Sexual Outlaws v. The Sex Police

by Pat Califia

in: The culture of radical sex, 1994

“Sexual Outlaws v. The Sex Police” deals with age-of-consent laws, the state's attempt to control solicitation and public sex, the results of then-President Ronald Reagan's Meese Commission on pornography, and the implications of narcotics laws and public policy for IV drug users and the AIDS pandemic. From time to time, our government declares war on nearly every aspect of libidinal expression, so of course it would have been possible to address the issue of the social control of sexuality and other pleasures by looking at a dozen other topics. But these four battlegrounds are keys to understanding how and why cops and politicians go after vice.

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Few issues generate more anger than the dreadful specter of child abuse and sexual molestation. “The Age of Consent: The Great Kiddy-Porn Panic of '77” and “The Aftermath of the Great Kiddy-Porn Panic of '77” were very scary to write. After they appeared in print, I had a bad bout of paranoia that was exacerbated by all the funny clicks on my telephone and by mail that arrived at my house already opened. To those of you who feel that the only solution to the problem of child abuse is to raise the age of consent and increase penalties for the manufacture and distribution of child pornography, let me just say this: The penalties for having sex with a minor or having anything to do with creating erotic images of minors could hardly be more drastic. Are children and teenagers safe yet? Have we managed to stem the tide of violence against young people? Is it any easier to come out as a sixteen-year-old gay man or a fifteen-year-old lesbian than it was seventeen years ago, before many of these laws got passed?

I find that many people undergo a weird process of internal splitting when this issue is discussed. Very few of us waited until we were eighteen to have sex. And some of us who waited would rather have been active earlier. How many of us remember having a crush on an older person whom we admired? Were these feelings evil? If they had been reciprocated, would the sexual experiences or relationships that followed necessarily have been any more painful or awkward than our first clumsy sexual experiences with peers who were just as dumb about sex as we were? Wouldn't it have been easier to have a warm and caring escort through some of the pitfalls of becoming an adult gay man or woman? And why doesn't this information color the discourse on the sexual rights of young people?

I believe that we are afraid to give children and teenagers the support, information, and power they need to be safe and to control their own bodies. The family as we know it simply could not survive such a challenge. I urge everyone to take a look at the actual letter of the law that controls young people's sexuality and outlaws child pornography. Look at how age-of-consent and antipornography laws are implemented and what their effects have been on society. Don't simply take them at face value. The kiddy-porn panic is one of the biggest con games ever run on a gullible public.

The federal child-pornography law is both broad and vague, ostensibly because protecting children is so important that law enforcement must be given great latitude in going after the monsters who prey on young people. The kiddy-porn panic it fuels has had some truly alarming results. Just this year, Wayne State University photography professor Marilyn Zimmer found herself being investigated when she threw away a roll of film that contained nude photos of her three-year-old daughter. A janitor discovered the film and turned it over to the university's Department of Public Safety (DPS). The DPS tried to have Zimmerman charged with criminal child sexual abuse. The Wayne County Prosecutor's Office eventually refused to press charges against her. But before that, they searched her home and office, seizing eight boxes of her family photos and some other personal belongings. No other photos of nude children were found. Wayne County prosecutor Nancy Diehl sought testimony from art experts about the nature of such photos. More than fifty photographers and artists from around the country contacted Diehl's office on Zimmerman's behalf. This response, plus the fact that the contact sheet was never developed, persuaded Diehl to drop all charges. Zimmerman is now suing the university for invasion of her privacy. This is not an isolated case. Photographer Robyn Stoutenberg was embroiled in a similar controversy in Pima County, Arizona, over a nude photo of her son that was displayed in an art gallery. While Stoutenberg was never prosecuted, her home was searched, her name was damaged by sensationalistic press coverage, and the prosecutors decided to keep the controversial photo of her four-year-old son!

This law is so poorly written that the Supreme Court recently agreed to decide whether or not the government must prove that those who distribute or receive sexually explicit films or photographs of minors are aware that the performers are not adults. This issue arises because federal law-enforcement agencies have been conducting huge kiddy-porn entrapment schemes. People's names are taken from confiscated mailing lists of adult bookstores and video companies, U.S. customs lists of seizures of allegedly obscene material, and the personal address books of people arrested earlier. These people are sent flyers, brochures, or letters urging them to order erotic material. The notices often don't specify that the material will depict minors. Euphemisms may be used, such as “students” or “youthful-appearing” models. If anyone is careless or stupid enough to take the bait, the government ships a package of child pornography (of which it seems to have an ample supply). Postal officials have been known to correspond with some people for years before persuading them to violate the law in this fashion. When the package arrives, the luckless individual is arrested, and her or his home and business is searched.

A federal appeals court ruled in 1992 that because the child-pornography law does not require knowledge that the material depicts minors, it violates the First Amendment. The Justice Department is seeking to have that ruling overturned. Federal prosecutors are also seeking a new trial in the child-pornography case of Stephen A. Knox. Last fall the Supreme Court asked the Third U.S. Circuit Court of Appeals in Philadelphia to review his case after the Justice Department admitted that Knox had been convicted on a faulty legal premise. This “faulty premise” was the fact that the so-called “pornography” in his case consisted of videos of girls dressed in leotards, bathing suits, or underwear. There was no sexual activity in the material; there wasn't even any nudity. President Clinton reprimanded Attorney General Janet Reno for making such an admission and directed the Justice Department to draft legislation to tighten laws against child pornography! The Senate unanimously passed a resolution calling for the same thing. In this social climate, it does not seem very likely that the Supreme Court will substantially alter the wording or interpretation of this law.

The fact that many of the founders of the gay-liberation movement were (and are) boy-lovers has well-nigh disappeared from the official history of our rebellion. The very term “boy-lover” is rarely heard in gay discourse. True, there have always been political disagreements within our community about the age of consent and cross-generational relationships. But the decade of FBI harassment suffered by the North American Man/Boy Love Association (NAMBLA) probably has more to do with the mainstream gay movement's drawing away from this issue. It is a serious and terrifying thing to confront such a powerful institution. So perhaps it was inevitable that the Stonewall 25 organizing committee would vote to exclude all organizations advocating the repeal of age-of-consent laws from its June 26, 1994, march. A group called the Spirit of Stonewall (SOS) formed to protest this ban, and has invited NAMBLA to march with them. I was proud to be among the people who signed SOS's petition for inclusion of all gay organizations in the Stonewall anniversary celebration. Perhaps Father Bruce Ritter, one of the original Meese Commission members, will be marching with SOS. (Ritter resigned from his position as president of Covenant House, a New York City shelter for runaways, after private investigators found “extensive evidence” confirming sexual misconduct with shelter residents.)

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Today the issue of public sex is, if anything, even more hotly debated in the gay community than it was in 1982. Two years after the article “Public Sex” was written, the bathhouses in San Francisco were shut down. Then-Mayor of San Francisco Dianne Feinstein, under the prodding of openly gay journalist Randy Shilts, ordered Public Health Director Mervyn Silverman to close them in 1984. The city of New York closed its bathhouses in 1985, beginning with the notorious S/M club, the Mineshaft. Perhaps to head off any perception that they were discriminating against gay people, the same authorities also closed down Plato's Retreat, a straight swing club. About a dozen gay men's public-sex establishments were also closed. This action was taken against the recommendation of the New York City Health commissioner Dr. David Sencer, who said in a letter to Mayor Koch that “closure of the bathhouses will contribute little if anything to the control of AIDS.” Around the same time, many bathhouses were closed in other major American cities.

Gay people who advocate closing the baths feel that their existence is indefensible in the age of AIDS. The baths have come to represent an age of sexual license and irresponsibility which many gay men resent both because it is over and because it was supposedly responsible for creating or spreading a lethal sexually transmitted disease. Those who believe the baths should remain open claim that they provide good central locations for conducting safer-sex education. They point out that closing the baths doesn't really stop unsafe sex: it simply moves it to more dangerous locations where it's more difficult to enforce safer-sex guidelines, such as highway rest areas and adult bookstores. Many antibaths activists seem to have forgotten that it was mass arrests in places like these which led to the creation of the baths.

Local newspapers routinely print the names and addresses of men arrested in sweeps of public cruising areas. This recently prompted a New Hampshire man named Arthur Richardson to fight the charge of public lewdness. When cops arrested him, he says he was only taking a leak, but he planned to keep quiet about the charges and plead guilty until he learned that one of his fellow defendants, Paul Eastman, had shot himself to death with a rifle before going to trial. Richardson went public. He told reporters this was “a needless tragedy” and found an attorney who would defend him. He said, “Whether Mr. Eastman was guilty of anything more than having to relieve himself.. will never be known with certainty, but the fact remains that his arrest and the reaction which followed made his life unbearable.” Richardson, an apparently straight man who had lived with a woman for fourteen years, labeled the rest-area crackdown “homophobic.” It's interesting that so many of us have trouble seeing it in the same clear light.

In most cities, the baths have acquired twilight status similar to that of gay bars in the '60s. They are allowed to remain open as long as they are not too large or public (and as long as the appropriate palms are greased). But in an election year or at the whim of a newspaper editor who decides to boost circulation by running an exposé about “AIDS dens,” they can be closed. This marginal status makes the baths harder to find. Since the profits that owners can rake in from these clubs is limited, they usually have little motivation to make them attractive or safe or keep them clean or well-lit. Fire codes and other safety regulations are routinely ignored. This fosters a stereotype that public sex is inherently furtive, dangerous, and dirty.

Was sexual license the only thing that the baths promoted? I don't think so. As the most visible gay institutions, they made it possible for many men to experiment sexually with other men. They facilitated coming out (as well as made it easier for some men to remain in the closet and still have lots of gay sex). The baths generated large profits, some of which funded early gay-rights organizations. By offering employment to out-of-the-closet gay men, these businesses created an economy that could support activism and assumption of a full-time, totally open gay identity. By allowing large groups of men to come together and bond with one another, the baths became the heart and soul of '80s gay activism. They taught gay men to see themselves as members of a common tribe with similar interests and needs. The same men who prowled those steamy hallways in their little white towels also turned over police cars and set them on fire during the May 21, 1979, White Night riots in San Francisco, which followed Dan White's trial for the murders of Mayor George R. Moscone and city supervisor Harvey Milk.

Throughout the '70s and '80s, the “gay family” consisted of the entire community. There was a strong sense that an injury to one was an injury to all. Gay baths and backroom bars were part of a system of territorial marking that delineated the boundaries of our neighborhoods. This was important because it made the community palpable. We had territory that we could defend. And people did police these neighborhoods to eliminate gay bashing and police harassment.

The gay family of the '90s is an isolated couple committed to its own financial success and perhaps a desire to raise a child. The emphasis on monogamy and long-term couples has created a less radical style of activism. I do not wish to deride the dedication it takes to hold such a relationship together. Same-sex partnerships ought to be accorded the same respect and benefits that heterosexual couples receive. However, I am uncomfortable with claims that we are “just like everybody else” or “want the same things straight people do.” Do people have value only if they go about in pairs? It's wonderful when health insurance, for example, is extended to a domestic partner. But people should not have to be in a relationship to qualify for health care. This raises the issue of what will happen to those of us who are obviously not just like sedate, married heterosexuals. Does privatization and the retreat to a ranch house in the suburbs really make us safer, happier, or more free?

The baths are often condemned for enforcing a narrow, racist standard of masculine attractiveness. It is certainly true that many establishments did (and still do) exclude men who are overweight, nonwhite, effeminate, middle-aged or elderly, or men who simply piss off whoever is minding the door. These egregious acts of discrimination frequently provoked boycotts and protests, as well they might. However, the baths (along with gay literature, pornography, disco culture, and radical politics) created a new sort of homosexual man—one who was not necessarily a sissy. For the first time, it was possible for a gay man to be butch without trying to pass as straight. The concept of masculinity was changed forever by the specter of body-builders and other macho types who were hot to go home and fuck each other.

Not every gay man was capable of synthesizing an identity that incorporated both nelly and butch components, but a lot of them did. This emphasis on reclaiming masculinity made it imperative for gay men to demonstrate physical courage. They began to fight back against gay bashers, the police, right-wing politicians and religious authorities, and the rest of their enemies.

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Liberals and civil libertarians snickered when the Meese Commission turned in its final report. Nobody took this bunch of political-cartoon types seriously. The panel had been selected with such a heavy hand that its bias was pathetically obvious. Its hearings had been kangaroo courts in which porn was tried and found guilty of' causing everything from premarital sex to homosexuality to serial murder. Although it generated some opposition, everyone basically heaved a sigh of relief and went away after the commission issued its report.

That was a tactical blunder. The fact is that the Meese Commission has gotten practically everything asked for in its report. The Justice Department promptly formed the Child Exploitation and Obscenity Section (CEOS), a title which guaranteed the unit's activities would not be subject to much scrutiny, and proceeded to use it to crack down on the adult-entertainment industry. In its heyday, CEOS had at least ten litigators working in its national headquarters and trained U.S. attorneys all over the country in new techniques and strategies for obscenity prosecutions. In cooperation with the FBI, the IRS, the postal service, U.S. customs, and state and local police, CEOS has chalked up hundreds of porn busts. Whenever possible, it mounted multiple prosecutions of the same company in different states, thus making the cost of defense astronomically high. Many people in this predicament chose to just plead guilty, pay big fines, and sign pledges to never again do business in the sex industry.

Federal Court of Appeals Judge Joyce Hens Green recently issued an injunction that forced the Justice Department to drop multiple prosecutions against Phil Harvey, the owner of Adam and Eve, but it is not clear if they have abandoned the tactic completely. They still have the Racketeer-Influenced and Corrupt Organizations Act (RICO) to fall back on. RICO was originally passed by lawmakers who believed it was necessary to give the police sweeping powers to wipe out organized crime. But RICO's definitions are extremely broad. If you commit an illegal act in concert with another person, you could qualify for a RICO prosecution. In at least one case, a drug dealer has been busted under RICO for conspiring to commit a crime with the police informant who bought his merchandise and then placed him under arrest. In a RICO case, police are allowed to seize anything that might have been used to commit criminal acts—personal and business records, computers, vehicles, business property and homes, inventory, etc. This obviously makes it very difficult to muster a defense or even make a living until the case is settled, and that can take years.

Sexually explicit material has not only become less available in this country; the content is also restricted. Since the law is not clear about exactly what constitutes obscenity, most porn producers overreact and delete anything that might be controversial (such as interracial sex, anal sex, fisting, or any hint of domination) from their magazines and videos. If there's any chance that a particular image might catch the eye of an ambitious attorney general or district attorney, a digitized patch is placed over the action. While the quality of the merchandise has steadily declined, the cost of pornography has increased. Small companies that were trying to make higher-quality films or videos that would appeal to women are finding it difficult to stay in business under these conditions. Many straight companies that used to have gay product lines have shut them down.

Civil libertarians were unsuccessful in preventing these developments because most people still find it difficult to defend the freedom to rent or buy pornography. A lot of the people who turned up to testify before the commission on behalf of the First Amendment did not focus their testimony on the issue of pornography. They chose instead to speak about the dangerous impact that censorship could have on the arts, theater, and literature. Although the chilling effects of the Justice Department's antiporn campaign have spread beyond the adult entertainment industry, the commission was always very clear about its intention to simply wipe out smut, beginning with the most explicit and stigmatized images, then proceeding to images of mainstream sexual practices. So the folks who could not stand up at the Meese Commission and say, “I want to be able to see somebody get spanked, tied up, and soundly fucked in a full-color film with a gorgeous soundtrack,” the folks who could only muster an embarrassed reference to the innocence of Playboy, now find themselves in the quandary of not being able to enjoy much vanilla porn.

This is the price that we pay for driving sexuality underground. Most people seem to want to visit sex as if it were a brothel or a shooting gallery, get their fixes, and then go home without getting busted and publicly labeled as perverts or sex fiends. They don't want to try to integrate whatever they find in pornography that is so rewarding with the rest of their lives. We routinely trade sexual frustration for respectability. The fact that porn, prostitution, and other illicit pleasures can be found only in sleazy neighborhoods where they are meted out by disreputable characters allows us to lie and tell ourselves that these experiences are not very important. But they are. They must be. Otherwise the sex industry could not continue to thrive in these harsh circumstances. Erotic entertainment is the only thing that gets a lot of people through bad and boring marriages, hateful jobs, health problems, divorce, aging, or tedious relationships with their friends and families. But it seems that consumers won't wise up about this until the secret source of juice and joy dries up completely.

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This section of Public Sex includes a piece about IV drug users and AIDS. Its age can be seen by the references to HTLV-III (this was before “the virus” was known as HIV). Government policies toward this vector of AIDS transmission have not changed significantly. But one important recommendation in the article needs to be updated—the suggestion that people clean needles and cookers with a 10 percent bleach solution.

Recent studies have found that cleaning needles with diluted bleach does not kill HIV in the injection equipment. In fact, a Baltimore study found no difference in seroconversion rates between injection-drug users who cleaned their works regularly and folks who never bothered. A 10 percent bleach solution apparently causes blood to clot, which makes the virus inaccessible to the disinfectant. Now the Centers for Disease Control (CDC) is recommending that people rinse their needles three times with clean water, completely fill the needle and syringe at least three times with full-strength bleach (leaving it in for at least thirty seconds each time), shake the rig to loosen any debris, then rinse it three times with new, clean water.

These guidelines were apparently formulated by people who have never hurt for their next shots. I'd like to see some white-coated M.D. from the CDC try to remember how to count to three while his upper lip is beaded with sweat, his hands are shaking, and his stomach is turning over. It is unreasonable to expect that an addict will go through this tedious and time-consuming process. Not only are people usually in a hurry to get high, they are often injecting in situations where the environment won't allow them to set out all this paraphernalia and wait for the bleach to work.

It is more important than ever for injection drug users to have access to clean needles. Lawmakers keep arguing that such access will encourage drug use. But many researchers, including Dr. Peter Lurie and Dr. John Watters at the University of California, have found that needle-exchange programs reduce HIV infection without increasing the numbers of drug users. Dead junkies don't go into treatment. If we want people to get help (instead of just writing them off as subhumans who deserve to die because they are addicts), we have to adopt a more compassionate and reasonable public policy. Before they die, HIV-positive drug users often infect their sexual partners, and their children also become infected. The numbers of new HIV infections among women could be cut dramatically if only people could walk into pharmacies and buy clean needles as easily as they can buy condoms.

Nevertheless, many district attorneys continue to prosecute needle-exchange volunteers, charging them under the laws against possession of drug paraphernalia. The defense that these people are forced to break the law because a health emergency exists has often been successful. Alameda District Attorney John Meeham recently lost a case in Berkeley against health worker Scott Halem. A jury unanimously acquitted him of illegal possession of syringes. This case cost taxpayers an estimated $50,000 to $150,000 to prosecute. But Meeham turned right around and busted volunteers at Alameda County Exchange (ACE). It took four squad cars to give one volunteer a citation and to seize five hundred needles. The minute the cops left, ACE volunteers resumed their life-saving work.

The next time officials in your area complain about not having adequate funds to feed, clothe, house, and treat people with AIDS, they should be reminded that we can't afford to waste public money on wild goose chases like Meeham's vendetta. Any police crackdown on “immoral” behavior is very expensive and does little if anything to eliminate the targeted behavior. In this era of hard times, it's difficult to understand why the public continues to allow its elected officials and public employees to engage in these spendthrift public-relations boondoggles.