Sex Exceptionalism in Criminal Law.

• Author: Gruber, Aya

Table of Contents Prologue Introduction I. Sex Exceptionalism in History A. Rape 1. Morality and marriage in early American rape law a. Chastity was key 2. Race takes center stage in the postbellum era B. Other Sex Offenses 1. Evangelicalism versus free love 2. Enter the "sexual deviant" a. The "vag lewd" regime b. Vag lewd laws and women II. Sex Exceptionalism in Retreat and Retrenchment A. Sex Exceptionalism's Retreat 1. The liberal turn: harmonization and deregulation a. Adopting an assault paradigm b. Limits to the harmonization project c. Liberal reform and public morals d. Feminists' complicated relationship with liberalization B. Sex Exceptionalism's Resurgence 1. The demise of sexual liberation a. Strange bedfellows: moralists and dominance feminists b. Limiting sexual liberty 2. Reenter the "sexual deviant" a. Predator panic b. The modern privileged predator III. Sex Exceptionalism in Contemporary Practice A. Sex Blinders B. Carceral Sex Exceptionalism 1. The politically salient predator 2. Subway sex policing C. A New Vag Lewd? 1. The feminist anti-hassling movement a. Calls for criminalization b. Race and class construct street hassling 2. Sex in public Conclusion Prologue

[E]verything pertaining to sex has been a "special case" in our culture.

--Susan Sontag (1)

A few years ago, I attended a large international academic conference. I stayed at the conference hotel--a new establishment with one of those cool lobbies where mustachioed bartenders mix craft cocktails. On the second day of the conference, I presented my paper and headed out to a trendy restaurant with two colleagues and friends who, like me, are left-leaning legal scholars. After our meal, we walked back to the conference, enjoying the afternoon sun in our conference attire. A man walked up beside me, too close, even pre-social distancing, for the norms of ordinary interaction.

He was slight with a limp. His clothing was soiled, several sizes too big, and excessively layered for the summer heat. He looked like he was unhoused and had seen better days. There may have been some mental health or substance issues at play, but I could not be sure. In any case, he came right beside me and said, "You're so beautiful." I looked at him and replied pleasantly, "Thank you." He kept pace with me for a few awkward moments and then limped off.

"Oh my gosh. Are you OK?" one of my companions asked me earnestly, a concerned furrow crossing her brow. "That was so gross," added the other, "that guy was sexually harassing you." Their conversation went on for a few moments, as they lamented the frequency with which such sexist and bothersome incidents occur. In fact, they ruminated, such sexual microaggressions produce a daily grind of stress for women solely because of their gender. For them, the moment was a pebble in a mountain of proof that everyday patriarchy harms women.

I walked along, uneasily digesting my lunch and the conversation. I recognized that on-the-street interactions range from mundane to assaultive, from culture-clash discomfiting to traumatic. To be sure, my own reactions have included replying with a pleasantry and, alternatively, getting out of there. But according to the feminist anti-hassling literature, mild-mannered "thank-you" responses like the one I gave further all women's subordination: "[A] 'thank you' is never the appropriate response to an injury, no matter how seemingly harmless or 'flattering' it may be. Here, the harms of invasion and assertion of male power to act upon a woman have occurred, although they may come in a 'harmless' form," one author opines. (2) Another confirms, "Both the derogatory and the 'flattering' behaviors are frightening and threatening to women." (3)

There is a popular feminist (4) view that, when a man engages in public sexual behavior, he should be condemned and punished for reinforcing male supremacy's geographic totalitarianism: All "street harassment" keeps women in fear of public spaces and, in turn, accomplishes "a ghettoization [of women] to the private sphere of hearth and home." (5) Society is accordingly obligated to protect women going about their day from these degrading and cumulatively liberty-destroying encounters. (6)

Still, it was hard to see how I, with my economic advantage and power to summon the police without fear, was the marginalized victim while the apparently homeless and disabled Black man was the privileged executor of male power. Of the many possible explanations for this man's actions--wanting to forge a human connection, intoxicated chattiness, or even a gendered cultural performance--a patriarchal desire to use sexual innuendo to achieve male dominion over the city space was surely not the likeliest. Nevertheless, what mattered was the sexual subtext of the encounter, which, as minimal as it was, transformed what was at worst a tiny nuisance into a gender inequity and social ill. (7) Moreover, the sexual nature of the compliment, according to advocates, made my thank-you response "not acceptable." (8) Staying quiet would also have been a poor choice, as "silence only protects the harasser." (9) The better course for women is, if they are willing, to reprimand the offending actor, publicly shame him, or contact the authorities. (10)

Now, imagine that the scenario had played out slightly differently, with the man uttering not a sexual compliment but a nonsexual insult: The same man approached but instead growled, "You think you're better than me. F*** you." Would my companions have called the man a "gross" harasser and sympathized with my presumed fear and disgust? (11) Would the appropriate course have been to reprimand or shame the man? Had I done so, or gone further and alerted the authorities, I may have taken on the mantle of "upstanding citizen" or "vulnerable woman," on whose behalf authoritarian and racist law-enforcement programs like quality-of-life policing, stop-and-frisk policies, and street sweeping of the unhoused have been erected. (12)

From the birth of American cities, police have wielded their authority to cleanse the streets of vagrants and undesirables, preserve the public welfare of "law-abiding" people, and maintain the state's domination of public spaces. (13) Many progressives, including my compatriots, consider such street policing utterly archaic and insensitive to the plight of unhoused people who, by necessity, have an outsized presence on the street. (14) They, like Jeremy Waldron, lament "a state of affairs in which a million or more citizens have no place to perform elementary human activities like urinating, washing, sleeping, cooking, eating, and standing around." (15) Yet when it comes to unhoused persons' "gross" public sexual conduct, even liberals fail to see this behavior as the inhumane consequence of the private property system, despite the fact that sex, even more so than sleeping, urinating, or cooking, is the "primal" activity that must be performed exclusively within private confines. (16)

In the case of my conversant, the tinge of flirtation in his comment made his behavior sexual and changed our relationships to the state. The man ceased to be a vulnerable person who progressives would say needed material aid and protection against police violence. In an instant, he became a patriarchal oppressor using sex to harm a vulnerable woman. He was no longer a person who conservatives might ignore as a nuisance; instead, he was a prurient threat in need of state management. Once we entered the sexual realm, I was the disempowered victim who required state aid, and he was the empowered, dangerous agent against whom the state could appropriately wield the weapons of criminal law.

Introduction

Sex exceptionalism is "the idea that sex and sexualities are inherently different from all other human activities and topics of study," as Susan Stiritz and Susan Appleton explain. (17) In the criminal law context, critics of our uniquely harsh sex-crime regime often focus on spectacular cases of children whose minor sexual infractions ensnared them in a Kafkaesque system of lifetime registration, social ostracism, and sadistic "treatment." (18) But I tell the simple story above to show that even sophisticated left-leaning thinkers embrace as natural--indeed, pre-legal and pre-moral--the principle that sex radically changes the equation. People widely believe that a sexual assault is far worse than a beating, that sexual commerce is distinct from nonsexual commerce, and that molestation, which is often nonviolent and committed by children, is an order of magnitude more horrific than child abuse. (19) An unhoused person who aggressively curses at passersby draws passing contempt or even sympathy; an unhoused person who exposes himself to passersby is dangerous and deviant. A person who commits an assault during a fight is a hothead; a person who commits a sexual assault--sex without consent or even without an affirmative expression of consent--is a rapist. (20)

In recent years, scholars have analyzed sex exceptionalism in a variety of areas, including family, contract, and property law, uncovering how doctrines in these areas confine, discipline, and penalize sexual activity. (21) Jennifer Rothman, for example, critiques intellectual property law's "negative view of sex that either dismisses the value of sex or, worse yet, treats it as something harmful." (22) Yet no one has offered a similar overarching analysis of criminal law, which is openly and categorically sex-exceptionalist. Criminal law carves out a specific category, "sex crimes," and fits within that category offenses from assaults to extortions. (23) Sexual-assault behaviors range from sudden attacks to deceptive statements. (24) The only uniting quality is sex. This structure, which unites diverse misconduct under one umbrella, keeps the focus squarely on the fact of sex rather than on the quality of the misconduct.

Criminal law's creation of a dedicated...