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Sexuality's law.

For J.T.

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)

I. Introduction

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. Holding through time, this norm of blamelessness, in turn, could have primed later waves of newly HIV-infected gay men not to see those who infected them as having done them a wrong. If so, HIV-infection rates could skyrocket, while gay men did not legally complain.

Or take another explanation. In the early days of the epidemic, gay men were living as social pariahs of high rank, a status that the appearance of HIV/AIDS, with its formative identification as a gay disease, only intensified. The Supreme Court's decision in Bowers v. Hardwick, (11) handed down at the height of the epidemic, may not have mentioned HIV/ AIDS expressly, but driving its conclusion that sodomy remained subject to criminal prohibition may well have been a realpolitik sense of the headwinds the Court would have faced if it had constitutionalized a right to engage in sexual intimacies that included gay men's anal sex, pervasively associated with disease, contagion, and death. (12) How could the Constitution sanction that? At the same time, the legal system, so conspicuously drenched in homophobia, shown by its callous indifference to gay men's intense, urgent, and often needless suffering from HIV/AIDS, (13) gay men were practically forced to engage in a massive project of community self-help, which ultimately developed, among other things, a project of safer sex. On this account, gay men did not enlist the State's remedial energies by claiming HIV-transmission as a legal injury because the State was the enemy, or at least a force that had to be treated as hostile. Collaborating with it against other gay men might only have served to tighten its already noose-tight grip over gay bodies and gay lives, among other consequences exposing the collaborators as gay, hence to arrest and other forms of ruin. (14) Even worse, it might have undermined and risked defeating the gay community's capacity to take care of itself at a moment when the stakes of doing so were massively high.

So, it might be said, a thick norm of community self-governance emerged, and it operated, partly, as an injunction addressed to gay men to reject engagement with the legal system's harm provisions, most especially where sexuality was involved. From this original trauma, the norm held across space and time, gay men forswearing the legal system's injury rules throughout the crisis. (15) More than a decade deep into the epidemic, David Chambers could thus confidently comment on how "inconceivable" it was that any gay organization would endorse legislation treating the failure to use a condom during anal intercourse as a petty criminal infraction akin to driving without a seatbelt, (16) while, almost in passing, also describing more stringent criminal laws specifically targeting HIV-transmission as "unlikely" to "exert significant deterrent effects on [gay men's] unsafe behavior," (17) The norm of community self-help, with its insistence on autonomy from the State's harm codes, explains how some gay men could simultaneously be outraged by the notion of appealing even to the modest regulatory energies of the criminal law, while knowing that, when the criminal law nevertheless addressed them, it would be practically irrelevant to their lives. Nobody would complain. If this is correct, HIV/AIDS could burst on the scene, and the numbers of gay men infected with it could balloon--but without court claims by gay men saying they were injured by infection through sex with other gay men.

Or consider a different, but related version of the account, in which gay men woke up one day to a nightmarish epidemic on their hands. Everyone was potentially implicated. Gay leaders (or some of them) realized that individual gay men could use the legal system's harm tools to hold one another legally accountable for HIV-transmission. They chose, however, to spread a different message: of community solidarity as the brightest sign of hope. Too much work needed to be done to live as a house divided. The gay community, with the support of some heterosexual allies, gay elites proclaimed, (18) must drive the homophobically disinterested government into action to provide desperately needed social services and to fund the scientific research needed to master the virus and cure the disease. Deploying legal harm rules would not achieve that. What is more, it might have had disastrous political effects. Those gay men who engaged the legal system in these ways, far from being politically energized, might have become locked into a "victim" mentality, (19) enhancing--not reducing--their already excessive suffering and sapping their personal and political strengths. Indeed, along these very lines, HIV-positive gay men who had developed AIDS decided, in some of the epidemic's early days, to disavow their identification as "AIDS victims," insisting on being called instead "People with AIDS." (20) The idea of the new appellation was, in part, precisely to direct HIV-positive gay men's attentions away from self-pity and resentment, with their potential to occupy a life, and toward political efforts dedicated to pursuing the pressing community-based projects that required large-scale political mobilizations to succeed. Of course, once the gay "AIDS victims" disappeared as a social personage, so too, by extension, did the AIDS "perpetrator," the one who giveth HIV. The identarian shift, which made it somewhat easier to breathe as a person with AIDS, simultaneously made it harder, indeed politically fraught, even disloyal, to think of oneself as someone victimized by the virus or its associated diseases, far less by the guy or guys who passed it on. (21) Against all this, how much worse would it have been to break faith by attacking another gay man living with HIV/AIDS through a suit painting him a grim reaper? That's treason. Gay men, in a great, collective act of self-empowerment and solidarity, focused by the pain of shunning or exclusion from the tribe, thus decided to fight homophobia rather than one another. And this norm of solidarity governed gay men's actions across space and time. Even as the numbers of HIV-infected gay men swelled, gay men collectively and pervasively chose to pursue political actions with--rather than leveling lawsuits against--one another.

Or take one final (and still related) perspective. This version focuses on gay men's deep skepticism about what the legal system was ready to do for them in the early years of the HIV/AIDS epidemic, even allowing that it formally offered rules by which to treat sex-based HIV-transmission as a harm. To think that the courts were really open for the business gay men might bring them--even this--was not to think at all, but to forget how thorough-going the legal system's homophobia was. (22) True enough, gay men could try to hold one another to account for their injuries. But with what results? "Problems of proof," some of them "insuperable," (23) aside, what fact-finder in a civil case would have held an alleged perpetrator liable? And precisely what for? How many legal actors, like everyone else, believed that when gays consented to sex--and when didn't they?--they consented to all its risks? (24) How many believed gays had only themselves--individually or collectively--to blame when they contracted HIV or went on to develop AIDS? (25) At some point, knowing of the risks, they should have protected themselves. On the criminal law side, what prosecutor would have prosecuted? What jury, convicted? How many judges and veniremen could be counted among the moralists who saw HIV and AIDS as the wages of sexual sin? (26) Either way, so long as death and dying were socially understood, including by law, to be the telos of gay life, (27) what would the legal claim be for? What was the harm? The wrong? (28) Even the laws that a number of states eventually enacted criminalizing HIV-transmission were not chiefly designed to keep gay men--but rather heterosexuals, the "general community" or "general public"--"harm-free." (29)

To be sure, the verdict that Marc Christian, Rock Hudson's ex-lover, received--initially, a cool $21.75 million, including $7.25 million in punitive damages, later reduced to $5 million in compensatory damages and $500,000 in punitive damages--might have diminished some of the skepticism that regarded the legal system's homophobia as a sure bet, keeping the scales of justice from ever tipping harmed gays' way. (30) Alternatively, of course, it might have been thought to show that the legal system was overly-sensitive to seeing HIV-infection as a sexuality-based harm to a person, at least in certain cases of same-sex transmission. How difficult was it to imagine that the real reason Hudson's estate was found liable was that Hudson himself--or more exactly, his homosexuality and his presumed willingness to abdicate his masculinity through anal sex (31)--was such a colossal disappointment? Or that holding his estate legally liable might have been more a way of posthumously punishing Hudson for perpetrating a fraud of heterosexuality on the American public than for injuring Christian? (32)

Whatever the actual facts of homophobia were, the legal system may still have seemed so inhospitable to gay men and their claims that it was not worth testing it out, except for those rare individuals who, like Marc Christian, stood to recover sizeable legal awards. Particularly not when viewed against the possible economic and social perils in store for anyone who so publicly came out as being HIV-positive or worse, as having AIDS, in a world in which there were no assurances one would not lose one's livelihood (including one's insurance), one's home, one's family, one's friends--in a word, everything--as a result of simply being gay. Lawsuits might very well not have seemed worth the risks of bringing them, even if won. Homophobia might well have made the legal system seem sufficiently hostile to gay men, hence to the possibility of seeing and responding to their injuries, that the appearance of being effectively closed was taken as--and thus became--its truth. If so, gay skepticism could keep gay men from engaging the legal system's individual harm rules while HIV-infection rates ticked constantly upward. (33)

These accounts--with the norms of blamelessness, community self-help, political solidarity, and skepticism of law that emerge from them--do not, of course, exhaust the full range of predictable explanations gay men might have given, or might now give, if pressed to explain why the legal system's harm rules have never systematically been seized as a means of coming to terms with HIV/AIDS inside the gay community. (34) Recognizing that the moving pieces of these accounts can be disassembled and reassembled, added to or subtracted from in any number of ways, they aim only to sketch some understandings that virtually all gay men are aware of, or can readily apprehend, from social experiences that many (if not most or all) gay men share. In this sense, these accounts are useful--as far as they go. It is just that they do not go far enough. Among other things, they avoid some disquieting truths about gay sexual life--increasingly coming into view (35)--that must be aired to understand the full story of why the sex-based transmission of HIV has never widely been imagined or treated as a legal problem among gay men, and also why, over the years, gay men have undertaken various interventions to keep it that way. (36)

A number of these neglected truths, (37) collected and presented in these pages as the ideology of sexual freedom, an ideology that is barely recognized despite its longstanding animation of, and grip on, the realities of gay sex, sexual identity, and social life, sheds a powerful, new light on the virtual invisibility of the sex-based transmission of HIV among gay men as a legal harm. (38) So far from being an injury the law should address, within this ideology, it is seen as proof of sex's great powers, themselves why sex must not be cabined, but freed. At the same time, the ideology of sexual freedom unfolds a broader vista on to the more general invisibility of sexual violence and injury among gay men, including as a matter of law, where cases of conventional sex-based harm, such as sexual harassment, sexual assault, and rape, as with claims for the sex-based transmission of HIV, are practically unknown. In this light, the ideology of sexual freedom begins to take shape as a powerful shadow law, a (perhaps the) real law of gay sexual life, a fact about the social world that the other accounts, and indeed, much of what has been and is lately being said in the law-and-sexuality debates, entirely leave out.

The next part, Part II, turns to an elaboration of the ideology of sexual freedom and its theoretical implications for thinking about HIV/AIDS. Following that, Part III considers at length the question of how the ideology of sexual freedom actually operated in the high years of the HIV/AIDS epidemic to shape thinking about sexuality. Finally, the Conclusion closes with thoughts on the larger implications of the ideology of sexual freedom for gay sexual life and the law.

II. The Ideology of Sexual Freedom Described

The ideology of sexual freedom is less commonly written down than simply lived. (39) Perhaps, as with Georges Bataille's description of a pure Sadism, this is because "[s]uch a strange doctrine could obviously not be generally accepted, nor even generally propounded, unless it were glossed over, deprived of significance, and reduced to a trivial piece of pyrotechnics. Obviously, if it were taken seriously, no society could accept it for a single instant." (40) No community, inside or outside society, could--not openly--either. That it has not generally been openly propounded or accepted does not mean it cannot be advocated or lived in less direct and different ways. (41)

In one version, the ideology of sexual freedom grows from the soil of an intense homophobia, a miserable view of who gay men are, what we desire, and what we will do for--and in--sex. (42) Noticing the non-reproductivity of same-sex sex, (43) this homophobia imagines the normative arc of gay life, its most felicitous reason-for-being, is found in decadence, waste, dissipation, disease, degeneration, and death, all of which are ruinous both for individuals and civilization, more generally. (44) Forced outside society's bounds, into exile, by a society hoping to protect itself, (45) homosexuality is cast as sexuality that is insatiable, indiscriminate, violent, wild, untamable, and untamed. (46)

From these descriptions, all that homosexuality has been allowed to be, if pervasively oppressed, (47) the ideology of sexual freedom builds an affirmative theory of sex. In it, same-sex sex takes on the monumental powers--outside and so opposed to society--that it has been storied to have. Loosely speaking, this sex is re-imagined as prior to the social world, including its values and institutions, themselves including marriage, family, fatherhood, neighborhood, church, and state, as well as, wherever they pop up, medicine, (48) morality, (49) and law. (50) In the forest's fresh air, sex, unrestrained, must be allowed to be what it is, found in its becoming, unknown and unknowable before it is. (51)

Sex in this account is the value of all values. But, importantly, not because it is good. (52) Sex's measure does not emerge from or correspond to any given moral Code, customary norm, or man-made law. The ideology of sexual freedom does not herald sex because it expresses affection or caring or nurturing or compassion, much less because of how it builds or affirms friendship, community--or love. (53) Sex's value is found in what caused society to cast it out. It is an awesome power that commands esteem because it is selfish and wasteful and degenerate and wicked and violent and cruel and irresponsible and criminal. (54) The ideology of sexual freedom thus deems the value of sex is found significantly, if not exclusively, in its "dark" side, (55) beyond good and evil and right and wrong. Freed from morality's grip, so, too, from society's remaining rules. Within the ideology of sexual freedom, sex, hence its value, is in its nature: sheer power. (56)

Suggesting the insult about homosexuality's barrenness is not forgotten is the emphasis the ideology of sexual freedom places on homosexuality's capacity to generate effects, (57) at least equal to heterosexuality's, if it doesn't surpass it. Freed from the ordinary burdens of species reproduction, sex, in a creative frenzy, can endlessly breed. (58)

Sometimes sex's effects are imagined to be small, "private" and personal, immediate for the individual, as in bodily pleasures. (59) Without question, the ideology of sexual freedom holds pleasure in high esteem. But this is not simply, or ultimately, a hedonistic program. (60)

Beyond conventional pleasures, the ideology of sexual freedom has a mystical strain. (61) Sex is a power standing as a Godhead, a queer version of the divine, capable of miracles. (62) As it sheds its civilizing constraints, energies beginning fully to pulse, sex can be nothing less than a portal to new ways of being, to new ways of life, even to new social worlds. (63) Sometimes, this is because sex changes how individuals see and experience themselves and how they know and relate to one another in sex--and if there is a "beyond" it, beyond it. (64) Surpassing the boundaries of the self and of the home and existing social institutions, sex can transform society and thus the world. (65) Sometimes, this is because sex is believed to be a way of "playing" with the existing net of power relations currently laid over the entire social field. (66) Here, in altering its warp and weave in one comer, sex can give rise to new configurations or arrangements of power with far-reaching consequences on other parts of the social grid. (67) A more concrete rendition of the same thing is sex being vaunted as a conduit for alterations in the social world, because with the new power relations that emerge from sex come new forms of knowledge, fresh truths. (68) These social changes are thought capable of cascading, precipitating others, in a series of endless waves. (69) All these pathways and possibilities--and more, which cannot yet be imagined--being open, available, within reach, in and through sex, the last thing it is, certainly at its best, is what it is sometimes thought to be: a purely self-regarding, hermetically-contained, private, asocial act. (70)

Common to these possibilities, with their obscure conduits for personal and social change flowing from sex, is that they are available only when certain sexual intensities are reached and surpassed, when that threshold that makes sex what it now largely "is"--locked down by the dreary, straight-laced shackles that aim to keep sexuality's true power and all that can follow from it firmly out of our reach--is traversed and transcended. (71)

Only when the world of sexual freedom opens up to us, labyrinths appearing, (72) sensations occurring, bodies colliding, (73) with nothing limiting sex, nothing, including no social knowledge or institution, mediating or channeling our experience of it, when it has brought us out of our usual slumber, half (or more) dead, are we allowed, which is to say, forced, to truly be. Missing this, sex is submitted to the authority of a thousand conventions that make it seem to be what they will it to be, not what it actually is.

Recognizing these possibilities, the ideology of sexual freedom speaks not just to how sex is had, but to how the world is lived. (74) It urges an orientation--a desire--that aims toward a full embrace of the uncertain, (75) the unfamiliar, the unrealized, the irrational, (76) the unknown, leaving the authority that dulls sense and mind behind. The hope and appeal is that, in doing so, through experience, something truly spectacular may be discovered. The ideology of sexual freedom thus constitutes more than a way of being sexual, it is a modus vivendi, truly a style, or an erotic style, of and for an entire life. (77) Michel Foucault captures the trajectory thus:
   Sexuality is something that we ourselves create--it is our own
   creation, and much more than the discovery of a secret side of our
   desire. We have to understand that with our desires, through our
   desires, go new forms of relationships, new forms of love, new
   forms of creation. Sex is not a fatality; it's a possibility for
   creative life. (78)

In this view, homosexuality is not about ends, but beginnings. In it, and from it, the "possibility for creative life" may be found: a life that, in extremis, may rise above death itself, and be born, a permanent fixture in the starry night.

To accept the gauntlet the ideology of sexual freedom throws down requires a willingness to give one's back to the world, including its knowledges and its tables of value. In exchange, what is promised is a return to being awake to the shuddering delight, excitement, shock, embarrassment, even joy and pain, anywhere and everywhere--of sex, hence one's greatest self. In constantly putting one on the edge of experience and possibility and sensations, it promises a way of being fully human, of having and living a fully realized life, if not by conventional lights. The centrality of pleasure entails a bid--and an active desire--for more, for greatness in life. It is a way of turning life and death itself--through sex, through a constant, sensuality, a permanent erotic state--into a magnificent work of art. (79) Who knows what this will bring? What shape it will take? What it will do? No one can know in advance. The risk, for those who see it and open themselves to it, is its own marvel, splendor, and thrill.

It is at the point of its price---what will this all cost?--that the ideology of sexual freedom takes a darker and more secretive turn. (80) For the conversion of erotics to life, sex into art, to work, there must be artists, and above all, artists ready to sacrifice themselves completely to their craft. As an ideal, the ideology of sexual freedom demands nothing less. If the social, including the institutional, forces that keep sex's power largely beyond reach are ever to be overcome so that sex achieves its great potential, individuals must be willing to put their bodies entirely, hence their very lives, on the sexual line. (81)

A long and proud history of ideological projects driving toward freedom imagines it is worth more than life itself. "[L]iberty or ... death!" (82) But more particular reasons in the ideology of sexual freedom demand life itself be put on the line. Only if individuals are willing to sacrifice life for sex can its true powers be exposed. Anything less than blood oath isn't serious.

As surely as the ideology of sexual freedom imagines the need for some to give their lives for sex's powers and truths to be freed, it also affirms that there must be those who stand ready to take life for sex and all its possibilities. Ideological projects regularly imagine soldiers prepared to die for them and, under appropriate circumstances and with proper training, to kill for them, as well. (83) Again, particular reasons in the ideology of sexual freedom demand that the ordinary revulsion and horror at taking human life must be overcome in order fully to serve sex's power. Without those who will kill for sex, its ultimate boundaries will never be known, much less exceeded. Sex will forever be trapped by society's usual pieties, its usual moralities, its usual norms, which, written upon the body, (84) define its meanings, constrain its pleasures, and limit its uses and sensations, keeping both sex's powers and their corresponding truths hidden, forever. Never fully awakened or alive, one might as well already be dead. In a sense, we all already are.

This is why the ideology of sexual freedom entails a right to die for sex and also a right to kill in its name. Only when the flames of sex may burn gently enough to warm or suddenly explode, becoming a funeral pyre, will sex be truly free. (85) This may not quite be the Marquis de Sade's vision of "an all-powerful monstrosity" as Foucault described it:
   In Sade, sex is without any norm or intrinsic rule that might be
   formulated from its own nature; but it is subject to the
   unrestricted law of a power which itself knows no other law but its
   own; if by chance it is at times forced to accept the order of
   progressions carefully disciplined into successive days, this
   exercise carries it to a point where it is no longer anything but a
   unique and naked sovereignty: an unlimited right of all-powerful
   monstrosity. (86)

But it moves in its direction. This ideology of sexual freedom embraces a certain form of self-sovereignty, which flows from a view of sovereignty that holds the sovereign himself, who is--or is above--the law, possesses (and sometimes actually does) a "right of death and a power over life." (87) The ideology of sexual freedom transposes that right to the individual level to ask, What better affirmation of sex's power than facing that sex is worth dying, hence killing, for? "[T]hese murders are the pretext for and means of a higher life." (88)

However painful, however detumescent a thud back down to earth, it is important to bear witness to how these ideals pay out. Those whose lives sex snuffs out as part of this endeavor are not to be seen, as they normally would be, as victims of crime. If anything, they are to be recognized as freedom fighters, martyrs for a cause (or sacrificial lambs or human sacrifice). Their deaths do not speak the unspeakable horrors of sex. They herald its true value: the terror, the wonder, the power it has to rip through a life itself. The memories of those whose lives sex fells should thus be hallowed, flags planted and manned at their graves. Their sexual deeds, including the ways they experienced power, how it was configured to produce its pleasures and its agonies, along with the knowledges to which they gave rise, like the indictments of the existing order they thus leveled, must be storied, remembered in new Homeric tales. Glory in death for sex, sex as the battlefield, in the name of new ways of being, of new forms of social relations, new configurations of power, and of knowing. Within this ideology, there is no ignoble march to the hereafter for the fallen, no matter how anguished the paths some individuals take might be or seem. Suffering, too, testifies to sex's amazing, unrelenting power. To misunderstand that is to betray it, and for the anointed, the cognoscenti, oneself, and everyone's ultimate possibilities. (89)

Some sincere regrets may sometimes be expressed within the ideology of sexual freedom, but only for not going far enough in paying sex its due. (90) Never, or practically never, for going too far in those directions, except from those who have forgotten what their purpose was and how they came to be where they are, having sacrificed what they did for what it was that they were doing. Reminders should largely suffice as this amnesia's cure. For those who continue to choose to forget, who want to erase their own victories over life in their life's decline, what concern is there in that? They--like the others who never comprehended the project--must not have really understood it either. But the true value of what they died for, why they died, does not change no matter their change of heart. "What greater honour is there ... for an individual without genius than to be a means to it?" (91)

Of those who prove their mettle by bringing life sexually to an end, this: no victims, no crime, hence no criminals either. (92) Their only wrongdoing is living in a world that scorns sex's power to be a source of life even in death, who live in a world that cheapens sexuality's name and seeks to cage it, hence everyone else. To be sure, killing for sex is not a project for the masses or the uninitiated, who might mangle the elegant syntax of the "morbid poetry" (93) of sex. That special task is properly reserved for those who have already learned to master--who intimately know--the erotic arts. (94) They must know how to dance with death, court it, draw out its mysteries, its possibilities, its truths both known and unknown, its capacity to liberate us from our ordinary bodily sensations, to produce the experiences sex can yield, pass them on to, and share them with, others, discovering and transmitting a knowledge that few are bold enough even to dare dream might exist. In the right hands, sex can be forced to give itself up to--to prove--its own monumentality "as a blinding, captivating[] force." (95) Sex itself is its own proof of why it is so pervasively seen as sacred, yet everywhere bolted down in advance, routinized, scheduled, everywhere dimly perceived as properly shrouded in mystery because of how it can explode, how it can utterly decimate individuals, transgress personal limits, destroy them, and remake them-all in a single event. True, some lives may be--indeed, may have to be--sacrificed in order to obtain this knowledge, and to keep producing it. But that's a price that must be paid.

From within the ideology of sexual freedom, this is not seen as sex gone wrong. It can be sex gone perfectly right. In its most delicious, savory, and unrestrained forms, sex does and should slaughter "with the devouring fury of a vicious hound." (96) One must know it may do so literally for it to work. One should want it to--that is what must be desired, at least sometimes--if one wants to know what it is to be fully alive, to experience desire satisfied on the thin, sharp edge of life itself, to breathe the pure air of "fearless freedom. "(97) Else, what is on the other side of power--death being its now-known limit--may never be known.

To be liberated not to suffer this, to be able to be awakened, to be sensitive, alive!, once again, to the possibilities of sex, to be truly in and part of the world, to be in a world worth being part of, some--the real artists, these masters of the ars erotica (98)--must be made untouchable by ordinary social rules, bound only to serve sexuality's laws. These are the Supermen, (99) "with impunity in their omnipotence." (100) It is their greatness, their genius, that is to be unleashed, or initiated, or approached. Everything else on the level of the quotidian is a condition for this possibility, which as the Holy of Holies, must not be revealed. (101) It is why the philosophers for whom the City is built must make their real teachings esoteric, telling their noble lies. (102) Expose the truth and it will be lost, dooming the City and the philosopher both. (103)

Thus comes full circle the ideology of sexual freedom's origins as homophobic nightmare. The greatest horrors of the homophobic fantasy of gay men--that their lust is for men's sexualized deaths, murder being sex's natural extreme (104)--are transvalued, reworked, to become an erotics of death, its sexual ideal's highest high, sex's hoped-for truth.

Seen in this light, the question of why gay men have not regularly aimed to the legal system claiming HIV-transmission as a sex-based harm takes on a new cast. It is entirely the wrong question. Within the ideology of sexual freedom, who could imagine the legal system being called on to deal with the "problem" of HIV-transmission through rules naming it an injury accomplished by sex? What would the harm rules be a remedy for? Experiments in greatness that, however momentarily, elevated those now cast as "injured" above life and death? Are we now to regulate old-world-destroying and new-world-creating creativity? Are we to litigate art? (105) For gay men to seek to hold one another accountable for practicing sex that toys with death is to forget what sex is about: not the petty moralism of "injury," including sexual injury, (106) but power, real power that transcends law's rules. By design or in effect, the legal rules being imagined when one is puzzled that gay men did not turn to the law's harm rules to address HIV-infection would, if actually deployed, in the view of this ideology, keep us all, potentially, firmly trapped within the current regimes of power and its authorized knowledges. From the perspective of the ideology of sexual freedom at least, the prospects are potentially disastrous. What sex is, with its effects, is incomprehensible--ineffable--as legal injury. The ideology of sexual freedom explains why one might want to say, as Michel Foucault once did, that "[o]ne can always produce the theoretical discourse that amounts to saying: in any case, sexuality can in no circumstances be the object of punishment." (107) The notion is: It never should be.

But the ideology of sexual freedom does not only potentially erase the sexual transmission of HIV as injury or harm. If HIV-transmission should not be regulated because it is not seen as harm, and if it is not seen as harm because harm is a moral concept, it ceases to be entirely clear why the HIV/AIDS epidemic itself should be seen, either for individuals or in its larger terms, as a catastrophe. Nor even why the so-called immoral or criminal delays in governmental funding for education to stop the spread of the virus, and for research to end its reign, or for care to ease the suffering of those who are HIV-positive or who have developed AIDS, are either. These are all nothing more and nothing less than ways of exercising--or not exercising--power. More perversely yet, (108) in contributing to converting the HIV/AIDS epidemic into what has been described as a Holocaust, these moves, on closer inspection, likewise expose the truth of sex's power, a truth that the ideology of sexual freedom at least welcomes and recognizes. In slightly different terms, the HIV/AIDS Holocaust, which the powers of government inaction fanned, proves the truth of what the ideology of sexual freedom knows: Sex is mighty. When it eviscerates us, as it can, completely, it can wipe out vast segments of the herd. Against that, our lives are, in actuality, very small. What the conventional ways of understanding the HIV/AIDS epidemic often miss is that, from the ashes of this great devastation, this hecatomb, from all the suffering it generates, something truly great, something unprecedented, something of world-changing historic proportions, may be born. Destruction precedes generation, as dark precedes dawn. (109)

From within the ideology of sexual freedom, it looks as though dawn started to break a number of years ago. There is, of course, first the horrific spectacle of suffering itself, which should not be overlooked, a great Guernica or triptych by Bosch, painted in human form across the expansive canvas of time and space. What do these horrors cause? Inspire? Drive us mad to do? Who can miss the renaissance of artistic form that this disaster set off? (110) Who, the new forms of political organization, political engagement, strategy and tactics--sometimes sorely missed today--to which it gave rise? (111) Even the most conservative gay rights advocates must admit the rights that they themselves tout--the right to marriage, above all (112)--became thinkable as a practical matter (even if sometimes mistakenly thought of as an imperative) in no small part as a result of the AIDS crisis. (113) Every gay marriage is thus inevitably, in truth, a dual celebration: of love, but also of death. And the remarkable effects of sex, traceable through the Holocaust, including its anguish and rot, have not yet been fully tolled or told. (114) They are too many, too far flung, still casting waves in the world, to begin a final summation. If this is right, why shouldn't HIV/AIDS be heralded as sex gone right? Be appreciated, even cherished, precisely as a Holocaust? Why should its value--really the value of sex that got it rolling--not be seen and celebrated? Those whose sexual conduct led to other men's suffering and death need not be saved from villainy by petty moralisms like "intent" (they did not intend to transmit HIV) or by notions of chance like "bad luck" (for the guy who "caught" it). They should be received as heroes. Those who died: Why should they not be seen as martyrs for a sexual cause? Why should their lives, and their deaths, not be given meaning this way? Did they or did they not live for sex? Was sex not the centerpiece of their lives when it was? And if they happened to die for it, or to kill for it, whether wittingly or not, why should it not be treated and valued just the same as dying or killing for love of country is? The secret of the ars erotica--not as secret, but as a fact--has gotten out. (115)

This is the view on the sexual world--and parts of its recent history--available from within the ideology of sexual freedom. For some, including some number of gay men who lived through the darkest days of the AIDS Crisis, this may be enough reason to reject it out of hand. But before evaluating the ideology of sexual freedom for what it does--and reframing the AIDS Holocaust is hardly all, but only a start--it must first be established in a more concrete way that it exists as a worldly force. (116) The readings that follow, analyzing four texts by gay men, theorizing about gay sexuality, begin to do that. The four texts are Douglas Crimp's How to Have Promiscuity in an Epidemic, David Chambers' Gay Men, AIDS, and the Code of the Condom, sections of Richard Mohr's Gays/Justice: A Study of Ethics, Society and Law, and Leo Bersani's Is the Rectum a Grave?. Individually and together, they show some of the ways gay male theorizing about sex--at least theorizing that affirmatively recognizes gay sex's value--both was and was not continuous with the ideology of sexual freedom at a particular moment in time, during the high years of the AIDS epidemic, (117) when one might have expected it would have had scarcely any traction, if any at all.
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Title Annotation:I. Introduction through II. The Ideology of Sexual Freedom Described, p. 87-121
Author:Spindelman, Marc
Publication:Columbia Journal of Gender and Law
Date:Jan 1, 2013
Previous Article:Tribute to Justice Ruth Bader Ginsburg.
Next Article:Sexuality's law.

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