Posts Tagged ‘consensual’

(Followup to Domestic violence and consent)

In this post, I intend to discuss and clarify some issues related to violence and consent. For the most part, I will take for granted the libertarian philosophy of non-interference in any consensual act and explore some of the ramifications of this position with regard to acts of domestic violence. Of course, a lot of people do not attach a great deal of value to the idea that governments should not interfere in the consensual private affairs of adults. I am under no impression that my arguments will change their minds and so this post is not addressed at them. My goals are much more modest; if you are favourable to legalized gambling, prostitution, sexual freedom and so forth, in short if you are something of a social libertarian, then I hope to convince you that current domestic violence laws are contrary to your principles. I will also use my discussion on domestic violence as a launch-pad to say a few things about violence and consent in general.

Why focus on domestic violence first? Well, apart from the fact that this issue is topical, there are several factors that make domestic violence different from other types of violence. Violence is generally thought of as bad and private relationships as sacred. And as far as libertarianism goes, both of these are particularly important concepts: the non aggression principle appears to simultaneously forbid violence and protect private affairs from external interference. So a discussion of domestic violence laws, which govern the realm where privacy and violence intersect, is definitely a worthwhile endeavour.

Secondly, societal as well as legal attitudes towards domestic violence cases has undergone a sea change over the last hundred years. In the early part of the twentieth century, police often refused to register domestic violence complaints. Domestic violence was viewed as a mostly private matter and even vicious physical attacks rarely resulted in jail time. Victims, usually the wives, had a hard time convincing law enforcement to come to their aid — even when they did, the abuser was usually let off very soon.

Today on the other hand, the pendulum has swing to the other extreme. Many US states follow a mandatory arrest policy, where police can arrive at the scene of a fight on a simple call from a neighbour and once they do so, they are usually bound to arrest one of the parties. The ‘victim’s’ wishes are not respected. She might tell the police officer that it was mutual, or consensual, or a family matter; he would still be arrested if the policeman finds the slightest sign of violence. Making matters worse is the current system where such cases as treated as crimes against the state rather than the victim. Thus, once charges are filed, the victim cannot ‘drop them’ — she is treated merely as a witness, it is up to the state whether or not to respect her wishes regarding the fate of her alleged abuser.

Both approaches are wrong, because they ignore the crucial ingredient that defines a crime — lack of consent.

As I wrote in my earlier post:

Theft is a crime only because it is involves takings without permission. If I take my friend’s car keys and go for a spin without asking him and he later finds out about it and gets mad, he has every right to demand legal redress. However if he is perfectly ok with my disappearing act, it would be laughable to suggest that the law should override his wishes and punish me.

Rape is prosecuted not because it involves force or sex but because one of the parties has not consented to the act. Many birthday parties in India involve birthday bumps, where the special person is hoisted in the air and roundly smacked around. It is a violent act, but all good-natured and fun. However if you give bumps to a person despite his protests and he later goes and complains to the police, you will surely be charged with at least a misdemeanour assault.

For there to be a crime, there has to be a victim. The fundamental premise of libertarian jurisprudence is that there are no victimless crimes. And it is consent  alone that determines if there is a victim. Undoubtedly, in cases like murder where the victim can no longer testify, or cases involving abuse of children or the mentally disabled, the law is perfectly justified in presuming their victim-hood. However, when two adults are involved, their is no need for the law to make such value judgements. 

What people consent to is their business. When society imposes its fiat on such a matter, it infantilizes the parties involved.

Is violence necessarily bad? Simple surgery involves violence and bloodshed. A typical response to this example might be that surgery is done at the request of the victim and it serves a good purpose. Surely violence with the intent to hurt is an entirely different matter? But what then of boxing, professional wrestling and UFC? They involve people trying their best to hurt each other. Ok, but such sports are regulated affairs. But then what about violent sex or BDSM? Should the government outlaw them?

The correct libertarian response is that violence is wrong only if it is non-consensual. And if you agree with that response and support current domestic violence laws, I think there is a significant tension in your worldview.

First of all let’s consider the case where a couple has an explicit agreement that it is ok for their fights to get physical. That does not mean they welcome or like the violence, any more than they like non-violent fights such as verbal arguments or emotional attacks. It does not mean that the person(s) getting hit does not try to stop the attacker or does not hit back. It simply means that they think that an argument leading to a slap or a shove could occur in extreme circumstances and if so, they vow not to get the authorities involved. In short they think of it as a private matter just as name-calling or emotional blackmail is generally accepted to be. To make matters more explicit and sensible, they may even agree upon a last resort ‘safe-word’, which if uttered, would compel the attacker to stop hitting, failing which consent would automatically be withdrawn by the victim and the police justifiably called upon.

I presume that most social libertarians would be okay with the above setup. Let us, however examine the above scenario in more depth.

It is worth noting that consent in the above case is not to the particular slap or shove but to a general lifestyle where it is ok to do those things. Now, suppose I am a police officer and I catch a couple physically fighting. They claim consent in the above sense. I say it is clearly non-consensual because they are trying to hurt each other, defending themselves from the other and trying to stop the other from hitting. I might even say that I heard her tell him to stop (this is different from uttering the safe word, which would be an act of last resort).

All of my arguments would however be flawed as all of those things are part of their agreement! A simple comparison with the boxing/wrestling/BDSM example might be enlightening.

This example already shows how difficult it would be to disprove a consent defence like the above; it would be as hard (and yes, as unwelcome) as trying to police a thought crime. It also shows that intent is irrelevant to such a case, as are physical evidences like bruises.

Now, most couples do not have such an explicit agreement. So let’s take a modified scenario, the one that essentially seems to have happened between Rihanna and Chris Brown.

Chris Brown hit Rihanna (it is unclear who provoked whom) and she was left with visible but not life-threatening injuries. The police came on the scene and the next day Brown turned himself over. However, Rihanna had a change of heart and forgave him. The couple reconciled and she refused to testify against him. She now wants the charges dropped and in fact, it seems that she might even testify in his defence if he is prosecuted. The district attorney and the police however, seem set to try and prosecute Brown.

Does Rihanna not wanting Brown charged make her a consenter? Indeed it does, not to the blows that Brown gave her, but to a lifestyle in which their private boundaries are extended, where hitting her is unwelcome perhaps but where she prefers it be dealt with privately by them and not by the law. In effect she is saying exactly what my hypothetical couple in the above example are saying: leave us alone. Is there a difference at all between the two cases?

Actually there is. Rihanna and Brown did not probably have an explicit agreement of that nature before the physical violence. In short this is a case of ex-post facto consent. But should that make it any less valid?

It is a general principle of ethics (and common sense) that our later views and positions, formed after more time, experience and evidence, ought to rightfully occupy a superior position vis-a-vis our earlier or more premature ones. Let me relate two examples. The first is the case where I take my friend’s car for a drive without his permission. Clearly I do so without his consent. You might say that if he knew, he would have consented. That may very well be true, but let us assume he does not know who took the car, comes home and sees the keys gone and gets very angry. However I come back soon and because I am his friend, he forgives me and we have a laugh about the whole episode. 

Or take another example, where I arrange for my girlfriend to be kidnapped (slightly violent, and obviously without consent) by some hired men. She is terrified for a while but then the kidnappers take her to the island of her dreams where I am waiting to propose to her with a diamond ring (forgive the cliches for a moment). She is overjoyed and not just forgives my daring scheme but in fact agrees to marry me instantly.

Both these are cases of ex post facto consent to what originally might have seemed as a violation to them. Most people would agree it would be ridiculous for the police to override the ‘victim’s’ wishes in either case and prosecute me. Yes, in both cases, initially there was lack of full information. However, that is hardly relevant, the crucial point is that on further deliberation, the victim changed his or her mind. And besides one could always argue that Chris Brown’s behavior after the act gave Rihanna new ‘information’ about his true nature. Thus information is not really the point here and the point is simple; in all three cases (car, island, Rihanna) one of the parties insisted in the end that she does not consider herself a victim. And if in any of these cases, the state decides to go ahead and prosecute the alleged ‘victimizer’, it means they are prosecuting a victimless crime.

There is another, pragmatic reason why if one agrees that (pre–fact) consent is a valid defence, then one should consider ex post facto consent equally valid. It is virtually impossible for the authorities to prove that consent was ex post facto if the victim claims it was not. So if Rihanna decides to tell the court that she and Brown had an agreement of the sort I described, there is no way she can be disproved beyond doubt. Right now, the police are using her bruised photograph as evidence to prosecute Brown, but that would be useless under this defence. Even any statement she might have given to the police would not really be useful, because she could always say that she said those in the heat of the moment but in reality she did not think his behavior crosses their privately defined boundary. 

The simplest and most just approach in all cases of violence by one citizen on another then is this: treat them as crimes against the person (provided the person is alive and able to articulate his or her wishes) rather than the state and drop those charges if the person does not want the accused punished. Anything else, as a commenter wrote in my previous post, is a mockery of justice. (Or at any rate, this is what you ought to believe if you subscribe to libertarian principles on social issues.)

The above arguments are mostly philosophical, grounded on individual liberty. However, there are some people who agree morally that consent, both before the act and after, ought to be an absolute defence against acts of violence but support the status quo on pragmatic grounds. They think that if the victim is allowed to drop the case, many will be intimidated to do so. But even if that were true, surely the obvious solution is to protect the victim from intimidation or reprisal! Laws that provide strong deterrence and efficient justice in the case of a violation, a system where it is easy to file cases, obtain no-contact orders and get police protection, where the victims know that the police is fighting for them, not against their wishes — will provide far more security from intimidation than one where the victim’s wishes are not respected.

A case in point is the mandatory reporting law that exists in a few states: any domestic violence injury must be reported to the police by the physician. The funny part is that women who have never been abused support the law by a 70-30 margin while among women who have been abused in the past and have thus reaped the benefit of the law, the aupport drops to 55-45. This fact and others are laid out in this paper by three medical researchers who explore the effects of such mandatory laws. Their recommendation? At the least, “the efficacy of mandatory reporting of domestic violence to police should be further assessed, and policymakers should consider options that include consent of patients before wider implementation”, they think.

The same is true for other laws of a similar nature: mandatory arrests, inability of the victim to unilaterally cancel a no-contact order, etc. Thus, even on pragmatic grounds, there is little rationale behind laws like these which do not value the consent of the alleged victim. At any rate, even if a law like that did some good, there are always alternate pragmatic solutions that preserve liberty and serve the same purpose, that is protect victims from intimidation or coercion.

And if anyone thinks I am raising too much hue and cry defending wife-beaters and other scum, all I can say is, if you  believe in a principle, you are bound to defend it in all cases, including the unpleasant ones. Freedom of speech entails defending the right to disseminate hate speech. Freedom of association entails defending the rights of bigots to not employ or serve those who they irrationally hate. And if privacy and consent are worthy principles, one must also defend the right to indulge in private consensual behavior we would not personally approve of.

Besides, if one is willing to make exceptions to these principles in such cases or if one takes the view that certain kinds of violence are (absolutely) bad or that the state can rightfully define victimhood without regard to the wishes of the ‘victim’, then governments might some day start categorizing even non-violent consensual behavior, such as prostitution, as violence against the woman and using that as justification to outlaw it. Oh wait, they already did that!

But then, the law has never really treated the consent principle with anywhere near the respect libertarians think it deserves. In most jurisdiction, one cannot consent to harm to self beyond a certain point unless the act is strictly regulated, such as sports. This has led to paradoxical situations where severely hurtful consensual behavior is sometimes allowed (think ultimate fighting, or some extreme sports) while relatively less dangerous behavior is outlawed. An excellent reference for such examples is the paper Sex is not a Sport: Consent and Violence in Criminal Law. The author, who chooses to focus particularly on examples related to sports and sadomasochism does not exactly subscribe to the libertarian principle of absolute non-interference in private matters, indeed she takes the opposing view that governments have a legitimate interest in controlling violence. Nevertheless I think it is a worthy read.

I think this passage is particularly noteworthy:

Historically, under the common law, violence, even if consensual, was illegal. Thus, consent was no defense when one engaged in an activity that could cause physical injury or death, even if the “victim” did not complain. Assaultive behavior is criminal behavior, as the wrongdoer infringes upon and threatens the state’s monopoly on the legitimate use of force. The victim is merely a witness for the prosecution. Yet, courts have carved out exceptions to this general rule on a case-by-case basis. In this section, I review the Anglo-American history of consensual violence in the sporting context, drawing primarily from English, Canadian and American jurisprudence. Although few American appellate courts have examined the doctrine of consensual violence, both the Canadian Supreme Court and the British House of Lords have taken up the issue in the last decade. Thus, American legal scholars can benefit from the experiences of our common law cousins in this area.

When discussing the issue of consensual violence, it is quite common for commentators to assume that courts use the “harm test” to decide the relevancy of consent—the more likely injury is to occur, the less likely a court will allow the activity. In 1895, for example, in the first American article to examine the issue of violence and consent within the criminal law, the Harvard Law Review summarized the doctrine of violent consent. “A game which involves physical struggle may [be] a commendable and manly sport, or it may be an illegal contest in which the participants are or may become criminals; this depends on whether it is a game which endangers life.” The premise was that the level of injury inherent to the activity is what is crucial to the law.

But courts have allowed all sorts of activities, including prize fighting and hockey, which carry a high probability of injury, and disallowed barroom brawling, which is arguably no more dangerous. In practice, the likelihood of harm is more or less legally irrelevant. What is legally relevant is the social utility of the activity itself. The law clearly distinguished between those contexts in which men competed to enhance their manliness and those contexts in which their aggression went unchecked, or inspired runaway passion by the parties or observers. Instrumental violence—that which serves a “manly” purpose—is legal, but expressive, emotional violence, which carries with it too high a risk of social unrest, is not. Thus, lawmakers have whittled down the playing field, so to speak, by legalizing only those sporting activities that promote what I call civilized masculinity.

She is right. The reason why law treats consent in such an inconsistent and muddled manner is because the majority, through the state, has always tried to outlaw behaviors they disapprove of. So the doctrine that one cannot consent to violence beyond a point (unless it is with regard to a fashionable activity) has less to do with principles and more with a desire to simultaneously preserve the state monopoly on violence, let the powerful majority have fun but keep in check deviants.

But then, I suspect I have fundamental differences with paternalists and public-interest-apologists that logical arguments cannot resolve: how can you possibly disprove someone whose axioms differ from yours? I hope to convince only those who already have a healthy scepticism of government power and a strong respect for individual liberty. And if any of them still believe that the law should recognize victimhood irrespective of consent or the victim’s wishes, I urge them to reconsider.


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It’s the classic pitfall. The law tries to prevent a reprehensible act of fraud (in this case, obtaining sex from one’s brother near-sleeping girlfriend by impersonating the brother). However it does so by passing a law whose language is much broader than it should. The result is yet another encroachment by the law into an area it has no business being in.

Read Eugene Volokh’s excellent discussion on a potentially chilling statute that is being pushed for passage in Massachusetts. Also the comments under Volokh’s post are interesting; below are some of my favourites.

Make-up is now to be illegal in Massachusetts, as are Wonderbras and those ass-padding panties.

Did they just outlaw the greater bulk of bar-room pick up lines?

OK, let’s take a hypothetical 25 yr old Tom and 16 year old Suzy. Suzy tells Tom she is 19, and they have sex. In both Texas and Mass, this is rape. In Texas, she’s the victim, in Mass, he is. Makes sense to me!

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