Sydney Law Review
SEXUALITY REPOSITIONED: DIVERSITY AND THE LAW by Belinda Brooks Gordon et al (eds), Oxford, Hart, 2004, 438 pp, ISBN 1–84113–489–9
In Chapter 1 of Sexuality Repositioned, Loraine Gelsthorpe explains the genesis of the book:
Despite the advent of new knowledge about sexuality, ... we do not routinely or habitually reflect on the interface of social and legal dimensions of sexuality. Rather, the law is periodically reviewed in response to some crisis or campaign. The idea for this book thus came from awareness that it is important to explore some of the social and moral censures and contours that shape and mark the boundaries of sexuality (p4).
The result is a heterogeneous collection of works, dealing with issues topical at a global level regardless of the fact that many contributions make specific references to the British social and legal context. Although more than one essay falls on the far ‘socio’ end of the socio-legal continuum, Gelsthorpe’s introduction suggests possible implications for law and policy of even the least legally-oriented discussions.
Jeffrey Weeks opens the collection with an introductory essay in Chapter 2. Weeks begins by drawing out the implications for contemporary thinking on sexuality of two crucial and interlocked developments in society and culture: the still ongoing sexual revolution which began in the early twentieth century, and the realisation that sexuality is socially constructed (pp19–23). These two developments, Weeks argues, have enabled our understanding of sexualities as multiple, culturally relative and hierarchically organised; as interacting with the construction of gender differences; and as organising forms of subjectivity which provide a basis for (increasingly global) political mobilisation — both by those who claim a particular sexual identity and their opponents (pp23–28). Weeks goes on to argue that in order to answer the moral and political questions relating to what sexualities should be tolerated, accepted, supported, etc we need to reach beyond the mere recognition of sexual diversity and draw on values such as those codified in human rights discourse, as well as those emerging as a result of everyday practices of intimacy (pp29–35).
The themes of Chapter 3 are largely analogous to those of Week’s contribution (but Chapter 3 also suggests a dizziness-inducing range of new directions for research on sexuality: pp48–54). Its author, Ken Plummer, draws attention to the ways of thinking about sexuality that have been made possible by the ‘emergence of new critical sexuality theories’ (p43). He also draws a connection between activists’ practices (part of Week’s ‘sexual revolution’) and the work of academics responsible for theorising sexuality as socially constructed (pp44–47). Finally, he addresses the issue of how to approach the political questions that have emerged in the wake of the recognition of the fact of sexual diversity (pp58–60). Plummer’s concern is that, in finding answers to these questions, we avoid ‘the limiting constraints’ of ‘the seeds of fundamentalism’ that underlie even relativist and critical thinking (p60). However, it is unclear if he means that we should move beyond all forms of foundational belief, or rather only beyond the core of traditionalist foundational belief which may inform even positions which on their face are not, and do not conceive of themselves as, traditionalist.
Chapter 4, by Lynne Segal, is a critique of intellectual and research agendas that reduce sexuality to biological processes. Her essay highlights how the 1960s sexual liberation movement and the sexual politics that followed it led to new understandings of sexuality and gender (pp68–69). Segal then explains how oblivious of these understandings — whereby sexuality is always culturally mediated — the increasingly popular discipline of evolutionary psychology is (pp72–77). Similarly, it is by sidelining these understandings of sexuality and insisting ‘that sex is nothing more than a medical function’ (p78) that corporate-sponsored academic research into sexual dysfunctions becomes viable, leading not only to the discovery of treatments for the dysfunction (Viagra), but also to the prior production of its very object of inquiry — the sexual dysfunctions itself (pp78–81).
In her Chapter on sexuality in workplace relations, Linda McDowell underscores the expansion of the definition of sexuality from ‘sexual acts per se to include representations, everyday interactions and social regulations as well as ideas of fantasy and desire’ (p87). After arguing that sexuality, thus intended, saturates workplace relationships, customer-worker interactions and consumer-product dynamics (pp87–94), McDowell elaborates on these ideas in greater detail. For example, she explores the different ways in which different bodies and interactions are sexualised by hegemonic discourses, resulting in marginalizing women and working-class men in, respectively, top-end and bottom-end service work (pp94–102).
In Chapter 6 Craig Lind takes recent developments in English case and statutory law on same-sex relationship recognition (pp110–115) as an opportunity to engage in a theoretical and political discussion about the pros and cons of lesbians’ and gay mens’ gaining admission to same-sex marriage and other forms of family regulation. Lind usefully clarifies and elaborates on the different positions that feminist, liberal, conservative and radical commentators have taken on the question of same-sex marriage (pp115–124). Eventually he argues that same-sex relationship recognition on a basis of equality with heterosexuals will result in disciplining same-sex desire, and in marginalising non-couple-based domestic arrangements (pp125–126). Lind concludes that, after such recognition, family law will remain inequitable, albeit less so than before; and that a substitute for same-sex sexuality will have to be found as a basis for challenging those inequities (p126).
Chapter 7, by Zoë-Jane Playdon, concentrates on the legal system (pp135–136), medical knowledge and practice (pp138–143), and education (pp143–145) as the central institutional and discursive sites in which the disempowerment of lesbians, gay men and trans people has historically occurred (pp133–134). While underscoring the specific modes that this disempowerment has taken with regard to each of the marginal sexual identities she considers, Playdon usefully elaborates on the similarities in their respective experiences of subordination.
From Chapter 8 — Martin Johnson’s critical review of contemporary investigations into human sexuality (understood narrowly as ‘that part of our behaviour ... and underlying mental processes ... concerned with the erotic’: p155) — one learns just how far biology is from establishing a genetic or biological basis to account for sexual variation. Not only do we lack valid measures of sexuality (p163, p178), but also there is no indication that genes are determinative of sexuality (p161, p169), as every influence they may have is mediated by complex environmental processes and developmental dynamics (p162, p179). Johnson’s contribution goes a long way towards challenging simplistic ‘gay gene’ claims, as well as, indirectly, the claims of evolutionary psychology that Segal directly confronts in Chapter 4.
Inter-sexuality (the discursive category through which the discipline of biology ‘reads’ hermaphroditic states) is the subject of Pak-Lee Chau and Jonathan Erring’s discussion in Chapter 9. The authors highlight both how current medical approaches favour non-intervention on healthy inter-sex babies (pp194–198) and how the law has proved reluctant to depart from a rigidly binary understanding of sex (pp198–204). They propose that the legal system abolish maleness and femaleness as legal categories and embrace the idea of a sexual continuum (pp205–207). But Chau and Erring’s essay unwittingly illustrates how resistant culture is to a genuine acceptance of the notion of a sexual continuum. In particular, language appears to fail the authors in the task of providing a non-evaluative account of the aetiology of inter-sex states (pp189–194). For example, as they explain, inter-sex states may occur when ‘normal genes are translocated to the wrong chromosome’ (p190, emphasis added).
Chapter 10 provides an overview of qualitative research into adolescent and infantile sexuality. Its author, Julie Jessop, makes the points that childhood sexuality is culturally taboo and hence under-researched (p215), and misunderstood to the extent that it is read (for example in psychoanalysis) through lenses appropriate to adult sexuality (p219). This misunderstanding, for example, leads to adult censure of children’s sensual activities, which in turn affects the mode through which these activities influence children’s future sexual development (p219). Jessop notes that research into adolescent sexuality has often followed a ‘male biased paradigm’ (p219), focusing on individual rather than relational understandings of sexual development (pp219–220). She also draws attention to recent research revealing how adolescent understandings of sexuality tend to vary across gender and class lines (pp221–223). Finally, Jessop refers to studies highlighting the limited opportunities for educating adolescents on sexuality (pp226–229).
In Chapter 11, Roger Ingham argues that a model of psychological research into young people and sexual health which focuses on power dynamics and social discourses (pp241–244) is more effective for the purpose of promoting sexual health than traditional individual-based models (pp240–241) which fail ‘to address the wider contexts that lead to conditions of vulnerability’ (p244). Ingham illustrates this point by reference to a number of studies into young people’s sexual health that, by adopting a context-oriented rather than an individual-based model, provide a clear basis for policy-making (pp244–253).
Chapter 12, by Belinda Brooks-Gordon and Andrew Bainham, is distinctly ‘legal’. It is a critique of the Sexual Offences Act 2003 (UK), on the basis of principles proper to a classically liberal conception of the criminal law. The authors are prepared to make exceptional concessions to deviations from such principles, for example as regards the requirement of mens rea in the context of rape (pp273–274). However, they argue that the specific offences the Act has introduced with regard to, for example, child-sex, prostitution, and sex in public lavatories run afoul of the principles of mental culpability (pp268–275) and/or the harm principle in indefensible ways (pp284–289). They partly account for this by discussing the context of the Act’s genesis (pp278–281), as well as the broader climate of moral panic preceding the introduction of the Act (pp261–263). While a valuable contribution, Brooks-Gordon and Bainham’s discussion might have been strengthened by a more rigorous examination of the harm principle (the authors fail to clarify what conception of harm they adopt, falling back on the generic opposition between morality and harm: p286).
Andrew Webber’s essay engages in a queer reading of three European movies about gay sexuality in prison in Chapter 13. This contribution may initially look like one of the farthest removed from the preoccupations of lawyers, but it actually raises interesting philosophical questions about law and legal regulation. These include ones about the ‘violence’ inherent in law’s universalism (intended as the generality of legal rules and of the classificatory systems they create: p313), the double bind which non-conformity confronts as a result of the demands that legal regulation makes of it (either living as an outlaw or accepting domestication and compromise: p302, p307), and the inherently compromised character of the workings of law (p313).
Michael Freeman devotes Chapter 14 to the sexual abuse of children. Freeman assesses three theories on the aetiology of abuse (abuse as a pathology, as triggered by socio-environmental factors, and as resulting from the cultural objectification of children), crediting feminist theorising for locating the main cause of sexual abuse in the ways in which male sexuality is constructed (pp321–327). He also criticises the currently preferred way of dealing with abuse, the ‘family-support’ model, on the ground that it ends up prioritising the welfare of the family over that of the child (pp327–329). Although Freeman dedicates a section to identifying what sexual abuse is (pp318–320), my impression is that, if his essay is representative of current academic discussions on sexual abuse, the category needs clarification. In particular, I was struck by the lack of congruity between accepting the plausible feminist point that male sexuality, culturally centred on domination, is the source of sexual abuse and Freeman’s apparent acceptance that all sexual activity with children is abuse. For, if adult heterosexual or gay male sex can be non-exploitative to the extent that the subjectivity of the males involved genuinely fails to conform with hegemonic versions of masculinity, referring to all adult-child sexual activities as abuse is plausible only if we counter-intuitively assume that such failure to conform is an impossibility in the context of such activities. Making this point does not necessarily rule out that there may be reasons to discourage even non-abusive adult-child sex, but it suggests that it is unhelpful to categorise all forms of erotic activities with children as abuse.
David Pearl’s doctrinal contribution in Chapter 15 also concerns the issue of sexual abuse, and more broadly that of adult misconduct harmful to children. The Department of Education maintains two lists of people prevented from working with children in either education or social work. When one’s name is entered in the list, there is a right to appeal before the Care Standards Tribunal, which makes a decision based on whether the person was guilty of misconduct and, if so, whether she is unsuitable to work with children (pp339–340). Pearl discusses the standard of proof applicable in these cases (pp343–344).
The next Chapter, by Kerry Petersen, is the only one that deals with Australian law. Petersen argues that the current system of regulation of adolescent consensual sexual activity (based on the prohibition of penetrative sex below the age of consent, tempered by the operation of certain defences: pp358–363) is out of step with the realities of adolescent sexual life (pp366–367). Although Petersen argues that delaying sexual activity is in the interest of adolescents (p367), she points out that educational measures are appropriate to encourage such delay (pp368–369). Petersen puts forward an original proposal that the principles governing consent to medical treatment (whereby sufficiently mature children are attributed with decisional autonomy: p354, p357) and refusal of treatment (whereby even mature minors’ autonomy is restricted in cases of serious danger: pp355–356) could be usefully extended respectively to adolescent consensual sex (p364, p370) and less than fully consensual sex not amounting to rape or assault (p353, p370).
Joanna Phoenix’s essay in Chapter 17 is an insightful critique of policies constituting youth prostitution as a problem of child abuse (pp374–375). Phoenix argues that this move obscures the structural conditions that make entering prostitution conceivable and even attractive for young people (p375), that it increases stigma against and punishment of young people perceived to voluntarily enter prostitution (pp376, 385), and that it leads to inappropriately dealing with youth prostitution by transferring to it measures devised in the different context of children abused within families (pp381–382). Phoenix also locates this move within a broader trend towards increasing both young people’s dependency on families and their blameworthiness for non law-abiding behaviour (pp387–391).
The final chapter, by Belinda Brooks-Gordon, Charlotte Bilby and Tracey Kenworththy, is a systematic review of research into sexual offender psychological treatment programs (pp401–411), partly with a view to informing policy-making (pp396–399, p416). The authors conclude that the effectiveness of such programs remains contested (pp411–412, p414) but that the studies provide insight into facilitators and barriers to treatment (pp412–413).
While the contributions to Sexuality Repositioned tend to be of a high standard and thought provoking, the collection as a whole struck me as not hanging so well together as previous books by the Cambridge Socio-Legal Group (ie What is a Parent? and Children and Their Families: Contact, Rights and Welfare). But ‘sexuality’, as many of the Chapters remind us, is such a polysemic category, that arguably the book’s title does nothing to justify in the reader an expectation of thematic unity (other than in a lose sense) among the different essays.
Lecturer in Law, Macquarie University