The Volokh Conspiracy

The Huffington Post has an article titled, “Kaitlyn Hunt, Florida Teen, Faces Felony Charges Over Same-Sex Relationship”; Opposing Views picks it up as, “Florida Teen Kaitlyn Hunt Arrested, Expelled Over Same-Sex Relationship”; Examiner.com, which is linked to by the Huffington Post piece, has the headline, “Florida teen fights expulsion and criminal charges for same sex relationship”; Think Progress has the headline, “What’s Next For Kaitlyn Hunt, The Teen Charged With A Felony For Same-Sex Relationship With Classmate.”

Except that, as the bodies of the articles indicate, the charge isn’t “same-sex relationship” — it’s the non-sexual-orientation-specific statutory rape statute, Fla. Stats. § 800.04, which says, in relevant part,

A person who:

(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age ...

commits lewd or lascivious battery, a felony of the second degree ....

Kaitlyn Hunt, who is now 18, is continuing a sexual relationship with a 15-year-old girl; that seems to me to be a pretty clear violation of the statute. And while statutory rape laws are notoriously underenforced, I would imagine that it would be hardly unheard of for an 18-year-old boy in Florida to be arrested and expelled for having sex with a 15-year-old girl. The ThinkProgress article states, “Kaitlyn’s father suggests his daughters arrest — and the substantial sentence sought by the prosecutor — are motivated by anti-gay bias.” (The proposed deal from the prosecutor was, “She could plead guilty to child abuse, a felony, and spend two years under house arrest. The judge would determine if she would have to register as a sex offender.”) But are Florida prosecutors really materially more lenient when the parents of 15-year-old girls complain about 18-year-old men having sex with those girls? I’ve heard nothing suggesting that this is so.

The story alleges that the 15-year-old girl’s parents are upset about the same-sex nature of the relationship, so it’s possible that their motivation in complaining to the police relates to that. (I’m not certain that this is so, since it’s quite possible that the parents would also be upset about their 15-year-old daughter having an opposite-sex relationship with an 18-year-old man, so the same-sex nature of the relationship may not even be a but-for cause of the complaint; but let’s set that aside for now.) But the police and the school can’t just say, “Your motivation for the complaint is hostility against lesbianism, so we’ll refuse to act on the complaint, even though this is a crime that we’d take seriously if we thought your complaint was motivated by general disapproval of sex between 15- and 18-year-olds.” And absent some evidence that Florida authorities turn a blind eye on parental complaints about 18-year-old men having sex with 15-year-old girls, I don’t really see this as a case about “same-sex relationship[s]” as such.

Now this having been said, one can actually make a rational argument for treating lesbian relationships less severely than opposite-sex relationships. Lesbian relationships can’t lead to unwanted pregnancy, and, to my knowledge, are much less likely to spread the most serious sexually transmitted diseases. And while they can involve lies, lead to heartbreak, leave one or both members with a sense that one has been emotionally mistreated and taken advantage of, and so on, one can imagine a parent who can reasonably think “Phew, better that my daughter is having sex with a woman than with a man.”

One can even imagine legal rules that draw this distinction, and constitutional rules that uphold such a distinction. Michael M. v. Superior Court (1980) upheld a sex-specific statutory rape law, which punished only males and not females, on the grounds that the law reflects real sex differences, including differential susceptibility to pregnancy. That argument would be even stronger as to a distinction between women-women relationships and other relationships, even given that sex classifications are subjected to heightened constitutional scrutiny (see Michael M. itself), and even if sexual orientation classifications come to be subjected to heightened constitutional scrutiny as well.

But such an approach, while not irrational, is certainly not the law in Florida, and it’s far from clear that it is correct. The risk of emotional harm to 15-year-olds — harm that they may be even less prepared to deal with than older people are, and harm that they can’t reasonably be seen as consenting to, given their immaturity — remains in lesbian relationships even if the risk of pregnancy is removed and the risk of disease is very low. And in any event this is not, I take it, the argument being made by the articles I cite.

TribLive (Pittsurgh) reports:

Carnegie Mellon University police on Friday filed charges of indecent exposure against two art students accused of public nudity during a campus parade sponsored by the College of Fine Arts.

Police identified the female student accused of parodying the pope as she paraded nude from the waist down as Katherine B. O’Connor, 19 ..., a sophomore art major ....

University President Jared Cohon, who has publicly apologized for the April 18 papal parody, announced the charges in an email on Friday. He said the university will not discipline the students.

Police charged Robb S. Godshaw, 22, of Wilmette, Ill., accusing him of dressing as an astronaut and disrobing atop a float during the parade. Photographs on Godshaw’s Facebook page show him disrobing and riding the float naked, police said in court documents....

The criminal charges capped a university review triggered by an inquiry from Bishop David Zubik of the Pittsburgh Catholic Diocese. Zubik asked the university to take a stand on the papal parody, which he found offensive....

“As I have said over these last few weeks, this is an opportunity for all of us to be reminded that freedom of speech and freedom of expression do not constitute a freedom to dismiss or disrespect the beauty of anyone’s race, the sacredness of anyone’s religious belief or the uniqueness of anyone’s nationality,” Zubik said.

“The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial,” Cohon said.

“While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action.”

Some thoughts:

1. Public nudity is indeed illegal in Pennsylvania, and if the facts show that the defendants’ genitalia were indeed visible, that’s a crime. Nor do I think that there is a defense for public nudity — or public sex — when engaged in for artistic or political purposes, though I recognize that there are interesting questions about how constitutional doctrine has developed in this area (with publicly visible displays of moving pictures of nudity, for instance, being generally protected by the First Amendment, Erznoznik v. City of Jacksonville (1975), but live nudity being unprotected).

And I doubt that this is a case of selective prosecution, in which people whose expression is blasphemous are punished for violating a law that others routinely violate with impunity: My sense is that people who go around naked in public in Pittsburgh are going to be prosecuted regardless of their message. So I doubt there is a First Amendment problem here, though there might have been if this indeed involved a law that is otherwise unenforced.

2. The Bishop’s view of free speech is, however, quite constrained. “As I have said over these last few weeks, this is an opportunity for all of us to be reminded that freedom of speech and freedom of expression do not constitute a freedom to dismiss or disrespect the beauty of anyone’s race, the sacredness of anyone’s religious belief or the uniqueness of anyone’s nationality.” Religious beliefs are beliefs, and others may quite plausibly not have respect for what the beliefs say, or how they were arrived at; and of course they may doubt that those beliefs are “sacred.”

It is often counterproductive, juvenile, and ill-mannered to express disrespect for others’ religious beliefs in certain ways, but under First Amendment law — which I think is exactly right on this score — dismissing and disrespecting the sacredness of others’ religious beliefs is very much a part of one’s freedom of speech and religious freedom. (Nor should there be any exception from the First Amendment for speech that dismisses “the beauty” of races or “the uniqueness” of nationalities.)

3. The CMU President, Dr. Cohon, issued a statement, saying, in relevant part:

Let me begin by quoting the university’s freedom of expression policy ... [:]“Carnegie Mellon University values the freedoms of speech, thought, expression and assembly — in themselves and as part of our core educational and intellectual mission. The university must be a place where all ideas may be expressed freely and where no alternative is withheld from consideration. The only limits on these freedoms are those dictated by law and those necessary to protect the rights of other members of the university community and to ensure the normal functioning of the university.”

Our policy makes it clear that Carnegie Mellon is committed to the rights of its students to express controversial views, while recognizing some key restrictions on that expression — including those dictated by law.... The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial. While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action....

There are competing values at issue here: Carnegie Mellon aims to be a place where ideas can be expressed and debated openly, but also where people of all backgrounds, faiths, and beliefs feel welcomed and supported. Unavoidably, the expression of some views will offend some people; that is the price of this freedom. However, if in the expression of these views, people in our community come to feel that the campus is intolerant, then the other of our cherished values is challenged. In such a situation, the institution may find it necessary to reassure those offended of its commitment to tolerance and inclusion. In doing so, I do not believe that the institution is compromising freedom of expression. Similarly, it is reasonable to expect individuals to consider the impact on others in expressing their views and how they choose to express them. This is responsibility, not censorship, and something that our students, especially, should learn while they are members of our community.

It is our practice in controversial situations such as this one to provide opportunities for discussion, where all sides have a chance to express their views. This has already begun on the campus. Members of our community are asking themselves the difficult questions about what happened here, and embracing their responsibility to create a context in which events like these can continue to be held in a manner which is consistent with the full range of our values. These values include, certainly, freedom of expression, but also the cultivation of an inclusive, mutually respectful environment, and respect for the law....

On balance, this seems quite reasonable, if taken literally — as I think the University has — to mean that the response for speech that makes groups reasonably feel offended (but doesn’t violate the law) might include public statements of support for the targeted groups, but would not include suppression of the speech. And I also agree teaching students, without punishing the speech, “to consider the impact on others in expressing their views and how they choose to express them,” is a pretty reasonable goal on the university’s part, especially since the habit of considering such things will serve the students in good stead in their future lives.

The Pew Forum’s survey of international Muslim attitudes asks, among other things,

Some people think that if a woman engages in premarital sex or adultery it is justified for family members to end her life in order to protect the family honor. Do you personally feel that this practice is [often justified, sometimes justified, rarely justified, or never justified].

It also asks the same question about men engaging in premarital sex or adultery.

The results:

(1) There’s a vast range of attitudes on the subject in various countries, with “never justified” ranging from just over 80% (in Azerbaijan, Kazakhstan, and Indonesia) to just under 25% (in Afghanistan and Iraq).

(2) In most countries, the respondents’ answers as to “honor killing” of women is very close to their answers as to men, including in many of the countries where there’s a lot of support for such killings. Only a few countries had statistically significant differences, ranging from 47% (81% believe that “honor killing” of men is never justified but only 34% believe that as to women) in Jordan, 10 or 11% in Iraq and Egypt, 7% in Russia, and 14% in the opposite direction in Uzbekistan.

(3) Though the Pew report states, “The Quran and hadith do not condone honor killings, that is, taking the life of a family member who has allegedly brought shame on his or her family,” in a substantial minority of the surveyed countries attitudes towards “honor killings” are significantly correlated to support for imposing Sharia law.

(4) Support for such “honor killings” is shockingly high in some countries. In Afghanistan, for instance, 37% of Muslim respondents say that such killings of women are “often justified,” and 23% say “sometimes justified.” In Iraq, 44% say “often” and 16% say “sometimes.” In Bangladesh, Egypt, Jordan, Lebanon, Pakistan, and the Palestinian Territories, 36% to 41% of respondents say they are often or sometimes justified (and still more say they are justified only rarely).

UPDATE: Commenter SykesFive notes that the question was asked differently in Uzbekistan, Afghanistan, and Iraq (emphasis added): “Some people think that if a woman brings dishonor to her family it is justified for family members to end her life in order to protect the family’s honor....” I don’t know how this might affect the respondents’ understanding of the question, and I assume that the Pew people thought that the italicized clause would be understood as generally referring to supposed sexual misconduct; but it’s certainly worth noting.

From today’s Massachusetts Supreme Judicial Court decision in E.C.O. v. Compton:

This case concerns whether a parent may seek an extension of an abuse prevention order under G.L. c. 209A to prevent his daughter, who was sixteen years of age [and thus above the age of consent in Massachusetts] from voluntarily engaging in a sexual relationship with an adult.

The answer, the court said, was “no,” reversing such an order that had indeed been issued:

General Laws c. 209A enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from abuse or contact.... [F]amily or household members include persons who “are or have been in a substantive dating or engagement relationship.” “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” The issuance of an abuse prevention order is a civil procedure, and abuse need only be proved by a preponderance of the evidence. A violation of an order to refrain from abuse or contact, however, is a crime, punishable by a fine or imprisonment in a house of correction, or both.

Here, as conceded by the father, the defendant has neither physically harmed nor attempted physically to harm the daughter. In addition, because she is over the age of sixteen, she is legally capable of “consenting” to sexual intercourse, and as admitted by the father, the defendant has not caused the daughter to engage involuntarily in sexual relations by force, threat, or duress. Thus, there was no basis for the judge to issue the extension order under G.L. c. 209A, § 1 (a) or (c).

The father contends that the defendant’s actions placed the daughter “in fear of imminent serious physical harm” under G.L. c. 209A, § 1 (b), because in suggesting that he was going to supply the plaintiff with alcohol, the defendant essentially offered to supply alcohol to a minor in violation of G.L. c. 138, § 34 (“whoever furnishes ... alcohol for a person under 21 years of age shall be punished by a fine ... or by imprisonment for not more than one year or both”). We disagree.

The definition of “abuse” under G.L. c. 209A, § 1 (b), closely approximates the common-law definition of the crime of assault, and we are guided by our definition in considering whether the defendant’s conduct rose to such level of “abuse” under the statute. We consider whether the defendant’s conduct placed the daughter in “reasonable apprehension that [the defendant] might physically abuse her.” The defendant’s passing references in his electronic communications with the daughter implying that he might furnish her with alcohol, while understandably reprehensible to the father, is not evidence suggesting physical abuse or evidence that the defendant planned to give alcohol to her in order to have involuntary sexual relations with her, certainly a form of physical abuse. We conclude that this conduct does not meet the definition of “abuse” under G.L. c. 209A, § 1 (b), and thus fails to serve as a basis for issuing the extension order. [Footnote: Were the defendant actually to furnish alcohol to the daughter, such conduct would violate G.L. c. 138, § 34 (furnishing alcohol to minor) and G.L. c. 119, § 63 (contributing to delinquency of minor), and would present a different circumstance than existed here.] Because the judge had no basis to issue the extension order, it must be vacated.

Unsurprisingly, given the pace of the civil justice system, the one-year order had already expired by the time of the decision; indeed, since the daughter was 16 in July 2011, when she met defendant, she must be either 18 or very nearly 18 now. But the court concludes the appeal isn’t moot, quoting an earlier case: “Notwithstanding that both the ex parte and the extension orders have expired, the appeal is not moot. The defendant ‘could be adversely affected by [the orders] in the event of future applications for an order under G.L. c. 209A ... [and] has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.’”

[Updated with link to Prof. Hayes's new paper.]

The man-bites-dog story of Germany legalizing then banning bestiality raises the question of the constitutionality of such laws in the U.S. Most states criminalize zoophilia, and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced.

The 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. Homosexual conduct is just a hot-button particular instance of the general principle. Constitutional protection of heterosexual conduct comes from the same source. Thus if laws against premarital heterosexual sex (with or without contraceptives), sodomy, etc. are unconstitutional – and I think it clear that courts would find them to be – this must be justified by some special protection for sexual choice.

Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate. Given that bestiality taboos existed long before animal rights movements, one can assume their legalization or delegalization is largely based on the old taboos or stereotypes, perhaps in the sheep’s clothing of animal rights. (Similarly in the VMI case, the Court refused to let the state “update” the rationale for an old practice to something that might sound more in line with current thinking.) But insisting that bestiality bans simply regulate animal welfare is insufficient. Those regulations do not typically intrude on protected interests.

Bestiality bans regulate human sexual expression. And in the Supreme Court’s jurisprudence, sex is special. The government can also regulate, even ban, consumer products, but not when they are condoms, because that is also a regulation of sexuality. Cock fighting can be banned not because the animal suffers, but because the government needs little excuse to ban any commercial activity. Sexual activity is different.

Similarly, while government can regulate animal cruelty, the Supreme Court recently struck down a law targeting “crush films” involving weird sexualized animal torture because the statute was not precisely tailored, and could sweep in some cases where animals did not in fact suffer. Blanket bestiality bans are not narrowly tailored. Thus many European countries make zoophilia legal, but punishable under existing animal welfare laws when cruelty can be shown – but it cannot be presumed.

Constitutional protection of sexual conduct is mostly valuable for conduct that is widely perceived as deviant – when it is someone else’s ox getting gored. Otherwise it is itself merely a tool for reaffirming current mores. With bestiality, one assumes that most folks have have no dog in the fight – and that is what makes it interesting to seriously consider the constitutional issues.

The closest analogy would not be gay sex, or straight sex, but rather other kinds of autonomous sexual activity like sex toys. There are still sex toy bans in some states, including some newly enacted ones. But they’ve been getting struck down since Lawrence by courts (including the Fifth Circuit) that read Lawrence as standing for general sexual libertarianism.

One could argue that ick factor aside, bestiality should if anything be more protected than the dominant social paradigm of 2-person sex. Once there are two people involved, it is a social issue, not purely “private.” Thus such laws can be justified by some purported negative social consequences: uncared for kids with heterosexual fornication; unmarried poor men for polygamy; mutation for incest. By these standards, bestiality (or any other kind of one-person sexual activity) is the most innocuous, as it involves only a person and his property. Spill-over effects on other humans are minimal.

The New York Times several years ago had a very sympathetic piece on Washington state men who have sex with horses, which strongly suggested, based on graphic evidence, that the horses were not unwilling, and that the men seemed reasonable people for whom the activity was meaningful. The bans may well be based on (not yet outmoded) stereotypes and biases.

After the sex toy cases, why not go whole hog and extend the protection of idiosyncratic autoerotic conduct to zoophilia? Indeed, Antonio Hayes, a Fellow at Cornell Law School, has a fascinating paper just posted on SSRN critically examining the various rationales for bestiality laws and finding them wanting. He stresses that animals do not necessarily find such practices painful, and may even enjoy them. As a political matter, I’m not bullish on the success of this argument. And I know this post will really get the animal rights folks’ goat, as the sex toy analogy assumes that animals are more like things than like people.

I should say at the outset that I approach this delicate subject sheepishly, but this development bears noting. In a rare example of a Western country taking steps to restrict previously recognized sexual liberties, Germany is seeking to ban bestiality. (Its supporters call it zoophilia – are opponents zoophobes?) This will presumably put out to pasture Germany’s erotic zoos, where visitors go beyond heavy petting.

Germany legalized bestiality in 1969, together with sodomy. When Justice Scalia analogized from the decriminalization of the latter to the former in his Lawrence dissent, he was widely denounced, but apparently the liberal Germans agreed with him, at least until now.

I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.

It is an invariable aspect of sexual morality regulation that those who regard a practice as amoral, or vile, also believe it has negative practical effects. The latter allows one regard one’s own knee-jerk preferences as sound social policy rather than moralizing. In today’s post-morality world, vestigal aversions to prostitution, polygamy and incest have to be justified with strained public policy arguments.

If erotic zoos are bad, it is not because, as critics contend, it is “animal rape,” any more than prohibitions on intercourse with human remains can be justified by the “non-consent” of the corpse. Requiring two-sided consent in zoophilia situations privileges the person/person intercourse model in a way which is neither neutral nor value-free.

Usually it is harder to roll back new social rights than to extend them – the “non-retrogression principle.” I’d be interested to see if the zoophiles mount a challenge based on European human rights law, and how it fares. Berlin may find it is closing the barn door after the animals have escaped.

So says a County Attorney’s declaration filed on May 22, 2012 in a federal case challenging the polygamy ban on constitutional grounds:

The policy, as officially adopted by the ... County Attorney’s Office, states:

Prosecution of Bigamy Crimes:
The ... County Attorney’s Office will prosecute the crime of bigamy ... in two circumstances: (1) When a victim is induced to marry through their partner’s fraud, misrepresentations or missions; or (2) When a person purports to marry or cohabits with another person ... and is also engaged in some type of abuse, violence or fraud. This office will prosecute the crime of child bigamy ... regardless of whether one of the parties is also engaged in some type of abuse, violence or fraud....

This policy is intended, under the prosecutorial discretion exercised by this Office, to prevent the future prosecution ... of bigamous marriages entered into for religious reasons.

“Bigamy” is the name of the state law offense that would on its face include what is often called “polygamy,” which is to say one person living with multiple people as spouses (even if not legally recognized as spouses), with everyone knowing what’s going on: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” (“Cohabit” is understood to mean to “live together as husband and wife,” 153 P.2d 647 (1944).)

I think polygamy bans are a bad idea: If adults live together in a polygamous household, viewing themselves as married under their own religious laws or cultural conventions but not deriving any state-law recognition or benefits (beyond that given to the initial, legally valid two-person marriage), I don’t think the government should step in. But in any case, I thought this development might be of interest to our readers.

So says the Republican Party Platform, and this leads me to questions I asked in 2004, when the Bush Administration called for a pornography crackdown.

As we know, there’s lots of porn of all varieties out there on the Internet, including porn that might well be seen as offensive to “community standards” in at least one American state (the standard that would be applicable under the plurality view in Ashcroft v. ACLU (I) (2002), if prosecutors choose to bring a case in that state), or perhaps even under some “national community standard” (the alternative standard urged to varying extents by the other opinions in that case). In principle, the government might well be able to prosecute many American pornography producers and distributors under current obscenity laws.

But even if every single U.S. producer is shut down, wouldn’t foreign sites happily take up the slack? It’s not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make a porn movie. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock — I doubt that the imprisoned American copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world’s #1 pornography owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from certain and likely far from cheap).

And even if overall world production of porn somehow improbably falls by some substantial amount, will that seriously affect the typical porn consumer’s diet? Does it matter whether you have, say, 100,000 porn titles (and live feeds) to choose from, or just 25,000?

So we have three possible outcomes:

(1) The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using the same amount of porn as before. Maybe they can’t get porn on cable channels or in hotel rooms any more, but that’s so twentieth century; instead, consumers will continue to be able to get more than they ever wanted on the Internet. Nor do I think that the crackdown will somehow subtly affect consumers’ attitudes about the morality of porn — it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted.

The only potential benefit: If you think the porn industry is very bad for porn actors, you’re at least sparing Americans actors that harm, and shifting it off-shore instead. But that has little to do with “Making the Internet Family-Friendly,” which is what the platform bills the “vigorous[] enforce[ment]” policy as relating to. And as to changing what’s available on the Internet, the investment of major prosecutorial resources yields a net practical benefit of roughly zero.

(2) The government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?,” pornography prosecutors and their political allies would ask. So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time, and would let the porn sites just move from location to location every several weeks.

Sure, that sounds like a violation of First Amendment procedural rules, even when the government is going after substantively unprotected obscenity. Sure, that would make it easier for the government to put all sorts of other sites on the list. Sure, it’s a substantially more intrusive step than any of the American Internet regulations we’ve seen so far, and is substantially more intrusive in some ways than nearly all speech restrictions in American history. (I say in some ways, not in all ways, since it would have a limited substantive focus — but the procedure would be highly restrictive, and First Amendment law has always recognized the practical importance of procedure.) But it’s the only approach that has any hope of really reducing the accessibility of porn to American consumers.

(3) Finally, the government can go after the users: Set up “honeypot” sites (seriously, that would be the technically correct name for them) that would look like normal offshore pornography sites. Draw people in to buy the stuff. Figure out who the buyers are. To do that, you’d also have to ban any anonymizer Web sites that might be used to hide such transactions, by setting up some sort of mandatory filtering such as what I described in option (2).

Then arrest the pornography downloaders and prosecute them for receiving obscene material over the Internet, in violation of 18 U.S.C. § 1462; see, e.g., United States v. Whorley (4th Cir. 2008) (holding that such enforcement is constitutional, and quite plausibly so holding, given the United States v. Orito Supreme Court case). As best I can tell, this statute has recently been used only as an adjunct in child pornography prosecutions, where the prosecutors think the person is trying to get child pornography but add a receipt of obscenity charge just in case they can’t prove the child pornography charge. But it is a “current law[] on ... obscenity,” out there to be used.

Heck, lock each pornography viewer up for several years like you would a child porn buyer. Make him register as a sex offender. Seize his house on the theory that it’s a forfeitable asset, since it was used to facilitate an illegal transaction. All because he, or he and his wife, like to get turned on by watching pictures of people having sex (or perhaps just pictures of people having sufficiently kinky sex, or pretending to have sufficiently kinky sex). Then repeat for however many people it takes to get everyone scared of the Smut Police.

So we really have three possible outcomes:

1. The crackdown on porn is doomed to be utterly ineffective at preventing the supposedly harmful effects of porn on its viewers, and on the viewers’ neighbors.
2. The crackdown on porn will be made effective — by implementing a comprehensive government-mandated filtering system run by some administrative agency that constantly monitors the Net and requires private service providers to block any sites that the agency says are obscene.
3. The crackdown on porn will turn into a full-fledged War on Smut that will be made effective by prosecuting, imprisoning, and seizing the assets of porn buyers.

Seriously, I don’t see many other alternatives. The government could try to put pressure on financial intermediaries, for instance requiring Visa and MasterCard to refuse transactions with certain locations; but unless that’s made just as intrusive as option #2 above, it will be hopelessly ineffective, since sites can easily just periodically change their payee names, or use various offshore intermediaries.

The government might also try to persuade foreign countries to join its campaign, but I’m pretty sure that won’t work, either. First, the Europeans are apparently fairly tolerant of much porn. Second, I highly doubt that we can persuade every poor third-world country, some of which have thriving trades in real flesh, to spend its resources creating and actually enforcing anti-porn laws, in the face of whatever payoffs the porn industry is willing to provide.

So, supporters of that plank of the platform, which do you prefer — #1, #2, or #3? Note that I’m not asking whether porn is bad, or whether porn should be constitutionally protected. I’m certainly not asking whether we’d be better off in some hypothetical porn-free world (just like no sensible debate about alcohol, drug, or gun policy should ask whether we’d be better off in some hypothetical alcohol-, drug-, or gun-free world).

I’m asking: How can the government’s policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that’s far, far beyond what any mainstream political figures are talking about right now?

From Neal v. Neal (Idaho 1994):

Mary Neal contends that she has alleged a prima facie case of battery against Thomas Neal. Her battery claim is founded on her assertion that although she consented to sexual intercourse with her husband during the time of his affair, had she known of his sexual involvement with another woman, she would not have consented, as sexual relations under those circumstances would have been offensive to her. Therefore, she contends that his failure to disclose the fact of the affair rendered her consent ineffective and subjects him to liability for battery.

Civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive. The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Further, lack of consent is also an essential element of battery. Consent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery.

The district court concluded that Thomas Neal’s failure to disclose the fact of his sexual relationship with LaGasse did not vitiate Mary Neal’s consent to engage in sexual relations with him, such consent being measured at the time of the relations. We do not agree with the district court’s reasoning. To accept that the consent, or lack thereof, must be measured by only those facts which are known to the parties at the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of the occurrence, the “consented to” act would never occur.

Mary Neal’s affidavit states that: “[I]f the undersigned had realized that her husband was having sexual intercourse with counter-defendant LaGasse, the undersigned would not have consented to sexual intercourse with counterdefendant Neal and to do so would have been offensive.” The district court opined that because the act was not actually offensive at the time it occurred, her later statements that it would have been offensive were ineffective. This reasoning ignores the possibility that Mary Neal may have engaged in a sexual act based upon a substantial mistake concerning the nature of the contact or the harm to be expected from it, and that she did not become aware of the offensiveness until well after the act had occurred. Mary Neal’s affidavit at least raises a genuine issue of material fact as to whether there was indeed consent to the alleged act of battery.

Note that the reasoning isn’t limited to married couples, but would also apply to other lovers who had an understanding of fidelity. Nor would it just apply to cheating on a relationship in which fidelity was understood: It could also apply to other situations where plaintiff argues that he or she wouldn’t have consented to sex with defendant had he or she known certain things about the defendant — e.g., that the defendant was already married, or that the defendant had been a prostitute at some point in the past, or that the defendant had lied about something in order to get plaintiff into bed, and so on. It’s a pretty broad theory that the Idaho Supreme Court adopted.

Now I should say that the court’s theory is not illogical: The principle that consent procured by lies, or by failure to disclosure something that plaintiff and a reasonable person would have likely found material, is not a valid consent is well-established in other contexts. The main objection, I think, is pragmatic: The theory would turn a vast range of relationship misconduct into a basis for litigation, with lots of opportunity for fraudulent claims. And the question is how to weigh this pragmatic objection with the argument that consent procured by deceit or nondisclosure of highly material facts is not consent (especially in a civil case).

The case is apparently unusual, at least outside cases of lies about sexually transmitted disease, or intentional concealment of such a disease. For the one case I know of involving a similar approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was infertile, see Barbara A. v. John G. (Cal. Ct. App. 1983) (2-to-1), disagreed with by Perry v. Atkinson (Cal. Ct. App. 1987). For a different approach, in the context of a plaintiff’s battery claim against a lover who, she says, falsely claimed he was fertile, see Conley v. Romeri (Mass. App. Ct. 2004):

There is no indication that the defendant’s statement in July, 1996, after several dates, that he had been told by a fortune teller that he would have six children was made with the intent to induce the plaintiff to have sexual intercourse. At that stage of their relationship, such a statement may be seen only as an inducement to continue dating. There were no discussions between the parties about having children together, or of marriage. Moreover, the plaintiff’s feeling that she wasted time with the defendant because her biological clock was running does not constitute a battery. We conclude, as a matter of law, that the plaintiff’s consent was not vitiated, and that summary judgment properly was allowed for the defendant.

AllahPundit (Hot Air), Andrew Sullivan, and Dan Murphy (Christian Science Monitor) question whether a bill allowing people to have sex with their dead spouses (for up to six hours after the death) was indeed proposed in the Egyptian Parliament. The story apparently began in the Al Ahram newspaper, and was then taken up by the Al Arabiya newspaper [UPDATE: just to make it clear for those who don't read the blog, this is the story I blogged about yesterday]; AllahPundit suggests they are not to be trusted:

Al-Ahram is controlled by the Egyptian government, which I assume means it’s heavily influenced by the ruling military junta. And the junta, of course, is invested in discrediting the Islamists in order to defend its prerogatives against parliament’s growing power. (It’s worth noting too that Al-Arabiya, which picked up the story from Al-Ahram, is a Saudi outfit and the Saudis are mighty anxious about the idea of Islamist populists seizing power from sclerotic tyrannical regimes.)

AllahPundit counsels skepticism, but is not sure:

[N]one of this is to say the story isn’t true — the part about the marriage age being lowered is all too plausible — but it’s not hard to see why Mubarak allies might want to make something up or inflate something one of the fringier parliamentarians said in order to galvanize international opinion against the Muslim Brotherhood and Salafists. It is, however, hard to see why the MB would allow parliament to entertain a law like this at a moment when they’re busy gladhanding westerners to reassure them that the Brotherhood are “modern” Islamists who are worthy of foreign aid and trade deals. If this really is being kicked around by MPs, I’d bet it’s the Salafists who are pushing it. But we’ll see.

Sullivan and the Monitor seem to go further. I don’t know who’s right and who’s wrong, but thought I’d note the possibility that Al Ahram and Al Arabiya may not be accurate on this.

UPDATE: The Daily Mail reports:

[S]ources inside the Egyptian Embassy in London have said the claims were ‘completely false’, ‘forbidden in Islam’ and ‘could never imagine it happening’.

The source said the proposal, if it even existed, had not reached the parliament — although it was also admitted it could be the work of an extremist politician.

[UPDATE: Some commentators have expressed skepticism about whether such a proposal actually exists, and argue that the original Al Ahram and Al Arabiya reports on this may be incorrect; I have more on that in this post.]

Al Arabiya reports:

Egypt’s National Council for Women (NCW) has appealed to the Islamist-dominated parliament not to approve two controversial laws on [legalizing the marriage of girls starting from the age of 14] and allowing a husband to have sex with his dead wife within six hours of her death according to a report in an Egyptian newspaper....

The controversy about a husband having sex with his dead wife came about after a Moroccan cleric spoke about the issue in May 2011.

Zamzami Abdul Bari said that marriage remains valid even after death adding that a woman also too had the same right to engage in sex with her dead husband....

I should say that the lowering of the age of marriage to 14, and the apparent proposal to limit women’s rights to get a divorce (“Many members of the newly-elected, and majority Islamist parliament ... wish to cancel ... [the Khula] law that allows a wife to obtain a divorce without obstructions from her partner”; “Prior to the implementation of the Khula over a decade ago, it could take 10 to 15 years for a woman to be granted a divorce by the courts”) are much more likely than the “Farewell Intercourse” law to be actually harmful to women. Thanks to Dan Gifford for the pointer.

So the European Court for Human Rights held in Case of Stübing v. Germany (Apr. 12, 2012).

The case involved a brother and sister who were reared apart for their whole lives; the sexual relationship began when the sister was sixteen and the brother seven years older, though sixteen is above the age of consent in Germany. The sister was described as having some mental difficulties, as well as “mild learning disabilities”: “The accused, K., has a very timid, withdrawn and dependant personality structure. This personality structure, taken together with [an] unsatisfying family situation, led to her being considerably dependant on the applicant. In particular, after the death of their mother, she experienced this dependency to an extent that she felt that she could not live without him.” I can’t speak to what extent this “dependency” is comparable to the dependency that many people who are in love (whether healthy or unhealthy love) feel, and to what extent it was dramatically more severe.

I tentatively think that adult sibling incest should indeed be forbidden (though perhaps with a higher age of consent), but I think the question is not easy, especially in constitutional regimes — like the European one — that generally protect sexual autonomy. Unfortunately, the European court’s explanation didn’t go into much detail; the core analysis seems to be in these paragraphs:

61. Applying the principles set out above to the instant case, the Court observes that there is no consensus between the member States as to whether the consensual commitment of sexual acts between adult siblings should be criminally sanctioned (see paragraphs 28-30, above). Still, a majority of altogether twenty-eight out of the forty-four States reviewed provide for criminal liability. The Court further notes that all the legal systems, including those which do not impose criminal liability, prohibit siblings from getting married. Thus, a broad consensus transpires that sexual relationships between siblings are neither accepted by the legal order nor by society as a whole. Conversely, there is no sufficient empirical support for the assumption of a general trend towards a decriminalisation of such acts. The Court further considers that the instant case concerns a question about the requirements of morals. It follows from the above principles that the domestic authorities enjoy a wide margin of appreciation in determining how to confront incestuous relationships between consenting adults, notwithstanding the fact that this decision concerns an intimate aspect of an individual’s private life....

63. The Court observes that the Federal Constitutional Court, having analysed the arguments put forward in favour of and against criminal liability and relying on an expert opinion, concluded that the imposition of criminal liability was justified by a combination of objectives, including the protection of the family, self-determination and public health, set against the background of a common conviction that incest should be subject to criminal liability. The Federal Constitutional Court considered that sexual relationships between siblings could seriously damage family structures and, as a consequence, society as a whole. According to the court, criminal liability was further justified by reference to the protection of sexual self-determination. By addressing specific situations arising from the interdependence and closeness of family relationships, section 173 of the Criminal Code could avoid difficulties in the classification of, and defence against, transgressions of sexual self-determination in that context....

65. The Court considers that the above-mentioned aims, which had been expressly endorsed by the democratic legislator when reviewing the relevant legislation in the 1970s (see paragraph 46 above), appear not to be unreasonable. Furthermore, they are relevant in the instant case. Under these circumstances, the Court accepts that the applicant’s criminal conviction corresponded to a pressing social need.

The German court’s decision, which was affirmed by the European court, is summarized here. The summary offers a slightly more detailed analysis; here’s an excerpt:

The essential ground considered by the legislature as the reason for punishment in § 173 StGB is the protection of marriage and the family. Empirical studies show that the legislature is not acting outside of its latitude for assessment when it assumes that incestuous relationships between siblings can lead to serious consequences damaging the family and society. Incestuous relationships result in overlapping familial relationships and social roles and, thus, can lead to interference in the system that provides structure in a family. This does not correspond with the image of family that is the basis of Article 6.1 GG. It seems conclusive and is not far-fetched that the children of an incestuous relationship have significant difficulties in finding their place in the family structure and in building a trusting relationship to their closest caregivers. The function of the family, which is of primary importance for the human community and which is at the basis of Article 6.1 GG, would be decisively damaged if the required structures were shaken by incestuous relationships.

To the extent the criminal provision is justified by reference to the protection of sexual self-determination, this objective is also relevant between siblings. The objection that the protection of sexual self-determination is comprehensively and sufficiently protected by §§ 174 et seq. StGB (crimes against sexual self-determination) and, therefore, does not justify § 173.2 sentence 2 StGB ignores the fact that § 173 StGB addresses specific dependencies arising from the closeness in the family or rooted in family relations as well as difficulties of classification of, and defence against, encroachments.

The legislature additionally based its decision on eugenic grounds and assumed that the risk of significant damage to children who are the product of an incestuous relationship cannot be excluded due to the increased possibility of an accumulation of recessive hereditary dispositions. In both medical and anthropological literature, which are supported by empirical studies, reference is made to the particular risk of the occurrence of genetic defects.

The challenged criminal provision is justified by the sum of the comprehensible penal objectives against the background of a societal conviction effective to date based upon cultural history regarding the fact that incest should carry criminal penalties, which is also evident in international comparison. As an instrument for protecting sexual self-determination, the public health, and especially the family, the criminal provision fulfils an appellative, law-stabilising function and, thus, a general preventive function, which illustrates the values set by the legislature and, therefore, contributes to their maintenance.

One judge dissented in the German court, though there were no dissents in the European court; his dissent is also summarized here. Thanks to Marko Milanovic (EJIL: Talk!) for the pointer.

This week I’ll be discussing my new book, Flagrant Conduct: The Story of Lawrence v. Texas, at two different venues. On Thursday, the Charles Hamilton Houston Institute for Race & Justice will sponsor a speech at Harvard Law School from 5:30-7:00 p.m. Details are available here. 

On Friday evening at 7:00 p.m., I’ll be speaking in Washington, D.C. at the bookstore Politics & Prose.  Andrew Sullivan will offer commentary.  Details about that event are available here.

So the Arkansas Supreme Court held yesterday — applying the Arkansas Constitution — in Paschal v. State (Ark. Mar. 29, 2012), relying on the right to sexual autonomy that it had recognized in Jegley v. Picado (Ark. 2002). As the court noted, cases from other states applying the federal constitution and other state constitutions have come out the other way. But Arkansas courts are the final interpreters of the state constitution (though of course the people can change it, if they wish), and therefore the U.S. Supreme Court will not be reviewing this case. Here’s the key passage:

“[T]he fundamental right to privacy implicit in our law protects all private, consensual, noncommerical acts of sexual intimacy between adults.” Picado, 349 Ark. at 632, 80 S.W.3d at 350. Section 5-14-125(a)(6) criminalizes consensual sexual contact between adults. While it is possible that the General Assembly intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex, section 5-14-125(a)(6) contains no language evincing such intent. While we might be inclined to assume the General Assembly so intended, we are constrained from making such assumptions. This court strictly construes criminal statutes, resolving any doubts in favor of the accused. This court cannot, and should not, by construction or intendment, create offenses under statutes that are not in express terms created by the legislature. Nothing is taken as intended which is not clearly expressed, and this court is without authority to declare an act to come within the criminal laws of the state merely by implication.

As applied in this case, section 5-14-125(a)(6) criminalizes consensual sexual conduct between adults and, therefore, we conclude that the statute infringes on Paschal’s fundamental right to privacy. A statute that infringes on a fundamental right is subject to strict-scrutiny review, and the statute cannot survive unless “a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest.” Picado.

Continue reading ‘Teacher Sex With >=18-Year-Old Students Can’t Be Criminalized’ »

From Radio Free Europe:

Since the start of this year, death squads have been targeting two separate groups — gay men, and those who dress in a distinctive, Western-influenced style called “emo,” which some Iraqis mistakenly associate with homosexuality.

At least 14 young men have been bludgeoned to death in the last three weeks in east Baghdad, an area dominated by Shi’ite Muslims, according to local security and medical sources who spoke to Reuters on condition of anonymity.

Killings have been reported by other methods and in other cities as well. Since national authorities are not recording the incidents as a special category, the total is not known.

In recent days, members of Shi’ite militias, mainly in the Sadr City district, have circulated lists of names of people targeted for killings. The threats refer to “obscene males and females,” understood to refer to both gays and “emos,” an American teenage subculture of distinctive hairstyles and black clothes that has spread to Iraq....

Iraq’s Shi’ite-dominated government may not be helping. The Interior Ministry last month released a statement that labeled the emo culture “Satanism.” It said a special police force would stamp it out.

Thanks to Robert Dittmer for the pointer.