My last posting has provoked a storm of comment, which I hope relfects the controversy of the issue and not any inflammatory tone on my part. I tend to let the commentators discuss the issue, because frankly they do a very good job!
However, adam raises a very interesting point:
Isn’t this kind of argument fallacious, as you’re assuming the phrase “assumed consent” has the same moral status in all circumstances?
Compare with other phrases, eg “killed”. “I killed him cause he got in my way” – moral status = bad. But, “I killed the rabid dog because otherwise it would have eaten those poor babies” – moral status = good.
Now this could invalidate my argument if I had used euthanasia as an example of ‘presumed consent’, because then the motive for killing becomes central.
However, I was pointing out that someone having sexual intercourse with a minor or a person with diminished mental faculties would want to defend himself of herself of the charge of ‘rape’ by claiming ‘presumed consent’.
The point is that sexual intercourse is not a criminal offence, despite the attempts of puritans of both Left and Right to make it so. Therefore it is the question of consent that is central, and whether a person’s inability to give consent allows other people to take decisions for them. Because minors and persons with diminished mental faculties are generally unable to give their consent, we have a presumption that consent is not given in such cases, hence the notion of ‘statutory rape’.
The main moral issue about statutory rape is that an age of consent will not protect some immature adults whilst unreasonably assuming a lack of moral faculties for fast-devlopers.
To blur the distinction between a crime based on the lack of consent (rape) and an abhorrence of sex to create the concept of (sex crime) is something straight out of Orwell’s nineteen eighty four.
I find it fascinating that a commentator should jump from sex to murder. One is a crime. The other is not.
Violence and sex are so tangled in people’s minds that any discussion of one will inevitably mention the other…
Murder is simply a more powerful example than sex is. Of course, your commentor didn’t talk just about murder; he contrasted it with needful killing (of a non-human, in fact). Seems to me he was making the point that deadly force can be ciminal or non-criminal (moral or non-moral, too, since as everyone here knows, law and right are not identical).
At any rate, sex can be a crime (if it’s rape, not consensual sex), just as killing can be a crime (if it’s murder, not self-defense).
The most important part, however, is that “presumed consent” having to do with your remains after you are dead and thus cannot actually own them anymore is slightly different from “presumed consent” with someone who is in a position to actually make some sort of decision (or who, by incapacity, needs to be protected from the predations of others).
Presumed consent for organ donation seems, to my estimation, wrong primarily (if not only) for expanding government’s power over the bodies of people under its power, not because the argument could in any way be applied to actual crimes. Remember, the important distinction here is that the organs come from someone who is already dead and thus not (not just legally, but morally and factually) a person at all, in any way, but a corpse.
(We, or at least, I and most people, abhor Nazi experimentation because it was almost unfathomably cruel, and killed people (not only that, but innocent people) – given that organ donation involves people who are already dead, the comparison doesn’t hold very well.)
“after you are dead and thus cannot actually own them anymore” is begging the question. You don’t anymore own your house or your car either – your heirs do. Nationalizing the organs from a dead body is as wrong as is “inheritance tax”, and for the same reasons.
I think the problem is that you are making some presumptions in your discussion of consent and crime that the moralitarians don’t. You are working on the basis that genuine consent nullifies “crime” because crime is injury to an individual.
That’s a classic libertarian view, but it isn’t the motive of most sex laws even in Western society. Criminal sanctions on sexual behaviour (and quite often imputed sexual motive) are more to do with preserving moral hygiene and regulating relationships than preserving individuals from harm.
In Islamic jurisdictions this is laudably explicit. Sex is legal or illegal and there’s no question of consent. The distinctions arise over who is to be punished for illegal sex. The rhetoric of victimhood obscures a similar thrust in Anglo-American law, notably but not exclusively surrounding ideas of protecting the innocence and purity of childhood.
Thus an under age (which symbolic age may vary) prostitute who knows exactly what s/he is doing and solicits without advertising his/her actual age is a threat to the moral order, but must be defined as a victim and the customer as a “paedophile” (i.e. destructive pervert) in order to preserve the paradigm of the child as non-sexual. All this is regardless of the actual states of mind and body of the people involved.
In the case of an older prostitute, the model of victimhood is tweaked by focussing on the fact that some people are forced into the trade by violence, poverty or addiction. This makes it possible to blame voluntary participants for the suffering of others, and to punish them and their dependents and associates “for their own good” or to “save” their less fortunate colleagues. But whats really under attack is the commercial exchange of money for sex, which permits sex to be available outside certain social controls and conventions.
Consider too the new offence of voyeurism under the Sexual Offences Act 2003:
The language is superficially that of consent, but notice the proviso. The offence is only an offence if the aim of such observation is sexual gratification. If you are observed or recorded in a private act for some other purpose (such as tabloid journalism to satisfy the curiosity of the public, Mr Beckham please note; or prosecuting you for seeking sexual gratification in an unapproved way, perhaps) then your discomfort at this doesn’t matter. If you don’t care whether you are observed or not, or why, it doesn’t matter.
It isn’t about the experience of the victim. The “victim” is only the occasion for punishing the moral iniquity of the perpetrator in stepping outside a collectively delimited social boundary. That’s why questions of consent are treated so arbitrarily and so readily swept aside in any question of public policy, whether about sex, organ donation or tobacco. You and I may think it is a fundamentally important right of personality that you own and control your own body, but society in general has never really accepted that view.
The problem with “presumed consent” as a basis for nullifying a crime of sex with a minor, (or person of diminished mental facualty) is, if the victim has no way of you with providing informed consent, then how do you know whether you have it or not?
And how/who judges whether another person has the ability to consent or not?
Statutory age limits may seem arbitrary to you, for a good reason. They are. But so are traffic lights. The choice is to either convene some board who decides who is, and who is not capable of giving informed consent, or marking an arbitrary age limit. The arbitariness of the law in this case is a feature, not a bug, the best way of figuring out who is and is not able to give consent. At least better than the alternative.
I don’t know what the position is in the U.S. but “statutory rape” was not a crime known to English law. Here the law used to be that if you had consensual sex with a minor, the offence was having sex with a minor, not rape. This had the virtue of preserving a real distinction between very different offences (of course you could have a rape of a minor, but “actual” consent would be a defence).
However, it may all have changed with the new (and very unliberal) Sexual Offences Act. I don’t know.
UK law is now the same as U.S. law – viz sex with a minor under 13 is now called “rape”. Oddly though, if the minor is under 16, it is not called “rape”, although it is still an offence.
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Julian: A law allowing the next-of-kin to sell the organs would suit me just fine, indeed. Currently, however, the only “rights” they have are to let the organs rot or give them away.
That is, of course, the other difference (in the current state of affairs) between a deceased person’s organs and his material estate in general; the former must be decided on instantly, wheras a house or car can sit in probate for years with little or no loss of value.
I still don’t want to argue for compulsory donation, but arguments against it should take into account those material differences. (All of which would be pretty well settled by making sale of the organs legal… and, of course, a full autopsy, paid for from the proceeds, to help ensure a lack of “convenient accidents” leading to the lucrative sale of a full set of healthy organs at great profit to the next-of-kin.)
Are you still there?