Sex, Morality and the Law

Everybody has moral beliefs or judgments about what sexual conduct is right or wrong. Some of those beliefs become encoded into laws that everyone is expected to obey, on pain of punishment. Why do some moral beliefs about sexual conduct become laws, while other beliefs do not?

In the past, religious authorities merely dictated moral standards of sexual conduct, based on divine revelation to church leaders, or expert interpretation of ancient “scriptures.” Such sources of supposed spiritual authority have been openly cited as justification for secular legislation regulating sexual conduct (1).

Later the primitive medical profession recommended the same moral precepts, by coincidence, but then claimed such standards of prudery were necessary to prevent epilepsy, blindness, infertility, etc. Even though such primitive medical claims have now been rejected by modern evidence-based medicine, the same laws – usually over 100 years old – are still on the books regulating sexual conduct today (2).

The primary legitimate function of governments is to create or maintain public order, i.e. minimize conflicts between citizens and groups. A government makes, administers, and enforces laws, such as requiring that everyone drive on the right side of the road, to avoid excessive disorder or chaos on your way to work (3).

According to some legal scholars, legislation is primarily guided by utility – the benefits expected from prohibiting certain conduct. In theory, such benefits are for everyone or most people, not for some special interest group. Justice is supposd to apply in the administration of the law – for everyone or most citizens, not merely some well-financed lobby. A cynical joke is: How much justice can you afford?

Although citizens are formally obligated to obey laws, the government is unable to eliminate all law-breaking. Some statistics suggest the majority of property crimes go unprosecuted and unpunished, and that is probably true of other types of crime as well. The government is simply unable to prevent most crimes or catch most criminals. So citizens are also educated to obey laws voluntarily to minimize the frequency of law-breaking.

Ideally, children obey their parents and cooperate voluntarily because they believe their parents are fair: the child’s needs and desires are balanced against the needs and desires of other family members and individuals in the community. Adult citizens are persuaded by the same reasoning: as long as the laws are perceived as fair, it’s desirable if everyone obeys the laws.

Very young children will attempt to get what they want regardless of fairness, so parents and other teachers must use various means of coercion to keep children under control, until kids learn that fairness and voluntary cooperation are preferable to an atmosphere of sneakiness or coercion. Children also need to learn that they can’t get away with pretending to be fair while actually cheating. Adult citizens need the same instruction.

All children are not the same, and all adult citizens are not the same either. Ideally, in a constitutional democracy the majority rules but minorities are protected from unnecessary suffering. Democracy does not mean mob rule. That isn’t merely a gesture of generosity on the majority’s part, but a practical way to obtain essential voluntary cooperation from minorities.

Just as parents should be realistic in their expectations of children’s behavior, so should governments be realistic in their expectations of citizens’ behavior. A useful technique to get voluntary obedience from children is to prohibit as few things as possible, and absolutely insist on obedience only where there is a clear risk of death, serious physical injury, or property damage. That technique works with adults too. Kids need lots of opportunities to make choices, and so do adults.

Adult citizens obey the law because they fear punishment, and also because they believe the law is fair and reasonable. But if some special interests maintain old laws that serve their own advantage or profit, rather than being fair, and then attempt to silence uncomfortable criticism, or they use terror to force citizens to obey whether they believe the law is fair or not, then eventually people will unsurprisingly disrespect and disobey the government whenever they think they can get away with it.

The government thus becomes even less effective than what results from the mere difficulty of catching criminals. The government has thereby failed miserably in a fundamental function: failing to cultivate voluntary obedience. Citizens become cynical of the law, and even government employees act very cynical: they only care about their own job security and career advancement, regardless of fairness or the negative impact of their own conduct on society as a whole.

Another primary function of government is to attempt to give citizens some peace of mind: we are not completely defenseless against psychopaths. Citizens need to know that there is no constant danger of imminent catastrophe. The U.S. Congress failed in that function when it voted to censure the Rind study on child sex abuse. Despite mass hysteria over the supposed dangers of child sex abuse Congress attacked the best evidence that such widespread fear and anger are exaggerated (4).

Unsurprisingly, that hysteria has now spread to sex play between children, with 10-year-olds being arrested for playing doctor! When two children or teens enjoy sex play in private, who is the victim and where is the injury? A traditional claim is that “licentiousness” leads to a focus on the body rather than the spirit, and a breakdown of constructive social conduct in general – the slippery slope to anarchy. But other people (e.g. me) believe the contrary: sex play early in life is necessary for the development of healthy sexual function and responsible citizenship.

Neither belief can be definitively proved or disproved at our present state of knowledge, but there is evidence that the majority of women today are sexually dysfunctional and large numbers of women become irresponsible citizens, e.g. endangering children by smoking while pregnant, refusing to breastfeed, and driving while sleep-deprived (just as deadly as drunk-driving), or rejecting motherhood entirely, while at the same time keeping a sharp lookout for indecent exposure.

Recently a drunken teenage girl in Europe was videoed having genital intercourse with a group of boys of various ages (some 18), and the video was distributed on the web. The local police were quoted as saying they didn’t care what the kids did in private, but publicly publishing the video was a mistake that called for regulatory interference.
In the view of the local police the crime in that jurisdiction was not the sexual conduct itself, but violating the norms of “decorum.”

A similar case is breastfeeding in public. In many countries some mothers breastfeed in public parks, etc., and the local police would never dream of interfering. But in other countries some people believe that exposure of the breasts in public (even in the context of feeding a baby) is “indecent” and ought to be prohibited.

The modern breastfeeding organization La Leche League was founded by women who were outraged by police harassment of mothers who breastfeed in public. In this case a bad law (or bad law enforcement) inspired the creation of a great educational organization that now fosters breastfeeding worldwide.

Some people make rhetorical claims that their personal beliefs about sexual conduct are the only “right” ones, and then go on to vomit irrelevant verbiage as the reasons. But the bottom line is this: There is no way to establish the supposed superiority of some moral beliefs about sexual conduct as opposed to contrary beliefs.

Some people approve of public breastfeeding, children enjoying sex play, and teens having sex (even at different ages), and some other people disapprove. As long as I don’t force you to watch, you are attempting to impose your beliefs on me by demanding that child sex play, teen sex, and public breastfeeding be prohibited, i.e. subject to punishment.

In moral disagreements about sexual conduct it’s important to consider the motives and effects of the conduct. In principle, crimes are defined and criminals are punished to prevent or deter personal injury or property damage. Is the sexual conduct demonstrably exploitative or injurious to an identifiable victim? Or are the only “victims” the individuals who would like to impose their beliefs on others, but can’t do so if the conduct is not prohibited?

There is clear evidence that some special interests profit from body shame in general and breast shame in particular. The bra industry and the infant bottle formula industry have multi-billion-dollar markets for their products. (5). When powerful multinational corporations have significant financial interests in body shame, we should be very suspicious of laws that – by mere coincidence? – promote body shame in general and breast shame in particular.

A common strategy to morally or legally condemn sex play is to claim that children are inevitably incompetent to consent (6). It is true that children (especially very young children) don’t usually understand the consequences of their choices or the alternatives available, but it’s possible that in some specific cases a particular older child may be instructed to understand choices and alternatives so the general rule may not be applicable to every child. Laws that rely on counting birthdays to declare an arbitrary age of consent are merely an administrative convenience – not an expression of logic or wisdom.

In addition, in some cases children may be indifferent so informed and explicit consent is not necessary. For example, when a five-year-old girl pulls down her three-year-old brother’s underwear to show her brother-less girlfriends a boy’s pride and joy, her motivation may be quite innocent and the boy may feel indifferent about her behavior. Even though the three-year-old boy is probably incompetent to consent (understand alternatives and consequences), the girl’s behavior need not be considered abusive or even inappropriate.

I think a responsible caregiver who witnesses such behavior should take the big sister aside later privately and calmly teach that since her little brother is old enough to understand language and communicate his preferences (if any), in the future she should at least ask for the boy’s permission before doing something like that again. But that’s merely my opinion, not a proposal for legislation.

Is civil disobedience justified? Should mothers be encouraged to breastfeed in public, whenever and wherever they like, regardless of the law? Should teenagers be encouraged to enjoy safe sex, preferably in private, regardless of the law? Civil disobedience is the willful disobeying of certain laws to protest unfairness and unnecessary suffering, and is wholly justified and appropriate whenever the following conditions exist.

When certain groups of people are denied the right to vote to make or change laws, they are hopelessly dependent on those who can vote to make laws that protect them from unnecessary suffering. When those who can vote do not make laws that protect the disenfranchised, then civil disobedience of the laws is justified (7).

That is certainly the case with teen sex. Children and teens are denied the right to vote, and the laws of many jurisdictions specifically prohibit teens from having sex. Teens are even denied the opportunity to learn about how to have sex safely and effectively, and are thereby denied the opportunity to promote the development of sexual function and healthy habits.

In the case of public breastfeeding, mothers have the right to vote, but they are relatively powerless against the rich pharmaceutical lobby that has tremendous influence on legislators who make laws, as well as other government employees who administer laws. In some jurisdictions the infant bottle formula companies even secretly disobey laws intended to promote breastfeeding. In that case, mothers are effectively disenfranchised because their votes are rendered useless, so civil disobedience is justified and appropriate.

Civil disobedience may include peaceful acts of protest and disruption of public order, as well as disobedience of specific laws. Government employees often over-react with violence, and the government’s own irresponsible conduct unwittingly promotes sympathy for the protestors.

In effect, teens already engage in widespread civil disobedience. They not only violate excessive prohibitions against sexual conduct, they refuse to cooperate in school and they practice random disruption of public order, as well as vandalism of public and private property, and reckless behavior (driving while intoxicated) that endangers the safety of others. Censorship of critics who call attention to excessive repression of teen sexuality contributes to citizens losing sight of the genuine injustices that are really bothering young people.

References

1. Fout, John C. (Ed.) Forbidden History: The State, Society, and the Regulation of Sexuality in Modern Europe. (University of Chicago Press, 1992).
2. Money, John. The Destroying Angel. (Prometheus, 1985).
3. van den Haag, Ernest. “Punishing Criminals.” (Basic Books, 1975).
4. Rind, Bruce, et al. Science versus orthodoxy: Anatomy of the congressional condemnation of a scientific article and reflections on remedies for future ideological attacks. Applied & Preventive Psychology 9:211-225 (2000). Cambridge University Press. https://www.ipce.info/library_2/rbt/science_frame.htm
5. Palmer, Gabrielle. The Politics of Breastfeeding: When Breasts are Bad for Business. (Pinter and Martin, 2009).
6. Pearson, M. The Age of Consent: Victorian Prostitution and its Enemies. (David and Charles, 1972).
7. van den Haag, Ernest. Political Violence and Civil Disobedience. (Harper, 1972).