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Saturday, May 05, 2007

"We are more ready to try the untried when what we do is inconsequential. Hence the fact that many inventions had their birth as toys." - Eric Hoffer


On Young Republic, on the Age of Consent:

A: It strikes me as entirely possible to believe, wholeheartedly, that homosexual intimacy is immoral or sinful, without thinking that it ought to be criminalised.

B: I don't know why you people talk about non-state intervention in areas like these, then turn around and sanction state intervention in speech or a minor's sexual activities. There should be minimal state intervention in areas like these, if at all.

A: I'd hazard a guess here that to the extent that one might support hate speech legislation or a minimum age of consent for sexual activity, this tends to be related to the notion that someone is being victimised by the acts in question. (And the discussions that have taken place on this mailing list have been attempting to get at these very points.) Whereas, however wrongful one considers homosexuality to be, it's difficult to plausibly construct an account of coercion out of consensual gay sex between adults. It's not a knock-down distinction, but it's not so incredibly difficult to understand that someone might feel that way, is it?

B: The state intervenes in the case of consensual homosexuality, because (according to the state) its participants are morally ignorant and mistaken and because of the need to preserve family morality and because it's unnatural. The state intervenes in the case of consenting minors, in order to uphold morality, because it's unnatural and apparently they are ignorant and don't know any better. It seems that there is little distinction in some areas.

If one can rule a relationship "coercive" where clear consent was given, then one can outlaw homosexual relationships on the basis that many of them (or so perceived) often bear dominating/submissive dynamics.

It appears to me these are cases of "morality" -- where the state should try its best not to intervene. Yes, there are grey areas sometimes but that is what trial is for

A: Can children be said to give "clear consent" to sex as much as adults can? (You can think the answer is yes but how can you think the question is meaningless, in the face of the undeniable fact that at some ages children can't even walk or speak and there is obviously a continuum of maturity?) I am not especially interested in arguing about this hodge-podge of different policies, but I just want to make the point that arguments about consistency at the level of abstraction that you favour aren't especially persuasive.

B: The ability to consent should not be judged by age, but through other means. Personally I am of the view that if you can make a decently sound argument for your consent, then you are capable of informed consent.

C: A legal age of consent is, I would say, a necessity. This is not hypocrisy on the part of those who say that consensual acts of homosexuality should be decriminalised. In one case, consent is given by two adults whose faculties can be assumed to be developed and who know the consequence, etc, of what they are doing. In the other, the minor - who very rarely is intellectually, emotionally or financially independent - could be left open to a potentially exploitative situation. I don't see what's so hard to understand about this. Nor do I see why this might be considered 'illiberal'.

B: Age and being informed does not correlate; if the law is to protect the uninformed, why should the state not intervene in the case of a naive 20 year old girl who got the short end of the stick (in the aftermath of cohabitation, a relationship or whatever) but intervene in the case of a 15 year old girl who intentionally deceived someone else?

C: Please show me convincing data which shows that 15 year olds are consistently cheating/deceiving/swindling their sexual partners. I will change my stance if you do. Please do not bring up the movie which you did not watch as an example. Please also show me convincing arguments that such 15 year olds are NOT mentally disturbed, and should be punished NOT rehabilitated. I don't know how to tell you this, but most teenagers are not Mata Hari.

You have consistently said that mental faculty should be used as a gauge of whether a person is able to give consent. But you neglect that mental faculty alone cannot and should not be enough. E.g. would you say that a 15 year old who is clearly intelligent and knows the consequence of his/her actions is NOT being exploited when accepting money to have sex with an older, monied person? As I have tried to point out a billion times, children and young adults tend not to be intellectually, emotionally or financially independent. In spite of their overwhelming intelligence, they may still be open to abuse and exploitation.

Me: Actually I would.

Not that mental faculty alone is enough. A 15 year old who is being pimped out by her parents on pain of being thrown out of her home is clearly being exploited.

A 15 year old who gets a friend to pimp her and gets to keep the bulk of the proceeds is likely not being exploited.

I am wary about applying the concept of exploitation to too many things where coercion is not involved. After all, it is said that Filipino maids who are clearly intelligent and know the consequence of their actions are being exploited when accepting money to come to Singapore to work for households, since this is less than a native Singaporean maid would get.

C: We were speaking of youths in a sexual context. I fail to see the relevance with respect to maids. Perhaps you could clarify.

Me: You say sexual relations involving older people paying 15 year olds who are intelligent and know the consequences of their actions are still exploitative; "mental faculty alone cannot and should not be enough". Implied is that there is no coercion involved either.

The concept of exploitation is problematic, since it can and is applied to all manner of human relations. The employment of domestic maids working in Singapore is alleged by Marxists (classical, neo or post) to be a form of exploitation, since they are paid less than what is assumed to be a fair wage (I don't know how the concept of surplus value comes into play here, since no goods are produced and sold on the open market here). I presume most non-Marxists would sniff at such allegations.

Exploitation in the context of paid sex with 15 year olds presumably comes about because of their age, the sexual nature of the transaction or a combination of the two.

I think we have already established that age in this case is merely a proxy for informed consent. In Singapore, girls under 14 are deemed unable to give informed consent to sexual intercourse which is why having sex with one brings a charge of statutory rape. Yet, if we assume that the person in question is intelligent and knows the consequences of his/her actions, we don't need the proxy for informed consent, since we already have fulfilled the criteria for informed consent.

For example, SAT scores explain 22% of first year college grades ( If we had no other information about candidates, their SAT scores would be helpful to predict their first year college grades. Yet, if we already knew their first year college grades, we wouldn't need to know their SAT scores. SAT scores here are analogous to the age of consent, and first year college grades to informed consent.

The other possibility is that the nature of a sexual transaction is such that a minor is inevitably exploited, even if he/she has given informed consent.

From what I know, without invoking vague theories of power, domination and constructed meaning (eg Sex is an inherently violent/coercive act), one cannot explain why sexual transactions are so different from normal transactions that informed consent is inadequate as a criterion for legality. And in any case, if you invoke the vague theories of power, domination and constructed meaning, all relationships would be exploitative, which wouldn't solve the problem of the sexual exception.

Or perhaps sex is still seen as something mystical, sacred etc, which paradoxically would lead us back into reactionary attitudes (eg adultery should be criminalised, homosexuality is a perversion of nature etc)
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