When Does a Watershed Become a Sex Panic?

This article originally appeared on this site.

Idols are falling so fast that it’s hard to keep track. The Times has produced a growing tally of twenty-three men who have lost jobs, deals, film roles, and more in the last five weeks as a result of sexual-assault or harassment accusations. Most of these men worked in the entertainment industry or the media. Many more names are on a widely circulated list of “shitty media men,” which has compiled anonymous accusations ranging from the shocking to the exceedingly trivial. Two women have gone public with allegations of rape by two prominent academics. (One died in 2007, and the other said the sex was consensual.) Politicians across the country are also facing repercussions from sexual behavior that apparently went unreported for years, although they do not seem to be falling as far or as fast as the men of media and entertainment. In fact, Roy Moore, the Alabama Senate candidate and former judge who stands accused of having sexual relationships with teen-age girls, may still be headed for election. (Moore has fervently denied the allegations.)

Earlier this year, I had a chance to hear a prominent Democratic Party activist reëvaluate what had seemed like a pivotal point in the 2016 Presidential campaign: the day in October when an audio recording of Donald Trump bragging about grabbing women “by the pussy” surfaced. The Clinton campaign celebrated a premature victory, because surely Trump had rendered himself unelectable. The activist explained the problem with that assumption: to vote against Trump on the basis of the “Access Hollywood” tape, many women would have had to repudiate their husbands, brothers, uncles, and cousins—their entire lives. In other words, we should not have been surprised that some fifty-three per cent of white women voted for Trump; it had been naïve and foolhardy to expect them to defect. Roy Moore’s apparent staying power serves to affirm the hypothesis.

Perhaps the swift execution of entertainment and media careers can be seen as an attempt to build a wall of sorts—a clear division between people who felt that the “Access Hollywood” recording rendered Trump unfit for office and those who did not. It is troubling to have a chasm this wide between two cultures in one country—although it could be argued that the chasm has been there for a long time, and that the current streak of scandals has merely illuminated it. In any case, it is particularly troubling that the frenzied sequence of accusations and punishments is focussed on sex.

I am not trying to straddle the divide between cultures: I fall squarely on one side of the chasm. I have written “me too,” because I have been raped by a man (a stranger), coerced into sex by a man (a friend), and held hostage by a man’s (my boss’s) compulsion to talk about sex and take—and exhibit—pictures of sex. I am also queer, and I panic when I sniff sex panic.

Over the last three decades, as American society has apparently accepted more open expression of different kinds of sexuality, it has also invented new ways and reasons to police sex. David Halperin, a historian and gender theorist at the University of Michigan, has called this “the war on sex.” In the introduction to a new essay collection with that title, which he co-edited, he describes some of the weapons in this war, including the sex-offender registry, which extends punishment indefinitely, and civil commitment, which amounts to preventive custody. In her contribution to the book, the lawyer and journalist Laura Mansnerus writes that about five thousand people are currently confined in twenty states, “involuntarily and indefinitely,” under so-called sexually violent predator acts, without a jail sentence or after having served jail time. “These men,” she writes, “are confined because of what they might do someday, exactly the kind of preventive detention that seems like an obvious constitutional problem.”

On college campuses, sex is also policed outside the normal mechanisms of law enforcement. Under President Barack Obama, the Justice Department directed campuses to adjudicate cases of sexual assault under the provisions of Title IX, which bans sex discrimination. In cases of sexual assaults, victims—both women and men—are often either reluctant or downright frightened to go to the police, and the courts are terrible at prosecuting sexual assault. Not only is the experience painful for the victim but the standard of proof for intimate violence tends to be de-facto higher than for other kinds of violence. On campus, the Justice Department ordered that a different standard be used: a preponderance of the evidence, rather than “beyond a reasonable doubt.” Long before these guidelines arrived, campuses had begun instituting rules of “affirmative consent.” Halperin reminds his readers that when Antioch College introduced this standard—which requires explicit verbal affirmation of the desire to take every sexual step—it was “widely ridiculed.” That was in 1991. Now, the principle of affirmative consent has not only been adopted by countless colleges but has become the law for colleges in New York and California.

The affirmative-consent and preponderance-of-the-evidence regimes shift the burden of proof from the accuser to the accused, eliminating the presumption of innocence. If the presumption of innocence is rooted in the idea that it is better to let ten guilty people go free than risk jailing one innocent person, then the policing of sex seems to assume that it’s better to have ten times less sex than to risk having a nonconsensual sexual experience. The problem is not just that this reduces the amount of sex people are likely to be having; it also serves to blur the boundaries between rape; nonviolent sexual coercion; and bad, fumbling, drunken sex. The effect is both to criminalize bad sex and trivialize rape.

The Trump Administration has rescinded the Obama-era interpretation of Title IX, but at the country’s more liberal colleges and universities, the culture of policing sex will almost certainly persist. The sexual culture wall that is going up may be the first big sign of how this culture is expanding. If the entertainment and media industries are becoming a hostile environment for violent, predatory, and rude men, that will certainly be a good thing. But the boundaries are already blurring. The perpetrators who have suffered consequences now range from Harvey Weinstein, who allegedly committed multiple assaults and deployed an army of agents to keep women silent, to Matt Taibbi, the journalist, who co-edited an aggressively misogynistic newspaper in Russia and co-wrote a fictionalized memoir which contained bragging about feats of sexual coercion. No woman has accused Taibbi of actual sexual coercion. In between lies Louis C.K., who had no physical contact with his victims. That is not to say that, in C.K.’s case, no assault took place—all available information indicates that his actions were sadistic and frightening. But the distinctions between rape and coercion are meaningful, in the way it is meaningful to distinguish between, say, murder and battery. Some of the names on the supposedly secret list of “shitty media men,” which everyone in the media world has seen, are of men who appear to be merely awkward, unskilled communicators, while others are alleged to have committed actual acts of violence and coercion.

A moral panic is always a reaction to something that has been there all along but has evaded attention—until a particular crime captures the public imagination. Sex panics in the past have begun with actual crimes but led to outsize penalties and, more importantly, to a generalized sense of danger. The object of fear in America’s recent sex panics is the sexual predator, a concept that took hold in the nineteen-nineties. The sexual predator is characterized by his qualities perhaps more than his actions—hence the need for preventive detention and sex-offender registries. The word “predator” is once again, unnervingly, becoming central to the conversation.

Of course, the balance of power favors men so much that it’s more likely that the guilty will get away with it than that the innocent will suffer. Still, we would do well to be aware of the risks to our perception of sex, and to this culture, as it grows ever more divided.

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