Sex and the law

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Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time. Unlawful sexual acts are called sex crimes.

Contents

Some laws regarding sexual activity are intended to protect one or all participants, while others are intended to proscribe behavior that has been defined as a crime. For example, a law may proscribe unprotected sex if one person knows that they have a sexually transmitted infection or to protect a minor; or it may proscribe non-consensual sex. In general, laws may proscribe acts which are considered either sexual abuse or behavior that societies consider to be inappropriate and against the social norms. Sexual abuse is unwanted sexual contact between two or more adults or two or more minors, and, depending on laws with regard to age of consent, sexual contact between an adult and a minor.

Definitions

Sex crimes are forms of human sexual behaviour that are considered sufficiently unacceptable and harmful to society to be regarded as criminal. Someone who commits one is said to be a sex offender . Some sex crimes are crimes of violence that involve sex. Others are violations of social taboos, such as incest, sodomy, indecent exposure or exhibitionism. There is much variation among cultures as to what is considered a crime or not, and in what ways or to what extent crimes are punished.

Western countries are often far more tolerant of acts, such as oral sex, that have traditionally been held to be crimes in some countries, but combine this with lesser tolerance for the remaining crimes. By contrast, many cultures with a strong religious tradition consider a far broader range of activities to be serious crimes.

As a general rule, the law in many countries often intervenes in sexual activity involving young or adolescent children below the legal age of consent, non-consensual deliberate displays or illicit watching of sexual activity, sex with close relatives (incest), harm to animals, acts involving the deceased (necrophilia). Intervention may also arise when there is harassment, nuisance, fear, injury, or assault of a sexual nature, or serious risk of abuse of certain professional relationships. Separately, the law usually regulates or controls the censorship of pornographic or obscene material as well.

Possible enforcement

The activities listed below carry a condition of illegality in some jurisdictions if acted upon:

A variety of laws aim to protect children by making various acts with children a sex crime. For example, the "corruption of minors" by introducing material or behaviors that are intended to groom a minor for future sexual conduct. The materials or behavior can involve sexual content but does not necessarily have to. Depending on the jurisdiction, this conduct can be charged as a felony or a misdemeanor. Sometimes these laws overlap with age of consent laws, laws preventing the exposure of children to pornography, laws making it a crime for a child to be involved in (or exposed to) certain sexual behaviors, and the production and ownership of child pornography (sometimes including simulated images). In some countries such as the UK, the age for child pornography is higher than the age of consent, hence child pornography laws also cover images involving consenting adults.

Sadomasochistic conduct among adults can fall into a legal grey area. Some jurisdictions criminalize some or all sadomasochistic acts, regardless of legal consent and impose liability for any injuries caused. (See Consent (BDSM)) Other jurisdictions permit sadomasochistic conduct so long as the participants consent to the conduct.

While the phrases "age of consent" or "statutory rape" typically do not appear in legal statutes, [1] when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent of consenting to engage in sexual acts. This should not be confused with the age of majority, age of criminal responsibility, or the marriageable age. [2]

Some jurisdictions forbid sexual activity outside of legal marriage completely. The relevant age may also vary by the type of sexual act, the sex of the actors, or other restrictions such as abuse of a position of trust. Some jurisdictions may make allowances for minors engaged in sexual acts with each other, rather than a hard and fast single age. Charges resulting from a breach of these laws may range from a relatively low-level misdemeanor such as "corruption of a minor", to "statutory rape" (which is considered equivalent to rape, both in severity and sentencing).

Extramarital sex

Adultery is a crime in many Muslim countries, such as Saudi Arabia, Pakistan, [3] Afghanistan, [4] [5] [6] Iran, [6] Kuwait, [7] Maldives, [8] Morocco, [9] Oman, [10] Mauritania, [11] United Arab Emirates, [12] [13] Qatar, [14] Sudan, [15] and Yemen. [16]

Female genital mutilation

Custom and tradition are the most frequently cited reasons for female genital mutilation (FGM). FGM is the removal of the genitals in cultures especially islamic culture perpetuating male domination. Approximately 125 million girls and women are victims of female genital mutilation throughout the world. [17] With the practices often being performed to exert control over the sexual behavior of girls and women or as a perceived aesthetic improvement to the appearance of their genitalia. [18] [19] [20] The World Health Organization (WHO) is one of many health organizations that have campaigned against the procedures on behalf of human rights, stating that "FGM has no health benefits" and that it is "a violation of the human rights of girls and women" and "reflects deep-rooted inequality between the sexes". [19]

Most countries prohibit female genital mutilation, [21] including prohibiting the procedure to be performed on its citizens and residents while outside their jurisdictions, [22] and the New York State Penal Law lists female genital mutilation as a sexual offense.

Harassment

Incest

Sexual activity between family members or close relatives is often considered incest, which is illegal in many jurisdictions, though what constitutes an "incestuous relationship" varies by jurisdiction, and may depend on the type of sexual activity and whether the relationship is one of consanguinity, affinity or other relationship, such as by adoption. In law, the proscribed sexual activity is usually limited to sexual intercourse, though terminology varies, and which in some jurisdictions is limited to penile-vaginal sexual intercourse. Incestuous sexual activity, as defined by each jurisdiction, is usually unlawful irrespective of the consent of the parties and irrespective of their age. This prohibition usually also extends to the marriage of people in the proscribed incestuous relationships.

One author argued that use of particular language devices and rhetoric in the legislation surrounding these laws manipulates the viewer to automatically deem such sexual acts to be immoral and criminal. In this view, the law is attempting to morally control society, which is not one of the purposes of the law. This means that people will condemn those who partake in familial sexual activities, even if all parties are consenting adults. [23]

LGBT rights

In some states, sex between members of the same sex, or between men, is illegal. In a report done in 2013, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) indicated that homosexuality is still criminalized in some form in 76 states, with a high concentration of these states in the Middle East, Africa, and parts of Asia. Scholars have found that religion plays an important role in the legislation criminalizing sodomy. Countries that are predominately Muslim, for example, are less likely to decriminalize acts of sodomy as these acts are in direct contradiction with Islamic traditions. While quantitative research has not proven a link between the continued criminalization of sodomy and Christianity, there are many Protestant denominations, as well as the Catholic Church, that oppose the practice of homosexuality. While one might expect that the decriminalization of sodomy laws would support the mobilization of lesbian and gay rights, this is not necessarily the case, as there is debate on whether or a direct link exists between the two. In legislation regarding sodomy, there is typically no explicit statements given in the support of gay and lesbian rights since the reforms generally the result of a large emendation to penal code. There is some evidence in support of the opposite effect, as the re-criminalization of sodomy in India in 2013 caused a resurgence of gay rights activism. [24]

In studying the changes of sodomy statutes, Frank et al. (2009) found that between 1945 and 2005, "90 percent of all modifications involved liberalization in some way" of non-heterosexual acts. This was seen as evidence of a "sodomy-law reform wave." During the same period, however, eight countries expanded their laws regarding sodomy. In January 2014, Nigeria expanded their criminalization of homosexuality by passing legislation to enforce more severe penalties including a ban against same-sex marriage and participation in any gay organizations. Sodomy laws, however, are rarely used to penalize consensual acts, involving adults, that occur in private. In the 1970s, the only arrests (in the US) involving consensual, non-heterosexual acts were in public or quasi-public. While many sodomy laws are concerned with sexual acts as opposed to sexual orientations, the legislation is often interpreted as if being gay or lesbian is sufficient enough evidence to deem someone guilty as to having engaged in criminal acts. This led US judges to deny parents' custody of their children, student groups were not granted recognition by university officials, and many legislators were opposed to civil rights bills that included sexual orientation. [24]

Many revisions to sodomy laws were not a part of large government transitions, but rather included as a part of other general revisions of criminal legislation. There are two main pathways in which sodomy laws have been decriminalized: judicial invalidation and repeal of the law by vote of legislation. The United States did not decriminalize sodomy nationwide until 2003; however, many states, based on the council of judges and lawyers, did decriminalize sodomy as early as 1961. [24]

During the rise of Putin, Russia has seen a resurgence in "religious conservatism" which has resulted in the indirect re-criminalizing homosexuality. An amendment was made to Russian legislation in 2013 that emphasizes the protection of children from information that could be deemed as damaging to their mental health and development. In the amendment to the Federal Law of Russian Federation no. 436-FZ, "propaganda" of non-traditional sexual relationships among minors was classified as harmful, and while the law does not criminalize homosexuality directly, it has created a hostile environment for LGBT activism. The US and Europe have condemned Russia's actions, but despite the domestic and international pushback, the Russian anti-LGBT propaganda law still stands. [25]

Offender registry

Pornography

Rape and sexual assault

Reproductive rights

Sex work

See also

Related Research Articles

<span class="mw-page-title-main">Human sexual activity</span> Manner in which humans engage sexually

Human sexual activity, human sexual practice or human sexual behaviour is the manner in which humans experience and express their sexuality. People engage in a variety of sexual acts, ranging from activities done alone to acts with another person in varying patterns of frequency, for a wide variety of reasons. Sexual activity usually results in sexual arousal and physiological changes in the aroused person, some of which are pronounced while others are more subtle. Sexual activity may also include conduct and activities which are intended to arouse the sexual interest of another or enhance the sex life of another, such as strategies to find or attract partners, or personal interactions between individuals. Sexual activity may follow sexual arousal.

<span class="mw-page-title-main">Victimless crime</span> Concept in criminology

A victimless crime is an illegal act that typically either directly involves only the perpetrator or occurs between consenting adults. Because it is consensual in nature, whether there involves a victim is a matter of debate. Definitions of victimless crimes vary in different parts of the world and different law systems, but usually include possession of any illegal contraband, recreational drug use, prostitution and prohibited sexual behavior between consenting adults, assisted suicide, and smuggling among other similar infractions.

<span class="mw-page-title-main">Sodomy laws in the United States</span> Aspect of United States law

The United States has inherited sodomy laws which constitutionally outlawed a variety of sexual acts that are deemed illegal, illicit, unlawful or unnatural from the colonial laws in the 17th century. While they often targeted sexual acts between persons of the same sex, many sodomy-related statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes, in some cases even including acts between married persons.

Kentucky v. Wasson, 842 S.W.2d 487, was a 1992 Kentucky Supreme Court decision striking down the state's anti sodomy laws that criminalized sexual activity between two people of the same-sex, holding that this was a violation of both the equal protection of the laws and the right to privacy. The Kentucky case helped pave the way for many other states and eventually the United States Supreme Court to issue similar rulings.

The crime against nature or unnatural act has historically been a legal term in English-speaking states identifying forms of sexual behavior not considered natural or decent and are legally punishable offenses. Sexual practices that have historically been considered to be "crimes against nature" include masturbation, sodomy and bestiality.

The Consenting Adult Sex Law is Californian piece of legislation which decriminalized private and consensual gay sex. Its main promoters were George Moscone, an early proponent of gay rights, and his friend and ally Willie Brown, who was serving in the California Assembly at the time. The bill passed in the Senate by a vote of 21 to 20 and in the Assembly by a vote of 45 to 26. It was signed into law by Governor Jerry Brown on May 12, 1975, which came into effect in January 1976.

The legal age of consent for sexual activity varies by jurisdiction across Asia. The specific activity engaged in or the gender of participants can also be relevant factors. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, such as homosexual relations or close in age exceptions, may exist, and are noted when relevant.

The ages of consent for sexual activity vary from age 15 to 18 across Australia, New Zealand and other parts of Oceania. The specific activity and the gender of its participants is also addressed by the law. The minimum age is the age at or above which an individual can engage in unfettered sexual relations with another person of minimum age. Close in age exceptions may exist and are noted where applicable. In Vanuatu the homosexual age of consent is set higher at 18, while the heterosexual age of consent is 15. Same sex sexual activity is illegal at any age for males in Papua New Guinea, Kiribati, Samoa, Niue, Tonga and Tuvalu; it is outlawed for both men and women in the Solomon Islands. In all other places the age of consent is independent of sexual orientation or gender.

<span class="mw-page-title-main">Ages of consent in North America</span> Age of consent for sexual activity in countries in North America

In North America, the legal age of consent relating to sexual activity varies by jurisdiction.

The following outline is provided as an overview of and topical guide to sexual ethics:

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.

<span class="mw-page-title-main">LGBT rights in Turkmenistan</span>

Lesbian, gay, bisexual, and transgender (LGBT) persons in Turkmenistan face active discrimination and stigmatization compared to non-LGBT residents. Turkmenistan is one of the only three post-Soviet countries where male homosexual activity remains criminalised, along with Uzbekistan and Chechnya.

<i>National Coalition for Gay and Lesbian Equality v Minister of Justice</i> South African legal case

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.

Laws regarding incest vary considerably between jurisdictions, and depend on the type of sexual activity and the nature of the family relationship of the parties involved, as well as the age and sex of the parties. Besides legal prohibitions, at least some forms of incest are also socially taboo or frowned upon in most cultures around the world.

In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent. Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes. In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion because a minor or mentally disabled adult is legally incapable of giving consent to the act.

<span class="mw-page-title-main">Sodomy law</span> Laws criminalising certain sexual acts

A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law but are typically understood by courts to include any sexual act deemed to be "unnatural" or "immoral". Sodomy typically includes anal sex, oral sex, manual sex, and bestiality. In practice, sodomy laws have rarely been enforced against heterosexual couples, and have mostly been used to target homosexual couples.

<span class="mw-page-title-main">Ages of consent in the United States</span> U.S. law on age of consent to sexual activity

In the United States, each state and territory sets the age of consent either by statute or the common law applies, and there are several federal statutes related to protecting minors from sexual predators. Depending on the jurisdiction, the legal age of consent is between 16 and 18. In some places, civil and criminal laws within the same state conflict with each other.

<span class="mw-page-title-main">Capital punishment for homosexuality</span> Death penalty for same-sex sexual activity

Capital punishment as a criminal punishment for homosexuality has been implemented by a number of countries in their history. It currently remains a legal punishment in several countries and regions, most of which have sharia–based criminal laws except for Uganda.

Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.

<span class="mw-page-title-main">Criminalization of homosexuality</span> Classification of same-sex sexual acts as a criminal offense

Some or all sexual acts between men, and less frequently between women, have been classified as a criminal offense in various regions. Most of the time, such laws are unenforced with regard to consensual same-sex conduct, but they nevertheless contribute to police harassment, stigmatization, and violence against homosexual and bisexual people. Other effects include exacerbation of the HIV epidemic due to the criminalization of men who have sex with men, discouraging them from seeking preventative care or treatment for HIV infection.

References

  1. ↑ Waites, Matthew (2005). The Age of Consent: Young People, Sexuality and Citizenship. Palgrave Macmillan. ISBN   978-1-4039-2173-4.
  2. ↑ Carasue, John. "Sexual interference". SexualInterference.ca. Sexual Interference. Retrieved 13 January 2022.
  3. ↑ Jordan, Mary (21 August 2008). "Searching for Freedom, Chained by the Law". The Washington Post. Retrieved 3 August 2013.
  4. ↑ Ernesto Londoño (9 September 2012). "Afghanistan sees rise in 'dancing girls' exploitation". The Washington Post. DEHRAZI, Afghanistan. Archived from the original on 10 May 2013.
  5. ↑ "Home". AIDSPortal. Archived from the original on 26 October 2008. Retrieved 2 August 2013.
  6. 1 2 "Iran". Travel.state.gov. Archived from the original on 1 August 2013. Retrieved 3 August 2013.
  7. ↑ "United Nations Human Rights Website - Treaty Bodies Database - Document - Summary Record - Kuwait". Unhchr.ch. Retrieved 2 August 2013.
  8. ↑ "Culture of Maldives". Every Culture. Retrieved 3 August 2013.
  9. ↑ Fakim, Nora (9 August 2012). "Morocco: Should pre-marital sex be legal?". BBC News.
  10. ↑ "www.interpol.com" (PDF). Archived from the original (PDF) on 16 May 2016.
  11. ↑ "2010 Human Rights Report: Mauritania". State.gov. 8 April 2011. Retrieved 2 August 2013.
  12. ↑ "Education in Dubai". Dubaifaqs.com. Retrieved 2 August 2013.
  13. ↑ Judd, Terri; Sajn, Nikolina (10 July 2008). "Briton faces jail for sex on Dubai beach". The Independent. Retrieved 3 August 2013.
  14. ↑ ""Sex outside of marriage is a criminal offense here," PH ambassador to Qatar warns Pinoys". SPOT.ph. 12 September 2011. Retrieved 3 August 2013.
  15. ↑ "Sudan must rewrite rape laws to protect victims". Reuters. 28 June 2007. Archived from the original on December 9, 2012. Retrieved 2 August 2013.
  16. ↑ "Women's Rights in the Middle East and North Africa - Yemen". Unhcr.org. Retrieved 2 August 2013.
  17. ↑ Payne, Richard (2017). Global Issues: Politics, Economics, and Culture. Pearson Education. p. 164. ISBN   978-0-13-420205-1.
  18. ↑ Koroma, Hannah (30 September 1997). "What is Female Genital Mutilation?". Amnesty International . Retrieved 5 February 2013.
  19. 1 2 "Female genital mutilation". World Health Organization . Retrieved 22 August 2012.
  20. ↑ Momoh, Comfort (2005). "1: Female Genital Mutilation". In Momoh, Comfort (ed.). Female Genital Mutilation. Radcliffe Publishing. pp. 5–11. ISBN   978-1-85775-693-7 . Retrieved 17 November 2012.
  21. ↑ "Laws of the world on female genital mutilation". Harvard T.H. Chan School of Public Health. Archived from the original on 29 November 2011.
  22. ↑ McVeigh, Tracy and Sutton, Tara. "British girls undergo horror of genital mutilation despite tough laws", The Guardian , 25 July 2010.
  23. ↑ Roffee, James A. (2014). "The Synthetic Necessary Truth Behind New Labour's Criminalisation of Incest". Social & Legal Studies. 23: 113–130. doi:10.1177/0964663913502068. S2CID   145292798.
  24. 1 2 3 Tremblay, Manon; Paternotte, David (28 September 2015). The Ashgate Research Companion to Lesbian and Gay Activism. ISBN   9781409457091 . Retrieved 23 March 2018.
  25. ↑ "Love in the Time of Propaganda: Russian Anti-LGBT Laws, the International Legal Response and Future Implications 24 - Minnesota Journal of International Law 2015". heinonline.org. Retrieved 23 March 2018.
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