Balkinization  

Thursday, January 10, 2013

Sex Panics/Sexual Justice

Guest Blogger

Katherine Franke



The majority of voters in November’s election voted in favor for two kinds of decency: one a fiscal decency by asking the well-off to shoulder a larger proportion of the tax burden, and the other a kind of sexual decency by sanctioning the rights of same-sex couples to the blessings and benefits of civil marriage.

            But a politics of decency can be tricky business.  Just as the lame-duck Congress debated how we might avoid the self-imposed danger of the looming “fiscal cliff,” another kind of danger has emerged on the front pages of our daily papers.  The illustrious career of CIA Director and retired four-star Army General David Petraeus’ dissolved in disgrace when it was revealed that he had had an “extra-marital” affair. Many found it deeply troubling that Petraeus’ career ended in humiliation on account of adultery, not the alleged war crimes and crimes against humanity committed by the U.S. government in the Petraeus-led military campaigns in Afghanistan and Iraq, or the expansion of the CIA’s Predator drone fleet. The Center for Constitutional Rights and the ACLU have filed a lawsuit charging senior CIA and military officials, including Petraeus, with violating the Constitution and international law when they authorized and directed drone strikes that resulted in these deaths as part of a broader practice of extrajudicial “targeted killing” by the United States.  But adultery, not these global acts of illegal violence and murder, pushed General Petraeus out of public service.

            Then comes Elmo.  Kevin Clash, the puppeteer behind the beloved Sesame Workshop character, resigned from the job he had held for 28 years after allegations emerged that he had had sex with 15 and 16 year old boys.  It is likely that Clash stepped down in response to pressure from Sesame Workshop; it felt that it could no longer tolerate the association of its corporate brand with sexuality, particularly homosexuality, illegal or otherwise.

            In important respects Petraeus and Clash are the most recent objects of what some call a “sex panic.”  Both of these cases illustrate something important and very troubling about how sex and sex panics continue to be effective means to distract the public from other threats to security, while providing the justification for greater modes of surveillance and weaker protections for civil liberties and freedoms.

            The General may be gone from public service, but the policies he crafted remain.  Not for a second did the attention that swirled around Petraeus’ resignation take up the legacy of state-sponsored violence characterized by his tenure in the military and at the helm of the CIA.  Rather, personal hubris, sexual and otherwise, was his supposed crime.  It was adultery that brought down Petraeus in late 2012, but until recently gay men and lesbians were vulnerable to this kind of shaming from public office on the theory that illegal and scandalous behavior could render you susceptible to blackmail, thus jeopardizing national security.  What a moment this is that on the heels of having won enormous victories in electing openly gay candidates for national office such as Tammy Baldwin and securing marriage rights for same sex couples in four more states, marriage remains an institution whose mores, morals, and social standing can bring down someone as powerful as David Petraeus when he violates them.  It seems that we live in a time when it’s safer to be gay than to be an adulterer.

            The controversy around the Elmo sex scandal pushes the point even further: it’s safer to be gay than an adulterer so long as “being gay” means being a respectable husband or wife. When the sex part of homosexuality threatens to break out into the open or break away from the domestic family you’ll find you’re out there on your own, vilified for having acted indecently.  We don’t know yet whether the young men Clash is accused of having sex with were underage at the time they began a sexual relationship with him, the legal process will get to the bottom it.  But I am confident that Clash would have been driven out of his role as Elmo even if all that was proven was that he liked sex with men whom he found on the internet who were thirty years younger than he was.   This kind of “sexual preference” might not be illegal but it would likely have triggered a sex panic nonetheless.  In an ironic sort of way, sex and sexuality have been collateral victims of recent advances in the rights of gay people to the extent that their claims have been framed as a right to family, not a right to sexual freedom.  Whether by design or by accident, some of the advocates of marriage equality who have defended and celebrated the sanctity, dignity and special-ness of marriage have fortified the rather conservative notion that sex outside of marriage (whether it be adultery or hook ups with people you find out the internet) is somehow indecent and worthy of reproach.

            Thomas Friedman famously observed that “9/11 made us stupid” – well, sex, it seems, makes us even stupider.  At precisely the moment when gay people’s right to marry seems to be reaching a positive tipping point, sexuality is being driven back into the closet as something shameful and incompatible with honor (in the case of Petraeus) or decency (as in the case of Clash).   How did we get to this curious place, a place with a politics that would be almost unimaginable to the sexual freedom fighters of Stonewall?  Once here, should lesbian and gay-rights activists see their cause to include questioning the ongoing utility of sexual panics?  Who, if not us, will come to sex’s defense each time, in the name of decency and security, it is used as a cudgel to justify public and private forms of vigilantism?

Katherine Franke is Isidor and Seville Sulzbacher Professor of Law and Director, Center for Gender & Sexuality Law at Columbia Law School  You can reach her by email at  kfranke at law.columbia.edu


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