Intent vs. Impact and the Matter of Collective Guilt

One of biggest piles of crap ever shat on the floor of the (post)modern culture landscape is this notion that intent doesn’t matter, that it is only the effect that matters. This slogan “Intentions don’t matter” is an attempt to get around the rational requirement that a speech act—or even a physical act—is explained or understood by the intent of the actor.

To be sure, the effect of an action is a big part of holding wrongdoers responsible. The Latin term for this is actus reus, the standard definition of which is voluntary action or conduct that is a constituent element of a crime as opposed to the accused’s mental state. Actus reus generally refers to voluntary physical action causing harm forbidden by law (not all physical harm is forbidden).

However, intent is a big part of determining not only the severity of punishment, but whether a person is at all responsible for the act that may find him facing punishment. This is called mens rea, and it means “guilty mind.” Mens rea is the intention or knowledge of wrongdoing that is a constituent element of a crime over against the voluntary action or conduct of the accused.

There are many things that may excuse mens rea. For example, in the realm of physical acts, if I took somebody’s coat because I mistook it for my own, then I did not steal it because it was not my intent to. I should of course make an effort to return the coat, and failing to do so may indicate intent, but if the other person’s coat is exchanged for my own, no crime has occurred. Mistake of fact is one of many excuses and justifications for negating mens rea.

Of course, the slogan “Intentions don’t matter” is really aimed at speech. Straightaway, the idea that people are to be punished or disciplined for the impact of their speech is problematic in light of the free speech right. In my case, as a college teacher, there is an extra layer of protection that comes with academic freedom. I have a responsibility to be true to the facts of history as I know them. Furthermore, I have to be free to use words for effect and realism. Not only must I resist the desire to sanitize history (for sanitizing history isn’t merely revising history, which may occur in light of new facts, but the act of suppressing it), but I must also reflect the reality of the people I study, a reality that is conveyed and experienced symbolically. Words indeed matter—which is why we must not censor them.

Deb Ellis and Denis Mueller’s 1990 documentary on COINTELPRO, The FBI’s War on Black America

I show a documentary in class, The FBI’s War on Black America, in which the word “nigger” is used several times. Bull Connor, for example, uses the word in glorifying violence perpetrated against civil rights marchers. I have yet to have a student complain. But, in this climate, every time I show the documentary, I expect complaints. I expect complaints because of all the cases in which a teacher is disciplined for saying something that affected one or more of his student.

For example, in 2020, Harvard dismissed a Title IX complaint made by a transgender student who accused anthropology professor Arthur Kleinman of sexual misconduct for comments made in a general education class concerning the risk of violence transgender individuals faced in a nonwhite culture after the student expressed support for excluding white people from certain spaces because, “as a transgender woman of color,” it made her feel safer. Kleinman apologized to the class for his comments.

More recently, again at Harvard, human evolutionary biology lecturer Carole Hooven made comments on a Fox News show defending the usage of the terms “male” and “female” to refer to biological sex in medical classes. Graduate student Laura Lewis tweeted that Hooven’s remarks “appalled and frustrated” her and characterized them as “transphobic and harmful.” Lewis countered that transgender men can also be pregnant, which of course is true, since they are biological females. Hence the controversy. (Hooven explains the situation on this podcast.)

In the realm of speech acts, if I use a racial slur in a  discussion about the history of racism, my intent is very different than if I use that slur to angrily insult a person or to publicly diminish them. If my intent in referring to male and female in terms of the size of the gametes in a lecture on biological reality is to accurately convey the science of sex differences, not to diminish those who do not conform to traditional gender identities visàvis their sex, it should not change anything to say that it does not matter what my intent is because effect is all that matters. That will only change things if we allow it to. These are words and information. Who determines their effects if intent is irrelevant? It must be the person who claims to have been affected.

Therein lies the rub. By reducing words to effect only, and then leaving the truth of intent to the person claiming to have been affected, and emplacing a system that punishes people for their utterances, a person may be punished for the utterances regardless of intent. This is a terrifying world. The person who claims to have been affected determines the truth of your speech act. Based on what? His feelings. Any burden to prove intent has been lifted from the accuser. The “victim” determines what is right and wrong on the basis of his subjectivity. Even if the least of it is the expectation that the person who uttered the offending words will apologize for uttering it, this is unacceptable if we mean to live and work in an objective and rational world.

* * *

“Four little girls were killed in Birmingham yesterday. A mad, remorseful worried community asks, ‘Who did it? Who threw that bomb? Was it a Negro or a white?’ The answer should be, ‘We all did it.’” This was said on Monday, September 16, 1963, by a young Alabama lawyer named Charles Morgan Jr., a white man, who stood up at a lunch meeting of the Birmingham Young Men’s Business Club and delivered a speech about race and prejudice.

Investigators work outside the 16th Street Baptist Church in Birmingham, Ala., following an explosion that killed four young girls. (Picture and caption from NPR)

This is the theme of Andrew Cohen’s 2013 Atlantic essay, “The Speech That Shocked Birmingham the Day After the Church Bombing.” He claims that Morgan was forever shunned for saying this. While I do not support forever shunning (any length of shunning, frankly), Morgan does deserve severe criticism for making such an argument. For it is not everybody who did this. The people who threw the bomb did this. They alone are to blame. We know it was four members of a local chapter of the Ku Klux Klan who committed this crime. They were tried for and convicted of the murders.

If the argument is that those who bombed the church did so because of anti-black prejudice, and that, since anti-black prejudice is socially conveyed, we are all responsible for prevailing social conveyances, then the argument still fails, since, while anti-black prejudice may indicate the bomber(s) motive (I think it does), and thus explain the bombing, and while we should condemn anti-black prejudice (although there is no required for individuals to do this), the fact that the prejudice was learned can in no way implicate society in the act, since individuals either choose to perpetrate wrongdoing or they are not responsible for their actions. Actus reus requires that an action is voluntary to be a crime. Society is not a voluntary actor.

It’s rhetoric like Morgan’s that deranges the civil rights struggle. Civil rights becomes a quasi-religion at this point, replete with transcendent notions of collective and intergenerational guilt. That Morgan’s words echo down through history as if they bent the arc of the universe a little towards justice, as Cohen claims, tells us just how much popular understanding of justice has been shifted from one of rational adjudication of the facts to that of magical thinking and superstition. Because we all know that belief in collective guilt is widespread in American society.

This way of thinking is easy because it happens in the context of a culture of believers. Because of ubiquity of religious thinking in the United States, the majority is primed to believe in such magical and superstitious notions as collective guilt, to see individuals whose behavior is not directed by an organization as belonging to abstracts grouping that do direct their actions. Thus, without a directive or chain of command, by virtue being in society, the individual is responsible for actions taken by others. This is the irrational basis of such constructs as white privilege and the demand for reparations.

Those who believe in the supernatural expect to see ghosts—to be haunted by them. They are prone to accept claims that root in the spirit realm of sin and salvation. None of this is true, of course. But, in any case, none of this can be part of a secular system in which religious belief is the prerogative of the individual but the obligation of none. We see in Morgan’s speech (much of which is reproduced in Cohen’s essay) the logic of critical race theory. Critical race theory, a quasi-religious system, eschews the burden to prove intent. And we should shun critical race theory.

Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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