Sex-Positive Law

Margo Kaplan

Rutgers Law School

April 2014

89 New York University Law Review 89 (2014)

Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite — that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.

This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for "sex-positive" law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

Number of Pages in PDF File: 76

Keywords: Sex and Sexuality, Criminal Law, Constitutional Law

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Date posted: August 13, 2013 ; Last revised: April 23, 2014

Suggested Citation

Kaplan, Margo, Sex-Positive Law (April 2014). 89 New York University Law Review 89 (2014). Available at SSRN: https://ssrn.com/abstract=2308955 or http://dx.doi.org/10.2139/ssrn.2308955

Contact Information

Margo Kaplan (Contact Author)
Rutgers Law School ( email )
United States
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