Erring On The Side Of Caution

As my arguments have grown more refined, I've noted a particular argument of last resort among my opposition. After they've been forced to admit that it is a fundamental injustice that rational, competent human beings are routinely denied the right to decide what they do with their own bodies, rather than just accept that the situation needs to change, their final argument is that we must "err on the side of caution."


What this argument represents, is the false assumption that we simply cannot know for certain who is and is not competent to make their own decisions, and therefore we must restrict the rights of people we are actually fairly sure are competent in the hopes of getting all the ones who aren't "protected."

There are two fundamental errors with this argument. The first, and most obvious, is that there is no inherent need to "err" at all. It is perfectly possible to examine an individual's mental capabilities and knowledge base to determine if this individual is or is not up to the standard for informed consent. Talking about which way you would rather err means nothing when the goal is to simply not err in the first place.

Because, we should be clear, the individuals who bring up erring on the side of caution aren't talking about making the examinations potentially more rigorous than they would need to be. They're talking only about maintaining the failed system of age lines that, by this point in the argument, even they have been forced to admit are not capable of accurately sorting those who can provide meaningful consent from those who cannot.

The second error with this argument is that it assumes as a given that in the eternal debate of freedom versus security, the right and proper side to err on is security. That has been, by no means, established in any particular issue you care to mention, so there's no possible way for it to have been established in the general case as such individuals argue.

The entire point of a legal system founded on "better to let ten guilty men go free than that one innocent man be punished" is to err on the side of freedom. Everyone who's ever been offended by seatbelt laws, helmet laws, or speed limits understands that the tradeoff on freedom versus security is never cut and dried in favor of security.

I'll admit I am an extremist. Anyone reading this blog who is surprised by that has probably not been paying attention. I fully support the right to hate speech, even against me. I'm of the opinion that the right to bear arms means the right of the private citizen to bear any weapon that the government sees fit to place in the hands of its military, and that includes nuclear, biological, and chemical weapons so long as the government in question asserts its own right to those weapons. I may make another post in the future discussing this point in more detail, but suffice it to say that on the freedom versus security debate, I'm going to choose to err on the side of freedom every time.

The worst of it, though, is that choosing to err "on the side of caution" (including times when it isn't necessary to err at all) isn't a consequence free choice. There are real harms inflicted on people when they're denied their rights to bodily autonomy including sexual autonomy. You could try to argue that those harms are lesser than the harms inflicted on someone who has been improperly deemed capable of informed consent and thus "fair game," but you cannot deny that the harms in the former situation simply do not exist.


I've frequently suggested, in response to the idea that we should "err on the side of caution," that the correct course of action would then be to raise the age of consent to 40, 60, or maybe 80. For some reason, no one seems to think it's a good idea to "err on the side of caution" in those situations.

News Commentary: Kaitlyn Hunt

I don't do a lot of news commentary here on this blog, because I feel that the issues I'm talking about are fundamentally timeless. That said, I'm pissed enough about the case of Kaitlyn Hunt to break from that just this once.

For those unaware, Kaitlyn is a young woman who turned 18 recently, and is being prosecuted for her sexual relationship with an underage girl from her high school. The media is painting this as anti-gay discrimination, and the conversations that have started because of it need to be addressed.

Let's start with the idea that this prosecution is because the girls are in a homosexual relationship. Yes, the parents of the younger girl are alleged to be prosecuting because the older girl "turned their daughter gay". That doesn't make the prosecution a case of anti-gay discrimination. Every high school boy who has ever been prosecuted and had his life destroyed because of the overprotective parents of his lover can attest to the fact that this is a shining example of equality, at least in the fact that the law is prosecuting.

There is some discrimination here, though. And it's the media who's doing it. No one gives a shit about the excesses of age of consent laws until it's a photogenic young woman who's suffering because of it. And once the media uproar inevitably subverts the legal system and ensures that this woman will escape punishment, everyone will go back to not giving a shit about the awful age of consent laws that will still be in place.

As I've said elsewhere on this blog, I do not support the age of consent. Kaitlyn should not be prosecuted or punished for a consensual relationship. I take Kaitlyn's lover at her word that the relationship was consensual, since she is the one who ought to get to decide that.

The conversation has also spawned much hand wringing about why this isn't covered under the "obvious" Romeo and Juliet clauses many states have in place for just this set of circumstances. First off, not every state's age of consent has an exception for minors who are close in age to one another. Secondly, no state should have such an exemption.

By setting an age of consent, the state is declaring that everyone under the line is incapable of consent, and it is under that justification that individuals who have sex with them are prosecuted. As such, whether Kaitlyn is an 18 year old from her same school or a 70 year old, what matters is that her lover is legally declared incapable of making her own choices about sex.

The very idea that you can be competent to consent to sex with teenagers but not to consent to sex with adults would be laughable if it were not the explicit law of the land, punishable by sentences harsher than some murderers get.

What these laws do is say "this group is particularly vulnerable, so let's create an entire class of people who are only legally allowed to fuck people in that particularly vulnerable class."

Either Kaitlyn's lover is competent to make her own decisions about her own body and who she shares it with, or she isn't. I think she very much is competent to make that decision, whether the person she decides to have sex with is a photogenic young woman or not.



Update:

Kaitlyn has accepted a plea bargain that nets her less than a year in jail and no need to register as a sex offender. We can all stop panicking now. The photogenic white woman won't suffer the insane consequences we always intended only for those evil, creepy men. Words cannot adequately express my disgust at the national dialogue. Though one emotion I can put into words is "unsurprised".

Bullying and School Shootings

I've been bullied.

I know that there are those among you who will take the opportunity to use this fact against me, to use it to discount my arguments, and to attempt to perform the closest approximation of violence available through a text based exchange.  I know that will be the result because that has been the result countless times I've brought this fact up.  If you think any of that is going to silence me, I'll again direct you to reread the introductory post, and you ask yourself why you think you can hurt or intimidate me into silence after I opened with that.

Bullying is my top youth rights issue.  More than voting, more than age of consent, more than property rights.  So if I care so much about this one, why wait so long to post anything about it?  Because the problems associated with this issue are so painfully obvious not one of them would need to be said out loud in a sane universe.  And as such, this post requires I put into words basic human decency.  And because the heartbreaking consequences of people so universally failing to act on this issue mean I tend to get omnicidal when I resume thinking about it, and that isn't conductive to careful, thoughtful analysis or persuasive writing.

Social rules are a series of lines we draw between ourselves and others.  Boundaries need to be agreed upon, and thereafter respected.  Much bullying is crossing one or two of those boundaries by just the tiniest degree.  Once that's been done, the bully relies on the fact that the infraction was small to shield him/her from consequences, then does it again.  And again.  And again.

Bullying is not a single incident.  It isn't one kid beating you up, or stealing from you.  That isn't what it is at all.  Bullying is a pattern of such incidents.  Bullying is a prolonged campaign of physical, psychological, and social attacks, each individually below the threshold that the authorities would care about, but collectively adding up to be too much for the victim to handle.  Bullying is slow torture, and needs to be treated as such.

So much advice we give kids fails to take this pattern into account.  We tell them to "tell an adult", but when a kid comes to an adult authority figure with a minor complaint, the adult is frustrated at the kid's inability to deal with something so minor.  So that adult says "just ignore it", not recognizing that this is a pattern, perpetrated by someone who will delight in the victim bottling up their obvious discomfort as they proceed to escalate the violence while the kid still has that "just ignore it" advice ringing in their ears.

Which brings us to the "fight back, bullies are cowards" advice.  There's only one healthy response to a prolonged campaign of torture that's being actively ignored by the authorities.  Whatever it takes to make it stop.  And a victim can't simply match like for like.  Repaying each small violation with a small violation of their own against their tormenter.  The tormenter will simply delight in their ability to provoke this new response.  So when we tell the victim to fight back, the only answer for them is to make it stop by any means necessary.  If that means someone ends up hospitalized, so be it, if that means someone ends up dead because the authorites refused to intervene when the situation was minor.  So.  Be.  It.  

That's why everyone knows that it's the victims of bullying who get into trouble and the bullies themselves are left to roam free.  Bullies know exactly where the line is between their victim being comfortable and not, and they also know exactly where the line is where their activity is too minor for any single incident to be responded to meaningfully by the authorities.  When a victim fights back, they don't keep that line in mind, because they've learned that the authorities aren't an issue, because the authorities have been ignoring months, or years of torture right in front of their eyes.

Of course, it isn't always that way.  Sometimes we have a real simple case for the authorities to handle.  A good old fashioned beating incident where the victim is attacked and left bloody.  And again the authorities fail.  What happened here is called "assault and battery".  It is a criminal offense.  The appropriate response to it is a criminal trial and criminal penalties.

That is the social contract every citizen is included in, adult or child.  Instead, authority figures in the school cover it up.  They minimize the incident to the parents, using phrases like "boys will be boys".  They pressure parents not to press charges.  And they again teach the victim that their pain will be ignored, and that the bully can act with impunity.  That the social contract does not protect them, and will only ever be used to hurt them.

Shootings aren't a cry for attention.  The victims who snap and start shooting people don't want attention.  They know attention won't fix anything.  They've been taught that the social contract doesn't apply to them, and that the only way that anything will ever change for the better is if they, on their own, make it impossible for things to continue as they had.

What these people are doing is solving problems in a perfectly natural way.  Without the social contract, this is the standard way human beings settle disputes.  We created the social contract in order to prevent incidents like this.  That is the only reason we have the social contract. 

Given how utterly useless the social contract has been in protecting tormented minors who are forced, day in and day out, to spend the majority of their waking hours in close proximity to their tormentors while authority figures ignore and minimize the abuse they're suffering, you should all feel blessed that shootings are as unfathomably rare as they are. 

Criminal Responsibility

Whatever your position on this subject, it is a fact that in the United States, and many other parts of the world, people of differing ages have differing access to the criminal justice system.

The defense of infancy in Common Law holds that an individual under a certain age cannot be found criminally guilty due to it being presumed impossible for them to have understood that their actions caused whatever harm it was they would have been punished for had they been adults. For example, an infant, having somehow gotten its hands on a gun, and shooting its parent in the head would be subject to neither murder, nor manslaughter, nor even criminal negligence prosecution because the courts (rightly) assume that the infant had no way of knowing that in playing with the gun, the death of the parent was a risk.

In between that age, and having full access to the criminal courts, many places have a juvenile court system. The specifics of such courts vary considerably from place to place. In some ways, the courts in the US treat juveniles with more leniency (lower caps on sentences, etc.), and in some ways some of them treat juveniles more harshly (no access to juries).

A long-standing problem with this system is how one is classified as an "infant", "juvenile" or an "adult". One common choice in this is to use age lines. These lines, while simple to implement, leave much to be desired regardless of which of the underlying reasons for having such divisions one subscribes to.

If one is most concerned with the understanding of the criminal, as is the presumed case with the defense of infancy, mental competence to stand trial serves as a much more effective and accurate metric than an age line. Not that said assessment of competence need be particularly sophisticated in the case of actual infants.

Concerns about the possibility for reform, often cited as the reason behind so many of the differences in sentencing at the juvenile level seem to practically beg for a mental health treatment of the criminal behavior rather than a criminal justice treatment in the first place. As such, a mental health style evaluation regarding the likelihood of reoffense and treatment course would serve better this goal than drawing an age line and saying that people below it can be completely reformed, but people above it cannot.

Muddying the waters still further is the concept of trying juveniles in the adult court system. When the crime is severe enough, a juvenile will occasionally be tried "as an adult", losing access to whatever protections their local juvenile court laws afford. This practice puts juvenile offenders in the worst of both worlds in terms of their ability to defend themselves, when it is the prosecutor, not the defense who gets to make this determination. Either they are denied the full slate of due process protections present in the adult court system, or they are denied the sentence caps of the juvenile court system, depending on the assessment of the prosecutor of the strength of his case.