The law of decency

the law of decency is the transcription of one conversation to radio operator going back to 1978 with Paris between the philosopher Michel Foucault, the writer and lawyer Jean Danet and the novelist and member of FHAR (homosexual Face of revolutionary action) Guy Hocquenghem, discussing of the abolition of the law on the sexual Majorité in France. The question was put about the carpet in the context of the Libération of manners of the years 1970, while a reform on the Penal code was in hand with the Parlement. Many French intellectuals - including Foucault, Danet, Hocquenghem, Derrida, Althusser and Francoise Dolto - signed a petition, the “Open letter on the revision of the law on the sexual offenses concerning the minors”, addressed to the Parliament in 1977 defendant the Dépénalisation of all relations authorized between adults and minors of less than 15 years (sexual majority in France). Finally, the Senate voted in June 1978 the suppression of discrimination between homosexual acts and heterosexuals, while the Indecent assault without violence with regard to a minor of less than fifteen years, until there liable to the Assises, was correctionalized.

The debate was diffused on April 4th, 1978 by the radio France Culture, in its emission Dialogs . It was originally published in French under the title the law of decency in the review Recherches N° 37 of April 1979. Later, it was included in the collection Dits and was written 1976-1979 of Foucault.

Principal ideas of the text

Michel Foucault and Guy Hocquenghem insist first of all on the penalization, at the time of the XIXe century, of the “sexual offenses”, and on the invention by the Psychiatrie incipient from the category of the “perverse”. Thus, Foucault points out that the Penal code of 1810 did not regulate the sexual behaviors, “as if sexuality were not to concern the law”. He shows that “gravity” of the law on such acts enormously grew at the XIXe century and “XXe especially, at the time of Pétain and at the time of the Amendement Mirguet (1960)”. Foucault, Hocquenghem and Danet denounce the increased psychiatrisation of the company and the introduction of a social control on what one indicates like “sexuality”. Foucault had already outlined this analysis of the “device of sexuality” in the Will to know (1976). “All the legislation on sexuality, affirms Foucault thus, such as it was installation since the XIXe century in France, is a whole of laws on the decency”, which appears impossible to define, becoming thus a flexible tool used in various local tactics. “But what takes shape (...) it is a new penal system, a new legislative system which will be given for function not so much to punish what would be infringement with these general laws of decency to protect from the populations or the parts of the population considered as particularly fragile” (for example childhood). Thus, there are fragile populations, and “dangerous populations” (the adult in general).

Thus, Danet affirms that “what prepares with the intervention of the psychiatrists to the court, it is a handling of the assent of oneself-saying the victims, it is a handling of the assent of the children, it is a handling of their word”. Using inter alia the example of the protest movement, in Germany at the end of the XIXe century, against paragraph 175 of the German Penal code which repressed any homosexual act, Jean Danet shows thus that the psychiatrists replace the judges “to be able to seize themselves the perverts and to be able to treat them with all the knowledge which they claimed to have acquired since approximately 1860” (Danet quotes then Morel and its Traité decays , published in 1857).

The invention of a crime

Foucault stresses that whereas the law condemned formerly the infringement, the act transgressing the law, we enter from now on a “company Disciplinaire” which condemns the criminal himself, called “delinquent”. One thus creates a special type of population, the “delinquents” or the “perverts”. Instead of punishing the act, one criminalise a person or a category of the population.

Hocquenghem supports that “a whole mixture of concepts” is responsible for the invention of the idea of crime against the Décence , energy of the religious interdicts on the Sodomie with separation between the world of childhood and that of the adult.

It observes that it was possible because of the creation of a category of people considered as “perverts”, “legal Monstre S” of which the goal in the life is to have sexual relationships with the children. They will then become really unbearable perverts since the offense as such is recognized and reinforced by a psychological and sociological arsenal.

“But the total evolution, according to Hocquenghem, (...) is not only to manufacture a type of crime which is quite simply the relationship erotic or sensual between a child and an adult, but, in addition, since that can be isolated in the form from a crime, to create some catégorie" population defined by the fact that she devotes herself to these pleasures. Then, there exists a particular category of pervert, with the clean direction, monsters which have like drank in the life to practice the sex with the children. They become besides of the perverts and the isolable monsters, since the crime as such is recognized and made up, and from now on reinforced by all the psychoanalytical arsenal and sociological. One is manufacturing us of all parts a type of criminal, and a criminal who is so horrible to conceive that its crime, in extreme cases, does without any explanation, of any victim. A little with the way in which this species of legal monster functions, this term of attack without violences (...) the public insult with decency in a certain way carries out also that, insofar as, as each one knows, the insult in question does not need at all a public to be made up. In the case of the attack without violence, that where one really could nothing find, nothing of nothing of nothing, zero, in this case, the criminal is simply criminal because it is criminal, because it has his tastes. ”

The journalist Pierre Hahn notices whereas one returns thus to the concept of born criminal, present in the work of Lombroso. Just as for the Terrorism (business Growing), any lawyer defending such an individual is suspected of being itself favorable to such acts.

Hocquenghem regards the development of this new type of criminal - perverse individual sufficiently a “to make a thing which until now was always made without whoever lining its nose there” - “as an extremely serious stage of the political point of view ” ':

“In the case of a “attack without violence”, the offense in which the police force was unable to find anything, nothing the whole, in this case, the criminal is quite simply a criminal because it is a criminel' , because it has these tastes. It is what is commonly called offense of opinion . (…) The offense disappears, nobody is not for a long time interested to know makes an offense so of it was made or not, if somebody were wounded or not. Nobody any more even worries about know if there were really a victim or not. ”

Hocquenghem concludes that the offense nourishes itself in a hunting for the man by the identification and the insulation of a category of individuals considered as paedophiles and “the call to the lynching” launched by the “tabloid press”.

Jean Danet adds that this offense without violence can be used by the State for political reasons against individuals " inconvenants": " Incentive with a minor to make an immoral act, for example, can be used against the welfare workers and the teachers. (…) In 1976 in Nantes, a teacher was judged to have incited minors with immoral acts, whereas, actually, it did nothing but provide condoms to the boys and to the girls under her responsabilité". He also recalls that at the XIXe century, the concept of indecent assault was used to control the teachers and the priests. Lastly, it stresses that if, in the event of Viol, “the judges consider that there presumption of assent on behalf of the woman and that should be shown the opposite is”, in the event of indecent assault paedophile without violence “it is the reverse. It is considered that there is a presumption of nonassent”, thus inducing an inversion of the Burden of proof. One “thus handles” the “system of the evidence”.

a company of dangers

Foucault sees the emergence of a new penal system with the busy center of attention of criminal acts to the definition of individuals known as Danger them. He predicts the advent of a sedentary company founded on the concept of “danger” and warns against temptation to legislate in connection with the sexual behaviors, temptation which seems to go to counter-current of the liberal ideology . But, as it will show it in other texts (in particular an article published by the special edition 2000 of the Monde ), the liberal company is also a sedentary company based on the concept of “risk” and “danger”:

“ One condemned forms of control. Maintaining (...) what, consequently, will be founded by the intervention and of the law, and of the judge, and the doctor, they are dangerous individuals. One will have a company of dangers with, on a side, those which are endangered, and on another side, those which are carrying danger. And sexuality will not be any more one control with certain precise prohibitions; but sexuality, that will become a species of danger which grinds, a kind of omnipresent phantom, phantom which will be played between men and women, between children and adults, and possibly between adults between them, etc the Sexualité will become this threat in all the social relations, in all the reports/ratios of ages, all the reports/ratios of individuals. It is there on this shade, this phantom, this fear which the capacity will try to have taken by a legislation apparently generous and in any case general; and thanks to a series of specific interventions which will be those, probably, of the legal institutions supported on the medical institutions. ”

It identified the fear of the sexuality of the others like the reason of this change: “the legislator will not justify measurements that he proposes while saying: the universal decency of humanity must be defended. What he will say it is this: there are people to whom the sexuality of the others becomes a permanent danger. ”

Foucault envisaged a new mode for the supervision of sexuality, with the intervention of the legal institutions and the support of the medical institutions. He supplements while affirming: “I would say that the danger is there”, thus warning against a social control increased on the behavior of each one, thesis already detailed in its book Surveiller and to punish (1975).

establishment of a new medical capacity

Foucault insisted that with this change of target towards the individual, the legislation calls some now with the medical knowledge, giving the opportunity to the psychiatrists to intervene twice: firstly to say that the children have really a sexuality, and secondly to establish that the sexuality of the child is a territory with his own geography, where the adult should not interfere.

Jean Danet added that certain psychiatrists consider that the sexual relationships between children and adult " are always traumatisants" , that the child " " is marked forever; , that it will become disturbed émotionnellement and that if the newborn does not remember it, it is because they remain in his subconscious.

He wonders whether the intervention of the psychiatrists to the court is not a handling assent of the children, their words. Foucault notices with irony the position of the specialists:

" It may be that the child, with his own sexuality, wished this adult, it can have even agreed, it can have even taken the first step. We can even admit that it is him which allured the adult. But us, specialists with our psychological knowledge, soaps perfectly that even the child who allures the risk short to be wounded and traumatized. (…) Consequently, the child must be “protected from his own desires”, even if its desires carry it towards a adulte".

He concludes that it is in this new legislative framework - " basically intended for the protection of certain vulnerable groups of the population with the establishment of a new capacity médical" - that design of sexuality and of the relations between the sexuality of the adult and of the child will be based and, he regards that as " extremely discutable".

To show that which speaks

Hocquenghem observed that the French Pétition of 1977 was signed by many people " who cannot be suspectées to be especially paedophiles nor to maintain the political sights extravagantes".

Jean Danet pointed out that the lawyers who defended somebody of accused of indecent act with a minor serious problems had. Several, he said, avoids doing it, and prefers being sharpened by the court. He said that " whoever defends a paedophile can be suspecté to have sympathy to their cause. Even the judges think it internally: if it defends them it is because it is not really against him-même".

It supported that " it is not because somebody is implied in a fight against an unspecified authority, (…) that means that it is side of those which are assujettis" there;. Two examples are given, dating from the XIXe century and the beginning of XXe: in France, an open letter signed by psychologists, sexologists and psychiatrists asking the de-penalization of the immoral acts with the minors from 15 to 18 years, and in Germany when a whole movement (made the homosexual ones and members of the medical community) protested against a law which criminalise the homosexual acts .

The childhood and concept of assent

Foucault and Hocquenghem put both causes of it the “contractual concept” of “assent” (at the base of the liberal theory of the social Contract) as criterion aiming at determining if there is offense or not. “This concept of assent is a trap. Nobody signs a contract before making love”, said Hocquenghem. They insist on complexity to determine if there is indeed assent or not (since with the intervention of the concept of Idéologie, refused by philosophy liberal policy, the assent can be pretends or being the effect of one mystification - to also see the Unconscionable bargains). They thus defend the idea of a autonomy of the child and his desires, being thus opposed to designation Pédophilie of any emotional and erotic relationship between a minor (concept legal, and nonbiological) and a major person. Moreover, they underline the difficulty for the law (general by nature) of establishing an age limit (Foucault thus quotes a judge, who affirmed that “after all, there are some eighteen year old girls which is practically obliged to make love with their father or their father-in-law; they in vain are eighteen years old, it is a system of constraint which is intolerable. ” Moreover, even if the minor declares himself agreeing, its word will not be taken into account, and will not thus have “not the legal authenticity of an assent”. In other words, the contractual concept of assent contradicts that of childhood, since it is necessary to be major, by definition, to be able to sign a legal contract, i.e. to grant…

However, that does not imply, in their eyes, the legitimation of any emotional and sexual relationship between a child and an adult: “We do not say, of course, that the assent is always there”. Thus, they distinguish in the petition the acts without violence, legitimate, of the acts with violence, illegitimate: “ We took great care, affirms Hocquenghem thus, to speak exclusively about indecent act not implying violence and about incentive of the minor to make an indecent act. We paid attention extremely not to be touched, in some manner that it is, to the problem of the rape, which is completely different. ”

If they condemn without ambiguities the Viol, these authors underline nevertheless the danger to poke sedentary hysteria and the popular fears in the name of demagogic objectives. They thus warn against any temptation of Chasse to the witches steady to those which one calls from now on the “sexual delinquents” (it is important to maintain with the spirit the thesis Surveiller and to punish (1975), according to which the “delinquency” is an object of analysis built in order to target certain categories of the population and to ensure a self-checking of the popular classes; the “delinquency” replaces the “popular illegalisms thus”).

the credibility of the children to the court

With regard to the credibility of the children to the court, Foucault starts by pointing out that officially, the children are supposed to have a sexuality which can never be directed towards an adult, and are also supposed not to be able to speak about themselves in a sufficiently lucid way. Just like, within the Group information prisons (GIP), he refused to speak in the name of the prisoners and was opposed to the speech criminologists on the “delinquent ”, he insists here on the value of the clean word of the children. Thus, he affirms: “After all, to listen to a child, to listen to it to speak, to listen to it to explain how in fact its relations with somebody are, adult or not, since somebody listening with sufficient Compassion, must make it possible somebody more or less to establish the degree of violence, if there is, which was used or the degree of assent which was given” .

Foucault was opposed with vehemence to the doubt about the capacity of the child to judge existence or not of an abuse: “To suppose that a child is unable to explain what occurred and to give its assent are two intolerable abuses, completely unacceptable. (…) One can rely on the child to say if it is or not subjected to violence.” It is opposed thus to the facts of maintaining human beings in legal situation of minority (the woman until the feminist fights and to its emancipation, the children, etc - to also see the text of Kant, Was STI Aufklärung? ).

Hocquenghem insisted as for him on the obligatory nature of public hearing: “the assertion in public of the assent to such acts is extremely difficult, as you know it. Everyone - the judges, doctors, the accused - know that the child was authorizing - but nobody says anything because, over all, it is not possible no to present it. ”

Hocquenghem underlined thus that it is impossible to express the total returns between an adult and a child, reports/ratios implying all kinds of emotional relations (including various physical contacts) and passing by several stages (which all are not exclusively sexual), only in terms of assent, and which to express them in terms of assent is a nonsense: “In any case, if one listens to what the child says, and if he says: “I wanted well”, that does not have the legal authenticity of an assent. ”

Foucault as Hocquenghem were wary indeed of the liberal notion of the “assent” like base of the social Contract (of other authors, such Philip Pettit, will replace this criterion of the assent by the absence of effective dispute).

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