Written by admin on 2009-04-07T04:36:53+0000">April 7, 2009 – 4:36 am
The application of law to sexual activity is at least as old as the codes of Hammurabi and the Judeo-Christian Bible. Certainly the latter crucially informed moralities behind the constitution of English law. In the Old Testament, rules pertaining to sexual behavior were part of a wider comprehension of ritual purity and sacred wholeness which included interrelated sanctions ranging from the impurities of semen and menstrual blood, to the impurity of certain food categories and combinations of classes of people, animal slaughter, body desecration, and activities in the Temple. Contrastingly, contemporary American law pertaining to explicitly sexual behavior is not primarily understood through complex and generalized notions of purity and impurity. Sin and crime, posited as existing within the individual, have displaced notions of ritual impurity, posited in reference to the group and to relations between groups. In our post-Freudian universe, in which sex provides metaphors for almost any realm of activity from the political to the religious, sex laws can be isolated somewhat. We do not mean to imply that laws about sex are, in fact, unrelated to other laws. The opposite is the more apt characterization. Rather, we note the presumption within our society that domains of social behavior are objectively separate from one another. What are, from one point of view, taken to be separate domains (e.g., religion, economics, politics, kinship) may, from another perspective, be part of one domain of activity (Dolgin, Kemnitzer, and Schneider). The irony rests on contradiction, and this contradiction between the presumption that sexuality is pervasive and the relative boundedness within the legal codes of sex laws is important to understanding changes in laws relating to sexual activity.
In general, sex laws constitute a legal arena in which basic principles seem, at least until quite recently, to have been accepted through past implication and precedent but without express attempts on the part of legislatures or courts to re-evaluate and re-examine the fundamental assumptions behind legislation and court decisions. The law comes closest to explicit definitions of sex terms within the framework of the penal law. New York State adopted a new penal law in 1965, after study by a commission appointed by the governor to revise and consolidate extant penal law. The new penal law was drawn in large part from the Model Penal Code, itself drafted in 1962 after approximately ten years of study by the American Law Institute.
Sex laws have been characterized as relatively unique because the crimes they define are frequently without victims or involve “victims” who are themselves consenting participants to the criminal behavior. The concept of crimes without victims has been raised in controversy about the benefits and disadvantages of decriminalization in these areas; clearly the task of deciphering which crimes do not have victims, at least in a prototypical sense, and of determining the exact components of victimization is complex. Edwin Schur, illustrating the concept with abortion, homosexuality, and drug addiction, notes that in the last decade the scope of substantive law in these three areas has been reduced. What one commentator takes to be a victimless crime, may appear to involve victimization in another’s view.
Surely from a particular perspective, almost any activity categorized as criminal also can be defined as including a victim, even if that victim be the criminal himself or herself. The question again becomes: Who differentiates victims from consenting participants? Who may determine which domains of activity are criminal? What are the underlying assumptions on the basis of which such determinations are made or rendered reasonable? How, that is, does law or a set of laws relate to a society’s more pervasive forms through which the world is understood and through which those understandings are articulated.
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