Toward a 'Culturally Cliterate' Family Law?

Abstract

Sexual desire and sexual activity long have played central roles in family law, rationalizing its rules, informing its policies, and animating any number of calls for reform. Since the 1970s, gender equality has also become a salient value in family law - purporting to correct legally imposed double standards of the past. Yet, despite the conceptual centrality of sexual desire and sexual activity, family law says nothing explicit about sexual pleasure. And despite the salience of gender equality in contemporary family law, the field remains preoccupied with performances that produce heterosexual men's orgasms while ignoring or rejecting women's interest in orgasmic pleasure. As a result, family law today is marked by fundamental omissions and inconsistencies.

This paper attempts to begin to fill the gap and to explore the incongruities. It builds on Susan E. Stiritz's Cultural Cliteracy: Exposing the Contexts of Women's Not Coming (published as a companion piece) and examines the relevance of Stiritz's analysis for family law. According to Stiritz, "'[c]ultural cliteracy' denotes what an adequately educated person should know about the clitoris, which is that it is a culturally despised body part because it is an obdurate reminder of women's independence and power and supports women's liberation." Stiritz tracks the role of the clitoris and women's sexual pleasure through history, compares past and contemporary anatomical understandings of the clitoris, and then demonstrates through empirical studies, based on courses she has taught, how cultural cliteracy can empower women and bring new insights to the reading of women's texts. She calls for the integration of "adequate understandings of the clitoris" into a variety of different discourses, including law.

In response, this paper focuses on family law as a promising site for integrating cultural cliteracy into legal discourse. Part I introduces the project and its challenges. Part II explores the central role of sex in family law, with emphasis on how family law seeks to channel sexual desire into monogamous marriage and how this effort to manage sexual activity plays out, given the pervasive silence about women's sexual pleasure. This analysis, in turn, exposes significant inconsistencies, challenging the coherence of family law’s own stated policies, including its simultaneous preference for monogamous marriage, acceptance of no-fault divorce, and commitment to gender equality. Part III turns to contrasting ways to make family law more culturally cliterate, specifically, allowing individuals to learn what they can from popular culture versus undertaking affirmative government efforts to promote such knowledge, through educational programs. Part III next looks beyond educational programs to suggest how respect for women's sexual pleasure might prompt rethinking several specific aspects of family law, including divorce grounds; civil actions for sexual harm; and the legal treatment of various supports, interventions, and protections that facilitate sexual pleasure, from sex toys to reproductive autonomy. Part IV concludes with a deeper look at the prospect of a culturally cliterate family law, including the fundamental paradoxes that it might pose.

Keywords: clitoris, sexual pleasure, women, orgasm, marriage, channeling, monogamy, family law, gender equality, feminist theory, sex education, divorce, torts, sex toys, reproductive autonomy, contraception, abortion