Sex Laws

It is not the business of government restrict people’s access to sexual satisfaction or keep sexual gratification in short supply. The ability to experience sexual gratification is a naturally occurring feature of human beings. The historical motivation to restrict the availability of sex was, frankly, religious. Today, of course, the religious rationale normally cannot be spoken aloud in legislative or judicial councils, and all manner of other reasons are given for maintaining the restrictions. But the bottom line is always the same: There are people in this world who want to control the sex lives of other people. That’s what laws do. And, as a result, American prisons and jails have as many sex offenders as major western European countries have total offenders (adjusting for population).

Some believe that sexual gratification is an evil in itself or, probably more common, think it’s evil if enjoyed under the “wrong” circumstances, variously defined (e.g., acting alone, outside of marriage, with a member of the same sex, for money, etc.). Others believe that the appetite for sexual satisfaction is, in its essence (one might say, in it neuronal essence), no different from any other kind of appetite—at least, no different in a way that the law should take notice of. And, finally, many people seem to have distinctly mixed feelings on the subject, partially due no doubt to the mixed signals that Americans receive on the subject of sex from the time they are old enough to watch TV.

While the availability and, perhaps, “normality” of sexual experience and depictions have burgeoned in the past 2-3 decades, people continue to have strong and divergent views as to whether and under what conditions sexual gratification is wholesome, depraved or corrupt. This divergence is reflected in many ways, from the persistent efforts to repress gay marriage to the prohibitions on seemingly harmless devices such as vibrators. Meanwhile, drug companies advertise “erectile dysfunction” pills with abandon on prime time TV, and rank them among their best sellers.

The wide divergence of views that are voiced, and the even wider divergence that is reflected in practice, is in itself a good reason why government should stay out of matter entirely. But the main point is that, if freedom is a fundamental right, it is difficult to imagine how the government could ever have a “compelling” interest in regulating sexual practices in themselves or restricting access to sexual gratification as such. It is only because Americans do not enjoy freedom as a fundamental right that laws aiming to inhibit the availability of sexual satisfaction, one way or another, are such a major feature of the American legal scene.

There are, of course, harms in which sexual gratification is a byproduct or even a motivator. Naturally, if government has a compelling interest in addressing one of these harms, that governmental interest is in no way diminished just because sexual gratification or satisfaction is also involved. Nor, however, is the government’s legitimate interest enhanced just because sexual gratification is associated with the harm. In a world where liberty is a fundamental right, the focus should not be on the presence or absence of sexual gratification but simply on whether there is evidence of a real harm creating a compelling interest, whether the law that addresses the harm is narrowly tailored and whether there are less restrictive alternatives. Like any other liberty, the freedom to seek and enjoy sexual satisfaction should be carefully preserved, insofar as possible, in laws that address legitimate harms.

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