When You’re a Star: the Unnamed Wrong of Sexual Degradation

“When You’re a Star”: The Unnamed Wrong of

Sexual Degradation

DANIEL MAGGEN*

The #MeToo movement is often criticized for its conf‌lation of sexual

assault, sexual harassment, and offensive but not legally actionable

behavior. This objection is often accompanied by criticism of #MeToo’s

failure to adhere to the legal paradigms that inform sexual assault and

harassment, presumably setting back the efforts to advance them.

Finally, the #MeToo movement is often faulted for its failure to accord

those it accuses with the procedural safeguards of due process.

Responding to these objections, this Article claims that instead of view-

ing #MeToo only as an effort to make the prohibition of sexual assault

and harassment more effectual, we should also understand it as the

attempt to articulate the moral wrong of sexual degradation that has so

far been hidden in the shadow of extant legal wrongs. In this, the Article

claims, #MeToo is the continuation of the mutuality approach in legal

scholarship, developed in response to a transactional shift that has taken

hold of rape law.

This Article further argues that, in its evolution from a scholarly

debate to a mass public discourse, the wrong of sexual degradation

has taken on three distinct features. First, like sexual harassment, sex-

ual degradation revolves around the communicative and intentional

aspects of the harm rather than its tangible effects. Second, although

sexual degradation subscribes to the mutuality paradigm’s condemna-

tion of using nonsexual leverage against another individual’s sexual

judgment, #MeToo tends to reserve condemnation to cases in which

such leveraging takes place against the backdrop of domination,

allowing the transgressor to use nonsexual eminence to trump the vic-

tim’s sexual judgment. Third, unlike the mutuality paradigm, #MeToo’s

conception of sexual degradation commonly disregards sexual degradation

that occurs as a result of relational domination, effectively creating a rela-

tional exemption.

* Visiting Fellow, Information Society Project, Yale Law School; Lecturer, Yale University. © 2021,

Daniel Maggen. This Article benef‌ited immensely in the various stages of its development from

conversations with Gilad Abiri, Leora Bilsky, Leora Dahan Katz, William Eskridge, Jr., Beth Henzel,

Paul Kahn, Al Klevorick, Daniel Markovitz, Amit Pundik, Samuel Scheff‌ler, Reva Siegel, and Steven

Wilf. I owe a debt of gratitude to the student in my “Making Criminals” seminar at Yale University for

their thought-provoking discussion of some of the ideas appearing below. I also want to thank the

editorial board of The Georgetown Law Journal for their fantastic work and in particular Celia Calano,

Samuel Guggenheimer, Harry McAlevey, Adam Mitchell, and Rebecca Raskind for their excellent

comments and suggestions. All remaining mistakes are my own.

581

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 582

I. THE ESTABLISHED LEGAL PARADIGMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586

A. SEXUAL HARASSMENT AND SEX-BASED DISCRIMINATION . . . . . . . . . 587

B. SEXUAL ASSAULT AND FORMAL CONSENT . . . . . . . . . . . . . . . . . . . . . 592

II. RETHINKING #METOO’S MESSAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598

A. OBJECTIONS TO #METOO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603

B. #METOO AND THE MUTUALITY PARADIGM . . . . . . . . . . . . . . . . . . . . . 605

C. BEYOND ESTABLISHED DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 610

III. THE MEANING OF SEXUAL DEGRADATION. . . . . . . . . . . . . . . . . . . . . . . . . . 615

A. DEGRADATION AND THE LEVERAGING OF DOMINATION. . . . . . . . . . . 617

B. THE COMMUNICATIVE NATURE OF DEGRADATION . . . . . . . . . . . . . . . 618

C. DEGRADATION AS INADEQUATE VALUATION OF SEXUALITY . . . . . . . 621

D. #METOO’S RELATIONAL EXEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . 629

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634

INTRODUCTION

“You know, I’m automatically attracted to beautiful [women]—I just start kissing

them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let

you do it. You can do anything. . . . Grab ’em by the pussy. You can do anything.”

1

The release of the tape containing these words, uttered by then-presidential candidate

Donald Trump, proved to be a formative moment in the struggle against sexual vio-

lence. That Mr. Trump would be elected President of the United States despite these

words and subsequent accusations of sexual misconduct triggered the eruption of long

pent-up anger and frustration, galvanizing an almost unprecedented reaction and

global reckoning often referred to with the hashtag #MeToo.

2

1. Transcript: Donald Trump’s Taped Comments About Women, N.Y. TIMES (Oct. 8, 2016), https://

www.nytimes.com/2016/10/08/us/donald-trump-tape-transcript.html.

2. As Part II discusses, the phrase #MeToo exploded into public consciousness in October 2017 when

actor Alyssa Milano urged Twitter users to use this hashtag to share their personal experiences of sexual

assault and harassment. See Alyssa Milano (@Alyssa_Milano), TWITTER (Oct. 15, 2017, 4:21 PM),

https://twitter.com/Alyssa_Milano/status/919659438700670976 [https://perma.cc/22XP-AAAC]. This

hashtag has since become synonymous with a growing social movement opposing sexual violence and

gender inequality. However, the roots of this movement precede its naming; in large part, they can be

traced back to the mass protest against Mr. Trump’s election. See, e.g., Deborah L. Rhode, #MeToo:

582 THE GEORGETOWN LAW JOURNAL [Vol. 109:581

But why were these words so consequential? Part of the reason, I suggest,

concerns an oft-overlooked connection between the #MeToo movement and a

yet-to-be-named wrong: sexual degradation. #MeToo is often celebrated for its

liberating effect on the airing of sexual grievances, yet it also draws criticism—

mainly in scholarly debates—for its misalignment with contemporary discussions

of consent and sexual discrimination.

3

Responding to this criticism, this Article

suggests that we ought to understand the #MeToo revolution

4

as an attempt to f‌ill

a normative void left by the categories of sexual assault and harassment.

5

In this

regard, this Article suggests, #MeToo is best understood as a continuation of a

tradition in legal scholarship that identif‌ies the harm of sexual wrongdoing in

relation to a denial of the mutuality of positive sexuality.

6

Growing out of the debate on rape law reform, the mutuality approach argues

that the legal or moral def‌inition of rape should not be tied to the absence of con-

sent but instead deduced from the quintessential feature of positive sexuality,

namely its mutual desirability.

7

This view holds that sexuality plays an important

part in the life of most adults—in their self-def‌inition, their well-being, and their

autonomy.

8

It further argues that positive sexual interactions—meaning those

that have a positive effect on their participants—are interactions that are mutually

desirable, such that participants not only desire the sexual act but also desire it in

a way that is intertwined with their desire that other participants desire it.

9

Why Now? What Next?, 69 DUKE L.J. 377, 396–97 (2019) (connecting Mr. Trump’s election, despite

these comments, to the rise of #MeToo); Barbara Kingsolver, Opinion, #MeToo Isn’t Enough. Now

Women Need to Get Ugly, GUARDIAN (Jan. 16, 2018, 2:00 PM), https://www.theguardian.com/

commentisfree/2018/jan/16/metoo-women-daughters-harassment-powerful-men (“Watching the election of

a predator-in-chief seems to have popped the lid off the can.”); Stephanie Zacharek, Eliana Dockterman &

Haley Sweetland Edwards, Time Person of the Year 2017: The Silence Breakers, TIME, https://time.com/

time-person-of-the-year-2017-silence-breakers/ [https://perma.cc/KUQ3-6G9C] (last visited Dec. 11, 2020)

(connecting Mr. Trump’s comments to #MeToo).

3. See infra Section II.A.

4. On the revolutionary nature of #MeToo, see Monica Akhtar, #MeToo: A Movement or a Moment?,

WASH. POST (Nov. 9, 2017, 10:56 AM), https://www.washingtonpost.com/news/the-intersect/wp/2017/

11/09/metoo-a-movement-or-a-moment; Elizabeth Bruenig, Opinion, The Aziz Ansari Debacle Proves

It’s Time for a New Sexual Revolution, WASH. POST (Jan. 16, 2018, 5:15 PM), https://www.

washingtonpost.com/opinions/the-aziz-ansari-debacle-proves-its-time-for-a-new-sexual-revolution/

2018/01/16/d4d5df94-fb01-11e7-a46b-a3614530bd87_story.html; and Kingsolver, supra note 2.

5. See, e.g., Allison C. Williams, The #MeToo Movement: What We Have Learned and Where We

Need to Go, 81 TEX. B.J. 852, 852 (2018) (discussing #MeToo as an alternative to Title VII); Kat

Stoeffel, It Doesn’t Have to Be Rape to Suck, N.Y. MAG.: THE CUT (Oct. 6, 2014), https://www.thecut.

com/2014/10/doesnt-have-to-be-rape-to-suck.html (discussing the precursors to #MeToo in relation to

the inadequacy of rape law).

6. For a similar connection, see Lindy West, Opinion, Aziz, We Tried to Warn You, N.Y. TIMES (Jan.

17, 2018), https://www.nytimes.com/2018/01/17/opinion/aziz-ansari-metoo-sex.html (discussing

previous scholarship on aff‌irmative consent).

7. See infra Section II.B.

8. See generally John Gardner, The Opposite of Rape, 38 OXFORD J. LEGAL STUD. 48 (2018)

(discussing the mutuality paradigm as a challenger to the idea of consent).

9. See, e.g., Nicola Lacey, Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and

Criminal Law, 11 CANADIAN J.L. & JURIS. 47, 65–66 (1998) (discussing mutuality as inherent to sexual

desire).

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