Academic journal article William and Mary Law Review

Punishing Sexual Fantasy

Academic journal article William and Mary Law Review

Punishing Sexual Fantasy

Article excerpt

Abstract

The Internet has created unprecedented opportunities for adults and teenagers to explore their sexual identities, but it has also created new ways for the law to monitor and punish a diverse range of taboo sexual communication. A young mother loses custody of her two children due to sexually explicit Facebook conversations. A teenager is prosecuted for child pornography crimes after sending a naked selfie to her teenage boyfriend. An NYPD officer is convicted for conspiracy to kidnap several women based on conversations he had on a "dark fetish" fantasy website. In each of these cases, online sexual exploration and fantasy easily convert into damning evidence admissible in court.

This Article reveals a widespread and overlooked pattern of harshly punishing individuals for exploring their sexual fantasies on the Internet. It shows, for the first time, that judges and juries have repeatedly conflated sexual fantasy with harmful criminal conduct, have largely been dismissive of fantasy-based defenses, and have relaxed evidentiary standards to prejudice individuals whose desires provoke disapproval or disgust. Even as celebrated decisions by the United States Supreme Court provide broader constitutional protection to sexual minorities, this Article shows that actual venues for exploring sexuality remain on the social and legal margins. Drawing from recent criminal law, family law, and First Amendment cases, this Article shows that courts have struggled to adapt free speech, privacy, and due process principles to the uncomfortable realities of the digital environment.

Table of Contents

Introduction
  I. Sexual Identity: Situated, Evolving, and
     Performative
 II. Cyberlaw and Sexual Fantasy
     A. Family Law
     B. Sexting and Child Pornography
     C. Criminal Law, Internet Stings, and Social Media
        Surveillance
III. Troubles with Punishing Sexual Fantasy
     A. Free Speech and First Amendment Protections for
        Fantasy
     B. Social Science and Sexual Fantasy
     C. Distorting the Data..
Concluding Thoughts and the Path Forward

Introduction

The contemporary legal treatment of sexuality contains an overlooked paradox. By most accounts, over the past two decades the law has embraced a broader range of sexual identities and practices. In Obergefell v. Hodges, Justice Kennedy proclaimed that the Constitution protects the liberties of all persons "to define and express their identity." (1) At the same time, however, the law remains deeply uncomfortable with, and often outright hostile to, situations in which people actually explore and express their sexual identities and desires. A divorcing mother loses custody of her children for having sexual conversations with an ex-boyfriend. (2) A teenage lesbian couple is prosecuted for child pornography crimes after sharing nude photos. (3) A police officer is convicted for a kidnapping conspiracy based entirely on conversations via a "dark fetish" role-playing website. (4)

Sexual identity may indeed be protected in a fully blossomed, clearly articulated form--at the point where two people are ready to get married or otherwise pursue a "personal bond that is more enduring." (5) Nonetheless, the actual process of coming to terms with one's sexual identity often entails extensive fantasizing, experimentation, education, and social interaction. (6) And these processes are often far less romantic, much less "dignified," and far less "PG" than envisioned by the evolving legal narratives of sexuality. (7) When confronted with day-to-day explorations of sexual fantasy--for example, sexually explicit stories and conversations, adult social media profiles, and pornographic images--judges, prosecutors, law enforcement, and policymakers frequently devalue or punish what are, for better or worse, formative components of sexual identity. (8)

This tension between protected sexual identity and marginalized sexual fantasy has become particularly acute in the digital context. …

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