IV Sexual Stratification

An entire sub-race was born, different — despite certain kinship ties — from the libertines of the past. From the end of the eighteenth century to our own, they circulated through the pores of society; they were always hounded, but not always by laws; were often locked up, but not always in prisons; were sick perhaps, but scandalous, dangerous victims, prey to a strange evil that also bore the name of vice and sometimes crime. 
They were children wise beyond their years, precocious little girls, ambiguous schoolboys, dubious servants and educators, cruel or maniacal husbands, solitary collectors, ramblers with bizarre impulses; they haunted the houses of correction, the penal colonies, the tribunals, and the asylums; they carried their infamy to the doctors and their sickness to the judges. 
This was the numberless family of perverts who were on friendly terms with delinquents and akin to madmen. (Michel Foucault [*51])

The industrial transformation of Western Europe and North America brought about new forms of social stratification. The resultant inequalities of class are well known and have been explored in detail by a century of scholarship. The construction of modern systems of racism and ethnic injustice has been well documented and critically assessed. Feminist thought has analyzed the prevailing organization of gender oppression. 

But although specific erotic groups, such as militant homosexuals and sex workers, have agitated against their own mistreatment, there has been no equivalent attempt to locate particular varieties of sexual persecution within a more general system of sexual stratification. Nevertheless, such a system exists, and in its contemporary form it is a consequence of Western industrialization.

Sex law is the most adamantine instrument of sexual stratification and erotic persecution. The state routinely intervenes in sexual behavior at a level that would not be tolerated in other areas of social life. Most people are unaware of the extent of sex law, the quantity and qualities of illegal sexual behavior, and the punitive character of legal sanctions. 

Although federal agencies may be involved in obscenity and prostitution cases, most sex laws are enacted at the state and municipal level, and enforcement is largely in the hands of local police. Thus, there is a tremendous amount of variation in the laws applicable to any given locale. Moreover, enforcement of sex laws varies dramatically with the local political climate. 

In spite of this legal thicket, one can make some tentative and qualified generalizations. My discussion of sex law does not apply to laws against sexual coercion, sexual assault, or rape. It does pertain to the myriad prohibitions on consensual sex and the "status" offenses such as statutory rape. 

Sex law is harsh 

The penalties for violating sex statutes are universally out of proportion to any social or individual harm. A single act of consensual but illicit sex, such as placing one's lips upon the genitalia of an enthusiastic partner, is punished in many states with more severity than rape, battery, or murder. Each such genital kiss, each lewd caress, is a separate crime. It is therefore painfully easy to commit multiple felonies in the course of a single evening of illegal passion. 

Once someone is convicted of a sex violation, a second performance of the same act is grounds for prosecution as a repeat offender, in which case penalties will be even more severe. In some states, individuals have become repeat felons for having engaged in homosexual love-making on two separate occasions. Once an erotic activity has been proscribed by sex law, the full power of the state enforces conformity to the values embodied in those laws. Sex laws are notoriously easy to pass, as legislators are loath to be soft on vice. Once on the books, they are extremely difficult to dislodge.

Sex law is not a perfect reflection of the prevailing moral evaluations of sexual conduct. Sexual variation per se is more specifically policed by the mental-health professions, popular ideology, and extra-legal social practice.

Some of the most detested erotic behaviors, such as fetishism and sado-masochism, are not as closely or completely regulated by the criminal justice system as somewhat less stigmatized practices, such as homosexuality.

Areas of sexual behavior come under the purview of the law when they become objects of social concern and political uproar. Each sex scare or morality campaign deposits new regulations as a kind of fossil record of its passage. The legal sediment is thickest — and sex law has its greatest potency — in areas involving 

[1] 

Obscenity laws enforce a powerful taboo against direct representation of erotic activities. Current emphasis on the ways in which sexuality has become a focus of social attention should not be misused to undermine a critique of this prohibition. 

It is one thing to create sexual discourse in the form of psychoanalysis, or in the course of a morality crusade. It is quite another to depict sex acts or genitalia graphically. The first is socially permissible in a way the second is not. Sexual speech is forced into reticence, euphemism, and indirection. Freedom of speech about sex is a glaring exception to the protections of the First Amendment, which is not even considered applicable to purely sexual statements. 

[2] 

The anti-obscenity laws also form part of a group of statutes that make almost all sexual commerce illegal. Sex law incorporates a very strong prohibition against mixing sex and money, except via marriage. 

In addition to the obscenity statutes, other laws impinging on sexual commerce include anti-prostitution laws, alcoholic beverage regulations, and ordinances governing the location and operation of "adult" businesses. 

The sex industry and the gay economy have both managed to circumvent some of this legislation, but that process has not been easy or simple. The underlying criminality of sex-oriented business keeps it marginal, underdeveloped, and distorted. Sex businesses can only operate in legal loopholes. 

This tends to keep investment down and to divert commercial activity towards the goal of staying out of jail rather than the delivery of goods and services. It also renders sex workers more vulnerable to exploitation and bad working conditions. If sex commerce were legal, sex workers would be more able to organize and agitate for higher pay, better conditions, greater control, and less stigma.

Whatever one thinks of the limitations of capitalist commerce, such an extreme exclusion from the market process would hardly be socially acceptable in other areas of activity. 

Imagine, for example, that the exchange of money for medical care, pharmacological advice, or psychological counseling were illegal. Medical practice would take place in a much less satisfactory fashion if doctors, nurses, druggists, and therapists could be hauled off to jail at the whim of the local "health squad." But that is essentially the situation of prostitutes, sex workers, and sex entrepreneurs.

Marx himself considered the capitalist market a revolutionary, be it limited, force. He argued that capitalism was progressive in its dissolution of pre-capitalist superstition, prejudice, and the bonds of traditional modes of life. 

"Hence the great civilizing influence of capital, its production of a state of society compared with which all earlier stages appear to be merely local progress and idolatry of nature." [*52] 

Keeping sex from realizing the positive effects of the market economy hardly makes it socialist.

[3] 

The law is especially ferocious in maintaining the boundary between childhood "innocence" and "adult" sexuality. Rather than recognizing the sexuality of the young, and attempting to provide for it in a caring and responsible manner, our culture denies and punishes erotic interest and activity by anyone under the local age of consent. The amount of law devoted to protecting young people from premature exposure to sexuality is breath-taking.

The primary mechanism for insuring the separation of sexual generations is age of consent laws. These laws make no distinction between the most brutal rape and the most gentle romance. A 20-year-old convicted of sexual contact with a 17-year-old will face a severe sentence in virtually every state, regardless of the nature of the relationship. [*53 ] 

Nor are minors permitted access to "adult" sexuality in other forms. They are forbidden to see books, movies, or television in which sexuality is "too" graphically portrayed. It is legal for young people to see hideous depictions of violence, but not to see explicit pictures of genitalia. Sexually active young people are frequently incarcerated in juvenile homes, or otherwise punished for their "precocity."

Adults who deviate too much from conventional standards of sexual conduct are often denied contact with the young, even their own. Custody laws permit the state to steal the children of anyone whose erotic activities appear questionable to a judge presiding over family court matters. 

Countless lesbians, gay men, prostitutes, swingers, sex workers, and "promiscuous" women have been declared unfit parents under such provisions. Members of the teaching professions are closely monitored for signs of sexual misconduct. 

In most states, certification laws require that teachers arrested for sex offenses lose their jobs and credentials. In some cases, a teacher may be fired merely because an unconventional lifestyle becomes known to school officials. Moral turpitude is one of the few legal grounds for revoking academic tenure. [*54] 

The more influence one has over the next generation, the less latitude one is permitted in behavior and opinion. The coercive power of the law ensures the transmission of conservative sexual values with these kinds of controls over parenting and teaching.

[4]

The only adult sexual behavior that is legal in every state is the placement of the penis in the vagina in wedlock. Consenting adults statutes ameliorate this situation in fewer than half the states. Most states impose severe criminal penalties on consensual sodomy, homosexual contact short of sodomy, adultery, seduction, and adult incest. 

Sodomy laws vary a great deal. In some states, they apply equally to homosexual and heterosexual partners and regardless of marital status. Some state courts have ruled that married couples have the right to commit sodomy in private. Only homosexual sodomy is illegal in some states. Some sodomy statutes prohibit both anal sex and oral-genital contact. In other states, sodomy applies only to anal penetration, and oral sex is covered under separate statutes. [*55]

[ - - - ]

Laws like these criminalize sexual behavior that is freely chosen and avidly sought. The ideology embodied in them reflects the value hierarchies discussed above. That is, some sex acts are considered to be so intrinsically vile that no one should be allowed under any circumstance to perform them. The fact that individuals consent to or even prefer them is taken to be additional evidence of depravity. 

This system of sex law is similar to legalized racism

State prohibition of same sex contact, anal penetration, and oral sex make homosexuals a criminal group denied the privileges of full citizenship. With such laws, prosecution is persecution. Even when they are not strictly enforced, as is usually the case, the members of criminalized sexual communities remain vulnerable to the possibility of arbitrary arrest, or to periods in which they become the objects of social panic. 

When those occur, the laws are in place and police action is swift. Even sporadic enforcement serves to remind individuals that they are members of a subject population. The occasional arrest for sodomy, lewd behavior, solicitation, or oral sex keeps everyone else afraid, nervous, and circumspect.

The state also upholds the sexual hierarchy through bureaucratic regulation. Immigration policy still prohibits the admission of homosexuals (and other sexual "deviates") into the United States. Military regulations bar homosexuals from serving in the armed forces. [*]

[*] FN 1992
For a wonderful history of the relationship between gays and the United States military, see Allan Bérubé, Coming Out Under Fire: The History of Gay Men and Women in World War II, New York, The Free Press, 1990. 

The fact that gay people cannot legally marry means that they cannot enjoy the same legal rights as heterosexuals in many matters, including 

These are but a few of the ways that the state reflects and maintains the social relations of sexuality. The law buttresses structures of power, codes of behavior, and forms of prejudice. At their worst, sex law and sex regulation are simply sexual apartheid. 

Although the legal apparatus of sex is staggering, most everyday social control is extra-legal. Less formal, but very effective social sanctions are imposed on members of "inferior" sexual populations.

In her marvelous ethnographic study of gay life in the 1960s, Esther Newton observed that the homosexual population was divided into what she called the "overts" and the "coverts." 

"The overts live their entire working lives within the context of the [gay] community; the coverts live their entire nonworking lives within it." [*56] 

At the time of Newton's study, the gay community provided far fewer jobs than it does now, and the non-gay work world was almost completely intolerant of homosexuality. There were some fortunate individuals who could be openly gay and earn decent salaries. But the vast majority of homosexuals had to choose between honest poverty and the strain of maintaining a false identity.

Though this situation has changed a great deal, discrimination against gay people is still rampant. For the bulk of the gay population, being out on the job is still impossible. Generally, the more important and higher paid the job, the less the society will tolerate overt erotic deviance. If it is difficult for gay people to find employment where they do not have to pretend, it is doubly and triply so for more exotically sexed individuals.

Sado-masochists leave their fetish clothes at home, and know that they must be especially careful to conceal their real identities. An exposed pedophile would probably be stoned out of the office. Having to maintain such absolute secrecy is a considerable burden. Even those who are content to be secretive may be exposed by some accidental event.

Individuals who are erotically unconventional risk being unemployable or unable to pursue their chosen careers.

Public officials and anyone who occupies a position of social consequence are especially vulnerable. A sex scandal is the surest method for hounding someone out of office or destroying a political career. 

The fact that important people are expected to conform to the strictest standards of erotic conduct discourages sex 'perverts' of all kinds from seeking such positions. Instead, erotic dissidents are channeled into positions that have less impact on the mainstream of social activity and opinion.

The expansion of the gay economy in the last decade has provided some employment alternatives and some relief from job discrimination against homosexuals. But most of the jobs provided by the gay economy are low-status and low-paying. Bartenders, bathhouse attendants, and disc jockeys are not bank officers or corporate executives. Many of the sexual migrants who flock to places like San Francisco are downwardly mobile. They face intense competition for choice positions. The influx of sexual migrants provides a pool of cheap and exploitable labor for many of the city's businesses, both gay and straight.

Families play a crucial role in enforcing sexual conformity

Much social pressure is brought to bear to deny erotic dissidents the comforts and resources that families provide. Popular ideology holds that families are not supposed to produce or harbor erotic non-conformity. Many families respond by trying to reform, punish, or exile sexually offending members.

Many sexual migrants have been thrown out by their families, and many others are fleeing from the threat of institutionalization. Any random collection of homosexuals, sex workers, or miscellaneous perverts can provide heart-stopping stories of rejection and mistreatment by horrified families. Christmas is the great family holiday in the United States and consequently it is a time of considerable tension in the gay community. Half the inhabitants go off to their families of origin; many of those who remain in the gay ghettos cannot do so, and relive their anger and grief.

In addition to economic penalties and strain on family relations, the stigma of erotic dissidence creates friction at all other levels of everyday life. The general public helps to penalize erotic non-conformity when, according to the values they have been taught, landlords refuse housing, neighbors call in the police, and hoodlums commit sanctioned battery. 

The ideologies of erotic inferiority and sexual danger decrease the power of sex 'perverts' and sex workers in social encounters of all kinds. They have less protection from unscrupulous or criminal behavior, less access to police protection, and less recourse to the courts. Dealings with institutions and bureaucracies — hospitals, police, coroners, banks, public officials — are more difficult.

Sex is a vector of oppression

The system of sexual oppression cuts across other modes of social inequality, sorting out individuals and groups according to its own intrinsic dynamics. It is not reducible to, or understandable in terms of, class, race, ethnicity, or gender. Wealth, white skin, male gender, and ethnic privileges can mitigate the effects of sexual stratification. A rich, white male 'pervert' will generally be less affected than a poor, black, female pervert. But even the most privileged are not immune to sexual oppression.