The word hysteria originally meant being driven insane by your sex
organs, which may help explain the last crazy year in politics.
Republicans offered the American public that classic in sexual
hysteria, "The Crucible" -- a witch hunt led by grown men who profess that private acts of sexuality must be exposed and punished. The president and his defenders offered an equally lunatic version, more akin to "Boogie Nights" -- embodying the compulsive horniness of Dirk Digler and the assumption that sex should never be judged.
A big victory for either the Democratic or Republican party in the recent election would have been interpreted as an embrace of its sexual agenda. But the results showed that voters wanted to shift the political composition of American government only marginally. Although Republicans got 51 percent of the vote for Congress and won seven of the eight big governorships, the Democrats beat the trend that the party in the White House always loses congressional seats in midterm elections.
Apparently the voters' message of moderation missed its mark. Following the elections, President Clinton foolishly interpreted the outcome as an endorsement and tried to out-lawyer the Judiciary Committee. After the slight election setback, the Republicans continued to pursue their sexual agenda under the thinly veiled explanation that they were carrying out their constitutional duty. (The sudden resignation of Speaker-designate Bob Livingston makes it clear that for the Republicans, no matter what they say, this scandal is not simply about lying but about sex.) But the American public continues to turn its back: Polls show that while most Americans overwhelmingly reject the prospect of impeachment, few are threatening Congress with retaliation to stop it, either.
This seems like exactly the right reaction considering the options. Despite what the articles of impeachment profess, the public understands that this is a battle over the sexual mores of America. And they see that sexual hysteria is the worst possible politics of sex. Long after the current Washington game of chicken comes to an end, we will still
be faced with the fundamental questions rumbling underneath the past year of partisan fighting: How are we as a society going to deal with sex scandals, sex laws and the division between public good and private freedom? Should there be more laws governing how men and women treat each other sexually? Is sex too sacrosanct to be subject to the law? Is the sexually obsessed media diverting us from the serious business of public life? If so, should we banish them, as Plato suggested banishing distracting and impious poets from his ideal Republic?
No matter what happens to Clinton, sex will continue to intrude into political life. The sex scandals of the past few years alone give us a trail of these fault lines. Remember that Clarence Thomas was followed by Sen. Robert Packwood was
followed by Lt. Kelly Flinn was followed by Air Force Gen. Joseph Ralston was
followed by Clinton and the improbable swingers Henry Hyde, Helen Chenoweth and
Rep. Dan Burton, to be followed by ...?
Sooner or later, we must stop seeing each eruption of sex into politics as
Of course, sex has always been the subject of some law, and
Americans have had laws regulating male-female sex since the Puritans.
Mostly, although not always, the laws were a weird mixture of male power and unexamined religious beliefs. Rape was indeed illegal, but the laws were more designed to protect men's desire to know who their children were than women's bodily dignity. Although over the years, these laws gradually changed, the fact that most states had no laws against marital rape until very recently shows just how limited early rape laws were. Similarly, most laws against adultery originally applied exclusively to wives (and their lovers) and only later were extended to husbands. But regardless of what the sex laws said, in the first half of the 20th century many of them were struck down, repealed or just ignored.
Paradoxically, just as sex was being deregulated on many fronts, the legislative activism that sprung from the feminist movement in the 1970s added some new laws like the prohibitions against sexual harassment and marital rape. We were still very much in the middle of this process and still debating its wisdom when the sexual hysteria erupted this year.
The debate about sex and politics is not an accident of history. The rise of women in politics has meant that people formerly invisible to politics are now raising issues of male-female sexual relations formerly invisible to politics. Women are demanding to be treated like citizens, challenging the double standard of female fidelity and male license and resisting harassment in the workplace. As a result, even though President John F. Kennedy may have been free to have private sex with two youthful White House interns,
playfully nicknamed "Fiddle" and "Faddle" by White House insiders, the
fiddling days are over. Today's interns will be remembered by their proper
This emergence of sex into politics should not surprise anyone who
takes a long view. All the concerns that make any issue a subject for
politics -- should people keep their word? Does might make right? Should the
rich be able to squeeze the last drop out of the poor? Should power be
thrust into every relationship? -- are present in the issue of male-female
sex. From the standpoint of history, once women started using the right to
vote, enforceable laws against rape and workplace sexual harassment,
professional constraints on powerful players like teachers, divorce lawyers
and therapists and other claims for sexual justice were inevitable.
Instead of facing these issues squarely, however, the political
establishment offers two concepts of sexual hysteria. Liberals now argue that sex is wholly private and thus never a legitimate issue for public debate or politics. The low point of this argument had to be the otherwise
respectable philosopher Thomas Nagel expostulating in the Times Literary Supplement that the Kenneth Starr investigation presaged
the end of Western civilization, a conclusion that neither genocidal Nazism
nor 70 years of Soviet communism had elicited from this good
liberal. For their part, conservatives want to make every kind
of sexual conduct and every sexual relationship available for every
instrument of state power. The nadir of this argument was Rep. Mary Bono's mawkish suggestion on the House floor that the standard for fitness for public office is whether all details of adult conduct can be openly
discussed with children.
Fortunately, we are not stuck with these extremist visions.
History is a good antidote to hysteria, and Americans have much experience
with successive groups changing the content of politics. During
Reconstruction, emancipated slaves sought public funding for education.
Beginning in the last century, workers began to challenge the private power
of industry, taking on the conventional wisdom that the employment
relationship was not a legitimate subject for law. A half century later,
the labor movement achieved a minimum wage and workplace safety rules.
Following on labor's heels were advocates of anti-discrimination laws, who
argued even more directly that access to the labor market is a civil rights
issue. Today, no one would argue that education and public health are not
a matter of political life or that the market is immune from law. Even
Robert Bork thinks the government should rein in Bill Gates.
History is useful, because one place to start solving the new
problems of sex is to ask whether they resemble things we as a people
already have figured out. For example, we oppose the unlimited use of
physical force. Hence we enact laws against battery and murder. So when
particular sexual conduct is at issue, we might ask, for example, was the
sex obtained by coercion, like rape? Laws against blackmail and the
antitrust laws tell us that we do not like abuse of power. So we might
ask, was the sex obtained by the operation of overweening power, like sex
between an adult and a minor? The civil rights laws tell us that we do
not think whole groups should be shut out of participation in public life,
including the public life of the workplace. So we might ask, does the sex
operate to make it difficult for women to participate in the workplace, as
workplace sexual harassment does?
Finally, Americans have a lively sense of what is a fair inducement
to get someone to agree, even if they appear to be acting freely. This
sense of fair play is evident in the laws against consumer fraud and
insider trading on the stock exchange. So we might ask ourselves if the
sex at issue violates basic notions of decency and fair play in
establishing consensual relationships, such as sex between a therapist and
a patient or a divorce lawyer and a client. On the other hand, our labor laws generally maintain that it is fair game to hire someone to do just about any job -- no matter how undesirable -- if the individual is a consenting adult and wants the work. This should (but doesn't) make much prostitution legal -- unless it amounts to a violation of occupational health and safety or to public concerns addressed by laws like the minimum wage and maximum hour rules.
These old and basic concepts can help us address new problems.
Consider the legal status of adultery, an issue just beginning to resurface in the public eye. Although more states than you might think still technically criminalize adultery, and laws against adultery go back to Hammurabi's code, adultery should obviously not be a criminal act
in a secular nation. Religious beliefs aside, adultery typically does not
involve coercion or abuse of power. It does not disable any particular
group from the ordinary goods of common life. As we know, historically,
adultery law was directed at women, ensuring that men did not leave their property to someone else's offspring. Now that we have easier ways of identifying sperm than locking up women, does adultery violate something the state ought to be protecting? This concern has emerged repeatedly from beneath the supposed concern with perjury in Clinton's case as the argument that we should not punish lying about an act of adultery, because we shouldn't be regulating adultery in the first place.
But adultery does violate notions of decency and fair play.
At a minimum, the adulterer breaks a public promise built into the
institution of civil marriage, a kind of breach of contract. The pain and
harm of adultery is beyond dispute. But perhaps these kinds of harms are
best addressed by a civil action brought by the injured spouse against the
straying mate. Civil justice rather than criminal prosecution in the name
of the people (and in the hands of the likes of Starr) seems a
better way to remedy the personal harms of adultery. It is not that there
should be no law, but that the form of the law matters crucially to the
sexual politics embodied by the law.
Virtue advocates like Daniel Patrick Moynihan might call our
proposal for "civil"-izing adultery "defining deviancy down," that is,
solving a problem of social wrong by redefining it as right. To the contrary, rather than having a religiously based criminal law that never gets
enforced, the law of adultery should focus on the pain and the
harm and empower the person who has suffered with a meaningful action to
make herself or himself whole.
Moreover, our proposal would not only make legal recourse to adultery practical, it would also regulate
some other aspects of sex outside of marriage. The benefits of law
should extend beyond the confines of traditional religious marriage. We propose a broader, shallower legal structure for domestic partnerships, a
status that would be available to same-sex as well as heterosexual couples.
Nonmarital partners should be enabled -- and encouraged -- to establish
relationships more fair and more caring than the unstable and often
exploitative one-night stand, but not amounting to a promise of lifelong sexual fidelity.
In the old days, enduring nonmarital unions between men and women
were called concubinage, and the law usually obliged the stronger and
richer sexual partner to take care of the person meeting their sexual
needs. Today, however, when people cohabit, they have few legal ways to
establish the terms of their relationship. In many states, the law
actively discourages them from making meaningful commitments. Few states recognize common-law marriage. In many other states, contracts between
cohabitants are not enforced when the moment comes. The "palimony"
established in the well-known Marvin case depends upon the willingness of
the parties to swear falsely that sex was not the point of their
relationship! (Pals, get it?) We need a new sexual order to encourage and
enable people to make binding, enforceable arrangements outside of
This kind of analysis, which applies the ordinary rules of legal
rights and obligations to sex, is more fruitful than invoking the Bible on
the one hand or professing indifference on the
other. Armed with ordinary standards of fairness and existing legal tools,
the society can handle the predictable eruptions of sex into public life
without invoking either of the discredited extremes the American public has
so wisely repudiated.