married to a victim, then the law will not punish him for the rape of his wife, then it would be clear that the crime would in fact take place, even as the government would do nothing about it. Just as cruelty to birds, mice, and rats becomes invisible, an invisibility bolstered by the paradoxical use of language, the rape of spouses becomes invisible as well and by the same means.

The use of language that I criticized in my column works somewhat differently from what we have seen here relative to the marital rape exemption and the Animal Welfare Act. Rather than artificially narrow the legal definition of a term, like "animal" or "rape," as part of a law expressly permitting violence and cruelty, the Missouri law narrows the definition of the term "meat," without any corresponding and direct allowance for particular conduct. If it were feasible to legally prohibit the sale of plant-based meat, I do not doubt that the slaughter industry would favor such a move. The same holds true for the dairy industry and the non-violent alternative products like vegan cheese, vegan yogurt, and vegan milks, that compete with the far crueler animal variety.

Short of prohibiting the creation of non-violent foods, the laws that attempt to limit the use of words like "meat" and "milk" to the animal-abusing variety essentially tell consumers that if they like meat or milk or cheese, then they must consume the harmed-animal variety. Once again, we have a lie (that people cannot find taste and texture satisfaction in plant-based meats and cheeses) communicated by limiting the familiar words "meat" and "cheese" to the types that the industries want people to buy. And similarly, the word "marriage," used to denote only opposite-sex couples, communicated that there was something different, something inferior, about same-sex couples in love.

As between prohibiting a more benevolent activity, on the one hand, and allowing it but blocking the use of a descriptively accurate label, on the other, I would prefer the second to the first. However, when we use language in a way that deceives people, we essentially utilize people's comfort with particular meanings to confuse them.

Imagine if the law suddenly provided that "organic" meant carbon-based (which is what the word meant before it referred to healthier produce at the market). People would walk around the supermarket believing that all of the apples and pears and grapes and strawberries were organic rather than conventional. Inventing a new word would make more sense, because people would know that they don't know what the word means ("known unknowns" in Donald Rumsfeld's typology). The forced warping of a known term instead creates "unknown unknowns," in which people imagine that they understand what's being referenced, when they do not understand at all. And the confusion may be the very point.


Joe said...

Someone on another blog flagged this:

Looking it up in Wikipedia (usual caveats but there are sources), it appears that something like eight states (counting this one) left certain loopholes open to some degree after the final states ended the spousal rape exception.

The exceptions to "animals" as cited in the both pieces are glaring. For instance, if "livestock" and "poultry" are covered, what about deer? Still, "animals" is a rather open-ended term. The book co-authored by the the writer ("Beating Hearts"), for instance, to my knowledge referenced non-vertebrae in passing per one end note. The book by Prof. Colb alone (reference to hamburger in title) generally dealt with mammals and birds. I believe it touched up honey and without checking I'll assume (if not much) covered fish.

This would leave again many animals such as shrimp, mollusks and the like. When asked once, one author at least referenced concern about being careful in close cases and environmental concerns. Still, concerns about eating insects or worms did not really seem overly serious. The focus on consciousness as a line arguably would allow eating certain animals. Since "seafood" of the non-fish variety is a major dish, I assume this is not merely an also-ran issue, it more serious concerns do arise as we go up the ability of animals for feel pain etc.

Joe said...

Somewhat relatedly, I see the advocate for removal of the Latin cross at the Supreme Court today has also worked for the Nonhuman Rights Project.