Incest a 'fundamental right', German committee says

[Martinus]

The liberty drum can be beaten too much, you know. 

I think everyone here believes that liberty as a concept is good, but that there must be reasonable limits to it. The argument is over what those reasonable limits are.

We also all agree that those limits are drawn by informed consent - that it isn't a true manifestation of liberty to allow someone to have sex with a person who does not have the capacity to consent. So, for example, we all agree that sex with minors is a legitimate state interest - a limit on absolute liberty.

The issue, put narrowly, is whether an incestuous relationship is an example of one in which the capacity of the partners to provide consent is in question.

I feel like we are moving in circles, so I will just restate this for the last time: there is no other case in a modern Western society, other than criminalisation of incest, where it is argued that both (i) sexual partners are incapable of giving informed consent only within the context of this specific relationship (but not any other), and (ii) the relationship is symmetrical (i.e. there is no victim and violator but both parties are considered at the same time victims and violators).

The only two cases, from history, that I can think of where both of these characteristics were present, were criminalisation of homosexual sex and criminalisation of interracial sex.

This in itself is pretty fucked up, if we subscribe to a view that adult people are generally capable of making decisions about their own lives.

[Martinus]

I meant the converse, convenient if BB got his wish. There are two possible defenses to the charge, that it didn't happen or that it was consensual. Assuming there's evidence that sexual relations did take place, the defense doesn't have much hope if they don't claim the (alleged) victim "wanted it."

And it's similar for rapists as well. Assuming there is evidence that the sexual relation took place, the defense doesn't much hope if they don't claim the (alleged) victim "wanted it".

Quite the contrary. If the victim wanted to have sex, there is no rape.

What if the victim was 7 years old?

Uhm, we have always framed this as a discussion about sex between adults. Why are you moving the goal posts mid-discussion?

Because to my mind, the issue is the ability to give consent. Underage is one case where that ability is presumptively in question. Incest is another.

Underage people are deemed incapable of giving consent to ANY sex. Why are you insisting on comparing this to a situation where a person is "deemed incapable of giving consent" to sex with one person but not incapable to do so with another person?

As I said, there are no other cases in modern Western society where this is argued. The only other exception is coercion - where obviously there is no consent.

[Barrister]

The liberty drum can be beaten too much, you know. 

I think everyone here believes that liberty as a concept is good, but that there must be reasonable limits to it. The argument is over what those reasonable limits are.

We also all agree that those limits are drawn by informed consent - that it isn't a true manifestation of liberty to allow someone to have sex with a person who does not have the capacity to consent. So, for example, we all agree that sex with minors is a legitimate state interest - a limit on absolute liberty.

The issue, put narrowly, is whether an incestuous relationship is an example of one in which the capacity of the partners to provide consent is in question.

I feel like we are moving in circles, so I will just restate this for the last time: there is no other case in a modern Western society, other than criminalisation of incest, where it is argued that both (i) sexual partners are incapable of giving informed consent only within the context of this specific relationship (but not any other), and (ii) the relationship is symmetrical (i.e. there is no victim and violator but both parties are considered at the same time victims and violators).

The only two cases, from history, that I can think of where both of these characteristics were present, were criminalisation of homosexual sex and criminalisation of interracial sex.

This in itself is pretty fucked up, if we subscribe to a view that adult people are generally capable of making decisions about their own lives.

If you take out the word "sexual", I can think of another example (at least in Canada) - two parties can not consent to the infliction of bodily harm on each other.  See R v Jobidon [1991] 2 SCR 714.

Obviously, if we value liberty, we wouldn't want to see very many examples like this, but that doesn't mean there shouldn't be in certain situations.

[Barrister]

Underage people are deemed incapable of giving consent to ANY sex. Why are you insisting on comparing this to a situation where a person is "deemed incapable of giving consent" to sex with one person but not incapable to do so with another person?

That's not quite true.  Underage people are able to give consent in certain circumstances.  It varies from jurisdiction to jurisdiction, but they are typically allowed to have sex with people of a similar age.  It's only adults that young people are prohibited from having sex with.

[Martinus]

If you take out the word "sexual", I can think of another example (at least in Canada) - two parties can not consent to the infliction of bodily harm on each other.  See R v Jobidon [1991] 2 SCR 714.

Obviously, if we value liberty, we wouldn't want to see very many examples like this, but that doesn't mean there shouldn't be in certain situations.

Well, that's a better point - let's argue on merits, and not on comparing incest to pedophilia, where such comparison is insulting to everybody's intelligence here.

I would say, the situations are different.

Prohibition against bodily harm recognises an actual, measurable harm that cannot be inflicted by one person on another (even with the "victim's" consent) - this is quite different from incest, where the harm on the "victim" is often illusionary (and, again, you could use the same argument in favour of criminalising homosexual sex - most homophobes these days argue that they are just protecting the poor gay people from the evils visited upon them from homosexual practices).

Furthermore, even with the bodily harm prohibition you have many exemptions (medical procedures are one; sport is another). Surely, the ability to have sex with a person of your choice is more important than boxing, when it comes to weighting conflicting interests, right?

[Martinus]

Underage people are deemed incapable of giving consent to ANY sex. Why are you insisting on comparing this to a situation where a person is "deemed incapable of giving consent" to sex with one person but not incapable to do so with another person?

That's not quite true.  Underage people are able to give consent in certain circumstances.  It varies from jurisdiction to jurisdiction, but they are typically allowed to have sex with people of a similar age.  It's only adults that young people are prohibited from having sex with.

That's not true everywhere, at least not in Poland, for example. Here, underage people having sex with each other are not prosecuted because you cannot prosecute minors - not because they are deemed capable of giving consent. But they can be subject to corrective measures.

Given that you hear stories about kids in the US being prosecuted for child pornography because they send nude pics to each other, I assume this is not true at least in some of the US states.

[Malthus]

Underage people are deemed incapable of giving consent to ANY sex. Why are you insisting on comparing this to a situation where a person is "deemed incapable of giving consent" to sex with one person but not incapable to do so with another person?

As I said, there are no other cases in modern Western society where this is argued. The only other exception is coercion - where obviously there is no consent.

Uh, because both are situations in which people are legally deemed to be incapable of giving consent to sex (as opposed to actually incapable of giving consent)? Not sure what your difficulty with the analysis is here.

[Martinus]

Underage people are deemed incapable of giving consent to ANY sex. Why are you insisting on comparing this to a situation where a person is "deemed incapable of giving consent" to sex with one person but not incapable to do so with another person?

As I said, there are no other cases in modern Western society where this is argued. The only other exception is coercion - where obviously there is no consent.

Uh, because both are situations in which people are legally deemed to be incapable of giving consent to sex (as opposed to actually incapable of giving consent)? Not sure what your difficulty with the analysis is here.

One more time - there is no other situation (other than your vaunted theory of incest) where someone is deemed incapable to give consent to sex with person A but is capable of giving consent to sex with person B. Does this not strike you as illogical?

[Malthus]

Underage people are deemed incapable of giving consent to ANY sex. Why are you insisting on comparing this to a situation where a person is "deemed incapable of giving consent" to sex with one person but not incapable to do so with another person?

As I said, there are no other cases in modern Western society where this is argued. The only other exception is coercion - where obviously there is no consent.

Uh, because both are situations in which people are legally deemed to be incapable of giving consent to sex (as opposed to actually incapable of giving consent)? Not sure what your difficulty with the analysis is here.

One more time - there is no other situation (other than your vaunted theory of incest) where someone is deemed incapable to give consent to sex with person A but is capable of giving consent to sex with person B. Does this not strike you as illogical?

For one, it isn't the only such case. Teachers in some jursisdictions face charges for having sex with students, even if over the otherwise-applicable age of consent.

http://www.wtae.com/news/new-brighton-area-teacher-accused-of-sex-with-students-moon-township/26859140

See also:

In most jurisdictions where the age of consent is below 18 (such as England and Wales[30]), in cases where a person aged 18 or older is in a position of trust over a person under 18 the age of consent usually rises to 18, or higher. Examples of such positions of trust include relationships between teachers and students. For example, in England and Wales the age of consent is 16, but if the person is a student of the older person it becomes 18.

http://en.wikipedia.org/wiki/Age_of_consent

So incest is not as "singular" as you thought.  In England, you could legally have sex with Person A who is 17, but not with Person B who is 17 and your student.

[crazy canuck]

I meant the converse, convenient if BB got his wish. There are two possible defenses to the charge, that it didn't happen or that it was consensual. Assuming there's evidence that sexual relations did take place, the defense doesn't have much hope if they don't claim the (alleged) victim "wanted it."

And it's similar for rapists as well. Assuming there is evidence that the sexual relation took place, the defense doesn't much hope if they don't claim the (alleged) victim "wanted it".

Quite the contrary. If the victim wanted to have sex, there is no rape.

What if the victim was 7 years old?

Uhm, we have always framed this as a discussion about sex between adults. Why are you moving the goal posts mid-discussion?

Because to my mind, the issue is the ability to give consent. Underage is one case where that ability is presumptively in question. Incest is another.

And that is the importance of incest laws.  It removes the absurd potential of a parent claiming their child consented.

[Martinus]

No such case in Poland. I bet you could find weird laws somewhere in the world to support any thesis, though.

[crazy canuck]

This in itself is pretty fucked up, if we subscribe to a view that adult people are generally capable of making decisions about their own lives.

Yes, we are indeed going in circles because that position depends on ignoring the history of the whole relationship which started with an adult raising a child.  If you ingore that step then you allow a parent to groom a child to have sex once they reach the age of "consent".

[Martinus]

I meant the converse, convenient if BB got his wish. There are two possible defenses to the charge, that it didn't happen or that it was consensual. Assuming there's evidence that sexual relations did take place, the defense doesn't have much hope if they don't claim the (alleged) victim "wanted it."

And it's similar for rapists as well. Assuming there is evidence that the sexual relation took place, the defense doesn't much hope if they don't claim the (alleged) victim "wanted it".

Quite the contrary. If the victim wanted to have sex, there is no rape.

What if the victim was 7 years old?

Uhm, we have always framed this as a discussion about sex between adults. Why are you moving the goal posts mid-discussion?

Because to my mind, the issue is the ability to give consent. Underage is one case where that ability is presumptively in question. Incest is another.

And that is the importance of incest laws.  It removes the absurd potential of a parent claiming their child consented.

Are you fine with allowing sibling incest though?

[The Brain]

The idea that I couldn't give or withhold consent if I was propositioned by my mom or dad is both bizarre and vaguely insulting.

[Eddie Teach]

He's not. As he explained it, there was a case where a father groomed his daughter to become his wife and yadda yadda yadda, slidin' down the slope, it could happen to siblings too.