Counsel Sometimes Required In Civil Contempt Cases

The U.S. Supreme Court held today that there is sometimes a right to counsel in civil contempt case, typically brought to secure compliance with child support orders by imprisoning self-employed people or people who have access to assets beyond the reach of the court's jurisdiction (such as funds in an asset protection trust) by incarcerating them until they comply.  Civil contempt remedies are available in a wide variety of civil cases, but is rarely permitted in ordinary debt collection cases and in other cases (typically involving alleged violations of court injunctions), the parties typically are not indigent and have or have access to legal counsel.


Typically, in these cases, the critical issue is whether there is an ability to comply with the court order.  Incarceration for non-payment when there is a mere inability to pay (a remedy once called "body execution") is an unconstitutional debtor's prison remedy. 

The existence of the child support judgment and the fact that it has not been paid is typically self-evident from the record.  But, the existence of income not succeptible to garnishment, or of assets that cannot simply be levied upon with a writ of execution is often hotly contested.  The fact that a mistake on this point renders the incarceration not just inaccurate but unconstitutional makes the stakes particularly important.

I've handled both sides of such disputes for clients myself, and while the black letter law of contempt proceedings is fairly clear, judges and the sheriffs who manage the incarcerations are often confused by them because they are outside the ordinary criminal procedure mold that governs the vast majority of incarceration cases.  The contempt of court remedy is often a critical safeguard in securing compliance from the most evasive and dishonest child support debtors, but is sometimes applied inappropriately to punish people who truly are simply unable to pay, rather than merely unwilling to pay.  For whatever reason, child support debtors are among the most common to refuse to personally acknowledge and concede that they owe a debt even after court rulings to the contrary, so these cases are among the most contentious forms of debt collection actions.

The high court found that while incarceration of people for civil contempt can be allowed in some court systems where there is pro se party friendly environment that calls attention to the critical issues at the hearing and provides a simple form driven way for the unrepresented person to participate in the process, that such incarceration is unconstitutional without a right to counsel provided at state expense when the court system is no friendly to pro se parties or is too complex for an unrepresented person to handle.

Thus, while the South Carolina civil contempt process at issue in  the case before the U.S. Supreme Court failed the test, it is entirely possible that the due process protections for the same kind of proceeding in Colorado might meet the high court's due process standards.

The 5-4 ruling is a departure from most past rulings of the U.S. Supreme Court on procedural due process requirements, which have typically imposed a clear bright line rule in a class of cases, rather than setting forth a more generalized standard to apply on a court system by court system, or even case by case basis.  The conservative dissenters would have found that there was no right to counsel in these cases.

Since state governments, almost to a one, are currently in a very tight fiscal situation and would be hard pressed to pay for court appointed counsel in these cases, the likely response to the ruling will be for state court systems to develop pro se party friendly court procedures for run of the mill child support contempt of court cases.

READ MORE - Counsel Sometimes Required In Civil Contempt Cases

Is Collateral Damage Old News?

Accuracy, Assassination, Apples and Oranges

Kenneth Anderson at The Volokh Conspiracy (in a characteristic comment free post), argues that the law and ethics of war is shifting from "proportionality" to "necessity" because with drone deployed missiles, "the technology is getting more and more precise, and when Panetta says the drone targeted kiling technology is the most precise thing in the history of warfare, I think it is basically right and getting more so with new technological developments. That is relative, however — relative to the realistic alternative uses of force, not by comparison to zero."

Certainly, in a very narrow technological sense, guided weapons, be they smart bombs, guided missiles or guided artillery shells are much more accurate than the long range unguided bombs and unguided artillery shells that preceded them. The new weapons can hit smaller targets at greater distances. Bombers and artillery do not destroy adjacent neighborhoods when trying to destroy military targets, nearly as often as they once did.

But, the problem is how these weapons are used, which creates an apples and oranges issue. Traditionally, unguided bombs and artillery rounds were used in the context of pitched military v. military battles, or attacks on the industrial capacity of cities. Assassination, a tool of war and terrorism whose polite name is now "targeted killing" was historically carried out by individuals, face to face, with small firearms or other personal weapons.

Civilized countries mostly didn't admit to engaging in assassination in past eras, and collateral damage in an assassination generally involved a handful of people in the same public place of the target at a time chosen because it was the only time when the assassin not privy to the inner sanctum of the target could get a shot at the target.

Now, drones are used by the CIA to assassinate targets in their homes, and this produces far more collateral damage than traditional methods of assassination, and the individuals killed in collateral damage are far more likely to be completely innocent children, spouses, extended family members and household servants than they are to be professional colleagues of the target who may not be so innocent themselves in the eyes of the entity directing targeted killing, as was the case in traditional assassinations.

Thus, the same technology that has reduced collateral damage in conventional military conflicts has increased the collateral damage associated with assassinations, which have become increasingly common.

Assassination of a particular enemy combatant during an active and declared war is presumably encompassed in the larger notion that killing enemy combatants during war is justified. But, since assassination has historically been a fairly minor tool of warfare and is increasingly becoming an important one, re-examination of that tactic as it presents itself in modern conflicts is in order.

Distinguishing War From Crime

Related is the larger problem with using a "warfare" frame to address conduct that would traditionally be viewed as "crime." In a "war" context, we demand far less certainty of culpability, and far less individual culpability to kill than we do in a "crime" context where we require "probable cause" to search or seize someone, allow the use of force only when exigent circmstances or defiance of announced legitimate legal authority makes it necessary, and view an individual as eligible to be killed only when individually culpable.

The whole notion of "lawfare" is based upon the implicit notion that the courts are an inappropriate place to adjudicate matters of "warfare."

But, of course, the real legal issue is not whether courts should run wars, but when activities that the government chooses to describe as "war" in an opportunistic way for the express purposes of circumventing legal limitations of the use of force and government authority really are "war." Can Congress dispense will all of the constitutional criminal procedure rights simply by declaring war on common criminals?

When war is declared, as it was by Congress in the Authorization to Use Military Force in 2001, on non-state groups and those who aid them, rather than on a foreign state, it becomes far less trivial to determine who is an enemy, and who is a combatant. Critics of "lawfare" argue for a very broad deferrence to the government as it seeks to determine who is an "enemy" and who is a "combatant," with the de facto sole arbiter of the decision in most cases being some CIA employee with little or not practical accountability to anyone, not even the accountability inherent in a military chain of command.

The British MI6 may have personal licenses to kill from the Queen, but generally, the U.S. theory by which our spies are authorized to kill is not so absolute.

The Dormant Treason Clause

Yet, we have reached the point when even a Democrat who was critical on the campaign trail of the war on terror tactics used by President George W. Bush, asserts the right to determine without any due process that a U.S. citizen is to be assassinated on the grounds that the government views him as an enemy combatant.

This seems to cross a line. Traditionally, an enemy is a citizen or subject of a state upon which you have declared war, and once you determine that someone is an enemy, you then determine if he is a combatant. In contrast, your own citizens or subjects are never "enemies" per se, in the law of war sense. Instead, they are loyal citizens or traitors who are engaged in treason. But, the U.S. Constitution defines treason as a criminal, rather than law of war matter, defines the crime, and sets forth the means by which it can be proved.

The line created by the constitution seems a sensible one. Citizens or subjects of enemies in declared wars are subject to the laws of war applicable to combatants and non-combatants respectively. One's own citizens and subjects are not enemies and are subject to criminal laws subject to due process. The place where a person happens to be is irrelevant, and the "dormant treason clause" implicitly forbids the United States from declaring war on U.S. citizens, even if they provide aid and comfort to an enemy on whom war has been declared.

This clear bright line may be complicated in cases of rebellion and insurrections, such as the secession of the civil war, or a genuinely domestic insurgency that must be countered. But, there is no good reason that the more difficult questions of a domestic insurgency need to be addressed under the constitution at this point, because there is no indication that the United States has a genuinely domestic insurgency. The War on Terror authorized by the 2001 AUMF is a foreign war just like any other except that it was declared on a non-state foreign terrorist organization (the 9-11 organization) in addition to an aspirant claimant to state actor status (the Taliban), not a domestic insurgency.

The notion that U.S. citizens abroad should have fewer constitutional protections from action by the U.S. government than they do at home doesn't seem to have any solid legal basis. It is a convenient invention out of whole cloth.

Certainly, the U.S. military can be forgiven for treating a U.S. citizen as an "enemy combatant" when they did not in fact know that the person was a U.S. citizen and had no reason to suspect that this was the case. The odds that some random individual involved in an anti-U.S. terrorist group in Yemen or Afghanistan just happens to have been born in the United States and is a U.S. citizen are very low and there is no scientific test one can do to determine U.S. citizenship. It depends on events that may be remote in time and place and unknowable to a casual observer. But, when the U.S. government actually knows that someone is a U.S. citizen, applying the laws of war seems inherently unconstitutional.

READ MORE - Is Collateral Damage Old News?

A New Era In Egypt

"President Hosni Mubarak has decided to step down as president of the republic and has assigned the Supreme Council of the Armed Forces to run the affairs of the country," Suleiman said. "May God help everybody."

While Egyptians applauded themselves for toppling Mubarak, his fate was sealed by the military, whose leaders had promised not to use deadly force to put down the rebellion.

Earlier in the day, Egypt's military chiefs said they would guarantee a transition toward "free and honest" elections. But Suleiman's statement left unsaid how that would work, and who precisely would take charge in the interim.

In a televised statement Friday night, the military pledged that it would not act as a substitute for a "legitimate government" following Mubarak's resignation and would take steps to meet the people's aspirations. Reading the statement, a military spokesman praised Mubarak for his contributions to Egypt and hailed protesters who have died in the anti-Mubarak demonstrations.

Egypt's Supreme Council of the Armed Forces includes the top service commanders led by Lt. Gen. Sami Enan, the armed forces chief of staff.

From here.

Thursday night, Mubarak, the 82 year old man who had been dictator of Egypt for thirty-one years pledged to stay in office until regularly scheduled elections in September, something that the Egyptian military had reaffirmed that he would do Friday morning. But, when this, along with Mubarak's appointment of a Vice President after leaving himself without a successor for years, and Mubarak's pledge that his son would not run for President after him fell flat, the military apparently intervened, got the newly appointed Vice President to announce a "resignation," and shipped Mubarak and his wife to a resort as close to the Saudi Arabian border as one can get without leaving the country. Eighteen days of street protests, triggered by the Jasmine Revolution in Tunisia, had secured a new regime. With Mubarak finally gone, the crowds were pleased for once.

Mubarak is gone, not only because the people rose up, but because the Army refused to back him up any longer. When the protests began, police killed several hundred protesters. But, the Army refused to fire on its own people and got the police to back off as well.

Recent Political History In Egypt

Egypt's recent political history can be summed up as follows: Egypt, then a tributary state of England under King Farouk (England became its colonial ruler in 1882 and granted increased independence in stages in 1914, 1922 and 1936) declared independence in 1951. King Farouk was ousted in an uprising in 1952 that left Lt. Col. Gamal Abdel Nasser in charge, a position that was ratified in a democratic process thereafter. Under Nasser, from 1958 to 1961, Syria and Egypt were joined in the short lived United Arab Republic from which Syria seceded. Nasser's Vice President, Anwar Sedat replaced him when he died in 1970. Sadat was assassinated from Muslim extremists in the Army in 1981 when he was replaced by Hosni Mubarak who was in turn replaced today. No Egyptian leader in living memory has ever left office voluntarily or via a democratic election.

But, there is good reason to be optimistic and believe that the military junta in Egypt will promptly hold free and fair multi-party elections, that democratically elected representatives will form a civilian government in Egypt, and that Egypt will start to have a Western style parliamentary republic with an Islamic flavor. There is also good reason to expect that in the short term, that the new civilian Egyptian government will be too preoccupied with domestic affairs to consider international military adventures such as threats to Israel.

Eygpt is not the country that it was when Mubarak seized power three decades ago. It has a military more interested in running its business ventures than fighting foreign wars, so long as domestic tranquility can be maintained. Like many nations in the developing world, it has not been so closed that its people are unaware of what kinds of governments and political developments prevail in the larger world, its businesses are actively engaged in foreign trade and millions of Egyptians work abroad where they have experiences that they can relate to friends and family when they come home. Unlike some countries in the region, Egypt has a genuine middle class that gives it economic clout apart from oil revenues. Egypt has lacked free and fair elections, and it has faced strict state of emergency restrictions on political activity for a very long time, but despite those limits, a vigorous civil society has developed. Many of Egypt's senior military officers, through exchanges begun after the Camp David accords in 1979, have spent time in the United States mingling with American military officers. The protests that brought down the regime were facilitated, in part, via Facebook and were triggered by widely available news coverage on networks like Al-Jazzeria, of the uprising in Tunisia.

One party rule may have seemed like a pretty good idea at the time when it became the norm in Syria, Egypt, Iraq and elsewhere across the non-monarchies of the region. It may even be that truly democratic parliamentary democracy was an unrealistic expectation at that point. One party rule was working in the Soviet Union and China, and it wasn't yet clear that the leaders of the one party states would themselves be entrenched indefinitely. But, by the time that Tunisia set off the current round of democratic uprisings, this form of government had been discredited after decades of experience in newly independent nations around the world. Muslims in Turkey, Albania, Iraq (and before that, Iraqi Kurdistan), Palestine, Kosovo, Iraq, Afghanistan, Indonesia, Bangladesh, Pakistan, Jordan and Iran were all trying to conduct at least partially democratic government with at least intermittent success. Certainly, the notion of a Muslim nation with a parliamentary democracy was no longer considered an oxymoron.

What Next?

The Egyptian Army's best model may be Turkey, where the military sees itself as the guarantor of a secular, democratic state and has been successful more often than not.

I expect that the civilian constitutional order that comes into being in Egypt won't be a very creative one. The Army and civil service will probably continue uninterrupted. The restrictions on civil liberties imposed via "emergency rule" during Mubarak's regime will end. The existing non-democratically selected President and parliament of Egypt will probably remain, but with multi-party democratic elections (modeled on the proportional representation systems found in most of the world rather than the two party single member ditrict system of the United States) and somewhat different respective powers.

What About Israel?

Egypt and Jordan have both committed to making democratic reforms, although the extent of these reforms in each nation is still in flux. This may make the time ripe for rethinking the relationship between the Israel, the Palestinian territory of Gaza, and the Palestinian territory of the West Bank, each of which have weak civilian elected self-government.

Revelations from Wikileaks show that Israel is not really interested in a peace deal with the Palestinians, rather than the other way around as conventional wisdom had long held. What Israel does need is a guarantor that the Palestinian territories won't be used as based of operations for attacks against it. Prior to the latest reforms, Israel has relied on Jordan and Egypt to be neutral towards it and prevent undue smuggling across the border, and the monarchy and dictatorship in these nations respectively have not made them very attractive regimes to the Palestinians. But, should Jordan and Egypt become successful functioning democracies, there may be room for a win-win-win solution if the West Bank merges with Jordan and the Gaza Strip merges with Egypt.

Jordan and Egypt both have regimes that are more competent than either of the Palestinian territories, and hence more able to suppress attacks against Israel from those territories than the current regimes in Palestine, and Jordan and Egypt both have more of an interest in doing so than the Palestinian territories standing alone. As democracies that actually work, Palestinians may now find their neighbors more desirable political entities to be a part of than their own marginally democratic and incompetent locally elected governments. Links to these nations would make possible the levels of trade that would allow the West Bank and Gaza to have functioning economies; something that is impossible in embargoed international aid supported states. Also, Jordan may be better able to negotiate Israeli withdrawal from its West Bank settlements and better able to protect that territory from further Israeli encroachment than a semi-sovereign autonomous Palestinian government within Israel. Jordan and Egypt would each gain territory and people, the classic measures of sovereign clout. Also, from an Israeli perspective, while Middle Eastern historical memory may be long, an end to a distinct Palestinian political entity recognized on the international scene may eventually defuse Palestinian nationalism - a generation from now, the children of today's Palestinians may seem themselves as Jordanians and Egyptians respectively.

Some Recent History of Coups

Military coups, which is what the events in Egypt amount to so far, however, characterized, are neck and neck with elections as the most common means by which countries secure new leaders in most of the world. Sometimes they support popular uprisings against dicators, sometimes they suppress democratic governments.

Coups have been the norm for Egypt's neighbors not fortunate enough to have monarchies. Libya's current leader, Muammar al-Qaddafi seized power in a coup in 1969 and is still in power there. Syria's Baath party took power in a 1963 coup, in a regime that installed Hafez al-Assad as President in 1971, a post he continued to hold until his death in 2000 when his son Bashar al-Assad succeeded him and remains in power today. In Sudan, a revolutionary council declared independence and installed Gaafar al-Mimeiry as President until he was replaced in a 1985 coup, followed by a 1986 democratic election, followed by the 1989 coup that installed its current leader General Omar Hassan Ahmad Al-Bashir. Algeria won independence in 1962 with a democracy that lasted until a coup in 1965 that installed Houari Boumedienne who ruled until his death in 1978. Demonstrators with Army support backed a coup in Ethiopia that deposed Emperor Haile Selassie in 1974, with succession handled via coups and uprisings until Ethiopia's first multi-party general elections in 1995. Iraq's King Kaisal was killed in a 1958 coup, after which the Baath party gradually gained control' Saddam Hussein became President as the Baath party leader and ruled Iraq as a dicator from 1979 until 2003 when he was deposed in the U.S. invasion.

Coups aren't so far in the past even in Europe and the developed countries of Asia.

Portugal has a military coup in 1974. Spain has had continous democratic government only since 1977 and had a coup attempt that was put down by King Juan Carlos in 1981. Greece had a coup in 1967 and Cyprus had one in 1974. Turkey had coups in 1960 and 1980 and the military remains a powerful political force there, primarily as a guarantor of secular government. The military attempted to remove Mikhail Gorbachev in a coup in 1991, which was foiled with the help of Boris Yeltsin.

South Korea's initial authoritarian leader, Dr. Sygnman Rhee, installed in 1948 was forced out by an uprising in 1960 which was followed by a 1961 coup that installed General Park Chung Hee who retained power until he was assassinated by the chief of the Korean CIA in 1979 when a military coup installed General Chun Doo Hwan, the head of military intelligence, and he ruled until pro-democracy demonstrations in 1987 pushed him to conduct democratic elections that installed his ally Roh Tae Wood. Chun and Roh were convicted of mutiney, treason and corruption in 1996, after Roh was replaced in a new election in 1993, but were pardoned in 1997.

Indonesia won independence in late 1949 and elected President Sukarno in 1950; he suspended parliament in 1960, made himself President for life in 1963, thwarted an attempted coup in 1965 and was forced out by the Army in 1967 when General Suharto took power and ruled for the next thirty one years. Protestors ousted him in 1998, and his Vice President ran democratic elections that installed a successor in 1999. The new President was impeached for corruption and incompetence in 2001 when Megawati Sukranoputri, the daughter of Sukarno became Indonesia's President. She was replaced by a retired general, Susilo bamabang Yudhoyono in a democratic election in 2004. Indonesia's two successive democratic elections makes it arguably one of the most democratic predominantly Muslim nations in the world.

Bangladesh, after securing independence from Pakistan in 1971 had a coupl in 1975, an unsuccessful coup that caused the death of the incumbent President in 1981, and a military backed caretaker government in 2007, interspersed with democratic elections.

After being separated from India in 1947, Pakistan had a coups in 1977 and 2001 which put president Musharraf in place, after which he ruled until a threat of impeachment by parliament led by his assassinated political opponent's widower (who herself was the daughter of the President who was outsted in the 1977 coup and executed by that regime in 1979) ousted him in 2008.

Of course, the historical record makes clear that many coups, even when fueled by popular uprisings, do end up evolving into new dicatorships, even if ratified in genuine democratic elections the first time around. But, given that the alternative had been a likely transfer of power to Mubarak's son in an emerging monarchy, it is a risk that it is worth Egyptian's effort to take.

READ MORE - A New Era In Egypt

Sexual Freedom v. Freedom From Exploitation

Anyone who reads this blog with any regularity knows that I have strong opinions on a great many issues. But, now and then, a case comes along that is so hard to evaluate, that it is very hard to see a right answer. The case of the 41 year old British man with an IQ of 48 who was in a same sex relationship and banned from having sex is one such case. It presents hard issues that are worth grappling with in a situation that is unfamiliar to most of us.

The Facts

The facts, insofar as we know them are as follows:

The 41 year-old [man] had been in a relationship with a man with whom he lived and told officials "it would make me feel happy" for it to continue.

But his local council, which provides his accommodation, decided his "vigorous sex drive" was inappropriate and that with an IQ of 48 and a "moderate" learning disability, he did not understand what he was doing. . . . the man known as Alan was described as being physically able but "seriously challenged in all aspects of his mental functionality". He lived in a home provided by the council, where he developed a sexual relationship with a man called Kieron by the court. Alan was also accused of making lewd gestures at children in a dentists' surgery and on a bus, although no police action was taken.

An IQ of 48 is a level of intellectual functioning lower than 99.8% of the general population, and is commonly described as "moderate mental retardation" per the DSM-IV. It is roughly equivalent to having the mental abilities of an eight year old child.

The Law

The law in Britain gives the state broad powers in such a case: "Under the Mental Capacity Act 2005, [judges on Britain's Court of Protection] have the power to make life-or-death decisions for people deemed to lack the intelligence to make them for themselves - such as ordering that they undergo surgery, have forced abortions, have life-support switched off or be forced to use contraception."

In Colorado, and most U.S. states, an individual in this situation would probably have a legal guardian appointed for him under the supervision of a general jurisdiction or probate court or some other court with comparable equity jurisdiction (a type of jurisdiction named after the British courts that once, but no longer, have jurisdiction over these kinds of cases). In Colorado, a guardian's authority can vary from case to case as set forth in a judge's order, although at common law a guardian of an adult had rights comparable to the rights of a natural parent's rights when that parent's child is in the parent's custody.

In other words, while the issue would present itself somewhat differently, a U.S. court could probably grant a guardian of an adult with an IQ of 48 the right to decisions similar to the ones made by the Court in this British case.

Procedural History

The town hall began court proceedings in 2009 to restrict contact with Kieron on the grounds that he lacked mental capacity, and an interim order was made. . . . A psychiatrist involved in the case tried to prevent the man being given sex education, on the grounds that it would leave him "confused".

Mr Justice Mostyn said the case was "legally, intellectually and morally" complex as sex is "one of the most basic human functions" and the court must "tread especially carefully" when the state tries to curtail it.

But he agreed that the man, known only as Alan, should not be allowed to have intercourse with anyone on the grounds that he did not have the mental capacity to understand the health risks associated with his actions.

Under the judge's order, the man is now subject to "close supervision" by the local authority to ensure he does not break the highly unusual order. The judge concluded: "Alan does not have the capacity to consent to and engage in sexual relations.

"In such circumstances it is agreed that the present regime for Alan's supervision and for the prevention of future sexual activity is in his best interests."

"Since then Alan has been subjected to close supervision to prevent any further sexual activity on his part," said the judge.

Analysis

There are good reasons to be skeptical of this kind of court order. The eugenics movement sponsored movement in the 20th century to sterilize the mentally retarded is generally seen as a class historical instance of government exploitation of vulnerable individuals. There is also a history of government abusing its authority to punish gays in the name of mental hygiene. Some high profile cases in Britain involving prominent intellectuals are particularly notorious.

On the other hand, the exploitation, sexual and otherwise, of people who don't have the capacity to consent intelligently to what people ask of them is also a long standing problem. A central theme of Steig Larsson's Millennium Series (which starts with "The Girl With The Dragon Tattoo") is that vulnerable people, such as wards with guardians appointed for them and illegal immigrant women are subject to a horrible injustice when they are sexually exploited. Sexual exploitation is sufficiently common in this situations that in the popular imagination, at least, at is seen as almost the unpleasant norm in prisons, foster care situations, and households where an impoverished single mother lives with a boyfriend unrelated to her children.

We have statutory rape laws that declare that children under a certain age are incapable of consenting to sex and that someone who does so has committed the crime of rape. While those laws can be controversial when applied to high schoolers who are past puberty and routine have sex with each other, there is a wide consensus that they are appropriate when applied to pre-pubescent children. Likewise, while there is intense controversy over the harsh sentences imposed for people who merely view child pornography, and over the near criminalization of innocent child nudity, there is widespread consensus that it is a serious crime to use pre-pubescent children to create pornography or to pimp out pre-pubescent child prostitutes, and that there is a genuine government interest in destroying the economic market that drives its creation.

Certainly, there would be a very wide consensus that is would be a serious crime for an adult to have sex with an eight year old, regardless of the sex of the parties involved.

But, there are many important ways that a 41 year old is different from an 8 year old, even if they have similar mental capacities. Adults routinely have sex for pleasure. Many adults men are gay or bisexual. Eight year olds have genuine opinions and feelings and are capable of engaging in surprisingly sophisticated relationship, of understanding differences between right and wrong to a considerable extent, and consenting to a variety of agreements. Most parents allow their eight year olds to make many choices about their clothes and room decor and food to eat when eating out, to largely choose their own friends at school, and to spend small amounts of money as they see fit. Eight year olds can play baseball and board games, can hug each other and family members in genuine expressions of love, and make many other decisions for themselves.

Even though statutory rape is often theorized as an incapacity to consent, there is really more to it. Pre-pubescent children aren't just intellectually incapable of consent, they are hormonally and physically not yet at a stage of development where their bodies are ready for sex.

Statutory rape laws for adolescents, which were almost universally adopted initially with the understanding that they would pertain to adolescent or adult men seeking to have sex with teenage girls, were also rooted in the concern that teenage girls due to their youth and adolescent impulsivity are especially vulnerable to making impulsive bad decisions that have the potential to carry with them the serious long term consequences of pregnancy, parenthood and quite possibly either a shotgun marriage for life or a lifetime in which one is unmarriagable and destitute as a result.

A different way to view statutory rape laws, that is gaining increasing credence, is to view statutory rape not as an incapacity to consent in the same class as a stranger drugging you and then having sex with you, but as a distinct subset of cases where someone in a position of trust (by virtue of being an adult in states where there is a Romeo and Juliet exception) abuses that position of trust. In this view, statutory rape is less like a date rape drug case and more like a sexual harassment of a subordinate employee case. The gravamen of the wrong is abuse of power within a relationship by someone whom we presume under the law should know better than to do so.

There is also a widespread view that sexual relationships carried on by someone who isn't ready for them or capable of "truly understanding" what sex involves (do any of us ever really reach that blissful state) will inflict intense psychological trauma that will destroy a person's entire well being, also making it far more serious than other kinds of things to which one might consent.

If a 41 year old man who is physically ready for sex, and perfectly well could be homosexual or bisexual, is voluntarily (to the extent that his eight year old intellectual capacity permits) having sex with another man and enjoying the experience, who is to say that it really is wrong?

This man doesn't appear to be suffering from psychological trauma. He doesn't have to worry about having children or being rendered unmarriagable or forced into a marriage that can't be legally terminated. His body, and no doubt his hormones, are ready for sex and have been for decades. Finding someone who is ready and willing to satisfy his sexual drive probably isn't very easy for a 41 year old with an IQ of 48 who lives on welfare in public housing. It is certainly plausible that Alan is gay or bisexual (indeed, by some definitions his acts and words are sufficient to say that this is true as a matter of definition), that the relationship between Alan and Kieron is as sincere, voluntary, loving and non-exploitative as the sexual relationship between any two single adults, and that the town's intervention is simply a case of an inability to genuinely come to terms with the idea that two men can have legitimate, loving sexual relationships. There are certainly strong hints in this case that this is what is happening in this situation.

On the other hand, it certainly wouldn't be implausible that Kieron is an evil hearted, exploitative manipulator who has managed to get Alan to say things that hide Alan's inner feelings of pain and being used and compelled into something that makes him uncomfortable that Alan isn't capable of articulating to legal system officials in that kind of atmosphere and that Alan has no sexual attraction to Kieron, but has trouble distinguishing between sexual attraction and the kind of platonic physical contact that is normal between eight year old boys.

While Kieron's motives aren't the center of the court's inquiry, which is really about what is best of Alan, it is certainly possible to see Alan as being in a position a bit like someone who is acting happy because he has been tricked into thinking that he has formed a relationship that was really just a scheme to make him the butt of a cruel joke and doesn't know it yet, but is sure to be furiously angry and miserably sad when he realizes it.

By analogy, contrary to common belief, a large share of bona fide childhood sexual abuse victims have trouble remembering the incidents because they weren't as aware of the special meaning that our culture attaches to sexual contacts at the time, and feel the bulk of the psychological trauma that they experience not when the sexual abuse actually takes place, but when they get old enough to gain an understanding of that special meaning and finally realize that an adult whom they trusted exploited them all those years ago. A reasonable person could fear that Alan is at grave risk of experiencing a similar kind of traumatic realization and suffering dearly at a psychological level when and if that happens.

If one thinks that absence of capacity to consent is really all that matters in a case like this one, Kieron's motives are irrelevant and people with the intellectual capacity of eight year olds are morally equivalent to actual eight year olds and shouldn't be subjected to sexual activity. But, if the important question is really abuse of a position of trust that Kieron holds as the intellectually normal close friend of mentally retarded Alan, then Kieron's motives and what is going on in the interactions between Kieron and Alan matter a great deal to the merits of whether a court should or should not prevent Alan from having sex with Kieron.

On balance, I'm skeptical of the British judge and town government's decisions in this case. It bears the stink of a lot of unreasonable prejudices. But, I also recognize that this decision is a highly fact specific inquiry for which ordinary social intuition provides few exact precedents, and that decision makers further removed from the facts are at a decided disadvantage. It is hard to say with any great degree of certainty from the little that we know that the judge's decision was clearly wrong in this unfamiliar territory.

READ MORE - Sexual Freedom v. Freedom From Exploitation