Intent versus Impact in Speech Acts

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 having as one’s purpose to commit or knowledge of wrongdoing that is a constituent element of a crime over against the voluntary action or conduct of the accused.

These days the slogan “Intentions don’t matter” is 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 worry just a little. I worry because of 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. Did he feel he had to?

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. Why would we? 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 another person’s 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.

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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