Sex and the law

Last updated

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, and unlawful sexual acts are also 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 he or she has a sexual disease or to protect a minor; or it may proscribe non-consensual sex, or because of a relationship between the participants, etc. 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 behavior that are crimes. 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), and also 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. A rape charge can only be issued when a person(s) of any age does not provide consent for sexual activity.

Possible enforcement

The activities listed below carry a condition of illegality in some jurisdictions if acted upon, though they may be legally role-played between consenting partners of legal age:

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.

The age of consent varies from jurisdiction to jurisdiction. [1] The median seems to range from 16 to 18 years, but laws stating ages ranging from 9 to 21 do exist. In some jurisdictions, the age of consent takes account of a mental or functional age, [2] so that victims can be of any chronological age if their mental age is below the age of consent. [3]

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).

Homosexuality

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. [4]

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. [4]

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. [4]

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. [5]

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. [6]

Extramarital sex

Adultery is a crime in many Muslim countries, such as Saudi Arabia, Pakistan, [7] Afghanistan, [8] [9] [10] Iran, [10] Kuwait, [11] Maldives, [12] Morocco, [13] Oman, [14] Mauritania, [15] United Arab Emirates, [16] [17] Qatar, [18] Sudan, [19] and Yemen. [20]

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 perpetuating male domination. Approximately 125 million girls and women are victims of female genital mutilation throughout the world. [21] 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. [22] [23] [24] 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". [23]

Most countries prohibit female genital mutilation, [25] including prohibiting the procedure to be performed on its citizens and residents while outside their jurisdictions, [26] and the New York State Penal Law lists female genital mutilation as a sexual offense.

See also

Related Research Articles

The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape. The person below the minimum age is regarded as the victim, and their sex partner is regarded as the offender, unless both are underage. The purpose of setting an age of consent is to protect an underage person from sexual advances.

Consensual crime

A consensual crime is a public-order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful. Legislative bodies and interest groups sometimes rationalize the criminalization of consensual activity because they feel it offends cultural norms, or because one of the parties to the activity is considered a "victim" despite their informed consent.

Sodomy laws in the United States

Sodomy laws in the United States, which outlawed a variety of sexual acts, were inherited from colonial laws in the 1600s. While they often targeted sexual acts between persons of the same sex, many 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 that state's criminalization of consensual sodomy between same-sex partners, 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 Bill is a consenting adult law, passed in California in 1975 and effective in January 1976, that repealed the sodomy law in California so that it applied only in criminal situations and made gay sex legal for the first time. George Moscone, an early proponent of gay rights, in conjunction with his friend and ally in the Assembly, Willie Brown, managed to get the bill passed, 21-20, repealing the existing Californian laws against sodomy. The amendment was signed into law by California Governor Jerry Brown. The Assembly had a much easier time passing the bill, with final vote on AB 489 being 45-26. Gov. Brown signed the bill on May 12, 1975.

The legal age of consent for sexual activity varies by jurisdiction across Asia, from age 9 to 21 years of age. 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, for example in Indonesia.

The ages of consent for sexual activity vary by jurisdiction across Australia, New Zealand and other parts of Oceania, ranging from age 15 to age 18. The specific activity engaged in or the gender of its participants can also be affected by the law. 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. Close in age exceptions may exist and are noted when relevant. 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, the Cook Islands, Samoa, Tonga and Tuvalu; it is outlawed for both men and women in the Solomon Islands. In all other places the age of consent is equal, regardless of sexual orientation or gender.

Ages of consent in Africa

The age of consent in Africa for sexual activity varies by jurisdiction across the continent. The specific activity engaged in or the gender of its participants can also affect this age and the legality of sexual activity. 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 person who is also at or above that age. Other variables, for example homosexual and/or sodomy provision(s) that are illegal or close in age exceptions may exist and are stated when relevant.

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, or where the person is under threat or manipulation, or with a person who is incapable of valid consent. It is the name of a statutory crime in jurisdictions such as England and Wales, Northern Ireland, Scotland, California, and New York, and is a legal term of art used in the definition of the offence of sexual violation in New Zealand.

The age of consent for sexual activity refers to an age at or above which an individual can engage in unfettered sexual relations with another who is of the same age or older. This age varies by jurisdiction across South America, codified in laws which may also stipulate the specific activities that are permitted or the gender of participants for different ages. Other variables may exist, such as close-in-age exemptions.

<i>National Coalition for Gay and Lesbian Equality v Minister of Justice</i>

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.

Sodomy law 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, and bestiality. In practice, sodomy laws have rarely been enforced against heterosexual couples, and have mostly been used to target homosexuals.

Ages of consent in the United States The laws of the US with regard to age of consent

In the United States, age of consent laws regarding sexual activity are made at the state level. There are several federal statutes related to protecting minors from sexual predators, but laws regarding specific age requirements for sexual consent are left to individual states, District of Columbia, and territories. 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.

LGBT rights in Nevada

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Nevada enjoy the same liberties experienced by non-LGBT Nevadans. Same-sex marriage has been legal since October 8, 2014, due to the federal Ninth Circuit Court of Appeals ruling in Sevcik v. Sandoval. Same-sex couples may also enter a domestic partnership status that provides many of the same rights and responsibilities as marriage. However, domestic partners lack the same rights to medical coverage as their married counterparts and their parental rights are not as well defined. Same-sex couples are also allowed to adopt, and state law prohibits unfair discrimination on the basis of sexual orientation and gender identity, among other categories, in employment, housing and public accommodations. In addition, conversion therapy on minors is outlawed in the state.

LGBT rights in Kentucky

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. commonwealth of Kentucky have most of the same rights as non-LGBT persons have, but still face some legal challenges not experienced by other people. Same-sex sexual activity is legal in Kentucky. Same-sex couples and families headed by same-sex couples are not eligible for all of the protections available to opposite-sex married couples. On February 12, 2014, a federal judge ruled that the state must recognize same-sex marriages from other jurisdictions, but the ruling was put on hold pending review by the Sixth Circuit. Same sex-marriage is now legal in the state under the U.S. Supreme Court ruling in Obergefell v. Hodges. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages, and all other same sex marriage bans elsewhere in the country, was handed down on June 26, 2015.

Capital punishment for homosexuality was implemented by a number of countries worldwide. It currently remains a legal punishment in several countries and regions, all of which have sharia-based criminal laws. Being prescribed by the law does not necessarily mean that the penalty is carried out in practice. Gay people also face extrajudicial killings by state and non-state actors, as in Chechnya in 2019.

References

  1. 1 2 Waites, Matthew (2005). The Age of Consent: Young People, Sexuality and Citizenship. Palgrave Macmillan. ISBN   978-1-4039-2173-4.
  2. "Archived copy". Archived from the original on 5 June 2013. Retrieved 30 June 2013.CS1 maint: archived copy as title (link) [ permanent dead link ] "Archived copy". Archived from the original on 5 June 2013. Retrieved 30 June 2013.CS1 maint: archived copy as title (link) [ permanent dead link ]
  3. "Archived copy". Archived from the original on 12 October 2007. Retrieved 12 October 2007.CS1 maint: archived copy as title (link) [ permanent dead link ] "Archived copy". Archived from the original on 5 June 2013. Retrieved 30 June 2013.CS1 maint: archived copy as title (link)
  4. 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.
  5. "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.
  6. 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.
  7. Jordan, Mary (21 August 2008). "Searching for Freedom, Chained by the Law". The Washington Post. Retrieved 3 August 2013.
  8. 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.
  9. "Home". AIDSPortal. Archived from the original on 26 October 2008. Retrieved 2 August 2013.
  10. 1 2 "Iran". Travel.state.gov. Archived from the original on 1 August 2013. Retrieved 3 August 2013.
  11. "United Nations Human Rights Website - Treaty Bodies Database - Document - Summary Record - Kuwait". Unhchr.ch. Retrieved 2 August 2013.
  12. "Culture of Maldives". Every Culture. Retrieved 3 August 2013.
  13. Fakim, Nora (9 August 2012). "Morocco: Should pre-marital sex be legal?". BBC News.
  14. "www.interpol.com" (PDF). Archived from the original (PDF) on 16 May 2016.
  15. "2010 Human Rights Report: Mauritania". State.gov. 8 April 2011. Retrieved 2 August 2013.
  16. "Education in Dubai". Dubaifaqs.com. Retrieved 2 August 2013.
  17. Judd, Terri; Sajn, Nikolina (10 July 2008). "Briton faces jail for sex on Dubai beach". The Independent. Retrieved 3 August 2013.
  18. ""Sex outside of marriage is a criminal offense here," PH ambassador to Qatar warns Pinoys". SPOT.ph. 12 September 2011. Retrieved 3 August 2013.
  19. "Sudan must rewrite rape laws to protect victims". Reuters. 28 June 2007. Retrieved 2 August 2013.
  20. "Women's Rights in the Middle East and North Africa - Yemen". Unhcr.org. Retrieved 2 August 2013.
  21. Payne, Richard (2017). Global Issues: Politics, Economics, and Culture. Pearson Education. p. 164. ISBN   978-0-13-420205-1.
  22. Koroma, Hannah (30 September 1997). "What is Female Genital Mutilation?". Amnesty International . Retrieved 5 February 2013.
  23. 1 2 "Female genital mutilation". World Health Organization . Retrieved 22 August 2012.
  24. 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.
  25. Laws of the world on female genital mutilation
  26. McVeigh, Tracy and Sutton, Tara. "British girls undergo horror of genital mutilation despite tough laws", The Guardian , 25 July 2010.