03 April 2008

Is There A Case For Moral Legislation?

Antonin Scalia wrote in response to the Lawrence v. Texas ruling that legalized sodomy . . . that Lawrence would release a wave of relativism that would ultimately sweep away laws banning "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."

Should we care?

Jeffrey Rosen's insights

Jeffrey Rosen (cited above) asks if we do care in a recent article in the New Republic.

He notes that laws banning conduct have been upheld when they are commercial in nature or are public. Litigation over a law banning the sale of sex toys has resulted in split decisions in different U.S. Court of Appeals circuits, with one case striking them down as incidents of private sexual conduct between consenting adults, while another upheld the law on the theory that the conduct involved in buying the sex toy was public.

Rosen suggests that Lawrence really reflects the fact that private homosexual sodomy between consenting adults is no longer credibly viewed as immoral.

He notes, as evidence disproving a rise of relativism, continued outrage over public figures who traffic with prostitutes, which has come to the point where it exceeds outrage over extra-marital affairs -- and that "Spitzer was denounced not for victimizing [the prostitute]--the standard feminist argument for banning prostitution--but for showing contempt for his wife and daughters. His disrespect for his family was exacerbated by his flamboyant hypocrisy."

In Rosen's view, morality laws relevance is highly fact specific and sometimes the public does care for fact specific reasons such as those involved in Spitzer's case.

The Practical Irrelevance Of Most True Moral Legislation

The truth of the matter is that the day Scalia rues has largely already arrived.

Masturbation, Adultery and Fornication

Prohibitions against "masturbation, adultery, [and] fornication" are laughable and largely unenforced, even where they exist on the books (the "masturbation" statute cited was in any case actually a prostitution law particular to prostitution involving that sex act). So, for that matter, are laws banning cohabitation between unmarried people, in part due to the impact of federal fair housing laws.

The only jurisdiction in the United States the regularly enforces its prohibition against adultery is the United States military, and it does so only in a particular subset of cases where there is disruption to military discipline. Only a handful allow even a civil law remedy in damages for adultery, or consider adultery legally relevant to divorce proceedings. Notably, the U.S. Supreme Court refrained from considering a recent petition for certiorari testing whether a civil alienation of affections lawsuit was constitutional.


The modern trend is to prosecute bestiality cases either directly under a cruelty to animals statute, or under a cruelty to animals theory. It is used not to punish the immorality of the participant, but to protect an animal victim or onlookers to lewd acts, because we fear that people who hurt animals are likely to hurt people.

As a result, even if laws banning bestiality, per se, were held unconstitutional, they would have no practical effect, because disorderly conduct and cruelty to animals statutes would continue to apply.

Same-Sex Marriage

Lawrence concerned whether consenting adults could be prosecuted for a type of sexual activity prohibited by law when it was conducted in private on a non-commercial basis. It did not reach and does not extend to the question of whether the state has an affirmative duty to enact legislation or develop common law that gives legal recognition to new types of relationship, or what the incidents must flow from any such legal relationship, if recognized.

There is a developing trend of states enacting, either voluntarily or with a state constitutional mandate, either same-sex marriage laws or civil union laws in the U.S. and abroad. The substance of the matter -- that same sex couples should be entitled to comparable legal rights to married couples is less controversial than the symbolic issue of what the legal recognition is called. We see vestiges of a similar kind in Colorado, which has made adultery not punishable by any criminal sanction, and has made adultery irrelevant in dissolution of marriage action, but symbolically keeps a law on the books which states the adultery is "prohibited" without providing any sanction for it.

To my knowledge, no one has ever been prosecuted criminally for being in a same sex marriage or proclaiming that one is in a same sex marriage duly entered into in one state, in another state where such a status is not recognized, even if the relationship is not recognized in the second state. Further, I know of no state that intends to enact legislation criminalizing the fact that one is in a same-sex marriage (state laws prohibiting cohabitation by unmarried people generally, which are widely ignored most of the time, may be unconstitutional under Lawrence as well, however). Thus, to the extent that Lawrence is relevant, Scalia's parade of horribles had already arrived before it was decided.


Constitutional law and prosecutorial practice has pretty much narrowed obscenity prosecutions to cases in which obscene materials were made available to children, and cases where children were the subjects of the obscene materials.

One justification for a ban a child pornography laws is similar to the cruelty to animals theory for making bestiality illegal. Child pornography is banned because consumption of child pornography is a powerful indicator of a propensity to molest children personally in real life in the same way that cruelty to animals is a powerful indicator of a propensity to be violent towards humans in real life.

The other justification for laws banning child pornography is that they reinforce an economic boycott. By punishing people who buy the product severely, the hope is that the market to produce the product will dry up.

The number of cases in which obscenity convictions have been obtained and sustained on appeal against adults, viewing materials that do not depict or purport to depict children, who have complied with regulatory disclosures designed to prevent child pornography, that due not involve the possibility that children or incarcerated people will see it, are vanishingly few in recent times. There were just 26 federal obscenity defendants were prosecuted in 2006, a high point since a total of 8 in 2000 (at the end of the Clinton Administration). This excludes child pornography which is prosecuted much more vigorously: "The number of defendants prosecuted for child-pornography offenses nearly tripled, from 594 in President Bill Clinton's last year in office to 1,549 in fiscal 2006." There were also some state prosecutions, but they are likewise very rare and rarely successful due to the strong First Amendment protections involved.

Bigamy and Polygamy

Laws against bigamy have withstood court challenges under Lawrence so far. The reality is that bigamy and polygamy were quietly tolerated in the Hinsdale/Colorado City community on the Utah/Arizona border for decades. But increasing public attention to that community has produced a number of recent prosecutions. Those prosecutions have been selective. They have involved cases with child brides, coerced marriages and abuse of government benefit programs. You can count on your fingers the number of bigamy or polygamy cases involving otherwise law abiding, mutually consenting adults who have not attempted to receive legal recognition of their marital status in the last few decades, in the United States.

Also, in practice, in bigamy and polygamy cases, Social Security has on some very rare occasions taken an equitable view, and state law punitive spouse laws provide some flexibility in providing equitable resolutions when cases arise. U.S. law generally treats bigamy and polygamy the way that the legal and social culture of places like Italy and Ireland treated mistresses during the long periods when divorce was not legally allowed. Legal solutions are usually found for the most pressing problems, formal legal recognition of the prohibited relationship is not possible, and a certain amount of discretion and civility is expected, but those who did not trump their acts from the mountaintops are mostly left alone.

The simplest defense to bigamy and polygamy, moreover, is to simply refrain from seeking legal recognition or more than one of the relationships. This approach is the one that bigamists and polygamists must take, in the absence of elaborate frauds upon public officials. Clerks refuse to knowingly grant a marriage license to a married person and one view states that a common law marriage does arise when a party to the marriage knows himself or herself to be married.

Most real life bigamy cases that end up in the criminal justice system or reported legal cases for some other reason involve either someone he remarries after having left their spouse who believed that they were no longer married, but were technically not divorced, or in far more rare cases, someone who secures multiple marriage licenses at the same time through extreme calculated deceit, often maintaining multiple identities at once, who keeps his lives completely separate from each other. Very few cases that end up in the criminal justice system indeed involve someone who is actually living in a truly bigamous or polygamous household.

By denying legal status to a bigamous or polygamous relationship, the law leaves us with mere open and notorious adultery of which the current spouse does not complain. A recent Utah case managed to sustain a conviction for bigamy under these kinds of facts, and some bigamy law include mere cohabitation within their ambit (a provision of uncertain constitutionality in a plain vanilla case), but the fine legal hairs involved discourage prosecutions in these kinds of cases.

Adult Incest

A collection of statistics gathered by an adult incest survivors group make a strong case that incest impacts a significant minority of children and that the impacts on those children are strongly negative. The cases for which there is strong evidence of harm generally involve an equal relationship in which there is an abuse by a person in a position of trust, and often forcible rape.

Stepfathers, who are often either within the scope of incest statutes or a person in position of trust statute, seem one of the most common type of offender, with uncles as another. But stepfathers often are outside the scope of criminal prohibitions against incest or abuse by a person of trust when the parties are adults.

The data regarding the lasting impacts or characteristic patterns of childhood sibling to sibling incest is scarce, although these cases seem to resemble the abusive dominant older party and abused younger party patterns seen in other incest cases, rather than merely "innocent" experimental consensual sexuality.

A survey of 15 year old girls in Finland found that:"Girls reporting sexual experiences with their father or stepfather was 5%. Girls reporting experiences with their biological father was 2% and 3.7% of the girls living with a stepfather reported sexual experiences with him." Some U.S. statistics cite similar numbers, and also an incidence on the same order of magnitude of sexual experience with uncles, although the extent to which this overlaps with sexual experiences with a father or stepfather is hard to discern.

This is little data discussing the frequency of consensual adult incest. The data available show that juvenile incest victims of all types are overwhelmingly pressured or coerced to do so. It is therefore a fair inference that the overwhelming majority of childhood victims who are able to leave their households, actively avoid continuing incestuous relationship with perpetrators once they leave home, at least in the absence of coercion (e.g. attempts to protect a vulnerable minor sibling from receiving attention from the perpetrator).

If we make the assumptions based upon this data that (1) 95% of childhood incest victims did not engage in consensual adult incest and (2) that a majority of adult participants in adult consensual incest experience childhood incest, then fewer than 0.5% of adults engage in consensual incest with other adults. Also, it is safe to guess that adult consensual incest cases go unreported to a much greater degree than childhood cases, because both risk being treated as perpetrators rather than victims. Likewise, and for similar reasons, one suspects that adults who engage in consensual adult incest are far less likely to hold themselves out to the world, or even close friends and acquaintances, as lovers.

In short then, while the adult incest part of Scalia's parade of horribles may have rhetorical flourish, it is probably exceedingly rare, and is virtually unheard of within the criminal justice system. Moreover, there is no good reason to believe that mere social stigma wouldn't keep this practice hidden, to the extent that it happens at all, even in the absence of a criminal sanction.

Incest laws generally are essentially rape statutes that dispense with proof of lack of consent or proof of coercion in circumstances in which experience provides a strong basis for a conclusive presumption that consent is not present. Without a case in point to illustrate the dynamics, since incest laws are overwhelmingly applied in cases involving child victims (or perhaps developmentally disabled adults who are the moral equivalent of children), it is impossible to know if the theoretical behavior of incestuous sexual activity between consenting adults in private in fact even exists, and if it does, if prosecutors will ever choose to prosecute it.

The Case of Prostitution

The only area where Scalia's parade of horribles was not already irrelevant when he wrote his dissent in Lawrence is prostitution. This area of law, because of its commercial aspect, has survived Lawrence unscathed.

Prostitution remains formally illegal everywhere in the United States under state and/or local law outside a small number of counties in Nevada. The controversial Mann Act prohibits interstate transportation of women for prostitution under federal law, but while its language is broader, violations are customarily prosecuted in situations in which there is some form of coercion beyond a mere bona fide promise of money for sex involved. Prostutition itself, when it involves only adults, is not regulated by federal law outside areas where only the federal government has jurisdiction.

Large numbers of prosecution cases are routinely prosecuted in most jurisdictions in America, and almost none have a public policy of not prosecuting prostitution cases. But it is rare that a law enforcement priority, unless it is a large, well organized operation which also has tax and money laundering issues, it involves children, it involves AIDS, or it involves street walkers who are a neighborhood nuisance. Dubious escort services, massage parlors, out call exotic dancers and internet ads for sex partners, which conduct their business in a discrete manner and don't result in someone flagging a concern about coercion are ubiquitous, and are very rarely prosecuted.

This low level of prosecution is in part driven by the low maximum penalties, and even more trivial typical penalties imposed in these cases. Because most prostitution offense are misdemeanors, which commonly do not have repeat offender sentence enhancements, it is not uncommon for professional prostitutes to be arrested and convicted of prostitution dozens of times or more in a career. For them, who are beyond the collateral shame consequences of a conviction, the now and again brief jail sentences and fines imposed amount to little more than a crude form of taxation, which can often be paid in kind, by servicing cops who agree not to arrests them in exchange, rather than in the official manner.

Almost every other developed country in the world is more tolerant of adult prostitution, either through legalization in some context or a genuine law enforcement or prosecution policy of not pressing cases in which certain standards are met. Even the Islamic law with its temporary marriage concept, has found ways to de-criminalize prostitution.

It is safe to bet that the tide will eventually turn in the United States, under pressure of ever accumulating research that the most harmful effects of prosecution from directly from its black market status and from a narrow subset of prostitution practices that are a neighborhood nuisance, rather than from the prostitution itself.

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