Li Yinhe talks about sex

Chapter 31 The Law and Extramarital Sexual Relations

Handing over the power to deal with extramarital sexual relations to the police and the state will undoubtedly reduce the free living space for everyone.

At the beginning of the revision of the 1980 Marriage Law, some people suggested that legal means should be used to punish extramarital sexual relations.The specific suggestions are roughly as follows: Husband and wife should be faithful to each other. If one party is not faithful, the other party can appeal to the public security department to eliminate the hindrance.Later, due to the overwhelming opposition, only the sentence "husband and wife should be faithful to each other" was added to the official revised draft submitted to the National People's Congress.

I am opposed to both the original suggestion and the inclusion of this sentence in the Marriage Law.From the perspective of legal terms, I think "husband and wife should be faithful to each other" is a moral norm, not a legal term. (A counter-example is: "Bigamy is prohibited." Such phrases are legal terms.) Is it appropriate to write moral norms into laws?Is it necessary?If the law does not provide for the punishment of extramarital sexual relations, is it still necessary to write "husband and wife shall be faithful to each other" in the Marriage Law?

Extramarital sex is a violation of the marriage contract and is immoral. The party who has extramarital sex often causes great mental pain and great indignation to the non-marital sex.Therefore, I can understand some people's idea of ​​using laws to punish extramarital sex, but even so, I think this idea is inappropriate for three reasons:
First, is it possible to enforce laws that punish extramarital sex.Statistically, extramarital sexual relations account for a relatively large proportion of married people.According to Australian statistics, the number of people who have had extramarital sexual relations in their lifetime accounts for 43% of married people.Statistics in Western European and North American countries are also close to this ratio.In China, I conducted a random sample survey in Beijing in 1989, and the proportion of people who admitted to having extramarital sexual activities was 6.4%.When broken down by age group, younger people are far more likely to experience the behavior than older people.With the passage of time and the death of the older generation, the proportion of extramarital sexual relations in the married population is expected to increase significantly.

There is a saying in China: the law does not blame the public.Since extramarital sex is a behavior common to a considerable percentage of the population, once it is made illegal, it will be difficult to enforce it.The difficulty first comes from the lack of police force.It's a stupid idea to have the police deal with something that might involve 40% of the population.This approach is not without lessons learned: in a certain year in the 80s, Beijing City tried to punish all behaviors and perpetrators of watching obscenity.Immediately after the police operation started, a large number of hotels and restaurants were used as temporary detention centers, because the prisons and detention centers were immediately full.In the end, the whole operation had to come to an anticlimax.

The lesson from this historical experience is: when using police force to punish a certain behavior, we should first understand the scope and proportion of the population involved in this behavior.If legislation is made hastily without the basis of statistical data, there may be a phenomenon of non-compliance with the law.However, the law that uses the police to punish extramarital sex cannot actually be enforced, or only punishes the stupid cheaters while leaving the cunning cheaters at large, which will greatly damage the seriousness of the law.

Second, whether it is appropriate to establish laws to punish extramarital sexual relations.

The essence of any law that punishes sexual relations outside marriage must be the law of adultery.The law of adultery is a medieval law that modern society rejects as obsolete.One of the thoughts of those who advocate the restoration of the adultery law and the punishment of adulterers when the current marriage law is amended is that even if a statistically small half of the citizens commit such acts, the punishable behavior must still be punished.In my opinion, the best way to punish sex outside of marriage is divorce.It would be too backwards to restore adultery laws specifically for sex outside of marriage.Except for the crazy religious fanatic regimes in the world (for example, after the religious fanatics came to power in a certain country, the traditional laws of stealing and chopping hands and adultery being stoned to death), there are very few adultery laws.We will never go back to the Middle Ages.

From another perspective, extramarital sex has always been an appendage of the marriage relationship.Sociological studies on the consequences of extramarital sexual relations have shown that extramarital sexual behavior sometimes not only does not destroy the marriage relationship, but has the function of maintaining an unsatisfactory marriage relationship.If the adultery law is enforced, a considerable number of people will regard marriage as a daunting way, and in the long run, it may lead to a decline in the marriage rate.

In the history of human legislative thoughts, there are two kinds of thinking: moral theory and effect theory: for moralists, as long as a certain activity is wrong, immoral or evil according to the traditional concept, there are sufficient reasons to prohibit it. activities, such as homosexual activity or abortion.The goal of the law, say, of extramarital affairs, of divorce, of abortion, or of illegitimate children, is to distinguish between the guilty and the innocent, to punish the guilty and protect the innocent; to punish evil and to reward virtue.Consequentialists argue that if the legal prohibition of an action would have more harmful consequences than allowing it, then the action should be allowed, even if it is wrong or immoral.The goal of the moralist is to reward and punish the parties according to moral standards; the goal of the consequentialist is to minimize the harm suffered by the parties, regardless of their moral status and behavior.Judging from the current laws of our country, the legislative idea of ​​moral theory is too heavy, and less consideration is given to how to reduce the damage suffered by the parties, and less consideration is given to the consequences of legal punishment on the parties.

A typical legislative idea of ​​moral theory is American Comstock in the second half of the 19th century and the law he created, known as the Comstock Law.It's a law that's tough on sex.Comstock, born in 1844, was instrumental in the passage of the American Obscenity Act in 1873.The bill prohibits the mailing of obscene pornographic publications in the United States, prohibits obscene advertisements, and prohibits the dissemination of contraceptive information.He served in the United States Postal Service to implement his Comstock Law.He was extremely enthusiastic about his work. During his tenure, he imprisoned 3600 criminals who violated public decency.Not only was he against pornography, but he was against abortion, public lotteries, nightclubs, artists painting nude models, and free love.In a word, he opposed all the distinctive ideas of his day.He opposed the women's liberation movement, persecuted feminists, and tried to ban Shaw's prostitution play "Mrs. Warren's Profession". As a reward for him, Bernard Shaw created the term Comstockism.Comstock, who died in 1915, has gone down in history as a symbolic figure who sought to uplift man's morality through legal means.Comstockism lingered in the United States until the 80s and 90s when it returned.He is the teacher and sage of the so-called moral majority.Taking Comstockism as a lesson, we should review our country's legislative thinking and avoid falling into the trap of using laws to improve people's morality.

A typical representative of the effect theory is the Worthington report in the 50s in the United Kingdom.In the practice of legal reform in the West in recent decades, the British Woffington Report has had a significant and far-reaching impact.One of the main ideas of Woffington's report is that the law should not deal with matters in the field of morality, and believes that adults have the ability to make moral choices for themselves.Under the influence of the Woffington Report, many types of consensual sex between adults have been decriminalized in many countries around the world.

Regarding extramarital sex, legislators have two attitudes. One is to make the most of the situation and formulate laws based on the best possible outcome for the parties. For example, many Western countries have established or are establishing domestic partnership laws; The other is to ruthlessly punish and attack the parties out of some kind of moral indignation, such as restoring the adultery law.From the principle of safeguarding the best interests of the parties concerned, our legislators should try to adopt the former position, but unfortunately, moral indignation is always more deceptive and makes things develop in an irrational direction.Irrationality has always been a formidable force in human nature and will win widespread support. The tendency towards moral purity in the "Cultural Revolution" reached crazy levels (administrative punishment for adulterers, etc.) and this is reflected in current legislation Ideologically, it is a debate between moralists and effectualists.I believe that people with conscience can distinguish the advantages and disadvantages of these two positions through their own thinking and judgment, so as to abandon the moralist legislative thought and formulate our laws according to the principle of the best interests of the parties concerned.

Finally, whether state power should be used to regulate private life.Foucault said that sex is a resource that no power can ignore.Of course, when Foucault talks about power, he never means only state power.In his view, power is not something with fixed boundaries belonging to a certain group, it is diffuse and ubiquitous.But in any case, the police is part of the state machine, it is the pure form of power.In a free society, people's living space will be larger than in an unfree society.Handing over the power to deal with extramarital sexual relations (which is a voluntary act among adults with the ability to make moral choices) to the police and the state is undoubtedly a reduction in the free living space for everyone.The saddest thing about the proposal to increase legal penalties for extramarital sex is that it was not made by the state, but by some legal experts who were ordinary citizens.We cannot fail to be struck by Foucault's insight: power is not concentrated in the hands of a certain group or few, it operates in the mind of an ordinary man who proposes to punish certain actions by law; Only from the state, but from ourselves.

(End of this chapter)