This is the fifth part in a series of posts I’m doing about the liberalization of sex laws throughout the West. Part 1 can be found here. Part 2 can be found here. Part 3 can be found here. Part 4 can be found here.
I don’t think any reasonable person reading this today actually wants a future of sexual debauchery with no legal limits. But past a certain point, what we “want” has nothing to do with it. The outcome is already embedded in the premises; we just haven’t reached it yet. But eventually, we’re going to reason ourselves into this position down a slow but slippery slope of logical deduction: “If x is perfectly legal, then what’s the basis for keeping y illegal?”
Religious believers have a ready answer, of course: It’s illegal because God disapproves. But people who are uncomfortable leaning on Sky God mumbo-jumbo for moral instruction will have some issues. Decent, fair-minded folks who have no strong religious convictions will repeatedly be faced with the problem of how to respond to nice, polite, responsible, well-mannered people who nevertheless feel compelled to engage in sexual practices which are against the law.
Spoiler alert: None of these people will appear to be disgusting perverts or sulfur-breathing demons. They will not dress like they just emerged from a sex dungeon, and they won’t have fangs for teeth or cloven hooves or horns on their heads. They’ll be well-dressed, well-groomed, and seemingly well-adjusted, with normal jobs and hobbies and political views. They’ll have pleasant, soothing speaking voices, which they will use to plead their case in a cheerful, nonthreatening way.
They’ll bake a mean apple pie, just like the kind mom used to make. All this will make it very hard for polite and tolerant people to resist their appeals. The Gundersons were okay with certain things being illegal when they imagined that only icky weirdos were interested in those things. But that Smith couple down the street seems so nice and normal! It just seems mean and wrong to throw the Smiths in jail for what they choose to do in their bedroom. It’s not like what they’re doing hurts the Gundersons, after all.
If you’re a non-religious person who’s troubled by the scenario I’m laying out here, I imagine you are now trying to think of some alternative, non-religious basis for society to restrict people’s sexual choices. In fact, I’ve got a pretty good idea where your mind is going right now, so allow me to further discourage you.
Let’s dispense with one line of thinking first: That certain sex practices must be restricted “for the good of society.” That horse has already left the stable, I’m afraid.
The problem with basing our sex laws on what’s “best for society” is that it opens the door to different categories of restrictions which many people are uncomfortable with. As I’ve already demonstrated, the Foundational Consensus on sexuality which we’ve rejected was all about controlling sex “for the good of society.” One could argue that maybe some of its requirements were too harsh for the modern world, given our wealth and technological sophistication. Fine, but that raises the possibility that these requirements can and should be reinstated during more trying times. Maybe easy divorce is OK when the economy is booming, and parents can be assured of getting good jobs and providing a relatively stable life for their kids — but maybe divorce needs to be a lot harder when the economy turns to crap, and a child’s welfare becomes more dependent on mom and dad staying together.
Indeed, as I pointed out before, this was exactly what happened in the past: People were looser about sex when times were good, but the old harsh Consensus was always looming in the background, ready to be enforced when times were bad. Thus, the relatively freewheeling sexual atmosphere of the Roaring ’20s gave way to the starchy puritanism of the Great Depression.
But in recent bad times, this kind of moral “snap-back” hasn’t happened. It didn’t happen in the stagflation of the 1970s, and it hasn’t happened during the Great Recession. That’s because the Foundational Consensus has been successfully dismantled. Our entire notion of sexual ethics is now grounded in the idea that adult sexual pleasure is not a luxury to be enjoyed when we can afford it, but a good in and of itself, like free speech — indeed, sex is now seen as so central to the human experience that, as with speech, the default assumption is that what’s “good for society” must take a back seat to what’s good for the individual. It’s difficult to see how we can walk this back without raising serious questions about our current levels of sexual permissiveness.
Since that seems unlikely, you’ll probably try and fall back on some kind of libertarian, transactional model of morality. This is what I referred to in my last post as “least-common-denominator” morality, because it’s the only framework that is broad enough to accommodate starkly different moral traditions. Looming large in whatever model you come up with will be the notion of consent. This, you believe, is the iron wall which will protect us from the abyss.
It won’t work.
Why? Well, to begin with, polygamy, incest and prostitution are all possible in an environment where all parties are on equal terms and offer full consent. A consent-based ethics of sexuality cannot plausibly reject any of these arrangements. Not in principle, at least. Of course, it would still be possible to outlaw such arrangements based on nothing more than social tradition. But this has proven to be a very flimsy barrier in the past.
That leaves bestiality and various forms of child sexuality. Here, you have situations where one party is presumed to have an impaired ability to offer consent. This, I am afraid, is a fortress built on a foundation of shifting, uncertain sand.
Coming next: The feeble shackles of “consent.”