How the Government Stole Sex

Article here. Excerpt:

'Fornication. Sodomy. Adultery. Not so long ago, the U.S. criminalized pretty much all sex outside of marriage. As these laws have been struck down by courts or allowed to settle into obsolescence, it would seem that sexual liberty has been vindicated as an important American value. But while the courts have been busy ushering the government out of our bedrooms, it's been creeping right back in under new pretenses. Gone is the language of morals, tradition, and order—the state now intervenes in our sex lives bearing the mantles of safety, exploitation, and sex discrimination.

We are living in a new sex bureaucracy," warn Harvard Law School professors Jacob Gersen and Jeannie Suk in an upcoming paper for the California Law Review. Contra court decisions such as Lawrence v. Texas—which decriminalized sodomy in Georgia and affirmed a constitutional right to sexual privacy—"the space of sex" is still "thoroughly regulated" in America, they write. And "the bureaucracy dedicated to that regulation of sex is growing. It operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

Gersen and Suk's paper, titled "Bureaucratic Sex Creep," is mostly focused on federal overreach with regard to colleges and student sex lives, though they say this is only one realm of such regulatory creep. In great detail, the authors trace the roots of how the feds came to be in the business of encouraging "enthusiastic" sexual communication between teenagers and how everything from forcible rape to unwelcome comments between students became the prerogative of Washington paper-pushers and campus "Title IX coordinators." This "bureaucratic turn" may be "counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment," they warn, while also depriving due process to the accused and encouraging bizarre new sexual norms overall.'