Sodomy laws, legal paternalism, legal moralism, and stuff like that

I have recently had to think and read a bit about sodomy laws. I haven't discovered much that I had not thought of before, but just by giving it some sustained attention, and reading what others have written about it, the issues have been brought into sharper relief in my mind.

So I thought I'd share these ideas here -- they are not my original ideas, but a compilation of what I have read -- in a simplified, "digested" way.

First of all, what are sodomy laws? These are laws which make it a criminal offence to engage in certain kinds of sexual activity, commonly called sodomy. The laws themselves may not use the word. Singapore's Penal Code, for example, refers merely to acts "against the order of nature", though through usage, the "acts" involved are not different from what other jurisdictions call "sodomy".

"Sodomy" itself has varying definitions. Inserting the penis into the anus is one act that is undisputedly within the meaning of the term. In some countries or states, inserting the penis into the mouth -- the specific term here is "fellatio" -- also constitutes sodomy. Obviously, sodomy can occur between a mixed-sex couple, or a male-male couple since there is at least one penis in their possession. But I can also imagine that if two women were to use a dildo between them, and stick it into some place other than the vagina, some wild ones might call that sodomy too.

The law is typically used in situations where consent is not in dispute, and where the persons charged are adults. In most jurisdictions that I have read about, this law can be used against people having sex even in the privacy of their own bedroom. So none of these three: mutual consent, legal age and private location, can be used in defence. Hence sodomy laws are very intrusive laws, regulating what consenting adults may or may not do in private. And this is despite the fact that most reasonable people would accept that no third party is injured by the event.

The intrusiveness of sodomy laws make them very suspect in an age when people want greater autonomy for their own lives. It is a blatant restriction of free, harmless and private choice in an area as intimate as sex.

So how are sodomy laws justified? The arguments fall roughly into two broad groups for which I will use rather technical terms. The first group would be arguments of Legal Paternalism, and the second group would be those of Legal Moralism.
 

Legal Paternalism

Legal Paternalists believe that it is right and proper for a State to use its laws to get people to do things for their own good, or to desist from doing things that might harm them. For example, it could make it compulsory for women to get a breast cancer check annually, or it could make attempted suicide a crime. The 'good' or the 'harm' that Legal Paternalism looks out for tends to be the practical variety, rather than more controversial things like spiritual or moral good.

As a principle, Legal Paternalism is not always controversial. Laws against jaywalking, controls against gambling, for example, are not matters of hot dispute. Largely it is because the good to be obtained or the harm to be avoided is demonstrable, and in many cases, the proscribed act is also injurious to others. So people accept these restrictions as a necessary price for living in an orderly society.

The problem with sodomy laws is that the harm is not demonstrable, and unless you really stretch your imagination, neither is injury to others demonstrable. If it's done in private, no one is inconvenienced by it, and in any case, if it is done in public, there are other laws to deal with it.

A common harm that is cited is that it spreads disease, such as HIV. This claim tends to be mired in prejudices against casual sex and homosexuality, such that this epidemiological argument is more an excuse for defending the law than the real reason. Very often, when challenged to substantiate the claim that sodomy spreads disease, little is offered in terms of empirical data specific to sodomy, and much by way of sweeping assumptions or broad data about the effects and undesirability of casual sex and homosexuality.

The HIV twist to the argument is a novel one. Novel, in the sense that it is new. HIV did not enter human consciousness until 15 years ago, while sodomy laws had their heyday about 50 to 100 years ago. Straight away, you suspect something fishy about such a justification. But leave that aside and deal with the facts. It is well known that unprotected anal sex carries a high risk of HIV transmission, and so from the looks of it, it is a reasonable justification for sodomy laws. But then unprotected vaginal sex also carries a significant risk of HIV transmission. Why the difference in treatment?

Another 'harm' that is frequently cited is the threat to the family. Exactly how sodomy is a threat to the family is seldom detailed. Almost always, any attempt to make this linkage reveals deep-rooted anti-gay bias. Their real position is that homosexuality is a threat to the family, and banning sodomy is a way of containing homosexuality. I won't discuss homosexuality and the threat to the family here; it is outside the scope of this article. All we need to remember is that sodomy laws usually encompass heterosexual sodomy too and they can equally apply to sex between husband and wife. So to base the justification within the context of homosexuality is plain rubbish.

In any case, this 'threat to the family' argument is really a moral argument, and we should move on to the other heading, Legal Moralism.
 

Legal Moralism

A Legal Moralist believes that a State should use its laws to preserve its society's moral qualities, and that this goal justifies restrictions on liberties of its citizens. A simplistic reading here is that so long as a great majority of its population take a view that something is immoral, the State can justifiably enact a law in order to penalise it. It does not matter whether this concept of morality held by its citizens is well founded or not.

Most people would be very wary of using such a simplistic reading and would want the moral prescription in question to have a more solid basis than mere popularity. After all, there are lots of things which are very popular, yet which States would be loathe to enshrine into law. For example, the practice of paying a bride-price or dowry in certain cultures, or the traditional view that women should be held to a higher standard of chastity than men, or the pervasiveness of racial stereotypes and segregation. The usual distinction drawn is that these examples are not fundamental moral questions, thus less deserving of the full protection of the law, whereas sodomy is so obviously immoral that society will surely degenerate if it is allowed.

I think most readers will wonder if that's too slick an argument. And it is. It's all a function of time. The practice of dowry-giving was once universal in some societies. As were prejudices against tainted women or even the belief that the moral woman should be faithfully subordinate to her husband to the extent that obeisance was part of the marriage vow. Racial stereotypes and segregation were for centuries so deeply ingrained, people linked moral depravity or moral wisdom to skin-color. The only reason such attitudes are today dismissed as 'not fundamental moral questions' is that they have been analysed and questioned for long enough to be exposed.

The issue of sodomy has not been aired much, and therefore the belief that it is morally abhorrent persists. But ask people to justify why it is morally wrong, and you get reasons which are almost amusing for their weakness.
 

The reasons given for why sodomy is morally wrong

Generally, three reasons are given. They are appeals to history, appeals to religious teaching and the 'unnatural' argument.

The historical record is sketchy and uneven at best. Sodomy has always been taking place. Attitudes have varied over time and place. The average joe or jane has nowhere near the grasp of history to see the full picture, so what results from all that is selective quoting from pseudohistory. Things reach absurdity when Chinese start to believe -- and someone actually said this to me -- that sodomy was unknown in China until imported from the decadent West in the 19th Century, and that is why it is not part of the traditional Chinese moral code! See what I mean by pseudohistory?

Occasionally, you may find others who are better informed, and they can show that proscriptions against sodomy have been around, maybe off and on, for well over two thousand years. But then slavery had been around for well over two thousand years before it was abolished. The subordinate position of women remained unquestioned for the same period, and were fundamental to the nature of societies, both Eastern and Western, until recently. So how does longevity prove morality?

Quoting from religious teachings is also selective. Most religions come with such a long history that they have acquired all sorts of cultural baggage along the way. The do's and don'ts are so numerous, and sometimes contradictory, that no one can live in the modern technological world and follow all the rules without exception. So some rules are happily ignored while others are sternly preached. This arbitrariness undermines any claim to moral certitude.

Thirdly, we have the 'unnatural' argument. It is usually formulated thus: the penis is meant to be inserted in the vagina. The anus is not intended by nature to receive it. Nor is the mouth. The problem lies in the phrases, "not meant to be", and "not intended by nature". How does anyone know? What exactly does that mean anyway?

This line of argument presupposes that each part of our anatomy has a proper function, and that abuse of this proper function constitutes immorality. OK then, think about these: (1) hands and fingers are meant for grasping, is playing the piano immoral? (2) the external ear is meant to capture sound better, is wearing earrings immoral? (3) the tongue and lips are meant for eating and chewing, is kissing immoral?

The last one gives the game away. A very possible off-the-cuff response is, "kissing is not immoral in itself, it's whom you kiss that determines it".

It gives the game away because it reveals a clue to the underlying reason behind all three rationalisations for sodomy as immorality. That reason is the cultural bias that has persisted through millennia, and due to the increasing cultural integration of this century, has seeped into cultures that might not previously have had this bias, so that now it looks like it is so universal, and of such long standing, that it MUST be an absolute truth. This cultural bias is about the whole question of sex. It sees sex as somehow an evil sin, except for one redeeming feature: it is necessary for procreation. So the various kinds of sexual activity are laid out on a scale. At one end, which is the ideal, is sex performed selflessly for reproduction. Not so bad is sex between a heterosexual married couple, since it leads to bonding between them. Casual sex, motivated as it is by pleasure (self-indulgence!) is at the low end of the scale, deserving general disapproval, while sodomy (wasting sperm!) which cannot lead to insemination, is at the unspeakable extreme, deserving the full force of the law.

But supposing you started to ask, "But why should sex be viewed as evil? What is so wrong with sex for pleasure?" or "Isn't it perfectly natural for humans to seek sex for pleasure since our brains and other senses are designed and attuned for it?", then you go down a slippery slope.

Some call it the slippery slope to damnation. If that's the name of the place where you end up for thinking lucidly enough to question a lot of the phobias we take for granted and finally to slaughter a few sacred cows, then damnation it is.

© Yawning Bread 

Footnotes

1. See also the articles You can't do that! and The map's tale

Addenda

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