Wednesday, June 21, 2017

"Consent" is, generally speaking, an unhelpful predicate

There's a ... noisy, I think, is the word I want... collection of... er... "social"... activities...

And, there I've gone off the rails before I even start. Wooster, out of my head!

Dear Libertarian,


Sometimes it's needed, sometimes it isn't, sometimes it's impossible, and sometimes it's wrong and, sometimes, irrelevant. Sometimes it Changes the World For Good.

Consent is needed, for example, when a physician advises a patient that surgery may be required for the aleviation of some suffering (or prevention of some untimely catastrophe). In contrast, consent is impossible when a paramedic is confronted with a person in the state called "unconscious victim" — and it may well be wrong to wait for consent to be available, before getting them to a surgeon. (Incidentally, Erich "Houdini" Weiss died as he did because he withheld consent until he was an "unconscious victim".)

Apparently, consent is not needed either when someone wishes to build a Bypass through your House of a Thursday Morning. (You've got to build Bypasses!)

Consent of a particular sort, freely given between a peculiarly-free man and a peculiarly-free woman, Makes a Thing which will persist as long as they two shall live. And hurrah! for that; but we do not dwell on that joy, here.

But sometimes consent is wrong. Sometimes (it is a fallen world) one proposes to another a thing which should not be done. Sometimes the proposal is an outrage against Life; sometimes against Matrimony; sometimes against Just Authority; sometimes against Reason; in any of these cases, consent is wrong.

And yet! There is ever so much noise these days seeking to excuse this-that-or-t'other under the nylon veil of "consent".

So, let me point out one Helpful Case, where consent may be given to some proposition in such wise that the person giving consent becomes thereby the victim of a crime in civil law: these are broadly described as frauds. There are many kinds of fraud and "confidence" tricks, but the common feature of them all is that real consent is given to Some Thing, and thereby a person, of their own consenting, loses some property1. Now, what further circumstance compacts this consensual acquisition into a crime... you will have to review in the Statutes and Ammendments and Judgments et.c.; nonetheless, that part of the crime which, in the law of the Land whence I write, is called "actus reus" is indeed actus when that consent is first sought. And yet one more difficulty, is that consent can be extracted. Consent can be cajoled, tempted, teased, berated and blackmailed into presenting itself. Frauds do sometimes, in that narrow sense of acheiving their object, "succeed".

Still, so long as Law and even (I have some hope!) public sentiment does recognize that this one class of consent does not absolve a crime, perhaps we may hope in time to retreat from the cliff of All-Consenting-to-Consent? I want to hope.

1) Generally, the sense of fraud implies that something is done to which the consenting victim does not consent, but that other thing is, I should argue, distinct, and does not mean that the victim "didn't really consent at all". One who buys snake-oil does not consent to poisoning but does consent to pay.