Content warnings: sexism and misogyny, sex

Almost universally, female sexual pleasure is de-centred and depicted as a lesser counterpart to male sexual pleasure. This phenomenon manifests in the orgasm gap between heterosexual women and men—a study found that only 6% of women orgasm every time they have sex, yet it remains the expectation that sex isn’t over until a man cums. Mainstream pornography objectifies and exploits women both on and off screen through the ubiquity of the male gaze and through harmful and unsafe working conditions. Moreover, female masturbation is still a taboo topic, with vibrators and toys being discussed in whispers as opposed to the overt and often crude discussion of male masturbation. A gendered perception of pleasure has leeched into all facets of daily life.

The court of law, though not immediately connoted with sexual pleasure, is a sphere where these inequities play out. Social conceptions of sexual pleasure, which privilege male experiences, are engrained in the legal system, granting male plaintiffs compensation and acknowledgement where their sexual pleasure is compromised. In doing so, however, the court upholds problematic notions of heterosexual relations and disregards the sexual experience of women. The issue is two-fold. First, the focus on male sexual pleasure perpetuates harmful stereotypes and expectations. Second, the female experience of sexual pleasure is dismissed entirely or framed in relation to her utility to men.

In the case of St Margaret’s Hospital for Women v McKibbin, the male plaintiff underwent a negligent circumcision which resulted in damage to his penis. There were minor physical deformities but notably no functional damage—his urinary, reproductive and sexual capabilities remained entirely intact. His claim arose from the belief that the shape and size of his penis would affect his ability to attract sexual partners. The majority judgement emphasised that, historically, “the phallus has been seen as a symbol for power”, with the belief that one’s phallus is inferior therefore being a blow to one’s masculinity and sense of prowess. This was identified in the judgement as the “phallic fallacy”—the delusion that penis size is related to sexual adequacy and masculinity. The court recognised this as legitimate psychological harm and granted the plaintiff damages, reinforcing the notion that size does matter. Humour aside, the court’s translation of a recognised phallic fiction into a legal outcome demonstrates just how significantly the penis is correlated to manhood, security and power. Here, when masculine conceptions of pleasure were centred, so were rigid sexual norms regarding the desired appearance of the penis.

In Grant v Lun, the plaintiff experienced complications from a urinary-related surgery, meaning he could no longer regularly ejaculate from sex. Though an orgasm isn’t necessary to have satisfying sex, they’re generally seen as a pretty good way to end things. The court concluded that this man’s inability to finish was enough damage to warrant considerable monetary compensation. The court’s ruling aligns with the assumption that the male orgasm is what matters in sex, dictating the final goal of a sexual encounter. Given the aforementioned orgasm gap, and the broader notion that the female orgasm is less central to sex than the male orgasm, it is worth questioning what the outcome in Grant v Lun may have looked like if the plaintiff was a woman. Presentations of the female orgasm in the media characterise it as something elusive and rare, with the clitoris taking on an almost mythical persona in pop culture. The loss of a woman’s ability to finish would have been unlikely to garner the same attention and outcome in the court. Frequency of orgasm is rarely used as a barometer for female pleasure, but it appears principal in judging male sexual satisfaction. The ruling of Grant v Lun fortified the notion of the male orgasm as intrinsic to heterosexual sex, centring male experience in ways that limit male enjoyment of sex outside of these established narratives.  

In a third case, Baxter v Insurance Australia, a plaintiff’s ability to have sex for an “extraordinary duration” was debated by the court. The plaintiff had suffered from a back injury after a motor accident which impacted his performance in bed. Primary evidence of how long he could last was presented in order to demonstrate the harm caused from the injury. He could no longer perform vigorous and prolonged sexual intercourse in some positions and was awarded damages based on this. The ruling further emphasises the suffocating expectations imposed on men regarding sexual performance, and the court’s willingness to reinforce these standards. The plaintiff’s self-worth was diminished due to the intertwined notions of masculinity and ‘lasting long’ in bed. However, the ability to have sex for an “extraordinary duration” is not the only harmful expectation imposed on men—‘he should always want sex’, ‘he should get hard immediately’, ‘he should know what he’s doing’—are only some of the many further examples. Though this case is perhaps comical at first glance, a deeper read exposes how pervasive expectations surrounding male desire and pleasure are harmful to men’s wellbeing and their relationship with sex. I hope the court reminded him that something short can still be sweet.

It is difficult if not impossible to find cases that discuss the size and shape of a woman’s genitalia or her sexual capabilities in a manner akin to the aforementioned cases featuring male plaintiffs. Instead, discussion of a woman’s sex life tends to revolve around the pleasure she can provide a man or her reproductive ability. This is demonstrated in the case of Peninsula and Torres Strait Regional Health Authority v Bovey. The plaintiff in this case was a woman whose negligent laparoscopy resulted in intense pain and discomfort during menstruation, ovulation and sex. Evidence put forward included an account of the only three times she could engage in sex post-surgery: “their wedding anniversary, her husband’s birthday, and her husband’s desire for sexual intercourse on another occasion”. This judicial commentary highlights the subtle but significant ways in which female sexuality is positioned in relation to male pleasure, rather than as an individual and autonomous matter. In doing so, the court failed to divorce a woman’s sex life from those with whom she is having sex. Instead, what she can provide in the bedroom and as a person with a uterus is more significant than her own pleasure.

None of this is to say that pleasure should not be considered by the courts—acknowledging pleasure and its role in our personal and interpersonal relationships is essential. However, our conception of pleasure must move beyond how men should look, climax and act in bed. In place of this, the courts should consider the role of desire, fulfilment and satisfaction across all genders and orientations. This paradigm shift forms part of a larger social project of transforming our collective attitudes towards sex and gender, but the courts are as good a place to start as any. To judges everywhere, I say: let’s talk about sex, baby.