Welcome to our newest PEA Soup Blog Ethics discussion!
Elizabeth Brake’s paper “How Does Stalking Wrong the Victim?” is an exemplar of lucidity and analytic rigor. She provides the first account of stalking as a distinct kind of relational wrong. Apart from remedying a hermeneutical injustice by pinpointing what stalking is and what is wrong about it, Brake’s analysis also serves a wider interest in illuminating one of the dark sides of relationships that, so far at least, have been undertheorized.
According to Brake, the “essential” wrong of stalking is that it forces a personal relationship onto another. Our interest in being able to refuse such a relationship is strong enough to ground a right.
But any account of stalking must solve a puzzle: it must explain what is “essentially” wrong about a behavior that is actually permissible in a singular instance. Stalking qualifies as a distinct kind of wrong, Brake argues so as to solve the puzzle, when there is a systematic pattern of persistent unwanted contact directed at a non-fungible target that would be distressing or intimidating to any reasonable person.
Brake goes on to show that several plausible accounts of the wrong of stalking fail to identify that wrong. According to a first account, stalking is a practice of male domination where women are coerced into supposedly protective relationships with men. But the focus on gender, Brake argues, can obscure different patterns of victimization among racial and ethnic groups. Also, women can stalk more powerful men, and in a society free of gender oppression, stalking would still be wrong. According to the second account, stalking induces a kind of terror that is itself a significant harm. While stalking does indeed create psychological harm, permissible behavior can do so as well (e.g. if someone turns down a date). So, the psychological harm induced by stalking cannot by itself explain what is wrong about stalking. A third account has it that stalking is wrong because it involves a threat or coercion. But on closer inspection, it is unclear that the stalker attempts to coerce the victim. And more often than not, stalking involves neither implicit nor explicit threats. Moreover, not all behavior that is perceived as threatening is wrongful. One further suggestion would be that the stalker coerces by unacceptably narrowing the target’s options, but that, again, cannot show why stalking is wrong. After all, an annoying co-worker similarly narrows down one’s options, but that seems morally acceptable. What needs to be answered is why it is morally unacceptable that the target does not have the option of avoiding the stalker in public. According to a fifth account, stalking is wrong because it disrespects the target’s autonomy (such as her decision-making power over a range of options). But this just reawakens the problem that the coercion account faces: why should the entrance into a public space which the target does not control be seen as disrespecting the target’s autonomy? According to another account of autonomy, stalking could be considered wrong because it debilitates the target, but the problem, again, is that other sources do that as well (e.g. social media). The harms of intrusion and debilitating effects are thus not specific to stalking. A sixth account focuses on the right to privacy. Yet, stalking in public spaces and through publicly available information does not violate that right.
The problems of these six accounts in attempting to identify the essential wrong of stalking help Brake pave the way for her own relationship account. It is the repetition of intrusions that points to that wrong, i.e. forcing a relationship onto the target, as it is the relationship that extends over time and consists in contact and contact-seeking to a non-fungible other party. Attention to the bads of relationships is needed, Brake argues, as the claim against the stalker does not merely depend on protecting valuable relationships; it protects the interest in avoiding unwanted relationships: “The claim to control whether one is in a particular relationship at all deserves attention in its own right.”
What is wrong is that stalkers behave as if they were already in a personal relationship with the target regardless of whether the target consents. The stalker is thereby insensitive to the target’s unwillingness to reciprocate. This relationship account of stalking is supposed to capture its essential elements: its patterned aspect and the non-fungibility of the target. And the concept of forcing a relationship is needed to distinguish the essential wrong of stalking from other wrongs or permissible forms of singular approach. The relationship account is able to track the distinct phenomenology that accompanies stalking and that makes it feel distressing and intimidating in contrast to, say, a random prank call.
Since we have a strong interest in controlling whether we are in a personal relationship or not, we have a right to refuse such relationships. As far as I can see, Brake raises four points to ground that right:
First, since relationships in general can be bad, Brake argues, we have a right to control our entry into relationships and whether to remain in them.
Second, since relationships shape our identity, redefining oneself after a relationship has ended is significantly impeded if the other party will not desist from contact.
Third, because relationships entail the acknowledgment of special obligations, it is in our interest to control entry into relationships.
Fourth, personal relationships are typically important goods. Since we cannot lead too many relationships, having them forced upon us reduces our capacity to realize these goods. Hence, the right to control our access to relationships allows us not only to avoid bad relationships, but also to have good relationships.
What is important, however, is that we set a high bar for what qualifies as forcing a relationship onto someone in order to rule out the possibility of other cases, such as morally benign overtures, being classed as stalking. But another advantage of the relationship account, Brake argues, is that it can make us realize that some kinds of intimacy-seeking behavior that so far have seemed permissible in fact are not. As a result, we should implement an active consent standard to contact. Women’s care work is an important case in point. Sometimes there are repeated attempts at personal contact and requests for care that risk a rights violation.
Brake substantiates her account by considering various objections. I will leave her responses aside here and focus on some further implications of her view. I should note that each of Brake’s arguments are highly plausible and are very much in line with my own thinking about ending personal relationships grounded in the right to control what relationships we enter into and leave.
What I would like to examine further is Brake’s understanding of “forcing a relationship onto another”.
First, there are two characteristics that account for what Brake takes “forcing” to consist in: the target does not consent to contact-seeking and the stalker persistently tries to make contact with the target as a non-fungible other.
But there can be friendships to which we never consented; rather, we found ourselves as friends. So, it is not so much that there is a lack of consent per se, but rather the persistence of making contact and not acknowledging and respecting that the target does not want that contact (no matter whether there is an actual consent of lack thereof) that can account for what is “forcing” about the relationship the stalker seeks. But if this is right, it points us to a duty that the target has too: the duty to explicitly refuse that persistent behavior. To be sure, many victims of stalking may do that. All I mean to point out here is that only those cases can account for the forcing and thus wronging aspect of stalking if we clarify that the target clearly neither invites nor accepts that persistence of reaching out for contact. This is less a matter of ex ante consent or lack of consent, and more a matter of active refusal. Without incorporating such a condition into what forcing amounts to, we risk counting as stalking cases that are either invited or reasonably misunderstood by the stalker as being invited or, at least, not refused.
Second, I am interested in what exactly it is about a relationship that can wrong others and that we therefore have a right to refuse. Recall that Brake takes the right to refuse relationships to be grounded in four features: (i) in the freedom of avoiding bad relationships; (ii) in the freedom to redefine one’s identity after a relationship has ended; (iii) in the freedom to resist special obligations; and (iv) in the freedom to realize relationship goods (and to realize these goods, only a limited number of relationships are possible).
I am not sure whether these four features that Brake takes as grounding the right to refuse relationships can also account for what is wrong about the persistence of someone trying to have a relationship with us, at least not in a straightforward sense. The relationship the stalker wants to have need not be bad (not even by the lights of the target). It need not be so demanding that it either implicates one’s identity or imposes special obligations on us (even though this may often be the case). After all, some friendships at least can be undemanding relationships. And it might not be the case that it would limit our possibility to realize relationship goods at all. It might just so happen that we have very few relationships. So, why would the persistence of trying to make contact with the target continue to amount to a wrong?
It wrongs the target’s right to relational freedom which involves choosing what relationships (if any) the target wants to be in. This freedom is broader than just avoiding or refusing bad relationships. It is a freedom to avoid any kind of relationship if we so choose. What is more, I want to suggest, it is this kind of relational freedom that is necessary to be able to realize the value of close relationships at all. But this leaves me wondering whether the right to relational freedom is compatible with an autonomy account that Brake rejects (even if such an autonomy might have to rely on a different conception of autonomy than the two conceptions Brake considers).
Third, it is important for Brake’s relationship account that the target is considered to be non-fungible. Persistent contact-seeking to a non-fungible other amounts to a relational wrong if it is unwanted. But consider my neighbor, Frau Brückner. She brings me cake every other week, brings up my newspaper and puts it in front of my door. She also collects parcels for me if I am not at home. She likes to chat with me whenever she sees me in the staircase. Let’s suppose I do not want any of that. I do not explicitly reject her behavior out of politeness, but my somewhat unfriendly looks and my demonstrated unwillingness to talk should make it clear to her that I do not want this kind of neighborly interaction. I find it distressing when I see her. She does not get it. And she does all of that because she likes “me”, not me as a replaceable neighbor. I don’t quite see that this qualifies as stalking even though Frau Brückner might be thought to force a neighborly relationship onto me. Brake might respond that the bar is not high enough in this instance, but does that mean that the persistence has not (yet) gone far enough? Or is the kind of relationship that is being forced onto me by definition not close enough? It remains unclear to me how Brake’s account can be distinguished from the Frau Brückner case.