[HPforGrownups] Re: Occlumency

[Shaun Hately]

No: HPFGUIDX 191682

On 3/01/2012 10:16 AM, dumbledore11214 wrote:
>
> Alla:
>
> Well, term "child abuse" is the whole other issue, I will never agree to
> calling it anything other than child abuse, since I believer that it
> *was* the real thing, but sure, absolutely I will be calling it "non
> consensual mind invasion" from now on. I added the "nonconsensual"
> because the incidents I refer to were in my opinion nonconsensual. As I
> said, I certainly understand that terms could be triggering, and I do
> not want to offend anybody, as long as I do not have to give up my right
> to describe the action as I see fit, I am happy to oblige and in this
> instance use different term.

Shaun:

Again, I'm going to step in with a teachers perspective on this. Because 
I think it is a very relevant perspective in this case.

Let's look at the issue of consent for a moment.

Up until The Deathly Hallows, Harry Potter is a child - legally a child 
by both the Wizarding World's standards (age of majority is seventeen) 
and by our own worlds (age of majority in the UK is eighteen). He is, 
also, significantly, below the age at which a child is automatically 
considered able to consent to most things until the Half-Blood Prince 
(the 'age of consent' is somewhat complex and doesn't just relate to sex 
but to a wide variety of different issues - but generally under British 
law, you have to be sixteen to be considered legally competent to 
consent to most things - we don't know what the exact law is in the 
Wizarding World but I've certainly seen no reason to assume that the 
Wizarding World gives younger wizards the right to consent to things at 
any younger age. It is fairly clear, for example, that Harry still needs 
the permission of his guardian to go into Hogsmeade at the age of 
fourteen (otherwise he would not need Sirius' note at the end of 
Prisoner of Azkaban) for example, underage wizards are not considered 
competent to participate in the Triwizard Tournament, but I think the 
most important illustration of the situation may be found early in Order 
of the Phoenix at Grimmauld Place in the discussion of how much Harry 
should be told about what is going on.

"'What's wrong, Harry, is that you are not your father, however much you 
might look like him!' said Mrs Weasley, her eyes still boring into 
Sirius. 'You are still at school and adults responsible for you should 
not forget it.'"

At fifteen years of age (he has just had his birthday) - adults are 
still responsible for Harry.

Later in the conversation, Mr Weasley points out:

"'Molly, you can't stop Fred and George,' said Mr Weasley wearily. 'They 
are of age.'"

'They're still at school.'

'But they're legally adults now,' said Mr Weasley, in the same tired voice."

It really does seem that being of age is what gives a Wizard the power 
to decide things for themselves. To *consent* in the legal sense - 
rather than those decisions being taken by the adults responsible for them.

So if you want to talk about the idea of Harry being the victim of "non 
consensual mind invasion", I think you need to consider what consent 
means. As a legal matter, Harry can't consent to anything. Consent can 
only come from somebody else. Who is that somebody else?

Here is where things get a bit interesting.

Harry Potter is a child. More importantly, he is a school child - a 
student at a school. Now, in British law (and it has spread to other 
country's from Britain as well) there is an important legal principle 
that governs where a *teacher* gets their legal authority from.

That principle is referred to, in law, as the teacher being 'in loco 
parentis'. In place of a parent.

As a matter of British common law, in loco parentis as a concept dates 
back centuries - I don't think anybody knows exactly how far but when 
Blackstone first codified English common law in 1770, he included the 
concept as an ancient one. And very importantly he makes the explicit 
point that under the doctrine of in loco parentis, a teacher or 
schoolmaster has the same powers over a child as a parent does for the 
purposes of carrying out their duties as the child's teacher.

Now, we do not *know* if Wizarding law in Britain is the same as British 
law - but I think we need to have good reasons to automatically assume 
it wouldn't be similar to historic British law and so my default 
assumption does tend to be that it is similar. And what this means, is 
if you are going to talk about consent when it comes to something like 
Legilemency, Snape probably doesn't *need* Harry's consent to use it. As 
one of Harry's teachers, he has every legal right to use it. It is not 
nonconsensual.

I have to be familiar with in loco parentis, because by an odd quirk of 
Australian law, it still governs a large part of the authority of any 
teacher in a private school (teachers in government schools are assumed 
to derive their authority from the crown - the Government - teachers in 
private schools still derive their authority from in loco parentis). 
Legally, if I believe a student in my care is in danger or dangerous to 
another student I can restrain them against their will, I can search 
them against their will. I can give permission for somebody else to do 
so. It isn't nonconsensual. It's something I have a legal power to to 
and more significantly a legal duty to do. And I would view searching a 
student as the closest real world equivalent to looking into their mind. 
Now, could I do this just because I wanted to? No. I have a reason 
relating to my duty as a teacher - either to protect the child, or 
enforce school rules, or similar. In the UK, I believe, the doctrine has 
become more limited in recent years. In the US I know there's a 
competing legal doctrine called the parental liberty doctrine which sets 
limits on in loco parentis. But until quite recently in Britain, in loco 
parentis was very, very important, and the Wizarding World generally 
seems to be a bit old fashioned in terms of matters like these.

Now, let's look at the cases where Snape *may have* tried to read 
Harry's mind. Personally I think he probably did try in at least some of 
these cases, but we can't know for certain.

Now, I'm relying on the Lexicon here (specifically - 
http://www.hp-lexicon.org/magic/legilimency.html) for examples of when 
Legilemency might have been used. I'm not going to consider cases where 
Voldemort may have used it, because Voldemort has no legal authority 
over Harry and nobody is likely to argue he isn't evil. I'll just look 
at Snape, and Dumbledore.

Example 1 comes from Philosopher's Stone/Sorcerer's Stone, Chapter 10. 
Just after the incident where Harry, Ron, and Hermione have defeated the 
troll from the dungeons, when both Professor McGonnagall and Snape are 
questioning them as to why they were not where they were supposed to be, 
but had instead wound up in a dangerous situation, and where they are 
lying about what they did, Harry thinks Snape is trying to read his mind.

We've got a situation where children have endangered themselves, broken 
school rules, and are lying. If I had the ability to read my students 
minds in that type of situation to try and determine what really 
happened, I would consider myself justified in doing so - just as I 
would consider myself justified in searching them if I believed they 
were concealing something dangerous from me. So would the law.

Example 2 comes in Chapter 13 of the same book. Harry wonders if Snape 
can read his mind and knows that he knows about the Philosopher's Stone. 
Again, this can be seen as an issue of safety. Again, as a teacher, if I 
believed my students were possibly searching for a highly dangerous 
object (say a hand grenade, just for stamps) I would do what I had to do 
to try and find out if that was the case. Again, legally, I would be 
expected to.

Example 3 - Chamber of Secrets, Chapter 5. Harry thinks Snape is trying 
to read his mind to find out what happened to the car he and Ron have, 
in defiance of both wizarding law and at considerable risk to their own 
personal safety - flown to Hogwarts. Again, there seems nothing wrong 
with a teacher trying to use whatever powers they have to work this 
situation out.

Example 4 - Chapter 9 of Chamber of Secrets. Dumbledore may be trying to 
read Harry's mind when Harry, Ron and Hermione are all lying about an 
incident in which somebody has just petrified a cat and written a 
message on the wall about a legendary Chamber of Secrets being opened 
which Dumbledore knows is potentially extremely dangerous. Again trying 
to find out the truth in such a situation is something that I feel can 
be easily justified.

Example 5 - Chapter 11 of Chamber of Secrets. Snape tries to read 
Harry's mind while Harry is actively involved in an attempt to steal 
supplies from the Stores Cupboard. Both dangerous, and definitely 
breaking school rules. Again, I would say this is justified by Snape's 
responsibilities as a teacher.

Example 6 - later in the same chapter. Harry has just spoken 
Parseltongue - traditional mark of a dark wizard, not to mention Snape 
does know a fair bit about Harry possibly having some real connection to 
Voldemort. Again, this does not seem unreasonable to me.

Example 7 - Chapter 14 of Prisoner of Azkaban. Snape is interrogating 
Harry after he has broken school rules by sneaking into Hogsmeade, and 
by the same action has put himself in danger. Justified.

Examples 8 and 9 at the lexicon are further parts of the same 
conversation and discussion. By itself I would not consider 8 
necessarily justified - where Snape seems to be trying to find out more 
about what Harry knows about the incident where James saved Snape's life 
- but within the context of the overall questioning, I would forgive it. 
Especially as with 9, Snape is back to what I consider a justifiable 
'search' of Harry's mind for information - trying to find out if the 
Marauder's Map helped Harry sneak past the dementors thus endangering 
himself and breaking school rules. I would consider example 8 to be 
something that just came up in a justified search situation.

Example 10 - Goblet of Fire, chapter 37. Again, Snape does have reason 
to suspect Harry of being involved in thefts from his stores and I would 
consider that a legitimate search.

The examples only go up to here - maybe there are examples in later 
books where I wouldn't consider what Snape does justified. But I do 
think these examples can be justified. As a legal matter, Snape probably 
doesn't need Harry's consent - in fact, Harry's consent is legally 
meaningless (a teacher has the power to make these decisions precisely 
because the child is not judged capable of giving consent) and, if he's 
trying to determine whether or not Harry is breaking school rules or 
putting himself or others in danger, he actually probably has a legal 
duty to take action.

Snape is in loco parentis. Harry's 'right to privacy' if it exists at 
all, is very limited. Especially when it comes to matters relating to 
his safety.

When Harry wakes up in the hospital wing on a couple of occasions after 
various mishaps, it does appear he has been both undressed and redressed 
while unconscious. Who did that? Presumably Madame Pomfrey. That could 
be regarded as a violation of Harry's privacy as well, without his 
consent, if somebody wanted to do that, but most people would accept 
it's just part of what she would be expected to do in that situation.

I think Snape's use of legilemency can be seen the same way. If somebody 
can point to an example (outside of the Occlumency classes which I would 
argue Harry is agreeing to by their nature) of Snape apparently 
legilemensing Harry without a reason relating to the safety of the 
students or the rules of the school, I'd reconsider my position, but if 
Snape *was* using legilemency in that way, I'd expect such an example to 
be found. The only examples that I've identified so far (with the 
Lexicon's help) are ones where safety and rules were genuine issues.