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Incompetence to Consent

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Scott

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Incompetence to Consent

Post Number:#1  PostJune 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?
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Post Number:#2  PostJune 3rd, 2010, 6:45 pm

Dear Scott,

In reply to your post of 6/3/10 (#1):

"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?"


Entirely, no. For instance, it would be beyond the competence of a dog to consent/dissent to the application of a rabies shot. But how about putting a plate of food before a hungry dog? Where would consent/dissent come in? Would he be incompetent to decide as to whether to eat it or not? And consent? Would his eating it constitute competent consent?

Regards,

Jack
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Post Number:#3  PostJune 3rd, 2010, 11:23 pm

Thank you for your reply, Jackowens. :)

Jackowens wrote: But how about putting a plate of food before a hungry dog? Where would consent/dissent come in?

It doesn't come in, if you believe the dog/child is incompetent to consent. Any apparent consent or willingness offered by the child/dog/clinically-insane-adult is invalid. Anything fed to the dog/child is the equivalent of force-feeding it to the dog/child just as any sex with a person considered incompetent such as a child or pet is rape. What do you find unclear in these similar examples I explained in the first post:

Scott wrote: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.


The fact that the incompetent party (whether it is child, dog or severely mentally disabled person) willingly goes up to a bowl set in front of them by a competent adult and consumes the contents is irrelevant because--according to the belief of incompetence to consent--any apparent consent offered is invalid and any interaction between a competent adult and a incompetent party is effectively non-consensual no matter what.
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Post Number:#4  PostJune 4th, 2010, 4:10 am

As well as criminal coercion in cases of rape, I would like also to consider those cases where power is exerted to coerce when the coercionis not criminal. For instance, when a servant or other employee is persuaded, perhaps willingly, to have sex with employer: a priest having sex with a naive parishioner: a medical doctor having sex with a patient: or when a teacher has sex with an adult student there is undue exertion of power. The person with power should as a matter of common morality exert responsibility towards the person with less power.This is not statutory rape but in some of those cases the professional body should punish the irresponsible person with the power.

Over or under feeding an animal or a child is in some countries a criminal offence when it is gross negligence. It is high time that parents who cause their children to become obese were made to attend parenting classes.
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Post Number:#5  PostJune 4th, 2010, 4:42 pm

Dear Scott,

In reply to your post of 6/3/10 (#3):

"Any apparent consent or willingness offered by the child/dog/clinically-insane-adult is invalid."


Then the dog shouldn't be fed? Confusing.

Can we get away from the child? I'm talking specifically about a dog, not a child.

If I follow you, you couldn't feed a dog because it wouldn't be possible for it to eat with competent consent. Is that what your thinking adds up to?

Regards,

Jack
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Post Number:#6  PostJune 4th, 2010, 5:55 pm

Jackowens wrote:If I follow you, you couldn't feed a dog because it wouldn't be possible for it to eat with competent consent. Is that what your thinking adds up to?

No, that would be absurd. Obviously, it's not usually illegal to feed children, dogs or any other incompetent person and nobody wants it to be illegal. You don't need consent to feed a dog or child because--according to those who believe children and animals are incapable of valid consent--you cannot get valid consent from a dog or child. You can force-feed a dog or child, whether it's food, medicine or water. Indeed, a custodial party who doesn't feed a child or pet would likely be in trouble--and any feeding would be tantamount to force-feeding in the same way any sex with the incompetent being would be tantamount to rape.

Jackowens wrote:Can we get away from the child? I'm talking specifically about a dog, not a child.

Why? Children are almost always considered incompetent to consent as well. In terms of competence to consent, the difference between children and animals like dogs is simply that animals are even less competent to consent. But if you would prefer I can just use the phrase 'incompetent being' rather than the phrase 'child or dog.' Then anyone reading can, in their own head, substitute 'incompetent being' with whichever of the following you want: child, dog, animal, mentally ill person who has been declared incompetent or mentally disabled person who has been declared incompetent--as what is being said applies to each. I don't see the value in only talking about any one specifically because, for example, the reason sex between a competent adult and a mentally ill person who has been declared incompetent is considered rape (i.e. non-consensual sex) regardless of how apparently willing the alleged victim was is the same reason why sex between a competent adult and a child, animal or severely mentally disabled adult is considered rape regardless of how willing the apparent victim seemed; that reason is that the alleged victim is incompetent to consent and any seeming consent offered is invalid and interaction with them is considered inherently non-consensual.
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Post Number:#7  PostJune 5th, 2010, 2:46 am

Dear Scott,

In reply to your post of 6/4/10 (#6):

Jackowens wrote: If I follow you, you couldn't feed a dog because it wouldn't be possible for it to eat with competent consent. Is that what your thinking adds up to?

"No, that would be absurd."


Of course it's absurd, but what your thinking, as given, seems to lead to is the idea that anything that a dog wants to do is wanted on the basis of mental incompentency or uninformed consent. In other words, if a dog copulates with a willing woman, we don't judge that on the basis of whether he has turned to or away from the woman; we judge it on the basis of his competency and the validity of his consent.

Why isn't the case the same with his eating food?

Jackowens wrote: "Can we get away from the child? I'm talking specifically about a dog, not a child."

"Why?"


Because of a species-difference. You believe that a normal child will grow to be able to make competent judgements. A dog, on the other hand, never will.

Aren't those your beliefs?

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Jack
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Post Number:#8  PostJune 5th, 2010, 6:59 am

Animals are not included in this "consent" theory because they are incapable of consent.
Only people are capable of consent, and there are indeed certain categories of people who are incompetent to consent.
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Post Number:#9  PostJune 5th, 2010, 11:21 am

Wonder, I have no idea what you are trying to say. It seems to me like you are saying animals aren't included in the group of beings who are incompetent to consent because they are incompetent to consent; that's nonsense.

***

Jackowens wrote:If I follow you, you couldn't feed a dog because it wouldn't be possible for it to eat with competent consent. Is that what your thinking adds up to?
No, that would be absurd. Obviously, it's not usually illegal to feed children, dogs or any other incompetent person and nobody wants it to be illegal. You don't need consent to feed a dog or child because--according to those who believe children and animals are incapable of valid consent--you cannot get valid consent from a dog or child. You can force-feed a dog or child, whether it's food, medicine or water. Indeed, a custodial party who doesn't feed a child or pet would likely be in trouble--and any feeding would be tantamount to force-feeding in the same way any sex with the incompetent being would be tantamount to rape.
Jackowens wrote:Of course it's absurd, but what your thinking, as given, seems to lead to is the idea that anything that a dog wants to do is wanted on the basis of mental incompentency or uninformed consent. In other words, if a dog copulates with a willing woman, we don't judge that on the basis of whether he has turned to or away from the woman; we judge it on the basis of his competency and the validity of his consent.

Anything done by a competent human adult with a being that is incompetent to consent (including children, dogs, and human adults that have been declared incompetent such as the severely disabled retarded and the severely mentally ill) cannot be validly consensual. If a competent adult has sex with a being that is competent to consent, that is rape no matter how seemingly willing the incompetent being was. If a competent adult puts some food in front of an incompetent being to let the incompetent being eat it, then that is tantamount to force-feeding no matter how seemingly willing the incompetent being was.

Jackowens wrote:Why isn't the case the same with his eating food?

Are you asking me why I and most people want it to at least sometimes be legal for a competent adult to force-feed an incompetent being but never want it be legal for an competent adult to rape anyone? I would think that is self-evident.


Jackowens wrote:Can we get away from the child? I'm talking specifically about a dog, not a child.

Scott wrote:"Why?"
Jackowens wrote:Because of a species-difference. You believe that a normal child will grow to be able to make competent judgements. A dog, on the other hand, never will.

Aren't those your beliefs?

No. Some humans are permanently declared incompetent to consent, such as the severely and incurably mentally ill and the severely mentally disabled. Nonetheless, again, I will try to just use the phrase, incompetent being, and that way if you want to think of dogs specifically as the example of an 'incompetent being' when I say that then go ahead. (Someone else who wishes to think of children specifically or think of the severely and incurable mentally disabled specially as the example of an 'incompetent being' when I say that then they can.)
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Post Number:#10  PostJune 5th, 2010, 5:52 pm

Dear Scott,

In reply to your post of 6-5-10 (#9):

"Anything done by a competent human adult with a being that is incompetent to consent (including children, dogs, and human adults that have been declared incompetent such as the severely disabled retarded and the severely mentally ill) cannot be validly consensual. If a competent adult has sex with a being that is competent to consent, that is rape no matter how seemingly willing the incompetent being was. If a competent adult puts some food in front of an incompetent being to let the incompetent being eat it, then that is tantamount to force-feeding no matter how seemingly willing the incompetent being was."


I edited the above paragraph to limit the discussion to the original topic of dogs and competency. If I've distorted anything, please let me know.

"Anything done by a competent human adult with a dog cannot be validly consensual."

"If a competent adult has sex with a dog, that is rape no matter how seemingly willing the dog was."

"If a competent adult puts some food in front of a dog to let the dog eat it, then that is tantamount to force-feeding no matter how seemingly willing the dog was."

Before I can properly address those propositions we need to come to an agreement on the "Debate Methodology - How to point out each other's errors" thread you started. Please answer my last post there of 6/5/10, #6.

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Jack
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Post Number:#11  PostJune 6th, 2010, 8:25 am

Animals are INCAPABLE of consent.
Incapable and incompetent is the same meaning to you?

Animals don't have REASON and the REASONING ability.
Comparing animals with humans is something that materialists try to do sometimes
That's nonsense.
Since when are animals to be considered alongside men?
Animal life has no value other than its use by man.

Let me put it another way.
Animals don't have 'Free Will" like men do.
What you are talking about (the law), is not a matter of "consent" (in humans only) but an absence of free will.
Children are not allowed free will and that's why they are not allowed "consent" either.The same goes for the rest(crazies and special need people)
However animals should not be included in the subject.
Its quite ridiculous actually
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Post Number:#12  PostJune 6th, 2010, 4:32 pm

Dear Wonder,

In reply to your post of 6/6/10 (11):

"Incapable and incompetent is the same meaning to you?"


Pretty much.

"Animals don't have REASON and the REASONING ability."


Agreed.

"Animals don't have 'Free Will' like men do."


Agreed.

For the rest of your post, I recommend that we try to reach an agreement on the thread Scott started, "Debate Methodology - How to point out each other's errors" at http://onlinephilosophyclub.com/forums/ ... ight=debat e+methodology. We need an agreed-on flooring before I can go any further into the details of your post, and that's what that thread deals with.

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Jack
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Post Number:#13  PostJune 7th, 2010, 5:04 am

Jackowens wrote:Dear Wonder,
In reply to your post of 6/6/10 (11):
"Incapable and incompetent is the same meaning to you?"


Pretty much.


No, not the same meaning at all
Check your dictionary dear Jackowens.
I am not a native speaker but incapability and incompetence are not the same.
Incompetence presupposes capability and the inability is manifested at that particular point in time. (not always)
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Post Number:#14  PostJune 7th, 2010, 6:17 am

Dear Friends,

To Scott:

Now that Wonder has posted, I can post the reply to your post of 65/10 (#9) on this thread where it belongs instead of on the "Same Sex Marriage" thread.

"If a competent adult puts some food in front of a dog to let the dog eat it, then that is tantamount to force-feeding no matter how seemingly willing the dog was."


According to my Webster's New Collegiate Dictionary, "force-feed" is "to feed (as an animal) by forcible administration of food."

That's not what occurs when a hungry dog is fed.

Can we eliminate your proposition as an error (empirical, rather than one of faulty reasoning)?
***********************************************************
To Wonder,

In reply to your post of 6/7/10 (#13):

(Wonder:) "Incapable and incompetent is the same meaning to you?"

(Jack:) "Pretty much."

"No, not the same meaning at all. Check your dictionary dear Jackowens. I am not a native speaker but incapability and incompetence are not the same.
Incompetence presupposes capability and the inability is manifested at that particular point in time. (not always)"


First, permit me to compliment you for trying to be as precise as you can in your English, but going to my Webster's New Collegiate Dictionary what I find is:

"Incompetent": "Lacking the qualities needed for effective action."

"Incapable": "Lacking capacity, ability or qualification for the purpose or end in view."

For my part I don't find the two words as not having the same meaning "at all".

But how would you apply the difference you see to Scott's proposition, in his post #9 (and that I rephrased in my post #10) wherein I consider he pretty obviously distorted the meaning of "force-feed? You said nothing about that.

Regards,

Jack
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Post Number:#15  PostJune 7th, 2010, 2:22 pm

Jackowens,

I understand the difference between force-feeding a being and giving some food to a being who seems to want and seems to willingly accept some food, just as I understand the difference between forcing a being to have sex and sex between two seemingly willing beings who both seem to want the sex.

However, according to those like me, who consider certain beings to be incompetent to consent that means all interactions by a competent adult with that incompetent being are considered effectively non-consensual regardless of how apparently willing or desiring the incompetent being seems. If the status of incompetence is written into the statutes of the law, then we can refer to any such interaction as statutorily non-consensual.

In the example of sex, this means any instance of sex between a competent adult and an incompetent being is non-consensual sex a.k.a. rape. If the alleged incompetence is written into the statutes of the law, then we can refer to any sex between the competent adult and incompetent being as statutory rape.

In the example of giving food, this means any instance of a competent adult giving food to an incompetence being is non-consensual feeding a.k.a. force-feeding. If the alleged incompetence is written into the statutes of the law, then we can refer to any feeding of an incompetent being by a competent adult as statutory force-feeding.

You can cite the definition of force-feeding and say, "that's not what occurs when a hungry [incompetent being] is fed." That is like citing the definition of rape as non-consensual sex and saying, "that's not what necessarily occurs when a horny [incompetent being] is given sex she doesn't resist and seems to want." Insofar as the being is indeed incompetent, then it (rape/force-feeding) is what occurs because any apparent consent or willingness on behalf of the incompetent being is invalid and any apparent desire is irrelevant to whether the act is consensual.

If one does not consider a certain person/animal to be incompetent to consent, then one would not look at sex between that certain person/animal and a normal adult to inherently be rape. If the statutes don't consider a certain person/animal to be incompetent to consent, then it wouldn't necessarily be statutorily rape for a competent adult to have sex with that person/animal. For instance, the statutes in one country may set the age of consent at 14. If a normal competent adult has sex with a willing, horny 15-year-old who says, "yes, have sex with me," then it wouldn't be statutorily rape in that country. It generally wouldn't be rape in the eyes of anyone who agrees that 15-year-olds are generally competent to consent. However, in a country where the age of consent is 18, then having sex with a willing, horny 15-year-old who says, "yes, please have sex with me," would be considered statutory rape. It would generally be considers rape by anyone who considers all 15-year-olds to be generally incompetent to consent.

The same that I have said about sex so far in this post can be said about feeding or the giving of food.

The common difference between sex and the giving of food is fairly obvious, I think. While most people and legal systems see no excuse for rape and want rape to always be illegal, force-feeding is sometimes acceptable--depending most of all I think on whether what is being fed is genuinely believed to be in the best interests of an incompetent being. Indeed, force-feeding is generally allowed based on whether or not the one being fed is competent or not. For example, while it would usually be illegal for a parent to force-feed their competent 25-year-old child because the 25-year-old can offer valid consent (and by extension valid refusal), the parent can legally force-feed their 5-year-old child, pet or other incompetent being something that the parent genuinely believes is in the best interest of the incompetent being.

***

Scott wrote:Anything done by a competent human adult with a being that is incompetent to consent (including children, dogs, and human adults that have been declared incompetent such as the severely disabled retarded and the severely mentally ill) cannot be validly consensual. If a competent adult has sex with a being that is competent to consent, that is rape no matter how seemingly willing the incompetent being was. If a competent adult puts some food in front of an incompetent being to let the incompetent being eat it, then that is tantamount to force-feeding no matter how seemingly willing the incompetent being was.
Jackowens wrote:According to my Webster's New Collegiate Dictionary, "force-feed" is "to feed (as an animal) by forcible administration of food."

That's not what occurs when a hungry dog is fed.

Can we eliminate your proposition as an error (empirical, rather than one of faulty reasoning)?

No, I don't believe so, for the reasons explained above.

Thanks,
Scott
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Philosophy Book of the Month Updates

The January book of the month is The Righteous Mind by Jonathan Haidt. Discuss it here or buy it here.

The February book of the month is Moral Tribes by Joshua Greene. Pick it up, read it and discuss it with us as a group!