Consent and Consent Impairment

[morriswalters]

Due to the nature of the hazards involved there are different levels of Licensing(US). From none for bikes or pedestrians to Commercial Operators License for big rigs. Consent in this sense means that you acquiesce to the common need for safe behavior. Laws punish non consent. I thought the theory was that leaders, governed by consent of the governed. We consent to public law by this agreement. Sorry for the awkward wording.

[Azrael]

While a government might exist at the consent of the governed, the individual doesn't get to consent in an 'a la carte' nor an 'at time of infraction' sort of way to specific laws. If you don't like a law, you have to get it repealed.

You cannot make the claim that a law does not apply to you because you don't consent to it. Thus, you cannot make the claim that a consent-affecting impairment frees you from the constraints either.

[lutzj]

But that's not how public roads work. There the rules simply apply, by law. No consent involved.

In the specific case of submitting to sobriety testing, in my jurisdiction and many other US states, the law says precisely "you consent to this by driving on public roads or forfeit your license." The law can't outright say "all people may be tested for alcohol" because of that pesky Bill of Rights. This applies even to people who received their license before the relevant statutes were passed, so it's not merely part of the transaction of getting one's license either.

http://en.wikipedia.org/wiki/Implied_consent#Implied_consent_and_driving_while_intoxicated

[morriswalters]

While a government might exist at the consent of the governed, the individual doesn't get to consent in an 'a la carte' nor an 'at time of infraction' sort of way to specific laws. If you don't like a law, you have to get it repealed.

You cannot make the claim that a law does not apply to you because you don't consent to it. Thus, you cannot make the claim that a consent-affecting impairment frees you from the constraints either.

I thought I said that. Like I said I'm clumsy.

[CorruptUser]

Due to the nature of the hazards involved there are different levels of Licensing(US). From none for bikes or pedestrians to Commercial Operators License for big rigs. Consent in this sense means that you acquiesce to the common need for safe behavior. Laws punish non consent. I thought the theory was that leaders, governed by consent of the governed. We consent to public law by this agreement. Sorry for the awkward wording.

I kind of agree with this. After all, in the future, driving while intoxicated will carry a death sentence. Why? Well, remember how a drunk captain caused the Exxon-Valdez spill which caused ~$3B in damage and another drunk captain caused the recent Carnival crash which left over a dozen dead and hundreds of millions in damage (so far)? Imagine an ore freighter. From Jupiter. Transporting volatile/exotic elements/compounds. With a total mass in the range of a million tons. Traveling at 100,000 km/hr. Now imagine the guy piloting it is drunk.

It's not so much 'this is right and this is wrong' so much as 'doing this would reduce the risk of disaster'.

[Elliot]

Roads are public property, you give your consent by using them. A license gives permission to operate a motor vehicle on a public road.

The fact that road rules mostly apply to public roads would seem to be nothing more than a consequence of the fact that most people drive on public roads. It isn’t necessary from a legal theory perspective. There’s nothing to stop a government making laws about driving on private roads, or even about driving on private property that isn’t a road. There are plenty of laws that control the conduct of people on private property. Use of public property as an indication of consent is completely unnecessary.

But that's not how public roads work. There the rules simply apply, by law. No consent involved.

In the specific case of submitting to sobriety testing, in my jurisdiction and many other US states, the law says precisely "you consent to this by driving on public roads or forfeit your license." The law can't outright say "all people may be tested for alcohol" because of that pesky Bill of Rights. This applies even to people who received their license before the relevant statutes were passed, so it's not merely part of the transaction of getting one's license either.

http://en.wikipedia.org/wiki/Implied_co ... ntoxicated

But you’re not consenting to the law; you’re consenting to assist the police in gathering evidence. I would agree that agreeing to take a sobriety test is an issue of consent (notwithstanding that it’s a criminal offence to refuse here in Australia) but that consent does not determine your responsibility, legal or moral, for driving drunk. And I’m pretty sure the point was originally meant to be about holding people responsible.

I kind of agree with this. After all, in the future, driving while intoxicated will carry a death sentence. Why? Well, remember how a drunk captain caused the Exxon-Valdez spill which caused ~$3B in damage and another drunk captain caused the recent Carnival crash which left over a dozen dead and hundreds of millions in damage (so far)? Imagine an ore freighter. From Jupiter. Transporting volatile/exotic elements/compounds. With a total mass in the range of a million tons. Traveling at 100,000 km/hr. Now imagine the guy piloting it is drunk.

If you're relying on one guy's sobriety to prevent the million ton spaceship crashing and killing us all, I think you're doing it wrong.

[CorruptUser]

If you're relying on one guy's sobriety to prevent the million ton spaceship crashing and killing us all, I think you're doing it wrong.

I would agree, and yet, that's how we currently do it with hundred-thousand ton freighters, cruise ships with thousands of lives, spaceships*, and airplanes. Scary, no?

*Not the unmanned ones obviously.

[morriswalters]

Elliot, I'm not sure what your saying. The consent is to the obligation to obey the law, whatever it is, or wherever, for a particular jurisdiction. Licenses to operate any type of vehicle are a easy way of identifying who is competent to operate that vehicle within the boundaries of the law for whatever specific type. Licenses show knowledge of minimum competency.

[Elliot]

Elliot, I'm not sure what your saying. The consent is to the obligation to obey the law, whatever it is, or wherever, for a particular jurisdiction. Licenses to operate any type of vehicle are a easy way of identifying who is competent to operate that vehicle within the boundaries of the law for whatever specific type. Licenses show knowledge of minimum competency.

If you mean 'consent' purely in the social contract sense, then okay. That's one way of describing how a society comes to be bound by laws, and the merits of that description are probably beyond the scope of this thread.
But if you're talking about actual people giving actual consent (expressly or impliedly) then that's simply not how laws work. So when you said that you give consent to traffic laws by entering public roads, that is incorrect. It might be that entering a public road, or applying for a licence, suggests some agreement with the laws that apply to driving. But your agreement to those laws is legally irrelevant. You are bound by the same laws even if you don't agree, or even if you don't know what the laws are. I would consider that to be a defining characteristic of laws.
So what I'm saying is that no one actually gives consent 'to the obligation to obey the law'. Again, with the exception of the fictional consent upon which social contract theory is based.
And if we refer back to what the discussion was originally about (with a drunk driver as an example of someone who is held responsible for something they do while drunk), my point is that responsibility for drunk driving is not dependent on the driver consenting to laws. I think that's true for both moral and legal responsibility.

[morriswalters]

If one cannot consent to sex while drunk, then logically one should not be able to consent to sex (or any number of other things) while suffering from any more severe form of mental impairment. People suffering from severe depression or mania, and people with various developmental disorders therefore cannot consent to sex, ever. I doubt most people will approve this state of affairs, but equally allowing consent to occur at almost any degree of impairment seems absurd. So, what - if any - is the solution to this contradiction?

And if we refer back to what the discussion was originally about (with a drunk driver as an example of someone who is held responsible for something they do while drunk), my point is that responsibility for drunk driving is not dependent on the driver consenting to laws. I think that's true for both moral and legal responsibility.

The body of law is set to define how consent can be modified. In Torchship's post as quoted I believe he misses the point. Laws define the conditions under which explicit consent is needed and when it can be given, since not every situation can be codified.

How can a drunk driver not have consented to the law? He must be of legal age to obtain alcohol, he has taken a test to obtain his license to operate a motor vehicle which explicitly states the driving under the influence of alcohol is forbidden. He has been made aware. Being drunk doesn't change that prior consent.

[Elliot]

How can a drunk driver not have consented to the law? He must be of legal age to obtain alcohol, he has taken a test to obtain his license to operate a motor vehicle which explicitly states the driving under the influence of alcohol is forbidden. He has been made aware. Being drunk doesn't change that prior consent.

My point is that consent is irrelevant, not that it is necessarily absent. Consent is not the source of your obligation to obey the law. Maybe the driver doesn't have a licence. Maybe he or she has never heard of laws about drunk driving. Perhaps a couple of high school kids found a caveman in their backyard, thawed him out, got him drunk and put him behind the wheel of a car. He is still guilty of an offence for driving drunk.

Really I think all this 'consent to the law' stuff is a red herring. The point was about 'consent' to one's own actions. If I drive a car right now, obviously I'm responsible for driving a car. If I drive a car while I'm sleepwalking, surely I'm not responsible for driving the car. Intoxication is going to come somewhere in the middle there. I think that was meant to be the point, although I don't really understand why we're using the word 'consent' to talk about it.

[Роберт]

The drunk driving thing is silly. It really has little to do with "consent". Consent (in this context) has to do with letting someone else do something they are not allowed to do otherwise. For example, you're not allowed to just punch people. But if you both agree to a boxing match, it's okay for you to start hitting each other (within the scope of the rules you consented to). That means that while you consented to being punched in the stomach, if they punched you in the groin, that's likely still assault.

I don't want to post wikipedia links in dear SB, but informed consent seems pretty obvious to me as well.

All these drunk driving analogies really have nothing to do with anything, and it should be obvious that 'informed consent' is important to have for many things, and consent that is not 'informed consent' should not really count, legally, as consent.

[lutzj]

How can a drunk driver not have consented to the law? He must be of legal age to obtain alcohol, he has taken a test to obtain his license to operate a motor vehicle which explicitly states the driving under the influence of alcohol is forbidden. He has been made aware. Being drunk doesn't change that prior consent.

My point is that consent is irrelevant, not that it is necessarily absent. Consent is not the source of your obligation to obey the law. Maybe the driver doesn't have a licence. Maybe he or she has never heard of laws about drunk driving. Perhaps a couple of high school kids found a caveman in their backyard, thawed him out, got him drunk and put him behind the wheel of a car. He is still guilty of an offence for driving drunk.

Really I think all this 'consent to the law' stuff is a red herring. The point was about 'consent' to one's own actions. If I drive a car right now, obviously I'm responsible for driving a car. If I drive a car while I'm sleepwalking, surely I'm not responsible for driving the car. Intoxication is going to come somewhere in the middle there. I think that was meant to be the point, although I don't really understand why we're using the word 'consent' to talk about it.

In the specific case of being tested for sobriety after being pulled over by a police officer on suspicion of driving drunk (i.e., not being guilty of the crime of DWI), you implicitly consent to being tested, by statute, by driving on public roads with a license. If you don't have a license, you theoretically wouldn't have consented to a field sobriety test (although obviously you'd get hauled to jail for driving unlicensed and could be tested there).

That means that while you consented to being punched in the stomach, if they punched you in the groin, that's likely still assault.

Eh, it's tricky. As long as people aren't getting maimed or killed, most well-run sports organizations try to keep their foul systems internal to keep their employees out of legal trouble (and most athletes would be less willing to compete if there was significant risk of legal trouble.) If your opponent were to commit a boxing foul against you, then that probably still isn't assault because it happened within the context of a sanctioned boxing match (and he can plausibly claim that it was an accident); if your opponent were to punch you on the way to the arena, on the other hand, they would probably be guilty of assault because that event is completely outside the bounds of the agreed boxing.

[Роберт]

Eh, it's tricky. As long as people aren't getting maimed or killed, most well-run sports organizations try to keep their foul systems internal to keep their employees out of legal trouble (and most athletes would be less willing to compete if there was significant risk of legal trouble.) If your opponent were to commit a boxing foul against you, then that probably still isn't assault because it happened within the context of a sanctioned boxing match (and he can plausibly claim that it was an accident); if your opponent were to punch you on the way to the arena, on the other hand, they would probably be guilty of assault because that event is completely outside the bounds of the agreed boxing.

I wasn't talking about organized sports, I was thinking more along the lines of informal stuff were there's no tons of legal documents signed. And it's certainly likely that the "victim" wouldn't press charges, he would just claim victory in the match since his opponent broke the rules.

It was meant as an analogy to sex - just because someone agrees to say, oral with a condom, doesn't mean it's not rape if it changes to something else against their will. I was avoiding talking about sex directly because we don't want this thread to devolve into what it usually does when we're talking about sex.

[lutzj]

Eh, it's tricky. As long as people aren't getting maimed or killed, most well-run sports organizations try to keep their foul systems internal to keep their employees out of legal trouble (and most athletes would be less willing to compete if there was significant risk of legal trouble.) If your opponent were to commit a boxing foul against you, then that probably still isn't assault because it happened within the context of a sanctioned boxing match (and he can plausibly claim that it was an accident); if your opponent were to punch you on the way to the arena, on the other hand, they would probably be guilty of assault because that event is completely outside the bounds of the agreed boxing.

I wasn't talking about organized sports, I was thinking more along the lines of informal stuff were there's no tons of legal documents signed. And it's certainly likely that the "victim" wouldn't press charges, he would just claim victory in the match since his opponent broke the rules.

It was meant as an analogy to sex - just because someone agrees to say, oral with a condom, doesn't mean it's not rape if it changes to something else against their will. I was avoiding talking about sex directly because we don't want this thread to devolve into what it usually does when we're talking about sex.

Ah, then I was probably being too nitpicky. You're right that going above and beyond what had been agreed upon beforehand generally removes oneself from the protection of the other person's consent.

I think in both cases it gets muddier when you violate the conditions of consent (or whatever conditions the other person takes for granted) in a way that doesn't directly harm the other person. This could include, in the boxing analogy, intentionally losing a fight. Do all breaches of the terms of consent void that consent?

[Роберт]

Eh, it's tricky. This could include, in the boxing analogy, intentionally losing a fight. Do all breaches of the terms of consent void that consent?

Actually, that could be a fun area to explore. In important legal contracts, they usually lay out specifically what happens if there's a breach of contract and what happens, right? I imagine in a case where the consent is not obviously laid out, it would have to be fought in the courts. Courts are for fighting out gray areas.

But yeah, my point was in general, if you're talking informal stuff... if don't ever intentionally breach the terms of consent and try to avoid risking doing so accidentally. If it happens, back up so it's easy for the other person to disengage. If you want to reneg the terms, make sure you do so in a non-manipulative way.

An example, informal boxing match, you go in for a punch just as your partner who just punched your head inexplicably jumps. You nail him right in the groin. Basically, accidental breach of the terms. You should not then take advantage of him being momentarily stunned by pounding him with legal hits, you should back off, and see what he wants to do next.

Or someone only wants you to touch their food if you're wearing gloves, because you have some bleeding open wounds on your hand. Your glove gets a hole in it....

For something that doesn't directly harm the other person? I'm not really sure what that means. If someone agrees to go on a scary roller coaster with you if you agree to go to a scary movie with them, they go on the roller coaster, then you chicken out and say you won't go to the movie... I'm not sure that's directly harming them but you're not exactly being a great, ethical person. I'm not expecting an legal repercussions for something on this scale, but you'll certainly risk alienating friends.

[HungryHobo]

the term "consent" seems to be getting used where "culpable" should probably be used.

you can be culpable for your actions even if you're not in a state to consent to things like a contract while you can also consent to things when you're in a state where you can't be culpable for your actions.

So you can drive drunk or commit other crimes and still be held culpable for your actions because even while drunk you're expected to retain the understanding of serious right and wrong.
People may be more forgiving of more minor things against which there is not such a strong social taboo so you may not be held culpable for , say, bursting into tears or saying really stupid things for which you would be held responsible if sober.

[selfassembled]

I never imagined my schmuck trap would snare the very first poster. Good job not reading!

Banned. At least for a little while.

I would prefer it if no one else tested out how little patience I have regarding this matter.

[CorruptUser]

Spoiler:

I never imagined my schmuck trap would snare the very first poster. Good job not reading!

Banned. At least for a little while.

I would prefer it if no one else tested out how little patience I have regarding this matter.

Never underestimate human impatience/stupidity/arrogance/curiosity.

Back OT

So you can drive drunk or commit other crimes and still be held culpable for your actions because even while drunk you're expected to retain the understanding of serious right and wrong.
People may be more forgiving of more minor things against which there is not such a strong social taboo so you may not be held culpable for , say, bursting into tears or saying really stupid things for which you would be held responsible if sober.

To me, it's not so much "still has mental capacity to decide right/wrong" so much as "everyone else suffers for it". It's in no way fair that someone should be at additional risk because someone else couldn't be bothered to pay for a taxi. So the punishments are there to try and be that extra weight when people are deciding on how to plan their evening of drinking.