Sex-Positive Law

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Sexual pleasure is a good thing. It’s not just moral philosophy that supports the value of pleasure (although much of it does); it’s common sense. We value pleasure simply because it is pleasurable. People devote significant time and money to baffling pastimes ranging from to Twilight fan fiction to Farmville, and there is a sizeable portion of the population that is inexplicably obsessed with kale. Sexual pleasure is certainly no odder or less valuable than these pursuits.

In a Washington Post op-ed out this weekend, I argue  that, despite the inherent value of sexual pleasure, legislatures and courts continue to view it as having negligible or negative value. The piece is a reflection of a larger work I’ll be publishing this Spring in NYU Law Review called “Sex-Positive Law.” In particular, I look to obscenity law, the criminalization of BDSM, and constitutional law pertaining to sexual freedom to demonstrate that courts and legislatures routinely rely on the unwarranted assumption that sexual pleasure is valueless or even harmful. This blind spot leads to bad law and bad policies.

Truly progressive legal reform needs to acknowledge that sexual pleasure is a good thing even when engaged in for its own sake. This would require us to rethink and improve our approach to several areas of law, from obscenity to sex toys to rape law. Valuing sexual pleasure doesn’t mean we must value it above all else—we regularly regulate things that bring us pleasure. We value the pleasure derived from art, but we don’t allow people to steal Picassos or force artists to paint for their pleasure. But recognizing the value of sexual pleasure requires us to have a more honest discussion about what we choose to regulate, what we fail to regulate, and our justifications for these choices.

The Washington Post op-ed is available here:

“Sex-Positive Law” will appear in the 87th volume of the New York University Law Review in April 2014.

-Margo Kaplan

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