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Toward a "Culturally Cliterate" Family Law? Susan Frelich Appletont A woman from the governing party in Ecuador has proposed that a woman's right to enjoy sexual happiness should be enshrined in the country's law .... Maria Soledad Vela, who is helping to rewrite the constitution, says women have traditionally been seen as mere sexual objects or child bearers. Now, she says, women should have the right to make free, responsible and informed decisions about sex lives .... [H]er comments have provoked a lively response-mostly, unsurprisingly, from men. Opposition assembly member, Leonardo Viteri, accused her of trying to decree orgasm by law. I Charla[Muller] apparentlyhad no intention of writing about "the gift, " as she euphemistically refers to [the year of nightly sex she "gave" to her husband, which later prompted their book, 365 Nights]. She was simply a homemaker and marketing consultant, who in 2006 wanted to give her husband a special 40th birthdaypresent .... Itdidn't cost a lot of money. Itwas highly memorable. It met all the criteriafora really great gift. ,2 Copyright 0 2008 Susan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law, Washington University in St. Louis-with thanks for important insights and valuable conversations to Karen Czapanskiy, Adrienne Davis, Elizabeth Emens, Joanna Grossman, Laura Kessler, Linda McClain, Andrea Perry. Laura Rosenbury, Jennifer Rothman, and Susan Stiritz: to students in Contemporary Female Sexualities (Washington University, Spring 2007); and to participants in the Washington University School of Law Faculty Research Seminar, the Washington University Women and Gender Studies Colloquium, the Cultural and Legal Cliteracy Panel at the 2007 Annual Meeting of the Law & Society Association in Berlin, and the Family Law & Norms Panel at the Inaugural Annual Midwest Family Law Conference in Indianapolis in 2008. Andrea Perry also provided excellent research assistance. 1. Daniel Schweimler, Sex on Ecuador's Political Agenda. BBC NEWS, May 3. 2008. http://news.bbc.co.uk/2/hi/americas/7382010.stm. The report continues: "Another called the proposal 'ridiculous' and said that such an intimate topic should stay intimate and not be enshrined in law. Ms [sic] Soledad Vela responded to the criticism, saying she had never requested the right to an orgasm merely the right to enjoy sex in a free, fair and more open society." Id. 2. Ralph Gardner. Jr.. Yes, Dear. Tonight Again.. N.Y. TIMES, June 8, 2008, Style section, at 1. BERKELEY JOURNAL OF GENDER, LAW & JUSTICE BERKELEY JOURNAL OF GENDER, LAW & JUSTICE TABLE OF CONTENTS I. IN TRODU CTION ...................................................................................... 268 II. FAMILY LAW AS A PROMISING SITE FOR CULTURAL CLITERACY ....... 272 A . Fam ily Law 's Sex-Centricity ......................................................... 272 B. From Repression to Channeling ..................................................... 276 1. The Channeling Story .............................................................. 276 2. Channeling, Family Law, and Gender ..................................... 280 3. Channeling O ut Loud ............................................................... 283 C . The Sexual Pleasure V oid .............................................................. 285 D. Playing Out the Channeling Story .................................................. 291 1. Taking Family Law on its Own Terms .................................... 291 2. Marriage and Monogamy without Pleasure ............................. 298 a. She C an't Leave ................................................................ 298 b. L ow Expectations .............................................................. 299 c. "A daptive D esires" ........................................................... 300 d. Legitimacy and Repeated Channeling ............................... 301 e. Motherhood and Exhaustion ............................................. 302 Ill. ADVANCING CULTURAL CL1TERACY IN FAMILY LAW ........................... 304 A. Telling a Culturally Cliterate Channeling Story ............................ 304 B. Working With and Against Popular Culture .................................. 306 C. Other Family Law Applications and Implications ......................... 316 1. D ivorce G rounds ...................................................................... 317 2. Sexual H arm ............................................................................. 320 a. Consensual Relationships .................................................. 320 b. M edical M alpractice .......................................................... 323 3. Sexual A ids and Supports ........................................................ 326 a. Sex T oy s ............................................................................ 327 b. Reproductive Autonomy ................................................... 331 IV. CONCLUSION: BEYOND FAMILY LAW ON ITS OWN TERMS ................... 335 1. INTRODUCTION Sexual desire and sexual activity long have played central roles in family law, rationalizing its rules, informing its policies, and animating any number of calls for reform. From this sex-centricity, an ideal of monogamous marriage emerges as a focal point both for family law as it is, and for some of the most trenchant critiques of the field. Since the 1970s, formal gender equality, particularly within marriage, has also become a salient value in family law- purporting to correct legally imposed double standards of the past. Yet, despite the conceptual centrality of sexual desire and sexual activity, family law says nothing explicit about sexual pleasure. And despite the salience of gender equality in contemporary family law, the field remains preoccupied with TOWARD A "CULTURALLY CLITERATE" FAMILY LAW? performances that produce heterosexual men's orgasms while ignoring, marginalizing, or rejecting women's interest in orgasmic pleasure. As a result, family law today is marked by fundamental omissions and inconsistencies. This paper attempts to begin to fill the gap and to explore the incongruities. It does so by building on Susan E. Stiritz's Cultural Cliteracy: Exposing the Contexts of Women's Not Coming3 and by examining the relevance of Stiritz's analysis for family law. According to Stiritz, "'[c]ultural cliteracy' denotes what an adequately educated person should know about the clitoris, which is that it is a culturally despised body part because it is an obdurate reminder of women's independence and power and supports women's liberation." 4 Stiritz's provocative paper tracks the role of the clitoris and women's sexual pleasure through history, compares past and contemporary anatomical understandings of the clitoris, and then demonstrates in part through empirical studies based on her courses how cultural cliteracy can empower women and bring new insights to the reading of women's texts.5 Ultimately, Stiritz calls for the integration of "adequate understandings of the clitoris" 6 into a variety of different discourses, including law. My effort to take up this challenge-to grapple with both cultural and "legal cliteracy" brings together sex-positive feminist theory and mainstream family law. This project emerges from my more than thirty years of family law teaching and scholarship and from my recent experience as a student (along with7 about 20 undergraduates) in Stiritz's course, Contemporary Female Sexualities. Further, this project unfolds against a background of work by other scholars who have called attention to women's sexual pleasure in various legal contexts. In Theorizing Yes, Katherine Franke challenges feminist legal scholars "to pursue strategies that would elevate women's sexual pleasure to the same level as that enjoyed by men." 8 Similarly, legal scholars such as Kathryn Abrams,9 Brenda Cossman,'0 Janet Halley, 1 Linda McClain,12 and Marybeth Herald 13 (to mention 3. Susan E. Stiritz, Cultural Cliteracy: Exposing the Contexts of Women's Not Coming, 23 BERKELEY J.GENDER, L. & JUST. 243 (2008). 4. Id.at 244. 5. These studies attempt to assess sexual self-efficacy. See infra note 327 and accompanying text. 6. Stiritz, supra note 3, at 266. 7. In Spring 2007. 1 took this course, offered in the Program of Women and Gender Studies at Washington University. I decided to participate after reading an early draft of Stiritz's Cultural Cliteracy,supra note 3. 8. Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REV. 181, 208 (2001). 9. See, e.g., Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304, 351 (1995). 10. See, e.g., BRENDA COSSMAN. SEXUAL CITIZENS: THE LEGAL AND CULTURAL REGULATION OF SEX AND BELONGING (2007) [hereinafter COSSMAN, SEXUAL CITIZENS]; Brenda Cossman, Sexuality, Queer Theory, and "Feminism After": Reading and Rereading the Sexual Subject, 49 MCGILL L.J. 847 (2004) [hereinafter Cossman, Sexuality]. 11. JANET HALLEY, SPLIT DECISIONS: How AND WHY TO TAKE A BREAK FROM FEM[NISM (2006). BERKELEY JOURNAL OF GENDER, LAW & JUSTICE only a few) all have something to say about women, sexual desire, sexual activities, sexual performances, and contested understandings of all of these. Still, for several reasons, this paper offers new contributions to the conversation. First, Cultural Cliteracy provides a uniquely rich and evocative point of departure, documenting "Western clitoridectomy-both discursive and 14 actual" and exposing it "as part of systematic suppression
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