In April 2023, law professor Aya Gruber published her powerful article “Sex Exceptionalism in Criminal Law” in the Stanford Law Review. Gruber’s analysis, mostly historical and descriptive, traces the unsavory, not-so-feminist, often racist genealogies of sex crimes in U.S. law. The analysis I will present here, mostly contemporary and prescriptive, builds upon Gruber’s investigations and my own scholarship to make the case that queer politics should stick with the sex, especially a queer politics grokked with abolition. By examining a few case studies—namely, anti-prostitution laws, sex offender regulations, and, perhaps most controversially, rape law—I will propose that queer politics ought to, at its core, contest state and state-adjacent practices of sexualization and sex exceptionalism. The former refers to the sexualization of social problems, social groups, or citizens that furbish state power and entrench injustice. The latter, sex exceptionalism, is a term borrowed from Gruber and anthropologist Gayle S. Rubin. It denotes the state’s criminalization or otherwise special regulation of sex practices over non-sex practices (here, consider yesteryear proscriptions against same-sex sex in the United States; or the ongoing criminalization of sex work, my first case study).
I am arguing for a queer politics that shifts away from its focus on arguing for the value of minoritized social groups (L, G, B, or T) and instead toward opposing the state’s use of sex to govern. I am arguing for a sexual politics that decenters social categories of identity and instead foregrounds when, and for what purposes, the state sexualizes its citizens and exceptionalizes sex. This is a queer politics that finds its progenitor in political scientist Cathy J. Cohen’s watershed 1997 article “Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?” about which I write more below. And this reframing of queer politics is decarceral, for it opposes the state’s exceptional punishments and separate regulatory apparatuses for conduct involving sex.
Let us first consider sex work. Sex work is criminalized in every state in the union, save for several counties in Nevada. Other, allegedly more feminist countries, such as Sweden, criminalize just the buyers of sex, namely the men. Yet one feminist report after another have cataloged the disastrous consequences of both kinds of criminalization regimes. No matter which aspect and to what degree sex work is criminalized, doing so subjects sex workers to more violence, more harassment and abuse from clients and police, and less control over their working conditions.
In my forthcoming book from Temple University Press, Sodomy’s Solicitations: A Right to Queerness, I argue that political projects to decriminalize sex work should be understood as resolutely queer projects. This is because they contest the state’s deployment of sex to exceptionalize and denigrate sexual labor from nonsexual labor. Prohibiting sex work by carving it out as categorically different from non-sex work stigmatizes sex workers as dirty and degenerate, undeserving of rights and protections against clients and the police. Meanwhile, the state permits, while regulating, all kinds of other dangerous and/or physically demanding occupations, from mining coal to cleaning hotels to serving as president of the United States. Why single out sex work?
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When the state engages in such forms of sex-exceptionalizing prohibitions, it has the effect of sexualizing sex workers. On its face, this might seem redundant: Isn’t sex work itself, well, sexualizing? The centering of sex in the legal discourse, though, is a crucial step toward denying sex workers the status of rights-bearing citizens. With the help of law and sexuality scholars such as Libby Adler, Noa Ben-Asher, and Mary Anne Case, we can draw a comparison to how gay and lesbian plaintiffs, even when petitioning for a right to fuck, are remade in the court’s image as sexless, respectable, dignified, and civic. Queer rights to sex and marriage have been constitutionally recast, and rhetorically desexed, as broader rights to privacy or intimate liberty. Conversely, when sex workers advance similar arguments in court—that sex work ought to be subsumed under a broader right to intimacy, privacy, expression, or labor—all courts see is the sex, a point I detailed in Boston Review a couple of years ago. In short, state sexualization is the very thing that undercuts the sex worker as a rights-bearing citizen.
(In Sodomy’s Solicitations, I suggest that, after Dobbs v. Jackson Women’s Health Organization, which throws into jeopardy constitutional rights to sex, intimate association, and so much more, the best argument for a constitutional right to sex work may no longer be anchored in a right to sex, but rather in a right to work. A right to earn a living has a formidable history in U.S. case law and should appeal to conservative jurists, even though it won’t; the point of this argument is less to actually convince judges than to syncopate the constitutional, sex de-exceptionalizing case for sex work with sex workers’ own preferred political idiom: sex work is work.)
It might not be such a tall order to ask progressives to support the decriminalization of sex work, or to ask that we reconceive of decriminalization as part of an expanded queer politics that contests that state’s use and abuse of sex. But what of subjects less sympathetic than sex workers, like sex offenders?
Sexualization and sex exceptionalism are nowhere more egregious than our sex offender regulatory regimes, which typically entail, inter alia, states’ posting on their registry websites the names, photographs, and home addresses of those convicted of sex offenses, along with the particular crime for which they were convicted. To be forthright: I am asking neither you nor queer politics to sympathize with registered sex offenders. I want to spotlight instead that systems of sex offender registration, notification, residency restrictions, GPS tracking, and so forth have absolutely no parallel to any other types of crime (sex exceptionalism); and it has become widely recognized over the past generation that sex offender regulatory regimes are ineffective (they fail to make communities safer from sexual violence; high recidivism is a myth), antifeminist (they draw attention away from patriarchy, the family, and heteronorms as sources of sexual violence and onto the productive fiction of the “sex predator”), and major propellants of mass incarceration and carceral governance. Abolitionist scholars Judith Levine and Erica R. Meiners explain that “people with sex-related convictions constitute one of the fastest-growing populations among the 2.3 million people locked in US prisons, jails, and detention facilities.” Like law professor Eric S. Janus and sociologist Roger N. Lancaster, Meiner and Levine argue that “the logic and technologies of the [sex offender] registries serve as a beta test for a vast ‘prison without walls,’ with electronic ankle bracelets, surveillance cameras, and tens of thousands of collateral consequences fencing in everyone convicted of a felony.”
I have come to think of sex offender regulatory regimes as their own form of state-sponsored sexual violence. By transforming singular (often terrible) criminal acts into despised, sexualized identities (the “sex offender”), by posting the sex offenders’ images on an online grid that looks like a perverse dating app, state sexualization serves to make some men into monsters, disfiguring the problem of sexual violence, as if perpetrators of sexual violence are not typically fathers, stepfathers, mothers’ boyfriends, uncles, husbands, intimate partners, family friends, police officers, and prison guards. “When notification and registration laws validate the idea that rapists are uniquely dangerous,” avers law professor Katharine K. Baker, “it becomes much harder for everyone, from judge to juror to prosecutor to victim, to see the boy next door as a rapist.” Sex offender regulatory regimes abnegate all such feminist knowledge, doubling down on the stereotype that sex offenders are sickos in white vans.
My argument so far—that we ought to resist state sexualization and state sex exceptionalism, and that such resistance might best be cataloged as queer politics—develops chiefly from Cohen’s “Punks, Bulldaggers, and Welfare Queens” mentioned at the top of this essay. In that article, Cohen took 1990s queer activism to task for failing to deliver on its radical promise of a sexual politics untethered to gay assimilation and respectability. Too often, observed Cohen, queer activism “reinforce[s] simple dichotomies between heterosexual and everything ‘queer,’” and so ignores the way that plenty of avowedly straight folks—notably racial minorities and poor communities—are marginalized, maligned, and deprived of opportunities by the state.
Cohen charts out two correctives for queer politics. The first, most familiar to us, is the argument that queer politics is generally inattentive to racism, classism, sexism, and so on. But it is the second, less familiar corrective that interests me more here. In it, Cohen proposes that we countenance and contest the ways “nonnormative heterosexuality has been controlled and regulated through the state and systems of marginalization.” Her primary example is the political demonization of the racialized “welfare queen” as unmarried, promiscuous, and reproductively and parentally unfit, demonization designed to inflame white resentment and legitimize the slashing of social services.
In other words, the second of Cohen’s political visions is a queer activism that calls out state and state-adjacent deployments of sex to render certain populations denigrated, dangerous, or disposable. The other vision is a queer activism that is duly intersectional, antiracist, antisexist, anti-capitalist. I do not think such a politics is queer, though—it is just left (not that there’s anything wrong with that; some of my best friends are left). Like American Studies scholar Melani McAlister, “I’ll go out on a limb and say that I think queering needs to be about sex.”
This is not because I am semantically territorial about who or what gets to be queer. But I think the term has a particular, expository power to name something distinctly political—and something distinctly unjust—that we might not otherwise see if we cabin ourselves to identitarianism, however intersectional: that is, the state’s deployment of sex to surveil, hierarchize, discriminate against, or otherwise de- or differentially value its citizens.
From such a vantage point, abortion access is another social problem that we might call “queer,” not only because there are more pregnable persons than women, but also because restrictions and proscriptions on abortion curtail people’s sexual rights, intimate associations, family formations, and freedom from rigid gendered norms, namely motherhood.
In light of Cohen’s proposed pivot for queer politics—and I admit to traveling down a rather different normative path than she does—I conclude with some preliminary reflections on a question this essay has so far avoided, for it is a “thorny” one: Should we decommission rape law, and might there even be a queer and feminist case to do so? For rape law (and all the criminal sexual assault laws for which “rape law” is here serving as a metonym) is statutorily segregated from other crimes of assault and violence; it is state sex exceptionalism par excellence. Should it be? This is a question Yale Law School student Kate Brennan and I take up in greater detail in a forthcoming law journal article, but for now I’ll tender some initial provocations.
In the 1970s, philosopher Michel Foucault recommended, offhandedly and probably too callously, the repeal of rape law. Nobody thought this was a good idea, feminists foremost. And yet, we know there are costs to statutorily segregating sex crimes from other crimes. Some of those costs include:
- first, the revictimizing of victims through the police reporting process, medical intake, and cross-examination. As Baker puts it, when it comes to reporting rape and rape trials, “it is hard to imagine a process more damaging to one’s agency”;
- second, sex crime as an overrepresented contributor to racialized mass incarceration in the United States;
- third, the social ostracization of sex offenders and the attendant normalization of everyday (hetero)sexuality;
- fourth, rape law may encourage us to think of girls’ and women’s bodies as thing-like, violable and degradable;
- fifth, rape law itself may double down on the discourse of rape as a harm worse than death, prescribing the very harm it purports to describe.
What if we dispensed with sex exceptionalism in criminal rape law? What if sexual assault were considered, legally, assault? What if nonconsensual sexual contact were considered battery, like other forms of nonconsensual, nonsexual contact? Meanwhile a great deal of sexual violence and sexual misconduct is already routed through sexual harassment law under Title IX in educational settings and Title VII in workplace ones. While there are some critics of workplace sexual harassment law and many more critics of contemporary Title IX enforcement, it is at least worth recognizing that what most sexually harassed or assaulted students and employees want is not for their harassers or assaulters to go to prison, but for the harassment and assault to stop, and for the workplace or school to be an encouraging, equal-opportunity environment in which to work and learn. Recall too that the burden of proof is lower for civil cases than criminal ones, which should temper at least some of the cruelties of he-said-she-said standoffs. (One might reply that sexual harassment law is sex-exceptionalizing too; I would rebut that sex exceptionalism anchored in civil equality is more promising than sex exceptionalism anchored in criminal punishment, but such an argument is for another essay.)
Another way to put this is that, historically, U.S. rape law protected the chastity of white girls and women, first as their fathers’ property, then as their husbands’: As historian Estelle B. Freedman summarizes in Redefining Rape, “Sexual assault undermined both the honor of the family and the daughter’s marriageability.” Despite second-wave feminist and liberal reforms that repurposed rape law in the service of defending rights-bearing citizens, the dilemma remains whether criminal rape law as such can shed its gendered, racialized, proprietary residuals. The equality mandates of civil law (e.g., against sexual harassment, or against sexual misconduct on campus) and the damages plaintiffs themselves, namely women, collect from tort law (e.g., against nonconsensual condom removal, colloquially termed “stealthing”) offer avenues for redressing sexual violence that carry less collateral, carceral and otherwise, than the exceptional punishments of rape law. Recodifying “rape” as “assault,” recodifying nonconsensual sexual contact as “battery,” and expanding tortious and civil, not just criminal, liability for sexual misconduct might collectively encourage victims and everyone else to reperceive sexual violence as, well, violence, abuse, and/or rights-depriving, rather than as property-violating. In short, re-taxonomizing impermissible sexual conduct as criminal assault or battery, civil rights violations, or as personal injuries for which one is owed compensation may better advance projects of sex equality, sexual freedom, and ending sexual violence.
Might the benefits of disassembling rape law and then reassembling it into its component parts, outlined above, be worth the costs? The point here is not that, experientially, a punch in the face is equivalent to forced sexual intercourse. The better question is whether criminal law is or has been the right location to manage such experiential differences, given the well-known difficulties endemic to sexual assault trials.
Moreover, might the sex exceptionalism of sexual assault law function to camouflage the assaultive element of sexual assault as, in a word, sex? Feminist critics will reply that most acts of sexual violence and coercion do not involve strange men and weapons, but rather boyfriends, family members, and acquaintances pressuring (indexically) women who say no or never say yes. Yet these cases are rarely brought to criminal court, among other reasons because victims are routinely disbelieved, because they are embarrassed, or because they are concerned that the perpetrator, whom they might otherwise care for, will be caged in prison for years, himself now subject to (sexual) violence from correctional officers and other incarcerated people. We should also be skeptical of the assumption that “stranger rape” entails force and violence whereas “acquaintance rape” does not.
Upon hearing such contemplations, a skeptical colleague asked me (I paraphrase): Where does the proposal to decommission rape law leave the nonstudent (Title IX), nonemployee (Title VII) victim of rape by a boyfriend, friend, or acquaintance, a rape with no witnesses, no corroborating evidence, and no physical injuries? Is she without legal recourse?
Let me first reiterate: statistically speaking, the victim is unlikely to report the crime to the police. If she does, the police are unlikely to charge the perpetrator. If they do, a prosecutor is unlikely to take up the case. If the prosecutor does, a jury is unlikely to convict.
So, if the victim does in fact wish to pursue a criminal case against the perpetrator, is she any worse off than she was if the crime at her disposal is “assault” and not “sexual assault”? I do not think so. It is a seriously hard case to win either way.
However, let us assume the perpetrator was the victim’s boyfriend, that their relationship included consensual sex prior to the conduct in question, and that, on this night, he pinned her down, she said no, tried to fend him off, and he proceeded to force his penis into her vagina.
Might it be plausible or at least possible that, by charging this man with assault and not sexual assault, we conceptually and phenomenologically separate this event (what he did to her) from the prior events (what they did together)? Is it not plausible or at least possible that the sexual in sexual assault invites jurors to see continuity between what happened the other nights and what happened that night when perhaps they should not?
My argument here is not that such victims necessarily should pursue criminal assault charges against their friends/partners/ex-partners/spouses/ex-spouses in these instances (and if the victim lives in certain jurisdictions, she could bring a civil action against the boyfriend for gender-motivated violence). It is rather that, for those concerned that decommissioning rape law would leave such victims in the lurch, I think that is not the case—and that, in fact, de-exceptionalizing the sex of sexual assault might be a boon.
So often the cynic’s conversation stopper around the abolition of prisons, or the abolition of the criminal legal system tout court is: But what about rape? The reply, when there is one, is usually a nod to restorative justice programs. This makes the cynic no less cynical.
I have offered something else here: criminal rape law disassembled, then reassembled. Remedies for sexual misconduct would then be, and often are, institutional reforms; institutional liability; the suspension or termination of workplace sexual assaulters and sexual harassers; the suspension or expulsion of student sexual assaulters and sexual harassers; and money for victims. None of these remedies entail prison sentences.
For sexual misconduct that involves requisite levels of force to be considered criminal assault or battery, much of that conduct, as already mentioned, is routed through civil law. Still, under the decommission proposal (and here it is more of a speculation than a full-fledged proposal), some conduct heretofore classified as criminal sexual assault or rape could be reclassified as criminal assault or battery.
So, what is an abolitionist to do?
I am not sure, but the particular dilemma points to the broadest one of all: Should there be things called “crimes”? What is, or ought to be, the purpose of criminal law? Of course, one might believe, as I think I do, that some human conduct is so egregious that is should be punishable by the state as a crime, while also believing, as I certainly do, that caging humans for extended periods of time is unconscionable, ineffective, and, in the United States and beyond, racist.
Decommissioning rape law is an abolitionist, if not altogether anti-statist, enterprise.
By interrogating sex offender regulations, anti-sex-work laws, and rape law, I have hoped to convey in this essay some of the political possibilities, as well as the political import, of queer as an analytic to catalog and contest the state’s exceptional deployment of sex.
