💑Human Sexuality Unit 13 – Sex and the Law

Key Legal Concepts

• Jurisdiction refers to the authority of a court to hear and decide a case
• Precedent is a legal principle or rule established in a previous legal case that is either binding or persuasive for a court when deciding subsequent cases with similar issues or facts
• Statutory law is written law passed by a legislature at the federal, state, or local level (Civil Rights Act)
• Common law is law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases
• Due process is a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts
  • Includes the right to be heard, the right to be treated fairly, and the right to be given advance notice
• Burden of proof is the obligation to prove allegations which are presented in a legal action
  • In criminal cases, the burden of proof is on the prosecution to prove guilt beyond a reasonable doubt
  • In civil cases, the burden of proof is typically on the plaintiff to prove their case by a preponderance of the evidence

Historical Context

• Historically, laws related to sex and sexuality have been shaped by religious beliefs, cultural norms, and societal values
• In ancient civilizations, such as Greece and Rome, same-sex relationships were often accepted and even celebrated in certain contexts
• During the Middle Ages in Europe, the Catholic Church heavily influenced laws and societal views on sex, promoting a more restrictive approach
• The Victorian era in the 19th century was characterized by strict moral codes and the suppression of sexual topics in public discourse
• The sexual revolution of the 1960s and 1970s challenged traditional views on sex and led to increased activism for women's rights and LGBTQ+ rights
• Landmark court cases, such as Roe v. Wade (1973) and Lawrence v. Texas (2003), have significantly impacted laws related to reproductive rights and same-sex relationships in the United States
• The fight for marriage equality gained momentum in the early 21st century, culminating in the Supreme Court's decision in Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide

Consent and Age of Consent

• Consent is a freely given agreement to engage in sexual activity
  • Consent must be informed, voluntary, and active
  • Consent can be withdrawn at any time
• Age of consent is the age at which an individual is considered legally competent to consent to sexual acts
  • Varies by country and sometimes by state or region within a country
  • In the United States, the age of consent ranges from 16 to 18 years old, depending on the state
• Statutory rape is sexual activity in which at least one person is below the age of consent
  • Even if the underage person willingly engages in the sexual activity, it is still considered statutory rape
• Sexual activity with a person who is incapacitated due to drugs, alcohol, or a mental or physical condition is not considered consensual
• Affirmative consent, or "yes means yes," is a standard adopted by some jurisdictions that requires clear, voluntary, and conscious agreement to engage in sexual activity
• Power imbalances, such as those between a teacher and student or an employer and employee, can complicate the issue of consent

Marriage and Partnerships

• Marriage is a legal union between two individuals, which grants certain rights and responsibilities
• In the United States, marriage is regulated by state law, and each state has its own requirements for marriage licenses and ceremonies
• Common law marriage is a legal framework where a couple is considered married without a formal ceremony or license, based on their cohabitation and public presentation as a married couple
  • Recognized in a minority of U.S. states
• Domestic partnerships and civil unions are legal relationships that provide some of the benefits of marriage to unmarried couples
  • Often used by same-sex couples before the legalization of same-sex marriage
• Prenuptial agreements are contracts entered into by couples before marriage that outline the division of assets and responsibilities in the event of a divorce
• No-fault divorce allows a couple to divorce without requiring one party to prove wrongdoing by the other
  • Available in all U.S. states, though some states also retain fault-based divorce options
• Same-sex marriage was legalized nationwide in the United States by the Supreme Court's decision in Obergefell v. Hodges (2015)

Reproductive Rights

• Reproductive rights encompass the right to decide whether and when to have children, as well as the right to access reproductive healthcare
• Contraception, such as birth control pills and condoms, allows individuals to prevent pregnancy
  • In Griswold v. Connecticut (1965), the Supreme Court ruled that married couples have a constitutional right to privacy, which includes the right to use contraception
  • This right was later extended to unmarried individuals in Eisenstadt v. Baird (1972)
• Abortion is the termination of a pregnancy
  • In Roe v. Wade (1973), the Supreme Court ruled that a woman's right to privacy under the Due Process Clause of the 14th Amendment extended to her decision to have an abortion
  • Planned Parenthood v. Casey (1992) upheld the central ruling of Roe but allowed states to impose certain restrictions on abortion access
• Sterilization is a permanent form of birth control that involves surgically altering the reproductive organs to prevent pregnancy
  • Historically, forced sterilization was used as a tool of eugenics and disproportionately targeted marginalized communities
• Assisted reproductive technologies, such as in vitro fertilization (IVF), help individuals who are struggling to conceive
• Surrogacy is an arrangement where a woman agrees to carry and give birth to a child for another person or couple
  • Laws regarding surrogacy vary widely by jurisdiction

Sex Work and Prostitution

• Sex work is the provision of sexual services for money or goods
  • Includes prostitution, pornography, and other forms of sexual labor
• Prostitution is the practice of engaging in sexual activity for payment
  • Legal status varies widely by country and jurisdiction
• In the United States, prostitution is illegal in most states, with the exception of some counties in Nevada
• Criminalization of prostitution can lead to increased risks for sex workers, including violence, exploitation, and difficulty accessing healthcare and legal services
• Some advocates argue for the decriminalization or legalization of prostitution to improve working conditions and reduce harm to sex workers
• Human trafficking, which often involves forced prostitution, is a serious criminal offense under both federal and state laws in the United States
• The Mann Act, passed in 1910, prohibits the transportation of individuals across state lines for the purpose of prostitution or other illegal sexual activities
• Pornography is protected under the First Amendment as a form of free speech, but obscenity is not
  • The Supreme Court has struggled to define obscenity, leading to the development of the Miller test in Miller v. California (1973)

LGBTQ+ Rights and Legislation

• LGBTQ+ rights refer to the legal and social equality of lesbian, gay, bisexual, transgender, and queer individuals
• Sodomy laws, which criminalized certain sexual acts between consenting adults, were often used to target LGBTQ+ individuals
  • In Lawrence v. Texas (2003), the Supreme Court struck down sodomy laws as unconstitutional
• The Stonewall Riots of 1969, a series of spontaneous demonstrations against a police raid of the Stonewall Inn in New York City, catalyzed the modern LGBTQ+ rights movement
• In 1993, "Don't Ask, Don't Tell" was implemented, allowing gay, lesbian, and bisexual individuals to serve in the U.S. military as long as they did not disclose their sexual orientation
  • This policy was repealed in 2011
• The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (2009) expanded federal hate crime law to include crimes motivated by a victim's actual or perceived sexual orientation or gender identity
• The Supreme Court's decision in Obergefell v. Hodges (2015) legalized same-sex marriage nationwide
• Many states have passed laws protecting LGBTQ+ individuals from discrimination in employment, housing, and public accommodations
  • However, there is no comprehensive federal law providing such protections
• Transgender rights, including access to gender-affirming healthcare and the ability to change legal documents to reflect one's gender identity, vary widely by state

Sexual Offenses and Criminal Law

• Sexual offenses are criminal acts that involve non-consensual sexual contact or behavior
• Rape is sexual intercourse or penetration without the consent of the victim
  • Definitions of rape vary by jurisdiction, but generally include vaginal, anal, or oral penetration
• Sexual assault is a broader term that encompasses any non-consensual sexual contact, including groping and molestation
• Indecent exposure is the deliberate exposure of one's genitals in public or in the presence of others without their consent
• Voyeurism is the practice of secretly observing others, often for sexual gratification
  • Many states have laws prohibiting voyeurism, particularly when it involves the use of hidden cameras or other recording devices
• Child sexual abuse involves any sexual activity with a minor, regardless of consent
  • This includes molestation, exploitation, and the production, possession, or distribution of child pornography
• Sexual harassment is unwelcome sexual behavior that creates a hostile or intimidating environment
  • Prohibited under federal and state anti-discrimination laws in employment and educational settings
• Sex offender registries are databases maintained by states that contain information about individuals convicted of certain sexual offenses
  • Depending on the severity of the offense, registered sex offenders may be subject to restrictions on where they can live and work