Whom You Have Sex With is My Business

BYU’s suspension of forward Brandon Davies for having sex with his girlfriend has divided the sports blogosphere between those who applaud the University for upholding its honor code and those who express incredulity that anyone could get kicked off the team for such a thing (after all, isn’t this why many people play sports, to get first crack at the most attractive members of the opposite sex?).

What has been decidedly missing in the conversation, however, is an investigation of why BYU has this as part of their honor code in the first place. If asked, most persons would simply chalk it up to the sexual peculiarities of Mormons: sex with no one before marriage, and multiple spouses after. But this would be overlooking the proposition that any well-organized community will and ought to have a say in the selection of sexual partners.

The hoary cliche goes like this: “Who I have sex with is no one’s business but my own” – a phrase that obscures more than it reveals. On the surface of it this idea can’t possibly be true, for surely it is the business, in one way or another, of the person with whom one is having sex. (Here I’ll freely confess that, as a father, I think it’s my business too if it happens to be one of my kids.)

Once this concession is made, the libertine takes a step back and introduces the idea of consent. “Sex between two consenting parties is no one’s business but those two parties.” But even here, one suspects that the libertine cannot effectively make a rearguard action, for introducing the idea of consent necessarily involves an examination of the characteristics that make one capable of consent. In other words, it will require, in some fashion, a discussion of the necessary and natural characteristics a person has such that their engagement in sexual acts is considered acceptable.

These reflections are grounded in a community’s deliberation about the nature of sex itself, the nature of the persons who engage in it, and its appropriate contours and expressions. Without such communal deliberations connected to sex’s nature, lines of legitimacy become hopelessly blurred and arbitrary, even confused. Why, for example, should 16, or 17, or 18 become a magical moment of legitimacy? Are all 18 year-olds equally capable of such deliberation? Why is it that we have child pornography laws that are designed to protect the dignity of 14 year olds while at the same time we are handing out condoms to them in our schools? Why is it sex between two 16 years olds is permissible (and condoms provided with taxpayer dollars), but between a 19 and a 16 year old it’s not?

Surely part of the problem here is the malleable way we have come to understand biological determinations of sex itself. In the March issue of First Things, Douglas Farrow demonstrates the legal significance of replacing objective characteristics such as the biology of sex with subjective categories such as “orientation” and a largely liquid sexual “identity,” which, as Charles Taylor has argued, require mutual recognition in order to legitimate themselves.

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