Abstract
In this book, Raj draws on the analytic and political dimensions of queer, alongside the analytic and political usefulness of emotion, to navigate legal interventions aimed at progressing the rights of LGBT people. In particular, the book uses queer theory as a framework to map how (mainly) progressive case law enacts emotion to address homo/transphobic injuries that limit the expression of non-conforming intimacies and identities. It further demonstrates how these emotional enactments arrange injury, intimacy and identity in ways that foreclose queer possibilities of intimacy and identity.
One of the most interesting chapters concerns disgust. As Raj argues, ‘Disgust and queerness emerge together in laws criminalising homosexual activity’ (p. 23) and therefore uses disgust as an analytic tool to examine how ‘[…] social aversions to gay sex are channelled and crystallised in cases that recoil from recognising queer intimacies […] and identities [.]’ (p. 23). One of the cases that Raj discusses is the well-known case of R v Brown (1994). As Raj recounts, in this case a number of men were charged with assault occasioning actual bodily harm after videotapes were found of them participating in a number of consensual sadomasochistic sexual acts, including nailing pierced foreskins to wooden boards, incisions on the scrotum, and hot wax play. The men were convicted of ‘unlawful and malicious wounding’ and ‘assault occasioning actual bodily harm’, contrary to sections 20 and 47 of the Offences against the Person Act 1861, and the House of Lords held that consent was not a valid defence. The reading of this case through the specific emotion of disgust could not be more apt, given that revulsion is foregrounded quite explicitly in the case – and foreclosed the possibility that for some, sadomasochistic intimacy does not necessarily equate with (sexual) injury. As Raj succinctly argues ‘[…] queer sadomasochism generated judicial recoil because it failed to appeal to conjugal ideals of “loving” sex’ (p. 30).
Another interesting moment in the book concerns the Australian case of R v Green [1997] HCA 50. The case involved the murder of Donald Gilles in his own home in Mudgee by Malcolm Thomas Green on 20 May of 1993. During the trial, Green’s lawyers had argued that given that Green’s sisters had been sexually abused by their father, this made Green particularly sensitive to unwanted sexual advances. The judge stated that this was irrelevant to the issue of provocation, and the jury found Green guilty of murder. Green's lawyers lodged an appeal, and the New South Wales Court of Criminal Appeal held by a majority of two to one that the sexual abuse evidence was relevant to the issue of provocation, although this would not have changed the outcome of the verdict of murder rather than manslaughter (as explained in Brennan CJ's judgment in the High Court case [1997] HCA 50). Justice Smart, however, dissented and argued that He [Gilles] was trying to coerce G [Green] into providing him with sexual gratification. The past history of G, including the family history of the father’s sexual assaults, must not be overlooked. The provocation was of a very grave kind [.] (Cited in Brennan CJ’s judgment in the High Court case) Some ordinary men would feel great revulsion at the homosexual advances being persisted with in the circumstances […] some ordinary men could become enraged and feel that a strong physical re-action was called for. The deceased’s actions had to be stopped. (Cited in Howe, 2000: 90)
At the time, Gilles was aged 36, whilst Green was aged 22. Green had known the deceased about six years at the time – which means that he was 16 years old when he first got to know Gillies, who would have therefore been 30. Green described Gilles as one of his best friends. The deceased had helped Green obtain work, had lent him small sums of money, and had been his confidant. In evidence, Green said that he had trusted the deceased, looked up to him, and valued his advice. The relationship between Green and Gillies may therefore have also been characterized by power inequalities, especially given Green’s young age when he first got to know Gillies and the age disparity between them – but this possible issue is not broached in the book. On the night of the killing, the deceased had invited Green to dinner, they had consumed a significant amount of alcohol, and then Gillies offered for Green to sleep over in his room. Gillies lived with his mother, who was away, so he could sleep in her room. Green alleged that, before he had fallen asleep, the deceased had entered the bedroom, apparently naked, and had lain down besides Green. Gillies allegedly started grabbing with both hands towards Green’s backside and penis – initially gently. Green verbally protested, but Gillies started grabbing him more insistently, at which point, Green began hitting the deceased, culminating in his brutal murder.
There is no argument here that killing Gillies had been unjustified, extreme and wrong – that it was murder, plain and simple. There is also no argument here that reacting with violence on the part of Green used was wholly unnecessary. As Kirby J put it in his dissenting judgment in the High Court case – Green was at all times wearing at least his underwear and his tracksuit. He was younger and physically fit, and had relatives close at hand who would have collected him if he had called them. His sister’s home was nearby, and there was nothing preventing him from leaving. There is also no argument here with regards to the clearly homophobic attitude of the defendant, as well as the homophobic attitude of Justice Smart, for one, such as through his explicit reference to ‘[s]ome ordinary men’ feeling great revulsion at ‘[…] homosexual advances being persisted with in the circumstances’ (cited in Howe, 2000: 90; emphasis mine). In his statement to the police, Green said that ‘Yeah, I killed him, but he did worse to me…he tried to root me’ (p. 35).
However, I disagree with Raj’s framing of Gillies’ advances as mere ‘gentle touching’ (p. 36). As Raj argues in relation to Smart J's obiter in the Court of Appeal case, the conflation of homosexual advances with ‘revulsion’ and aversion to them with ‘ordinariness’, ‘[…] transformed gentle touching into a disgusting act’ (p. 36). By all means, there is no dispute here with Raj’s argument that the revulsion and aversion Smart J refers to are homophobic in nature – but stripped of that homophobic subtext – the touching still cannot be properly characterized as ‘gentle’. It is not inappropriate to consider unwanted physical contact, especially when it is coming from a person who is naked in a bed you were expecting to sleep in undisturbed and alone – ‘disgusting’. In a lot of cases, the disgust it elicits is completely understandable. Being touched without explicit permission being given, especially in a sexual manner – can be profoundly disgusting.
Raj continues to refer to the touching allegedly perpetrated by Gillies as being of a ‘physically gentle nature’ (p. 37). Reading the descriptions in the (High Court) case itself, in which Green describes being groped and Gillies ‘grabbing [him] harder’ (as per Brennan CJ’s judgment) – makes Raj’s characterization of the events seem incongruous. The touching may have begun by being gentle – but that is beside the point. Being touched without your explicit permission in a sexual manner is never ‘gentle’. Perhaps no-one knows this better than a woman, and Raj does not seem to be entirely unaware of this, given his very pithy discussion that ‘[…] despite the pervasive sexual harassment of women, the law is often reticent to consider such […] acts as aggressive or dangerous’ (p. 37). Raj’s arguments would have therefore probably benefited from focusing on the overarching homophobic logic framing Smart J’s dissent as well as other judgments, as well as Green’s homophobic attitude, rather than attempting to characterize specific actions as ‘gentle’.
An excellent chapter concerns Raj’s examination of US marriage equality cases. For Raj, it is the emotion of love in particular that is utilized in US marriage equality case law to remedy the injury of relationship inequality. Raj is suspicious of the institution of marriage as the cure-all for relationship inequality. As he powerfully argues, ‘This affective crystallisation obstructs the recognition of those who are in non-monogamous relationships (queer intimacy) or resist incorporation into the idealised space of couple-based equality (queer identity)’ (p. 117). Through reading love in jurisprudential cases – Raj argues that limited conceptions of intimacies and identities of LGBT people can be challenged, as well as loosening the legal attachments that hold such conceptualizations in place. Of course, examinations of marriage equality that critique the way the law privileges heterosexual/gendered love as the basis of relationship recognition are not new – what is novel is that Raj takes these critiques one step further by examining how ‘[….] love is not just an object/subject of progressive legal interventions but is also a jurisprudential means of circumscribing those interventions’ (p. 117). As Raj argues, judicial recognition of marriage equality is not solely ‘[…] a formal pairing of two people who exclusively commit by forsaking all others, but it also involves a judicial pairing of idealised intimacies with marriage in a way that excludes the liberty of queer (non)sexual intimacies’ (p. 129). Raj’s argument is not to abandon the pursuit of marriage equality, but rather, to loosen idealized attachments to make room for intimacies and identities that do not fit within the marriage paradigm.
To conclude – already at the level of its premise, the book is an interesting addition to scholarship on law, gender and sexuality studies, as well as valuable in its examination, insofar as the law generally purports to be stripped of all emotive content and restricted to the purely ‘rational’ or doctrinal – as Raj clearly demonstrates, this is not always the case. Moreover, the book demonstrates the usefulness and importance of taking the affective dimensions of jurisprudence into account, as well as the manner in which such affective dimensions are implicated and can affect or influence the relevant jurisprudence and jurisprudential outcomes.
