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Agreed. But how do we know that something is or is not?
Substance use is a very tricky part of both Westen and Wertheimer. Like, suuuper tricky. Most people agree on something akin to "blind drunk" or unconscious. But I hardly think children can be analogized to that. When it comes to lower levels of intoxication, it's really difficult. (I don't have my copy of Westen handy, but Wertheimer was honestly a bit better at trying on a few of these, to my recollection, whereas Westen somewhat more often just fell back on a descriptive, "Here is what different legal regimes do in practice, and here is some vocabulary about how we can describe some of the conceptual differences.")
One commercial analog given is gambling and drinking in a casino. No one argues that drinking and gambling (possibly more than you intended to, on both counts) may result in significant potential harm, but basically no one thinks that it should be flatly prohibited or that gambling losses should be recoverable if intoxicated, at least not until one reaches a pretty extreme state1. He thinks this is partially justified because the gamblers, themselves, would prefer this rule to how the world would be in the counterfactual world. Like, just that there might be some harms, or that they might be significant, isn't really connected in any solid way. I don't think people actually take a measure of the harm that might befall a child who is, say, playing hockey or rock climbing (which could include, ya know, death), and determine that that level of potential harm is just flatly above some threshold, categorically banning them from consenting to the activity.
Wertheimer again ends up grounding his reasoning here in something that isn't really "about" ability to consent. He contrasts two frat houses, one in which the members accept consent from a woman only when it is given before she starts drinking and one that will accept consent after she starts drinking (the former is analogized to a "tattoo parlor rule", while the latter is analogized to the gambling rule). Literally says:
So, like, uh, h-what? What has he even done here? It's kind of wild. It's not anything to do with their actual intoxication or mental abilities or anything. And of course, it's not anything to do with their specific regret/lack of regret for a particular action. For surely, every person would prefer the rule to be that they can legally take back every particular donation to the LDS that they regret, every particular gambling loss they incur, but keep every particular gambling gain, and of course have all the particular intoxicated sex that they don't regret. So, he ends with this awful mash of awfulness. It's certainly not anywhere nearly clear cut to tell us anything useful regarding anything about the mental capacities necessary to consent, on some hypothetical sliding scale of intoxication level, or how to understand how children would fall into this approach. That's probably why his attempt for children just completely went down the empirical route rather than even trying for any sort of real analogous reasoning here. Like, I just don't think you actually can reason analogously here at all, because they're just not the same sort of thing, and we have no theoretical mechanism linking them to each other or to anything about the gravity of sex or whatever.
Hot damn, as an aside, I checked to make sure I was remembering completely right that he did, indeed, immediately head for the empirical route for children, and he sure did. What I had forgotten was this doozy immediately thereafter:
This is what the claim will be. Again, you're just a regressive, sex-negative (probably religious) prude if you disagree.
LOL! Nah, tho. They're Aella-based and enlightened-pilled. They'll be as happy as all get out to describe how sex-positive they are about all the sex they chose to have. "Even the sex I kind of regret was good in its own way, and I'm glad to have had the choice," or whatever. See the NYT article that I linked in one of my comments that I linked way back up in our earlier conversation.
I mean, this is going to go very poorly for you. You've sort of given up the game that you can have the same level of understanding of sex (and presumably the gravity and breadth of any moral implications), but somehow, those children still can't attain some mystical additional "sophistication"?! Like, what? How does this even work? What religious magic is this?
Yeah, you have to work a bit to make them actually see the contradictions in their claims. Most of the time, people just shake their head with mood affiliation. But when it comes to serious politics and Supreme Court briefs, they will absolutely refuse to see the contradictions, akin to how they'll suddenly think that opinion polls settle biological science.
Fair enough. We might be doomed, you and I, regardless of whether we can actually complete this project. They're probably going to do what they're going to do, regardless of whether we actually have a rigorous argument that children can't consent. Mayyybe, it miiiight help, but probably they'll just find some way to ignore it or minimize it anyway. Of course, it doesn't help that their counter to, "Children can't consent," is something short and pithy like, "Why not? They consent to all sorts of stuff!" whereas our counter to their counter is, "Well see, if you understand this complicated rigorous argument that fixes all the prior issues with not being able to analogize this situation to intoxication and avoids falling into the trap of, and... and..." I guess we really just are doomed to the fate of being right (ya know, if we can fix all of the problems in the project, which I'm still not seeing yet) but ground under an unstoppable cultural force.
1 - Worth noting here briefly that I think prohibitions on children gambling are, and should be, based on reasoning other than that they "can't consent". But I admit that it would be easy for this issue to get complicated, and that it seems a bit disanalogous.
That's hard to answer unless the standard of "knowledge" is sufficiently defined for the context. We know quite a lot about child psychology in general, which is sufficient for setting general laws and ethical norms for child behaviour. Of course, these get ambivalent and complex at edge cases, e.g. a 16 year old and a 15 and 11 months old can presumably satisfy any ethical demands that anyone might reasonably have for sex, but it still makes sense to have a law at 16 (or 15 or 18 or whatever) that makes sex acts between them technically illegal.
The gambling and drunk example is an interesting one and you give a clear introduction to it. I'd be quite happy to forbid physical casinos from admitting the heavily intoxicated. For online casinos, such a rule isn't worth enforcing, so to me it's regrettable but inevitable (given that the restrictions on freedom from banning online gambling would be so great) that sometimes drunk people will e.g. go broke gambling online.
Depends on the person, but the Aella example is pertinent: my suggested method could be opening Pandora's box (pun not intended).
I never suggested that sexual partners should have the same understanding of sex, only more than that possessed by a child.
At the very least, "Why do you think that children can choose radical medical interventions but not minor sexual acts?" is a simple yet effective question in some debates. Of course, there will be people blind to thinking through the issues raised by the question, but it's an analogy worth drawing.
As for our historical fate, I'm reminded of Allan Bloom in the Closing of the American Mind, when he takes inspiration from Irish monks in the Dark Ages. They were unable to contribute much to the stock of human knowledge, nor to solve the problems of their times, but they lovingly preserved certain ideas and texts, thereby greatly influencing the history of Western Europe and ultimately the world. If those Irish monks did what they saw as their duty, then it seems like others in less hopeless circumstances can do likewise.
Agreed. That's why I was so hopeful with Westen's approach to probing his "knowledge prong" of consent. However, I really don't think he got very far with it. I've said here before that if there is going to actually be solid theoretical development on this topic to actually get something useful, it's going to have to be here.
I mean, do we? This is kind of a mess. At very early ages, we have some pretty standardized milestones. Beyond that, you very rapidly descend into a nature/nurture mire and all sorts of theories about what children could or could not be educated into being capable of. (I would be remiss if I didn't point out that the details here still need to be connected somehow to the theory of consent to sexual relations in order for this project to be completed, and that is no small task.)
More in what way? Vague additional "sophistication"? This, frankly, isn't going to cut it.
This is very nice. I am sort of putting on a bit (hopefully obviously) about us having to put together a theory to be the last line of defense. I'm pretty much at peace with the idea that a couple of schmoes on a whacko corner of the internet aren't going to have a significant influence on the problems of our times. Personally, I actually surprisingly do at the moment feel like I can have a significant influence on my very niche corner of the academic literature (it's about as far of a topic from this conversation as you can imagine; also, I really didn't feel like this about my own work until quite recently, so I hope you don't get the impression that I have a raging ego about my work even in my little niche; my collaborators and I just happened upon what I think is a really cool perspective in the last few years), but I really can't imagine I'll have much influence outside of that. I'm more just curating my own mind, and if I influence any other individuals in the process, I guess that's neat.
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If you want one to provide an argument that wins against your hypothetical nebulous "them", then it's a rigged game from the start. Any opposing force that behaves like you describe will either force their rules through if they're stronger, or won't if they aren't. There isn't any point in discussing arguments, just push against them with the same "ew, date someone your own age, creep" that works well now. Or woodchippers, if you're more physically inclined.
The current concept of the age of consent is a messy empirical thing that evolved from (obligatory disclaimer that the list is non-exhaustive):
A non-empirical, rigorous case can probably be made against the big P Pedophilia, as in involving the big C Children. Anything with teens? I see two ways for you if you want to reduce the impact of any nebulous MAPs who are gonna come out of the woodwork any second now. If you want to prevent the acts from happening, go chip in with the "ew, she's only 19 and you're 25, are you too infantile for mature women?" crowd. If you are more interested in preventing harm, improving society in the direction that will actually make teens better equipped to handle relations with adults (sexual and otherwise) seems to be the way.
Fair enough. The context of this perspective is that we saw them just lie about what we know about reality in order to win political victories and then subsequently freely admit that it was all bullshit, but that it doesn't matter now that they won. Reasonable minds can disagree on whether that model of a rigged game reflects underlying reality or a mere rhetorical trick.
Unfortunately, I don't see much in the rest of your comment that would really go against anything that I've said, in particular. In fact, your closing
seems to dive right into the mire. That is exactly the hypothetical route that I am proposing they will use to achieve their goals, and you are saying that we should plow forward, full steam ahead. More comprehensive sex education, more earlier! Where to draw the line? Lines? Where we're going, we don't need "lines". I don't usually talk a lot about the topic, but it shows up here often, plenty of examples of these folks just brazenly having more sexual "education", with more sexually-explicit teaching materials, at ever younger ages, with it 'never being too soon' to start teaching children how to be better equipped to handle relations with adults (sexual and otherwise). I also don't actually claim a super strong predictive position of to what extent these types of efforts could empirically be successful. But I do strongly claim that the people who think this have a violent, fundamental clash of foundational theoretical principles with the people who think, "It is trivial that children cannot consent." I think a lot of people were forced to parrot the latter in order to not be an X-ophobe and to support the Good and Righteous Fight, and they do not realize that their "enlightened societal learning" is already being implicitly viewed as false, just like they didn't realize that their "enlightened societal learning" on biological determinism of sexual orientation was basically a lie from the start, pushed for political gains, but already disbelieved by those who have other foundational theoretical principles.
No, I don't mean "better more earlier sex education". I mean addressing the power/status disparity, atomization, pregnancy/STD risk and other factors that make teens ill-equipped to participate in society. It is not a simple task, it is not just about teens and it certainly won't amount to "better education".
Ah yes, with Fully-Automated, Luxury Gay Space Communism (plus even more plus good contraceptive education/use), finally we will overcome the silly hangups of backwards, religious, sex-negative prudes that may have only been useful in evil patriarchal capitalistic systems. Then all the kids will have loads of double plus good sex!
I mean, yeah, this is what they say/want, and it doesn't change anything about my comment on how this worldview violently clashes at a fundamental level with those who think, "It is trivial that children cannot consent."
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