Sex Offenses: Consensual

Sex crimes that are sometimes labeled consensual are numerous. They include adultery, bigamy, fornication, incest between adults, obscenity, prostitution, and sodomy. In each case, criminalization is controversial, at least in part because of the consent issue. If two adults agree to participate in a private sex act, what harm can justify state intervention to criminalize that conduct? At first blush the notion of criminalizing consensual conduct is repugnant to many people raised during the late twentieth century in the liberal tradition. This reaction may be called the libertarian approach to sexual regulation: if the parties to the sex act consent, the act should not be a crime.

There is a deep history of criminalization of each of these sexual activities, first by dominant religious authority, and later by law as well. Before the twentieth century, sexual expression was not conceived widely as a human right important to individual identity. Instead, it was a social act with significant religious restriction that enjoyed social and legal legitimacy only in forms widely approved by the community. The community's right to approve or disapprove of sexual conduct was not widely questioned until the twentieth century. Before then, the community granted to itself a legitimate stake in the sexual conduct of others. The community thus marked itself harmed by the sexual actions of others; harmed by moral offense, banned by rifts in the social fabric of the community as relationships realigned, harmed by the injection of doubt into the identification of a child's father, and harmed by association as members of the same community as the sexual actors. It is against that backdrop that historically there have been prohibitions on the sexual acts that comprise all of the crimes discussed in this entry.

Over the course of the twentieth century, however, there was a significant shift in the conception of sexual conduct. Only during this period did we create a zone of privacy in law and culture around sexual conduct that included a claim of legitimacy to freely chosen sexual expression that does not affect third parties. It was only in the late twentieth century that we thought to tie these criminal prohibitions together under the heading of consensual crimes. The term consensual sex crimes, therefore, carries with it more than a descriptive character. The term connotes a claim of legitimacy for the sex acts in question, meaning a claim of right to engage in the acts without interference from the community in the form of legal prohibition, or even in most cases social prohibition. The term consensual, more precisely, is used to negate the notion that the crimes cause a harm, making them victimless crimes. Without a cognizable harm, criminalization may be illegitimate.

The concept of consensual crimes, however, does not lend itself to easy definition. The equation of consent with harmlessness is not as perfect as it appears at first blush. There are two disturbances to the concept of a consensual sex crime that account for most of the regulation in the area. There are two corresponding types of harm claimed. The change over the course of the twentieth century has come in the judging of the legitimacy of the harm in question.

The first harm that might arise from a consensual sex crime is to one or both of the parties themselves. The second is harm to third parties from consensual sex crimes—to nonconsenting parties whose existence requires us to sharpen what we mean when we call an act consensual and put boundaries around who is in fact a party to the act. Both parties to an act of political bribery are consenting, for example, but there are third parties who do not consent and may be harmed by the act; therefore bribery is a crime.

The first challenge to the concept of consensual sex acts questions the meaning of an individual's consent given some set of social circumstances. Here the community asks about the quality of consent surrounding a sexual act, even where no one holds the proverbial gun to the head of the parties. This applies, for example, to the regulation of incest between legal adults. Legislators may believe that power disparities within families make the consent of a significantly younger party who is nonetheless a legal adult suspect. Is father-daughter incest between a seventeen year old and her forty-five-year-old father, who lives in the same household, consensual? A seventeen year old is in most states old enough to consent legally to sex with nonfamily members. But the position of authority held by her father may make the quality of the consent suspect, as the father has significant power by virtue of his family position to coerce his daughter psychologically and materially. This question of whether consent is meaningful enough to dispel any public interest in an activity under certain social conditions affects the regulation of prostitution and pornography as well. If an adult prostitute was first induced into prostitution while she was a young minor, or she experiences periodic violence from a pimp, is her consent to the activity given under conditions that warrant complete legal deference to her choice? If consent is compromised, or if there is reasonable disagreement over the quality of consent under given circumstances, then there is a potential harm to the party whose consent is in some sense reluctantly given. Criminalization may seek to limit that harm by taking an undesirable option off of the table. Paternalism is the motivation, then, for some regulation of sexual conduct. Some commentators believe that there is never a justification for paternalism. They argue that a person ought to be entitled to make the best choice from among a set of bad choices; for example, a poor person may need to do something menial to earn money, and selling sex might seem to her the best choice from among other bad choices. Others think that paternalism is necessary under some circumstances, because choice occurs on a spectrum ranging from perfectly free to very constrained, rather than operating as an off and on switch. Some arguments then, for making consensual sex acts into crimes are based on the quality of the consent.

But harm to the parties is not the only, or even the primary, potential harm raised against consensual sex acts. The second challenge to the notion of a consensual sex crime accounts for more of the regulation of sexual conduct. That is a claim that nonconsenting third parties are harmed by the sex act between the consenting parties. Every consensual sex act that is criminal has as one major justification harm to third parties. The real controversy over criminalizing consensual sex acts, then, is over the legitimacy of that third party harm, or more precisely, whether the third party harm is cognizable—whether it legitimately justifies criminalization. The question is whether moral, religious, emotional, or ethical harms should be cognizable, whether nuisances to third parties may be regulated, and in some cases, whether the prevention of violence may be pursued through the indirect channels of regulating stimulus to violence.

Consider obscenity laws. In the case of photographic obscene materials, it is plausible that the photographer, the person being photographed, and the consumer of the obscene pictures all consent to the conduct. However, there are several claims by third parties to harms from this transaction. Suppose that the obscene pictures cause the consumer to become sexually violent (a causal connection about which there is substantial controversy, discussed below). The third party victim of the sexual violence claims a legitimate or cognizable harm caused by the consensual sexual conduct. Suppose also that the obscene materials are distributed at a grocery or video store. Many third parties must in some limited form come across the materials in passing during the distribution process. If those parties are offended morally or ethically by the materials, they may claim a harm from involuntary contact with the materials. Few deny that a third party could experience such contact as a harm, but the legitimacy of addressing that harm and giving it a legally protected status by prohibiting the distribution of obscene materials is deeply contested. In other words, the existence of a harm is accepted, but the existence of a cognizable harm is contested. The same analysis applies to the criminalization of prostitution. In some percentage of cases, acts of prostitution are simply voluntary exchanges between individuals (how many cases is contested, as will be discussed below). But third parties claim a number of harms from such acts, and the legitimacy of each as a basis for legal regulation has to be weighed independently. Those third-party harms include the moral or ethical offense from coming in contact with the distribution system, harms to third parties from the spread of disease that may result from prostitution, harms from related racketeering offenses associated with prostitution organizations, and perhaps most controversially, harms to the public at large from the commodification of sex.

The perceived legitimacy of third-party moral and religious objections to consensual sexual activity waned somewhat in the second half of the twentieth century. This was in response to a number of social forces, ranging from the sexual revolution of the 1960s and 1970s and technological improvements in birth control, to the development of a constitutionally protected sphere of privacy. As those moral and religious harms have been delegitimized as grounds for criminalization, the legal landscape has shifted in a variety of ways. In some cases, the legal prohibitions on consensual sex crimes were repealed, as was the case with some adultery and fornication statutes at mid century, and later in the century with some sodomy statutes. In other cases, enforcement of some laws has dropped off completely, leaving them as almost (but not completely) dead letters. And finally, in some cases new justifications have arisen for old laws, as in the case of disease control as a justification for the regulation of prostitution, and the enforcement of the laws has been shifted somewhat to reflect those new concerns.

What legal historian Lawrence M. Friedman has termed the Victorian compromise warrants attention here. The most enduring complaint about consensual sexual activity has been the offense to those who come into incidental contact with it. At the same time, even before the sexual revolution of the 1960s there was widespread acceptance of the inevitability of frequent sexual activity, such as adultery and prostitution, considered immoral according to religious and community norms. Thus criminal law has developed the "Victorian compromise": the law would criminalize only that conduct that was actually visible to the outside world, and would leave alone conduct with no public facet. This compromise appears in the details of a number of criminal statutes governing sexual conduct. For example, some prostitution statutes are crafted so that solicitation and streetwalking are illegal, but the actual private exchange of sex for money is not mentioned in the law. This reflects the English common law approach to prostitution. Many adultery and fornication statutes in the United States require that the conduct be "open and notorious," or prohibit cohabitation with a member of the opposite sex rather than actual sex acts. This reflects the concern with outward appearances, and the protection of the sensibilities of third parties is the primary goal. The Victorian compromise has been viewed both as pragmatic on the one hand, and as hypocritical on the other. The compromise also removes from the table the specter of law enforcement snooping in bedrooms—if evidence of the crime is not apparent in public, then there is no crime to be investigated.

Prostitution and obscenity laws are routinely enforced. However, the rest of the consensual sex crimes discussed in this entry—incest between adults, fornication, bigamy, adultery, and sodomy—are not. Laws that are rarely enforced are often called dead-letter laws, and they give rise to problems in both the criminal and the civil law. In the criminal law context, rarely used laws provide opportunities for prosecutorial abuses through selective prosecution. Criminal laws are supposed to be invoked even-handedly, based only on the violators commission of the prohibited activity, and not on a particular prosecutor's dislike of any one individual. Violations of dead-letter laws may be prosecuted occasionally when the perpetrators are famous or unpopular. A person suspected of more serious crimes is sometimes prosecuted for a lesser crime that is easier to prove than the real offense. For example, a case of sexual assault or a case of prostitution that is difficult to prove may include a lesser charge of adultery, fornication, or sodomy. The Victorian compromise is alive and well in the enforcement of laws that are not formally limited to public activity; sodomy laws, for example, are most frequently invoked against acts that take place in public bathrooms or other visible forums. The Victorian compromise in enforcement can operate as a shaming device, then.

In the civil law context, dead-letter laws can still be invoked to justify discrimination against presumed law violators. So, for example, while fornication prosecutions are exceedingly rare, a landlord may argue successfully that housing laws that prohibit discrimination based on marital status do not require the landlord to rent to an unmarried couple who are presumed to be in violation of the fornication statute. The same arguments have been used in the employment, child custody, and adoption contexts as well.

Though we have lumped all of the consensual sex crimes together for analysis thus far, each has its own particular history, operation, legal definition, and constitutional limits. We will examine them in turn below.