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Archive for Friday, October 22, 2004

Assigning blame

October 22, 2004

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To the editor:

In an Oct. 9 letter to the Lawrence Journal-World, Michael Riley notes that, in the now well-known rape case, Judge Paula Martin said that the 13-year old was an "active participant" in sex. If she was an active participant, then she consented. Under the law of statutory rape a 13-year-old cannot consent to sex. Riley concludes that Judge Martin's view is "a contradiction of law and common sense."

In many areas of life, we need a distinction between mere consent and morally or legally valid consent. Valid consent requires that the consent be informed and fully voluntary, and that the person who agrees is competent. This requirement can invalidate agreements (whether to engage in sex or in other matters) in which the other party did not disclose certain relevant information (think of medicine and real estate), or in which consent was given under duress, or in which one party is a child, or mentally ill or retarded.

Neither Martin nor her defenders are claiming that just because mere consent was given, this sexual interaction was not wrong. However, surely mere consent can make a difference in assigning degrees of blame and penalties to wrongful acts. It seems reasonable to distinguish between a 13-year-old who is raped at knife-point and this case. In addition, it seems reasonable to distinguish between the acts of 19-years-olds and the acts of older males who are, because of age, often less stupid.

Don Marquis,

Lawrence

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