Baker - The "Good" in Sex
This is the third post (see part 1 here and part 2 here) highlighting Professor Katharine Baker's participation in a recent online symposium that discussed Georgetown scholar Robin West’s book Normative Jurisprudence: An Introduction. In the book, West argues that current “normative legal scholarship - scholarship that is aimed at criticism and reform - is now lacking a foundation in jurisprudential thought,” and she suggests a return to “the traditional understanding of the purpose of legal scholarship.”
Below are some of Professor Baker's thoughts (not included in the symposium) on Professor West's explications and comparisons of John Finnis and Janet Halley's analysis of the "good" in sex. Click here to access the full archive for the symposium at Concurring Opinions.
By Professor Katharine Baker
Several months ago in The New Yorker, Jerome Groopman wrote a fascinating and disturbing article on the prevalence of a new antibiotic-resistant form of gonorrhea, known as the Kyoto strain. Part of what allows the Kyoto strain to grow resistant is its presence in the human pharynx (the back of the throat). Because, in the pharynx, the bacteria gets exposed to many other infectious microbes, including those that have developed resistance, the pharynx is an ideal ground for spawning antibacterial resistance. And, because when gonorrhea lives in the throat it rarely produces symptoms, it can go untreated for a long time. That means it is often spread unknowingly.
Left untreated—or untreatable—gonorrhea can cause, in men, painful swelling and scarring to the testicles and urethra, occasionally leading to sterility. In women, it can cause pelvic inflammatory disease and infertility. Babies born to carrier mothers can be infected through the eyes and go blind. If the gonorrhea just stayed in the throat, none of these nasty things would happen. But it doesn’t; it spreads through fellatio. And it is spreading rapidly. Dr. Groopman concludes: “A driving factor behind the rise in gonorrhea infections, as well as the trend toward total antibiotic resistance, is our complacent attitude toward oral sex.”
To Finnis, response to this problem could not be easier. Criminalize oral sex; there’s no value in it anyway. Throw both infector and infectee in jail; they both engaged in instrumental, pleasure seeking, non-procreative behavior of little to no value. To Halley and the queer theorists (and I am—unfairly to both—using Halley as the complete representation of all queer theory), innocent but disease-spreading sexual behavior would probably have to be seen as prima facie valid. Sex is such a powerful and transformative experience that the government must stay out. Only in extreme cases should we let the government restrain or regulate people’s decisions with regard to sex.
For the great mass of us in between, I suspect, this is a hard issue. Unprotected oral sex is incredibly popular among young adults today. It is seen as so much safer than intercourse that many young adults do not even call oral sex “sex.” Without a concentrated effort to change norms regarding oral sex, it is going to be extremely difficult to stop the spread of this bacterial-resistant virus.
Several years ago, Ian Ayres and I wrote an article (A Separate Crime of Reckless Sex, 72 University of Chicago Law Review 599 (2005)) in which we argued in favor of a law requiring condom use in all first time sexual encounters unless the unprotected nature of the sex was consensual. This was, we repeatedly emphasized, a very modest proposal. It regulated only first time sexual encounters (by the second go of the evening, people were left unregulated) and it allowed a defense of consent. Even so, many people found it outrageous. How could we endorse this kind of governmental interference with heterosexual sex?
To stop the spread of this new form of gonorrhea, we might need governmental measures that are even more extreme. At an absolute minimum, a campaign to stop the spread of this disease will require a governmental effort to channel people into only certain kinds of sexual behavior. If science does not come to our rescue in the never ending war of drugs vs. infection, we could lose many, many battles with gonorrhea. Lots of people, especially young people could be badly hurt. The harms suffered will not just be those “soft” “feminist” harms of invasion and loss of control, they will be real, corporeal, painful, permanent hurts. And they would not be suffered just by sexual or racial minorities, but by mainstream youth. Is sexual freedom worth it? To answer that question, we really do need to have some consensus on the "good" in sex.