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https://nyti.ms/2o1l0KA

Opinion

Who Is the Victim in the Anna

Stubblefield Case?
Jeff McMahan and Peter Singer

THE STONE A PRIL 3, 2017

In October 201 5, a New Jersey jury conv icted Anna Stubblefield, a

former professor of ethics at Rutgers Univ ersity , on two counts of
aggrav ated sex ual assault on a 29-y ear-old man with sev ere cerebral
palsy , known in the court records as D.J. The prosecution claimed that
D.J. is sufficiently intellectually disabled to be incapable of consenting to
sex and then alleged that Stubblefield had ex ploited and raped him.

Many of those in the community of adv ocates for people with

disabilities hav e a different v iew. Stubblefield has spent much of her
career championing the rights of people with disabilities. D.J. was for
most of his life regarded as incapable of communication. He continues to
be regarded in this way by many . In response to a request from D.J.’s
brother, Stubblefield began using a controv ersial method called
facilitated communication that she believ es enabled D.J. to ex press
himself. Ov er a two-y ear period in which she believ es she communicated
with him often and deeply , she came to lov e him and to believ e that he
lov ed her and indicated his wish to hav e sex with her.

Superior Court Judge Siobhan Teare did not allow the defense to
present to the jury any ev idence of D.J.’s ability to communicate, and
decided to ex clude all testimony from the defense, apart from that by
Stubblefield herself, that in any way related to facilitated communication.
In the absence of ev idence supporting the defense’s contention, the jury

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conv icted Stubblefield. Judge Teare sentenced her to 1 2 y ears in prison,

with more than 1 0 of those y ears to be serv ed without the possibility of
parole. Stubblefield is now in prison. She has appealed her conv iction,
and the appeal will be argued on Tuesday . The court will then hav e 90
day s to hand down its decision.

We are professors of philosophy who hav e taught in New Jersey , one

of us at Rutgers (though not at the same campus as Stubblefield), the
other at Princeton. We hav e met Stubblefield only once, nearly a decade
ago, at a conference on cognitiv e disability and moral philosophy . We
were inv ited to this conference, which was organized by philosophers
who are adv ocates for the cognitiv ely disabled, as dev il’s adv ocates
whose challenges to common v iews about the moral status of profoundly
cognitiv ely impaired human beings and the permissibility of ending the
liv es of some newborn infants with sev ere disabilities were strongly
criticized, not least by Stubblefield herself. In her philosophical work she
has been and remains our determined adv ersary . We hav e no reason to
be biased in her fav or and our concern with this case is entirely
disinterested.

After study ing the ev idence adv anced by Stubblefield’s attorney in

support of her appeal, we are astonished by Judge Teare’s refusal to
admit ev idence that could hav e ex onerated Stubblefield, while admitting
contrary ev idence from the prosecution. We also believ e that, ev en if
ev ery factual claim made by the prosecution were true, a sentence of 1 2
y ears in prison would be utterly disproportionate to the nature of the
crime.

In facilitated communication, the facilitator supports the arm or hand of

a disabled person while that person touches a key board to spell out
words. The method is claimed by some to be particularly useful for
people who, like D.J., are unable to speak and hav e great difficulty in
controlling their limbs. But most studies hav e failed to show the method’s
effectiv eness, and some hav e shown that facilitators can, without
intending to deceiv e any one, come to believ e that they are enabling a
disabled person to communicate when in fact they are the ones who are
writing the sentences. The studies cannot, howev er, prov e that
Stubblefield was misled in this way , and independent ev idence suggests

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that D.J. is literate and able to communicate.

Sheronda Jones, an undergraduate at Rutgers at the time,

v olunteered to assist D.J. by using facilitated communication so that he
could write papers for an English class he was auditing at Rutgers. Before
the trial, Jones had told a detectiv e in the Essex County Prosecutor’s
Office: “He pretty much read the books. I didn’t know any information
about the book. I made sure nev er to read any of the information. I can’t
tell y ou what he read. And he ty ped out the information.” Jones did not
attend the class D.J. took. If she did not read the material on which his
work was based, how could she hav e produced writings that respond to
that material?

The defense wanted to put Jones on the witness stand. Judge Teare
refused, and the jury knew nothing of her interv iew with the detectiv e.

Rosemary Crossley , the defense’s ex pert on communicating with

people with phy sical disabilities, assessed D.J.’s ability to communicate,
spending 1 2 hours with him ov er three day s, and found that he “wanted
to communicate and was able to communicate, giv en appropriate
strategies.” Her assessment was filmed by cameras in two positions. It
was not based on facilitated communication but on methods that could
hav e been v iewed and judged by the jurors, such as requiring D.J. to
touch, unaided, a “y es” or “no” button on a communication dev ice and to
answer multiple-choice questions, most of which he had to read for
himself. Under these conditions, D.J. correctly answered 43 of 45 factual
questions. The judge refused to allow Crossley to testify about her
assessment, claiming that Crossley improperly assisted D.J. during the
ev aluation. The judge also did not allow the members of the jury to see
the v ideos, which would hav e enabled them to judge for themselv es
whether Crossley had influenced the outcome.

She did, howev er, permit the prosecution to display D.J. to the jury
for a few moments in his mute and spastic condition. It is well established
in the psy chological literature that people tend to infer cognitiv e
disability from sev ere phy sical disability , especially when the disabled
indiv idual is unable to speak. There is no reason to suppose that the
members of the jury were immune to this tendency . Y et fewer than 50

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percent of those with cerebral palsy hav e any degree of cognitiv e

impairment. In an amicus brief, intended to be heard in conjunction with
Stubblefield’s appeal, the American Civ il Liberties Union, joined by
v arious disability rights organizations, said that in ex hibiting D.J. to the
jury in this manner, the court had failed to protect his rights. The
appellate court, howev er, has refused to consider the A.C.L.U.’s brief.

Judge Teare’s ex clusion of Jones’s and Crossley ’s testimonies means

that the jury ’s v erdict was giv en in ignorance of v ital ev idence. It also
suggests the possibility that D.J. himself is now in a situation akin to
“locked-in sy ndrome,” finding himself suddenly depriv ed of any means of
communication after two y ears of being able to ex press his thoughts
through Stubblefield and Jones. To determine whether this is true, his
ability to communicate v ia facilitated communication should be
established by independent testing. This should be done for his sake and
for Stubblefield’s.

Suppose, howev er, that all these doubts about Stubblefield’s

conv iction are mistaken. Ev en on that assumption, a sentence of 1 2 y ears
in prison is ex cessiv e both in itself and in comparison with other recent
punishments. It is, for ex ample, in striking contrast to the penalty giv en
to Brock Turner, the former Stanford student who is now free after
serv ing only three months of a six -month sentence for raping an
unconscious woman. The contrast does not indicate whether Turner’s
sentence was too lenient, or Stubblefield’s too harsh. It does, howev er,
suggest that we should think carefully about what considerations are
relev ant to sentencing for sex crimes. In determining how sev ere a
sentence is appropriate for a sex crime, it seems obv ious that the beliefs
and intentions of the perpetrator and the harm done to the v ictim are
among the most important considerations.

Judge Teare described Stubblefield as “the perfect ex ample of a

predator prey ing on her prey ” and gav e her a sentence that would be
fitting for a predatory rapist. Y et no one would or could ev er hav e known
that Stubblefield and D.J. had had sex ual relations if she had not
conv ey ed to his mother and brother what she believ ed to be his message
to them, v ia facilitated communication that she conducted in their
presence, that he and she were in lov e and had consummated their

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relationship. This is the action not of a sex ual predator but of an honest
and honorable woman in lov e. Ev en if she is mistaken in her beliefs about
his intelligence and ability to communicate, it is undeniable that these
beliefs are sincere and that she was neither reckless nor negligent in
forming them. This ought to hav e been a mitigating, if not wholly
ex culpating, consideration in the sentencing.

The sev erity of the judge’s sentence might be justifiable if

Stubblefield’s hav ing sex with D.J. not only was culpable but also both
wronged him and harmed him. Y et both of the latter assumptions are
questionable.

A central issue in the trial was whether D.J. is profoundly cognitiv ely
impaired, as the prosecution contended and the court seemed to accept,
or is competent cognitiv ely but unable to communicate his thoughts
without highly skilled assistance, as the defense contended. If we assume
that he is profoundly cognitiv ely impaired, we should concede that he
cannot understand the normal significance of sex ual relations between
persons or the meaning and significance of sex ual v iolation. These are,
after all, difficult to articulate ev en for persons of normal cognitiv e
capacity . In that case, he is incapable of giv ing or withholding informed
consent to sex ual relations; indeed, he may lack the concept of consent
altogether.

This does not ex clude the possibility that he was wronged by

Stubblefield, but it makes it less clear what the nature of the wrong might
be. It seems reasonable to assume that the ex perience was pleasurable to
him; for ev en if he is cognitiv ely impaired, he was capable of struggling to
resist, and, for reasons we will note shortly , it is implausible to suppose
that Stubblefield forcibly subdued him. On the assumption that he is
profoundly cognitiv ely impaired, therefore, it seems that if Stubblefield
wronged or harmed him, it must hav e been in a way that he is incapable
of understanding and that affected his ex perience only pleasurably .

If, by contrast, we assume that he has normal cognitiv e capacities,

certain uncontested facts make it difficult to believ e that he was forced to
hav e sex against his will — for ex ample, that he cooperated in the process
of rev ealing to his family that he and Stubblefield had had sex ual

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relations. On the assumption that he has normal cognitiv e abilities, he

would surely hav e found a way to ex press his hostility to Stubblefield on
that occasion or subsequently . Ev idence of such hostility would hav e
strengthened the prosecution’s case. The prosecution, howev er, offered
no ev idence that D.J. had ev er shown hostility to Stubblefield.

This is hard to reconcile with the assumption that D.J. has normal
cognitiv e capacities and had been forcibly subjected to sex ual abuse by
Stubblefield.

For someone to spend 1 2 y ears in prison for a sex ual act that took
place in the contex t of a long-term, caring relationship that was
motiv ated by lov e — at least on Stubblefield’s part — and about which
there is no ev idence that it caused any harm is, in our v iew, outrageous.

In October 201 6, it was announced that D.J.’s family , which had filed
a civ il suit against Stubblefield, had been awarded $4 million by another
New Jersey court — $2 million in compensatory damages and $2 million
in punitiv e damages. The press report quotes the family ’s attorney as
say ing that “my clients are v ictims of a horrible predator,” to which he
added the gloating comment that “she’s got 1 2 y ears to think about it.”

But just as there is little reason to suppose that Stubblefield harmed

D.J., so it is difficult to see what harm she inflicted on his family
members. If any thing, she tried to help them by working to communicate
with D.J. for two y ears without asking for or receiv ing any fee. She has
now endured a harrowing trial, is separated from her teenage daughter
and is facing 1 2 y ears in prison. Despite the complex ities of the incident
and the trial, we believ e that Stubblefield herself is a v ictim of griev ous
and unjust harms.

Correction: April 4, 2017

An earlier v ersion of this essay described an aspect of Anna Stubblefield’s trial
incorrectly . It is not true that all testim ony related to facilitated
com m unication was barred.
Jeff McMahan, form erly a professor of philosophy at Rutgers Univ ersity , is a
professor of m oral philosophy at the Univ ersity of Oxford. Peter Singer is a
professor of bioethics at Princeton Univ ersity and laureate professor at the
Univ ersity of Melbourne.

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