Regulation of Sexual Behavior Research Paper

1. The Legal Sphere: Protection vs. Restriction

The multifaceted role of our legal system is particularly evident in this complex process of enacting, interpreting, and/or disputing the laws regulating sexual behavior. In this process, the legal system is intermittently supported or challenged by a myriad of cultural, social and political forces that view this system either as an appropriate and necessary force enacting restrictive laws in the interest of individual safety, family cohesion, and societal order, a system that arbitrarily applies laws to certain individuals or groups of individuals, or conversely, as an ameliorating one that can redress the loss of individual right to privacy and consensual sexual expression.

In the USA, sexual behaviors are primarily regulated by way of a legal process that restricts what it defines as either harmful or socially unacceptable sexual conduct, both in private and public. More specifically, it is the general consensus that certain sexual behaviors merit prohibiting. In these instances, the laws are typically viewed as necessary and justifiable because they either provide parameters for sexual relations, as with regulations dictating the age of majority, or they prohibit coerced sexual contact between individuals, unsolicited sexual behavior on the part of the individual, and sexual exploitation, such as laws prohibiting rape, coerced nudity, sexual exploitation of an incapacitated individual, sexual contact between family members (incest), sexual contact between adults and children (pedophilia), sexual exposure to another individual (exhibitionist indecent exposure), or the unsolicited sexual attention and/or pursuit by another individual (sexual harassment) (Leonard 1993). Other regulations are controversial because they restrict consensual sexual behavior and/or private sexual activity that is subjectively defined as socially offensive, inappropriate or immoral, as in sexual relations between: individuals married to other partners (laws prohibiting adultery); sexual relations between homosexual partners (laws targeting homosexual sodomy); oral or anal sex between heterosexual individuals, married or unmarried (those targeting heterosexual sodomy); and sexual relations exchanged for payment (prostitution). Resistance to these regulations and increasing controversy regarding their enactment has emerged from a growing awareness of one’s right to privacy and the constitutional requirement that any restriction must be justified by compelling social need and benefit.

A related set of controversial regulations pertaining to sexuality but not directly involving sexual behaviors are those whose objective is to limit the production of and access to, sexual ‘entertainment’ and sexually explicit material. Operating in both the private and public sphere, these regulations focus on the right of the individual to access or ‘consume’ sexual entertainment and/or sexually explicit material in a variety of venues and mass cultural mediums—including various entertainment spheres, TV, movies, video, and via the Internet. Also restricting private, consensual behavior, these regulations range from censoring sexually explicit material in print to banishing live entertainment shows to peripheral locations in urban centers to confining sexually explicit content on cable TV to specific channels and hours (Communications Decency Act of 1995, Telecommunications Act of 1996).

2. Sexual Regulations That ‘Protect’

Even regulations whose objective is to protect the individual from harm have a history of vague legal definitions and arbitrary enforcement. A case in point is the discrepancies in the penalties attached to violations of sexual regulations and other criminal laws such as rape vs. murder, the disproportionate penalties given to minority vs. non-minority individuals charged with rape, and the increasingly subjective determination of incidents of sexual harassment.

More often, regulations pertaining to sexual behavior are applied to some but not others, and in many instances the determination is made on the basis of sexual orientation, sexual preferences or to behaviors considered outside of normative heterosexual activity. Individuals who fall into any one of these categories are then part of a ‘sexual minority’ with the unequal application of laws to these persons often questioned as to its constitutional legality.

3. Regulations That Restrict: A Normative View Of Sexuality

In the legal enactment and interpretation of these regulations, rarely does the body of scientific and accurate knowledge about sexuality inform this process, a body of knowledge best represented by the repository of scholarly contributions on the subject from the social, biological and physical sciences, and from the humanities. As a result, knowledge of sexuality has had limited influence on developing a meaningful public and legislative discussion and cogent public policy regarding the regulation of sexual behaviors. Instead, the regulations of behaviors, especially those conducted in private between consenting adults, are typically based on a normative, procreative view of sexuality originating in English common law. This view approaches human sexuality as a potentially uncontrollable, inherently deviant and socially disruptive force in need of restraint, one rightfully subject to stigma, penalty, and criminalization, especially outside of marriage. In the USA it has resulted in very clear demarcations of appropriate and inappropriate sexual behavior in which fornication between married, heterosexual partners is considered a sexual behavior worthy of protection under the law. However, at the same time other sexual behaviors, such as those between homosexual partners or oral anal sex between married or unmarried partners, are determined to be immoral and illegal. Some laws do not specify ‘non-reproductive sex, but use laws against disorderly conduct, carnal abuse, lewdness, lascivious behavior, public indecency, loitering, and indecent exposure to prosecute crimes of oral and anal sex’ (Franceour 1991a, p. 588).

Regulations based on a normative, procreative view of sexuality typically target adult behavior inherently private and consensual. As they become increasingly at odds with the sexual practices of the population and are enacted against an increasingly vocal sexual minority (more typically evident in the western world), their application and enactment becomes not only controversial, but often arbitrary. Two examples stand out as particularly incongruent with actual sexual practices—the state sodomy laws and the military law regarding homosexual behavior among its members—and their application has become increasingly both controversial and unworkable. Forces supporting their enactment have confronted and continue to confront those seeking their revocation; a conflict played out in the courts, in the media, and in strategy meetings by opposing teams of legal experts and community activists. In both examples, the point of contention is whether their continued enforcement either ensures the ‘common good’ and protects someone from harm, or whether it promotes intolerance and violence against a sexual minority who are the target of their enactment. To illustrate this point, a brief history of these two regulations follows.

4. State Sodomy Laws

State sodomy laws criminalize certain sexual behaviors within heterosexual marriage and all sexual behaviors occurring between individuals of the same gender. More specifically, sodomy is often defined as deviate sexual intercourse, including genital–anal, genital– mouth, manual–anal, or manual–genital contact. Sodomy laws are any one of the many laws, which criminalize non-reproductive, non-commercial sexual behavior between adults in private. Since their enactment, restrictions against sodomy between unmarried individuals have typically served the purpose of dictating ‘normative heterosexuality.’ This is clear when reviewing their application, as sodomy laws are rarely enforced in the case of married, heterosexual couples engaging in oral or anal sex. Not only are they primarily enacted in those cases when sexual acts occur between members of the same gender, but they have been used to justify legal discrimination against homosexual people (Cain 1993, Copelon 1990) and to deny lesbians and gay men a range of other rights. This occurred when the laws were introduced as relevant evidence in adoption and custody cases and they have justified the taking of children away from gay and lesbian parents.

5. The History Of Sodomy Law Repeal

The original 13 colonies continued the English tradition in which sodomy carried the penalty of death and every state adopted some form of a sodomy law as it joined the USA. By 1960, all states had some form of sodomy law in place, although their terms were often vague and they rarely stated clearly what the law prohibited. Throughout the long period of their enactment state by state, sodomy laws covered a variety of sexual behaviors, including oral sexual relations between two men, two women or between a man and a woman; anal intercourse was included either under sodomy or buggery laws, without distinction as to whether the two persons are heterosexual or gay, married or unmarried (Franceour 1991a, p. 587).

It was not until 1961 that the first state repealed its law when the Illinois legislature revised their criminal code without prohibiting sodomy. Other states followed soon afterward, although this movement significantly tapered off in the 1970s and 1980s during which time a spate of ‘homosexual-only’ sodomy laws were introduced. These laws were quickly, and in a number of cases successfully, challenged for their constitutionality under equal protection and privacy rights at the state level. The brief movement toward repeal came to a standstill in the 1980s as it coincided with the early stages of the HIV/AIDS crisis and courts and lawmakers withdrew from [such] efforts in light of the potential criticism of promoting homosexual sex at a time that the HIV transmission modes were becoming known.

In 1986, the US Supreme Court upheld a Georgia anti-sodomy law in the case of Bowers vs. Hardwick, ruling that the constitution ‘does not protect homosexual relations between adults even in the privacy of their own homes’ claiming that (a) homosexual couples did not have a constitutional right to engage in acts of consensual sexual acts, and (b) oral and anal sex is a criminal offense ‘regardless of whether the parties who engage in it are married or unmarried, or of the same or different sexes’ (Franceour 1991a, p. 587). It was not until the 1990s that the HIV/AIDS transmission was more clearly understood and the changing political climate allowed for repeal legislation to move forward.

Repeal legislation has continued to slowly dismantle state sodomy laws one by one, and in the process often unveils the weak foundation upon which the prosodomy camp stands. A telling example is the recent case argued by the state of Montana in defending its ‘Deviate Sexual Conduct Law’ to the Montana Supreme Court. Here, the state argued that there is no right to privacy when it comes to sexual conduct; some of the justices, not persuaded by this argument asked, ‘what could citizens in the state expect to be covered under the privacy clause if it was not sexual activity?’ (ACLU Newswire, 1997).

At the beginning of the twenty-first century, 16 states plus Puerto Rico have sodomy laws; 11 states plus Puerto Rico have sodomy laws which apply to both heterosexuals and homosexuals, and five states have laws, which apply only to homosexuals. The growing movement for repeal has been successful in 34 states: 27 states have repealed the law through legislative action, and seven states have had their laws invalidated by courts. Sodomy laws are primarily being challenged in state courts on the basis that state constitutions can provide greater rights than does the federal constitution. One brief in support of repeal states said: ‘When considering a public morality justification for (sodomy laws), it is important for the Court to recall that prohibitions on interracial marriage, and the segregation of races generally, were values deeply imbedded in social morality and were values that invoked both God and nature.’ But appeals to natural or theological ethics cannot constitutionally be used to legitimate laws whose sole function is to give effect to private citizens’ prejudice or conviction (ACLU Newswire 2000).

6. Military Law Regulating Sexual Behavior

The most significant military law enacted to regulate the sexual behavior of military personnel in active service is the Pentagon policy of ‘don’t ask, don’t tell’ regarding the sexual behavior of homosexual service personnel. Enacted on July 19, 1993, this rule specifically forbade US military commanders from asking, pursuing, or harassing homosexual service members regarding their orientation. More significantly, it codified the same restrictions for homosexual service members as had existed before 1994 under Pentagon policy, requiring secrecy and celibacy as a condition of their military service, under penalty of being fired or imprisoned. It also openly barred homosexual individuals from serving in the military. Five years later, the 1998 discharge figures have shown a record high of 1145 individuals discharged under the current policy, a 92 percent increase in homosexual discharges since the law was implemented (Service members Legal Defense Network).

When challenged on the figures, Pentagon spokespersons indicated that the high number of discharges was due to an increase in ‘voluntary’ statements made by service members; what they failed to state was that the overwhelming majority of such statements were made to psychotherapists, in personal diaries, contained in anonymous online profiles, or, in direct violation of the law, constituted responses to direct questions about one’s orientation. During that time, service members have indicated that they were coerced to make such statements due to hostile command climates characterized by fear, intimidation, and threat of assault, death and/or criminal prosecution. This was evidenced by the documented cases of physical assault and the brutal murder of Private Barry Winchell at Fort in Campbell, KY, which marked a turning point in the debate over the Pentagon’s policy.

Coming under considerable pressure, the Pentagon initiated a series of measures in 1998 designed to ‘improve’ policy implementation by incorporating such measures as: prohibiting ‘plea bargains’ to obtain evidence of consensual homosexual conduct; protecting service members from investigations in order to encourage the reporting of anti-gay harassment or lesbian-baiting without fear of reprisal; limiting the scope of investigations to prevent fishing expeditions; requiring commanders to consult with higher headquarters before initiating investigations into alleged homosexuality, and providing necessary and effective training on investigation parameters under the policy. Moreover, in December 1998, the Pentagon implemented a first-of-its-kind survey to determine the views of its service members about anti-gay discrimination evident in the military. It additionally required universal training on the ‘don’t ask, don’t tell’ policy of all military personnel with the intent to promote full compliance with military policy that anti-gay threats and harassment will not be tolerated and to educate all service members on policy’s parameters.

In issuing the results of its survey, the Pentagon indicated that disparaging, anti-gay remarks, hostile attitudes and harassment are commonplace in the American military, with a majority of the service members stating that they believed that superiors and colleagues tolerated it. Such behavior has been confirmed by independent investigatory reports indicating those incidents of verbal abuse and physical assault in 1999 more than doubled from the year before. Placing the discharge figures in realistic terms, the report specified that on average, the policy has resulted in three persons per day being discharged after declaring they are gay, with a 142 percent increase in harassment reports for 2000 (SMDN, March 10, 2000).

The regulation of sexual behaviors is ultimately an issue of privacy, consent, and choice. In the US ‘there is no shortage of opinions on what constitutes acceptable or unacceptable sexual behavior or what justifies regulating or prohibiting a particular behavior or activity’ (Francoeur 1991a, p. 583). Yet the legal process of regulation enactment or revocation inevitably provides crucial opportunities for engaging public discourse, refining strategies to promote social change, and questioning ideological assumptions about sexuality and morality. A continuing challenge is to effectuate the appropriate balance between the common good and individual rights, privacy, and the social personal cost exacted for laws that unnecessarily restrict sexual behavior.

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