Laws Relating to Sex, Pregnancy, and Infancy

Issues in Criminal Justice

Carmen M. Cusack

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781349700554, 9781137505187
• eBook ISBN: 9781137505194
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Laws Relating to Sex, Pregnancy, and Infancy examines case law and legislation in regards to reproduction, pregnancy, and infancy. Cusack explores the winding pathways of legal precedence and action on the social conditions of pregnancy and childbirth, and draws from criminal and court procedures and behavioral science to determine if the law is acting in the best interest of those vulnerable populations. Cusack surveys interpersonal, familial, and societal problems presented throughout history and currently facing contemporary generations, questioning whether the criminal justice system can evolve to support the growing needs of its citizens most in need of legal assistance.

Chapter 1

Sex

Morality

The government regulates sex, sexuality, morality, and family structure. Legislation and regulation of morality have been traditional state powers. Under the Constitution, the state is authorized to use police power to enforce morality laws. Morality laws affecting sex include laws prohibiting consensual harmful sex (i.e., bondage and sadomasochism). The government regulated non-harmful consensual sodomy prior to 2003. However, following Lawrence v. Texas (2003), police power can no longer be used by the state to prevent homosexuals or heterosexuals from non-harmful private sexual relations.

Numerous fetishes (e.g., exhibitionism) are banned. Some fetishes are banned because they harm individuals or society. For example, the City of Sandy Springs, Georgia bans adult toys because it believes they are offensive and obscene (Dixon, 2014; Ordinance No. 38–119, 2009). Thus, obscenity is not protected under Miller v. California (2003). The city also claims to have a substantial interest in protecting itself from crime (i.e., secondary effects) caused by adult establishments (e.g., prostitution and vagrancy). Secondary effects may not be limited to increased crime associated with vice. They may possibly also include domestic violence correlated with pornography. For example, research indicates that women who are coerced to watch pornography with their partners are significantly likelier to be victims of domestic violence (Cramer, 1998). Thus, stores selling pornographic materials may be linked to domestic violence, even though, according to the Rational Choice Theory, adult establishments are not the proximate cause of domestic violence. Yet fetishes, like exhibitionism, are illegal even when those crimes are victimless, because decency laws are designed to prohibit sexual immorality. For example, indecent exposure inside a vehicle may be illegal even if no one witnesses the crime.

Family structure was traditionally regulated under morality-based laws. For example, criminal law, civil law, and family law were traditionally used to prevent homosexual couples from marrying and adopting children. As Constitutional law has been newly interpreted by the courts, use of police power to regulate family structure has shifted in some jurisdictions. Shifts reflect judicial activism; contemporary attitudes toward homosexuality; and evolved understandings of family. For example, some jurisdictions currently permit same-sex marriage under the Fourteenth Amendment and Fifth Amendment. Adoption by same-sex couples has been permitted under best-interest-of-the-child standards (In re Gill, 2008). States conclude that despite traditional morality, children in foster care would not likely experience adverse consequences from being adopted by same-sex parents; and, the state and children would benefit from increased adoption rates.

Consent

Consent is freely given assent and agreement (Cusack, 2014). Legally cognizable consent is both a complicated area of law and a facet of interpersonal relationships. Non-consent is discussed further in Chapter 15. Conditions that void consent in some jurisdictions include minority, intoxication, and incapacitation because they cause consent to lack legal force or knowledge. Incapacitation could include sleep and unconsciousness.

Consent must be knowing; thus, implicit consent apparently granted during incapacitation may not be knowing. Most jurisdictions define incapacitation to include sleep, but sleep is not necessarily an incapacitated state. Generally, defendants may defend by claiming that they did not know that a victim was sleeping or incapacitated (10 U.S.C. §920b. Art. 120b, 2014).

Intoxication may make consent void or voidable in some jurisdictions. Intoxication may be considered to be a victim’s state of mind. Since intoxication changes or clouds a victim’s mind, intoxication may void or make assent voidable when a victim cannot freely and knowingly consent. Mental incapacitation voids consent. If an intoxicated victim is considered to be mentally incapacitated (e.g., blacked out), then that victim will not have consented. However, intoxication does not necessarily result in mental incapacitation. Degree and voluntariness of intoxication, as well as stare decisis, will influence whether intoxication constitutes mental incapacitation or vitiates consent.

Some jurisdictions provide heightened protections for victims by distinguishing mental incapacitation from intoxication. One difference may be the force required to demonstrate an absence of freedom. Distinctions may become relevant when intoxicated victims can remember consenting but do not believe that their consent was voluntary. A victim’s state of mind is always relevant; thus, intoxication could impact victim credibility (Stone, 2013). Statutes may potentially create strict liability for intoxication or permit any amount of intoxication to meet legal elements; however, in some jurisdictions, intoxication may not have any effect on the validity of consent. In jurisdictions without intoxication provisions, victims’ credibility may be doubted because they were intoxicated. Evidence of intoxication could become relevant when parties dispute whether consent was express or implied. Express and implied consent are discussed in Chapter 15.

Future laws may benefit from more-precise definitions about the legal effect of intoxication on incapacitation because, one, women are more likely to be raped while intoxicated and, two, approximately half of sexual assaults involve alcohol. Intoxicated women are more likely to be victims of sexual assault than sober women, sober men, or intoxicated men. Yet, legislatures must protect each gender equally from sexual assault. Laws protecting individuals from predatory or opportunistic crimes involving alcohol can be precarious because perceptions of and relationships between alcohol and sex may be relative to culture, gender norms, education, gender rules, age, environment, and rape myths (Cowley, 2014). Thus, predatory or opportunistic behaviors may be normalized in some environments. Researchers have found that women who consume alcohol were more likely to associate alcohol use with sex, but women who did not consume alcohol were more likely to associate alcohol consumption with coercion (Untied, Orchowski, and Lazar, 2013).

Legislatures may help reduce risk of sexual victimization by increasing deterrence, especially by deterring sexual victimization of children (Walsh, 2013). Researchers sampled 546 female college students. They found that childhood sexual abuse correlated with revictimization. Respondents’ expectations for relationships between sex and alcohol correlated with risky sexual activity; perceptions of low sexual control; alcohol-related revictimization; and childhood sexual abuse. Legislators could consider providing child victims with programs designed to reduce risk of substance use and revictimization.

Minority voids sexual consent. Voluntary sexual intercourse with a postpubescent minor who is younger than the legal age of consent is described as statutory rape. Statutory rape would be consensual sex except for legally imposed age limits on consent. This is discussed further in Chapter 15. In most states, age of consent is delimited between 16 years old and 18 years old. For certain kinds of charges (e.g., unlawful sexual activity), age limitations may be relevant to partners’ ages and to the difference in years between the victim and the offender (Fla. Stat. § 794.05, 2014). For example, elements may not be met if one partner is 17 years old and one partner is 20 years old. In some jurisdictions, minors may lawfully engage in sexual encounters with peers of the same age. However, in other jurisdictions, minors have no right to consent to any sexual activity. Thus, a minor may be a victim and an offender (Womancare of Orlando v. Agwunobi, 2006). In almost every jurisdiction, prepubescent children may not engage in any sexual contact. Thus, children younger than twelve, for example, could potentially be held culpable for voluntarily participating in sexual contact with one another in some jurisdictions. Engaging in sexual contact with a prepubescent child is a serious criminal offense and a felony.

Parents possess a fundamental right to raise their children and to direct children’s moral upbringing; however, parental assent does not legally grant sexual consent to children. Children may be removed from their parents’ home if parents permit children to be statutorily raped. Some violations seem merely to bend cultural norms in favor of harmless sexual deviance, but other violations are patently egregious. For example, a 19-year-old partner dating a 15-year-old partner would be distinguishable from the case of In the Matter of Martha A. (2010). In that case, a mother began having sex with a 25-year-old man after that man twice impregnated her 14-year-old daughter. He also smoked marijuana with her daughter; and he slept in the same room as another of her children, a 12-year-old daughter, on whom he created a hickey mark. The court said that the mother “show[ed] such poor judgment and flawed understanding of the mother’s role as a caretaker over a period of years as to place the children at risk of imminent harm” (In the Matter of Martha A., 2010, p. 478). That mother’s children were removed. Removal is discussed is Chapter 12.

Parents and the court can consent to marriage, which emancipates minors and makes statutory rape laws irrelevant between spouses. Thus, emancipation may be a complete defense (State v. Plude, 1993). However, minors who were emancipated through marriage, but not through court order, may potentially revert to being minors under statutory rape laws if they divorce before turning 18 years old (Fla. Stat. § 39.01, 2014). For example, under the Uniform Code of Military Justice (UCMJ) “[a] child not legally married [at the time of the offense] to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force” (10 U.S.C. §920b. Art. 120b, 2014). Emancipation is discussed further in Chapter 14.

In some jurisdictions, minority may create strict liability; or, a defendant’s knowledge of a victim’s age may be required to satisfy the elements. Some jurisdictions hold any defendant culpable for engaging in voluntary, nonconsensual sex with minors. Jurisdictions may only hold defendants culpable if they should have or could have reasonably known a victim’s age. For example, a victim who appears to be a young teen may be presumed to be lying about being an adult if the defendant knows that the child attends middle school. Defendants will be prosecuted for production and transmission of child pornography if they knew a minor victim’s age (U.S. v. X-Citement Video, 1994). In some jurisdictions (i.e., California) emancipation and marriage may provide a defense to child pornography prosecution, but in other jurisdictions (e.g., Missouri) they will not (U.S. v. Stringer, 2014). In some jurisdictions, defendants may be strictly liable. Defendants charged with sexual contact with minors have argued constructive emancipation when minors live without parents and provide for themselves; however, these defenses often fail when a defendant knew or should have known a victim’s age; or in jurisdictions that hold defendants strictly liable (People v. Perry, 2012). Thus, legal emancipation by court order is distinguishable from constructive emancipation under many statutory schemes (Feliciano v. State, 2006; Womancare of Orlando, Inc. v. Agwunobi, 2006).

Voluntary and Involuntary

Relationships between consent and voluntariness are somewhat circuitous. Consensual sexual activity is sanctioned under the law. Involuntary sexual contact is never consensual; but, it may be legal in jurisdictions that define force, but not consent, as an element of sexual assault. Consensual sexual activity is always voluntary; however, voluntary sex acts may be nonconsensual under the law. Involuntary sex acts are further discussed throughout Chapter 15. Voluntary sex may include incest or violent sex; but those acts are typically considered to be nonconsensual (i.e., illegal). Incestuous sexual activity is illegal. Definitions of incest may include step-relatives and distant cousins, or may include only immediate family. Each jurisdiction defines incest. Many definitions include biological first cousins, aunts and uncles, grandparents, and relatives of similar familial proximity by marriage, consanguinity, or adoption.

Voluntarily incestuous sex between adults is illegal. Parents may be held culpable for violating children even when children are older than 18 years old (U.S. v. Vigil, 2003). In one case, minors between the ages of 18 years old and 21 years old were held to be vulnerable child victims because of the special position of authority held by a parent, stepparent, or adopted parent. This is because young adults may feel coerced by parents; fear the consequences of noncompliance with sexual requests; or trust that parents will not harm them (U.S. v. Hargrove, 2005; U.S. v. Martinez-Carillo, 2001).

Adults cannot consent to violent sexual activity (Cusack, 2015). Right to Privacy under the Fifth Amendment and Fourteenth Amendment protects private consensual sexual activity between adults. However, sexual activity must be non-harmful (Lawrence v. Texas, 2003). In many jurisdictions, people who knowingly and voluntarily engage in self-harm may be charged with battery, aggravated battery, or other crimes. More likely than not, people who self-harm may be institutionalized, which is a civil remedy. In some jurisdictions, people can consent to be harmed because battery laws only apply when an actor harms another person (Spindelman, 2013). In some situations (e.g., sports), consent may be a defense for committing a battery upon another; but it is not a defense when batteries occur during sexual activity (Rapp, 2008). Harmful sex acts vitiate consent for sex and participants can be charged with sexual assault, battery, aggravated sexual battery, and other violations (Cusack, 2014).

Chapter 2

Birth Control

History of Birth Control, Planned Parenthood, and Women’s Privacy Rights

Birth control has been controversial for more than two centuries. Early attempts to create birth control made by Charles Goodyear included vulcanized rubber for condoms; syringes for douching; diaphragms called “womb veils”; and intrauterine devices (PBS, n.d.). Early in the 1900s, the government began persecuting Margaret Sanger and others for providing information about birth control and contraceptives (Message Photo-Play Co., Inc. v. Bell, 1917). Sanger opened the first birth control clinic in 1916 (People v. Sanger, 1917). Her sister and friend assisted her to distribute information about birth control to women in New York. After little more than one week, the New York City vice squad, led by an undercover police officer posing as a patient, searched and seized the clinic, along with patients’ records, diaphragms, and condoms; and they arrested Sanger (Wardell, 1980). Ethel Byrne, Sanger’s sister, was convicted of selling literature about birth control in contravention of New York Penal Law § 1142 (People v. Byrne, 1917). Byrne claimed that the law violated the Constitution because it unreasonably interfered with women’s rights not to bear children. The court noted that the unlawful literature sold by Byrne, “What...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• 1 Sex
• 2 Birth Control
• 3 Fakers
• 4 Baby Snatching
• 5 Animals
• 6 Freedom of Religion
• 7 Food
• 8 Pornography
• 9 Pregnant Criminal Justice Employees
• 10 Civil-Criminal Crossover
• 11 Criminal Justice Environments
• 12 Parental Duty, Child Maltreatment, and State Control
• 13 Pregnant on Drugs
• 14 Parents
• 15 Physical Violence
• 16 Illness
• 17 International and Comparative
• Bibliography
• Index