Spindelman, Marc, Columbia Journal of Gender and Law
To die for the love of boys: What could be more beautiful?
--Michel Foucault (1)
Il m'aime signifie en clair: il accepte queje le capture, l'apprivoise, et le viole, et le tue, et l'enterre.
--Tony Duvert (2)
The contemporary history of gay sexuality--the full history--has not been written. Within it, increasingly attested to in various ways, appears an ideology of sexual freedom that has played a significant role in shaping, conditioning, controlling, and defining the sweep of gay sexuality, identity, and social life. This Article describes the ideology of sexual freedom, including its valorization of sexual violence, abuse, and injury, up to and including death, traces the ideology's implications for HIV/AIDS, and documents its actual operation in theorizing about sexuality by and among gay men in the "high" years of the epidemic. (3) After that, it examines some ways in which the ideology of sexual freedom has shaped some more recent debates about same-sex sex and its proper relation to law, proposing that in a number of ways this ideology has been sexuality's "tougher and truer law," (4) more important than the formal legal rules promulgated and enforced by the political State. In consequence, it is suggested, efforts to understand and address same-sex sexual violence and its consequences both for individuals and society, more generally, need to grapple with the ideology of sexual freedom directly--and not ignore it--if there is to be any realistic hope for the liberal State to satisfy its obligations to protect private individuals against interpersonal harms.
Before coming to that, some preliminary facts that frame a puzzle. Since the earliest known days of the HIV/AIDS epidemic in the United States, more than 555,000 men diagnosed with AIDS--many of them gay--were infected with HIV through sex with other men. (5) Also since the earliest known days of the HIV/AIDS epidemic, legal rules, both criminal and civil, have been able to capture many forms of the sex-based transmission of HIV as an individual harm. (6) Nevertheless, the number of cases seeking legal redress for HIV-transmission by gay men against one another has remained very small, both in absolute and relative numbers. (7) Why? Why have gay men not regularly laid claim to what was done to them as an injury that the law's remedial harm provisions should recognize and address?
From the top, some conventional explanations that might appear to solve the puzzle, in whole or in part. Comparisons to cross-sex transmissions aside, given the special meanings and experiences of HIV/AIDS to gay men, (8) in the early days of the epidemic, few gay men could say (and fewer say with certainty) what exact sexual event (or events) had, some time (often years) before, caused them to become infected with HIV. Transmission of the virus was commonly and practically thought to be a doer-less deed. Even in those instances in which a doer could be identified, he was regularly not seen as responsible for what he did. Nobody back then knew what he was doing, gay sex being generally seen, by gay men at least, as essentially consequence-free. (9) If anyone were to be legally liable for inflicting this injury, then practically anyone who was sexually active and versatile could be. It is, then, as Robin Hardy reports:
I have chosen to think that Rollo is my murderer, but I attach no blame to him. I only love his memory more. Everyone was ignorant then. It was no fault of his. It could have just as easily been me, because I'm certain that in those years of ignorance, through no intention of my own, I was a bringer of disease to other men. (10)
No doubt, countless other gay men, speaking for themselves, would agree. Or would have, had they lived.
In the early years of the HIV/AIDS epidemic, ignorance of HIV and its ordinary modes of transmission could thus supply a norm of blamelessness that defined gay life across the sexual and social board, accounting for why gay men did not tap into the legal system to name what was done to them as an injury inflicted on them by other gay men. …