Sexuality's law.

• Author: Spindelman, Marc
• Position: I. Introduction through II. The Ideology of Sexual Freedom Described, p. 87-121

For J.T.

To die for the love of boys: What could be more beautiful?

--Michel Foucault (1)

Il m'aime signifie en clair: il accepte queje le capture, l'apprivoise, et le viole, et le tue, et l'enterre.

--Tony Duvert (2)

1. Introduction

   The contemporary history of gay sexuality--the full history--has not been written. Within it, increasingly attested to in various ways, appears an ideology of sexual freedom that has played a significant role in shaping, conditioning, controlling, and defining the sweep of gay sexuality, identity, and social life. This Article describes the ideology of sexual freedom, including its valorization of sexual violence, abuse, and injury, up to and including death, traces the ideology's implications for HIV/AIDS, and documents its actual operation in theorizing about sexuality by and among gay men in the "high" years of the epidemic. (3) After that, it examines some ways in which the ideology of sexual freedom has shaped some more recent debates about same-sex sex and its proper relation to law, proposing that in a number of ways this ideology has been sexuality's "tougher and truer law," (4) more important than the formal legal rules promulgated and enforced by the political State. In consequence, it is suggested, efforts to understand and address same-sex sexual violence and its consequences both for individuals and society, more generally, need to grapple with the ideology of sexual freedom directly--and not ignore it--if there is to be any realistic hope for the liberal State to satisfy its obligations to protect private individuals against interpersonal harms.

   Before coming to that, some preliminary facts that frame a puzzle. Since the earliest known days of the HIV/AIDS epidemic in the United States, more than 555,000 men diagnosed with AIDS--many of them gay--were infected with HIV through sex with other men. (5) Also since the earliest known days of the HIV/AIDS epidemic, legal rules, both criminal and civil, have been able to capture many forms of the sex-based transmission of HIV as an individual harm. (6) Nevertheless, the number of cases seeking legal redress for HIV-transmission by gay men against one another has remained very small, both in absolute and relative numbers. (7) Why? Why have gay men not regularly laid claim to what was done to them as an injury that the law's remedial harm provisions should recognize and address?

   From the top, some conventional explanations that might appear to solve the puzzle, in whole or in part. Comparisons to cross-sex transmissions aside, given the special meanings and experiences of HIV/AIDS to gay men, (8) in the early days of the epidemic, few gay men could say (and fewer say with certainty) what exact sexual event (or events) had, some time (often years) before, caused them to become infected with HIV. Transmission of the virus was commonly and practically thought to be a doer-less deed. Even in those instances in which a doer could be identified, he was regularly not seen as responsible for what he did. Nobody back then knew what he was doing, gay sex being generally seen, by gay men at least, as essentially consequence-free. (9) If anyone were to be legally liable for inflicting this injury, then practically anyone who was sexually active and versatile could be. It is, then, as Robin Hardy reports:

   I have chosen to think that Rollo is my murderer, but I attach no blame to him. I only love his memory more. Everyone was ignorant then. It was no fault of his. It could have just as easily been me, because I'm certain that in those years of ignorance, through no intention of my own, I was a bringer of disease to other men. (10) No doubt, countless other gay men, speaking for themselves, would agree. Or would have, had they lived.

   In the early years of the HIV/AIDS epidemic, ignorance of HIV and its ordinary modes of transmission could thus supply a norm of blamelessness that defined gay life across the sexual and social board, accounting for why gay men did not tap into the legal system to name what was done to them as an injury inflicted on them by other gay men. Holding through time, this norm of blamelessness, in turn, could have primed later waves of newly HIV-infected gay men not to see those who infected them as having done them a wrong. If so, HIV-infection rates could skyrocket, while gay men did not legally complain.

   Or take another explanation. In the early days of the epidemic, gay men were living as social pariahs of high rank, a status that the appearance of HIV/AIDS, with its formative identification as a gay disease, only intensified. The Supreme Court's decision in Bowers v. Hardwick, (11) handed down at the height of the epidemic, may not have mentioned HIV/ AIDS expressly, but driving its conclusion that sodomy remained subject to criminal prohibition may well have been a realpolitik sense of the headwinds the Court would have faced if it had constitutionalized a right to engage in sexual intimacies that included gay men's anal sex, pervasively associated with disease, contagion, and death. (12) How could the Constitution sanction that? At the same time, the legal system, so conspicuously drenched in homophobia, shown by its callous indifference to gay men's intense, urgent, and often needless suffering from HIV/AIDS, (13) gay men were practically forced to engage in a massive project of community self-help, which ultimately developed, among other things, a project of safer sex. On this account, gay men did not enlist the State's remedial energies by claiming HIV-transmission as a legal injury because the State was the enemy, or at least a force that had to be treated as hostile. Collaborating with it against other gay men might only have served to tighten its already noose-tight grip over gay bodies and gay lives, among other consequences exposing the collaborators as gay, hence to arrest and other forms of ruin. (14) Even worse, it might have undermined and risked defeating the gay community's capacity to take care of itself at a moment when the stakes of doing so were massively high.

   So, it might be said, a thick norm of community self-governance emerged, and it operated, partly, as an injunction addressed to gay men to reject engagement with the legal system's harm provisions, most especially where sexuality was involved. From this original trauma, the norm held across space and time, gay men forswearing the legal system's injury rules throughout the crisis. (15) More than a decade deep into the epidemic, David Chambers could thus confidently comment on how "inconceivable" it was that any gay organization would endorse legislation treating the failure to use a condom during anal intercourse as a petty criminal infraction akin to driving without a seatbelt, (16) while, almost in passing, also describing more stringent criminal laws specifically targeting HIV-transmission as "unlikely" to "exert significant deterrent effects on [gay men's] unsafe behavior," (17) The norm of community self-help, with its insistence on autonomy from the State's harm codes, explains how some gay men could simultaneously be outraged by the notion of appealing even to the modest regulatory energies of the criminal law, while knowing that, when the criminal law nevertheless addressed them, it would be practically irrelevant to their lives. Nobody would complain. If this is correct, HIV/AIDS could burst on the scene, and the numbers of gay men infected with it could balloon--but without court claims by gay men saying they were injured by infection through sex with other gay men.

   Or consider a different, but related version of the account, in which gay men woke up one day to a nightmarish epidemic on their hands. Everyone was potentially implicated. Gay leaders (or some of them) realized that individual gay men could use the legal system's harm tools to hold one another legally accountable for HIV-transmission. They chose, however, to spread a different message: of community solidarity as the brightest sign of hope. Too much work needed to be done to live as a house divided. The gay community, with the support of some heterosexual allies, gay elites proclaimed, (18) must drive the homophobically disinterested government into action to provide desperately needed social services and to fund the scientific research needed to master the virus and cure the disease. Deploying legal harm rules would not achieve that. What is more, it might have had disastrous political effects. Those gay men who engaged the legal system in these ways, far from being politically energized, might have become locked into a "victim" mentality, (19)...