Sex and Lawyers

Back in the old days, when the sexual revolution was just beginning to take hold, its proponents declared, with all due solemnity, that you can’t legislate morality.

They should have added that you can’t get people to behave morally through litigation either.

Nowadays, sexual behavior on college campuses has become a cause for concern. And I am not just talking about the hookup culture.

Apparently, women are more likely to be abused, harassed, an insulted sexually through behavior and language.

How are college administrators trying to deal with the problem? With a combination of new regulations and guilt trips.

Their approach gives new meaning to the term legalistic.

That means lawyers, lawsuits, investigations, committees, accompanied by sensitivity training, and activist demonstrations.

They all tell you one thing: what not to do. They have ushered us into the kingdom of No.

Since sexual morality has always meant telling people what they should not do, these new policies are yet another wrong-headed effort to legislate and litigate morality.

But then, how are they all working out? By all evidence, not very well.

William McGurn summarizes the sad irony brilliantly: “On the one hand, we have more Take Back the Nights, more sensitivity courses, and more performances of the Vagina Monologues than we've ever had. On the other hand, the same people who give us these things keep telling us the problem they are designed to fix is getting worse. Earlier this month at the University of New Hampshire, Vice President Joe Biden announced that this administration's answer will be more Title IX 'guidelines.'

“Some say we're in this mess because of the collapse of traditional sexual morality. Manifestly, when society's most educated members take the view that the only issue in what they see as a purely mechanical act is whether the involved were consenting, you're in for trouble. Nevertheless, the real threat to civility and common decency is this: the substitution of codes and committees for responsible adults exercising humanity and judgment.

“For example: How much formal ethics training do you need to know that you don't secretly film someone in a private moment? …Instead of taking direction from lawyers, shouldn't our college authorities decide the right thing to do—and then instruct the lawyers to make that work?” Link here.

Clearly, our sexual revolutionaries have a great deal to answer for. Largely with their encouragement and under their aegis the dating culture on college campuses has been replaced by the hookup culture.

The countercultural movement to normalize vulgar and obscene speech, has succeeded only too well.

All of it to the detriment of young women.

Are there any moral codes left? Indeed, there are. As McGurn suggests, the primary moral precept is that anything goes between consenting adults.

Without consent, everything is forbidden. With consent, everything is permitted.

Why doesn’t it work very well? That one is easy to understand. How does anyone expect two drunken and drugged out college students to offer informed consent.

Given that signals are sometimes ambiguous, and open to interpretation-- as everyone learns in elementary deconstruction classs-- the principle of informed consent can very easily lead to abuse.

While we’re at it, how can you know whether someone is or is not consenting when that person is not only drunk and drugged out, but is also a stranger?

How can anyone stop this level of abuse? Aside from the possibility that young people will start behaving as though they respect themselves-- you see, I am still a bit of an optimist-- those who wish to legislate and litigate morality seem to feel that the best way to promote healthy sexual behavior is to threaten people with prosecution if they do anything that crosses the line.

That might feel like a severe punishment, and, in fact, society has always punished rapists severely. Yet, everyone also knows that when ambiguous and abusive sexual contact is adjudicated in the criminal justice system, women are subject to yet another round of abuse.

Many women prefer to avoid the indignity of a rape trial except in the most extreme cases.

We may all wish that they would decide otherwise, but such is reality.

As it happens, there is another great modern principle of sexual morality: use a condom. Everything is permitted if you know how to use a condom correctly.

So we have two basic moral principles that have been used to try to control sexual behavior. If both adults consent, anything goes. And, if you are using a condom, anything goes.

The problem with these precepts, as the symbolic logic of implication will tell you, is that when young people hear them they conclude that, when it comes to sex, anything goes.

Unless you get caught.

Defining sexual morality through a series of threats is really very old school. We would do better to offer a more positive vision of sexual experience, and to place sex within something resembling a relationship.

We should also get over the notion that all sexual acts are created equal and that sex is essential to your mental hygiene.

All sexual acts are not created equal. They are not just different ways to achieve exquisite pleasure and enjoy apocalyptic orgasms. You have not gotten a step closer to the meaning of sex by saying that they are merely about pleasure and enjoy.

And let’s overcome the notion that sexual release is a form of mental hygiene. If you believe that your health depends on whether or not you have sex, then you are more, not less, likely to be abusive.

It’s one thing for her to decline to have sex. You will survive the experience. If you have been led to believe that sex makes an essential contribution to your mental health, then, when someone declines your sexual advances you will imagine that she is going to make you sick. In that case, you might get angry and might feel justified in acting accordingly.

Such reasoning cannot count as a defense to a charge of sexual assault. But wouldn't it be better if we figured out a way to prevent these things from happening, rather than focusing on how to punish punish the perpetrators once they do.

Clearly, this is grossly inappropriate and wrong.

But the solution is not to try to legislate and litigate morality. The solution is first for young people to act as though they respect themselves. And second, for those of us who are no longer young to offer a more meaningful definition of sexual experience.