Li Yinhe talks about sex

Chapter 19 Law

Sex should not be an object of legislation
In principle, there is no difference between punching a person in the face or penis penetrating a person's genitals.

Foucault put forward an extremely important principle on the issue of legislation in the field of sexuality. He pointed out: "I think it can be said in principle that sex should not be the object of any legislation under any circumstances. It should be nothing to say that Big problem. But there are two areas that are a little bit problematic for me: one is rape and the other is when children are involved."

Regarding the problem of rape, Foucault proposed that the crime of rape can be treated as the crime of injury. He said: "One can create such a theoretical discourse that sex should not be punished for any reason under any circumstances. when we punish rape, a person should be punished only for physical violence and not for other reasons. So it can be said that it is only aggression: in principle, in hitting a person with the fist There is no difference between the face or the penetration of a penis into a person's genitals."

Foucault argues that punishing rape as a sexual crime is problematic because we are saying that sex has a higher place in the body, that the sex organs are not as important as the hands, the hair, or the nose.Therefore, in any case, legislation must protect it, surround it, pay attention to it, and must not equate it with other parts of the body.The crux of the issue is whether sex organs are more valuable than other organs of the body.If the sexual organs are as important as the head, and not more important than the head, the violation of the sexual organs and the head can be regarded as the same crime; if the sexual organs are more important than the head, the punishment for the violation of the sexual organs should be heavier than that of the violation of the head .

Seriously thinking about Foucault's argument, we really can't come up with evidence that sex organs are more important than the head or other body parts, and the special treatment of sex organs and the special punishment for violating them should be regarded as a kind of cultural accumulation.Under the influence of this cultural accumulation, we pay special attention to the sex organ among the various organs of the human body, and endow it with special significance.The shock and surprise that people feel about Foucault's thoughts are completely derived from this traditional way of thinking and the result of being influenced by traditional sexual discourse.

If rape is regarded as the same crime of injury as injury to other parts of the body, if rape against the child's will is also regarded as injury, and sexual relations that are not against the child's will are regarded as normal sexual behavior, then Foucault's prohibition on sex is lifted. The last two concerns of the legislative principle, the argument that sex should under no circumstances be the object of punishment of any legislation, would hold.This is true for the provisions of sexual crimes with victims punished in traditional laws, but it is even more so for so-called "sexual crimes" without victims.

Although Foucault's point of view seems too radical and shocking, but when you think about it carefully, it can be justified.Like Sade's novels, it has a deafening power, which makes people shocked by the spirit of freedom contained in it.It astonishes us precisely because we have always looked at things according to traditional norms, and it does not occur to us that beyond these norms it is possible to see things in another way.Sade believes that no form of sexual behavior is wrong, wrong, or pathological.Based on this, it can be said that all forms of sex should be allowed, and all forms of sex should not be the object of legal punishment.

People have long been used to punitive laws on sexual behavior as a matter of course.From this, we can see how customs and discourse shape people's "natural" views and opinions, how they control people's thinking and ability to distinguish right from wrong, and how they suppress people's free thought of.This way of thinking makes us dare not believe that there have been different approaches in history, let alone imagine that there are other possibilities for how to deal with such things in the future.

The operation of power in each of us that Foucault has repeatedly discussed can be seen nowhere more clearly than in the treatment of sexual crimes.We don't even feel that power makes us think this way on this issue, and we mistakenly think that this is entirely our own independent thinking.Foucault's profundity lies in this. He told us: It is not others who deprive us of our freedom, but our voluntary deprivation of the right to free thought. This is how power constructs our subject.If we want to prove that we still have the ability to think independently, let us think freely outside the conventional thinking: Is there any truth in Foucault's view that sex should not be the object of punishment in any legislation? ?
(End of this chapter)