Consent and Playing with Marbles
CONSENT AND PLAYING WITH MARBLES
by Bill Andriette
The following was written in fall 1997 for a discussion among a number of community leaders and activists meeting in Cambridge, Massachusetts – among them, members of the American Friends Service Committee and the Cambridge Women's Commissioner – in the wake a terrible crime, the murder of a boy, Jeffrey Curley, by two young men. These meetings were aimed at dampening a generalized hysteria that was then spreading from this crime and the exploitative media circus that ensued, hysteria that some were using to promote the death penalty in Massachusetts and attack people who had been convicted of sex offenses.
Here I present some points about consent. I start with an example: a group of children are playing happily with some marbles. An unproblematic situation, no? But the marbles actually have deadly plutonium inside that will give them all cancer. There is clearly a moral problem here. My interrogator, who contests my main points, speaks in italics.
The problem here is that the children have not consented to play with the marbles.
I don't think so. They are playing with the marbles happily. They seem to be consenting. They are all smiles and giggles, and people who are being forced to do something almost never act that way. This everyday, surfacy notion of consent applies not only to children, but also to animals, at least mammals. We would not think twice about whether a dog, walking along the street – tail wagging, tongue hanging out – is doing so freely. Nor would we have any doubts that a dog was being coerced who was straining at its leash so that it could continue to sniff a fire hydrant while its owner was pulling it away. We are very attuned to situations when children (even small ones) are forced to do something they don't want, not least because they generally make their wills known – whether it's a matter of taking piano lessons or going to bed. Moreover, if children cannot consent to any activity with adults (given adults' greater power and experience) then there is no difference between consent and coercion when it comes to child-adult interaction of any kind. That would mean every trip with a child is akin to kidnapping, every conversation a barked order, every hug compelled. And this we know is not true. Back to our example. Maybe the children have consented to play with the marbles, but they have not consented to play with deadly, radioactive marbles.
So let's change the scenario so that their teacher rushes in and says, "Kids, these marbles are radioactive, they're dangerous, and you better stop playing with them right now!" If with this new knowledge the kids get away from the marbles, the moral problem has gone away. Agreed?
But instead, suppose the kids, being kids, only laugh at the teacher. "Cancer, schmancer!" they taunt, putting the marbles in their pockets and dancing around him. The moral problem remains, we'll agree. But still, it's wrong to say that the moral problem is that the children have not consented to play with the marbles.
How can you say that? If those children really knew what it meant to play with the radioactive marbles, there's no way they would consent to do it. Maybe those actual children right there and then seem to consent to play with the marbles. But within those children there are a hypothetical persons – without the immaturity, the false consciousness of those actual children – who would never give informed consent to playing with radioactive marbles.
That misstates the problem. There are two moral dimensions to this situation:
1) The children are doing something of their own volition, playing with marbles.
2) The children are doing something that will kill them.
Feature 1 is, on its face, a distinct moral good. Giving people, and especially children, autonomy to do what they want shows respect for their personhood, and gives space to learn and grow. On its face, stopping people from doing what they want to do is a moral ill. Activities that kill people, however, are on their face, also moral ills. So we have a moral good (children doing something of their own volition) up against another moral good (preventing death). This is like most interesting moral problems – there are competing moral goods, and we have to figure out how we value some over others. Except this problem isn't very interesting. Given the facts here, no one would say that stopping the children from doing what they have consented to trumps letting them do something that will kill them. Real moral dilemmas pit rival goods against each other in ways that are much harder to resolve, and around which there will be less agreement – both because different people value varying moral goods differently, and because of differing interpretations of empirical facts.
For instance, most of us value individual autonomy and human life. So, should the state force-feed an IRA hunger-striker? Doing so will undermine the protester's ability to do what he pleases with his body, and prevent him from making a political statement through starving himself to death. Allowing him to die, on the other hand, is to help perpetrate a preventable death. Our different opinions on this question will depend on the differing weight we give various moral goods (some of us, say, might tend to value freedom over preventing deaths), and also empirical facts (past experience may show that upon the death of an IRA hunger-striker, many are killed in rioting).
You're splitting hairs. Why does it matter if we say, as I prefer, that the kernel of the marble problem is that the children have not really consented to play with the deadly marbles, instead of saying, as you prefer, that the problem is that the children are doing something that will kill them?
I would agree that the problem is that the children have not consented to play with marbles if the situation were like this: man armed with a stick comes upon group of children, gives them marbles, and tells them to make like they are playing with the marbles, otherwise he'll beat them (I doubt it's actually possible to force someone to play, but you can force someone to act like they are). In this revised version, lack of consent is indeed the problem.
But with our original example, to pose the moral problem in terms of consent obscures the real gravitational center of moral concern – that the children are doing something that will kill them. Saying the problem is really one of consent 1) over-values the importance of consent in relation to other moral goods, and 2) it distorts what we mean by consent.
By posing this problem in terms of consent, you imply that consent is your principal moral concern, more important than anything else. But it isn't really. You are willing with clear conscience, as am I, to do something that sure looks like violating the children's consent: grabbing them, and using whatever force is necessary to take away the deadly marbles. You could say that this is not really violating the children's consent, but that strains credulity. It's more economical and truthful, to say that consent is simply one moral good among many. In this case, it is clearly outweighed by the risk of death from playing with plutonium. But in most people's thinking, consent's value is outweighed by much smaller goods: a parent who lays down the law to a child about taking piano lessons or going to bed isn't doing anything wrong, most of us think. Violating a child's consent is acceptable to most people even when what's at stake is merely giving it a new experience or skill, or making sure it's not sleepy in school – and even though we think that respecting a child's will is, in itself, a good. When we wring our hands over the ability of children to consent to sex, what we reveal is not our great respect for consent, but rather our great unease over sex.
But at our last meeting, one of us spoke of her childhood experiences with activities that included dancing at bars and flirting with men. By all the surface criteria that you claim are the hallmarks of consent, she said that she would have seemed to have consented. But later she realized she did not.
I would question this interpretation. I think it's more accurate to say that she did actually consent to participate in the activities she describes – she says at the time she enjoyed them. The situations were not of her own choosing and she now regards them as damaging. But that does not mean she did not at the time participate willingly. Indeed, her willing participation was probably part of what made those experiences later on seem more damaging. One can imagine people who as adults recall negatively, say, their fundamentalist Christian upbringing. Such people are likelier to regard that experience more negatively the more willingly they had engaged in it, in contrast, say, to a child who, as she was listening to fire-and-brimstone sermons, was thinking, "This stuff is so stupid. I wish I wasn't forced to come to these services, I'd rather be at home with my paintbrushes where I can really be me."
Consent is not the central problem with child-adult sexual interaction, except in cases of overt coercion. Assessing the ethics of such encounters or relationships requires coming to a better empirical and experiential understanding of sexuality. Is child-adult sex like playing with plutonium (the standard view)? Or is it like more like taking piano lessons or riding a roller-coaster (sometimes liked at the time and liked retrospectively, sometimes disliked at the time but regarded positively or neutrally later on; sometimes disliked both at the time and later). If the piano-lesson or roller-coaster metaphors are more apt, then what are the variables corresponding with better outcomes? These empirical questions, to which we need to bring to bear our experiences along with historical and anthropological knowledge, will bring us further along on these questions – not focusing on consent.