Other sex laws, however, border on the invasion of people’s privacy as they regulate certain aspects of people’s sexual lives. This raises the question of: when are sex laws good and when are they bad? One can argue that they are bad when they are placed for the purpose of declaring the sexual norm set by society, invade the right of privacy that adults possess, and do not really focus on preventing harm. This can be most clearly seen in laws forbidding fornication. While sex between a man and woman may seem to be okay and fit the standard set by society, there are still certain aspects of this act that are regulated. Another law states, “when any man and single woman have sexual intercourse with each other, they are both guilty of fornication, a misdemeanor” (Prosner and Silbaugh 100). Unlike the sex laws protecting children, the parties involved in these laws are consenting adults and therefore should have the right to engage in sexual relations. This law seems to be setting a sexual standard rather than protecting certain parties from harm. By strictly defining sexual expression to be not only heterosexual but also marital, in other words between husband and wife, our culture has set this sexual standard. This legislation basically declares forbidden an act that occurs in the private lives of others. Moreover, the main focus of this law does not seem to focus on preventing harm to parties. This act of fornication is seen as unacceptable and therefore must be prohibited through legislation. The term fornication itself has negative connotation for it is not merely referred to as sex. One can argue, however, these laws are very difficult to enforce, and hardly ever used. Does this make them acceptable? Their mere existence and fact that they can be carried out prove as a nuisance to an aspect of people’s sexual lives. So while people are engaging in this “negative” act of fornication, authorities can take proper action when they see fit, because of the existence of these laws. In addition to regulating this sexual act, legislators feel they must monitor what people watch as well.
Another example of laws that seem unfavorable is sex laws that prohibit people from viewing certain types of film. Yet another law states, “it is a misdemeanor to possess obscene film of any type” (Posner and Silbaugh 190). This law attempts to censor what legislators feel is wrong and immoral to do in the first place. In The History of Sexuality, by Foucault, he explains the logic of censorship, saying “what is not permitted denies its existence, and what is inexistent has no right to show itself” (Foucault 84). The definition of sexual expression given by this censorship is one of nonexistence. Certain sexual acts are considered so offensive that they cannot even be viewed by the human eye. Although one can argue that this law serves the same purpose of the sex law prohibiting child pornography by preventing any harm done by potential sex offenders, the parties involved in non-child pornography are again consenting adults and realize the implications and repercussions of going into the “adult” industry. Because of the fact that the parties involved are consenting adults, this law fits the characteristics of an unfavorable law. First, this law does not directly prevent any harm to parties involve. It merely degrades and makes illegal a sexual behavior lawmakers feel is unacceptable and shameful. Second, it invades the privacy of adults. What people watch should be their own business, unless what they are watching is directly harming another individual. But again, adults know what they are getting into before they make an adult movie. Finally, this law is basically based on setting societal norms. Watching pornography does not fit the sexual ideology brought forth by the law. These reasons show that this sex law hardly serves any other purpose other than to monitor a specific type of sexual behavior.
While certain laws seem to project this image of a closely monitored society with regard to sexual expression, recent developments have shown a bit of leniency in this area. Authorities are beginning to realize that some of these sex laws do violate people’s right to privacy. In a recent court case, Lawrence vs. Texas, “The Supreme Court of the United States, by a 6-3 vote, held that sodomy laws were an unconstitutional violation of privacy” (Naeger). In this case, two men were caught having intercourse by the police in their home. Because the police did not have a warrant, the case was taken to court, who ruled in favor of the two men, thus declaring sodomy laws unconstitutional. This landmark case was a great step for gay, lesbians, and advocators of sexual freedom. Certain sexual acts, once forbidden, were now allowed and accepted by the law. This case was just one act benefiting the advancement of sexual freedom. However, there are still restrictions placed on sexual acts, making our society far from being totally free of sexual limitations.
Although homosexual acts are now legally accepted, certain same-sex behavior is still discriminated against in the sense that they are still subject to monitoring. For example, John Corvino writes in The Advocate about his experiences with the Texas State Troopers. Corvino was visiting a friend in Austin, Texas and they started kissing on a bench, when a state trooper spotted them and called for backup. Three troopers approached them and told them to stop. Although in a public area, the Troopers did inquire their plans about the night and said that “homosexual acts are against the law in Texas” (Corvino), attempting to monitoring an aspect of their private lives. Although not harming anyone, the two men were seen by the police as people to be disciplined. It turns out that one of the men filed a complaint against the Troopers and the proper actions were taken against them. Despite this action, the message was sent that sexual expression is still viewed as a monitored act. This suggests that laws on homosexual acts now allow more freedom, but there is still the issue of “bad” government action because this air of monitoring invades privacy, does not prevent harm, and degrades homosexual acts.
Critics say that active government involvement in sexual expression is necessary, and does not always have to mean a negative outcome. An article in the New York Voice, entitled “Queens High School Teacher,” mentions a police officer posing as a 14-year old boy on America Online. A man repeatedly communicated with the officer via instant messager. Although it can be argued that this man’s privacy was violated, had the officer been a real boy, there is no telling what might have happened to him. This type of monitoring is essential in the protection of children who use the internet, and “shows that law enforcement is vigilantly patrolling the internet to protect children from sexual predators and should also serve as a clear and unmistakable warning to those who would seek to steal the innocence of children that law enforcement is alert and prepared to apprehend, prosecute and punish them” (New York Voice). In this case, government action served a positive purpose because of who they are trying to protect. Children, however, cannot be referred to as these purely innocent creatures because that is simply not the case. They are still sexual beings, curious about their bodies, and should be allowed at least some freedom in the law. But because of their lack of experience, a line must be drawn for they are vulnerable to adults trying to take advantage of them. This line exists in those sex laws and regulations that supervise and limit aspects of children’s sexual lives. Children need this type of monitoring because their inexperience makes them easy targets for sexual predators.
This regulation of what people say and attempt to do over the internet, however, is a questionable issue because it is difficult to decide what and who to monitor. With the example of children chatting on the internet and child porn, government action was justified because it prevented real harm to children. It also did this same type of protection regarding government action on underage sex. This regulation/monitoring, however, does not justify the other sex laws that invade the privacy of adults without preventing real harm to anyone.
So when do sex laws and sexual regulation protect and when do they invade privacy? It seems as if they protect when dealing with children, while it invades privacy when dealing with adults. The answer to the question, however, is still inconclusive for who is to say what age constitutes being a child and what age constitutes being an adult. In a perfect world, we could ban all sex laws prohibiting sexual expression and invading privacy, while allowing those that protect people, mainly children, from any sexual harm or danger. In this world, however, we cannot pick and choose which laws to enforce. So are sex laws, which supposedly serve the purpose of protecting the public, worth enforcing at the expense of sexual freedom and expression?
Works Cited
Corvino, John. “Kiss and Tell.” The Advocate. Iss. 931. Los Angeles, 2005.
Foucault, Michel. The History of Sexuality: An Introduction: v. 1 Trans. Robert Hurley. New York: Vintage, 1988.
Naeger, Jennifer. “And Then There Were None: The Repeal of Sodomy Laws After Lawrence v. Texas and Its Effect On the Custody and Visitation Rights of Gay and Lesbian Parents.” St. John’s Law Review. Vol. 78. Iss. 2. Brooklyn, 2004.
Posner, Richard A. and Silbaugh, Katherine B. A Guide to America’s Sex Laws. Chicago: U of Chicago P, 1996.
“Queens High School Teacher.” New Voice of New York, Inc. Vol. 47. Iss. 41. Jamaica, New York: 2005
Reno, Jamie. “Man Behind the Mask.” Newsweek. Vol. 140. Iss. 10. New York, 2002.