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59 2 This chapter examines the gender constructions present in the normative discourse that defines which sexual practices are considered crimes in Mexico. The goal is to contribute to debates about the right to make decisions about one’s own body and about gender equity. The chapter begins with a brief review of crimes against individuals’ sexual freedoms, examining in detail the definitions of some crimes characterized not as affronts against those liberties but as crimes against family order (including estupro, consensual sexual intercourse with an honest woman under the age of eighteen or seventeen; rapto, kidnapping with the intention to have sexual intercourse and/or to marry; and adultery). The discussion continues with a critical analysis of these penal norms from a gendered perspective, comparing the current legislation in Mexico’s thirty-one states and in the Federal District and Federal Penal Codes. This analysis permits inferences about social constructions of feminine and masculine identities, social relations between men and women, and sexuality—constructions that underpin the formulations of criminal law in contemporary Mexico. The goal is to identify problematic aspects of these formulations, and the tensions that exist between legislators’ constructions and the visions of the women’s movement and of gender studies. Before turning to an examination of legal texts, however, the chapter briefly overviews international discourses on sexuality in order to situate the influence that these discourses have on formulations in Mexican penal codes. Contemporary Discourses on Sexualities The subject of sexuality emerged as a specific object of study and as an explicit topic in normative and public discourses in Western societies at the end of the nineteenth century. Since then, it has been considered an area of expertise in Sins, Abnormalities, and Rights Gender and Sexuality in Mexican Penal Codes IVONNE SZASZ Chap-02.qxd 4/7/07 10:54 AM Page 59 the clinical disciplines, including psychology, psychiatry, pedagogy, sexology, and medicine, that work with individuals. These disciplines have as their objective the study of forms of individual behavior considered dependent on the overall functioning of the mind or the biological systems (Bozon and Leridon 1993). For these schools of thought, individuals and sexual impulses exist prior to social order (Gagnon and Parker 1995). This scientific discourse on sexuality is not totally separate from the religious ideas that preceded it—ideas still hegemonic in Latin America. Both Christian religions and Western medicine have viewed sexuality as a basic impulse that requires social controls, something that is different in men and women, and the appropriate expressions of which are sexual relations between adult men and adult women within the bonds of marriage. Positivist scientific discourse on this subject was viewed in Mexico as a liberating influence because it constituted a modernist reaction against traditional moralities. Traditional Catholic discourse characterizes nonprocreative sexual relations as sinful , considering that the carnal pleasure produced by sexual intercourse should not be sought as an end but rather as a means of procreation. Thus, Catholic discourse advises the moderation of pleasure and of the acts that lead to and accompany procreative intercourse; at the same time, it proscribes “perverse” (nonprocreative) forms of erotic pleasure (such as masturbation, bestiality, anal penetration, erotic activities with persons of the same sex, and coitus interruptus) and “lewd” fantasies or thoughts (Ortega Noriega 1988). In contrast, positivist scientific thought has offered a different normative framework, one that considers erotic desires natural in all stages of life. It labels “normal” those heterosexual practices among adults (married, if possible) aimed toward erotic pleasure, whether or not they have procreation as the goal. This perspective assumes that science is capable of arriving at an impartial, universal notion of sexuality that, if known to and exercised by everyone, is capable of contributing to human well-being (Gagnon and Parker 1995). Throughout the twentieth century, but especially in the post–World War II period, both traditional moralities and modern disciplines have presumed to offer legitimate understandings or “true discourses” on sexual and reproductive practices through such means as health care programs, policies concerning the human body, and normative systems. The “true discourses” of positivist scienti fic thought have intermingled with moralities on sexuality imparted by religious institutions. Although religious normative discourse has focused on prohibiting sexual practices that endangered the familial order or blocked procreation , scientific discourse has been more concerned with “deviant” erotic desires and adolescent sexuality. The discourses on sexuality in feminist thought and in the critical social sciences...

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