"Police Free Gay Slaves":

Some Juridico-Legal Consequences of the Discursive Distinctions Between the Sexualities [1]

By Ben Attias
California State University, Northridge

On 11 January 1995, the European Commission on Human Rights agreed to hear a complaint against Great Britain by five gay men imprisoned for sado-masochistic sexual practices in the infamous "Operation Spanner" case. [2] This international hearing will address the vital question, "If a man wants his scrotum sandpapered in the privacy of his own home, is it anybody else's business?" [3] This paper is an attempt to read the discursive apparatus mobilized by this question in the larger context of the history of the Anglo-American juridico-legal repression of sexuality. The scope of this paper does not permit a thorough investigation of this history, but instead addresses itself to certain moments of it in order to make a few observations about the production of erotic subjectivities through juridico-legal discursive machinery. [4]

In an exchange entitled "The Confessions of the Flesh," psychoanalyst Jacques-Alain Miller had the following to say to Michel Foucault:

I can see you are looking for the devices that will enable you to erase the break that is located with Freud. You recall how at the time when Althusser was proclaiming the Marxian break, you were already there with your eraser. And now Freud is going to go the same way, at any rate I think that's your objective, no doubt within a complex strategy, as you would say. [5]

The hostility that Miller shows toward Foucault in this interview marks a fundamental tension between Foucault and psychoanalysis that continued at least until Foucault published L'Usage des plaisirs. During the interview, Foucault locates Freud, as Miller predicts, as a moment or "episode" (211) in the machinery of the confession and, more generally, the "putting into discourse of sex." Psychoanalysis, at least in La Volenté de savoir, is simply one form among others of talking about sex. Yet even in this interview, a certain ambivalence is prefigured which is, I think, useful in understanding the shift in the project which takes place in the second volume of the History of Sexuality. "The strength of psychoanalysis," he tells Miller, is not the putting into "truth" of sex, which occurs with Tertullian, nor is it the medicalization of sex, which occurs with Charcot; no, the strength of psychoanalysis "consists in its having opened out on to something quite different, namely the logic of the unconscious," (213). Miller points out that this formulation is "very Lacanian" and that it implies that "sexuality isn't historical in the sense that everything else is ... There isn't a history of sexuality in the way that there is a history of bread," (213). Of course, what Miller misses in this interview (or, if you like, refuses to acknowledge), is that what is important for Foucault is not whether Freud constitutes a break but what has been done with Freud -- precisely the construction of a sexual subjectivity that is the continuation of the effects of the truths Christianity produced when it produced sexuality. Freud's mark on history was to take the apparatus of sexuality that had been codified by the church literally, "and [to] then [erect] on its basis the Interpretation of Dreams... If I were to be very pretentious, I would say that I'm doing something a bit similar to that," (218).

What is striking about this exchange is not so much its thinly veiled hostility as the object of its primary cathexis -- the symbolic value of the proper name "Freud." For another, perhaps more fundamental, tension between the problematics addressed by psychoanalysis and Foucaultian genealogy is elided throughout the entire interview -- the so-called "repression hypothesis," which much of The Will to Know is dedicated to addressing. According to Foucault, power functions not by repression primarily, but rather by the discursive production of sexual identities. This does not, of course, mean that sexuality is not repressed in Western Cultures. As Gayle Rubin argues in "Thinking Sex," Foucault's analysis of the repression hypothesis in Volume 1 of the History of Sexuality does not deny the existence of political repression of sexuality in Western societies. [6] In fact, Western history is rife with instances of sexual repression induced by moral panic. What Foucault does is point out that the institution of psychoanalysis has not liberated us from this repression, and has instead worked hand-in-hand with the state to further refine and discipline its scope.

On 10 April 1976, 107 members of the Los Angeles Police Department swarmed over a Hollywood bathhouse to arrest 40 men (after detaining 80) for violating an 1899 California law against slavery. [7] The men arrested were participating in a mock slave auction as a fund-raising benefit for gay organizations. LAPD officials had been preparing the raid for several months beforehand, and when the raid went down, they brought the media with them. Between 5:20 AM and 5:40 AM the morning after the raid, "Capt. Wilson, the field commander for the operation, had given interviews to 3 radio stations and one print journalist." [8] Val Martin, the "slave auctioneer" at the benefit, recalls:

a very groovy guy comes to me with a leather jacket and a leather cap, torn jeans, very good looking. And he comes to me and asks what is the price of these slaves, so I told him.... He asked me if he (the slave) was a good cocksucker; I said 'sure' and he said, "Well, I have a big dick, do you think that he can suck my big dick?" So I said, "Sure, as a matter of fact they call him 'Jaws.'" I was just kidding around.... as soon as I said "sold" and received the money from him, the whole thing comes down. He gives a signal to the rest of the police and a couple of helicopters, three or four TV cameras, and 120 policemen surrounded the premises, even on top of it. [9]

The entire cost to the City of Los Angeles of the raid was conservatively estimated at $150,000. The day after the raid, the Orange County Register's front-page headline screamed, "Police Free Gay Slaves." The paradoxical impropriety of this sentence characterized the LAPD's and state prosecutor's version of the events of the raid; the Pasadena Star News, for example, quoted one police officer as saying, "we went in and liberated them." [10] Of course, this "liberation" involved handcuffing the defendants, forcing them to kneel or lie face down, then carting them in a crowded bus to jail for processing, denying them the opportunity to use the toilet, and taunting and photographing them at the police station. [11]

In what she calls a "productive catachresis," Gayatri Spivak reads the sentence "white men are saving brown women from brown men" alongside the sentence that Freud constructed from his female patients' accounts of masochistic sexual fantasies: "A child is being beaten." [12] Such a move is catechristical in that the isomorphic analogy suggested between subject-formation and collective behavior is overly simplistic, but it is productive in that it allows her to highlight the fact that both sentences predicate a history of repression, with a doubled origin, which produces the final sentence. I think the sentence "police free gay slaves" allows for a similarly productive catachresis. In the case of Freud's sentence, the doubled origin of repression is both in the amnesia of the infant and in the archaic past (assuming the useful fiction of a moment in human history prior to the history of sexuality). The sentence assembled by the editors of the Orange County Register predicates a history of repression with two origins as well: one in the specific circumstances surrounding the Mark IV Raid and the other in the history of the relationship between the law and "sexual perversion."

Foucault showed how varieties of the "sexual pervert" were constructed in medical and juridical discourse during the Victorian era. I would argue that the Mark IV Raid and the Spanner case represent two moments in a more recent construction of one variety of the "sexual pervert": the "sadomasochist" or "gay slave." It is well known that the right wing has recently gone to great extremes to demonize the movement for anti-discrimination laws for lesbians, gays, and bisexuals by associating the "gay agenda" with the abuse of children and with disease and moral decay. This moral panic [13] has included nationwide attempts to repeal or declare illegal any mention of sexuality in antidiscrimination statutes, and perhaps revealed itself at its most ludicrous in the resignation of Surgeon General Jocelyn Elders over (among other things) a comment about masturbation. In particular, fundamentalist pundits have appropriated exaggerated representations of sadomasochism and the leather communities from gay pride parades and used these images to vilify gay men, lesbian, and bisexuals as "perverts" and "freaks." [14]

Rubin argues that moral panics of this type should be read as the "'political moment' of sex, in which diffuse attitudes are channeled into political action and from there into social change," (25). She continues:

Because sexuality in Western societies is so mystified, the wars over it are often fought at oblique angles, aimed at phony targets, conducted with misplaced passions, and are highly, intensely symbolic. Sexual activities often function as signifiers for personal and social apprehensions to which they have no intrinsic connection. During a moral panic, such fears attach to some unfortunate sexual activity or population. The media become ablaze with indignation, the public behaves like a rabid mob, the police are activated, and the state enacts new laws and regulations.... The system of sexual stratification provides easy victims who lack the power to defend themselves, and a preexisting apparatus for controlling their movements and curtailing their freedoms. The stigma against sexual dissidents renders them morally defenseless, (25).

It is clear from the record of the Mark IV case, as well as the Operation Spanner case, that what was on trial in these cases was not the violation of the laws against slavery, pandering (which the Mark IV prosecution had reduced the charges to after the District Attorney refused to humiliate the LAPD further by continuing to prosecute absurd charges of "slavery"), or assault, but rather was the sexuality of the accused. As defense attorney Thomas Hunter Russell argued in the Mark IV trial, "what is really on trial here is the sexual orientation of the defendants, and not their specific behavior with regard to a particular section of the Penal Code." [15]

I will return to the implications of the Mark IV raid below. I'd like to first address two other moments in British and American juridico-legal history that similarly speak to this problematic, with three important differences: the "sadomasochists" are heterosexual, the "sadomasochists" are female, and the "sadomasochists" are the prosecuting witnesses rather than the defendants. I will then suggest a reading of a third moment in this discursive history to argue that of the three differences outlined above, the latter carries the most weight.

"I know I had sex with her without consent. I know what I have done is wrong. I don't like myself. I've lost all my friends except those close to me."

--Rape Defendant Ben Emerson [16]

Despite this frank confession, Ben Emerson was awarded a verdict of "not guilty" of rape on 29 November 1994, after a two-minute jury deliberation at Leicester Crown Court. The judge commented to the jury, "I wholeheartedly agree with your verdict." The judge had actually recommended to the jury that it render a quick decision before even hearing the defense's case: "At the end of the prosecution case the judge summarized the alleged victim's evidence and reminded the jury how she and Emerson had oral sex without her objecting at her home... the judge told the jury: 'When he went to get some baby oil to massage her body, what is this young man to think when he finds in the drawer artificial penises, magazines designed to excite sexually? He finds a riding crop near her bed and chains on the bed," (ibid). After the trial, a friend of Emerson stated, "Justice was served in the end."

"Justice," in this case, meant the release of a self-identified rapist because the "alleged" victim had committed the prior crime of being a pervert. There can be no doubt from the evidence that what was really on trial during this event was the prosecution witness's sexuality -- the mere existence of an interest in kinky sex made her charge of rape untenable. A woman's privilege to say "no" to sex is here circumscribed by the discursive apparatus invoked by her sexuality -- a woman with an interest in sadomasochism, rubber skirts, and body-piercing, judge and jury seem to have reasoned, cannot be raped. Her sexuality implicitly predisposes her to consent to sex -- she is inscribed as always-already willing.

On 8 November 1978, an Ohio appellate court handed down a similar verdict to two men accused of rape, felonious assault, and felonious sexual penetration. The court included a detailed description of the events of 14 July 1977 in the court transcript, providing an account of victim Jane Lucas' testimony "[a]t the risk of memorializing the conduct of the Defendants for the future delight of the sexually perverse." [17] This invocation of a notion of potential prurient interest in the testimony of the victim is characteristic of the Court's treatment of the issues involved -- outright violence is sexualized and treated as potentially "nonserious" in the serious context of the courtroom. [18]

According to Lucas' testimony, she drove to Donald Kekich's apartment with the intention of having sex with him. When they got there, Kekich told her to undress and asked if she needed to use the bathroom. In the bathroom, she was grabbed by a naked man (Howard Phillips, another of the defendants), raped, and severely beaten. Kekich and Phillips continued to rape and beat her for hours, later taking her to the apartment of other friends who joined in her torture, which lasted all night and included being threatened with a shotgun, which was then shoved inside of her while pictures were taken.

The defendants were convicted of "felonious sexual penetration," but were acquitted of rape and assault on the basis of the discursive apparatus mobilized by the following testimony: "She asked for everything. She asked to blow you, she asked to go to bed with you. I mean, every sex act that happened was through her. I mean came out of her mouth and with each and every guy," (Bruce Battista). The appellate court vacated convictions on rape and assault charges based on testimony from a friend of Lucas' that she had overheard Lucas express masochistic fantasies, and the following birthday card sent by Lucas to Kekich, with whom she had a sexual relationship prior to the assault:

"I think you're a brute, an animal and a Sex Fiend!
--- And I want you to know I appreciate it!
Happy Birthday!
To a man who won't stand anything he doesn't like, do without anything he desires, or even be polite to people unless they please him.
As mean as you are - you will live a century & then some-
Happy Birthday, Turkey!

Love,

Janie Lucas"

According to the appellate court, "It is evident in the instant case that Jane Lucas who accompanied Donald Kekich, Bruce Battista, Harold Phillips and Daniel Phillips initially by invitation got much more than she bargained for. However, it is equally obvious from evidence of record and especially from the birthday card admitted as Defendants' exhibit, supra, that had acts which followed been limited to sexual conduct it would not have been necessary to compel Jane Lucas to submit by force or threat of force and that no charges would have been filed with nothing further being heard of such occurrences."

Here the mere suggestion that Ms. Lucas might have consented without force to a sado-masochistic sexual relationship is taken as a priori evidence that she cannot legally be raped. Again, her sexuality inscribes her as always-already willing. The appellate court's conviction of the defendants on charges of "felonious sexual penetration" further indicates that what went wrong on July, 14, 1977, was not so much the violence and terror to which Ms. Lucas was subjected, but rather the introduction of a foreign object into one of her orifices -- the defendants, in other words, were convicted of violating a dildo law. [19]

It is clear from these cases that the "sadomasochist" is often seen as having given up h/er rights to protection from violence or abuse. While both cases involve heterosexual women, it is clear that homosexual men as prosecution witnesses face similar difficulties in credibility. In August of 1993, an appellate court released a man convicted of murder because the murder victim had written a long sadomasochistic sexual fantasy in his journal and the trial court had refused this journal entry as evidence at trial. The fantasy is reproduced for the delight of the court in its entirety in the published case. The unspoken implication here is that a man who fantasizes about homosexual sadomasochism has somehow consented to a brutal murder: "The journal excerpt was essential to the appellant's defense. It suggested Craven may have desired to be involved, and may have been involved in voluntary sadomasochist sex when he was killed. If he suffered from these desires, then he might have sought out an amenable partner" [20] who eventually killed him. (That wasn't very "amenable" of the partner if you ask me). Again, the law has constituted the sadomasochist as an always-already willing victim, even to the point of death. [21] This opinion also highlights the idea of "voluntary sadomasochistic sex" as a "desire" that one "suffers from," a common thread in much of this discourse. The official status of "perverse" desire is thus situated as a medical and psychiatric condition that places those "afflicted" beyond the protection of the law and unworthy of inclusion in "civilized" society.

In each of the above cases, the court legitimized a defense of "consent" as used against complaining victims of sexual and physical assault. Yet in the recent Operation Spanner case [22] the court overruled this defense where there is no complaining victim. The implication common to both sets of circumstances is that the public image of the "sadomasochist" as established by legal and psychiatric tradition will be imposed upon the "victim" even where there is no identifiable complainant who falls into this category. Where there is a victim, h/er voice will be silenced and replaced by this public image. S/he will be stripped of the legal privilege to say "no" to unwanted sexual attention, assault, kidnapping, and even murder. And where there is no victim, this public image will create a hypothetical victim who could not possibly consent to the activities involved (the hypothetical victim is here coded as potentially "normal," but the defendant is now coded as the "sadomasochist.")

In both instances, to return to the sentence imposed by the Orange County Register on the Mark IV incident, the trope of the "gay slave" to be "freed" by police is mobilized to speak in the place of actual participants in the events under public scrutiny. A strict interpretation of this trope calls to mind the photographs the LAPD made available to the Associated Press after the raid -- Val Martin, in the interview cited above, recalls that during the raid the police had chosen for arrest "the ones who were the most outrageous, because everyone who was in jail with me were, like, in leather chaps and nothing else, the rest of the body was nude. You know, pierced tits, chains, really the way we really dress for an evening like that. They treated us like animals, like the worst people in the world." Martin here stresses the performative nature of the trope, whereas the police and media representations take the trope quite literally, characterizing the "sadomasochist" as one who enjoys and deserves h/er political repression, whether it operates through legal or extralegal mechanisms, and even to the point of death. [23] This trope is recognizable more broadly as a marginal but visible figure in popular culture (witness the rape scene in Pulp Fiction, for example, or Madonna's character in Body of Evidence ) and in psychiatry and psychoanalysis (see, for example, Kraft-Ebbing's meticulously documented case histories) as well as in law and politics. The image is one of a pathetic creature, barely human, who is at best too weak to assert h/er own identity or will and at worst pathologically destructive to society. This implies a rhetorical understanding of the "gay slave" trope. Obviously, the monolithic nature of the trope "gay slave" tells us nothing about the actual sexual practices and roles involved in leather and S/M sexual identities. The rich diversity of sexualities potentially described by this category -- from leather faeries to diesel dykes to pro-doms to bears to butch daddys to cowboys to foot fetishists to bitch goddesses to sissy maids to aggressive tops to pushy bottoms and on and on, perverts of all varieties -- is flattened out by the popular image of the "gay slave." While the trope as mobilized in the Mark IV raid was gendered male, I would suggest that the more general trope suggested by the phrase "gay slave" is not gendered male or female per se, but is more precisely gendered as always-already in drag. What is marked about the character identified by the trope is not anything specific about h/er sexuality or "identity" but rather something specific about what h/er sexuality is not. In other words, the "gay slave" is rhetorically marked by h/er difference from an implicit "norm" or "ideal" rather than h/er similarity to a certain identifiable category. S/he is marked by h/er unknowability, which is always associated (at least, "in the last instance") with death. The signifier "gay" should here be read in the rhetorical sense described by Lee Edelman:

...the signifier 'gay' comes to name the unknowability that is sexuality as such: its always displaced and displacing relations to categories that include, but also exceed, those of sex, gender, class, nationality, ethnicity, and race. As the figure for the textuality, the rhetoricity, of the sexual, 'gay' designates the gap or incoherence that every discourse of 'sexuality' or 'sexual identity' would master. It constitutes the fissure in sexuality out of which sexuality emerges and against which any 'sexual identity' would attempt to define itself. [24]

What is at stake in the mobilization of this trope in the context of the Mark IV raid, then, is not so much any particular sexual "identity" as such, but rather the unknown and unknowable threat posed by this trope to the "public." The "gay slave" is always in drag because s/he is performing a sexuality that marks something irreducibly other. As I pointed out above, the irreducible otherness of this trope is always associated with death. Pat Califia addresses this trope as it appears in the book Modern Primitives:

There are so many things wrong with this breezy little stereotype that it's hard to know where to begin to deconstruct it. There are certainly people who would argue that S/M is the result of media programming that is rife with bondage and fetish imagery. And it's questionable that pain has any particular purity or power to shock in a society that gobbles down slasher movies by the dozens....[The] linking of power-exchange sex to thanatos is nothing but a cliché. Our community is interesting (and powerful) precisely because we have chosen to live, to fashion relationships, organizations, institutions, traditions, mythology, and norms -- in spite of all the voices from outside which tell us we (a) are obsessed with death and (b) deserve to die. [25]

Elsewhere, she spells out the crucial assumption of this trope, this time as mobilized by some feminists: "...there is another assumption -- that we must enjoy being oppressed and mistreated. We like to wear uniforms? Then we must get off on having cops bust up our bars. We like to play with whips and nipple clamps and hot wax? Then it must turn us on when gangs of kids hunt us down, harass and beat us. We're not really human. We're just a bunch of leather jackets and spike heels, a bunch of post office boxes at the ends of sex ads." [26] Although Califia speaks here to very different contexts for the use of this trope, the characteristics of the trope described here differ little from those mobilized in the juridico-legal realm described above. The exercise of power (whether it be the legitimized power of the state or the illicit power of extralegal repressions such as police harassment, queer-bashing, and public humiliation) against the "gay slave" in both cases is rationalized as something inevitable, necessary, and even "enjoyable" to the objects of such power.

I argued earlier that the sentence "police free gay slaves" predicates a history of repression. Most of the above analysis has been directed at one aspect of that history, the discursive history of the relationship of the law to "sadomasochism." What have been repressed throughout this discursive history are the specific mechanisms by which the erotic subjectivity I have perhaps oversimplistically designated by the name "gay slave" is produced by a dominant discourse. This trope is primarily a vehicle for the exercise of power. Another aspect of the history of repression predicated in the sentence is of course the set of material events surrounding the Mark IV raid, and indeed, the specific nature of any such event. Materially, the "freedom" police provided the "gay slaves" involved handcuffing them, arresting them, photographing them, taunting them, subjecting them to verbal abuse, denying them the right to use the toilet, then forcing them through a long and expensive publicized legal process which ruined many families and careers and which four of the defendants are still wrapped up in.

Despite this, there is a sense in which the Mark IV raid was a "success" in terms of the struggle over the meaning of the trope of the "gay slave" in public discourse. Foucault's notion of resistance as "the odd term in relations of power" [27] is particularly relevant here; Foucault writes: "Discourse transmits and produces power; it reinforces it, but also undermines and exposes it, renders it fragile and makes it possible to thwart it," (101). Foucault shows how the history of sodomy and the creation of the "homosexual" in 19th century Western culture produced a whole array of mechanisms of social control and domination. At the same time, however, the introduction of this category of personality:

made possible the formulation of a 'reverse' discourse: homosexuality began to speak in its own behalf, to demand that its legitimacy or 'naturality' be acknowledged, often in the same vocabulary, using the same categories by which it was medically disqualified. There is not, on the one side, a discourse of power, and opposite it, another discourse that runs counter to it. Discourses are tactical elements or blocks operating in the field of force relations; there can exist different and even contradictory discourses within the same strategy; they can, on the contrary, circulate without changing their form one strategy to another, opposing strategy, (101-2).

In a similar vein, I would argue that the production of the category of the "gay slave" in Los Angeles in 1976 has helped allow the "gay slave" to begin to speak on its own behalf. The Mark IV incident was, in fact, a political disaster for the LAPD. "Gay" and "straight" publics alike saw the raid as a waste of precious resources that should have been spent fighting real crime. [28] To dramatize the sense of public priorities that was affronted by the LAPD's overzealous actions, a woman was mugged and murdered just ten blocks from the Mark IV while the raid was going on. [29] 107 cops to bust a charity ball and not one to save a woman's life -- needless to say, this image did not play well to a California public that had just passed a gay rights ordinance and a drug law liberalization ordinance but was still very concerned about street crime. The District and City Attorneys immediately dissociated themselves with the LAPD's position until the prosecution dropped the ridiculous "slavery" charges, and the City received hundreds of letters from the public protesting the raid. The raid and its aftermath have been compared to the Stonewall riots because "we learned how to cope with it, fight back, stand up for our rights," (Martin interview). While Stonewall stands as the privileged figure of gay resistance in history, The Mark IV Slave Auction constitutes another, less visible but nonetheless resistant, historical moment. It is a moment in which the struggle over the meaning to be assigned the trope "gay slave" is temporarily won by those most frequently subjected to the power-effects of this trope. Martin recalls that after the Mark IV raid "There is more unity; when people began to find out what was really going on, what the image of a leather person was, that a lot of people had a wrong idea of the leather community. When people in the gay community find out what we are really like, they change their minds about us. They fuss, of course, but we are more respected," (interview). This respect is an outcome of the struggle over the meaning of the "gay slave" trope.

Of course, the Mark IV raid took place during a period of frequent attacks by the LAPD against the leather and S/M communities, [30] and the negative publicity the LAPD received as a result of the raid did not put a damper on its use of legal and extralegal means to attack leather bars. In one incident just a few months after the Mark IV auction, for example, Long Beach police visited another "slave auction" benefit. Over two weeks later, the officers arrested three gay men for their participation in the auction. One of the officers was asked why they didn't just make the bust during the auction "when they had determined that a probable violation had occurred"; his response is quite telling: "There were a lot of people there ... and not many police officers. Hell, we'd have had a riot. We would have been eaten alive!" [31] On the one hand, this fear of a "riot" speaks to the power of the Mark IV raid as a resistant symbol in gay history. On the other hand, the aims of those in power -- to demonize and discipline the communities -- continue to be served. "Erotic dissidents" from all walks of life continue to be rounded up or systematically harassed in attacks on leather bars, sex clubs, bath houses, bookstores, and sex industry workers. Just two years ago the Los Angeles bar The Dragonfly was raided on a Sunday night. On Valentine's Day, 1992, eleven LAPD officers raided the Dragon House (a "gay sex club") without a warrant and seized the club's membership information and $140 that had been raised to benefit a hospice. [32] Additionally, we are witnessing a resurgence of fundamentalist and right-wing attacks on all manner of "pervert" through legislation and through demonization. The resistance to these attacks symbolized by Stonewall and by the Mark IV has allowed the trope of the "gay slave" to begin to speak, but the discordant multiplicity of voices that followed this speech is again in the process of being colonized by the dominant discursive apparatuses.

This text © Ben Attias
Modified by: Ben Attias
Institution: California State University, Northridge
Modification Date: Saturday, June 10, 1995
Modification Time: 5:57 PM