PHIL 455 Sex and the Law
Everybody thinks pedophilia is bad, right? There is widespread consensus about that, right? Maybe not. I think this popular misunderstanding of the nature of ongoing support for pedophilia is one of the main reasons it has not been meaningfully addressed, particularly in contemporary queer culture and especially in affluent white cis male gay (AWCMG) culture. I will be comparing and contrasting the way these two groups affect and are affected by the contemporary discourses around pedophilia, particularly from the legal and moral perspective. I will also offer a solution to the problem I describe. Comparing and contrasting these groups is useful for reasons that will soon become obvious.
One of the main problems with confronting this issue within both the broader contemporary queer culture and specifically the AWCMG culture is the lack of a shared epistemology and ethical framework for making persuasive moral arguments about behavior. This is thanks, in large part, to the fact that American culture tends to delegate its moral reasoning to increasingly reactionary and esoteric forms of evangelical protestant Christianity. It becomes a problem because most Queer/AWCMG people tend to rightly reject religion as a valid foundation for any moral truth, and therefore the community shares a vision of rejecting the idea of moral truth rather than developing it together.
There is an old saying, “be gay do crime.” Historically, it has been illegal throughout most of American history for people to be gay in the verb sense rather than the adjective sense. This has led people to think of their sexual identities as a character they might sometimes or someday play, rather than a set of behaviors they regularly engage in; as an adjective rather than a verb. This is why there is a long history of strong relationships between Queer/AWCMG groups and organized crime which facilitates spaces and services for these illegal identities.
Stonewall was a mafia club. The reason there was a riot is that the police wanted to be paid off a second time in the same night. This is why Sylvia Rivera (who was there) explains that it started with patrons throwing dimes at the cops. (Guardian) The popular myth of Martha P Johnson throwing a brick distracts from this deeper truth. The riot started because corrupt police wanted a second bribe from the mafia which owned the illegal gay bar. This was long before the word trans(gender) was popularized, and in the words of Rivera, Stonewall was a bar for what we would today call the AWCGM community. Rivera said Stonewall did not generally allow “drag queens” like her and Marsha to enter, and that she was the only one there that night. (Guardian) Marsha later agreed with Rivera, saying in her own words that she was not even there. (New York Times 2:55-3:18) The story of Stonewall has transformed into a story of trans women of color standing up to police who were persecuting them for being trans women of color. In reality, Stonewall was a mafia club that generally only allowed white cis men. The riot started because the police wanted a second bribe in the same night. The modern myth of Stonewall is something that is meaningful for a lot of people but the truth is more interesting than the myth as we will see…
This historic relationship between organized crime and the Queer/AWCGM community is the first of two pieces of the core problem I want to address. The people in the community were forced to reject a society which rejected them. It was illegal for them to exist, so they embraced organized crime and were embraced by it. The zeitgeist of the community has always rightly been that legal definitions are explicitly invalid, that legal bans on a behavior should be interpreted as an intrinsically positive thing about the thing being banned, and that legal endorsements of a behavior should be seen as damning.
Lord Acton famously said, “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” The heroic men of the AWCGM movement were no exception. The visceral hatred between the leaders of the cis white gay men and everyone else who wasn’t quite society’s ideal but wasn’t an affluent cis white male gay culminated in 1971 when Del Martin wrote her infamous open letter called “Goodbye, My Alienated Brothers.” Martin was a lesbian quaker who had started hundreds of activist nonprofits including underground news networks to spread information and connect people together. In her open letter, she wrote about how the luminary gay leaders like Harry Hay had repeatedly told the lesbians that their place in the movement was in the kitchen, that they had done the same to essentially everyone who wasn’t an affluent white cis male gay. She wished them well and she left with her hundreds of nonprofits and international network of followers to build a new separate movement away from the AWCGMs.
Harry Hay was the founder of the Mattachine Society. There is some debate about whether or not it was the world’s first gay rights organization. They were certainly among the first and most influential in the early campaign for rights and equality for gay people. They even earned their own FBI COINTELPRO task force which eventually dismantled Mattachine (Cohen). Hay went on to found the radical faeries which is still one of the largest and most active primarily-AWCGM organizations in the world with chapters everywhere. He deliberately designed it as something that would be hard to dismantle in the same way Mattachine had been dismantled. Rather than building a nonprofit with a board, he built a loosely affiliated international network of anarcho-communist houses and sanctuaries where drug-fueled orgies combine with alternative spirituality to create a community that isn’t really possible for an FBI agent to infiltrate. Hay went on to spend essentially all of his adult life campaigning for the legalization of pedophilia. He protested against gay pride parades across the country – up until the day he died — because they refused to include pedophilia as a legitimate part of the gay community. (Regent University Law Review) He wrote for the NAMBLA newspaper, spoke at their conferences, wrote forewords for their books, and posed for cover photos for their promotional material. (Bronski) These claims are not controversial, but aside from the Regent University Law Review article, there are few remaining primary source documents accessible online. Even NAMBLA’s own website has been scrubbed of its extensive gratitude to Hay for his decades of work. I will include a list of links in Appendix A for the remaining sources I was able to find.
It is extremely difficult to find any extant primary sources discussing Hay’s lifelong crusade for the legalization of pedophilia. This is precisely because the people in the Queer/AWCGM lack the epistemic and moral framework to address an issue like this, and often try to cover it up or silence discussion of what can understandably seem like a bad faith attack on a great hero of the movement. It’s true that these facts about Hay are often used by reactionaries to attack the entire Queer/AWCMG movement, but in general, the critique seems more true of the AWCMG slice of the spectrum, than the rest, the Queers. This is precisely for the reasons I have outlined above. First, because the AWCMG community explicitly rejects religious arguments for right and wrong, and rightly so. Second because religious arguments are essentially the only moral arguments given in American culture. Third, because the community explicitly rejects legalistic perspectives on moral truth, since legalistic perspectives have historically rejected the community. Fourth, because the luminaries in the community historically have explicitly and emphatically endorsed pedophilia.
The Sapir-Whorf hypothesis from sociology argues that people are only able to approach and understand the world within the context of the ideas and words and concepts and language they have with which to do so. So if you reject most or all religious morality and reject most or all laws as a valid source of truth and justice, then how do you argue that anything is bad? If we look around at the response and the reckoning that hasn’t happened on this issue, we might be tempted to say, “you cant.” But I think there is a way. We can look to Del Martin and the argument she made in that famous open letter half a century ago. And we can draw a line from there straight to today’s feminist ethicists to see exactly how to make a strong moral argument on this topic that holds up even within the context of the Queer/AWCMG worldview.
In her book “Down Girl: the logic of Misogyny,” author Kate Manne makes the argument that misogyny, like all forms of structural injustice, is wrong because of a fundamental moral truth. It is wrong to rob people of agency by objectifying them. To deprive someone of agency is to destroy them as a person and recreate them as an object to be used. Fundamental to Critical Theory and Conflict Theory is the idea that systems of oppression are made up of aggregated microaggressions. Manne argues that there are different kinds of microaggressions which do slightly different things within that larger set of aggregated microaggressions. One specific type of microaggression which she calls a “down-move” is an act or statement intended simply to claim that the other person is lesser, is an object, does not deserve agency. She argues that this type of microaggression is the enforcement mechanism for the social norms and acts of theft of power and agency. So by her argument a down-girl move is a misogynistic act, a down-black move is racist act, etc.
Did you know that it’s perfectly legal for police to rape their prisoners in the United States as long as the officer claims it was consensual at the time? (USA Today) What’s the core moral problem here? I would argue it’s the same thing Manne and Martin are arguing, that they are robbing their prisoners of agency and using them as objects instead of treating them as people. This is always the core moral issue with sexual assault, and Manne does use many examples of sexual assault to illustrate her larger argument, but she argues that it extends basically to everything. A core problem of structural injustice whether it’s rape or wage slavery is that it robs individuals of agency and destroys them as people in order to recreate them as objects to be used by people in power for the benefit of people in power at the cost of people without power.
Consider the relationship between Monica Lewinsky and Bill Clinton. Was it consensual? Is it possible to consent across an incredible gap in power and agency? In Lewinsky’s own words, “I now see how problematic it was that the two of us even got to a place where there was a question of consent. Instead, the road that led there was littered with inappropriate abuse of authority, station, and privilege. (Full stop.)” (Vazquez)
What defines consent? Legally, the age of consent has changed radically and is not the same everywhere. This makes the legal definition seem capricious and arbitrary. For most of American history, the age of consent was 10-12 years old. Today it’s mostly 18 (except with parental permission), though in Europe it’s mostly 16. In some places around the world, it’s still much younger than that. (Fradella 44)
Consider two examples within the context of the arbitrary and capricious legal definition of consent based on age. Imagine an otherwise consensual relationship between two unmarried people who are a day apart in age, where one happens to be over eighteen; this is statutory rape regardless of their willingness and enthusiasm to be together. Now consider another example. A 12-year-old — with parental permission — marries 87-year-old pedophilia-activist Harry Hay. This is perfectly legal and morally just, according to the American legal system, as well as in many other places around the world. (Reiss) I hope these examples illustrate the fundamental problem with using our deeply problematic legal system as an authority for moral truth.
Instead consider whether a 12-year-old can really exercise agency and give consent to an 87-year-old. And then consider whether a 17-year-old can exercise agency and give consent to an 18-year -old. In the first case, it seems clear to me that a child of twelve can likely not exercise the agency to give consent to an elderly pedophile. In the second case it seems clear that someone who is a day away from being a legal adult is not lacking any critical faculty that they will develop in the next 24 hours which precludes them from exercising the agency to give consent.
The arbitrary lines we draw at certain ages don’t make any sense and they change radically from place to place and over time. A better approach is to take the advice of Kate Manne and Del Martin and treat people as subjects rather than objects; to restrain ourselves and others from robbing them of agency over their own lives and actions.
I recall listening to an argument being made by someone in a radical faerie space that there is a system of injustice through which young people structurally deny sex to old people; that for young people to not give sex to old people is actually a microaggression. In that moment I knew I needed to someday write this essay. But it took a long time for me to put the pieces together. As Amber Chiacchieri argues in her essay “Sexual Violation, Feminism, and Foucault: Against a Confessional Politics of Truth,” neoclassicalism has appropriated many of the discourses of post-structuralism to extend systems of injustice rather than subverting them. She argues for a back-to-roots examination of contemporary post-structuralist discourses through the lens of Critical Theory. The claims of post-structuralism can be difficult to judge or grapple with as valid or invalid. The argument that young people are structurally denying sex to old people is not a logically self-contradictory claim, so how to refute it? Well according to Chiacchieri, examine it through Critical Theory. A system of oppression exists to facilitate the flow of power and resources from people without privilege to people with privilege. How does that apply to the example of this pro-pedophilia argument? Clearly old people have more power in society than young people. Clearly old people in society have more agency than young people. Clearly old people in society have more resources than young people. QED, the argument is not valid, and it is a good example of Chiacchieri’s claim that neoclassicalism tries to appropriate the discourses of post-structuralist liberation to extend injustice rather than subverting and dismantling injustice. I agree with her argument that Critical Theory is a perfect lens to examine these kinds of claims through, and Critical Theory is the very foundation of Manne’s argument that robbing people of agency and objectifying them is the fundamental method at the heart of systems of injustice. This argument for pedophilia therefore turns inside out through the Critical Gender Theory lens, and reveals why pedophilia is morally wrong, because it defines young people as objects to be used by old people, and defines old people as entitled to access to sex from young people, without any regard for the agency of the young, and for what they actually want.
I recently attended a Q&A discussion panel at SFSU where the members of the panel were all non-white QTBIPOC. The topic of the discussion was objectification. Every single member of the panel talked about how normal it was for white people, and in particular AWCMG people to objectify them in very specific ways. Everyone on the panel had examples of being compared to food or other objects by AWCMGs. This argument is bigger than pedophilia; it’s the very core of social justice. Robbing people of agency and objectifying them is why racism is wrong, and why misogyny is wrong, and why capitalism is wrong, and why every other system of injustice is wrong.
No one can consent to a boss who controls their livelihood. No one can consent to a cop who is legally entitled to rape and even kill them. No one can consent under the threat of violence or the fear of starvation or deprivation. Whenever there is a significant gap in power and resources between individuals, there can not be consent. This is the core moral truth that explains exactly why pedophilia is wrong and explains how to argue about it with people who rightly reject religion and the law as valid sources of moral truth.
Bronski, M. (n.d.). News and Features: The real Harry Hay. News and Features | The real Harry Hay. https://web.archive.org/web/20090530123601/http://www.bostonphoenix.com/boston/news_features/other_stories/documents/02511115.htm.
Chiacchieri, Amber M., “Sexual Violation, Feminism, and Foucault: Against a Confessional Politics of Truth” (2019). CUNY Academic Works. https://academicworks.cuny.edu/gc_etds/3206
Fisher, S. (n.d.). valence issue. Oxford Reference. https://www.oxfordreference.com/view/10.1093/oi/authority.20110803115048341.
Fradella, H. F., & Sumner, J. M. (2016). Sex, sexuality, law, and (in)justice. Routledge.
Guardian News and Media. (2019, June 23). ‘I have to go off’: activist Sylvia Rivera on choosing to riot at Stonewall. The Guardian. https://www.theguardian.com/us-news/2019/jun/23/i-have-to-go-off-activist-sylvia-rivera-on-choosing-to-riot-at-stonewall.
USA Today. Link, D. (2020, July 9). Fact check: Sex between police officers and their detainees isn’t illegal in many states. (I cited it this way because readers thought this author’s name “Link” was a note to myself to find a source for this claim.) https://www.usatoday.com/story/news/factcheck/2020/07/09/fact-check-police-detainee-sex-not-illegal-many-states/5383769002/.
Manne, K. (2019). Down girl: the logic of misogyny. Penguin Books.
The New York Times. (2019, May 31). The Stonewall You Know Is a Myth. And That’s O.K. | NYT Celebrating Pride. YouTube. https://www.youtube.com/watch?v=S7jnzOMxb14.
ReduxPictures. (2012, October 15). Pay It No Mind – The Life and Times of Marsha P. Johnson. YouTube. https://www.youtube.com/watch?v=rjN9W2KstqE.
Reiss, F. (2019, March 1). Perspective | Why can 12-year-olds still get married in the United States? The Washington Post. https://www.washingtonpost.com/posteverything/wp/2017/02/10/why-does-the-united-states-still-let-12-year-old-girls-get-married/.
Regent University Law Review. Child Molestation and the Homosexual Movement. Published 2001. Accessed 2021-06-08.
Steve Cohen, opinion contributor. (2021, May 9). Shining a light on COINTELPRO’s dangerous legacy. The Hill. https://thehill.com/blogs/congress-blog/civil-rights/552552-shining-a-light-on-cointelpros-wrong-headed-and-dangerous.
Vazquez, M. (2018, February 26). Lewinsky sees ‘problematic’ issue of consent in Clinton affair | CNN Politics. CNN. https://www.cnn.com/2018/02/26/politics/monica-lewinsky-me-too/index.html.
Harry Hay’s blurb and cover photos for the NAMBLA book “A Witchhunt Foiled;”
KeyWiki article with many live and some now-dead links to sources covering many examples of Hay’s pedophilia activism;