There was once a time when cries were heard about getting criminal laws out of our bedrooms. Crimes such as “unnatural sex,” were common. Interracial sex violated pervasive anti-miscegenation laws. And then people figured out they didn’t want the government telling them how to behave in the privacy of their bedrooms, and our Puritan crimes fell away.
But like all perverse pendulums, it’s swinging back. Government, get back in the bedroom and do something.
In the New York Times, Philosophy and Gender Studies professor Laurie Shrage writes about the wrongfulness of requiring individuals with HIV to disclose their condition to their sex partners.
H.I.V. disclosure laws give too little weight to the interests and rights of those who are H.I.V.-positive, while overvaluing and overestimating the benefits of transparency for society. By repealing these laws, we move in the direction of adopting more just and effective policies for combating the H.I.V. epidemic, while protecting the most fundamental human rights.
“Wait,” you say. “She’s calling for the repeal of H.I.V. disclosure laws. You got it backwards.” Well, that’s true, but then she also writes:
Why do disclosure requirements for sex partners focus only on the harms of acquiring H.I.V. or another sexually transmitted disease, but ignore other kinds of harm, such as the economic or psychological injuries caused by a lack of transparency? Should we be able to bring charges against former sexual partners who failed to disclose their marital status, sex offender status, fertility status, or assigned gender? To respect a partner’s moral right to sexual autonomy, we probably should disclose these kinds of facts, but when should such moral requirements be translated into legal ones?
Failures of disclosure in sexual transactions can cause serious emotional trauma, reputational damage (to women, mostly), unwanted pregnancies, as well as the transmission of disease. There is no good reason to limit the moral and legal transparency requirements for sexual interactions to H.I.V. disclosure.
There’s the rub. The H.I.V. disclosure laws arose at a time of a moral and health panic, when AIDS meant certain death, and sex with an H.I.V. positive person was a death sentence. Not that it doesn’t remain a serious and terrible health issue, but it’s no longer a guaranteed grave. Yet, the laws remain intact, as do crimes against nature in some backward states.
But the comparison between a killer disease and “the moral and legal transparency requirements” is one that is happening already, provided its morality from a singular perspective. So what if it contrasts death with “emotional trauma”? Don’t feelings matter just as much as death?
The moral imperative once meant that black men better keep their hands off white women or be prepared to hang. It’s now being urged to apply to all men. Well, at least it isn’t based on racial prejudice anymore, right?
At Occidental College in Los Angeles, a young man has been expelled for the rape, “even after police acquitted him.”*
The student, identified only as “John Doe,” had sex with his accuser on September 8th, 2013, according to details of the case obtained by the Foundation for Individual Rights in Education. Both Doe and his accuser had been drinking. By several accounts, the sex was consensual. The accuser sent Doe a text message beforehand asking him if he had a condom. She also texted a friend and clearly announced her intention to have sex with Doe.
After that night, the accuser spoke with several Occidental employees, including Danielle Dirks, an assistant professor of sociology. Dirks told the accuser that Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports team], and was ‘from a good family.’”
A week later, the accuser filed a sexual assault report against Doe.
On the bright side, the expelled rapist remains unnamed, unlike his counterpart at Duke. That’s where the bright side ends. There appears to be little question but that the sex was consensual, at least if one defines consensual as two individuals who affirmatively decided to engage in intercourse.
But then, after the sex was done, something happened. A sociology professor explained to the female that he had rapist written all over him. High GPA. Valedictorian. Sports. Good family. A guy can’t get any worse than that. But didn’t she, you know, want to do it as well?
[T]he college hired attorney Marilou Mirkovich to investigate the matter. Mirkovich concluded that the female student did indeed consent to sex. However, since she was intoxicated, her consent was invalid, according to Mirkovich.
And so Doe gets the boot, that sick Valedictorian rapist from a good family.
The push to change prevailing attitudes is strong, with no less a moral figure than the president behind the eradication of sex and reason on campus. There is an epidemic, we’re told, though we’ll get around to finding it later. For now, it’s enough that we know it, we just know it. Anecdotes of vagaries are more than sufficient. Don’t you believe them?
But as prevailing attitudes change, so too do the consequences and the protections. Much as the issues abound with sex offender registries destroying lives of people who aren’t sex offenders in anyone’s imagination, the defining down of bedroom crimes not only puts all young men at risk of buyer’s remorse with extreme prejudice, but gives rise to an expectation that they are undeserving of a fair opportunity to challenge and defend themselves from accusations. It’s a double whammy.
And it’s happening. On many fronts. And sadly for people who share a progressive concern with such issues as free speech, overcriminalization and the evisceration of due process, there is an internal conflict of moral causes, and these “old school” concerns are expected to give way to the heart-rending emotional traumas suffered by women.
Maybe if Occidental’s John Doe had H.I.V., someone other than FIRE might give a damn about his being expelled as a rapist, with all the related damage he’ll endure. But consensual sex with a Valedictorian? What else could he expect?
* Sorry for inclusion of the quote, but it was a line in the Reason story that I can’t ignore. Police do not acquit. Someone should have informed the author, Robby Soave, so that the line would be removed. It pains me greatly to see it there, and I would be remiss not to point this out.
H/T Radley Balko