Sexual Freedom in French Legislation

By Nicolau, Ingrid; Lupu, Raluca | Contemporary Readings in Law and Social Justice, January 1, 2012 | Go to article overview

Sexual Freedom in French Legislation


Nicolau, Ingrid, Lupu, Raluca, Contemporary Readings in Law and Social Justice


ABSTRACT.

Sexual activity, like any other human activities, is multiple and diversified, including people who can not imagine sex but within its reproductive dimension as part of a marriage and people who embrace libertinage as a way of living. Some people prefer partners of the same sex, others can not find pleasure but with the opposite sex. Sex and love are not to be dissociated for some people, others turn sexuality into a gainful activity. A just settlement of the sexual activity should bracket the different meanings each individual assigns to his erotic life. Thus, law reduces its intervention to two principles: individuals' consent and lack of damages for the partner.

Keywords: sexuality, sexual orientation, sexual identity, discrimination

Sexual emancipation and pandemic AIDS expansion in the second half of the 20th century have placed sexuality in the heart of the political and social debate. Settled in the sphere of intimacy and private life, sexuality bursts into public space, firstly due to the political action of the feminism, then through the requisitions of the L.G.B.T. movement (lesbians, gay, bisexual, transsexual). Meanwhile, sexuality is the most difficult human activity, to free from the traditional morality and the medical speech, which often occludes a judicial analysis. A theory of the sexuality right would find its foundation in a laic, consented philosophy starting with the idea of the autonomous and responsible subject's will, who expresses his/her freedom by making reasonably choices.

Sexual activity, like any other human activities, is multiple and diversified, including people who can not imagine sex but within its reproductive dimension as part of a marriage and people who embrace libertinage as a way of living. Some people prefer partners of the same sex, others can not find pleasure but with the opposite sex. Sex and love are not to be dissociated for some people, others turn sexuality into a gainful activity. A just settlement of the sexual activity should bracket the different meanings each individual assigns to his erotic life. Thus, law reduces its intervention to two principles: individuals' consent and lack of damages for the partner.1

Starting with a discretional reading of sexuality (meaning emancipated from traditions, doctrine or ideologies) and a modest concept of the law, this study is divided in three: the first part introduces the political and philosophical principles which stipulate sexual life: the evolution of the foundation of the sexual prohibitions, the margin of appreciating a sexual status, law's intervention to limit individual will, the tension between freedom, equality and human dignity; the second part analyses aspects related to sexual freedom, sexual equality (man-woman) and sexualities (homosexuality-heterosexuality) and sexual criminal offences; the third part includes and analyses precise examples of sexuality (prostitution, pornography, pedophilia, sexual harassment) based on classic summa division: consented sexuality - borne (forced) sexuality. A specific study of the main international conventions referring to sexual and reproductive rights, the right to asylum of the sexual minorities and the fight against sexual tourism is carried out.

1. Sexual orientation

Sexual orientation is the affective and sexual desire, the erotic appeal for people of the same sex (sexual homosexual orientation), or indistinguishably, for the same or the opposite sex (sexual bisexual orientation). "Sexual orientation" phrase firstly appeared in 1972 in a legal stipulation in Michigan, then in a couple of laws in the district of Columbia and Washington in U.S.A., in order to sanction the discriminations regarding homosexuals. The charter of the human being's rights from Quebec, in 1977 was the first constitutional stipulation to establish a specific protection against discriminations regarding sexual orientation. For the European level, article 13 in Amsterdam Treaty places the phrase "sexual orientation" in a stipulation which obliges U. …

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