Sexuality, Legal Approaches to
SEXUALITY, LEGAL APPROACHES TO•••
This entry discusses law's relationship to sexuality from an American perspective, although the framework suggested here may lend itself to application in other cultural contexts.
Sexual Status and Sexual Conduct
From the point of view of American law, sexuality has two dimensions: status and conduct. Sexuality as status, in law as in the culture at large, contains two primary alternatives—heterosexuality and homosexuality—although recent efforts on the part of those claiming bisexual status to make political alliance with gay and lesbian activists may presage increased legal recognition of this third alternative. Sexuality as conduct also has two principle aspects. The first encompasses explicitly sexual acts, of which intercourse is perhaps the paradigmatic example. Law prohibits intercourse, and sometimes other sexual activity, in a wide variety of situations, either when one of the parties has not consented or is unable to consent, or when the intercourse or other activity, although consensual, offends norms of public decency. Child sexual abuse, sexual assault and rape, statutory rape (inter-course with a woman, or in a few states with an individual, who is considered too young to provide meaningful assent), and incest are uniformly prohibited. Prostitution—the buying and selling of sex—is authorized only in Nevada. Sodomy, both homosexual and heterosexual, is unlawful in a large minority of states. Sex before marriage and outside of marriage is still prohibited in some states, although enforcement of these prohibitions is virtually nonexistent because of the disconnect between the law and prevailing cultural attitudes.
Law also regulates sexual intercourse by controlling or limiting postcoital choices. State limits on access to abortion, a hotly contested issue ultimately adjudicated by the U.S. Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), illustrates one such regulatory measure. Similarly, adult use of contraception remains constitutionally protected, while access to particular contraceptive techniques is regulated on health grounds. President Bill Clinton's reversal in 1993 of the first Bush administration's opposition to the introduction of RU-486, a "morning-after pill" and early abortifacient, provides a dramatic example of the interplay between public policies and medicine. Meanwhile, contraceptive freedom has not been extended to minors, and contraception remains regulated in the nation's high schools (Miller, Turner, and Moses).
In other contexts, law precludes procreation as a consequence of intercourse. The eugenics movement in the United States in the 1920s and 1930s produced laws compelling the sterilization of certain classes of criminals and those with mental disabilities or illness. Although no longer enforced, these laws remain on the books in several states and never have been held unconstitutional. Today, most if not all states provide a mechanism by which those legally responsible for sexually active people determined to be mentally incompetent can petition the state to authorize sterilization or contraception.
The second aspect of sexuality as conduct encompasses sexual displays the law views as expressing or arousing sexual receptivity or interest and thereby offending norms of public decency or order. The sexual displays regulated by law vary in character; they include solicitation, public nudity, and provocative dressing, as well as all forms of pornography. In this arena, too, enforcement is by no means uniform, and constitutional freedoms of speech and expression have created uncertainty with regard to the legitimacy of regulation.
Law's Multiple Relationships to Legal Status and Conduct
Law's relationship to sexuality in part constitutes law's account of what is permissible in the sexual arena—which behaviors are to be encouraged and which are to be discouraged. Legislative statutes help establish guidelines for behavior, while judges determine the constitutionality of the statutory law. This relationship between law and sexuality is importantly shaped, however, by the fact that law's authority is actually invoked in sexual matters by public agencies or private parties in only a small fraction of the possible cases.
The gap between the laws as written and as enforced has a variety of origins. For example, sometimes those who might initiate action against a violator do not know that the law offers them protection. Sometimes the enforcement of legal norms governing private sexual behavior is simply impractical; for example, sodomy, unlike public nudity, seldom comes to the attention of law enforcement personnel. Often, police and prosecutors make conscious decisions not to investigate or prosecute certain offenses for a variety of reasons, including the difficulty or the costliness of prosecution, the behavior of the victim, and the nature of the statute that has been broken (e.g., laws against adultery and premarital sexual contact). Or it may be because enforcing officers are dubious of the regulation or its particular application. Many rape prosecutions, especially those involving parties who are not strangers, founder for one or more of these reasons. Those who have argued that specific victims of pornography should be allowed to bring civil actions against pornographers and distributors of pornography base their argument, in part, on the reluctance of public authorities to take appropriate action (MacKinnon, 1987).
Those who urge giving private parties greater responsibility for or authority to initiate legal action must also realize that individuals are often unwilling or unable to invoke the law even when they understand that a law has been violated. For example, the trauma of childhood sexual abuse often results in the repression of memory (Ernsdorff and Loftus, 1993). If the memory ever surfaces, it may be long after the statute of limitations has passed. Potential claimants may be fearful of retribution on the part of the one they accuse; this is often true for sexual-harassment claimants and battered women who charge their abusers with physical and sexual violence. They may be anxious about the financial and emotional costs involved in testifying. They may fear having their credibility challenged or their character impugned and may see participation in the legal system as just another opportunity to be victimized. Finally, claimants in some circumstances may be able to resolve the situation without using the formal legal system.
If the law's relationship to sexuality is influenced by the limited nature of actual legal interventions in sexual matters, it is equally influenced by limited public understanding of the legal norms governing sexuality. How social actors perceive law's application to their own or others' sexual status or conduct may derive from actual individual or institutional knowledge of the law or of enforcement practices; but it may equally derive from impressions gleaned from a limited number of personal experiences or from stories emphasized by the media. Generalizations, often derived from limited information, then guide an individual's interaction with the legal system around sexual matters—setting standards for personal conduct, governing expectations about how the system will respond to legal violations, and providing the initiative for involvement in political efforts to change the law or replace its agents.
Given this multilayered relationship between law and sexuality, it is important to appreciate what law does and does not do, as well as how laws are implemented, what they say, and what people understand the law to be.
The Tools of Regulation
In regulating sexuality, the legal system draws on a variety of cultural authorities and principles. The two principal sources of authority guiding legal regulation of sexuality have been morality and medical science. Morals derive from either secular ethical precepts or religion, both of which are complicated by America's religious diversity and the political struggles over the separation of church and state. But when moral and religious precepts are broadly accepted and secularized within society, they become a legitimate basis for legal intervention. The law justifies its intervention by appealing to the secularized form of the moral mandate: to public decency or public order; to the value of life or the state's practical interest in heterosexual unions; to the "degeneracy" of certain sexual practices. When social consensus around a moral issue begins to erode, the link between particular moral notions and their specific religious under-pinnings becomes exposed again, and law's endorsement of one side of the debate can be challenged as an improper conflation of church and state. This challenge to the moral basis of law has been most dramatic in the debates regarding abortion and homosexual marriage.
The issues involved in law's reliance on medical science have a different quality, because the concerns here are perceived to be those of knowledge rather than faith. In areas involving sexuality, medical science has provided the law with an understanding of what is necessary to protect public health and welfare and with guidelines concerning sexual status and conduct. In addressing the fundamental issue of sexual identity, medical science has drawn and redrawn the lines between aspects of sexuality that depend upon genetic programming, aspects that are the product of physical or mental disease or malfunction, and aspects that are the product of willed or chosen conduct. Changes in the medical understanding of homosexuality, for example, have in turn been central to legal debates about regulating homosexual relationships and activity. In the abortion arena, the law has looked to medicine for a scientific ruling about the beginning of human life.
The problems inherent in the relationship between law and medical science have two interrelated sources. First, medical science does not stand still, and the law often lags behind the newest research. Compulsory sterilization laws provide a dramatic example. The genetic "science" on which these laws were based has been discredited, and yet not all such laws have been repealed. Second, medical science is not as value-free as the deferential legal community often assumes; many shifts in the medical understanding of sexuality reflect shifts in values more than they do real advances in knowledge.
What of the legal principles governing the regulation of sexuality? Several of those legitimizing interventions have already been spelled out: maintaining public order, decency, health, and welfare. These laws fall within the traditionalpolice power of the state. Another traditional basis for governmental intervention has been to encourage forms of association and sexuality that promote the state's conception of its interests. Matrimony and childbearing and child rearing within matrimonial relationships are the clearest historical examples. Nevertheless, the concepts of public order, decency, health, and welfare, and indeed of the state's interests, are malleable enough to serve the modern vision of social and family life.
The legal principles limiting regulation of sexuality have traditionally been those of privacy and autonomy, especially those forms of autonomy protected by the First Amendment. Both of these principles reflect a constitutional order that sees government as a threat to liberty; both are prepared to accord some cultural space to sexual activity and expression that deviate from widely held cultural norms to guard against the erosion of liberty.
In the shift from the nineteenth-century Victorian vision to the modern vision, the principles of privacy and autonomy have been pressed into service in new contexts while their hold over other arenas has been challenged. The privacy accorded family life was an important bulwark to the patriarchal authority of the male head of household, but it no longer serves to shield family members from charges of sexual abuse. Instead, privacy now provides the foundation for the constitutional protection given to both abortion and contraception, and efforts are being made to have sodomy statutes ruled unconstitutional on similar grounds.
Since the 1970s, the champions of the modern vision of social and family life have invoked the legal principle of equality. Equality has provided a basis for the abolition of old intrafamilial immunities and has supported the exposure of family abuses. Equality has translated the private pain of sexual harassment in the workplace into a public claim of discrimination when the job itself or other workplace privileges are conditioned on consent to sexual activity, or when the harassment creates a hostile working environment (MacKinnon, 1979; Burlington Industries, Inc. v. Ellerth, 1998; Oncale v. Sundowner Offshore Services, Inc., 1998).
Equality has also offered a new analysis of pornography. Whereas previous regulation of pornography depended on the "obscenity" that made it offensive to norms of public decency, the new analysis emphasizes the role pornography plays in endorsing and promoting the sexual objectification of women that denies women equal status in society (MacKinnon, 1987, 1993). This characterization more properly represents what is at stake in regulating pornography. By the mid-1990s, however, none of the municipal ordinances based on it had survived constitutional scrutiny. The violation of women's right to be free of discrimination must still be weighed against the First Amendment freedoms of pornographers, distributors, and users; in this balance, pornography opponents have not prevailed. Importantly, women themselves are divided on this issue; many see the proliferation of pornography as enabling a liberating sexuality for women and support the First Amendment protection of pornography, whereas others remain concerned that pornography fosters male dominance and female subjugation (Strossen, 1993).
Finally, equality is frequently offered by advocates as a basis for outlawing differential treatment on the basis of sexual identity and for providing a protected sphere in which gay and lesbian people can enjoy both privacy and autonomy in their experience of their sexuality (Mohr, "Sexual Orientation and the Law"). This argument has made limited headway within the legal system. While most courts continue to uphold state statutes restricting marriage to opposite-sex couples, a few courts have taken positions favorable to same-sex marriage. In its 1999 decision in Baker v. State of Vermont, the Vermont Supreme Court held that "the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." The court carefully noted that its decision did not entitle same-sex couples to a marriage license but merely ordered the state legislature to either allow same-sex marriage licenses or "establish an alternative legal status to marriage for same-sex couples."
The controversial Baker decision has led some legal commentators to wonder about the futures of traditional and same-sex marriage. Some have speculated that if courts find marriage benefits constitutionally required, then they will likely find the title and status of marriage constitutionally required as well, ultimately leading to legalized same-sex marriages (Duncan). While the issue of legalized same-sex marriages remains unresolved, Hawaii's courts, like Vermont's, have taken steps toward legalizing same-sex marriage, finding the state's same-sex marriage ban to be a form of sex discrimination and directing the state legislature to resolve the issue accordingly (Baehr v. Lewin, 1993; Baehr v. Miike, 1998). The legal developments in Vermont and Hawaii have been controversial nationally in part because many states fear that the U.S. Constitution's full faith and credit clause (found in Article 4) will require them to recognize same-sex marriages, with potential positive and negative consequences for children, parents, families, social structures, and social values (Gushiken).
In matters relating to sexuality, the law attempts to strike a delicate balance between the impetus to regulate and the impetus to stay government's hand, while always remaining aware of shifting cultural values. Issues resolved in the direction of regulation in one era may be revisited and resolved in the direction of abstention in another. In the decades to come, it seems likely that the most contested territory is going to involve, first, the extent to which regulation of sexuality will be directed toward achieving the egalitarian vision of social and family life, freeing women and children from sexual exploitation and abuse, and second, the extent to which law will be persuaded to lift the burden of regulation currently imposed on homosexual conduct and give equal protection to those who claim homosexual status.
clare dalton (1995)
revised by nathaniel stewart
Baehr v. Lewin. 74 Haw. 530; 852 P.2d 44 (1993).
Baehr v. Miike. 80 HAW. 341; 910 P.2D 112 (1996).
Baker v. State of Vermont. 170 Vt. 194 (1999).
Burlington Industries, Inc. v. Ellerth. 524 U.S. 742; 118 Sup. Ct. 2257 (1998).
Danielsen, Dan, and Engle, Karen, eds. 1994. After Identity: A Reader in Law and Culture. New York: Routledge.
Dworkin, Ronald. 1993. Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. New York: Knopf.
Editors of the Harvard Law Review. 1990. Sexual Orientation and the Law. Cambridge, MA: Harvard University Press.
Ernsdorff, Gary M., and Loftus, Elizabeth F. 1993. "Let Sleeping Memories Lie? Words of Caution about Tolling the Statute of Limitations in Cases of Memory Repression." Journal of Criminal Law and Criminology 84 (Spring): 129–174.
Grossberg, Michael. 1985. Governing the Hearth: Law and the Family in Nineteenth-Century America. Chapel Hill: University of North Carolina Press.
Gushiken, Brad K. 2000. "The Fine Line between Love and the Law: Hawaii's Attempt to Resolve the Same-Sex Marriage Issue." Hawaii Law Review, 2000 no. 22 (Spring): 149–184.
Inness, Julie C. 1992. Privacy, Intimacy, and Isolation. New York: Oxford University Press.
Law, Sylvia A. 1988. "Homosexuality and the Social Meaning of Gender." Wisconsin Law Review, 1988, no. 2: 187–235.
MacKinnon, Catharine A. 1987. Feminism Unmodified: Discourses on Life and Law. Cambridge, MA: Harvard University Press.
MacKinnon, Catharine A. 1993. Only Words. Cambridge, MA: Harvard University Press.
Miller, Heather G.; Turner, Charles F.; and Moses, Lincoln E., eds. 1990. AIDS: The Second Decade. Washington, D.C.: National Academy Press.
Mohr, Richard D. 1988. Gays/Justice: A Study of Ethics, Society, and Law. New York: Columbia University Press.
Okin, Susan Moller. 1989. Justice, Gender, and the Family. New York: Basic.
Olsen, Frances E. 1983. "The Family and the Market: A Study of Ideology and Legal Reform." Harvard Law Review 96(7): 1497–1578.
Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75; 118 Sup. Ct. 998 (1998).
Petchesky, Rosalind P. 1990. Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom, revised edition. Boston: Northeastern University Press.
Planned Parenthood of Southeastern Pennsylvania v. Casey. 505 U.S. 833; 112 Sup. Ct. 2791 (1992).
Robson, Ruthann. 1992. Lesbian (Out)law: Survival under the Rule of Law. Ithaca, NY: Firebrand.
Roe v. Wade. 410 U.S. 113; 93 Sup. Ct. 705 (1973).
"Sexual Orientation and the Law." 1993. Special issue of Virginia Law Review 79(7).
Strossen, Nadine. 1993. "A Feminist Critique of 'The' Feminist Critique of Pornography." Virginia Law Review 79(5): 1099–1190.
Thorne, Barrie, and Yalom, Marilyn, eds. 1992. Rethinking the Family: Some Feminist Questions, rev. edition. Boston: Northeastern University Press.