Sexuality's law.

• Author: Spindelman, Marc
• Position: III. The Ideology of Sexual Freedom: Proofs C. Richard Mohr, Gays/Justice: A Study of Ethics, Society, and Law, p. 157-192

3. Richard Mohr, Gays/Justice: A Study of Ethics, Society, and Law

If Chambers' "Condom Code" offers an argument with a mixed relation to the ideology of sexual freedom, so, too, does Richard Mohr's book Gays/Justice: A Study of Ethics, Society and Law, though the mix itself is hardly the same. Mohr goes farther than Chambers ever does in the direction of pouring the ideology, including its erotics of death, straight.

Gays/Justice, published in 1988, presents an extended analysis of the social and legal status of gay men and lesbians, (303) much of it in reaction to Justice Byron White's then-recent opinion in Bowers v. Hardwick, (304) which refused to hold that gay sexuality enjoys constitutional privacy protections, and to the urgent social backdrop against which Hardwick itself was decided: the AIDS epidemic, then in darkly opulent bloom. Mohr engages these developments largely on separate tracks. (305) On the one side, he generates a set of negative rights claims that collectively locate Hardwick's error in its misapprehension of the various meanings of the ideal of privacy on which it rests. (306) Properly understood, Mohr maintains, "privacy," in its different dimensions, invariably repairs to, yielding, the same bottom line--a bottom line that Hardwick missed: Gay sexuality as such is private and entitled to moral and legal respect. On the other side, Mohr works up and describes a limited set of affirmative obligations that the State owes lesbians and gay men, including HIV-positive gay men and gay men with AIDS, to secure them the conditions for an autonomous life (307)--obligations to be discharged through the enactment of new forms of pro-gay and HIV/AIDS-related legislation. (308) Connecting these tracks are Mohr's analytics, basically morally and politically liberal, throughout. (309) While this gives the work what many liberal readers will find to be a familiar and reassuring ring, from the perspective of the ideology of sexual freedom, it sends up definite warning signs. The book's near-constant moralizing, not least of all its morality-based embrace of affirmative state obligations in relation to sex, are, from this perspective, to be strenuously opposed.

Against this backdrop, the ideology of sexual freedom takes special interest in one argument that Mohr ventures while explaining Hardwick's mistakes. It stands out from the others that surround it for the different and far friendlier path it breaks. Unlike the other claims, which ground sex's privacy claims on their substantive moral content, this argument apparently aims to garner sex impunity from moral and legal sanction based on the sheer experience of it. (310) In substance and effect, this phenomenological bid does not so much seem to collect and advance ideas tolerable to the ideology of freedom as it voices ideas found within it, ventriloquized.

Schematically, Mohr's sexual phenomenology hangs together as an erotic tale of sex, start to end: from "horniness" to "sexual arousal" to intercourse to its aftermath. (311) Within it, sex is the very experience it presents: a "world-excluding" (312) force. Like certain other experiences--the examples given are "reading a poem" (313) and "praying alone" (314)--sex may happen in the world, but it is not for that reason properly of it. Far from it, sex "propel[s] away the ordinary world, the everyday workaday world of public places, public function, and public observation." (315) In doing so, it "creates its own sanctuary which is in turn necessary for its success." (316) Distinguishable and thus distinguished from the workaday world, by fiat deemed public, "the sexual realm" is by contrast declared "inherently private." (317) Though distinct from everyday reality, and largely (if not entirely) a world unto itself, the sexual universe turns out to be easily perturbed. The merest intruding glance (318) (much less anything more), and "[t]he whole process and nature of sex is interrupted and destroyed." (319) To prevent that from happening, hence to fortify the sanctuary sex creates for itself against intrusion, "erotic reality" and "everyday reality" (320) must be kept apart. When they are, sex and the world it produces are held unaccountable to anything else, including the ordinary world's morals and laws.

Filling in the descriptive details, Mohr counts--to four--the "ways in which sex acts are world-excluding." (321) He begins: "First, sexually aroused people experience the world in an altered way. Sexual arousal alters perception of reality in some of the same ways powerful drugs do." (322) Through arousal and in sex, Mohr explains, the individual's visual field is altered. "One's gaze no longer roams or scans at large, but increasingly becomes a form of attention," a process that "calls for and is enhanced by nightfall." (323) Along the way, the sense of being firmly grounded in space and in time recedes, (324) sex being both nowhere or anywhere and taking place in an instant that can give onto eternity. As these dimensions of the world are warped, sensory perception increasingly shifts from vision to touch, with the result that, "[a]t peak arousal.... the horizon is but the extent of one's flesh." (325)

"Second," Mohr continues, sex is "world-excluding," because "social relations alter importantly during the shift into erotic reality; people who were important in everyday reality recede from importance." (326) As social identities disintegrate, one becomes ever more "focused only upon those who potentially jibe with one's tastes, the particularities of one's erotic choices or desires." (327) Potential sexual partners are seen only in terms of their "appearance, mien, pose and act." (328) Sex itself is not only not a worldly endeavor, according to Mohr, it is not a continuation of our projects from the ordinary world, either. (329) Sexual encounters, he insists, are not "marked by ... social or economic roles." (330) Only "communist ideology" crassly supposes that erotic reality is conditioned by social reality like that. (331)

"Third," he goes on, "in the process of sexual arousal, one becomes increasingly incarnate, submerged in the flesh." (332) Through sex, "the body ceases to be merely a coathanger for personality, but assumes an independent life of its own." (333) Ultimately, "the body submerges even the mind's ability to carry out the requisite recognitions and one becomes just the body sensing." (334) More, "[w]hen this process [of becoming 'increasingly incarnate, submerged in the flesh'] is mutual and paired with the shift in perception to touch, it achieves an unparalleled intimacy." (335) This is due to a spiraling sexual effect:

One perceives the other as flesh and desires the other to be flesh. Usually one becomes, in turn, flesh for another, in part because one's own submersion into the flesh sparks or enhances desire in the other. The recognition of this effect on the other, in turn again, facilitates one's own further submersion. This process of mutual reciprocal incarnations may be iterated at many levels, though eventually the body submerges even the mind's ability to carry out the requisite recognitions and one becomes just the body sensing. (336) Mutuality or no, spiral or no, none of which is formally required in the account, sex renders US flesh. (337)

And so, at last, comes the final world-excluding experience of sex that Mohr details. In doing so, he recovers a thread stitched into his earlier description of how sex changes our sensory apprehensions of the world. Sex, he had said, "withdraws one from the world of waking and talking, from reason, persuasion, and thought. Sex is essentially a world of silence; words, such as they are, are not reports, descriptions, or arguments, but murmurs and invocations which emphasize silence and its awe." (338) This is of a piece with the notion that sex can stymie, even eviscerate, the mind's capacity to "carry out" its ordinary recognitions, leaving us as "just the body sensing." (339) These experiences, indicating larger truths about sex, become their own freestanding point:

[T]he everyday world of will and deeds fades away with sexual arousal. The will is not a chief causal factor in the fulfillment of sexual desire and indeed impedes sexual arousal. One can effectively use one's will to raise one's arm but cannot use one's will to raise, well, to effect the transition from sexual desire--horniness--to sexual arousal--the engorging and sexual sensitizing of the genitals. Indeed, quite the opposite is true: the willing of sexual arousal guarantees it will not occur. Sexual arousal must happen to one, it is a passion, not an action, project, or deed. It can occur only in situations in which one is not observing one's progress and judging how one is doing.... One has to be lost in the sex for it to work upon one. (340) All told, this is Molar's sexual phenomenology substance and sum, the predicate for his claim that, as a word-excluding force, sex is inherently private and so should be seen as such by morality and law, hence be freed. (341) Officially, the account simply describes, capturing sexual facts said to be true. But the erotics of the text--whether they remind us of experiences we ourselves have had, or make us aware of possibilities so far unachieved-simultaneously do double-duty as missionary's work. This sexual phenomenology proselytizes. It is for this reason that Mohr's depiction of sexual experience can be, and sometimes is, read as a seamless argument for sex's entitlement to privacy guarantees, notwithstanding, among its other flaws, the naturalistic fallacy that, on one level, it entails: the sheer experience of sex alone is no argument for its liberation, including from moral or legal sanction. (342) Once the phenomenology is reframed as a proof of the value of sex, however, the normative conclusion arguably carries. Sex's value provides the reason why the world that sex can dispel should leave it...