Sex and the Law, some ideas for debate.


November 11th, 2013



sade

TWO FOLLOW-UP POSTS TO THIS:

Follow-up
Why I’m a Libertarian
Age of consent is lower than 16 in all of these European nations.

This is my first in the L3 series – Liberal, Libertarian, Libertine – which is designed to both highlight how present-day British legislation – based in some sense of social ‘morality’ – unnecessary restricts those in this country from living full, free lives, and also to present an alternative vision – real suggestions – for how the law can be improved in the name of freedom. This first post is about the aspects of the law that restrict our sexuality, that very core part of human nature. Future posts will look at the law around drugs & alcohol, assisted suicide, censorship, the criminal justice system and others.

I chose sex as my first topic not just because it’s a subject that I take great interest in, but because I have been invited to a debate on the regulation of sex on November 19 at Brunel University.

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People living in the UK today are subject to unnecessarily strict regulation of sex and sexuality. Having had my own close shave with the UK sex laws (I wrote a book about it), I’ve become fully versed with sex regulation. Several Acts of Parliament are currently used to control what sort of sex we can have, and with whom, including (but not limited to):

Sexual Offences Act 2003
Coroners and Justice Act 2009
Criminal Justice Act 1988
Protection of Children Act 1978
Criminal Justice and Immigration Act 2008.

The regulation of sex is something that has gone on for centuries in this country, and usually is an attempt by the political establishment to either respond to changing social norms, or to prevent society from being ‘corrupted’ through sex. I feel, strongly, that legislation should never be based in morality, but should be used to prevent harm and/or to provide a level playing field for all to live on. The British are particularly prudish about sex, even in modern times. You just have to flick through a copy of the Daily Mail to get a feel for how, as a nation, we see sex as something to be afraid of. It’s no surprise that we have such extensive legislation to control the sex lives of our country.

Sex laws have come and gone over time. Where it was once illegal to have anal sex with your girlfriend, it’s now totally acceptable. Where it was once illegal for a man to have sex with a man, it is now legal; indeed two men can today get married in Britain. This shows that over time, things can and do change in the law. It just shows that even if today we might gasp at certain sexual preferences or behaviours, tomorrow we may not. This for me is all the proof I need to be convinced that the regulation of sex is something that states (and the UK in particular) should do with a very, very light touch. Any laws should be designed to prevent direct, physical harm, and should never be designed to prevent ‘corruption’ (a highly subjective term) to ‘morals’ (morals only really exist on a person-by-person basis).

In the last few years in particular the Internet and changes to the way people communicate has led some in the British political establishment to call for yet more sex regulation. Prime Minister Cameron wants to ban all under-18s from accessing pornography, for example. So too has the great British pedo-scare led to clamours for more legislation! It’s convenient for some who simply desire a state-led nation to create monsters around every corner, just waiting to get their grubby hands on our children. There seems to be a never-ending trend of ever-expanding childhood in this country: surely if the Conservatives (and the small-c conservative elements of the British media and political class) had their way, the Age of Consent itself would be raised, and anybody who has sexual thoughts about somebody under-25 would be labelled a paedophile.

Legislating for morals pits the state against the individual, and sex is all about the individual. Everybody is different, and everybody has their own sense of what is moral and immoral. Individuals should largely be left to their own devices when it comes to their sex, sexuality and sexual preferences. ‘Crimes’ committed out of an otherwise harmless sexual desire only make us less able to properly process what it means to be a sexual animal; to punish somebody for his or her most natural instinct is sowing the seeds of a sexually deficient society.

The law must be amended to reflect our desire to be free. The restrictions placed on prostitution unfairly make a profession illegal, when sexual services are no more immoral than any other trade involving the body or the brain. The pedo-scare we are currently going through confuses adolescents and wrongly labels innocent men (sometimes women, but mostly men) as monsters when they don’t in fact have sexual motives toward children at all. The law prohibits sexual relations with some distant family members or step-family members, which achieves no great social end but only serves to please more conservative elements of society. Our current age of sexual consent was designed a hundred years ago, when people reached puberty on average at 16, though today that average is five years younger.

The state, the political & media establishment have created a set of sex regulations to suit a warped view of morality, and in the process are trampling all over our natural desires and free will. This must stop.

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The spirit of a reformed sex regulation regime would be: respecting freedom of sexual will, protecting against sexual acts committed against one’s will.

Having looked at the various Acts of Parliament concerning sex, I have considered what might be realistic restrictions of sexuality (i.e. around real children, around rape etc.), and considered what might be based on social morality. To this end, I would like to see a range of changes to legislation, which would result in a regulation of sex along the following lines instead of the following regime:

• Make brothels legal, and apply regulation to them to ensure standards. A brothel can provide security and safety for its members and customers, if regulations are in place to ensure they are run for the benefit of those parties and not just for profit. Surely this is a desirable outcome.

• Re-word all criminal acts relating to ‘sexual activity with children’ to ‘sexual activity with a person under the Age of Consent’, and include a ‘reasonable belief’ test.

• Restrict the legal definition of child pornography to actual photos or videos. ‘Pseudo-images’, drawings, or textual stories involving sex with children are artistic expressions and shouldn’t be justiciable.

• Lower the Age of Consent to 13, which is the current average age of puberty onset + 2 years. This standard should be tested every ten years, with the Department of Health being required to produce a standard definition of the average age of puberty each decade.

• Make child pornography laws about actual children, not those at or over the Age of Consent. For too long now, legislation has been used to create a pedo-scare where men and women older than 20 are turned into monsters for sexual attraction to teenagers. Teenagers are not children, they are on the most part physically identical to people in their 20s.

• Anyone at or over the Age of Consent should be able to become a prostitute. A teenager is no more susceptible to the economic incentives around prostitution than somebody in their 20s or 30s, in fact they could be less susceptible because they don’t have financial responsibilities. The key point is that if somebody feels ready to take that decision, and they are biologically old enough for sex, the law doesn’t have a right to stop them (or at least shouldn’t have the right).

• Continue to prosecute for voyeurism or aggravated exposure. Spying on someone’s private sex acts is wrong, and so is exposing one’s genitals if one’s intention is to shock or upset others.

• Only prosecute against sex in a public bathroom where there are aggravating factors. Currently, committing a sex act in a public bathroom is illegal. Actually it should only be illegal if there are aggravating factors, for example if it’s in the presence of a child, if the act is carried out in plain sight etc.

• Harshly prosecute those who traffic children for the purposes of prostitution or abuse, those who force people into prostitution and keep them captive. These are heinous acts against the free will of others, and must be harshly punished. However, customers of captive prostitutes should only be prosecuted where those customers are reasonably expected to be aware the prostitute is held against his/her will, unlike the current blanket regime which prosecutes customers whether they’re aware or not.

• Those who use drugs or other substances to enable them to have sex or sexual activity with somebody against their consent should be heavily punished. This is a crime against body and will, not morality.

• Redefine rape and bestiality to be gender-balanced. Currently rape and sex with an animal can only be committed by men. This is a gross violation of the spirit of our legal system, and also ineffective. Men can be forced to have penetrative sex with a woman – this is rape. Women have sex with animals – this is bestiality. Harriet Harman’s Sexual Offences Act 2003 is to blame for a lot of this biased legislation.

• A person (A) should be able to give consent (and therefore immunity form prosecution) to specific persons (B) to have sex with person A’s body after person A dies. Of course, sex with a dead person is a strange thing to do, or want to do, but if people consent to it, the law shouldn’t stand in their way.

• Sex with a step-parent, step-child or cousin should be permissible where both participants are at or above the AoC, regardless of whether or not they live in the same household or have (or have had) a care of duty.

• The Sex Offenders Register should only be used for those convicted of:
- Creating or distributing child pornography (new definition);
- Rape;
- Sexual assault against a child;
- Use of a substance to enable non-consensual sex acts;
- Trafficking children for sex;
- Entrapment of a person for purposes of prostituting that person.

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These are my suggestions for now. It’s a shopping list really, and I doubt much of it will be implemented in the near future in the current climate. However, it’s important to have the debate. Few voices are audible above the din led by the Daily Mail and its cohort. I believe in personal freedom, I also believe in protecting people against those who would restrict my personal freedom. That might include sexual predators and rapists, but it includes the state.

Thanks for reading.

If you would like to read something else by me, please have a look at my full list of posts.