28 September 2013


'Sex-Positive Law' by Margo Kaplan in (2014) 87 New York University Law Review argues that
Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite — that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.
This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for "sex-positive" law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.
Kaplan concludes -
Valuing sexual pleasure yields a more complete assessment of the true harms and benefits of the activities we regulate. This Article focuses on three areas of law that are most directly related to sexual conduct and state regulation of sexual practices. But implications for sex-positive law extend beyond these areas.
1. Family Law
Family law involves many implicit assumptions about sex and sexual pleasure. To a certain extent, family law privileges sex. The family unit is defined through the (usually heterosexual) sexual relationship of the primary partners; this privileges sexual relationships over non-sexual relationships. But this privileging is limited in ways that reflect an underlying fear of and disgust with sexual pleasure. Sex is valued only insofar as it furthers marital or marital-like relationships. Such relationships transform the otherwise harmful or low-value sexual pleasure it into something worthwhile—marriage and family relationships. A sexpositive approach may shake some of the core foundations of family law. If sexual pleasure need not be channeled into something positive—if it is positive in itself—then marriage may lose some of the justification for its privilege.
2. Sex Work and Prostitution
A sex-positive framework may also challenge some of the justifications for criminalizing sex work. Sex exchanged for cash is stripped to a transaction of pleasure for pay. It does not contribute to the more traditional and acceptable goals of marital relationship or emotional intimacy, thus it is devoid of constitutional protection. Legal scholarship has generated several arguments in favor of sex work prohibition and countervailing arguments about the potentially more harmful effects of prohibition. Some of the rationales for prohibition rely on a moral distaste for sexual pleasure stripped of intimacy and engaged in for its own sake. Attributing more value to sexual pleasure in itself undermines these arguments.
3. Rape Law
Valuing sexual pleasure provides no license to experience that pleasure at the expense of another’s sexual autonomy, just as valuing the pleasure one derives from art does not require us to allow an individual to steal another’s painting or assault an unwilling individual as part of a performance art piece. In fact, valuing of sexual pleasure can strengthen rape law justifications. While traditional rape law may value the defendant’s sexual pleasure in some ways, it often ignores the victim’s sexual pleasure. Sexual violence and sex that takes place in the absence of consent undermine an individual’s choices about how to experience pleasure and, in consequence, her ability to experience it at all. Several feminist scholars have argued that the way in which laws allow defendants to presume consent from lack of resistance or passive silence reinforces traditional gender roles, victimizes women, and ignores the victim’s sexual trauma and the subsequent harm it may do to her ability to have positive sexual experiences. It is grounded in and reinforces men as passionate and pleasure-seeking and women as the gatekeepers to sexual pleasure who must affirmatively and clearly ward off unwanted sexual advances if their sexual preferences are to be respected. This ignores the importance of the sexual pleasure of the woman and her ability to determine when and how to experience that pleasure.
Yet even the reforms pressed by feminist scholars risk continuing to marginalize female sexual pleasure. As Katherine Franke has argued, feminist legal scholarship tends to focus on male sexual pleasure while ignoring female sexual pleasure. Such scholarship consistently posits sex as a negative experience for women in which they submit to men’s desires. This echoes traditional rape law’s view that women are passive recipients of male sexual desire and without desire of their own. Feminist legal theory’s failure to focus on women’s sexual pleasure—or to minimize it to simply an absence of male aggression—reinforces these limiting stereotypes and marginalizes the actual experiences of women. A truly sex-positive view of rape must acknowledge the importance of sexual pleasure for many women and the way that rape law marginalizes women’s sexual desires by limiting their ability to live as sexual beings who can freely decide how and when to experience sexual pleasure. It should acknowledge that defining rape is about defining what is good about sex and not merely what is bad.
Sex-positivity enriches our understanding of consent because it posits that sex is to be enjoyed and not merely endured, and that sexual interactions should be characterized by enthusiastic consent rather than mere silence or acquiescence. Accepting sexual pleasure as a good thing enables us to distinguish the non-consensual sex and violence that are not acceptable. It may also highlight some of the limits of criminal law in preventing rape. Sex-positivity requires a more honest conversation about how individuals think about and engage in sex and how assumptions about sex and sexuality contribute to the problem of rape. Such a conversation must include an analysis of the deeper social, cultural, and economic drivers of rape. The criminal justice system, defined primarily by prohibition and punishment, is ill suited to take on this broad challenge. Such policy changes must also contend with the fact that rape exists on a wide spectrum of behavior that reflects and reinforces rape culture. While the definition of rape ought to be broadened to include many of these behaviors, criminalization may be inappropriate for others. A sex-positive view of rape could inspire legal and policy changes in other areas to rise to these challenges. In particular, policies that use a public health model might be better suited to change entrenched views about sexuality and how we use our bodies to interact with the bodies of others.
Final Thoughts
Recognizing and appreciating the value of sexual pleasure undermines some of the fundamental assumptions that run through several areas of law. It alters the organizing principles that legislatures, courts, and scholars use to frame the debate on these topics. It does not prohibit the regulation of activities that provide sexual pleasure. Instead, it enriches our conversation about such regulations by requiring legislatures, courts, and legal scholars to be honest about these the costs and benefits of these laws. Such honesty can yield better laws and policies by requiring us to re-examine our justifications for what we regulate and how we regulate.