Consensual Sex- I hear it's illegal

I remember a story way back in the South that had a heterosexual couple being arrested for sodomy-in their own home. From some research, I have seen it actually listed as a illegal act between consenting people even today!

My arguement is why would such a law come into effect and why would it still be a prosecutable offense. Is consensual acts between two willing individuals enough to be able to not be affected, no matter what the case?

This brings up a interesting argument of prostitution. Why do people still regard it as illegal since it is a legal transaction between two willing individuals.

This may have been already discussed but I could not find anything

In the back of (the now late) Peter McWilliams’ book Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crime Laws in Our Free Country, the author gives a state-by-state breakdown of all the kinds of anti-sexual laws passed in various states.

In California, for example, the age of consent is 18 (higher than in most other states), but once you’re 18 the only think that’s illegal is prostitution.

In Virginia, on the other hand, the age of consent is only 15, but it doesn’t matter because just about any kind of sex outside of marriage is illegal. (Kinda makes you wonder about the old “Virginia is for lovers” advertising campaign, doesn’t it?)

I know in California there’s a state-wide law which states that whatever two people do with each other is legal as long as it’s done privately, and consentually.

I think in Texas sodomy is still illegal.

The definition of sodomy being any act of sexual intercourse other than ‘Penis-A goes into Vagina-B.’

That means that any kind of sex-play would be illegal. oral sex–anal sex, and pretty much anything else you can think of. It’s a good thing they didn’t outlaw different sexual positions other than ‘missionary’, too. :stuck_out_tongue:


Vote for Gore! We have to get the inbeciles off the Supreme Court.

The liberal Supreme Court did hold in 1965 something to the effect that consentual sex between married individual in privacy could not be regulated. I’m not sure that the case would apply to sodomy or other kinky stuff. (The holding of the case was simply that the State could not prohibit the use of contraceptives between consenting married couples – believe it or not, the sale of contraceptives was illegal in Connecticut until this case.)

In 1986, in Bowers v. Hardwick, the court stated that the state could outlaw consentual homosexual sex acts. The court rejected the argument that sex was speech (which would be protected by the 1st ammendment) and also rejected the argument that the right of privacy protected such sex acts. Instead, in an embarassing opinion, the Court stated that homosexuality was conduct, not speech, and that it was traditionally considered abhorrent and deviant and could legitemately be prohibited within the state’s power to regulate the morals of the people. Pretty stupid and pathetic opinion!

The conservatives on the court basically believe in deference to legislators. The constitution does not limit what legislators can do in the privacy area. It is not the job of the court to police state and federal legislators unless the action clearly violated the literal meaning of the amendments of the constitution.

Many years ago, around the turn of the century, the Supreme Court struck down many laws restricting commerce. They based this on the contracts clause of the constitution, which they believed meant that legislatures could not restrict the freedom of individuals to enter into contracts for commecial gain. They applied a “strict scrutiny” test to any law regulating commerce. For any law to pass this test, it had to be shown how the law was necessary for protecting a vital state interest. Few laws could pass muster. (Laws outlawing prostitution could probably have passed the test, although I don’t know if such a case was ever decided).

Then later (starting in the 20’s ??) the court began to reject this doctrine, holding instead that states could regulate commerce at will and the court would take a hands-off approach. They started to apply a “reasonable basis” test to such laws, and most laws were able to pass this test. I think it was the liberals on the court who were for more laws regulating commerce, for they wanted states to have the ability to protect the health of the public and regulate child labor, working hours, working conditions, etc.

Perhaps, if the court still followed the strict scrutiny test in the area of laws regarding commerce, laws outlawing prostitution would be struck down as violative of the contracts clause of the constitution. Perhaps.

Actually, only the street walker variety of prostitution is 100% illegal in the U.S. Brothels, on the other hand, are legal in Nevada. The state has a compelling interest for not allowing streetwalkers; the spread of disease, drugs, violence, and so on. Brothels makes it easier for the state to regulate the business (tax the income, screen for disease, protect the hookers, etc.)

Personally, I think that from a strictly business point of view, many cities would allow brothels. However, since the majority of the populace doesn’t want one “in my back yard”, I doubt they will spread beyond Nevada.

Daniel Shabasson wrote:

And replace them with other imbeciles on the supreme court, who will uphold Federal laws banning all firearms and anything that might possibly maybe be a teensy tinsy bit detrimental to the environment?

No thanks.

Not exactly, although close.

Virginia Code § 18.2-371 provides in pertinent part:

And § 18.2-63:

Finally, § 18.2-61(iii) provides that sexual intercourse with a child under age 13 is rape.

So there is basically a graduated system, with different penalties for under 13 (no consent possible, a felony), between 13-15 (consent sometimes possible, and age of the partner is relevant), and 15-18 (consent possible, but still a serious misdemeanor).

Adultery, sexual intercourse by a married person with someone not his spouse, and fornication, voluntary sexual intercourse by an unmarried person, are both Class 4 misdemeanors.

This is a useful distinction, since the greatest possible penalty for a Class 4 misdemeanor is a $250 fine; for a Class 1 misdemeanor, it’s a $2,500 fine and a year in jail.

Now, on to Daniel Shabasson, who said:

How so? The job of the courts is to interpret the law. You are perfectly free to characterize the legislators of Georgia (and Virginia, for that matter) as stupid and pathetic if they do not pass laws reflective of your beliefs. But the will of the people of Georgia is expressed through the actions of their legislature; it is abundantly clear that, in Georgia, the people wish to prohibit homosexual conduct. Now, in what way is this violative of any federal constitutional guarantees? As Justice White’s opinion so cogently explains:

I might similarly froth and sputter about the Court’s carving out a right to privacy, and then further carving from that a right to abortion. In that case, the Supremes clearly engaged in judical legislation. In Bowers, they kept to their mandate of interpreting the law as it is written.

If you dislike statutes prohibiting certain kinds of conduct, hie yourself down to the state capitol and start lobbying. Don’t expect the courts to pass, or repeal, a law that you cannot convince the people of a state needs to be changed.

  • Rick

Cogency is in the mind of the thinker. As Bricker pointed out, the SC has carved out the right to privacy. In spite of protests to the contrary, what can be more private than a consensual act between two adults in a private house where there are no overriding social or public interests? I can see that in drug cases there can be overriding interests, but the Supremes were off base in the Georgia sodomy case. The decision merely reflected their prejudices.

For your further edification, here is a link to the case of Griswold v. Connecticut, in which the old “liberal” Supreme Court decided that the state could not control the use of contraceptives by consenting adults. Here also is a link to the case of Bowers v. Hardwick, wherein our current “conservative” Supreme Court said that it is perfectly OK for the state to tell consenting adults what they can and cannot do in the bedroom.

Incidentally, since the Bowers decision, several state Supreme Courts (my own state of Georgia included) have decided that anti-sodomy laws violate their respective State Constitutions. (Even though, in Bowers, the Supreme Court held that they did not violate the Federal Constitution.) Ironically, the language of the various state constitutions (with respect to rights) is often identical, or virtually identical, to the language in the Federal Constitution, which proves, I guess, that it’s all in how you look at it.

I do note, however, that a 14-year-old girl in Georgia was recently charged with “fornication” under Georgia law for having sex with her 17-year-old boyfriend. The boyfriend got charged with statutory rape.

I should amend my last post. The Bowers decision was not rendered by the current Supreme Court. It was decided in 1986, by a 5-4 voting margin. The majority in the case included current “conservative” justices Rehnquist and O’Connor.

Bricker wrote:

The statute in question does not limit itself to prohibiting “homosexual conduct.” It prohibits sodomy, which is defined broadly enough to include oral sex between a married couple. Sorry, but it is hardly “abundantly clear” that the people of Georgia are in favor of this law.

Now you might successfully argue that the people of Georgia were in favor of this law when it was originally passed, but that was way back in 1833. The reason the law was never repealed is not that the majority of people here are opposed to oral sex (we’re not, BTW), but rather that legislators are afraid to touch the law for fear of incurring the wrath of the religious right.

Question, Bricker: Do you believe that the Supreme Court in Griswold was wrong to hold that we have a right of privacy? Do you believe that the rights we have as citizens of the U.S. should be limited to those expressly enumerated in the Bill of Rights? If so, how do you explain the 9th Amendment, pray tell?

I would certainly hope that a right of privacy is one of those rights “retained by the people.” I feel confident that Madison would agree that it is.

So…are we gonna have sex soon, 'cuz I’m starting to get a little antsy.

Oh no!!! I got sodomized in Georgia once!! Am I going to jail?

Stella*Fantasia wrote:

First of all, congratulations. Was it good for you?

Secondly, nope, there will be no jail time for you. You can pretty much get your groove on in Georgia with impunity these days, Stella. (So long as you keep it private, anyway.) Let the oral sex begin!

In the case of Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), the Georgia Supreme Court (clearly possessed of a wisdom currently lacking on the U.S. Supreme Court), found that under the Georgia Constitution, there is a “right of privacy,” and that one element of that right of privacy is the right of adults to engage in consensual, private, not-for-profit, sex acts of their own choosing.

The irony is that the Constitutional language relied upon by the Georgia Supreme Court virtually mirrors that found in the U.S. Constitution. So, in other words, the U.S. Supreme Court and the Georgia Supreme Court, interpreting virtually identical verbiage, came to opposite conclusions.

**Bricker wrote:

But the will of the people of Georgia is expressed through the actions of their legislature; it is abundantly clear
that, in Georgia, the people wish to prohibit homosexual conduct. Now, in what way is this violative of any federal constitutional guarantees?**

The 4th amendment gaurantees my right of privacy in my papers, person and home. The *Bowers v Hardwick decision clearly violates my right of privacy as gauranteed thru the 4th Amendment.

It essentially say that homosexuals are 2nd class citizens because they do not enjoy the same right of privacy at heterosexual citizens.

Originally posted by Heath Doolin

No offense this sounds like a bull corn urban legend. You don’t have a cite do ya?

I mean how did they get caught in the first place? Do they bedroom police that inspect if the you know what is going in the you know where place? Seems pretty far fetched to me.

In case you haen’t made the link to the Bowers v. hardwick case, do so. Nobody was prosecuted. The state decided to drop the charges; however, Mr. Hardwicke sought a declaratory judgment on the issue. The SC stated they were not going to take that slippery path, declaring all private homosexual activities protected under the US Const.

I think, as I posted previously, that the path is not so slippery. Moreover, as pointed out, sodomy is not limited to homosexuals, as the Supremes said.

What is unclear to me how the court justified distinguishing between heterosexual relations being an affair and homosexual relations being a public concern. Perhaps you can further explain to me how he chose to distinguish between the two.

Because when I look at it, I see the freedom of religion of certain sects superceding the religious beliefs of homosexuals with no compelling state interest to justify it.

Uh, Bill, the cite for that case is Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) – the same case already cited here.

Hardwick sued the State of Georgia to challenge the constitutionality of the anti-sodomy statute after he was arrested for consensually engaging in sodomy with another male in his (Hardwick’s) own home. And, yes, IIRC, the police did look in his window to discover them doing it.

The U.S. Supreme Court held that the federal constitution does not convey a fundamental right to engage in homosexual acts, and that therefore Georgia had a right to make such acts illegal through legislative fiat. And I frankly do not disagree with this, so far as it goes. But I agree with the dissent of Justice Brandeis who pointed out (correctly, I think) that the true issue wasn’t sodomy but “the right to be left alone.” In other words, the issue the court should have addressed, in his opinion, was not whether Hardwick had a right to engage in sodomy but whether the cops had a right to make a point to look in his window in a specific attempt to catch him breaking the law. That, IMO, was what the constitutional issue of right to privacy should have addressed – not what Hardwick did, but what the police did to catch him. So I agree that Bowers was poorly decided; just not for the same reason many others do.

But anyway, yes it’s a real case, and there’s the cite for it.