A Changing Morality Within Our Society
The
Barbados Advocate, February 28, 2005
By Jeff Cumberbatch
By some quirk of coincidence, the Friday, February 18
edition of the New York Times featured, on its letters page, some
contributions on the seemingly universal proposal of abstention as a sexual
lifestyle. There’s an oxymoron for you! One letter writer did raise an
intriguing point, nevertheless. He argued, much as I did in last week’s Musings,
that the proponents of abstention are less concerned with its prophylactic
efficiency against sexually transmitted diseases than with its semblance of
purity, sinlessness and virtue. He argues that if there were a pill that could
be swallowed to prevent the contraction of any STD, including HIV/AIDS, the
abstention lobby would nevertheless be against it since it would permit safer
indulgence in sexual intercourse, an activity that it considers essentially
nasty and to be avoided except for purposes of procreation. A critical
perspective, indeed.
A recent decision of the Virginia Supreme Court, Martin
v. Ziheri has struck down that state’s criminal ban on fornication which
had existed since the early 18th century but, like most criminal sex laws
outside of non-consensual conduct, had not been enforced for many years. Yet,
as an online legal commentary states, laws criminalising non-marital sexual
conduct “still persist on the books in about 20 per cent of the states”.
The facts of the case are interesting in themselves. Ms.
Martin filed a complaint against her ex-lover Mr. Ziheri for allegedly
transmitting genital herpes to her through unprotected sexual intercourse
knowing that he was infected with the disease. She sued in tort, claiming
damages for negligence, battery and intentional infliction of emotional
distress.
Ziheri’s defence was a creative one. He argued that
there was no case to answer since, even if the facts alleged were true, there
could be no recovery for harm suffered while the parties were willingly
engaging in illegal activity; in this case fornication—sexual intercourse by
an unmarried person with any other person.
This defence, well known to those learned in the common
law as “ex turpi causa non oritur action”—loosely, “no action may be
brought on the basis of an illegal enterprise”, succeeded at the trial. But
this decision was reversed on appeal on the ground that the fornication law
was unconstitutional. Much of the court’s reasoning is based on the earlier
Supreme Court decision in Lawrence v. Texas. There, it had been held
that the constitution protects the right of adult individuals to conduct
consensual personal relationships in the confines of their own homes and their
own private lives, and that this right included the overt expression of the
relationship in intimate conduct. In other words, there is a constitutional
right to make love.
This right is not absolute or inviolable, but the
justification for its limitation must be compelling. Neither perceived
immorality nor the protection of public health nor the desire that children be
born into wedlock is a sufficient justification and thus there was no
legitimate state interest which could “justify its intrusion into the
personal and private life of the individual”. It seems clear, however, that
fornication laws are falling all over the US Professor Grossman of Hofstra
University, the author of the review article, reports that similar laws have
been repealed or struck down in Georgia, Arizona and the District of Columbia,
while the Attorney-General of Utah has promised that the law there will not be
enforced against consenting adults. No longer, it seems, will the law be
permitted “to (improperly) abridge a personal relationship that is within
the liberty interest of persons to choose”.
But does this signal an onset of sexual anarchy? Justice
Scalia in an emotive assertion in Lawrence, foresaw the demise of the laws
against bigamy, masturbation, incest, adultery, same sex marriage and
bestiality, inter alia. This is plainly irrational. The preservation of the
marriage institution, the protection of minors and the presence of consent are
all essential elements of the nature of the sexual activity protected. On this
basis, bigamy, bestiality and incest involving minors are thus unlikely to be
ever considered unconstitutional while the criminalisation of masturbation
(arguably the next safest form of sexual activity after abstinence) is at
least laughable.
However, as Professor Grossman notes, it is adultery and
same-sex marriage which are likely to pose the more complex constitutional
questions. The former might/does affect the institution of marriage, but is
conducted in private between consenting adults. Happy to relate, the issue is
not a live one in Barbados where adultery is perfectly legal and generally
connived at.
Same-sex marriage, while consistent with the preservation
of stable domestic unions and while essentially a private consensual
relationship, runs contrary to local legal requirements that marriage be a
union between a man and a woman. Again, luckily for us in Barbados, no
constitutional issue is engaged since the hoary section 26 of our Constitution
may serve to negate the question. Moreover, there does not appear to be any
significant local lobby for this form of union. Nevertheless, given the
legislative and other impetuses from Europe and North America, it is probably
safe to conclude with Prof. Grossman... “only time will tell”.
(Jeff Cumberbatch is a law consultant and educator.)
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