Abstract
David Halperin and Trevor Hoppe bring together 17 essays that broaden the discussion of sexual politics from the lens of sexual health to that of social justice and civil rights. The authors highlight the reduction of sexual freedoms and increased sexual surveillance in the United States (US) and elsewhere since the 1970s. In the introduction, Halperin metaphorically and succinctly characterises the contemporary politicisation and criminalisation of sex as a ‘war’. It has brought grave consequences for some and has been profitable and useful to others. The book presents various perspectives that anatomise the criminalisation of sex as a global phenomenon. Readers whose interests lie in the interaction between, and philosophical debate regarding, human rights, sexual liberation, criminality and social policy will find it illuminating. It is commonly thought that we live in an era of sexual emancipation, especially in developed countries. This is chiefly owed to the progressive policies that are prompted or solicited, if not implemented, to protect one’s sexual freedom in many countries. The War on Sex reveals the other side of the coin: new restrictions are being imposed on sexual activities on moral, aesthetic, political or religious grounds, or because an act is not protected by current law.
The chapters in section one, ‘The Invention of the Sex Offenders’, examine the disproportionately severe punishment of convicted sex offenders compared to those convicted of other serious felonies, such as indefinite civil confinement and sex-crime registries in addition to prison time. To illustrate, in Oklahoma and Louisiana, it is mandatory for the words ‘sex offender’ to be printed in large orange-red letters on their driver’s licence. In Louisiana, sex offenders must personally notify their neighbours of their presence by taking out advertisements in local papers at their own expense. Likewise, many sex offenders across states must comply with strict residency restrictions as well as restrictions on places where they may be present. Nonetheless, it was noted that a mere 1% of the registered sex offenders across states fall into the category of violent sexual predators owing to the fact that the crimes they were found guilty of did not involve any contact with another person, not least among these the possession, receipt, transportation, or distribution of sexual images of minors. Moreover, these chapters provide numerous historical accounts of what has contributed to the formation of these policies, especially the rise of sex panic (see Regina Kunzel’s chapter, ‘Sex Panic, Psychiatry, and the Expansion of the Carceral State’) and the oppression of homosexual population via the criminal justice system (see Scott de Orio’s chapter ‘The Creation of the Modern Sex Offender’).
The chapters in section two, ‘Sex Work and the Trouble with Trafficking’, probe the prosecution of prostitution and trafficking at different levels. On a macro level, Elizabeth Bernstein’s chapter uses the case study of human trafficking to elucidate the interaction between neoliberal sexual politics and carceral politics. Like other theorists, she demonstrates that sex is often the vehicle that joins the left and the right together in the criminal justice arena; likewise, criminal justice has also bonded feminists and evangelicals together vis-à-vis historically and socially specific ideals of sex, gender, and the family. This delivers an important message – that ‘the war on sex cannot be blamed on right-wing extremists or religious radicals alone but also needs to be understood as the result of a long-standing collaboration between the Left and the Right’ (p. 31). On a meso level, Hoppe presents the unintended consequences resulting from the execution of policies that aim to tackle human trafficking. According to the Truthout review of state and other data published in 2014: despite the increased focus on trafficking, the vast majority of prostitution-related arrests in New York City are for low-level charges like loitering and simple prostitution, not human trafficking. Sex workers and even trafficking victims are far more likely to end up in handcuffs than the sex traffickers. (p. 43)
On a micro level, Melissa Petro’s chapter documents her first-person experience of a school barring her from teaching as an elementary school teacher for disclosing her previous jobs as a stripper and a sex worker.
The chapters in section three, ‘Making HIV a Crime’, cover the criminalisation of HIV which is still pervasive in contemporary society. Utilising coercive policies to contain infectious diseases, particularly sexually transmitted infections and diseases (STIs and STDs), has a long history in the US and can be traced back to the First World War (Hoppe, 2017). The creation and application of such laws has expanded, gaining public support and popularity in the US and elsewhere. To illustrate, exposing someone to contagious diseases was for the first time considered a misdemeanour in California in 1939. In 1988, the Commission on the Human Immunodeficiency Virus Epidemic published a report on HIV transmission that encouraged state governments to use criminal law in the face of this epidemic (Watkins, 1988). The tendency towards criminalisation was compounded by the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act in 1990, which required states to certify that they had established criminal laws to prosecute individuals who wilfully and intentionally exposed others to HIV. This sentiment has persisted. In 2011 a Riverside County Superior Court Judge, David B. Downing, received the sealed envelopes from an HIV-positive defendant, Kaushal Niroula. Downing commented, ‘Lord knows where his tongue has been’ (Kelman, 2017). This discriminatory comment, made by a legal professional, reveals a lack of understanding of HIV transmission and offers a glimpse of the cultural context of HIV/AIDS in California as things stand. This resonates with Gregory Tomso’s chapter, which explores the way in which HIV has been used as a political weapon in the carceral state. He argues that HIV-positive individuals are stereotyped as ‘monsters’ who are ‘selfish, reckless, and blinded by their own desires for sex’ (p. 361), and are used to justify state involvement in the management of HIV. Such sentiment has moved beyond HIV/AIDS and brought the transmission of non-fatal STIs, such as genital herpes, into the legal arena in the 21st century (e.g. BBC, 2014; Pham, 2011). These statutes and prosecutions are not driven by evidence; yet their existence creates an illusion of safety for those who are HIV/STDs-negative by putting the burden of responsibility for prevention on those who are carriers. These statutes undermine the crucial public health message that HIV/STDs prevention is a mutual responsibility (see Sean Strub’s chapter ‘HIV: Prosecution or Prevention? HIV Is Not a Crime’).
This book makes a notable contribution to the discipline by substantiating the assertion that criminalisation is a poor public health and educational measure, and concurs with some legal philosophers’ argument that the belief that a behaviour is wrong being inadequate justification for dealing with it through a criminal law (Husak, 2008). It is stressed that the war on sex is entwined with racism, sexism, social inequality and homophobia. Several chapters articulate that women, transgender people and the poor are exposed to the harshest sexual policing, with young transgender people of colour the most likely to be discriminated against and mistreated. Upon reading this book, there are few questions I would like readers to consider: (1) To what extent should the state/government control citizens’ private lives and sexual autonomy? (2) To what extent it is justifiable to prohibit or criminalise behaviours that defy conventional moral values? (3) Should policy concerning sex crimes be based on evidence and handled by professionals to avoid the influence of public opinion? As Strub remarks: HIV can be prevented or it can be prosecuted, but not both (p. 351).