Like many people, I’ve taken hard the recent suicides of so many gay teens, including Tyler Clementi. I got choked up last Thursday afternoon in front of the University of Connecticut Law School faculty when I mentioned his death as part of a talk I was giving on lgbt rights more generally. But I’d like to avoid using this post as either an opportunity for painful identification or emotional confession about the issue, so here are a few thoughts:
First: Does it matter, and if so how, that what was streamed about him on the web was same- (not different-) sex intimacy/sex/something? (I want to avoid calling him gay, I have no idea how he self-identified, or whether his attractions had organized themselves into an identity.) As I listened to the NPR coverage of the matter while driving back from Hartford in the rain, I took note of the fact that both the “teaser” and “lead in” for the story emphasized a violation of his privacy and the issue of “cyber-bullying,” not homophobia or homophobically-related shame. Have we reached a point where the (unconsented to) exposure/publication of sexuality is an offense with equal cause for objection regardless of whether it was homo or hetero sex, or is there something more and differently objectionable about the outing of a young person’s attractions/acts/desires for another person of the same sex? If so, doesn’t this reproduce and re-credentialize the notion that there’s something shameful about the exposure of same-sex desire? Yet, so long as we live in a world that exacts a price for non-normative sexuality or desire (as this world most certainly does), how can we deny the added psychic cost of having one’s sexual encounters outed in such a public manner? To pose the question another, and more legalistic, way: was what happened to Tyler Clementi a privacy crime or a hate crime? What’s at stake in taking sides on this question?
Here’s the thing: if he’d been video-taped having sex with a woman he might have felt personally violated, exposed, and maybe humiliated, but it would have been something that was publicly available for boasting and homosocial bonding (thank you Eve Sedgwick). And above all else, the victim here would have been the woman. He would have been (regardless of what he actually felt) the hero of the film. The fact that everyone agrees that he was the injured party here is testament to the enduring cost of heterosexism.
Second: Might we want to pause before indulging the impulse to turn to criminal law to punish the perpetrators of this awful event and remedy its deadly consequences? After listening to Dean Spade talk at numerous lgbt conferences about the perils of criminalization, I can’t help but question why and how the lgbt community continues to seek recognition and refuge in criminal law. As Spade, a law professor in Seattle, has put it:
In the context of mass imprisonment and rapid prison growth targeting traditionally oppressed groups, what does it mean to use criminal punishment enhancing laws to purportedly address oppression? … Hate crimes laws strengthen and legitimize the criminal punishment system, a system that targets the very people that these laws are supposedly passed to protect … By naming that system as the answer to the significant problem of violence against trans [and lgb] people, we participate in the logic that the criminal punishment system produces safety despite the fact that the evidence suggests that it primarily produces violence … A new mandate to punish trans [and homo]phobes is added to the arsenal of justifications for a system that primarily locks up and destroys the lives of poor people, people of color, people with disabilities, and immigrants, and that uses gender-based sexual violence as one of its daily tools of discipline.
What happened in a Rutgers dorm room this week was unconscionable – the first month of school; figuring out who you are and what you like for the first time outside the pickets of the nuclear family; violated by your roommate – remember we pair freshmen and women with roommates because they “need” the sociality that a roommate brings.
But of course we can’t lay all the blame at Rutgers’ feet. It didn’t start there. We can equally point to the priming that happens in almost all middle and high schools that renders same-sex desire so shameful that its exposure amounts to a kind of soul-killing for the same sex desirer, and that desire’s broadcast on the internet a “harmless freshman prank” to those who do the broadcasting. Criminal law can’t and won’t do much to interrupt the conditions precedent to this week’s loss of life.
Katherine Franke, cross-posted from Gender & Sexuality Law Blog