Civil Liberties

I Want to Defy…the Logic of All Sex Laws

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In the Wall Street Journal , Eugene Volokh tackles onerous state laws that prevent, for example, an optician or dental hygienist from marrying a patient. The piece rightly assails such laws, but I'm not even sure I'd agree with Volokh's one concession:

Of course medical relationships offer room for various kinds of abuses. In some situations, it may be proper to interfere with people's right to marry, and their sexual and romantic autonomy, in order to prevent those abuses. We can talk about relationships between psychotherapists and clients (or ex-clients), or relationships between doctors and current patients, or other circumstances in which the risk of subtle coercion or unprofessional behavior is especially high (which is to say materially higher than the risk of subtle coercion and other harms in any sexual relationship).

While I'd agree with the general sentiment here, I'd argue that even the most obvious example of abuse—a psychiatrist sleeping with a patient—ought to be a professional ethics matter, to be adjudicated by peers on medical boards. I can't see any reason why a relationship between two consenting adults should be any business of courts or legislators.

Somewhat related, ESPN: The Magazine has yet another tale of age-of-consent laws gone wrong.

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  1. nice beck reference.

  2. Well, sure, but you also believe that those practitions should have no obligation to be in good standing with the relevant professional bodies in order to continue to operate, and to proclaim themsleves to be professional therapists or whatever.

  3. Joe,

    True. But I’d only patronize a psychotherapist whose office carried the seal of approval from my preferred, privately-operated certifying organization.

    And said preferred certifying organization would scrupulously weed out doctors with a habit of sleeping with their patients.

  4. What should the age of consent be?

  5. I can’t see any reason why a relationship between two consenting adults should be any business of courts or legislators.

    Judging by the laws that get passed, everything is the business of legislators.

  6. I quite frankly see the idea of licensing therapists as nonsense. Should the state intervene if priests decided to sleep the laity? Should the state license priests or philosophers? Why does everything we do as humans have to be looked at, inspected, censured, admonished, reproved, etc, by the state?

  7. The ESPN article says, about Genarlow Wilson:

    No one involved believes Wilson should be in jail for 10 years.

    The prosecutors don’t.

    The Supreme Court doesn’t.

    The legislature doesn’t.

    The 15-year-old “victim” doesn’t.

    The forewoman of the jury doesn’t.

    Privately, even prison officials don’t.

    Yet no one will do anything to free him, passing responsibility around like a hot potato.

    Anybody notice which official is missing from that litany? That’s right, the governor. This is, as Professor Berman says here (http://sentencing.typepad.com/sentencing_law_and_policy/2006/12/a_georgia_case_.html)”a case screaming out for the exercise of executive clemency.” So how about a flood of cards and letters (preferably from Georgia voters) to Governor Sonny Perdue asking him to have some balls and do the right thing?

  8. Seamus:

    They talk last-ditch plans, including a constitutional amendment returning pardon power to the governor.

  9. I ake this to mean that currently Georgia law does not give the governor clemency priveledges.

  10. *privileges

  11. I can’t see any reason why a relationship between two consenting adults should be any business of courts or legislators

    Well, the premise of the law is that the relationship is inherently nonconsensual, an abuse of power akin to sexual harassment on the part of the doctor. Obviously, if you disagree with that, then it’s not a large jump to call the law stupid.

  12. I’m not so unrealistic to believe that immoral for a psychotherapist and a patient to fall in love. However,if such a relationship would develop, the doctor should, for the sake of professionalism, hand the case to another therapist before any hanky-panky would officially start.

  13. Edit: …that it is immoral…

  14. I’d say a psychotherapist sleeping with a patient is likely to be some form of coercion, a la date rape.

    That’s less likely to come up with your dentist.

  15. NTD says “Obviously…”

    Anyone who starts a debatable presumption with “obviously” is obviously an asshat.

  16. Radley,

    And you’d know the seal of the American Psychiatiric Association, and be able to tell it from a remarkably similar seal churned out by a diploma mill called the American Psychiatrist Association?

    When you’re in the middle of a bout of severe depression?

  17. I can’t see any reason why a relationship between two consenting adults should be any business of courts or legislators.

    Because it leads to polygamous beastial relationships obviuosly!

  18. Seamus, excellent point.

  19. At least chucklehead is Thinking of the Children (TM).

    The gut wrenching miscarriage of justice in Genarlow Wilson’s case is very sad.

    Would that the authorities take responsibility for their errors.

  20. They talk last-ditch plans, including a constitutional amendment returning pardon power to the governor.

    I missed that part. Damn. Well, they’d better get working on that constitutional amendment, then.

  21. H-Dawg: I thought the debatable part was the first half. The second is just “if you disagree with the underlying premise of the law, then you probably disagree with the law.”

  22. From the ESPN piece:

    “For the next eight months, Douglas County District Attorney David McDade, who likes to wear an American flag in his lapel and play to his law-and-order-loving base, dangled plea bargains. The other boys didn’t want to risk a jury, and one by one each took an offer and went to prison, including the other football player arrested, Narada Williams, who accepted five years with the possibility of parole.

    “In Douglas County, according to law professors following the case, admitting sins and begging forgiveness — not insisting on your innocence — is the road to mercy. Williams is already out of jail, in part because McDade wrote a letter to the parole board, praising Williams for being the first to plead guilty and “take his medicine.” As for Wilson, McDade called him a “martyr” in the media.”

    “In Barker’s eyes, Wilson should have taken the same plea agreement as the others. Maintaining innocence in the face of the crushing wheels of justice is the ultimate act of vanity, he believes.”

    ——-

    This sort of persecutorial hubris is mindbogglingly infuriating; it reminds me of a quote I saw long ago, attributed to Mr Clemens:

    “If you want to see the dregs of humanity, go and visit one of our prisons. The inmates will be there, too.”

  23. True. But I’d only patronize a psychotherapist whose office carried the seal of approval from my preferred, privately-operated certifying organization.

    It kind of makes more sense just to let the government license them. I for one would rather them do it than be required to have a in-depth knowledge of the inner workings of every profession to figure out who is legit.

    Then again, I’m one of those nanny-staters who would also rather have the government inspect restaurants for health code violations rather than getting sick from eating bad food and hoping the market notices.

  24. “Well, they’d better get working on that constitutional amendment, then.”

    Far easier to just pass a law freeing the guy. The legislature, as a result of this travesty, actually amended the archaic law that made a hummer with a 15 y.o. worth 10 years. If he had just screwed her, he’d have gotten you just 12 months and been out by now. The problem is that this legislature, which must be a bunch of imbeciles, forgot to make this law retroactive.

  25. NTD: I stand corrected.

  26. I’m one of those nanny-staters who would also rather have the government inspect restaurants for health code violations rather than getting sick from eating bad food and hoping the market notices.

    We have government mandated inspections here in Florida. Could you please explain how it can be that people still occasionally get food poisoning from these restaurants?

  27. Randy, the key word here is “consenting”. In the context of a patient’s relationship with a psychiatrist, they are often in a position of extreme vulnerability that diminishes their capacity to meaningfully consent to a sexual relationship. The profession does allow for such a relationship to develop after treatment has ceased with a suitable cooling-off period (usually six months). It seems to me if these rules are not respected, it is legitimately the business of the courts.

  28. We have government mandated inspections here in Florida. Could you please explain how it can be that people still occasionally get food poisoning from these restaurants?

    My guess would be because no system is perfect. Health inspections do ensure that at least a good level of sanitation and safety practices are being observed.

    Serious cases of food poisoning from restaurants are very rare, though, you must admit.

  29. Let’s see,

    Case 1, a doctor talks a former patient into annal penetration – illegal

    Case 2, a doctor has a patient pinned down and injected with psychiatric drugs that penetrates the patient’s brain – legal if the doctor follow standard procedures

    I guess legislators protect the organ they relate to the most.

  30. My guess would be because no system is perfect.

    At 1:15 you presented a (false) dichotomy, either the government inspects restaurants or you get sick. You have admitted that people get sick in a system of government-mandated inspections, and even if serious cases are rare, mild cases most definitely are not. So why is it that you prefer government-mandated inspections?

  31. The Genarlow Wilson story is very similar to Billy Tibbets’ situation (for you hockey fans out there) except that his was in Massachusetts and he plea bargained.

  32. Eugene Volokh also posted the article on his blog, the Volokh Conspiracy. Some interesting comments too.
    Radley Balko is right on target with his evaluation. These laws have so many troublesome aspects, it’s hard to decide where to begin. Tellingly, the Washington State regs contain no explanation why they were needed. Apparently this has to be “obvious” to the citizens. From discussions and statements I have to deduce that many if not most of them were enacted not just, and I would argue not even primarily, as protection for the unwitting, but as a means of social engineering. Any relationship between people not deemed “equal” are inherently suspect as abusive. It is this “imbalance of power” that the laws are meant to address. They are yet another manifestation of the political correctness pushed relentlessly by the Cultural Marxists. As Radley points out, it is no problem for anyopne to get rid of a creepy doctor and turn him into the ethics board. Minors have parents to watch out for them, incapacitated people have friends and family. But the Cultural Totalitarians like to control every aspect of life by the force of the State.
    Ironically, in order to remedy a non-problematic imbalance, they make use of the biggest power imbalance there is: The one between the State and the people living under it.

  33. At 1:15 you presented a (false) dichotomy, either the government inspects restaurants or you get sick. You have admitted that people get sick in a system of government-mandated inspections, and even if serious cases are rare, mild cases most definitely are not. So why is it that you prefer government-mandated inspections?

    Well, first I don’t think any reasonable person would interpret my comment about restaurants to mean that if the government didn’t inspect them, we’d get sick every time we ate at one. Nor do I believe my comment implied that government health inspections are going to ensure that 100% of the food we’re served is going to be untainted.

    What I was saying is that in my opinion it’s worth a few tax dollars and some loss of “liberty” to be able to walk into a restaurant and know that somebody has made sure that it has conformed to a good level of sanitation. The part about otherwise getting sick is that without such inspections, the only real way the market would be able to identify the unhealthful restaurant is if enough people get ill from the food.

    So yes, like most sensible people I think that it’s a very legitimate function of the government to regulate certain business transactions where the customer is putting himself at risk by buying the product.

  34. The simple answer is a therapist, doctor, dentist, etc can’t have sex with a current patient. Soooooooo, you transfer care to another therapist, doctor, dentist and you should be allowed to do whatever. Ah, but the laws screw you there too. The prohibition includes “former” patients. So God forbid you fall in love with someone you treated 16 years ago, you’re a sex offender.

  35. I don’t think any reasonable person would interpret my comment about restaurants to mean that if the government didn’t inspect them, we’d get sick every time we ate at one.

    Trust me, no one has ever accused me of being reasonable, and I know that you were exaggerating. But that is not the point. Presumable you are saying that a system that depended on the market to incentivize restaurants to observe safety standards would be inferior to the one we have today. The same could apply to any regulatory environment. I want to know what leads you to believe that to be true? Civil servants have very little pressure to provide superior service, a private institution that inspects and certifies businesses would depend on it to stay in business.

  36. Trust me, no one has ever accused me of being reasonable, and I know that you were exaggerating. But that is not the point. Presumable you are saying that a system that depended on the market to incentivize restaurants to observe safety standards would be inferior to the one we have today. The same could apply to any regulatory environment. I want to know what leads you to believe that to be true? Civil servants have very little pressure to provide superior service, a private institution that inspects and certifies businesses would depend on it to stay in business.

    The problem with a using a for-profit organization for restaurant health inspections is that the same restaurants they’d be inspecting would be the ones paying them (right?) So if my company landed the big contract to inspect all Denny’s in America, there would be a conflict of interest because I’d be hesitant to give a failing grade to my own customer. Self-regulation inherently has conflict of interest problems.

    Also, I think it’s something of a stereotype to say that Civil Servants don’t have incentive to do a good job. Last I checked, they are paid by the taxpayers of the area they serve and therefore have to answer to them. Plus, it may simply be the case that some people actually care about doing a good job since people depend on them.

    I think most of us agree that in our country we’re generally pretty secure in the fact that restaurant food is safe to eat. Certainly the government’s role in making sure basic standards are met contributes to this, and that’s a good thing.

  37. I’d say a psychotherapist sleeping with a patient is likely to be some form of coercion, a la date rape.

    That’s less likely to come up with your dentist.

    “Dentist Arrested for Filling Wrong Cavity”

  38. That Wilson case makes me want to puke in rage. Anyone know how to get a hold of Eddie Barker’s mail address? I would like to send him a brief, profanity-laden message.

    I can’t believe so many people could drop the ball so badly. But Barker especially can fuck himself until he dies.

  39. Would that the authorities take responsibility for their errors.

    I don’t think that is going to happen any time soon. VM.

  40. Also, I think it’s something of a stereotype to say that Civil Servants don’t have incentive to do a good job. Last I checked, they are paid by the taxpayers of the area they serve and therefore have to answer to them.

    What planet are you living on? Accountable civil servants? Get real.

  41. Self-regulation inherently has conflict of interest problems.

    That is one way of looking at it. Read up on Capture a bit, it is an interesting theory.

    Private companies have every reason to be objective in their analysis and not become pawns of industry. Their reputation depends on their unbiased standards. Trustworthy companies, in turn, want to use the inspection services that the public values. So on the one hand, the unreliable restaurants and the unreliable inspection companies have no incentive to keep standards. But that’s okay, they are self-identifying. The same goes for the reliable restaurants and inspection companies. You have food poisoning with or without government oversight. But who do you think can do it cheaper?

    [Civil servants] are paid by the taxpayers of the area they serve and therefore have to answer to them.

    I’ve got to disagree with you there. Civil servants work for the Civil Service Board, not the taxpayers. Their job protection is only rivaled by tenured professors.

  42. “Plus, it may simply be the case that some (Civil Servants) actually care about doing a good job since people depend on them.”

    Then why the hell do we pay them so much? Fireman should just be grateful that they (and only they – being “licensed” and all) get to save lives on a regular basis. That’s compensation enough.

  43. Private companies have every reason to be objective in their analysis and not become pawns of industry. Their reputation depends on their unbiased standards. Trustworthy companies, in turn, want to use the inspection services that the public values. So on the one hand, the unreliable restaurants and the unreliable inspection companies have no incentive to keep standards. But that’s okay, they are self-identifying. The same goes for the reliable restaurants and inspection companies. You have food poisoning with or without government oversight. But who do you think can do it cheaper?

    I dunno – to me it still seems easier to have the knowledge that pretty much any restaurant you walk into will have at the very least met minimum safety standards rather than having to research the private food inspection industry and figure out which restaurants have been inspected by which inspection companies and which inspection companies are considered the most reliable.

    Also, doesn’t the use of private inspection companies kind of sound like the old mob protection racket? Pay us what we demand or we won’t certify your place and you’ll lose all your customers.

  44. to me it still seems easier to have the knowledge that pretty much any restaurant you walk into will have at the very least met minimum safety standards

    All that certification tells you is that the restaurant met the minimum standards the day they were inspected, along with the 50 other establishments the inspector reviewed that day. I wish I had a free meal for every government-inspected restaurant I have been to where the faucet in the men’s room was not even hooked up to the hot water supply.

    doesn’t the use of private inspection companies kind of sound like the old mob protection racket?

    No more than the current system sounds like a protection racket. The government is the one with the guns and the ability to shut you down.

  45. “I can’t see any reason why a relationship between two consenting adults should be any business of courts or legislators.”

    The correct libertarian expression is “competent consenting adults.”

    It only becomes difficult when you get sloppy.


  46. No more than the current system sounds like a protection racket. The government is the one with the guns and the ability to shut you down.

    But the government has no profit motive and therefore no incentive to charge owners high fees to prevent getting shut down. Government officials do however have incentive to properly inspect restaurants, or else the public will use their vote to replace those who are ineffective.

    And you certainly don’t need guns in your market-driven inspections model – a powerful enough inspections company can simply write up a bad report on your place and you’d be forced out of business due to lost customers.

  47. I would like someone to take a crack at the objection I posted at 12:48 PM – that people seeking medical care, say those in great physical or mental pain or otherwise debilitated in a manner that degrades their judgements are hindered in their ability to act as rational consumers making judgements about the credibility of their caregivers.

    Warning: if you tell me I’m an elitist for suggesting that people suffering a bout of suicidal depression have impaired judgement, I’m going to laught at you.

  48. the knowledge that pretty much any restaurant you walk into will have at the very least met minimum safety standards

    Of course, you don’t really have this knowledge. City governments, which do these inspections in most places, are not immune to corruption. So while in many places you would be safe in the assumption that that health rating is legit, that’s not universally true.

    Also, there have been some great restaurants that don’t pass inspection. I know of one sole food place in my hometown that was a town landmark, but they got shut down by the inspectors. The food was safe, but their facility was too old (the kitchen was detached from the main building – it was that old), and they didn’t have the money to bring it up to code.

    And some places that do pass will still get people sick.

    Also, doesn’t the use of private inspection companies kind of sound like the old mob protection racket? Pay us what we demand or we won’t certify your place and you’ll lose all your customers.

    Absolutely. Refusing to give a restaurant a certificate is equivalent to burning it down or breaking the proprietor’s legs. There should be stiff criminal penalties for not giving restaurants certificates.

  49. lunchstealer,

    It’s good to know that you don’t consider the enforcement actions of regulators to be an intrusion into property rights.

  50. Warning: if you tell me I’m an elitist for suggesting that people suffering a bout of suicidal depression have impaired judgement, I’m going to laught at you.

    I’m going to guess you’re an elitist because you post on H&R, but I don’t see that as an insult, so don’t worry about it.

    As for your comment – yep, that’s a sticky wicket.

  51. But the government has no profit motive and therefore no incentive to charge owners high fees to prevent getting shut down.

    Exactly. In other words, they have no incentive to do the job well or economically. You believe in the innate altruism of government and evil of the private sector, in spite of all appearances to the contrary. I don’t. When was the last time you voted for a restaurant inspector? The closest elected official to restaurant inspector one gets to vote for in Florida is the Governor. The Governor appoints the Secretary of the Department of Business and Professional Regulations, who hires the Deputy Secretary of Business Regulations, who hires the head of the Division of Hotels & Restaurants, who then has approximately 4 more layers of appointees and civil servants before getting to the actual inspectors. That is not accountability that is bureaucracy.

  52. Joe, you’re absolutely right! It’s not an intrusion into property rights.

    It’s an intrusion into the rights of two consenting parties to enter into a mutually agreeable transaction.

    😛

  53. And did I mention that I’m more or less of the opinion that Barker and McDade should be barred from gainful employment and recourse to public funds for the crime of prosecutorial misconduct. If they really gave this guy a 10 year sentence when they think a 2 year sentence is appropriate, simply because he refused to accept their pleabargain, then they’re effectively sentencing him to 8 years for refusal to accept a pleabargain, which is a right, not a crime.

    I hafta say if I happened across them bleeding on the side of the highway, I’d have to force myself to give them any first aid. My instincts would be to let them suffer.

  54. My instincts would be to let them suffer.

    And your instincts would be right. These men are truly evil.

  55. You believe in the innate altruism of government and evil of the private sector, in spite of all appearances to the contrary. I don’t.

    I think the opposite is true – you seem to believe that profit is the only motive and there’s no such thing as people doing a job well because they feel it’s important and/or they have a duty and obligation to perform it.

    According to your theory, government workers could simply not show up, continue to collect a paycheck, and nobody could do anything about it. Yet restaurants still get inspected, the police still patrol the streets and the DMV still issues drivers’ licenses. Why?

  56. According to your theory, government workers could simply not show up, continue to collect a paycheck, and nobody could do anything about it.

    Please show me what I have said that would lead you to infer that.

    Yet restaurants still get inspected, the police still patrol the streets and the DMV still issues drivers’ licenses. Why?

    That’s a rhetorical question, right? My choice if I don’t like the service at the DMV is…to not get a license. If I don’t like the standards at Outback I go to the next restaurant.

  57. I would like someone to take a crack at the objection I posted at 12:48 PM – that people seeking medical care, say those in great physical or mental pain or otherwise debilitated in a manner that degrades their judgements are hindered in their ability to act as rational consumers making judgements about the credibility of their caregivers.

    That’s a tough nut to crack. I’ve found that people in those types of conditions usually end up going to a provider suggested by their insurance company based on proximity, so I guess you could say that in the case you are describing, the insurance provider is the gatekeeper. Not sure if that really advances the discussion, though.

  58. from the article:
    Actually, can she start a relationship with you, even two years later? Well, not if “(a) There is a significant likelihood that the patient . . . will seek or require additional services from the health care provider; or (b) There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship.

    By that measure, it should be illegal to date a cop, politician, or various other government officials.

  59. I take back my 4:25 comment. That was incredibly lame.

    Web editor, feel free to scrub.

  60. But what if I *want* to have sex with my therapist?

  61. joe | January 25, 2007, 9:34pm | #

    I take back my 4:25 comment. That was incredibly lame.

    joe, I am not sure i have ever seen that kind of total retraction before.

    May I offer my congratulations, or something. Anyway it deserves some kind of recognition.

  62. Okay, how about a judge having sex with a defendent? Should that be a matter for the courts?

  63. pwned by lunchstealer and swillfredo

  64. “I would like someone to take a crack at the objection I posted at 12:48 PM – that people seeking medical care, say those in great physical or mental pain or otherwise debilitated in a manner that degrades their judgements are hindered in their ability to act as rational consumers making judgements about the credibility of their caregivers.”

    Joe, I would never pass up the opportunity to argue with you. This one is hard to take the other side on though. First off, I have no problems with licensing of doctors, lawyers, dentists, etc. Secondly, having first hand experience with clinical depression in my ex wife I can assure everyone here that it is a devastating impairment. I guess the only reasonable argument opposing the point you made is that these people will (probably)have somebody with them (husband, wife, etc) who is not impaired.

  65. Joe,
    Not that your presumption is otherwise wrong, but evidence seems to indicate that people who are depressed have a more accurate perception of their surroundings.

    I mean, not that this titbit adds anything to the conversation, I am just saying.

  66. “Okay, how about a judge having sex with a defendent? Should that be a matter for the courts?”

    Dear Penthouse,

    When I met my lawyer in front of the courthouse and walked inside, I had no idea what I was in for…

  67. Please show me what I have said that would lead you to infer that.

    Well, you’ve indicated that profit is the only motivator for people and that in government there is no accountability. So it seem logical to me that civil servants have no reason to even show up.

    That’s a rhetorical question, right? My choice if I don’t like the service at the DMV is…to not get a license. If I don’t like the standards at Outback I go to the next restaurant.

    But once again, the DMV ensures that all drivers exhibit at least basic levels of driving skill and safety awareness. If there were multiple private agencies issuing licenses to whoever agrees to pay for them this standard could not be met.

    Simply put, there really are some things that the government does better than the private sector. Not a whole lot, but some things.

  68. joe | January 25, 2007, 9:34pm | #
    I take back my 4:25 comment. That was incredibly lame.

    Web editor, feel free to scrub.

    Sorry, I missed that until just now. That may not have been the best post of the thread, but I just assumed it was some friendly snark. No offense taken. Have no fear – by H&R standards, that post should be way down the list for scrubbing.

  69. Oops – The poster above was me. That’s what I get for making lame jokes about Austin Powers’ dad on H&R.

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