Thursday, April 14, 2011

"I know a place that'll saw your legs off!"

Consent is a murky concept.

No, I'm not talking about the "She may have been nearly passed out but she was totally asking for it, and besides, I was drunk too".

I mean the question of exactly what the law will allow you to consent to in terms of an assault.

At one extreme, the law has long recognised that you can't consent to be murdered. The German cannibal who killed and ate his apparently consenting victim was charged with murder anyway, and the same thing would be true in nearly all first world countries.

And most people are quite happy with this. The average person's response to the plea "But he wanted to be killed!" is likely to be "Stiff shit. Off to prison for you, freak." And that's not unreasonable, certainly as a matter of policy. Murder is not a tort against the victim (for which the victim receives compensation), but a crime against the state (for which the offender receives punishment). And the State reserves the right to punish you, regardless of whether the other person agreed to it.

On the other hand, you can consent to be slapped. You can consent to a boxing match. You can consent to be whipped by a dominatrix.

But somewhere between the two extremes, things get less clear. Should you be able to consent to get your arm sawed off? What about just cut really badly?

This question came up in the context of a lawsuit against Jeff Williams of St Petersburg, Florida, who was paying homeless men to be beaten up on camera by scantily clad women.

Now, the question is not whether you should be revolted by this behavior. This guy is a repulsive excuse for a human being.

But to the law, that's not the point. Can you honestly draw a sharp distinction between this and say, mixed martial arts?

Let's look at the injuries suffered:
Shaw suffered broken ribs, a dislocated jaw, back injuries and a dislocated arm on two different visits to 73 16th St. S. Grayson, the suit says, sustained bruises and multiple lacerations.
Sounds bad, but take a look at the early UFC fights - they were just as bad or worse.

You can definitely point to differences. The guys may have mental problems. There weren't medical people on hand in case something went awry.

But be honest, is that really what's wrong here? Would you be actually happy with the situation if it were only homeless guys without evident mental problems and a doctor around?

And sooner or later, you run into the reason this gets thorny:
"They’ve come back many times, which makes it pretty consensual," Williams said.
And this is where things get weird. Nobody appears to have been charged with an actual crime. That's what happens when people (through their elected representatives) decide that some assaults are too unconscionable to be consented to.

That's not what's being argued here, at least by the state.

Instead, this is argued as being a tort against the homeless guys themselves. I'm no expert on US torts law, but this seems odd to me, because they got exactly what they consented to. As a matter of decency, I hope they win and get the injunction. As a matter of law and precedent, I'm more hesitant.

I think instead it's a response to the fact that the average person finds this intolerable for reasons they would struggle to articulate clearly. Torts law is not the right instrument for this, but it is more flexible, and can be used (in this case for getting an injunction) when the police aren't willing to make a prosecution.

It seems we are finding out what philosophers have known for a long time - namely, that law can never be a substitute for morality. Society functions not because we can outlaw all possible bad behavior, but because they have citizens with a sense of shame and decency.

In a society full of scumbags like Jeff Williams, it will always be impossible to outlaw every disgusting act.

(Link via Marginal Revolution, subject line via The Simpsons  - search for 'Power Plant Commercial' on the page)

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