Michael Eriksson's Blog

A Swede in Germany

A principled approach to sex

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Matters of sex, sex crimes, and sexcrimes have featured in some earlier texts, but never with a deeper treatment of my thoughts, premises, and whatnots. Below I try to partially remedy this.

First some principles:

  1. Sex is by and large beneficial, something mostly welcomed, even sought out, by most people. In this it differs from e.g. being robbed and highly resembles e.g. eating: People might not be hungry at any given time, they might not like some specific food (some might even be allergic), they might have a great aversion to being force-fed, they might be tempted to eat more than they should, careless eating can damage their health, etc. However, eating is and remains something seen as positive by almost everyone—and refusing food completely is not healthy.

    Indeed, sexual intercourse is one of the things normally seen as the most positive in the human experience and one of the most sought after. This most definitely includes by women*—I even have the strong impression that women are more interested in sex than men are, even though their sexuality might work differently.

    *Incidentally, this observation (and its sibling, that women really like men—likely more so than men like women) goes a long way towards explaining the success of “pick-up artists”: This-or-that technique might have a positive effect, but it does not magically convince an asexual romance-only creature to jump into bed with a random guy—it pushes those already (at least potentially) interested in the right direction. Most likely, their main benefit is that they make the pick-up artist try to push in the first place… Vice versa, the absence of this observation goes a long way towards explaining the problems many young men (unnecessarily) have.

    As a special concern, overlapping with the following two items: While there are many cases of “with whom”, “when”, “where”, “how”, …, that many of us would see as decidedly negative, it is not a given that others share the same aversions. For instance, there are apparently many octogenarians (and people a hundred pounds overweight, pizza faces, whatnot) who enjoy having sex with each other. While I, personally, would much rather eat broccoli than follow their example, they prove that there are people who see even this a something positive—possibly, on a “better than nothing” basis. Correspondingly, if someone knowingly steps into bed with someone even considerably older, fatter, whatnot, we cannot rule out that the experience was a positive for both parties. On the contrary, the event it self is a prima-facie reason to assume at a minimum* that it was** not so large a negative as to be preventative for the person concerned (although it might have been for someone else).

    *Often, it might be expected to be an outright positive; however, obvious exceptions lower the bar of what we can assume with reasonable certainty. Consider e.g. someone who engages in pity-sex: We cannot necessarily assume that actual enjoyment was expected, but we can assume that any negative expectations were considered sufficiently small to be outweighed by mere charitable satisfaction and whatnot. Similarly, a prostitute might or might not have wanted to have sex with a given customer, had this been the sole point of consideration, but the fact that she did have sex shows that any negatives at least were smaller than the amount of money earned.

    **Or, more correctly, expected to be. What actually happens cannot always be predicted—but then even someone highly attractive could turn out to be a disappointment.

  2. What is considered perverted, sick, twisted, or (above all) illegal today in one society need neither have been so in the same society in the past (or be so in the future), nor in another society today. Condemning certain sexual acts must be done only with great caution and erring on the side of too permissive—we do not need more sexcrimes.

    Good examples in many Western societies include a greater permissiveness towards homosexual activities* and extramarital sex**, contrasted with a greater resistance towards teenage sex*** (including increases or suggested increases of the age of consent) and a drift towards explicit and verbal consent****. (Some of these will be discussed below in more detail.)

    *Positive development.

    **Mostly negative development.

    ***Mostly negative development.

    ****Extremely negative development.

    A consequence is that if something is legal in one society considered “modern”, “civilized”, whatnot, we should think twice, even thrice, before making it illegal in any other society also considered “modern”, “civilized”, whatnot. (To, in a reversal, think twice about making something legal, would normally be contrary to erring on the side of permissiveness. However, in other areas, e.g. relating to surveillance, the reverse principle might apply—and then the conclusion is reversed too.)

    However, not everything that should be allowed is also to be recommended, and my favoring a greater permissiveness concerning a specific issue does not necessarily mean that I favor taking advantage of this permissiveness. Living on pizza, beer, and potato chips is (and must be) legal—but it is not a good idea. While I will not explicitly address this below, it does apply to a significant part of the discussion.

  3. Mutual consent must be the main criterion for judging the legitimacy of a sexual act, and e.g. the moral or religious* opinions of others (except as below) are irrelevant. However, if the act is harmful or a “breach of contract” towards someone else, the legitimate interests of that party must also be considered. For instance, if two sexual partners are “exclusive”, neither is normally** allowed*** to engage in sexual activities with a third party; for instance, if the act amounts to a trade of sex for a promotion, the interests of the employing business and the other candidates for the promotion must be considered and the trade must almost certainly be rejected. Overriding societal concerns, e.g. a fear that incest, prostitution, or pre-marital sex would have negative effects on society, might be a further source for restrictions, but should only be applied when the evidence is very strong, the negative effects very large, the restrictions on the individuals not undue, and when the restrictions are limited to the harmful**** area. (And, no, I am not certain that these criteria would ever be met in anything resembling modern society, including prostitution and pre-marital sex. However, see an excursion on incest towards the end.)

    *The most important part of the freedom of religion is the freedom from religion. An exception is obviously present in as far as a religious organization, e.g. the Catholic Church, can impose requirements on its members as a condition for membership.

    **Exceptions could include e.g. a situation where partner A refuses sex over a prolonged time against the reasonable expectation of partner B. In such cases, partner B would not commit a “breach of contract” by engaging in a sexual act with a third party, but would merely remedy a breach by partner A.

    ***Here we encounter the issue of what should be considered ethically and what legally wrong. This is a complicated issue that I will mostly ignore. However, as general guide-lines: (a) With an eye on the risk of creating sexcrimes, it is likely better to err on too little (especially criminal) law even on acts that are ethically wrong. (b) Even acts that are not strictly illegal can have legal consequences, e.g. through allowing an otherwise disallowed divorce, allowing the other party remedial action, or necessitating compensation.

    ****For instance, if the aversion to prostitution is based on negative effects on marriages, banning prostitution for the unmarried would be too far-going. (To boot, a ban for those married could be redundant if cheating already is an ipso-facto wrong.)

    In a more limiting context, additional restrictions could be justifiable, if sufficiently proportionate, e.g. that employees agree to forego office romance as a condition for employment based on the employers fear of undue complications (also cf. the footnote on religion above).

    (Much of the above could be deduced from two more abstract items, (a) freedom of self-determination, with variations, and (b) the application of some basic contract-law principles. I only very narrowly decided against a corresponding re-working. Also see an older text where I am more explicit about applying contract law to marriages.)

  4. People, again including women, are responsible for their own actions and decisions. Putting the blame on someone else, wishing for monetary compensation, or, at an extreme, involving the police must be reserved for those instances when someone else is objectively and considerably to blame, e.g. when a hot-dog vendor is so sloppy with hygiene that a customer ends up with food-poisoning—but not when the customer is sick after voluntarily downing one hot-dog too many or later has poor conscience for breaking a diet.

To next look at a few more specific issues, while applying the above principles and some common sense:

  1. Consent to sex should be taken at face value and people should be held* to consent given: If someone consents to something normally viewed as positive, it is unreasonable to demand that others should second guess the consent, let alone assume that “yes means no”. If someone consents** to “Here, eat this hot-dog!”, this should be taken at face value—notwithstanding vegetarians, health-food enthusiasts, hot-dog haters, and those who have just finished a three course dinner. In contrast, consent to “Here, eat this cyanide pill!” would almost certainly indicate something very off. Even “reluctant consent”, e.g. to get the other party to stop nagging, must be taken at face value: Unless threat or violence is involved, no-one forced that vegetarian to eat a hot-dog—the offer could have been turned down. Not doing so makes it the consenter’s decision and he must carry the consequences of the consent.*** Ditto “consent followed by regret”, etc.

    *Excepting the right to withdraw consent before the act, e.g. in that someone indicates interest in sex at the way home, but would rather go to sleep once actually home. Of course, the withdrawer might legitimately face negative consequences, e.g. (in the context of a bar pickup) not being allowed to remain in the apartment of the other party. (How far-going the consequences is beyond the current scope and would depend on the details of the situation.) A withdrawal of consent during the act is trickier: It might be OK in principle, but (a) it is not a given that the other party can conscionably be expected to stop, (b) the harm done to the other party is likely to be larger if sex is interrupted than to the first if it is continued (note that the original consent is a very strong indication that the act was at worst not a big deal—more likely a positive). Barring unusual situations like actions that are unreasonable in context, e.g. unexpected sadism, and radically changing circumstances, e.g. an urgent phone call, such withdrawal is unethical.

    **Here we can also draw other analogies to understand when sex should normally be considered unwanted. For instance, if someone goes up to a stranger and shoves a hot-dog into his mouth, this will rarely be met with enthusiasm and might well lead to assault charges. Similarly, combining “Here, eat this hot dog!” with the brandishing of a gun moves us to a very different territory.

    ***Indeed, this will very often apply even when we discuss something negative. Considering e.g. consenting to shoveling snow, cleaning the house, helping someone move, …

    This even applies to most* cases of intoxicated consent: Firstly, the opposite leads to too much arbitrariness, puts too much responsibility on the other party, and causes paradoxes like two drunk people simultaneously “raping” each other. Secondly, the responsibility for own actions include use of alcohol and other drugs, and if this leads to sufficiently impaired judgment that poor decisions are made, the blame does not reside with others.

    *Not including loss of consciousness and near unconsciousness, and potentially excluding some very severe other intoxications that leave someone entirely unable to make reasonable decisions. However, even a fairly severe intoxication should not be a hindrance to consent, a mild one under no circumstances. If someone drunk consents to hand out a ten-dollar bill, it is still his own fault. If he is unconscious and someone just takes the ten-dollar bill from his wallet, the thief is to blame. If someone crashes a car while driving under the influence, this increases culpability. Many jurisdictions contain (and all should contain) provisions to give some degree of protection against consequences of actions taken while heavily and obviously intoxicated, e.g. in that a contract or Las-Vegas marriage might be contested on this basis; however, these are intended to annul annullable negatives—a sexual act that already took place is no longer annullable and sex is not a negative.

    (But it does, obviously, exclude “consent” given e.g. under threat of violence—just like with any other transaction.)

  2. While restrictions on consent based on age are not unreasonable in principle (analogous to restrictions on the ability to enter contracts), many countries of today are too limiting.* Not only do we have to consider the general “sex is good” principle, but also that teenagers have strong natural sexual drives while being** sexually mature or close to mature, that even marriage and procreation has been historically common among even fairly young teenagers, and that many hit the height of their physical attractiveness during their teens—it is natural*** for a teenager to have sex. Looking at TV, it is not uncommon for a parent to complain loudly to (most often?) her friends over not having had sex for a few months—and neither is it uncommon for a parent to be callous towards a teenager going without sex for years.

    *I will not try to give a specific recommendation, seeing both that this might require considerable research and that I am against discrimination by age, as opposed to individual characteristics. (In general, not just regarding sex; cf. [1].) However, a limit based on sexual maturation might be reasonable: Going above its completion will lead to increased sexual frustration; going below its onset seems pointless through bringing little benefit (but potentially some danger) to the individual. Other considerations include a better protection against non-consensual sex (someone too young might not be able to reject a sexual advance in an effective manner, and a blanket ban could be helpful by reducing the risk of such advances) and when (cf. below) someone can be trusted with preventatives. I also note that my native Sweden has a limit at age fifteen, which seems like a reasonable compromise when I look back at my own teenage years (assuming that an age-based limit is applied).

    **Not all teenagers are, either because they are still at the beginning of their teens or because they are slow developers; however, the sexual drive correlates strongly with sexual maturity.

    ***Not everything natural is automatically good, but I have yet to hear a strong argument for the opposite in sexually mature teens.

    Looking at mental maturity, why would someone aged seventeen (sixteen, fifteen, …) not be able to give meaningful consent? Why, looking at the U.S., should the age of consent be higher than the age of legal driving, with the ability to end or ruin lives in a matter of seconds? Sex (with proper precautions, cf. below) is not harmful*—but I suspect that waiting too long can be:

    *Weirdly, some people seem to be under the impression that sex below even eighteen has some quasi-magical harmful property in it self, that the participants would somehow, in some manner, be mentally damaged or turned into perverts just through having sex. This might or might not be true if we go back to true children (where this opinion appears to be outright common), but there is no non-superstitious reason to apply it to e.g. someone aged seventeen. (Even for true children, the risks are likely exaggerated, because the research has naturally focused on victims of abuse by those considerably older, leaving the question of what negative effects were caused by sex and what by e.g. pain, powerlessness, a feeling of betrayal, whatnot. However, here I strongly suggest erring on the side of caution.)

    I would argue that waiting too long to be sexually active can be more harmful, e.g. in that sexual frustration can get in the way, that sexual expectations grow too high (followed by a severe let down), that the “first time” is built-up in the mind to the point that it is surrounded with anxiety, that porn* is used as a substitute, or similar. (But I note that a lower age limit does not automatically ensure an earlier debut.) To boot, a higher age-limit can be harmful through forcing those who violate it (and let us not be naive here) to sneak around and jump through hoops, e.g. where preventatives are concerned.

    *I have nothing against porn, per se, and I do consider most of the criticism against it exaggerated or outright wrong. However, it can take up more time than just having sex, it can disrupt sleeping patterns (the teen having to avoid parental oversight), it can create an unrealistic image of sex, it can increase the risk of having a computer infested with malware, … (The latter being far more likely to happen, without adequate protection, than a regular STD among those who have sex.) In a twist, it could also very easily lead to illegal activities with potentially very dire consequences, seeing that searches for porn involving those of a similar age are quite likely and reasonable—and these are normally (mis-)classified as “child porn”.

    Counter-arguments focusing on the risk of pregnancy or STDs are flawed, should they want to ban sex in general (below a certain age): If the target is to prevent pregnancy and STDs, measures should be taken that attack these more directly. Such could include a requirement for additional precautions (notably, condoms) for those below eighteen, beyond a lower age of consent. The actual age of consent might then be geared at what point someone would be sufficiently responsible and well-informed to take such precautions.

    For some discussion of age-based limits in general, see [1]. For issues around undue prolongation of childhood, see e.g. [2].

  3. While explicit consent is better than implicit or implied consent, it is also often unpractical and unnatural—and it opens up too much room for interpretation of what constitutes consent.

    Apart from situations where consent is either impossible (e.g. for someone unconscious) or where it is highly unreasonable to assume consent (e.g. with a stranger requesting sex while brandishing a weapon), it is better for all involved parties to insist on rejection being explicit. If at all possible, rejection should also be verbal, to avoid any type of misunderstanding.

    Note especially that sex is very often something that just happens naturally, through continual and, usually, mutual, escalation, especially between significant others. The opposite might even quench the interest of the other party.* Of course, such continual escalation gives plenty of opportunity for an early rejection that terminates the process well in advance of actual sex.

    *As an extreme, if fictional, example, I point to the German sit-com “Türkish für Anfänger”, where the unusually busy wife once responded to her husbands spontaneous advances by trying to schedule sex for a later time, causing him to sulk for several days, and eventually resulting in a row.

  4. Looking at the special case of homosexuality: In a typical constellation, we have two consenting adults, no third-parties are in anyway hurt, and, barring e.g. a Biblical* ban, there is no reason to treat a homosexual couple differently with regard to sexual intercourse** than a heterosexual one.

    *As discussed above, even a Biblical ban should not be of relevance to those who neither, themselves, support such an interpretation, nor are members of a Church that does.

    **However, there might well be other areas where different treatment is warranted. I do not take it for granted (nor do I rule it out) that e.g. marriage and adoption should be open for homosexual couples.

  5. Looking at the special case of prostitution: If there are no other hindrances involved (lack of consent, age, unfaithfulness, …), there is no reason to not allow it—and if such hindrances are present, it would already be disallowed, making additional legislation, at best, redundant. Correspondingly, I consider bans on prostitution highly misguided and violations of the self-determination of the involved parties.

    The specific argument that prostitution would somehow be an ipso-facto abuse of women (or otherwise be a great evil towards them) falls flat on its face, seeing that the possibility of prostitution does not leave the involved women (and men) worse off than without the possibility: If prostitution really is worse* than the alternative, that alternative can still be chosen, even if prostitution is available. If prostitution is not available, the alternative is the only thing remaining.

    *Moving slightly off-topic, I note that negative effects often relate to the illegality and/or poor status of the profession; that the negativity is often considerably exaggerated in media, and outright demonized in feminist propaganda, compared to what many prostitutes themselves say; that a comparison with other jobs must be made (cleaning toilets is legal, working in coal-mines is legal, …); and that, contrary to feminist propaganda, there are even some who enjoy the job. Be especially wary of assuming that all prostitutes lead the same life—there is a world of difference between an up-scale call-girl and an over-the-hill streetwalker. (Generally, feminists have views on and around prostitution that are simply not born out by facts and logic, and are often based on absurd premises. For instance, I once read about a “study” where a certain, very large, number of “trafficked” women had been found: There were X foreign hookers in the region. Since a woman would never voluntarily prostitute herself, these must all be involuntary. Because they are foreigners, they must have been trafficked. Ergo, we have X victims of trafficking…)

    Of course, if prostitution is deemed illegal, then we have to treat it like any other “criminal sale”, with the main responsibility being put on the seller, not the buyer. If in doubt, if the buyer is committing a crime, he does so after enticement, implying that e.g. the Swedish law that frees the prostitute of all responsibility and views the buyer as the sole criminal is not merely illogical—it is insane!

Excursion on incest:
Incest is a tricky issue, not least because my own automatic reaction is “yuck”. However, exactly such automatic reactions are problematic and lead to suboptimal decisions. Looking at it more objectively, we have the pro-side that mutual consent would normally be enough to allow it, and a con-side that comprises at least three arguments: Firstly, the risk of inbreeding. This is historically a strong argument and likely the reason why a “yuck” reaction is so common—evolution has taught us to avoid it.* However, with today’s preventatives and (in a pinch) “post-ventatives”, this is not much of a factor, unless the parties are deliberately aiming at procreation. Secondly, the increased risk that a dependency, helplessness, whatnot, is abused. This might be enough to warrant a ban over a fairly wide range of ages (and possibly other aspects), but not for independent adults. Thirdly, this could cause a number of complications within the family. Barring such constellations that are banned for other reasons, notably abuse of minors, I would tend to consider it something to allow—but also something to very strongly discourage.

*However, this is unlikely to be the whole explanation. For instance, U.S. fiction often shows this type of reaction towards even first cousins, while other cultures limit it to the more immediate family.

Excursion on STDs and pregnancy:
I mostly ignore these factors above, for the sake of simplicity and noting the plethora of contraceptives, medicines, and whatnot that are on the market. (And pregnancy is not always considered a negative…) For those who act responsibly, STDs and pregnancy are not that large a problem in today’s world. Those who do not? Well, they have themselves to blame—and their lack of responsibility should not lead to restrictions for others.

However, this area can lead to additional restrictions where e.g. cheating is concerned. For instance, a husband and wife might deliberately chose to have sex without condoms, knowing that they are both “clean”—but what if one of them cheats? A carelessly contracted STD now affects the spouse as well as the cheater. Similarly, an unwanted pregnancy will also usually affect the spouse.

As an aside, while many jurisdictions have what amounts to a strict liability for men regarding pregnancies, it would make much more sense to keep the men guiltless for (unwanted) pregnancies and put the strict liability on the women: Women have a greater set of contraceptives, a greater control of what contraceptives are used, and ultimately will make decisions relating to abortion. A responsible and careful man can still accidentally impregnate someone; a responsible and careful women, on the other hand, is extremely unlikely to become accidentally pregnant—and if she does, she can do something about it. Still, when an irresponsible woman and a responsible man have an unwanted pregnancy, she decides whether he will spend the next two decades paying child-support… This system is fundamentally flawed, outdated, and unjust.

Excursion on text structure and quality:
The above is the result of a collection of thoughts and half-written pieces unsystematically gathered over several weeks, originally conceived as a single list. This was highly chaotic, and I did some restructuring through dividing the original list into two, dealing with principles and conclusions respectively. The division is somewhat arbitrary and the result not ideal, but I prefer to leave it at this, seeing that a truly strong piece would require a thorough rewrite and likely the extraction of some parts into separate texts—and that I have a large backlog of texts to complete. Other compromises include removing some intended cases and not expanding the treatment of some others to the degree originally intended.

Written by michaeleriksson

September 15, 2018 at 5:32 am

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