The Dignity of Risk
In my guest
column yesterday on Justia, I discussed “The Safer Sex in the Adult Film
Industry Act,” an initiative approved by Los Angeles County voters that will
mandate the use of condoms on adult film sets.
As I discussed in the column, if viewed as a content-based restriction
of non-obscene speech, the Act cannot survive strict scrutiny. In my view, the Act also visits serious dignitary
harms on the workers of the adult film industry. Required condom use, I suggested, is
problematic because it deprives workers in the adult film industry of the “dignity
of risk.”
The “dignity
of risk” is a phrase that grew out of the experience of those who advocated
the deinstitutionalization of the developmentally disabled during the
1970s. Today, the phrase is often used
by those who advocate allowing elderly patients to continue to live
independently as long as possible. At
its core, the concept reminds us that part of the richness of the human
experience is the ability to make decisions with the information we presently
have, and to move on. Sometimes, we’ll
succeed, and other times we will fail. That’s
just life, and it is part of being human.
As a philosophical concept, I believe the “dignity
of risk,” has particular salience where the government seeks to regulate
consensual sex acts. Of course, the law
generally protects individuals from taking every manner of risk known to
man. Seatbelt laws, helmet laws, and vaccination
laws deprive individuals of the ability to take certain risks, and few people
oppose these types of regulation.
But sex is different, in part because the ability to
seek consensual sexual gratification is a human dignitary interest of the
highest order. In the column, drawing on
an essay
by Professors Ian Ayres and Katharine Baker, I offered a hypothetical statute
that would mandate condom usage in every sexual encounter unless and until the
couple married. Putting to one side the
fact that not every couple desires to marry or yet has a right to marry, the
hypothetical statute would be abhorrent because it would deprive individuals of
the dignity of risk in their sexual lives.
The risks associated with sexual activity should not
be understated. Pregnancy, communicable
disease, and perhaps even death may well occur.
But sexual activity also brings with it the potential for some of
humanity’s greatest joy, including allowing one’s self to be completely
vulnerable to another person. Or, in the
words of Justice
Kennedy, “[w]hen sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a personal bond that is
more enduring.” Condom use therefore,
reduces the negative risks associated with sexual activity, but it might also
diminish the possible richness of the human experience.
For these reasons, I am tremendously skeptical of
any governmental attempts to mandate condom usage. There is inherent dignity in enabling
individuals to determine the types of risks they are willing to accept in their
sexual lives. Sometimes this may mean
using a condom, and other times, it may mean accepting a certain amount of
vulnerability. The individual and not
the government should be able to navigate these types of sexual risks.
It bears noting here, that at least in heterosexual
sex, women may bear more of the risk in deciding to have sex without a
condom. Only the woman may be become
pregnant and in some instances, she may be more susceptible to communicable
disease. Respecting women’s dignity, it
seems to me, requires acknowledging their ability to navigate these risks on
their own terms. Indeed, to the extent
that mandatory condom usage may be seen helping and empowering women, a few
prominent women
in the industry have said that the regulation might actually cause them greater
physical harm. For example, the presence
of condoms may cause the sex to be much more abrasive, and thus more likely to
damage the women’s genital mucosa.
One response is that whatever the validity of these
concerns, they must yield in this context because adult film stars are engaged
in a commercial venture. They are not
seeking to experience human joy, but are merely seeking a paycheck. Just as the government can require that
firemen wear masks, surely the government can require that adult film stars
wear condoms. Adult film stars are free
to do whatever they want off the screen, but on camera, they need to wear
protection.
The problem with this critique, however, is that adult
film stars provide a commercial service that is itself different from other
types of commercial services, precisely because the service is sexual. Viewing adult films may be the only source of
sexual gratification for some individuals, who, for myriad reasons, do not have
physical sexual contact with others. In
other words, the fact that adult film stars provide a commercial sexual service means that there is an
even greater danger that government mandated condom use will deprive some
individuals of sexual gratification—an interest, I have argued, is a human
dignitary interest of the highest order.
The film industry tacitly acknowledges this fact when it maintains that
many of its customers will not purchase films that contain condoms.
The commercial nature of the sexual activity, in my
view, is therefore not enough to rebut the presumption that governmental
regulation of consensual sex is nearly always problematic. As Martha Nussbaum has argued, our “insecurity
about sex and the lack of control involved in sex” often causes governing
majorities to constitute themselves as a dominant group of sexual “normals,”
and others as a group of sexual deviants.
The deviants, in turn, become not only the subjects of regulation, but also
the repositories of shame. I do not believe that adult film stars
are sexual deviants. And like the rest
of us, they are entitled to the dignity of risk in their sexual lives, commercial
and otherwise.