The swing of the pendulum: the detraditionalisation of the regulation of sexuality and intimacy in Belgium (1973–2003)

Abstract

The current transformation of sex legislation in liberal democracies is usually described in terms of growing permissiveness or, on the contrary, as the result of a conservative backlash. A review of the changes in the Belgian sex legislation during the past three decades, however, demonstrates that both models are inadequate to understand this transformation. Indeed, in the 1973–1989 period various Acts resulted in a liberalisation of sexual behaviour in Belgium, while from 1989 onwards new legislative restrictions were introduced. While traditional regulations referred to a vague notion of public morality, these new measures explicitly aimed at protecting victims of sexual violence, e.g., minors or prostitutes from Third World countries. This new regulatory regime can therefore be considered as an example of ‘detraditionalised’ (Giddens) regulation of sexuality: new rules can only be considered as legitimate if they are congruent with the fundamental values of contemporary, individualised and rationalised societies.

Introduction

All too often, descriptions of the current transformation of the regulation of sexuality and intimacy in Western societies get trapped in a rather sterile black and white opposition. On the one hand, some authors decry a general climate of permissiveness, as traditional constraints on, e.g., public nudity or same-sex relations have been loosened in most Western countries. In this view, the main idea seems to be that states no longer interfere in matters of intimacy, as sexuality is now clearly situated within the realm of privacy, protected by a general discourse on individual rights (Glendon, 1987; Etzioni, 1999). The opposing, but equally powerful view is that liberal societies are now in the grip of a conservative backlash, threatening the remnants of the liberalisation that was established in the 1970s. Free speech, reproductive rights and equal rights for sexual minorities are believed to be endangered by the rise of highly vocal conservative groups in the US, and by a more conservative Supreme Court (Weeks, 1981, pp. 278–282; Faucette, 1995; Bronski, 1999; Songer and Tabrizi, 1999).

Both accounts, however, are highly problematical from a theoretical point of view. The ‘permissiveness’ argument would imply that societies are now less inclined to interfere in matters of intimacy and sexuality, leaving life-style decision to the individual. This would mean that somewhere during the final quarter of the 20th century, the entire regulatory regime of sexuality in Western societies would have changed dramatically. We know from historical research that the regulation of sexuality has tended to become more powerful and more broad ranging from the 18th century on (van Ussel, 1972; Weeks, 1981; Foucault, 1988). In fact, legal regulation of sexuality can be considered as a universal feature of all human societies (Ost and van de Kerchove, 1981, p. 9). There is no apparent reason why suddenly the historical trend toward a more encompassing form of regulation should have been reversed, leaving sexuality as a category that is now to be decided on by the individual itself, without any societal or political influence.

The ‘backlash’ argument suffers from a comparable theoretical weakness. While it is self-evident that the history of the 20th century cannot be summarised as a linear progress toward more individual liberty, the general trend, however, clearly is that in liberal democracies, individual liberties are expanding. This is the case with regard to human rights, e.g., freedom of association and expression, but in general also with regard to sexuality, intimacy and choice of partner and life-style arrangements (Gurstein, 1998; Kraaykamp and Milardo, 2002). Again, there is no compelling reason why this trend recently would have been reversed, especially given the fact that individualisation, i.e., a tendency toward increasing opportunities by individuals to make their own life-style decisions, rightly has been described as a fundamental social change during the last decades of the 20th century (Inglehart, 1997; Bauman, 2000; Beck and Beck-Gernsheim, 2002).

In this article, we claim that clinging to a sterile opposition between ‘backlash’ and ‘permissiveness’ is not a promising or theoretically informed way to make sense of the current transformation of the regulatory regime with regard to sexuality and intimacy. Rather, we wish to use individualisation theory to reach a better understanding of these changes. One of the key elements within the shift toward individualisation is a process of ‘detraditionalisation’: traditional rules and institutional frameworks lose ground, only to be replaced by more modern and rational rules (Giddens, 1994; Heelas et al., 1996). Individualisation and detraditionalisation do not lead to atomisation, i.e., a social condition in which every individual makes his/her own decisions, without any social coordination or enforcement, as is often assumed (Bauman, 2000). The main evolution is that new rules take priority over traditional behavioural codes: “In modern life the individual is confronted on many levels with the following challenge: You may and you must lead your own independent life, outside the old bonds of family, tribe, religion, origin and class; and you must do this within the new guidelines and rules which the state, the job market, the bureaucracy etc. lay down” (Beck and Beck-Gernsheim, 2002, p. 11). The first part of this challenge has already been described all too often: we know how, e.g., the church has lost its grip on sexual attitudes and behaviours in most Western countries (Petersen and Donnenwerth, 1997). The second part of the challenge, however, thus far has largely remained unnoticed: a new regulatory regime has come in place, paying more attention to individual autonomy than the traditional regime. Therefore, we propose to use a full reading of individualisation theory as a heuristic instrument to understand changes in sex laws during the past decades. We will limit ourselves to a review of the sex-related legislation in Belgium for the 1973–2003 period.¹ We take into account all new legislation with regard to sexual behaviour, obscenity, contraception, prostitution and sexual violence. We also incorporate the major court rulings on this domain.