To know more about Les 3 sex*'s editorial policy and texts selection, click here.
☛ Cette chronique est aussi disponible en français [➦].
Translated by Zoe Yarymowich
In the first text of this two-part article, I dealt with different sexual morals that marked the 20th century in Europe and North America, in highlighting the limits of the principle of consent linked to the enhancement of rights and freedoms of the individual favored by the rationalist Guyon and the libertarian Ogien. In this second text, I present Canadian social morality in matters of sexuality and link personal ethics and the sex-ethical approach, a personal approach that I outline here. I emphasize the power of individual and collective empowerment fostered by the practice of ethics in matters of sexuality.
Does Moral Sexuality Exist?
Does our Canadian society, liberal, democratic, pluralist, propose morals in matters of sexuality? Nothing seems to suggest it, but there is indeed one, hidden far in the depths of the Supreme Court, buried at the heart of judgments from members of the highest court in Canada. My doctoral research (Lemay, 2012) aimed to clarify, organize, and define this social morality to which judges refer in cases of a sexual nature.
According to the Supreme Court judges (cf. among others R. c. Butler, 1 R.C.S. et R. c. Labaye,  3 R.C.S.), consent does not always seem relevant in matters of sexuality. When they have to resolve a legal conflict and the laws in force or the Canadian criminal code do not give them sufficient help to decide, these jurists call on what they refer to as social morality. They have clarified this Canadian moral from end to end since the adoption of the Canadian Charter of Rights and Freedoms. It is based on two principles, tolerance and recognition, and on fundamental values according to the theory of harm formulated in the Labaye judgment.
The principle of tolerance in matters of sexuality requires that behaviour be socially tolerable as long as it does not undermine others and the proper functioning of society concerning a fundamental value (R. v. Butler,  1 R.C.S. and R. v. Labaye,  3 R.C.S.).
The principle of recognizing the vulnerability of people, which does not only apply to minors and which makes it possible to go beyond the libertarian argument of consent, reframes the interpersonal activity in its existential conditions. It presupposes, on the one hand, a concern for the other, in particular, the capacity to make an informed decision, and on the other hand, the enhancement of the effectively fulfilling nature of the proposed sexual interaction (Audet, 1996; Labaye, 2005; Little Sisters Book and Art Emporium c. Canada (Ministry of Justice), 2000). I deduce that the principle of recognition because it is applied reciprocally, agrees with the notion of intersubjectivity, which requires that the discussion between partners leads to a satisfactory agreement for all those concerned.
What Fundamental Values Does This Morality Refer To?
Canadian morality is comprised of values that are explicitly named in official and founding texts such as the Canadian Charter of Rights and Freedoms, the Canadian Criminal Code, the provincial charters of human rights and freedoms: equality of all human beings, equality between men and women, equality of sexual orientations, freedom of expression, participation in the political process, life and safety. Adding to this are the values implied by those fundamental texts such as the dignity of all human beings, individual autonomy, personal responsibility for their actions, respect for all members of society, non-violent behaviour, the search for the truth, and the quality of life in society. One can also consider fundamental values intimately associated with the contemporary and liberal conception of the emancipation of individuals such as personal recognition and personal acceptance, personal development, and recognition of others.
I infer from this that if the morality outlined by judges includes the fundamental values and principles, then it presupposes a certain conception of human beings. This would be a liberal vision based on individual rights and also on a valuation of living together. The principle of tolerance prevails as long as the behaviour does not interfere with the proper functioning of society or conflict with a fundamental value. Such a morality would not promote libertarian individualism. Rather, it would promote an individuality that combines with living together.
Ethics As a Component of Sexuality
If no one attaches importance to Canadian social morality in matters of sexuality, it will be reduced to a legal force, such as a code of ethics. This morality does not exist without an ethic that knows how to animate and energize it.
I am using, here, the interrelated definitions that I proposed in the first part of this article. A morality, necessarily social, consists of norms applicable to everything and anything. Magistrates use it to clearly and rationally identify what does not comply with it. An ethic, that an individual sets for themself, refers to their values and their conception of good living, to guide them in their choice of behaviour, in the orientation of their conduct. Ethical reflection takes morality into account and interprets it in particular situations. Morals and ethics come together and become more dynamic, just like grammar that applies to everyone and the language that everyone speaks with their style.
In a multidimensional conception of sexuality, morals and ethics are very important components, but they are not the only ones. Desire is also an essential element, which one could, in a sexo-ethics approach, place at the heart of a process of appropriation and emancipation.
But first of all, what is meant by desire, this corollary of need? Besides that of the essential and the superfluous, there are several definitions of the terms need and desire (Cabestan, 2005; Mishari, 2001, 2003; Rabouin, 1997). The understanding that I propose here emphasizes a dialectical link between the two notions. Need is then a lack, which one does not have, and desire is the response to need. Sometimes one feels desire without being able to clarify what need it would meet. Or one identifies a need without knowing how to respond to it. The desire/response can be impulsive, conditioned, influenced, reflective, and one can assess the need as fundamental, superficial, secondary, priority, etc. The relationship between these notions is therefore dynamic, just as reflection is very necessary to combine need and desire. In a consumer society like our own, where even sexual or erotic pleasure can appear as a disposable good after use, it becomes vital for one’s well-being to clarify the need and to question onesself on the quality of the response one wants to provide or not (Lemay, 1990).
Sexual desire in the human species does not have a determining biological basis, contrary to animals in heat (Dorais, 1995). In other words, desire is not determined by ovulation, menstruation, the full moon, or the number of sperm that testes produce. A multitude of factors combine to arouse desire, to guide it, and give it its intensity: hormones; physical or mental health; mood (impressions, sensations, emotions, feelings); fantasies, which like dreams have hidden meanings; striking experiences from childhood, adolescence, and adulthood; individual needs; personal, relational, and social limits and constraints; personality traits; objective knowledge; family or cultural myths; prejudices; norms, values, ideas, models, rules, regulations, habits, and customs in matters of sexuality that favor education, society, culture, ideology... To add to this non-exhaustive list: the subjective meanings and values that one attributes, by experience (imprints, frustrations, learnings) and by reflection, to sexuality at different moments in life (Dorais, 2010; Misrahi, 2001, 2003).
Far from arising from instinct, desire is actualized in a culture, subject to norms, oriented by values, under the ultimate responsibility of the subject.
Desire eventually becomes a choice that is up to the person, not the species. Consequently, this choice has or should have a strong ethical component. Therefore, desire can appear spontaneously, drawing its strength from the complexity of the unconscious, from mood, from the history of the individual. But when it translates into social behaviour, it should be an ethical choice subject to rational justification, like any other behaviour (Habermas, 1987, 1992; Lacroix, 2006; Legault, 1999). The desiring subject is then transformed into an ethical agent, and desire itself constitutes the object of discussion between those concerned. Finally, it is the subject/agent that arouses desire, whether this decision is considered or more or less impulsive, conditioned, or freely consented, clear or confused, reasonable or irrational (Lemay, 2012; Misrahi, 2003).
This power to choose what action to take comes with the responsibility of assuming the consequences.
In a sexo-ethic approach of sexuality that aims for emancipation, the choice of behaviour is also made according to the fundamental and individual values of the people concerned.
By perceiving themselves as an ethical agent, the person can truly appropriate sexuality by determining their behaviour not based on more or less strong natural or cultural conditioning, but rather from deliberative consultation between the partners concerned. Under these conditions, the ethical agent genuinely exercises their freedom to choose the sexual conduct that suits them concerning a sense of emancipation rather than consumption.
The Ethical Dimension of Sexological Intervention
Like philosophy or ethics, a sexological intervention can take several forms and orientations. Formerly associated either with therapy, sexual education, or research, its scope of practice now appears plural. Among the different conceptions of the role of a sexologist, the one that stands out as most important is that of supporting the individual in their efforts to develop mastery of their sexual experience. To privilege this understanding of the function of a sexologist is to emphasize the responsibility of the individual free to determine themself in a particular and limited situation. Therefore, sexuality, possessing neither meaning nor finality in itself, becomes an increasingly human construction although science is extending its control in this matter.
By highlighting the ethical dimension of sexual, romantic, and erotic conducts and behaviours, sexologists would shift or redirect the interest in pleasure to put more emphasis on the sought-after, forgotten, hidden, or sometimes denied meaning that emerges from the acts themselves, their consequences or their aims. Thus, sexological intervention would not simply focus on the effectiveness of behavioural functioning, particularly concerning problems of seduction, arousal, or eroticization.
It promotes an analysis of the particular situation by emphasizing the moods, interests, needs, rights, norms, and values in play or conflict.
This reflexive gaze makes it possible to unveil the root cause of the problem, or at least, to identify an enlightening, revealing point of view, which does not provide a solution in itself but which opens the doors for exploration to better understand what function, role, objective or meaning one attributes to sexuality in a particular situation.
The sexo-ethical approach aims to develop ethical competence both in sexologists and in anyone who, without having this professional training must still make decisions in matters of sexuality. It integrates very well with the sexual education of adolescents or adults or with the accompanying sexological intervention.
The idea that sexuality has no other purposes than those that one attributes to it presupposes that deliberative, communicative, or intersubjective reason plays an essential role. The exercise of sexuality puts partners in interaction, represented virtually or in flesh and blood. In the latter case, the sexual, erotic, romantic, or conjugal relationship is not reduced to contact between genitals. It is about the interaction between personalities, and individuals with their history. Fatally, inexorably and normally, conflicts will arise or situations that demand a choice. The decision-making process leading to an agreement or a lack of agreement cannot be reduced to a technique applicable to any situation. It presupposes a mode of communication and a conception of dialogue, discussion, deliberation, mutual understanding, and intersubjectivity. This communication is based on recognized accepted and applied rules, for example, the participation of the people concerned, sincere and honest expression, mutual recognition, verified mutual understanding, the reasonable search for an unconstrained understanding (Legaults, 1999).
Deliberate ethics deals with the choice of action while taking into account the needs, interests, moods, values, sometimes conflicting ideas, as well as the consequences of one’s actions. This is not necessarily a choice associated with a dramatic conflict, but certainly a thoughtful choice. If there are no ends in themselves, essential, transcendent, or ultimate, one can still link their ethical decisions to ends. Because the sexual, erotic, romantic, or marital relationships always involve a determining affective load (emotional and sentimental), there is a risk that emotionality takes precedence over reflection. It is not a question here of opposing rationality and affectivity, but rather of understanding them as allies, different and associated in the same project of emancipation.
Sexological intervention is no longer a matter of psychology on this point, but rather of ethics. Communication is not limited to the expression of emotions, feelings, desire, or the interpretation of body language. It also uses ethical competence to clarify the interests at stake and the conflicting values in the recognition of the individuality of the partners, their difference inequality, and asymmetry.
The Sexo-Ethical Approach: For An Emancipatory Practice
An egocentric position, a phantasmal perception, or an instrumental reason very often constitute major obstacles to communication that cannot be deconstructed by a single psychological intervention alone. What poses a problem, undermines communication and torpedoes good feelings, is perhaps not the many conflicts of values that will always be inherent in the interpersonal relationship, but the absence of ethical skills to resolve them (Arnoux, 2013; Misrahi, 2006; Vegleris, 2010).
A sexo-ethical approach aims to develop these skills, that is to say, to make the people concerned skillful, in an interaction or behaviour, to discuss in an authentic way their values, of which they attach importance to, their needs, their interests, their conceptions of pleasure, eroticism, love, conjugality, their ideal of activity or relationship, to agree on an action having a sense of fulfillment for each partner, or not to follow up on the discussion. Beyond the too short consent, the integration of ethical reflection in one’s sexual behaviour could very well generate a new eroticism, in particular a method of seduction and romantic practices which would concretize one’s will to emancipate themself from models alienating their power and their autonomy.
Abensour, M. (2003). Philosophie politique critique et émancipation ?. Politique et Sociétés, 22(3), 19-142. https://doi.org/10.7202/008853ar
Arnoux, J.-E. (2013). Sur le divan d’un philosophe. La consultation philosophique : une nouvelle démarche pour se connaître, changer de perspective, repenser sa vie. Éditions Favre.
Bégin, L. (1999). L’intervention du droit et des juges dans la définition de notre éthique collective. In G.A. Legault, A. Rada-Donath et G. Bourgeault (Eds.), Éthique de société: L’éthique dans les sociétés démocratiques avancées. Éditions GGG Université de Sherbrooke.
Bernatchez, S. (2006). La fonction paradoxale de la morale et de l’éthique dans le discours judiciaire. Revue du Barreau canadien / Canadian Bar Review, 85(2), 2. https://www.canlii.org/fr/doctrine/revues/10/673/
Dorais, M. (1995). La mémoire du désir. Du traumatisme au fantasme. VLB éditeur.
Dorais, M. (2010). Petit manuel de l’érotisme. VLB éditeur.
Habermas, J. (1987). Théorie de l’agir communicationnel. Tome 1 : Rationalité de l’agir et rationalisation de la société. Tome 2 : Pour une critique de la raison fonctionnaliste. Coll. « L’espace du politique ». Fayard.
Habermas, J. (1991). De l’éthique de la discussion. Coll. « Passages ». Paris : Les Éditions du Cerf.
Lacroix, A. (2006). L’éthique appliquée est-elle une nouvelle théorie critique ?. Éthique appliquée, éthique engagée. Réflexions sur une notion. Liber.
Legault, G.A. (1989). La fonction éthique des juges de la Cour suprême du Canada. Ethica, 1(1), 95-109.
Legault, G.A. (1990). La parole du philosophe éthicien est-elle crédible ?, Philosophiques, 17(1), 21-43. https://doi.org/10.7202/027103ar
Legault, G.A. (1999). Professionnalisme et délibération éthique. Presses de l’Université du Québec.
Lemay, M. (1990). Obsession et fantasme en société de consommation sexuelle. Bulletin de l’Association des sexologues du Québec, 12(1), 23-30.
Lemay, M. (2012). La morale sociale et le rôle de l’agent en matière de sexualité. (Thèse de doctorat). Université Laval et Université de Sherbrooke.
Little Sisters Book and Art Emporium c. Canada (Ministre de la Justice). (2000). 2 R.C.S. 1120.
Misrahi, R. (1995). Le philosophe, le patient et le soignant. Éthique et progrès médical. Les empêcheurs de penser en rond.
Misrahi, R. (2001). Désir et besoin. Coll. « Philo ». Ellipses Édition.
Misrahi, R. (2003). Le sujet et son désir. Éditions Pleins Feux.
Vegleris, E. (2010). La consultation philosophique. L’art d’éclairer l’existence. Eyrolles.
To cite this article:
Lemay, M. (2018, March 6). Ethics and Morals Regarding Sexuality (Part II). Les 3 sex*. https://les3sex.com/en/news/7/chronique-la-morale-et-l-ethique-en-matiere-de-sexualite-partie-ii-