Text Created 23 Mar 2006
Should fucking in public be legalised? Yes.
Note, I'm not talking about fucking on a remote beach in the dead of night. But somewhere like Hyde Park (central Sydney/London) or Bondi Beach at noon. So the thesis is: Fucking in public should be legalised.
Community standards retort
Immediately we ought dismiss the retort from community standards. That is, fucking in public should not be legalized because that would contradict the community standard. When it comes to evaluating whether a particular community standard is right or wrong, good or bad, it is no good appealing to the community standard itself. That would be question begging.
This manoeuvre exists due to the infestation of ethical relativism. This is, the view that what it is right to do for a group just depends on whatever that group believes it is right to do. This makes any argument for social change unreasonable.
By ethical relativism, if the group believes that women shouldn't vote then it IS right, for that group, that woman shouldn't vote. Anyone who lived at a time when the dominant view was that woman shouldn't vote would have no basis to argue that women should have the right to vote, if ethical relativism where true.
So when we ask, "should it be legal for women to vote?" if we hear a retort "No it shouldn't because the community standard is for woman not to vote." then that can be dismissed as question begging. So too when we ask, "Should fucking in public be legalized?" the argument "no it shouldn't because it's not the community standard." is question begging. The question is: ought the community standard be as it is?
History of the visibility of skin
Consider the history of community standards about the visibility of skin in public. Once upon a time on Bondi beach a man or woman could go nude without any fuss.
In 1833, to preserve decency in this newly found colony, the Governor of the day banned sea bathing completely during daylight hours. It was not until 1902, after a lot of civil disobedience and many arrests, that this law was finally revoked.Free beaches australia inc., 'Neck-to-Knee' to Nude Bathing http://www.freebeach.com.au/Neck-Knee-Nude.htm Accessed 26 Feb 2006.
The parks adjoining the bathing ground, especially at Bondi are intended for the use of women and children. We cannot have the surf bathers infringing upon their rights. People who patronise them [the parks] should not be compelled to overlook bathers whom they do not agree with.Cameron White, Quoting the Evening News, 12 October 1907., in
Picnicking, Surf-Bathing and Middle-Class Morality on the Beach in the Eastern Suburbs of Sydney, 1811 - 1912
Australian Public Intellectuals web site.
http://www.api-network.com/articles/index.php?jas80_white#29 Accessed 26 Feb 2006.
Accessed 14 Mar 2006.
Accessed 14 Mar 2006.
In essence, over time the amount of skin that could be shown has increased. It became fine, by the community standard, to show ankle, knee, thigh, then a two piece costume rather than a one piece, until we have the situation today. On Bondi beach it's quite common and causes no fuss at all for a woman to be wearing nothing but a G string. Men too will expose their arse cheeks without causing any fuss as they dismount a surf boat.
Change over time
Again just because the community standard on the visibility of skin in public has changed over time does not, in and of itself, mean that this change is right.
Without considering any other factor it might be change for the worse. Perhaps, the Victorian Era had it right: When we enter the surf we should be surrounded by a swimming machine.
Thinking it bad makes it bad.
But the change has occurred in virtue of good reason. When we look back we find those prior standards to be arbitrary and not based on any legitimate concern.
For example we look back to when an exposure of knee was prohibited, and say there is nothing necessary about a visible knee causing physical or psychological harm.
The source of distress that a visible knee caused was entirely due to the belief that a visible knee should excite distress, not the knee itself. A case of the thing not being bad, but the thinking of it, as bad, making it so.
No Public Knee, Compulsory Burqa, No Public Fucking
But we look back on the Victorian era requirement to cover a knee not just as a quaint bygone standard but as an immorality. We say, rightly, that this was an example of sexual oppression. A denial of sexual freedom.
This was regarded by many, and rightly, as an example of sexual oppression. A violation of a right.
Pointing at the requirement to cover, whether in Taliban Afghanistan or Victorian Era Australia, is to point to examples of community standards which where sexually oppressive. An oppression of pleasure and oppression of an important aspect of ourselves, our sexuality.
As much as the prohibition of a knee in public is an unjust sexual oppression, as much as a compulsory Burqa is an unjust sexual oppression, so too is the prohibition against fucking in public.
The End of the Progression ...
If we believe that the recent history of the visibility of skin on Bondi beach - being permitted at first to expose an ankle, then knee, thigh, and today breasts and arse cheeks - is a progression, where should that end?
You might agree that in the same way that there is nothing inherently harmful about a visible knee, there is nothing inherently harmful about a visible genital. You might say, then, that the end point of the progression ought be when Bondi beach returns to its former status as clothing optional.
But just as there is nothing inherently harmful about a visible knee, nor a visible genital, there is nothing inherently harmful in the visibility of other people using these exposed body parts to give each other pleasure.
There exists no reason to suppose that public displays of sexual pleasure might, in and of themselves, cause or constitute harm.
There are more arguments to consider. For example there are the retorts. "It will devalue sex."; and "What about ugly people?" I'll leave those for now.
Should fucking in public be legalized? Yes.
To say that it shouldn't because it violates a community standard is question begging. We are evaluating whether the community standard is right.
The history of the visibility of skin demonstrates a series of arbitrary prohibitions. There is nothing inherently bad about a visible knee, it was the mere thinking of it as bad that made it so.
We judge the Taliban Afghanistan or the Victorian Era requirement to cover bodies as an unjust sexual oppression. It follows that we must judge the requirement, in our own time and place, to cover our bodies, even if it's a smaller part of it, as an unjust sexual repression. We ought be free to go nude in public.
Furthermore, Just as there is nothing inherently harmful about a visible knee nor visible genital there is no reason to suppose that the visibility of other people using these body parts to pleasure themselves is inherently harmful.
While there are more pressing injustices, the illegality of fucking in public counts as a grotesque injustice. The illegality is based on a long and continuing belief that, ultimately, there is something disgusting about sex. The only thing harmful about fucking in public is the belief that it is so.
Retorts, Points and Questions
Any blockquote bellow will represent a paraphrase of a retort, point or question made on the night or during personal conversation.
Link between the history of nudity and public fucking unclear.
The link is: the same kind of considerations that lead to a prohibition against bathing in the daylight hours or the prohibition against a woman exposing her face is the same kind of consideration behind the prohibition against public fucking.
There are some moral differences. For example, the prohibition against public fucking isn't sexist. The compulsory burqa was a sexist requirement. Men didn't have to wear one. The prohibition against public bathing while being applied equally to men and women was argued for in part on sexist grounds. Men could handle the sight of bathers but women couldn't. These moral differences don't prevent the common consideration from being identified.
The common consideration underlying the prohibitions is a fear that the witnessing of other people might cause the witness to have sexual thoughts. If that fear was unwarranted in the case of public bathing why should it be warranted when it comes to public fucking? ...
The question should be evaluated on its merits, independent of the past.
The concern to prohibit public fucking might be warranted because public fucking is different from public nudity. They are separate cases that might have different consequences.
There are differences between these cases and there could be different outcomes. But there is no reason, at the moment, to suppose there are significant moral differences.
You can consider public fucking in isolation. But you lose the value of the relevantly similar cases.
Using relevantly similar cases is how we move in the world at all. To take an extreme example. When we turn the car's wheel to the left we can't be absolutely certain that the car will not move to the right. Each time we want to turn the car to the left we don't weigh up the likelihood of the consequences in virtue of this being a new case. Instead we rely on the previous cases, those times we have turned the wheel to the left which resulted in the car moving to the left.
If there is a suspected significant moral difference or different consequence between the prohibition against bathing, against nudity, against the exposure of a woman's face, and public fucking then by all means put that on the table.
Isn't answering the question ultimately empirical?
I'm suspicious that it is.
The suspicion does NOT arise from the Hume's is-ought distinction. The Wikipedia entry has a useful encapsulation:
the is-ought problem has been misunderstood as related to a less deep, but more common, issue. Namely, many people think the is-ought problem is related to the arguably true claim that, just because something is the case, that doesn't mean that it ought to be the case. On this misunderstanding, Hume was arguing against those complacent moralists who hold that the world is just fine as it stands, and needs no improvement. This is, of course, not Hume's point he meant to challenge the transition from any set of descriptive claims ['is'] to any prescriptive claim ['ought']."http://en.wikipedia.org/wiki/Is-Ought_Problem" Accessed 16 Mar 2006.
So I take Hume NOT to be arguing against facts being important in applying particular moral concepts. For example, take a moral principle like "You shouldn't cause pain or loss of function to another (without any competing moral consideration)". Hume would allow that to determine whether the case "someone is knifed in the guts on whim" violates the moral principle is an empirical matter. The fact that knifing someone in the guts causes pain and/or loss of function makes the case a violation of the moral principle.
Instead, Hume is arguing against coming up with the moral principle in the first place by discovering fact, by an empirical investigation. For example, why is pain or loss of function pertinent to morality? That can't be answered by an appeal to descriptions of the world.
Here, we have a GIVEN moral principle, something like: "Acts that cause harm to others ought be subject to prohibition (weighed against other moral considerations)" It seems, then, our task is just to establish whether public fucking causes harm. If it does then it seems straightforwardly subject to the given moral principle. As we assume the moral principle, not trying to establish it, Hume would have no problem with this manoeuvre. So my suspicion is not based on Hume's is-ought distinction.
Patricia Peterson, in "Morality, Sexual Facts & Fantasies", has some reflections about the possible relationship between fantasy and harm that gives pause to the idea that "Should fucking in public be legalised?" is merely an empirical question. Her opening claim:
I don't think that in itself it is immoral to fantasize about anything. This includes fantasizing about raping children and beating up spouses.Patricia Peterson 1999, "Morality, Sexual Facts & Fantasies", P 40.
She holds to this even when assuming a correlation between fantasizing and doing harmful acts that is so strong we can identify it as a causal relationship:
... suppose that it turns out that there is a strong correlation between people engaging in fantasies the content of which are harmful and engaging in harmful acts in real life. What should we say about "harmful" fantasies then? ... Let's assume that certain types of fantasies can cause us to behave in immoral ways and let's then look at whether these fantasies in themselves are bad.Patricia Peterson 1999, "Morality, Sexual Facts & Fantasies", P 47.
Her answer to her question, what would we say about harmful fantasies if we assume they cause us to act badly?:
it isn't the case that fantasizing about anything is bad in-itself, it is deciding to do something nasty to someone in real life and then doing it that is bad. ...the moral culpability lies ... at the moment I decide to act [not merely fantasize].Patricia Peterson 1999, "Morality, Sexual Facts & Fantasies", P 48.
In the fantasizing case, I decide to engage in the fantasy, I decide to act it out, and I act it out. There is much scope here for mind changing, but most important engaging in the fantasy and not acting out the fantasy.Patricia Peterson 1999, "Morality, Sexual Facts & Fantasies", P 48.
Therefore her concluding claim:
It isn't immoral to fantasize about things, which if acted out would be bad to do. ... If one knows that by fantasizing about engaging in a harmful sexual activity, one will be inclined towards acting out one's fantasy in real life, then it would be prudent for one not to engage in that fantasy.Patricia Peterson 1999, "Morality, Sexual Facts & Fantasies", P 49.
We must note the distinction Petersen makes between prudence and morality.
... we do not consider the smoker to be doing something immoral by privately smoking and adversly affecting his or her health. We typically consider the smoker imprudent for participating in such self-destructive behaviour. Similarly, although by engaging in sexual activity of a particular kind one may damage one's health, it doesn't follow that by participating in such activity one is committing an immoral act. It is important to recognise that there is a distinction to be drawn between imprudent and immoral acts.Patricia Peterson 1999, "Morality, Sexual Facts & Fantasies", P 25 - 26.
Note that Petersen is using "prudence" in the less common sense. The sense close to definition 3. in the Macquarie Dictionary, Revised third Edition, 2001:
1. cautious practical wisdom; good judgment; discretion.
3. regard for one's own interests.
Indeed this is an important distinction. One of the most unrecognized and undervalued distinctions. The failure to distinguish leads both to poorly lived lives and great injustice. With this distinction we can, and for clarity ought, understand ethics more narrowly than traditionally understood. Traditionally ethics, or synonymously "morality", has been understood as entailing any claim about what one ought do or not do. We can more usefully understand ethics as: Claims about what one ought do, or not do, where one's actions directly and foreseeably effect others' welfare.
On the other hand matters of prudence, or matters of self-interest, can be distinguished off as: Claims about what one ought do, or not do, where one's actions directly and foreseeably effect one's welfare.
So if Petersen's concluding claim is right then it's possible that even if public fucking caused harm then public fucking would not necessarily be immoral.
While Petersen's opening claim is true her concluding claim, alas, is false (if I've represented it and understood it fairly).
She assumes a strong correlation and causal relationship between fantasizing about a harmful act and acting it out. It's understood that the fantasizer will be aware of this relationship. The moral culpability does not lie at the point of deciding to act but at the point where you know the effect will follow. The moral culpability lies as soon as you engage in the fantasy knowing it will lead you to act badly. To engage in a fantasy may well be not bad in itself but when you know it will lead to your bad acting (this is assumed) then it is immoral.
Her claim that "There is much scope here for mind changing, but most important engaging in the fantasy and not acting out the fantasy." contradicts her assumption of the strong correlation between fantasy and acting it out. The stronger the correlation the narrower the scope. For this hypothetical to have the requisite value we must assume a correlation so strong so as to leave no significant scope.
Whether it's imprudent or prudent is not established by the assumptions in the case. If the fantasizer about rape is lead, in virtue of the fantasy, to act it out, derive some psychological joy in acting it out, can reasonably expect not to get caught, then acting it out would be prudent: in their self interest. It would still be immoral.
Petersen's argument might instead by employed to get at the distinction between intention and foreseeablity. Peter singer (2004) helps to clarify this distinction:
Moralists who support the distinction [between 'foreseeable' and 'intended'] usually say that whether you intended an outcome of your action can be determined by asking if you would have acted as you did if you believed that the outcome would not have occurred. So, for example, Bush could truthfully say that he would have bombed the restaurant in which Saddam was believed to be even if that would not have killed any civilians.Peter Singer 2004, The President Of Good & Evil, The Ethics Of George W. Bush, P74
Petersen assumes the fantasizer knows that indulging the fantasies will lead them to commit harmful acts. The fantasizer intends the fantasy and merely foresees the consequent harmful acts.
The fantasies are not bad in and of themselves, regardless of whether the harmful acts that will follow are intended or not. I push a button that leads to a bomb that kills my bank manager, to borrow a Petersen example. This does not making pushing buttons in general, or pushing this button in particular, bad in and of itself. Pushing that button is extrinsically bad.
So too the fantasies are extrinsically bad. They foreseeably lead to bad acts. To engage in a fantasy foreseeing this will lead you to commit bad acts, even if not intended, is immoral.
By the way, we have been assuming, on Petersen's lead, a strong causal connection between fantasy and acting them ought. There is no reason to suppose such a connection in fact exists. So, for example, we need not ban the bible for fear its depictions of crucifixion will excite this fantasy in others and lead them to act out crucifixion.
So my suspicion that answering "Should fucking in public be legalised?" is not ultimately an empirical question does not arise from Petersen's reflections. At least not directly.
My suspicion arises, rather, from three aspects of causation.
- The strength, the probability, of the causal link;
- Whether a contributing cause is morally relevant; and
- Whether there are third party agents anywhere along the causal chain.
Let's take the issue of the morality of the strength of casual links first. Often it's useful to distinguish mere thought from act, as Petersen has done above. At other times it's useful to conflate the two. To count thoughts as actions too. Especially in the case before us where a mere thought is assumed to have a causal consequence that has moral significance: bad acts will be done. Let's then take thoughts to count as acts.
2003 = 232 pedestrian deaths.
Australian Transport Safety Bureau, Road Deaths Australia 2004 statistical Summary Table 1 Deaths by State/Territory and road user, 2003 and 2004 http://www.atsb.gov.au/publications/2004/pdf/rfa2004.pdf Accessed 21 Mar 2006.
Therefore even when increased harm is causally established, here between driving and killing pedestrians, the strength of the causal link might be so low that the acts are deemed socially acceptable. By the way, this doesn't tell against Petersen's reflection, she assumed a strong correlation (and causation), not a weak one.
4102.0 - Australian Social Trends, 1997, Violent Crime: Murder & manslaughter http://www.abs.gov.au/AUSSTATS/abs@.nsf/2f762f95845417aeca25706c00834efa/8f1f383829ef039fca2570ec001b2fc4!OpenDocument Accessed 21 Mar 2006.
So even if fucking in public is a cause of some harmful effect, it may not not be a morally significant cause.
Thirdly, even if there is a much stronger correlation than in the previous two examples between act and effect there is still one way in which the acter may not be morally responsible. That is, in the case where the effect occurs through third party intermediaries, that is agents. Imagine the school playground. Barry punches Bill. Barry ends up in the principals' office and defends himself with "Lisa told me to do it." The cliched argument from the principal might be "If Lisa told you to stick your head in the oven, would you do it?"
The principals' argument is intended to demonstrate that each of us is responsible for the acts we perform whether they be acts of self-interest or morality.
It could be countered that the principals' argument may well show we are all responsible for the acts we do but not that the goader, here Lisa, is without moral responsibility.
I can only make the appeal that the principals' argument does show Lisa not to be morally responsible. Lisa is not morally responsible for Bill's bloody nose even though she may have causally contributed to it.
So even if public fucking causes some sort of harm then it does not follow that public fucking is a morally relevant cause...
It would increase rape.
... For example even if public fucking increased the incidence of rape then public fucking ought not be identified as the morally relevant cause. The rapists who allow themselves, in some bizarre but assumed way, to be inspired by fucking in public are the morally relevant cause. Moral culpability ought be located with the agenct that commits the act.
This argument, that public fucking would increase rape, was surprising. I just couldn't see any basis to suppose that would be a plausible consequence. On further reflection I can see why it would be a candidate consequence.
Not so long ago defence barristers in rape cases may have asked the rape victim whether she was wearing a short skirt or similar. The implication was in causally contributing to her own rape, by being more desirable to men, she was morally responsible. Even allowing that causal contribution to exist I would have thought this reasoning now dead. It's an example of blaming the victim for the crime, the immorality, of the perpetrator.
We ought take from this that we hold the (mentally competent) perpetrator responsible for their deeds even when there is an external causal account to give. Bill Clinton put it well when talking about his affair saying something like: "An explanation is not a justification."
Sex just is a private matter.
It's tricky to try and make this not question begging. The whole question is: "should sex be a private matter?" For the sake of a response I'll ignore its question begging feel.
Firstly, the proposition is not to compel anyone to fuck in public. So anyone who feels that the sex they have ought be a private matter, would be free to arrange it that way.
Secondly, "Sex just is a private matter" can't mean everyone just wants to have sex in private. George Micheal doesn't:
I think I'm done with the sofa
I think I'm done with the hall
I think I'm done with the kitchen table, baby
Let's go outside (let's go outside)
In the sunshine..
...There's nothing here but flesh and bone
There's nothing more, nothing more
There's nothing more
Let's go outside....
When the moon is high
And the grass is jumpin'
Come on, just keep on funkin'
Keep on funkin', just keep on funkin'
If that's a misrepresentation of Mr Michael's stance, and it may well be that this response to his 7 April 1998 arrest for "engaging in a lewd act" is a mere artistic outpouring rather than a sincere thesis, then I don't.
Thirdly, we might mean that there is some biological/evolutionary desire implanted in humans that tends most humans to want to fuck in private. If that's right then we would have to account for why we are the only(?) sexual species implanted with it. Even if there is this biological impulse there is no requirement we defer to it. There may be biological impulses to anger or fear. No need to put up with these.
I wouldn't want my kids to be sexualized.
This retort was put with the qualification that there is the issue of giving kids adequate sex education.
It was a representative population-based survey of the sexual health behaviours, attitudes and knowledge of Australian people. Telephone interviews were conducted with 19,307 respondents between the ages of 16 and 59 years in 2001/2002... Half the men born between 1941 and 1950 had vaginal intercourse by age 18 and this declined to 16 for men born between 1981 and 1986. For women the age at first vaginal intercourse declined from 19 to 16.Sex in Australia, Summary of Australian Study of Health and Relationships http://www.latrobe.edu.au/ashr/Sex%20In%20Australia%20Summary.pdf Accessed 21 Mar 2006. Full Study:
Australian Study of Health and Relationships (ASHR),
Australian And New Zealand Journal Of Public Health, 2003 VOL. 27 NO. 2
This qualification is tangential to the retort. The retort is that children, in bearing witness to public fucking, will suffer is some way. They will be perplexed, frightened, or collapse from the horrible sight of adults convulsing vehemently, faces tight, sighing, and panting...
This is the same concern that lies behind R G Watkins' argument. If is argument is not warranted then why should it be warranted now? When we take a child on a walk around Bondi beach we don't sheild the child's gaze from the woman in the G-string. When we take a child to the swimming pool we have no qualms about them entering the change rooms where they will bear witness to nude adults.
I'm really not clear on precisely what the imagined difficulty that a child might face when bearing witness to adults fucking in hyde park.
It is the prohibition on public fucking, rather, that may have the corrupting effect on the developing child: that they may grow up to believe there is something wrong with public fucking based on habit, and in the absence of good reason.
R G Watkins' argument is sound.
We can be generous with Watkins' argument and make it: two groups have irreconcilable preferences for the use of a particular space. The majority preference ought prevail. Yes, then, Watkins' argument may well be sound and useful for moral thinking.
Only in limited cases, however. Imagine a group of us walking in the bush and there arises an option to visit the mountain or the lake, the group wants to stay together, and we can't visit both. Then, in the absence of any other consideration, a vote ought be taken. The majority preference should prevail. Here utilitarianism, the greatest happiness (or preference) for the greatest number, serves us well.
Utilitarianism can't work in all cases. One classic counter example is the gang rape case. The sum of ten mens' happiness may outweigh the suffering of the one woman they gang rape. The woman has no friends or family, the men can reasonably expect not to get caught, it will be an isolated incident that they will keep secret. They will kill her afterward to minimise her suffering. If you think the pain of the woman will outweigh the happiness of the ten, imagine one hundred men.
Under utilitarianism the men are morally obligated to gang rape the woman. That outcome is so obviously counter to our pre reflective moral beliefs that we can reject utilitarianism's applicability in this case. What's going on here? We say that the woman deserves rights, that some preferences, here the preference not to be raped, trump competing preferences no matter how many there are. Majority preferences ought not always prevail.
Therefore R G Watkins' argument, essentially utilitarian, will be applicable in some cases and not applicable in others. It ought not be applied to cases that involve how an individual attires themselves or how they choose to give themselves, and other consenting individuals, sexual pleasure. A persons sexual pleasure is something they ought have a right to, consistent with allowing others a similar sexual freedom, no matter how many people would like to suppress it.
Harm, Offence, and Eyesaw
It has been pointed out when considering what ought be in public there are three common sets of candidate objections: harm, offence, and eyesaw.
I've been arguing for the legalisation of public fucking against a consideration of possible harm. Another candidate consideration is when another finds something offensive. That an act or expression ought be limited on the grounds that it offends another, or a group, is a widespread silliness and so deserves a full treatment at another time. I'll write nothing more against offence except to say that it seems to be a psuedo moral concept that people use when they have no good reason for their stance.
The third candidate objection could be "eyesaw". A billboard or a housing development might be objected to not on the grounds that it harms (or offends as such) but that it is an eyesaw. In a general form "eyesaw" might be nothing other than the Time/Place/Manner limits that often, and rightly, restrict free expression (and free acts).
Time/Place/Manner may rightly be used to prohibit a range of public expressions and acts. A rock band playing at 3:00am in a residential area; a speaker with a megaphone in the local temple; the aforementioned size and placement of a billboard.
Could public fucking be objected to on Time/Place/Manner grounds? Sure. But would a person who objected to the sight of people fucking on a beach on such grounds be similarly disturbed by the public display of grecko-roman wrestling? Grecko-roman wrestling can be just as, if not more, vivid in manner as fucking.
Maybe the ultimate motive for the prohibition, for some, is not a disgust at sex, but rather, a shyness.