Legal Rites: Abjection and the Criminal Regulation of Consensual Sex
York University - Osgoode Hall Law School
Saskatchewan Law Review, Vol. 63, pp. 119-144, 2000
The application of criminal law to consensual sex is an arena of conflict and contest between conservative and liberal forces in the United States, with occasional feminist interventions. The same arguments tend to recur on each side of the debate. Conservatives assert the appropriateness and necessity of enforcing a particular Judeo-Christian sexual morality through law. Liberals argue for tolerance of private consensual sexual conduct. When the debate shifts from the private to the public arena, conservatives may argue privacy principles, asserting the right of bystanders to be let alone, whereas liberals may shift to freedom of expression arguments. In this paper, I am seeking to find a new way of understanding the criminal regulation of consensual sex that transcends this conservative-liberal debate. In tracking the debate through courts, legislatures, and academic literature, I noted frequent references to disgust or revulsion. These were not incidental, throwaway references. An examination of the theory behind the opposing arguments reveals that disgust plays a central role in determining for each camp which consensual sexual practices should or should not be regulated through criminal law. Disgust is deployed by conservatives to argue for prohibition of various consensual sexual practices. On the other side, one might expect liberals to keep their disgust under wraps in the interest of pluralistic tolerance. This proves not to be the case. Liberals do argue that the generation of disgust by any given practice is not a sufficient basis for criminalizing consensual conduct, but nevertheless frequently invoke disgust to justify confining such conduct to the private realm. Drawing upon literary and psychoanalytic theory, the above references can be characterized as abjection responses and linked to anxiety about the maintenance of boundaries between a variety of cherished classifications, such as human/animal, male/female, adult/child, and citizen/foreigner, the existence of which impose a semblance of order and hierarchy in society. Making this link helps to explain why many are so strongly invested in regulating the private and consensual conduct of others.
Number of Pages in PDF File: 26
Keywords: Criminal Law, Sexual Regulation, Consent, Privacy, Freedom of Expression, Abjection, Disgust, Psychoanalytic Theory, Law and Literature
Date posted: April 11, 2010 ; Last revised: May 20, 2010