Clarke on Desire

Jessica Clarke (Minnesota) has just posted on SSRN her article (63 Duke L.J. (2013)) Inferring Desire.  Here's an excerpt from the abstract:

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.  * * * This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. * * *  Since [1998], federal courts have decided 142 cases on whether a harasser was homosexual or experienced same-sex desire * * *.

Empirical assessment of these cases raises questions about legal determinations of sexual orientation and sexual desire. First, it finds that courts rely on overly simplistic assumptions about sexual orientation that are contradicted by social science research. Surprisingly, in searching for evidence of same-sex desire, courts compare the harasser’s behavior to an idealized vision of romantic courtship that resonates with the picture of same-sex intimacy drawn by advocates of gay marriage. Second, these judicial inquiries into desire reinforce biases in favor of heterosexuality. Courts interpret sexually charged interactions to be devoid of desire where the harasser is involved in a heterosexual marriage, while reading desire into far less suggestive scenarios where the harasser self-identifies as non-heterosexual. And third, the judicial preoccupation with desire distracts from the purpose of sexual harassment law: eliminating invidious sex discrimination.

This study has implications for other legal doctrines that may require definitions of sexual orientation or inferences of desire. It suggests that a relationship model of sexual orientation may not be appropriate in all legal contexts, and calls into question the project of devising any all-purpose legal definition of sexual orientation. It also argues that reformers should be wary of how inquiries into sexual desire may operate as distractions and reinforce conventional notions of sexuality.

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