Towards the Next Big Thing

Michael Cook
21Oct 2014
Reproduced with Permission

Since there always is a Next Big Thing, what is the Next Big Thing after the legalisation of same-sex marriage? Is it legalising sado-masochism? Is it recognising paedophilia as a genetic disability?

Pointing the way to the future for US law is Margo Kaplan, an assistant professor at Rutgers School of Law-Camden. Ms Kaplan is carving out a niche for herself in the increasingly significant field of "legal limitations on intimate decisions". This effectively means constructing arguments for legalising almost any kind of sexual activity.

In the crowded field of American sexperts, why single out Ms Kaplan for attention? Because the Washington Post and the New York Times , the leading outlets for elite opinions in the United States, have published her op-eds. Presumably they believe that she is making a valuable contribution to the national debate about appropriate uses of sexuality.

It is the Times article which generated the most controversy. Titled " Pedophilia: A Disorder, Not a Crime ", it contended that paedophiles are getting a raw deal. Even if they never become sex offenders, they will still be shunned and stigmatised if an employer learns of their "disability".

Since it seems likely that paedophiles are not responsible for their psychological make-up, Ms Kaplan argued, laws which discriminate against them should be amended. She is campaigning to change US legislation so that they will not be discriminated against in employment, education and medical care.

"The Americans With Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973 prohibit discrimination against otherwise qualified individuals with mental disabilities, in areas such as employment, education and medical care. Congress, however, explicitly excluded pedophilia from protection under these two crucial laws."

"It's time to revisit these categorical exclusions," she concludes.

What other restrictions need to be revisited, according to Ms Kaplan? She rolls out her agenda in a recent article in the New York University Law Review, "Sex-positive law" . Her basic theme is that American jurisprudence is still far too prudish. It refuses to recognise sexual pleasure or sexual autonomy as a fundamental right.

"Valuing sexual pleasure can change this legal landscape in two ways: (1) Legislatures that view sexual pleasure in itself as a positive value will be less likely to pass legislation that infringes on sexual freedom; and (2) it will be more difficult for such regulations to pass even rational basis review because rational basis justifications will no longer be able to rely on the assumption that limiting individuals' indulgence in sexual pleasure alone strengthens public morality. "

The notion that the US Supreme Court has been constructing a superhighway through the barren wilderness of sexual repression to the neon lights of libertinism is quite wrong, Ms Kaplan argues. Yes, "Griswold v. Connecticut protected married couples' right to access contraception; Eisenstadt v. Baird extended this protection to unmarried couples; Carey v. Population Services International extended it to minors. In 2003, Lawrence v. Texas overturned a Texas law prohibiting sodomy and in doing so recognized the legitimacy of same-sex sexual relationships. These cases demonstrate the enormous progress the Court and society have made in recognizing the importance of sexual relationships. They also seem to provide sex with elevated status and far more constitutional protection than other activities individuals engage in for pleasure."

However, the assumption underlying these decisions is that sexual pleasure is not valuable in itself but only in the context of "the sacred nature of marriage" or other intimate relationships. This is unrealistic and myopic, she argues.

"Such an approach ignores the full reality of sex. Many people engage in sexual relations without any desire for an enduring personal bond with their partner. The full range of sexual experience includes those who value sex purely, mostly, or at least somewhat because of sexual pleasure."

So, is it "anything goes"? Well, Ms Kaplan is not quite so adventurous as to argue that sexual pleasure is the highest of values. Like any other kind of pleasure, it needs to be balanced against harm, health and safety. But she is keen to rearrange the furniture.

She targets only a couple of areas in "Sex-positive law". Laws on obscenity should be revised to allow the publication of material which is sexually arousing. Laws on consensual sadomasochistic sexual practices should be amended. If people accept the infliction of pain during football matches for the sake of pleasure, why shouldn't sado-masochism be socially acceptable? And of course prostitution should be decriminalized and sex toys deregulated.

Most importantly, she predicts the radical transformation of marriage. Up until now, marriage has been regarded as the only context for sexual pleasure. "A sex-positive approach may shake some of the core foundations of family law. If sexual pleasure need not be channeled into something else deemed to be positive - if it is regarded as positive in and of itself - then marriage may lose some of the justification for its status."

Although Ms Kaplan does not venture into a discussion of bestiality, incest or child pornography, if a fundamental right to sexual pleasure exists, she would probably endorse these as well.

Radical? Yes, but a signpost to the future.

Amidst the intellectual dreck in "Sex-positive law", there glitters some gold. Ms Kaplan's insight is that the series of decisions which lead to United States v Windsor all assume that there is actually something special, something privileged, even something sacred about sex. Even Lawrence v Texas , the 2003 decision which decriminalised sodomy and quietly opened the door to same-sex marriage, depicted sodomy as a legitimate expression of emotional commitment. In other words, the law still assumes that sex is unique and that sexual activity needs to be justified by something that transcends it.

But this sounds not just quaint but positively antediluvian. Like many of her contemporaries, Ms Kaplan seems barely aware that sexual pleasure must have a special status because it leads to the generation of new life, unlike the pleasure of playing football. In 75 pages of dense legal reasoning with hundreds of footnotes, she barely mentions babies.

So if sex is just another kind of pleasure, why does sexual activity of any kind need justification or special regulation? As Ms Kaplan writes, "sexual pleasure is in itself valuable, [so] the state cannot justify a law purely on the grounds that the public needs protection from it." If the law continues to evolve by taking contemporary mores into account, the assertion of a right to sexual pleasure seems altogether plausible.

The one form of sexual expression which is universally condemned is paedophilia. But Ms Kaplan is developing legal arguments which could even make this seem more acceptable. Next year she will publish her thoughts in the Washington & Lee Law Review in an article titled "Taking Pedophilia Seriously". It's something to look forward to.