I have just started reading the fascinating new book by Evgeny Morozov, To Save Everything, Click Here. The book is a critique specifically of internet utopianism – the belief that technology alone is going to create a perfect world – but he interprets it as a symptom of a broader mindset, which he calls solutionism. Solutionism sees the world as a set of puzzles to which there must be a solution, rather than a set of problems we have to wrestle with, debate, and try to resolve in whatever imperfect and temporary way we can.

I read a lot of writing about sex: by advice columnists, psychologists, and self-proclaimed social commentators. And a lot of this writing is very good. But much of it also reveals that we have become a society of sexual solutionists.

Unlike Morozov’s internet solutionists, sexual solutionists don’t use technology to solve the puzzles they face. Instead, they use a few basic axioms, which they are confident are sufficient on their own, if adequately understood, to pretty much solve whatever tricky dilemma you face in your life. So they look impressive, let’s call them The Solutionist Axioms. They go something like this:

Be yourself. Be honest and open with people all the time, especially your partner. (Communication is SO important!) Respect other people, and treat them with respect. And don’t judge yourself or others for anything if what you’re doing doesn’t immediately harm another person.

Find an advice column at random, and find a question dealing with some sexual problem. (Don’t worry, every advice column, even if it isn’t specifically devoted to sex advice, has at least one sex-related question.) And I guarantee you the discussion will be of the following form:

Q: I have this problem and it seems really complicated and I don’t know what to do.
A: Cheer up, it’s not that complicated! [Insert one of the Solutionist Axioms here.]

Sexual solutionists believe that once you strip away all of our hang-ups and misunderstandings, and get past all the people with bad intentions, our sexual problems can be solved pretty easily.

They’re wrong.

I know they’re wrong because people are unhappy. Not everyone is, obviously, but lots of people are, and lots of this unhappiness is directly linked to sex. If the Solutionist Axioms really were the answer, people’s unhappiness must come from the fact that they don’t actually know the Axioms. But everybody knows them! It’s not that they’re wrong. They’re right, as far as they go. But, at least on their own, they are not actually solutions to much of anything.

Sexual solutionism has the effect of making people feel like their problems SHOULD be simple, and that if they are still struggling with them, it must be their fault. It isn’t. I started this blog partly because I wanted people to see how complex many of the problems we face really are, and to show that they can’t really get solved – they can just get pondered, wrestled with, and debated, in more or less interesting and productive ways.

I suspect my anti-solutionism guarantees that I will never get a lucrative job writing an advice column. That’s okay. Philosophy has its own rewards.

Image: An early computer, the WITCH (Wolverhampton Instrument for Teaching Computing from Harwell), Britain’s oldest computer, at work, circa 1951.

The Good for Her Feminist Porn Awards are this weekend.  The fabulous Nica Noelle, who is nominated for a million of them and whose films you should start watching immediately, has a post on the Huffington Post explaining why she is not actually, as she is often taken to be, a feminist pornographer.  Now in general artists should be free to decide how they should be described and what genre they belong to, and it is not really anyone’s place to tell them their wrong.

But I don’t care. I’m going to tell Ms Noelle she’s wrong. She’s a feminist pornographer whether she likes it or not.

In essence, Ms Noelle’s argument is this: feminism is a term describing a female-centred political movement devoted to certain specific ideals, promoting a certain conception of women’s identity and their position in society. But “feminist porn” doesn’t actually make any kind of political statement, the people who make it may not believe in all of those ideals, and its audience is not predominantly or even primarily women. Therefore the term is a misnomer.

If we take the term literally, that may be true. But should we? The term feminist porn has become an easy shorthand. It may be a little hard to define what it is. Tristan Taormino defines it as porn that’s produced a certain way. But the average viewer doesn’t know anything about how a particular film is made, and anyway a porn film could be degrading in its content and still treat the performers well and have great snacks. I would suggest that for most people, the term means something like “porn that features real sex and doesn’t degrade women”. And if most people who hear the term know what it refers to, more or less, then it is a helpful term of classification, quite apart from what a literal analysis of the words themselves might suggest.

I see it as sort of like “alternative rock”. When I was a kid, that term meant something distinct — music that was too hard, too rough to get played on the radio, and which it was assumed no one besides a few pothead punks like me and my friends would listen to. Now it basically means any music that isn’t churned out by the soulless corporate hit machine. I have satellite radio and there are two hundred channels. The programmers need an easy way of telling me what station to listen to. Bands always complain about being classified — I’ve read a million interviews where some band will complain how much they hate being categorised. But in a world of a zillion albums there needs to be a quick way of saying: “If you like this music, you will probably also like this…” So the music I like gets called “alternative”, even though, in a world of rap, dance, folk, etc, it isn’t really an alternative to anything.

The term feminism is also one I, like a lot of people, attach positive connotations to. Not everyone does – an issue that is too complicated to get into here. (I think most of the things people think they hate about feminists are just things that the anti-feminists have managed to associate feminism with. But never mind.) The point is, the people who don’t like the term are probably going to mostly be the people who will hate feminist pornography. So the term is annoying exactly the right people. And given the term’s mostly-positive connotations, “feminist porn” is sort of like Corinthian leather. There isn’t any actual leather made in Corinth – it’s made in Newark – but Chrysler invented the term to make people want to buy the cars that used it.

In short, it’s a brand. But it’s a good brand, that Ms Noelle would have had to pay a marketing firm a lot of money to create and associate with her work. So my advice (which she didn’t ask for) is: embrace it. And of course good luck at the awards. She will probably clean up.

Image: A still from His Mother’s Lover (2012), a film by Nica Noelle

Well okay then.

The group of ethicists working at Oxford – Brian D. Earp, Anders Sandberg and Julian Savulescu – has attracted considerable media attention for its work on “love drugs”, which is to say drugs that can either bond us more closely to our partners, or make us fall out of love with someone we wish we were not in love with. (In this post, I’m going to focus on the former sort.) Their published papers on the subject can be accessed here.

The science is probably not far off. We already have various drugs that will do this in a fairly roughshod way. MDMA makes people, um, extremely affectionate, and there is evidence to suggest that it may help people deal with emotional issues when it is used in a therapeutic context. We would need more trials, and a better long-term safety profile, before we could endorse its use, but its known effects are at least enough to suggest the basic physiological principle, that drugs can promote emotional bonding, is not outlandish. And a fascinating experiment with prairie voles suggests that they can be turned monogamous or non-monogamous merely through the manipulation of oxytocin and vasopressin levels in their brains.

So assuming such drugs can be developed, and we believe them to be as safe as any other prescription drug – are they a good idea?

I think they are. The fact is, people are unhappy and confused in their relationships. Divorce rates are high, infidelity is common, and while almost everyone who is single says they are looking for a long-term relationship, people in those relationships report levels of satisfaction that are in fact quite low. There are lots of reasons for this. Many people just make bad decisions about whom to pair up with, or have standards that are unreasonably high. But there is a case to be made (which Professors Earp and his co-authors make quite eloquently) that we are simply not programmed by biology to be happy in lifetime monogamous relationships. The different stages of our evolution have left us with different love systems in our brain – one that makes us lust after people, one that makes us fall head over heals for them, and one that binds us to them in a lasting way. Sometimes, these systems work together. Very often they don’t.

It is very easy for people who are not having relationship problems to talk about authenticity and the benefits of suffering. Once upon a time people used to talk about the benefits of physical suffering. Now we find this cruel. We have a general commitment as a society to helping people alleviate suffering when we can. The principle should apply in the emotional realm as well. It would be perverse to deny people a potential tool to help them deal with pain simply because we think they should suffer for the sake of authenticity.

One of the first objections always raised to love drugs is that they risk creating a “Brave New World” of medicated zombies programmed for superficial happiness rather than actual experience. But the use of love drugs would be intended for cases where people actually wanted to have a happy, stable relationship, but found themselves unable to do so. True freedom is arguably the power to choose your own ends plus the ability to achieve those ends. If someone sets as her end a stable, monogamous relationship, and the drugs help her achieve that, they would be a tool to promote freedom rather than a threat to it.

As I have said, there is little good data on the use of MDMA in a therapeutic setting. But the data that exists suggest that long-term use might not be necessary. Periodic administration within a controlled therapeutic setting might well produce the kinds of break-throughs that relationship counsellors struggle for years to achieve.

There is arguably an alternative solution to love drugs, one that would make them unnecessary, but which never gets seriously talked about. If the problem is indeed rooted in conflicts between our desire system and our attachment system, we could conceivably deal with these conflicts in a different way, merely by loosening our strictures on sexual fidelity within monogamous relationships. In many cases it is not spending your life with someone that causes the problem, it is the sexual exclusivity that this is supposed to entail. Medication may be a way of avoiding a deeper conversation about modern values, and about whether they make sense in today’s world — one where we can protect ourselves against STDs and unwanted pregnancy, where technology widens the temptations we face, and where increasing lifespans make lifetime sexual fidelity even more daunting. Maybe one day we’ll be prepared to have that conversation, and we can put the drugs away.

Image: Evelyn de Morgan, “The Love Potion” (1903)

The folks over at SexMD have just released a terrific infographic that lists the top ten most common terms used by people when searching for porn, broken down by country. Being a sex-data geek, I eagerly dug into the results, fully expecting to be shocked by people’s sick, twisted predilections and preparing to launch into wild, unfounded speculation about what they reveal about our various national characters. As it happened, I was shocked, but not in the way I expected. Okay, I did learn about some new sex things. (Can someone from the Ukraine explain to me what a gay raincoat is? It’s your top search!) But mostly what I learned is that people are really, really into themselves.

I started my analysis with Brazil because – well, it’s Brazil, and we all want to know what it takes to turn on a Brazilian. And the best way to do it, it turns out, is to be a Brazilian.

As you see, six of the ten top Brazilian search terms make some reference to Brazil. And it turns out that the Brazilians are not unusual. In just about every country for which data was given, national or ethnic self-references — Norwegians searching for Norwegians, Brits for Brits, et cetera – dominated the list. At the bottom of this post, I have compiled an overview of the countries for which data is provided, with the place of national (or in certain cases ethnic) self-references in their top tens. For another dramatic example, let’s take China. Every single item on its list made some reference to an Asian nationality (with Japan actually the most popular). For the Chinese, apparently, nothing turns them on except Asian nationality and ethnicity.

Ghana, Kenya and South Africa are the only countries outside North America where racial or national self-references don’t rank at all (though “ebony” ranks first in Ghana). There are no self-references in the lists for the US and Canada. I can see two possible explanations for this. One is that we really are the sort of multicultural societies most of want us to be. The other is that white North Americans are what you get when you search a porn site for anything, unless you specify otherwise. Self-references are unnecessary. Both explanations may be partly correct, though I suspect the second factor is the more salient.

Okay, so people are into themselves. So what? I have tried to make the case elsewhere that our desires can be morally significant. They reveal attitudes that we may have reason to reflect on, and possibly correct. Whenever I try to make this case, people always react very negatively. They insist that it’s nobody’s business whom we are attracted to, and we cannot control it anyway. I still think it is, and we can. But, suggestive as this porn data is, I am not going to make the case that people are actually racist or evil for being so damn into their own kind. Discriminating in porn searches is not like discriminating for jobs or invading other countries. However, I do think at the very least we may have stumbled upon a teachable moment.

In the interest of promoting greater fellowship among all humankind, I want to make a suggestion: today sometime, let’s all try watching porn featuring people different from ourselves. Search for a Brazilian, or a Kazakh, or a Finn. You might just like what you see.

THE RANKINGS (Numbers refer to place of national or ethnic self-references in the top ten most searched terms)

Argentina: 1-3
Australia: 1
Belgium: 1 (French) and 9 (Dutch)
Cambodia: 2, 3 and 6
Chile: 2, 5
China: 2, 3, and 9
Columbia: 1-4, and 7
Egypt: 1 and 2 (Arab), 4 and 7 (Egypt)
Finland: 5 and 6
France: 1, 3 and 5
Germany: 1, 2 and 5
Greece: 1-3
India: 1, 3, 4, 6 and 9
Indonesia: 1 and 2
Iran: 7
Iraq: 1, 2 and 8 (Arab)
Israel: 2 and 4
Italy: 1, 4 and 8
Japan: 1-5, 8 and 10
Kazakhstan: 1 (Russian — a near-majority of Kazakhs are ethnically Russian), 6 (Kazakh)
Libya: 2 (Arab)
Morocco: 1 and 6 (Arab)
Nigeria: 1
Norway: 1, 2 and 5 (Swedish is 8 )
Pakistan: 2 and 3 (Pakistan), 1 and 4 (India)
Palestine: 2, 5 and 10 (Arab)
Peru: 1, 9
Philippines: 1-4, 7 and 8
Poland: 1-3
Russia: 1, 4, 9 and 10
Spain: 2
Sweden: 1 and 5
Thailand: 1, 3 and 7
Turkey: 1,4 and 9
UK: 1
Ukraine: Ukraine isn’t mentioned, though Russia ranks 2 (many Ukrainians are ethnic Russians)
Vietnam: 1

[This post was amended on March 13 after Daniel Schipper explained to me how to actually use the infographic and thereby get the data for North America.]

Image: John William Waterhouse, “Echo and Narcissus” (1903)

The new Match.com survey of Singles in America is out.  There are lots of interesting stats. One that jumped out at me was this: 77% of women and 53% of men wouldn’t date someone who insisted on keeping their text messages private.

My analysis, as a professional ethicist, is this: Holy crap.

Behind this statistic is, I think, something like an emerging norm. I’ll call it the Norm of Transparency. It says that in a healthy relationship, your partner should be able to demand complete digital transparency. Someone who keeps texts a secret is up to something, and it’s bad for the relationship. As one blogger put it: “if he’s hiding his phone, there’s a problem!”

If it’s true this is emerging as a more-or-less universal expectation when dating someone – one of the study’s authors commented: “If he won’t let you look through his cellphone, that’s a deal breaker” – how should we feel? Is that sort of complete transparency a desirable ideal in relationships – or, on the contrary, is it actually unethical? The alternative is a belief that we all have a right to a zone of privacy in relationships, and that we are better off if we protect this zone, and don’t expect our partner to give it up.

We can always say: people can lay down the terms of their relationships how they want. If someone wants to read your texts and you don’t want them to, don’t date them. However, relationships are complex negotiations, shaped by social norms. We all put up with things that we might prefer not to, because we genuinely want to be with someone. And most of us are not over-run with wonderful, attractive people who want to be in relationships with us. If over two thirds of the people we meet expect to be able to read our texts, most of us are not going to feel able to say, “Well I’ll just find someone from the remaining tercile who doesn’t.” Further, even if a couple decides to negotiate such things openly, the prevailing norm (total transparency should be part of a healthy relationship) puts one party at a bargaining disadvantage. She is faced with the charge: “I want us to be open and honest with each other. You obviously don’t.” Most importantly, if we as moral reasoners have genuine reasons for believe a particular social norm, however widespread, is unethical, we have a responsibility to try to challenge the norm.

Is the Norm of Transparency unethical? I think it is, for several reasons.

A. It has an unethical motive. Whether people admit it or not, we all know perfectly well what the motive is: to make cheating harder. That is bad for a couple of reasons. First of all, we should want our partners to remain faithful to us out of a genuine desire to do so, rather than a fear of getting caught. Second, it is inherently hypocritical. The argument, inasmuch as it can be formulated as rational, goes like this: “If you trust me, you’ll let me see everything. Why? Because I don’t trust you.”

B. It will lead to a lot of bad decisions. If we think we should have to share our texts, it’s only logical that we should share email and social media messages. And perhaps share passwords. And this is happening. A Pew survey of teenage girls found that forty percent of them share their email and social-network passwords with their boyfriends. (Here is a New York Times write-up on the survey.) My very unscientific survey of some of my students revealed that they ALL do it. If young people fail to see the value in privacy, it’s not hard to imagine the bad outcomes that will inevitably result.

C. Finally, I think the Norm of Transparency is unethical because privacy in a relationship is inherently valuable. First of all, it is necessary for a certain kind of friendship. There is a special bond of friendship that comes from knowing that the things you share with your friend will not be passed on to anyone else. It establishes a kind of trust that is every bit as valuable as the bond of trust we have with our partners. I have some friends who I know share everything with their partners, and would let them read texts or emails. That’s fine, but I have a very different kind of friendship with them than with the people I know will keep my secrets. If everyone I knew subscribed to the Norm of Transparency, a certain kind of friendship would totally disappear from my life. And that would be sad. If it disappeared from society, we would be worse for it.

Second, it is just a mistake to think there is something automatically wrong with keeping secrets from our partner. There are lots of secrets that aren’t bad, they’re just — secret. Maybe you got a bad performance evaluation at work. Or you’re insecure about your weight, or your sexual performance. Or you hate your partner’s best friend. Sure, you may want to talk to your partner about things like that. But you may not. The point is, you shouldn’t have to. There are lots of reasons to have secrets in relationships. You may want your partner to believe that you are respected by your boss, or confidant about your body. You may prefer to tell things like that to a friend. You may want to talk to someone about the relationship itself.

One response would be: if you want to talk about things like that, do it in person. That may not be possible – friends often live away, or are hard to track down. But in any case, why make it more difficult? We can instead say that we should recognise the value of zones of privacy in our relationships, and not pressure people to give them up.

Cover image: Still from Guy Maddin, Keyhole (2011)

The blowjob is dead! Horrible as it is to contemplate, people have entirely abandoned fellatio. So Geoff Dyer of Esquire Magazine informs us.

When you do research on sex, you end up reading, in addition to academic studies, a lot of social commentary in popular media and on websites. A lot of this latter is dedicated to identifying new social trends. And the vast majority of this writing is, to put it frankly, complete and utter bullshit. We need good writing about social trends, especially when it comes to sex. Society’s attitudes towards sex have changed a lot in the last half century, and they are continuing to do so. This matters. But getting an accurate read on how this is happening is hard work, and for some reason magazine and newspaper editors hold their “trend” writers to a much lower standard than they do their actual reporters.

Since social trend writers, and their editors, are clearly having trouble figuring out how to do their jobs, I would like to propose a few simple rules that I think will help.

Neil’s Rules for Writing about Social Trends.

1. Have data.

Most social trends articles fall into the category of “stuff the writer heard people talking about when he or she was at a cocktail party somewhere in Manhattan the night before”. Brilliant social scientists often have an uncanny ability to see in the world around them important social facts other people would miss. But, and this is important, people like that get out, look at the world, and talk to people outside their own social group. And they generally don’t live in Manhattan. Oh, and they then go out and get data before they open their mouths.

There is a corollary to this rule, which is: If the data contradicts you, you’re wrong. As it happens this week the CDC released a fascinating new report, “Sexual Behavior, Sexual Attraction, and Sexual Identity in the United States”, with lots of actual data for any social trend author who bothered to read it. And it shows that, at least between 2002 and 2008, there was no dramatic decline in the amount of fellatio being done in the United States. Maybe the last four years have brought a collapse. But I doubt it. I guess we’ll see in the next report. Here’s another example. I read a New York Times article once about how the attitudes of teen-age women were being shaped by Sex in the City. The author admitted that the show’s ratings among teen-age girls were actually very, very low. But all her friends’ daughters were watching it, so – well, so there. Which brings us to…

2. Your friends are not data.

Geoff Dyer, in his blowjob article, writes: “I recently undertook a small survey of some more mature male friends, and the results, while not unanimous, were overwhelming.” Where to even begin? Statisticians have ways of calculating exact margins of error down to a tenth of a percentage point. But they don’t generally do this with surveys of “a few friends”. And the reason is, they don’t have to. Such surveys are totally and completely useless.

Again, this seems to be a particular problem if you live in New York City. Carrie Bradshaw says in one episode that people who don’t live in New York are in some sense kidding. I don’t know if New Yorkers really believe this — I’d need data — but it does seem to be true that social trend writers tend to think that the people they meet at cocktail parties really are representative of society at large. If people in Ohio or Iowa or Idaho (and yes, New Yorkers, those are all different places) don’t resemble the people they meet at cocktail parties, it must be because those heartland people are behind the times.

3. TV shows are not data.

I know this will come as a shock to all the countless trend authors who have been using Lena Dunham’s new HBO series Girls as proof that that there is some crisis among women in their twenties, who are adrift and trapped in emotionally-unsatisfying relationships. For some reason, to social trend writers, who spend a lot of the time they’re not at cocktail parties watching television, tv shows, especially ones on expensive cable channels, really seem to have profound social significance. Otherwise that voice they hear in their head while they’re on the couch watching – “We spent two hundred thousand dollars on your education, and you consider this your job?” – gets very loud indeed. But here’s the problem.

If you are a social trend writer, TV shows are written by people who are a lot like you, except that some of them live in Los Angeles, and sometimes their characters will remind you of your friends. This may make it seem like they are therefore identifying a social trend. But please refer back to Rule 2. “But,” you say, “what if it’s a show that lots of people watch?” Well, lots of people watch EVERYTHING that’s on tv. (Remember when the NBC exec asks George Constanza why anybody would watch a show about nothing, and George says: “Because it’s on TV!”) I guarantee you that whatever the ratings for the premiere of Girls, they will be lower than the finale of The Sopranos. When that aired, did you write an article about how middle aged men today all run crime syndicates and end up possibly getting whacked in a diner? No, you didn’t. And PS, using the word “zeitgeist” in your article doesn’t make your trend more credible. It just annoys your readers.

4. Other writers and bloggers are not data.

I once read a New York Times article on a hot new trend: the dark memoir. There were two pieces of evidence for the trend: an article in the latest New Yorker, and a book by the film critic for the New Yorker. If someone has written something, or blogged about something, or even started a website, like The Mankini Revolution, about something, that still does NOT make it a trend, unless that person also has data. In which case, use their data. You haven’t got any further just by citing them.

All of this bad writing, besides being inherently annoying, has ethical significance. When you don’t have data, your readers end up believing or disbelieving your argument based on whether or not it confirms their own intuitions and prejudices. We have an entire network dedicated to playing to people’s prejudices. It’s called Fox, and its viewers are an abject lesson of where data-free analysis gets you. Stephen Colbert coined the term “truthiness” to describe such analysis. We need less truthiness and more truth – especially when it comes to sex. And this means paying attention to data. Even if you are a writer and live in New York City and have lots of interesting friends.

Have you read a data-free social trend piece? Email me! I’m starting a little collection.

(Incidentally, I mean “bullshit” here in its strict philosophical sense, as identified by Harry Frankfurt. Frankfurt says that bullshit is different from lying in that the writer of bullshit may or may not be writing something true. She doesn’t actually care. Her main concern is not purveying truth but, generally, conveying something about herself – her intelligence, wittiness, etc. This describes most social trend writers perfectly.)

Image: U.S. Government photo of a crowd gathered outside the New York Stock Exchange as the market collapses (1929)

Since my last post, on Lawrence v. Texas, I have spent a lot of time reflecting (read: obsessing) over the issues I raised in it, and whether I read the decision right. I now believe I got it wrong. I was thrilled when Marina Adshade, who writes the wonderful Dollars and Sex blog on sex and economics on BigThink.com, asked me to do a guest post, which gave me the chance to take another shot at it. I want now to expand a bit on some of the points I made there.

I now see there are two very different ways of defending sexual freedom. Lawrence is not at all clear on which it adopted, but interpreters are starting to come to a consensus. Laurence Tribe, the leading liberal expert on sexual-freedom cases (he argued, unsuccessfully, the monumental Griswold decision before the high court) gives an approving summary of what he thinks the Lawrence decision implies:

Intimate sexual relations between consenting adults, at least when conducted in private and outside any commercial context, occupy a fundamental place in our lives, in the ways we express ourselves and – especially but not exclusively in the case of lasting relationships – in the ways we learn from one another and reshape the ideas and values with which we entered into those relationships. The claim that Lawrence must be understood to have accepted is not that a specific configuration of body parts is in itself beyond the state’s regulatory authority, or that the freedom to engage in a particular sequence of actions so as to achieve sexual stimulation or release is a fundamental human right akin to freedom of speech or of religious worship. Rather, the claim Lawrence accepted – the claim that had been pressed on the Court as long ago as Bowers – is that intimate relations may not be micromanaged or overtaken by the state.

The Lawrence decision involved a case of casual sex. (In fact, as a new book on the case, and a review of the book in the New Yorker, both point out, there was probably no sex taking place at all. But we can set that aside.) Tribe thinks that such casual encounters are protected because they are one of the ways in which we try to connect with each other in the on-going hope of forming more meaningful bonds. If this is indeed the intent of Lawrence – to protect sexual freedom because it is an essential part of our on-going project to form meaningful relationships that will give purpose to our lives – it would express a profound and stirring view of liberty, and its constitutional recognition would be no mean achievement.

But this leaves Lawrence silent on the scope of another sort of liberty interest: that of bodily integrity. This was the subject of my Big Think guest post. By remaining silent on the question of bodily integrity, Lawrence is consistent with the general weight of precedent on the right to privacy, which appeals to factors other than an individual’s fundamental right to control her own body – a right which has never in fact been recognised. Perhaps the most surprising example is Roe v Wade, which contains the following passage: “It is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.”

The U.S. is by no means unique here. Europe and Canada were certainly ahead of the U.S. in removing legal restrictions on consensual gay sex. But courts in those countries have also justified sexual liberty because of its connexion to our rights to self-expression and free association, rather than asserting outright that we should have the right (to paraphrase Professor Tribe) to configure our body parts as we see fit. In its monumental decision of 1981, Dudgeon v U.K., the European Court of Human Rights invalidated northern Ireland’s anti-sodomy statute, but also insisted that “some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, by means of the criminal law can be justified as ‘necessary in a democratic society’,”

So contrary to what I suggested last time, neither Lawrence nor any other decision explicitly asserts a right to have whatever sex we want, as part of a more general right to control our own bodies. Whether or not such a right is worth fighting for, is a topic I will take up in the future.

Thanks again to Professor Adshade for the opportunity to guest blog.

Image: Man Courting Young Boy (Ancient Greece, source needed)

It began as a love triangle. In 1998, Tyron Garner and John Lawrence were arrested for having sex in Lawrence’s apartment. The police came to the apartment, which they entered without a warrant, because they had received an anonymous call claiming there was a man inside “going crazy in the apartment and he was armed with a gun.” The caller turned out to be Robert Eubanks, with whom Garner was casually involved and who later admitted he was jealous of Lawrence. (Eubanks was ultimately found guilty of making a false charge.) Garner and Lawrence were convicted of sodomy, which was still illegal in Texas, and given small fines. Garner and Lawrence were both quiet, private people, with no desire to become heroes. But they appealed the case, and it eventually made it to the Supreme Court. In 2003 the high court found Texas’s sodomy law to be unconstitutional.

The vote split 6-3, with the moderately-conservative justice Anthony Kennedy writing the majority opinion. In it he set aside several precedents that upheld state anti-sodomy laws, justifying his decision with reference to “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” One of these over-ruled precedents was an earlier Supreme Court judgement, Bowers v Hardwick (1986), which upheld the right of states not just to criminalise gay sex but, more broadly, to regulate adult sexual activity for moral reasons. In his Lawrence decision Kennedy cites a dissenting opinion from Bowers, one written by his colleague John Paul Stevens, in which Stevens says: “individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of ‘liberty’ protected by due process.” Kennedy concludes: “That analysis should have controlled Bowers, and it controls here.”

As monumental and comprehensive as it is, there is one notable omission from Kennedy’s Lawrence opinion: it makes no explicit mention of a right to have sex. One might easily think that the language of the decision makes this unnecessary, since it is analytically true that any “liberty protected by due process” is also a constitutional right. The Declaration of Independence declares that “life, liberty and the pursuit of happiness” are the “unalienable rights” of all people, while the Fifth Ammendment states that “no person shall . . . be deprived of life, liberty, or property, without due process of law.” The due process clause, cited by Kennedy in Lawrence, protects the very things the Declaration lists as basic rights, and if something counts as a liberty protected under the Fifth Ammendment, it should also count as a liberty under the Declaration, and therefore a right. The terms “liberty” and “right” were used more or less interchangeably during the eighteenth century, as a strict constructionist like Antonin Scalia could no doubt confirm, and they have continued to be in legal contexts since. The term “right” is sometimes considered the broader one, since it includes claim rights as well as liberty rights. But if not all rights are liberties, it is very hard to deny that all constitutionally-protected liberties are also rights.  And indeed Scalia, who wrote a dissenting opinion, had no doubt that Kennedy’s decision created a right to have sex. He cited an earlier, lower-court decision, Owens v. State (Maryland, 1992), which had, based on Bowers, explicitly declared that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage.” Scalia’s point is that if Bowers denied this right, then Kennedy, in over-ruling Bowers, affirmed it.

Yet it would be too charitable, I think, to conclude that Kennedy and the justices who concurred with his opinion did not bother to use the term “right” because they thought it was superfluous. Many interpreters have held on the contrary that the omission was deliberate, and that it was done in order to prevent Lawrence from invalidating a wide swath of laws covering sexual behaviour, such as anti-prostitution laws. In State of Arizona v. Freitag (2006), Christopher Freitag, who had been convicted of soliciting a prostitute, appealed his conviction by arguing that Lawrence established a “fundamental constitutional right to engage in adult consensual sexual conduct.” But the Arizona court rejected this, bluntly declaring that “Freitag reads Lawrence too broadly . . . The Supreme Court stopped short of declaring that this liberty interest was a fundamental right.” Let us go back to Scalia’s dissent, however, because in it the justice puts paid to any such attempts to restrict Lawrence’s implications:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by to day’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives IN matters pertaining to sex” (emphasis added [i.e. by Scalia])).

Scalia thinks, in other words, that Freitag reads Lawrence perfectly correctly. Liberty and right cannot be separated. For Scalia, the Lawrence decision, by calling sex a liberty protected by due process, recognises a constitutional right to have sex, plain and simple. And so most laws governing sexual conduct are doomed. If sex is a right, all such laws must survive something called “strict scrutiny”, which few will.

In fact, once we read into the decision a recognition of the right to have sex, the implications of Lawrence may be broader than even Scalia envisioned. It may have rendered invalid significant portions of the law dealing with sexual assault. For instance, it may hereafter be more difficult to insist that statutory rape should be, as it is now in most U.S. jurisdictions, a strict liability crime. Under current law, a defendant cannot be acquitted by claiming that he made a reasonable mistake about his partner’s age. But strict liability crimes are restricted to highly regulated activities, which sex cannot be if it is a fundamental right. Even laws concerning adult sexual assault starts to look like outliers if they attempt to restrict a defendant’s ability to claim he made an honest mistake about whether consent had been given. It is a complicated matter to explain how this works. I will do so in a future post.

The presidential campaign has brought to prominence a candidate, Rick Santorum, who openly wants to take us back to the world of Bowers. A few years ago, before his run for president, Santorum was asked by John Stewart: “Can the government really mandate virtue?” He replied: “I think it HAS to.” But we live in Lawrence’s world now. As Kennedy noted, the Lawrence decision brings U.S. law into line with other Western democracies, and with public opinion. There is no going back. I think this is a great achievement. However, I also think that we now must struggle with the full implications of the recognition, belated as it is, that the freedom to have sex with whomever we choose is one of our fundamental rights. It is going to be a long and difficult process.

Image: Nikolay Gay, Achilles Lamenting the Death of Patroclus (1855)

In my last post I asked the question: why do we seem to have a double standard in rating movies, such that violence is tolerated more readily than sex? The most obvious explanation for the current rating system is: conservative values. When I posed this problem to my friends, most of whom are secular liberals, they were quick to point out that the movie ratings system in the U.S. was designed by people with a very distinct moral and political agenda. They mentioned a documentary, which is indeed very good, called This Film Is Not Yet Rated, that chronicles the absurdities of the current system. The film shows that according to America’s current system, sexual content is divided into normal and deviant, according to a very questionable definition of these terms. Rape in the missionary position is considered normal, and earns a PG rating, while consensual sex on all fours is classified as deviant and thus deserving of an R rating.

Let us grant, as a matter of fact, that movie guidelines are determined by people who have a particular moral, and generally religiously-motivated, point of view, one that many of us might not agree with. But this is neither an argument nor even an explanation for the double standard. According to their stated values, religious conservatives should abhor violence as much as they do illicit sex. It may be that some are hypocritical – their hang-ups about sex are stronger than their abhorrence of violence – but I think many are quite consistent. If they were given a free hand, they would place severe restrictions on both sex and violence. Just as importantly, most of the secular liberals I know adhere at least as devoutly to the double standard as religious conservatives do. Ask secular liberal parents if they forbid their kids watching programmes with any violent content – even if it just cartoon slapstick like Looney Toons or the classic Disney shorts – and I guarantee they will, perhaps reluctantly, admit they do not. But you will be hard-pressed to find any who expose their children to shows with explicit sex, or who let them have free reign in surfing the internet.

Clearly we have an intuition that our children can handle media violence more easily than they can media sex – even though we want our kids to have sex eventually, when they are old enough, and we never want them to commit acts of violence. Perhaps this intuition is an irrational one. It could be the result of social conditioning, another indication that our society, at least if we live in North America, remains hung up about sex. In Europe, people grow up in a different social environment, and their threshholds for sex are as a result very different. But I do think there are several arguments that might at least potentially provide a reasonable defense for the existence of some sort of double standard, even if our current one might require modification.

1. More intense reality: Just about all the violence we see in the media is simulated, and we mostly know the difference between real and fake violence. Viewers can therefore brush the violence off as make-believe. One might worry that children do not differentiate between fiction and reality as easily as adults do, but in fact they generally have little trouble. I have watched violent cartoons with quite young kids, and objected to what the characters were doing to each other. The kids inevitably brush off my concerns, telling me: “Oh, that’s just pretend.” They in fact seem more able than adults to laugh off the violence – I have trouble watching cartoon characters get bonked on the head and knocked unconscious because I know far too much about the long-term effects of head trauma, but kids think it’s hilarious. And when the violence is real, we apply a different, stricter standard. Most parents would not let their children watch a YouTube video of someone actually being treated the way Tom treats Jerry. But with sexual content, it is arguably impossible to differentiate real and pretend in this way. Now of course the sex in movies and tv is simulated as well. But that is not quite so clear to a viewer – I was probably well into my teen years before I figured out that on-screen lovers weren’t actually having sex. And more importantly, there is no such thing as fake nudity. If a woman in a movie takes off her shirt, it makes no difference that she is an actress playing a role. Those are her breasts. You can’t say to your kids: That’s not really her naked body, it’s just the film.

While I think all of the above is true, as an explanation for the double standard it begs the question. We still need to establish why the reality of on-screen nudity is something that children need to be protected from. But I think we have made progress nevertheless. The differing levels of reality lead us into another, perhaps more compelling argument.

2. More intense inducement: There is a long and contentious debate in both the media and the academic literature about whether seeing violent movies, or playing violent video games, makes a person more likely to commit violent acts. This debate is far from settled, but at the very least we can say that, for most of us, the correlation is not close. If seeing people killed on screen inevitably made you want to kill them in real life, we would all be mass murderers, because we are all bombarded regularly with acts of on-screen violence. Most us are more likely to have the opposite reaction – to feel disgust at what we’re watching. As I said, that is one of the reasons on-screen violence might potentially have value. But with sexual content the inducement is hard to deny. There are just no two ways about it: watching someone take their clothes off – especially someone very attractive, as most people in movies and tv are – makes you want to have sex. It may not have that effect on children when they are young, but it certainly does by the time they hit puberty. And even young children may try to imitate sex acts when they see them, albeit in their clumsy and ignorant way.

Against this, we could argue that what on-screen sex stimulates is arousal, and arousal is not in itself harmful. We need to establish empirically that seeing on-screen sex makes someone more likely to engage in actual high-risk sexual behaviour. Opponents of pornography have tried to do just this, with much more explicit material than we are discussing here, and they have had just as much trouble establishing a causal connection between the bevaviour on screen and the behaviour in real life as have the opponents of on-screen violence. And if it is hard to establish this connection with outright porn, it will be much harder to establish it with mere nudity or with the tamer sort of sex found in main-stream movies.

3. Desensitisation. We might argue in the opposite direction, and suggest that too much exposure to on-screen sex, far from intensely arousing people’s sexual desire, eventually just makes them blasé about sex. As an argument for the double standard, this might seem paradoxical. We don’t want our kids to become desensitised to violence either. But I think the reasons are very different. We worry about desensitising our kids to violence because we think it will weaken our moral prohibition against it. If kids are told, “Never do this,” but then see it constantly being done by others, they may simply tune out the moral imperative. This is a slightly different argument than the inducement argument, but it is equally dependent on empirical confirmation. We must still establish a causal link between exposure to violent media and actual violent behaviour, and I have just said this link has not been established. But our concern about sexual desensitisation, by contrast, need have nothing to do with the possible inducement to high-risk behaviour. When people complain that society is becoming too sexualised, they may not just mean that we are creating an environment where young people are encouraged to behave irresponsibly (though they often do mean this). We may be worried instead that by saturating the public sphere with increasingly-explicit content, and exposing children to it at an increasingly-young age, we are undermining the specialness of sex, that peculiar magic that it gets from being something rare and private. We want to preserve for our children, once they finally reach the age of consent, that flutter in the stomach we feel watching someone peel away their clothes and reveal themselves to us, that feeling that sex, when we have it, is an experience totally apart from the world of the everyday. If young people have free access to sexually explicit shows and websites from a very young age, sex will be no more exotic to them than eating or sleeping. And we might think that would be a great loss.

Because we are talking not about behaviour but about something more subjective and ephemeral, a belief in the specialness of sex, it is harder to debate empirically whether this specialness is lost in a society where young people are more frequently exposed to explicit content in films and tv. It is therefore hard to see how we would convince someone who doesn’t see this argument’s immediate appeal. I don’t think we can dismiss the argument out of hand – it does potentially provide a reasonable justification for the double standard. But someone who wants to actually defend the double standard should probably hope for an argument more capable of convincing someone who is undecided. And I believe there is at least one such argument available.

4. Complexity and Controlled Knowledge: I suggested above that it is relatively easy for even children to tell the difference between real and fake violence. We could also argue that the moral rules around violence are simple and easy for parents to explain, even to very young kids. We can tell them: don’t hurt other people, even if you see it happening on tv. It may be true that on-screen violence tends to work against that message, but it does not undermine it entirely. Otherwise, as I’ve said, most of our kids would be sociopaths. But the rules around when and how we should and shouldn’t have sex are endlessly complex – indeed, it is the task of this blog, and the course associated with it, to figure out just a few of them, and it’s a full-time job. Movies and tv shows that depict nudity or sexual acts raise questions they cannot themselves begin to answer, and in contexts where there may be no one around to do so. If we expose our kids to sexual content before we have had a chance to work through with them even the most basic issues of what sex means and what are the risks of having it, they are liable to end up confused or, worse, misinformed. Though children obviously cannot be protected from anything sexual till they have talked the birds and the bees with their parents, movie ratings are at least one way of helping parents ensure their children aren’t bombarded by confusing and upsetting material before they are ready to deal with it. Our kids will be teen-agers soon enough, god knows. Movie ratings are one way, admittedly limited and imperfect, to allow them to just be kids, at least for a little while. They also give parents greater control over when and how children finally do start dealing with the complex issues surrounding sexuality, so they can ensure the discussion takes place in line with their (the parents’) own values. Again, as a tool to accomplish this, movie ratings are very limited and imperfect, but they are at least one small thing we as a society can do to help them cope with one of parenthood’s greatest challenges.

I think that I am more or less convinced by this fourth argument, though like many people I would like to see some problems with the current system corrected. No system will be perfect, however. One of the effects of the system that many artists deplore is its effect on the sort of films that actually get produced. Because producers fear the negative box-office effects of an R, or worse an NC-17, rating, they force film-makers to strip their work of its sexual content, ensuring that certain films are either less true to their creators’ vision, or don’t get made at all. I agree this is a great loss. Corrections to the current system might help, but I think it will be hard to avoid this self-censorship effect altogether, given the realities of the market. Films are expensive to make, and so they need to find a broad audience to earn back their costs. And if we want to protect under-age viewers from certain sorts of content, that inevitably shrinks the potential market. But film-makers always have to negotiate the trade-off between artistic integrity and commercial success in a thousand different ways. This is just one more.

Image: Still from Louis Feuillade, Les Vampires (1915)