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Sex crimes that are sometimes labeled consensual are numerous. They include adultery, bigamy, fornication, incest between adults, obscenity, prostitution, and sodomy. In each case, criminalization is controversial, at least in part because of the consent issue. If two adults agree to participate in a private sex act, what harm can justify state intervention to criminalize that conduct? At first blush the notion of criminalizing consensual conduct is repugnant to many people raised during the late twentieth century in the liberal tradition. This reaction may be called the libertarian approach to sexual regulation: if the parties to the sex act consent, the act should not be a crime.
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There is a deep history of criminalization of each of these sexual activities, first by dominant religious authority, and later by law as well. Before the twentieth century, sexual expression was not conceived widely as a human right important to individual identity. Instead, it was a social act with significant religious restriction that enjoyed social and legal legitimacy only in forms widely approved by the community. The community’s right to approve or disapprove of sexual conduct was not widely questioned until the twentieth century. Before then, the community granted to itself a legitimate stake in the sexual conduct of others. The community thus marked itself harmed by the sexual actions of others; harmed by moral offense, banned by rifts in the social fabric of the community as relationships realigned, harmed by the injection of doubt into the identification of a child’s father, and harmed by association as members of the same community as the sexual actors. It is against that backdrop that historically there have been prohibitions on the sexual acts that comprise all of the crimes discussed in this research paper.
Over the course of the twentieth century, however, there was a significant shift in the conception of sexual conduct. Only during this period did we create a zone of privacy in law and culture around sexual conduct that included a claim of legitimacy to freely chosen sexual expression that does not affect third parties. It was only in the late twentieth century that we thought to tie these criminal prohibitions together under the heading of consensual crimes. The term consensual sex crimes, therefore, carries with it more than a descriptive character. The term connotes a claim of legitimacy for the sex acts in question, meaning a claim of right to engage in the acts without interference from the community in the form of legal prohibition, or even in most cases social prohibition. The term consensual, more precisely, is used to negate the notion that the crimes cause a harm, making them victimless crimes. Without a cognizable harm, criminalization may be illegitimate.
The concept of consensual crimes, however, does not lend itself to easy definition. The equation of consent with harmlessness is not as perfect as it appears at first blush. There are two disturbances to the concept of a consensual sex crime that account for most of the regulation in the area. There are two corresponding types of harm claimed. The change over the course of the twentieth century has come in the judging of the legitimacy of the harm in question.
The first harm that might arise from a consensual sex crime is to one or both of the parties themselves. The second is harm to third parties from consensual sex crimes—to nonconsenting parties whose existence requires us to sharpen what we mean when we call an act consensual and put boundaries around who is in fact a party to the act. Both parties to an act of political bribery are consenting, for example, but there are third parties who do not consent and may be harmed by the act; therefore bribery is a crime.
The first challenge to the concept of consensual sex acts questions the meaning of an individual’s consent given some set of social circumstances. Here the community asks about the quality of consent surrounding a sexual act, even where no one holds the proverbial gun to the head of the parties. This applies, for example, to the regulation of incest between legal adults. Legislators may believe that power disparities within families make the consent of a significantly younger party who is nonetheless a legal adult suspect. Is father-daughter incest between a seventeen year old and her forty-fiveyear-old father, who lives in the same household, consensual? A seventeen year old is in most states old enough to consent legally to sex with nonfamily members. But the position of authority held by her father may make the quality of the consent suspect, as the father has significant power by virtue of his family position to coerce his daughter psychologically and materially. This question of whether consent is meaningful enough to dispel any public interest in an activity under certain social conditions affects the regulation of prostitution and pornography as well. If an adult prostitute was first induced into prostitution while she was a young minor, or she experiences periodic violence from a pimp, is her consent to the activity given under conditions that warrant complete legal deference to her choice? If consent is compromised, or if there is reasonable disagreement over the quality of consent under given circumstances, then there is a potential harm to the party whose consent is in some sense reluctantly given. Criminalization may seek to limit that harm by taking an undesirable option off of the table. Paternalism is the motivation, then, for some regulation of sexual conduct. Some commentators believe that there is never a justification for paternalism. They argue that a person ought to be entitled to make the best choice from among a set of bad choices; for example, a poor person may need to do something menial to earn money, and selling sex might seem to her the best choice from among other bad choices. Others think that paternalism is necessary under some circumstances, because choice occurs on a spectrum ranging from perfectly free to very constrained, rather than operating as an off and on switch. Some arguments then, for making consensual sex acts into crimes are based on the quality of the consent.
But harm to the parties is not the only, or even the primary, potential harm raised against consensual sex acts. The second challenge to the notion of a consensual sex crime accounts for more of the regulation of sexual conduct. That is a claim that nonconsenting third parties are harmed by the sex act between the consenting parties. Every consensual sex act that is criminal has as one major justification harm to third parties. The real controversy over criminalizing consensual sex acts, then, is over the legitimacy of that third party harm, or more precisely, whether the third party harm is cognizable—whether it legitimately justifies criminalization. The question is whether moral, religious, emotional, or ethical harms should be cognizable, whether nuisances to third parties may be regulated, and in some cases, whether the prevention of violence may be pursued through the indirect channels of regulating stimulus to violence.
Consider obscenity laws. In the case of photographic obscene materials, it is plausible that the photographer, the person being photographed, and the consumer of the obscene pictures all consent to the conduct. However, there are several claims by third parties to harms from this transaction. Suppose that the obscene pictures cause the consumer to become sexually violent (a causal connection about which there is substantial controversy, discussed below). The third party victim of the sexual violence claims a legitimate or cognizable harm caused by the consensual sexual conduct. Suppose also that the obscene materials are distributed at a grocery or video store. Many third parties must in some limited form come across the materials in passing during the distribution process. If those parties are offended morally or ethically by the materials, they may claim a harm from involuntary contact with the materials. Few deny that a third party could experience such contact as a harm, but the legitimacy of addressing that harm and giving it a legally protected status by prohibiting the distribution of obscene materials is deeply contested. In other words, the existence of a harm is accepted, but the existence of a cognizable harm is contested. The same analysis applies to the criminalization of prostitution. In some percentage of cases, acts of prostitution are simply voluntary exchanges between individuals (how many cases is contested, as will be discussed below). But third parties claim a number of harms from such acts, and the legitimacy of each as a basis for legal regulation has to be weighed independently. Those third-party harms include the moral or ethical offense from coming in contact with the distribution system, harms to third parties from the spread of disease that may result from prostitution, harms from related racketeering offenses associated with prostitution organizations, and perhaps most controversially, harms to the public at large from the commodification of sex.
The perceived legitimacy of third-party moral and religious objections to consensual sexual activity waned somewhat in the second half of the twentieth century. This was in response to a number of social forces, ranging from the sexual revolution of the 1960s and 1970s and technological improvements in birth control, to the development of a constitutionally protected sphere of privacy. As those moral and religious harms have been delegitimized as grounds for criminalization, the legal landscape has shifted in a variety of ways. In some cases, the legal prohibitions on consensual sex crimes were repealed, as was the case with some adultery and fornication statutes at mid century, and later in the century with some sodomy statutes. In other cases, enforcement of some laws has dropped off completely, leaving them as almost (but not completely) dead letters. And finally, in some cases new justifications have arisen for old laws, as in the case of disease control as a justification for the regulation of prostitution, and the enforcement of the laws has been shifted somewhat to reflect those new concerns.
What legal historian Lawrence M. Friedman has termed the Victorian compromise warrants attention here. The most enduring complaint about consensual sexual activity has been the offense to those who come into incidental contact with it. At the same time, even before the sexual revolution of the 1960s there was widespread acceptance of the inevitability of frequent sexual activity, such as adultery and prostitution, considered immoral according to religious and community norms. Thus criminal law has developed the ‘‘Victorian compromise’’: the law would criminalize only that conduct that was actually visible to the outside world, and would leave alone conduct with no public facet. This compromise appears in the details of a number of criminal statutes governing sexual conduct. For example, some prostitution statutes are crafted so that solicitation and streetwalking are illegal, but the actual private exchange of sex for money is not mentioned in the law. This reflects the English common law approach to prostitution. Many adultery and fornication statutes in the United States require that the conduct be ‘‘open and notorious,’’ or prohibit cohabitation with a member of the opposite sex rather than actual sex acts. This reflects the concern with outward appearances, and the protection of the sensibilities of third parties is the primary goal. The Victorian compromise has been viewed both as pragmatic on the one hand, and as hypocritical on the other. The compromise also removes from the table the specter of law enforcement snooping in bedrooms—if evidence of the crime is not apparent in public, then there is no crime to be investigated.
Prostitution and obscenity laws are routinely enforced. However, the rest of the consensual sex crimes discussed in this research paper—incest between adults, fornication, bigamy, adultery, and sodomy—are not. Laws that are rarely enforced are often called dead-letter laws, and they give rise to problems in both the criminal and the civil law. In the criminal law context, rarely used laws provide opportunities for prosecutorial abuses through selective prosecution. Criminal laws are supposed to be invoked even-handedly, based only on the violators commission of the prohibited activity, and not on a particular prosecutor’s dislike of any one individual. Violations of deadletter laws may be prosecuted occasionally when the perpetrators are famous or unpopular. A person suspected of more serious crimes is sometimes prosecuted for a lesser crime that is easier to prove than the real offense. For example, a case of sexual assault or a case of prostitution that is difficult to prove may include a lesser charge of adultery, fornication, or sodomy. The Victorian compromise is alive and well in the enforcement of laws that are not formally limited to public activity; sodomy laws, for example, are most frequently invoked against acts that take place in public bathrooms or other visible forums. The Victorian compromise in enforcement can operate as a shaming device, then.
In the civil law context, dead-letter laws can still be invoked to justify discrimination against presumed law violators. So, for example, while fornication prosecutions are exceedingly rare, a landlord may argue successfully that housing laws that prohibit discrimination based on marital status do not require the landlord to rent to an unmarried couple who are presumed to be in violation of the fornication statute. The same arguments have been used in the employment, child custody, and adoption contexts as well.
Though we have lumped all of the consensual sex crimes together for analysis thus far, each has its own particular history, operation, legal definition, and constitutional limits. We will examine them in turn below.
Adultery and Fornication
As the twenty-first century begins, adultery is still a crime in approximately half of the United States, and fornication is a crime in about onethird of the states. Reflecting the Victorian compromise, however, a substantial minority of the adultery statutes require a degree of visibility to the conduct, requiring the adultery to be habitual or open and notorious, or accompanied by cohabitation. Likewise, a majority of fornication statutes also require that the conduct be in some sense open and notorious.
The elements of fornication are straightforward: either it requires open and notorious cohabitation, or it is defined simply as intercourse between two unmarried people, depending on the jurisdiction. In almost every state where it’s prohibited, the crime is a misdemeanor carrying a trivial punishment. The elements of adultery are more varied. Adultery was originally an offense punished by ecclesiastic law in England, and became a secular offense in the United States as an incident of Puritanism. The elements of the offense in its original form at common law, however, reflect a goal of preventing men from raising and providing inheritance to offspring who are not their own. The offense protected against the corruption of bloodlines. Therefore, it was an offense that married women could be convicted of when they engaged in sex with a man not their husband, but not an offense for married men. Minnesota’s adultery statute takes this form even at the dawn of the twenty-first century, but it is alone in this sex-specific language, which would probably not survive a gender-based constitutional challenge. The ecclesiastical courts, however, punished any married person, male or female, for sex with someone other than a spouse. The remaining states now follow this lead, although they vary as to whether they can punish only the married party to adultery, or both parties even where one is single. In a few states, only a criminal complaint by the aggrieved spouse can lead to a prosecution for adultery. Adultery is also a misdemeanor in the majority of states where it is prohibited, but a few felony classifications remain. Ample Supreme Court dicta suggests that these laws are constitutional.
Of all of the statutes governing consensual sexual conduct, adultery and fornication are the most complete dead-letter crimes, meaning nonenforcement is the most long-standing and pervasive. The Model Penal Code recommends against criminalizing this conduct altogether, and nonenforcement preceded the sexual revolution of the 1960s. However, these statutes still have a force in the law. The abuses that can accompany dead-letter statutes are in play with each. Those include selective prosecutions, use of these statutes in place of crimes that are more difficult to prove, and most commonly, reference to these statutes as an excuse for civil law discrimination.
There are rare selective prosecutions of these crimes. For example, one prosecutor in the mid-1990s used a fornication statute to prosecute the sex partners of pregnant unwed teenagers. The statutes are more commonly used when prosecutors are interested in a more serious crime, but are not certain they will succeed on all of the elements of that crime. For example, a prostitution charge against a john could also be an adultery or fornication charge, and the exchange of money would not need to be shown. The threat of this kind of prosecution can be used to induce a potential defendant to testify against a prostitute on the prostitution charge. An adultery or fornication charge can also accompany a sexual assault charge where some difficulty of proof accompanies the more serious charge. In those rare adultery or fornication charges that still occur, there is some explanation of this sort that goes beyond the crime itself, as when the adultery occurs in a public place.
The most significant application of these statutes, however, does not come in the form of criminal prosecution at all. Rather, these statutes are cited in civil cases as a justification for action against the offender, who by violation of an adultery or fornication statute is considered a criminal despite the lack of prosecution. For example, fornication statutes have served to excuse landlords who violate housing discrimination laws, with courts agreeing that the landlord need not rent to criminals. Or fornication and adultery charges may justify child custody awards that disfavor presumed criminals. Since the 1980s, however, fornication and adultery statutes have been invoked less frequently in child custody cases than they were prior to that time, and have had little effect on the outcomes of custody cases. Finally, adultery is a ground for divorce in many states today. Prior to the no-fault divorce revolution of the 1970s, adultery was routinely litigated in family courts as the ground for a fault-based divorce. But the no-fault revolution has not extinguished its use in divorce cases. In a number of states, though the no-fault ground of irreconcilable differences is used in most cases, adultery still exists as an alternative ground for divorce. It is still regularly used as the ground for divorce either because a state grants a faster divorce on the ground of adultery than on the ground of irreconcilable differences, or because the state is one of the minority that takes adultery into account in dividing property or awarding alimony.
Finally, military law is authorized to punish adultery among military personnel severely. Historically, the military looked the other way on completely private cases of adultery. But in the late 1990s, a flurry of high-profile adultery prosecutions in the military led to the dismissal or reduction in rank of several military officers, and generated public discussion of adultery laws, without leading to repeals. This discussion illustrated the extent to which these dead-letter laws are not quite dead.
Incest between consenting adults is a crime in virtually every state. In addition, incestuous marriages are void, and a crime in their own right. There are a number of different approaches to defining incest. Some prohibitions are consanguinity-based, prohibiting sexual relations or marriage between individuals who are related by blood, to a degree of relation that varies from state to state. Other states also include relations by affinity, prohibiting sexual relations between individuals related through marriage, such as a stepparent and stepchild, or an in-law relationship.
While all cultures have some form of incest taboo, its contours vary widely. In fact, some cultures routinely practice affiliations that fall within the taboo in other cultures. The pairing of first cousins gives rise to the greatest difference in approaches. In parts of the world, the pairing of first cousins accounts for between 20 and 50 percent of all marriages (Gibbons). In the United States, however, the majority of states treat firstcousin unions as a felony. However, the incest taboo at least against parent-child and sibling relations is so strong as to put in question the need for a criminal prohibition, with self-sanction an effective alternative. Several reasons for the prohibition have been offered.
The most frequently offered explanation is the risk of genetic defects in the offspring of consanguineous relationships. There are several weaknesses to this justification for criminalization. First, the majority of criminal sexual liaisons will lead to no offspring, as the majority of sexual acts do not. In some cases reproduction will be impossible for one or both of the parties to the union, as when a woman is postmenopausal or either is infertile. Second, scientists are split on the extent of the risk of genetic defects. While closely related individuals are more likely to carry a negative recessive gene, giving it an opportunity to express itself, they also may carry a positive recessive gene. In addition, the expression of negative recessive genes provides the opportunity to eliminate them. The longer they stay recessive, the more widely distributed throughout the population they become. Though there is some increased mortality in the children of close offspring, the effect is not dramatic. Third, even if there is a significant genetic threat, criminalizing sexual unions may not be the most effective remedy, given that counseling, genetic testing, and contraception are available. Finally, genetic issues cannot explain the prohibition on sexual activity between relatives by affinity.
The weaknesses of the genetic explanation for criminal laws against incest lead us to the more plausible explanations for the law. Those are of two sorts. The first relates to the reenforcement of the cultural taboo, which may promote the cohesion of the family unit by preventing sexual jealousies and competition. Reinforcement of a cultural taboo may even be reason in itself; some people may expect the criminal law to respond to conduct that is universally disparaged. The second justification is the prevention of sexual imposition within families. While children are presumed unable to consent to sexual relations, and therefore fall outside the scope of this research paper, sexual imposition among adults is still possible. Most efforts to enforce incest statutes are addressed to situations of abuse of authority, as in the case of a parent or parent substitute such as a stepparent and a child just over the age of consent.
Bigamy was another crime originally punished by ecclesiastical authorities. At the beginning of the seventeenth century, it became a part of the secular law in England, and has been a part of the criminal law of every state. It is generally the crime of having more than one spouse simultaneously. The second or both marriages become void, but in addition, the offense is punishable as a crime, ordinarily as a felony. There are two unusual elements to the crime. First, at common law, a spouse absent on the high seas for seven years could be presumed dead, and a remarriage at that point could not be bigamous even if the first spouse later returned from sea. Some states have a similar statutory provision, usually permitting a presumption of death after a five-year unexplained absence. Second, bigamy at common law was a strict liability crime. This means that a person with a perfectly reasonable belief either that a first spouse was dead or that a divorce from a first spouse was valid, could still be convicted of bigamy if that good-faith belief was in fact in error. However, states in the second half of the twentieth century have generally added a defense of reasonable mistake with respect to those two facts. The Model Penal Code recommends allowing that defense, arguing that there was no apparent reason for the common law strict liability tradition.
To understand bigamy prosecutions better, it may help to understand the reasons a person may commit bigamy. It may be as a matter of right or principle, as where a person’s religion or culture practices open bigamy. While bigamy (or any other form of polygamy) is prohibited in most of the Judeo-Christian tradition, in the Islamic faith, which accounts for a substantial portion of the world’s population, there is no traditional prohibition on polygamy. Bigamy is part of the criminal law of the United States apparently because it is an offense to JudeoChristian faiths. The argument that codifying this perspective constitutes impermissible religious bias has been rejected twice by the U.S. Supreme Court (Reynolds v. United States, Cleveland v. United States). The Court considered the issue as early as 1878 in light of a now defunct Mormon practice of polygamy. That Mormon practice has been the cause for the only sustained controversy over polygamy in U.S. history. The federal government effectively conditioned Utah’s entry into the union on Mormon retreat from the practice, in light of substantial public fervor against the Mormon marriage practices. The Model Penal Code actually proposes that states consider ordinary bigamy a misdemeanor, but a felony if it is done ‘‘in purported exercise of the right of plural marriage,’’ pointedly singling out those few remaining Mormons who believe in polygamy, as well as those from other cultures who accept polygamy. Those from cultures accepting polygamy would receive more severe treatment than one who simply commits a fraud on a spouse who is unaware of a prior marriage. No state actually adopted the misdemeanor/felony distinction proposed in the Model Penal Code, but the proposal indicates one of the factors animating the criminal law in this area. The harm, then, is presumably moral offense to nonparties.
A person might instead practice bigamy because that person wishes to commit a fraud on one or both spouses, by disappearing from a spouse’s life with joint assets, and later contracting a new marriage without either spouse knowing of the other’s existence. There are even occasional cases of spouses conducting both marriages simultaneously and secretly, each family believing that the bigamist’s job requires frequent travel away from home. In these cases there are real financial and emotional victims in the person of the unknowing spouse, and bigamy prosecutions have been used to protect these individuals from confidence men. Or a person may commit bigamy because a first marriage is over and a second is desired, but the first marriage is difficult to dissolve legally for some reason. This final reason accounted for many cases of bigamy before the availability of no-fault divorce. Bigamy, then, was simply serial marriage relationships parallel to divorce and remarriage. Now that divorce can be easily obtained in almost every state, this bigamous practice is less prevalent.
Sodomy was first prohibited by English common law in the sixteenth century. As recently as 1960, all states had a criminal provision governing consensual sodomy. The legal language used to describe the prohibition was, and in some cases still is, both oblique and severe; several states decree that ‘‘the infamous crime against nature’’ is a felony, others call it ‘‘the detestable and abominable crime against nature.’’ Early prohibitions applied just to anal intercourse, but in the United States the definition has been interpreted as including oral sex as well.
Since 1960, there has been dramatic change in sodomy laws, concurrent with the rise of the gay and lesbian civil rights movement. By the end or the twentieth century, half of the state laws prohibiting private consensual sodomy had been repealed formally. A handful more had been struck down by state courts as violating state constitutional rights of privacy, though the U.S. Supreme Court decided in 1986 that sodomy laws do not violate the privacy guarantees in the U.S. Constitution (Bowers v. Hardwick). Despite the successes of gay rights organizations in effecting repeals, approximately twenty sodomy statutes remained on the books at the close of the twentieth century.
Though the language of most statutes does not limit the reach of the law to same-sex activity but would seemingly apply to heterosexual acts as well, the impact of the law is felt almost entirely by gays and lesbians. First, in several states, the language is explicitly limited to same-sex conduct, or judicial interpretation has narrowed broader language to have that effect. But in the majority of jurisdictions where the language appears to apply to heterosexual activity as well, the practical consequences of the law are limited to same-sex activity. These consequences include both enforcement of the criminal prohibitions, and significant civil law discrimination against individuals presumed to violate the statutes based on their sexual orientation.
Though largely thought to be dead letters, the use of these criminal statutes is slightly more common than is the case for the adultery and fornication statutes. They are frequently used when the conduct in question occurs in public, or when there is public solicitation to engage in same-sex activity. While laws against public sexual activity apply to heterosexual activity as well, there are two ways in which same-sex conduct receives harsher treatment. First, law enforcement officials routinely target specific public areas where gay solicitation is known to occur when organizing sting operations against solicitation or public sex. Further, sodomy charges are often tacked onto a gay or lesbian solicitation charge, whereas adultery or fornication charges are not as frequently tacked onto a heterosexual solicitation charge. In fact, it is inconceivable that law enforcement would set up a heterosexual sting operation in a public restroom with a police officer inducing someone to commit adultery, yet that kind of sting operation in the case of same-sex conduct leading to a sodomy charge is common. However, prosecution of completely private same-sex sexual activity is rare, though not entirely defunct.
More significantly, the sodomy laws, despite their apparent applicability to heterosexuals, are invoked exclusively against gays and lesbians in the civil law context. Presumed violation of a sodomy statute by a gay or lesbian parent is too frequently offered as justification for denying that parent child custody. Courts place restrictions on visitation with a gay parent in the presence of that parent’s partner, relying on the criminality of the same-sex association as a justification for the restriction. But sodomy laws are not invoked against a heterosexual parent in custody or visitation proceedings, despite the frequency with which heterosexual couples engage in the same prohibited activities. The practical application of these statutes, then, if not the actual words, amounts to status discrimination. Gays and lesbians have been denied employment based on their presumed violation of sodomy statutes, and these actions have been upheld in courts. Sodomy statutes have been used in legal argument against civil rights laws designed to prevent sexual orientation discrimination. Sodomy laws can be used to justify housing discrimination as well. In other words, sodomy statutes have become in effect a license to discriminate. Without a criminal conviction, a person engaged in a same-sex relationship can be considered a criminal nonetheless for purposes of civil law. Thus the sodomy laws provide an incentive to conceal same-sex affiliations, despite the paucity of actual prosecutions of private consensual same-sex sexual activity.
The states where sodomy laws remain on the books tend to be some of the most conservative in the nation, with a few exceptions. These statutes will probably be more difficult to repeal than they have been in other states. This is because these laws represent one piece of a wider legal battle over the status of sexual orientation discrimination, a legal battle that includes issues ranging from same-sex marriage to employment discrimination protection to military service to adoption laws. Conservatives in many states are opposed to the repeal of sodomy statutes despite their disuse, primarily because their repeal could signal an improvement in the political status of gays and lesbians, still a controversial concept for many.
Prostitution differs greatly from the consensual sex crimes discussed thus far, in that criminal prohibitions are routinely enforced, and the crime engages substantial law enforcement resources. It is, therefore, a theoretical concern. However, there is no shortage of theory surrounding the criminal law response to prostitution; whether and how to respond to prostitution has generated enormous debate from many quarters.
In the United States, prostitution was not directly prohibited by the criminal law during most of the nineteenth century, but prostitution activities were prosecuted under public lewdness, vagrancy, or nuisance statutes that ordinarily led to fines without imprisonment. Toward the end of the nineteenth century, most states passed laws prohibiting prostitution. These laws applied only to the women who worked as prostitutes, and not to their customers, or johns.
Not until the second half of the twentieth century were laws extended to cover the activities of johns, and not every state today criminalizes the patron of a prostitute at all. A number of states criminalize the conduct of both the prostitute and the john, but provide for more severe penalties for the prostitute. With a few exceptions, these statutes survive court challenges. By the 1980s, the official law on the books had come closer to equal treatment of prostitute and john. But in practice, the enforcement still has been extremely lopsided, with the vast majority of arrests and prosecutions brought against prostitutes. Studies of some jurisdictions have shown that virtually all of the thousands of prostitution arrests made each year in a given city have been of women prostitutes, not of the johns who are their compatriots in crime (Kandel). In the 1990s, however, there were sporadic attempts in some jurisdictions to arrest johns. These efforts included novel and controversial penalties, such as the publication of pictures and names of johns for the purpose of shaming them and thereby deterring others, and the seizure of automobiles driven by johns when those cars were used in the commission of the crime.
At common law, acts of prostitution were not crimes themselves, but solicitation was; this is the classic expression of the Victorian compromise. A number of states today continue this approach: they have no criminal prohibition of the actual exchange of money for sex where all aspects of the transaction are conducted in private. Instead, the criminal law in those states addresses solicitation, pandering, living in a house of prostitution, engaging in prostitution as a business (a single incident of prostitution is not enough to gain a conviction under these provisions), procuring a prostitute for another, inducing a person into a life of prostitution, or profiting from the prostitution of another. The majority of states do criminalize the private exchange of sex for money, but provide for trivial penalties, reserving the more severe sanctions for the organizational crimes associated with pimping. Finally, though it is widely believed that prostitution is not a crime in Nevada, in fact the state of Nevada simply delegates prohibition and regulation of prostitution to county governments, a few of which permit highly regulated prostitution.
The arguments in favor of criminalizing prostitution are numerous. They include the suppression of other crimes and harms that are incidental to prostitution, including organized crime activities, drug trading, violence against prostitutes and among pimps, as well as violence or offense to nonparticipant passersby, and emotional harm to the spouses of johns. These are about third party harms in some cases, and in some cases about harms to participants that are not easy to prosecute independently. For example, it is extremely difficult to obtain a conviction for sexual assault against a prostitute, though in study after study prostitutes report a high rate of nonconsensual sexual violence against them by both pimps and johns.
Underlying some of the dispute over the practice of prostitution is a dispute over facts. Libertarians often portray prostitutes as savvy entrepreneurs who have decided to capitalize on their sexuality. The contrasting picture, however, is of prostitutes who begin the work at an average age of fourteen, well below the age of consent, who are subject to routine sexual violence by pimps and johns, and who often have drug dependencies (that are sometimes encouraged by pimps) that drive their desperate need for cash. All three of these factors—early entry into the work, regular violence, and drug dependency—put in question the quality of the consent that would form the basis of the libertarian argument.
It is important to note that most of the criminal law response to prostitution has nothing to do with the protection of prostitutes themselves from these conditions. The response stems instead from the bargain struck in the Victorian compromise: seedy sexuality can take place without interference but anything that brings with it harms to bystanders in the form of criminality, violence, or offense in the neighborhood will not be tolerated. Therefore, some argue that we have the worst possible system: one that does not protect prostitutes themselves from the difficult conditions in their lives, but instead contributes a new difficulty in the form of arrests and fines aimed at the prostitutes themselves and not at the customers who create the demand for their work. Proponents of decriminalization argue that it would reduce some of these harms, specifically those associated with the black market corruption of law enforcement or organized crime involvement. They argue that it is the illegality itself that provides the opportunity for exploitative and violent behavior on the part of pimps and johns. Though the argument has become popular, it has not led to any actual changes in the law, or at least not to any decriminalizations. There is a significant difference between the concept of decriminalization and the concept of legalization. Decriminalization makes the practice free from legal punishment. Legalization gives the practice all the protections of civil law. These include the legal enforcement of contracts, the protections of labor laws such as occupational safety laws, antidiscrimination laws, and Social Security, workers’ compensation, and unemployment laws. Few libertarian advocates for decriminalization go so far as to advocate legalization. Decriminalization would remove police harassment from the lives of prostitutes and johns. However, it would not necessarily improve the conditions of prostitutes in other ways, or not to the extent that legalization would. Decriminalization would still permit violence by pimps and johns, and prostitutes would still need pimps to enforce contracts with johns were they unable to rely on the court system to do so instead.
An objection raised to complete legalization is that it would legitimize fully commodified sex. The argument continues that where the sale of sex is completely legitimate, a change would occur in the conception of sex among those who do not buy and sell it, as that noncommercial exchange would occur with the knowledge that the acts have a specific market price and availability.
Obscenity and Pornography
The laws regulating obscenity are extremely complex and far-reaching, but are narrowed here through the lens of the consensual aspects of the crimes. Obscenity, like most moral sexual regulation, was first regulated by ecclesiastical authorities. It was first criminalized in England in the eighteenth century. Obscene materials are a subset of sexually explicit materials. Materials that fit within the legal definition of obscenity are not protected as speech by the First Amendment to the U.S. Constitution (Roth v. United States, Miller v. California). The legal definition of obscenity has particular contours that will be discussed below. It is important to understand that the absence of free speech protection simply means state and federal governments are permitted to develop criminal law responses to the materials; it does not by itself mean that the materials are banned. They may not, however, develop criminal law responses to sexually explicit materials that fall outside the constitutional definition of obscenity, as those materials would be protected by the free speech clause of the First Amendment.
The most interesting question to the lay reader will be what this legal definition of obscenity is—which sexually explicit materials lack free speech protection. But arguably the question of how materials, once they are judged obscene, are then regulated, ought to inspire as much curiosity. The prior question, the definition of obscenity, does not really involve the question of consent as the concept is used in this research paper. Free speech can be protected without being consensual; a person may speak about politics freely in the public square to nonconsenting listeners, or may advocate civil disobedience or trespassing against individuals or nations that clearly do not consent to the effects of such speech. That speech is protected by free speech principles despite its harmful third-party effects, and lack of consent does not remove legitimacy from the legal protections of speech. Whether sexually explicit materials enjoy this protection depends on the purpose, extent, and meaning of our free speech guarantee, and since obscene materials do not receive that protection, the legal definition of obscenity is one of the legal limits of the free speech guarantee. Consent is not a relevant question to this inquiry. However, consent is relevant to the question of how unprotected obscene materials are legally regulated. The definition of obscenity will be touched on briefly first, and then discussion will turn to the method of regulation.
The Supreme Court has determined that obscenity is not speech. Speech as the Court uses it must be understood not in its lay sense, but by reference to the reasons legal speech is protected by the Constitution: to promote the exchange of ideas. Obscene materials are not considered speech on the theory that they do not communicate ideas. They are instead deemed to be sexual aids, no more deserving of free speech protection than any other form of sexual aid. The Supreme Court has defined obscenity as all material that the average person, applying contemporary community standards, would find (1) taken as a whole, appeals to the prurient interest; (2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by state obscenity law; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. Implicit in the notion that this is not speech at all is that it does not communicate ideas, but is instead a form of sexual activity itself. If materials are sexually explicit but nonetheless convey a serious idea, they are speech and cannot be prohibited by obscenity laws (Miller v. California). Subject to some judicial scrutiny at the outer limits, juries decide whether allegedly obscene material meets the Miller definition of obscenity.
The individual consumption of obscene materials within one’s home is constitutionally protected under the First Amendment as well as on privacy grounds (Stanley v. Georgia, United States v. Orito). This protection does not extend to carrying obscene materials across state borders or viewing obscene materials in movie theaters, for example, but remains confined to the home. This constitutional protection does not extend to the consumption of child pornography in the home (Osborne v. Ohio).
The private possession in the home of obscene materials that do not depict children cannot be prohibited. So what are the mechanisms for regulating obscenity? We will find that examination of the modes of regulation reveal the Victorian compromise: distribution and production with the intent to distribute is regulated, but not simple possession of obscene materials. An act that can be kept entirely private, then, and has no commercial gain involved, tends not to be a crime. But production and distribution of obscene materials is in fact prohibited almost everywhere in some form, and is usually punished as a misdemeanor. This is in part because commercial gains from obscenity may have third-party effects. For example, distribution areas may be associated with crime. In addition, production and distribution are crimes because the profit motive may lead to coercion in the production of obscene materials. Dissemination of obscene materials may offend those who inadvertently come into contact with the distribution system. Accordingly, many jurisdictions regulate which areas may sell obscene materials, keeping them out of the regular pathways of commercial activity and residential neighborhoods. Wide dissemination of these materials is thought to cause public desensitization to graphic sex, thereby affecting public morals. In the case of violent obscene materials, it is argued that they desensitize consumers to sexual violence, thereby inducing some individuals to commit such acts of violence. All of these potential harms affect third parties who are not the ones consenting to the sexual acts themselves.
No discussion of the regulation of obscenity is complete without attention to the feminist debate over pornography and its legal manifestations. Some feminists have argued that pornography, defined as sexually explicit materials that are degrading or dehumanizing to women, causes a number of harms that should be legally cognizable. Those include: (1) harms to individuals who are coerced to appear in pornographic materials; (2) harms to individuals who are victims of sexual assault perpetrated by one who has been incited to act after viewing pornography; and (3) a more diffuse harm to all women caused by the deterioration of the image of women through pornographic representations. The extent of each of these effects is debated fiercely. Some respected researchers have found that when sexually explicit images also depict violence, there is a causal connection between exposure to that aggressive pornography and propensity to commit violence against women (Malamuth and Donnerstein). Some have questioned the applicability of their work, performed under laboratory conditions, to real world crime, while others have argued that their laboratory work is supported by anecdotal evidence from the field.
In the mid-1980s, feminist legal reformer Catherine MacKinnon, along with feminist activist Andrea Dworkin, advocated in several cities for the passage of a local ordinance that would create a civil cause of action allowing monetary damages for anyone who could demonstrate that they had been harmed as a result of pornography. The statute would not prohibit the consumption or distribution of pornographic materials, and did not employ the criminal justice system. Instead, it was limited to private lawsuits by those who are assaulted in the making of pornography, who are assaulted by a consumer of pornography, or most controversially, who bring the suit on behalf of women who are subordinated by the pornography. The law was adopted by the city of Indianapolis, but a federal appellate court struck down the law as a violation of the First Amendment, taking issue with the definition of pornography within the statute (American Booksellers Association, Inc., v. Hudnut). That definition, which included the depiction of women as subordinate, encompasses both different and a greater range of materials than those defined as obscene within the Supreme Court’s jurisprudence. These feminists have objected to obscenity prohibitions as a mechanism for addressing violence favoring the civil cause of action arising from pornography. Obscenity laws, they argue, are aimed at moral sensitivities, reflecting prudishness rather than concern over victims of violence. A cause of action against the makers of pornography, on the other hand, is aimed at sex discrimination, not moral sensitivities. However, the First Amendment jurisprudence in this area permits regulation of only those materials considered obscene, while protecting much of what is considered pornographic, so the feminist distinction does not have much impact on law in the United States. It has, however, influenced legal regulation of sexually explicit materials in neighboring Canada.
The striking exception to the rule that private possession of pornography in the home is not itself a crime is for the possession of child pornography. Through the lens of consent, the reason is obvious: real children are not able to consent to participation in the production of pornography. But the ban on possession of child pornography goes farther; it is constitutionally permissible to, and most states do in fact, ban possession of materials depicting children engaged in sexual activity even where real children are not used as models. This is justified by the belief that such materials will incite consumers to
commit real world violence against children. It is an interesting exception to the arguments by some that adult pornography does not lead to violence against adults.
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