“Building a hedge around the law” in contemporary sexual ethics

This Jezebel piece by Jia Tolentino on David Bowie’s sexual encounters with underage girls is a fully considered, nuanced discussion of a complex issue. On the one hand, Tolentino takes Lori Maddox’s account of the incident seriously and respects the fact that she doesn’t understand it as rape, but on the other hand, she is clearly glad that social mores have changed such that a similar situation would definitely be condemned by mainstream culture today. And a big part of the shift in sexual ethics is a direct reaction to the simplistic and destructive reception of the “sexual revolution” that knocked down the existing sexual regulations — which really were restrictive and worthy of being knocked down — but left the gender hierarchy and its attendant power dynamics in place. The author quotes Rebecca Solnit:

The culture was sort of snickeringly approving of the pursuit of underage girls (and the illegal argument doesn’t carry that much weight; smoking pot is also illegal; it’s about the immorality of power imbalance and rape culture). It was completely normalized. Like child marriage in some times and places. Which doesn’t make it okay, but means that, unlike a man engaged in the pursuit of a minor today, there was virtually no discourse about why this might be wrong. It’s also the context for what’s widely regarded as the anti-sex feminism of the 1980s: those women were finally formulating a post-sexual-revolution ideology of sex as another arena of power and power as liable to be abused; we owe them so much.

In discussions of contemporary sexual ethics, a lot of focus lands on the question of “consent,” and there is considerable anxiety about losing the spontaneity of authentic sexuality amid all the bureaucratic red tape (or something). This article reminds us that a lot of what might have seemed like spontaneity was deeply conditioned by power relations of which the participants were not fully aware (though we have to assume that an adult man like David Bowie was, or should have been, more aware of them than a star-struck 15-year-old).

The emphasis on explicit consent has to be situated in a larger concern to eliminate borderline situations where power dynamics can creep in unannounced. To use an example from my own profession: yes, there are probably cases where a professor and a student could date and it would be fine. But we can never know for sure that a particular case is one of the “fine” ones, and hence it is more prudent to avoid that situation altogether. Presumably there are also many teenagers who would be thrilled to have a sexual encounter with a more experienced, older partner — the idea certainly crossed my mind when I was a teenager — but the power imbalance between a minor and an adult is irreducible, so such encounters should be disallowed just to be safe.

The logic here is exactly like the rabbinic principle of “building a hedge around the law,” which is to say, creating auxiliary regulations that will ensure that a situation that violates the law simply never arises. The most striking example of this is the prohibition of combining meat and dairy in a single meal. This very wide-ranging regulation stems from the enigmatic commandment against eating a baby goat that had been boiled in its mother’s milk. While that situation is seemingly easily avoidable, structuring your diet such that you would never think to eat any meat with any dairy means that you can be absolutely sure you’re never violating it.

Yes, you miss out on some good food as a result — my heart goes out to all the devout Jews who will never taste a cheeseburger — but the divine commandment is much more important than that. Similarly, in the aforementioned power-imbalanced sexual liaisons, it’s possible that some positive encounters and relationships are being lost, but the imperative to avoid sexual abuse and exploitation is far more important — and there are, after all, other fish in the sea.

This principle can be extended further. For instance, one reason that the handling of sexual assault on college campuses is so problematic — leaving aside the bad faith of many of those involved — is that so many cases take place in situations involving extreme drunkenness on the part of one or both partners. Presumably there are cases where one or both partners “would have” consented if sober or where one partner is genuinely confused about consent, just as there are indisputably cases where sociopathic young men intentionally prey on drunk women. Rather than having to decide which is which, it would be better if there were a strong social norm against having sex at all while extremely intoxicated — or best of all, if campus social life did not center so much on getting blackout drunk (a phenomenon that administrators need to take responsibility for). Who could seriously claim that half-remembered hook-ups are so valuable as to outweigh the potential for violence and trauma?

At the end of the day, of course, rules can’t save us on their own. I’ve written before about the ways in which even the language of consent itself is gameable. And there is something inorganic about a legalistic approach to sex, where we really do want spontaneity — though the explosion of interest in the extremely ritualized, legalistic BDSM (both among practitioners and among philosophers such as Agamben) indicates that at least some of us can imagine a radically less spontaneous form of sexuality with considerable enthusiasm.

What the language of contract and consent points toward is the demand for sexuality to be always and only a fully transparent encounter between two consenting equals, for power relations to be left outside — or in the case of BDSM, radically repurposed within — the bedroom. That demand seems to me to be ultimately unachievable in any absolute sense, but it has a genuinely utopian appeal. And I certainly trust that demand more than I trust the advocates of spontaneity who look back whistfully on the “simpler times” before political correctness ruined sex — people whose buzz is killed if they can’t bring their dominance with them into the bedroom.

One thought on ““Building a hedge around the law” in contemporary sexual ethics

  1. “Against our will” is good on all the crazy pro-rape cultural products post sexual revolution. The rape rates were high as well with about 2 times the current rate in 1974.

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