Abstract
In Crime, Desire and Law’s Unconscious: Law, Literature and Culture, David Gurnham approaches the controversial topic of legal, political and cultural reactions to deviant forms of sexual desire. In this context, Gurnham discusses a wide variety of divisive topics, such as the criminalization of HIV transmission and exposure (Chapter 3), the sexual exploitation of girls and young women (Chapter 4) and legal responses to unconscious sex (Chapter 6). The thread tying this range of topics together is a discussion of the ‘tension between recognizing sexual agency (the right to say “yes”) and the role for criminalization in managing the risks of victimization, exploitation or harm for some people that may also follow from or accompany such recognition’ (Chapter 5). This tension is discussed by utilizing an extremely diverse set of methodologies, including engagements with everything from philosophy, psychoanalysis and feminism to Greek and Roman myths, Shakespearean plays and modern literature. The breadth of disciplines and arguments brought into this book would lead one to assume that it is a collection produced by many authors, however, Gurnham has single handedly taken on these multiple methodologies and discussions. This breadth of influences is both the book’s strength and its weakness, as it can lead to certain generalizations and misconceptions.
This book is uniquely fitting for scholars of sociolegal studies due to its diverse engagements with a broad range of theorists and disciplines including the work of Freud, Shakespeare, Sade, Ovid, Moore, Ballard and Halley. This is also accompanied by examples from movies, news media, Roman and Greek myths, empirical research, philosophy, anthropology, political campaign materials, Victorian-era literature, modern literature and legal cases from Britain, Australia and Canada. Although this may seem like a cumbersome amount of sources to draw from, Gurnham is often successful at using these varied sources because he explains their context and relevance in a succinct and clear manner. This style allows the book to work as an excellent example of the fluidity of legal studies, showing how one can bring in a diversity of methods to critique a single legal case or phenomenon. Despite this range of influences, the book remains very well defined and accessible due to both an introduction and first chapter that lay out the author’s methodology and main questions and summarize many of the theories, stories and examples that will be used throughout the text. For instance, before applying Freudian theory, Gurnham provides an overview of many of Freud’s concepts and also states the specific way that he will be using and understanding Freud for the purposes of his argument. Therefore, no prior understanding of Freud is necessary to deeply engage with this text. The prominent role of psychoanalytical theory in this book may make some readers initially uneasy (due to the often opaque nature of this kind of analysis); however, Gurnham’s approach to psychoanalysis is easily accessible due to his focus on the narrative aspects of Freud’s work, conceiving of Freud as more of a storyteller than a doctor, ‘My Freud is not Freud the scientist […] my Freud is Freud the incredible storyteller’ (p. 15). Gurnham posits that ‘law’s unconscious’ is ‘readable in a way comparable to a psychoanalyst’s reading of a patient’s neurosis: not as any final definitive explanation but much more hesitantly and provisionally as part of an ongoing engagement between law, literature and culture’ (p. 87). This analysis builds on previous theories of law’s unconscious, such as Felman’s (2002) work on the ‘juridical unconscious’ and Khan’s (2014) work on the ‘sociolegal imaginary’. Both of these authors are cited by Gurnham and are very influential to the way that he discusses the repressed values and unconscious desires that are hidden within legal processes, arguments and decisions.
Gurnham uses very provocative examples and metaphors to stimulate discussion on topics such as sexual assault, non-normative sexual practices and consent. He does this with the aim of revealing the multiple assumptions and predispositions that influence law’s unconscious. For instance, in Chapter 3, ‘Choice, Risk and Death in the Criminalization of HIV’, Gurnham argues that the criminalization of individuals who do not disclosure their HIV status to their sexual partners conceals law’s unconscious desire to have a similar kind of power over mortality (Chapter 7). This chapter shows how the apparent reasoning behind legal decisions can be radically reread through critical analysis. In Chapter 4, ‘“Our Girls are [Not] Halal Meat!”: Metaphor and Meaning in the Reporting of Sexual Exploitation Trials’, Gurnham interrogates the popular metaphor of women as meat in order to reveal the overt racism and repressed classism at work in a British case of sexual exploitation (p. 76). This chapter supports Gurnham’s argument that many factors influence legal and social opinions regarding taboo acts and that the stated reasons for legal and social opinions may conceal other dynamics that are at play. In Chapter 6, ‘The Feminist Unconscious: A Critique of the Criminalization of Unconscious Sex’, Gurnham discusses the notion of consent and the problem of criminalizing consensual unconscious sex in regard to cases of erotic asphyxiation. Focusing on the Supreme Court of Canada case R v. J.A (2011) SCC 28, this chapter deals with the idea that legal decisions are not always made based on the facts of the case but rather based on law’s imagination of the worst case scenario. Each of these chapters, dealing with a range of challenging topics, flow together through the theme of law’s unconscious and an interrogation of the ways that law and society shape the perceived criminality of a variety of sexual acts and desires. Gurnham’s use of psychoanalysis allows for an interesting way of making connections between legal judgements, media, literature and other sources.
This book is an intriguing and morally challenging, yet accessible, read. Its clear writing and captivating content would make it a helpful and discussion-inducing text to include in a mid- to upper-level undergraduate course. However, there are some weaknesses in this book that cause me to be wary of recommending it to anyone who does not have a strong knowledge of feminist theory and an understanding of the politics of sexual violence. Specifically, I have a few concerns with the way that sexual violence and feminist theory are discussed in this book. Firstly, although at some points, Gurnham is careful to differentiate between different kinds of feminist theory and the diversity of opinions held by feminists, at other points, ‘feminists’ are referred to as a single group. This generalization does not recognize the multiplicity of conflicting opinions within feminist theory or the existence of sex-positive feminists. Although he sometimes specifically differentiates ‘carceral’ feminists, and in these moments his argument is much stronger, there are many moments where he wrongly generalizes the diverse opinions of those who count themselves under the broad umbrella of feminism. A great deal of feminists critically engage with conceptions of sexual deviancy and pay great attention to addressing sexual violence whilst respecting non-normative forms of sex. Therefore, it would have been useful for him to spend more time explaining different sects of feminism and to use sex-positive feminist arguments more overtly. Without this, his work could be used to solidify unfounded generalizations about what feminism is and does. Secondly, it would have been useful to spend more time, preferably at the very beginning of the book, articulating the seriousness and prevalence of sexual assault and recognizing how hazardous critical discussions of consent can be because they can support pervasive myths about sexual violence. It seems necessary to clearly state this recognition before moving on to theoretical interpretations of sexual violence. Additionally, although Gurnham discusses feminist critiques of Freud’s psychoanalytic theory in Chapter 2, it would have been helpful to have an earlier and more prominent recognition from the author that many of Freud’s theories promote gender inequality and narratives of victim blaming that need to be thoroughly undermined. Thirdly, in Chapter 5, ‘The Sadean Trial and the Fantasy of Sexual Citizenship’, I find that Gurnham’s argument could have been more careful when asserting that there can be ambiguity between rape and consensual sex (p. 91). In this chapter, Gurnham says: a full discussion of ‘sexual scripts’ relied upon by authorities and legal actors in judging rape allegations, and assumptions that ‘real’ rape must involve evidence of physical violence by a man who is previously unacquainted with the complainant and their impact on decision-making, is well beyond the scope of this chapter. (p. 97)
However, I would argue that such a discussion is exactly what this chapter needs as a way to balance out the very controversial assertion that there is ambiguity between sexual violence and consensual sexual desire. It would have been helpful for Gurnham to address these issues head on, as this would ensure that his arguments could not be co-opted to support victim blaming and slut-shaming narratives. The argument in this chapter also becomes problematic when there are quick changes from discussing cases of sexual assault to discussing erotic literary examples of BDSM (p. 104 – Gurnham provides a footnote stating: “I use this acronym to refer to a broad range of kinky sexual acts that may involve domination, submission and sadomasochism.”). It is not that I have a problem with comparing real cases of victimization with literature (as he expects the reader to) but rather that he is too straightforwardly comparing cases of non-consensual violence with erotic fiction. Lastly, in this chapter, Gurnham explains the deeply disturbing case of rape in Jackson v. State (562 SE 2d 847). Directly after explaining this case of sexual violence, he then refers to the rape that took place in this case as ‘fucking’ (p. 107). This ambiguity in language is inappropriate and makes it unclear to the reader whether Gurnham understands how and why this use of language can be offensive.
Gurnham’s arguments throughout this text are provocative as well as impressively multifaceted, as he brings in comparative material from an assortment of disciplines. However, this work would have been much stronger if Gurnham had been more careful to weave a complex understanding of feminist theory and recognition of the politics of sexual violence throughout the book. This text could be of interest to upper-level students and academics working on issues of sexual violence, sexual agency and law’s unconscious in a multitude of disciplines including sociolegal studies, gender and women’s studies, sexuality studies, sociology and other interdisciplinary studies that bring law into conversation with a wide range of literary and cultural sources.