Crime and Punishment

It’s fine to be there, if they agree that you should be
(Image by Michael Dziedzic, via Unsplash),

The concept of consent and non-consent is at the heart of almost all criminal and civil law. The exact same action can be a socially agreeable interchange when mutually consented to, and a crime when done without the consent of one or more parties.

If I take money from someone, it’s a gift or a loan if they’ve offered it, and a theft if they haven’t.

If I take something from a store, it’s a purchase or a promotion if they’ve offered it, and shoplifting if they haven’t.

If I enter someone’s house, it’s hospitality and welcome if they’ve offered it, and trespassing if they haven’t.

If I take money from someone’s bank account, it’s an automatic payment or a Venmo if they’ve offered it, and fraud if they haven’t.

If I hit you, it’s within the rules if we’re boxing or playing hockey, and an assault if we aren’t.

And if I introduce an organism inside your body—one that will certainly make you sick and uncomfortable, and could well kill you, as it grows… and that you’ll legally be required to feed and protect for the next two decades—well, that’s pending parenthood if we’ve agreed, and a wildly violative assault if we haven’t. Someone who does that without consent ought to expect to go to prison for a very, very long time.

The writer Gabrielle Blair has argued the case, far better than I ever could, that every single unwanted pregnancy is the result of what she calls “irresponsible ejaculations.” And her argument relies entirely on the idea of consent, and the notion that women are worthy of being full participants in questions of consent.

Let’s talk about consent as it exists within sexual relations. It’s been ignored far more often than honored, but even when we do think about it, it shouldn’t be treated as a single yes/no question; it’s a whole series of ongoing deliberations, each of which is as important as the one before, with decisions that must always be mutual. Let’s take a simple example, a kind of flowchart of consent. In every case, the only acceptable answer (from every participant) that allows things to proceed is “yes,” preferably “yes, please.” Anything shy of that means that you stop, right that instant. If “yes,” and ONLY if “yes,” then you go on to the next question.

  1. Do you want to have sex?
  2. With this person or these people?
  3. This kind of sex?
  4. Under these conditions?
  5. Now that we’re underway, we still good?
  6. How about this next idea?

At any point along the way, what had been consensual can become nonconsensual, and things should come to a temporary or complete halt. It’s a whole continuum of agreements, each of which matters.

Now, what question is missing there? Oh, yeah. Do you want to have a baby? That’s an entirely independent question. You can have sex without having babies, and you can have babies without having sex. So the idea of consent over becoming pregnant is its own completely separate negotiation, one that women have been and will be criminalized for and men can just blow off. “Sowing your wild oats” is a long-honored tradition among men, leaving acres and acres of invasive plants behind them.

The law is filled with deliberations over what consent means, and under what circumstances it can be requested, offered, and relied upon. Children, for instance, cannot be considered to give consent (the age of legal adulthood in sexual relations is actually called “the age of consent,” but kids also can’t join the Navy or take out a car loan because of the same principle, that they can’t fully understand the implications of their choices). Someone who is intoxicated or drugged, who is asleep or incapacitated, cannot be considered to give consent. Acquiescence in the face of threat or violence cannot be considered to be consent. Power relationships (teacher/student, coach/athlete, supervisor/employee) make consent dubious at best, wound up as it is with all sorts of other necessary considerations—do you want to keep your job, get a promotion, be on the team, get a good grade? Any religious community that claims that women are inherently subservient to men has abandoned any interest in questions of consent. So any pregnancy that occurs under any of those conditions cannot meaningfully be thought to have been consensual.

We need to stop criminalizing women for men’s behavior. The nonconsensual causing of a pregnancy should be a felony.

Now, because I’m an essayist, I know enough that I should address some of the counterarguments that I might be able to predict. So here we go.

Consent can’t be proven. It’s just “he said/she said.” That’s true, and no different than lots and lots of court cases that are framed around disagreeing interpretations (and sometimes outright lies). He said I could borrow his truck. He signed the software licensing agreement. He should have known what he was getting into. He moved in a threatening manner. I was fearful for my safety. That’s what the legal system is set up to investigate and address, in its own flawed and human way.

Why should some young man have his life and his future ruined because of a single mistake? Good question, and I’d always prefer mercy to punishment. But why are we not asking exactly this same question on behalf of women? I mean, if somebody in this equation has committed a crime and is culpable for bearing responsibility, let’s be clear about who it was. And don’t even get me started on “fathers’ rights” when it comes to protesting a girlfriend’s abortion. Someone who has committed a crime has no legal claim to the proceeds.

Who are we, to play God? Great question. Who are we, to decide to have a child at all? Who are we, to invade a country, punish a crime, choose a college, have our kids vaccinated or not, buy a diesel pickup? There is no decision, either made or avoided, that is not a decision, with moral weight and collective impacts. We have to take responsibility for our own complicated and difficult choices, and the ways those choices affect others. And we have to expect that we won’t always agree with others, or even that we’ll always be convinced that we got it right ourselves.

Every life is God’s will. Well, this has three problems. Problem One is that even across Christian denominations, there are Biblically supported disagreements about whether abortion is justified and under what circumstances. Catholic doctrine still holds that contraception is violative of God’s will, too. (Cue Monty Python here.) Our dinky little town has half a dozen Christian clergy members who live here, who have wildly different positions on abortion among them from the same book. And then we move further to include Jews, Buddhists, Muslims, and innumerable others, where the diversity is even broader and just as carefully argued, though from different source material.

Problem Two is that the whole notion of “God’s will” becomes completely circular and self-justifying. Was it God’s will that twenty-one people were murdered at the Robb Elementary School in Uvalde, Texas? No, that was the presence of evil. Oh, okay, so the causing of an unwanted pregnancy is the presence of evil, then? No, that was God’s will. I mean, when God aborts fifteen or twenty percent of all pregnancies Himself, we’re outside any human understanding of what He thinks was a good idea. And again, it lets us off the hook for our own critical thinking and decisionmaking; someone already told us the answer.

And Problem Three is that, as I argued a few days ago, faith and doctrine have no basis to impinge on civil government. Religious liberty means everybody’s religious liberty, regardless of their faith or absence thereof.

It’s easy to think of this argument as a satire, as a Jonathan Swift “modest proposal” that simply points out our boundless hypocrisy. But if I were a member of a state legislature, I’d sponsor a bill tomorrow that would make the unwilling imposition of a pregnancy a serious crime with serious consequences. It would have at least three good outcomes. It would increase women’s autonomy over their bodies, behaviors and lives. It would be morally instructive to men that a hit-and-run pregnancy is not a trivial event. And it would cause the need for abortion to plummet almost instantly.

%d bloggers like this: