Sex, Sexuality, Law, and (In)justice

Henry Fradella, Jennifer Sumner, Henry F. Fradella, Jennifer M. Sumner

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317528906
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Sex, Sexuality, Law, and (In)Justice covers a wide range of legal issues associated with sexuality, gender, reproduction, and identity. These are critical and sensitive issues that law enforcement and other criminal justice professionals need to understand. The book synthesizes the literature across a wide breadth of perspectives, exposing students to law, psychology, criminal justice, sociology, philosophy, history, and, where relevant, biology, to critically examine the social control of sex, gender, and sexuality across history. Specific federal and state case law and statutes are integrated throughout the book, but the text moves beyond the intersection between law and sexuality to focus just as much on social science as it does on law. This book will be useful in teaching courses in a range of disciplines—especially criminology and criminal justice, history, political science, sociology, women and gender studies, and law.

Chapter 1
An Overview of Sex, Gender, and Sexuality

Patrick Englert and Elizabeth G. Dinkins

In late May of 2011, Anthony Wiener, a U.S. Congressional Representative from New York, tweeted a photo of himself from the waist down in underwear to a 21-year-old college student. The photo showed his erect penis inside his underwear. He alleged that his Facebook (Wiener mistakenly referenced Facebook instead of Twitter) account was hacked and that he did not send the photo. Over the next several days, Wiener denied sending photos to women, despite another woman stepping forward with allegations that Wiener sent her several photos as well as having engaged in conversations of a sexual nature. In an interview with MSNBC (2011), he stated, “I’m not sure I want to put national, federal resources into trying to figure out who posted a picture … I’m not really sure it rises, no pun intended, to that level.” On June 6, Wiener held a press conference where he admitted that he had engaged in relationships with six women over the course of three years, via Facebook, Twitter, and phone conversations. Wiener apologized for his actions and was adamant that the relationships were all via social media and were not physical in nature.

Democratic leaders such as Nancy Pelosi called for Wiener to resign as the turmoil was distracting from what many deemed as more pertinent topics. A photo of Wiener’s penis appeared online on June 8, further fueling existing contention as to whether or not he should remain in office. President Obama was interviewed by Ann Curry on the June 11, 2011 edition of the Today Show, during which he shared this sentiment:

Well, obviously what he did was highly inappropriate. I think he’s embarrassed himself, he’s acknowledged that, he’s embarrassed his wife and his family. Ultimately there’s going to be a decision for him and his constituents. I can tell you that if it was me, I would resign. Because public service is exactly that, it’s a service to the public.

On June 16, 2011, Wiener stepped down from his position in Congress amidst his newly pregnant wife returning from a trip to Africa, as well as a former adult film star holding a press conference to discuss further allegations of online sexual interactions, and democratic leaders discussing ways to encourage Wiener to resign.

Anthony Wiener became a household name for a month as Americans were fascinated by the sexual subject matter that took over televisions, internet, and social media. Indeed, Wiener’s actions highlight the role social media now plays with regard to social norms associated with sex and sexuality. Consider how this case frames the current state of sex, sexuality, and gender in the United States.

• What sexual behaviors or actions are accepted as norms within society?
• How have technology and social media impacted the ways in which we interact sexually? Can sex, sexuality, and gender be separated from portions of our everyday life?
• Would the impacts of a woman posting provocative photos be received differently?

Learning Objectives

1. Define the key terms sex, sexuality, and gender.
2. Compare and explore theoretical models of sex, sexuality, and gender.
3. Discuss the relationship between gender and societal structures.
4. Distinguish between transgender, cisgender, and genderqueer.
5. Discuss how sexuality is shaped.
6. Compare and contrast historical and contemporary perspectives toward sexuality.
7. Distinguish between lesbian, gay, bi sexual, asexual, and pansexual identities.
8. Explore sex through biological, psycho logical, and societal perspectives.

Defining Sex, Gender, and Sexuality

Was the situation that led to Anthony Wiener’s resignation from the U.S. House of Representatives about sex? The answer to that question depends, in part, on what the term means. Yet, for reasons that this chapter should make clear, it is difficult to craft a straightforward definition of the word sex because its range of meanings refers to a continuum of behaviors. And, as Figure 1.1 illustrates, gender and sexuality are similarly complicated concepts.

Sex

Sex refers to both biological characteristics, as well as certain acts through which we express desire or release sexual tension (Richardson, Smith, & Werndly, 2013).

Biological sex. When sex is used to refer to biology, we tend to think of humans as being male or female, depending on chromosomal expression (e.g., XY for males; XX for female); internal reproductive organs (e.g., the presence of ovaries, fallopian tubes, and a uterus in females; the presence of a prostate and testes in males); and external genitalia (e.g., a penis and scrotum for males; a vagina for females).

The male/female binary for sex is mis leading because humans can be intersexed—a term referring to “medical conditions in which the development of chromosomal, gonadal, or anatomic sex varies from normal and may be incongruent with each other” and, therefore, who do not fit the usual definitions of male or female (Allen, 2009, p. 25). For example, individuals whose 23rd pair of chromosomes (the sex chromosomes) are XXY occur in roughly one out of every 500 to 1,000 births (Colapinto, 2000; Wattendorf & Muenke, 2005). A small penis, small testes, low androgen secretion, and possible female breast development are characteristics of this chromosomal karyotype that is known as Klinefelter Syndrome (Wattendorf & Muenke, 2005). People with this condition typically live as men.

Figure 1.1 The continua of sex, gender, and sexuality expression

Intersexed individuals were once referred to as hermaphrodites based on the Greek god Hermaphroditus who was both male and female (Gurney, 2007). Today, there are at least 17 different intersex conditions, but most intersex individuals are classified as being either true hermaphrodites or pseudohermaphrodites. True hermaphrodites are rare; they possess both ovarian and testicular tissue, whereas pseudo-hermaphrodites occur more commonly—1 in 2,000 births (Colapinto, 2000)—and these individuals possess ambiguous internal and external reproductive organs, but do possess the genitals of their dominant sex (Gurney, 2007). Research has suggested that while being intersexed is a result of biological outcomes, possessing ambiguous sexual anatomy is not a medical issue in most cases and medical interventions are not required (Preves, 2013). Social stigmas and familial pressure to categorize children into gender binaries typically drive normalizing surgeries that are conducted to remove or “correct” the body. Duality is feared and, therefore, parents feel a pressure to ensure that their child’s gender and sex are as visually defined as possible (Preves, 2013).

Sex as a behavior. As previously mentioned, the word sex is not limited to biology; it also refers to behaviors. But this use of the word can be ambiguous (Sanders & Reinisch, 1999). Which acts qualify as “sex”? “For centuries, societies around the world adopted the view that sex means just one thing: penis-in-vagina intercourse within the context of marriage for the purpose of procreation” (Lehmiller, 2014, p. 2). Today, however, it is clear that sex—even when narrowly confined to the definition of penis-in-vagina intercourse—is no longer limited to the purpose of procreation within marriage. Regardless of the participants’ marital status, penis-in-vagina intercourse offers pleasure, connection to others, expressions of love, exploration, and, for some, even the potential to earn money. Moreover, what is now classified as sex is not limited to penis-in-vagina intercourse. Indeed, the terms oral sex and anal sex specifically refer to sexual acts other than a vaginal penetration by a penis. And ponder whether penetration is even necessary for sex; if two people engage in mutual masturbation, is that sex?

Gender

People often use the words sex and gender interchangeably even though the terms have distinctive meanings. Unlike sex, which—at least in the biological context, tends to refer to a reductionist male/female binary, gender is a socially constructed category that reflects a set of behaviors, markers, and expectations associated with a person’s biological sex and social norms concerning masculinity and femininity. A person’s gender is usually represented in three ways (Parent, DeBlaere, & Moradi, 2013). The first is associated with physical appearance vis-à-vis secondary sex characteristics, such as the presence or absence of an Adam’s apple, facial hair, the pitch of one’s voice, and the like. The second concerns gender identity—how someone identifies in selecting a gender. And the third concerns gender expression—how people present themselves to others in their appearance, behaviors, actions, and interactions.

The first representation of gender is, in large part, a function of biology. For instance, one is either born with or without an Adam’s apple. But other secondary sex characteristics are more malleable. Hormone therapy, for example, can alter the appearance of facial or body hair. The other two aspects of gender, however, are much more a function of the psychological and the social, both of which, to varying degrees, are partially dependent on social norms known as gender roles.

Gender roles are the behavioral, economic, and social roles that every society deems appropriate for members depending on their sex (Butler, 1999). Gender roles reflect societal norms concerning masculinity and femininity.

Social norms are societal rules. The norms that tell us what we ought to do—become educated; respect our elders; obey the law— are called prescriptive norms. The norms that tell us what we ought not to do—commit crimes, lie, drop out of high school—are called proscriptive norms (Anderson & Dunning, 2014).

Norms are based upon widely shared values regarding that which is “good” or “correct,” and, conversely, that which is “bad” or “incorrect.” Norms may be formal or informal. Formal norms, also known as mores, tend to have moral underpinnings. The values expressed in the Ten Commandments (e.g., not killing, stealing, committing adultery, etc.) or other religious doctrines, are examples of mores. In contrast, informal norms, also known as folkways, do not have as strong a moral foundation, but are social expectations nonetheless. Folkways include rules governing etiquette and acceptable standards of behavior, like how to dress for a particular occasion.

Norms vary across both situation and time. For example, language that may routinely be used while hanging out with your friends after school may be inappropriate to use at home with your family. Similarly, behaviors that may be considered perfectly acceptable by today’s standards, such as teenage males wearing earrings, would have been taboo, or unacceptable, to many of our grandparents or great-grandparents.

Norms also vary across cultures. For example, belching at the dinner table is considered rude in many Western cultures, but is considered to be a compliment to the host or cook in some African and Asian countries.

(Owen et al., 2015, pp. 101–102)

Children learn gender roles as they grow up by watching and interacting with the world around them (Adler, Kless, & Adler, 1992). Traditional gender roles reflect congruence between biological sex and gendered behaviors that separate characteristics of men and women as aligned with their male or female biology. These traditional gender roles are the norms that families pass along to children. This can even occur before birth; consider, for example, that upon learning “It’s a girl,” parents may paint a room pink and adorn it with toys (e.g., certain types of dolls) and images (e.g., princesses) associated with femininity in little girls. These gender roles are reinforced by family, friends, school, media, and society-at-large. But those gender roles may not align with how one comes to perceive one’s own gender because, unlike sex, gender is a psychological and sociological concept, not a biological one. A person’s biological sex may lead to an assumption of gender, but that same person’s gender identity may not reflect the biological sex assigned at birth. As one researcher stated, “Gender is between your ears and not between your legs” (Lehmiller, 2014, p. 116).

Gender identity is how one perceives oneself based on one’s experiences and sense of self (Lehmiller, 2014). One’s gender identity may or may not align with one’s gender expression—how an individual expresses gender through dress, behavior, mannerisms, and actions. As with biological sex, gender identity and expression do not fit into binary classification systems.

Gender and sex commonly align such that a person who is assigned female at birth perceives her own gender identity as being a woman and, conversely a person who is assigned male at birth perceives his own gender identity as being a man. Cisgender describes people who identify as and express the same gender they were assigned at birth based upon their perceived biological sex (Stryker, 2008).

Transgender, on the other hand, is a broad term used to refer to anyone who does not identify with or express gender norms that fit into traditional gender roles (Lehmiller, 2014; Stryker 2008). Transgender incorporates a range of identities, all of which do not conform to traditional gender expectations and presentations. Trans* has been used to represent the numerous identities that fit under the umbrella of being transgender. Trans* as a term does not stand alone, but may be used to describe a transgender person or identity. Trans sexuals, cross-dressers, and genderqueer all fall under that category of transgend...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Notes on Contributors
• Preface
• Acknowledgements
• 1 An Overview of Sex, Gender, and Sexuality
• 2 Historical Perspectives
• 3 Sex and the Fourteenth Amendment Part I: Due Process of Law
• 4 Sex and the Fourteenth Amendment Part II: Equal Protection of the Law
• 5 Rape and Related Offenses
• 6 The Criminal Regulation of Sex Acts: The Limits of Morality and Consent
• 7 The Regulation of Sex Work and Sex Workers
• 8 Obscenity and Pornography
• 9 Marriage, Sexuality, and Gender
• 10 Rare Acts, Sympathetic Victims, and the Emergence of Laws to Regulate Sex Offenders
• 11 Sex in Jails and Prisons
• 12 Sex Offenders and their Treatment
• 13 Sex, Gender, Sexuality, and Victimology
• Index