Punishing sexual fantasy.

Author:Gilden, Andrew
Position::P. 419-460
 
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Abstract

The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a "dark fetish" fantasy website. In each of these cases, online sexual exploration and fantasy easily convert into damning evidence admissible in court.

This Article reveals a widespread and overlooked pattern of harshly punishing individuals for exploring their sexual fantasies on the Internet. It shows, for the first time, that judges and juries have repeatedly conflated sexual fantasy with harmful criminal conduct, have largely been dismissive of fantasy-based defenses, and have relaxed evidentiary standards to prejudice individuals whose desires provoke disapproval or disgust. Even as celebrated decisions by the United States Supreme Court provide broader constitutional protection to sexual minorities, this Article shows that actual venues for exploring sexuality remain on the social and legal margins. Drawing from recent criminal law, family law, and First Amendment cases, this Article shows that courts have struggled to adapt free speech, privacy, and due process principles to the uncomfortable realities of the digital environment.

Table of Contents Introduction I. Sexual Identity: Situated, Evolving, and Performative II. Cyberlaw and Sexual Fantasy A. Family Law B. Sexting and Child Pornography C. Criminal Law, Internet Stings, and Social Media Surveillance III. Troubles with Punishing Sexual Fantasy A. Free Speech and First Amendment Protections for Fantasy B. Social Science and Sexual Fantasy C. Distorting the Data.. Concluding Thoughts and the Path Forward Introduction

The contemporary legal treatment of sexuality contains an overlooked paradox. By most accounts, over the past two decades the law has embraced a broader range of sexual identities and practices. In Obergefell v. Hodges, Justice Kennedy proclaimed that the Constitution protects the liberties of all persons "to define and express their identity." (1) At the same time, however, the law remains deeply uncomfortable with, and often outright hostile to, situations in which people actually explore and express their sexual identities and desires. A divorcing mother loses custody of her children for having sexual conversations with an ex-boyfriend. (2) A teenage lesbian couple is prosecuted for child pornography crimes after sharing nude photos. (3) A police officer is convicted for a kidnapping conspiracy based entirely on conversations via a "dark fetish" role-playing website. (4)

Sexual identity may indeed be protected in a fully blossomed, clearly articulated form--at the point where two people are ready to get married or otherwise pursue a "personal bond that is more enduring." (5) Nonetheless, the actual process of coming to terms with one's sexual identity often entails extensive fantasizing, experimentation, education, and social interaction. (6) And these processes are often far less romantic, much less "dignified," and far less "PG" than envisioned by the evolving legal narratives of sexuality. (7) When confronted with day-to-day explorations of sexual fantasy--for example, sexually explicit stories and conversations, adult social media profiles, and pornographic images--judges, prosecutors, law enforcement, and policymakers frequently devalue or punish what are, for better or worse, formative components of sexual identity. (8)

This tension between protected sexual identity and marginalized sexual fantasy has become particularly acute in the digital context. The Internet and social media are frequently credited with bringing needed visibility to sexual inequalities (9) and helping LGBT people understand and come to terms with their identities. (10) At the same time, the dominant legal narrative surrounding the intersection of Internet and sexuality has focused not on these new opportunities for self-definition but instead on the dangers of the sexual Internet: predators, cyberbullies, sexting, and revenge porn. (11) In the wake of panics surrounding Internet pornography, online sexual predators, and cyberbullying, a large body of laws has emerged to stamp out nearly all avenues for Internet-mediated sexual harms and to severely punish individuals who pursue taboo sexual fantasies. (12) Often missing from these debates, however, is any acknowledgement of the potential value of exploring sexual desires or the chilling effect of harshly policing and punishing sexual fantasies. (13)

This Article reveals a widespread and overlooked pattern of harshly punishing individuals for exploring their sexual fantasies on the Internet. It shows that judges and juries in several areas of the law repeatedly conflate sexual fantasy with sexual abuse, have largely been dismissive of both the merits and value of fantasy-based defenses, and have relaxed evidentiary standards in ways that particularly prejudice individuals whose desires likely provoke disapproval or disgust. Moreover, even though crime data consistently show that fears of Internet "stranger danger" are commonly overstated, (14) this Article shows that law enforcement frequently identify potential sex offenders by enacting Internet users' taboo fantasies through extensive, explicit conversations. These practices may be motivated by the worthy desire to protect women and children from sexual abuse, but they nevertheless fail to appreciate the potential impact on free speech, privacy, due process, and the ability to define and express one's constitutionally protected identity.

The Internet undeniably poses risks for vulnerable populations, (15) and, as a result, it may be difficult for the law to see anything but the harm in sexually explicit conversations and content. For instance, it may be extremely difficult for a judge or jury to read a defendant's extensive chatroom conversations about bondage, sexual assault, sadomasochism, incest, or underage sex without concluding that he or she poses a real danger or actually intends to engage in violent, nonconsensual, or otherwise illegal sexual conduct. (16) The Internet provides unprecedented opportunities to indulge in nearly all forms of sexual fantasy, and its relative anonymity can disinhibit discussions about even the most taboo topics. (17) As a result, the transcript of a conversation on a fetish website might go into specific, painstaking detail about an elaborate kidnapping and cannibalism plot, and in the courtroom this transcript might look--without context--comparable to a wiretapped conversation about drug or weapons trafficking. (18) When confronted with such evidence, judges and juries often are highly skeptical and dismissive of arguments that these conversations are ultimately all fantasy. (19)

Nonetheless, there is an important distinction between sexual fantasy and harmful sexual conduct. (20) In many contexts, extensive discussions of taboo sexual topics are celebrated by popular culture and squarely protected by the First Amendment--for example, books like Lolita (21) or Fifty Shades of Grey, (22) television shows like Game of Thrones, (23) or video games like Grand Theft Auto. (24) Even though the underage sex, sadomasochism, incest, rape, and prostitution present in these works would absolutely be criminal if acted out in real life, there is widely understood to be social value--and constitutionally protected expression--in airing and openly discussing the dark side of the human psyche. (25) Reading, writing, and reflecting on sexuality--whether taboo or otherwise--allows individuals to understand their own desires and pursue a range of socially desirable ends; they might "come out," seek treatment, channel the fantasy into a consensual offline form, openly question the wisdom of the underlying taboo, or use the fictional account to cathartically let off steam and aggression. (26) In the Internet context, however, reading and writing about sexual fantasies are often conflated with acting out the fantasy in the precise manner in which it is discussed. (27) This has resulted in a surprisingly large body of case law in which individuals face decades in prison and lifetime sex offender registration without ever demonstrably endangering themselves or another person. (28)

As our social interactions become increasingly digitized and recorded, the law will be forced to grapple with an increasingly robust archive of sexual desire. For example, in August 2015, a group of hackers leaked account information of roughly 37 million subscribers of the extramarital hookup website AshleyMadison.com. (29) The leaked data revealed descriptions of many account holders' sexual fantasies--such as blindfolding, erotic tickling, sex toys, transvestism, and a "bubble bath for two." (30) During the same week, the Department of Homeland Security and the U.S. Attorney's Office for the Eastern District of New York seized the servers of Rentboy.com, a website providing advertising and messaging services to gay male escorts. (31) As a result of these two events, leaked Ashley Madison data have made their way into divorce proceedings, (32) and federal agencies now possess conversations regarding thousands of men's interests and desires towards other men. (33)

It is therefore becoming increasingly pressing for scholars, courts, law enforcement, and policymakers to come to terms both with the tremendously diverse ways that people explore their sexual fantasies online and with limits of using online fantasy as a meaningful proxy for sexual misdeeds. (34) Previous scholars have examined the law's general hostility to taboo...

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