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Sex Offenses

Non-forcible Sex Offenses

Non-forcible sex offenses include sexual conduct with individuals that the law assumes are not capable of giving consent to sexual acts. Because of this legal principle, it is said that in non-forcible sex offense cases, lack of consent by the victim may be a MATTER OF LAW. In other words, statutes will assume that underage, physically helpless, and mentally incompetent victims are incapable of giving consent to sexual acts and will not consider consent as a valid defense to the crime.

The age at which criminal statutes acknowledge that an individual is capable of consenting to sexual acts varies by state. Most jurisdictions have special statutes for sex offenses committed with an underage victim, usually termed STATUTORY RAPE laws. In some states non-forcible sexual acts with an underage individual are considered as serious as forcible sexual acts. In other states forcible sexual acts are deemed more serious and are punished more severely. Where the offense is committed forcibly with an underage individual, the more serious statute and punishments will apply. It does not matter if the perpetrator reasonably believed that the victim was of the age of consent because MISTAKE OF FACT is no defense in a statutory rape case.

The law also considers physically helpless and mentally disabled victims to be incapable of giving consent to sexual acts. Physically helpless individuals include those who are unconscious, paralyzed, restrained, or otherwise incapable of resisting the sexual acts. Mentally disabled victims may include those who are permanently mentally disabled or those who are drugged and in a temporary state of mental disability. Some state statutes even include involuntarily intoxicated individuals in the category of temporarily mentally disabled victims. Although mistake of fact is no defense for sexual offenses with a minor, it is a defense for a physically helpless or mentally disabled adult victim if the perpetrator can show that he reasonably believed that the victim was not physically helpless or mentally disabled.

Fornication and Adultery Fornication (sexual intercourse between two unmarried persons) and adultery (sexual intercourse with someone other than one's spouse) are non-forcible sex offenses that have been recognized since early American common law. These acts are still unlawful under some state statutes. Fornication, however, has been eliminated as a criminal offense in most jurisdictions as a result of a more liberal view of the role of public law in mandating moral principles. However, neither fornication nor adultery is prosecuted with much regularity. The requirements of penetration that must be proved in other sexual offenses involving sexual intercourse also must be proved for fornication and adultery.

Consensual Sodomy Consensual sodomy statutes outlaw the act of sodomy even when it is consensual, meaning that it is accomplished without the use of force. The view supporting these statutes, which still exist in a minority of states, is that sodomy is an unnatural act, and when the act is consensual, all participants are guilty of wrongdoing. However, since the 1980s, most state courts have overturned consensual sodomy laws, calling them unconstitutional prohibitions of sexual conduct between two consenting adults.

DO OFFENDER LAWS PROTECT PUBLIC SAFETY OR INVADE PRIVACY?

The enactment of state and federal sex offender notification and registration laws came at a furious pace in the 1990s and has continued through the 2000s. Legislators and their constituents have endorsed notification and registration as simple but effective ways of protecting public safety. Even though support for such laws has been over-whelming, concerns have been raised by some legal commentators that these laws invade the privacy of released sex offenders and make it difficult for them to rebuild their lives.

Defenders of these laws note that requiring released offenders to register with the police is an easy way for police to keep tabs on potentially dangerous persons. With the release of large numbers of sex offenders into the general population, public safety demands that the police know where these potentially dangerous persons live. In the event of a new sex offense, the police have the ability to round up possible suspects quickly. Registration also gives police in nearby towns and cities the opportunity to share information on suspects and to help locate suspects for questioning.

The law's proponents believe, however, that notification is the most important element. Prior to the passage of MEGAN'S LAW in New Jersey, as well as similar laws throughout the United States, citizens did not know when a released sex offender moved in next door or down the block. Because certain sex offenders are likely to commit criminal acts again, no notification means that offenders can use their anonymity to help conceal their criminal pursuits. Community notification laws rob the released offender of anonymity by letting neighbors know the offender's criminal history and his place of residence. Public safety is enhanced, and, armed with this information, neighbors can be on guard and assist in the monitoring of the released offender's activities.

Communities also use notification to prevent a released offender from moving into the neighborhood. Once a public hearing is held and information is distributed, landlords often become reluctant to rent housing to a person who makes community members apprehensive. Even if the released offender does move into the community, the person will be isolated from his neighbors. Communities are therefore empowered to take control of their neighborhoods and assert their right to safe and secure homes.

Defenders of these laws agree that registration and notification do have an impact on the lives of released sex offenders. However, they believe that society as a whole should have more rights than an individual sex offender. Felons, for example, are not entitled to vote or possess firearms and can suffer other civil disabilities because of their criminal convictions. Registration and notification are legitimate civil disabilities that flow from the underlying criminal act. Public safety mandates that such laws be used effectively.

Critics of registration and notification are troubled by the departure these laws take from the traditional belief that once individuals serve a criminal sentence, they have paid their debt to society and should be allowed to reenter society without significant restrictions on privacy or liberty. According to the critics, released offenders share the same expectations of privacy as other citizens. Though some courts have acknowledged that notification laws infringe upon sex offenders' privacy interest by disseminating in a packaged form, various pieces of the registrant's personal history, the state's strong interest in protecting its citizens through public disclosure substantially outweighs the sex offenders' privacy interest. Critics contend that such rulings are a slippery slope, for they provide future legislatures with the opportunity to broaden the types of crimes that are subject to notification. Society will always have a strong interest in protecting its citizens, thereby allowing more intrusive government actions over an individuals' right to privacy.

Critics also believe registration and notification laws constitute CRUEL AND UNUSUAL PUNISHMENTS, which are banned by the EIGHTH AMENDMENT. These laws are penal, because they subject the released offender to additional punishment. Defenders of the laws may claim that notification is merely a way to provide information to the public, but the impact on released offenders clearly can feel like punishment. Critics note that convicted sex offenders now have difficulty finding a place to live. Communities often use this information to prohibit entry or to try to remove the individuals from their surroundings. Offenders who do move into the community are subjected to taunts and threats, and their property is sometimes vandalized. It is unfair and unconstitutional, the critics allege, to subject individuals who have served the sentence of the court to another layer of punishment that is indefinite in length or scope.

Opponents further claim that notification has a detrimental effect on rehabilitating a released offender. Public notification may have improved personal safety, but it has also created public hysteria. Sex offenders are viewed as modernday lepers, increasing the difficulty for them to find and retain jobs. For those released offenders who truly want to make a new life, notification makes such an effort almost impossible.

In addition, critics argue that notification laws undermine a community by promoting fear. Notification may inflame passions and sometimes lead to mob rule. Instead of providing rehabilitation or deterrence, notification shames convicted offenders in a way that registration and other civil disabilities do not. Though such laws satisfy a public demand that officials crack down on offenders, critics remain skeptical as to whether such laws truly promote public safety enough to justify their intrusiveness.

The criticisms of Megan's laws ultimately led to two cases that reached the U.S. Supreme Court in 2003. In Smith v. Doe I, ___ U.S. ___, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), the Court upheld Alaska's version of Megan's Law against a challenge that this law constitutes an EX POST FACTO LAW in violation of the U.S. Constitution. The same day, the Court in Connecticut Department of Public Safety v. Doe, ___ U.S. ___, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003) held that Connecticut's version of Megan's Law does not deprive sex offenders of procedural DUE PROCESS OF LAW.

In Smith, the Court reviewed an argument that because Alaska's sex offender law applies to sex offenders who committed acts prior to the enactment of the statute, the law inflicted retroactive punishment and thus constituted an ex post facto law. In a 6–3 opinion written by Justice ANTHONY M. KENNEDY, the Court rejected the argument, finding that the law was designed to protect the public from sex offenders, rather than to punish sex offenders themselves. Under the Supreme Court's doctrine governing the Ex Post Facto Clause, if a law establishes civil proceedings that are not punitive in nature, then the law does not violate the Constitution even if offenders convicted prior to the statute must adhere to certain regulatory consequences, such as registering as sex offenders. Since the Court found that Alaska's legislature intended to establish a civil proceeding, rather than to impose punishment, the law was constitutional.

In Connecticut Department of Public Safety v. Doe, a unanimous Court rejected an argument that sex offenders were denied procedural due process because they were not afforded an opportunity to determine whether they were dangerous to the public. Chief Justice WILLIAM REHNQUIST, writing for the Court, found that the sex offenders were not entitled to a hearing about their dangerousness because the sex offenders' propensity for danger was not an issue of consequence under Connecticut's law. Because the law applies to all convicted sex offenders, rather than only those who are considered dangerous, dangerousness was not a material under the state statute. Accordingly, Connecticut's Megan's Law does not deprive the offenders of any procedural due process rights.

Although the Court's decisions in 2003 strongly indicate that the Court was inclined to uphold Megan's Laws, the Court did not address several key issues, such as whether these sex offender laws violate the offenders' SUBSTANTIVE DUE PROCESS or EQUAL PROTECTION rights. Several legal commentators expected that Megan's Laws would continue to be challenged in the courts, and it might take years before all of these issues were finally resolved.

FURTHER READINGS

Fodor, Margie Druss. 2001. Megan's Law: Protection or Privacy. Hillside, N.J.: Enslow.

Sampson, Adam. 1993. Acts of Abuse: Sex Offenders and the Criminal Justice System. New York: Routledge.

Schwartz, Martin A. 2003. "Supreme Court Rejects Megan's Law Challenges." New York Law Journal (April 15).

Volokh, Eugene. 2003. "Supreme Court Gives States Green Light on Megan's Laws." Newsday (March 18).

CROSS-REFERENCES

Child Abuse; Equal Protection; Megan's Law; Substantive Due Process.

The Supreme Court addressed the issue of the constitutionality of consensual sodomy laws in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). In Bowers two consenting men were found engaged in sodomy in a private home in a state that had an antisodomy law. The Supreme Court found no basis in the Constitution supporting the argument that homosexuals have a fundamental right to engage in sodomy. In 2003, however, the Court reversed its ruling in LAWRENCE V. TEXAS, 538 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). The situation of the case was similar to Bowers: two men were found having consensual sex in a private home by Houston police, who had been called to the residence on a reported weapons disturbance. The men were arrested because a Texas statute made it a crime for two people of the same sex to engage in "deviate sexual intercourse." In a 6–3 decision, the Court ruled that the Texas statute outlawing a same sex couple from having intimate conduct was unconstitutional under the DUE PROCESS CLAUSE.

Polygamy POLYGAMY, another non-forcible sex offense, is the crime of marrying more than one spouse while the marriage to a first spouse is still valid and existing. Bigamy is when a person has exactly two spouses at the same time. Bigamy per se consists simply of a person's attempt to marry another person while already married. Bigamy per se does not require a showing of living together as HUSBAND AND WIFE or of sexual intercourse. Most statutes state that the person must know of the continued validity of the first marriage to be guilty of bigamy. Thus, if a woman reasonably believed that her husband was dead, which would have ended their marriage, she could marry another man without violating bigamy/polygamy statutes.

Indecent Exposure Indecent exposure, also called public lewdness, is the intentional exposure of one's genitals to unwilling viewers for one's sexual gratification. This crime is generally classified as a misdemeanor (a less serious crime).

Obscenity and Pornography OBSCENITY and PORNOGRAPHY are non-forcible sex offenses that have proven very difficult for the legislatures and courts to define. In MILLER V. CALIFORNIA, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Supreme Court held that material is pornographic or obscene if the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest, that it depicts sexual conduct in a patently offensive way, and that taken as a whole, it lacks serious literary, artistic, political, or scientific value. The Supreme Court has also held that obscenity and CHILD PORNOGRAPHY are not protected by the FIRST AMENDMENT.

With the advent of new technology, the law has changed to address and encompass more methods of disseminating obscene and pornographic materials. For example, current laws forbid obscenity and pornography transmitted via television and CABLE TELEVISION programs, telephone services, and the INTERNET.

The Internet in particular is one of the fastest-growing media for the transmission of information. Because the Internet is easily accessible to children as well as adults, many leaders advocate the restriction of obscene or pornographic material via the Internet. In 1996, Congress passed the Communications Decency Act (47 U.S.C.A. §§ 230, 560, 561), which made it a felony to place indecent or patently offensive material on the Internet that is accessible to children. However, this act came under fire almost immediately as violating the First Amendment. In 1997, the Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 1025, 117 S. Ct. 2329, 138 L. Ed. 2d 874, struck down the indecent and patently offensive provisions of the act as unconstitutional.

Additional topics

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