Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?

By Witte, John, Jr. | Emory Law Journal, January 1, 2019 | Go to article overview

Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?


Witte, John, Jr., Emory Law Journal


Introduction

Sex has long excited an intimate union between theology and law in the "Western legal tradition."1 For two millennia, both churches and states issued detailed private laws and guidelines to define and facilitate licit sex within an enduring and exclusive marital bed. They also issued elaborate penal laws and procedures to prohibit and punish illicit sex.2 Church and state officials periodically fought over whose laws governed sex, marriage, and family life, and periodically shifted the line between sexual sins that remained under church law alone, and sexual crimes that were punished by the state (as well).3 Nonetheless, until the twentieth century, churches and states alike played formidable roles in defining and regulating "licit and illicit" sex.4

A typical alphabetical list of pre-modern sex offenses-in civil law and common law lands alike-included abduction, abortion, adultery, bestiality, buggery, child abuse, concubinage, contraception, feticide, fornication, homosexual acts, illegitimacy, incest, infanticide, malicious desertion, masturbation, obscenity, polygamy, pornography, prostitution, rape, seduction, and sodomy.5 Sometimes more exotic offenses were added, such as castration, transvestism, mixed bathing, public nudity, sexual contact by or with clerics or monastics, secret efforts to hide a new pregnancy or birth, and others.6 Sometimes defendants were charged with catchall sex crimes like "perversion," "indecency," "lewdness," "abomination," or "unnatural sex."7 Many of these sex crimes had shifting and sometimes eliding definitions over time and across legal systems, and were variously classified as "offenses against God," "religion," "morality," "nature," "public order," or "persons."8 Until a century ago, many of these sex crimes had serious consequences. Brazen or repeat sex offenders often faced severe criminal punishment-execution in egregious cases.9

Today, most of these traditional sex crimes have been eclipsed by a dramatic rise of new constitutional laws and cultural norms of sexual liberty. Traditional crimes of contraception, abortion, fornication, and sodomy have been struck down as antiquated and unconstitutional.10 Prohibitions on adultery, concubinage, and non-marital sex and cohabitation have become dead letters, and modern law no longer visits "the sins of the fathers" or mothers upon children born "out of wedlock."11 Free speech laws protect all manner of sexual expression, short of obscenity, although the wildest unregulated frontiers of prurience are now only a mouse click away.12 Privacy laws protect most forms of sexual conduct among consenting adults, and a growing number of democratic countries now allow prostitution among adults.13 The classic sex crimes of incest and polygamy still remain on the books, but they are now the subjects of growing constitutional and cultural battles.14 Only one traditional sex crime has strengthened in recent decades: the crime of rape, now elaborated in strong new prohibitions against sexual assault, battery, violence, stalking, and harassment, as well as the sexual abuse and statutory rape of children.15 The sex crimes that remain, however, are now usually labeled as crimes against "persons," "dignity," or "sexual autonomy," rather than crimes against God, morality, or nature.16

This radical reduction of traditional sex crimes over the past century reflects not only the rise of modern constitutional liberty but also the shift of modern criminal law away from a "fault-based" to a "harm-based" system of liability.17 Traditional fault-based logic swept in many consensual and victimless sex acts that were considered to be just wrong (malum in se)-adultery, fornication, sodomy, bestiality, and other such "sexual taboos."18 Modern harm-based logics ignore most such acts and instead focus on crimes that inflict involuntary harm, particularly on vulnerable victims like young children or rape victims.19 To be sure, some traditional crimes remain hard to classify today: scholars debate whether pornography, prostitution, and polygamy, for example, are harm crimes that should stay on the books or morality crimes that need to be removed. …

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