Archive | Sexual Conduct Restrictions

Because Oral Sex Is Just So Much Worse for Teenagers Than Genital Sex

Delegate Thomas Garrett has proposed a bill that would make it a felony in Virginia for anyone to have oral or anal sex with a minor. But genital sex? Well, Virginia law would, even if this bill is enacted, provide that genital sex between an adult and a 15-to-17-year-old is a misdemeanor, and sex among 15-to-17-year-olds is perfectly legal. So if two 17-year-olds are choosing whether to have oral sex or genital sex, the law would push them towards the form of sex that is more likely to transmit disease, and more likely to cause unwanted pregnancy. Genius.

The proposal would also apply to prostitution, making oral sex with a prostitute a felony for both sides, while genital sex is a misdemeanor; that too seems hard to justify. Virginia law used to prohibit nongenital sex generally, and this proposal is a response to a MacDonald v. Moose (4th Cir. 2013), which applied Lawrence v. Texas to strike down the ban on the grounds that the ban covered private noncommercial adult sexual conduct. Delegate Garrett is trying to revive that old law in those areas — prostitution, sex involving minors, and sex in public places — where Lawrence might not apply. But even though this revival might be constitutional, that doesn’t make it smart.

And, yes, I realize that some people, presumably including Delegate Garrett, view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, [...]

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Brown v. Buhman and Bestiality

The Utah polygamy-rights decision is truly a courageous civil rights ruling. Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right or wrong.

Now seems like a good time to revisit a post on bestiality from earlier this year, which surely seems less radical now. Bestiality bans are [even?] less constitutionally defensible than polygamy bans because the purported harms associated with the practice are lower. It does not undermine families because it is not a substitute for traditional unions (though presumably limits one to unusually broad-minded spouses). Nor does it oppress women, the empirical claim behind bans on polygamy, as well as prostitution. Here is the body of the post:

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 [...]

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Brown v. Buhman isn’t so complicated

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “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.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. [...]

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Statutory Rape of 15-Year-Old by 18-Year-Old

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 [...]

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Woman Parading Dressed as Pope from Waist Up, Naked from Waist Down, Charged with Public Nudity

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 [...]

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Support for So-Called “Honor Killings”

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, [...]

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Can You Get a Restraining Order Against Someone’s Having Sex with Your Daughter (Who Is Above the Age of Consent But Under 18)?

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

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The Bestiality Brief

[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, [...]

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Government Out of Bedrooms, but into Barnyards

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 [...]

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Prosecutor’s Policy: We Won’t Enforce Polygamy Ban, Because of a Concern About Religious Minority Group

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. [...]

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“Current Laws on All Forms of Pornography and Obscenity Need to Be Vigorously Enforced”

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 [...]

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Suing a Spouse — or a Lover — for Cheating (or Other Lies or Failures to Disclose)?

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

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Questions About Whether the Sex-With-Dead-Spouses Law Has Actually Been Proposed in Egypt

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 [...]

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Legalizing Spousal Necrophilia in Egypt?

[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. [...]

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“Right to Respect for … Private and Family Life” Doesn’t Protect Brother-Sister Incest

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

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