Chapter One Sex and the Law In 1963, H. L. A. Hart, Oxford Professor of Jurisprudence, gave three lectures at Stanford University. In these lectures (published by the Stanford University Press as Law, Liberty and Morality ) Professor Hart attempted to answer an old question: Is the fact that certain conduct is by common standards immoral a sufficient cause to punish that conduct by law? A question which leads him to what might be a paradox: "Is it morally permissible to enforce morality as such? Ought immorality as such to be a crime?" Philosophically, Professor Hart inclines to John Stuart Mill's celebrated negative. In On Liberty , Mill wrote, "The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others"; and to forestall the arguments of the paternally minded, Mill added that a man's own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right. Now it would seem that at this late date in the Anglo-American society, the question of morality and its relation to the law has been pretty much decided. In general practice, if not in particular statute, our society tends to keep a proper distance between the two. Yet national crisis may, on occasion, bring out the worst in the citizenry. While our boys were Over There, a working majority of the Congress decided that drink was not only bad for morals but bad for health. The result was Prohibition. After a dozen years of living with the Great Experiment, the electorate finally realized that moral legislation on such a scale is impossible to enforce. A lesson was learned and one would have thought it unlikely that the forces which created the Volstead Act could ever again achieve a majority. But today strange things are happening in the American Empire, as well as in the Kingdom across the water where Professor Hart detects a revival of what he calls "legal moralism," and he finds alarming certain recent developments. In the days of the Star Chamber, to conspire to corrupt public morals was a common-law offense. Needless to say, this vague catchall turned out to be a useful instrument of tyranny and it was not entirely abandoned in England until the eighteenth century. Now it has been suddenly revived as a result of the 1961 case Shaw v. Director of Public Prosecutions . Shaw was an enterprising pimp who published a magazine called Ladies Directory , which was just that. Despite this useful contribution to the gallantry of England, Shaw was found guilty of three offenses: publishing an obscene article, living on the earnings of prostitutes, and conspiring to corrupt public morals. The last offense delighted the legal moralists. There was much satisfied echoing of the eighteenth-century Lord Mansfield's statement, "Whatever is contra bonos mores et decorum the principles of our laws prohibit and the King's Court as the general censor and guardian of the public morals is bound to restrain and punish." As a result of the decision against Mr. Shaw, the possibilities of banning a book like Lady Chatterley's Lover on the imprecise grounds that it will corrupt public morals (themselves ill-defined) are endless and alarming. Though various American states still retain "conspiring to corrupt" statutes, they are largely cherished as relics of our legal origins in the theocratic code of Oliver Cromwell. The last serious invoking of this principle occurred in 1935 when the Nazis solemnly determined that anything was punishable if it was deserving of punishment according "to the fundamental conceptions of penal law and sound popular feeling." Defining immorality is of course not an easy task, though English judges and American state legislatures seem not to mind taking it on. Lord Devlin, a leader of the legal moralists, has said that "the function of the criminal law is to enforce a moral principle and nothing else." How does Lord Devlin arrive at a moral principle? He appeals to the past. What is generally said to be wrong is wrong, while "a recognized morality is as necessary to society's existence as a recognized government." Good. But Lord Devlin does not acknowledge that there is always a considerable gap between what is officially recognized as good behavior and what is in actual fact countenanced and practiced. Though adultery in England is thought to be morally wrong, there are no statutes under which a man may be punished for sleeping with someone else's wife. Adultery is not a legal offense, nor does it presumably arouse in the public "intolerance, indignation, and disgust," the three emotions which Lord Devlin insists are inevitably evoked by those acts which offend the accepted morality. Whenever this triad is present, the law must punish. Yet how is one to measure "intolerance, indignation, and disgust"? Without an appeal to Dr. Gallup, it would be difficult to decide what, if anything, the general public really thinks about these matters. Without a referendum, it is anyone's guess to what degree promiscuity, say, arouses disgust in the public. Of course Lord Devlin is not really arguing for this sort of democracy. His sense of right and wrong is based on what he was brought up to believe was right and wrong, as prescribed by church and custom. In the realm of sexual morals, all things take on a twilight shade. Off and on for centuries, homosexuality has aroused the triple demon in the eyes of many. But a majority? It would be surprising if it did, knowing what we now know about the extent--if not the quality--of human sexual behavior. In any case, why should homosexual acts between consenting adults be considered inimical to the public good? This sort of question raises much heat, and the invoking of "history." According to Lord Devlin, "the loosening of moral bonds is often the first stage of [national] disintegration." Is it? The periods in history which are most admired by legal moralists tend to be those vigorous warlike times when a nation is pursuing a successful and predatory course of military expansion, such as the adventures of the Spartans and Alexander, of Julius Caesar and Frederick of Prussia. Yet a reading of history ought to convince Lord Devlin that these militaristic societies were not only brutish and "immoral" by any standard but also startlingly homosexual. Yet what was morally desirable in a clean-limbed Spartan army officer is now punished in Leicester Square. Obviously public attitudes have changed since those vigorous days. Does that then mean that laws should alter as old prejudices are replaced by new? In response to public opinion, the Emperor Justinian made homosexuality a criminal offense on the grounds that buggery, as everyone knew, was the chief cause of earthquakes. With the decline of Christianity, western moralists have more and more used the state to punish sin. One of Lord Devlin's allies, J. G. Stephen, in Liberty, Equality, Fraternity , comes straight to the point. Referring to moral offenders, he writes, "The feeling of hatred and the desire of vengeance are important elements to human nature which ought, in such cases, to be satisfied in a regular public and legal manner." There is the case not only for capital punishment but for public hangings, all in the name of the Old Testament God of vengeance. Or as Lord Goddard puts it, "I do not see how it can be either non-Christian, or other than praiseworthy, that the country should be willing to avenge crime." Yet Mr. Stephen also realizes that for practical purposes "you cannot punish anything which public opinion as expressed in the common practice of society does not strenuously and unequivocally condemn. To be able to punish a moral majority must be overwhelming." But is there such a thing as moral majority in sexual matters? Professor Hart thinks not. "The fact that there is lip service to an official sexual morality should not lead us to neglect the possibility that in sexual, as other matters, there may be a number of mutually tolerant moralities, and that even where there is some homogeneity of practice and belief, offenders may be viewed not with hatred or resentment, but with amused contempt or pity." In the United States the laws determining correct human behavior are the work of the state legislatures. Over the years these assemblies have managed to make a complete hash of things, pleasing no one. The present tangled codes go back to the founding of the country. When the Cromwells fell, the disgruntled Puritans left England for Holland (not because they were persecuted for their religious beliefs but because they were forbidden to persecute others for their beliefs). Holland took them in, and promptly turned them out. Only North America was left. Here, as lords of the wilderness, they were free to create the sort of quasi-theocratic society they had dreamed of. Rigorously persecuting one another for religious heresies, witchcraft, sexual misbehavior, they formed that ugly polity whose descendants we are. As religious fundamentalists, they were irresistibly drawn to the Old Testament God at his most forbidding and cruel, while the sternness of St. Paul seemed to them far more agreeable than the occasional charity of Jesus. Since adultery was forbidden by the Seventh Commandment and fornication was condemned in two of St. Paul's memos, the Puritans made adultery and fornication criminal offenses even though no such laws existed in England, before or after Cromwell's reign. As new American states were formed, they modelled their codes on those of the original states. To this day, forty-three states will punish a single act of adulterous intercourse, while twenty-one states will punish fornications between unmarried people. In no other western country is fornication a criminal offense. As for adultery, England, Japan, and the Soviet Union have no such statutes. France and Italy will punish adultery under special conditions (e.g., if the man should establish the mistress in the family home). Germany and Switzerland punish adultery only if a court can prove that a marriage has been dissolved because of it. In actual practice, the state laws are seldom invoked, although two hundred and forty-two Bostonians were arrested for adultery as recently as 1948. These statutes are considered "dead-letter laws" and there are those who argue that since they are so seldom invoked, why repeal them? One answer came in 1917 when a number of racketeers were arrested by the Federal government because they had taken girl friends to Florida, violating the Mann Act as well as the local fornication-adultery statutes. This case ( Caminetti v. U.S. ) set a dangerous precedent. Under a busy Attorney General, the "dead-letter laws" could be used to destroy all sorts of dissidents, villainous or otherwise. Rape is another offense much confused by state laws. During the Thirties, out of 2,366 New York City indictments for rape, only eighteen percent were for forcible rape. The remaining eighty-two percent were for statutory rape, a peculiar and imprecise crime. For instance, in Colorado it is statutory rape if intercourse takes place between an unmarried girl under eighteen and a man over eighteen. In practice this means that a boy of nineteen who has an affair with a consenting girl of seventeen is guilty of statutory rape. All the girl needs to do is to accuse her lover of consensual relations and he can be imprisoned for as long as fifty years. There are thousands of "rapists" serving time because, for one reason or another, they were found guilty of sexual intercourse with a willing partner. In nearly every state fellatio, cunnilingus, and anal intercourse are punished. Not only are these acts forbidden between men, they are forbidden between men and women, within as well as without wedlock. As usual, the various state laws are in wild disarray. Ohio deplores fellatio but tolerates cunnilingus. In another state, sodomy is punished with a maximum twenty-year sentence, while fellatio calls for only three years, a curious discrimination. Deviate sexual acts between consenting adults are punished in most states, with sentences running from three years to life imprisonment. Of the other countries of the West, only the Federal German Republic intrudes itself upon consenting adults. Elsewhere in the field of moral legislation, twenty-seven states forbid sexual relations and/or marriage between the white race and its "inferiors": blacks, American Indians, Orientals. And of course our narcotics laws are the scandal of the world. With the passage in 1914 of the Harrison Act, addiction to narcotics was found to be not the result of illness or bad luck but of sin, and sin must of course be punished by the state. For half a century the Federal government has had a splendid time playing cops and robbers. And since you cannot have cops without robbers, they have created the robbers by maintaining that the sinful taking of drugs must be wiped out by law. As a result, the government's severity boosts the price of drugs, makes the game more desperate for addicts as well as pushers, and encourages crime which in turn increases the payroll of the Narcotics Bureau. This lunatic state of affairs could exist only in a society still obsessed by the idea that the punishing of sin is the responsibility of the state. Yet in those countries where dope addiction is regarded as a matter for the doctor and not the police, there can be no criminal traffic in drugs. In all of England there are 550 drug addicts. In New York City alone there are 23,000 addicts. Theoretically, the American separation of church and state should have left the individual's private life to his conscience. But this was not to be the case. The states promptly took it upon themselves to regulate the private lives of the citizens, flouting, many lawyers believe, the spirit if not the letter of the Constitution. The result of this experiment is all around us. One in eight Americans is mentally disturbed, and everywhere psychiatry flourishes. Our per capita acts of violence are beyond anything known to the other countries of the West. Clearly the unique attempt to make private morality answerable to law has not been a success. What to do? On April 25, 1955, a committee of the American Law Institute presented a Model Penal Code (tentative draft No. 4) to the Institute, which was founded some forty years ago "to promote the clarification and simplification of the law and its better adaptation to social needs." This Code represented an attempt to make sense out of conflicting laws, to remove "dead-letter laws" which might, under pressure, be used for dark ends, and to recognize that there is an area of private sexual morality which is no concern of the state. In this the Code echoed the recommendation of the British Wolfenden Report, which said: "Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business." The drafters of the Code proposed that adultery and sodomy between consenting adults be removed from the sphere of the law on the grounds that "the Code does not attempt to use the power of the state to enforce purely moral or religious standards. We deem it inappropriate for the government to attempt to control behavior that has no substantial significance except as to the morality of the actor. Such matters are best left to religious, educational and other influences." The Committee's recommendation on adultery was accepted. But on sodomy, Judge John J. Parker spoke for the legal moralists: "There are many things that are denounced by the criminal civil code in order that society may know that the state disapproves. When we fly in the face of public opinion, as evidenced by the code of every state in this union, we are not proposing a code which will commend itself to the thoughtful." Judge Parker was answered by Judge Learned Hand, who said, "Criminal law which is not enforced practically is much worse than if it was not on the books at all. I think homosexuality is a matter of morals, a matter very largely of taste, and it is not a matter that people should be put in prison about." Judge Hand's position was upheld by the Institute. As matters now stand, only the state of Illinois has attempted to modify its sex laws. As of 1962 there is no longer any penalty in Illinois for the committing of a deviate sexual act. On the other hand, an "open and notorious" adulterer can still be punished with a year in prison and fornication can be punished with six months in prison. So it is still taken for granted that the state has the right to regulate private behavior in the interest of public morality. One postwar phenomenon has been the slowness of the liberal community to respond to those flaws in our society which might be corrected by concerted action. It would seem to me that a change in the legal codes of the fifty American states might be an interesting occupation for the liberally inclined. As the laws stand, they affect nearly everyone; implemented, they would affect millions. Originally, the United States made a brave distinction between church and state. But then we put within the legal province of the states that which was either the concern of religion or of the moral conscience of the individual. The result has caused much suffering. The state laws are executed capriciously and though in time they may fade away, without some organized effort they could continue for generations. In fact, there are signs today that the legal conservatives are at work strengthening these laws. In Florida the administration has distributed an astonishing pamphlet denouncing homosexualists in terms of seventeenth-century grandeur. In Dallas a stripper named Candy Barr was given an unprecedented fifteen-year prison term, ostensibly because she was found with marijuana in her possession but actually because she was a sinful woman. In the words of a Dallas lawyer (Warren Leslie in Dallas, Public and Private ), the jury was "showing the world they were in favor of God, heaven, and sending to hell-fire a girl who violated their sense of morality." In these lowering days, there is a strong movement afoot to save society from sexual permissiveness. Guardians of the old-time virtue would maintain what they believe to be the status quo. They speak of "common decency" and "accepted opinion." But do such things really exist? And if they do, are they "right"? After all, there is no position so absurd that you cannot get a great many people to assume it. Lord Maugham, a former Lord Chancellor (where do they find them?), was convinced that the decline of the Roman Empire was the result of too frequent bathing. Justinian knew there was a causal link between buggery and earthquakes, while our grandparents, as Professor Steven Marcus recently reminded us, believed that masturbation caused insanity. I suspect that our own faith in psychiatry will seem as touchingly quaint to the future as our grandparents' belief in phrenology seems now to us. At any given moment, public opinion is a chaos of superstition, misinformation, and prejudice. Even if one could accurately interpret it, would that be a reason for basing the law upon a consensus? Neither Professor Hart nor the legal moralists go that far. The conservatives are very much aware that they are living in an age of "moral decline." They wish to return to a stern morality like that of Cato or of Calvin. Failing that, they will settle for maintaining existing laws, the harsher the better. Professor Hart, on the other hand, believes that between what the law says people ought to do in their private lives and what they in fact do, there is a considerable division. To the degree that such laws ought, ideally, to conform with human practice, he is a democrat. In answering those who feel that despite what people actually do, they ought not to do it, he remarks that this may be true, yet "the use of legal punishment to freeze into immobility the morality dominant at a particular time in a society's existence may possibly succeed, but even where it does it contributes nothing to the survival of the animating spirit and formal values of social morality and may do much harm to them." There is some evidence that by fits and starts the United States is achieving a civilization. Our record so far has not been distinguished, no doubt because we had a bad beginning. Yet it is always possible to make things better--as well as worse. Various groups are now at work trying to make sense of the fifty state codes. New York and California are expected to have improved codes by the end of this decade. But should there be a sudden renewal of legal moralism, attempts to modify and liberalize will fail. What is needed, specifically, is a test case before the Supreme Court which would establish in a single decision that "sin," where it does not disturb the public order, is not the concern of the state. This conception is implicit in our Constitution. But since it has never been tested, our laws continue to punish the sinful as though the state were still an arm of Church Militant. Although a Great Society is more easily attained in rhetoric than in fact, a good first step might be the removal from our statute books of that entirely misplaced scarlet letter. Partisan Review Summer 1965 Excerpted from GORE VIDAL: sexually speaking by . Copyright © 1999 by Cleis Press. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
