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LEGAL - ILLEGAL
Where the violation of sexual norms is defined as a legal problem, sexual conformity and sexual deviance are seen as respect for the law and crime. Conforming sexual behavior is "correct", "law-abiding", and "legal". Deviant behavior is "offensive", "criminal", and "illegal".
There is, of course, no question that certain kinds of sexual behavior have to be prohibited by law, because they involve force, fraud, violence, or exploitation, or take place in front of unwilling witnesses. The victims of such behavior are clearly justified in demanding legal protection, and virtually all human societies try to fulfill this demand, at least for their "important" members. In short, no society can survive very long without a certain minimum of sex legislation. However, there have been societies in which large numbers of people were deliberately left unprotected even against the most brutal forms of sexual assault. In these societies the law served only the powerful and privileged and was, in fact, nothing more than a tool of class justice. Thus, slaves and serfs often were "fair game" for their masters. Sometimes, members of religious or racial minorities also were denied their full human rights and could be sexually abused by the majority without fear of punishment.
On the other hand, most modern societies which are devoted to "equal protection under the law" take great pains to punish all sexual abuse, no matter who the offender. Indeed., in their zeal to make the world "safe" for everyone, they sometimes overlegislate and create sexual offenses where otherwise none would exist. Thus, they end up protecting not only the righteous from the wicked, or the wicked from each other, but also the righteous from themselves. That is to say, when the sex laws begin to extend to "victimless crime", they take on a totalitarian character and may themselves victimize many good people.
Still, even the most zealous lawmaker must leave many forms of sexual wrongdoing unpunished. For example, husbands and wives who use sex as a means to degrade each other, parents who keep their children sexually ignorant, teachers who frighten their students with lies about masturbation, or clergymen who call for the persecution of sexual nonconformists may do a great deal of harm. Nevertheless, they are not regarded as sex criminals, and it is doubtful whether any specific law could control them.
All of this leaves us with two conclusions:
1. Law and morality are not the same thing. Undoubtedly, the two are somehow related, but the relationship is not a direct one. Some immoral sex acts may be entirely legal, while certain moral sex acts may be illegal.
2. One cannot simply assume that the purpose of sex legislation is to provide physical or emotional protection. After all, as we have seen, some dangerous behavior may be legal, and harmless behavior may be illegal.
How, then, are we going to find the "true" reasons behind our often puzzling sex laws? Or, in other words, what is the real basis on which societies determine the legality or illegality of sexual behavior? Perhaps we can arrive at an answer by taking a brief look at history.
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