Sexuality and the State


This topic shares many of the same concerns as the discussion on violence, including a view that there are going to be no easy solutions to the main question -- how and whether the State should intervene to regulate this kind of behaviour. The topic of sexuality raises some specific problems, however. Sexual activity seems to be a peculiarly private matter, and it might be difficult to justify State intervention of any kind at all -- in what sense can sexual activity lead to social harm, for example? On the other hand, some people think there is an easy solution to this question after all, since  'Nature' seems to give us a clue -- any sexual behaviour that is natural and normal should be left to flourish, while the State has the right to regulate any sexual behaviour that is unnatural, perverted, or deviant. Let us approach these specifics in turn. 

Sex and Politics

It can be argued that sexuality is far more than just a private matter negotiated between consenting adults. Indeed, it is a public matter, and it raises wider issues of the greatest importance. We can see this argued best by starting with the work of Foucault. 

Foucault's work on the history of sexuality (Foucault 1985) (and see Morris's article on Foucault in Brake (1982)) makes the observation that there is a great deal of public discussion of sexuality these days. It is not that we are more liberated and able to express our views, however. This amount of public talk simply shows how important sexuality is as a political topic, in the broadest sense. This is so because sexuality serves as a common theme to introduce all sorts of other important topics -- the social control of children, relationships between adults, family life, population growth, health, and, of course, leisure and recreation. We can see these links when there is a big public outcry about sexual behaviour (as there frequently is)-- we get close to the notion of a  'moral panic' here, to use the Marxist term -- the ways in which themes of public or social concern get articulated together. 

There is another way in which we can get to see the public importance of sexuality. They have been a number of political movements in recent years stressing the right to particular sexual identities -- Gay Liberation, for example. Sexual identity here becomes an important source or core identity, affecting all sorts of other issues such as equality of opportunity in job markets, the right to get married or adopt children and so on. For those involved, sexuality, and notions of normal and deviant sexuality in particular, lies at the very heart of public life. You only need to think back to the work of JS Mill on the State to realise how important it is to discuss the relations between majorities and minorities in political terms, and sexual politics, above all feminism, has revitalised this whole discussion in recent years. 

Finally, of course, there is the strange capacity of exposure of sexual preferences to affect political careers, especially in the USA. President Clinton's predilections were the stuff of open debate about his reliability and honesty, and, for some commentators, sufficient grounds for his impeachment. Here in the UK, there have been persistent rumours that the private sexual lives of politicians, and fear that they might be publicly exposed, have affected their willingness to assume high office. In some ways, sexual behaviour is still seen as the key to personal character and to political credibility. 

Sexual Behaviour -- Natural or Social?

This is a theme that runs throughout some of the political discussions listed above -- sexual preferences and behaviour are seen as the key to a person's whole  'nature'. Similarly, attitudes towards the acceptance of the rights of sexual minorities are often affected by whether one sees these activities as 'natural' or  'unnatural'. Sexual activists of various kinds seem to disagree among themselves, of course, on this matter -- some want to justify their activities on the grounds that they have not chosen them but that they reflect their  'nature'. Others begin their political actions by denying that heterosexual activity between consenting adults is  'natural', while other forms are 'unnatural'. 

Plummer's account, also in Brake (1982), begins by denying that there is anything natural about human sexuality. For him, the defining characteristic of human sexuality is that it is steeped in cultural matters -- it involves the emotions, sentiments, memory and fantasy. He argues this point in a particularly spectacular manner. For Plummer, any activity can be sexualised, and, for that matter, any activity can be de-sexualised. To take one of his own examples, a young man looking at a football match on television might be seen to be engaged in anything but sexual activity, but, Plummer points out, that young man might be fantasising about having sex with the players. To take the opposite example, a photograph of a man touching a naked woman on a couch might be recording a sexual act, or it might be recording a medical examination. I am reminded here of some work on the medical examination, or some involving nudism, which shows how the participants try very hard, and generally very effectively, to ignore and manage the obvious sexual possibilities of their encounters. Sexuality is therefore a particularly flexible kind of  'script', and there is no objective definition available irrespective of the meanings which the participants attach to their action (sociologists might recognise this as a classic example of  'interactionism', of course, and Plummer has a general interest in symbolic interactionism -- and has written on labelling theory, for example -- I have a file of his on my CD). 

Plummer uses this analysis to denaturalise heterosexual activity, and thus to open the path to the liberation of other sexual minorities. Heterosexuals have always used arguments from nature to justify their position, but they are dominant simply because they have been able to mobilise power to represent, their tastes as natural and normal -- we're on familiar territory here, of course, and we have seen this argument made before. Of course, there are difficulties here too -- is any kind of sexual fantasy or behaviour acceptable? Are there no common or agreed standards in this area? Moral nihilism beckons, and we risk the company of an undesirable set of fellow-travellers (like rapists who argue that the protests of their victims should really be 'read' as signs of enjoyment, or, at least, that is how they interpreted them).

I want to use work like this to make another point, though. Again this is one I have made before: if it is true, that sexuality always involves subjective meanings, how could it be possible for the State to decide which ones to regulate? Of course, some sexual activities at the margins might present obvious cases for regulation -- sadistic sexual murders, for example, or the sexual exploitation of vulnerable people who might be considered to be incapable of informed consent. But that still leaves a very large range of sexual activities in between. The case studies we consider below offer some good examples of the tremendous ambiguity in this area. 

Before we get to them, however, we might consider how this inherent ambiguity has been exploited by various commercial interests in order to get past the various codes and regulations imposed by the State. In recent years, for example, we have seen in Britain the emergence of what might be called the  'sex documentary'. Indeed, in the last year this has been almost daily fare on British television -- documentaries about sex workers, sexual minorities, publishers of sexual material, painters of sexually explicit work and so on. You do not have to be a Freudian to see that part of the pleasure offered to the viewing audience turns on being presented with sexually stimulating material in the guise of a 'serious' documentary treatment. These programmes restored the audience for the less popular channels such as BBC2 and Channel 4. The sex-education or health-education video is another example of a deeply ambiguous genre. 

Even the recent Starr Report offered some classic ambiguities for the reader: ostensibly, it offered a cool legal account of the sexual indiscretions of President Clinton, but it presented these indiscretions in such detail that it was almost impossible to avoid suspicion that a much more vulgar purpose was being served by making this document widely available on the Internet. On a possibly lighter note, there are a number of anecdotes about the unintended consequences of Net censorship software: some designed to obstruct the downloading of material with offending words managed to black out the wholly innocuous website of the English town of Scunthorpe, while others designed to block the downloading of images with large areas of pink managed to keep Mr Blobby (a once-popular British children's entertainer, dressed in a large pink suit) off the air. 

There are some quite amusing examples of well-meaning censors attempting to draw up definitive lists of offensive material. One in operation at the BBC in the 1950s had a list of taboo items and terms, including jokes -- these apparently included jokes about  'winter draws/drawers on', for example. Such lists simply reveal the petty and Pooterish world of those who make them, of course, as well as a certain megalomania -- how on earth can anyone possibly legislate finally on matters like this? Serious pornographers manage to evade these crude attempts pretty easily anyway, often simply by using the old device of thinking of yet another euphemism for sexual activity -- in one spectacular and unpleasant example, child pornography was apparently redesignated as  'family' material. In another, a female student of mine had an astonishing capacity to find a sexual innuendo in almost anything, and would amuse herself ( and me) by responding to the most innocent remarks as if they were positively lewd -- 'Oh, you are inviting me to "tea", are you?' or 'You want to look at my "file"?' or 'Oh yes, I am a "fresher" all right' and so on. Of course, the widespread use of the Net makes effective censorship almost impossible anyway. 


There have been a number of recent examples which place the central issue of ambiguity in the spotlight: 

(a) A year or two ago, police from a vice squad raided a university library  (the University of Central England) and took away a certain material that they thought might contravene the Obscene Publications Act. The material in question was a collection of photographs by the controversial artist Robert Mapplethorpe: these featured male nudity, often with explicitly homosexual erotic undertones. The highly respectable Vice-Chancellor, no less, was warned that he might face prosecution as a result (which I must confess was mildly enjoyable). A small campaign got underway to defend the rights of universities to hold such material: universities in particular, it was argued, might be one of those important minorities whose rights were to be particularly defended even against majority opinion. Given that all those with access to the university library (including the general public, in theory) were likely to be above the age of majority, it was difficult to see who might be harmed by coming across these photographs. Another argument reminded us that Mapplethorpe's collection had been on display in the Hayward Gallery in London for some months, without attracting any police attention -- was the public in Birmingham more vulnerable in some way than the public in London?. Eventually, the police decided not to prosecute in this case, probably because they realised that they would never get a conviction. To take the view of the police, for a moment, they are placed in a very difficult position by the Obscene Publications Act, which does not attempt to define obscenity in any objective way, but merely invites the police and juries to decide if the material is likely to 'deprave and corrupt' -- how on earth is a working policeman to know in advance? It is not surprising that policemen tend to reinterpret that provision in terms of whether or not they are likely to get a conviction from a jury, as a more practical and immediate test. 

(b)  The 'Spanner Case' became a major cause of concern and campaigning. A number of sado-masochistic male homosexuals, all consenting adults, had decided to engage in an number of acts in private, which included genital mutilation, and, allegedly, the nailing of a penis to a board. They had decided to record their pleasure by making a video, which was not intended for public consumption, or so everyone agreed. The police arrested the participants, and seized the video. The men involved were charged with aggravated assault, even though everyone accepted that all the parties had given their consent. A campaign was then launched to protect the rights of individuals to do whatever they wanted to each other as long as there was consent, and as long as the acts took place in private. A number of courts in Britain, and, eventually, even the European Court of Human Rights upheld the conviction, however (although subsequent European human rights legislation makes future prosecutions  unlikely). Protesters, including some who launched a vigorous campaign on the Net, argued that the State had no right to intervene, principally because no social harm had been caused. The prosecution case seemed to turn on the argument that tolerating behaviour like this might well lead to social harm in the future, although, as I recall, there was also an argument that the people involved had actually been harmed despite having given their consent -- they had been corrupted in some way, and had to be punished and discouraged for their own future good. Where would this lead though -- to the prosecution of middle-aged women for reading light romances on the grounds that it might produce a harmful sentimentalism? To the prosecution of elderly men attending an opera, on the grounds that all that excitement was not good for them?

It is hard to resist the thought that the police and magistrates involved were simply led by their own personal tastes and dislikes, or that they were operating with an implicit view that the sexual activity in question was particularly 'unnatural' and thus obviously  'deviant'. I gather that views like these are often used to guide the difficult matter of deciding whether to prosecute in cases involving the consumption of pornography on the Net. Reportedly, it is unlikely that many British citizens will be prosecuted for downloading heterosexual consensual pornography, of the conventional kind some liberationists call 'vanilla', although they may be committing the technical offence of publishing such pornography. However, certain categories of pornography are likely to attract a swift official response, if detected -- child pornography, for example, excessively violent behaviour, or other kinds of non-consensual sexual activity. There are inevitably grey areas here too -- fetishism, for example. It is difficult to see any other way in which this nebulous area might actually be policed, however, although this is of course the libertarian argument -- human sexual activity cannot be policed, and therefore it should not be. The Australian State of Victoria takes this view, I recall -- pornography is not illegal, and can be bought in specially licensed shops, but there is a strong cultural campaign to discourage it nevertheless, largely on the grounds of appealing to consumers not to waste their money on 'one-handed literature'.

(c)  Periodically, cases arise closer to home, in the form of codes of conduct to regulate the relations between lecturers and students. Some universities feel that any form of sexual relations must involve abuse, even though the adults concerned might give their full consent. There is also an argument that somehow the social fabric of the university might be damaged by such relationships -- the necessary relation of trust might be threatened, or the normal educational relationships in seminars be disrupted by sexual tensions or jealousies. Such consequences would be the  'social harm' that would justify regulation. However, there are clearly difficulties here too. For example, many sexual relationships might be seen to be exploitative, or involve an abuse of power, certainly any such relationship that involved seduction. Conversely, if we take Plummer's view of the astonishing sexual capacities of human beings, we might get a picture of seeing sexual tensions and jealousies running beneath the most impeccably abstract university seminar, whatever the code of conduct. Finally, I suppose it might be possible to argue that the sexual rights of lecturers and students are being restricted because of the supposed harmful consequences of a few encounters. Whatever the difficulties, I know of at least one case where a colleague was dismissed because he was deemed to have broken some implicit code of sexual conduct by attempting to date a mature student. It is also interesting to note that one of the solutions there seems to involve the megalomaniac option discussed above -- to attempt to list acceptable and unacceptable behaviours: one can easily imagine such a list running to many pages, and even then barely covering the more obvious kinds of sexual conduct. Perhaps it might be necessary, if the pressure on us is renewed, to get students to periodically sign forms of consent, as became fashionable once as an attempt to regulate dating -- perhaps I should interrupt this narrative periodically to get you to submit a form agreeing to my use of dubious examples or of controversial words before proceeding? Apart from anything else, such regulations run a serious risk of drawing attention to the very behaviour that might need to be controlled .

(c) In 2003 the UK Government attempted to clarify the legal definitions of certain sexual offences. The main provision of the new Sexual Offences Bill, apparently is to redefine rape ( and possibly other non-consensual sexual crimes) so as to take away some of  the need for victims to 'prove' the offences took place without consent (always quite difficult, often involving an ordeal for the victims having to testify, and probably one the of the main reasons for the decline in convictions for rape in recent years). There is some controversy about the provisions, which now require more robust evidence from defendants that they took reasonable steps to ensure consent (which some people see as reversing the usual requirement for the prosecution to prove its case).

However, other acts have also been made into specific sexual offences under the Bill too, and this has attracted much ridicule in the press. For example,  Carol Sarler (Observer 2 February 2003) notes that having sex in public places is now an offence. In their desire for clarification, the Government includes the proviso that 'someone who "knows or is reckless about whether they can be seen having sex is guilty of an offence"' ( Sarler), and go on to give the example of a couple having sex in their garden which can be seen from the street. A jail term awaits the convicted. Sarler is right to point out that this is still highly ambiguous though --what if the couple can be seen only by someone using binoculars, or what if they are only partially obscured by a convenient bush? Other commentators have pointed out that sex inside one's house is not to be made an offence, even if you do it with the windows and doors open so that passers-by can see. Gay sex in public toilets is still OK as long as cubicle doors are closed --'but you can place best now for an amendment regarding soiudn effects' (Sarler).

The whole thing seems to be heading towards ridicule, but there are serious issues of liberty involved too. The Government seems determined to criminalise sexual acts that were seen as merely personal before. These include bestiality and necrophilia, incest (now extended to include 'foster and adopted parents and live-in partners' (Sarler)) and voyeurism. Sarler sees no need for these extensions of the law into the personal sphere and says that 'Only a State that likes locking up people would dream up even more sexual offences'.


Brake M ( ed) (1982) Human Sexual Relations: a reader, Harmondsworth: Penguin
Foucault M (1984) The Use of Pleasure: the history of sexuality, vol 2, London: Random House

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