[quote]countingbeans wrote:
[quote]jjackkrash wrote:
[quote]Bismark wrote:
Those individuals do not lack agency. The mentally disabled, however, do. That is the crux of my argument.[/quote]
You are loosely slinging around a lot of concepts, IMO.
Having “moral agency”, i.e., the ability to make moral judgments based on some commonly held notion of right and wrong, and the legal ability to consent to certain conduct/transactions are separate and distinct, although sometimes related, concepts. Minors, for example, cannot consent to sexual contact for the sole reason that they lack the legal capacity to consent based on the law and a legal policy judgment about the need for bright-line rules and their level of maturity, not necessarily because they do or don’t have the moral capacity to judge right from wrong in any specific case. Similarly, the legal capacity to consent is a separate issue from, for example, a defense to criminal or civil responsibility for an action based on a lack moral agency, i.e., the inability to judge right from wrong, although in specific cases these concepts can be intermingled or get blurred. But, rest assured, minors who lack the legal capacity to consent to a transaction can nevertheless be held civilly and criminally liable for many actions if they have moral agency in a specific case, i.e., have the ability to distinguish right from wrong.
Also, being “mentally disabled” is a pretty fucking broad label and I’d venture to say that a declaration that all “mentally disabled” people lack moral agency can’t be made without some clarification as to how you are defining “mentally disabled.” I would say that under most definitions of “mentally disabled,” lacking moral agency isn’t a necessary or a sufficient condition.
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Thank you.
Because if a “woman” can consent to allowing 3 dudes packing 9" each to take turns pounding her anus on film for $1500 of coke money and then let them spit and finish on her face, and that is perfectly legal and “shows moral agency” but someone gets to sit back and armchair quarterback people he doesn’t like that have developmental delays and block them from the freedom they deserve… I’m all set.
Because in my view that woman I described above is just as lacking in critical thinking and judgment skills as anyone in this thread would bar from being able to have sex. [/quote]
Dealing with persons who actually lack the mental capacity to care for themselves because of a mental disease or defect presents special and difficult legal problems. But the short answer is, once a person is declared legally incompetent, the state, through the court, simply transfers the right and duty to make important decisions from a person who can’t care for themselves to a guardian, which is usually a family member, if there is a willing family member. The guardian then makes the important decisions, such as whether to buy a car, where to live, and whether, and more pertinent to this thread, to consent to sexual contact or to procreate, in the stead of the incompetent person. Conflicts can occur over who has the right to be the guardian and whether a guardian is complying with their fiduciary duty to act in the best interest of the incompetent person, but I don’t really see a better, less intrusive option in cases where a person truly lacks the capacity make important decisions for themselves.