Consensual Penetration

I know it’s a provocative title - and probably not something to make tasteless puns about - but surely, surely, the following principle must hold in all but the most extreme circumstances.

If you are going to stick something into someone else’s body you must first obtain consent

It all seems very straightforward and reasonable, particularly in the context of medical or sexual interactions, but it doesn’t take too much thought to realise that, depending on the circumstances, it’s actually a freakin’ minefield of moral ambiguities and problems.

- What does consent even mean?
- If consent is based on incorrect information, is it still consent?
- If consent is given after some element of coercion, is it still consent?
- Who is deemed able to give consent?
- Who can override that consent (or non consent) and in what circumstances?

If you expand consent into other areas of life (no, dear, I really prefer the toilet seat in the vertical position) then off the top of my head there’s a zillion circumstances I can think of where the issues are not quite so clear cut when it comes to consent - and the various negotiations and manipulations that might go on to obtain the consent of another for any particular action.

There’s a reason I retreated into the safer world of physics - these kinds of difficult moral issues make my head hurt and I’m not at all sure I have the correct perspective, or even a reasonable perspective on things. As a rule of thumb, but only a rule of thumb, I’m not at all comfortable with the application of coercion or pressure to get someone to do something they don’t want to do. But tell that to my erstwhile bosses - there were times when I needed someone to apply appropriate pressure - particularly when it came to the tedious (and in my view often useless) paperwork.

When it comes to the issues of kids and consent, the whole landscape changes. The minefield becomes even trickier to navigate and the consequences of getting things wrong even more damaging. For example, at what age should we ‘allow’ a child to determine their own gender? At what age should we allow a child to undergo any medical intervention to alter their physical characteristics to align more closely with their ‘chosen’ gender?

I’m sorry, I don’t have any one-size-fits-all answers to these kinds of questions - but I do know we’d better make bloody sure we know what we’re doing when it comes to kids. And if there’s one thing I’m certain of, they should never become pawns in some sort of ideological battleground - however we might dress things up as “doing the best thing”. If you can truly separate “the best thing” for someone else from your own prejudices, influences and motivations then you’re a better person than I.

I would always question my own ability to be truly objective when making decisions on behalf of someone else. I definitely get decisions on behalf of myself rather fucked up more often than I’d care to admit - so why do I think I’d get a better hit rate when it comes to making those decisions for someone else?

The problem is that, as parents, when it comes to our kids we have to make these kinds of decisions. As imperfect as our influences might be, as wonky as our decision-making processes might be, we have no other choice but to do our best to try figure out what is in the best interests of our kids.

So what happens when there is a conflict - say, when two parents disagree on whether their kids should be injected with the Goo?

A recent court case in Ontario examined exactly this. The father and mother had separated and the older child lived primarily with the father. The younger children, 10 and 12, lived with their mother. The mother did not want these 2 younger children to be vaccinated. The father did. They went to court and I really, really encourage you to read the full ruling here.

It’s 28 pages long, but don’t let that discourage you, it really is well worth the read to see what the judge had to say. The judge decided in favour of the mother. (I am assuming the ruling is genuine - it certainly seems to be - but who knows these days?)

Before returning to what the judge had to say about consent, let’s see what else was said in making the ruling.

It’s clear from the opening 2 pages the judge is not at all happy with the overall state of affairs as he* expresses his opinions. Opinions that seem clearly drawn from his own experience of things in the courtroom.

[*I am going to use the masculine pronoun here for convenience’s sake - I have no idea what is the correct pronoun to use here, but I don’t want to have to use he/she at every juncture - so please bear this in mind]

The judge opens with a series of questions :

When did it become illegal to ask questions? Especially in the courtroom?

And when did it become unfashionable for judges to receive answers? Especially when children’s lives are at stake?

How did we lower our guard and let the words “unacceptable beliefs” get paired together? In a democracy? On the Scales of Justice?

Should judges sit back as the concept of “Judicial Notice” gets hijacked from a rule of evidence to a substitute for evidence

The italicization is not mine, but the judge’s. Now, I’m not a lawyer and nor am I well-versed in reading legal judgements, but the opening statements seem to come from a place of significant exasperation and not what I might have expected in a legal ruling.

These opening salvos, and their character, made me pause and wonder whether I was reading a genuine document issued by a genuine judge. But, as we read further, more typical legal arguments are developed (or at least what I might naïvely consider to be ‘typical’ in a legal ruling).

The judge goes on with what seems to me to be an extraordinary paragraph:

And is “misinformation” even a real word? Or has it become a crass, self-serving tool to pre-empt scrutiny and discredit your opponent? To de-legitimize questions and strategically avoid giving answers. Blanket denials are almost never acceptable in our adversarial system. Each party always has the onus to prove their case and yet “misinformation” has crept into the court lexicon. A childish – but sinister – way of saying “You’re so wrong, I don’t even have to explain why you’re wrong.”

This judge clearly has some very serious concerns about the way things are going, based on what he’s seeing in his courtroom (family court), and he wants these issues up front and central. After discussing the different tenor of the approaches of the father and mother he summarizes his perception:

We’re seeing more and more of this type of intolerance, vilification and dismissive character assassination in family court. Presumably we’re seeing it inside the courtroom because it’s rampant outside the courtroom. It now appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you.

What led him to make such a statement was the different character of the evidence provided. The mother (cautious about the Goo) presented scientific documents to support her arguments. The father (pro-Goo and wanting his kids to be vaccinated against the express wishes of the mother and the children themselves), relied primarily on government sources and the mother’s social media posts which he used in an effort to discredit her viewpoint, by association.

I think you’re getting the picture. What the judge witnessed in his courtroom was something we’re all familiar with. It is rare that misgivings about the Goo are met with reasoned debate. All too often such views are merely dismissed out of hand and pejorative labels attached. The judge expresses his deep concern that this kind of thing is spilling out into the court process - and that courts need to meet higher standards.

There is too much in the ruling to go into much detail here. Like I said, it really is worth a read. However, when it comes to consent the judge makes some very interesting comments.

But when a ten-year-old child says he’s afraid he’ll be forced to take the vaccine – and he specifically wants the judge to know it – I don’t think that’s something the court can or should ignore.

Children may not have wisdom. But they have Charter rights and undeniable emotions.

Any best interests analysis must take into account all relevant factors, including the impact on a child’s mental health if their legitimate and powerful feelings and anxieties are ignored; and if they perceive they are being violated.

The judge agrees with the father that the children, at ages 10 and 12, are not wholly competent to determine the issue for themselves, but neither is he prepared to simply cast aside the wishes and feelings of the children without very careful consideration - including the impact to their mental health and their subsequent relationship with their father if they feel their wishes and feelings have been violated.

Before addressing the evidence presented in more detail the judge outlines some previous cases which have involved the issue of the Goo as it relates to children.

The mother’s evidence is drawn from names we’re all familiar with. What is very interesting are the comments the judge makes about this evidence.

For example, the article submitted by the mother “Are People Getting Full Facts on COVID Vaccine Risks?” quotes Dr. Robert W. Malone, the inventor of the mRNA vaccine. Whether he is right or wrong about the current use of COVID vaccines is a matter for discussion and determination. But with his credentials, he can hardly be dismissed as a crackpot or fringe author.

After discussing some excerpts from Dr Malone, the judge then goes on to say:

For clarity:

a. I am not for one moment suggesting that we should presume the mother’s experts are right.

b. But once we determine they’re not crackpots and charlatans, how can we presume that they are wrong? Or that they couldn’t possibly be right about any of their warnings?

c. When children’s lives are at stake, how can we ignore credible warnings?

Indeed. This judge gets it. And he’s clearly not prepared to be bullied by any pejorative labels that get applied.

The judge then spends some time discussing the concept of “judicial notice” as it applies to this case. This is a concept whereby a court can take note of facts that are beyond dispute. As can be imagined, there’s a fairly high bar set here. He discusses previous cases and notes:

Each of these cases include findings 2022 ONSC 1198 (CanLII) related to the safety and efficacy of publicly funded vaccines on the basis of judicial notice." This shows a misunderstanding of the purpose of taking judicial notice, which, according to the Supreme Court's definitive decision in R. v. Find 2001 SCC 32 (CanLII) (at paragraph 48) is intended to avoid unnecessary litigation over facts that are:

. . . clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

The judge explicitly rejects government advice on vaccination as meeting the requirements for “judicial notice” to be applied.

Public Health Ontario's statement that two children died of SARS-CoV-2 between January 15, 2020 and June 30, 2021 is therefore admissible as fact. Public Health Ontario's publicly accessible document is admissible as proof of the truth of its contents. In contrast, a statement concerning the safety and efficacy of any medication in the prevention or treatment of any condition is, in and of itself, an opinion. Judicial notice cannot be taken of the opinion of any expert or government official that a medical treatment is "safe and effective."

This is very important because he’s rejecting the notion that government health statements (opinions) cannot be challenged in court by application of “judicial notice”. Like any other opinion given in court, they must be examined and challenged and evidence presented.

The judge also weighs in against another phenomenon he’s not at all happy with as it applies to court proceedings

As well, there is a systemic issue common to most of these COVID vaccine cases.
a. The father presented his expert evidence.
b. The mother then presented her expert evidence.
c. The father responded that the mother’s theories have already been “debunked” – so we shouldn’t waste time talking about them.
d. Alleging that your opponent’s position has already been debunked is a common tactic these days.
e. And quite effective.
f. Because unlike stare decisis – the doctrine of precedent which requires judges to follow specifically cited earlier court decisions – there is no such formality to the concept of debunking.
g. All you have to do is make the blanket assertion that an opposing view has already been debunked – without providing any details – and hope that nobody asks for proof.
h. In this case, I reject the father’s claim that all of the mother’s concerns about COVID vaccines have already been properly considered and disproven, in a process adhering to natural justice, conducted by an appropriate judicial body.
i. Quite to the contrary, I have not been able to find any indication – in the father’s evidence or in the body of COVID vaccine case law – that allegedly debunked theories have ever been properly considered or tested. In any court. Anywhere

The judge is clearly very concerned about how social trends have been impacting his courtroom. He then outlines his responsibility

In a complex, important, and emotional case like this, it is important to remember the court’s mandate: 2022 ONSC 1198 (CanLII)

a. I am not being asked to make a scientific determination. I am being asked to make a parenting determination.

b. I am not being asked to decide whether vaccines are good or bad.

c. I am not being asked to decide if either parent is good or bad.

d. My task is to determine which parent is to have decision-making authority over L.E.G. and M.D.G. with respect to the very specific and narrow issue of COVID vaccinations. Each parent has clearly identified how they would exercise such decision-making authority.

In his summing up, in favour of the mother, the judge makes a number of points, but a couple of them are very telling.

I find that the mother’s position is more reasonable and helpful in that she invites discussion and exploration of both sides of the story, while the father seeks to suppress it.

I find that the father has inaccurately and somewhat unfairly characterized both the mother’s position and her evidence

He goes on to say

Pro-vaccine parents have consistently (and effectively) attempted to frame the issue as a contest between reputable government experts versus a lunatic fringe consisting of conspiracy theorists, and socially reprehensible extremists. This was absolutely the wrong case to attempt that strategy. The professional materials filed by the mother were actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father.

Whilst the judge’s determination here applies to this specific case (he makes this very clear) it’s very revealing. His acute awareness of how social trends have leached into, and negatively impacted, his courtroom is something he wants us all to be aware of.

It’s important to note that the judge is not at all critical of the father as a parent. He recognizes that both father and mother are exemplary and both trying to do what is, in their respective views, best for the kids. He is, however, very critical of the father’s approach to this specific case.

What’s fascinating is just how much the judge is exasperated by the quality, or rather the lack of quality, of the evidence presented in favour of the Goo. He finds the arguments to be more emotion-based than evidence-based, in this case.

Something that runs through the heart of the whole ruling is the focus on the interests of the children - and the extreme care that must be taken when coming to a decision. He’s not prepared to simply accept government pronouncements as determinative, and he’s clearly very concerned about the impact of forcing the Goo on these children against their wishes - something he quite rightly describes as a violation.

I have never understood why people who would, presumably, be horrified at the notion of an employer using threats of job termination to coerce sexual favours, are quite OK with the notion that someone needs to be vaccinated in order to keep their job. Even the notion that your vaccination (allegedly) protects others is a coercive one - it is using your guilt instead of your job security as a lever.

Can consent ever truly to be said to exist when there is an element of coercion involved?

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