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When I was coming of age, we all knew the difference between the “normal” and the “abnormal” when it came to sex.

“Normal” was a man trying to get a woman to have sexual intercourse in the missionary position. “Normal” was the woman saying no and moving the man’s (or boy’s) roaming hands away from her breasts (second base) or crotch (third base). “Normal” was finally having missionary intercourse on their wedding night (home plate, but we stopped using baseball metaphors after marriage; now it was soccer: “game over”). Anything other than “normal” was weird, exotic, abnormal, or a fetish. Oral sex was a fantasy, played out in the black-and-white misnamed “blue movies” we were occasionally treated to by a friend’s older brother in the basement.

Gay sex was a “perversion” that someone’s uncle was suspected of enjoying in a faraway place. We had terrible names for people we thought might harbor homosexual desires. We’d never met an actual homosexual — at least we thought we hadn’t. Nobody had ever heard of transsexuals, cross-dressers, or foot fetishists (though we knew girls who were shoe fetishists — which meant women who loved to shop for shoes). Life was simple. We were normal. Anyone who wasn’t just like us was abnormal. No matters of degree. No continua. Just a straight line separating white from black (a metaphor that itself suggests what we meant by “normal” in the racial context).

Now everything has changed. There is no such thing as “abnormal.” Everything is normal. A transsexual is as normal as the most macho man or feminine woman. Being gay is no longer even exotic. It’s as boringly normal as the missionary position. The new normal is that everything is normal. There are no fetishes, only different tastes in sexual desires. That is the emerging reality in life. And that is a positive development for all Americans who care about liberty and privacy.

But what about in law? Law doesn’t always follow life, at least not right away.

The new normal is that everything is normal. There are no fetishes, only different tastes in sexual desires.

The statute books are chock-full of crimes that reflect an era even earlier than my youth. The penal codes (no pun can be avoided) of states reflect biblical prohibitions that were incorporated into law directly by the Puritans. (H. L. Mencken, himself something of a bigot, defined puritanism as “the haunting fear that someone, somewhere, may be happy.”) These included the criminalization of oral and anal sex, even between married couples, as well as masturbation. Our newest justice, Neil Gorsuch, in a book he coauthored, cited with approval a footnote by the late Justice Antonin Scalia where he predicted that the Supreme Court’s approval of gay sex would result in the striking down — God forbid — of state laws criminalizing “masturbation,” “fornication,” “adultery,” “bestiality,” “adult intent,” and other crimes against nature and morality.

This doesn’t necessarily mean that Justice Gorsuch will lead the charge — or even be a swing vote — in favor of prosecuting “abnormal,” “deviants,” “perverts,” or those who engage in acts “against nature.” It does show, however, that outdated laws may remain on the books long after life has passed them by. An example is the anachronistic ages of consent in states such as California and Florida where adolescents become sexually active well before they turn 18. Yet every sexual encounter involving a boy or girl under that magic age is a crime, because state legislators do not have the courage to acknowledge the changing sexual mores among adolescents.

The same is true of the anachronistic “crimes” against morality and nature. Legislators don’t want to appear soft on crime or personally supportive of “abnormal” sex acts, so they do nothing, counting on prosecutors and courts to do nothing as well, thus leaving these crimes unenforced but on the books.

So here is the bottom line when it comes to the conflict between life and law in the context of “abnormal” sexual practices, including fetishism: As long as you do it with a consenting adult, or by yourself, you will almost certainly be safe from prosecution. But you will technically be violating the law. If you were to be prosecuted, you would have a strong constitutional challenge, based on the decisions regarding gay sex and gay marriage.

There is no guarantee, however, that the courts will follow Justice Scalia’s “parade of horribles” — a legal term that’s used as a put-down regarding a ruling’s negative effects. The courts may very well uphold outdated state laws that criminalize some fetishes and perceived “abnormalities.” At least for the time being. But there is little question that, over time, all of these laws will end up in the waste basket of history, where they have always belonged.

Photo: Shutterstock.com/Endla

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Fetishism and the Law

Trama

When I was coming of age, we all knew the difference between the “normal” and the “abnormal” when it came to sex.

“Normal” was a man trying to get a woman to have sexual intercourse in the missionary position. “Normal” was the woman saying no and moving the man’s (or boy’s) roaming hands away from her breasts (second base) or crotch (third base). “Normal” was finally having missionary intercourse on their wedding night (home plate, but we stopped using baseball metaphors after marriage; now it was soccer: “game over”). Anything other than “normal” was weird, exotic, abnormal, or a fetish. Oral sex was a fantasy, played out in the black-and-white misnamed “blue movies” we were occasionally treated to by a friend’s older brother in the basement.

Gay sex was a “perversion” that someone’s uncle was suspected of enjoying in a faraway place. We had terrible names for people we thought might harbor homosexual desires. We’d never met an actual homosexual — at least we thought we hadn’t. Nobody had ever heard of transsexuals, cross-dressers, or foot fetishists (though we knew girls who were shoe fetishists — which meant women who loved to shop for shoes). Life was simple. We were normal. Anyone who wasn’t just like us was abnormal. No matters of degree. No continua. Just a straight line separating white from black (a metaphor that itself suggests what we meant by “normal” in the racial context).

Now everything has changed. There is no such thing as “abnormal.” Everything is normal. A transsexual is as normal as the most macho man or feminine woman. Being gay is no longer even exotic. It’s as boringly normal as the missionary position. The new normal is that everything is normal. There are no fetishes, only different tastes in sexual desires. That is the emerging reality in life. And that is a positive development for all Americans who care about liberty and privacy.

But what about in law? Law doesn’t always follow life, at least not right away.

The new normal is that everything is normal. There are no fetishes, only different tastes in sexual desires.

The statute books are chock-full of crimes that reflect an era even earlier than my youth. The penal codes (no pun can be avoided) of states reflect biblical prohibitions that were incorporated into law directly by the Puritans. (H. L. Mencken, himself something of a bigot, defined puritanism as “the haunting fear that someone, somewhere, may be happy.”) These included the criminalization of oral and anal sex, even between married couples, as well as masturbation. Our newest justice, Neil Gorsuch, in a book he coauthored, cited with approval a footnote by the late Justice Antonin Scalia where he predicted that the Supreme Court’s approval of gay sex would result in the striking down — God forbid — of state laws criminalizing “masturbation,” “fornication,” “adultery,” “bestiality,” “adult intent,” and other crimes against nature and morality.

This doesn’t necessarily mean that Justice Gorsuch will lead the charge — or even be a swing vote — in favor of prosecuting “abnormal,” “deviants,” “perverts,” or those who engage in acts “against nature.” It does show, however, that outdated laws may remain on the books long after life has passed them by. An example is the anachronistic ages of consent in states such as California and Florida where adolescents become sexually active well before they turn 18. Yet every sexual encounter involving a boy or girl under that magic age is a crime, because state legislators do not have the courage to acknowledge the changing sexual mores among adolescents.

The same is true of the anachronistic “crimes” against morality and nature. Legislators don’t want to appear soft on crime or personally supportive of “abnormal” sex acts, so they do nothing, counting on prosecutors and courts to do nothing as well, thus leaving these crimes unenforced but on the books.

So here is the bottom line when it comes to the conflict between life and law in the context of “abnormal” sexual practices, including fetishism: As long as you do it with a consenting adult, or by yourself, you will almost certainly be safe from prosecution. But you will technically be violating the law. If you were to be prosecuted, you would have a strong constitutional challenge, based on the decisions regarding gay sex and gay marriage.

There is no guarantee, however, that the courts will follow Justice Scalia’s “parade of horribles” — a legal term that’s used as a put-down regarding a ruling’s negative effects. The courts may very well uphold outdated state laws that criminalize some fetishes and perceived “abnormalities.” At least for the time being. But there is little question that, over time, all of these laws will end up in the waste basket of history, where they have always belonged.

Photo: Shutterstock.com/Endla

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