WDW387 January 24 2012.docx

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19 Apr 2012
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January 24 - Lecture 3 - Gay Law in Canada, UK and USA
January-24-12
1:18 PM
'The crime that must not be named among Christians' - Blackstone
Theorizing Sexuality and Sexual Governance: Foucault
Michel Foucault: The History of Sexuality v. 1
-Governance of sexuality shifted in late 19th century from governing acts using criminal law style rules
(secular or religious) to seeing sexuality as a key dimension of personal identity, a/the truth of the
modern self
-expert knowledge constitutes identities
-sexuality as identity as modern concept
Research Since Foucault
-Critiques of Foucault's focus on experts
-George Chauncey, Gay New York: proliferation of sexual identities in certain subcultures (e.g. trade,
fairies)
-Ann Stoler, Race and the Education of Desire and other work in postcolonial studies: colonial
governance shaped imperial countries' practice
Themes of the Lecture
Sodomy and anti-gay laws do not have a clear object: law's target moves amongst identities, desires,
acts, and speech acts
Law can help bring new social identities into being (constitutive role of law)
Criminal law can be completely at odds with other areas of law and policy (e.g. family law, military law,
insurance benefits)
Henry VIII: struggle between international Church and national state re jurisdiction over moral
regulation
-new felony of buggery 'with either man or beast'
-Christian notion of unnatural sex, but now under purview of state course
-not targeting gay men in particular, just theory of natural reproductive law between man and woman
(Aquinas)
-putting sexual offences under state law from church law
English Sodomy: Sir Edward Coke and William Blackstone
-Coke's phrase: 'the sin not to be named among Christians' (phrase in Latin in English book)
-Blackstone (1760's): repeats Coke's 'sin' but adds 'crime'
-Blackstone's non-definition: 'the infamous crime against nature, committed with either man or beast'
-should only be prosecuted if evidence is strong (fear of blackmail, especially given class system)
Blackstone on the Delicacy of English Law
'I will not act so disagreeable a part, to my readers as well to myself, as to dwell any longer upon a
subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in
this respect the delicacy of English Law ADD HERE
1842 English Appeal Court Case
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