Sex, Consent, and the Dangers of "Misplaced Scale"
By Masha Gessen, The New Yorker
14 December 17
Thirty-three years ago, Gayle Rubin, a cultural anthropologist and feminist
activist, observed that, during certain times in history, humans tended to
renegotiate the sexual order. The late nineteenth and early twentieth
centuries in England and the United States were such a period; the
nineteen-fifties, when the popular imagination linked the threat of
Communism to homosexuals, was another. In her still influential essay
Thinking Sex, Rubin didnt offer a hypothesis to explain why these periods
called for a rearrangement in the sexual sphere, but she noted that they
produced laws, institutions, and, most important, norms that governed
sexuality for decades after.
Its possible that we are living through such a period now. It is also
possible that, like previous renegotiations, this one has been brought on by
the fear of a world careening out of control. The time has come to think
about sex, Rubin wrote in the opening lines of Thinking Sex. To some,
sexuality may seem to be an unimportant topic, a frivolous diversion from
the more critical problems of poverty, war, disease, racism, famine, or
nuclear annihilation. But it is precisely at times such as these, when we
live with the possibility of unthinkable destruction, that people are likely
to become dangerously crazy about sexuality. Fast-forward to 2017: we are
living with the possibility of unthinkable destruction, but we seem to be
spending significantly more time discussing the sexual misbehavior of a
growing number of prominent men than talking about North Korea or climate
change.
Rubin did not expect good things to come from the renegotiation of the
sexual sphere. The problem, she wrote, was the fallacy of misplaced scale:
sex loomed so large that any sexual transgression, or imagined
transgression, might bring extreme punishment. She quoted Susan Sontag, who
wrote that everything pertaining to sex has been a special case in our
culture.
Consider the case of the former Oklahoma state senator Ralph Shortey, who is
scheduled to appear in federal court in Oklahoma City on Thursday to plead
guilty to child trafficking. Shortey, who is thirty-five, married, and
politically very conservative, was arrested in March in a motel room where
he apparently planned to have sex with a seventeen-year-old boy whom he had
met on Craigslist. They had negotiated sex for payment before coming to the
motel. According to investigators, Shortey had been advertising for young
men for a number of years, and had sent commercial pornography to some he
had met online in exchange for naked pictures of them. The age of consent in
Oklahoma is sixteen, and all the teen-agers involved were at least that old.
But federal laws on child pornography and child prostitution cover people
under the age of eighteen, and pornography doesnt necessarily mean
pornography: any naked photo may be prosecutable, and trafficking doesnt
mean traffickingno movement, capture, or pimping need occur. Because
Shortey was facing prosecution for child trafficking and several counts of
child pornography (every photo can be a separate crime), he was looking at
life in prison. As a result of the plea deal, he will go to prison for at
least ten yearsfor what appears to have been a series of entirely
consensual encounters between legal adults. This is an example of misplaced
scale.
Consider a very different example. Glenn Thrush, a White House reporter for
the Times, was suspended in advance of the publication of a story, by Vox,
that described multiple instances in which Thrush made sexual advances
toward younger women. In one, he kissed a woman on the ear (at the time, the
woman seemed to have shrugged it off); in another, there was a consensual
but aborted sexual encounter. All of the incidents appear to have involved
consumption of alcohol, none occurred in the workplace, and none involved
force. None of the women reported to Thrush, who, as a reporter (then at
Politico), was nobodys boss. The Times announced that it was suspending
Thrush because of accusations of inappropriate sexual behavior. This is
another example of misplaced scale: employers do not normally appoint
themselves arbiters of appropriate behavior outside the workplace. It is
hard to imagine a non-sexual example of non-work-related behavior that would
get a reporter preëmptively suspended in the absence of any crime or
misdemeanor.
Rubins essay was written during a period now remembered as the feminist
sex wars. The womens movement had split into two camps: a less audible and
less visible sexual-liberationist wing and a dominant wing that was highly,
militantly suspicious of sex. The latter wing strove to tame and defang sex
so that it would not contain even a hint of power.
The feminist sex wars raged largely unnoticed by the larger culture. The
battles, though, concerned a lot of the issues directly relevant to the
current moment of sexual renegotiation. One such issue is consent. One side
argued that no consensual act should be punishable by either law or social
sanction. The other side focussed on the limits of consent, arguing that
consent was sometimesor even most oftennot entirely freely given, and that
some things, like injury sustained during S & M sex, could not be the object
of consent.
The idea that consent is irrelevant is clearly present in the Shortey case:
the young men had reached the age of consent and had given their consent,
but the federal government still views them as victims. The story on the
basis of which Thrush was suspended muddies the waters on consent: one of
the women has clearly said that she had consented to an encounter, and two
others rejected Thrushs advances, successfully withholding consent. Still,
all the women are cast as victimsincluding the woman who clearly stated
that she does not consider herself a victim.
The conversation we are having about sex began with incidents that involved
clear coercion, intimidation, and violence. Paradoxically, it seems to have
produced the sense that meaningful consent is elusive or perhaps even
impossible. On Tuesday, the band Pinegrove announced that it was suspending
its tour because its front man, Evan Stephens Hall, had been accused of
sexual coercion. The details of that particular accusation are unclear. But,
on the groups Facebook page, Hall posted a statement that seemed to sum up
his sense that women, at least when faced with a famous man, cannot make
adult choices: i have been flirtatious with fans and on a few occasions
been intimate with people that ive met on tour. ive reached the conclusion
now that thats not ever appropriateeven if they initiate it. there will
always be an unfair power dynamic at play in these situations and its not
ok for me to ignore that.
The timing of this current sexual renegotiation makes sense. Sex is one area
where, it seems, we can change something. In this way, sex is different from
a nuclear holocaust or a climate disaster. But, while we think we are moving
forward, we may be willingly transporting ourselves back to a more sexually
restrictive era, one that denied agency to women.
In the past, sexual laws and regulations have most often been strengthened
in the name of protecting children. For over a century, no tactic for
stirring up erotic hysteria has been as reliable as the appeal to protect
children, Rubin wrote in 1984. Sometimes the children are symbolic:
anti-gay crusades are almost invariably framed in terms of saving the
children not specific children, but just the children who have to share a
country with queers. In the current American conversation, women are
increasingly treated as children: defenseless, incapable of consent, always
on the verge of being victimized. This should give us pause. Being
infantilized has never worked out well for women.
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