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Friday, November 22, 2013

Making Law Sex Positive

It has been a good decade for sexual freedom. The Supreme Court issued opinions protecting the rights of gay individuals to engage in sexual relationships and striking down a ban on the federal recognition of same-sex marriages. Two gay teen characters were portrayed as having a positive sexual relationship (leading to a marriage proposal) on network television. Sexual practices formerly viewed as perverse, such as role playing and sado-masochism, seem almost provincial now that there is a copy of Fifty Shades of Grey on every great-aunt’s bookshelf.

But, in an op-ed published in the Washington Post this weekend, I argue that even among this legal and pop culture sexual revolution, much of our law remains curiously silent, squeamish, or disapproving on the topic of sexual pleasure itself. Indeed, several areas of the law rely on the counterintuitive assumption that sexual pleasure has negligible or negative value and that we sacrifice nothing of importance when we curtail it. This phenomenon extends even to legal realms that regulate behaviors central to the experience of sexual pleasure.

The assumption that sexual pleasure has negligible or negative value is simply unfounded, and unfounded assumptions create bad laws and policies. Legal regulation generally sacrifices our freedom to engage in certain activities because the activities result in harm or because regulation generates benefits. Devaluing sexual pleasure distorts this calculus. In truth, sexual pleasure is actually a very good thing, simply because it is pleasurable.

Truly progressive legal reform would recognize the inherent value of sexual pleasure. This would have significant implications for several areas of law, ranging from obscenity to rape law. The op-ed out this weekend is part of a larger project challenging the sex-negativity of law and envisioning how simply valuing sexual pleasure in itself would require us to rethink different areas of law.

Obscenity law, for example, relies on the assumption that offensive speech that is intended merely to arouse is entitled to less constitutional protection than any other type of offensive speech. The Miller test allows states to freely ban any material that depicts sexual activity “in a patently offensive way” and “appeals to the prurient interests.” The First Amendment only protects this material if it has some serious literary, artistic, political, or scientific value to redeem it. In contrast, states may not ban other types of offensive material unless they can show it is likely to cause some harm. If sexual pleasure in itself is valuable, then we can’t justify banning offensive prurient material more freely simply because its primary purpose is to arouse people. Instead, we have to think more carefully about how (and whether) states should be able to regulate any offensive materials.

Recognizing sexual pleasure would also require state courts and legislatures rethink the criminalization of sado-masochistic sexual activities (or “BDSM”). BDSM has become so prevalent in popular culture that it seems almost quaint. But even some consensual spanking can lead to an assault or battery charge in most states. In contrast, the law permits violent sports, cosmetic surgery, tattooing, and skin piercing, in large part because courts and legislatures accept their value. We can’t justify this distinction if we acknowledge that sexual pleasure has as much value as the pleasure derived from a boxing match or cheek implants.

Recognizing the value of sexual pleasure doesn’t mean we have to value it above everything else. We regulate the things that bring people pleasure all the time. We value the pleasure we experience from music, but I may not kidnap Beyoncé and force her to join me on a song-filled road trip, no matter how magical the experience would be for me. Sexual pleasure is no different—we can acknowledge it is important and still regulate it.

But valuing sexual pleasure does require us to regulate more honestly. It allows a more complete and well-reasoned discussion of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

The op-ed “The Joyless Law of Sex,” is available here. “Sex-Positive Law” will appear in the 87th volume for the NYU Law Review in April.

Posted by Margo Kaplan on November 22, 2013 at 05:12 PM in Criminal Law, Culture, First Amendment, Legal Theory | Permalink

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I guess I'm not quite sure what it would mean for the law to "recognize the inherent value of sexual pleasure" and because of that I'm a bit hesitant to sign on. If this just means not assuming that sexual pleasure is valueless, or ought to be inhibited, or is in some ways less valuable than, say, the pleasure one gets from having a very nice meal or taking a walk on a pleasant spring day, then I'm happy to sign on. But at several points it sounds as if you're saying more than that. If I say that something is "inherently" valuable, I usually mean to say that someone whose not interested in it or who doesn't recognize it is missing something important or making a mistake I might even want to say that about sexual pleasure (though I'm not 100% sure) but I'm quite sure that I _don't_ want _the law_ or _the state_ saying that, any more than I want them saying I'm missing something important when I don't see the value of NASCAR or that I'm making a mistake when I don't like Christmas. In all of these cases it seems that the state or the law or whatever would be endorsing a controversial conception of the good in a way that's not legitimate. But, perhaps I'm not understanding what you're saying, so I hope you'll say more.

Posted by: Matt | Nov 22, 2013 8:52:54 PM

Is 'pleasure' itself often cited here? For instance, for promoting the rights of associations, speech, privacy of the home and so forth?

If, as Justice Ginsburg suggests, saying "sex" instead of "gender" was so hard, having older judges and justices talk about sexual pleasure might be particularly difficult. Still, Lawrence v. Texas is open-ended. It doesn't limit protections of "sexual behavior" to certain ends. No longer is it merely for reproduction.

"This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects."

If the "meaning" is purely physical or pleasure, so be it. But, perhaps, that famous Brandeis privacy dissent can be used in this effort. In part: "They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things."

Pleasure. It is useful to respect that "pleasure," not anything "higher" or more pure or profound, is part of liberty. For instance, people read books or watch films purely for pleasure at times. Lawrence v. Texas should have led to -- at least in the privacy of the home -- the end of obscenity laws except to protect against children or unwilling viewers. "Prurient interest" should not be a special category of content blocked. A judge once suggested as much, but don't think it went anywhere. So, your campaign still has force.

Posted by: Joe | Nov 23, 2013 1:20:05 PM

I completely agree. One example of the sex negative position the law takes is exemplified by Cliff Rosky's work on how judges view lesbian and gay parents. In particular, judges cast negative inferences on gay men who express affection for each other, interpreting it as sex, which it is assumed is bad to display in front of children. We are sexual beings, and yet the law is grounded in a 19th century puritanism.

Posted by: Darren Rosenblum | Nov 24, 2013 8:15:12 PM

You said...."But even some consensual spanking can lead to an assault or battery charge in most states."

This is not true. Double check your facts. Hyperlinking sources to text gives your article more credibility.

Posted by: Edmund Skyre | Nov 24, 2013 10:57:59 PM

Edmund: Thank you for your note. Most states follow closely the MPC approach to consent, which would seem to indicate that consent could be a defense to spanking if the injury is "not serious." However, as Vera Bergelson notes in her work, courts have managed to find serious harm in virtually every case of an ostensible assault linked to BDSM, regardless of the injuries at issue. If the injury is considered serious, then whether consent is a defense depends on whether "the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law...." Courts considering BDSM cases have overwhelmingly determined that consent is not a defense in the context of BDSM (compared with, for example, a tackle during a football game or a punch during a boxing match). But, of course, I and others who have researched this are somewhat limited to published opinions.

This is not your point but, as an aside, I think it's a fair criticism that I don't have any empirical research on how often this is prosecuted, and that it's very possible that this is rarely enforced. However, as I argue in my article, the prospect of prosecution and conviction has a significant effect on the BDSM community and our larger culture. It reflects and reinforces the perception that BDSM activities are the domain of the perverted and deviant. The stigmatization of even unenforced criminal law is not trivial, as discussed in Lawrence v. Texas, which struck down sodomy laws that were seldom enforced. Even laws that are rarely enforced have legal consequences; BDSM practitioners who are outed as participating in illegal activities may lose their jobs or even custody of their children. These concerns have prompted the National Coalition for Sexual Freedom to publish guides for BDSM practitioners that address the possibility of arrest and prosecution, discrimination BDSM practitioners might face when reporting nonconsensual sexual violence, and how courts and partners may raise their BDSM practices in divorce and child custody proceedings. The legal status of BDSM therefore deeply affects the lives of BDSM practitioners as well as their families and communities.

Hope you find this helpful.

Posted by: Margo Kaplan | Nov 24, 2013 11:16:35 PM

Matt: Great points. What do we mean when we say sexual pleasure has inherent value? I can't pretend to resolve the extensive debate about the nature of inherent or intrinsic value (and whether it even exists), and you're right that it's a thorny issue.

When I use the term, I am primarily distinguishing inherent value from instrumental value. My argument proceeds on the premise that, when someone derives pleasure from sex, that pleasure has value in itself and apart from any instrumental purpose the pleasure plays in furthering other useful goals (such as emotional bonding or procreation). My main concern with many areas of law is that they assume that the pleasure in itself is not valuable apart from the instrumental value it serves or that such pleasure is of negative value and only redeemed by its instrumental value toward other purposes.

I appreciate your feedback and am interested to hear more or if this post doesn't really adequately address your questions or concerns.

Posted by: Margo Kaplan | Nov 24, 2013 11:28:40 PM

Thanks, Margo- that's clarifying and, I think, probably right. It certainly seems right to me that sexual pleasure ought to be treated _no worse_ than other forms of pleasure by the law, and that it should not be seen as valuable only when contributing to other goods. (I'd think that treating sexual pleasure worse than other sorts of pleasure would run into the same worries I had before, in fact.) If treating (sexual) pleasure as non-instrumentally valuable means that 1) it provides a (defeasible) reason for acting for people and/or 2) the state would need some non-trivial reason for restricting actions seeking such pleasure, then I think I'm completely on board. (The Alabama ban on sex toys you mention in the op-ed would seem like a good example of a law that would violate these limits.) I might hesitate to say that such laws are unconstitutional, though at least in part that might be because I don't think the constitution protects all the things it ought to.

Posted by: Matt | Nov 25, 2013 9:00:49 AM

Would sex-positivity have any consequences for derivative claims for loss of consortium in tort, or is the modern development of that law (particularly in jurisdictions such as California where an unmarried sexual partner can bring the claim) an instance of sex positivity?

Posted by: Sykes Five | Nov 25, 2013 12:14:51 PM

I am not "Edmund", above, but could you provide any links to cases where "courts have managed to find serious harm in virtually every case of an ostensible assault linked to BDSM", even where there was consent?

Posted by: anon | Nov 25, 2013 1:53:34 PM

I wonder how this intersects with recent interest in criminalizing 'revenge porn'. Many (all?) of the proposed statutes carve out a special regime for images and videos that depict sexual activities and the nude or semi-nude bodies. This singling out seems to send the message that public displays of such are or ought to be shameful in a way that can be construed as quite sex-negative.

Posted by: aaron | Nov 25, 2013 5:36:38 PM

"It reflects and reinforces the perception that BDSM activities are the domain of the perverted and deviant."

And your evidence that this is not the case?

Posted by: vic | Nov 25, 2013 8:49:24 PM

Anon at 1/25 5:36: For a more complete outline of cases, see VERA BERGELSON, VICTIMS’ RIGHTS AND VICTIMS’ WRONGS: COMPARATIVE LIABILITY IN CRIMINAL LAW 19-20 (2009). Two examples I can cite for our purposes are Commonwealth v. Appleby, 402 N.E.2d 1051, 1054, 1058, 1060 (Mass. 1980) (holding that a “glancing blow" with a riding crop can constitute assault with a dangerous weapon to which consent is no defense); State v. Guinn, Nos. 23886-1-II, 25856-1-II, 1030 2001 WL 310398, at *12 (Wash. Ct. App. March 30, 2001) (unpublished opinion) (holding that physical injury includes physical pain--this would include almost all sado-masochistic activity by definition).

In many of these cases, consent is an issue of fact. However, the courts first isolate the issue of whether consent could be a defense as a matter of law, and determine that it could not. Hope this helps.

Posted by: Margo Kaplan | Nov 25, 2013 9:04:06 PM

Sykes Five: This is an interesting question and, though I've given it some thought, I haven't explored it very thoroughly. My initial thoughts were that, because loss of consortium had been historically limited to spousal claims (CA notwithstanding), it reflects the view that sexual pleasure is primarily of value when serving an instrumental purpose toward marriage. And, by extension, valuing sexual pleasure could widen the claims to other partners.

However, I don't think it's quite so simple. I think the marital claim limitation was not just about reducing sexual pleasure to its instrumental value toward marriage; I think it is also a shortcut to limit who has a real loss and valid claim. Otherwise, you might have every potential partner (perhaps every person) coming forward and claiming losses for the potential loss of sexual pleasure they would have had if they ever managed to sleep with the injured person.

So my next thoughts were that if we valued sexual pleasure, it would expand loss of consortium to non-marital partners, but newer approaches to loss of consortium would also be limited to those who are involved in a serious relationship with the individual. This at first seems like a Lawrence-like dodge on the sexual pleasure issue, once again reducing it to its value in furthering intimate, emotional relationships. And maybe it is in part. But I don't think this is necessarily the full story. I think it would probably also be a shortcut to ensure that the plaintiff some sort of reasonable expectation of a sexual pleasure that was lost through the defendant's actions.

Another approach would be to use a more flexible standard like "reasonable expectation of a substantial enough number of future sexual encounters to constitute a non-de minimus harm" rather than some type of "serious relationship" standard. This, of course, raises more questions than it answers (how much sexual pleasure loss is not de minimus, for example?)

But these are just my initial thoughts. Torts are not, admittedly, my area, and I would be really interested to hear what those with more expertise on the topic think.

Posted by: Margo Kaplan | Nov 25, 2013 9:19:55 PM

Aaron: Interesting question, but I'm not sure I agree that's the path sex-positivity must take. For one, I don't think that being sex-positive means that we can no longer find unique harms in violating someone's sexual autonomy. For example, I do not think it is sex-negative to recognize a unique harm in rape that makes it a different crime from regular assault or battery. Respecting sexual pleasure also means respecting the boundaries of someone's consent. Similarly, I think that there may be sex-positive reasons for regulating revenge porn.

Another interesting argument is that made by Derek Bambauer, who argues that copyright law provides the best means of regulating revenge porn. This is particularly interesting to the notion of sex-positivity because one of Derek's arguments for using copyright law is that, like many things we copyright, there is value in the creation of consensually made and received sexual images (such as nude images a person might take to send to their partner), and revenge porn threatens to chill their creation. Definitely more than a thread of sex-positivity flowing through that argument.The latest draft of his piece, which will be out in the Minnesota Law Review in 2014, is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2315583.

Posted by: Margo Kaplan | Nov 26, 2013 3:14:58 PM

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