Illicit and Illegal

Joanna Phoenix, Sarah Oerton

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134015825
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book is about the surprisingly neglected area of the regulation of sex. It describes and discusses the ways in which various sexual activities are controlled, regulated and made illegal and/or deviant and illicit. Its primary focus is upon the multiple and complex social controls (laws, statutory regulations, professional/occupational codes, normative frameworks) constructing, constituting and shaping how we 'do' sex, and deals with sex that is both illicit (deviant, illegal) and illegal (criminal, offending). The book challenges the idea that early twenty-first century Britain is increasingly sexually 'liberated' by suggesting that this very 'openness' provides the conditions in which all sexual activities have become increasingly subject to regulation and control. By examining the policies and laws about various sexually activities, and the social conditions underpinning them, alongside existing research and theoretical literature the authors have provided an accessible text on the sociology of sex.

Chapter 1
Introduction moral authoritarianism and official and quasi-official discourses of sex

Sexuality must not be described as a stubborn drive, by nature alien and of necessity disobedient to a power which exhausts itself trying to subdue it and often fails to control it entirely. It appears rather an especially dense transfer point for relations of power; between men and women, young people and old people, parents and offspring, teachers and students, priests and laity, an administration and a population. Sexuality is not the most intractable element in power relations, but rather one of those endowed with the greatest instrumentality; useful for the greatest number of manoeuvres and capable of serving as a point of support, as a linchpin, for the most varied strategies.

(Foucault 1978:103)

Introduction

It would appear that contemporary British society is, perhaps more than ever before, obsessed with sex; or more specifically with curtailing, constraining, limiting, regulating and specifying what should or should not be done in the name of sex. Day after day, popular media carry stories of sexual crimes, rape, assault, child sexual abuse as well as sexual scandals between the supposedly ‘upright’, ‘respectable’ and the ‘vulnerable’ or exploitable. Film plots abound in which sexually dangerous acts, behaviours and liaisons rebound on the characters, destroying family lives, careers and communities. Popular magazines tell women and men just how to enjoy sex, with whom, where, how often and when. During the summer of 2004, women were told by both broadsheet and tabloid newspapers not to bemoan turning 50 because being in their 50s: ‘is the new 30s’, a time when women can truly enjoy sex without the constraints of either concern for birth control or self-consciousness. In short, sex can and should be ‘re-discovered’ upon turning 50. To aid this process, a range of different television programmes now specialize in giving advice on sexual performance to the novice or the initiated. Furthermore and whilst not without its problems, the visibility of lesbian, gay, bisexual and transsexual people in public spaces, not least in various media, has reached new heights. In this, it is held, we have reached a time when we are truly sexually liberated, open and free.

It would also seem that the current obsession with sex is not limited to the realm of popular culture. Religious organizations have had to encounter the history of sexual abuse from clergy to young parishioners. Social care organizations have also had to do so. As a result, there are few if any large scale organizations that have not discussed or formally adopted policies and protocols about ‘appropriate’ sexual behaviour. In the arena of private business, human resource and personnel departments have been busily drafting sexual harassment policies that specify who can do what with whom, where and when. The concern for excluding sex from organizations has led to policies in which employees can be dismissed for having sexual relationships with other employees. During the same period, social science research has truly opened the realm of ‘sex’ to scrutiny such that it is possible to talk about a corpus of work that might be called ‘the sociology of sex’. Feminist scholars have written extensively about sexual violence, its prevalence, its regulation and its punishment (or lack thereof). Organizational sociologists have examined sex and sexuality in the context of work, employment and organizations. The list is endless, and the story of sexual predation, violence and infractions of what are considered ‘appropriate’ ways of conducting sex are not confined to research and policy. Popular culture has plentiful references to the ‘new bogey man’ – the sexual abuser. Indeed, UK society in the early twenty-first century is thought to abound with shadowy and unknown sexual ‘predators’ of all types, and our streets and homes are held to be no longer safe (if they ever were) from sexual ‘excesses’ of every kind. Suffice at this point to say that there remains virtually no aspect of social life that has not been touched by some concern for sex, or more particularly, the ‘problem’ of sex.

This book started as an exploration and explication of this ‘problem’, as made manifest in the proliferation of regulations that arose in the context of a growing ‘noise’ about sex across a range of different social arenas. It ended up as a deconstruction of formal and informal regulations concerned with sexual violence and sexual infractions. The shift of focus came because in the early days of this project, we observed that, at their heart, these wide-ranging regulations appeared to be an attempt to keep sex under wraps, to constrain and control what was perceived as its potentially threatening and dangerous aspects. In the early stages of analysis, it became clear that a variety of institutions were engaging in a process of publicly claiming, amongst other things, that the ‘sex-which-threatens-us’ is not here, that the ‘dangers’ of sex are not on ‘our’ doorstep. What also became clear, however, was that accompanying this recent obsession with sex and since about 1999, there has been a tremendous outpouring of official and quasi-official ‘utterances’: consultation documents, guidance statements, codes of ethics, human resource and personnel policies, best practice guides, white and green papers and new laws concerning many aspects of what might be called ‘sex’. Many of these documents and statements have been authored by state agencies (Department of Health, Home Office) and others come from far less formal quarters, such as professional associations, private businesses and organizations and local authorities. As a mass these ‘utterances’ about sex are, quite simply, too many to count. But, taken together they represent a ‘system’, a collection of knowledge about what the ‘problem’ of sex is and how to deal with it across a wide variety of settings from private, intimate relationships to formal, public settings. This ‘system’ of knowledge is not neutral: its impact and effect is to shape (governmental, company or citizen) practice, to set limits on how sex is done. The knowledge speaks of what cannot or should not (ever) be done in the name of sex. Thus, most ‘utterances’ or publications are concerned with specifying what adults and children, men and women and individual adults should not do without incurring some type of punishment or censure. In this book, we have not concerned ourselves with whether and to what extent this knowledge translates into actual lived and embodied practices either at the level of individual sexual encounters or at the level of the policing and punishment of any infractions of these laws and policies. Instead, we have attempted to both understand the conditions of existence of these ‘utterances’ as well as provide some (albeit limited) analysis of their content through the deconstruction of key texts produced since the turn of the millennium and in relation to specific types of ‘sex’.

In relation to understanding their conditions of existence, we have borrowed heavily from the work of Burton and Carlen (1979) in which they examine and analyze documents which pertained to governmental investigative committees that focused on perceived law and order problems of the day. Using a bricolage of concepts from Foucault, Bachelard and Lacan, Burton and Carlen (1979) construct an analytical framework in which it is possible to displace the authorial subject as the originator of meaning and in so doing relocate and reconceptualize the writers and speakers of official discourse as having only limited control over the texts’ connotative effects. In other words, the meanings of the texts in question are not wholly derived from the intentions and motivations of the specific authors. More, Burton and Carlen’s (1979) framework opens the theoretical space for an analysis of documents focused on deconstructing the key terms of reference within any particular discourse and the ‘syntax’ deployed if only because it is the syntax that enables ‘meaning to exist beyond … at a place where the signifiers are absent’ (Burton and Carlen 1979: 31).

But more than this, Burton’s and Carlen’s (1979) argument about how Official Discourse operates in relation to ‘law and order’ crises seemed to have a particular relevance and resonance with much of what is happening today in relation to the voluminous utterances about what to do about sex. Specifically, Burton and Carlen (1979) argued that:

Official Discourse on law and order confronts legitimation deficits and seeks discursively to redeem them by denial of their material geneses. Such denial establishes an absence in the discourse. This absence, the Other, is the silence of a world constituted by social relations the reality of which cannot be appropriated by a mode of normative argument which speaks to and from its own self-image via an idealised conception of justice.

(Burton and Carlen 1979: 138).

In other words, one characteristic of official discourse on law and order is that it is necessarily engaged in a symbolic erasure of the very material realities that generated the ‘problem’ to which official discourse addressed itself.

In this book, we start with the assumption that there has been, in the last two or three decades, a similar ‘legitimation deficit’ in regards to regulations around sex and particularly in relation to what might be termed sexual violence or abusive sex. Specifically, and beginning with the second wave of feminism in the 1960s and 1970s, there has been a critical examination of virtually all aspects of sexual relations between men and women. This has included interpersonal and intimate relationships as much as governmental practice and policy in the shape of civil legislation and criminal law as well as the enforcement and punishment of infractions of both. Subsequent to this examination have been three specific arguments:

• (i) Sexual abuse of and violence against women and children (and less frequently, men) by men is regular, routine and commonplace.
• (ii) Policies purporting to ‘protect’ women and children from sexual abuse from men often do not, in practice, offer protection, mainly because of the discriminatory ways in which they are implemented. Key examples include the ways in which rape and sexual assault victims were assumed to have contributed to their victimization in some fashion and the necessity felt by the police to ‘disprove’ allegations of sexual violence when they took statements from victims.
• (iii) The various ways in which men who sexually abuse women and/or children are dealt with within criminal justice, civil legislation and private organizations are understood to be inadequate, problematic and offering little to help the victims. So, for example, there has been a continual debate within feminist circles about the social and political efficacy of invoking stronger and stronger punishments against men who rape. This debate has been driven by the recognition that simply locking these men in prison does little or nothing to help women. This debate has also been mirrored in the discussions around mandatory prosecution policies in regards to domestic violence.

Combined, these three arguments (and the research that supported them) amount to a sustained critique of both the lived realities of sex and sexual relationships for women (and children), and a devastating assessment of the policies and guidelines that are contemporarily in place to deal with these problems.

Subsequent to this critique, there have also been sustained campaigns for ‘something to be done’ about the problems outlined above. Calls for reform have come from many different quarters, both within and outwith feminism. Often these calls dovetailed with the media coverage of scandals and systematic abuses. So for instance, in the 1980s and 1990s Cleveland, the Orkneys and various children’s homes within Wales and the southwest of England all made media headlines when systematic child sexual abuse was uncovered. Coupled with this were the exposés of cover-ups of abuse within the Catholic Church in both Ireland and the United States. By 2002, Operation Awe hit the media and the public were told that over 7500 individuals from across a variety of western states were downloading child pornography. By the early part of the millennium, increasing media coverage was also given to the rising rate of reporting rape as the conviction rate was haemorrhaging. One result of these calls has been the reform of all sexual offences within England and Wales (a critique of this forms the first part of this book). More importantly for the second part of this book, one other result has been to put the issue of sexual ‘impropriety’ on the agenda for other organizations such as professional bodies, private businesses and increasingly anything and everything connected with the internet. And, whilst the less-than-state responses to this perceived heightened awareness of ‘the problem of sex’ have been uneven, there has nevertheless been an increased volume of policies and guidances that companies, professionals and employees are now expected to adhere to.

Let us be clear, in this book we are not arguing that the contemporary ‘problem’ of sex is all about perceptions. We are not arguing that the legitimation deficit is merely and only a question of ‘moral panic’. Instead, we start with the premise that these calls for reform are part and parcel of the legitimation deficit; that women and children are experiencing sexual victimization of one variety or another in ways that cannot be and have not been encompassed by contemporary laws and informal guidances. We use the term ‘the problem of men’ in this book to refer to this legitimation deficit. Our argument, in keeping with Burton’s and Carlen’s insight about how official discourse works, is that contemporary discourse and regulation of sex necessarily denies the very embedded and real lived experiences of sexual predation, violence and abuse (i.e. ‘the problem of men’) by syntactically and symbolically shifting the meanings of the key terms of reference (i.e. ‘victim’ and ‘perpetrator’) as well as other more context-specific terms of reference such as ‘family’, ‘community’, ‘professional’. It denies the realities of the social relations that it seeks to describe because the discourse is constituted via the deployment of a symbolic landscape which ‘speaks to and from its own self-image via an idealised conception of justice’ (Burton and Carlen 1979: 143). In other words, the very structures and meanings of the discourses that we examine in this book foreclose the possibility of recognizing the lived realities of intimate relations between men and women and children in which violence and the threat of it are all too routine, despite an official social ‘rhetoric’ that claims that these episodes are rare.

We trace these erasures through what we are calling both official and quasi-official discourses on sex. Official discourse pertains to all those utterances that are more or less state authored. In relation to this book, the key documents include the Sexual Offences Act (2003) and all the consultation documents and official statements leading up to it, such as the green papers Setting the Boundaries (Home Office 2000) and Protecting the Public (Home Office 2002), as well as other consultation and guidance documents such as Safeguarding Children in Prostitution (Department of Health/Home Office 2000) and Paying the Price (Home Office 2004). Each of these consultation documents or official guidances refers to other papers and documents. It is the full range of these which we refer to as official discourse. They all have in common the site of authorship (namely, one or other of the many state agencies, usually the Department of Health or Home Office). They all define what is to be seen as the ‘problem’ of sex. They all specify the ‘solution’ to the ‘problem’ of sex. They all act in ways that impact upon the practices of statutory and voluntary agencies that work with people and as such, they shape sexual conduct. A note should be made, however, of the fact that this book was written on the cusp of change. It started as the reforming process began and its completion came within months of the implementation of the Sexual Offences Act 2003 in May 2004. Therefore, at the time of writing there has been no established case law or further guidance ‘testing’ the new provisions.

But, we also trace and analyse ‘quasi-official’ discourse on sex. We use this term to denote a much looser and wider variety of documents and guidance that, in line with official discourse, share a similar site of authorship (organizational personnel departments, professional associations and the like). Moreover, quasi-official, like official discourse on sex, details how the ‘problem’ of sex should be conceptualized and understood and what the ‘solution’ to the ‘problem’ is. However, unlike official discourse, quasi-official discourse does not have the same type and level of impact on the practices of others. Infractions are usually sanctioned, but through a variety of informal means such as censure from the professional body, disconnection of services provided, discontinuance of employment and so on. In short, quasi-official discourse is comprised of ‘utterances’ which pertain to more informal ‘guides’ on the conduct of sex.

In the course of the book, we also refer to ‘regulatory frameworks’. It is helpful at this stage to clarify what is meant by this term. We use the term to denote a more specific context than the broader terms official and quasi-official discourse. Regulatory frameworks are, simply, the collection of rules that specify what should and should not be done. In the case, for instance, of prostitution, the regulatory framework is the formal criminal law, coupled with specific guidance documents that delimit what private citizens can and cannot do (namely, solicit in public for prostitution) and what professionals should and should not do (namely, treat young people in prostitution as offenders).

By way of further clarification as to what the book is not about, we are not attempting simply, solely or comprehensively to provide a descriptive overview of the trends, patterns, occurrences or events of sexual offending. Moreover, whilst not incidental, cultural, normative and uncodified ‘rules’ (unwritten norms, values, taboos and so on) are also not the focus of this book. Neither do we treat media reportage as a form of ‘official utterance’, although that is not to say that we do not draw upon media output as data from which to illustrate our arguments. We do make mention of the successes and failures of political campaigning moves, but this is only insofar as they have contributed to the shaping of particular ‘turns’ in the contemporary rules of engagement surrounding sex. Finally, we are also not concerned with how regulatory frameworks produce ‘sexed subjects’, namely, what the impact of regulation is upon how the sex that is done is understood or integrated into people’s sexual lives. Not only is it not possible to read off identity, micro-practices and experience from what is codified and institutionalized, but that would be the subject of an altogether different book. It is also important to make clear that we are not simply depicting the regulatory frameworks we outline here as repressive ‘arms’ or apparatuses of state control. It can be suggested that enshrined in the laws, policies and guidelines governing sex are stipulations that uphold rights and responsibilities in terms of individuals, families, communities and networks of people (such as employees or patients, for example). In that sense, regulatory frameworks can be seen as productive and protective of the power and status of certain individuals and groups, as well as prescriptive, or even exploitative, of others’ relative lack of power and status. However, as will become clearer in the course of our analysis, we see sex as not only the site of its own construction but also a site through which other issues (protection, safety, propriety and so on) can be highlighted and defined. Hence we are not particularly concerned with which regulations can be regarded as sexually progressive or repressive; we are concerned not so much with evaluations of those regulations as with explanations of the their underlying workings, and as such then, this book is more about the contemporary concerns that shape sex, than about sex itself. The next section outlines some of the varying ways in which sex has been conceptualized in contemporary thinking.

Competing constructions of sex and sexuality

Sex is often a slippery and indeterminate category or concept. It has been conceptualized in a myriad of different and sometimes competing ways. Drawing upon such diverse writings as those of sexologists and psychoanalysts, feminists and libertarians, it is clear that there is not (and never has been) any agreed definition of sex. Yet this does not mean that sex as such cannot be interrogated and indeed, many academics, particularly in the last 30 years or so, have attempted to do so. In the process and even in its supposedly ‘normal’ and ‘natural’ manifestations, it is clear that sex is a highly complex and multi-layered phenomenon. Sex is traditionally thought of as taking place between adult, heterosexual couples in intimate settings such as bedrooms, and is constituted as being not only personal and private, but also legal and acceptable. Of late, however, concepts of sex have resisted such limited categorization; sex has broken out to become a site of conflict and debate, gaining public attention through being formulated in a vast array of different guises, including appearing in terms of new phenomena such as ‘date rape’ and other recent inventions like sexual ‘grooming’, both of which were unheard of only a few years ago. In its many new and different guises then, sex has become increasingly ambiguous, contested and difficult to pin down.

This is not to argue that there have not been numerous theoretical attempts to specify precisely what sex is. However, by refusing to hold sex in place or pin it down, we want to highlight the basic point that sex can be opened up to a wide range of interpretive possibilities, which may or may not on the face of it, appear to have anything to do with conventional understandings of sex. In this way, we are of the view that sex has no pre-discursive, foundational location. In other words, we can never really ‘know’ what it is we are dealing with when we speak (or write) about sex. As Plummer (2004) maintains: ‘Sexuality … has no reality sui generis, and any concern with “it” must always harbour wider social issues: human sexualities have to be socially produced (no human can ever just do it). S...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Dedication
• Acknowledgements
• Introduction moral authoritarianism and official and quasi-official discourses of sex
• Deconstructing official discourse of sexual violence
• Destructive sex: sexual autonomy, victimhood and the ‘problem of men'
• Threatening sex: protection, communities and childhood
• Commercial sex: consent, coercion and exploitation
• Deconstructing quasi-official discourse of sexual infractions
• Nuisance sex: harassment, collusion and decency
• Professional sex: ethics, trust and moral guardianship
• Transgressive and digital sex: margins, edges and limitless victims
• Conclusion: victims, perpetrators and the new sexual enterprise
• Bibliography
• Index