Academic journal article Duke Law Journal

Applying Lawrence: Teenagers and the Crime against Nature

Academic journal article Duke Law Journal

Applying Lawrence: Teenagers and the Crime against Nature

Article excerpt


The Supreme Court's decision striking down a Texas statute prohibiting homosexual conduct in Lawrence v. Texas is vague in many ways. The opinion failed to articulate both the contours of the right the Court was recognizing and the level of scrutiny courts should apply when enforcing the right. When a question concerning the rights of minors arises under Lawrence, the answer is even more obscure. The Supreme Court of North Carolina faced precisely this question in a 2007 decision, in which the court considered whether Lawrence prohibited the state from prosecuting a minor for engaging in nontraditional sexual activity when the minor legally could have engaged in traditional, vaginal intercourse. This Note argues for an extension of Lawrence's right to sexual privacy to minors when those minors may otherwise lawfully consent to sexual activity. Lawrence held the state may only infringe an adult's right to sexual privacy when the state has some interest other than moral aversion to the sexual act itself. The Supreme Court has also held that minors generally share an adult's right to privacy unless the state has a significant interest unique to the context of minors to justify the infringement. Because the state has no interest other than moral aversion when regulating the form of a minor's sexual activity, this Note argues Lawrence should also protect minors.


At fourteen, R.L.C. was already involved in a sexual relationship with his twelve-year-old girlfriend, O.P.M. (1) Despite their youth, the adolescents had already engaged in vaginal intercourse on several occasions. In North Carolina, their conduct was lawful: North Carolina's age-of-consent laws permit sexual acts between minors as long as one partner is no more than three years older than the other. (2) In addition to vaginal intercourse, however, the adolescents had also engaged in oral sex. Unlike vaginal intercourse, this conduct was problematic. North Carolina prohibits the "crime against nature," (3) more commonly known as sodomy. Even though many think of sodomy as a pseudonym for homosexual activity, traditional prohibitions of sodomy include even heterosexual oral sex. (4) Because he engaged in heterosexual sodomy, R.L.C. was adjudicated a felony delinquent, even though the vaginal intercourse was completely lawful? In In re R. L. C., (6) the Supreme Court of North Carolina upheld his conviction. (7)

Although the U.S. Supreme Court's decision in Lawrence v. Texas (8) perhaps appeared to prohibit R.L.C.'s prosecution when it struck down a Texas statute prohibiting homosexual conduct, the Court's opinion did not explain how far Lawrence's holding reaches. As this Note interprets Lawrence, prohibitions of sodomy between adults are unconstitutional violations of an individual's due process right to privacy. (9) But the Court did not explain whether Lawrence applies to minors. The Supreme Court of North Carolina distinguished Lawrence and upheld R.L.C.'s felony conviction, holding that minors do not share the same constitutional right to privacy. (10) In this conclusion, North Carolina is not alone: a month after R.L.C., the Supreme Court of Virginia echoed this analysis in McDonald v. Commonwealth, (11) determining that Lawrence did not invalidate a statute graduating an otherwise misdemeanor sexual offense involving vaginal intercourse with a minor to a felony when that same contact involved oral sex. (12)

This Note argues that R.L.C. was wrongly decided. The constitutional right to privacy adults hold extends to minors in many circumstances. When the state determines that minors may lawfully engage in sexual activity, the right to privacy should prevent it from singling out nontraditional sexuality for prosecution. (13) Though Lawrence itself left the status of minors who engage in sodomy in doubt, other decisions of the U.S. Supreme Court have held that minors have the same right to privacy as adults unless the state has a significant interest unique to the context of minors. …

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