Troubling Sex

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When legal scholars or judges approach the subject of sexuality, they are often constrained by theoretical frameworks and disciplinaryboundaries. For instance, queer theorists focus on sexual liberty andthe rights of sexual minorities but tend to ignore troubling issuessuch as sexual violence. Feminist theorists focus on sexual violencebut often fail to recognize the joy of sexuality. Elaine Craig explores the possibility of devising a legal theory ofsexuality that embraces both the good and the bad -- a theory thatensures equality without assimilation, diversity without exclusion, andliberty without suffering. Her reading of the Supreme Court ofCanada's approach to sexuality in a wide range of cases -- sexwork, sexual violence, child and gay pornography, and discriminationclaims based on sexual orientation -- reveals that judges maintain anessentialist understanding of sexuality that limits legal remedies andrenders certain harms invisible. However, the Court'sfeminist-inspired approach to sexual violence, which recognizes thesocially constructed nature of sexuality, holds the promise ofproducing legal reasoning that can both protect and promote sexualintegrity as a common interest. Blending feminist theory with the inclusiveness of queer theory, Craigadvances an iconoclastic approach to law and sexuality that has thepower to transform both theory and practice.Elaine Craig is an assistant professor inthe Schulich School of Law at Dalhousie University.