The Pros and Cons of Repealing All Sex Laws

 

            The question as to the pros and cons of repealing all sex laws is really a philosophical one, which entails many other questions. How much are we personally responsible for our own safety and well-being, and how much do we require the law to protect us?  How much should we be allowed to control the sexual behavior of others? How much faith do we put into a justice system whose main focus is on punishing people, rather than rehabilitating them? And who can really say what the result of repealing all sex laws would actually be?  Instead of answering these questions directly which would lure me into a very personal essay, I have chosen to first explore the history of sex laws, and then take a look at the current sex laws in the United States, commenting on particular issues pertaining to each law.

Laws on sexual matters are believed to have been in existence since the beginning of civilization, which is believed to be that of the early Ancient Egyptians. Consequently, these first sex laws were in the form of pictures, as writing had not yet been invented. The first laws that were actually written down and still remain to us were from about 1750 BC, come from the ancient civilization of Babylon, and are believed to have been based on customs and practices that had already been in existence for centuries before that. This comprehensive code of laws, known as the Hammurabi Code, named after the great Babylonian king Hammurabi, dealt at length with adultery, and also covered rape and incest, but said nothing of homosexuality or prostitution. It should be noted that adultery and rape were crimes committed against another man in reference to his property, women and children. A married man having sex with a prostitute was not considered to be adultery, nor could a man be convicted of raping his own wife. Indeed, the double standard goes way back.

In ancient Greece, there were still only laws against adultery, incest and rape. However, during the Ancient Roman period, although still generally accepted and legal, the Ancient Greek practice of pederasty did become illegal in some cases, such as having sex with a boy under the age of twelve, or committing the homosexual equivalent of rape. Solon, the great legal codifier of the early 6th Century BC, although a pederast himself, actually imposed the death penalty sentence for any adult male who was merely found, without proper authority, on the premises of a school.

It was not until the world’s first monotheistic religion—Judaism—that prostitution, homosexuality, pre-marital relations, and masturbation, became perceived as impure acts that pollute the divine flow of sexual pleasure, and “divine” laws, or commandments, that prohibited such acts, were created. The Christians, influenced in fact by Greek mythology, evolved to perceive almost all kinds of sexual behavior as unclean or ungodly, including sexual intercourse in a sanctioned marriage between husband and wife, if it was for pleasure alone. Gradually, as Christianity spread, and became the official religion of states, laws were made in attempt to restrict any human sexual behavior that was not marital, monogamous, heterosexual, and procreative, essentially leaving only coitus between married persons as a legal sexual activity.

Currently in the United States, our sex laws include sodomy, fornication, adultery, bigamy, incest, prostitution, transmission of a disease, rape and sexual assault, age of consent, position of trust and authority, bestiality, necrophilia, voyeurism, public nudity and indecent exposure, possession of obscene materials, and obscene communications. (I have chosen to look only at the statutes that concern sexual behavior, and not those that concern sexual health.) While some of these laws are clearly in place to protect us from maltreatment or harm, others seem to serve either partially or solely to protect an antiquated morality that clings stubbornly to our culture, wedded to the fearful doctrine of fundamental Christianity, allowing one group of people with a particular set of beliefs and morals to control the sexual behavior of another group of people, who have different beliefs or morals.

The sodomy laws, which used to refer only to anal sex between men, became to mean virtually any non-coital sex, including oral sex and anal sex between any two individuals, regardless of their sex. The terms “crimes against nature” and “deviate sexual intercourse” are currently still used in the sodomy statutes of some states. About half of the states still have sodomy laws. Repealing these laws would decriminalize homosexuality, and give us our freedom of sexual expression, what many consider to be a fundamental right under the Constitution of the United States of America.  In fact many had hoped that the Supreme Court would rule state sodomy laws unconstitutional, but in 1986 in Bowers v. Hardwick, they ruled that there is no fundamental right to engage in homosexual conduct, even when practiced by consenting adults in the privacy of their own homes.

Like unto the sodomy laws are the fornication laws, laws that violate the constitutional right to privacy in many people’s minds.  While most states no longer have fornication laws, some states still have statutes that consider it to be a misdemeanor for two consenting persons who are not married to either engage in intercourse or cohabitate. Although the United States Supreme Court has never has the opportunity to consider whether fornication statutes are in violation of the constitutional right to privacy, some state courts have held that fornication laws violate the state constitutionality, as in State v. Saunders, 75 N.J. 200 (1977). However, even though these laws are no longer directly enforced, they are still occasionally brought along with other charges, such as sexual assault or public nudity, when a conviction on the primary charges is not certain. Repealing the fornication laws may give prosecuting lawyers one less trick to pull out of their bag, however it would give all of us our constitutional right to privacy.

While some statutes consider adultery to be criminal activity, either a misdemeanor or a felony, many statutes consider adultery to be merely a civil offense, and grounds for divorce only. Only a few states have no statute whatsoever concerning adultery. Although adultery charges are rarely prosecuted, in many states, proof of adultery can influence the distribution of property or child custody, and in some, adultery requires the forfeit of any interest in the estate of a deceased spouse. Who can be considered guilty of adultery also varies from statute to statute. In Minnesota, adultery only refers to sexual intercourse between a married woman and an unmarried man, there being no prohibition against sex between a married man and an unmarried woman. In this day and age when divorce is easily procured and the institution of marriage is not the law of the land, it seems we have little need for the adultery laws.

The bigamy laws prohibit a person from being married to more than one person at a time. These laws were created in order to protect an innocent third party who unknowingly marries someone who is already married. Certainly, we need to be protected against such deception, but there are indeed cases where all parties agree to the plural marriage, and even in these cases it is considered a felony. In the 19th Century, the Mormons challenged the bigamy laws as an infringement of their free exercise of religion, but the Supreme Court rejected that contention. These laws also seem clearly to be based in Christian orthodoxy, and in violation of our constitutional rights. Two possible solutions would be to repeal the bigamy laws, and make sure individuals were adequately protected against deception through other laws, or to maintain the bigamy laws, but make exemptions for parties who agree to live in a plural marriage and draw up their own contract.

Although in Ancient Egypt it was not unusual for brothers and sisters to marry one another in order to keep the property in the family, incest taboos and laws against it do date back to the Hammurabi codes from Babylonian times. Currently in the United States, every state, except Rhode Island, has some statutory prohibition against incest, and it is considered a felony in every state, except Delaware and Virginia, where it is considered a misdemeanor. Aside from situations where the incest also involves age of consent issues, there is a question as to whether or not anyone is protected. The main argument supporting the incest taboo and laws involving “the genetic theory that sexual unions between individuals who were closely related would be more likely to produce defective offspring,” (p. 12. Barnett) may now actually be rendered more debatable by modern genetic science, and perhaps made completely irrelevant due to the availability of effective contraception. Between two consenting adults, one could argue that even in incest, there is no party a victim, and that either having sexual contact with or marrying a relative should be a constitutional right.

Efforts to end prostitution through legislation are numerous, and date way back. The Emperor Domitian, of the 1st Century AD, ruled that prostitutes could not use litters for transportation and also attempted to prevent prostitutes from receiving inheritances. He also prohibited the prostitution of infants. In the 6th Century AD, the Eastern Roman Empire’s Justinian Code, gave a wife grounds for divorce if her husband took concubines or prostitutes, in an attempt to legally destroy such practices. Since the beginning of United States history, and to this day, the prostitution statutes just flat out prohibit it. Of course, it seems there is no getting rid of this profession, regardless of legal attempts.  In fact, today, the law most often goes after the people who make a profit from prostitutes, and it is the organizational structures of prostitution that are often perceived as the source of harm rather than the individual acts of prostitution.

Advocates of prostitution laws emphasize disease prevention as the primary goal, however many states now have transmission of disease statutes that serve to protect us against that danger. People have also believed the laws would help suppress organized crime that surrounded prostitution, protect the integrity of the family, protect non-participants from unwelcome solicitations, protect prostitutes from physical abuse, and protect minors from being coerced into a life of prostitution. Many others believe that decriminalizing prostitution is in fact the way to take care of many of these problems. If prostitution were legal, the profession might be less stigmatized, and it would be easier for prostitutes to seek help when they needed it. Besides, sex between consenting adults, even in exchange for money, should be protected as a fundamental right.  Some would like to regulate it, giving the state the power to require STD testing and to collect taxes, while others would merely like to see it decriminalized.

I think most would agree that we need some type of law to protect people from rape and sexual assault, by giving them legal recourse. Repealing this law would make it so that there were no consequences for a person who resorts to force or coercion in order to procure sexual contact or who uses sexual contact in a forceful way in order to inflict violence. However, some of the state’s marital exemptions from rape and sexual assault, are for the benefit of the offender, and not the victim. In some states, these laws lessen the severity of rape if it is within a marriage; perhaps the logic being that forcing one’s spouse to engage in sexual contact is somehow less harmful, or simply more acceptable because of their relationship.  In fact, I think the argument could be made that rape is more detrimental when it is between two people who have a bond, and there are trust and dependency issues, and perhaps that the laws should be even more severe. Repealing the marital exemptions from rape and sexual assault laws would protect people from sexual violence within a marriage. 

The age of consent laws reflect a person’s capacity for meaningful psychological consent, based solely on their age. In our culture today, most people feel these laws are necessary, however many argue about what that age should be, and indeed some do argue about whether we should have them at all. The age of consent varies from state to state, ranging from 14 to 18 years old, the vast majority of states setting it at 15 or 16. The age of the defendant, as well as the type of sexual activity, also plays into the statutes of the different states. Repealing the age of consent laws, advocates say, would give children the right to choose to be sexual, and they would still be protected by rape and sexual assault laws if they were forced or coerced. However, most fear that children would get taken advantage of, because of their inherent vulnerability as suggestible creatures that are in the routine of going along with what grown-ups say and want, making force or coercion unnecessary, however still potentially making them victims.

 In her 2002 book Harmful to Minors, Judith Levine speaks out for reform of these laws, remarking that there is “no distinct moment at which a person is ready to take on adult responsibilities, nor is it self-evident that only those who have reached the age of majority are mature enough to be granted adult privileges,” (p. 88. Levine) and that criminal law is not the proper place to deal with a family’s conflicts over their child’s sexuality. Levine considers Holland’s more flexible laws concerning age of consent to be more reasonable than those in the United States. Sexual intercourse is legal in Holland for people between 12 and 16, however, they, or their parents, can employ the statutory consent age of 16 if there was believed to be coercion or exploitation involved.

There are also laws that concern themselves with the abuse of position of trust and authority. Like the age of consent laws, these laws assume that certain relationships are vulnerable to abuse and need protection, only these have to do not with age but with position of authority or trust. Such relationships are guardian/child, teacher/student, doctor/patient, employer/employee. While some states have no statute whatsoever, most consider it a felony for a person who is in such a position of trust or authority to engage in sexual penetration or sexual contact with the vulnerable party. Indeed, making sexual contact between two consenting adults a felony, no matter what the relationship, seems excessive. On the other hand, repealing these laws altogether would not be protecting those vulnerable to such abuses of power.

Many of the old sodomy statutes included the act of bestiality. Today there are separate statutes for this. Statutes concerning bestiality vary from state to state, including only acts of penetration in some and oral acts as well in others, and making it a misdemeanor in some states and a felony in other states. Many states have no statutes. Whether or not having these statutes actually does much to protect animals from human sexual contact, is an unknown. Because of the nature of this crime, it is not commonly reported. Once again, there is inevitably a huge moral component to this law, which has nothing to do with victimizing animals, and everything to do with what some consider to be sinful behavior, or an “unnatural act.”  I doubt that repealing these laws would make for more incidents of bestiality, however advocates of the bestiality laws argue that animals are vulnerable and do need to be protected.

Most states have no statutes concerning necrophilia. Those that do consider it to be either a felony or a misdemeanor, taking into account particular behaviors. For example, in some states, it is considered a greater offense if committed knowingly in front of another person. Whether or not having this law actually does much to prevent this kind of behavior, is in question. While it makes sense that someone might be considered a victim if they were somehow made to watch such an incident, and the family of the dead person would probably be offended by such an incident, therefore making them victims of sorts, making this act a felony seems excessive.

Statutes pertaining to voyeurism generally consider it to be trespassing with visual observation, and it is considered a misdemeanor. Many states have no statute whatsoever. The nature of this crime is invasive, and although truly does little, if any real harm, does make people feel unsafe, and many feel we need to be protected. Statutes that pertain to public nudity and indecency also leave us vulnerable to the morality of some. Some statutes consider nude sunbathing or nude recreation to be indecent or lewd behavior. While we most certainly need to protect people from those seeking to sexually gratify themselves by exposing their genitals or nude body in an invasive or protrusive way, we must also allow for the right of people to be nude if they choose to be.

Most of the statutes concerning the possession of obscene materials no longer prohibit the possession of obscenity that depicts adults, only children. Material can be defined as obscene when it “has a dominant theme that appeals to the prurient interest of sex, is patently offensive in affronting community standards regarding the description of sexual matters, and the material, taken as a whole, lacks serious literary, artistic, political, or scientific value.”  (p. 188. Posner and Silbaugh) Supreme court case Hamling v. United States, 418 U.S. 87, 125-27 (1974) ruled that no expert testimony was necessary to determine the community standards. This leaves us vulnerable to the morality of some, for example, who perceive even a nude picture of one’s own child to be offensive. Most would argue that children do indeed need to be protected from commercial exploitation, however, some argue that possessing the material should not be a crime, however producing it should be. The counter argument to this of course is that if there is no demand, the supply decreases.

Almost all states have statutes that pertain to obscene communications, many of which have been challenged in state and federal courts as unconstitutional, based on two theories. One theory is that the obscenity laws infringe on the right to free speech; however, obscenity is not protected by the First Amendment, therefore this part of the statutes is generally considered constitutionally sound. The other theory is that the laws are unconstitutionally vague, and the more difficult issues arise over language that is “offensive,” “annoying,” or “indecent.” A number of courts have indeed found the statutes against obscene phone calls unconstitutional, while others have upheld them. Statutes that maintain that the offender must have specific intent to offend or annoy, are more likely to be upheld.

Repealing all sex laws would take away the legal right that people now have to control the sexual behavior of others. And, perhaps in time, there would be a decrease in the stigma of certain taboos, which could be considered good or bad, depending on one’s own personal values.  I personally don’t think that repealing all sex laws would necessarily amount to more exploitation or abuse. I generally think that people adhere to certain behaviors based on their own moral and ethical standards, and not what the law says. Although some individuals may indeed be deterred from a life of crime due to external laws, most people are probably more internally motivated.  On the other hand, while the sex laws cannot guarantee us protection, they do make people accountable for their actions, and give the public a sense of justice through punishment or safety through imprisonment. Although liberals and conservatives tend to polarize on such issues, the answer seems to almost always lie somewhere in-between. While the answer may not be to repeal all sex laws, risking the loss of protection or a sense of safety, the answer is certainly not to take away our freedom of sexual expression, by allowing the morals of some to reign in the legal system. We must continue to educate society as to the normality of a variety of sexual behaviors, and to clear out the cobwebs that exist within current statutes.

References

 

Barnett, Walter. Sexual Freedom and The Constitution. Albuquerque: University of New Mexico Press. 1973. pp. 333.

 

Beserra, Sarah. Jewel, Nancy. Matthews, Melody. Sex Code of California. Sausalito: Public Education and Resource Committee of California. 1973. pp 197.

 

Bresler, Fenton. Sex and the Law. London: Century Hutchinson Ltd. 1988. pp 280.

 

Greene, Richard. Sexual Science and The Law. Cambridge and London: Harvard University Press. 1992. pp 323 

 

Estrich, Susan. Real Rape. Cambridge: Harvard University Press. 1987. pp 160.

 

Levine, Judith. Harmful to Minors: The Perils of Protecting Children from Sex. Minneapolis: University of Minnesota Press. 2002. pp. 299

 

Posner, Richard. Silbaugh, Katharine. A Guide to America’s Sex Laws. Chicago: University of Chicago Press. 1996. pp 243.