Abstract
Joseph J. Fischel’s innovative Sex and Harm in the Age of Consent traverses legal studies, feminist and queer theory, and visual culture studies in its attempt to displace consent’s centrality to our cultural and legal engagement of sexual harm and sexual equity. Though Fischel emphasizes that the book is “not . . . a polemic against consent” and instead an inquiry “about consent’s cultural and legal collateral” (10), the book makes evident its normative vision: to “displace (non)consent as the gravamen adjudicating sexual harm, so that we might analyze more precisely problems of sexual inequality and injustice, while we unload the injurious cultural baggage borne by the child and the sex offender” (7) and to “deprioritize its [consent’s] juridical claim as a metric for permissible sex and to demagnetize its cultural appeal as a slogan for good sex” (11). Indeed, Fischel joins a chorus of feminist and queer scholars—including Emily Alyssa Owens, Samantha Pinto, and Janet Halley—who have, albeit in different ways, posed critical questions about consent, and offered other paradigms for thinking about sexual justice. For Fischel, the key analytics that can shift our cultural understanding of sexual violence and freedom away from consent are autonomy, peremption, and vulnerability.
The book takes as its point of departure a paradoxical cultural moment, one marked both by legal protections for (some) LGBTQ citizens and a proliferation of sex offender registration and notification laws alongside deeply felt cultural anxieties about sexual threats, particularly from “online, predatory strangers” (8). Here, Fischel is in conversation with scholars across feminist, queer, and critical race theory who have described what Chandan Reddy terms “freedom with violence” or what Lisa Marie Cacho thinks of as the problem of value, the elevation of some sex into the realm of the respectable, alongside the relegation of other forms of sex as deviant, dangerous, and perverse. As Fischel reveals, respectability has an underside: it depends on the production of a deviant other relegated to pathology.
The book unfolds in two parts—the first two chapters are largely focused on the production and representation of sex offenders, and the final two chapters center on the figure of the child (and, at times, the adolescent). The book’s first chapter, “‘Especially Heinous’: Politics, Predation, Sex Panics” reads NBC’s show To Catch a Predator (TCAP) as a strategy for critiquing and displacing cultural-constructivist literature, or at least balancing it with “a more delicate account of law, harm, and sex” (26). In so doing, Fischel reads the show alongside, and at times, against, texts by Stanley Cohen, Gayle Rubin, Gail Hawkes, and R. Danielle Egan, and suggests that TCAP reveals the importance of theorizing law as a “productive, anatomizing force in the creation of sexual subjects and the constitution of . . . sexual violence, rather than as a final, unfortunate episode or effect of moral panic” (27). He also suggests that existing cultural-constructivist scholarship fails to attend to how age and sex are “proxies for and displacements of more complicated problems of gendered power and queer sexuality” (27). The analytic power of this chapter exceeds its relatively narrow engagement with cultural-constructivist literature—an argumentative move that, at times, hides its stakes. Indeed, part of what Fischel reveals here is the interdisciplinary imagination and ambition of his book. For Fischel, cultural representations are crucial for contending with the juridical construction of sex offenders.
“Transcendent Homosexuals, Dangerous Sex Offenders,” the book’s second chapter, is deeply rooted in a legal archive. Extending the book’s curiosity about the introduction of (some) queers into normativity and respectability, and the relegation of others to pathology and deviance, Fischel reads the Court’s shifting logic from Bowers v. Hardwick to Lawrence v. Texas against two cases related to sex offender registry and notification statutes, Smith v. Doe and Connecticut Department of Public Safety v. Doe, both of which rejected Doe’s claims of constitutional protections from state sex offender registration and notification laws (SORN). Fischel argues that the “sex offender” occupies the position once held by the homosexual, “the exhaustive figure of sexual amorality and dangerousness” (91). Indeed, he argues that the pernicious and homophobic logic that undergirded Bowers (and was seemingly discarded in Lawrence) has migrated into the context of sex offender registration and notification laws. In this chapter, Fischel also thinks through recidivism—the logic that often supports notification and registration laws—as a “trope” that is set up against the “consenting adult,” and that operates to substantiate culturally pervasive ideas about dangerous and perverted sex offenders. As Fischel powerfully notes, “in confirming the constitutionality and desirability of a public list of dangerous sex offenders whose dangerousness it is unnecessary to assess because sex offenders are declaratively dangerous, that public list is as much a normative imaginary for those who are not on it: us” (83).
The book’s third chapter considers age of consent laws, and moves in a different mode than the first two chapters that Fischel imagines as “diagnostic” (85). Indeed, here his goal is to invite a “recalibration” of conversations about adolescents and sex, and to consider new ways of regulating sex, protecting sexual autonomy, and ending harm. Fischel urges readers to think beyond the “numbers game” of age of consent laws precisely because they fail to “take into account the myriad other factors, besides age itself, that make young people more vulnerable to coercion and exploitation: inter alia, power, dependency, sexual and social experience, gender and gendered expectations” (86). He ultimately argues for a “more robust standard of consent for adult-minor and minor-minor sexual relations and heightened regulation of sex among persons in relationships of dependency, trust, and/or radical differences in power” (86), and he invests deeply in notions of affirmative consent, even as he is more invested in the “affirmation” than consent itself. Underpinned by Stephen Schulhofer’s work on “sexual autonomy,” Fischel suggests that law should imagine adolescents as “volitional but vulnerable subjects, rather than innocent incompetents” (18). This leads him to advocate lowering the ages named in sexual consent laws, decriminalizing sex between minors, and enhancing legal regulation of sex between subjects with substantial age differences and/or those in relations of dependence.
The book’s final chapter argues for a fundamental theoretical shift from predation to peremption, a term that Fischel argues “holds at bay the anthropomorphizing of sexual harm that is narratively saturating, ethically insufficient, and mostly misleading” (132). He defines peremption as “the uncontrolled disqualification of possibility” and argues that peremption “names a set of conditions that restrictively channel young people’s desires, that disable young people not simply from achieving their interests but also from developing them” (132). Indeed, Fischel argues that the gendered adolescent, rather than the child or the sex offender, can become “exemplary of sexuality” and suggests that “we take seriously adolescence as that weird space-time between the fictions of the adult rational actor . . . and the unknowing child” (132). In so doing, Fischel invites readers to consider adolescence itself as a sexual orientation—and perhaps one that is exemplary of sexuality—defined by a particular “disposition” (134) and a state of “becoming” (134). Ultimately, the shift away from predation toward peremption, Fischel argues, offers us a conception of sexual harm that makes certain forms of relationality, rather than certain actors, sites of potential intervention. Indeed, peremption makes visible a set of harms and violence that consent’s analytical and legal ubiquity make invisible—including the mandate of compulsory heterosexuality, the policing of same-sex intimacy.
The book is deeply compelling in its capacity to weave a legal archive and a popular culture archive, and in its compelling close-readings of both case law (and policy) and visual culture. Fischel’s account did leave me with a few questions, some of which are beyond the scope of the book. First, the book often slips between the figure of the “child” and the “adolescent” with little interrogation of how these terms are culturally figured differently. Indeed, the seemingly innocent child figured as vulnerable, tender, and asexual is often culturally imagined in ways far different than the quasi-sexual adolescent who inhabits a space between childhood and adulthood. Fischel’s call for rooting a theoretical movement in the particular “weird space-time” of adolescence is appealing, yet it seems to me that the book might more clearly analytically separate the cultural constructions of child and teen. Second, the starting point of his book—the presumed innocence of the child—lacks a robust account of race. Given the burgeoning literature on how black children are policed out of discourses of what Robin Bernstein terms “racial innocence,” considering more deeply the racialization of the categories Fischel invests in would deepen his analysis. In other words, what children are never considered innocent? How do discourses of innocence attach not only to gender and sexuality but also to whiteness? This could also lead to a consideration of the “children” who are presumed not to be sexually innocent, who are presumed to be always already promiscuous, pathological, and deviant in their desires.