Consent and Crime

In Les Miserables, when Jean Valjean takes the silver from the priest, did Valjean steal the silver?

The knee-jerk answer is, "yes, of course he stole the silver." But wait, I want you to think about that a bit more deeply. When the police bring Valjean back  to the priest and accuse Valjean of stealing the silver (which Valjean insists the priest gave him, though Valjean left during the night and took it all without asking), what does the priest do? He insists that of course he gave the silver to Valjean, and he then chastises him for not taking more, which he then loads into Valjean's sack.

Valjean leaves stunned, and the experience utterly transforms him. But that's not what I want to focus on here. I want to ask again if Valjean stole the silver. Certainly Valjean thought he did, and the police have their suspicions. But the police have to let Valjean go because the priest insisted that not only did Valjean not steal the silver, but that he had forgotten even more.

Is there a crime if there is not a victim, even if the other party thinks what they are doing is a crime?

So long as the priest doesn't think he was robbed, he wasn't robbed. The priest turned it into an act of giving, meaning no crime took place, even if Valjean had intended to commit a crime (which he knew to be a crime).

One can take this and apply it elsewhere.

If you intentionally kill someone else, and you planned it, you commit murder. First degree murder, at that. But what if the person killed wanted you to kill them, and they make it abundantly clear that they wanted you to kill them? Well, we call that "assisted suicide," and it seems that many if not most people now think no crime was committed in such a case. So long as the person killed was a willing participant and consented to the act all the way up to the act, a murder did not take place, but rather an assisted suicide.

We already accept in the very definition of rape that so long as there is willing participation and consent, then no rape occurred. If there is no consent to sex, a rape took place. The fact that there is violence involved is not sufficient; it may be possible that the couple are simply into rough sex. What may to a third party look like rape may in fact be completely consensual.

What this seems to suggest, then, is that you not only have to have either a violent act against another person or the taking of property, but that you also have to have a lack of consent to the action in question for there to be a crime. That is why fraud is considered to be a crime -- you cannot have given consent to the exchange if fraud has taken place. When fraud is introduced, consent is impossible, because I in fact consented to proposition A, when you intended to do and carried out doing action B. A taking of property has taken place without consent, and thus fraud is a crime. This is also why there is talk of making sex in which one of the parties committed fraud (by, say, misrepresenting his or her wealth) in order to have sex with the other party rape. This is simply a logical extension of the relationship between lack of consent and criminality.

We can also therefore see why libertarians insist that there can be no such thing as a consensual crime. If you need lack of consent for there to be a crime -- in the case of theft, rape, and murder, for example -- then a consensual crime is a contradiction in terms.

But is all "lack of consent" when there is an interaction involved a crime?

Think about the phrase "consent of the governed." This would imply that the only government that is not a criminal government is one that governs only with the consent of the governed. But what about those who, within a geographic area, do not consider their consent to have been given? Again, many libertarians come to mind. If a majority consider their consent to have been given, does that mean that no crime is being committed against the minority who did not give their consent to be governed?

Or consider taxes. Many libertarians throw around the idea that all taxes are theft. When you tell people that, they think you're stupid. Of course, they think that because they have in fact, directly or indirectly, consciously or unconsciously, given consent to being taxed. Libertarians have, again, not given their consent to being taxed, and so they consider taxation to be theft. Were there a polity in which one could chose the form of governance and have voice and exit, it is likely even libertarians might find a place where they consent to be governed and to be taxed.

So it seems that the real issue when it comes to crime is not whether violence is involved or not, but whether or not consent was involved. If you climb a mountain, you consent to the danger inherent in mountain climbing. If you break into a house, you consent to the danger of getting killed by the owner defending his or her property. The criminal thus consents to the dangerous situation in which they may get killed by creating the situation in the first place.

But do they consent to the laws they are breaking? It would seem not to be the case, but when it comes to law, you are consenting to its continued existence so long as you would insist on its being followed if you were the victim. The person who robs you but objects to being robbed consents to the law against robbery. The mere fact of violating a law at a given time does not mean consent is withheld.

Let us then return to taxes. If I go ahead and pay my taxes, doesn't that mean I am giving tacit consent to being taxed? Not necessarily. If I am paying taxes only because I am threatened if I do not, I am not paying from consent. I prefer to not face the consequences. A "your money or your life" situation does not mean consent is given if you choose life over money.

So again, the issue of criminality actually involves the granting or withdrawal (or failure to grant) consent. A government that governs without the consent of the governed is a criminal government. Taxes are theft for anyone who does not consent to being taxed. A military draft is a criminal action because pretty much nobody being drafted are consenting to it.

Given these facts, it seems that we need to move away from discussions of violence or coercion and rather start discussing criminal behavior and actions according to this idea of consent.

What say you?