Sexual Morality and the Law

Sexual Morality and the Law is the transcription of a 1978 radio conversation in Paris between philosopher Michel Foucault, playwright/actor/lawyer Jean Danet, and novelist/gay activist Guy Hocquenghem, debating the idea of abolishing age of consent laws in France.

In 1977, the issue was brought to public attention in France by a petition against age of consent laws addressed to the Parliament, defending the decriminalization of all consented sexual relations between adults and minors below the age of fifteen (the age of consent in France).^[1] Foucault stated that the petition was signed by several philosophers including himself, Jacques Derrida, Louis Althusser, pediatrician and psychoanalyst Françoise Dolto, and also by people he described as belonging to a wide range of political positions.^[1]

The dialogue was broadcast on April 4, 1978 by radio France Culture.^[2] It was originally published in French as La loi de la pudeur [literally, "The law of decency"] and reprinted in English as The Danger of Child Sexuality.^[2] The text was later included under the title Sexual Morality and the Law in Foucault’s book Politics, Philosophy, Culture – Interviews and other writings, 1977–1984.^[3]

Introduction

Foucault and Hocquenghem focus, in the first place, on the penalization of the "sexual offences", at the time of the 19th century, and on the invention by the then incipient psychiatry of the category of the "perverts".

Foucault points out that the French Penal Code of 1810 comprises 485 articles defining crimes, offenses, and misdemeanors as well as the resulting punishments. It was promulgated on February 12, 1810, and did not regulate the sexual behaviors, "as if sexuality was not the business of the law". He explains that legislation on sexuality during the 19th century and specially in the 20th century, at the time of Pétain and of the "Mirguet amendment" (1960). The Mirguet amendment of July 18, 1960, increased the penalties for "public insult against decency" between same sex couples. It has changed article 38 of the 1958 French constitution.

Foucault, Hocquenghem and Danet denounce the increasing psychiatrization of society and the introduction of a social control over sexuality. Foucault had already outlined this analysis of what he calls the "device of sexuality" in his work The Will to Knowledge (1976). "All the legislation on sexuality", affirms Foucault, "introduced since the 19th century in France, is a set of laws on decency", which appears impossible to define, becoming thus a flexible tool politically used in several local tactics. Foucault stressed that:

"What is emerging is a new penal system, a new legislative system whose function is not so much to punish offenses against these general laws concerning decency, as to protect populations and parts of populations regarded as particularly vulnerable" (for example children). "Therefore, there would be on one side the fragile population, and on the other side the "dangerous population" " (the adult in general).

Danet affirms that "what takes place with the intervention of psychiatrists in court is a manipulation of the children's consent, a manipulation of their words".

Using among other things the example of the movement of protest, in Germany, at the end of the 19th century, against article 175 of the German Penal Code which criminalized any homosexual act, Danet considers that the psychiatrists "expected only one thing from the abolition of this law, namely, to be able to take over the 'perverts'" [as homosexuals were regarded at that time] "for themselves and to treat them with all the knowledge that they claimed to have acquired since around 1860" (Danet cites then Morel and his Treaty of degenerescence, published in 1857).

Main ideas of the text

The fabrication of a crime

Foucault observes that whereas the law formerly condemned the infringement, the act of breaking the law, we enter from now on in a disciplinary society which condemns the criminal himself – called "delinquent" or "pervert" – and instead of punishing the act, we criminalize a person or a category of the population.

Hocquenghem sustains that "a whole mixture of notions" is responsible for the fabrication of the idea of the crime against decency, ranging from religious prohibitions concerning sodomy to the separation between the world of the child and the world of the adult.

He observes that this was possible due to the creation of a category of people regarded as "perverts", "legal monsters" whose aim in life would be to practice sex with children. They would then really become intolerable perverts since the crime as such is recognized, and reinforced by a psychological and sociological arsenal.

Hahn – who coordinated the debate – remembers then that this idea leads us to the concept of the "born criminal", present in the work of Italian controversial criminologist Cesare Lombroso: "Indeed this idea that legislation, the legal system, the penal system, even medicine must concern themselves essentially with dangers, with dangerous individuals rather than acts, dates more or less from Lombroso and so it is not at all surprising if one finds Lombroso's ideas coming back into fashion", he said.

Hocquenghem considered the construction of this new type of criminal – an individual perverse enough "to do a thing that hitherto had always been done without anybody thinking it right to stick his nose into it" – as "an extremely grave step from a political point of view":

"In the case of "attentat sans violence" [attack without violence], the offence in which the police have been unable to find anything, nothing at all, in that case, the criminal is simply a criminal because he is a criminal, because he has those tastes. It is what used to be called a crime of opinion. (...) The crime vanishes, nobody is concerned any longer to know whether in fact a crime was committed or not, whether someone has been hurt or not. No one is even concerned any more whether there actually was a victim."

Hocquenghem concludes that the crime feeds upon itself in a man-hunt, by the identification and isolation of the category of individuals regarded as pedophiles, and the call for a lynching sent out by the "gutter press".

Jean Danet adds that this crime without violence can be used by the state for political reasons, against "inconvenient" individuals: "Incitement of a minor to commit an immoral act, for example, can be used against social workers and teachers. (...) In 1976 in Nantes, a teacher was tried for inciting minors to immoral acts, when in fact what he had done was to supply contraceptives to the boys and girls in his charge".

Danet predicted that a new form of social control would replace the legal one, had their proposal to reform the law been approved. "If it has been possible to believe for a time that there was to be a withdrawal of legislation, it was not because we thought that we were living in a liberal period but because we knew that more subtle forms of sexual supervision would be set up – and perhaps the apparent freedom that camouflaged these more subtle, more diffuse social controls was going to extend beyond the field of the juridical and the penal".

A society of dangers

Foucault sees the emergence of a new penal system, with the focus changing from criminal acts to the definition of dangerous individuals. He predicted that a society of dangers would come:

"We're going to have a society of dangers, with, on the one side, those who are in danger, and on the other, those who are dangerous. (...) Sexuality will become a threat in all social relations, in all relations between members of different age groups, in all relations between individuals. And sexuality will no longer be a kind of behavior hedged in by precise prohibitions, but a kind of roaming danger, a sort of omnipresent phantom, a phantom that will be played out between men and women, children and adults, and possibly between adults themselves. It is on this shadow, this phantom, this fear that the authorities would try to get a grip through an apparently generous and, at least general, legislation and through a series of particular interventions that would probably be made by the legal institutions, with the support of the medical institutions."

He identified the fear of others’ sexuality as the reason for this change:

"The legislator will not justify the measures that he is proposing by saying: the universal decency of mankind must be defended. What he will say is: there are people for whom others' sexuality may become a permanent danger".

Foucault foresaw a new regime for the supervision of sexuality, with the intervention of legal institutions and the support of medical institutions. He completed: "I would say that the danger lay there". In his book Discipline and Punish (1975), he had already detailed his ideas against an increasing social control over the behavior of the individual.

The establishment of a new medical power

Foucault stressed that with this focus change to the individual, legislation appeals now to medical knowledge, giving the chance to psychiatrists to intervene twice: first to say that, indeed, children do have a sexuality, and second to establish that child sexuality is a territory with its own geography, that the adult must not enter.

Jean Danet added that some psychiatrists consider that sexual relations between children and adults "are always traumatizing", that the child "is marked forever", will become emotionally disturbed and if a child doesn't remember them, it's because they remain in his or her subconscious.

He ponders that the intervention of psychiatrists in court is a manipulation of the children’s consent, of their words. Foucault remarks with irony the position of specialists:

"It could be that the child, with his own sexuality, may have desired that adult, he may even have consented, he may even have made the first moves. We may even agree that it was he who seduced the adult. But we specialists with our psychological knowledge know perfectly well that even the seducing child runs a risk, of being damaged and traumatized. (...) Consequently, the child must be 'protected from his own desires', even when his desires turn him towards an adult".

He concludes that it is within this new legislative framework – "basically intended to protect certain vulnerable sections of the population with the establishment of a new medical power" – that a conception of sexuality and of the relations between child and adult sexuality will be based, and considers it as "extremely questionable".

Guilt by association

Hocquenghem observed that this 1977 French petition has been signed by a lot of people “who are suspect neither of being particularly pedophiles themselves nor even of entertaining extravagant political views”.

Danet pointed out that lawyers who choose to defend someone found guilty of an indecent act with a minor end up facing serious public backlash and are suspect of being favorable to such acts. Their experience is akin to that of lawyers defending terrorists (as happened in the Croissant affair),. Many, he said, avoid doing so, and prefer being appointed by the court. He said that "anyone who defends a pedophile may be suspected of having some sympathy for that cause. Even judges think to themselves: if he defends them, it's because he isn't really as much against it himself".

He argued that “just because one is involved in a struggle against some authority, (...) this does not mean one is on the side of those who are subjected to it”. Two examples are given, dating back to the 19th and early 20th centuries: in France, an open letter signed by psychologists, sexologists and psychiatrists, asking for the decriminalization of immoral acts with minors between the ages of 15 and 18, and in Germany where a whole movement (made up of homosexuals and members of the medical community) protested against a law that criminalized homosexual acts.

Childhood and the notion of consent

While today the very possibility of consent before puberty is polemic – often raising emotional responses and leaving intellectuals in a defensive position, in 1977–1978 Foucault, Hocquenghem and Danet admitted openly and with naturalness the idea of a non-abusive pedophilia. The 1977 petition refers to all ages below the age of consent in France (fifteen), including the ages before puberty. The biological definition of pedophilia is recognized by the United Nations and accepted in the Francophone world.

Both Foucault and Hocquenghem agreed that consent is a contractual notion. 'This notion of consent is a trap, in any case. What is sure is that the legal form of an intersexual consent is nonsense. No one signs a contract before making love', said Hocquenghem.

"When we say that children are 'consenting' in these cases, all we intend to say is this: in any case, there was no violence, or organized manipulation in order to wrench out of them affective or erotic relations", he completed.

The journalist Pierre Hahn asks twice about how to determine an age for consent: "Public opinion, including enlightened opinion such as that of the doctors of the Institute of Sexology ( L'Institut de Sexologie), asked at what age there can be said to be definite consent. It's a big problem. (...) If you were a legislator, you would fix no limit and you would leave it to the judges to decide whether or not an indecent act was committed with or without consent? Is that your position?". Foucault answers that "it is difficult to lay down barriers", and that this wouldn’t make any sense. He added that he discussed the subject with a judge who told him that there are eighteen-year-old girls who are practically forced to have sex with their fathers or stepfathers: "They may be eighteen, but it's an intolerable system of constraint", he said.

As for the legal aspect, the lawyer Jean Danet observed that violence is legally presumed, even "in a case in which the charge used is that of indecent act without violence". This happens because the legislator believed that "it has to be said that this act without violence [defined as a crime] is the repressive, legal translation of consenting pleasure". Danet completed that "It's pretty clear how the system of proof is manipulated in opposite ways in the case of rape of women and in the case of indecent assault on a minor."

On the other side, Danet acknowledged that sometimes consent may not be present. "We are not, of course, saying that consent is always there".

He pointed out that they were very careful in the text of the petition, so as to separate rape from acts without violence:

"We took great care to speak exclusively of an indecent act not involving violence and incitement of a minor to commit an indecent act. We were extremely careful not to touch, in any way, on the problem of rape, which is totally different."

He observed then that the problem of (violent) rape arouses reactions at the level of public opinion, triggering off secondary effects of man-hunting, lynching and moral mobilization.

The credibility of children in court

As for the credibility of children in court, Foucault begins pointing out that officially children are supposed to have a sexuality that can never be directed towards an adult, and are also supposed to not be capable of talking about themselves in a sufficiently lucid way. Secondly, he argues that the speech of the child is reliable in order to establish what happened, once there is sympathy enough. He said:

"After all, listening to a child, hearing him speak, hearing him explain what his relations actually were with someone, adult or not, provided one listens with enough sympathy, must allow one to establish more or less what degree of violence, if any, was used or what degree of consent was given".

He vehemently opposed any doubt on the child's ability to speak about the facts: "To assume that a child is incapable of explaining what happened and was incapable of giving his consent are two abuses that are intolerable, quite unacceptable. (...) The child may be trusted to say whether or not he was subjected to violence".

Hocquenghem observed that the trial ceremony constrains the child: "The public affirmation of consent to such acts is extremely difficult, as we know. Everybody — judges, doctors, the defendant – knows that the child was consenting – but nobody says anything, because, apart from anything else, there's no way it can be introduced".

He stressed that it is impossible to express a complete relationship between an adult and a child, a relationship involving all kinds of affective contacts and going through all kinds of stages (which are not all exclusively sexual), solely in terms of consent, and that to express it in terms of legal consent is an absurdity:

"In any case, if one listens to what a child says and if he says 'I didn't mind', that doesn't have the legal value of 'I consent'."

See also

• Morality

Footnotes