Ruminations 62: Sexual Assault at the American Law Institute (ALI)--Consensus and Control in the Legalization of Cultural Norms

(Pix © Larry Catá Backer 2015)

 I have been following the extraordinary controversy about the proposed changes rt the criminal law of Sexual Assault in the American Law Institute's (ALI's) Model Penal Code (e.g. here, and here). The proposals are important, not only for what they tell us about the use use of law to effect politico-cultural ends, but also have significant implications for the aggressive efforts by the Federal Government to us its influence and regulatory authority to change the cultures of noncriminal sexual assault governance frameworks within American universities. 

And, indeed, the debate over the legalization of the cultural taboos about sex--that is of access to the bodies (especially of women)--is telling for what it reveals about the limits of tolerated behaviors among people and the extent to which deployment of the state is effective either in policing those borders or in effecting changes to the borders themselves. Certainly, that is the entente of the federal government is using its Title IX authority to change the behavior norms of rising demographic cohorts at a time of peaking sexual activity.

But there is a greater object then (merely) the mediation of cultural rules disciplined through criminal and administrative regimes (though that is a great object indeed). That object is cultural assimilation. That object is meant to bend the multi cultural variation in sexual mores, as part of the cultural variation that is otherwise celebrated as the cultural patchwork that somehow works as American sociopolitics into an orthodoxy that is mediated by the state and its legal-administrative apparatus. This is not a criticism, though it is an insight not without a certain amount of irony. And it is necessary at the borderlands of cultural variation that can incite substantial violence (see, e.g., here) when they come into conflict in the actions of its otherwise tolerated (indeed celebrated) variation (see, e.g., here, here. here, and here).

The cultural politics of the legal architecture of sex (not a new project by any means but as old as the organization of society in some respects) is made more difficult under the three conditions at the center of the ALI's project. The first touches on memorializing cultural norms in law in the absence of cultural consensus. The second touches on the feasibility of reducing cultural norms in the context of sexual conduct to law or administrative regulation in ways that was coherent, much less just (except in theory). Third, the legalization of power relationships. Let us consider each briefly.

1. Memorializing cultural norms in law in the absence of cultural consensus.  Western society has been undergoing a profound transformation  of its cultural norms relating to activity that might be understood as "sexual."  These transformations have neither been linear nor progressive.  And they confound traditional political factions--left, right, religious, secular, conformist, non-conformist, etc. These transformations focus on the right to personal autonomy--control of one's body, but at the same time seek to assert a severe right to control that body where it is commodified (e.g. prostitution), unless it conforms to certain societal norms that are waivers from a theoretically coherent view of commodification (dinner, a gift and sex) but only within a quite variable set of norms around these transactions--dating versus prostitution, etc.  Women are viewed increasingly as having full control over their bodies--unless they become pregnant (in which the state then claims an interest in the value of the fetus, and sometimes using the imagery and presumptions of religion, which also has an interest in control).  But that, of course, transforms a woman into a vessel, and object--but here the objectification of women is viewed as a positive even as the concept of female objectification is otherwise viewed as incompatible with evolving Western norms. Men are understood as having volition, and desire; female desire, much less volition, is at best a work in progress. And, indeed, in some circumstances the ancient, and quite controversial notion of active versus passive roles in sex becomes the touchstone of female/male presumptions in which passive females are to be protected against active males--even as these normative binaries are discredited as the foundation of societal, religious and political patriarchy and the organization of society.

These are old conversations now but their age does not suggest consensus. And, indeed, that is the point.  There was a time when law could follow consensus.  That was certainly the case when society was more homogeneous and where elites could with legitimacy impose their views as the only culturally, societally and legally possible approaches to conduct (see, e.g., here, here).

Yet the old consensus "deal"--the nominal Primacy of law as the basis of our social structuring overlaying the deep fundamental agreement that Religion, fundamentally Christian norms--remains powerful in this society. This layered understanding is contested in ways unheard of fifty years ago, and eroded in some areas of lawmaking. (Larry Catá Backer,  "There Can Be Only One: Law, Religion, Grammar and Social Organization in the United States," in  Law and Religion: A Critical Anthology (Stephen M. Feldman, ed., N.Y.U. Press, 2000) 425-463, 459).

But with the disappearance of official consensus in the wake of the transformation of American society in the aftermath of its assent to world power and metaphor for global society after 1945 (see, e.g., here) no substitute consensus has appeared to take its place, and indeed, the old understandings are still embedded in our discourse and law (see, e.g., HERE).  In that vacuum, within this state of normative anarchy, legalization cannot fill the void.   

And then there are issues of legal coherence.  Consent, for example remains an issue in which in the sexual context the presumptions otherwise applicable through law are reversed.  In a completely non-sexual context, the Supreme Court today said “silence implies consent.” See Kernan v. Hinojosa, No. 15-833, Per Curiam Opinion (May 16, 2016), pg. 3 (“silence implies consent, not the opposite—and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below.”), quoting Ylst v. Nunnemaker, 501 U. S. 797, 804 (1991). Yet in a sexual context silence can mean any number of things--from assent to passive calculation that the injury of sexual violence is less than the consequences of resistance (see, e.g., here). This has generally not been a problem in Anglo-American law: a word may have quite distinct meanings, and consequences, depending on the legal context in which it is deployed.  Yet the move toward variation, and even contradiction, in meaning can have its dangers.  It is one thing to cultivate such disparate understandings of a word in context among specialists dealing with a small and cohesive community of legal actors (merchants, for example under the Uniform Chimerical Code).  It is quite another to cultivate such complexity and nuance where the object is to use the laws as a register of societal norms for an infinite variation of conduct deemed sexual. And this becomes more complex as the context in which conduct that is is sexualized may change other time and among sub communities.


2. Reducing the cultural norms of sexual contact to law or administrative regulation in ways that was coherent, much less just (except in theory). Sexual contact is complex.  It is one thing to seek to prohibit a set of quite specific conduct that falls beyond the boundaries of whatever passes for shared values.  There is a large core of those conduct that remain substantially beyond dispute and within the law's power to discipline, even through the criminal law.  But where the criminal law is used instrumentally for broader purpose, when it is used to shape the cultural mores it is supposed to support, then the inversion will produce contradiction. And it shifts power from the community within which mores are expressed and managed, to its elites.  That is no doubt necessary in a community as fractured as that in the United States.  Yet it puts culture in the uneasy position of becoming a political tool--that is to some extent the ALI's efforts at managing the rules of sexual assault are also a small part of a larger enterprise, to transform culture from societal to political expression.

The mechanics of that transformation is legalization--not the legalization of prohibited conduct, an ancient practice--but the legalization of the expression of culture itself. But cultural expression in law is as difficult as using contract to minutely specify the conduct expectations of an employee whose occupation is substantially made up of discretionary decisions.  We see in the ALI effort the extent to which information, negotiation and drafting costs make the use of law as means of controlling the political expression of culture such a difficult project.  And, of course, neither politics nor law can contain cultural practice.  The changes in attitudes toward fornication, adultery, same sex unions, and the scope of marriage rights suggest the ways in which neither politics nor law can contain cultural practices--and the political consequences of those disjunctions between practice, law and politics.  Legalization also shifts power--from the political to the judicial organs--who now serve as mediators between political culture legalized through the criminal and administrative law, and the practices it is hardly fit to contain. This is unavoidable in the United States which saw, in the 20th century, the maturation of a political culture which increasingly vested political authority over culture to the courts. The nature and process of norm making within culture is expressed through what we identify as “law” and courts as a place from which these standards are articulated. Yet neither legislatures nor courts have been effective vehicles for cultural transformations--they serve better as influential participants in cultural dialogue (see, here, and here).

Yet this cultural function of courts may well reduce the legitimacy of law, transforming it merely into the language of cultural discourse--though an important one (see, e.g., here).  Thus one hears in the ALI's own legal discourse the way in which legalization becomes a function of societal norms and societal normative interactions well beyond the precise conduct that is the object of criminalization. The discussion centers on the problems of overcriminalization, of overgrading far too much behavior as felonious, and of the collateral consequences of criminalizing cultural expectations:   the problems faced by defendants who almost always will have insufficient resources to mount a proper defense and, though guiltless, will be forced to plead to a lesser offense to avoid the risk of a felony conviction. These collateral consequences can also serve instrumental purposes in the personal battles between individuals who seek to use cultural machinery built into criminal law to their advantage: everything from life-long disadvantaging caused by a sex related charge, to the strategies of plea bargaining in the face of the potential of over-punishment, to abusive utilization of sex crime allegations non-criminal settings--divorce, child custody, revenge, personal advantage in other dealings like acquiring advantage over a competitor for a job promotion, to politics.

3.  The legalization of power relationships. What starts as a means of protecting people from unwanted contact of a sexual nature, then, becomes something substantially more.  For to comprehensively regulate unwanted contact of a sexual nature, one confronts the foundational premises of culture in the United States, and its relation to power--to power expressed in law.To understand consent, one has to construct premises about the autonomy of people, and the psychology of women.  One has to invest in premises of active and passive roles, and of the nature of the negotiation of contact.  But these touch on all interactions--just that they acquire a special meaning in the context of sexual contact.  And indeed, the emphasis of sexual contact as something substantially different from and more horrible than other forms of contact is also culturally embedded with a set of presumptions about sex, sexual contact and its relationship to the individual and the individual's autonomy that both reject but also reconfirm the basic premises of patriarchy (or matriarchy) and thus the power relationships inherent in sex. Penetration, consent, autonomy, the sacredness of the sexual--all of these are highly contentious and highly malleable subjects. They are malleable and contentious in themselves as well as in the premises that they might embed--everything from the frailty of females to social relations of gender, to the meaning of sexual contact for females and for males in a society that itself values bodies in ways that may be distinct from their value to the individual themselves.  Indeed, the terms "consent" and "penetration" themselves are laden with cultural presumptions about the nature of females and males, and the expectations of the rituals of sexualized touching.  They are redolent with cultural meaning to penetration not just in old patriarchal terms but in feminist autonomy terms.  They reflect the way in which society still conceives of its gender roles, how they are assigned and the way in which society seeks to value and manage sexual contact. 

These terms, then, are shorthand for the power relationships that are meant to be protected through the criminal law. Yet they are more than that.  They are efforts to manage a cultural revolution through law, first by centering the discussion of culture in law, and then my deploying the mechanisms of the production of law--its reliance on delegation of political authority to "representatives"-- as a cultural device. Such a use of law to effect cultural revolutions are a hallmark of American socio-political conversations.  They have been with us certainly since the great debates about slavery and the liberation movements that followed through the end of the 20th century.  Yet they have also proven to be clumsy methods for effecting cultural change and have produced some substantial consequences in everything from housing patterns to the rise of religion as a cultural making alternative.  Indeed, one can see in the revival of religion as a political and legal institution (through the Religious Freedom Restoration Acts) as a means of political resistance by permitting the creation of alternative legalities at least at the margins of law.   “One had to speak of sex; . . . one had to speak of it as of a thing to be not simply condemned or tolerated but managed, inserted into systems of utility, regulated for the greater good of all, made to function according to an optimum. Sex was not something one simply judged; it was a thing one administered.” (Michel Foucault, The History of Sexuality: An Introduction: 1).

These terms, though, are also political fetishes and the marks of programs of cultural reform through law that has made  the enterprise of law--and especially the ALI's enterprise of "producing scholarly work to clarify, modernize, and improve the law" (here)--inherently not merely political but ideological as well (one notes, for example in the debates about this version of Model Penal Code revision the ALI President's closing remarks to the effect that that the failure to accept the draft of the changes to the Sexual Assault provisions would retrogress law making a generation).    The line between contact, sexual contact and sexualized contact is infinitely variable and its meaning is deeply culturally embedded. Within a political community marked by such variation, the state must assume the power to mediate--to control.  But that control has cultural effect and advances the extent to which the locus of power in political communities  moves to the legislative and administrative sectors.  In pace of the Church we have the university; in place of the elders we have the state; in place of social disapprobation we have the criminal law.  This may be inevitable, but their effects ought to be understood.  To control the sexual is to control the bodies of those whose actions may be deemed to fall within those definitions.  The irony, then, of the legalization of power relationships is for individuals to lose the power over their bodies, and the autonomy of private interactions, in the name of opening a larger space for the free expression of personal autonomy and the protection of private interactions. 

We will have our Model Penal Codes.  And we will have our regulation of sexualized conduct.  We will have them because we will continue to value the sexual as something special--for the individuals, for families and for the state.  There is little of the private in contact that is invested in so much importance.  It is the space in which gender politics are played out, through which society seeks to administer its rules, and the way in which social order is maintained. Yet the definition of that space--what is sexualized -- and its consequences remains highly contested.  And it is a malleable as the changing tastes of succeeding generations--a changing set of tastes to which law is ill equipped to keep pace with.  But law is precisely the right tool to control both the pace of change and the individuals who might seek to act on it.  It's utility for mandating forms of social order, and social conformity--even in a society that styles itself open to non conformity, also gives debates about the legal structures of sexual control a definitive political and invariably reactionary character. The sexual and the legal will always be misaligned.  There is tragedy in the writing of law--and tragedy where law is absent in the face of egregious conduct (judged even by the most un-conventional standards of the time).  The line drawing of law is an act of power, better exposed where the line drawing is undertaken in the absence of consensus.  And its consequence, the management of the bodies of individuals, however nicely framed int he language of the theory of the times, almost always and invariably, and perhaps necessarily, a means of managing, and in managing diminishing the autonomy of the body.