The law is messy, and sex is even messier.
What happens when those two combine, and suddenly the courtroom shows up in your bedroom?
Hi everyone.
My name is Sarah, and welcome back to Everyday Consent!
Topics like sex and consent can be messy and confusing.
It’s tempting, then, to try to start with something simple by saying, “Alright, just
tell me what’s legal, and we’ll go from there.”
It’s easy to use “legal” and “illegal” as proxies for at least the baseline of what
is “right” and “wrong”.
But, unfortunately, the law is pretty complicated too.
The creation of laws is subject to historical context and human error.
This means that sometimes what’s coded into law might be very different from what we actually
consider to be right.
The way that legal systems evolve and interact with historical and current social values
is fascinating, often frustrating, and an ongoing source of discussion and study.
And this is especially true when it comes to governing a topic like sexuality that is
so fraught with stigma, fear, and confusion.
So, unsurprisingly, there have been and continue to be a lot of problems with how the law governs
sexuality.
And I do mean a lot.
If I tried to address every type of law related to sex and sexuality, we would be here all
day.
The problem I’ll focus on today though, is the harm that is caused when laws about
sex ignore consent as a relevant factor.
Sidenote: If you are interested in seeing a video on any of these other topics, leave
a comment below and we can make one!
I’ll also only be addressing laws in the United States.
Sorry, international viewers, but hopefully you’ll find this interesting too.
Let us know in the comments if your country has similar laws or maybe some different ones
that would be interesting to talk about.
So today I’ll only be talking about laws in the US restricting private sexual activity
between consenting adults.
Didn’t think there were laws like that?
Oooh, get ready.
And because these laws don’t value consent as a deciding factor, they have caused and
continue to cause a lot of undue harm.
That’s not to say that defining consent in a legal context is a simple matter either.
Indeed, there is an ongoing attempt to do just that, and there’s a lot to talk about
there too.
But whatever your thoughts on those laws, suffice it to say that leaving out consent
completely has caused a lot of damage.
To see how, let’s learn about Sodomy laws.
The term “sodomy” has biblical roots and originally referred to anal sex.
Either between a man and a woman or a man and another man--the gender distinction did
not really matter.
Laws prohibiting sodomy appeared in the US as early as 1636 and continued spreading throughout
the country.
This criminalization of sodomy was often justified with claims of it being a “crime against
nature”.
And that such laws were necessary to protect “public morals and decency”.
These laws rarely made an explicit distinction between consensual and nonconsensual activity,
but were primarily invoked in cases of nonconsensual activity.
Sodomy charges were often added on in cases of rape and sexual assault to make sentencing
harsher.
Sentences for those convicted of sodomy varied widely, but often included imprisonment or
death.
In the 1900’s, the character and usage of sodomy laws shifted.
By the 1920’s sodomy laws expanded to include many other non-procreative sexual acts, especially
oral sex.
Throughout the 20th century, execution of these laws in cases of consensual sexual activity
became much more widespread.
And they were increasingly used to target and persecute LGBT Americans.
Police attention to potential violators grew considerably, including regular police raids
of underground gay bars.
McCarthyism in the 1950’s also had a strong anti-homosexuality focus.
Deemed the “Lavender Scare”, this hostility lead to massive homosexual witch hunts.
Homosexuality was considered a security risk on par with communism.
And State department employees suspected of homosexuality were interrogated and fired
en masse.
This time period also saw the rapid spread of the field of psychiatry and the practice
of diagnosing homosexuality as a mental illness.
Many of the sodomy laws of this era cast violators as “sexual psychopaths”.
In many cases, this led to the forced institutionalization of homosexual individuals in psychiatric facilities,
leaving them powerless to defend themselves.
By 1960, all the states had laws against sodomy, often classified as a felony.
And by this time several of these laws specifically targeted homosexual individuals.
Over the decades, as public opinion shifted, many of these laws started falling out of
favor and getting repealed.
But it was not until 2003, a mere 12 years ago, that the landmark case, Lawrence v. Texas,
landed in the US Supreme Court and they declared sodomy laws to be unconstitutional.
After the decision, most states started the process of cleaning up these laws from their
penal codes.
But at least 8 states still have those laws on their books today and not just because
they’re being slow.
In 2013,a Virginia legislator attempted to revive his state’s ‘Crimes Against Nature’
sodomy law.
And in 2014, Louisiana's House of Representatives considered legislation that would have removed
its unconstitutional sodomy law, but voted against that change, so that law is still
in place.
But okay, sure, some States are dragging their feet removing their outdated laws, and even
making failed attempts at reviving them.
But if they’re still officially invalid, what does it matter if they’re still on
the books?
Invalid or not, these laws are still used to harass, arrest, and discriminate against
those thought to be violating them, particularly LGBT folk.
For instance, in 2008, two men were arrested in Raleigh, North Carolina for engaging in
private, consensual, homosexual sex.
The men were facing felony charges that would have resulted in up to two years in prison.
The charges were eventually dropped, but the Raleigh police captain still defended the
arrest, citing the fact that the law was still on the books.
In 2009, the city of El Paso, Texas was sued by two gay men that were kicked out of a restaurant
for kissing and threatened with charges under Texas’ sodomy statute.
That statute classifies homosexual conduct as a misdemeanor punishable by a fine of up
to $500.
It’s worth noting that this is the specific law which Lawrence v. Texas declared unconstitutional,
yet it’s still around.
As recently as 2011, Michigan citizens continued to be charged and convicted under that state’s
"Abominable and Detestable Crime Against Nature" and "Gross Indecency" sodomy laws.
Both of which cast sodomy as a felony with sentences of up to 15 years.
In addition, violators may be forced to register as sex offenders.
A label which can obliterate a person’s housing, job, and social prospects for life.
In 2013, the Baton Rouge Sheriff’s Office in Louisiana was revealed to have been arresting
men suspected of “attempted crimes against nature”.
Male deputies were sent to a public park and made to entrap “suspects” by asking men
if they wanted to go have sex with them.
In private.
With no money involved.
Then the officers arrested anyone who said “yes”.
Just to clarify, that means the Sheriff’s office was not only using a defunct law to
make arrests, but going out of its way to find people to arrest under that defunct law.
When media confronted the Sheriff’s office and uncovered at least a dozen such cases
since 2011, the Sheriff’s office eventually apologized and vowed to modify practices.
The Sheriff’s response stated that he was unaware that the law was invalid.
And was simply “acting in good faith using a statute that was still on the books of the
Louisiana criminal code.”
Even when the laws are unenforced, the continued existence of sodomy laws casts homosexuality
as criminal, “indecent”, or “obscene”.
This implicitly endorses hostility towards LGBT individuals and therefore creates a climate
of discrimination and hate.
There is also some concern among civil rights advocates that the lack of momentum in removing
sodomy laws from state legislatures could be used in future Supreme Court decisions
as evidence of a lack of community support.
And this is really just the tip of the iceberg for ways in which the legal system in the
United States has attempted to legislate sexual activity and made a mess of it.
Especially by ignoring consent as a determining factor.
The Lawrence v. Texas decision means that we have a good basis moving forward.
But the continuing issues with laws that decision supposedly solved, indicates that there’s
still much more work to be done.
What else can we do moving forward to ensure that continuing legislation of sexual activity
does more good than harm?
I’d love to hear your thoughts down in the comments, or you can always email me at everydayconsent@gmail.com.
If you liked this video and want to see more from me, you can hit that like button and
don’t forget to subscribe.
Thanks, everyone.
Happy consenting, and I’ll see you next week!