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Law and Sexuality: The Global Arena

CARL STYCHIN
DIDI HERMAN
Copyright Date: 2001
Edition: NED - New edition
Pages: 296
https://www.jstor.org/stable/10.5749/j.cttttvtd
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  • Book Info
    Law and Sexuality
    Book Description:

    Law and Sexuality brings together leading scholars from four continents to consider topics ranging from Tasmanian sodomy laws to the South African constitution, from domestic partnership in Hawai`i to London’s urban geographies. Encompassing a broad spectrum of perspectives, from literary analysis and postcolonial studies to feminist, queer, and critical race theory, their analysis maps the current state of the global intersections between law and sexuality and social change. Contributors: Heather Brook, Richard Collier, Derek Dalton, Pierre de Vos, Jonathan Goldberg-Hiller, Patrick Hanafin, Emma Henderson, Adrian Howe, Rebecca Johnson, Thomas Kuttner, Derek McGhee, Leslie J. Moran, Wayne Morgan, Oliver Phillips, Jennifer Spruill, Claire Young.

    eISBN: 978-0-8166-9322-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. INTRODUCTION
    (pp. vii-x)

    When academic studies of sexualities experienced a veritable explosion in the 1980s and throughout the 1990s, legal studies of sexuality initially appeared lag behind. Moreover, much of the work which was produced was centred on pragmatic use of legal doctrine to achieve progressive legal change. Such was important, although legal defeats were far more common than victories throughout those primarily Anglo-American jurisdictions in which struggles occurred. In the last few years, however, the legal academic study of ‘sexualities’ - particularly the interrogation of the legal construction and deployment of sexual identities and practices - has developed at a rapid pace....

  4. PART ONE: NATIONALITY AND POSTCOLONIALITY
    • 1 A POST- WITH/OUT A PAST? SEXUAL ORIENTATION AND THE POST-COLONIAL ‘MOMENT’ IN SOUTH AFRICA
      (pp. 3-16)
      JENNIFER H. SPRUILL

      South Africa’s historical colonial status has long been subject to debate, the characterization of the former settler state being complicated by independence from Britain² and what the African National Congress (‘ANC’) even recently referred to as apartheid’s ‘special type’ of ‘internal colonialism’.³ This history produced multiple, imbricating and contradictory ‘moments’ of anti-colonialism and de-colonization. South Africa’s Post-coloniality is correspondingly contested — its temporality and spaciality being equally as unsettled.⁴ And to the extent that the post-apartheid transition is construed as marking a post-colonial shift, the disputed nature of the transformation itself can be added to the circumstances which confound the ‘post-colonial’...

    • 2 CONSTITUTING THE GLOBAL GAY ISSUES OF INDIVIDUAL SUBJECTIVITY AND SEXUALITY IN SOUTHERN AFRICA
      (pp. 17-34)
      OLIVER PHILLIPS

      In the 1990s, the sexual activities of people living throughout the southern African region have alternately assumed and been allocated increasing significance as social markers. Botswana, Namibia, Swaziland, South Africa, Zambia and Zimbabwe have all witnessed unprecedented public discussion of the proclaimed rights or declaimed immorality of sexual activities between people of the same sex.¹ Movements calling explicitly for ‘lesbian and gay rights’ have mushroomed in each of these states, both as a result of governmental derogations of such rights, and as a result of individual affirmations of social identities which deliver these rights.

      This proliferation appears to parallel social...

    • 3 ‘I’ D RATHER BE AN OUTLAW’ IDENTITY, ACTIVISM AND DECRIMINALIZATION IN TASMANIA
      (pp. 35-50)
      EMMA M. HENDERSON

      Over the decade 1988-97 the island state of Tasmania experienced the most ferocious and protracted homosex decriminalization battle in Australia. In an area of law reform that has provided a forum for the airing of a wide array of social concerns and panics, the hysteria unleashed by the push for decriminalization was unparalleled and Tasmanian society was ripped apart at the seams as regions set against each other, state and federal government relations broke down, conservatives and conservationists were set against progressives and developers, and sections of established churches set themselves apart from the state and against each other. Situated...

    • 4 REWRITING DESIRE THE CONSTRUCTION OF SEXUAL IDENTITY IN LITERARY AND LEGAL DISCOURSE IN POST-COLONIAL IRELAND
      (pp. 51-66)
      PATRICK HANAFIN

      The Irish legal imaginary reflects and recalls notions of the Irish national imaginary. Transitions in the conceptualization of the national imaginary will thus be reflected at the level of the legal imaginary. In this chapter I examine why lesbians and gay men have been for so long excluded from full communion with Irish selfhood and analyse the extent to which the legal construction of homosexuality has changed as conceptions of the national imaginary have been transformed. Drawing on the links between legal and literary discourse, this chapter seeks to determine the way in which law draws on dominant notions of...

  5. PART TWO: SEXUALITY AND CRIMINALITY
    • 5 THE DEVIANT GAZE IMAGINING THE HOMOSEXUAL AS CRIMINAL THROUGH CINEMATIC AND LEGAL DISCOURSES
      (pp. 69-83)
      DEREK DALTON

      Despite the fact that cinema and law appear to be disparate representational media (encompassing theprojected imageof film and thewritten wordof the law), they share a marked degree of complicity in positing the notion that male homosexuality is metonymous with and metaphorical for criminality.² They both deploy images and narratives which position a spectator to perceive homosexuality as irrevocably enfolded in the forms and idioms of criminality. In exploring the nexus between law and cinema, I wish to compare the filmCruising(1980, dir. William Friedkin) with the filmSwoon(1992, dir. Tom Kalin). Whilst both films...

    • 6 HOMOSEXUAL ADVANCES IN LAW MURDEROUS EXCUSE, PLURALIZED IGNORANCE AND THE PRIVILEGE OF UNKNOWING
      (pp. 84-99)
      ADRIAN HOWE

      The first statement was made by a man to police after killing his friend in a drunken rage. His defence counsel made the second statement in reply to criticism of the High Court’s decision to overturn his murder conviction and order a new trial.⁴Green v The Queen,decided in November 1997, is the latest pronouncement on the law of provocation by the High Court, the last court of appeal in Australia. I have argued elsewhere that the case represents a new low point in the history of the provocation defence in Anglo-Australian law in that it provides an extraordinarily...

    • 7 PERVERTING LONDON THE CARTOGRAPHIC PRACTICES OF LAW
      (pp. 100-110)
      LESLIE J. MORAN and DEREK McGHEE

      In a memorandum¹ submitted to the Wolfenden Committee,² a government departmental committee commissioned to investigate the law and practice relating to homosexual offences and prostitution in England, Wales and Scotland, Sir John Nott-Bower, KCVO, Commissioner of the Police of the Metropolis, provided the committee with a map of London. This representation of London is bounded by Oxford Street to the north and the Kings Road to the south. Its western edge is Kensington Gardens. Its eastern limit is Westminster bridge and the river Thames. In its detail it is a distribution of familiar urban landmarks such as Hyde Park, Victoria...

  6. PART THREE: PARTNERS AND FAMILIES
    • 8 ‘MAKING A MOCKERY OF MARRIAGE’ DOMESTIC PARTNERSHIP AND EQUAL RIGHTS IN HAWAI‘I
      (pp. 113-131)
      JONATHAN GOLDBERG-HILLER

      Concern about marriage for same-sex couples in Hawai‘i has mushroomed from the local to the national in the blink of an eye. The state-wide panic in Hawai‘i followingBaehr v Lewin(1993)² andBaehr v Miike(1996)³ - holding that the state’s refusal to grant marriage licenses to three same-sex couples violated the state constitutional ban on gender discrimination - has already led to a national ‘Defense of Marriage Act’ (DOMA) permitting states to ignore such marriages, constitutional language to the contrary notwithstanding.⁴ What is all the more curious about DOMA, as well as the numerous state-wide attempts to restrict and...

    • HOW TO DO THINGS WITH SEX
      (pp. 132-150)
      HEATHER BROOK

      In his seminal lectures, How To Do Things With Words (1962), linguistic philosopher J. L. Austin posits that sometimes saying is doing. In the utterance ‘I christen this ship...’ a ship is launched; in the judge’s utterance ‘I sentence you...’ the criminal is condemned; and so on. In this chapter, I want to take a leaf out of Austin’s book to suggest that sometimes ‘doing it’ is saying, too. Sexacts can ‘say’ all sorts of things. I want to argue that conjugal sex has an important recent history: in matrimonial law, sex acts are invested with specifically heterosexual imperatives and...

    • 10 ‘AGING AND RETIREMENT ARE NOT UNIQUE TO HETEROSEXUALS’ ROSENBERG V CANADA
      (pp. 151-163)
      CLAIRE F.L. YOUNG

      In Canada, as elsewhere, the struggle by lesbians and gay men for spousal status continues with mixed success. One notable step forward occurred in the spring of 1998 when the Ontario Court of Appeal decision ofRosenberg v Canada (Attorney General)² (hereinafter Rosenberg)was released. This decision has been heralded as symbolizing ’a new era in the struggle for lesbian and gay equality’.³ InRosenberg,the court held that the words ‘or the same sex’ should be read into the definition of spouse in section 252(4) of the Canadian Income Tax Act,⁴ for the purposes of the registration of pension...

    • 11 STRAIGHT FAMILIES, QUEER LIVES? HETEROSEXUAL(IZING) FAMILY LAW
      (pp. 164-178)
      RICHARD COLLIER

      This chapter presents an exploration of the ‘heterosexuality’ of ‘family law.’ It seeks, specifically, to unpack some aspects of the discursive construction of heterosexuality as a social practice within the context of debates taking place in the field of family policy in Britain. In relation to issues of divorce reform, the meaning of parental responsibility, child care and, more generally, an ascendant political discourse of ‘family values’, it will be argued that the complex and contingent relationship between (hetero)sexuality and the idea of the ‘social’ is at present undergoing a profound shift; and that, in this process, questions of gender,...

  7. PART FOUR: THE POLITICS OF RIGHTS
    • 12 TREADING ON DICEY GROUND CITIZENSHIP AND THE POLITICS OF THE RULE OF LAW
      (pp. 181-193)
      REBECCA JOHNSON and THOMAS KUTTNER

      In the second half of the twentieth century, many struggles for justice and equality have been conducted on the terrain of rights. One dimension of the struggle has involved attempts to draft and constitutionalize various rightsgranting documents.² A second dimension has centred on the legal interpretations to be given to the resulting texts.³ Both types of struggle have produced contradictory and conflicting results. While activists have sometimes managed to harness equality rights discourse to advance their claims, some have noted that these positive moments have been coupled with many other moments where the discourse of equality has been deployed in...

    • 13 THE CONSTITUTION MADE US QUEER THE SEXUAL ORIENTATION CLAUSE IN THE SOUTH AFRICAN CONSTITUTION AND THE EMERGENCE OF GAY AND LESBIAN IDENTITY
      (pp. 194-207)
      PIERRE DE VOS

      Towards the end of 1997 the South AfricanMail & Guardiannewspaper carried a report on the wedding of Polly Motene, an executive member of the Gay and Lesbian Organisation of the Witwatersrand (GLOW), and Robert Poswayo, a former policeman. In the breathless style of a journalist striving to sound both amused and amusing, one of the newspaper’s journalists reported as follows:²

      Thelobola[bride price] had been paid. The blue and white striped tent was up. And as good old tradition dictates, the bride was three hours late. But when she emerged from her Meadowlands home in Soweto last...

    • 14 QUEERING INTERNATIONAL HUMAN RIGHTS LAW
      (pp. 208-225)
      WAYNE MORGAN

      International human rights law on sexuality is a relatively new development. It is only really in the last two decades that questions of sexuality and rights have been on the agenda of international institutions, courts and non-governmental organizations (NGOs). In those two decades, important battles have been fought and, to some extent, the privileging of heterosexuality, which is an inherent part of international human rights law, has been challenged. Yet, the challenges made by sexual outsiders¹ have been (and still are) vigorously contested by most governments who participate in the international human rights system. We have won some victories, but...

  8. CONCLUDING THOUGHTS
    (pp. 226-226)
  9. NOTES
    (pp. 227-263)
  10. REFERENCES
    (pp. 264-271)
  11. ABOUT THE EDITORS
    (pp. 272-272)
  12. ABOUT THE CONTRIBUTORS
    (pp. 273-275)
  13. ACKNOWLEDGMENTS
    (pp. 276-276)
  14. INDEX
    (pp. 277-283)