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Author: Dmytro Taranovsky
Date: 2007-2012
Last Modified: July 10, 2012
(Last Small Change: September 17, 2015)

An Essay about Sex

Sex is a fascinating subject because of the strong feelings involved, because of its potential for pleasure, and because of the deeply held cultural beliefs surrounding sex. In this essay, I explain the nature of sexual feelings, discuss morality of sexual behavior, discuss what should and should not be legal, and explain some of the current cultural views on sex. Technical details of sexual interactions are unnecessary for a general discussion of morality and are not discussed here.

List of Sections: The Nature of Sexual Feelings, Sex in an Ideal Society, Sex and the Law, Morality and Sex, Cultural Beliefs about Sex, Sex versus Drugs, Sex and Fundamental Rights

The Nature of Sexual Feelings

Sexual feelings are defined as feelings with a very strong localized physical pleasure component, or feelings that are closely connected/associated with such feelings. Evolutionary, sexual feelings are closely connected with reproduction; however, the connection is not ordinarily a part of the feeling. Sexual feelings are closely connected towards love and attraction, but these are not necessary for feelings to be sexual. As with all feelings, the essence and identity of sexual feelings lies in the understanding and perception of the feelings. As such, sexual pleasure cannot exist without an appropriate mental context. For example, otherwise pleasant feelings may be not truly enjoyable when the sex is coerced, and the victim may be confused over whether he or she enjoyed the encounter. It is also possible for a victim to enjoy the physical feelings, yet suffer much more from the emotional distress.

Sexual conduct refers to conduct with a sufficient nexus to sexual feelings. Throughout this essay, sex will be used to mean touching with intense sexual feelings, especially touching by another person. This differs somewhat from the standard usage. In particular masturbation, especially mutual masturbation, is treated as a type of sex. The term "sexual intercourse" is used in the conventional way.

As the definition suggests, sexual feelings are not special. The primary difference between sexual and non-sexual feelings is cultural, and the primary non-cultural difference is in the magnitude of the feelings. Consequently, the correct morality for sex is similar to morality for ordinary non-sexual massage. Although sexual feelings may be very strong, sexual behavior can quickly become a normal part of life, with the person's personality largely undisturbed.

Sexual feelings are likely to be stronger when equivalent stimulation is done by another person rather than oneself because with stimulation by another person, you lack a mental preimage of the feelings. Feelings are likely to be stronger when having sex first time (assuming that the physical behavior is equivalent to subsequent times) because of lack of mental constructs to deal with the feelings, and similarly for particular sexual behaviors/situations.

Physical feelings from comparable physical contact tend to be stronger in children partly because to some extent the strength of feelings is relative to other feelings experienced, and partly because of a reduced capacity to internalize feelings into routine mental constructs. (However, biological changes such as puberty may make analogous stimulation incomparable.)

The strength of sexual feelings can create a temporary mental state of altered reality. Basic properties of objects such as shape and color will be remain the same, but the perception will be different, the sexual experience will be the dominant feeling, and the physical world may appear less real.

Physical risks of sexual behaviors are not discussed here. The reader is encouraged to learn about the risks elsewhere, especially if the reader is planning on having sex. Here, it suffices to note that strong sexual feelings and interactions are often physically safe.

Most people in most situations sexually prefer a person of opposite sex. (By contrast, on average people tend to socialize with people of the same sex.) However, it is not possible for one to be sexually attracted to just males or to just females. Sexual orientation is a matter of degree, and your primary sexual orientation does not extend to all possible situations.

On an abstract level, homosexuality has the benefits of equality and inclusiveness. Specifically, in homosexual sex, (when desired) one partner can have approximately the same physical experience as the other. Furthermore, mutual attraction is possible even if there are more than two people. However, there are practical advantages to heterosexuality, such as are diversity (having two types of bodies may provide richer experience), certain biological adaptations, commonness of partners, cultural acceptance, and possibility of procreation.

Sexual feelings are on average pleasurable, but even then, they are not just pleasure. Sexual feelings contain other components and may even include significant pain.

Sexual urges are sexual feelings with a significant desire/suffering component: desire for sexual feelings, and suffering from lack of these sexual feelings. Sexual urges can be satisfied by creating these sexual feelings, usually through some type of genital massage (such as masturbation or sexual intercourse). Sexual urges are generally caused by sex-related thoughts and feelings and can be quite strong. For many people, sexual urges occur quite frequently. Although sexual urges involve suffering or something closely related to suffering, they may have pleasurable aspects as well.
Suffering is necessary for pleasure to exist, and sexual pleasure is not an exception. When done in moderation, unfulfilled sexual desire and sexual abstinence can increase sexual pleasure.

Sex in an Ideal Society

Eventually, technological advances may make human biology irrelevant, but until then, sex as we know it will play an important role. Here is my vision of its role. The role represents both freedom and restraint.

On the one hand, sex is practiced openly, publicly, and casually. Sex is guilt-free. Most people are not shy about soliciting strangers for sex. Exchange of sex for money or favors is generally accepted. The right of everyone to have sex is respected both by law and private parties. Among other things, parents do not prevent children from having sex. A spouse does not get mad when the husband or wife has some casual extramarital sex. Sexual images are uncensored.

On the other hand, a majority are in (mostly) monogamous relationships. The family as we know it continues to be important. Sex is practiced in moderation, with people confident in declining it. The right to privacy and individual objections to sex and even (to a reasonable extent) sexual images are respected. Generally, no money is exchanged for sex--sex is generally enjoyable to both/all participants.

While humans will eventually transcend biological bodies, sex-like experiences will likely remain because of their emotional value. Future technology will overcome the limitations of wrong gender and of physical ugliness that currently prevent people from enjoying sex with each other.

Sex and the Law

This section discusses the correct legal system for dealing with sex.

Consent to Sex

Sexual behavior should be legal when it is safe and consensual. For legal consent, it suffices that all of the following are met
  1. The conduct has no unacceptable physical risks (including any physical pain that persists after the activity).
  2. The conduct can be terminated immediately upon request.
  3. The person is either aware of the feelings that the interaction will involve, or the feelings are introduced gradually and the person is not deceived about the feelings involved.
  4. The conduct is not in exchange for money or other consideration, and the person knows that (see the next subsection about sex for money).
  5. The person is not deceived about the benefits of the conduct, or about any suffering that occurs during the conduct.
  6. The person is conscious and is readily capable of making and communicating an objection and knows or expects that an objection will be honored.
  7. The person makes no objection to the conduct or all objections are honored.
  8. The person affirmatively grants consent.
Notes on the Conditions:
  1. Physical risks should be acceptable in sex if they are acceptable in other activities such as sports. Which physical risks are acceptable strongly depends on the presence of informed consent (or partial informed consent) to such risks. Psychological risks are excluded here since psychological harm is caused primarily by thoughts, and the right to have harmful thoughts is protected by the core freedom of thought. In addition, the concept of psychological risk is too amorphous, and psychological risks of safe consensual sex are mostly cultural and unpredictable.
  2. The second requirement refers to the technical ability to stop the conduct, and is usually satisfied for sex. By contrast, most mind altering drug use does not meet this requirement since drug effects ignore the user's request to become sober.
  3. Given the strength of sexual feelings, even with the availability of immediate termination, an additional protection is needed, namely a basic understanding of what feelings to expect. The person has to understand the feelings well enough to decide whether they are enjoyable or otherwise evaluate the feelings. Understanding the expected feelings as if from memory is sufficient. Also, gradual introduction of feelings in a state where the person is ready to object is sufficient, as the person is given ample opportunity to evaluate the feelings. However, a person may not be deceived into painful sex through a misleading promise of pleasure at the end. Real moral or psychological understanding of the feelings is not required; as of 2012, very few people have such understanding.
  4. Money can be a strong coercive force.
  5. It is not acceptable to trick a person into having sex by fabricating various benefits of sex (such as "sex will make you rich", "sex will make your skin beautiful"). 'Benefits' is construed broadly to include moral benefits and benefits to third parties. Moreover, deception can be indirect.
  6. Without an expectation that an objection will be honored and not trigger penalties, a person may be unlikely to object even to unwanted sex. Also, some psychological states make a person unlikely to object; if a person in such a state is unlikely to object to moderate pain, the person may be deemed incapable of objecting to sex. Also, a person may be incapable of objecting if he or she does not connect the sexual act with the other's intent; an example is when the person is deceived into believing that the sexual touching is unintentional.
  7. This is the basic element of consent.
  8. The requirement of affirmative agreement should be waived in the ordinary case where the person is expected to enjoy conduct and there are no special risks.
Other Notes:

Sex for Money

Because sex for money is commercial, and because of the inherent risk of coercion, such sex is not (in my opinion) constitutionally protected. However, a ban on prostitution would be unwise. Instead, laws may require (using more specific phrasing than here) that (1) sex is consensual, (2) sex is physically safe, (3) the payment is fair, and (4) all involved parties receive appropriate information, and know what the compensation is. Part of the fairness involves the right to terminate the sexual conduct at any time without undue penalty. Non-monetary compensation may be used provided that it is not based on special authority of one person. Use of special authority as compensation should ordinarily be prohibited. For example, the government may not shorten someone's jail term in exchange for sex.

A contract to abstain from sex should not ordinarily be enforceable, as such contract is in tension with the fundamental freedom to physical interaction.

When both people and rational and informed, their relationship is (usually) mutually beneficial even if it involves monetary exchange. Informal use of sex in exchange for something is very common, and cannot, consistent with fundamental rights, be entirely prohibited. For example, a person may terminate a friendship (and its benefits) in part because of a lack of sexual satisfaction. Much of pornography production involves paying actors to have sex. Also, many people, including children, rely on money from sex to buy food and other necessities; these people cannot reasonably be expected to stop having sex for money.

Sex Education

Sex education should be accurate and comprehensive. The core sex education should either be mandatory, or the opt-out should require consent of both the student and (if appropriate) a parent or legal guardian. However, public sex education should be non-sexual in nature, with minimization of unwanted sexual arousal. Disagreements about sex should not be suppressed. Controversial moral opinions (such as this essay) should not be presented as fact. The students should not be officially told whether they should have sex.

Public Nudity and Indecent Exposure

In deciding to what extent to prohibit nudity, indecent exposure, and outdoor sex, the enjoyment of the participants should be weighted against the offense to the observers. In evaluating offensiveness, one should consider the offense from ugliness of the appearance, rather than the moral offense from violating cultural norms. Considerations of offensives should be significantly discounted because the viewer can avert his or her eyes, and because there is no right not be offended. Moreover, because the sole reason for prohibition is visual offensives, indecent exposure should be treated as pure speech, thus magnifying the value of the perpetrator's interests.

Nudity should be legal in most outdoor areas, including inside cities. Nudity is a natural state of the human body, and is comfortable for sunbathing and swimming. Nudity can be very beautiful, and is frequently used in art. The right to be without clothing is an important freedom that should be respected. The right to nudity should include the right to have an erection (erections can arise spontaneously and prohibiting them would cause anxiety and limit freedom).

Outdoor sex should be legal when it is done discreetly, "not in your face". While there are substantial offensiveness considerations, they are ordinarily outweighed by the liberty of the participants, as the right to have sex is part of the freedom from physical restraint and sex can be one of the most meaningful activities humans engage in. Current (as of 2012) laws may effectively require postponement of sex for hours (or worse) and otherwise impair sex.

Morality and Sex


In the section "Morality and Sex", I list various recommendations relating to sex. These recommendations are directed to the present society rather than a hypothetical society with correct views about sex. The reader should keep in mind that I am not perfect and can make mistakes.

The essay does not advise you whether to have sex. The decision whether to have sex is a personal manner, and it is ordinarily wrong to pressure people to have sex. Moreover, to the extent that sex is enjoyable and without impediments, people usually end up having sex, so it is unnecessary to advise here for people to have sex.

The main reason to have non-reproductive sex is that sex can be a source of happiness. In addition to directly causing happiness, sex can enrich one's experience and promote human bonds. (This essay does not discuss whether and when to have children.) I subscribe to utilitarian theory of morality. The good is to maximize happiness, with equal consideration of everyone's interests.

However, in receiving pleasure, there is a risk of other activities becoming less enjoyable, which decreases (and can even reverse) the net effect of the pleasure. The key is to have sexual pleasure in a meaningful and enriching way.

Sexual conduct has no moral significance beyond the feelings that it causes. (Here, the feelings include long-term feelings as well, such as suffering from a disease.) Sexual feelings have no moral significance beyond the significance attached to them by the mind. For example, when sexual feelings are perceived as pleasurable and without negative connotations, their presence (all other things being equal) is good.

Different societies have attached various moral and religious significance to sex. Examples include "sex is wife's sacred duty to the husband", "boys should be masculine and girls feminine", and "homosexuality is wrong". These beliefs are wrong, and ultimately, irrational. However, there are sufficient historical reasons for their prevalence.

Morality and Law

In ordinary cases, you should respect the law. In choosing to break the law, you should evaluate its effect on you and (with equal consideration of interests) on other people, and then apply a strong weighting towards compliance with the law. The weighting towards compliance is decreased if the law is routinely ignored and unenforced, or if the law is profoundly unjust or irrational or inconsistent with important freedoms.

However, if a law violates fundamental rights, then feel free to act as if the law does not exist except to the extent that you may be caught. Fundamental rights take precedence over the sovereignty of the people to enact laws, and laws that violate fundamental rights are illegitimate. A risk of being caught should be given a comparable weighting as a corresponding risk of, say, getting a disease. If you choose to violate such laws, learn about the consequences and about avoiding getting punished.

A List of Suggestions

Morality of Adult-Child Sex

There is a general scientific agreement that most children are sexual beings, and the evidence establishes beyond a reasonable doubt that many children can enjoy sexual contact even before puberty. Many adults delight in being sexual with children. In a welcoming society, children are not prohibited from having sexual feelings and satisfaction, and safe consensual adult-child sex is treated with the same full acceptance as sexual self-stimulation by a child or sexual play between children of the same age. Sexual feelings can be just another source of happiness. However, strong societal opposition (explained in a section below) and lack of correct advice in other sources make a more detailed discussion of morality of adult-child sex necessary.
If you plan to initiate sexual conduct with a person of limited knowledge, intelligence, and experience--hereafter referred as the child--special considerations apply. Here is a list of suggestions and considerations if you live in a society where such relationships are not considered acceptable, but choose to have such a relationship anyway. If you are a child about to be involved in sexual interaction with an adult, then

Cultural Beliefs about Sex

This section explains why societies have erroneous beliefs about the morality of sex, specifically the general opposition to sex, and the current opposition to adult-child sex. In part because of the apparently special and highly emotional nature of sex, many people hold with near-certainty beliefs about sex on flimsy grounds, and also suspend rational deliberation about sex. Societal misconceptions about sex are often self-persistent.

The Belief that Sex is Evil

A number of societies, including many in the Western civilization hold that sex--except reproductive sex between married persons--is evil. In such beliefs, individuals tend to follow the society around them, so to explain these beliefs, we have to ask why societies have adopted them.

Opposition to Adult-child Sex

Our present society (especially in the United States) has a strong aversion to adult-child sex. The root cause of this aversion is the belief that sex is evil (or partially evil) and that children need protection from evil.
In some cases, consensual sex is actually harmful to children. The causes of this harm are primarily cultural. In addition to the actual harm, there is a strong public perception of harm from adult-child sex: Besides the argument from harm, opponents claim that children cannot consent to sex, and therefore sex is a violation of their rights, and that children need to be protected from the evil of sex. The inability of children (sometimes of everyone under 18) to consent to sex is an illusion and legal fiction created to reconcile the society's commitment to freedom with opposition to sex with children.
While a child can obviously say 'yes' or 'no' to sex, the argument is that their consent is not genuine because Reality Note: Children have sexual feelings and may enjoy sex even before puberty. Sex is not significantly harmful to children, except for cases with (1) physical risks, (2) lack of consent, or (3) societal opposition to sex with children. Most children are capable of genuine consent to sex.

Sex versus Drugs

Sex and drugs are often grouped together because both of them are considered by many to be immoral, both involve aspects that many find disgusting, both can be very harmful, both can involve strong pleasure, and both can cause an altered state of consciousness where normal concerns are suppressed. Such grouping leads some people to believe that since sex is moral, so are drugs. This belief is wrong.

In my opinion, most recreational use of existing mind altering drugs is immoral since (in most cases) By contrast, as a general matter (but there are important exceptions): The reason for such drastic difference between sex and drugs is that millions of years of evolution has ensured that no undue harm should come from sex, but no such evolution has taken place for human response to drugs.

Sex and Fundamental Rights

This section is not a general essay on fundamental rights. Instead, it is a detailed explanation of fundamental rights related to sex. Fundamental rights are a difficult topic, and parts of this section are more abstract than other sections.

Fundamental rights are the indispensable rights of the people in the civilized society. Fundamental rights exist independently of the government or popular will, and laws that contradict them are illegitimate. Protection of fundamental rights should be written in the Constitution so that the rights can be enforced through judicial review, and whenever possible, existing Constitutions should be construed to protect all fundamental rights. The United States Constitution protects all fundamental rights through the guarantee of due process, "no person shall be ... deprived of life, liberty, or property, without due process of law" (with the exception of proportional representation for the Senate and for the presidential election).

A collection of rights

With respect to sex, the key general fundamental rights are (1) freedom of speech, (2) physical freedom of the body, (3) right to privacy, and (4) freedom from arbitrary punishment. The following laws violate fundamental rights:

The first right is the core of the freedom of speech. Freedom of speech includes the right to communicate arbitrary information to an arbitrary person. (Note: Reasonable penalties for breaking reasonable non-disclosure agreements may often be imposed since the person has agreed to the penalty through signing the agreement, provided that appropriate safeguards are met.) Freedom of speech is a necessary component of any democratic society. Information is equivalent to an integer or a binary sequence that encodes information. Thus, information is logically separate from claims about information. False claims are not (at least not always) constitutionally protected.

The right to receive information includes the right to view the information in visual form. For the blind, an analogue of visual image is high-resolution tactile stimulation. This right is necessary due to the limitation of typical human cognitive skills. It is very difficult to fully appreciate a painting just by reading its verbal description or by viewing a binary sequence that encodes the full picture. Some argue that conceivably, some visual pattern will directly cause fatal brain hemorrhage or some other such severe harm. However, the right to view information in visual form should still be construed categorically since

The third prohibition is invalid since the videotaping does no harm except through recording of information. To protect freedom of speech, the government is prohibited from arbitrarily suppressing information gathering. Thus, videotaping may not be prohibited unless an information source is privileged. However, a person is entitled to ownership of his or her body, and that right includes allowing collection of information about the body. This is particularly true for videotaping since it records only those pieces of information that are available anyway--the benefit of videotaping over remembering and telling is rather the easiness, reliability, and completeness of the recording.

The fourth prohibition is invalid since it serves no legitimate governmental purpose. The fact that the activity takes publicly is irrelevant if there is no overriding danger of unwilling persons being offended in a visceral way. Some amount and risk of visual offensiveness must be tolerated to protect fundamental rights. The government's sole interest is visual expressiveness of the act, and therefore the act receives substantial protection from the freedom of speech.

The fifth prohibition violates the right to privacy. The right to privacy is necessary to protect against discrimination by private people or misguided governmental officials. For example, by keeping sex private, a person may be protected from being fired from his or her job.

The sixth prohibition is invalid since fundamental rights may not be violated by any authority. Parental consent cannot be required for having safe consensual sex.

The right to manufacture, sell, and use condoms (consistent with general laws about business, safety, and manufacturing) is fundamental since a ban on condoms would be arbitrary but for the impermissible governmental interest in suppressing sex. A general ban on sex toys is similarly invalid.

The second prohibition is a particularly difficult one to analyze, and is the subject of the next section.

Freedom from Physical Restraint

The nature and scope of freedom from physical restraint

Although freedom of communication is at the center of liberty, biological humans are more than just communicating entities. They have bodies, which are essential for survival, and thus protected through fundamental rights. Even if the issues of health are set aside, governmental control of human bodies would amount to a power too great and potential for coercion too strong to be acceptable. Thus, freedom to control one's body is (subject to certain restrictions) fundamental. This control implies freedom from arbitrary physical restraint, such as the right (again, with restrictions) not to have one's hands tied behind the back. The core scope of freedom from physical restraint is the right to choose the location and position of the body and its parts, both the location in itself, and the location relative to other people. This right (as explained below) in turn implies a right to engage in private physically safe consensual physical interaction.

However, while fundamental, physical freedom of the body is by itself too broad to be granted as an absolute right. The resolution to this dilemma is to analyze potential government interests and their effect on the liberty to determine the permissible legal grounds for restraint. Then, within the scope of these grounds, but not outside of them, governmental interests are balanced against the liberty of the person. The resolution is discussed below.

One legitimate interest is to prevent harm to other people. The harm need not be physical harm; for example (in some cases) unwanted sensory input can be prohibited. However, the relationship to harm must be sufficiently direct. For example, the government may not restrain person A because B threatens to kill C (or B) if A is not restrained.

The government also has an interest in protecting a person from causing physical harm to himself or herself, and it may (in some cases) restrain the person accordingly. This power is necessary to prevent victims from being coerced or deceived into committing suicide.
However, the restrictions must be narrowly tailored. For example, when an activity is unsafe but for acceptable safety equipment (such as condoms), the government may not overreact and prohibit both the activity (on safety grounds) and the equipment since a more narrowly tailored regulation would be to require the equipment to be used. Moreover, if activity is protected, the government may not indirectly deter it by prohibiting the safety equipment (that would have been clearly legal but for the deterrence interest).
If the danger is from a (human) third party, the government may (sometimes) restrict the person's location with respect to the third party (ex. prevent a meeting if the person is likely to be killed) and require other safety measures, but the government may not prohibit conduct merely because the third party is opposed to it, even in cases of clear and present danger (for example, A may not be prohibited from having sex with B even if C is likely to kill A because of the sex provided that the sex does not make it physically easier for C to kill A).

Especially with regard to children, the government -- in combination with parents/guardians -- has an interest that much (but not all) of the person's time is spent valuably (for example, for education). In pursuit of this interest, a reasonable limitation may sometimes be imposed on the timing and duration of interactions so as not to displace other valuable activities.

A restriction of interactions with other people as a natural consequence of incarceration or analogous punishment may also be imposed. However, the consequence must be a natural one. For example, in the absence of a physical danger, the government may not prohibit back massage as a condition of probation. Restraint to a certain body position (such as having hands tied) may not be used as punishment (as opposed to a reasonable restraint) because of unacceptable danger of cruelty and coercion.

The physical freedom includes a liberty interest in tools that enable the freedom. For example, the government may not prohibit walking canes to discourage the weak from walking, nor may the government prohibit sex toys to discourage sex.

Also, the government interests must be balanced against the significance of the restraint imposed. Safety regulations on sexual activity (ordinarily) must not be arbitrarily severe compared to generally applicable regulations (such as safety regulations in sports).

Human interactions are within the literal scope of freedom from physical restraint. Human interaction that goes beyond communication is central to the lives of biological humans. In consensual interactions, in so far as a certain movement of person B is intended by A, then with respect to harm to A, it is qualitatively similar to that movement being done by A. Thus, the government may not ordinarily prohibit the movement of B on the ground of harm to A beyond the government's capacity to prohibit A's movement on the ground of self-harm. (However, at least with respect to the policy, there are exceptions. For example prohibiting killing on request while permitting suicide is reasonable because it helps to ensure that the intent to kill/die comes from the victim.)

While physical harm provides a legal limitation on the freedom from physical restraint, consensual mental harm does not. The notion of mental harm is too amorphous and its scope too broad for the freedom from physical restraint to receive needed protection if there is a psychological harm exception to the freedom. While physical harm is clear, even profound mental changes can easily be morally unclear. While following certain rules prevents physical harm, the sources of mental harm are endless. Finally, mental harm comes essentially from thoughts, which are protected by the freedom of thought and thus outside of government regulation.

Appraisal of psychological consequences may not be required

Nor may the government require here an appraisal of the psychological consequences. Freedom generally implies freedom to act irrationally. The power to require an appraisal of certain consequences implies a power to suppress based on those consequences. It is one thing to require that certain (easily available) information be provided, but appraisal requires more. The requirement of appraisal implies a possible prohibition on the conduct if (1) the person does not understand the consequences stated, or (2) the person unreasonably disbelieves the stated consequences, or (3) the person is unreasonable in producing a decision based on these consequences.

These requirements are so flexible and open-ended that a hypothetical society of hyperintelligent beings could easily construe them so strictly as to effectively prohibit ordinary humans on Earth from giving informed consent to anything serious. For example, understanding the consequences may require an ability to research foreseeable consequences, as well as sufficient intelligence, linguistic ability, and background knowledge to understand the text. Properly reaching a decision may require integrating the moral value function over the space of possible consequences--something that few ordinary humans actually do.

In addition, the notion of being unreasonable is sufficiently ephemeral so as to permit the judges (even judges in advanced societies) to classify many true beliefs as unreasonable. For example, in a purely atheist society, evangelical Christianity may be misdiagnosed as schizophrenia (in particular, as bizarre delusions that cause significant mental distress).

Moreover, if the government could prohibit an action because of inability to understand the consequences, then presumably the government could prohibit the action when the consequences are unknown since in both cases, the person makes the decision without understanding the likely consequences.

Finally, psychological consequences are exceptionally difficult to predict, understand, and appraise, thus magnifying the danger of requiring informed consent to psychological harm. Informed consent is best described not in binary terms but as a matter of degree. The above is not intended to disparage the ordinary use of informed consent to balance interests, but merely its use as a qualification on a categorical right. The degree to which the consent is informed is important, for example, with regard to elective surgery.

Mental harm and physical harm

Finally, we address attempts to characterize psychological consequences as physical ones, thereby obviating the right to be touched in a psychologically harmful way. It is argued that all mental processes are physical processes in the brain and that therefore all psychological harm is brain damage. However, there is a qualitative difference between affecting brain through a physical injury, and affecting the brain through consensual sensory input. The government has a broad authority to regulate the former, but only a narrow authority to regulate the later. The difference is the mechanism by which the brain is affected. Moreover, while brain trauma can easily be characterized as harmful, the effect of sensory input is much more subtle and whether it is harmful or beneficial is usually a value judgment, not a medical one.

I do not believe that the right to choose sensory input is categorical. For example, the government may prohibit intentional self-inducement of brain seizures through flashing lights. However, such authority must be construed in a very narrow way.
First the harm must be an inherent neurological harm and not a consequence of the person's or society's appraisal of the feelings or behaviors.
Second, the government bears the burden of proving that the harm is inherent neurological harm.
Third, even if the above conditions are met, the governmental action is subject to strict scrutiny review with respect to this harm.
(Note: If technology creates new and qualitatively different types of sensory input, the government may have a broader authority with respect to these new types of input.)
These conditions are necessary to deny governmental authority to prohibit on the basis of psychological harm. The burden of proof requirement is somewhat analogous to the requirement that a person must be proved guilty before being punished for a crime.

I am not aware of any case of consensual touching (with no direct physical harm) with normal persons where these conditions are met. Certainly, daily sexual stimulation to orgasm does not constitute such harm even if the orgasm is unusually powerful and even if the subject is a young child. (A conceivable exception is the presence of certain rare brain conditions; however, having a level of sexual desire comparable to that of a normal adolescent does not constitute such a condition.) Psychologists generally agree that masturbation in children is not inherently harmful to the brain (an exception is psychologists with a religious agenda). Millions of years of evolution have ensured that affectionate touch has a nurturing value, and that masturbation is not harmful.
Moreover, the difference between self-massage of genitals and such massage (including oral stimulation) by an adult is primarily a mental one. (At the least, there is no proof of inherent neurological harm arising from the physical differences in the mechanism of touching.) Thus, guilt, anger, shame, powerlessness, and other such alleged dangers of consensual adult-child sex arise because of thoughts about the feelings rather than through involuntary low-level reactions to the signals emitted by the sensory neurons. Therefore, these consequences do not deprive the act of its constitutional protection.

An example of protected action

To illustrate the extent of the fundamental rights, here is an example of a protected action. A man performs oral sex on an ordinary seven year old boy about once a day. Sometimes, the boy performs oral sex on the man. Sometimes the man massages and penetrates the boy's anus with a lubricated finger. There is no unacceptable physical risk. The boy agrees to the sex because it feels good and recklessly disregards (or just does not understand) the usual warnings about possible psychological harm from adult-child sex. The parents of the boy object to the sex, but the boy chooses to do it anyway.

  1. The example is deliberately sexual and involves a child since the conflict between fundamental rights and current practice is greatest in sexual behavior, particularly with respect to children.
  2. Penetration is included in the right of relative positioning of one body relative to another.
  3. The interaction would be protected even if the adult is the child's parent or caretaker.
  4. The interaction would be protected even if there are additional (consenting) persons involved.
  5. The interaction would be protected even if the boy had orgasms.
  6. Videotaping of the activity would be protected if the boy agrees to it and understands the general nature of videotaping. An ordinary 7 year old is clearly capable of that. Specific understanding of the likely consequences of videotaping cannot be required.
  7. Fundamental rights are (predominantly) rights to make choices. Full exercise of the freedom from arbitrary physical restraint requires a (conscious) choice to act in that way. There is a wide disagreement between people on the point at which the human organism (or its soul) becomes sentient, or starts to make choices, or even about the nature of human choices. I will not address the disagreement here other than to state the following: Most children are fully conscious and are capable of making genuine choices before their seventh birthday. While 7-year old children may understand less than adults, they are not living in a non-sentient or in a dreamlike state. Also, one's consistent inclination to choose in a certain way merely indicates a preference and does not make the choice less genuine. In the example, the choice of the boy to have sex can be inferred from the clear appearance of such choice.

Consent to orgasm

We conclude this essay on a more immediately entertaining topic. So positive is the experience of orgasm, that the issue of consent to orgasm is often overlooked. A ban on orgasm would be silly for practical reasons, but here we are concerned with orgasm as a fundamental right.

Orgasm presents special issues of consent because

However, the presence of a significant consequence does not automatically negate the fundamental right. Instead, a balancing of the interests must be performed. For the combination of the following reasons, an ordinary orgasm (including the first orgasm) is constitutionally protected: