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PSY 153
SEX AND THE LAW
Within our developmental perspective on human sexuality, we have tended to discuss new topics first from the biological view, then the psychological view and, finally, from the sociological, or social, view. We got you born and raised and we've had you involved with someone for some little time now, so it might behoove us to look, in much more detail, at those aspects of sexuality in which society, and other social factors, plays a prominent role.
There are a number of social arenas, or institutional umbrellas, from which we could consider the sociology of sex...we could consider religion and see what the church tells us we should and shouldn't do, we could consider education and see what the school has taught us about sex (and, more particularly, what it hasn't taught us, but should have), and we could look at family like in America and concern ourselves with what the home has done in terms of preparing us for our relationships.
We could look at sexuality from any of these viewpoints, but the arena which governs our sexual lives in more surprising ways than any other just might the arena of the sexual statutes. Let's look at SEX AND THE LAW.
It is simply a fact that many people are unaware that there are laws in existence which define everyday sexual experiences and behaviors as crimes. The fact that many such laws are rarely enforced in no way negates the importance of being aware that they exist. As long as they do, the very real possibility also exists that they could be applied capriciously, discriminantly and politically.
Why such laws are on the books is increasingly being questioned. Part of the reason, but probably not a sufficient part, lies in the rationale for any behavior having criminal sanctions against it. Some ideal criteria have been delineated:
1) most people see the behavior as socially threatening, i.e., no significant segment of society condones it
2) there are no other reasonable ways of controlling the behavior than by criminal sanctions...consider Germany's autobahn
3) suppressing the behavior will not inhibit socially desirable conduct ...medicine's malpractice, then "good Samaritan" laws
4) the criminal process will not suffer undue strains in trying to deal with criminal sanctions against the behavior...consider "prohibition"
In sum, these points concern themselves with having laws for the purpose of preserving public order, i.e., making it possible for people to pursue their lawful endeavors without fear of attack, plunder or other harm. But do they apply to behaviors like masturbation, oral-genital contact, homosexuality?
Even when such behaviors are conducted in private, they are still crimes in many states.
Our discussion should make it clear that U.S. sexual statutes are not directed toward "the preservation of public order," but instead are a reflection of a particular ethical/religious view: that the sole purpose, and legitimizing aspect, of sexual activity is reproduction.
The constitutional provisions for the separation of church and state are sufficient grounds for questioning laws directed toward enforcement of particular religious views, but most sexual statutes can challenged on other constitutional grounds as well:
1) Vagueness -- many laws do not define the prohibited act well at all, or subsume such acts under a general term like "crimes against nature."
"It's not nice to fool with Mother Nature," I guess. In any event, with such imprecise terms, anything can be considered a crime, if enough people get mad about some behavior...nose-picking, toe-jam saving, etc.
2) Right of privacy -- in precise terms, it should be understood that this is not a right specifically cited in the Constitution; Supreme Courts, until the present one, had always decided cases as if there were such a right implied throughout the Constitution, but "the jury" is still out on whether this "right" will remain. In any event, most violations of sex laws occur in the privacy of the participants' homes, so to enforce such laws, one's privacy must be violated.
3) Guarantees of equal protection under the law -- some acts engaged in by heterosexuals, for example, lead to nothing, except perhaps the pleasure the couple enjoys; the same acts engaged in by homosexuals leads to prosecution and incarceration.
4) Safeguards against cruel and unusual punishment -- penalties in many instances for "sex" crimes greatly exceed the penalties for violent crimes.
We will consider these aspects as we look in greater detail at the three categories of sexual behavior which are subject to criminal sanctions. Briefly, these categories are:
1) the sexual behavior of consenting adults in private
2) sexual behavior involving public nuisance, force or violence, or children
3) behavior that involves the commercial exploitation of sex...at present, this is the most controversial category
Laws Pertaining to Consenting Adults
Our society is unique in many aspects of its sex laws, but no more so than its defining sexual intercourse between unmarried, albeit consenting, adults as a crime. Other societies may condemn it as immoral, some may set limits on it, others may even encourage it, but few others criminalize it as we do.
Specifically, this crime, in most states, is called fornication, but it has a number of variations...seduction (inducing someone to engage in sexual intercourse on the promise of marriage...sometimes prosecuted as "breach of promise, or contract"); cohabitation (generally defined as taking up residence as if a couple were married...in Texas, by law, the assumption is made that a heterosexual couple has carnal knowledge of one another if they live together.
BUT, it is unlikely that one would be prosecuted for cohabitation in Texas, because of our common-law marriage statutes. Do you know what a couple must do to be married by common law in Texas?
Once defined as sexual intercourse between two people who were not married, adulter's definition was broadened when defendants were able to exploit the loophole of being married, but not to each other. Now, it's more commonly defined in law as sexual intercourse between a married person and a non-spouse...note the sex of the non-spouse is sometimes not specified.
In any regard, it provides a good example of how sex laws can be applied in a discriminatory fashion. It is often the case that a married woman who has intercourse with a non-spouse will be charged with adultery if she is prosecuted. A married man who has intercourse with a non-spouse is likely to be charged with fornication, a lesser crime in most states and no crime at all in some.
The book, Loony Sex Laws, by Robert Payne Pelton (Walker and Co., 1992) offers some other examples of how laws govern the private sexual lives of unmarried people...consider these:
1) A couple cannot legally share a hotel bed in Sioux Falls, South Dakota. Hotels there are required to have twin beds that must always be a minimum of two feet apart.
2) Couples in Newcastle, Wyoming, are prohibited from having sex inside a store's walk-in meat freezer.
3) It is unlawful for men in Washington State to make love to a virgin. The law makes no exception for those who happen to be married to said virgin.
4) It's considered a crime for women in Tremonton, Utah, to engage in intercourse in an ambulance. (It is not a crime for the man.)
5) Men in Willowdale, Oregon, are forbidden to utter profanities during sex.
Well, how about consenting married adults? Most people assume that anything a married couple does in the privacy of their own home is legal. Their assumption is incorrect.
In almost every state in the union, any sexual activity, other than kissing (usually restricted to above the neck), caressing and vaginal intercourse, is a crime. Check out these laws, if you don't believe me:
6) It's against the law for anyone in California to engage in oral sex. The penalty is a 15-year jail term.
7) Newlyweds of Oblong, Illinois, may not make love on their wedding day while on a hunting or fishing trip.
8) A man in Alexandria, Minnesota, must not make love to his wife with the smell of garlic, onions or sardines on his breath.
Now, not only is the form of sexual activity regulated, but the frequency of intercourse between a married couple is also dealt with by law. How do we know this? We know this because as many women have been successfully divorced for refusal to engage in sexual intercourse (a frequency of zero is against the law) as men have been for unreasonable demands for intercourse (however frequent that may be), which constitutes cruelty in those states carrying such law.
The ludicrousness of this circumstance is exemplified by the case in which the Minnesota Supreme Court upheld a decision ruling that intercourse on the average of 3 or 4 times a week represented an "uncontrollable craving for sexual intercourse" on the part of the husband, and on those grounds granted the wife a divorce. Could the judges have been elderly?
Abortion
To talk about the consenting sexual behavior of married adults actually means we must inspect an aspect of sexual decisions that applies more to this group than most people realize. I promised you we would return to this topic, when we could have discussed it earlier in the course, at what would perhaps be a surprising time. Well, here it is. What's the topic?
Given that U.S. sex laws reflect a particular point of view about the "legitimate" purpose of sex and marriage, is it surprising that, until relatively recently, the right not to have children has also been limited by law? It probably shouldn't be, although, except for the issue of pornography, probably the most controversial question of sexual ethics involves whether or not the termination of the results of sexual activity should be allowed.
In this time, when there may not be a more divisive issue facing American society, not even the question of lifting the ban on homosexuals in the military, our society may be facing one of the most profound changes we have ever featured in our legal code.
It should be remembered that significant changes in abortion laws did not appear in our country until as recently as 1973. For many of you that may seem a long way back, but for those of us who were coming of age in the 60s and 70s, it's like it happened yesterday.
Perhaps a factor in bringing about that change in 1973 were pressure groups of the type to which I am about to draw your attention.
NON, the National Organization of Non-Parents, was a new association formed very early in 1972 to promote "child-free" marriage and to make non-parenthood a true option for married couples. Their rather small, but very vocal, membership was dedicated to childlessness as a way of creating "social space." To promote their program, they decreed two new holidays: Non-Mother's Day and Non-Father's Day; and they published a rather juvenile newsletter called NON-Sense.
Although somewhat childish in its promotion of childlessness, NON did make some valid points:
1) that so strong a cultural bias against childlessness exists in our society that a married couple could not freely choose to be child-free, and,
2) perhaps as a result, but still sufficient alone, motives for parenthood were often less than desirable. NON noted that some people had children to shield themselves from life's realities; some to fulfill their own frustrated hopes and dreams; some to have someone to possess and control; and, some to ensure financial support in their old age.
Finally, it should be noted that NON did not say everyone should be childless, only those who wished to be. They did suggest, however, that couples have only one child, but not before they were 21. A Washington psychiatrist, E. James Lieberman, said this makes good psychological sense because, "Our society thrusts people into parenthood prematurely. The best preventive psychiatry is becoming a parent at the proper time and for the right reasons."
Now, whether such groups were causal or not, in 1973, the U.S. Supreme Court did make an historic ruling...a ruling that seems to be not well understood today, because it was a ruling which permitted states to impose only minimal curbs on the right to abortion at will. No decision in the court's history, not even those outlawing public school segregation and capital punishment, evoked the intensity of emotion as did this ruling. A brief look at the history immediately preceding this ruling could shed some light on why this court decision has gotten the response it has.
First, the ruling was based on two prior decisions:
1) the 1965 Supreme Court ruling that struck down Connecticut's anti- contraception law, and
2) the 1972 opinion of U.S. District Judge Jon O. Newman that overturned Connecticut's anti-abortion statute. Judge Newman concluded that a fetus was not a person until it was born and that it had no constitutional rights. Recognizing that there were great differences in the opinions about when human life begins, he ruled that
"the moral certainty of some people must remain a personal judgment, one that they may follow in their personal lives and seek to persuade others to follow, but a judgment they may not impose upon others by force of law."
With its 1973 decision, then, apparently the Supreme Court of that time agreed with a typical pro-choice opinion that the freedom to get an abortion -- and the exercise of that freedom -- represented an advance in social ethics. Whether it was an advance is still hotly contested, but it certainly represented a trend away from simply a sanctity-of-life ethic toward a quality-of-life ethic. Personally, I can't pull them apart.
Homosexuality
One last word about this category concerns homosexuality. It should be made clear that it is not a crime to be sexually attracted to and oriented toward members of one's own sex. It is, instead, acts in which homosexuals tend to engage that are defined as crimes. In fact, oral-genital contacts, anal intercourse, mutual masturbation and other so-called homosexual acts are crimes, in many states, regardless of the sexes of the participants.
Nevertheless, the penalties for such acts are severe in many cases, and, as I have noted, unequally applied. More and more today, though, judges are fining individuals, suspending jail sentences, and placing first offenders, particularly, on probation. They know, as Judge Julius Hoffman notes, "...that putting a homosexual into prison is like trying to cure obesity by incarceration in a candy shop."
The Law and Sexual Psychopaths
It is generally agreed that sex offenses that involve public nuisance, force or violence, or children should continue to be prohibited by law. People who commit such offenses as exhibitionism, voyeurism, rape, pedophilia and incest are legally designated sexual psychopaths.
The term has the same legal problems as the terms "insanity" and "competence" for definition and application because they are supposedly psychologically based. Psychopathy is a venerable, but not currently employed, psychological term, and, when used in the expression "sexual psychopathy," it is thought to be constituted by such elements as...
1) compulsiveness,
2) repetitiveness, and
3) a disconcerting, if not bizarre, quality in the sexual behavior.
The laws dealing with sexual psychopaths are distinctive in two aspects:
1) the indeterminate sentence -- under which the sexual psychopath can be hospitalized for life (or any lesser period) on the premise that society must be protected from habitual sex criminals. The problem here is that the premise is based partly on misconceptions...that sex offenders have a high rate of recidivism, and that they usually show patterns of progression from less serious sex crimes to more serious or more violent sex crimes. Neither assumption is correct.
2) the recognition of sex offenders as mentally ill and in need of treatment or rehabilitation, rather than punishment. The problem here is that the law assumes that the prison or hospital superintendent will release the sexual offender when there is no longer a menace to society, and this assumption is not always justified.
The offenses subsumed under this category are those that are subject to the most severe criminal sanctions. Crimes against children have severe sanctions in every state, while rape is considered the most serious of all sexual offenses under criminal law. What may be a bit surprising to you is that later in the course, I am going to argue for you that rape is not a sexual act, and, that if we did not consider to be a sexual act, we might improve our prospects for prosecuting it, even reducing, if not eliminating, it.
PUBLIC NUISANCE, FORCE OR VIOLENCE, OR CHILDREN
Prosecuting sexual offenses involving public nuisance, force or violence, or children frequently requires expert testimony by a mental health practitioner to obtain a conviction.
This presents a problem to the psychiatrist or psychologist who is called because the DSM-IV does not carry diagnosable categories for each of the illegal acts.
Just because an act is illegal, it is not necessarily abnormal behavior, and perhaps there is no other area in law where this distinction brings as much conflict as the area of the sexual statutes. Just as there is no diagnosis of "sexual psychopathy," there is no diagnosis for "rapist-behavior."
So, commonly the professionals in both disciplines are faced with finding a way to make an interface between them. The commonality on which they can stand is that almost always, in such cases, both are dealing with what is popularly considered to be UNCONVENTIONAL SEXUAL BEHAVIOR.
Let's look at some examples of sexual activity which are regarded as either or both illegal or diagnosable, while commonly held to be unconventional.
THE SEXUAL VARIATIONS
Generally, UnConventional SeXual BehaVioR can be so regarded in two arenas:
unconventional in terms of the object chosen or...
unconventional in terms of choice of sexual activity.
Remember we can also classify UC SX BVRs in terms of the three categories of behaviors governed by law. Putting these two classification systems together, we might be able to get a clearer handle on how the law and our sexual preferences interact.
As our discussion proceeds, we will also consider certain behaviors which generally occur in private, but may nevertheless be illegal, but are diagnosable only under a particular condition.