Which laws concerning sex are there? - Chapter 20

Many sexual behaviours, such as adultery or sex with someone younger than eighteen are crimes in the United States. There are several laws that tell people about their sexual behaviour.

Why are there laws about sex?

Laws about sex are ancient and has its roots in the Hebrew Bible. These rules were used to regulate the religious morals. Even though sex has become a much more private subject, most societies have laws for sexual behaviour. These rules should free people from sexual assault and coercion and that children should not be sexually exploited. Fornication is illegal because this often results in extramarital births. It is compelling that the Judeo-Christian religion still determines some sexual laws since constitution forbids imposing others with religious beliefs. However, these sexual laws resemble rather moral than religious belief. The Victorian compromise refers to the conflict in attitudes about sexuality and results in the law not criminalizing the behaviour per se, but the conduct that is visible to the outside world. The study of sex and the law reflects inequality, sexuality, sexual identities and individuality of a society.

What kinds of sex laws exist?

The categorization of sexual laws is difficult because no-one knows how many there are. Civil law, in addition to criminal law might penalize certain sexual behaviours with regards to government employees and immigration regulations. Also, the laws (on sex) are constantly changing, therefore the authors attempt to give a broad overview of the different kinds of sex laws.

• For crimes of exploitation and force there are laws against rape, incest and sexual activity with children.
• Criminal consensual acts have laws to protect young people from exploitation. These laws promote public health, morality and illegitimacy. Laws are against fornication, cohabitation, adultery and sodomy.
• Crimes against good taste are sex offences such as voyeurism and exhibitionism. These acts are likely to be offensive, especially when it includes public nudity. When nudity is used with the intention to shock someone this is prohibited.
• Crimes against reproduction are rooted in the Judeo-Christian heritage and include reproduction sins. Some laws criminalize such behaviours. The behaviours are homosexuality, sodomy and birth control. It made conception impossible.
• Criminal commercial sex, such as prostitution are illegal in most states in the US. Other activities, such as pimping or procuring are also forbidden because they can encourage minors into prostitution. Obscenity is also subject to law enforcement, but it remains a challenge to determine what is obscene and what is not.

Which laws exist for sexual discrimination?

• Sexual orientation and gender identity are subject to discrimination in society. There are laws that prohibit discrimination based on sexual orientation and gender identity in employment. There are also laws to protect transgenders from discrimination, but they vary in prohibitions. Regarding military service, lesbians and gays had an ambiguous status; it was possible to refuse them from entry. There are also ambiguities in formal rights, in some cases same-gender couples do not have the rights to the same insurance benefits or inheritance rights. This is because their bonds are not recognized by the law system.
• Same-sex marriage is a contentious issue for many people, most people in the United States would vote against it. It has gained greater acceptance in the last few years and it is already legal in some states. Proponents argue that providing both (homosexual) parents with parental rights will give them greater security.

How does sex-law enforcement work?

The privacy of sexuality is intruded by the law and sex laws are enforced with great inconsistency. The number of severe sexual crimes and the fluctuation in enforcement and punishment reflects on the ambivalence of society against the subject. This calls for a reform in the sex-law system. However, the consequences of sex offences are enormous, someone can lose friendships, family and reputation. It is debatable if such consequences should apply for such private acts. The public good is more often violated by the enforcement of sex laws, rather than the prevention of the sexual crime.

What are trends in Sex-Law reforms?

The laws on sex are very difficult to change because the topic of sex is a controversial. The precise directions of changes in sex-laws are impossible to predict. There are some important principles that brought changes in sex-laws before.

• Decriminalization and legalization. One is the decriminalization of many kinds of sexual behaviour. For example, the American Law Institute now acts on the principle that private sexual behaviour, if consensual, is no business of the law. Important to notice is that decriminalization is morally neutral, whereas legalization causes conflict.
• The right to privacy is an important matter in sex-law but is often invoked. It has com into play by criticisms on sex-laws through the courts. The right to privacy is used in matters on sexuality that are unconstitutional.
• Equal protection means that sex-laws should not give a disadvantage to one group while the other group can seek relief.
• Victimless crime is a concept that is not only applied in sex-law. When the act does not harm the victim, it is not defined as a crime.
• Obscenity and pornography are hard to define. Some people consider certain materials offensive, while others do not. The distinction between pornography and obscenity is made to determine what is legal and illegal. Pornography is arousing imagery, video, literature or speech in which an explicit description of sexual activity and the genitalia is present. Obscenity is what is offensive to society and authorities. Obscenity causes harm to the general population; one example is child pornography.

How is the controversy weighted over reproductive freedom?

Abortion is one of the most difficult and controversial topics of law enforcement. The pro-life movement is well financed, organized and has a lot of lobbying influence. The pro-choice movement is also organized and is starting to be effective. The pro-life movement used five strategies to reduce and eliminate abortions:

1. Restrictions on funding;
2. Procedural requirements and clinical restrictions;
3. The human life amendment;
4. Banning partial life abortions;
5. Actions against providers of abortions;

How is ethnicity considered in sex laws?

The constitution promises equal protection to people of all races, some still experience disadvantages. For example, there is not much known about the abortion rates and reproduction needs of coloured women in the US. The information about abortion and birth control for this group of coloured women should be sensitive to their cultural heritage and available to them. Even though their abortion rates tend to be higher, they do not receive this proper information and data about abortion practices is not available. Abortion is just one example of disadvantages for ethnic groups under the present sex-law system.

What are reforms in sex-law?

There has been a trend of more permissive laws on sexuality. This was caused by the civil rights movement, feminism and the sexual revolution. The new right has replaced most conservativeness with less restrictive laws. The government has two important priorities considering AIDS and the law:

1. Protection of individual rights;
2. Defend against discrimination and injustice;

People can lose their job, health insurance, custody rights over their children face all kinds of discrimination after being diagnosed with AIDS. These people seek protection from federal laws. One of these laws is the Vocational Rehabilitation Acts that prohibits discrimination against disabled people in jobs. Some scholars even argue that the medical records of HIV positives should be private to protect people with AIDS.

What is the legal challenge of assisted reproductive technologies?

Embryo fertilization -and transfer, IVF and surrogate motherhood technologies raise legal questions for the government. There are some laws that try to regulate these practices. One is the prohibition of child trafficking or baby buying. In the US, twenty-seven of the states have laws to manage IVF pregnancy. However, there is no comprehensible overview of the biotechnologies of enabling infertile mothers to have children, therefore the creation of laws is extremely complex. The most important question is whether it is a human right to be able to reproduce. Other issues are whether the embryo is a person or a property or what are parental rights when a child is born from a donor?

Perhaps the most complex issue is surrogacy, it might lead to the exploitation of poor women that lease their uterus for conception. The government can either regulate the surrogacy issue by providing binding contracts or fine, but the second option is to stay out of it and leave it to the people involved. Yet, it is probably better to maintain legislation on this issue, because most surrogacy cases already go to court and the government is almost always involved.

Finally, there is the issue of confidentiality. What will those standards be and who needs to be responsible for a child that is conceived by artificial techniques? Is reproduction a private, or a public issue? A group of medical -and social scientists argue that there should be a minimum number of regulations and laws about artificial reproduction. These are the following:

1. Artificial reproduction should be a non-commercial service.
2. There should be a licencing system for the offered clinical services.
3. Directives should be collected in advance from donors for the use of ova, embryos and sperm.
4. There should be a time restriction on the preservation of embryos and gametes.
5. These services should be available to all married or cohabiting couples.
6. Cloning technologies should be illegal.

The scientists reached consensus on these issues, but there remained discussion on the following topics:

1. The access to the services for single or lesbian women.
2. The preservation of human embryos.
3. Whether children should have access to information about their parentage and conception.
4. The allowance of experiments with human embryos.

The considerations above should be applied by lawmakers to define their minimum threshold of rules for artificial procreation. Goodwin (2010) proposed another approach: that people harmed by reproductive technologies (premature birth, disabilities or low birth weight) should be able to sue the physician or fertility clinic. It might promote the reduction of harmful incidents. Nonetheless the responsibility for seeking redress is then placed in the hands of the individual.