(Adult content: philosophy alert)
What business does the law have, interfering in human sexuality?
Let us say, for the sake of argument, that a new law tomorrow makes it a criminal offence for working adults to have sexual relations between the first of April and the thirty-first of June each year.
Juridical luminaries such as the eminent, now retired judge, Dame Elizabeth Butler-Sloss, who, as the daughter herself of a High Court judge, it might not be unfair to suggest has been brought up in a somewhat narrow tradition defining a certain class of British good manners and steely conformity to proper conduct, would be wheeled out on the Today programme to explain the rationale behind this seemingly bizarre law.
She might conceivably argue that, like rabbits, the working class become sexually overactive at this Spring time of the year, adversely affecting the national productivity. Working people rightly ought to keep their mind on the job and not let their behaviour become subject to the whim of their hormones. But if they cannot keep their peckers in their pants, then the law should protect them against themselves.
This seems to be pretty much what she was saying this morning, when arguing that anyone under the age of 16 engaging in a sexual act (however defined) with someone over the age of 16 is, de facto, the victim of a crime, regardless of the circumstances. In a perverse way, she seemed to be arguing that to become a victim in the abstract is to define the crime in principle.
Like a British civil servant withdrawing from Empire by producing arbitrary lines on a map, this so-called Age of Consent, a relatively recent legalistic invention, has created the potential for endless, irresolvable internecine conflict, where a more thoughtful, pragmatic, humanistic approach might have saved countless lives.
In Butler-Sloss’s analysis, poor 15-year-old Juliet is too young to know what love is, or what responsibilities it brings, and must be protected against Romeo, who at 17 is a lusty young lad opportunistically hoping to have his wicked way, a potential criminal prey to his raging adolescent desires. The play is merely a prelude to the commission of a crime, from which Juliet mercifully is spared by drinking poison. By falling on his dagger, the evil Romeo evades justice and a mandatory life sentence on the Sex Offenders’ Register. Yet science and Richard Dawkins define both as victims of their genes: two sexually reproductive organisms with but a single purpose. What choice did they have?
What a stupid, narrow, blinkered thing the law is, when it imagines it must protect us against inconsequential actions! This, it seems to me, is Marian logic predicated on the myth of Man the compulsive penetrator and Woman the virtuous receptacle: “50 Shades of Grey” reduced to a binary equation. For the law takes no account of the actual physical and emotional development of the individuals concerned, their circumstances; nor allows of any variation in their sexual preferences and proclivities.
Yet in much of the rest of the world, they have different attitudes and rules of sexual conduct! So there is nothing universally set in tablets of stone as to what behaviours we can accept and what we must condemn, or must bring the full majesty of the law to crush in people whose intimate relations we disapprove of. Our rules as to what constitutes acceptable and unacceptable sexual behaviour are entirely arbitrary, ahistoric, unique to our island society and largely, it would seem, ignored.
Of course there may be relative disadvantage, of age, mental and social development, physical strength and hierarchical or economic power. There may even be coercion, threat or outright violence, and in those cases, of course, the law must provide a sanction. No-one anywhere is arguing for the sexualisation and rape of prepubescent children, or victims being drugged and forced to participate against their will. That sanction should be based on laws already designed to protect the weak and to limit violent disorder, and not purely on the automatic assumption of relative disadvantage.
Thanks to the internet, we are two clicks of a mouse away from entry to an underworld in which every facet of human carnality is on open display; in which literally hundreds of thousands of men and women are visibly combining, willingly and unwillingly, legally and illegally, drunk and sober, singly or (like Horned Toads) in sometimes astonishing multiples, in anatomically explicit physical conjunctions of every conceivable kind; and not always for economic reasons. We cannot start by defining absolutely every and any instance of controversial or illicit sexual behaviour as ‘abusive’, it is unrealistic: there are far more complex factors at work.
Perhaps it is owing to this rising tsunami of evidence showing what lurks only a little way below the surface of seething humanity, some of it indeed disquieting, that we are in danger of assuming that, like chemistry classes, or bonfire night, all sex is innately dirty, shameful and invariably injurious to mental health, and should be reserved only for those prepared to prove they are responsible enough to handle it, with heavy gauntlets on: ‘grownups’, the higher orders, heterosexual couples with a written permit from the vicar….
This narrow, priggish and likely hypocritical attitude flies in the face of all we know of human sexuality, which is complex and sometimes devious or abusive or even dangerous, as a fairground ride can feel, and may in truth be, dangerous; but it also involves thrills and spills and is ultimately the most profound and intoxicating and inexplicable part of what we are. Though often fateful, sex is seldom fatal, except perhaps where guilt is involved; while it is the law’s intention to find guilt within rigid parameters and punish it severely.
It is surely only commonsense that, in order to do the least possible harm, the law should have as little as possible to do with human relations.