Before you dissent from the historical assertions in this piece with some obscure example from the Middle East, please realize that the culture of which I speak is the general Western Culture from which the United States came. All generalizations are exactly that: generalizations, and they say nothing about specifics, any particular period in the past (like “the 50s”), or the norms of non-Western cultures.
Because of the subject matter, most of the links are more inappropriate in tone or substance than they otherwise would be in another article of mine. But in every circumstance, I have avoided outright vulgarity or explicit content, especially with video content. I have tried to put in warnings for audible content that might cross certain lines for readers.
Due to helpful reader feedback, I have decided to break this particular train of thought into three separate parts instead of typing everything I wanted all at once.
Comparing the Norms of the Old and the New
Our views on sex have changed, and it is not insignificant. Before, sex was something that was not okay until it was okay. Now it is something that is okay until it is not okay. This change has affected a great number of things already, and the ground upon which we stand now is not firm. It has slipped and is slipping down a slippery slope, and today it rests on contradictions and the empty shell of an old order.
Eventually, these contradictions will demand action, and the ground will continue sliding until it rests on something solid. Soon we will have to recreate a structure based on the past, create an entirely new one from scratch, or be satisfied with hitting rock bottom. I write so that we start thinking seriously about this, and make a collective decision about these important issues based on thought, rather than reacting to the momentum and unintended consequences that are already at work.
This piece consists of three parts: First, a general comparison between the way our society currently views and enforces sexual norms, and the way it used to do so. Second, a look at our legal landscape regarding sex, and how it will not stay put. Third, a revival of a very old argument about “nature” to hopefully bring some order to the process.
The Old Edifice
Back in the old days, sex was something that was not okay by default, until circumstances made it okay. Now, sex is something that is okay by default, until circumstances make it not okay.
In the old days, “wrong” sex came in many, many different forms. Of course there was rape, and there was sexual assault, as there is now. Sometimes there were different names, but these ideas were still “wrongs.” But in addition to our current major categories of sexual crimes, there was also adultery, fornication, bigamy, sodomy, bestiality, cohabitation, solicitation, prostitution, seduction, polygamy, incest, obscenity, indecency, and other forms of sexual and moral regulation.
The Norm of Marriage Independent of Law
These were not just civil laws; they were social norms. It was inherently known in the culture that these acts involving and surrounding sex were wrong. They were wrong because there was an understood standard of good and bad behavior built around the thing that made sex permissible: marriage.
Absent the marriage, there was no permissible sex. Sure it happened, possibly even as much as today for certain time-periods, but it was not deemed “acceptable.” The thing that moved sex from unacceptable to acceptable was not, as it is today, “consent” standing by itself with a few extraneous modifiers. Instead, concepts of duty, loyalty, self-control, and self-restraint, and family were intimately involved. In short, instead of “consent” of individuals alone, the guard against immoral incidents of sex was a highly public, socially open, legally recorded, and intimately involved process: a wedding. And even with a wedding, the concept of “sodomy” still put moral lines on acceptable and unacceptable sex. Sure, consent is part of the picture, but it isn’t the whole picture. That’s why it was possible, under this more nuanced system, to have a drunken and violent sexual encounter be shown as downright romantic if it was within the bounds of a married relationship and in a certain context. Even if the rules were clear, sexual relations were still viewed as what they were: complicated.
In fact, the overarching structure that surrounds sex with marriage can be seen by observing that it was not so much of a “scandal” if a young unmarried woman slept with a man. Sure it was a scandal, but it was also a crime: fornication. The scandal absent the crime was merely getting married without the surrounding societal structure: elopement.
This order about sex revolving around “marriage” was simply something that was inherently known. While these acts of immoral or illegal sex were often committed (at least some of them). These sexual wrongs came in degrees. The crimes had a wide range of enforcement priority. And universally, sexual “permission” came with a single event: marriage. The enforced lines about who it was permissible to have sex with were the same ones about who it was permissible to marry.
And “inherently known” is no exaggeration. Check your Bible and look for where it says that it is wrong to have sex before marriage. Surprise: it’s not there. All you have is the condemnation against “sexual immorality,” which in the King James Version of 1611, translates into “fornication,” along with other words like “prostituting.” But there is simply no biblical definition of the phrase “sexual immorality.” The reason it’s not spelled out is that it is assumed to be inherently known, and not just in cultures that are Christian.
Somewhat Different Cultures, Somewhat Different Rules
Absent marriage (and even within it) there were many gradations of sexual wrongness in the past involving sex, because there were many things needed to make sex “okay.” For example, how can someone today defend the old practice of arranging marriages or betrothing daughters? Well, think about it. Marriage and sex was more than just romantic desire until very recently. It was about your future; it was about the next generation; it was about status; and sometimes, it was about self-preservation.
Our society is different today, so it should not shock us that certain practices like finding spouses are also different. The idea of an arranged marriage or betrothal might seem absurd or unjust, but separate the bad it could be from the entire spectrum of what it was. In an era when police were the exception and not the norm, when machines were scarce and livable wages required physical labor; in a time without cars, planes, trains, dating apps, photographs, welfare, birth control, food stamps, or subsidized housing; when famine, roving armies, or plague could overcome even the most staunch societal institutions . . . is it really fair to broadly criticize a system of parents taking “who will she marry” into their own hands? Is it better to heavily influence a son or daughter’s choice, based on family reputation and tangible assets, and roll the dice on letting love work itself out? Or is it better to adopt today’s practice of letting adolescents decide who they will marry, and roll the dice on finances, social stability, and survival? It’s fine to judge past eras, but don’t be stupid about it.
The “Honor” of Women
It might also be worth commenting on this idea of social norms and laws which were put in place to “protect women’s honor.” Why would we have some crime on the books for “seduction” of women by men? Where is the equality of the sexes? Why were there laws that ‘keep women in line‘ and treat them as babies? Well, I’m glad you asked.
First, it must be recognized that this is a time when society actually did recognize that certain sexual relations could call one’s honor into question. Such recognition is not present today. As an initial matter, old rules “protected women’s honor” because back then there actually was something to protect. Today, not so much.
Second, no matter how much you believe in the legal or moral equality of men and women, actual biological equality doesn’t seem to get in line. A woman might not be a baby, but she is definitely the one who actually makes them. The reason a man’s sexual honor does not need protecting is that it isn’t exposed by biology.
If a man and a woman have a scandalous intimate encounter, only one of them is at risk of publicly evidencing this fact in the coming months. It is probably a good thing, especially in a world before birth control, to push back against the nine-month biological advantage that a man has to escape the consequences of mutual passion. When the natural world creates inequality, it is through law and custom that human society tries to enforce that actual equality. Since men are by nature generally stronger, more visually driven, slower to sexually or mentally mature, and temperamentally more aggressive than women. If you want to view this as babying women, then fine. But you can’t ignore that there’s a case to be made in protecting women from men.
“How immoral that the consent of a woman was not valued in such a patriarchal society,” said the idiot who has never read a single novel or story about the travails of young men who try to woo the affections of a women they prized. “How silly it is to think that a strong and independent woman needs a chaperone like her mother or father or even (gasp) the government to protect her from the world, as if she’s not an adult,” the idiot continued before going back to the article about rape culture on American campuses.
The Overarching Pattern of Old
Agree with it or not, you have to admit: the old way had order. It had comprehension. It had structure. It was tied to biology. It had a multifaceted morality. While I will further expound on the under-girding structure in later posts, I’ve explained the central event that made practical sense of sexual relations: marriage.
The New Sexual Frontier
We may think we have a much more comprehinsible order today. Now, “consent” is the unifying standard, explained (without a hint of sarcasm or appreciation of the complicated nature of romance) with videos like this one [NSFW Language Warning].
The Legal Changes of New Norms.
When I was in law school, the shift in attitude about sex towards consent had already been made, but we still talked about it. The change was greeted with celebration.
In our unit on “rape,” there was a great deal of consternation at the fact that many states had defined rape until very recently using the old definition of “carnal knowledge of a female forcibly and against her will.” The requirements of “forcibly,” “female,” and “against her will” were deemed insufficient to prevent conviction when deception in invoked, when a lack of physical resistance could be shown in court, or when the victim is a man.
With new sexual norms erasing many social taboos about men and women fraternizing on their own, this is probably a good change. As one law review article put it,
“By limiting the definition of rape to intercourse procured by physical violence, the courts tacitly validate many other coercive practices that would be criminalized if for example, men were trying to obtain money, rather than sex from unwilling women.”
If you are not going to punish “seduction,” it’s probably good to remove “forcibly” from the definition of rape. If sodomy is unconstitutional, it’s probably good to make the definition of rape one which includes men. This change for our place in time is a good thing.
And in this new way of thinking, “Consent” takes the prime spot. As explained by Eric Holder when the Department of Justice in their updated the definition of rape in crime statistics, no longer is rape considered “the carnal knowledge of a female, forcibly and against her will” but instead is merely “any penetration, no matter how slight. . . without the consent of the victim.” Sexual assault, is an umbrella term for many things, but is also the same crime without the extra requirement of penetration.
But just because the new framework is better than the not-as-new way of doing things, that doesn’t mean that the actual old philosophical framework was bad or insufficient. We may not like it, but it’s just different, not insufficient. The old framework was more complex in that both society and the law had roles to play in preventing bad sex. For example, the reason it wasn’t possible for a man to “rape” a man in the old days is the same reason it’s not possible today to “murder” someone whom you shoot but who survives: it’s a different crime. It’s not not a crime. The old legal language about rape was not intended to be some heightened standard and greater permission to commit rape, it’s that the societal norms made it so that before an unmarried woman was even capable of being raped, some different “wrong,” whether legal or social, was there to prevent things from going further. “He said/she said” of a private encounter is just as effective way of avoid a rape conviction as appealing to a text-based technicality.
This knowledge of the old way of thinking about wrongful sex was completely absent in my time. In fact, my Criminal Law professor (an otherwise excellent professor) asked an open question to the class about what the old crime of having sex before marriage was. I raised my hand and said, “fornication.” He was surprised I knew the word. I was surprised no one else did.
In my law school class, the idea that the rape of a man or certain violent forms of intercourse which would be characterized as sexual assault would fall under the wide umbrella of practices that is “sodomy” was not widely considered. The independent knowledge may have been there, but it was not incorporated into a broad based understanding of old sexual morality. That is because there was no understanding of old sexual morality. There was only “freedom” and “consent.” The extent to which sodomy was even discussed was only to note, “Isn’t it a sign of how backwards the law was that homosexuality used to be punishable by death?” (You know, like rape was until very recently.)
Additionally, there was, without a hint of awareness of any contradiction, an absolute disgust at the idea that it was legally impossible in many states to get the state to recognize the rape of a wife, while simultaneously firmly believing in the sanctity of the marital bedroom, a place the government just simply doesn’t belong, a la Griswold v. Connecticut. In fact, it might have been previous generations that actually believed in anything resembling a “sanctified space” of privacy where government doesn’t belong, and where private parties are supposed to work out differences, disagreements, and fights. Is that a good thing or a bad? Good question, but power to intervene goes both ways.
The Driver of the New Norms
These critiques of the old order work very well to advance independent dogmas about contraception, consent, or same-sex marriage, but they don’t really fit together into any sort of overarching structure of sexual morality.
Presently, the socially involved practice of sexual permission, marriage, is out, and “consent and consent alone” is in. So now, sex can competently be undertaken by people who are strangers to the participants’ closest relations, even strangers to the participants themselves, and “social” in a much more risqué way. The idea that this is a good thing is not exactly a monolithic one, but it is certainly a very real one.
The response to the new sexual attitude is not so much one of celebration, but an acceptance of the inevitable. “Who are we to do anything about this?” Inherent in the framework of “consent” is the idea of “freedom.” And who are we to hinder anyone’s liberty?
Principles of Freedom say that which is not prohibited is allowed. And thus, sexual becomes something that is permissible, until circumstances make it impermissible, usually by the undefined concept of “harm.” The inherent restrictions in an institution like marriage are measured against the rubric of “freedom” (instead of “duty”); technology like contraception takes away immediate harms and consequences of sexual activity; and restrictions other than “consent” are stripped away, one by one, under the banner of “freedom.”
The Solitary Primacy of Consent
Sex can still be wrong, but the difference is that we have both fewer ways — and more opportunities –to transcend a sexual wrong. Instead of the hodgepodge of wrongs in the old order stretching from adultery to sodomy to bestiality, with everything in between, we now have basically three categories of sexual wrongs, in my opinion: crimes of “Consent,” crimes of “Disgust,” and crimes of “Wait….That’s A Crime?”
- Crimes of Consent are those crimes which violate the prime rule of modern sexual morals: they do not obtain consent. Example: Rape.
- Crimes of Disgust are things that don’t exactly break the law of consent, but which leave such a bad taste in our mouths, we have no problem banning them. Example: Incest.
- Crimes of “Wait… That’s a Crime?” is what I have termed to be all the things that are still on the books, but which don’t actually get enforced. Example: Adultery
I have purposely not identified precisely which sexual crimes go in which category, because sometimes, it is not so clear. Additionally, sometimes a single act can cross lines. For example, there is nothing that prevents a single event from being rape, incest, and adultery all in one act. But since, for example, incest or adultery can exist WITH the consent of the participants, we must separate the categories out. I will talk more about how crimes fit into these categories in the next edition of this series, but right now I’d just like to establish that yes, we think this way about sex.
Certain crimes still remain. For instance, adultery is still illegal in many states, but these are the old edifices of crumbling structures of the past. They are never enforced and hardly even relevant. The new order is here for good. “Consent” is here to stay.
The Strangely Construed Moral Outrage of Rape
But don’t think that fewer sexual crimes has stopped any moral indignation at sexual wrongs. Not at all. Instead, they have heightened. Especially with one in particular: rape.
Rape is important, as in life or death important. We have begun to criticize not only the individual incidents, but the culture that supposedly brings them about. All fine and good (this entire series is sort of in that vein). But sometimes our diagnoses of what brings them about can be quite strange.
For instance, in this article from the “good men project” (written by a woman), the author critiques the idea of saying that “boys will be boys” when explaining behavior. Um….except as a matter of tautology, they are. No, no! She means tendencies of “hitting other kids or being destructive.” Um….except that is precisely what boys do. And she is not alone in her criticism. She goes on to criticize “Teaching kids that boys hit girls because they like them.” Except….. as a matter of fact, they do. (Maybe instead of teaching boys to be well behaved by being more more like girls, we need to have room to let boys be boys, so they can grow into men.) But I digress.
The society-wide solution to this problem, ever embracing of both “freedom” and “consent,” seems to be even stranger.
And this is no fringe idea. For example, in this helpful public service add from the South Essex Rape and Incest Center in the U.K., “Drinking is not a crime. Rape is.” And from Bristol, U.K, a similar poster showing a group of young ladies almost too drunk to stand, and boldly states, “This is not an excuse to rape me.” And another one shows a couple passionately kissing and (from the position of the woman, anyway, seems to suggest that the passionate advance was made by the woman) displays the same reminder. A poster from Coastal Carolina University made an even stranger addition to this new guard against rape:
“Jake was drunk. Josie was drunk. Jake and Josie hooked up. Josie could NOT consent. The next day, Jake was charged with rape. A woman who is intoxicated cannot give her legal consent for sex, so proceeding under these circumstances is a crime. It only takes a single day to ruin your life.”
As was pointed out to Coastal Carolina University, Jake seems to have been raped, too. They responded by offering a new poster which says that consent must be enthusiastic, sober, mutual, voluntary, and communicated before any sexual activity. Now, that’s nice and all, but with “sober,” that means that a lot of the sex that happens in the United States is straight up rape, and probably still has that mutual rape problem. Additionally, there’s probably a joke to be made about the possibility of rampant marital rape due to the “enthusiastic” requirement (a little off-color humor there, but still funny).
It is also very ambiguous what “communicated before any sexual activity” means (since even an unwanted kiss can be sexual assault). Perhaps this fairly inappropriate a but humorous video on negotiated consent between parties can help. I wish I could say that the idea of lawyers negotiating on behalf of their two romantically connected clients while they are in bed is a complete joke, except that the reason I know about this video is that my law professor showed it to our class to make us think about the concept of consent.
Also, I don’t know about the U.K., but public drunkenness actually is a crime (a misdemeanor, anyway) in the United States. So while the felony of rape definitely is worse than the misdemeanor of public drunkenness, maybe that slogan isn’t as punchy on this side of the pond. And while of course kissing a man isn’t an excuse to rape her, the actions of a victim (not just their words) are definitely used in court to prove consent.
Inequality keeps rearing its head.
It’s also good to see the effect of this type of thinking in practice, not in theory. If “consent and consent alone” is the door between good and bad sex, and if “drinking is not a crime” is the mantra we preach to women, and if the primary weapon to battle a culture of rape is to “teach rapists not to rape,” then guess who is the sole guardian for an individual against rape:
Does that make you feel good?
I intentionally chose the still-drunken mugshot, because guess what? That’s when the guard is needed. To believe that all moral vices, including rape, are problems of a “lack of education” is a very Platonic way of viewing things, but we should know better than that. There are some serious problems with the current situation we have created for ourselves.
Women are vulnerable in this landscape. Perhaps this is most clear when we note that biologically, men and women are different than one another. For example, a Man and a Woman, both of average alcohol tolerance, going drink for drink will achieve the same level of intoxication at different times. The man is typically later. These are not scientific categories, but they illustrate the point nonetheless: Man and Woman may both feel happily tipsy at the same playful time, but there are many more levels of drunkenness to go. It is not that uncommon for the Woman to reach the “can barely stand” and “can’t remember anything” phase of drunkenness at the same time the Man is the “extreme confidence” and “cannot make decisions based on reason” phase of drunkenness. Lord help them if it comes soon after the “progressively more romantic than usual” phases. Dear Jesus, please brink on the “puking violently” phase to attempt to rescue this situation.
Men are also vulnerable in this landscape. Most of it is legal. For example, if a boyfriend and girlfriend are lightly clothed passionately kissing. The girlfriend initiates intercourse against the will and desire of the boyfriend before he realizes what is happening. It happens for a moment, and then it is over. Does the commonly understood legal definition of rape indicate that he was raped? Is he likely to know that? If the opposite had happened, would she have been raped? Is the emotional effect of that incident the same between men and women? Is this difference of law and effect match up? Is that right? Good questions.
But more importantly, while women may be more vulnerable in victimization from sexual crime, men are more vulnerable by the system that is set up to counteract the problem of sexual crime. Things are especially bad in the higher education context, where the Obama Administration put forth guidance that asked schools to investigate allegations of non-consensual sexual encounters. This is difficult because schools are not exactly good at investigating crimes. Due process does not have a good showing, and innocent men have met a great deal of undue shame. Proposed solutions such as “We should believe, as a matter of default, what an accuser says” is basically a reversal of “innocent until proven guilty.” Men are now viewed as “guilty until proven innocent.” Men’s lives can be ruined in this new landscape, too.
It is possible, in a system of freedom, for both sides to be equal in different ways. One side “not being hurt in the same way” is different than that side “not being hurt.” There is a fundamental inequality that all societies must navigate. Making each side equally miserable is not exactly a solution.
We’re in a bad spot.There is a problem, and the problem is not just rape. It is the inherent inequality surrounding sex, which just doesn’t seem to want to go away. We have upended the entire way of relating to one another, and we haven’t replaced it with anything good or fulfilling.
But at least we have our freedom……
The next piece in this series will be on how “freedom” and “liberty” in the legal sexual landscape has not given us any solid ground to stand upon.