I've chosen to celebrate the occasion with another of my dissertations on television and moral consequentialism. If this isn't your cup of tea, no hard feelings - I'll see you on Friday.
I don’t normally watch Law & Order: Criminal Intent – OK, I never watch it – but the other day my wife had it on when I came home from work, and I got caught up in the final few minutes of the drama. As near as I can tell, the cops were after a bad guy who had stolen some gems and murdered someone. They went to work on the bad guy’s woman, who (as is usually the case in these things) was the weak link, trying to get her to rat on her boyfriend. Finally, one of the cops – the guy cop (nowadays they always work in boy-girl tandems, apparently) – managed to convince her that her boyfriend was HIV-positive due to some things he’d been doing in prison, and that because of the – well, various acts in which they had engaged, she was likely HIV-positive as well. He even offered to have her get an AIDS test if she had any doubts. In the end (no pun intended), she did indeed turn on him, letting the cops know where he’d be when the stolen gems deal went down. As they slapped the handcuffs on to take him away, she told him that, yes, she was the one who’d squealed, and that since thanks to him she was going to die, she thought she’d return the favor.
Whereupon our cop hero turns to her and says – Surprise! You’re not going to die after all! I just lied about that AIDS thing to get you to turn your boyfriend in. No hard feelings, right? I mean, it’s good to be alive, isn’t it?
Well, maybe he didn’t say the last part, but he gleefully admitted to having intentionally lied to her about having AIDS, hoping that it would get her to cough up what they needed to make the bust. All’s fair in love and war and law enforcement. It doesn’t matter how you play the game, and it is a game – it’s all whether you win or lose.
Or is it? The episode got me to thinking, which isn’t a surprise since I wouldn’t be writing about it otherwise, and much to the consternation of my wife, who really prefers a restful, relaxing dinner, I started bouncing around several theories on the moral law as it applied to this case.
But, I continued, there are two other ways to look at this – ethically, and morally. They sound similar, but they aren’t.
Ethically, did the cop cross the line by lying to extract information? It’s a tricky question. I don’t think anyone would disagree that a public servant, which is what a policeman is, had better have a damn good reason for lying in the performance of his or her job. And in fact, there are probably times when lying is appropriate, based on the magnitude of the lie and the importance of the results produced by the telling of the lie. But I don’t mind saying this kind of lie makes me uncomfortable. First, there’s a blitheness to it, a suggestion on the part of the cop that lying is part of the job, that the end always justifies the means, that it’s the kind of thing that never gives him pause.
Let’s examine this a little closer, because what it does, at least in part, is reduce law to a game, one with a winner and a loser where the competition to win is what it’s all about. In viewing the law this way, you vastly diminish its moral authority, as well as demonstrate a lack of respect for what it represents. Recall, if you know your TV history, that Perry Mason was always very careful when it came to misleading someone on the witness stand. As he would point out to Della and Paul in the episode’s dénouement, he was always careful to use the phrase “Suppose I were to tell you” as a preface to the allegation which he would use to trap the guilty party. It’s an important distinction – after all, most of the time, in the excitement of the courtroom confession, nobody would give a second thought to the question by Perry that triggered it all. But even if nobody asked about it, Perry would still know. And when he stashes his client at a motel in order to keep them out of the clutches of the police while he investigates the case, he always tells them to register in their own name. As an officer of the law, of course, he has to do that – but there’s an ethical component for Perry as well. He’ll do anything for his client, but he won’t lie, and he won’t suborn perjury – even if he has a good reason for doing so.
Let’s look at another example. Just last week, I saw an episode of Columbo in which the Lieutenant tricks a murderer into confessing by pretending to arrest the killer’s son and charge him with the murder. The episode is unclear as to whether or not Columbo did this with the cooperation of the son; I don’t think he did, and if this is the case, did he, like our friend in L&O, cross the line? Possibly, although I don’t think it’s quite the same magnitude of lie (which I’ll discuss in the next paragraph) – but in any event, Columbo does something interesting after the real killer confesses. He apologizes to him for having arrested his son, and assures him his son will be released shortly. That tells me that while Columbo may have felt he had to stage this charade in order to get the killer to confess, he didn’t feel particularly good about having done it. In other words, he showed not glee, but remorse.
That leads me to the final way in which this is measured: the moral equation. Legally, the L&O cop is probably in the clear, ethically his actions are dubious at best, but what about morally? Is a lie ever justified? Aquinas thought not; in the Summa, he wrote that "Therefore it is not lawful to tell a lie in order to deliver another from any danger whatever. Nevertheless it is lawful to hide the truth prudently, by keeping it back, as [St.] Augustine says"(In other words, as Mr. Spock once said in response to an accusation that he’d told a lie, something Vulcans are supposed to be unable to do, “I did not lie. I merely withheld a portion of the truth.”)
In discussing whether or not one can ever justify the lie, a Catholic theologian said the following:
It would satisfy a well-formed conscience, I think, to permit the speaking of falsehood when it is the only means we can think of to prevent someone from committing an immoral act. But if so, it is hard to reach such a conclusion only by denying the intention to deceive. There must be something more than that, for we could also say that when we lied to our boss last Wednesday, our intention was not to deceive but to save our skin. Clearly this is just one more possibility for exploration, and so far all the possibilities in history have not led to a formal doctrinal development to settle the matter. It remains the case that, despite our instincts, we don’t quite know how to justify deceiving our proverbial thugs, or telling jokes that involve deception, or doing undercover police work, or engaging in military counter-intelligence activities during wartime. [Emphasis added.]
Let’s look also at the first part of that quote, the discussion of permitting a lie in order to prevent someone from committing an immoral act. The classic example of this is the World War II German who lies to the Gestapo, telling them there are no Jews in the house, when in fact there’s an entire family hiding in the attic. It’s a lie, yes, but one can persuasively argue that the Gestapo officers aren’t entitled to the truth, that they have no right to ask the question in the first place since their purpose is to gather information in order to capture Jews and execute them, an objectively evil act.
I think what troubles me so much about this the lie told by the L&O cop is that it’s dealing with something incredibly personal – telling someone they’ve contracted a terminal disease. That kind of lie strikes me as so intimate; regardless of what that person might have been done, the liar is robbing them of their human dignity by treating their health – and soul – in such a cavalier manner. It is, in fact, a subtle form of torture. Psychological rather than physical, but torture nonetheless. Think about it; what's the difference between telling someone they're going to die when they aren't, and faking an execution or waterboarding a suspect? In all three instances you're trying to convince them they're going to die unless they give you the information you want, when in reality you have no intention of killing them. Granted, physical torture can get out of hand, but so can psychological torture, if that person doesn't act the way you think they will.
At the same time, let’s not overlook the danger the cop is posing to his own soul with this kind of lie. Not only has he violated the human dignity to which everyone – even a crook or killer – is entitled, he’s also scarred his own human dignity. It’s the kind of act that causes someone to say, “C’mon, you’re better than this.” And this last point is an important one, because it cuts to the heart of what it's all about - the responsibility that a person assumes because of their actions. It's why Columbo's showing remorse is crucial. There's no evidence that our L&O cop feels any qualms about what he's done, but were he to discuss it with a priest, for instance, there's every chance he'd be told something similar to what we've discussed here, that his actions carry with them profound moral consequences. Perhaps he hadn't considered them when he told the lie, but now that it's been brought to his attention, he's going to have to change the way he thinks in the future. Can he understand this - can he understand that being a detective and trying to track down and punish the guilty does not give him carte blanche to do whatever he feels is necessary. Now, can he continue to do his job under those circumstances? Can he remain an effective detective without manipulating morality in order to do it?
If the answer to that is "no," then he has only one choice: give up his job. Because ultimately the state of his soul, and the souls of those with whom he comes into contact, is more important.
It's the old story of the frog and the boiling water, and it will be repeated to us again and again until we've accepted it, until we've bought into the idea that only the guilty have reason to worry, that such tactics will never be used against the innocent. And of course before we know it, we as a people have given up a fundamental piece of our freedom, and those sworn to protect us have given up a fundamental part of their humanity.
By presenting this kind of thinking in an uncritical, unchallenged way, we wind up encouraging it. Before long, we'll accept "lying for justice," and might even find ourselves doing it. And when that happens, then we'll know that the Criminal Intent in Law & Order refers not only to the bad guys, but the good guys as well.