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Prosecution of Foley:

Eugene writes: "Masturbating isn't a crime, fortunately, whatever the age of the person's who's masturbating; but getting a minor to masturbate for you might be, depending on the jurisdiction and on the minor's age." He then cites modern cases from California and New York which might support this theory.

It wasn't so long ago that statutory law was very clear on the subject. During the Progressive Era, there was a widespread, and successful, campaign in which medical science was used to promote laws against sexual conduct which was, supposedly, unhealthy and dangerous.

This effort led as far as statutes in both Indiana (enacted in 1881) and Wyoming (enacted in 1890) that included the following language in their criminal codes: "Whosoever entices, allures, instigates or aids any person under the age of twenty-one years to commit masturbation or self-pollution shall be deemed guilty of sodomy."
Ronald Hamowy, Preventive Medicine and the Criminalization of Sexual Immorality in Nineteenth Century America, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 78 (Randy E. Barnett & John Hagel III eds., 1977), cited in Randy E. Barnett, Bad Trip: Drug Prohibition and the Weakness of Public Policy, book review of America's Longest War: Rethinking Our Tragic Crusade Against Drugs (By Steven B. Duke & Albert C. Gross. New York: G.P. Putnam's Sons, 1993. Pp. xix, 348. $26.95), 103 Yale Law Journal 2593, 2607 (1994).

The Sodomy Law website cites the Wyoming statute as Laws of Wyoming 1890, page 139, ch. 73, §87, and notes that the statute was repealed in 1977.

The Indiana statute carried a penalty of 2 to 14 years. Acts 1881 Indiana, page 174, ch. XXXVII, §100. In Young v. State, an activist state supreme court construed the masturbation statute so broadly as to apply it to cunnilingus. 141 N.E. 309 (1923). In 1973, the anti-masturbation law was amended so that it applied to persons under 18, rather than persons under 21. Acts 1973 Indiana, page 1732, Public Law No. 320, at 1733-1734, §3. The law was entirely repealed in 1976 when the criminal code was revised.

Lev:

Sodomy, fellatio, cunnilingus, pederasty
Father, why do these words sound so nasty
Masturbation can be fun
Join the holy orgy kama sutra everyone
10.5.2006 2:52am
logicnazi (mail) (www):
My understanding was that their were many laws that outlawed masturbation, but they refered to it with some euphamism that isn't commonly understood nowdays.
10.5.2006 3:42am
Malvolio:
The song I was thinking of:

I fought the law
And the law won...
10.5.2006 4:39am
BT:
I love the euphamism "self pollution". That's a new one on me.
10.5.2006 8:03am
Enoch:
euphemism
10.5.2006 9:13am
Just an observer (mail):
One very minor quibble: first, in describing the laws in question (1881 and 1890) as a result of a Progressive Era campaign, David stretches the timeframe of that era into a time that is quite a bit earlier than normally accepted. See here for some elaboration.
10.5.2006 9:47am
JRL:
Do I dare ask what is meant by self-pollution? I certainly won't endeavor to look it up from work.
10.5.2006 9:47am
anon123 (mail):
Yuck.
10.5.2006 10:20am
Jon Rowe (mail) (www):
I wondered about this issue because previously I blogged about this article of Hamowy's with a slightly different title (one might be a revised version of the other).

The "geniuses" in the mental health profession apparently use to believe that masturbation causes insanity.
10.5.2006 10:45am
Cornellian (mail):
The "geniuses" in the mental health profession apparently use to believe that masturbation causes insanity.

I guess those geniuses must have all concluded that they were the lucky exceptions, able to survive puberty with their minds intact.
10.5.2006 10:59am
Fub:
Enoch wrote:
euphemism
Careful. There's probably a law against that somewhere too.
10.5.2006 11:01am
KevinM:
"an activist state supreme court construed the masturbation statute so broadly as to apply it to cunnilingus"
Unless they mean on someone else, the guilty party might be sentenced to join Cirque du Soleil.
10.5.2006 11:10am
Anderson (mail) (www):
I guess those geniuses must have all concluded that they were the lucky exceptions, able to survive puberty with their minds intact.

Even worse, the men who repressed themselves so heavily as not to masturbate, became the judges of everyone else's "mental health." Brrrrrrr.

--Tho, as the current Foley brouhaha shows, those most vocal against a deviant practice are often those most attracted to it. On that theory, those guys probably couldn't keep their hands off themselves.
10.5.2006 11:18am
Hoosier:
So is *that* the crime that leads to the song "Indiana Wants Me (But I can't Go Back There)?"

But let just defend my home state: The law HAD to be passed, in the public interest. Until the self-gratification ban, nothing else was getting done here.
10.5.2006 11:24am
JB:
Hmm...self-pollution...perhaps it's best combatted by restrictions on emissions. Would they be tradeable?

Could we induce other countries to sign an international treaty to try and eliminate it? Would our next President pull out of it? Would he pull out in time?
10.5.2006 11:26am
Ubertrout (mail) (www):
That's a really interesting bit of historical trivia. I only commented to note though that the Hamowy cite may be the longest I've seen for a single work.
10.5.2006 11:26am
Hoosier:
JB--

Ah . . . It now becomes clear: You've accidentally reversed your intials.
10.5.2006 11:36am
Lawstsoul:
Intimidation of a witness? Obstruction of justice? Issues for a law school's ethics committee? Inquiring minds want to know.

An obscure right-wing blogger, Wild Bill, has outed one of Mark Foley's victims, a former Congressional page. It is a despicable act. Wild Bill however, gets almost no traffic, so the damage done to the victim's life could have been minimal.

All that ended, however, when some of the most highly-trafficked right-wing bloggers decided to direct their readers to Wild Bill's site. First, Roger L. Simon, co-founder and CEO of Pajamas Media — a portal and advertising broker for nearly every major right-wing blog — posted a link to Wild Bill on his personal site. (The Pajamas Media portal also linked to Wild Bill.) Glenn Reynolds of Instapundit — probably the most highly-trafficked right-wing blog — followed suit by linking to Simon's post and the Pajamas Media post.
10.5.2006 12:40pm
Luke 1152 (mail):
EV linked to the GA case a while ago re a Georgia law banning vibrators:
here


I would bet that there are are plent of other such laws still on the books in other states. Presumably why vibrators are sold as "personal massagers".
10.5.2006 2:04pm
Clayton E. Cramer (mail) (www):

--Tho, as the current Foley brouhaha shows, those most vocal against a deviant practice are often those most attracted to it. On that theory, those guys probably couldn't keep their hands off themselves.
That explains why the civil rights movement was so vocal against lynching and racial segregation--they were just so attracted to it.

That explains why feminists have been vocal about tolerance of rape--they are just desperate to have it happen to them.

That explains why so many parents get really, really angry about child molesters--they are just looking for a chance to do likewise.

Do you have any idea how ridiculous you sound?
10.5.2006 4:39pm
Clayton E. Cramer (mail) (www):
Keep in mind that such laws can be easily justified by application of the New Deal era Supreme Court decision Filburn v. Wickard (1942) to interstate commerce and the legal brothels of Nevada. By banning masturbation (which reduces the aggregate volume of business for legal brothels), state governments were thus helping the national economy!

See where liberalism takes you? Everything is properly within the sphere of government regulation! Even breathing, because it produces carbon dioxide, and thus contributes to global warming.
10.5.2006 4:43pm
logicnazi (mail) (www):
Clayton,

And which way did Scalia vote on Raich? See where conservatism takes you?

Also it's much a question of who you don't trust. Liberals won't let anyone make it illegal to hae private consensual sex. Many conservatives think the state should be able to outlaw sodomy.

I thought the eiphemism was something like crime against nature or something similar.
10.5.2006 5:33pm
crane (mail):
The phrase "crime against nature" referred to more than just masturbation. It definitely included homosexual acts, maybe bestiality, and possibly "deviant" sex acts between men and women. The idea was that nature intended for humans to have sex in a particular way, and anyone who deviated from that was therefore violating nature's law.

Self-abuse was another fun euphemism for masturbation - probably invented by those psychologists who thought it was harmful.
10.5.2006 7:18pm
ReaderY:
North Carolina held in 2004 that the crime against nature law covers insertion of an object into a woman's genitals, although the crime requires a partner (it does not cover solitary masturbation). The ruling reaffirmed that the language has a general coverage including "all kindred acts of a bestial character whereby degraded and perverted sexual desires are sought to be gratified" and its scope has never been enumerated. The case is State v. Stiller, N.C. App (2004)

The constitutionality of the statute was summarily affirmed by the U.S. Supreme Court as applied to consensual heterosex heterosexual fellatio in private (See Poe v. North Carolina, 445 U.S. 947, 1980). Poe affirmed a state Court of Appeals judgment which, in addition to turning down a privacy challenge. The case was overruled by Lawrence v. Texas, but the North Carolina Court of Appeals held in State v. Pope (2005) that the crime against nature statute survives Lawrence and always applies to whatever conduct, within its original scope, the Supreme Court of the moment permits. The Court of Appeals in the Poe case had used the words "conceding for purposes of argument that a husband or wife could not be prosecuted for engaging in fellatio in private with his or her spouse...", dicta strongly suggesting that the statute will apply to married couples the moment a change in Supreme Court composition permits it.
10.5.2006 11:27pm
ReaderY:
One could argue that it's marriage that most reduces the need for legal brothels. Attempts at self-help at home discourage people from using channels of interstate commerce to meet their needs, reducing commerce among the several states and inhibiting our gross national product.

What an economic downer!!

I've often argued that the idea some activity is inherently economic and whilw other inherently not economic is often, at bottom, a moral judgment. Unlike many on this forum, I believe that the political branches of government, and States, have a right to make such judgments, and have the power to take some things off the economic table if they wish. I do not believe, however, that judges have any business deciding that marijuana and education are inherently economic while sex is inherently non-economic based on their personal moral and policy views.
10.5.2006 11:41pm
Greg L. (mail):
I dont care what some so-called expert says. When a 52 year old guy hits on a 15 year old kid, something has to be done. Instead of pointing fingers between Democrats and Republicans saying 'Your worse! No your worse!' Why dont people just deal with the matter at hand? Its an individual case, no ones saying all republicans are pedophiles.
10.9.2006 4:15am