This week I’ll be discussing my new book, Flagrant Conduct: The Story of Lawrence v. Texas, at two different venues. On Thursday, the Charles Hamilton Houston Institute for Race & Justice will sponsor a speech at Harvard Law School from 5:30-7:00 p.m. Details are available here.
So the Arkansas Supreme Court held yesterday — applying the Arkansas Constitution — in Paschal v. State (Ark. Mar. 29, 2012), relying on the right to sexual autonomy that it had recognized in Jegley v. Picado (Ark. 2002). As the court noted, cases from other states applying the federal constitution and other state constitutions have come out the other way. But Arkansas courts are the final interpreters of the state constitution (though of course the people can change it, if they wish), and therefore the U.S. Supreme Court will not be reviewing this case. Here’s the key passage:
“[T]he fundamental right to privacy implicit in our law protects all private, consensual, noncommerical acts of sexual intimacy between adults.” Picado, 349 Ark. at 632, 80 S.W.3d at 350. Section 5-14-125(a)(6) criminalizes consensual sexual contact between adults. While it is possible that the General Assembly intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex, section 5-14-125(a)(6) contains no language evincing such intent. While we might be inclined to assume the General Assembly so intended, we are constrained from making such assumptions. This court strictly construes criminal statutes, resolving any doubts in favor of the accused. This court cannot, and should not, by construction or intendment, create offenses under statutes that are not in express terms created by the legislature. Nothing is taken as intended which is not clearly expressed, and this court is without authority to declare an act to come within the criminal laws of the state merely by implication.
As applied in this case, section 5-14-125(a)(6) criminalizes consensual sexual conduct between adults and, therefore, we conclude that the statute infringes on Paschal’s fundamental right to privacy. A statute that infringes on a fundamental right
From Radio Free Europe:
Since the start of this year, death squads have been targeting two separate groups — gay men, and those who dress in a distinctive, Western-influenced style called “emo,” which some Iraqis mistakenly associate with homosexuality.
At least 14 young men have been bludgeoned to death in the last three weeks in east Baghdad, an area dominated by Shi’ite Muslims, according to local security and medical sources who spoke to Reuters on condition of anonymity.
Killings have been reported by other methods and in other cities as well. Since national authorities are not recording the incidents as a special category, the total is not known.
In recent days, members of Shi’ite militias, mainly in the Sadr City district, have circulated lists of names of people targeted for killings. The threats refer to “obscene males and females,” understood to refer to both gays and “emos,” an American teenage subculture of distinctive hairstyles and black clothes that has spread to Iraq….
Iraq’s Shi’ite-dominated government may not be helping. The Interior Ministry last month released a statement that labeled the emo culture “Satanism.” It said a special police force would stamp it out.
Thanks to Robert Dittmer for the pointer. [...]
A question I never thought to ask, but Prof. Terry Turnipseed asks and answers it, in a Slate article about a recent case in which a man did adopt his girlfriend — apparently to shelter money from creditors, given the terms of a trust for his children that he had earlier set up — and also in a full-on law review article from 2009.
The article’s abstract reports that, “For some time now adults — both heterosexual and homosexual — have been adopting their lovers and spouses all over the country for various reasons: to better guarantee the adoptee’s right to inherit directly from the adoptor; to keep collateral relatives from having standing to contest the adoptor’s estate plan; or to add a loved one to a class of trust beneficiaries (allowing the adoptee to inherit “through” the adoptor).” And the article reports that about half the states “are subject to statutory or common laws that include the adopted parent/adult child relationship within the definition of incest.” [...]
The post below will, I suspect, lead many people to want to discuss this question — a question that strikes me as quite interesting — so I thought I’d set up a separate thread for this general issue. Do you think prostitution should generally be legalized, or should it remain criminal? Let’s set aside underage prostitution and forced prostitution (except insofar as one wants to argue that decriminalizing adult consensual prostitution would increase or decrease the incidence of underage or forced prostitution). Let’s also set aside the question of whether soliciting sex for hire on streets should be criminal, since that raises some separate questions from those raised by non-street prostitution (again except insofar one wants to argue that decriminalizing adult non-street prostitution would increase or decrease the incidence of such street prostitution).
UPDATE: I originally asked this as “should prostitution be decriminalized?,” but a commenter’s point that “decriminalized” sometimes mean “made subject only to civil penalties” led me to change the question. I’m asking whether prostitution should be legalized, though that still leaves open the possibility for substantial regulations — as to the place where the sex is solicited, the age of the participants, health rules, and the like — just as other legal businesses are subject to regulations. (I express no opinion on whether such regulations are likely to be effective.) [...]
So holds Commonwealth v. Finkelstein (Pa. Super. Ct. Dec. 20, 2011). Finkelstein put out a CraigsList ad that, coupled with the post-ad discussion at an in-person meeting, suggested that she was willing to trade sex for a World Series ticket. The prospective buyer (or is it seller?) turned out to be an undercover policeman, so Finkelstein was prosecuted for attempted prostitution. But the relevant provision of state law criminalized “engag[ing] in sexual activity as a business,” and the question was whether this qualified. No, said the court; here’s an excerpt:
“[T]he gravamen of the offense is not the sexual activity itself but the business of engaging in such activity for hire.” Commonwealth v. Danko, 421 A.2d 1165, 1170 (Pa. Super. 1980). Thus, neither promiscuity and its moral implications, nor the sex act itself offer grounds for arrest and conviction. The commentary to the Model Penal Code, which this Court cited with approval in Danko, elaborates — and limits — the concerns at issue in the statutory prohibition of prostitution.
Among the reasons for undertaking to repress prostitution, the danger of spreading disease is the only one applicable to noncommercial promiscuity. Even on this score, non-commercial “promiscuity” appears to be less dangerous than commercial prostitution. Non-commercial prostitution involves indiscriminate acceptance of new sexual partners from time to time, but not intercourse with dozens of strangers daily. In any event, the health menace involved in amateur promiscuity seems to call for educational and medical remedies rather than penal law. The more serious dangers of professional vice are absent: necessity and means to corrupt law enforcement; incentive to coerce and exploit women; maintenance of criminal organizations and parasitic elements living on the proceeds of prostitution and therefore committed to promote the activity by finding new customers and new women to
Note that the law criminalizes polygamy, rather than just refusing to recognize polygamous marriages. Here’s the summary from Prof. Howard Friedman (Religion Clause):
In Canada, [a British Columbia trial court] today upheld most of Canada’s anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province’s attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions….
In today’s decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), [the trial judge] concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17…. [EV notes: This means that those children can’t be prosecuted for violating the law when they have entered into polygamous marriages — people who enter into polygamous marriages with them can still be prosecuted.]
The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans — as protected by Sec. 2 of the Charter — but that this infringement is justified by Sec. 1 of the Charter that allows “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion — which runs 1367 numbered paragraphs in length — includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.
The Ohio Supreme Court just held this yesterday in In re D.B.; it’s a very important decision, and since the court expressly rested its holding on its view of the U.S. Constitution, not of the Ohio Constitution (see footnote 2 for the reason), I think there’s a substantial chance — not a certainty, but a strong likelihood, at least in the 30-40% range — that the U.S. Supreme Court will agree to consider the case.
The case involved a 12-year-old boy, D.B., who had sex with an 11-year-old boy, M.G. D.B. was charged both with forcible rape of M.G. and with statutory rape, which criminalizes any sex with someone who “is less than thirteen years of age.” (A different statute makes it a crime for an over-18-year-old to have sex with a 13-to-16-year-old, so don’t think that the general age of consent in Ohio is 13.) The juvenile court judge convicted D.B. of the statutory rape, but not of the forcible rape, gave him probation and a suspended sentence, and ordered him “to attend counseling and group therapy.”
Of course, if there was no forcible rape, then M.G. as well as D.B. would be guilty of statutory rape, since M.G. also had sex with someone (D.B.) who was “less than thirteen years of age.” The prosecutor, though, prosecuted only D.B. In this case, that prosecutorial choice was basically mandated as to most of the sexual incidents by the prosecutor’s view that the sex was forced by D.B. (One of the nine counts of the indictment was for statutory rape alone, while the others were for forcible rape or statutory rape; but even there the prosecutor might well have thought the sex was forced, like he thought it was in the other eight incidents, but just thought the evidence [...]
You may recall the David Epstein father/adult daughter incest case, which was in the news in December. The Other McCain reports that the father pled guilty to misdemeanor attempted incest — presumably a plea bargain, given that the allegations were of completed incest, a felony. As I read the sentence, it doesn’t call for jail time, so long as the defendant complies with the conditions of release (and I’m not sure what those conditions are). [...]
Arkansas’s Act 1 (passed by a voter initiative, though that didn’t affect the analysis), “an individual is prohibited from adopting or serving as a foster parent if that individual is ‘cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.'” Today’s Arkansas Dep’t of Human Servs. v. Cole, a unanimous decision from the Arkansas Supreme Court, struck down the law. The reasoning went basically as follows:
1. The Arkansas Constitution was interpreted in Jegley v. Picado (2002) as securing a right to privacy, included in which is protection of “private, consensual, noncommercial acts of sexual intimacy between adults.”
2. There is no constitutional right to adopt or to be a foster parent; but even privileges that the government may withdraw for some reasons generally can’t be withdrawn in a way that substantially burdens a constitutional right. Here, telling people that to adopt or to be a foster parent they must give up their constitutional right to sexual intimacy with their chosen partner is a substantial burden on that constitutional right. “[U]nder Act 1 the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”
3. The court didn’t consider the possibility that heterosexual unmarried couples who want to adopt or foster children could avoid this burden by marrying, presumably because the right to privacy also includes a right not to marry.
4. Burdens on the right [...]
My colleague Professor Bainbridge responds to my posts about incest and about law and morality by saying, “I have no problem with basing laws on the yuck factor, as I’ve explained before. Leon Kass aptly called it ‘the wisdom of repugnance’; i.e., ’emotional expression of deep wisdom, beyond reason’s power to fully articulate it.'”
I think this approach of Kass’s is mistaken, for two reasons.
1. Our sense of repugnance is highly fallible as a guide to right and wrong; sometimes it leads us in the right direction (quite possibly for good evolutionary psychology reasons), but sometimes it leads us in the wrong direction. Lots of medical procedures, for instance, are yucky and revolting, especially before one gets used to them — consider transplanting organs, using maggots for medical purposes, or for that matter many kinds of surgery, if you think hard about them. Think a bit about inoculating people against smallpox using fluid from pustules of someone who was recovering from a mild case of smallpox. Seems pretty disgusting to me even now, and I’m sure it was even more disgusting to many when inoculation was first introduced. Yet how many millions of lives did inoculation save?
As it happens, Leon Kass’s article about the “wisdom of repugnance,” in The New Republic (June 2, 1997), used the concept as a means of arguing against a medical practice — human cloning. Later, Kass argued that we should and do experience “primordial revulsion over confusion of personal identity, implicit in the thought of walking around with someone else’s liver or heart”, and that this should lead us to reject organ markets (though not transplantation itself).
Likewise, social practices that violate various taboos can be revolting even if on reflection the taboos prove mistaken. Accounts of historical attitudes towards interracial [...]
If you want a look at pure cultural defenses that do set up a separate legal rule for people who belong to a particular group, check out Rhode Island General Laws § 15-1-4:
The provisions of §§ 15-1-1 – 15-1-3 shall not extend to, or in any way affect, any marriage which shall be solemnized among the Jewish people, within the degrees of affinity or consanguinity allowed by their religion.
The Rhode Island law dates back to the colonial period. In a similar vein, Colorado and Minnesota follow the Uniform Marriage and Divorce Act in exempting uncle-niece marriages that are “permitted by the established customs of aboriginal cultures.” The Commissioners’ note to the Act says that “The intent is to save those special customs of Indian tribes, of Alaskan natives of various ethnic origins, and of Polynesians, which may not accord with the incest taboos of Western culture.”
Note that the Rhode Island law is not a standard religious accommodation for religiously mandated or motivated behavior; I don’t believe that Jews of the era saw themselves as having a religious command or suggestion to marry their nieces, and of course many didn’t. Rather, Jews thought such behavior was permissible — since the Leviticus 18 incest prohibitions don’t include uncle-niece relationships — and for social reasons thought it was sometimes useful. (I’ve heard as explanations the desireto keep family wealth in the family, and the small number of prospective eligible mates stemming from the small size of the community.) And I assume that the Rhode Island legislators thought the law sensible because they saw the incest ban as primarily a religious purity rule, rather than an attempt to prevent secular harm, and because they thought Jews’ contrary religious understanding deserved respect (perhaps precisely because that understanding was based on the [...]
Given the recent news story about father-adult daughter incest, I thought I’d ask a few questions about adult-adult incest (speaking specifically of parent-child, grandparent-grandchild, or brother-sister, and setting aside cousins and the like):
(1) Should it be illegal, and, if so, exactly why? Is it just because it’s immoral? Because legalizing incest would, by making a future sexual relationship more speakable and legitimate, potentially affect the family relationship even while the child is underage (the view to which I tentatively incline)? Because it involves a heightened risk of birth defects (a view I’m skeptical about, given that we don’t criminalize sex by carriers of genes that make serious hereditary disease much more likely than incest does)?
(2) Given Lawrence v. Texas — and similar pre-Lawrence decisions in several states, applying their state constitutions — what exactly is the basis for outlawing incest? Is it that bans on gay sex are irrational but bans on adult incest are rational, and rationality is all that’s required for regulations of adult sex? Is it that bans on gay sex don’t pass strict scrutiny (or some such demanding test) but bans on adult incest do? Is it that Lawrence rested on the fact that bans on gay sex largely foreclose all personally meaningful sexual relationships for those who are purely homosexual in orientation, whereas incest bans only foreclose a few possible sexual partners? UPDATE: For court cases on this, see here (stepfather-stepdaughter) and here (brother-sister).
(3) If adult incest is indeed criminalized, what should the penalties be (assuming lack of further aggravating circumstances, such as force, strong evidence of grooming for future adult incest during childhood, and so on)? Should the penalty be relatively light, on the theory that only consenting adults were involved (much as the penalty for prostitution is [...]