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the complete review - law

A Guide to America's Sex Laws

by

Richard Posner
and
Katharine B. Silbaugh

general information | review summaries | our review | links | about the authors

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Our Assessment:

-- : a seminal guide to sexual mores and do's and dont's - invaluable

See our review for fuller assessment.

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The complete review's Review:

       The law is a revealing and fascinating subject, an often odd reflection of society. People make law, enforce it, ignore it, forget, amend it. The United States, with its federal law, state law (50 separate ones), and the law of the District of Columbia makes for an interesting legal situation. Sex laws -- those dealing with the most intimate and private aspect of human existence -- are particularly interesting. Does the government (state or federal) have a right to intrude in this sphere ? And, if so, what is its proper place ? And, most important, how should these laws be enforced ?
       Answers are not quite as easy as one might think. "Consensual sex" is something few want regulated, at least if it is straightforward heterosexual intercourse, between man and wife. But even here questions such as how consent is to be defined crop up -- as a whole chapter on "Marital Exemptions from Rape and Sexual Assault" suggest. (And recall that in the late 1960s there were still laws against miscegenation enforced in the United States .....)
       That sex is a complicated subject is evident merely from the seventeen variations on sexual conduct examined in this volume. Chapters on bestiality, necrophilia, incest, public nudity, and age of consent suggest that there are public policy issues that are significant here.
       Adultery is also still on the books in many places, if not taken very seriously -- and what does that say about a society ? If adultery is ok then the laws should be stricken from the books, if not then the laws should be enforced. Trivial ? Recall that President Clinton's frolics with Monica Lewinsky would have violated D.C.s sodomy statutes in the early 1990s (sodomy specifically being defined, inter alia, as putting one's sexual organ in another person's mouth) -- and that sodomy was, in fact, a felony. Not a misdemeanor, a felony ! Clinton having himself pleasured may have also violated D.C.s adultery law -- only a misdemeanor. (Though in his study of the affair, An Affair of State (see our review), Posner acknowledges that especially the adultery statute is pretty much dead on the books.)
       This guide, already outdated in part, isn't meant to guide your behaviour (if you want to know whether you can sodomize an underage dead cow in Texas you're better off asking a lawyer). It is, however, a fascinating look at what kind of behaviour is governed by statute, and what sort of exceptions there are. From the always popular sodomy statutes to the marital exception for rape in Arkansas if the spouse is mentally defective (really) to what kind of lewd and pornographic material one can possess it is a fascinating survey of American attitudes towards sex and its regulation.
       There is considerable entertainment value here as well. It is a misdemeanor in Minnesota to defile a corpse -- but a felony if done in the presence of another person. Or, in Posner and Silbaugh's paraphrase of North Dakota law: "It is a misdemeanor to live openly and notoriously with a person of the opposite sex as a married couple where the cohabitants are not married." Enacted 1973. Who comes up with this stuff ? (A strong reminder that you should vote in your local elections for your legislators, to weed out the nuts writing your sex laws.)
       The internet and current bugbear child pornography have made for a rapidly changing scene in the legal world, only partially addressed by this book. Its value is in collecting and sorting previous laws, each collection of law-summaries (state by state) preceded by a brief introduction examining the origins, possible reasons for, and consequences of the laws. Showing, powerfully, that sex continues to be a complicated subject that society deals with most uneasily.
       This is a provocative, sometimes disturbing, sometimes hilarious read. Extremely useful in forcing the reader to consider the role and application of law in the society he and she live in, it is highly recommended.

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Links:

• University of Chicago Press publicity page

• Sexuality, Gender, and the Law: National and International - links and bibliography

• The complete review's Richard Posner page
• Faculty page at the University of Chicago

• An Affair of State
• Breaking the Deadlock
• Catastrophe
• The Crisis of Capitalist Democracy
• Divergent Paths
• A Failure of Capitalism
• How Judges Think
• The Little Book of Plagiarism
• The Problematics of Moral and Legal Theory
• Public Intellectuals
• Reflections on Judging

• William Domnarski's biography, Richard Posner

• Books on Legal subjects at the complete review

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About the Authors:

       Richard A. Posner is Chief Judge, U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School, and the author of many books.

       Katharine B. Silbaugh is Associate Professor at the Boston University School of Law.

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