At that point I was talking about moral culpability - it’s clear in that hypothetical that the woman can legally consent. Of course we would always consider someone using false pretences to be in some way morally at fault: the question is whether the consentor bears any responsibility for inaction. The argument would be - liar claims that he owns the sports car. If the ownership of the sports car was essential to the consentor’s consent, consentor should verify ownership in some way.PadmaVonSamba wrote: ↑Thu Aug 04, 2022 12:28 pm I agree with most of what PeterC argues, except for this part, which suggests that a liar or con-man isn’t to be blamed:PeterC wrote: ↑Wed Aug 03, 2022 7:19 amAs a hypothetical - guy rents an expensive sports car, borrows an expensive suit and a watch, turns up at a bar claiming to be rich, and seduces a woman on that pretext. Can the woman consent? Yes of course she can. Her consent may rely on false representations that she's received, but that's her problem, not sports car guy's problem.
To take a more extreme example. Requestor says he doesn’t want to use a condom. Consentor asks if he has an STD, requestor says no. Is it consentor’s moral responsibility if the requestor is lying? Our intuition would be that requestor bears some moral responsibility if he is lying. But if this was an essential component of consent, the consentor could require additional evidence before consenting (test results, getting to know him better, etc.).
But in any case, it is clear that both legally and morally the consentor can give consent in those cases. Which brings us to your broader point…
This analysis would be jurisdiction-specific. But legal consent is largely a categorical issue. Some people are not able to give consent, whatever they say or do. Someone in jail custody cannot consent to sex with a warder (in common law jurisdictions at least).A very good point was raised, which is that a person must be able to give consent. They must be mentally competent and emotionally stable. And I think a key issue here that people often go to spiritual teachers precisely because they may be in an emotionally unstable, or vulnerable state of mind. In that case, it should be argued that true consent is not possible.
“Consent” and “willing consent” are two different things. I once heard an attorney explain that ‘consent’ under duress could still be legally regarded as willing consent. In other words, if I tell you to do what I want or I’m going to hurt you, and you say okay, that’s consent. But it’s not willing consent.
There are situations where the requestor has the ability to coerce the consentor - for instance a manager who controls a subordinate’s compensation or career, or a teacher who gives the consentor grades. Those situations are however not crimes of sexual abuse or rape - they are either labor law offences, or handled by non-judicial systems (university or company disciplinary procedures, medical ethics boards, etc.). That is - consentor can consent but requestor is not, as a condition of employment or licensing, permitted to make the request or engage in that behavior.
So let’s return to the hypotheticals, Justice Breyer, and I think this is where it becomes interesting.This relates to the point I mentioned earlier, that coercion generally involves facing some kind of negative consequences for not complying with a demand. If a teacher tells the student that not offering sex will land them in vajra hell, or that giving sex is some kind of ultimate generosity that guarantees buddhahood or some other bullshit, this is no different than a boss telling an employee that they will either be fired or get a promotion depending on whether there is sex or not.
But as PeterC points out, each case needs to be examined (to see if this is what happened), and also whether the alleged victim was in a clear state of mind or not. Otherwise, arguing that a teacher-student relationship automatically makes the student vulnerable requires reasons for why that automatically makes a student vulnerable.
Let’s take the allegations that a senior lama coerced a nun into sex. If the lama had been a professor and the nun a student, the university might have fired him. If the lama had been a doctor and the nun a patient, he might have lost his license. But there is no lama licensing board. The lama clearly had power over the nun, and abused that, but there are no formal consequences.
At this point people start to say - sanghas must have codes of ethics! Teachers must be subject to a disciplinary committee! But it doesn’t work like that; and in some systems (notably vajrayana), it can’t work like that, for reasons we’re all familiar with. The problem has to be solved at a different level. People shouldn’t take vows from teachers until they have confidence in that teacher. People should walk away from teachers they have doubts about. Sanghas should not support teachers they have issues with. Lots of lamas have given clear and practical advice on this. But what you can’t do is take a modern American disciplinary system and impose it on the student/teacher relationship. It doesn’t work.
And if teachers break the law, people should report them and support police investigations. If you have evidence that justifies that, it should be the first port of call, not some BS conciliation process run by a friendly lawyer on behalf of the sangha’s leaders so that everyone can “heal”. If a lama thinks he can maintain equal taste / rest in rigpa / whatever during sex (for the benefit of a student, of course), then it should be easy for him to do the same through a short prison sentence.
Vajrayana commitments bind the student, yes, but one can always conclude that the teacher was not a qualified vajra master and therefore no samaya exists. That was a persuasive argument with Lakhar at least. But this does not transcend legal responsibilities. And if the teacher says “don’t talk to the police”, well, see above.Of course, reward/punishment coercion is possible for many reasons. There are a lot of power struggles in Buddhist institutions. Being in a teacher’s “inner circle” will have its privileges. And in Vajrayana there is the narrative that the pupil must do whatever the master says, which is largely based on legends such as the relationship between Marpa and Milarepa. If a teacher interprets this in a modern-day context for his own advantage, yeah, that’s definitely a problem.
(Apologies for the long reply)