The law has a strange relationship with gay sex. Courts and legislators often manage simultaneously to ignore the realities of gay sexual expression, on the one hand, yet treat it differently from heterosexual sex on the other. Even when striking down the Texas sodomy law and expanding constitutional protection to same-sex, nonmarital sexual relations in Lawrence v. Texas, the Supreme Court constructed a narrative of a deep emotional bond between the couple at the heart of the case when in reality, the couple was not in a longstanding romantic relationship. As a few scholars pointed out, the Court seems to ignore the possibility that it was simply a hook-up, which nevertheless deserves as much protection as consensual sex in a committed relationship does. When presenting the court with the marriage equality cases, United States v. Windsor and Obergefell v. Hodges, lawyers went to great lengths to desexualize same sex relationships, making them easier for the court to swallow. And as I have recently showed empirically, in both the law and the public’s eye, gay sex with preventive measures against HIV is still deemed more dangerous than unprotected heterosexual sex is.
In his fabulously queer and highly significant article The Queer Limits of Revenge Porn, Andrew Gilden provides yet another example of such gay sex exceptionalism in the legal realm. Gilden exposes how even the feminist project to legally protect sexual privacy misses the mark when it comes to sexual norms in the LGBTQ community. Revenge porn, referring to the nonconsensual distribution of sexual images, has become a household term in the age of social media. Twenty-nine states now have criminal legislation prohibiting revenge porn. These laws, however, explicitly exclude images of voluntary nudity or sexual expression in “public” and “commercial” settings. (P. 21.)
As Gilden skillfully points out, the meaning of what is a public (as opposed to private) setting in which one can engage in a sexual expression is distinct when talking about the LGBTQ community. Fearing prosecution, queer people historically had to carve out for themselves spaces in which they could express themselves sexually. These include dating and hookup apps, parades, nude beaches, street fairs, and commercial websites like OnlyFans. The virtual spaces replace the physical “cruising” spots and bathhouses of the twentieth century in providing “not just ‘sleazy’ places that happen to cater to sexual interests shared by the queer people who frequent them; they are also constitutive of queer community, politics, and identities.” (P. 29.) Yet, the field of privacy law has routinely excluded queer people often on the basis of the perceived publicness of their activity.
As Gilden notes, under current revenge porn law, “if you sexually express yourself in a place accessible to more than just a few trusted people, then documentation of your sexual expression becomes fair game for the entire world: your boss, your mother, your sheriff, and anyone on the internet who wants to see it.” (P. 23.) And while one could object to such exclusion from legal protection on account of “personal responsibility” (i.e., if one is concerned about their boss seeing their naked body, then they should take responsibility for ensuring no untrusted third parties have the opportunity to surveille them), one should recall that the same logic goes to the heart of the protection of women from revenge porn and “slut shaming.” Indeed, it seems that same-sex sexual expression is regarded as different in the eyes of the law.
When it comes to commercial settings, Gilden claims that such exclusions disproportionately affect queer people because (1) sex work can be one of the few available avenues for economic survival for marginalized members of the LGBTQ community, especially trans women and trans women of color; (2) queer sexual norms are often much more accepting of commercial sex work than mainstream culture; (3) commercial sex sites serve as a unique educational function for young queer people, particularly in the absence of formal sex education and a pervasive stigma around the issue. (Pp. 37-38.) As Gilden and other scholars note, “If one of the justifications for revenge porn laws is that it is wrong to intentionally harass someone for engaging in consensual, pleasurable sexual expression, then this justification can absolutely extend to commercial settings.” (P. 39.)
At the end of his piece, Gilden reflects on whether the criminalization of revenge porn as it relates to queer people is the appropriate solution. This is because law enforcement has a problematic relationship with the LGBTQ community: “surveilling, arresting, and harassing queer people under the guise of protecting vulnerable populations from sexual abuses.” (P. 45.) By considering the pros and cons of civil remedies and criminalization of revenge porn, this article opens itself up not only to scholars who call on the law to be more sex positive when it comes to queer people, but also to timely conversations around abolition and the role of criminal law in society.
Gilden’s article (and his work in general) helps shed light on the way law treats queer life beyond more heteronormative aspects (such as marriage and childbearing). It brings us one step closer to envisioning a world that accepts a complete and whole way of being queer.
