Foucault, Feminism, and Sex Crimes

An Anti-Carceral Analysis

Chloë Taylor

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429771248
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

This book brings together Foucault's writings on crime and delinquency, on the one hand, and sexuality, on the other, to argue for an anti-carceral feminist Foucauldian approach to sex crimes. The author expands on Foucault's writings through intersectional explorations of the critical race, decolonial, critical disability, queer and critical trans studies literatures on the prison that have emerged since the publication of Discipline and Punish and The History of Sexuality.

Drawing on Foucault's insights from his genealogical period, the book argues that those labeled as sex offenders will today be constructed to re-offend twice over, once in virtue of the delinquency with which they are inculcated through criminological discourses and in the criminal punishment system, and second in virtue of the manners in which their sexual offense is taken up as an identity through psychological and sexological discourses. The book includes a discussion of non-retributive responses to crime, including preventative, redistributive, restorative, and transformative justice. It concludes with two appendixes: the original 19th-century medico-legal report on Charles Jouy and its English translation by the author.

Foucault, Feminism, and Sex Crimes will be of interest to feminist philosophers, Continental philosophers, Women's and Gender Studies scholars, social and political theorists, as well as social scientists and social justice activists.

Part I
“Bucolic Pleasures”? Feminist Readings of Foucault

1 The Case of Charles Jouy and Sophie Adam

No aspect of Foucault’s corpus has been more consistently subjected to the charges of masculinism and male bias than his example of the nineteenth-century farmhand Charles Jouy.

—Shelley Tremain (2013)

The “Simple-Minded” Farmhand

In both The History of Sexuality and Abnormal, Foucault draws on a medicolegal report submitted on January 4, 1868, by Drs. Henry Bonnet and Jules Bulard, the head doctors of the Maréville insane asylum in the mid-nineteenth century (see Appendixes 1 and 2). Bonnet and Bulard’s Rapport médico-légal sur l’état mental de Charles-Joseph Jouy, Inculpé d’attentats aux mœurs aims primarily to determine whether Charles Jouy should be held legally responsible for his actions and thus sent to prison, and whether he is dangerous or would recidivate if set free. The doctors describe Jouy’s crimes as follows. First, on September 7, 1867, Jouy approached two 11-year-old girls, Sophie Adam and Marie Briquelet, in a field. Jouy pulled on his penis as he approached the girls, and he asked Adam to masturbate him. Adam did so, at one point suggesting that Briquelet take over; however, Briquelet declined. Afterward, the two girls continued on their way and came across a man, Adolphe Simon, whom they told that they had made “curdled milk” with Jouy’s penis. Simon calls the girls “little horrors,” but did not report the situation to any authorities as one would expect an adult to do today. The second event occurred at nine in the evening on the day of the village fair. The way that Bonnet and Bulard describe what happened on this evening is vague and can only be translated oddly. They write, “il décida la jeune Sophie Adam à le suivre sur la route de Nancy et, avec son consentement, exerça un rapprochement sexuel qui ne semble pas avoir abouti” (“he persuaded the young Sophie Adam to follow him on the road to Nancy and, with her consent, attempted a sexual approach which does not seem to have been successful”) (2). The term rapprochement sexuel (sexual approach) is as imprecise in French as in English and could refer to something as insignificant as a kiss, although it is clear that more than this occurred between Jouy and Adam. According to Jouy, Adam had asked him for four sous at the fair, and he proposed that he give her this sum in exchange for letting herself do “that” (si elle voulait se laisser faire ça) (4), for which purpose he proposed going down the road toward Nancy. According to Jouy, Adam did not respond verbally to his proposition, but she began to walk toward the road. Jouy followed her and, the doctors report, Adam “went along with it” (elle se laissa faire). The doctors state that what occurred on the road to Nancy took place with Adam’s consent (avec son consentement) (2) and also argue that Jouy had a “gentle” (doux) nature and would have stopped had Adam put up any resistance (10). Indeed, the doctors recount the testimony of one villager who said he had seen Jouy being beaten by his 11-year-old child and claimed that Jouy was so “weak of character” (il est d’une faiblesse de caractère) that he did nothing to defend himself (3).

The doctors’ vagueness about what happened on the road to Nancy may be due to Sophie Adam’s own confusion about events. When asked, Adam could not say whether penetration had occurred, but she did say that Jouy lifted her skirt, attempted to put his penis in her “sexual parts” (les parties sexuelles), that she experienced considerable pain (bien du mal) (4) and that afterward she felt a liquid running down her thighs. Adam’s clothes from this evening were marked with both blood and “other large and thick stains” (d’autres larges et épaisses taches), presumably semen, which her mother found when doing her laundry a few days later. Despite everyone’s insistence that Adam was sexually active and precocious, her own account, although we receive it through the words of the doctors, seems to convey the sexually inexperienced confusion of a child. It is not clear that she knew what she was “consenting” to when she headed down the road to Nancy. Moreover, it is not clear, given the presence of both blood and semen on her clothing, why the doctors think the act was not “successful,” or what “success” would mean in this case. A possible interpretation of what happened, based on the blood stains, is that penetration did occur and Adam lost her virginity. It may have been blood that she felt running down her thighs. Given that large semen stains were found on Adam’s clothes and the doctors’ remark that the act was “unsuccessful,” it seems likely that penetration did not continue (perhaps because Adam expressed the pain she was in), and Jouy withdrew and ejaculated through some other means on her clothes.

In their report, Drs. Bonnet and Bulard describe their interrogations of Jouy, their attempts to have him read from a book and their physical examinations of his body, including his head and genitals. Significantly, the very normalcy of Jouy’s genitals is grounds for the doctors to declare him abnormal, for they insist that his normally developed genitals are out of proportion with his otherwise arrested physical and intellectual development, and that this condition is found in imbeciles (10–11). Based on these interviews and observations, the doctors conclude that Jouy is a “semi-imbecile.” The terms “idiot” and “lunatic” are also used in the medicolegal report, and it is this kind of diagnosis—one of intellectual disability—that is in question throughout the report, and not sexual perversion or Jouy’s sexuality per se. As shall be discussed below, the diagnosis of “pedophilia” had not yet been invented in 1868, and the doctors only briefly mention having questioned Jouy about his pursuit of young girls rather than older ones. To this question, Jouy simply replied that older girls made fun of him (9). It appears that Jouy had no particular attraction to children (or was not a “pedophile” as we understand this term), but he expected to have better chances with girls of Sophie’s age than with adult women. That said, the doctors closely associate intellectual disability with sexual danger, and so there is a haziness between “idiocy” and perversion.

Although the doctors claim that Jouy could never have been cognitively normal, they think that had he been given a normal upbringing and education, he might have had the cognitive and moral capacities to distinguish between right and wrong and to act accordingly, in which case he could have been held legally responsible for his acts. Unfortunately, however, Jouy’s low level of intelligence was exacerbated by his lack of upbringing (he was an illegitimate child whose mother had paid little attention to him and died when he was still young) and lack of education (he was driven out of school). For these reasons, the doctors determine that Jouy should not be held morally or legally responsible for his actions. Indeed, Bonnet and Bulard describe Jouy as “degenerate” (6, 7), contrast his cognitive and physiological development with what is “normal” (6, 11) and consistently compare him to a child (7, 9, 10, 12) and a nonhuman animal (5, 7, 12). Although the doctors reject the idea of making Jouy stand trial, this does not mean that they think he should be set free. On the contrary, the doctors stress that if left to his own devices, Jouy would commit the same crimes again (10), that is, he would have sex with a child again if given the chance. As another doctor cited in the report puts it, Jouy does not have the moral or cognitive capacities to resist his “animal instincts” (5). Jouy is thus a danger to society and should be kept in custody.

What does not come across in Foucault’s account of Jouy’s case is that, at least according to the doctors, Jouy “constantly” (sans cesse) expressed his desire to stay in the hospital (7). In this institution, Jouy had found a comfortable place to sleep and was better fed than he had ever been in his life. Habituated to starvation wages for hard labor and sleeping in barns and stables, Jouy’s greatest wish seems to have been to stay in the Maréville asylum. Indeed, Bonnet and Bulard conclude their report by stating that Jouy has the “right” to “hospital assistance” (il a droit à l’assistance hospitalière de l’Asile) (14), and institutionalization appears, in Jouy’s case, to have been a form of charity. Jouy describes his life in the village as one of isolation and marginalization, in which he was shunned from school, had no family or friends and was exploited for the cheapest possible manual labor. The scrutiny of the doctors at Maréville may have been the first time that anyone took any real interest in Jouy.

As Foucault describes the situation in The History of Sexuality, Jouy was a “somewhat simple-minded” (un peu simple d’esprit) peasant, living in Lapcourt,¹ France, in the middle of the nineteenth century, who did odd jobs for scant pay and slept in barns and stables. Because he was poor and homeless, Jouy could not afford a wife or court a woman his own age. It was due to this context, for Foucault, that “At the border of a field, he had obtained a few caresses from a little girl” (Foucault, 1976, 43; Foucault, 1978a, 31). Infamously, Foucault makes light of this incident of adult-child sex, emphasizing that such events were common in village life, that Jouy had done this before and seen it done by others and that such exchanges were a “familiar game” for “village urchins.” Foucault refers to the minors who were involved in these “games” as “alert children” (les enfants éveillés) (Foucault, 1976, 44), suggesting that they were sexually precocious. In this way, Foucault echoes Jouy’s own defense of his actions, as reported by Bonnet and Bulard; as the doctors write, “He protests that it only happened those two times; that the little girl didn’t resist, quite to the contrary; and that she hadn’t only done it with him” (9).

While the repercussions of these events (psychiatric evaluation and detention) were, by twentieth- and twenty-first-centuries standards, not surprising, Foucault emphasizes that they were extraordinary in their historical context: Jouy was reported to the village mayor by the girl’s parents, and the mayor had him arrested by the police who turned him over to psychiatrists. These psychiatrists subjected Jouy to extensive examinations and deemed him a danger to society. As a result, Jouy spent the rest of his life in a psychiatric asylum. Foucault notes that in a period when children would have been instructed for the first time in history to not speak about sex, Jouy was obliged to confess his sexual desires at length to doctors, who published a medical study of his case. For Foucault, Jouy was a victim of a new, scientific will to know about sex, and his life was sacrificed to that will. While many contemporary readers are likely to understand Jouy as a child molester, pedophile or sex offender, and thus to deem his arrest, psychiatric evaluation and incapacitation by doctors to be legitimate juridico-medical responses to a serious situation, Foucault expresses disgust at “the pettiness of it all” (son caractère miniscule) (Foucault, 1976, 44; Foucault, 1978a, 31). For Foucault, it was outrageous that a man should have lost his freedom for what were, in his mind, “inconsequential bucolic pleasures” (ces infimes délectations buissonnières) (Foucault, 1976, 44; Foucault, 1978a, 31). The word that is translated as “inconsequential” in this passage, infimes, could also be translated as “tiny,” “miniscule” or “unimportant.” Foucault’s trivialization of the harms of adult-child sex could not be clearer.

In Abnormal, the volume of lectures from the Collège de France that he was giving at the same time that he wrote volume 1 of The History of Sexuality, Foucault describes the Jouy-Adam case in greater detail (Foucault, 2003, 292–303). Here, we learn that Jouy was an illegitimate child and orphaned young. He was 40 years old at the time of the events and had received little education. He had survived as best he could by doing the worst kinds of work in the village for the least pay, but was friendless and marginalized in village life and often drunk. As Foucault notes, Jouy earned only a quarter of what agricultural workers earned in this period and so would have been poor indeed. We also learn more in this lecture about the nature of the events that Foucault briefly glosses over as “a few caresses” in The History of Sexuality. In fact, the girl, Sophie Adam (who goes unnamed in The History of Sexuality), had masturbated Jouy in the presence of another girl. This was followed by another incident in which Jouy “dragged” the girl alone into a ditch and “raped” or at least attempted to rape her (Foucault, 2003, 292). Foucault in fact introduces the idea that Sophie was dragged into a ditch as well as the term “rape” into the narrative. The word “rapes” and “ditch,” as well as the claim that Jouy used physical force, never arise in Bonnet and Bulard’s report; on the contrary, the doctors stress that what occurred between Jouy and Adam was “consensual” and nonviolent and that Jouy was gentle and incapable of defending himself even against children. After what would nevertheless today be seen as an act of (at least) statutory sexual assault, Jouy gave Adam four pennies.

In Abnormal, as in The History of Sexuality, Foucault expresses no disapprobation of Jouy for his sexual interactions with Adam, and indeed, he consistently belittles the event, writing of the case as “extremely banal” (291–2) and “a quite everyday offense” (293), one that was “part of a social landscape and practices that were very familiar” (294). He writes that “We have here a village infantile sexuality of the open air, the side of the road, and the undergrowth that legal medicine is cheerfully psychiatrizing” (295). Foucault states that Adam was “almost, partly, or more or less raped” and “almost raped, perhaps” (292), and he even jokes that perhaps it was the young girl who dragged the adult man into the ditch (292). While Foucault’s skepticism that a rape occurred and his joking about the incident seem surprising and offensive in the context of his lecture, he is likely drawing on Bonnet and Bulard’s claims that Jouy was “gentle” and too “weak in character” to defend himself against an 11-year-old child, while Adam is described as an “undisciplined” child whom the villagers wanted locked up. In describing the situation in these terms, Foucault is almost certainly taking into consideration the fact that Jouy was intellectually disabled and thus was himself sexually and socially vulnerable—a fact which, as shall be discussed below, feminist commentators have until recently ignored.

Astonishingly, although perhaps referring to the peasant’s poverty, Foucault goes on to describe Jouy’s act of giving Adam some coins after, in his own terms, “more or less” raping her as “very decent” (2003, 292). Foucault tells us that Adam went to a fair after these events and spent the coins on almonds, and he takes this to indicate that she was not bothered by what had occurred and that adults made too much commotion about it. Foucault explains that Adam did not tell her parents about the events of that day for fear of getting “slapped,” but her mother guessed what happened some days later when she found stains on her daughter’s clothes. Echoing the language of Bonnet and Bulard, Foucault writes that “The young girl more or less lets it happen; she seems to receive a few sous quite naturally and runs to the fair to buy some roasted almonds” (292). The fact that the girl had had prior sexual experiences (masturbating boys) and takes the money appears to invalidate the seriousness of the events for Foucault in a way that is all too familiar for feminist readers. Foucault belittles Adam’s experience because she was not an “ideal victim” and engages in what feminists have described as “victim blaming” and “slut shaming.” This victim-blaming logic has been observed frequently in rape trials, where a woman’s or girl’s sexual history is used to deny that a rape occurred or to blame victims for their own rapes (Larcombe, 2002).

What is important about this case, for Foucault, is not what happened to Sophie Adam, but that it demonstrates the emergence of a new form of power that is vested in regulating sex, and the consequences this would have for “abnormal” subjects such as Charles Jouy. While Adam expected to be beaten if her parents found out about her sexual interactions with Jouy, the case reveals that the form of power that would have spelled corporeal punishment such as this—sovereign power—had already been supplanted by a new form of power, disciplinary power, and this would mean far graver consequences than a few blows to a girl’s body (Foucault, 2003, 295–6). Disciplinary power would entail the taxonomization and pathologization of sexual and other deviances (such as intellectual disability) that had formerly been tolerated and would have far-reaching, constitutive effects: it would produce individuals with “sexualities” and a eugenic, sexually confessional society. According to Bonnet and Bulard’s report, this disciplinary power was directed not only at Jouy but also at Adam. As they observe, the villagers, including Adam’s own father, complained about how “undisciplined” the child was, and wished that she would be incarcerated in a correctional home until she reached adulthood (4). The report does not tell us if anything came of these wishes, or whether Adam was, in fact, institutionalized.

Feminist Responses to the Jouy-Adam Case

Feminist philosophers have extensively criticized the sections of The History of Sexuality and Abnormal where Foucault discusses the case of Charles Jouy and Sophie Adam. Two of the most influential of these critiques are Linda Alcoff’s 1996 essay, “Dangerous Pleasures: Foucault and the Politics of Pedophilia,” and her 2000 essay, “Phenomenology, Post-structuralism, and Feminist Theory on the Concept of Experience.” In this section, I summarize Alcoff’s critiques of Foucault’s treatment of the Jouy-Adam case, as well as recent critical engagements with Alcoff’s interpretations by feminist philosophers Johanna Oksala and Shelley Tremain.

In “Dangerous Pleasures,” Alcoff objects to Foucault’s use of euphemisms to describe what she views as Jouy’s sexual assault on Sophie Adam, as when he writes of an adult “obtaining a few caresses from a little girl,” and “the...