Anthony Weiner, Sexting, Medicalization, and Legal Moralism, Or (To Be Provocative) “What’s So Wrong About Sexting?”

Like most people, I am both amused and shocked by the latest Anthony Weiner sexting revelations and scandal. It is like a car crash where it is hard to look away even though you know you should.

Most germane to Bill of Health’s readership, I am fascinated by the “medicalization” of Weiner’s behavior by some sectors, this CNN clip with therapists is to me a good example. The words “sexual addiction,” “exhibitionism,” comparisons to alcoholism, “not in control of his actions” are bandied about. This to me has fascinating echoes of the medicalization of homosexuality in the 70s and also the medicalization of the choices made by the transgendered. There like here the strategy is fraught. The patient has to perform the “sick role” as a way of excusing himself from responsibility and/or earn governmental support.

The comparison, though, prompts the following question (and yes I am purposefully trying to be provocative so take it with the appropriate grain of salt): As with homosexuality, what is the underlying problem here that calls out for condemnation? Is this merely legal moralism rearing its head again? What’s so Wrong About Sexting?

Well, let’s try to answer the question. Let’s take the Weiner situation as our case study. Weiner did many things wrong in the first and more recent revelations. He lied and misled the public about what he had done. He flirted virtually with a woman other than his wife and potentially embarrassed his wife (though this strikes me as less wrong then an extramarital affair which is de rigeur in politics). He showed a technological stupidity in sending it out on his twitter feed. Perhaps he showed “bad judgment” in doing something where he would likely get caught (as an aside, does that mean we want our politicians to be better at doing wrong things so we don’t catch them?) All of these are contestable, but I will grant they form a basis of condemnation.

But factor these out for a moment. The act of Sexting itself. Why is that wrong? If one person (and to factor out infidelity, lets say both are single) shows off their naked body to another in the form of a photo, what would make that wrong?

Well, one thing would be if you sent your naked body to uninterested or unwilling partners. That would be like walking around nude in your street. Some people just don’t want to see your genitals no matter how gorgeous you think they are! His original twitter fiasco may have had this problem, but not the most recent allegations.

Is it because he enjoyed the thrill of showing it off? Maybe we think there is some virtue of modesty that is being trampled on? If that was enough to make it wrong I imagine the modeling industry may have some problems going forward.

Is it paternalism? In the case of minors sexting I can understand the concern that the photos will get heavily circulated and one will lose control. But I suppose that’s what apps like snapchat are trying to avoid, and when it comes to a full-grown person like Weiner I think it is fair to let him assume the risk. In any event, if this is the objection let’s simplify by saying that he used snapchat or another mechanism to make sure no one but his intended recipient saw his junk (which apparently he didn’t, more technological stupidity).

If no one is harmed, no one has this imposed upon them without consent, and both the sender and parties enjoy the practice, again I ask what makes it wrong?

I suspect it has to be some legal moralist (or at least moralist where the law does not intervene) idea that attaches special importance to our naked bodies (but only those below the waist since men and women show off what’s on top regularly on HBO to millions) and condemns those who want to display it outside marriage (or at least advanced courtship). That is the same kind of legal moralism that Justice Scalia marshals in his dissent in Lawrence v. Texas to justify the constitutionality of criminalizing same-sex sex, and which I have been on record as a skeptic about ( If this is what’s wrong with Sexting, so be it, but let’s be honest then. What we think Weiner needs is not a therapist, but a scarlet letter.

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

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