Incompetence to Consent
Posted: June 3rd, 2010, 2:46 am
I assume we are all familiar with the major role of consent plays in law and social values. Many interactions and exchanges that are considered acceptable or even beneficial when consensual are considered unacceptable, considered harmful or even criminalized when non-consensual. The example of sex epitomizes this; consensual sex between competent adults is usually considered to be at least tolerable if not a good thing and is usually not criminalized, but non-consensual sex is rape and is for many people the epitome of the kind of act we want criminalized.
The difference between consent and non-consent (e.g. the difference between consensual sex and rape) may seem simple at the theoretical level. However, even in theory the role of consent can be complicated. In this thread, I wish to discuss how consent is complicated by the common belief that certain people are incompetent to consent thus making any apparent willingness or consent the incompetent person provides considered invalid in the eyes of any people or statutes that considers the person incompetent to consent.
Usually, children, animals, severely mentally disabled people and severely mentally ill people are considered incompetent to consent. Also, people who are regularly considered competent to consent may at some point in time be considered temporarily incompetent due to temporary extenuating circumstances such as being severely intoxicated or being temporary insane due to a traumatic event or acute emotional breakdown.
To illustrate, if a competent adult has sex with a willing competent adult, this is considered consensual sex and is usually legal. However, if a competent adult has sex with a willing 10-year-old girl, a dog, a severely drunk woman or a patient at a mental home, that would usually be considered inherently non-consensual since any seeming consent offered would be considered invalid due to incompetence. Where statutes exist to that effect, the sex would be called statutory rape.
To illustrate with an economic exchange rather than sex, if a competent adult agrees to pay someone to do a certain job and willingly hands over the money, this agreement would be considered a consensual economic trade. However, if a competent adult does this with a 10-year-old girl or some other incompetent person it would usually be considered inherently non-consensual. It would be statutory theft or statutory slavery in the way that the sex would be statutory rape). For a more specific example, consider a competent adult man knocks on a door to a house, one of the residents answers, the man informs the resident that the man is a collector of televisions, the resident informs the man that he has a television, the man asks to enter the home and look at it, the resident lets the man enter, the man offers the resident some cash for the television set, the resident accepts the offer and takes the money and the man leaves with the television set. If the resident was a competent adult, then this transaction would generally be considered a consensual trade and would usually be legal (or at least not be a serious crime). However, if the resident who answered the door was a 6-year-old child, then it might be considered theft (even if for the sake of argument the TV was one the child picked out and paid for with money he earned doing odd jobs for family members). In yet another example, consider a competent adult offers a child ten one-dollar bills for one one-hundred dollar bill and the child accepts and willingly participates in the trade, under the perception the child is incapable of consent this would be equivalent to stealing 99 dollars from the child since the trade is inherently considered non-consensual.
Remember, this affects other people besides the one being denied the ability to validly consent. The incompetent person not only loses rights possessed by competent people (e.g. the right to have legal consensual sex with other competent adults), but also others become responsible for the incompetent being in ways they are not responsible for competent adults. For instance, if a package store owner sells or gives a bottle of vodka to a competent adult, and the adult goes home and drinks too much and dies that's generally considered to be the fault of the adult. However, if a package store owner sells or gives a bottle of vodka to a 12-year-old or his pet dog, this is considered inherently non-consensual, and if the 12-year-old or dog dies from the vodka, the competent adult who gave the vodka may be held as responsible as if he had force-fed the vodka to the child, dog or other incompetent person.
I think almost all of us would agree with those common considerations. For instance, we agree sex between a competent adult and a child is rape.
However, this creates a few practical problems and philosophical questions.
One issue is the problem of arbitrariness and judgment. While many cases are relatively black-and-white, such as the typical adult doing something with an an 8-year-old (or even an animal) like having sex or buying that TV. However, there are more gray areas, such as when a 25-year-old has sex with a 16-year-old, or a 21-year-old has sex with a mature 17-year-old. Setting any age as the age of consent is arbitrary. Whether the age of consent is 15, 18, 21 or whatever, it creates an arbitrary situation where a person is considered competent to consent simply by being a year older. This means just by being a year younger than the age of consent one is denied (without permission from a legal guardian) the right to enter into an employment contract, have sex, buy a home, take out a credit card, open a bank account, sell a TV set or consent to buy or consume products that require valid consent to buy or consume (such as often alcohol, cigarettes, guns, etc.). This affects other people besides minors as well. While I use age as my example, other reasons to declare a person incompetent can require the drawing of an arbitrary line. For instance, while it may be clear that one person is way too mentally insane to be competent to consent and another person is quite sane and competent, there will also be people in the middle. This is usually decided by a court, but ultimately the line has to be arbitrarily drawn somewhere to declare some people incompetent and others competent based on a very slight difference. Just as someone can be a few days away from the age of consent, one can be just a few degrees of crazy or retarded from a court deciding the other way in a case about competence to consent. In these gray cases, there may be no consensus of whether the person is competent to consent and there may be no consensus on who gets to decide. The 21-year-old who is seduced by a 17-year-old may be considered a (statutory) rapist to one person and be considered harmless by another person.
Another issue is the problem of custody. Once we decide some people (and animals) are incompetent to consent, this is generally believed to enable or even require a custodial party to take responsibility of the incompetent person (or animal).
In the case of children, the parent is usually the one who is expected and does take custody. As such this custodial party (usually the parent) gains rights and responsibilities that are very different than the custodial party has with other competent adults. For instance, a custodial parent generally can force-feed their children or pets food or medicine. Just as having sex with children (or animals) is always considered to be tantamount to rape because of the children's incompetence to consent, so to is feeding a child (or pet) always considered tantamount to force-feeding the child. For instance, if a competent custodial adult gives a child a healthy plate of vegetables or an important illness-curing medicine it generally does not matter whether the child was willing and seemed to want the food or medicine or whether it was coercively forced against the child's will. If a competent adult gives a child (or pet) a bowl of vodka or some poison it generally does not matter if the child wanted it or was coercively forced to consume it. It's essentially always tantamount to forcing it upon the child. This is a main reason why a custodial party is necessary; there are certain things a child needs like to eat and so someone has to be in charge of forcing him to eat instead of letting him starve (because even if he doesn't have to really be forced to eat, just handing the child some food that the child wants is considered to be essentially the same as forcing him to eat the food with the threat of a spanking).
Another important aspect of the need for a custodial party is irresponsibility. By declaring certain people (and animals) as incompetent to consent, it also negates much of the ability to hold the incompetent person responsible. For example, if a 10-year-old child goes out and throws a rock through your window, you generally can't sue the child but you have to sue the custodial party (usually the parent), i.e. whoever is responsible for the incompetent person. If a dangerous dog gets out and bites you, you can't sue the dog for the medical costs; you sue whoever was responsible for the dog. If a four-year-old child has a gun and shoots someone dead, the four-year-old probably wouldn't even be charged with a crime, but whoever gave the four-year-old the gun and whoever was supposed to be watching the four-year-old would be held responsible and could even be charged with murder even though the child pulled the trigger.
***
My first main question is this: Does anyone disagree entirely with the common use of this general process of declaring certain people (and animals) as incompetent to consent? If so, what are you suggesting we do instead? You wouldn't want us just to treat all these people as competent, would you? I think some particular systems or people may be too strict and too quick to declare people incompetent (e.g. having the age of consent too high, or giving a judge to much leeway to send someone to the loony bin); others are too lenient (e.g. setting the age of consent too low). But overall I agree the general system even though the details of its implementation in any certain society or specific case may be debatable.
Aside from that, I just want to know what you all think about what I have written above? Do you have any corrections, questions, comments or additions?
The difference between consent and non-consent (e.g. the difference between consensual sex and rape) may seem simple at the theoretical level. However, even in theory the role of consent can be complicated. In this thread, I wish to discuss how consent is complicated by the common belief that certain people are incompetent to consent thus making any apparent willingness or consent the incompetent person provides considered invalid in the eyes of any people or statutes that considers the person incompetent to consent.
Usually, children, animals, severely mentally disabled people and severely mentally ill people are considered incompetent to consent. Also, people who are regularly considered competent to consent may at some point in time be considered temporarily incompetent due to temporary extenuating circumstances such as being severely intoxicated or being temporary insane due to a traumatic event or acute emotional breakdown.
To illustrate, if a competent adult has sex with a willing competent adult, this is considered consensual sex and is usually legal. However, if a competent adult has sex with a willing 10-year-old girl, a dog, a severely drunk woman or a patient at a mental home, that would usually be considered inherently non-consensual since any seeming consent offered would be considered invalid due to incompetence. Where statutes exist to that effect, the sex would be called statutory rape.
To illustrate with an economic exchange rather than sex, if a competent adult agrees to pay someone to do a certain job and willingly hands over the money, this agreement would be considered a consensual economic trade. However, if a competent adult does this with a 10-year-old girl or some other incompetent person it would usually be considered inherently non-consensual. It would be statutory theft or statutory slavery in the way that the sex would be statutory rape). For a more specific example, consider a competent adult man knocks on a door to a house, one of the residents answers, the man informs the resident that the man is a collector of televisions, the resident informs the man that he has a television, the man asks to enter the home and look at it, the resident lets the man enter, the man offers the resident some cash for the television set, the resident accepts the offer and takes the money and the man leaves with the television set. If the resident was a competent adult, then this transaction would generally be considered a consensual trade and would usually be legal (or at least not be a serious crime). However, if the resident who answered the door was a 6-year-old child, then it might be considered theft (even if for the sake of argument the TV was one the child picked out and paid for with money he earned doing odd jobs for family members). In yet another example, consider a competent adult offers a child ten one-dollar bills for one one-hundred dollar bill and the child accepts and willingly participates in the trade, under the perception the child is incapable of consent this would be equivalent to stealing 99 dollars from the child since the trade is inherently considered non-consensual.
Remember, this affects other people besides the one being denied the ability to validly consent. The incompetent person not only loses rights possessed by competent people (e.g. the right to have legal consensual sex with other competent adults), but also others become responsible for the incompetent being in ways they are not responsible for competent adults. For instance, if a package store owner sells or gives a bottle of vodka to a competent adult, and the adult goes home and drinks too much and dies that's generally considered to be the fault of the adult. However, if a package store owner sells or gives a bottle of vodka to a 12-year-old or his pet dog, this is considered inherently non-consensual, and if the 12-year-old or dog dies from the vodka, the competent adult who gave the vodka may be held as responsible as if he had force-fed the vodka to the child, dog or other incompetent person.
I think almost all of us would agree with those common considerations. For instance, we agree sex between a competent adult and a child is rape.
However, this creates a few practical problems and philosophical questions.
One issue is the problem of arbitrariness and judgment. While many cases are relatively black-and-white, such as the typical adult doing something with an an 8-year-old (or even an animal) like having sex or buying that TV. However, there are more gray areas, such as when a 25-year-old has sex with a 16-year-old, or a 21-year-old has sex with a mature 17-year-old. Setting any age as the age of consent is arbitrary. Whether the age of consent is 15, 18, 21 or whatever, it creates an arbitrary situation where a person is considered competent to consent simply by being a year older. This means just by being a year younger than the age of consent one is denied (without permission from a legal guardian) the right to enter into an employment contract, have sex, buy a home, take out a credit card, open a bank account, sell a TV set or consent to buy or consume products that require valid consent to buy or consume (such as often alcohol, cigarettes, guns, etc.). This affects other people besides minors as well. While I use age as my example, other reasons to declare a person incompetent can require the drawing of an arbitrary line. For instance, while it may be clear that one person is way too mentally insane to be competent to consent and another person is quite sane and competent, there will also be people in the middle. This is usually decided by a court, but ultimately the line has to be arbitrarily drawn somewhere to declare some people incompetent and others competent based on a very slight difference. Just as someone can be a few days away from the age of consent, one can be just a few degrees of crazy or retarded from a court deciding the other way in a case about competence to consent. In these gray cases, there may be no consensus of whether the person is competent to consent and there may be no consensus on who gets to decide. The 21-year-old who is seduced by a 17-year-old may be considered a (statutory) rapist to one person and be considered harmless by another person.
Another issue is the problem of custody. Once we decide some people (and animals) are incompetent to consent, this is generally believed to enable or even require a custodial party to take responsibility of the incompetent person (or animal).
In the case of children, the parent is usually the one who is expected and does take custody. As such this custodial party (usually the parent) gains rights and responsibilities that are very different than the custodial party has with other competent adults. For instance, a custodial parent generally can force-feed their children or pets food or medicine. Just as having sex with children (or animals) is always considered to be tantamount to rape because of the children's incompetence to consent, so to is feeding a child (or pet) always considered tantamount to force-feeding the child. For instance, if a competent custodial adult gives a child a healthy plate of vegetables or an important illness-curing medicine it generally does not matter whether the child was willing and seemed to want the food or medicine or whether it was coercively forced against the child's will. If a competent adult gives a child (or pet) a bowl of vodka or some poison it generally does not matter if the child wanted it or was coercively forced to consume it. It's essentially always tantamount to forcing it upon the child. This is a main reason why a custodial party is necessary; there are certain things a child needs like to eat and so someone has to be in charge of forcing him to eat instead of letting him starve (because even if he doesn't have to really be forced to eat, just handing the child some food that the child wants is considered to be essentially the same as forcing him to eat the food with the threat of a spanking).
Another important aspect of the need for a custodial party is irresponsibility. By declaring certain people (and animals) as incompetent to consent, it also negates much of the ability to hold the incompetent person responsible. For example, if a 10-year-old child goes out and throws a rock through your window, you generally can't sue the child but you have to sue the custodial party (usually the parent), i.e. whoever is responsible for the incompetent person. If a dangerous dog gets out and bites you, you can't sue the dog for the medical costs; you sue whoever was responsible for the dog. If a four-year-old child has a gun and shoots someone dead, the four-year-old probably wouldn't even be charged with a crime, but whoever gave the four-year-old the gun and whoever was supposed to be watching the four-year-old would be held responsible and could even be charged with murder even though the child pulled the trigger.
***
My first main question is this: Does anyone disagree entirely with the common use of this general process of declaring certain people (and animals) as incompetent to consent? If so, what are you suggesting we do instead? You wouldn't want us just to treat all these people as competent, would you? I think some particular systems or people may be too strict and too quick to declare people incompetent (e.g. having the age of consent too high, or giving a judge to much leeway to send someone to the loony bin); others are too lenient (e.g. setting the age of consent too low). But overall I agree the general system even though the details of its implementation in any certain society or specific case may be debatable.
Aside from that, I just want to know what you all think about what I have written above? Do you have any corrections, questions, comments or additions?