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Sex Abuse: An Issue in Human Sexuality

Dr. Patrick Fitzsimons

Research Director Auckland Medical Aid Trust 1998
Mail address: P.O. Box 29095, Greenwoods Corner, Auckland

This article is a revised extract from a research paper recently published in an international academic journal: ‘Michel Foucault: Regimes of Punishment and the Question of Liberty’, International Journal of the Sociology of Law (1999), 27, 379-399.

While not attempting to dismiss the reality of sexual violence, the paper explains the intensification of the sexual abuse discourse as contingent upon an incitement to talk about it in what the French philosopher, Michel Foucault, calls a ‘confessional society’.

We live in a confessional society where every sexual act and thought must be brought to light, catalogued, and examined. In the Christian mode, confession is buttressed by the activity of the Priest, who, on God’s authority, proclaims salvation in such ‘findings’. The individual therefore implicates him or her self when they (re)construct and confess such events and declare guilt. The idea of ‘self as truth’ derived from the confessional mode, is the antithesis of the notion of self held by the ancient Stoics who simply examined their consciences and declared who they were for self accounting purposes rather than for renouncing themselves; it was an ethics of self. Christianity adopted the Stoic form but introduced self-renunciation. Since our era is one of rapid change, the self is entrepreneurial and constantly reconstituting itself under the human sciences. Even so, as Foucault notes, the knowledge of self as truth still firmly embedded in sexuality. These practices are powerful tools for teaching the connection between knowledge of sex and erotic pleasure.

‘Sex abuse’ has recently become an important issue. The number of reported cases of sexual abuse in New Zealand for instance, has increased dramatically. The Waikato Times (9 November 1994) reports a spokesperson from Accident Rehabilitation and Compensation Insurance Corporation as saying that over one four month period as many as 500 people a week are filing claims for sexual abuse. A Government spokesperson believes that the claims reflected people’s awareness and greater willingness to talk about sex abuse rather than a rise in incidence. The basis of this belief was not examined. According to one ‘expert’ (Miriam Saphira in Metro Magazine, 1993), the percentage of the female population who are victims of sexual abuse in New Zealand is about 25 percent.

The New Zealand experience reflects a worldwide phenomenon. Scott (1996) sees the issue emerging in the USA in 1987 when some forms of sexual harassment were made legally actionable. On the basis of a government funded research project in the United States into the relationship between images of children, crime and violence in Playboy, Penthouse and Hustler magazines, Reisman (undated) concluded that “in sum, these magazines paired adult female nudity with images of children, crime and violence, for millions of juvenile and adult readers over decades”. The McMartin’s Preschool case on California in the early 1980’s involved 208 counts of child molestation and led to the longest and most costly court trial in U.S. history and ended without a conviction (Meyer, 1997: 3). The case of Judge Clarence Thomas from Oklahoma, accused by Anita Hill of sexual harassment dominated American press through 1991 and 1992. Then came accusations by twenty four women against Republican Senator Bob Packwood, the sexual abuse of a large group of women by men of the US Navy at the infamous Tailhook convention, and more recently in 1994 the accusations against President Clinton by Paula Jones that he sexually harassed her at Little Rock in 1991. The latest and most famous of all, of course, is the case of Monica Lewinsky and Bill Clinton (again).

Contrary to popular imagination, general propositions in law do not necessarily decide concrete cases. Cotterrell (1989: 211) for example, refers to “the general apparatus of legal doctrine as transcendental nonsense [and as] mystification [and] because of the manipulability of concepts, legal texts are infinitely interpretable.” Ward (1998) says that critical legal studies are not alone in accepting the realist idea that general concepts in legal doctrine do not determine outcomes; the liberal law tradition relies on human and social sciences that themselves are based on a justification of a particular kind of society. Therefore, the influence of the human and social sciences upon legal doctrine is far from neutral. Curzon (1992: 261 argues that “on several grounds, liberal jurisprudence stands condemned; at best it is muddled, at worst it is a cloak for class interests”.

Definitions of sex abuse have been changing. Scott (1996 xvi-xvii) for instance, points out that in 1987 the most widely accepted definition of sexual abuse was “the involvement of dependent developmentally immature children and young people in activities which they cannot fully comprehend, to which they cannot give informed consent, and which violate the social taboos of the culture”. By 1989 the law in the United Kingdom gave mandatory guidance to professionals within its ambit; sexual abuse had been defined as “actual or likely exploitation of a child or adolescent. The child may be dependent and/or developmentally immature” (Scott, 1996). There are many interpretations that could arise out of such a definition: e.g., what counts as evidence for ‘likely’; what constitutes exploitation? These issues are far from resolved. Quite rightly then, Scott (1996: xvii) asserts that because of definitional problems the field of research into child abuse is fraught with difficulty. She writes, “as definitions became more restrictive, there is some evidence that prevalence appears to fall”. This partly explains the wide variation in the data on the prevalence of sex abuse; logically the restriction in definition means there is less of whatever counts as sex abuse. According to recent research (Scott, 1996: xvii), “the rates (of abuse) are highly discrepant and vary from 3 to 90 percent”. These discrepancies in definition became a matter for governmental concern in England in 1995 when it was reported that research found that one in six adults claimed to have suffered sexual abuse in childhood. As a possible explanation for this claim, Scott (1996: xvii) offers, “no distinction had been drawn between reports of rape, molestation and indecent exposure”. Against this claim were others asserting that too narrow a definition of abuse works against children’s rights. But the capacity to construe almost any situation as abusive could result in the statistics being ignored and/or the issue not being taken seriously.

Psychiatry provides a further insight into the problematic knowledge claims of the human sciences. The DSM III manual notes that trauma must be an event which lies outside the normal pattern of human experience and which would clearly cause suffering in virtually anyone. That meant trauma would require a social interpretation such that there was agreement about what exactly constitutes ‘suffering in virtually everyone’. By the time the DSM IV manual was published in 1994, it was no longer the observers/(psy)experts [(psy)chologists, (psy)chiatrists and (psy)chotherapists — see e.g., Donzelot, 1979)] who determined what should be regarded as traumatic, rather it was limited to the individual’s own interpretation. Even if that personal interpretation was free floating, in order to count as ‘sex abuse’ it must still align itself with the categories provided in the manual. That provides the same outcome as the DSM III in the sense that the categories in the manual govern what can be said.

In the case of either the DSM III or the DSM IV, we would be dealing with a memory. The individual’s speech is taken as the evidence although, given the problems of memory as argued by Hacking (1994. 1995), there could very well have been no event. The only requirement under this confessional mode is that individuals constitute themselves subject to the categories provided. Even though in this case, it is the victim who speaks, under the DSM IV, it is still the experts who set the categories. The logic does not require verification or evaluation of the statements except to ensure a ‘proper’ fit under the classification system. Given the massive increase in categories from the DSM III to the DSM IV (in certain places it might be called ‘progress’), such knowledge is infinitely malleable, highly productive, and therefore problematic.

The production of knowledge has always been a problem. In the case of the Witches of Salem, under an ancient rationality of trial by ordeal, a woman who confessed was deemed to be a witch as also were those who, by not confessing, were said to be in denial and therefore, guilty. In a recent re-interpretation of the case, Brenner, (1976) reports that by the time Governor Phipps called a halt to the proceedings in 1692 and decided that there were no such things as witches, 19 people had been hung, 100 were awaiting trial, more had been accused and not yet charged, and a further 50 had confessed to witchcraft. Later analysis of the phenomena of witches attributed it to economically based political factionalism and struggles for control. Nietzsche (Genealogy p. 129) points out that ‘sinfulness’ is not a fact, merely an interpretation of a physiological depression. He says the fact that someone feels guilty or sinful is no proof they are right. As he says, “recall the famous witch trials: the most acute and humane judges were in no doubt as to the guilt of the accused; the ‘witches’ themselves did not doubt it — and yet there was no guilt (p.129). In relation to sex abuse, the individual interpretations under the categories of the DSM IV where victims alone ‘recall’ a memory (albeit with the help provided by psychiatric categories), may or may not be based on an event in real life. In order to establish a credible standard proof in other parts of the law, corroboration of others would also be required. But, by definition, under the DSM IV manual, all that is required is the confession of the victim. This may partly explain why the noted philosopher and historian of statistics, Ian Hacking (1995), is able to say that the empirical evidence around of sex abuse is problematic if not incoherent.

Under a liberal state, security depends in part on knowledge developed by experts in the human and social sciences. This has made expertise integral to defining, disclosing and prosecuting sex abuse. The problem for liberalism is that sex abuse is contingent upon the human and social sciences, and as they change, so too do the concepts they produce. This paper suggests that the discourse of sex abuse is a well-intentioned contemporary political project and theoretical position that inadvertently redraws the very configuration and effects of power that it seeks to vanquish. This provides one likely partial explanation for the rise of the sex abuse discourse.

Further reading

• Brenner, F. (1976). The Puritan Experiment: New England Society from Bradford to Edwards. New York: St Martins Press.
• Brown, W. (1995). States of Injury: Power and Freedom in Late Modernity. New Jersey: Princeton University Press.
• Cotterrell, R. (1989). The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. London: Butterworths.
• Curzon, L. (1992). Q & A Series Jurisprudence, (2nd ed). London: Cavendish.
• Donzelot, J. (1979). The Policing of Families. Trans. R. Hurley. New York: Pantheon Books. (With a Foreword by G. Deleuze).
• Foucault, M. (1978). The History of Sexuality: Vol 1 – An Introduction. London, England: Penguin.
• Hacking, I. (1994). Memoro-politics, trauma and the soul. In History of the Human Sciences Vol. 7 No. 2 pp. 29-52.
• Hacking, I. (1995). Rewriting the Soul, Princeton: Princeton University Press
• Meyer, J. (1997). Inaccuracies in Children’s Testimony: Memory suggestibility or Obedience to Authority? London: The Haworth Press.
• Nietzsche, F. (1966). On the Genealogy of Morals (trans. W. Kaufman & R. Hollingdale). New York: Vintage Books.
• Reisman, J. (undated). Images of Children, Crime and Violence in Playboy, Penthouse and Hustler. Prepared under Grant no. 84-JN-AX-KOO7 from the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Assistance, Research and Statistics, U.S. Department of justice. http://www.iglou.com/first-principles/abstract.html
• Scott, A. (1996). Real Events Revisited: Fantasy, Memory and Psychoanalysis. London: Virago.
• Ward, I. (1998). An Introduction to Critical Legal Theory. London: Cavendish.