Social Matter

Inspired by the presentation of the Vagina Monologues, a Claremont McKenna College sophomore, Jordan Bosiljevac, a self-described queer woman of color, recently unleashed a broadside targeting California’s new “Yes Means Yes” law. In it it she opines that “Consent is a privilege, and it was built for wealthy, heterosexual, cis, white, western, able-bodied masculinity.“

My favorite line in the op-ed, however, was the following: “For me, and many others like me, consent isn’t easy. Yes doesn’t always mean yes, and we misplaced ‘no’ several years ago.“ Rarely does one see so clear an admission of such low agency. If, by her own admission, her “yes” cannot be trusted in any meaningful sense, why would she be given any of the burdens and responsibilities of adulthood, such as: the ability to sign contracts for student loans, vote, purchase cigarettes, and yes, consent meaningfully for sex?

In 2003, Richard Thaler and Cass Sunstein published a highly influential behavioral economics paper entitled Libertarian Paternalism. The paper defends the idea that humans are often predictably irrational. They can–and should be–“nudged” into making better decisions (the paternalistic part), by changing default options, while still preserving their freedom to make sub-optimal choices (the libertarian part). Without any serious debate, most societies have adopted a default option regarding agency; rights and responsibilities are “granted” as citizens reach certain age-based milestones. Given that people mature at wildly different rates, and in the case of Jordan Bosiljevac, may never mature at all, is this not an incredibly arbitrary process?

This proposal is an attempt to move towards a system that recognizes that agency should not be taken as a given. Instead of automatically forcing agency onto people, why don’t we create a legal document called a “Master Agency Contract?” (MAC) As a child, you are a ward of your parents (or foster parents, orphanage, etc.), you cannot meaningfully consent to anything important, nor are you held fully responsible for your actions. Many countries, including the U.S., have a legal process by which minors can become emancipated. That is, upon presenting a court with substantial evidence, the court can release the minor from their parents’ custody. This is generally only done in cases involving parental neglect or other hardship.

What I propose is slightly different. Upon attaining some relatively objective evidence of intellectual maturity, such as: a High School Diploma, GED, or economic self-sufficiency, one could go down to the courthouse, and sign a binding MAC, thereby claiming agency.

The MAC would be relatively straightforward: “I, John/Jane Doe, am an adult, I can meaningfully consent to contracts and risky activities, I have agency, my word is binding.” The process would be more or less the opposite of a petition for emancipation. Rather than the burden of proof resting on the petitioner to prove agency, the burden would rest on someone else (i.e. his or her parents or legal guardians) to present strong evidence to the contrary (such as mental illness or drug addiction). In the event no evidence was forthcoming, the petition would be automatically granted.

The application process would not be thrust on everyone, however. Just because someone graduates from high school or turns 18, they wouldn’t be automatically emancipated. Merely the act of applying for the MAC demonstrates agency that many do not have. Some people could go through their entire life as wards of their parents, or later, a trustee. They would be free from burdens like jury duty, conscription, credit card debt, date rape, marriage, and voting. Once they sign that contract, however, they are assumed to have agency. Their decisions become meaningful and binding. Take out a payday loan and later regret it? Tough. Buy a house using an Option ARM NINJA loan with a 0% teaser rate? Tough. Regret the prior evening’s drunken escapades? Tough.

No longer could blacks and hispanics sue a lender for “reverse-redlining” and be taken seriously. No longer would any credence be given to the claims of a crazy ex who, many months later, sues her ex-boyfriend after retroactively withdrawing consent.

Society is unfairly burdening Jordan and many others with agency they neither wanted nor chose. Why not do the fair and responsible thing and create “Master Agency Contracts?”