Recreating Victoria

Via Instapundit comes a link to a post on Balkinization that proposes to create “A new crime of “reckless sexual conduct…”.

Basically, the idea is to prevent date rape and STD’s by making it a crime not to use a condom during a one-night stand. There are lot of practical and moral objections to such a law. I don’t think it has the hope of seeing the light of day but it is still a good example of a cultural and legal phenomenon that has been going on since the sexual revolution.

A pattern has emerged in the way we treat the rules for sexual relationships: (1) We start with a traditional culture based rules which may or may not be strongly enforced by formal law. (2) The argument is advanced that the traditional rules are irrational, oppressive, no longer needed etc (3) Both culture and law are changed to destroy the culture based rules. (4) To the surprise of everyone except elderly grandmothers, the new rules have unanticipated negative consequences. (5) To address these consequences, new formal laws are created that bring us back to a state very much as in (1).

In short, after destroying Victorianism culturally we recreate it in formal law. What was once enforced by the soft power of culture becomes enforced by the hard power of the state.

(Sweeping Generalization Warning: This is a huge subject and I’m covering a lot of conceptual ground in a short space so don’t expect details.)

Date-rape is a good example of this process.

Traditional culture dealt with the problem of date-rape by trying to prevent situations were it might occur. Men and women were not allowed privacy together unless they were married. The enforcement of this rule was draconian. Women who voluntarily placed themselves alone with a man were simply not protected. The culture basically strung up warning tape across that path saying, “proceed at your own risk.”

Traditionally, people had no choice but to adopt such a strategy. In the era before modern forensics proving rape in all but the most unambiguous circumstances was very difficult. This difficulty also explains the requirement in many cultures that for a woman to claim rape she must have struggled so violently that her attacker had to physically injure her in order to control her. Authorities and the community had no other means of proving a non-consensual act occurred.

The 1960’s saw the rapid acceleration of a trend that began in the 1920’s. The cultural and legal prohibitions against sexual privacy for the unmarried were destroyed. By the mid-80’s, many begin to recognize date-rape as a phenomenon. A person, usually female, voluntarily enters a private space with another person, usually male, and gets raped. Even with modern forensics, it is often impossible to tell if a non-consensual act occurred. Worse, some rapes could well be accidental (for want of better word). The rapist might honestly not understand that the victim did not want sex or, one or both of the parties might be so intoxicated that they could not give or understand consent.

Nobody wanted to return to days of no sexual privacy for the unmarried so to address the problem, several different solutions, all based in formal law were proposed: (1) The female was always right. If she said she was raped at any arbitrary point after the act, she was. (2) The “mother may I” strategy. Some colleges tried this idea of requiring explicit verbal consent before advancing to the next “base.” (3) Video recording all sexual encounters. (4) Now we have “if you don’t use a condom it is rape.”

All these solutions seek to inject the power of the State into the most intimate of personal relationships. We are constructing an elaborate set of rules around momentary sexual encounters and then seeking to enforce those rules with the power of the State. It is robotic Victorianism, a Victorianism shorn of its human dimension.

In the end, we end up where we began, trapped in an iron matrix of rules. Only this time, it is not social disapproval we face, but the violent power of the State.

(cross posted at Chicago Boyz)