Saturday, January 14, 2006


Limits of consent?

It's time to revamp this blog a bit. And why not by pointing to Shuggy's post concerning consent and its limits?

Shuggy mentions the Spanner case - more here and here - in which a number of gay men in the UK were jailed for consensual s/m activities in the privacy of their own homes. The highest sentence handed out was four and a half years. In a time when things like gay marriage are gradually getting more and more accepted, this stands out starkly as a blatant example of sexual oppression. Notably, all of the "victims" involved in the Spanner case testified that the activities were consensual - they wanted to do it. Unfortunately, as UK law appears to stand, it does not matter: consensuality has no bearing on assault charges. Which may lead to the bizarre situation that a "bottom" or masochist who would testify before court that he consented to and enjoyed whatever was inflicted to him, could well be charged with complicity to assault - on his own body.

Three of the men involved in the Spanner case brought up their case before an European court which, unfortunately, did not overturn the original sentencing. Time for us Europeans to stop pointing fingers at the silly attempts of Bush and co. to stop gay marriage? There are some issues that are much more serious to deal with here at home.

Shuggy also mentions the case of Armin Meiwes, the German cannibal, who is up for retrial after first having been sentenced for eight years or so after, apparently consensually, killing and partially eating another man. The prosecution is trying to get a murder conviction - the original one was manslaughter. Not surprisingly, German law isn't exactly prepared to deal with the case of a guy eating people after having put out a contact ad for slaughter victims on a cannibal fetish website.

I'm in two minds about the whole thing. If people have sovereignty over their own bodies and their own lives, consent is really the only yardstick with which to measure these things, then perhaps Meiwes should not go to prison at all. On the other hand, I am slightly uncomfortable with the idea that someone who has slaughtered and eaten a man, thought it was a jolly good experience and is now writing a book about it should walk the streets. At the very least, one could say he is a bit unhinged in the ethics and empathy department.

Of course, not everyone is capable of consent. Children can't consent to various things. Similarly people who are mentally handicapped, or perhaps disturbed in other ways. It's possible to argue that Meiwes' victim, Bernd-Jürgen Brandes, was obviously in deep psychological trouble and therefore incapable of consenting to be carved up and eaten. How do we know he was crazy, though? Because he wanted to be eaten. There is some circularity in that reasoning.

More importantly, we cannot establish consent really after the fact here - we only have Meiwes' word for it and the appearances of consent (Brandes turning up knowing he was going to be dinner, Meiwes happily videotaping the proceedings, etcetera. But what if Brandes changed his mind at the last moment? He's not going to be able to affirm that whatever went on was consensual. Because he's dead and all.

Of course, this is an extreme and rather distasteful example. The question for me is whether what Meiwes did is not just immoral (because the moral thing to do, if you meet a healthy person with a sincere wish to end up as foodstuff, would be to make sure he gets professional help - and not from a cannibal), or whether it should be illegal as well.

Cases like these do occur. There's the case of Sharon Lopatka, who put out ads on the internet wanting to be strangled and killed - and eventually, found what she wanted. Sexual desires involving cannibalism, death, or otherwise going beyond the safe and sane part of "safe, sane and consensual" are not all that uncommon. Fortunately, people like Lopatka, Brandes, Meiwes and Robert Glass, for whom the border between fantasy and reality fades (and in case of the killers, ethics, morality and responsibility fade) are much rarer.

Yet, I feel the individual himself is solely responsible and sovereign over his life, and his body. I am in favour of legalizing euthanasia if a wish to die is clearly established on the part of the person dying (I am mortally opposed to it when it is not). Assisting suicide of people who are not terminally ill I find ethically extremely dubious. Yet it would constitute a grey area in which I would not want things that I'm highly uncomfortable with from an ethical perspective, outlawed.

But then again, most activities one could "consent" to can be notably ceased anytime one wants. I can decide I'm uncomfortable, don't like what's happening and bail out of whatever is going on. Except dying. If I jump off a roof, safewords aren't going to bring me back on it. It should be possible to make an argument on this basis that it is impossible to establish consent to death. However, such an argument would have possibly consequences for the whole euthanasia issue as well.

I would be happy if Armin Meiwes can be kept off the street for some time to come - but a lot of it depends on the arguments by which this is done. I think it might be possible to poke some holes in the "consensuality" argument, particularly as Brandes is no longer able to affirm his consent.

But I'm unimpressed by Shuggy's "it's just wrong" argument (though I share the gut feeling). Problem is, between the Spanner case - some perfectly innocent, consensual s/m play - and between events like the Meiwes and Lopatka case, which end up in the death of one of the parties involved, there's a potentially very big grey area of possibly much more nuanced cases. I'm not sure if I would support abandoning the consensuality criterion in favour of some less nuanced one ("this action is always wrong"/"it is impossible to consent to this and this").

The fact that in Europe, judges have difficulties distinguishing even consensual activities not resulting in any permanent or even long term-damage to anyone and assault, or fantasy and reality, gives me pause here as well.

Al Capone famously got nailed on a tax evasion. Something similar, metaphorically, in case of Meiwes would be quite welcome.

- Merlijn (who does not eat cuddly things, including kittens, hamsters, and human beings).

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