Sex, Crime and Morality

Sharon Hayes, Belinda Carpenter, Angela Dwyer

• Publisher: Willan
• Year: 2012
• Print ISBN: 9781843928164
• eBook ISBN: 9781136575969
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Over the last few decades, there has been a marked increase in media and debate surrounding a specific group of offences in modern Democratic nations which bear the brunt of the label 'crimes against morality'. Included within this group are offences related to prostitution and pornography, homosexuality and incest and child sexual abuse. This book examines the nexus between sex, crime and morality from a theoretical perspective.

This is the first academic text to offer an examination and analysis of the philosophical underpinnings of sex-related crimes and social attitudes towards them and the historical, anthropological and moral reasons for differentiating these crimes in contemporary western culture.

The book is divided into three sections corresponding to three theoretical frameworks:

• Part 1 examines the moral temporality of sex and taboo as a foundation for legislation governing sex crimes
• Part 2 focuses on the geography of sex and deviance, specifically notions of public morality and the public private divide
• Part 3 examines the moral economy of sex and harm, including the social construction of harm.

Sex, Crime and Morality will be key reading for students of criminology, criminal justice, gender studies and ethics, and will also be of interest to justice professionals.

1

Introduction

Recently, we were fortunate enough to attend a seminar on sex work and sex blogging, listening to a paper by Kitty Stryker, sometime postgraduate student, full-time sex worker/blogger and self-proclaimed dominatrix.¹ While sex, crime and morality has been a topic of research interest for us for some time now, we didn’t fully understand the impact of the connection until we were sitting watching ten-foot-high images of bondage scenes flash across the screen as Kitty delivered her speech. In her dulcet Californian accent, she described how men and women would seek her out, engage her services and pay her for them. She was, she claimed, not your average dominatrix – no cat suit and spiked heels for Kitty, it seemed. It was all converse sneakers, ponytails and geeky glasses, though she clearly had the curvaceous equipment one usually thinks of when picturing the image of your stereotypical dominatrix. What was interesting, though – apart from the incongruous geekiness – was her feminist understanding of her trade. She might whip people in tender places, tie them to the bed and make them submit – and enjoy it – but she was damned if she was going to compromise her feminist identity for the sake of some sick misogynist fantasy about thigh-high boots and leather! What this brought home to us was just how far we, as a society, have come in terms of conceptualizing and talking about sex in general, and sex work in particular. Chapter 7 of this book gives a more detailed description and analysis of that seminar, but here we just want to point out the way in which, as Jeffrey Weeks puts it, we are constantly participating in the “remaking of erotic and intimate life”.²

As recently as the 1980s, feminists were arguing that sex work and pornography damaged women beyond repair,³ religious groups were campaigning against all kinds of things to do with sex, and the general public kept sex talk pretty much under its hat, the combination of which drove sexual commerce underground and resulted in a new Puritanism that lasted almost into the twenty-first century. There has been a shift, however, in how we think and talk about sex, and in what we find acceptable. Western nations particularly have been repealing legislation regulating sexuality and sex work, and the topic of sex has suddenly become acceptable, not only in academic and intellectual circles. Sitting in the seminar, we couldn’t help but marvel at this shift in perspective, even as a fundamentalist Islamic student group gathered outside our seminar room for their weekly meeting. The incongruousness of these two groups coexisting signifies just how much broader we, as a society, view the bounds of acceptable practices. Weeks comments that this can be attributed to “the global circulation of the idea of non-heterosexual, non-familial choice”⁴ in sex as something to which more and more individuals are subscribing. This book takes that observation as its starting point.

Concomitant to this shift, however, we have also seen a massive increase in the legislation and regulation of other forms of non-normative sexual behaviour. At no other time in history has incest and child sexual abuse, for example, been more publicly reviled. Similarly, sex trafficking has come under fire, particularly in the United States and the UK. Both have created what we often hear described as “moral panics”, fuelled by both media and political attention, creating a perception in society that sexual predators are everywhere and that our children are no longer safe. The nexus between sex, crime and morality, then, is complex and multilayered, and grounded in conflicting social perceptions and discourses. We hope this book unravels some of this complexity and provides insight into how sex, crime and morality interact in our society.

The germination of this book occurred over several years after two of us were asked to write a chapter for a criminology textbook. The topic was to be “crimes against morality” and, initially, we conceived of such crimes as those we sometimes refer to as “victimless crimes”. After several brainstorming sessions and a couple of bouts of procrastination, we discovered that our perceptions weren’t quite right – that, in fact, the very naming of a crime as victimless was problematic, fraught with complexities from a variety of standpoints, including (but not confined to) feminism, psychology, public health and criminology itself. The idea that a behaviour or action entered into by informed adults (and which does not harm others) should be criminalized seems paternalistic at best, and yet it is clear that morality and moral values underpin so many of our laws – so, why not these ones? On the other hand, there is some doubt about whether crimes such as prostitution and recreational drug use are actually victimless. Unless an individual acts in complete isolation, their actions exponentially affect a number of others, depending on the social, legal and personal relationships with which they engage. To make things more complicated, we realized that the kinds of crimes that raise the most public debate concerning criminalization were those that had something to do with sex. While decriminalization of recreational drug use has been raised a number of times in public arenas over the past three decades, these are not the kinds of crimes that tend to create moral panic – rather, it was crimes such as child sexual abuse, sex work and pornography that raised levels of public ire on a regular basis, and that were the cause of spirited exchanges in both media and parliament. Thus began our ongoing debate, through which we slowly came to realize that most “crimes against morality” had less to do with being victimless and much more to do with values and beliefs about sex, sexuality and the family.

The purpose of this book, then, is to examine the nexus between sex, crime and morality. We take a multidisciplinary perspective because we want to explore a variety of discourses from legal, criminological, philosophical, feminist and psychological perspectives. While we will argue that all crimes have a general moral basis, condemned as “wrong” or “bad” in the society in which they are proscribed, the specific group of offences in modern democratic nations that bear the brunt of the label include prostitution, sex trafficking and pornography, homosexuality, and incest and child sexual abuse. Interestingly, the offences of incest and child sexual abuse are differentiated legally (if not morally) from sex crimes such as rape and sexual assault. This book examines the historical, anthropological and moral reasons for such differentiations in contemporary western culture. We will not, however, examine rape and sexual assault per se. This book is not about violence and violent crimes; rather, it is about those sex crimes that are not necessarily already covered by the criminal code in terms of assault and bodily harm.

What these crimes have in common, apart from a sexual basis, is that there is some debate over whether they result in sexual harm, in both a moral and a psychological sense, as well as physically. Conversely, they are often argued to be victimless crimes, especially when the acts occur between consenting adults. Finally, they are considered essentially private acts, but they often occur and are regulated in the public domain. Most importantly, each of these crimes against morality has only relatively recently (that is, in the past 150 years) become identified and regulated by the state as a criminal offence.

These crimes now take up a large part of the public, political and cultural agenda. Over the past few decades, there have been debates over the legitimacy and status of same-sex relationships, the legality or illegality of prostitution, the role of pornography in consenting adult relationships, and the problem of child sexual abuse. These debates have occurred in both Australia and the UK, and across the rest of the western world. They have culminated in a range of political and legislative responses, including the decriminalization of brothel prostitution in many parts of the west, often combined with a concomitant increase in the penalties against other forms of commercial sex, such as street prostitution; a relaxation in the laws concerning same-sex partnerships and homosexuality across Australia, UK, parts of the USA and Europe; an explosion in the amount of pornography available via the world wide web and a range of approaches to its production and policing; an increasingly hardline approach to all forms of child sexual abuse; and a heavily punitive regime of penalties aimed at sex offenders.

While the places where sex and morality meet have shifted over time, these two concepts continue to form the basis of criminal legislation. Such offenders of sexual mores are positioned as the reviled corruptors of innocent children, the purveyors of disease, an indictment on the breakdown of the family and/or the secularization of society, and a corruptive force. While other types of offending may divide public and political opinion, the consensus on sex crimes appears constant. This book examines the origins of these attitudes and offers a reinterpretation of the traditional approach to crimes such as prostitution, pornography, incest and homosexuality through a re-examination of a range of philosophical concepts, including harm, consent, freedom and victimization. We hope this book offers a unique analysis of the theoretical underpinnings of sex-related crimes and the social attitudes towards them.

The book is divided into three sections corresponding to three theoretical frameworks: Part 1 examines legal moralism and legal paternalism as a foundation for legislation governing sex crimes; Part 2 focuses on the notion of a public morality and the public–private divide as a way of understanding how sex crimes are categorized and regulated; and Part 3 examines the social construction of harm in order to highlight the connection between sex, consent and social mores. In each section, two case studies of sex crimes are used to illustrate the particular theoretical concepts, which are reworked for a contemporary audience. We wish to note that the choice of case studies is purely for illustration purposes – each of the sex crimes discussed in each section of the book could just as easily be examined within either of the other two theoretical frameworks. For example, in Part 1 we chose incest and pornography to illustrate the moral temporality of sex and taboo. However, both these crimes fit just as easily into a discussion about the moral geography of sex and crime (discussed in Part 2) or the moral economy of sex and harm (Part 3). The rationale for choosing the case studies in each section was informed by the context in which those crimes are generally thought about. Social perceptions about the dangers of pornography and incest have developed in fascinating ways over the past several centuries, and these crimes seemed the perfect illustration in the context of a discussion about moral temporality. Similar rationales, of course, also characterize Parts 2 and 3. We have endeavoured to make the rationale in each section of the book as clear as possible, and hope this will enable the reader to engage with the theoretical framework in ways that are meaningful to them.

As mentioned above, Part 1 discusses the relationship between law and morality. Morality does not necessarily coincide with the law, but it contributes to it. An act may be legal, but nevertheless considered to be immoral in a particular society. For example, the use of pornography may be considered by many to be immoral. Nevertheless, the sale and distribution of non-violent, non-child-related, sexually explicit material is legal (or regulated) in many jurisdictions. Many laws are informed by, and even created by, morality. Part 1 thus examines the historical influence of morality on the law and on society in general. Chapter 2 aims to develop a theoretical framework for examining legal moralism and the social construction of morality and crime, as well as the relationship between sex, desire and taboo. Here, we refer to the moral temporality of sex and taboo, which examines the way in which moral judgments about sex and what is considered taboo change over time, and the kinds of justifications that are employed in support of changing moralities. It unpacks the way in which abstract and highly tenuous concepts such as “desire”, “art” and “entertainment” may be “out of time” with morality, and how morality shapes laws over time, fabricating justifications from within socially constructed communities of practice. This theoretical framework maps the way in which these concepts have become temporally dominated by heteronormative structures such as the family, marriage, reproduction and longevity. In this context, heteronormativity refers to the normalizing of heterosexual structures and relationships, and the marginalization of everything that doesn’t conform. We argue that the logic of these structures is inexorably tied to the heterosexual life-path, charting individual lives and relationships through explicit phases of childhood, adolescence and adulthood that, in the twenty-first century, delimit the boundaries of taboo surrounding sex more than at any other time in history.

In chapter 3, we argue that morality and taboo come together in the modern psyche over a concern with incest and sexual relations between related family members. The conceptualization and identification of incest as a sex crime is relatively new and is based upon recent ideas about the innocence and asexuality of children, the predatory nature of men, and the harm and damage to the victim caused by such abuse. We discuss cases such as Josef and Elisabeth Fritzl, which recently made media headlines, with a view to explaining why this case attracted such horror and outrage, and argue that it is contemporary understandings of childhood that have had the most impact on current views about the moral taboo of incest. Such a shift in our moral understanding of children underpins the fear for the child as a sexual victim, and has led to the defining of father/daughter incest as the harm to which children are at risk. Incest, however, has a long and varied history. Our modern understanding has enabled incest to be named, perpetrators to be punished, and victims to be treated. However, this new incarnation of the moral taboo of incest is the culmination of 150 years of social and legal concerns over children and sex. Certainly such acts are harmful and abhorrent in the context of the twenty-first century, but the belief that a large proportion of the population is at risk of such harm is misleading. Such a focus on the harm of sex for children under the age of sixteen also ignores the fact that, within the criminal justice system, children as young as thirteen years of age are held to be capable of reason and intent. This differentiation between criminal responsibility and sexual responsibility highlights both the arbitrary nature of the age of consent and the clear boundary between sexual knowledge and childhood.

Chapter 4 charts key discursive shifts that have led to modern ways of thinking about pornography as a morally contentious issue. By charting the historical relation between pornography and obscenity, we will discuss the shift from a public discourse of sex, where sex formed a prominent part of much reading material, and was consumed as part of the public discussion of sexual matters, to the private consumption of pornography, which was created as sexually explicit material specifically designed to elicit a sexual response. Moreover, we will explore how this shift from sex as a public discourse to sex as a private discourse was accompanied by larger shifts in the regulation of sexuality, especially for women and children, and chart how this shift can be traced, in part, to a significant change in the way in which male and female sexuality was understood at this time. Most specifically, the nineteenth-century discovery of the irrelevance of an orgasm for women in the process of conception severed the link between pleasure and sex that had much to do with changing notions of femininity as passive and asexual. This has had major implications for the ways in which pornography is currently conceptualized. Finally, we will discuss how current perceptions of sexual development, which, as we have seen in chapters 2 and 3, draw heavily on notions of sexual innocence and sexual purity, have been shaped historically by moral concerns about children and sex, which came to the fore in concerns about masturbation, or solitary sex, linked specifically to the rise of visual pornography. The shift from literary to visual pornography was the moment when regulation was required to manage the working class and children, who, it was maintained, did not have the competencies to consume sexually explicit material.

Part 2 examines the nexus between crime, morality and public space, and questions whether we can identify a public morality. We all subscribe to certain social norms and conventions that suggest that, as a society, we share some common values. However, there is some debate about what those values are and what they mean. This section explores the idea of a public morality and the divide between public and private morality. It also examines the concept of offensive behaviour and the social construction of what is offensive, and traces the development of legislation governing public indecency in the UK and Australia. As such, it analyses the moral geography of sex and crime, specifically, how public space is used to regulate certain acts. This is illustrated by two case studies – the regulation of child sex offenders and sexually non-normative individuals – to describe how conceptions of the public and private have developed and influenced what is acceptable behaviour in public and private spaces. In chapter 5, we explore the theoretical underpinnings of moral geography and how public space directs the criminalization of certain sex acts, and the governing of criminals associated with these acts. The chapter traces the historical development of the notion of space and unpacks the rationale behind how spaces at large are governed, particularly with respect to sexual behaviour. We argue that, because of the heteronormative nature of public morality, which privileges traditional institutions such as families and heterosexual marriage, public spaces are governed by legislation preventing individuals from engaging in acts that are considered offensive to those ideals.

In chapter 6, we examine social and legal discourses concerning chi...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgments
• 1. Introduction
• Part 1
• Part 2
• Part 3
• Notes
• Index