Going Down Down South: Fighting Absurd Sex Laws
Playboy,
April 1998
By Chuck Shepherd.
Abstract: Activist Howard Fletcher intentionally engaged in illicit sex in Florida
to challenge the state's repressive laws on sex. As in a number of other states, Florida
defines sodomy in vague terms that make the law hard to follow.
If Howard Fletcher, co-founder of the National Sexual Rights Council, has his way,
spring-breakers will want to stay out of Florida this year. Too dangerous. Maybe they
should head to Iowa. Or South Dakota. Surf's lame, but at least those states aren't
weighed down by 19th century sex laws that turn sexually active tourists (and residents)
into criminals.
Florida laws prohibit living together, sex outside of marriage and sodomy (defined as
"any unnatural and lascivious act"). The sodomy statute also notes,
inexplicably, that "a mother's breast-feeding of her baby does not violate this
section."
The fact that the state of Florida included this exception suggests that any
combination of mouth and breast not involving an infant violates the code. One wonders
what law-abiding citizens do for foreplay in Florida.
Sodomy laws in Florida and in many other states are notoriously vague, a sign of the
generally upright demeanor of sexually challenged lawmakers. An exception was the code in
the District of Columbia, which showed the dangers of being too specific. Until recently
it stipulated that carnal copulation was forbidden not only in the mouth and anus but in
any opening of the body other than the vagina. So much for nostril sex or for inserting
anything but a Q-Tip into your ear. Was such behavior a serious problem in the capital?
A more important question is: Do the punishments fit the crimes?
If convicted under Florida's antisex laws, which treat cohabitation, fornication and
sodomy as misdemeanors, you could face up to 60 days in jail. By some standards, that's
progressive. Thirteen states still consider sodomy a felony; some call it an
"abominable and detestable crime against nature." Go down on your date in
Michigan and you could spend 15 years up the river.
Howard Fletcher thinks all such laws are ridiculous. He could have chosen to make his
case in any of the states that criminalize sodomy and fornication, but he chose Florida.
If you are willing to go to jail for sex, better to do it in a state that can lock you up
for only two months.
Last November, aided by a grant from Hugh Hefner, Fletcher flew from his hometown of
Juneau, Alaska to Boca Raton. There he checked into a single-bed hotel suite with a female
friend and performed with her a pleasurable variation of lewd and lascivious lovemaking.
They broke all three antiquated laws almost before Fletcher's credit card number had
cleared the hotel's computer.
(Full disclosure: About the time Fletcher and friend were slam-dunking those three
laws, so were yours truly and his primary love unit, in a nearby hotel. Our illegal tryst,
of course, was conducted purely in the interest of professional journalism.)
On his third day in Boca Raton, Fletcher held a press conference. No, the sex hadn't
been that newsworthy-- or at least Fletcher would not go into detail beyond specifying
that oral sex took place. Instead he told invited members of the press that he was going
to turn himself in to the local police, which he proceeded to do. (Yours truly did not.)
Despite Fletcher's full, written confession and several non-explicit photographs he
made available, the Boca Raton police department said it would have to "conduct
further investigation" before the state's attorney could decide whether to file
charges. So far, no charges have been filed.
Actually, recalls Fletcher, the presiding detective, Guy DiBenedetto, was a "real
professional." In the midst of a Kennedy-worthy array of local television cameras,
"he kept a straight face and treated the entire process with dignity and respect. And
he also said he'd have to be careful how he behaved with his wife."
The sleep-in became a teach-in. Fletcher carried out his act of civil disobedience
self-effacingly, befitting his status as a 66-year-old great-grandfather who genially
admits that he is occasionally unable, tumescently, to break as many consensual-sex laws
as he would like.
His latest marriage is now almost 20 years running, and it's secure enough, he said,
that his wife heartily approved of his Boca Raton tour de force.
With the National Sexual Rights Council, Fletcher has targeted the religious right as
the source and defender of repressive sex laws. He describes the enemy as "bigoted,
self-righteous, holier-than-thou, hypocritical, narrow-minded, power-hungry, inflexible,
anal-retentive, prurient, nosy, reactionary, totally unchristian political
terrorists."
Joining Fletcher at his postcoital news conference was the other half of the NSRC
leadership, West Palm Beach attorney Elliot Shaw. As passionate on the topic as Fletcher
is, Shaw warms to the subject of archaic sex laws.
These statutes "make criminals out of nearly everyone," Shaw told reporters.
"Even you," he shouted at a female journalist who had confessed that she lives
with her boyfriend. "The laws are based on the double-standard, Madonna/whore
complex," he went on, "and they're simply not valid now, if they ever
were." The steam in the room was palpable as Shaw plowed through a rack of Masters
and Johnson statistics, evolutionary psychology theory ("We are programmed with a
massive sex drive") and biblical history ("When Eve stretched out for knowledge
beyond the garden, God gave her pain, enmity and total subservience"). He ended his
rant sounding like he had just cooked up another agenda item: "These laws are almost
something we should report to the human-rights people."
At the press conference, Fletcher explained why the council had chosen Florida. The
sleep-in was the opening salvo of a three-pronged attack. Although Fletcher wasn't
arrested, he and Shaw say they used his standing as an admitted criminal to file a federal
lawsuit to prevent the state from prosecuting him (or anyone else on the same charges). In
the suit they demand that the statutes be invalidated as violating the constitutional
right of privacy. They hope to take their case to the U.S. Supreme Court.
The suit also seeks an order requiring the state to protect naive visitors, such as
those spring-breakers, who may hop into bed unaware that they are breaking the law.
You have to love these guys.
On a second front, the NSRC is attempting to gather almost 500,000 signatures to place
its Right of Intimate Privacy Initiative on a statewide ballot this year. The initiative
would amend the state constitution to read: "No act of sexual intimacy committed in
private between consenting persons above the age of majority shall be prohibited by
law." That's a polite way of telling the state to butt out.
As its third initiative, the NSRC is pushing for repeal of the antisex statutes in the
state legislature. The group is now lobbying to bring lawmakers on board. The NSRC counts
on at least one of these three courses of action to succeed.
When it comes to sex crimes, Florida seems to be the geographic expression of a
confused psychopath. Even on good days the police-blotter columns of the state's
newspapers are filled with a disproportionately large number of paraphiliacs, both
creative and mundane.
But just when observers realize that the best thing for the state might be for it to
admit itself en masse to the Betty Ford Clinic, along come Fletcher and Shaw to reveal
that Florida has even more perverts (hundreds of thousands, in fact), than previously
known. It's not just the spring-breakers but also the senior citizens who buddy up out of
convenience and occasional wildness. The criminal class includes swingers on baseball's
world champion Marlins, and even the Goldie Hawns and Kurt Russells who drop in at Disney
World or South Beach. (We have no idea if Goldie and Kurt have ever violated the laws of
Florida. But if they bunk down in the same hotel room, they're at least guilty of
cohabitation.)
For a nation whose church and state are supposed to have been separated, biblical
admonitions and religious doctrine saturate our sex laws. Florida's fornication law, says
Fletcher, originates with the notion that a daughter is the property of her father until
marriage. (The government acts as if someone has broken into Dad's garage and ruined his
power saw.) Similarly, allowing only marriage partners to have government-approved sex is
based on biblical teachings that a woman escapes from her father's bonds only by becoming
the chattel of her husband. Any man who slept with another man's wife, says Fletcher,
"was in fact committing theft, much as joyriding is grand theft auto."
Despite Florida's take on it, the predominant view among Americans holds that marriage
is merely a civil contract under which the parties are free, but not legally required, to
commit to sexual exclusivity.
Prevention of sodomy--that abominable and detestable crime against nature-has a
biblical basis as well, but Fletcher says it may also be grounded in the need for one
tribe to outpopulate another. Hence, there can be no wasted seed. But Fletcher believes
that the amount of thrill-ride sex today outstrips procreative sex by at least 1000 to 1
(which is good, if you believe the anti-population growth activists).
To be valid, according to the U.S. Supreme Court's familiar test of constitutionality,
a law must serve a "legitimate" government interest, and if it infringes on a
fundamental right, such as the right of privacy in intimate relations, it must have
"compelling" justification. The NSRC says the three Florida laws that Fletcher
violated and similar ones on the books in dozens of other states fail this
"legitimate and compelling interest" test.
In fact, the only justification the government might muster is that it somehow has a
duty to make everyone a biblically good citizen, just as some public high schools have SAT
preparation courses to help students get into college, a lawmaker might argue, the purpose
of these laws is to help people get into heaven. But it is done, in most cases, against
our wills.
OK, the laws are stupid, but how big a priority is eliminating them? After all, asked
one reporter, how often are they enforced?
"Every day," says Shaw.
He admits that the newspapers aren't filled with accounts of police officers breaking
down doors to arrest fornicators. But the laws often crop up in other legal actions. Mary
Albert was accused of forcible sodomy, but even had he proved that the act was consensual,
he could still have faced up to five years in jail for it.
Most of the time the laws do damage in ways that are far more subtle. Last summer in
Texas, for instance, a child-welfare official removed a baby from his foster mother's care
because the woman was living in sin with another woman. The official contended that, as
the state's sodomy laws criminalize homosexual sex, the foster mother was involved in an
ongoing crime.
Lawmakers are notoriously unenlightened when it comes to revising sex laws. Letting the
people decide through a referendum is a compelling idea. But getting on the ballot won't
be easy. The NSRC will need those half a million signatures.
Still, says Shaw, the NSRC's campaign is a lot more realistic than waiting until a
majority of Florida's lawmakers stand in the legislature to praise shacking up and
lactation-free breast kissing.
So far, the demand for warnings to out-of-staters is the NSRC's most intriguing idea.
The legislature might have to call on the good people of Sheraton and Hyatt and their
stockholders to warn their guests and, more onerously, to check proof of matrimony before
allowing two people to share a room.
Imagine if the state were compelled to display this warning at its borders:
WELCOME TO FLORIDA.
SPEED LIMIT 65 MPH.
CONJUGAL SEX ONLY.
(WE ID.)
(Reach the NSRC toll-free at 1-888-247-9413.)
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