Because learning changes everything Chapter 20 wavebreakmediaShutterstock Sex

Because learning changes everything. ® Chapter 20 ©wavebreakmedia/Shutterstock Sex and the Law Fourteenth Edition © 2020 Mc. Graw Hill. All rights reserved. Authorized only for instructor use in the classroom. No reproduction or further distribution permitted without the prior written consent of Mc. Graw Hill.

Why Are There Sex Laws? 1 Every day, millions of people in the United States engage in sexual behaviors that are illegal. Historically, sex has been seen as a matter that affects society and, therefore, is a fit subject for law. • Most societies regulate sexual behavior, both by custom and by law. Certain kinds of sex laws are legitimate and necessary. • Such as against sexual assault and coercion; and to protect children from sexual exploitation. © Mc. Graw Hill 2

Why Are There Sex Laws? 2 Sex laws have also been designed for other purposes. • Historically, one rationale was to preserve the family as the principal unit of the social order by protecting its integrity from, for example, adultery or desertion. • Concern for public morality has resulted in laws against nonprocreative sex. • It can be argued that another principal source of sex laws is sexism, which is deeply rooted in Western culture. © Mc. Graw Hill 3

Why Are There Sex Laws? 3 In the United States, the Constitution separates church and state in order to prevent one religious group from imposing its beliefs on others. • There is little consensus about which morals should be codified into law. Victorian compromise: the decision not to criminalize behavior per se and instead criminalize conduct that is visible to the outside world. © Mc. Graw Hill 4

What Kinds of Sex Laws Are There? Crimes of Exploitation and Force Rape: “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by the sex organ of another person, without the consent of the victim. ” • Many states have adopted laws criminalizing sexual assault and defined degrees of assault; rape is typically considered first- or second-degree. • All states have laws against statutory rape, or carnal knowledge of a juvenile. • Every state has laws against incest—sexual activity between relatives. © Mc. Graw Hill 5

What Kinds of Sex Laws Are There? Criminal Consensual Acts There a number of laws against fornication, cohabitation, and adultery. • Fornication: sex between two unmarried people, which is likely to result in out-of-wedlock births. • Cohabitation: unmarried people living together (with sexual relations assumed). • Adultery: voluntary sexual intercourse by a husband or wife with someone other than one’s spouse. • Sodomy: originally “crimes against nature; ” in contemporary laws, oral and anal intercourse—laws invalidated by the U. S. Supreme Court in 2003. © Mc. Graw Hill 6

What Kinds of Sex Laws Are There? Crimes against Good Taste Another broad category is crimes against community standards of good taste and delicacy. • Exhibitionism: showing one’s genitals in a public place, to passersby; indecent exposure. • Voyeurism: secretly watching people who are nude. • Solicitation, disorderly conduct, being a public nuisance, “general lewdness. ” By and large these statutes are vague and punish acts that may be offensive to someone. © Mc. Graw Hill 7

What Kinds of Sex Laws Are There? Crimes against Reproduction Judeo–Christian tradition considered behaviors that interfered with reproduction to be sins. • Homosexuality, sodomy, birth control. For decades, laws included a ban on the giving of information concerning the prevention of conception. Until 1973 abortion was prohibited or severely limited in many jurisdictions. • Contraception was prohibited in some. • Such laws were overturned by the Supreme Court. © Mc. Graw Hill 8

What Kinds of Sex Laws Are There? Criminal Commercial Sex Law has deemed it illegal to make money from sex— at least in certain circumstances. Prostitution: the exchange of sex for money or other payment such as drugs; illegal except in Nevada. Obscenity: that which is offensive to decency or modesty, or calculated to arouse sexual excitement or lust. • Problem comes in deciding what exactly is obscene. © Mc. Graw Hill 9

Discriminatory Laws Related to Sexuality Gay, lesbian, bisexual, and transgender people face discrimination based on a range of laws and regulations. • Many professional and occupational licensing requirements persist with “good character” or morality clauses. • For years, gays and lesbians could be refused service in the military and could be dismissed from service. Until 2015, one of the clearest areas of legal discrimination was the denial of the right to marry. • Obergefell et al. v. Hodges. © Mc. Graw Hill 10

Sex-Law Enforcement 1 Sex laws are enforced with great inconsistency. Note that as long as the laws are on the books, the threat of prosecution can exact a great penalty from the “offender. ” Uneven enforcement may have a very bad effect on law enforcement in general, inviting arbitrary and unfair behavior and abuse of authority. © Mc. Graw Hill 11

Sex-Law Enforcement 2 For example, arrest practices with regard to commercial sex workers seem highly discriminatory. • Ninety percent of all arrests are of workers—not clients. • Of these, 50% to 80% are of ethnic minority women, even though most sex workers are White. • Large minority of those sentenced to jail are women of color; White women are more likely to be fined. • Continued practice of entrapment contributes to a lack of respect for the law. © Mc. Graw Hill 12

Trends in Sex-Law Reform: Efforts at Reform American Law Institute’s Model Penal Code has recommended decriminalization of many kinds of sexual behavior previously outlawed. • Decriminalization: removing an act from those prohibited by law, ceasing to define it as a crime. • Idea is that private sexual behavior between consenting adults is not really the law’s business. States are more likely to reform their sex laws as part of an overhaul of their criminal code than to make specific repeal of such laws. © Mc. Graw Hill 13

Trends in Sex-Law Reform: Right to Privacy Legal principle of the right to privacy has been of great importance in sex-law reform. Definitive articulation of the constitutional principle came in Griswold v. Connecticut (1965). • Supreme Court concluded the right to privacy was strongly implied by the Bill of Rights and was abridged when a married couple was denied access to information on contraception. Right to privacy was invoked in 1973 in Roe v. Wade and in 2003 in Lawrence v. Texas. © Mc. Graw Hill 14

Trends in Sex-Law Reform: Equal Protection Another important legal principle is the right to equal protection under the law. • Guaranteed by the U. S. Constitution. • Challenges to legal discrimination against gays, lesbians, commercial sex workers, and other groups distinguished by sexual conduct have been based on this principle. • Equal protection was the basis for the Supreme Court legalizing same-sex marriage, Obergefell v. Hodges (2015). © Mc. Graw Hill 15

Trends in Sex-Law Reform: Victimless Crimes 1 Principle of victimless crime: when an act does no legal harm to anyone or does not provide a demonstrable victim, it cannot reasonably be defined as a crime. • Sexual act performed by consenting adults produces no legal harm, and neither of the participants is a victim. © Mc. Graw Hill 16

Trends in Sex-Law Reform: Victimless Crimes 2 Should prostitution be decriminalized? • If it were legal, it could be regulated, and related problems might be avoided. • Counterargument is that there are indeed victims. • Some workers are forced to engage in sexual activity and may have no opportunity to escape from it. • Feminist analysis suggests that commercial sex work of all kinds is inherently degrading and contributes to the objectification of women and their bodies. • Some consensual activities may also result in moral, religious, or ethical harm. © Mc. Graw Hill 17

Trends in Sex-Law Reform: Freedom of Speech 1 Among the most controversial topics in the area of sexual regulation is obscenity and pornography. • Pornography as a popular term: literature, art, films, and speech, etc. , intended to be sexually arousing. • Obscenity as a legal concept: that which is foul, disgusting, or lewd; that which is offensive to authorities or to society. In 1957 (Roth) the Supreme Court explicitly stated that obscenity was not protected by the First Amendment. • Also ruled, however, that not all sexual expression is obscene. © Mc. Graw Hill 18

Trends in Sex-Law Reform: Freedom of Speech 2 Current standard definition of obscenity came in the 1973 case of Miller v. California. • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. © Mc. Graw Hill 19

Trends in Sex-Law Reform: Freedom of Speech 3 One important factor that affects the law on pornography, then, is the extent to which legislators, law-enforcement officers, and courts believe it causes harm to the general population. • Child pornography issues are the most clear-cut. People who oppose pornography have used zoning laws to regulate, or eliminate, its sale. • Use of zoning has expanded to other areas of criminal activity involving sex. © Mc. Graw Hill 20

Trends in Sex-Law Reform: Freedom of Speech 4 Contemporary controversy about pornography is centered on the Internet. • No practical way to enforce age restrictions on access to adult websites. In 1996 the U. S. Congress passed the Communications Decency Act, which made it illegal to distribute via the Internet “indecent material” a child could access. • Declared unconstitutional in 1997, as was the subsequent Child Online Protection Act (1998). © Mc. Graw Hill 21

Trends in Sex-Law Reform: Reproductive Freedom Supreme Court’s decision in Roe v. Wade has been under attack since it was handed down in 1973. Pro-life movement has used six basic strategies: • Funding restrictions. • Procedural requirements such as parental consent. • Human Life Amendment. • Ban on partial birth abortions. • Disruptive action against abortion providers. • Crisis pregnancy centers. © Mc. Graw Hill 22

Figure 7 State laws on abortion as of 2018 Access the text alternative for slide images. © Mc. Graw Hill Source: Nash et al. (2018), https: //www. guttmacher. org/article/2018/07/laws-affecting-reproductive-health-and-rights-statepolicy- trends-midyear-2018 23

Figure 8 Abortion laws beyond the United States This map depicts abortion laws worldwide. Several points should be noted. First, abortion is available without restrictions in a large group of countries (although that is a bit of an oversimplification for the United States). Second, abortion is prohibited entirely or allowed only to save the mother’s life in numerous countries, especially in Latin America and Africa. Abortion is as controversial around the world as it is within the United States. Access the text alternative for slide images. © Mc. Graw Hill Source: https: //www. reproductiverights. org/sites/crr. civicactions. net/files/documents/Abortion. Map 2014. PDF 24

Trends in Sex-Law Reform: Ethnicity, Social Class, and Sex Laws U. S. Constitution promises equal protection to people of all races. In practice people of color and low-income people are often at a disadvantage—and this is no less true in the area of sexuality than elsewhere. • Abortion is a key example: it is important that women of color have the same access as middle-class White women. Efforts at sex-law reform need to include a consideration of the law’s impact on people of color. © Mc. Graw Hill 25

Sex and the Law in the Future: AIDS and the Law Government has two very important responsibilities with respect to HIV infections and the infected. • State is obligated to protect individual rights and defend citizens from discrimination and injustice. • State is equally obligated to protect the health and welfare of the population. • In 1998 the Supreme Court ruled that HIV infection is a protected disability, even if the person is asymptomatic. • Major issue is the confidentiality of test results and medical records: positive test results must be disclosed to medical care providers. © Mc. Graw Hill 26

Sex and the Law in the Future: Assisted Reproductive Technologies 1 “There is no uniform, comprehensive, and enforceable system of data collection, monitoring, or oversight, for the biotechnologies affecting human reproduction. ” • President’s Council on Bioethics, 2004. One result is a number of contentious, highly publicized lawsuits reflecting the deep emotions many people feel about reproduction. © Mc. Graw Hill 27

Sex and the Law in the Future: Assisted Reproductive Technologies 2 Even the nomenclature is complicated. • Parent(s) and donors or surrogates. Legal issues center on numerous interrelated factors. • Whethere is a fundamental right to reproduce. • Collaborative conception. • Custody of pre-embryos. • Whether an embryo is a person. • Disposition of embryos. • Parental rights, responsibilities, and kinship. • Surrogacy and the rights of and protections for surrogates. © Mc. Graw Hill 28

Figure 10 The law has not yet dealt adequately with the consequences of assisted reproductive technologies, as this cartoon indicates. © Mc. Graw Hill © 2015, Signe Wilkinson. Reprinted by permission of Cartoonists & Writers Syndicate. 29

Review and Discuss How many people in the United States are breaking the law by living together? What laws protect the rights of transgender people? How many and what kinds of laws restrict a woman’s access to abortion? © Mc. Graw Hill 30

Because learning changes everything. www. mheducation. com © 2020 Mc. Graw Hill. All rights reserved. Authorized only for instructor use in the classroom. No reproduction or further distribution permitted without the prior written consent of Mc. Graw Hill. ®