scepticalblahblah wrote:Consent can only be informed if the person giving consent holds equal power to the one who they give consent to.
I’ll take a parallel. Let’s say I’m being asked to consent to surgery. Can I only give informed consent if I hold equal power to the consultant surgeon who will be performing the surgery? How would you conceive of equal power in such a situation? Knowledge of what the surgery entails and the potential consequences? He would know an awful lot more than me about the surgery and its potential consequences. Perhaps we could simply claim that I do hold equal power to the surgeon by virtue of the fact that I’m an adult and so is he, and that’s the only level on which we need to be equal. But how would our equal adulthood render my consent
informed? Surely for my consent to be informed I would simply have to be provided with adequate information and understand it? Perhaps, then, you are arguing that a child doesn’t have the capacity to adequately understand the information. Actually, science done in this area reveals this to be untrue. The extensive research carried out by Priscilla Alderson in the 1990s shows quite clearly that children – even very young children – are capable of what we would describe as informed consent in the medical arena and other ‘local’ arenas if given adequate information. Following on from this, Matthew Waites (2005) provides a convincing argument for how her work translates directly into matters of sexuality and sexual choice.
scepticalblahblah wrote:The power imbalance therefore is included within the informed consent criteria.
If I understand you correctly, equal power is therefore a precondition for informed consent, but overall it’s still the lack of consent that defines whether or not a situation is abusive?
Let me recap what we’ve said, for my own understanding. Correct me if I’m wrong, of course.
1) You said that minors were incapable of informed consent, and you said that lack of informed consent made a situation abusive.
2) I pointed out that by this definition any sexual activity engaged in by the minor would be abusive, as by this definition it was irrelevant how old the minor’s partner was. If they’re incapable of informed consent, and that’s what makes it abusive, then they’re incapable of engaging in any sexual activity that would not be abusive.
3) You countered by introducing a new element, imbalance of power, stating that equal power made it not abusive.
4) I described this as an explicit rejection of the notion of consent being the be-all-and-end-all when it comes to factors determining abuse, because now (seemingly, in my understanding) we have two two incompatible views: i) minors are incapable of consent, and lack of consent makes it abuse; and ii) equal power makes it not abusive.
5) Your response to this is that equal power is a precondition for informed consent.
If this is a fair summary, then I’d contend that you haven’t shown how your latest point (5) is complementary to your original position (1), because if minors are incapable of informed consent, then it doesn’t matter whether or not one or more preconditions for informed consent are met, as they (i.e. minors) are, by your original argument (point 1), incapable of giving it.
scepticalblahblah wrote: Secondly, I would raise the possibility of the power imbalance going the other way: for example, how would you characterize the power imbalance if it were a 15-year-old boy with a 25-year-old woman who has a mental age of 13 or 14?
^^ I was actually waiting for you to raise this point. I didn't include this in my previous statement because this is a difficult area for the law to explore.
It is, because it's a complex issue, which is why we're talking about capacity to consent in a more sophisticated sense than merely a legal prescription.
scepticalblahblah wrote:In the scenario that you propose - that of a 15 year old male child with a 25 year old female child..
tricky subject.. it's likely that the boy would view her as an adult and therefore feel her to be of greater status than he.. he would likely respect her and look at her as a person to trust more than a person of his own age would perhaps be.
The boy would have been abused.
To play devil’s advocate (actually, I’ve been playing that role all along): would he? But he has a greater mental age than her. Surely the balance of power is skewed in his favour? Perhaps he has abused her. It might be more (or less) clear-cut if we say that this 25-year-old has a mental age of 9 or 10. He comes on to her. She accepts his advances. Has he still been abused?
scepticalblahblah wrote:It's a subject that quite honestly would be better left to your own thoughts because we could be here all day with this otherwise.
Well, true. I’m not being antagonistic, by the way. I like a debate. I find it supportive. I enjoy looking for worthy debating partners, and sometimes I argue a position that is not entirely in line with my own views just to see what kind of arguments an interlocutor will wheel out. Yes, we could be here all day, though the nature of a forum is such that you can dip into a discussion as you see fit. I do state my opinions clearly, but I am respectful and don’t get abusive when others do get that way towards me.
Personally I think it’s in this area that we’re touching on now that things get interesting. I know I’ve challenged you above to render your argument coherent on what renders activity abusive, but that’s because I don’t think one can have an interesting, productive discussion on a matter unless one’s basic premises are solid. I agree with the idea of an age of consent; I think it’s important to balance the rights of young people (to express themselves sexually, for example, or to form intimate relationships) with additional safeguards for those vulnerable by virtue of their age (albeit in this case chronological age, which is perhaps unsatisfying but necessary on account of simplicity). But I think it’s important to recognise that an age of consent is a provision that allows for such protectionist measures. It shouldn’t be taken to mean that all those above that age are capable of consenting and all those below are not. It is an age at which we, as a society, or as a jurisdiction, say that
all children who are not vulnerable for some other reason (e.g. mental age, mental health, under the influence of drugs or alcohol, etc.) are capable of giving informed consent. Occasionally we’ll come across some people who assume that age of consent means in psychological/physical terms what the law says only in legal terms.
scepticalblahblah wrote:This is a tough one for the courts as well and there have been a fair few of these situations occur.
Quite. It should prompt us to be clear about what we mean by imbalance of power.