47 Pages Posted: 11 Nov 2009 Last revised: 21 Jul 2010
Date Written: November 9, 2009
This Paper is based on a presentation at the Michigan Journal of Gender and Law as part of their symposium “Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory.” In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern olygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a private, intimate relationship. The tensions between individual autonomy and state interests are beautifully explored in Big Love. Drawing on themes presented in the series, this Paper asks if there is any principled way to make the distinction between those relationships in which there is some physical or psychological harm inflicted and those in which the state has proscribed a relationship because of some moral or social harm it allegedly causes.
Four case studies are presented to prompt readers to try to answer the question of when consent should be a defense to otherwise proscribed activity. I conclude that the future of feminist legal theory depends on its ability to remain ambivalent about the tensions presented in the consent doctrine as applied to contexts such as polygamy, prostitution, sadomasochistic sex, obscenity, and domestic violence. Big Love seeks to persuade us to accept ambivalence and to be open to changing our minds because of the complicated nature of women’s (and men’s) lives; feminist legal theory ought to persuade us to do the same.
Anyone who wants to understand the present and future of feminist legal theory ought to watch the HBO series Big Love. (Warning: viewers may find the show highly addictive.) Big Love is about a modern polygamist family in Utah. The patriarch is a man named Bill Henrickson who was raised on a polygamist compound, got expelled as a teen when he became a sexual threat to the older males, and found his way to a monogamous world. He marries his first love, Barb, has three children, and is a successful business person. But when Barb gets cancer and can no longer have children, he decides to “live by the principle” and begins taking other wives. Barb is beautiful and educated and otherwise completely sane but for the fact that she agrees, however reluctantly, to the family’s ever-expanding footprint. As the series ended its fourth season, Bill had three wives and eight children, all of whom live in three houses in a modern suburban development. Bill briefly had a fourth wife, but she left when she couldn’t handle the complicated family dynamics. She is also now pregnant with Bill’s child, and she and her foreign fiancé have returned to the Henrickson homestead as they try to game the immigration system. Indeed, Stanley Fish has dubbed the Henrickson family “the new ‘Waltons’” for its nostalgic portrayal of multigenerational, large families.
The show highlights that to the extent that Barb and the other wives consent to polygamy, they do so in a world in which their choices are inevitably constrained by material needs and their own spiritual beliefs, and, most profoundly for Barb, by her love for Bill. Big Love reminds us of a nearly universal desire to be in a relationship, which then often leads us to accept situations we never anticipated or wanted.
Yet, Big Love’s polygamy is not obviously exploitative. It is fairly democratic, with the “sister-wives” having a voice in both how the family functions and who gets to join. True, each new “sister-wife” is younger (and hotter) than the last one, but there are no child-brides being forced into sexual servitude. Indeed, it is often the wives who run the show, and usually run Bill, who often seems powerless relative to their collective force. These are adult women who make their own decisions, and despite the expected jealousy and power struggles, the “sister-wives” share a special and affirming bond. (My best friend once commented that Big Love makes polygamy look pretty attractive. There are more hands on-deck to take care of the kids, you only have to give your husband limited attention, and when you sit around and complain to your friends about him, it is the same guy, so everyone can empathize).
This post-Sex-in-the-City-meets-Desperate-Housewives polygamy stands in sharp contrast to polygamy on the religious compound where Bill grew up and where his parents and brother still live. Bill’s father-inlaw, via his second wife Nicki, is Roman Grant, the compound’s leader.
The state unsuccessfully prosecuted Grant for forcing young girls to sexually submit to husbands they did not choose. This sexually exploitive polygamy robs young girls of any autonomy and freedom before they even reach the age of legal consent. Thus, we are left to decide whether there is truly a way for us (the viewers and the state) to distinguish between a kind of “sister-wifehood-is-powerful” polygamy practiced by the Henrickson family and the kind of grotesquely “patriarchal and oppressive polygamy” that exploits girls and women, as well as outcasts many boys, practiced on the compound.
One of the central tensions in Big Love is the question of consent and its relationship to the law. The Henrickson family is always concerned that their private polygamy will become public and that they will lose everything. They are not just worried about public condemnation but also about the state raiding their cul-de-sac and taking away their children. Bill could be prosecuted under Utah’s bigamy law for living with three women as husband and wife. At the end of the fourth season, the family decides to go public with their polygamy at Bill’s insistence after he wins a seat in the Utah State Senate, and viewers are left anxiously wondering whether Bill’s decision to go public will liberate or condemn the family.
Of particular concern for the wives is their economic vulnerability. Only Barb, the first wife, enjoys the legal protections and the benefits of a public marriage. Therefore, as the show makes clear, even though all the adults consent and the children are unharmed, the state’s refusal to recognize plural marriage leaves the other two wives and their children economically vulnerable were those marriages to end or Bill were to be out of the picture. That is why Bill assures third wife Margene’s mother that his lawyer has drawn a will that ensures that upon his death Margene and her three children will receive a portion of his estate. Nevertheless, each of the wives consciously struggles to maintain her own financial independence: Barb manages the family’s casino; Nicki runs up credit card debt and struggles with a gambling addiction; and Margene starts her own successful jewelry business. While Bill is consumed with living in the light and taking a stand against those who condemn the Principle, the wives are worried about how they will feed the children if public exposure ruins the family businesses.
Although the show is complicated and sometimes ventures too far into the land of the unbelievable, its basic premise is both simple and profound. Big Love asks us to ponder whether Barb and her sister-wives have a right to make their own choices, however bad or degrading or sad those choices might be to viewers, and what the role of the state should be in either recognizing or condemning those choices. At the end of each episode, viewers are left feeling completely ambivalent about these dilemmas, which is why this show is a perfect lens through which to contemplate feminist legal theory.
Keywords: domestic violence, obscenity, polygamy, prostitution, sadomasochism, consent, feminism, legal theory
Suggested Citation: Suggested Citation
Hanna, Cheryl, Rethinking Consent in a 'Big Love' Way (November 9, 2009). Michigan Journal of Gender & Law, Forthcoming; Vermont Law School Research Paper No. 10-20. Available at SSRN: https://ssrn.com/abstract=1502760 or http://dx.doi.org/10.2139/ssrn.1502760