The headline is unduly splashy. The issue surely has more to do with her having an IQ of 64 than with being autistic. The point is severe mental incompetence.
I agree. On the other hand, this court does seem to have a history of making similar decisions and it's not entirely clear that they've exercised a reasonable degree of caution in making all of them.
They have a great deal of power in an area that's particularly ethically complicated.
Anyone notice the problem with the following quote?:
Mr Justice Hedley said: “It is strange, but nevertheless true, that even the freedom to make unwise decisions is one that the court is required to guard and only to restrict if and when the best interests of [the woman] so require.”
Presumably, an "unwise" decision is precisely one that isn't in the best interests of the person. Hence a person's "best interests" always require that they not make "unwise" decisions. So the statement reduces to "...the freedom to make unwise decisions is one that the court is required to guard and only to restrict if and when the decisions are unwise." (*)
This "justification" is not merely fake, but entirely vacuous. The actual bottom line that isn't being acknowledged by this judge is that this person's own interests are being traded off against the interests of other people: one person's unwise decision may have consequences that other people don't want, and if enough other-people don't-want them badly enough, courts like this take it upon themselves to prevent the person from making the unwise decision.
(*) And yes, I'm aware that I could be accused of missing a logical level here -- that maybe the judge means that not only must the best interests of the person require the wise decision, they must also require that the court enforce the wise decision. But I just frankly don't believe that this -- implementing the "extrapolated volition" of that individual -- is in any sense the actual motivation of the court, as opposed to what I describe in the next paragraph.
As a lawyer, I want to provide a legal perspective on your point.
The legal system has a lot of trouble dealing with decisions which have an obvious decision-maker who is also obviously unqualified to make the decision. In a child custody dispute, asking the child to decide is the intuitive answer. But there's no reason to think that a young child (i.e. 4 years old) will make a decision that won't be regretted later. In short, who lets a child play video games longer is not likely to be the heuristic that the adult version of the child would recommend. So the legal system has a standard heuristic trying to predict what a competent decision-maker would do. As you say, the fictional competent decision maker looks a lot like "not doing things with consequences that others don't want."
The reason I mention this is to state that judges are quite aware that the legal fiction is fiction. "Best interest of the person" is the name for this legal doctrine, not an assertion that the judge has figured out what is actually best. And the judge you quoted knows that. I understood the quote from the judge as recognizing that the fictional decision process should not be applied if the decision maker is actually competent to make the decision.
You seem to be saying that "X is in the best interest of Y" is simply legal jargon for "X is in the best interest of Y and Y is legally incompetent to make decisions". If so, then this is a case of terrible terminology.
Law is a technical language, just like medicine or physics. I certainly don't call it a virtue that it can be impenetrable to non-lawyers. But impenetrability is a different critique than the ones you are highlighting.
A lawyer who thinks phrases like:
"fair use"
"free, appropriate, public education"
"malice aforethought"
"you may have the body" (habeas corpus)
are self-defining is an idiot. My only point was that I didn't think the judge was making that mistake.
The problem here isn't opacity, as in "you have the body". The issue with "best interest" in the sense that I understand you to be describing is that it's misleading, and at the same time a more sensible alternative is readily available. A judge could instead say
It is strange, but nevertheless true, that even the freedom to make unwise decisions is one that the court is required to guard and only to restrict if and when the person is incompetent to make decisions.”
Note that the word "incompetent" as used here would itself be an example of legal jargon, possibly "impenetrable" to (some) non-lawyers -- but one with which I would have no problem whatsoever.
(Incidentally, I happen to think terms like "fair use" are self-explanatory. Their problematic nature lies not in their intensions but in their extensions: it's difficult to sort out boundary cases, even if the (intensional) "meaning" is clear.)
When I read your original comment, I took you to be criticizing the judge, not the legal jargon. My point was that any unfortunate implications from the judge's statement were a product of the disconnect between legal jargon and ordinary usage. I don't understand your distinction between "misleading" and "opaque," by I agree that lots of legal jargon does not coincide with ordinary usage of the words. For example, "probable cause" can be satisfied by beliefs that everyone agrees are less than 50% certain.
If your criticism was directed at the lack of clarity of the legal jargon, then I don't think we disagree. Intelligent lawyers are aware of this disconnect, but for transaction cost reasons, legal jargon is seldom changed to improve clarity for the lay audience. As I said above, I don't claim this is optimal. But that is a point about technical jargon, not about law.
Again, I want to make it clear that my criticism is specific to this particular instance, and does not generalize to a criticism of technical jargon in general.
The distinction between "misleading" and "opaque" is as follows: a term T is opaque to a person P if P is unable to arrive at a hypothesis about the meaning of T merely from the form or structure of T itself. Roughly speaking, the person doesn't understand the term, and knows they don't understand it. Habeas corpus would be an example of this: even if one understands Latin (no doubt the principal obstacle for most people), "[that] you have the body" is not a phrase that makes sense in the contexts in which it appears, because (for example) "body" is not a standard way of referring to anything involved in such contexts (in this case, a living person). Upon encountering this term for the first time, one would want to ask, "what do you mean, 'you have the body'?"
By contrast, a term T is misleading to a person P if the form or structure of T causes P to arrive at an incorrect hypothesis about the meaning of T. Roughly speaking, the person thinks they understand the term (because it is composed of standard ordinary-language words or parts thereof, assembled in a way that would make sense in context), but actually doesn't (because the ordinary-language words do not have the meaning they think in that context). If you are correct about "best interest"(*), then this would be an example of a misleading term: "best interest" is a perfectly comprehensible phrase of ordinary language which makes sense in its ordinary meaning in the context in which it occurred. When I encountered the term, I did not ask "Huh? What does 'best interest' mean?", as I might have done the first time I ran into habeas corpus; instead, I simply assumed I understood what it meant, just like I did with all the other words in that sentence (and do with most of the words in most text that I am exposed to), only to be later informed that I had (apparently) misunderstood.
This explains why my criticism was first directed at the judge: I didn't realize that the phrase was legal jargon(*). But given that it is, my criticism shifts to the legal community, because this particular choice of terminology is very poor, due to its highly misleading quality (exacerbated in this case by deviating from the usual patterns relating specialist usages of an ordinary term to the ordinary usage, as mentioned in the footnote below).
(*)A point on which I can't say that I'm totally convinced just yet, simply because I've had so much experience with discussions of the form "T doesn't mean what you think it does", where the person telling me this turned out to be misunderstanding me and/or making some error such as confusing denotation and connotation. In this case, my suspicions are aroused because it seems very strange for a specialist usage of "X" to mean "X and Y", where Y is actually the important or salient part of the concept (here, "X" is "best interest", and "Y" is "incompetent to decide"). My main alternative hypothesis to your being correct is that "best interest" does in fact mean what it ordinarily does, but that judges only ever consider it in the case of a person who has been judged incompetent; so that my criticism would again be directed at the judge, for failing to mention the part about the person being incompetent.
In this case, my suspicions are aroused because it seems very strange for a specialist usage of "X" to mean "X and Y", where Y is actually the important or salient part of the concept (here, "X" is "best interest", and "Y" is "incompetent to decide"). My main alternative hypothesis to your being correct is that "best interest" does in fact mean what it ordinarily does, but that judges only ever consider it in the case of a person who has been judged incompetent; so that my criticism would again be directed at the judge, for failing to mention the part about the person being incompetent.
This is a fair concern, although I don't think I'm confusing denotation and connotation in this case. I don't know for certain that British legal terminology follows American, or that a doctrine for child custody disputes and child-removal-from-home proceedings also is used for legal proceedings involving the mentally handicapped.
I think it is likely that the quote from the judge was an excerpt of a legal opinion, not from an interview. And my experience is that P(reporter quotes from legal opinion out of context) is quite high, which has some bearing on my belief that the judge explained elsewhere why he was applying the doctrine.
When I've seen accounts of children (including somewhat older children) having to make such decisions, the issue from the child's point of view seems to be concerns about having to choose to cause pain to one of their parents.
This "justification" is not merely fake, but entirely vacuous.
I'd rather say that Mr Justice Hedley is probably trying to apply the relevant law to the facts of a particular case. The law may be stupid or wise, but a judge is supposed to apply it. His written opinion explains his reasoning in greater detail.
This doesn't seem to be an example of a rogue judge picking on a random citizen. She seems to have been horribly sexually exploited for years, and "she saw herself as obligated to submit to that which was in fact rape." To address this, she has been the subject of a lot of litigation, in which she was represented by counsel. In any case, she was placed under what the court itself called "highly regulated regime" that "clearly constitutes a deprivation of liberty," which, however, the court regarded as a necessary evil.
It is, however, intended to be temporary. Her caretakers
clearly fully appreciate how restrictive of H’s personal freedom the current arrangements are and how the balance always has to be struck between the competing demands of freedom and protection. I fully agree with that approach and, given the significance of the issues raised in this case, propose that I should review the case in November 2012. It is strange, but nevertheless true, that even the freedom to make unwise decisions, clearly a real risk here in relation to sexual relations, is one that the court is required to guard and only to restrict if and when (bearing in mind Section 1(6) of the Act) the best interests of H positively so require.
As I'm reading it, the court does not assert that "best interests" and "wise" are identical for legal purposes. I'd assume that the definitions of these words under English law are as vague and inexact as they are in American law. In any case, the court must "competing demands of freedom and protection." The court is bound to look after H for a limited amount of time, and then afford her more freedom and autonomy, if she can look after her own "best interests" to a minimum -- albeit imperfect -- degree.
Maybe this is what you meant. One of the things "other people don't want" is a court system with too much power to decide on the "best interests" of citizens. So the court must balance "the competing demands of freedom and protection."
This post is not about rationality, even in the applied sense. If you do think this subject is worth discussing on Lw, you need to at least start the discussion in the article from the perspective of rationality.
I gather the main intention of this order was, as the article says, that "anyone who tried to have intercourse with her could be charged with sexual assault or rape."
It's obviously an enormous restriction on her freedom. But, by analogy, mental incompetents may own a lot of money, but are not permitted to spend it independently. In common law systems, a guardian is appointed to make financial decisions. The article here doesn't say, but perhaps under the relevant law a guardian could consent on her behalf to her having sex, after making appropriate inquiries.
animals can't understand the risks and we happily let them continue having sex.
True, but unlike children and incompetents, animals are not people under the law. Owners of racing horses and purebred dogs restrict their sexual choices severely. Given the chance, most people would forbid mosquitoes and rats from reproducing at all, and not for their benefit.
The article here doesn't say, but perhaps under the relevant law a guardian could consent on her behalf to her having sex, after making appropriate inquiries.
It's a sticky wicket either way. Preventing someone from having sex is a problem, and having a state appointed pimp is a problem too. Not every question has a satisfying answer. Checks and balances seem prudent in this case.I thought of the guardian idea too, but I'd probably want some State oversight as well. Does that automatically come with guardianship of mentally incompetent adults? I have no idea what the current laws and regulations are.
Autistic woman banned from having sex in latest Court of Protection case
This reminded me of previous LW comments about how we restrict the rights of children for their own good.
On the one hand, children can't understand the risks so we stop them having sex.
But on the other hand, animals can't understand the risks and we happily let them continue having sex.