by Robert E. Rodes, Jr. Durham, North Carolina: Carolina Academic Press, 2006. 152pp. Cloth. $24.00. ISBN: 9781594601828.
Reviewed by Isaac West, Department of Communication and Culture, Indiana University. Email: inwest [at] indiana.edu.
Robert E. Rodes’ ON LAW AND CHASTITY advances a programmatic agenda for recuperating the legal regulation of sex outside of marriage as one way to restore moral clarity and order to our contemporary culture. Rodes’ work, an updated version of a law review article originally printed in 2001, thoroughly traces the steady erosion of the promotion and/or consideration of chastity in a variety of legal arenas including obscenity regulations, sexual harassment protections, divorce and parental custody cases, employment discrimination lawsuits, and rape prosecutions and shield laws. The extensive documentation of cases, statutes, and regulations across states and nations is impressive, and the chronological recounting of the legal lineage of these issues succinctly reviews the genealogy and stakes of our current cultural-sexual milieu. Organized around four strands of legal theory that have undermined the legitimacy of state-enforced chastity (instrumentalism, libertarianism, free speech, and feminist), Rodes’ responses to these theories present an extensive argument for the return of chastity as a social norm.
With that said, I have struggled with this review for a number of reasons. First, I am wary of romanticizing the past. The good old days were not all that good for a number of people, especially those who were not privileged, upper- to middle-class, white, straight, married men. Moreover, Rodes’ resurrection of the cultural mythology associated with chastity necessarily relies on a number of gendered, racialized, and heterosexist notions that cannot be justified except through a self-righteous claim to a monopoly on morality. Second, I cannot align myself with Rodes’ perspective or proscriptions given his hostility to any sexual activity outside of legally-sanctioned heterosexual civil marriages. Here I do not mean to suggest that any of us can ever really act as objective readers, but I take particular offense to his suggestion that “all homosexual encounters are wrong,” basing his opinion in “academic arguments” that “oppose homosexual practices by relating the goodness of the sex act to its effect of establishing and supporting a personal bond that instantiates the metaphysical complementarity of male and female—a complementarity more profound and pervasive than the obvious one between alternative forms of plumbing” (pp.96-97). So while I admit my lack of objectivity from the start, I do want to provide a fair reading of Rodes’ argument. Thus, in fairness to Rodes, I want to outline first his investment in chastity as a normative project, then I will address his responses to the critiques of chastity, and finally I end with a critique of the sexual normativities underwriting his project and question the efficacy of his suggestions. [*520]
Strictly defining chastity as penile-vaginal penetrative intercourse between a legally married couple consisting of one man and one woman, Rodes suggests that a return to the sexual and legal past would decrease sexual violence and prevent moral decay. Rodes asserts that in the United States of America in the 1950s: “it was well understood that chastity was the prevailing social norm. Whatever their practices, everyone knew what the standard was: married people were to have sex only with their spouses; the unmarried were to abstain” (p.3). Quickly conceding the fact that men and women violated these norms with some frequency, Rodes argues that the cultural mythology of chastity “afforded a certain amount of protection against both sexual harassment and date rape . . . In or out of the workplace, a sexual overture that bypassed the dating conventions was commonly regarded as an insult not only by the person addressed but also by everyone who learned of it. And within the conventions, it was not too difficult to avoid the crossed signals that often presage date rape” (p.6). Setting aside the troublesome implication that date rape victims invite sexual violence because of “mixed signals,” a move that blames the victim rather than the perpetrator, Rodes fails to provide any evidence for this empirical and causal claim, settling instead for personal observations, such as “I suspect that sexual irregularities were somewhat less common than they are today” (p.16). Rodes questions Alfred Kinsey’s findings, but this alone does not validate Rodes’ personal observations and memories. Thus, through a romanticization of 1950s morality, Rodes asks us to accept the proposition that legally-sanctioned chastity would lessen the occurrence of sexual violence and immoral behaviors such as divorce and the birth of children out of wedlock. Rodes’ personal nostalgia for the family values of the 1950s may have a particularly strong suasory appeal to cultural (and legal) conservatives threatened by the diminution of their cultural hegemony. However, as an academic argument, Rodes’ causal claims between the value of chastity and social order and health are difficult to accept given the numerous historically-based studies that dispute the empirical truth of this cultural mythology (for two of the best examples of this work, see Coontz, 1992; Meyerowitz, 1994).
To create a case for the return to chastity, Rodes answers four lines of legal critique that he credits with lessening the law’s ability to regulate chastity. I will present them in the order they are presented. According to Rodes, the first line of legal thought that devalues chastity is instrumentalism, or the cost-benefit analysis of enforcing chastity. Rodes quickly dispenses with this critique as he is less interested in measuring the efficacy of the law by the number of prosecutions, opting instead to understand the law as a moral code that guides and constrains behavior. As he states, “even if we cannot abolish a given immoral practice, we can hinder it in a number of different ways, and often do so” (p.107). The issue of state-sanctioned morality surfaces again in the second line of critique, libertarianism. Rejecting the idea that the state must remain neutral with regard to issues of [*521] morality, Rodes underscores the fact that both John Stuart Mill and Herbert Lionel Adolphus Hart, important touchstone for libertarian thought, can be generously read to support the kind of coercion envisioned by a return to chastity. Free speech, a cousin of libertarianism and the third line of critique, suggests that people ought to be able to express themselves as they see fit especially with regards to mass-mediated depictions of sex. Rodes dispatches this claim with the argument that sexual expression is different because “sex is unique among the human experiences, and the response to material with sexual content is unique among human response.” Thus, unlike other forms of expression, sexually-suggestive material should be more closely regulated to prevent social depravity. Finally, Rodes addresses the feminist critique of chastity which he characterizes as “bitter” (p.29). Reducing legal feminisms to a unified and singular community that ignores the diversity of feminisms, Rodes claims that the critique of double-standards means that “we can set lower standards for women or we can set higher standards for men.” He continues on, “A good many feminists,” an assertion for which he provides no citation, “seem to have chosen the former alternative. I follow a good moral tradition in choosing the latter” (p.111).
In the final section, Rodes suggests a number of reforms that would rejuvenate the legal investment in chastity. These include limiting privacy rights to those things performed in private (meaning the home); criminalizing “fornication, adultery, and sodomy in every case,” which Rodes assures us are meant more as moral deterrents rather than prosecutable crimes because “as long as prosecutors are accountable to the electorate, they are unlikely to engage in a wholesale attack on illicit sex” (p.120); narrowing the grounds for no-fault divorces; prohibiting same-sex marriages along with civil unions and domestic partnership; and limiting obscenity. As for the last suggestions, Rodes argues that the “unchaste have no right to equal access to the social ambiance, no right to compete on equal terms in the marketplace of ideas” because they “like racists” and “Communists,” among others, “are entitled to free speech, but they have no right to insist that the society into which they introduce their speech must be one whose official organs are neutral as between them and their opponents” (p.133). According to Rodes, the totality of these reforms would strengthen the moral bonds of our culture and thus reduce the chances for sexual violence, harassment, and prevent the collapse of heterosexual civil marriage as a foundation of our culture.
In the end, Rodes’ reliance on sexual shame as a deterrent to sexual activity is wholly unpersuasive—and, to be honest, I am not sure that his goal is to persuade as much as it is to strengthen the beliefs of those predisposed to agree with him from outset. The book adopts a harsh tone toward anyone who does not already agree with him, the evidence in favor of the cultural effectivities of chastity is anecdotal, and Rodes’ research is in many cases outdated and thus fails to engage current debates about issues such as feminism, sexual assault, and harassment. Even more [*522] problematic, in the first few pages, Rodes admits that the cultural ideal of chastity did not prevent sex or sexual aggression. Thus, it is not altogether clear why sexual shaming would be any more effective today than it was in the 1950s. Finally, Rodes fails to engage any scholars writing in sexuality studies; whether it is an accidental oversight or a dismissal of this branch of scholarly inquiry, this omission is a notable one. While many of these scholars are not writing in legal journals, the regulation of sexuality and the cultural effectivities of sexual shame are interdisciplinary discussions that complicate and trouble Rodes’ conclusions—namely that sexual shaming will positively benefit everyone. They remind us that already vulnerable populations (teenagers and gays/lesbians/bisexuals/transpeople) are most likely to be the ones who are scapegoated and threatened, often physically, by those who see themselves as the enforcers of sexual morality (Sedgwick, 1993; Warner, 1999). Insulation from these critiques of shame allows Rodes to assert that sexual shame benefits all of us. However, shame is never spread evenly among a citizenry, and we need to ask whether the legal cure is worse than the cultural illness. It may be even more wise to ask a more fundamental question such as “Is there really a sexual crisis that must be legally managed by a return to chastity and sexual shaming?” Upon reading this book, one that trades more in cultural nostalgia than in empirical data, I find it difficult to accept either the premise that we need to desexualize the public sphere or that a legal agenda tied to chastity’s return (or, at least its mythical return) would necessarily create a world with less rape, sexual harassment, or unwanted pregnancies.
Finally, if one is interested in mining this book for its history of chastity, there are many useful connections drawn between a number of disparate and seemingly independent cultural formations. For those interested in this line of Rodes’ argument, I would suggest reading the law review version listed below—the book version has only minor changes consisting primarily of updated footnotes to reflect changes in case law.
Coontz, Stephanie. 1992. THE WAY WE NEVER WERE: AMERICAN FAMILIES AND THE NOSTALGIA TRAP. New York: Basic Books.
Meyerowitz, Joanne (ed.). 1994. NOT JUNE CLEAVER: WOMEN AND GENDER IN POSTWAR AMERICA, 1945-1960. Philadelphia: Temple University Press.
Rodes, Jr. Robert. 2001. “On Law and Chastity.” 76 NOTRE DAME LAW REVIEW 643-739.
Sedgwick, Eve Kosofsky. 1993. “Queer Performativity: Henry James’s the Art of the Novel.” 1 GLQ 1-16.
Warner, Michael. 2000. THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE. Cambridge, Mass.: Harvard University Press.
© Copyright 2007 by the author, Isaac West.