3. “IT FORCED ME TO OPEN MORE THAN I COULD BEAR”: H.A.D., PAEDOPHILIA, AND THE DISCURSIVE LIMITS OF THE MALE HETEROSEXUAL BODY

Pages53-72
Publication Date30 December 2004
DOIhttps://doi.org/10.1016/S1059-4337(04)34003-2
AuthorBen Golder
3. “IT FORCED ME TO OPEN MORE
THAN I COULD BEAR”: H.A.D.,
PAEDOPHILIA, AND THE
DISCURSIVE LIMITS OF THE MALE
HETEROSEXUAL BODY
Ben Golder
We must conceive discourse as a violence that we do to things, or, at all events, as a practice
we impose upon them (Foucault, 1971, p. 22).
INTRODUCTION
In this paper I want to look at just one of the many contemporary legal narrativesof
homophobia – the phenomenon of the “Homosexual Advance Defence” (H.A.D.).
While I agree with the analysis of one American commentator, who indicts the
H.A.D. as a “judicial institutionalization of homophobia” (Mison, 1992, p. 136),
I maintain that it is important to extend analyses which take as their main target
the entrenchment of bigoted judicial views or which employ as their main critical
tool a liberal framework of equality and discrimination (for example, see Potter,
2001). Just as Eve Kosofsky Sedgwick urgesus not to view homophobia as simple
ignorance or bigotry (see Howe, 2000, pp. 85–87), I argue that there is much more
at stake with the H.A.D., and consequently much more required of us, than mere
questions of ignorance, discrimination and (re-)education. While it is important to
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 53–72
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34003-2
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54 BEN GOLDER
identify and condemn at every turn the various legal and social manifestations of
homophobia, of which the H.A.D. is clearly one, it is just as important (if not more
so) to interrogate the discursive and epistemological foundations, or legitimations,
of these very beliefs.
To this end, I want to situate the H.A.D. within a general economy of the
body in order to uncover what legal inscriptions of the male heterosexual body
subtenditsnarratives,and how these inscriptions legitimise, produce and reproduce
violence against homosexual men. I shall perform a reading of recent Australian
and New Zealand case law on the subject of the H.A.D., with the aim of
demonstrating how a particular social understanding of the male heterosexual
body as bounded and impermeable engenders the twin (and interchangeable)
figures of the penetratory/predatory homosexual and the child sexual abuser.
Specifically, I want to argue here that we must understand the frequently invoked
child sexual abuse factor in H.A.D. narratives, not as a discrete or unrelated issue,
but rather as a functional element in the H.A.D. matrix of male heterosexualbody-
penetratory/predatory homosexual-child sexual abuser. Once we have a clearer
understanding of the arrangement and interplay of these figures as a discursive
matrix, then we will be in a better position to formulate textual strategies of
resistance to the legal violence of the H.A.D. through composing new metaphors
of the body.
DEFINITIONS, HISTORY, MACABRE METHODOLOGY
I should perhaps begin by outlining how I propose to limit my discussion and also
howIdefinethetermH.A.D.IuseH.A.D.incontradistinctiontoa verysimilarterm
of much earlier provenance, “Homosexual Panic Defence” (HPD). The concept of
the HPD was originally employed by American scholars to refer to cases in which
a defendant would plead insanity, or diminished responsibility, in answer to the
charge of murdering a homosexual victim (Bagnall et al., 1984, pp. 498–515). The
plea rested on the rather dubious clinical basis of a psychological disorder entitled
“acute homosexual panic,” a condition first identified by the psychiatrist Edward
J. Kempf in 1920. According to the psychological material, a patient suffering
from “acute homosexual panic” is actually a “latent homosexual” who experiences
feelings of revulsion and self-loathing. The legal defence is based on the idea that a
person suffering from this condition undergoes a “violent psychotic reaction” and
lethalloss of self-control consequent upon his receivinganunsolicited homosexual
advance. Assuming that the legal criteria for insanity, diminished responsibility
or substantial impairment (in New South Wales) are established, then, depending
on the plea, this loss of self-control serves either to absolve the defendant from

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