Sex Offenses

Many statutes making sexual conduct criminal have been attacked as unconstitutional. The most common claims made are that the statutes are too vague, violate personal rights to privacy, or violate the EQUAL PROTECTION CLAUSE.

The Supreme Court considered the argument that statutes violating sodomy are unconstitutionally vague in Rose v. Locke, 423 U.S. 48, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975). The Rose case involved a state statute that forbade "crimes against nature," and the defendants argued that the terms of the statute were imprecise and vague. The Supreme Court held that the statute did not violate the Constitution because even though the language may have been imprecise, it was still possible to determine the meaning of the statute so as to provide sufficient warning to people who may be affected by it. Courts have held that "crimes against nature" include sodomy, fellatio, and cunnilingus.

Statutes forbidding obscene language or conduct have also been challenged because they are vague. Specifically, critics claim that it is not clear what is considered obscene. State legislatures have attempted to define or describe the term obscene, but this often results in the use of other arguably vague terms such as lewd, lascivious, and wanton.

Sex offense statutes have also been challenged on the ground that they violate an individual's right to privacy. The Supreme Court addressed this argument in the 1986 case of Bowers v. Hardwick, when it held that there is no federal privacy right to engage in same-sex acts. Since Bowers many state courts issued similar rulings. However, the Supreme Court, in its 2003 landmark Lawrence decision, changed the landscape. According to the Court, private conduct is protected under the Due Process Clause, and as such, Bowers "should be and now is overruled." In his opinion, Justice ANTHONY KENNEDY stated, "The petitioners are entitled to respect for their private lives."

Sex offense laws have also been challenged on the ground that they violate equal protection guarantees under the Constitution. Most courts have followed the Supreme Court's decision in Michael M. v. Superior Court, 450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 (1981), that they do not.

The Michael M. case involved a state statutory rape law that prohibited sexual intercourse with a woman who is under 18 years old and who is not the perpetrator's wife. Thus, only males were liable under the law. The defendant was a 17-year-old boy who had sexual intercourse with a 16-year-old girl. The defendant argued that the statute violated the Equal Protection Clause of both the federal and state constitutions. The Supreme Court held that the "obviously discriminatory classification" was justified by the important STATE INTEREST in protecting women who, unlike men, can become pregnant and suffer the harmful and inescapable consequences of pregnancy. It has also been held that non-statutory rape laws do not violate the Equal Protection Clause in the following cases: State v. Kelley, 111 Ariz. 181, 526 P.2d 720 (1974), cert. denied, 420 U.S. 935, 95 S. Ct. 1143, 43 L. Ed. 2d 411 (1975); Wilson v. State, 288 So. 2d 480 (Fla. 1974); State v. Lorenze, 592 S.W.2d 523 (Mo. Ct. App. 1979); State v. Rivera, 62 Haw. 120, 612 P.2d 526 (1980); Griffin v. Warden, 277 S.C. 288, 286 S.E.2d 145 (1982).