CURRENT SEX LAWS IN THE U.S.
Each state in the U.S. has its own laws regarding the sexual behavior of its citizens. These laws show an astonishing lack of conformity as to the number and character of punishable offenses as well as to the severity of the prescribed punishment. For example, certain sexual acts may be punishable by life imprisonment in one state, yet may not be a crime at all in another state. Furthermore, there is a total confusion as to the terminology used in defining sexual offenses. The various legal terms employed for this purpose are mostly of prescientific origin, and their meaning can differ from state to state.
in addition to their "regular" sex laws, a number of states also have special laws allowing for the commitment and forced psychiatric treatment of offenders. These laws declare certain sex offenders to be "sexual psychopaths" in need of a "cure". Consequently, such offenders, who otherwise would perhaps receive only a suspended sentence or serve a short prison term, can be committed to a mental hospital for an indefinite period or for the rest of their lives. In some states they may even be committed without a trial.
These curious laws were, of course, enacted in the name of science, although there was and is no scientific evidence to support the assumptions on which they are based. Indeed, the very term "sexual psychopath" is unscientific and does not correspond to any particular disease constellation recognized by psychiatrists today. Thus, one and the same person may be considered legally sick in one state and healthy in another. Nevertheless, unsound and unfair as they are, these laws remain on the books because they give an uninformed general public the illusion of preventing sexual violence. However, current diagnostic techniques are incapable of distinguishing between potentially dangerous offenders and those who are not dangerous. At any rate, only very few sex offenders are violent. Furthermore, sex offenders are less likely to repeat their crimes than other types of offenders. Finally, there is little proof that forced psychiatric treatment is an effective tool of rehabilitation. (For further details see "Healthy—Sick.")
The extraordinary diversity and inconsistency of American sex legislation prevent us from describing it accurately within the scope of the present volume. Still, one can recognize certain main areas of behavior that are subject to such legislation. The current legal attitudes towards them are briefly summarized below.
Crimes Involving Victims
Virtually all countries punish sexual acts which involve force, fraud, injury, or exploitation, or which take place in front of unwilling witnesses. In each of these cases there are clearly identifiable victims who complain (or would complain if they could) to the police, and it is obvious that they have a right to be protected. A society that is unwilling or unable to provide such protection cannot survive very long. Thus, quite appropriately, every state in the U.S. has laws against sexual crimes involving victims, and these laws are always vigorously enforced.
However, in many states the laws leave much room for improvement. In some cases they are worded in such archaic and imprecise language that they are no longer effective. In other cases they carry unrealistic and counterproductive penalties, or the manner of their application penalizes the victim along with the offender. A good example are the traditional rape laws, which are now being revised in many states as a result of pressure from women's liberation groups.
The laws may have still another drawback. In their attempt to protect potential victims, they often also prohibit essentially harmless acts and thus, in fact, create crime where otherwise none would exist. On the other hand, legislators may not always be protective enough. As a result, some clearly dangerous sexual behavior may not receive the appropriate punishment.
These and similar problems as well as the laws themselves are discussed in the following paragraphs dealing with specific crimes.
Ordinary laymen would probably define the crime of rape as "forced sexual intercourse against the partner's will". However, this is not how rape is legally defined in most states of the U.S. First of all, many state penal codes specify that only females can be raped. (Males who rape other males cannot be prosecuted under the rape statutes.) Secondly, these codes usually also recognize cases of rape which involve no force at all and which, in fact, take place with the full consent of the "victim". For example, when a female is "under age", or mentally defective, or drunk, the law simply assumes that she is incapable of consent. It does not matter that she might be quite willing or might even have actively seduced her partner. Any sexual intercourse with her is automatically regarded as rape. Furthermore, this so-called "statutory rape" often is punished just as severely as forcible rape. (Actually, most rape convictions are for the nonviolent statutory type.)
Traditionally, the punishment for rape has always been extremely severe, with prison sentences ranging from one year to life. In many states even the death penalty was common, especially if the offender was black and his victim white. (In recent years there have not been any executions for rape, because the constitutionality of the death penalty itself was being tested in the courts.)
As these few observations already indicate, the American rape laws, although perhaps well intended, may not always be fair. Indeed, in some cases they can lead to patent absurdities. For instance, some criminal codes restrict the act of rape to coitus or attempted coitus. Consequently, forced manual, oral, or anal intercourse, and the apposition of sex organs without penetration must be prosecuted under different statutes. Yet these sexual acts may be even more degrading and injurious to the victim than forced coitus. This applies not only to heterosexual, but also to male and female homosexual rapes as they often occur in prison. There also have been cases where women used guns or other deadly weapons to force men to perform noncoital sexual acts. Such offenses are not considered rape and therefore may not be punished severely enough.
On the other hand, it is obvious that in many cases a "statutory rape" harms no one and is, in fact, a superfluous, artificial, state-manufactured crime which should be stricken from the books. It is neither good sense nor good law to brand male teenagers as felons and send them to prison for years, only because their girlfriends were under the "age of consent". (The age of consent varies from state to state, but it is 18 or 16 in most states.) By the same token, it is highly unreasonable to regard even consensual sexual intercourse with a mentally defective female as rape. Such females should have the same right to sexual fulfillment just as everyone else. By automatically defining any lover of theirs as a rapist, the law does them a grave disservice and, indeed, oppresses them. (See also "The Sexually Oppressed.")
Still another objection to present rape laws can be the manner of their application. Often the female victim is harassed in court by an examination of her sexual history before the alleged rape took place. Her sex life should be irrelevant to the trial, however. After all, even a prostitute has a right not to be raped. Some state codes also require that the victim of rape resist to the utmost. Without such proven resistance, the rapist may go free. Moreover, the prescribed penalties for rape are often so extreme that juries are reluctant to convict. Lighter sentences might produce more certain convictions.
In conclusion, it seems that American legislators could provide greater protection against rape if they treated it as a crime of violence rather than a sex crime. The penalties for rape should differ according to the degree and type of violence used by the rapist. Both males and females of all ages should be protected. The category "statutory rape" should be abolished.
When persons are sexually molested, threatened, assaulted, or annoyed, they may suffer not only physical injuries, but also psychological damage. This is especially true for very young and helpless persons, i.e., children. Therefore, while everybody should be protected against sexual molestation, children need much stronger protection than adolescents or adults.
Some such protection can perhaps be provided by the threat of harsh criminal penalties. Most state penal codes indeed make this assumption and thus punish child molesters with prison terms ranging from a minimum of 30 days (Wisconsin) to a maximum of life (California). In addition, some states declare such offenders to be "sexual psychopaths" who can be committed to mental hospitals for treatment, and who, even when released, are forced to register with the police. In prison itself, a child molester is usually despised and mistreated by the other inmates who call him "short eyes" or "baby raper" and regard him as the lowest type of criminal.
Unfortunately, a closer examination of American child molestation laws raises serious doubts as to their fairness. First of all, the legal definition of "child" varies considerably from state to state. (In some statutes the term is applied to every person under the age of 18.) Secondly, the age of the offender is not always taken into account. Thus, cases of mutual sex play between adolescents may be treated as "child molestation", with one of the participants being cast into the role of the victim and the other being branded as the molester. Thirdly, the laws often do not distinguish between dangerous molestation and consensual, pleasant encounters which may be enjoyed by the child. It is simply assumed that children cannot give consent to a sexual act and that any such act is always harmful. However, this view is irrational and oppressive. (See "The Sexually Oppressed—Children.")
In addition to specific laws against child molestation, there are numerous other laws which try to serve the same purpose. Thus, adults who, in one way or another, have sexual contact with children can also be prosecuted under catch-all statutes such as "Contributing to the Delinquency of a Minor", "Impairing the Morals of a Minor", "Carnal Abuse", "Lascivious Behavior", "Lewdness", "Sodomy", etc. Depending on the circumstances, the laws against "Indecent Exposure" may also apply. If the offender is a close relative, he may be accused of incest.
Studies have shown that by far the greatest majority of convicted child molesters are relatives, neighbors, friends, or acquaintances of their victims. It has also been shown that physical injury occurs only very rarely (in about 2% of the cases). Any potential psychological damage is difficult to assess, and, if it occurs, it may very well be caused more by the reaction of parents and officials than by the sexual act itself. While children understand that coercion, intimidation and physical assault are bad, they may be puzzled and even seriously disturbed by adult hysteria about a non-violent "child molester". It seems, therefore, that it should make a legal difference whether the children are hurt, forced, threatened, or annoyed, or whether they act as willing participants. If the latter cases are to be prosecuted at all, they should obviously carry much lighter sentences. Indeed, it may very well be unfair to treat them as crimes in the first place. It also seems only realistic to reduce the age of consent at least to the beginning of puberty. For both sexes the age of 14 seems to be the reasonable maximum as in the state of Hawaii and in many European and Asian countries. In many cases even lower age limits may be justified. (Actually, the whole notion of age limits for sexual partners deserves to be questioned. Today many people are arguing with good reason that age alone should not be the basis for making otherwise harmless and legal sexual behavior a crime.)
Public Lewdness and Obscenity
Lewdness and obscenity are very difficult to define. They are almost entirely in the eye of the beholder. Nevertheless, it seems possible to describe various instances in which people are annoyed and offended because they are made unwilling witnesses to nudity or sexual behavior.
Such an instance may involve a man who masturbates or exposes his sex organs on a public street, or it may involve several men who have sex in a public toilet and thus shock unsuspecting others who enter upon the scene. Sexual intercourse between men and women may be offensive if it occurs on beaches, in parks, or in other places frequented by the public. Loud and boisterous talk about sex, sexual solicitation, and sexually explicit phone calls can also be quite disturbing to people who have no taste for such things and who want to be left alone. The same goes for sexually explicit billboard signs, window displays, etc., which cannot easily be overlooked by the average person. Finally, men and women may become rightly indignant about being spied upon by a so-called Peeping Tom who watches them in their most intimate moments.
In these and similar cases, society has a clear obligation to protect potential victims by passing appropriate laws and imposing adequate penalties. However, the laws that are now on the books in most states of the U.S. are far from satisfactory. For example, in statutes related to the public exposure of sex organs the punishment is often quite out of proportion to the actual harm done. Sex in public restrooms is often punished not as the public nuisance it is, but as "sodomy" or a "crime against nature" which have entirely different connotations and which may carry excessive penalties. Sexual solicitation, especially among homosexuals, is sometimes punished even in its most polite and unobtrusive forms. Indeed, it is not uncommon for especially discreet individuals to be entrapped by undercover police officers without any further witnesses being aware of the offense. Business advertisements, magazine covers, etc. may be deemed obscene by the law, when, in fact, the vast majority of people find them perfectly acceptable. Occasionally even great works of art have been judged unfit for public view. Laws against "Peeping Toms" may be biased and inconsistent. Thus, as a lawyer once remarked with only slight exaggeration: "If a man is found watching a woman undress in front of an open window, he is arrested as a 'voyeur'. If the situation is reversed, and a woman is found watching a man undress in front of an open window, he is arrested as an 'exhibitionist'. The woman is always simply assumed to be the victim." A further problem with most laws against public lewdness and obscenity is their vagueness which practically invites abuse by overzealous authorities.
Under the circumstances, it seems that the public would be better served if the laws made a clear distinction between those actions that are harmful and those that are merely startling or undignified. The latter should be punished much less severely than the former. Nudity and sexual activity should never be illegal among consenting adults or in front of witnesses who are not personally offended.
Crimes Without Victims
In modern America (just as in many other societies) there is a class of crime that does not involve any victims, but consists of acts committed in private by consenting partners who have no intention of complaining to the police. This so-called victimless crime harms nobody. Indeed, it is perhaps best defined as a transaction or exchange of goods or services between people for their mutual benefit. This transaction concerns only the immediate participants and is not designed to affect anyone else. However, it provides the participants with something they greatly desire and which the law tries to deny them. Therefore, they have no interest in seeing the law enforced. They will neither initiate prosecution nor give evidence to the authorities.
It follows from these observations that, if the government wants to enforce its laws against victimless crimes, it has to adopt extraordinary and often highly questionable methods. Such methods may include systematic spying and snooping, secret surveillance, the use of undercover agents, enticement and entrapment. However, these elaborate efforts usually produce only very meager results and thus do not justify the expense. The very character of victimless crime leaves most of it undetected. Those few offenders who are caught and convicted are never more than a tiny "unlucky" minority. Since police officials are well aware of this fact, they do not even make an attempt at equal enforcement. Instead, they enforce these laws only periodically or selectively against certain individuals or groups, thus creating a climate of injustice and hypocrisy. These conditions in turn breed new crimes such as blackmail and bribery. Needless to say, eventually all of this leads to widespread contempt for the entire legal system.
In the U.S. the most notorious victimless-crime laws deal with sexual behavior. Because of certain religious and cultural traditions, most American states recognize only two very specific sexual acts as lawful: solitary masturbation and private marital coitus. Any other form of human sexual expression, even between husband and wife, is a crime. Obviously, this makes criminals out of most Americans. As a matter of fact, if the American sex laws were rigorously and equally enforced, the country would have so many sex offenders in prison, that there would not be enough innocent citizens left to guard them.
As we can see, the American laws against victimless sex acts are absurd and dangerous. They create crime where otherwise none would exist. They force harmless behavior underground and produce unhealthy sexual subcultures. They stigmatize untold numbers of respectable people and needlessly force them into criminal careers. They encourage extortion, graft and police corruption. In short, they are irrational, immoral, and destructive. They themse!ves victimize many and offer protection to none.
Nevertheless, these laws are sometimes defended on the grounds that they do protect at least some people and that, in a strict sense, there is no such thing as a victimless crime. Thus it is argued, for example, that fornication often leads to unwanted pregnancies or spreads venereal disease. Incest is said to victimize potential offspring by the transmission of genetic defects. Prostitutes are described as the victims of their pimps. Homosexuals are seen as endangered by their lifestyle, because they may be robbed, beaten, or even killed by their casual partners. Sexually explicit books and films are believed to corrupt the minds of those who enjoy them, etc.
However, it is difficult to take such arguments seriously. After all, if any of the above consensual behaviors has undesirable social side effects, they result entirely from the fact that society treats it as a crime. In other words, if the behavior were legal in the first place, the side effects would either not appear at all or be greatly reduced. Unwanted pregnancies are easily prevented by the use of contraceptives. If our sex laws were more reasonable, couples would be better informed, and even the venereal diseases could finally be eliminated. Prostitutes who can ply their trade legally do not need pimps. Homosexuals who have nothing to fear from the law need not seek satisfaction in "one-night stands" with violent strangers. Without laws against "pornography", erotic materials would be of higher quality and might very well diminish in quantity.
It seems, therefore, that the U.S. would do well to follow the example of other Western nations which have abolished most, if not all, laws against consensual sex in private. This policy has also been recommended by various American professional groups and law-revising committees.
The following pages do not cover all private consensual sex acts that are illegal in the U.S. today. The number and diversity of laws is simply too great. Still, a few main areas of legal control are discussed in some detail. Certain problems connected with specific victimless crimes are also mentioned briefly.
Fornication may be defined as sexual intercourse between males and females who are not married to each other, and as such it is punishable in many states of the U.S. However, if one of the partners is married to somebody else, he or she may be charged not with fornication, but with adultery.
Curiously enough, some states have traditionally applied different standards to male and female offenders. Thus, a married woman who had sexual intercourse with a single man was punished as an adulteress, while a married man who had intercourse with a single woman was often considered a mere fornicator, and his offense was treated much more leniently. On the other hand, this kind of sexual discrimination usually reversed itself, if the female was under the "age of consent" (18 or 16 years in most states). In this case, she normally went free, while her male partner was prosecuted for "statutory rape", which carries an extremely severe penalty. (See also "Rape.")
The punishment for fornication varies from state to state, but usually consists of a fine (up to $1000) or imprisonment (up to 1 year) or both.
There is no doubt that the laws against fornication are broken millions of times every day, but we can also assume that most offenders are not even aware of the fact that they are committing a crime. The average American remains, perhaps fortunately, ignorant of the extent to which his government may control his private life, and it must be admitted that prosecutions for fornication are quite rare. Nevertheless, as long as the laws are on the books, they can be enforced against anybody who should displease the authorities.
Thus, for example, poor, unwed mothers have been tried for fornication on the theory that their imprisonment would prevent them from becoming pregnant again and thereby cut the welfare rolls. The very fact that the women had borne children out of wedlock was taken as sufficient evidence that the crime of fornication had been committed.
Some states of the U.S. punish fornication only if it is repeated and thus causes the offenders to live in a "state of open and notorious cohabitation". Depending on the state, this crime may be a felony punishable by imprisonment for several years. Needless to say, such a statute has the absurd effect of penalizing couples who live together in an exclusive, stable relationship. Promiscuous individuals, on the other hand, remain untouched by the law.
A number of states in the U.S. have laws against "seduction", i.e., a man's coitus with a previously "chaste" woman under promise of marriage. This promise must have been unconditional, however, in order to lead to conviction. For example, if a man promises marriage only in case the woman becomes pregnant or he himself can obtain a divorce, his promise is not unconditional and he cannot be convicted. On the other hand, it does not matter whether the promise of marriage was fraudulent or made in good faith, or whether it was legally binding. The man can be prosecuted even if he is under age or already married. There is sufficient cause for prosecution as long as the promise was unconditional and has not been kept. Indeed, if the man belatedly offers marriage and the woman refuses, he can still be convicted. Nevertheless, if the promised marriage takes place before the man's indictment or before a charge has been filed against him, the prosecution is dropped in most cases. However, if the woman was under the "age of consent" at the time of the seduction, the new husband can still be convicted of earlier "statutory rape".
Some state legislatures have complicated this confusing legal picture still further by various other provisions, exceptions, or requirements relating to the victim's proof of "chastity". Still, in virtually all states which have "seduction" statutes the penalties are quite severe (up to 10 years in prison plus several thousand dollars fine).
There has never been a law punishing women for seducing "chaste" men.
Adultery can be defined as voluntary sexual intercourse by a married person with a person other than his or her spouse. That is to say, adultery can be committed by a married person with an unmarried person, or by two married persons who are not married to each other.
Not all states in the U.S. have laws against adultery, and those that do differ greatly in the degree of punishment. In some states a conviction may result in nothing more than a small fine, in others it may lead to heavy fines and several years imprisonment.
Prosecutions for adultery have become extremely rare in recent decades, although technically this crime may stiil play a role in divorce cases.
Sodomy and Crimes Against Nature
The U.S. is among the very few modern nations which still have laws against noncoital forms of sexual intercourse. Thus, in most American state penal codes oral and anal intercourse as well as sexual contact with animals are grouped together under such categories as "sodomy" or "crimes against nature", and they are treated as very serious offenses.
It does not matter that these sexual acts may be performed in complete privacy by consenting partners and, indeed, by married couples in their own bedroom. As a rule the law does not make any distinction between the single and the married, men and women, heterosexuals and homosexuals. Noncoital sexual intercourse is punishable under any and all circumstances, and both parties are guilty. Penalties are extremely severe and, depending on the state, may range up to life imprisonment. In addition, offenders may be declared to be "sexual psychopaths" and may be committed for life to a mental institution. If they are released, they may nevertheless be forced to register with the police, so that the government can keep an eye on them.
It can safely be assumed that most Americans are unaware of these laws, and even if they hear about them accidentally, they are likely to misunderstand them. To the average layman, the term "crime against nature" probably suggests some form of environmental pollution or destruction, such as strip mining or an oil spill. The term "sodomy", which is obviously derived from the Old Testament, may suggest some vague religious offense without interest to a modern secular state. In short, the fact that these two curious terms refer to rather common forms of human sexual behavior is by no means obvious, and it is even less clear why these behaviors should be considered crimes. As it turns out, this double mystery can be solved only by a close look at ancient and medieval history.
As is well known, in our Judeo-Christian culture the greatest sexual offenses have always been homosexual intercourse and sexual contact with animals. Although these behaviors are quite harmless in themselves, they were, at some early time in Jewish history, associated with the worship of strange gods. Therefore they came to be seen as "abominations," i.e., signs of idolatry. Offenders were punished by death.
The Middle Ages believed that these same sexual behaviors had prompted God to destroy the biblical city of Sodom and therefore referred to them as "sodomy" or "crimes against nature" (i.e. crimes against God's natural order). Anyone who committed these crimes showed disbelief and was automatically considered a heretic. Conversely, heretics were usually also accused of sodomy as a matter of course. For example, when, in the early 14th century, the French king Philippe IV needed an excuse for confiscating the immense wealth of the highly respected Knights Templar, he simply charged them with blasphemy, idolatry, and sodomy. While this charge was utterly false, it nevertheless awakened such deep-seated hostilities among the populace that the entire knightly order was brought to trial and its leadership publicly burned to death. The king, as he had correctly anticipated, was hailed as a defender of the faith and therefore had no trouble pocketing the loot. In the course of time the equation of sodomy and heresy became so well established that every new heretical Christian sect was accused of engaging in "unnatural" sexual practices. Thus, when some of these sects spread to Western Europe from Bulgaria, their members were denounced as "buggers" (from Bulgars), and the word "buggery" became synonymous with sodomy.
In medieval England, sexual heresy, just as any other kind of heresy, was under the jurisdiction of ecclesiastical courts, but in 1533 Henry VIII created the first secular law against "the detestable and abominable vice of Buggery committed with mankind or beast." The crime was declared a felony punishable by death and confiscation of property. Henry's law was repealed under Mary, but revived under Elizabeth I and finally brought to America by the Puritans. For centuries the religious character of the offense was openly admitted. Thus, the original statute of North Carolina, for example, explicitly referred to it as "the abominable and detestable crime against nature, not to be named among Christians" and demanded that offenders "shall suffer death without the benefit of clergy". Curiously enough, the separation of church and state produced by the American Revolution and codified in the U.S. Constitution did not result in the immediate repeal of the sodomy laws, although their religious origin and character would seem to render them clearly unconstitutional.
Today, the great majority of states in the U.S. still retain their sexual heresy laws, although in some states religious terms like "sodomy", "buggery", and "crime against nature" are now avoided. Other states, however, have seen no need to modernize the language of their statutes. Thus, "sodomy" and "crime against nature" continue to be used, sometimes interchangeably, sometimes side by side. Indeed, in a few states these words have, in the meantime, acquired an ever broader meaning and now cover not only oral and anal intercourse between homosexual or heterosexual partners and sexual contact with animals, but also certain rare and bizarre sexual practices, such as sexual contact with dead bodies (necrophilia).
While the sodomy laws apply to everyone, including married couples, they are now enforced mainly against male homosexuals. After all, heterosexuals can always be presumed to engage only in coitus and to avoid noncoital forms of intercourse. Members of the same sex, on the other hand, cannot engage in coitus with each other and are therefore likely to violate the law when they have sexual contact. Nevertheless, on the whole, prosecutions for sodomy have become quite rare. The main use of the laws today is an indirect one. For example, employers, landlords, bank directors, or insurance executives who want to discriminate against a homosexual routinely point to the sodomy laws which define him as a potential felon. Thus, it seems entirely legal, and even respectable, to fire him from his job and to deny him decent housing, bank loans, and insurance coverage. The sodomy laws have further been used as a basis for denying homosexuals work with certain federal agencies and the military. Indeed, according to a special law passed by Congress in 1952, homosexual foreigners can neither become permanent residents in the U.S. nor obtain U.S. citizenship. (In this context it is interesting to note that there is also still a strong popular tendency to equate sexual heresy with treason and vice versa. Thus, the late Senator Joseph McCarthy and his followers fantasized about subversive "homosexual conspiracies", and the public proved as gullible as in the days of Philippe IV.)
However, it would be a mistake to believe that heterosexuals have nothing to fear from the sodomy laws. As recently as 1965 a man in Indiana was tried for sodomy and sentenced to a prison term of 2-14 years, because, after a domestic quarrel, his own wife had reported him to the authorities. No force had been involved, and after her initial anger subsided, the woman tried to withdraw the charge, but since the crime is an offense against the state, the prosecution could not be halted. Thus, both husband and wife learned to their total surprise how absurd and destructive "justice" can be. Unfortunately, in many states of the U.S. this kind of surprise may still await other married couples, especially as a result of divorce proceedings. For instance, a desperate woman who cannot find any other grounds for divorce may very well accuse her husband of "crimes against nature" in order to prove his "cruelty", and once the charge has been made, the law simply takes its course.
It should be clear from the foregoing that the American sodomy laws are irrational and inherently unjust. They cannot be enforced equally, and no attempt to do so has ever been made. Because of their religious basis, these laws stand out as alien bodies in any modern legal system. The very language in which they are phrased renders them suspect. Even the most serious crimes of violence are never defined in such shrill and emotional terms as the heretical act of sodomy. (For example, no legal code ever spoke of the "abominable and detestable crime of murder, not to be named among Christians.") No other laws carrying comparable penalties are as vague as the sodomy laws. Furthermore, by definition, a "crime against nature" is the classic victimless crime. After all, the term itself implies that not any human being, but nature itself is the victim. However, as we have seen, the "nature" which the law endeavors to protect here is not the nature of the natural sciences, but rather an archaic concept of "God's natural order". Modern scientific findings stand in sharp contrast to the philosophy expressed in these laws.
In recent years a number of states have repealed their sodomy laws, although in one state the repeal itself was repealed after intense public pressure. The citizens of that state, perhaps unaware of its true implications, demanded that their sodomy law be reinstated, and the legislature complied with their wish. In view of similar popular sentiments, other state legislatures have proved reluctant to press for reform. It seems, therefore, that the best hope for ridding the nation of these obnoxious and oppressive laws rests with the U.S. Supreme Court.
Unfortunately, this hope was somewhat dimmed in 1976, when the Supreme Court upheld the constitutionality of a Virginia law against sodomy. Since the court made its decision without hearing arguments and without offering an opinion, some lawyers have surmised that it may have rested on a legal technicality and that some future case may yet produce a different outcome. Many thoughtful citizens fervently pray that this interpretation is correct, because otherwise the outlook for the whole nation could be grim. As the deeply distressed president of the American Psychiatric Association pointed out in a letter to the Chief Justice, not only about 20 million American homosexuals, but also about two-thirds of the adult American heterosexual population regularly engage in "sodomy", and thus well over 100 million men and women in this country are summarily branded as criminals. Moreover, psychiatrists and other therapists often feel obliged to recommend the proscribed sexual acts to patients with marital difficulties. Thus, the sodomy laws, which prohibit such acts, undermine the institution of marriage. (The Supreme Court decision was particularly disturbing because it also confirmed the conviction of a Virginia married couple, husband and wife, who were given 5-year prison terms for sodomy with each other.)
One can assume that the idea of "Big Brother" in the marital bedroom is repulsive to most Americans, but it is now high time for them to realize that they still live under a government which denies them the right over their own bodies and feels entitled to interfere in their most intimate relationships. Under such circumstances, any official talk of freedom in America is an insult.
Prostitution is perhaps best defined as "sexual intercourse in exchange for money or some other material reward". However, most existing American laws against prostitution define it rather differently. For example, many states specify that the offense can be committed only by females. As a result, males who sell their sexual services cannot be charged with prostitution, but have to be prosecuted under different statutes, such as the vagrancy or sodomy laws. Moreover, some states have stretched the definition of prostitution to cover even noncommercial sexual behavior that is "promiscuous and indiscriminate". In these states any female who frequently changes her sexual partners can be convicted as a prostitute, even if she never demanded or accepted any pay.
Actually, in the U.S., the most common charge brought against prostitutes is that for "soliciting". That is to say, most states have laws against "soliciting to engage in lewd or dissolute conduct", a misdemeanor which is punishable by a fine or a short prison term, or both. The witnesses against a prostitute are usually undercover police officers who have enticed or entrapped her to commit the offense. At other times, prostitutes are summarily arrested under catch-all statutes such as those against "obstructing the sidewalk" or "disturbing the peace". However, in most cases, they are only briefly detained and then fined, after which they are free to return to their work. The fine thus simply becomes another business expense which is passed on to the consumer. Or, seen in another light, the fine may also be regarded as a crude form of taxation, by which the state tries to share in at least some of a prostitute's illegitimate earnings.
In addition to the prostitute herself, a number of people who may be connected with her business are violating the law. For example, any person, male or female, who encourages or assists prostitutes in their trade (called a panderer or procurer), any person who lives by their earnings (called a pimp), and any person who maintains a house of prostitution (called an operator) is punished more severely than a prostitute. Pimping and pandering are usually felonies punishable by lengthy prison terms. Most states also have laws against a variety of other activities that may be related to prostitution. Indeed, no other sexual offense has prompted so many different and often overlapping statutes as has the single activity of prostitution.
Mention must also be made of a federal law known as the "White Slave Act" or Mann Act which was passed by Congress in 1910. This law defines as a felon any person who transports or aids in the transportation across state lines of any female for the purpose of prostitution, debauchery, or "any other immoral purpose". The penalty is a fine of $5000, five years in prison, or both. This curious law was passed in response to something called "White Slave Traffic", i.e., a vast national or even international conspiracy of procurers and pimps who turned innocent women and girls into prostitutes and then sold them into "shameless, immoral, and involuntary servitude" in various states of the U.S. Whether such a conspiracy has actually ever existed can at least be doubted. It has all the marks of a Puritan paranoid fantasy. At any rate, the "White Slave Act" invited abuse almost from the start.
For example, since the law punishes people for transporting a female (or aiding in her transportation) across state lines for "any immoral purpose", no prostitution need be involved in the crime. It is enough that the female crossed a state line, was somehow "aided" in doing so, and then committed an "immoral act". In other words, an unmarried couple from San Francisco, California going to Reno, Nevada for a weekend and there having sexual intercourse may invite unexpected legal problems, because the man has clearly violated the "White Slave Act". Similarly, a student at Yale (in Connecticut) who picks up his girlfriend at Vassar (in New York) for the Yale-Harvard football game and then celebrates Yale's victory by having sexual intercourse with her before driving her back thereby commits a felony and could spend the next five years in prison.
Unfortunately, these are by no means frivolous examples. On the contrary, over the years many such cases have been prosecuted under the Mann Act. Thus, the perhaps well-intended act became a convenient tool for intolerant zealots with which to harass some hated or envied individual who could not be accused of any other crime. One may wonder, therefore, why the act has not been repealed. After all, if there is still such a thing as "White Slave Traffic", it would better be controlled by laws relating to the deprivation of liberty, kidnapping, assault, tax evasion, etc. An attempt to prohibit "immorality" hardly seems a rational method of liberating oppressed females. Furthermore, the very term "White Slave Traffic" smacks of demagoguery and, to contemporary ears, has embarrassing racist overtones. (Is white slavery worse than black slavery? Or does a black woman also become a white slave if she is helped crossing a state line for an "immoral purpose?")
Prostitution has often been called "the world's oldest profession", and it is true that it has existed at all times among all civilized nations. In certain
ancient cultures it had a religious character. Female and male "temple prostitutes" or "sacred prostitutes" offered themselves to the faithful, and their fees went to the temple. However, secular, purely commercial prostitution seems to be nearly as old. Greek and Roman antiquity as well as the Christian Middle Ages were rather tolerant of prostitution. Thomas Aquinas, for example, accepted it as a necessary evil and argued that "even a palace needs sewers". Medieval cities therefore had well-regulated brothels, usually not far from the church. It was only in modern times that certain industrial nations began to close their brothels and to make prostitution illegal. However, since this policy proved unwise in the long run, progressive European countries, such as the Netherlands and West Germany, have again legalized prostitution and tried to improve the prostitute's working conditions. Thus, in these countries, prostitutes no longer need pimps and can count on the police to protect them if they are threatened with violence. They also pay regular income tax on their earnings, like any other citizen.
Before World War I many American cities also had their "red light districts", "cat houses", or bordellos which were more or less tolerated by the authorities. Unfortunately, in the early decades of our century various popular crusades for "purity" or "decency" succeeded in ending this tolerance. By 1925 every state in the Union had enacted antiprostitution statutes. A second wave of repressive legislation arrived with World War II. "In the interest of the war effort" over 650 American communities closed their houses of prostitution. This policy was further encouraged in 1941 by a Federal law, the so-called May Act, which allowed the government to assume police authority in communities which failed to "solve their prostitution problem".
Today it seems rather obvious, however, that making prostitution illegal has not really solved any problems. If, on the whole, there is less prostitution than before, the reason is probably a general relaxation of sexual standards. After all, today young, unmarried people as well as many single adults can easily find "respectable" noncommercial sexual partners. Nevertheless, in many parts of the country, especially in the larger cities, prostitution continues to meet a demand, and so far the law has proved quite incapable of suppressing it. The only certain effect of the law has been a strengthening of the role of the pimp who can now act as the prostitute's quasi-legal advisor and as her protector against the police.
Still, the anti-prostitution laws are usually defended on the grounds that they somehow improve public sexual morality and that they protect at least some women from falling into a life of degradation. It is also pointed out that prostitution is often connected with other crimes, such as robbery of customers, blackmail, and tax evasion. Moreover, there is a fear that legalized prostitution might contribute to the spread of venereal diseases. Finally, it is said that the average citizen does not want a "red light district" or brothel in his neighborhood, and that the legalization and official regulation of prostitution is therefore impractical.
However, critics of the existing laws maintain that they are basically unenforceable and therefore hypocritical, capricious, immoral, and unjust. Far from protecting the reluctant prostitute, they stigmatize her as a criminal and thus make it difficult for her to switch to a more "respectable" career. Furthermore, whenever prostitution breeds associated crimes of violence or theft, they can be prosecuted independently. Indeed, such prosecutions would become much more effective if prostitution itself were legal. In addition, the government could then begin to tax the income of prostitutes. Legalization would also contribute to a better control of venereal diseases, because prostitutes could be given regular checkups. While this would not eliminate the diseases entirely, it would certainly reduce the rate of infection. As for the location of "red light districts", the present European and past American examples should prove that this problem is not insurmountable.
Recent years have revealed still another aspect of the problem. As legitimate sex researchers and sex therapists have provided some of their subjects or patients with paid "surrogate partners" for scientific or therapeutic purposes, they seem to have come close to what the law defines as "procuring", "pandering", or even "pimping". The "surrogate partners" themselves would seem to have engaged in prostitution as defined in many state criminal codes. Nevertheless, no charges seem to have been brought against any of these people, and it is clear enough that they all tried to serve some very "moral" end. However, it is by no means a foregone conclusion that an ordinary prostitute who satisfies an inhibited, handicapped, or dysfunctional customer thereby commits an "immoral act". On the contrary, in some cases she may very well fulfill a truly therapeutic function. (The famous "squeeze technique" now used by many therapists was first taught to a scientist by prostitutes.) At any rate, in the meantime various women charged with prostitution have claimed to be "sex therapists", and, if one wants to be fair about it, this claim is by no means as easily refuted as the police might be inclined to think. It would also seem only reasonable to obtain the opinion of customers. If they really have been helped with their sexual problems by a prostitute, she would have a strong argument in her favor. (Curiously enough, the customers of a prostitute are never asked such questions and are rarely arrested, although, technically, they are also guilty of a sexual offense. Some states have specific laws against using a prostitute, and others can prosecute under different, but related statutes.)
While legalization and regulation or perhaps simple decriminalization seem to be the most rational ways of dealing with prostitution, they cannot remove all of its negative connotations. When all is said and done, there is still something deeply disturbing about the commercialization of human warmth, love, or sexual satisfaction. The thought of human beings treating themselves and each other as commodities remains unpleasant for religious believers and humanists alike. It has therefore often been suggested that society should continue to make every effort to end prostitution. Since we know that punitive measures cannot succeed, a proper sexual and emotional education is advocated as the only way to accomplish that goal. It is believed that if men and women had a healthier attitude towards their own sexuality, they would not use or abuse each other as commercial sex objects.
There is undoubtedly much truth in this argument. However, the real problem seems to lie deeper. The buying and selling of sexual services will not and cannot end as long as any other human services are being bought and sold. In the final analysis, it is the sale of the human body for any purpose which creates the problem. Indeed, on the face of it, a sexual purpose seems to be better than most. Over the years, many critical observers have commented upon the strange fact that in our society it is perfectly respectable for people to market their bodies as instruments of labor, but criminal to market them as instruments of pleasure. Thus, a girl is "moral" if she rents her body to a manufacturer at $3 an hour for hard, mindless work in a factory, but she is "immoral" if she rents the same body to the same manufacturer at $30 an hour for sexual pleasure in a hotel room. Obviously, there is something bizarre about such moral values.
One can only hope that our society will soon find a just and workable way of dealing with the problem of prostitution. As indicated above, legalization and regulation have, to a certain extent, been successful in other countries. Some American reformers, however, point out that any form of official registration or control may stigmatize prostitutes for life and make it difficult for them to seek other kinds of employment. Instead, they suggest decriminalization, i.e., the repeal of antiprostitution laws without any further government involvement. This proposal has much to recommend it, although it fails to deal with the tax issue. Some prostitutes have a considerable income, and it would be unfair to leave it untaxed at a time when other workers who make much less money pay increasingly higher taxes.
Most American state penal codes define incest as coitus between persons related by blood or marriage within the degrees in which marriage is prohibited. This means, among other things, that noncoital forms of sexual intercourse do not constitute incest, and that incest cannot take place between persons of the same sex. (However, such sexual activity may be prosecuted under various other statutes.) It further means that certain sexual relationships may be considered incestuous in one state and not in another, because some states prohibit marriage between first cousins while others allow it. Some states also differentiate between a simple incestuous relationship and an incestuous marriage, treating the latter as a less serious offense. Thus, in one state the maximum penalty for incestuous marriage is 3 years imprisonment and for nonmarital incestuous relationships 20 years. The logic of this, as of so many other sex laws, is mysterious. The maximum penalty in any state for incest is 50 years imprisonment.
Incest prohibitions of one kind or another have existed since prehistoric times and among all peoples. The reason for this is still subject to speculation. It is often assumed by laymen that incest invariably produces genetic defects or somehow leads to "degeneracy", bringing out the worst traits of both the male and the female. However, no professional cattle breeder ever conducts his business according to this belief, and, indeed, there is little scientific evidence to support it. At any rate, the human incest taboo precedes any accurate genetic knowledge by many thousands of years. Another theory proposes that the incest taboo has its roots in the social advantage of marrying outside one's own family or tribe. This allows for the formation of ever larger social groups and thus becomes the basis of progress and civilization. The third, and perhaps most plausible explanation is that the incest taboo contributes to peace and harmony within the family unit which otherwise would be torn by constant sexual rivalries between father and son, mother and daughter, and brother and sister.
Be that as it may, the prohibition of incest is so universal and has been so effective for such a long time that it may almost be said to have become part of "human nature". A sustained sexual attraction between close blood relatives is now rare enough to be considered exceptional. It should be noted, however, that such exceptions do occur, and that, in the past, some societies granted them legal recognition. For example, males of royal descent in ancient Egypt, certain areas of pre-Columbian America, and on certain Polynesian islands were allowed or even compelled to marry their sisters. (These marriages had no apparent negative genetic effect, although the incest continued over many generations.) In some cultures even father-daughter relationships were tolerated under certain circumstances. However, as far as we know, mother-son relationships have never been permitted anywhere.
On the other hand, some cultures have extended the incest prohibition to grandparents, uncles, aunts, first, second, and third cousins, stepfathers, stepmothers, sons-in-law, daughters-in-law, and other relatives. How much such prohibitions can vary is perhaps best illustrated by two passages in the Old Testament which show Yahweh reversing himself on the issue of marriage between a widow and her brother-in-law (Genesis 38; 8-10 and Leviticus 20;21). It will also be recalled that Shakespeare's Hamlet describes the marriage of his widowed mother to his father's brother as incestuous (1,3), although by our present standards it would not be regarded as such. In fact, the modern Scandinavian countries have restricted the definition of incest to coitus between siblings and direct descendents. Moreover, a Swedish government committee has recently proposed the complete elimination of incest from the penal code. After all, it is difficult to see what possible good the laws against incest can still serve today and what damage their repeal could do. The use of contraception could easily allay the fears of those who worry about genetic problems. Children and adolescents could be protected against sexual assault and abuse by their parents or older siblings in the same way they are now protected against any other sexual exploitation.
Private Lewdness and Obscenity
Lewdness, obscenity, pornography, and other such derogatory terms are very difficult to define, because they never refer to anything objective or measurable. All one can say with certainty is that some people use these words to indicate disapproval of nudity and sex or of the manner in which they are presented in stage shows, movies, records, pictures, books, and magazines. Obviously, different observers disapprove of different things, but it seems reasonable to protect all of them from involuntary exposure to anything they might find offensive. In a truly civilized society nobody should be forced to confront sexually explicit behavior or material. The government is therefore well justified in passing strict laws against public "lewdness and obscenity". Indeed, orthodox Jews and Moslems who find pictorial representations of God obscene and objectionable should also be protected. (For further details see "Crimes Involving Victims.")
However, it is quite another matter to have laws against private lewdness and obscenity. People who are not only not offended by sexual activity, but who are positively interested in observing it or even pay for the privilege should not be harassed by the police. It makes no sense to define as criminal anyone who enjoys explicit sexual materials in his own home, who watches "sex films" or live "sex shows" in special private theaters, or who engages in sexual acts in special private "health clubs" or "bath houses". As long as unwilling witnesses are safely excluded, there is no rational ground for official interference. Actually, to some extent, this principle can be applied even to certain "public" places, such as clearly marked "gay bars" or heterosexual "singles bars". When such establishments openly signal their purpose to all potential patrons they acquire a quasi-private character, because no unsuspecting person is ever likely to enter them. A certain general decorum may still have to be required, but, as long as the regular clientele remains undisturbed, there should be no need for undercover police officers to scrutinize every spontaneous gesture for possible signs of "lewdness".
Unfortunately, there have been many cases in the U.S. where men have been arrested for simply holding hands, hugging, or kissing each other in a bar. This harmless behavior appeared "lewd" and obscene" to American policemen, prosecutors, and judges, although in most of the rest of the world it has no sexual connotations and is perfectly acceptable even on the street. Indeed, American television audiences can regularly observe foreign politicians engaging in such behavior on official occasions. Nevertheless, for some strange reason a show of affection between males is not tolerated in this country. In another display of prudery, some American communities have arrested teenage boys on hot summer days for not wearing a shirt and thus "lewdly" displaying a nude chest. In short, it is clear that the statutes covering "lewd behavior" or "live obscene conduct" are all too easily abused. Moreover, the standards for defining obscenity and the prescribed penalties vary from state to state. In addition, individual cities have passed their own local ordinances, and thus the legal confusion is complete.
However, even more questionable is the legal crusade against "obscene material" or, as it is also often called, "pornography" (literally: writings about prostitutes, from Greek porne: prostitute and graphein: to write). In 1873 the U.S. Congress passed the first antipornography law in response to intense lobbying efforts by Anthony Comstock, the president of the "New York Society for the Suppression of Vice". This law prohibited the mailing of "obscene" materials. Comstock was appointed a special agent of the Post Office Department and granted the right to open any letter, package, book, or pamphlet passing through the mails. He personally had the power to decide what was lewd or obscene, and since he was a narrow-minded, prudish fanatic, he soon established a dictatorial reign of puritanical terror which lasted over 40 years. Many of his victims were physicians who tried to help their patients with birth control information.
In the meantime, most states have passed "little" Cornstock laws of their own. Furthermore, in a 1957 landmark decision (Roth vs. U.S.) the Supreme Court held that "obscenity" is not within the area of constitutionally protected freedom of speech or press. The Court also found in 1973 (Miller vs. California) that individual states can set their own standards of what should be considered obscene, as long as they observe certain limitations. These limitations allow any work to be declared obscene if (a) the average person, applying contemporary community standards, finds it, taken as a whole, appealing to "prurient interests", and (b) if the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) if the work, as a whole, lacks serious literary, artistic, political or scientific value.
From the moment it was handed down, this Supreme Court decision has been criticized by many thoughtful observers as unrealistic, impractical, and worse. After all, terms such as "average person", "community standards", "prurient interest", "offensive", "serious literary, artistic, political, or scientific value" are vague and likely to change their meaning from one time and place to another. It is therefore very difficult, if not impossible, for publishers and producers to know beforehand when and where they might be violating the law. At any rate, the court decision went against the recommendations of a 1970 Presidential Commission which had advocated the repeal of anti-pornography laws. The carefully documented report of this commission as well as other scholarly studies were simply ignored. Thus, unburdened by any historical knowlege, the Chief Justice even proclaimed that there was "no evidence, empirical or historical", that censorship of sexual subjects in the 19th century "in any way limited or affected expression of serious . . . scientific ideas". Unfortunately, the facts are otherwise. In both the 19th and the 20th centuries censorship effectively prevented the dissemination of scientific knowledge and indeed any rational discussion of sexual matters between scientists as well as between doctor and patient. (For details see "Sex Research" and "Sex Education.")
However, history also shows that sexual censorship tends to strangulate the artistic life of a nation. It is often argued (and was argued by the Chief Justice) that laws against "pornography" are not and will never be directed against genuine works of art. It is further claimed that no serious artist has ever been prevented from realizing his full potential by being forced to observe the limits of "decency" and "good taste". Such arguments sound convincing only to people who are unfamiliar with art history. There are countless historical examples of censors destroying invaluable masterpieces. Indeed, a particularly depressing case concerns one of the greatest works of art of all time, Michelangelo's "Last Judgment". Painted on the wall of the Sistine Chapel in the Vatican during the reign of an enlightened pope, it displeased his prudish successor who ordered a third-rate court artist to paint clothes on all nude bodies, thus ruining Michelangelo's work forever. [Fortunately, in this particular instance the officially appointed vandal had some personal scruples and tried to keep his additions to a minimum. Nevertheless, the damage was done and is now irreparable. There was an outcry of public indignation when, in our own time, another (self-appointed) vandal partly damaged Michelangelo's "Pieta". Even though it proved possible to restore that sculpture to its previous appearance, there was general agreement that it had diminished greatly in value.]
Furthermore, every student of literature can cite dozens of cases in which great novels, plays, poems, and essays have been suppressed as obscene. From the 17th-century English Puritans, who closed all theaters as sinful and thereby abruptly ended one of the most glorious periods of world drama, to modern judges who banned Havelock Ellis's Studies in the Psychology of Sex, Joyce's Ulysses, Lawrence's Lady Chatterley's Lover, and Nabokov's Lolita, blue-nosed fanatics have tried to impose their parochial view of scholarship and art on the general public. Even if these fanatics were eventually overruled (sometimes only after decades), the delay robbed the books of much of their deserved impact.
In more recent times, however, prosecutions seem to have switched from books to films and illustrated magazines. The 1973 Supreme Court decision which allowed obscenity to be largely determined by "community standards" is now increasingly being used to punish film makers, actors, publishers, and distributors from all over the United States. Prosecutors can still make use of the old Comstock Act and harass people with federal charges of mailing obscenity. If a narrow-minded small-town jury can be found anywhere, undercover agents can then order the "obscene" material to be sent to that place, and convictions are easily obtained. Thus, the "community standards" of the most backward and bigoted citizens can successfully be imposed on the entire nation. Another possibility of legal harassment is opened up by various crime-conspiracy statutes which allow people to be prosecuted for conspiracy to commit a crime even if it is doubtful that they can be convicted of the crime itself. Or, the crime may carry only a light sentence, while the conspiracy to commit that crime may be punished with years of imprisonment. The penalties in these new obscenity trials are often severe. All of these developments have filled many American artists, actors, directors, writers, and publishers with apprehension. After all, even if some of these absurd convictions in prudish communities are reversed on appeal, the cost in time and money is staggering and may alone be sufficient to put anyone out of business.
Still another problem has been created by recent public concern about "child pornography" or "kiddie porn". Under various public and private pressures, many state legislatures have rather hastily passed draconic laws against the depiction of children or younger teenagers engaging in any sexual activity. Some of these laws make no exception whatsoever and thus apply even to pictures and films that are not legally "obscene". As a result, even scientific or educational works can no longer provide visual research material relating to childhood sexuality or sexual responses during puberty.
In this situation the only hope again lies with the Supreme Court which can modify its decision of 1973 and with the American voter who must realize that ultimately his own freedom of expression is at stake. At present, the American obscenity laws are a disgrace to a "free" country. As George Bernard Shaw observed a long time ago: "Comstockery is the world's standing joke at the expense of the United States."