Node your homework. This is a paper I wrote for a graduate course in Theories of Value; the theme of the course was the constitutional limits to free expression, but we looked at other forms of indecency and impropriety as well. The prof said he enjoyed my paper, and he gave me an A.
Taking the bite out of crime: Consensual cannibalism and the new limits of community tolerance in Canada
"Something to chew on"
In December of 2005, The Globe and Mail published a letter to their editors from one Mr. Keith Stringer. The letter, which the editors titled "Something to chew on", was in response to the paper's reaction to the Supreme Court's ruling in the case R. v. Labaye. I quote Mr. Stringer's letter in full:
Cincinnati — Your editorial Just Like That, There Go Community Standards (Dec. 22) voices the concern that "the idea that social and ethical norms and values are reflected in the criminal law is out; in cool Canada, anything goes." One might wonder how those disagreeing with that editorial would feel about having cannibalism clubs in their neighborhoods.
The courts, after all, now appear powerless to intervene against a club serving cooked human flesh from those donating their bodies of their own free will prior to their demise: There would be no acceptable evidence that the "conduct at issue harmed individuals or society," and the only real danger to those eating is that they might catch a disease-causing agent – but this danger is "conceptually and causally unrelated to indecency." Indeed, cannibalism clubs would fulfill the new criteria outlined by the Supreme Court, most especially if those eating feel sexually aroused in so doing.
Perhaps the tolerance of cannibalism would signal an important advance toward a more progressive society.
Now, I take Mr. Stringer to be writing facetiously. This might go without saying. But I am going to take up Mr. Stringer's question in earnest. If I've understood his letter, he offers a reductio ad absurdum: the Court's reasoning in Labaye opens the door to an unacceptable possibility, so their reasoning is unacceptable. I'd like to challenge this. Would cannibalism – even cannibalism! – challenge the fibre of a society founded on principles like those endorsed by the Court in Labaye? I would like to suggest that it does not. If I have read Mr. Stringer rightly, he is trying to force the hard-line liberal into a ridiculous position; but I would like to suggest that the liberal can have the courage enough of his convictions to say, "So what?"
Our culture is fascinated with the man-eater in its many guises: vampire, werewolf, psycho cannibal killer – perhaps it's only natural that a culture like ours, whose prevailing normative discourse is understood to be derived from the dignity of the human being, will be captivated by a monster characterized by its contempt for integrity, equality, autonomy or humanity. We have also been educated, over the past two hundred years or more, on the profound psychological connection between murder, profanation, and lust – and notwithstanding our avowed moral norms, these connections have deeply penetrated our collective MORAL CONSCIOUSNESS, and form a vital part of our counterculture. Our fascination accounts, I think, to a large part at least, for the inarticulate revulsion many feel at the prospect of cannibals running around scot free; but this fascination also means that, notwithstanding our moral commitments, some perverse souls will be drawn to this course. Who wouldn't want to share some of the mystique and majesty enjoyed by Dracula, or Hannibal Lecter? In any event, none of this determines my point. I mention it only to give some sense of the stakes. My present thesis is much simpler. Can a liberal community tolerate even the most extreme acts of indecency, as long as they satisfy the formal requirement of consent? I should like to say it can.
A taste of things to come?: Armin Meiwes
Mr. Stringer's scenario, clever though it may be, seems unlikely. It might be helpful to counterpose it with a recent real-life case: that of the cannibal Armin Meiwes. Mr. Meiwes used the Internet to solicit among users of gay chat forums, looking for someone to volunteer to be butchered. He received hundreds of positive responses, and met with several potential victims who enjoyed some dark role playing but who were unwilling to go further. In March of 2001, however, he met with Bernd Juergen Brandes, who was as resolute in his desire to be slain as Mr. Meiwes was to kill. On the occasion of their meeting, Mr. Meiwes mutilated and killed Mr. Brandes, then apportioned his cadaver to be eaten over the coming months. Parts of the process were recorded on video cassette. The court would hear that Mr. Brandes gave his full and informed consent and cooperation throughout the process, and even participated in his own mutilation. Afterwards, Mr. Meiwes met with other potential victims, but again, when it became apparent that they would not consent to his preferred treatment, he let them go. Shortly after police searched his house (after having responded undercover to his ads), Mr. Meiwes turned himself in, and fully cooperated with their investigation into his crime. He was tried in Landgericht Kassel through December '04 and January '05.
Mr. Meiwes insisted, in his defense, that what he had committed was the crime of "killing by request" ("Tötung auf Verlangen"), a wrongful homicide with a maximum five year sentence under §216 StGB. Although it is usually used to prosecute euthanasia cases, Mr. Meiwes pointed out that Mr. Brandes had wanted to be killed, as the court acknowledged. Mr. Meiwes was only acting as instructed. The prosecution, of course, wanted him convicted of murder, which has a life sentence with no chance of parole for fifteen years. In the end, the trial judge ruled that Mr. Meiwes was guilty of manslaughter, and sentenced him to eight and a half years in prison. The consent of the victim was regarded as a mitigating factor.
In April of '05, Germany's Federal Court of Justice ordered a retrial of Mr. Meiwes's case. In their opinion, the trial court had failed to take into proper consideration certain important characteristics of the crime that might distinguish it as murder under the German Criminal Code (§211 StGB), rather than manslaughter. Notably for the present discussion, the homicide was, in part, a means "to make possible another criminal offense" ("um eine andere Straftat zu ermöglichen"), in this case desecration of the dead ("Störung der Totenruhe", literally "disturbing the peace of the dead"; this crime is described in §168 StGB). For the trial court, the victim was held not to have been desecrated, because he had given consent to what would follow. The Federal Court, however, argued that the victim's feelings are not all that matter; the public's feeling for the sacred must also be considered, "the ground [for which] is the awareness of each human being's right to dignity throughout and beyond the coming of death, and of the human being's dignity as an essence of humankind." (This is my translation from the "Kanniballen-Fall" press release, with help from Siobhan.) For these reasons, the Federal Court referred the case to Landgericht Frankfurt am Main to be heard anew. On 9 May '06, he was convicted of murder and sentenced to life in prison.
Notwithstanding the media's salacious account of Mr. Meiwes's childhood (like something out of Robert Bloch's imagination – an absent father and a domineering mother, a huge dilapidated farmhouse, their nearest neighbor and closest friend an avowed curse-slinging Satanic hag), Mr. Meiwes was a normally functioning member of society. He was demonstrably scrupulous in respecting the rule of consent.
I've detailed this case to show that there are some who would be very interested in what Mr. Stringer has suggested. These people, the kind I have in mind, aren't random or compulsive psychotic murderers; whatever else might be wrong with them, they take consent seriously, and intend no harm. There may be untold scores of such people in Western Europe alone, and if Mr. Meiwes is any bellwether, they may be getting bolder. What may pass as a joke in poor taste for one nation, is another's unpalatable reality; and it may be only a question of time before a similar incident happens here.
Digesting the law
Are Canada's courts really "powerless to intervene" in consensual cannibalism, as Mr. Stringer suggests? How would Mr. Meiwes have fared in this country? These are questions of law that remain to be decided. Only the Supreme Court can say whether it can allow the state to intervene. I find it likely that they would decide they weren't powerless; but, as I will also suggest in this and following sections, it seems to me that they certainly could condone it, on what I hope is a reasonable interpretation of the law as it stands now. To demonstrate this, we need only consider the precedents, the scope of Labaye and the added complexities of cannibalism under the law.
Section 7 of the Charter of Rights and Freedoms guarantees that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." In Rodriguez v. British Columbia (Attorney General), it was acknowledged that s. 7 of the Charter protected "personal autonomy (at least with respect to the right to make choices concerning one's own body), control over one's physical and psychological integrity ... free from state interference, and basic human dignity". (At 521) However, a restriction on this freedom, such as that making assisted suicide a crime (the challenge facing that court), was found to be "grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This state policy is part of our fundamental conception of the sanctity of life." (ibid.) Even a dissenting Judge, Antonio Lamer, insisted that "the scope of self-determination with respect to bodily integrity in our society is never absolute.... [T]here are always limits on the treatment ... to which [a] patient will be legally permitted to consent." (ibid., at 560) Ultimately, in his majority decision, Justice John Sopinka would go so far as to argue that a strict respect for autonomy and dignity (ie., for the citizen's absolute prerogative to give consent even to be killed) is NOT A PRINCIPLE OF FUNDAMENTAL JUSTICE that the Supreme Court would be willing to recognize. (ibid., at 592 & ff.) In short, the law in Canada is quite clear: No citizen can give consent to be killed by another; no fatal indemnity will be honored.
So much for any Canadian analogue to Mr. Meiwes. But Mr. Stringer's conceit removes this complication: he imagines a club to which one wills one's remains AFTER a death due to other causes. In this scenario, the question of giving consent to be killed need not be raised. So let's focus on its criminal essence. An act of cannibalism (without homicide) would most likely fall under the purview of s. 182(b) Cr. C., which I'll repeat here:
182. Every one who
...
(b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Notice the disjunct: "improperly or indecently ... or offers any indignity". On a strictly logical reading of this phrase, it could be said that a treatment of the dead may be decent and dignified but still improper; more to the present point, it may be proper but still indecent or undignified. I take "improper" to mean treatment that would not be in accord with the wishes of the deceased, or their executors; I take "indecent" to fall under the scope of the Court's past rulings on criminal indecency in other connections (including Labaye, which I'll discuss below). "Indignity", I expect, would be defined in terms of the principles of autonomy, equality and respect for persons that are held to determine implicitly the rights enumerated in the Charter; this, I take it, would be most in keeping with how the Court discussed "dignity" in Rodriguez. I will return to "indignity" later; first, I want to discuss "indecency".
Would Labaye have any impact on these laws, as Mr. Stringer suggests? In that case, the Court had to develop a concrete test that would reflect its earlier position, in R. v. Mara, that "the community standard of tolerance test [for indecent criminal conduct] amounts to a test of harm incompatible with society's proper functioning". (Labaye, at s. 4.1 par. 23) Consensual cannibalism, performed in private, seems to pass the test as the Court has set it out. No one has to be confronted with an interference to their autonomy; no third party need be exposed in such a way as to predispose them to anti-social behavior; and no one is harmed in the act itself, ex hypothesi.
It must be remembered that the Court has already denied that the harm principle is a principle of fundamental justice (Malmo-Levine), and Labaye doesn't change that. The new test in Labaye only addresses criminal indecency, not absolute criminality. The Court has affirmed that harm is a primary state concern (Malmo-Levine again), but it may decide that other tests, such as one for "criminal indignity", might not hang on harm or consent. (Indignity raises further philosophical questions, and will be explored below.) It must also be noted that the Labaye test is not complete. There may be other harms that have not been named yet; but what they might be, I would rather not guess at.
So far, things are looking alright for the cannibal; but we still have some important ground to cover.
Putting some (philosophical) meat on the (dialectical) bones
The question I have put down here is not strictly legal, but moral: Can a liberal society tolerate voluntary cannibalism? The law of a liberal society can change to reflect the answer we give to this question.
Now it seems to me that a challenge like Mr. Stringer seems to pose, exhibits a misunderstanding of hard-line liberalism. The core liberal rule for restricting the scope of law takes the following form: With regard to any given act, we must ask whether direct concrete harm comes to other parties as a result, and whether the participants of the act have given their informed consent. If none are harmed, and all have consented, then THE ACT NEEDS NO FURTHER JUSTIFICATION as far as the republic is concerned. It will have been determined that the conduct of these participants is quite simply none of our business, no matter how strongly we feel about it personally or morally. The non-liberal can trot out whatever monstrous example they like; as long as liberals take their own proposal seriously, they may take these examples with complete coolness.
Historically speaking, the liberal's concern has been to minimize provocation or alienation of minorities, to the advantage of all. Other things being equal, a state is more stable the more widely it enjoys support of the public. Since no one wants to be harmed or told what to do, this forms the basic point of consensus for reasonable persons, and founds liberal theory. Practitioners of different lifestyles tolerate one another in order to focus on common or reciprocal goals; they set aside their differences in order not to make nuisances of themselves to one another, so that conflicts might be kept to a minimum. Even a majority, an overwhelming majority, is capable of exercising this kind of restraint in its business with a minority when that minority is capable of making any harassment very bothersome for the majority.
Be all this as it may, it could still be asked: Why should we care about this miniscule minority, whose "lifestyle" is so extreme and disgusting? The first, and less satisfying, response is that every act of enforcing a law has its attendant cost. Even a rare breed of killer, who commits an uncommon kind of crime and who cooperates with police when caught, will still cost the public a great deal as they must investigate his case, hold him, try him, and punish him – perhaps taking care of his basic needs for decades to come. For purely economic reasons, we may want to avoid expensive proceedings unless there is a compelling public reason to do so, which would be difficult to find in the case of consensual crimes. But in answering this way I have begged the question; it remains to be asked, why should harm be the only "compelling public reason" we recognize? Smooth relations with the majority may be the PREVAILING public reason for recognizing the freedom of large minorities, even if we admit other concerns; but for a few alien individuals, another balance might hold. I can imagine two concerns that might be offered to justify keeping cannibalism a crime: First, a moral distress at indignity offered on a body (of the sort the German Federal Court of Justice would like taken seriously). Second, a concern for the social or practical conditions for the possibility of substantive freedom and equality. (With this, we'll have returned to the theme of "indignity", as I take it to mean in Canadian law.)
I will return to the second concern in the next section. As for the first, I would like to simply dispose of it as incompatible with the liberal principle. Liberal thought offers the Harm Principle in order to combat our apparent historical tendencies to invoke moral distress as an element of justice. The argument has been given often enough before; let me just refer to one example that happens to be close at hand. As Wayne Sumner points out (45ff., invoking JS Mill and HLA Hart in his support), the liberal is most concerned to empower individuals in their private capacities, to do as they wish without depending on the approbation of others. To say that the offense caused to them by actions they view as immoral or disgusting is to count as a "harm" like any other, is to co-opt liberalism and distort it in a radical way. Thus I'm quite content to dismiss this concern, and move on to what I consider a more interesting problem.
More food for thought: Substantive autonomy
"Consensual cannibalism" expresses a sort of demented irony. On the one hand, we posit a real concern for adherence to the formal requirement of consent. On the other hand, the substance of the act is a pure expression of contempt for autonomy and equality. Cannibalism is an inherently disrespectful act; it necessarily establishes an inequality between killer and prey. The cannibal treats his victim like a thing – literally, like a piece of meat. He dismembers his victim, liquidating their personhood and rendering their body unfit for human or even animal life. Even if he doesn't kill his prey himself, he still removes from them any semblance of humanity by virtue of his act. And yet, ex hypothesi, he is enabled to perform this disgrace by a substantial exercise of his victim's personhood. The victim, in being able to consent or refuse what is to come, is an equal party to it, even if what he chooses is a role inherently subordinate. Mr. Meiwes released his – let's say, his guests – when they declined consent; he even thought of his crime as a spiritual communion and the highest form of intimacy. Adherence to the formal principle of consent is, in this case, not a mere convenience or strategy; underlying it is a real respect for the meaning of personhood. This is the irony of consensual cannibalism: it is both contemptuous and respectful, equal and unequal, undermining autonomy and affirming it at once.
However, legislating against cannibalism on the grounds that it compromises substantive liberty expresses a sort of hypocrisy. In the name of bolstering "real" liberty, we posit a constraint on the actual range of options an individual may choose (in this case, they cannot choose death and indignity). If autonomy is to mean anything, substantively I mean, it must mean the prerogative to choose from real options, real commitments and lifestyles, without having our range vetted by the state any more than is demonstrably necessary. If equality is to mean anything, it must mean a respect for our chosen way of life, even when it is different from that lived by others. Now a strict harm-based restriction seems to me to maximize autonomy, because it targets only those acts that concretely and practically restrict the liberty of others. It uses force only against force. But now, the proposal at hand is that further restrictions may also improve autonomy and equality – in spite of the fact that they limit acts that don't concretely or practically restrict the subject's liberty. What are we to make of this?
There are two forms the present objection might take. First, one might say that, although no one is harmed in a given act of consensual cannibalism, nevertheless we might see secondary harms as a consequence. For example, there might be moral slippage, such that a cannibal who gets his victim's consent today might grow to have less respect for autonomy generally, to such a degree that he might not bother with formalities tomorrow. Second, one might say that acts like cannibalism express a contradiction of the basic principle of autonomy, and that therefore a choice to submit to this act cannot be substantively free.
The first form of this argument does identify a possible connection between the considered practice and some non-consensual crime. Common sense might suggest it's founded; but whether this connection is rational depends on the findings of empirical investigation yet to be done. Our only case study, that of Mr. Meiwes, seems to indicate that this connection doesn't hold as strongly as one might be inclined to think. (He clearly intended to commit the same offense again, but not a worse one.) For want of evidence, "rational connection" to "anti-social behavior" would need a further argument before we could take it seriously.
Let's consider the second form. On this view, the indignity offered on the body is of an order too great to be covered adequately by consent. The (alleged) contradiction inherent in consensual cannibalism renders it what we might call a "transcendental harm", a harm even when it's consented to. The problem with this view, as I see it, is that an irony is not necessarily a contradiction, and we really take for granted that it doesn't establish a transcendental harm in other areas of our life. We may consider another case of irony – not as extreme, not as acute, but irony of the same sort nevertheless. Consider religion. (I'm indebted to my colleague M. Grellette for suggesting this comparison.) We recognize a person's faith as being a prime example of the kind of choice with respect to which the state most needs to respect autonomy and equality. But for the vast majority of the human race – especially practitioners of the Abrahamic or Indian religions – the highest act of autonomy is submission to the divine authority of scripture. True autonomy, adherents say, consists in a renunciation of autonomy – it consists in pure obedience. It seems to me that this is an irony of exactly the same sort as that which we find in consensual cannibalism: an exercise of autonomy is a rejection of it. All this, and yet no liberal is likely to think we could increase the net autonomy of society if we outlawed religion. Even a cold-hearted reprobate of the most convinced character, if he acknowledges liberal principles, will admit that we must tolerate religion and the free exercise thereof. It would be a paternalist hypocrisy to do otherwise. Society is not destroyed by an irony.
We might also ask whether the "harm" being supposed here isn't, after all, a moral one. It posits a harm that is so, no matter whether the victim identifies it as such, because it fundamentally compromises his normative status. That sounds to me like a moral harm.
In sum: Irony, I think, is better than hypocrisy. Cannibalism that adheres to the formal requirements of consent, is surely an irony. But criminalizing it in the name of freedom and equality, is hypocrisy. Therefore allowing cannibalism is better than criminalizing it. Of course we might want to add stringent limits on the time, place, and manner in which cannibalism might occur, we might want to insist on affidavits, witnesses, psychological and medical evaluation of both parties, etc.; these kinds of stipulations don't contradict the principle of consent and they allow the state to pursue its own agenda to protect the vulnerable. They are perfectly compatible with a liberal society, even one that allows cannibalism.
Putting the case to rest
In the preceding, I have considered whether an act of consensual cannibalism might constitute an indecency or an indignity, according to the liberal understanding of those terms as I take them to currently stand under Canadian law. I have argued that it would not. While this might disturb Mr. Stringer, it makes a gleeful patriot of my inner Sadean. I haven't dared to try to engage a substantive non-liberal challenge (insofar as Mr. Stringer's point depends on how we would "feel", I have nothing to say about it); my only interest was in treating Mr. Stringer's seeming reductio. Do we have reason to think a consensual cannibal in my neighborhood – or my nation – would threaten my community, a liberal community? I must say, no: the very foundations of a liberal society can accommodate even the most extreme conduct, so long as it is consensual, and regulated, if need be, for context and safety.
Works Consulted
Bundesgerichtshof (German Federal Court of Justice). " "Kannibalen-Fall" muß neu verhandelt werden." News release, April 22, 2005. Click for link. (April 9, 2006)
Canadian Charter of Rights and Freedoms. Schedule B Constitution Act, 1982. Click for link. (April 9, 2006)
(Case of Armin Meiwes.) Bundesgerichtshof, Urteil vom 22. April 2005 -2 StR 310/04 -Landgericht Kassel (2005) Click for link. (April 9, 2006)
Criminal Code of Canada. RS, 1985, c. C-46. Click for link. (April 9, 2006)
Jones, Lois. Cannibal: The True Story Behind the Maneater of Rotenburg. New York: Berkley Books, 2005.
R. v. Malmo-Levine; R. v. Caine. 2003 SCC 74 (2003). Click for link. (April 9, 2006)
R. v. Mara. [1997] 2 SCR 630 (1997). Click for link. (April 9, 2006)
Rodriguez v. British Columbia (Attorney General). [1993] 3 SCR 519 (1993). Click for link. (April 9, 2006)
Strafgesetzbuch (German Criminal Code). Click for link. (April 9, 2006)
Stringer, Keith. Letter to the editor. The Globe and Mail. December 27, 2005.
Sumner, LW. The Hateful and the Obscene. Toronto: University of Toronto Press, 2004.