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The State's Odd Definition of "Consent"

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Most people consider consent to be a straightforward concept. Parties voluntarily agreeing beforehand to the actions taking place between them sounds simple enough, right? Unfortunately, life — and more specifically, the state — has a way of overcomplicating situations. For example, last year a woman claimed she was raped by two NYPD detectives after being pulled over and detained while with her friends. Now, given the detectives’ DNA were both identified through a rape kit, the implications seem pretty obvious; except that in court they’re attempting to claim that she consented. Which ultimately leads us to this question: can someone consent in a forced scenario?

Let’s set aside the arbitrary notion that in certain states it’s “legal” for police officers to partake in sexual acts with people in their custody, and break down what we mean by “forced scenario.” No matter their feelings toward the police, most people avoid contact with them in their day-to-day lives. If we do happen to encounter them, it’s usually due to our plans being involuntarily altered — either being involved as the accused or as the victim of a situation that didn’t go as planned. With other scenarios we may not enjoy (a bad date for example), we can simply withdraw our consent and remove ourselves from undesired situations. But with the state’s monopoly on violence, this introduces a problem. How does consent function here?

It’s important to remember that consent is only made valuable through the capacity to withdraw it completely, and only from that recognition are we led to the proper conclusion. For instance, in the earlier example, upon realizing the woman was placed in that situation involuntarily and could not withdraw consent, the answer is obvious that the officers’ claim of consent is nonsensical. When examining it further, we can see that what’s ultimately being deliberated is the overall subjectivity of value.

That’s because all that can be deduced from the encounter is that police had sex with a woman who was not free to leave. The accused claim the encounter was consensual because they offered to let the woman go if she would have sex with them. This is no different, however, than a person being held against his will by an armed criminal in an alley. In such a situation, if I surrender my wallet at knife point, it would be absurd to claim I consented to giving my wallet to the assailant. It is only true if I valued not being stabbed more than I valued the contents of my wallet. And this premise holds true whether the aggressor explicitly tells me he wants the wallet, or implicitly, by accepting it as an alternative form of coercion after I offer it.

Depending on your audience, there is a glaring criticism that will arise at this point. In the example of the woman being held by the police, as opposed to the attacker in an alley, some argue that the woman put herself in this situation by doing something illegal (speeding, trespassing, etc.), and therefore consented to the situation. This criticism is fallacious, however, as it relies on the arbitrary notion of legality vs illegality to enforce an objective principle. What is legal in one place may not be legal elsewhere. Likewise, what is speeding on one road may not be speeding on another. Because we are dealing with public (unowned) property by the state, issues come into play that otherwise wouldn’t in the case of private property.

Today, there are an innumerable amount of laws on the books, many of which are completely nonsensical and carrying no basis other than arbitrary notions of being “bad.” The problem thus arises that claiming an arbitrary act — such as going 35 mph — as legal while saying another is illegal — going 36 mph — on an unowned piece of property, cannot be logically equated to a person consenting to the resulting choice between different means of coercion. Put another way, the claim of waiving one’s self-ownership (consent) due to “deserving” a punishment over arbitrary rules is no more valid than a bum claiming you consented to a choice between surrendering your wallet or being stabbed simply because you trespassed through an alleyway he doesn’t own.

This is because issues regarding violations of rules governing private property can be related a priori to self-ownership, whereas public property cannot. If I own property (a road, house, etc.), and I voluntarily agree with someone to give them access under certain conditions, breaking those rules is a violation of my rights. And, as I’ve laid out previously, this is not the case with public property.

So as we see, the state has a way of muddying the waters on what is otherwise cut and dry issues in an attempt to establish its own legitimacy. Property violations become complicated when “public” property is involved, and consequently consent leads to a grey area when the state’s monopoly on force comes into play. If we hope to remedy these needlessly overcomplicated situations and thereby stop creating victims where none otherwise would exist, we must remove the exceptions given to government regarding rights and authority, and emphasize an objective take on morality and private property.


Thomas Eckert

Thomas Eckert is a writer at Being Libertarian. 

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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