T H E_.H O T_.S P O T Dr. Laura, how could you? By Patrizia DiLucchio Copyright war rages over Schlessinger's nude photos (11/03/98) ___________________ Satisfy all your intellectual urges at barnesandnoble.com! ___________________   R E C E N T L Y The shipping nudes By David Steinberg Why have certain postal services decided to become arbiters of obscenity? (12/10/98) Sade off By Molly Weatherfield The man who became history's most notorious pervert was no picnic to live with, either (11/19/98) Two hard men are good to find By Rona Marech Women's smutty little reading secret is sending black homoerotic literature to the top of the charts (11/05/98) The bridegroom stripped bare By Daniel Reitz A gay man discovers that the goings-on at a straight male stag party are kinkier than he could have imagined (10/22/98) - - - - - - - - - - Browse the Urge archives   Find a book and order it online from barnes&noble.com Search by:  Keyword Title Author		TWO CONCEPTS OF SEXUAL HYSTERIA | PAGE 1, 2 - - - - - - - - - - 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 names. 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 marriage. 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. SALON | Dec. 24, 1998 Linda Hirshman and Jane Larson are, respectively, professors at Brandeis University and the University of Wisconsin. They are the authors of "Hard Bargains: The Politics of Sex" (Oxford, 1998).