Sexual Autonomy

Sexual Autonomy

  • Historically, the state has regulated human sexuality, both within and outside marriage.

  • As recently as 1787, states like Vermont had laws punishing adultery with whipping.

  • These laws remained on the books until 1973.

Sex Laws in the US (1948)

  • In 1948, various states had laws prosecuting sexual intimacy involving:

    • Adultery

    • Fornication

    • Seduction

    • Sodomy

  • Maximum punishments varied widely by state.

  • Examples:

    • Alabama: Adultery could result in fines and/or jail time, increasing with subsequent convictions.

    • Arizona: Fornication was not a crime but cohabitation was punishable by 3 years.

    • Arkansas: Sodomy carried a potential sentence of 5-21 years.

    • California: Seduction could lead to 1-10 years imprisonment and a $5000 fine.

    • Delaware: Adultery carried a $100-$1000 fine or 3 months to 3 years imprisonment.

Regulation of Morality and National Security

  • Until the 1970s, sexuality was severely policed under the guise of regulating morality.

  • During a 70-year period, women perceived as sexually promiscuous were arrested and interned for threatening military readiness.

  • The War Department's Committee on Protective Work for Girls (1917) expressed concerns about young girls near military training camps.

  • The Social Protection Division, Office of Community War Services (1955), equated promiscuous women to prostitutes as sources of venereal disease, especially after the closure of red-light districts.

Additional Prohibitions on Consensual Sexual Intercourse

  • Age

  • Birth control

  • Consanguinity (blood) and affinity (marriage) connections

  • People with authority over a partner

  • Cohabitation

  • Non-monogamy

  • Prostitution

  • Race (anti-miscegenation laws)

  • Sex devices

  • Many of these laws started changing in the 1960s, with Illinois being the first.

A Radically New Sex Law

  • In January 1961, Illinois enacted a new penal code.

  • Private sex acts between consenting adults were no longer illegal.

  • The purpose of sex laws, according to the committee, is to protect the individual from violence, protect the young from advances by adults, protect the public from open display of sexual behavior, and protect marriage and the family.

  • The code covers rape, deviate sexual conduct, contributing to the sexual delinquency of children, adultery, incest, bigamy, prostitution, soliciting, and obscenity.

Key Changes in Illinois Penal Code

  • Rape: Requires force and violence; excludes statutory rape. If consent is given but the person is under age, it's considered "indecent liberties with a child."

  • Deviate Sexual Acts: Only noncoital acts between humans are within the law if committed by force or involving a minor.

  • Animal Acts: Punishment of sexual gratification with an animal is removed.

  • Indecent Liberties with a Child: Punishes anyone 17 years or older who has intercourse with, performs deviate conduct with, or lewdly fondles a child under 18.

  • Contributing to the Sexual Delinquency of a Child: Applies when the child is between 16 and 18 years old; solicitation of a child under 13 is punished less severely if no act is committed.

  • Incest: Differentiates between when the male is the father (aggravated incest) and other types of incest. Step-daughters and foster-daughters under 18 are covered.

  • Public Indecency: Involves intercourse, deviate sexual conduct, nudity, or lewd fondling in public places. Heterosexual and homosexual activities are treated differently.

  • Prostitution: Covers both male and female sex acts for cash. Does not include sexual favors in return for non-monetary gifts.

  • The new code reduces blackmail, reduces entrapment, reduces fear, and affects homosexuals positively. Homosexual acts committed in private between two consenting adults are now legal.

Cases

Perkins v. North Carolina (1964)

  • Judge Craven expressed contempt for North Carolina's statute making the "crime against nature" punishable by imprisonment up to 60 years.

Lovisi v. Slayton (1973)

  • The Supreme Court refused to hear arguments on the constitutionality of a Virginia law prohibiting oral sex between husbands and wives.

  • Aldo and Margaret Lovisi were convicted based on photographs of them in action with a third party, Earl Dunn.

  • The circuit court held that "once a married couple admits strangers as onlookers, federal protection of privacy dissolves."

  • A federal appeals court upheld the sodomy convictions. Once a married couple admits strangers as onlookers, federal protection of privacy dissolves.

  • The dissenting judges said the majority opinion was a legally unsupported "moral value judgment."

Examples of Prohibited Categories

Adultery

  • Sex with a person who is married to another person.

  • Oklahoma: Adultery is a felony punishable by imprisonment.

  • New Hampshire: Until 1973, adultery was punishable by whipping and display of the letters "AD" on the upper garments. In 1987, the New Hampshire Legislature considered removing adultery from the criminal code.

Birth Control

  • The federal Comstock Act (1873) criminalized using the U.S. Postal Service to mail any obscenity, contraceptives, abortifacients, or sex toys.

  • Many states passed similar laws.

Connecticut's Birth Control Ban

  • The Connecticut Supreme Court upheld a 63-year-old law making birth control a criminal offense in 1942.

Griswold v. Connecticut (1965)

  • Facts: Connecticut law banned the use of any drug, medical device, or other instrument in furthering contraception.

  • C. Lee Buxton and Estelle Griswold were convicted of violating the law after opening a birth control clinic.

  • Issue: Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?

  • The Supreme Court ruled the statute unconstitutional. The full scope of liberty guaranteed by the Due Process Clause includes a freedom from all substantial arbitrary impositions and purposeless restraints.

  • Privacy is a Penumbral right: First Amendment (freedom of association), Third Amendment (prohibition against quartering soldiers in homes), Fourth Amendment (protects against unreasonable searches and seizures), Fifth Amendment (protects against self-incrimination).

  • In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell (Justice Clarence Thomas).

  • As of May 2024, 14 States and DC have legal protections for the right to Contraception.

  • Arizona's bid to make birth control a right has stagnated in the Republican-controlled legislature.

  • The U.S. Supreme Court's decision to overturn the constitutional right to abortion has had significant effects on family planning in some states, including Arizona.

Cohabitation

  • Two people living together in an intimate sexual relationship, without being married.

  • In 1881, two people found occupying apartments together were fined $10 each in Minnesota.

  • North Dakota Fair Housing Counsel v. Peterson (2001): Refusal to rent to an unmarried couple.

    • Issue: Does refusing to rent to an unmarried couple because they are seeking to cohabit violate the discriminatory housing practices provision of the North Dakota Human Rights Act?

    • Holding: The refusal to rent to a couple seeking to cohabit does not violate the Act because it is supported by an existing criminal cohabitation statute.

  • New Mexico couple charged with violating unlawful cohabitation laws (2000).

  • ACLU of North Carolina, 2006, challenged the state's 201-year-old ban on cohabitation to be unconstitutional after a 911 dispatcher was fired from the Pender County Sheriff's Office.

    • General Statute § 14-184: "If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor."

  • Michigan Law SECTION 335: ANY MAN OR WOMAN, NOT BEING MARRIED TO EACH OTHER, WHO LEWDLY AND LASCIVIOUSLY ASSOCIATES AND COHABITS TOGETHER… IS GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 1 YEAR OR A FINE OF NOT MORE THAN $1,000.
    *.

Prostitution

  • Erotic Service Provider Legal Education & Research Project v. Gascon (2016) DECriminalizeSexWork.

Fornication

  • Voluntary sexual intercourse between unmarried people of the opposite sex.

  • Utah was among only a few states that retained fornification laws (1973 Law).

  • 76-7-104 Fornication section 1: Any unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of fornication: section 2: Fornication is a class B misdemeanor.

  • An Old Law Chastises Pregnant Teen-Agers Police in Idaho County Cite Unwed Parents (1990).

Martin v. Ziherl (2005)
Polygamy

  • Reynolds v. United States (1879).

  • Davis v. Beason (1890).
    *Monogamy is inextricably woven into the fabric of our society Potter v. Murray City (10th Cir. 1985).

  • Polygamy, Growing in U.S. West, Is Encountering Little Opposition(1977).

  • Growing View in U.S. That Polygamy Is Morally Acceptable.

  • A Utah Law Prohibiting Polygamy Is Weakened Religious Freedom Cited In Case of 'Sister Wives'(2013).

Seduction

  • An act by which a person entices another to have sexual intercourse with by means of persuasion, promises, flattery or bribes without using any physical force or violence.

  • Seduction; punishment. Any man who shall seduce and debauch any unmarried woman shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than 2,500 dollars (MICHIGAN PENAL CODE).

  • Universal Citation: SC Code 5 16-15-50 (2012).

Statutory Rape

  • Intercourse with someone who has not yet reached the legal age of consent.

  • Michael M. v. Superior Court of Sonoma (1981). The Court held that women needed the protection from men.

In re J.M. (2003)
Sexting

  • ACLU Sues Prosecutor Over 'Sexting' Child Porn Charges.

  • Md.'s Top Court Upholds Child Pornography Charge Against Teen Who Texted Friends a Video of Herself (2019).

  • In re S.K. (2019)

Sodomy

  • Oral or anal sex; often called an "unnatural act".

The Laws of Texas (1822-1897).

  • Bowers v. Hardwick (1986).

  • Lawrence v. Texas (2003).

Obergefell v. Hodges (2015)

  • 5-4 Ruling Makes Same-Sex Marriage a Right Nationwide.

  • Biden Signs Respect for Marriage Act (2022).

Reliable Consultants v. Earle (2008)

  • Ban on sex toy sales reversed Court says Texas law violates constitutional right to privacy.