Katherine Franke Confuses Allegations of Abuse With "Sex Panic"

To contact us Click HERE
(By Andrew MacKie-Mason)

Katherine Franke (Law, Columbia) wrote a very odd post at Balkinization last week, in which she linked the public reaction to David Petraeus's extramarital affair with the outrage over accusations that Kevin Clash (aka Elmo) had sex with minors. Her unifying theory is that these are both cases of "sex panic:"

Thomas Friedman famously observed that “9/11 made us stupid” – well, sex, it seems, makes us even stupider. At precisely the moment when gay people’s right to marry seems to be reaching a positive tipping point, sexuality is being driven back into the closet as something shameful and incompatible with honor (in the case of Petraeus) or decency (as in the case of Clash). How did we get to this curious place, a place with a politics that would be almost unimaginable to the sexual freedom fighters of Stonewall? Once here, should lesbian and gay-rights activists see their cause to include questioning the ongoing utility of sexual panics? Who, if not us, will come to sex’s defense each time, in the name of decency and security, it is used as a cudgel to justify public and private forms of vigilantism?

Now I would agree that the public gets too worked up over the extramarital affairs of public figures (except when those same same public figures are ones who spend much of their time in public life hypocritically opposing marriage equality in the name of "family values" and the "sanctity of marriage"). Of course, extramarital affairs of high-ranking officials do create security concerns, since they create substantial opportunities independent of the negative public reaction. Still, the media and the citizenry overreact to these revelations.

But what Kevin Clash was accused of doing is entirely different. Franke's description is bizarre to read for anyone who heard about the accusations as they were coming out:

The controversy around the Elmo sex scandal pushes the point even further: it’s safer to be gay than an adulterer so long as “being gay” means being a respectable husband or wife. When the sex part of homosexuality threatens to break out into the open or break away from the domestic family you’ll find you’re out there on your own, vilified for having acted indecently. We don’t know yet whether the young men Clash is accused of having sex with were underage at the time they began a sexual relationship with him, the legal process will get to the bottom it. But I am confident that Clash would have been driven out of his role as Elmo even if all that was proven was that he liked sex with men whom he found on the internet who were thirty years younger than he was. This kind of “sexual preference” might not be illegal but it would likely have triggered a sex panic nonetheless.

The Clash scandal did not have to do with homosexuality. It had to do with a man in his thirties being accused of preying on teenagers. To clarify, I'm inclined to agree with J. Bryan Lowder at Slate that the accusations don't fit the technical definition of pedophilia: the youth that Clash allegedly slept with were 15 and 16: teens, not children. But there is an important sense in which the word "pedophilia" captures what we find objectionable about the alleged relationships: they appear to involve a sexually mature and powerful adult taking advantage of sexually immature and impressionable teens. It's not, perhaps, "pedophilia," but it's wrong for the same reasons. Lowder thinks that the reaction to the accusations against Clash is evidence of "our weird cultural investment in teenage 'innocence.'" Not at all. One need not think that teenagers are sexually innocent (one need not see anything wrong, for instance, with two fifteen-year-olds having sex) in order to recognize that teenagers are sexually immature, and hence to see something wrong with a man in his thirties having sex with people who are 15 or 16.

There's something else that bears pointing out about Franke's post. Drawing broad conclusions (like the hypothesis that America suffers from "sex panics") from anecdotal evidence (i.e. Petraeus and Clash) is problematic enough. But Franke didn't just use anecdotal evidence; she used fictional anecdotal evidence. When she said "But I am confident that Clash would have been driven out of his role as Elmo even if all that was proven was that he liked sex with men whom he found on the internet who were thirty years younger than he was," she was blithely asserting that the same result would have occurred even if one of the very relevant facts about the situation were different. There's nothing to support that claim except for the conclusion that she's trying to use it as evidence to support. Around and around we go.

But so long as we're relying on intuitions about public reactions, let's consider this more carefully. If Franke means that Clash would have been treated as he was if all that happened was that he was a 35-year-old man sleeping with 15-year-old boys, she's probably right. The American public, reasonably enough, sees such relationships as presumptively abusive. But would Clash have been treated the same way if he was a 45-year-old man sleeping with 25-year-old men? I highly doubt it. Such a relationship would bear all of the characteristics that Franke thinks are defining here: homosexuality, extramarital sex, internet hook-ups. But I think Franke would be extremely hard pressed to argue that such a revelation would have had damaging effects on Clash's career. Extramarital, homosexual, internet-originating sex just isn't that big a deal anymore. The exploitation of minors still is.