UC Irvine UC Irvine Previously Published Works Title Sex laws and sexuality rights in comparative and global perspectives Permalink https://escholarship.org/uc/item/8xh4f857 Journal Annual Review of Law and Social Science, 9(1) ISSN 1550-3585 Authors Frank, DJ Phillips, NE Publication Date 2013-11-01 DOI 10.1146/annurev-lawsocsci-102612-134007 Peer reviewed eScholarship.org Powered by the California Digital Library University of California LS09CH12-Frank ARI 4 October 2013 11:16 Sex Laws and Sexuality Rights in Comparative and Global Perspectives David John Frank and Nolan Edward Phillips Department of Sociology, University of California, Irvine, California 92697; email: [email protected] Annu. Rev. Law Soc. Sci. 2013. 9:249–67 Keywords First published online as a Review in Advance on sexuality, law, human rights, globalization August 19, 2013 The Annual Review of Law and Social Science is Abstract online at http://lawsocsci.annualreviews.org This article seeks to explain the emergence of a new field of study ori- by University of California - Irvine on 11/08/13. For personal use only. This article’s doi: ented toward sex laws and sexuality rights in comparative and global 10.1146/annurev-lawsocsci-102612-134007 perspectives. We argue that this field comes into focus because of three Annu. Rev. Law. Soc. Sci. 2013.9:249-267. Downloaded from www.annualreviews.org Copyright c 2013 by Annual Reviews. changes in the social context: the introductions of sexuality into sex, of All rights reserved human rights into national laws, and of global into comparative per- spectives. Each turn of the social kaleidoscope generates new objects of and rationales for scholarly analysis, along with new ways and reasons to think about existing objects of analysis. Together, these contextual changes inaugurate the global study of sexuality rights and invigorate the comparative study of sex laws. Theoretical shifts accompany the empirical developments. Phenomenological approaches arise alongside their realist counterparts. The consolidation of this new field of study is important not only on academic grounds: It suggests the dynamics of a wider field of policy and practice. 249 LS09CH12-Frank ARI 4 October 2013 11:16 INTRODUCTION BACKGROUND: AN The past decade has witnessed a sharp rise in INCIPIENT FIELD scholarship on sex laws and sexuality rights in Our first main argument is that the study of comparative and global perspectives. Matters sex laws and sexuality rights in comparative and once unspeakable, and even inconceivable, have global perspectives was for a long time blocked entered the ivory tower. One may now, for ex- and is only now coalescing into a coherent field ample, publish a history of bestiality laws in of study. Indeed, we were surprised by the ex- Sweden (Rydstrom¨ 2003) or write an article on tent to which this was the case. When we began the legal implications of Southeast Asian gonzo our review of the literature, we expected to find porn (Shimizu 2010). This was not always the an old comparative literature on sex laws and case and reflects broader shifts in the social con- a new global literature on sexuality rights. We text. were wrong. Both legs of the literature are quite In this article, we analyze and review the new. constitution of this new field of study, paying This owes to the fact that sex was off-limits particular attention to its social foundations— to mainstream social scientists for most of the that is, the conditions giving rise to its imag- twentieth century, as it involved matters too ination and institutionalization—and the con- prosaic, too private, and too taboo to warrant sequences thereof for the body of scholarship. serious scholarly attention. One could analyze Our core arguments are threefold, and we assert phenomena such as sex in the social structure the following: (Parsons 1942) or sex in small groups (Kanter 1977), but the references were overwhelmingly 1. This is a field that was blocked and is only to biological sex—a naturalized opposition be- now emerging. There is still not much tween male and female—rather than to sex per of an established literature, in any strict se. When the scholarly spotlight did shine on sense, to review. sex, as in the work of Malinowski and Freud, 2. This is a field that is emerging in response it was kept at a safe distance, located in a far- to interrelated changes in the wider social away tribe or in the nether regions of the in- context: the infusions of sexuality into sex, fant subconscious. Scholarly pursuits thus were of human rights into laws, and of global hamstrung. into comparative perspectives. The small literature that flouted these gen- eral conventions focused far more on personal 3. This is a field that reflects its social foun- than legal issues, as seen in the landmark—and dations. Each turn of the wheel reveals inflammatory—studies by Kinsey et al. (1948, 1 by University of California - Irvine on 11/08/13. For personal use only. new objects and objectives of study and 1953). Unless the subject were deviants or psy- enlivens old objects and objectives. Thus chopaths (Goldstein & Kant 1973, Sutherland emerge two overlapping empirical litera- Annu. Rev. Law. Soc. Sci. 2013.9:249-267. Downloaded from www.annualreviews.org 1950), sex and sexuality remained sequestered tures: studies of sexuality rights in global in private spaces—in bedrooms, under cov- perspective and studies of sex laws in com- ers, and at confessionals (Giddens 1993). They parative perspective, with loosely corre- hardly breached the sociolegal consciousness. sponding phenomenological and realist Hence, the literature remained limited. theoretical approaches. Accordingly, our main contributions are to ex- 1The Kinsey et al. books rank among the most controversial plain the rise and articulate the features of this of the twentieth century. They caused public outrage and new field of study. Along the way, we perform were widely denounced and banned. Reflecting back on the the conventional tasks of a review, assessing the storm, Edward Laumann said, “People took their reputations in their hands if they attempted to pursue [sex research]” existing literature and identifying its shortcom- (quoted in CBS 2009). Even 40 years later, Laumann et al.’s ings and future possibilities. (1994) follow-up study ignited a firestorm. 250 Frank · Phillips LS09CH12-Frank ARI 4 October 2013 11:16 As the social strictures began to lift in the In particular, we touch only lightly on the late 1960s and early 1970s, sex research stirred. territories of reproduction and population. But the early work tended overwhelmingly to They encompass abortion laws (long associ- have a domestic focus (e.g., Gagnon & Simon ated with women’s rights and sexual liberation), 1968). Comparative and global perspectives on China’s single-child and other population- sex or sexuality—much less on sex laws or sexu- control plans, the eugenics movement, and the ality rights—remained scarce. The data for such antimiscegenation policies of various countries studies were difficult to collect, but more im- (see, e.g., Ramirez & McEneaney 1997, Mattar portantly, the rationales for conducting them 2008 on abortion; Robinson 2011 on popula- were thin [see Hirschfeld 2000 (1914) for a dra- tion). We also skirt the vast territory of gender, matic early exception]. A handful of compar- despite the close sociohistorical association be- ative studies broke the mold, but even these tween gender and sexuality (Richardson 2007). rarely extended their gazes beyond developed Thus, legal issues encompassing masculinity, Western democracies (but see Findlay 1974, femininity, and gender identity, whether they Smith 1974). The rest of the world remained are conceived in traditional or contemporary shrouded. terms, fall outside our domain despite their ob- From these obstructed beginnings, a field is vious importance and salience (see, e.g., Boyle now beginning to emerge. In the article that 2002 on female genital cutting; Robson 2007 follows, we review the growing literature on on transgender marriage). sex laws and sexuality rights in comparative and global perspectives. As a first order of business, Law and Rights we define our terms to demarcate the bound- We concentrate our discussion on laws and aries around this developing field. We then seek rights guaranteed by the nation-state system. to explain the emergence of the field in terms This means we largely exclude regulations ema- of the evolving social context. This helps us ac- nating from other entities, including communi- count for the literature’s empirical and theoret- ties (e.g., customary law), religious bodies (e.g., ical proclivities, and it suggests future research canon law and sharia2), and organizations (e.g., opportunities. workplace regulations). It also means we ex- clude a variety of informal social controls, such as stigmatization, ostracism, and wife burning. BOUNDING THE These auxiliary forms of regulation are power- INCIPIENT FIELD ful and significant (e.g., Allman et al. 2007), and Given its emergent quality, the field of sex laws we suspect they respond to the same societal and sexuality rights in comparative and global by University of California - Irvine on 11/08/13. For personal use only. transformations affecting laws guaranteed by perspectives is difficult to approach without the nation-state system (see, e.g., Ndulo 2011 articulating some working boundaries around on recent changes in customary law). But for the Annu. Rev. Law. Soc. Sci. 2013.9:249-267. Downloaded from www.annualreviews.org it. We intend for our boundaries to be flexible sake of manageability, we mostly bypass them enough to accommodate historical changes, in this article. yet firm enough to serve as useful heuristics. Although not everyone will agree with all our choices, most will agree that boundaries are Comparative and Global Perspectives necessary in order to proceed.