“As long as I’m safely unconscious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits?” This is the question economics professor Steven Landsburg posed in his blog last week. As it is in reference to the Steubenville rape case, it has of course caused a firestorm. However, unlike the majority of people who have read Landsburg’s post, I do not see a problem with asking tough questions such as this one. Instead, I find the statement, “It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies,” to be much more alarming.
If one thinks about it, Landsburg’s original question does stimulate discussion on how, and why, we craft laws prohibiting certain types of behavior. He could have brought about this same effect by utilizing a less controversial example, true, but the controversy doesn’t dismiss the question’s useful applications. Landsburg wants to know how the psychic harm inflicted in the Steubenville rape is different from that of, to use his example, somebody who is offended by the thought of people watching porn. This is a valid question for policy makers to ask.
The part of the article that I find hard to swallow, though, is the part where he questions whether or not the boundaries of our bodies are sacred. I’ll try to put this next part in economic terms in order to be consistent. Since I am not a Communist, I believe that private property is sacred. I also believe that one’s body is the archetypal example of private property and should thus be considered a most sacred possession.
I would now like to perform my own thought experiment. Let’s assume that I own a large piece of property that is replete with trees. I have put up a fence around this property with signs reading “No Trespassing,” because, unlike my body, a stranger may not know that it is my personal property. I also have a deed to prove I own the land, for the same reason. Now, let’s assume that a stranger came, without permission, and built a tree house on my land and harvested berries from nearby bushes. Even if I didn’t notice his camouflaged abode or his surreptitious snacking, he could still be prosecuted because he used my land without obtaining my consent.
It must be understood that we don’t intrinsically care about this “consent,” we really care about what it secures us from — harm derived from the use of our property by others. Consent is merely a tool, a legal shield if you will, that protects us from sustaining damages, whether they are physical, emotional, or monetary. We wouldn’t require people to obtain consent to use others’ property if that wasn’t the case. Now, in the example I described above, I may not actually suffer any damages, but the government still would not authorize the squatter’s actions, because it would be setting a dangerous precedent. For instance, if it did authorize his actions and a second squatter accidentally started a fire in my backyard while trying to live in secrecy, the fire would have been caused in part by the government’s authorization of the first squatter’s actions. Think of if you woke up in the middle of being raped and the government had authorized the bodily penetration of passed out people because in prior cases the victims hadn’t woken up. You would suffer damages because of the government’s authorization. Landsburg may say that in his hypothetical, the victim doesn’t wake up, but lawmakers do not pass legislation based off of a single hypothetical. To put it simply, we require consent because we seek to avoid incurring potential damages to our property.
In his blog, Landsburg asserts that, “bodily penetration does not seem to be in some sort of special protected category,” but if somebody came onto my property and started drilling for oil without my permission, the law would stop them, just as it did the squatter in my thought experiment. In our society, one must have consent in order to use another’s private property, or else the law punishes him. I hope that the law remains unchanged in this respect, because I don’t want to live in a world where private property isn’t held sacred.
Ondo is a member of the class of 2014.