Monday, August 3, 2015

Consent in Captivity

If you don't already subscribe to Simple Justice, consider adding it to your list. Greenfield is usually entertaining, always prodigious (at least 2 word-packed posts a day), and unfailingly filled to the brim with righteous indignation. It's also good to see what law looks like from the trenches if, like me, you're either a punter or an academic.

Today's AM post was of particular interest to me in my capacity as a fan of prison drama. From the old WIP exploitation films of the 70s to the mostly well-executed premium TV shows of today (Oz, OITNB), I've been a fan of the genre as far back as I can remember. And always and everywhere, one of the enduring literary tropes of the Caged Heat variety is sex in prison. Is it lewd? Is it rude? Is it always in the nude?

More importantly for EE purposes, can it ever be consensual? I don't mean just guard-and-inmate relations, which obviously contain coercion, but prisoner-prisoner relations. Excluding forcible rape, can a prisoner tryst be euvoluntary? In prison, indeed in any extended-stay, isolated community, outside options are limited. You aren't really free to choose with such limited choices, right? It would be a bit like being locked in a restaurant and then being asked what your favorite food is. Sure, you might choose something off the available menu, but are you being sincere or merely convenient?

Then again, even people with the relative liberty afforded by all our modern conveniences hardly consider anything more than the tiniest sliver of the entire world population. Even with the assistance of computers, we generally limit ourselves to the people available in our communities, our workplaces, our schools, our churches, our online forums, &c. Folks in the regular world are presumed to give free and clear consent even with all those limitations.

How good a BATNA is good enough? Can a prisoner give enthusiastic consent? Can anyone in a cloistered community give enthusiastic consent? How cloistered is cloistered?

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Do you have suggestions on where we could find more examples of this phenomenon?