13. Prohibited Consensual Sexual Activity

The laws covered by this chapter concern state legislation intended to control the private sexual practices of citizens. A related issue, that of exposure of a sexual partner to AIDS is also covered here, therefore, it covers situations where the sex act is not fully consensual, such as whether the victim of a sexual crime can compel testing of the perpetrator. In any case, knowingly exposing another to the AIDS virus may be a crime whether the sexual activity is a crime or not.

For centuries, public norms in western culture generated virtually no controversy with respect to the laws governing sexual conduct. This does not mean that there was no “illegal” sexual conduct. It only means that there was general disapproval of it, even while such practices were being engaged in on a regular basis by certain segments of society. However, as gay men and women have become more visible and vocal about their orientations and practices, and more demanding that their contact be accepted as “normal” in the “general” conscience of society, the old laws are beginning to be called into question. The boldest challenge to these laws has been a Supreme Court case decided in the mid 1980s in which a person was arrested for violating Georgia’s statute prohibiting sodomy. The challenge was based on the principle that consensual sex between two adults was a private matter which the state had no authority to regulate. In that case, the defendant lost, and the Supreme Court held that the state has sufficient interest in preventing sodomy to warrant the enactment of laws banning the behavior.

However, in 2003 the Supreme Court decided a similar case from Texas. In that case, decided by a mere 5–4 majority, the court decided that its earlier decision was in error and declared all laws that prohibit private same-sex sexual conduct to be unconstitutional.

Even though the laws have been overturned as unconstitutional, many states have left them “on the books,” either as a hollow protest against the decision of the Court or as a matter of mere legislative inertia. These statutes are still recorded in the following charts for historical purposes only.

An interesting feature about these statutes concerns the terms used in various states. Crime against “nature” is the most commonly (twelve times) used term for sodomy (which is used only seven times), but perusal of the following chart will reveal some states using the terms “buggery,” “unnatural” or “perverted sexual practices,” “unnatural intercourse,” “deviate sexual conduct,” and “homosexual acts,” to describe prohibited sexual conduct. As an aside, the state of Utah uses the term “the infamous crime against nature” to describe the act in their capital punishment statute where it is considered an aggravating factor making the defendant subject to the death penalty.

This chapter also includes references to statutes in which exposure of another to the AIDS virus has been made a crime. Intentional exposure of another to AIDS is a felony in many states. In addition, many states give the victim of a sexual offense the right to require a convicted perpetrator to submit to a test for AIDS. Mandatory testing has always been controversial and resisted by libertarians, but in criminal cases involving sex offenses, there is less resistance to the idea of forcing people to be tested.

The final area covered in this chapter involves categories of crimes that are used to prohibit various kinds of sexual activity. The statutes listed in the column headed “Other Crimes Relating to Consensual Sexual Acts” range from explicit bans on prostitution, lewd public acts, and indecent exposure, to loitering and disorderly conduct. Although some of the offenses listed, such as loitering, can be applied to activity that is non-sexual in nature, these statutes are frequently used to disrupt or prohibit sexual activity or even to discourage nonmarried couples from living together. These laws illustrate the difficulties which law enforcement officers and officials have in trying to regulate intimate, private behavior. The laws are very general and often vague and may be applied to numerous activities deemed offensive by the person charged with enforcing public order.