Coerced consent

July 28, 2015

I wrote a paper years ago about the validity of coerced consent in Roman Law, which focused on the person coerced and what responsibility they had for their subsequent (coerced) act and whether that act was valid from an external point of view.  But it occurred to me this morning that I haven’t much thought about the consequences of the coercion to the person engaging in — doing —  the coercion.  I don’t have any particular desire to go see how Roman Law thought about this.  I do know that rule over Rome by kings ended with Tarquin’s and that he was overthrown (the paper took as its point of departure Livy’s telling of the story of Tarquin’s rape of Lucretia).  How I myself would think about it is that a coercer cannot expect the same consequences to flow from a coerced act as would flow from an act freely engaged in by the other person.  Or rather, while a person who has engaged in coercion can expect whatever they want, I don’t think the consequences to the coercer from a coerced act will be the same as the consequences to them from what looks like a similar act but is freely given.


20 Responses to “Coerced consent”

  1. Jeff in New Jersey Says:

    I am not sure I see your point, Diana, if there is a point.

    The strict logic of law, ancient and modern, has never effectively dealt with problems of coerced consent. Nor with “guilt by consent.” It was a Roman legal maxim that “he who does a thing and he who consents to it shall receive equal punishment.” And this is construed so that there can be “consent by silence or inaction” (if one has knowledge of the impending deed and a recognized responsibility.)

    In early English law, a woman who committed a crime in her husband’s presence was presumed to be acting under his influence and thus guiltless. The husband would be liable to punishment. No longer true. Katherine Kelly (wife of George “Machine Gun” Kelley) served eight years for living with her husband and in effect protecting him from discovery. There were several other cases of “gangster women” similarly punished. The most recent case was Carol Anne Fugate, who in 1958 was companion to murderer Charles Starkweather. Only 14 when confined, she was in a Nebraska prison until her mid- or late thirties before being paroled.

    All too often, the applicable doctrines represent the standard applied to rape cases: that the woman must be in reasonable fear of “great and immediate bodily harm” or will be presumed to have consented. There is a parallel doctrine to the effect that if the woman does not do what is reasonably in her power to prevent the act, “an inference may be draw she did in fact consent.” This ignores reasonable fear of what might happen if she does a particular thing “in her power.”

    You ought to read, “Every Secret Thing” by Patty Hearst. Her trial illustrates the serious problems with existing coerced consent legal doctrines.

    Now sixty, she was kidnapped while still 19, dragged so that skin was scraped off her legs, left tied and blindfolded in a dank, smelly closet with a radio blaring (so she could not hear conversations outside) and repeatedly raped. This lasted more than fifty days.

    There were attempts at political indoctrination. After a time, her captors offered her a choice: be released and go back to her family or join them. Demoralized and confused though she was, Patty saw through this and realized her real choice was to either join them or be killed with her body left where it would never be found. So to save her life, she joined them as sincerely as she was able to, fearing they would see through pretense or acting. Two members of the gang were reluctant to accept her. She had to be constantly “proving herself.”

    Yet despite all this, she was found guilty of crimes she participated in and sentenced to prison. No fear of “great and immediate bodily harm,” it was claimed.

    Perhaps not. Yet hard and strong professional soldiers were effectively brainwashed in the Korean War. Twenty-one refused repatriation, including a sergeant. There was also a Marine Lieutenant Colonel pilot who was shot down and captured. He signed a false “germ warfare” confession. When he returned, he was severely and personally reprimanded by the Commandant of the Marine Corps. He was allowed to retire, but had no more responsible assignments.

    If all these older and tougher people could not resist brainwashing techniques, how could we expected it of a young and inexperienced woman who actually believed she would be shot on sight by the FBI ? (That was actually done to Eddie Green, a genuine criminal, though unarmed and with his wife at the time.) Yet existing “coerced consent” legal doctrines do not allow that recognition. Even though military psychiatrists testified in Patty’s defense, the jury convicted her, and she was in prison until President Carter commuted her sentence to time served.

    Of course she had professional writing help with “Every Secret Thing,” but that would not degrade the integrity of her account.

    –Jeff in New Jersey

    • Diana Moses Says:

      I was focusing in my paper on the relations between the coerced and coercer in a transaction that normally requires consent to be valid (such as Roman marriage — “Consent makes marriage” and all that) or in which consent was coming to be seen as being relevant in assessing its legal import (stuprum under the Augustan moral legislation). The point in my post was that the coercion by the coercer changes the interaction between the two, even for the coercer, not just the coerced.

  2. Jeff in New Jersey Says:

    I am sure that is true, Diana, but a rather subtle and elusive point if going beyond the obvious meaning.

    There are many cases of coerced marriage on record where the woman accepted the situation, bore children, and refused to be “rescued” by those who could use force.

    There was a shortage of women in early Rome, and the Romans carried off (“rapio — rapere”) the Sabine girls. Realizing they would be treated with respect as Roman wives, they wanted to accept the situation and rejected the call to war demanded by their parents.

  3. Matthew Says:

    This is somewhat Hegel’s master/bondsman paradox, eh? One cannot realise oneself if the relationship is inherently unequal, and coercion implies an inherent power imbalance.

    On the other hand, humans are hierarchical by nature. If one consents to one’s role as subordinate and recognises that the ruler is legitimate and has one’s interests at heart/in mind, then I’d say it’s possible for one to act by coercion (as a consequence of an order from above) and consent (because one recognises in general (consents to) the authority of the ruler) at once.

    The I Ching says, “The mountain rests on the earth. When it is steep and narrow, lacking a broad base, it must topple over. Its position is strong only when it rises out of the earth broad and great, not proud and steep. So likewise those who rule rest on the broad foundation of the people. They too should be generous and benevolent, like the earth that carries all. Then they will make their position as secure as a mountain is in its tranquility.”

    The situation can also be illuminated by looking at the other side of the equation. Disobedience to a just law (ie. criminality) is wrong; whereas refusal to submit to an evil government is right.

    Meaning, the point is not coercion. All kings and governments (and parents, for that matter) coerce (exert power). Tarquin’s problem wasn’t that he ruled. It was that he ruled wrong.

    • Diana Moses Says:

      What I was interested in is the fly in the ointment, the flaw introduced by the coercion. If the interaction begins with coercion, that thumb on the scale affects what comes after, I think, affects the exchange over the long-term.

      • Matthew Says:

        I don’t see it that way. Many things compel us. Our own instincts and desires compel us; sometimes they lead us astray. Coercion compels us too. That’s life. What makes one form of compulsion inherently different from the rest? That logic requires seeing ourselves strictly as ego, as separate, rather than part of a greater whole.

        If the goal of the coercion is good, then, generally, the coercion is good. If the goal of the coercion is bad, then the coercion is bad. The point is not the means of coercion; it’s the end. That’s not to say the means can’t be problematic if they don’t suit the end; ie. one can go too far, and, conversely, one can also not go far enough.

      • Diana Moses Says:

        I am saying it changes things, that a transaction with coercion is different and has different dynamics from a transaction without it, yet people seem to expect the results to be the same in ways they won’t be, from what I can see.

      • Matthew Says:

        Sure, it changes things, but that doesn’t mean it’s a flaw. What is law (eg. crime and punishment, the police, etc.) without coercion? And what is a violation of the law if not another form of coercion? Is coercion by the state intrinsically, morally different from coercion by your fellow citizen? What about passive coercion, like advertisement and other forms of seduction?

      • Diana Moses Says:

        In a Roman marriage, based on consent, I would see it as changing the rest of the arrangement, and not for the better, for example.

      • Matthew Says:

        Of course, but now we’re just going back to saying coercion is inappropriate in some contexts, towards some ends. That is not an indictment of coercion itself.

        Also, consent is not so simple. It can be challenged by more than just overt compulsion (see seduction/persuasion, deception, secrecy, etc.). Further, how do the concepts of consent and coercion apply to instinctual phenomena (ie. the subconscious/unconscious)? That is, what is the relationship and where do you draw the line between self-consciousness/deliberation and impulse?

        It just seems hopelessly reductive and arbitrary.

      • Diana Moses Says:

        My point was mainly that coercion changes things.

        In some contexts, if one is operating on a plane in which issues such as coercion and intent don’t exist, one can get the transaction to proceed in the same way it would have proceeded without the coercion (or without an intent that the other person would otherwise have reacted to). That can make someone we might usually seek to dismiss as “evil” look more like a hungry baby trying to get their needs met. And that, in turn, might allow the next phase of the interaction, or of a cycle, to proceed in a more helpful way. But if we don’t recognize the contribution of coercion to the situation, we won’t be looking for a solution that filters it out.

      • Matthew Says:

        “filters it out” is question begging. I think the disconnect here is you’re using the word far more narrowly than it actually means. I don’t see coercion as intrinsically negative and something to be avoided (filtered out). Coercion is a stop sign or a red light. It’s a quarantine during a pandemic. It’s arresting and convicting a rapist or murderer. And that’s just overt, restrictive coercion. It extends far beyond that (eg. positive and passive coercion too). A green light is also coercive.

        Yes, some coercion is bad, just like some consensual actions are bad; but some coercion is good and necessary too.

      • Diana Moses Says:

        I think you’re talking about something different from what I’m talking about. There’s a difference between a kid with a lemonade stand with a sign, and one with a sign and who also asks whether you’d like some, and one with a sign who picks your pocket and puts a cup of lemonade in your hand. What I’m talking about is what difference differences like those make. Some of the scenarios you raise involve more than 2 parties. I am talking about 2-party interactions.

      • Matthew Says:

        Right, I think, perhaps, the word “con” is simpler (lit. against) and more apt here. Currency is more than just material and money; it’s energy flow. If the energy generated/received is negative (against), because the other person feels bad about the interaction, then healthy currency (mutuality) is not there. The con suffers because he receives and manifests that negative energy (negative currency is like a debt?). It’s similar to the master/slave problem – we realise ourselves in others, and if one realises oneself as one who exploits others, what kind of realisation is that? Hell is a guilty conscience.

      • Diana Moses Says:

        Interesting way of looking at energy exchanges. I guess what I see is that if the energy is being passed back and forth, whatever way the coercion affects the energy will affect the energy that will be passed back from the coerced.

  4. Jeff in New Jersey Says:

    I tend to agree with Matthew, Diana. Now that you have made your point clear (coercion somehow changes the relationship of the parties and subsequent conditions) it can be seen that this would be true almost by definition.

    But is it the real issue ? As Matthew points out, there are degrees of coercion, and coercion cannot be presumed to be good or bad, any more than “non-violent offenders” (who may be quite callous, having brought about many deaths indirectly) should be first in line for release from prison. I do not buy that, knowing how harmful narcotic addiction is.

    Matthew gives examples showing that coercion in a relationship is not a clear and definite thing, but may even participate of unconscious motivation. It raises basic issues as to freedom of the Will, and how that should be defined.

    A woman forced into marriage may have been “on the fence” subconsciously, realizing the quality of the man even if a foreigner commonly perceived as an enemy, or outside her religion. Later she may indicate she loves her husband and is entirely happy with him.

    Does that not “erase” the effect of coercion in the beginning?

    • Diana Moses Says:

      I don’t things get erased, although I think they can be transformed.

      If we put aside whether something is good or bad — coercion, a relationship that had an element of coercion at its beginning — maybe we can see that what is going on is different. Scrambled eggs with salt taste different from scrambled eggs without salt. I could make the case for either dish (if the other food is salty, maybe bland eggs are a better fit) but they are different in taste.

      And be careful about introducing a third party again — arranged marriages surely have one, namely the family members making the arrangements.

      • Matthew Says:

        As far as the individual’s consent is concerned, is there a real moral difference whether the coercion is singular vs. that of a group? Does popularity make right? Does consecration in law (a few men and/or women get together and declare something as such) make right?

      • Diana Moses Says:

        I don’t think I am talking about “moral” differences, I think I am just talking about how consequences are different — more like how the different scenarios are more like different chemical reactions.

      • Matthew Says:

        Fair enough. Bilateral coercion does catalyse the reaction in a way that is unique, but that’s true of other motivations (catalysts) as well, and for that matter, every other variable present (unique equation).

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