Sex, Consent, and the Dangers of "Misplaced Scale"

By Masha Gessen, The New Yorker

14 December 17

hirty-three years ago, Gayle Rubin, a cultural anthropologist and feminist activist, observed that, during certain times in history, humans tended to renegotiate the sexual order. The late nineteenth and early twentieth centuries in England and the United States were such a period; the nineteen-fifties, when the popular imagination linked the threat of Communism to homosexuals, was another. In her still influential essay “Thinking Sex,” Rubin didn’t offer a hypothesis to explain why these periods called for a rearrangement in the sexual sphere, but she noted that they produced laws, institutions, and, most important, norms that governed sexuality for decades after.

It’s possible that we are living through such a period now. It is also possible that, like previous renegotiations, this one has been brought on by the fear of a world careening out of control. “The time has come to think about sex,” Rubin wrote in the opening lines of “Thinking Sex.” “To some, sexuality may seem to be an unimportant topic, a frivolous diversion from the more critical problems of poverty, war, disease, racism, famine, or nuclear annihilation. But it is precisely at times such as these, when we live with the possibility of unthinkable destruction, that people are likely to become dangerously crazy about sexuality.” Fast-forward to 2017: we are living with the possibility of unthinkable destruction, but we seem to be spending significantly more time discussing the sexual misbehavior of a growing number of prominent men than talking about North Korea or climate change.

Rubin did not expect good things to come from the renegotiation of the sexual sphere. The problem, she wrote, was “the fallacy of misplaced scale”: sex loomed so large that any sexual transgression, or imagined transgression, might bring extreme punishment. She quoted Susan Sontag, who wrote that “everything pertaining to sex has been a ‘special case’ in our culture.”

Consider the case of the former Oklahoma state senator Ralph Shortey, who is scheduled to appear in federal court in Oklahoma City on Thursday to plead guilty to child trafficking. Shortey, who is thirty-five, married, and politically very conservative, was arrested in March in a motel room where he apparently planned to have sex with a seventeen-year-old boy whom he had met on Craigslist. They had negotiated sex for payment before coming to the motel. According to investigators, Shortey had been advertising for young men for a number of years, and had sent “commercial pornography” to some he had met online in exchange for naked pictures of them. The age of consent in Oklahoma is sixteen, and all the teen-agers involved were at least that old. But federal laws on child pornography and child prostitution cover people under the age of eighteen, and “pornography” doesn’t necessarily mean pornography: any naked photo may be prosecutable, and “trafficking” doesn’t mean trafficking—no movement, capture, or pimping need occur. Because Shortey was facing prosecution for child trafficking and several counts of child pornography (every photo can be a separate crime), he was looking at life in prison. As a result of the plea deal, he will go to prison for at least ten years—for what appears to have been a series of entirely consensual encounters between legal adults. This is an example of “misplaced scale.”

Consider a very different example. Glenn Thrush, a White House reporter for the Times, was suspended in advance of the publication of a story, by Vox, that described multiple instances in which Thrush made sexual advances toward younger women. In one, he kissed a woman on the ear (at the time, the woman seemed to have shrugged it off); in another, there was a consensual but aborted sexual encounter. All of the incidents appear to have involved consumption of alcohol, none occurred in the workplace, and none involved force. None of the women reported to Thrush, who, as a reporter (then at Politico), was nobody’s boss. The Times announced that it was suspending Thrush because of accusations of “inappropriate sexual behavior.” This is another example of “misplaced scale”: employers do not normally appoint themselves arbiters of appropriate behavior outside the workplace. It is hard to imagine a non-sexual example of non-work-related behavior that would get a reporter preëmptively suspended in the absence of any crime or misdemeanor.

Rubin’s essay was written during a period now remembered as the “feminist sex wars.” The women’s movement had split into two camps: a less audible and less visible sexual-liberationist wing and a dominant wing that was highly, militantly suspicious of sex. The latter wing strove to tame and defang sex so that it would not contain even a hint of power.

The feminist sex wars raged largely unnoticed by the larger culture. The battles, though, concerned a lot of the issues directly relevant to the current moment of sexual renegotiation. One such issue is consent. One side argued that no consensual act should be punishable by either law or social sanction. The other side focussed on the limits of consent, arguing that consent was sometimes—or even most often—not entirely freely given, and that some things, like injury sustained during S & M sex, could not be the object of consent.

The idea that consent is irrelevant is clearly present in the Shortey case: the young men had reached the age of consent and had given their consent, but the federal government still views them as victims. The story on the basis of which Thrush was suspended muddies the waters on consent: one of the women has clearly said that she had consented to an encounter, and two others rejected Thrush’s advances, successfully withholding consent. Still, all the women are cast as victims—including the woman who clearly stated that she does not consider herself a victim.

The conversation we are having about sex began with incidents that involved clear coercion, intimidation, and violence. Paradoxically, it seems to have produced the sense that meaningful consent is elusive or perhaps even impossible. On Tuesday, the band Pinegrove announced that it was suspending its tour because its front man, Evan Stephens Hall, had been accused of sexual coercion. The details of that particular accusation are unclear. But, on the group’s Facebook page, Hall posted a statement that seemed to sum up his sense that women, at least when faced with a famous man, cannot make adult choices: “i have been flirtatious with fans and on a few occasions been intimate with people that i’ve met on tour. i’ve reached the conclusion now that that’s not ever appropriate—even if they initiate it. there will always be an unfair power dynamic at play in these situations and it’s not ok for me to ignore that.”

The timing of this current sexual renegotiation makes sense. Sex is one area where, it seems, we can change something. In this way, sex is different from a nuclear holocaust or a climate disaster. But, while we think we are moving forward, we may be willingly transporting ourselves back to a more sexually restrictive era, one that denied agency to women.

In the past, sexual laws and regulations have most often been strengthened in the name of protecting children. “For over a century, no tactic for stirring up erotic hysteria has been as reliable as the appeal to protect children,” Rubin wrote in 1984. Sometimes the children are symbolic: anti-gay crusades are almost invariably framed in terms of “saving the children”— not specific children, but just the children who have to share a country with queers. In the current American conversation, women are increasingly treated as children: defenseless, incapable of consent, always on the verge of being victimized. This should give us pause. Being infantilized has never worked out well for women.