Let’s say you believe that the heterosexual monogamous family unit is the only proper place for a sexual relationship, and virginity for women and sexual abstinence for both sexes before marriage is expected and even essential. You believe adolescents have no sexual rights of their own and must be shielded from sexual knowledge and experience before they reach the age of consent (sixteen to eighteen years in the U.S., varying by state). You believe casual sex, serial lovers, simultaneous relationships, and the like are reckless and dangerous. You believe sex to be not very important in fact, a mental obsession and addiction, easily suppressed with a focus on the more meaningful aspects of life. But you also believe sex to be enormously important, inasmuch as sanctioned sex is holy and unsanctioned sex is immoral and destructive.
If you hold to any of the above, I’d wager you’re a traditionalist and fairly conservative, if not necessarily religious. Communist regimes find all of the above most salutary, and fascist states like Nazi Germany were controlled sexual behavior through such strictures. But they can be found in many countries, and as one looks back in history, sex laws were even harsher. In Elizabethan England, for example, adultery was punishable by death; in Medieval Europe, the Church dictated which days of the calendar the married were permitted conjugal relations.
Now ask yourself if any of the following happens to apply to you. You believe that there is no place for family nudity, and women must tone down their raw allure by shaving their body hair and wearing a bra, while it’s okay for men to go about topless. You believe the public sight of a woman’s breastfeeding nipple is obscene. You believe perceived improprieties of any sort should be referred to grievance committees instead of dealing directly with the offending person (we don’t mean criminal assault or rape when we must resort to the police). You believe sex work is degrading and prostitutes and their patrons should be arrested. You believe the police should be informed if teenagers close in age are caught having sex, above all if one is above the age of consent and the other is not, and that it’s acceptable for children of any age to be punished and even prosecuted if they engage in sexual harassment or assault. You reserve special loathing for pedophiles, who if they can’t be locked up for life, should be exiled from society, regardless of the severity of their offense. You would troll the national and state sex-offender registries for newly listed offenders and their families to hunt down and attack. You believe all of this while regarding yourself as otherwise liberal and enlightened, in our day and age, toward gay and transgender rights, extramarital sex, and other practices that only a generation or two ago were deviant or unlawful.
No one country has a lock on these sentiments, but what’s salient about the American response to sexual prohibition, as it is presently characterized and defined, is its fanaticism, its eagerness to find fault where there is none, and the ensuing rage where it is found. In the name of being progressive, Americans are particularly susceptible to sexual fascism. As Theo Horesh writes, “liberals are carrying out their own paradoxical crackdown on sexual freedom. The criminalization of relatively minor infractions of sexual norms; the severe crackdown on borderline cases of sexual harassment; the pathologization of late-adolescent expressions of sexuality.” Because the U.S. has a Puritan-inspired legacy of intolerance toward the sexually rebellious (Hester Prynne in Nathaniel Hawthorne’s The Scarlet Letter is the iconic example albeit one that pales in comparison to the punitive response toward today’s sexual deviants), a legacy backed by widespread popular support, it’s easy for the state to latch on to sex law as a ready means of expanding its regimes of surveillance over everyone.
Now let’s consider a few examples of sex crimes and their punishment, pulled off the news almost at random, there being no shortage of stories. We’ll begin with an egregious yet not unambiguous case and work our way through more problematic ones. Several years ago, a 46-year-old Indian American physician, Shafeeq Sheikh, was convicted of the sexual assault of a 27-year-old patient whose breasts he had fondled while she was medicated but conscious and receiving treatment for asthma in a Houston hospital. He later reentered her room and had unprotected sex with her. He claimed it was consensual; she claimed she tried to report the assault by summoning the nurse with the call button but was too weak to do so until the next day. Mitigating circumstances led the jury to downgrade the rape charge, which in Texas carries a prison sentence of two to twenty years, to a mere ten years’ probation. That Sheikh wasn’t given any time behind bars sparked media outrage at the miscarriage of justice. News reports did take care to mention that he lost his medical license and would have to register as a sex offender (G. Banks).
The mention is significant, for Sheikh might be better off in prison, where at least he would be in a stable environment, protected from the elements (if not from violent prisoners) and provided with daily food and bedding. If the public understood what his punishment actually entailed, they might be a bit more persuaded justice had been served. His listing in the Texas Public Sex Offender Website shows his photo, risk level (low), duration he will be registered (lifetime), date of birth, address, crime (sexual assault), sex and age of his victim, and the date of the offense. Note that although his probation ends after ten years, he will remain on the registry for life, and his address will ever be available to anyone with an internet connection (he’ll have to register his new address if he moves). As the offense didn’t involve children, he and his family may be spared attacks by vigilantes set on driving them out of the neighborhood, say by throwing rocks through their windows. Crimes on the registry are stated in broad terms, so that, for example, an eighteen-year-old caught having sex with his seventeen-year-old girlfriend in a state where the age of consent is eighteen might be listed as having taken “indecent liberties with a child.” Some state registries don’t list the victim’s age, so anyone viewing such an offender’s profile could reasonably assume he is a dangerous child predator, inciting the community to force him out, if he’s allowed to live at home to begin with (No Easy Answers).
Because the registry’s purpose is to alert the neighborhood to possible predators living in their midst, all listed offenders are subject to the same community restrictions, regardless of whether their crime involved children. In every state, sex offenders must keep a specified distance from places where children congregate, on pain of a felony conviction for violating the restrictions. In Texas, they may not reside or approach within 2,000 feet of any park, playground, school, day-care center, video arcade, youth center, recreational hiking or biking trails, or public swimming pool. These restrictions are often designed with the express purpose of zoning offenders out of their community or city altogether, including from their home; they may not be able to live at home in any case if they’re forbidden contact with their own children.
The restrictions that apply to Sheikh would have been decided by his probation board and the Houston police. If he is allowed to live at home with his wife and child, he can consider himself very lucky. If not, he will find it difficult or impossible to rent an apartment, not only due to residency restrictions; landlords do background checks and routinely reject anyone on the registry. Whether he will be able to find employment to help support his family and pay for the array of monthly probation and administrative fees he’ll be saddled with is also uncertain: employers likewise all the way down to fast-food restaurants refuse to hire anyone on the registry. The upshot is that as a consequence of allowing his hormones to get the better of him while doing his rounds one night at work, Shafeeq Sheikh may be reduced to life in a rural trailer park or under a highway overpass not covered by residency restrictions, supported by the very family whom he had been supporting before his arrest. If his wife herself is unemployed, if their home has a mortgage, then she and their child may themselves fall into dire straits, possibly rendered indigent. If Sheikh is denied housing altogether, he could always join a roving band of fellow sex-offender vagrants adorned with GPS ankle bracelets as they wander from community to community, or city to city, to find shelter, their exact movements tracked by the police (homeless shelters often turn away sex offenders). Milwaukee was one such dumping ground until it tightened up its residency restrictions in 2014, forcing some 200 registered offenders out of the city before they were allowed back in 2019 (Faraj; Hess).
Was Sheikh’s crime so heinous as to deserve such punishment? Measured against the worst types of sexual assault, say violent rape causing serious injury or death, clearly not. He may truly have misread the situation and convinced or deluded himself that the sex was consensual. This does not of course excuse his act, but suggests that it wasn’t premeditated; nor does he fit the typical profile of a dangerous predator, with a prior pattern of such behavior. It is therefore hard to see how such a draconian punishment, reminiscent of something out of medieval history or a Third World theocracy, fits the crime and what it accomplishes in terms of public safety. In any other country, the punishment for the same offense would more closely fit the crime; even if incarcerated, the offender would be allowed to reenter society and be provided with the necessary support for doing so upon his release.
Another example of the momentous consequences of a stupid but fateful decision sprung from sexual temptation is the case of Jace Hambrick. A 20-year-old gaming nerd from Vancouver, Washington, he responded to an ad posted by an attractive woman in the “Casual Encounters” section of Craigslist. Oddly, in their initial exchange, she told him she was thirteen. He didn’t believe her, assuming some kind of a tease, as it bore no relation to her photo, the sophistication of her sex talk, and her knowledge of gaming. She invited him to her house. She greeted him outside and lured him in. Upon entering, he was subdued by armed officers. She was indeed the woman in the photo, a 24-year-old undercover police officer. Despite not getting anywhere near her, he was sentenced to eighteen months to life in prison for the attempted rape of a child. It didn’t help that his electronics turned up nothing incriminating such as an interest in children; most people convicted through such entrapment stings do a minimum of ten years in prison (after plea-bargaining), regardless of their prior record. Hambrick was lucky, though, and released for good behavior after two years. The terms of his probation as a registered sex offender, however, are onerous and to the extent of destroying his career, almost as bad as prison. Although he may live at home, he is not allowed to visit shopping malls, movie theaters, sports venues, parks, or anywhere children congregate; at home, he is forbidden from drinking alcohol and must inform a prospective partner that he’s a registered sex offender. During his decade on the registry, he will have to pay the state $28,800 in probation and counseling fees. He has not been able to find work, apart from occasional weekend gigs. After ten years he can apply to be removed from the registry, with no guarantee he’ll be approved (Winerip).
The next example of judicial sadism is more ambiguous still, or rather unambiguous, at least from a humane perspective since the actual offense cannot by any rationale be considered a crime. Caught having consensual sex with two sixteen-year-old teenage boys at a camp in Idaho at the age of eighteen (sixteen being the age of consent in Idaho), Randall Menges was sentenced in 1993 to seven years in prison for sodomy. Upon his release in 2000, he was placed on the Idaho sex offender registry. Years later he moved to Montana, requiring him to register as a sex offender in that state as well. During all these years, he has been denied employment and housing, has had to live in “homeless shelters and had to sleep on the streets.” Finally in May 2021, almost three decades after his conviction, a Montana federal judge removed him from the registry on the grounds that “the harm Mr. Menges suffered under Montana’s statute outweighed the public’s interest in keeping his name on the registry.” However, this was appealed by a state prosecutor, and Menges’ legal situation remains in limbo (Cramer).
The state’s rage is perhaps no better exemplified than in the recent case of a seven-year-old boy in upstate New York who was arrested on a rape charge. The child’s identity is being protected and no details of the case, presumably innocent sex play with another child, were revealed. But even if it involved, say, his sticking something into the other’s orifice, this cannot under any reasonable grounds be considered criminal behavior. A defense attorney, “citing cognitive science data showing that young children lack a true awareness of what they are doing and the consequences of their actions,” made the obvious point that “‘the science doesn’t support prosecution of second graders’” (Nir, “A 7-year old”). In The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence, Levine and Meiners lament this astonishing penchant of the American state for branding young children as sex offenders:
Toddlers as young as two were being labeled as children who molest and treated for “inappropriate” behaviors like putting objects inside genitals, pulling down their pants in public, or masturbating “compulsively.” Some were being prosecuted as sex offenders. In fact, almost everything these children do—rub their bodies against other kids, expose themselves, insert things into orifices—can qualify as normative children’s play. And even those children who do harm to others sexually almost always show signs of aggressiveness in other ways as well—hitting, abusing animals, setting fires. The problem is the aggression, the cruelty, or the inability to control their impulses—not the sex.
Luckily, the seven-year-old is too young to be placed on the registry in New York, whose threshold is thirteen, but Arizona, Arkansas, Colorado, Kansas, Minnesota, and Texas register children as young as eight, and Massachusetts as young as seven. One-tenth of the 900,000 people on the sex offender registry in the U.S. are children (McKay; Stillman, “The list”; No Easy Answers).
In the public imagination, at least to those even aware of its existence, the sex offender registry is a well-deserved repository or garbage dump rightly reserved for monsters beyond the pale of humanity. But it has become remarkably easy for almost any normal person in a stupid or thoughtless moment to get on the registry. Innocently patting a child on the buttocks; mooning or streaking during a drunken night out; urinating in public even after taking precautions to conceal oneself but caught on camera; accidentally stumbling into a woman’s restroom or unlocked apparel changing room with someone in it; teenagers of the same age having consensual sex or sexting their nude pics to each other; prepubescent schoolchildren caught pulling down their pants; sleeping with a minor who falsely claimed with a fake ID she was eighteen; a massage therapist who grazes a customer’s breasts; an unknowing family member or parent of a sex worker accused of aiding and abetting sex trafficking by living in the same home: these are some of the offenses that can get one put on the registry. Not that these acts will necessarily get you on the registry, but it can happen.
Sex crimes vary in gravity from benign to violent, and the law attempts to reflect this. The national sex offender registry implemented by the Adam Walsh Act in 2006 distinguishes between more serious Tier III (aggravated sexual assault, sexual abuse of a child under thirteen) and comparatively less serious Tier II and I offenses. Yet sentencing varies widely and can be arbitrary and capricious, and states may and often do override this with stricter registry restrictions than the federal requirement; states are not allowed to impose restrictions less strict than the national registry (Farley). When sex offenses by grown teenagers or adults are truly abusive or violent, the state’s expected role is to determine the proper treatment for the offender and, if necessary, sequester him from the community. On the other hand, when politicians enact laws expressive of the public desire for retribution and when the state backs the public’s desire for revenge and becomes at one with the vengeful public, the state itself takes on a vengeful cast. We are then on precarious political ground. This is what is happening in the United States.
We look to artists and writers to put their fingers on the pulse of the times. The South African novelist J. M. Coetzee captured the ease with which sexual improprieties can turn tragic in his 1999 novel Disgrace, featuring a university professor who sleeps with a student under ambiguous circumstances, neither wholly consensual nor wholly coercive. He is fired, not for the offense itself but his refusal to acknowledge it, and the rest of the narrative follows his mental unraveling and descent into poverty and degradation. An American version of the sex offender protagonist is the Kid in Russel Banks’ 2011 novel Lost Memory of Skin, remarkably prescient of the 2017 Jace Hambrick case discussed above: a nineteen-year-old man meets a teenage girl online for sex and neglects to find out her exact age. The story is set under the Julia Tuttle Causeway sex-offender colony in Miami-Dade County in Florida, the only place the Kid is permitted to live after his release from prison, along with his pet iguana and portable generator for keeping his ankle bracelet charged. High schools are prime territory for sex scandals, as in the 2007 film Look (dir. Adam Rifkin), with its clever conceit depicting the entire action through the lens of security cameras. A cynical teenager just under the age of consent sets out to seduce her teacher just to see if she can pull it off. She succeeds and sends him to prison. The high school sex scandal in Zoe Whittall’s 2016 novel The Best Kind of People similarly portrays a respected high-school teacher who is jailed for propositioning one of his students, though here the focus is on the devastation to his ostracized family in the face of the community’s rage.
These authors have not needed to resort to invention, as if concocting unique little Greek tragedies for our moral edification. Their task, as chroniclers of our time, is not hard. Their tales are all clearly based on real events, of which there is no shortage. What makes them so foreboding in the American context is the collective fury proceeding from the community rather than the government. The rage of the state is one defining feature of fascism; the state of rage is the other, when the state offloads its rage onto the public, delegating to it the task of retribution. The less the public understands this and experiences this rage as its own, the more efficacious a tool of the state it becomes.
Daily news stories of capricious rage over sexual accusations abound, some wholly manufactured, such as the high school teacher in Maine who was falsely accused of sleeping with her seventeen-year-old student and not rehired after being fired, despite being exonerated of all charges. She now works as a restaurant server (“Teacher acquitted”). Schoolchildren in the UK have found a way to spread baseless rumors on Tiktok that their teachers are pedophiles, causing them to quit in fear for their safety; one teacher said a malicious Tiktok post about him had 12,000 views (Bryan; Rogers). Not that this couldn’t happen in the U.S., it just may not have been reported. One story recently reported was the resignation of transgender professor Allyn Walker of Old Dominion University in Virginia, due to threats against his life over the publication of A Long, Dark Shadow: Minor-Attracted People and Their Pursuit of Dignity (U of California Press, 2021), a sociological study of the “coping mechanisms and mental health strategies” used by people who feel inclined toward minors and don’t act on it, which was intended “to help prevent others who feel the same attractions from abusing children.” His use of the term “minor-attracted people” led to the malicious assumption, fanned by rightwing Fox News host Tucker Carlson, that Walker himself was a pedophile (McDade).
The latter affair is, or should be, alarming for authors, academics, anyone with a role in public commentary. We seem to be entering a new era of intolerance turned fanaticism, where the mere mention of the topic of pedophilia, however it is problematized, draws suspicion upon oneself. Perhaps I too need to reiterate for the record that in condemning the U.S. sexual persecution regime, I am not thereby condoning adult sexual interest or activity with those under the age of consent.
To many, the sexual abuse of minors is a special category of depravity, the worst of crimes committed by the lowest of the low, who by their actions void their place in society and deserve the heaviest possible punishment. But righteousness blinds us to the larger view and a more comprehensive understanding of real injustice. Since sex crime against children is framed in terms of absolutes, it’s hard to get outside of the frame. My overriding interest here concerns the human rights violations of an aggressive state apparatus testing the waters of full-blown fascism. The place to look for these violations in a fascist state is the scapegoated. In the U.S., the historically scapegoated are Blacks, Hispanics, and other minorities, but the country is being torn against itself on the racism issue. Public rage is shapeshifting and ever on the lookout for new, uncontroversial enemies to rally against. The sex offender fits the bill. By his unspeakable, alien acts, he gives license to both the public and the state to coordinate the unleashing of their rage upon him. Short of capital punishment, the state’s power to enforce justice for sex offenses is always seen as not enough. The community must step in to finish the job. Convicted sex offenders are caught between these pincers. The worse the offense, the greater the carceral retribution; the lesser the offense, the greater the community retribution.
It’s commonly assumed, among those not fully apprised of the facts, that pedophiles need removal from society because they are incorrigible and will re-offend again and again unless locked up for good. The opposite is the case: convicted sex offenders have among the lowest rates of sexual recidivism. According to one study, the overall recidivism rate after three years for child molesters was high (39.4 percent), but this included re-arrests for all types of offenses, such as violations of residency restrictions; if only sex offenses were counted, the recidivism rate dropped to 5.1 percent (Przybylski). While the medical consensus is that pedophilia is an inborn, neurological disorder, those with a predisposition are considered fully capable of choosing not to act on their desires (Dastagir). You need not fear the worst in any case. Those imprisoned for violent sex crimes against children (Tier 3 offenders in the national registry) tend to be put away for a very long time. Upon completion of their sentence, they are then disappeared for good, to live out the remainder of their life in a shadow network of “civil commitment” prisons that operate without public oversight or accountability, in reported conditions of “guard brutality, solitary confinement, overcrowding, rotten food, negligent medical care, broken toilets” (Levine & Meiners). Meanwhile, sex offenders who do time aren’t spared the public wrath just because they’re secure behind bars; they experience it the moment they encounter their fellow inmates, the public’s surrogate. Any child sex conviction consigns them to the bottom of the hierarchy, where they are ostracized and targeted for the bulk of prisoner-upon-prisoner beatings and rape.
Bleak and harrowing as the prison experience is for sex offenders, they are not released on the understanding that they have “done their time.” The United States has already one of the worst recidivism rates in the world: spat out into an unreceptive social void, parolees struggle to find employers willing to hire them and consequently return to crime to get by—and back to prison. They are the ordinary criminals who have served their time. Sex offenders who have served their time, by contrast, are released not into a vacuum of anomie but a cauldron of hostility. The message confronting the lepers is stark and aggressive: you are not wanted back. Those who avoided prison altogether and are on probation have it just as bad, if not worse, as they are presumed to have gotten off scot-free. Now it’s the community’s turn to take over the reins of punishment, armed with a tool provided by the state and honed for this exact purpose. The sex offender registry is no mere list, a resource that neighbors can consult to guard themselves against dangerous ex-felons coming after their kids. It’s a mechanism of the sort normally provided to secret police for flushing undesirables out from hiding. Those on the registry who have been zoned out of their communities altogether have it better in one sense. Being homeless or nomadic and banding together, they are less subject to attacks by vigilantes.
The sex offender registry is not a rational solution to a social problem but a legalistic abomination whose practical effect is to demoralize ex-offenders to the point of giving up entirely. Left without means of subsistence, many return to crime in order to survive. Some may try to get back at society by going after children, exactly what their punishment was supposed to prevent. The police have been among the most vocal critics of the registry, if for no other reason than it’s a burden on their time with all the paperwork required to keep tabs on those registered in their jurisdictions.
It may be instructive to look at how the rest of the world handles sex offenders. Many countries, including Australia, Indonesia, Russia, South Korea, and the United States, chemically castrate the most intractable—those who readily admit their predilection and even cooperate with the authorities in treating it (Cochrane). Only a handful of countries have a sex offender registry, and they are, interestingly, mostly English-speaking: Australia, Canada, New Zealand, Trinidad and Tobago, Jamaica, South Africa, the UK, and Israel. All of them share a key difference from the U.S. version, however: the information on the registry is not available to the public but only to the police, and where the community is informed, they may not hinder the right of ex-offenders to get on with their lives. Barbaric in its exceptionalism, the U.S. is the only country that banishes sex offenders from the community after serving their sentences, either by geographically zoning them out or allowing the community to drive them out, even assault them with virtual impunity (Levine; No Easy Answers).
When it comes to sex, the U.S. stands apart. As Roger Lancaster in Sex Panic and the Punitive State puts it, “Americans make sex a key criterion of their moral hierarchy with a zeal that is not equaled in any other industrialized democracy.” No other criminal offense unleashes the collective rage as the sex offense. American culture’s unique hostility toward the sex offender, with its roots in Anglo-American Puritanism, finds contemporary expression in perpetual national anxiety over the specter of the “imperiled child” (Lauren Berlant, cited in Lancaster). It’s too early to assess the #MeToo movement’s impact on sexual mores and codes of conduct. The outing and shaming of people in authority who have exploited those under them for sexual gain is laudable. But rewriting ever broader forms of sexual misbehavior into law only gives greater discretionary power to the courts and the police to expand the population of offenders beyond its already staggering scope. In a snowball effect, the public clamors for greater vigilance and ruthlessness against sexual offenses, politicians, and judges are elected on platforms promising just that, and the prison-industrial complex, in turn, feeds on increased funding and sanction to apply their powers with greater indiscriminateness to the population at large. If the purpose of sex law is to make the consequences of violating it so terrible that no sane person would dare contemplate exercising sexual freedom in any form, the result is a society living in fear of itself.
I suspect that most people—educated, civilized people—could hardly care less about the fate of convicted sex offenders. After all, they only got what they deserved. They constitute a small enough slice of the population to be of little concern to the rest of us anyway. Their punishment, though harsh, sends a signal to the law-abiding majority to stay clear of this most volatile of society’s hazard zones. If their example succeeds in keeping such offenses in check, then it is of practical consequence. In any case, our sympathies should lie with the victims of sexual abuse and assault, not the perpetrators.
I have a different angle on this. Persecution of hated groups is one of the defining features of fascism. Once underway, oppression’s tendency is to deepen, multiply, and encroach on ever-larger segments of the population. It is a dynamic, reinforcing process, enlisting the cooperation of the masses. Even the most dictatorial and tyrannical of regimes seek some legitimacy in popular support to justify their policies. Fascist regimes tap into the social and economic discontent caused by these very regimes to focus and direct popular rage at scapegoated groups through crude nationalist or racist demagoguery. By doing so, they lift the bar of state power and enlarge the parameters of control over the entire population.
It doesn’t just stop at one group, such as Hitler’s persecution of the Jews; the Nazis also singled out Communists, gypsies, homosexuals, and the disabled. The more categories of the despised there are the better: they allow the dominant group to define itself against them and feel good about itself, which shores up more popular support for the state. The state in turn gives surrogate expression to the public’s inchoate rage and renders this discourse articulate and eloquent. As the public relies on the state to explain reality, people are dumbed down in the process and made more susceptible to brainwashing. They do the state’s bidding in channeling back this articulated rage toward the hated groups. The result is that sexual persecution is becoming as American as apple pie.
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Nir, Sarah Maslin. “A 7-year-old was accused of rape. Is arresting him the answer?” The New York Times, 3 June 2021.
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Rogers, Tom. “My own pupils targeted me in the TikTok paedophile craze—now I can’t go back to our school.” The Telegraph, 23 Nov. 2021.
Stillman, Sarah. “The list. When juveniles are found guilty of sexual misconduct, the sex-offender registry can be a life sentence.” The New Yorker, 14 Mar. 2016.
“Teacher acquitted of having sex with student finds work as a waitress.” Inside Edition, 28 Sept. 2018.
Winerip, Michael. “Convicted of sex crimes, but with no victims.” The New York Times, 26 Aug. 2020.
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Related posts by Isham Cook:
Transgressions: From porn to polyamory
The sewage system, or What is fascism?
American fascism: The sexual rage of the state
Sexual surveillance in the Covid-19 era