Thursday, April 9, 2009

A Bill "Too Gross to Talk About"

Earlier this week, the state of Oregon passed a bill that one newspaper referred to as “too gross to talk about.” What could be so gross? Before I divulge any explicit details, I recommend that those who are easily repulsed turn away now.

The proposed law makes it a second-degree sexual abuse to propel “a dangerous substance at another person.” Hmm. It appears that the legislature’s intent was to outlaw bukkake, a practice apparently popularized in Japanese pornography. We’ll spare you an explanation of what this practice entails, but the link provided will take you to a Wikipedia page that explains the "ritual."

The passing of this law stemmed from a very serious and traumatizing non-consensual incident that occurred last June. Although the new law criminalizes such non-consensual acts, it also embraces the consensual practice of this sexual conduct. Although I agree that the conduct is repulsive, is the criminalizing of sexual activity between consenting adults in the privacy of their own homes necessary? Is it even constitutional?

In Lawrence v. Texas, the Court explained that decisions by consenting adults “concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” 539 U.S. 558, 578 (2003) (quoting Bowers v. Hardwick 478 U.S. 186, 216 (2003) (Stevens, J, dissenting)). Although the practice Oregon's statute proscribes is clearly much different than that the Court held could not be restricted in Lawrence, it seems to me that the same constitutional rights are implicated. And "morality" would not overcome the scrutiny the Lawrence Court utilized.

So here's what I'm wondering: can the state of Oregon legally criminalize private sexual activity between consenting adults (notwithstanding the fact this law may be pointlessly stupid)? We would love to hear your opinion.

For more on this story, please visit boingboing.

[Ed. Note: The illustration was found here after a google search for Lawrence v. Texas]


  1. I guess I am a little confused here. If the conduct is "consensual," there may be a "strong" moral interest in proscribing it. I know, I know ... L v. T said that a moral interest was not sufficient to limit consensual sexual activity between adults in the privacy of their homes, but conduct is banned based on strong moral considerations all the time. I think maybe the practice is fundamentally grotesque and this could perhaps provide a heightened interest in proscribing it. I mean...there are a lot of illegal consensual activities--I don't want to mention here--that are repulsive and sickening.

  2. That's just the thing, this IS consensual sexual activity between consenting adults. Seems right within Lawrence's ambit. Whether it should, I don't know.

    I'd love to see this litigated, but doubt it will ever be. How would they charge someone with this?

  3. 5:07 here-

    One more thought: remember when SCOTUS had to do the Redrup video viewing for obscenity? That was prob. super awkward, just imagine what it would be like with evidence explaining/depecting this lol.

  4. This could realistically come up if there's some kind of porn industry in Oregon, though I imagine it's already tightly regulated.

  5. I agree with 5:04....I don't think that Lawrence would prohibit this because of the "nature" of the conduct in those cases. I think that one could imply from the decision that views on morality that are not majority views are simply not sufficient to proscribe conduct --i.e., homosexual relations. But, conduct that is far more despicable (i.e., bondage, obscenity of the variety of the case before Judge Kozinski when he recused himself (i won't mention it here), etc.), may be limited, and I don't think you can argue that it absolutely cannot be based on Lawrence.

  6. Scalia clearly thought the implications were wide ranging, but it's not really clear how far it would go iirc

  7. Interesting comments.

    What about the term "dangerous?" Perhaps a health interest could overcome the careful scrutiny of Lawrence.

  8. Why do you use the term "careful?" What is the L v. T scrutiny?

  9. @ 12:28--

    I think the reason Josh does this is because he's not quite sure what the standard is--and for good reason. Lawrence falls within the substantive due process line of cases, but doesn't (at least expressly) do what those other cases did: find a fundamental right, and subject the law infringing on that right to strict scrutiny (I.E. is there a compelling state interest, and is the law narrowly tailored to serve said interest?)

    I'll leave it to Justice Scalia (and, perhaps, Josh) to explain further:

    Though there is discussion of “fundamental proposition[s],” . . . and “fundamental decisions,” . . . nowhere does the Court's opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting).

  10. 12:28;

    Well I guess that's the million dollar question. The majority opinion never explicitly uses the terms "fundamental right" or "strict scrutiny." Justice Scalia's dissent is quick to point this out, as he believes the majority adopted some unheard of form of rational basis review.

    However, all indications are (at least in my opinion) that Justice Kennedy's majority opinion adopts a form of intermediate scrutiny; a Harlan-esque standard of "particular careful" scrutiny.


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