The Vulnerability of Heterosexuality: Consent, Gender Deception and Embodiment
| Author | Mitchell Travis |
| Published date | 01 June 2019 |
| DOI | 10.1177/0964663918773151 |
| Date | 01 June 2019 |
| Subject Matter | Articles |
Article
The Vulnerability
of Heterosexuality:
Consent, Gender Deception
and Embodiment
Mitchell Travis
University of Leeds, UK
Abstract
This article considers the institutional frameworks that privilege heterosexuality, police
notions of sex and gender and individualize discussions and responsibilities around
consent. In doing so, Vulnerability theory is drawn upon and added to through the
introduction of a richer conception of embodiment. By understanding embodiment as a
product of corporeality, discourse and institutions, vulnerability theory is better
equipped to engage with the complexities of LGBTIAQ identities. The article traces
these developments by engaging with a series of recent criminal law cases concerning
deception as to gender. It then reflects upon the ways in which institutions such as law,
the family and educational systems focus on individualizing responsibilities around con-
sent rather than focusing on their own role in creating the conditions under which non-
heterosexual sex is disincentivized, constructed as predatory and ultimately criminalized.
It concludes by demanding a new approach from the state that moves away from carceral
approaches towards educative programmes grounded in substantive equality.
Keywords
Consent, deception as to gender, embodiment, McNally, vulnerability
Corresponding author:
Mitchell Travis, School of Law, University of Leeds, The Liberty Building, Leeds, LS2 9JT, UK.
Email: m.travis@leeds.ac.uk
Social & Legal Studies
2019, Vol. 28(3) 303–326
ªThe Author(s) 2018
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DOI: 10.1177/0964663918773151
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Introduction
Since the summer of 2013, there have been a series of cases in the criminal law of
England and Wales examining the notion of deception as to gender.
1
Though each of the
cases involve differing facts and circumstances, at their core, these cases involve people
being ‘tricked’ into a sexual encounter with someone of the same sex. These cases are
problematic and have been heavily criticized (Childs, 2016; Doig, 2013; Sharpe, 2014,
2016). This article engages with vulnerability theory while adding to the theory’s con-
ception of embodiment by drawing upon post-structural feminism in order to highlight
how embodiment is always shaped through the material, the discursive and the institu-
tional. This article then uses vulnerability theory to move discussions away from con-
sidering these cases as unique, self-contained instances towards a broader institutional
focus that interrogates the ways in which structural biases and inequalities may disad-
vantage sexual minorities. In doing so, this article considers the ways in which consent
and sexual relationships are constructed and understood by institutions such as law, the
family and the education system allowing for a cross-institutional interrogation of gender
roles, trans embodiment, carceral justice and support services for LGBTIAQ youth. The
article then moves to question whether the perpetuation of these institutional biases is a
method of mitigating intrinsic institutional vulnerability. As such, the article draws upon
a wider construction of vulnerability than is commonly used capable of examining
vulnerability at an institutional as well as an individual level (Dehaghani and Newman,
2017; Fineman, 2010; Marvel, 2014–2015). In its conclusion, the article moves to
consider how a more responsive state would require responses to institutional vulner-
abilities to be anchored in substantive equality.
Law, Vulnerability and Embodiment
Martha Fineman’s pioneering work on vulnerability has considered the precarity of the
body in its material and social contexts (Fineman, 2008, 2010). Vulnerability theory
gives us a unique vantage point from which to conduct this analysis, as it acknowledges a
vast range of human variation across both a physical and temporal scale over the life-
course (2008, 2010, 2012). Vulnerability theory offers the idea that we are all dependent
through various relations of care and need, starting from childhood and stretching into
our elderly years. This analysis is capable of covering not only dependence on the family
(so often constructed as ‘natural’ and ‘inevitable’ – Fineman, 2004) but also other
relationships with institutions and the state that mostly fail to be seen as dependence –
for example, reliance on a fair and functioning police force; a just legal system; or
accessibility to clean water.
While all bodies are universally vulnerable, these vulnerabilities are felt in particular
ways and can be ameliorated or exacerbated by relationships with institutions, the state
and other circumstances. For example, all bodies are vulnerable to illness; however,
individuals may have a range of differing resources in order to mitigate the effects of
illness. These resources are generally governed, allocated and distributed by institutions
at the behest of the state. Thus, resilience to illness and its effects are affected by laws on
the cost, patenting and distribution of drugs, and the circumstances under which the state
304 Social & Legal Studies 28(3)
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