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Aswad -> RE: Ability to consent (6/1/2007 12:32:48 AM)
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ORIGINAL: LafayetteLady
The whole issue of "consent" within the realm of an alternate lifestyle such as this is a slippery slope.
It doesn't have to be. Slippery slopes happen when you try to go for something that cannot be pinned down to something fairly immutable, such as objective reality. Define things in a clear way, based on objective reality, and you have no slippery slope. But people don't deal well with that, and once one starts digging for the objective underpinnings of what one takes to be "real", one will find that most concepts we have are, at best, a vague majority version of consensual reality.
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From a legal standpoint, no one - regardles of their ability or inability to applied the standards of "informed consent" - is permitted to consent to allowing another person to physically harm them.
That depends on the jurisdiction.
In Norway, for instance, you can do that. Also, if the police decide no crime has happened, they won't press charges unless some third party files them, and they usually don't do so for consensual relations between adults, at least not in urban areas.
A little while ago, there was a Dom who amputated one of his sub's fingers. Some third party pressed charges, and things went to court (as they will always do when someone has filed charges, regardless of their validity). It was determined, IIRC, that the standards of consent were inadequate prior to the action, but that there was obviously consent present, and the net result was that he got a slight slap on the wrist (a small fine or a few hours of community service, something along those lines). No jail time, no counselling for either party; just go back home, work out the details of your arrangement, and keep them handy for the next time someone finds out and disapproves enough to file criminal charges. This in Norway, as I pointed out.
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Yet, the World Boxing Federation has no shortage of people paying good money to watch two people legally beat the crap out of each other. The only difference would appear to be that the boxers are not necessarily getting any sexual gratification from the acts.
Indeed. Boxing will lead to long-term injury, if not stopped very early, and involves a fair amount of short-term injury.
However, allowing kids to participate in football is also harmful in many (most?) cases, due to the unnatural stresses on the various parts of the leg. Parents can, in that regard, consent to have their children injured. And when they grow up, they can consensually continue to sustain injuries. Even less consistent, in some ways.
When it gets down to it, it's just a matter of society trying to reconcile opposing opinions in a system that allows society to impose arbitrary demands on its constituent individuals. This is then resolved in a manner that causes the least friction, with friction defined as media attention, other forms of publicity, lobbying, interest groups, and so forth.
Considering that the organization that essentially controls what can be shown on TV at times when kids might be around are just a few thousand individuals, and have 90%+ of the cases on the FCC's desk, as well as getting their way most of the time, it shouldn't take too many BDSM'ers to start an organization that would be able to get something done, if people weren't so obsessive about not "pushing" their lifestyle onto others (i.e. expecting the same rights and privileges as other couples).
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The concept of what would validate or invalidate consent is therefore worthless because, in the US at least, consent becomes legally invalidated the second we question our acts. Should we choose to take action upon that is more of the issue than whether or not consent existed.
Whether the law recognizes it or not, consent is an issue, as is what invalidates it or not.
It's an ethical issue, a matter of standards. As such, law is entirely secondary.
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A "child progeny" CAN in fact, applied to a Court for emancipation providing them certain equal rights as adults under the law to have some say in their lives. Therefore, one might ask, if the child is indeed a progeny, and wishes to have more control over their lives, why then, were they not able to they are able to do this?
A child prodigy may very well have the capacity for informed consent, but will still be prohibited from giving it; or, more precisely, others are not allowed to accept it. There is no ethical or objective basis for that, it's just a social convention.
I've met teenagers who would be able to give informed consent, although I'll make it clear to the mods that I haven't accepted, and I've met middle-aged adults who clearly were not.
The reasonable approach would be to have a licence for that, and everything else that might be a matter of judgment. Think you can drive? Take this test. Think you can drink? Take this one. Have sex? Form #18. And so forth.
That, however, will not happen any time soon. It would deprive lots of people of rights they've become accustomed to, and endow others with rights people would rather deprive them of.
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A bigger question might be do we, as a society, have an right and obligation to protect those weaker, whether it be in body or mind?
Informed consent to BDSM is an individual matter, not a societal one. Society may make up its mind about whether people are allowed to be sadistic, dominant, lesbian, gay, bi, submissive, masochistic, or anything else. Each individual must make up hir mind about what kind of relationship they might engage in, and whether they consider it reasonable to engage in one with a given partner.
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Can a child of ten, regardless of their IQ, have enough life experience to choose to enter into an intimate relationship with someone? I don't believe they can.
I haven't heard of one that could fully appreciate the implications, but I'm not discounting the possibility. Even if it's one-in-a-trillion, that means there would be about half a dozen of them per millenium.
The more relevant question is perhaps damage, but that cannot be discussed openly without balancing on the edge of the ToS-sword. Rind et al, amongst others, have indicated that our ideas may be misfounded in this regard.
Personally, however, I can't imagine finding common grounds for anything more than friendship with a prodigy of that sort, and don't find the physique appealing, so it's a moot point for me.
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On the other hand, can someone with a greatly decreased mental capacity, what used to be called (unpolitically correct as it may be) "functionally retarded" have the ability to enter into a relationship or raise a child? The law has repeatedly said yes.
In many cases, the law has also said "no". In many cases of either verdict, the law has been wrong.
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I say over and over that those with an impaired mental state in this lifestyle, those still coping with issues of previous abuse are at high risk and not necessarily capable of making rational decisions regarding this lifestyle. Is it wise for someone who is perhaps on disability for psychological issues to be active in this lifestyle? In my opinon, probably not.
I'd say it depends on what the issues are.
Someone who's so agoraphobic that they can't leave the house could still have a satisfying D/s or M/s relationship with someone. Similarly, anxiety attacks can even be lessened in some cases, using the relationship as a support, or in the case of GAD, sometimes using concrete fears to displace irrational ones.
Nephandi is, as she has said, an Aspie. That's a developmental disorder which does not impair intelligence (hers is about 1 σ (sigma) over average), reasoning ability, judgment and so forth; or, at least not in her case, as verified by the people who treated her. It doesn't give me pause, although I do try to take care to deal with her need for structure (it's very uncomfortable for her if there is no structure to her day) for instance. Similarly, as she's also said, she has generalized anxiety and a light depression, both of which are of a nature that doesn't impair her judgment in this regard. Again, it gives me no pause, and again I try to help her with that.
If something doesn't affect a person's ability to understand the choices available to them and the consequences of making them, or otherwise impair their judgment, there's no reason to worry, IMO. Further, if it is localized to a specific topic, it may not be a problem. For instance, someone with a depression that saps their energy could make a competent choice, while someone with a depression that involves a loss of their sense of self-worth might not be able to make a competent choice. Similarly, if the problem is managed (e.g. with meds), it might not be a problem either; e.g. a bipolar isn't a problem, while a bipolar in a manic phase is. This all at the time of consent, of course.
Note that I'm talking about the legal and medical term informed consent, and the word "competent" is used in the definition related to that in this context; I'm not intending any offense to anyone who might be covered by the caveats of my opinions here.
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