The Catholic Lawyer

Volume 9 Number 2 Volume 9, Spring 1963, Number 2 Article 3

Sexual Offenses - Legal and Moral Considerations

S. Oley Cutler, S.J.

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S. OLEY CUTLER, S. J.*

N ANY DISCUSSION of sexual offenses and the law the first problem to be faced is to determine exactly what is meant by the term "sexual offense." At the outset of his article in this symposium, Dr. Cavanagh takes notice of this difficulty.' No scholar has recognized and clarified this definition problem as well as Dr. Mueller in a recent book dealing with this subject..2 There are, he notes., the obvious classes of prohibited acts, the definition of which all would agree upon, such as solicitation, rape, various kinds of sexual assaults, etc. In our presentation here, we shall omit a discussion of these "undisputed areas" of crime. We will also pass over cases which clearly are the product of mental disease or defect-insanity cases. A further complication arises in defining "sexual offenses" because there are criminal acts which are sexual in nature but whose motivation is sheer profit. Again, there are acts such as kleptomania, arson, etc., which fall into criminal law categories as offenses against property, although the offense itself may often have an obvious sexual motivation such as the working out of a problem through vicarious experience. More broadly, topics such as obscenity seem to fall into the basic category of sexual offenses. It will be our endeavor in this article to treat first the general problem area of sexual offenses, since this currently is the subject of most debate. Afterwards, we shall consider several specific offenses.

Recent Trends for Legal Reform There are trends constantly observable in the field of criminal law and its enforcement both here and abroad - trends which are moving

* A.B., M.A., Boston College; LL.B., Georgetown University. Assistant Professor of Law, Fordham University School of Law. I Cavanagh, Sexual Anomalies and the Law, 9 CATHOLIC LAWYER 1, 4 (1963). 2 MUELLER, LEGAL REGULATION OF SEXUAL CONDUCT 10-12 (1961). SEXUAL OFFENSES towards basic reforms. At times a specific 1960,8 the British experience with full-scale reform movement may seem novel and even investigations and proposed reforms in the dangerous to some, yet surely, it must be field of sexual offenses has been a long and conceded that what has been most accom- comprehensive one. After World War I, the plished by such movements has been the increase in reported sexual offenses through- stimulation of basic thinking on the pur- out Great Britain led to a thorough govern- poses of our entire system of criminal law ment investigation in 1924. Although this and its administration in our society. There group made at least forty-three recommen- are several noteworthy examples of such dations for legal reform, little reform legis- trends and movements. The now famous lation resulted.!' Another study was made in Royal Commission's Report on Capital 1928.11 Punishment' in England which was followed The Wolfenden Committee on Homosex- shortly after by the Durham decision' in ual Offenses and Prostitution was created in this country, inflamed the still raging con- 1954 and reported its findings to the Home troversy over the validity of the M'Naghten Secretary three years later." Numerous sug- Rule as a defense of insanity in criminal gestions were made by this latter group for cases. changes in existing British statutes on pros- although not Current interest in the topic of this sym- titution. Some of these ideas, posium was undoubtedly triggered by the their spirit, were incorporated in the new ' The specific publication of Dr. Kinsey's Reports, the Street Offenses Act of 1959. Report of the English Wolfenden Commis- question of prostitution will be discussed sionl' and finally, the American Law Insti- later in this article. 7 tute's official draft of its Model Penal Code. Of greatest importance, perhaps, were the views which this Committee reported on This latter publication - a work of many the question of homosexuality. Here its years' extensive research on the part of was for the legal- many of America's most distinguished principal recommendation pri- scholars in the field of criminal law and its ization of homosexual acts committed consenting adults. The administration - is a document worthy of vately between course, highly serious consideration. British reaction to this was, of controversial. Report The Wolfenden ALl Model Penal Code As Mr. J. E. Hall-Williams indicated in On this side of the Atlantic, the American had been working for many The report was presented to Parliament at the Law Institute request of Her Majesty, The Queen, in September, 1953. s Hall-Williams, Sex Offenses: The British Expe- Durham v. United States, 214 F.2d 862 (D.C. rience, 25 LAW & CONTEMP. PROB. 334, 335 Cir. 1954). (1960). " KINSEY, POMEROY, MARTIN & GEBHARD, SEXUAL 9 Departmental Committee on Sexual Offenses BEHAVIOR IN THE AMERICAN MALE (1948); cf. Against Young People, Report, CMD. No. 1561 KINSEY, POMEROY, MARTIN & GEBHARD, SEXUAL (1925). BEHAVIOR IN THE AMERICAN FEMALE (1953). -oStreet Offenses Committee, Report, CMD. No. i Committee on Homosexual Offenses and Prosti- 3231 (1928). tution, Report, CMD. No. 247 (1957). 11 Committee on Homosexual Offenses and Prosti- MODEL PENAL CODE (Prepared Official Draft CMD. No. 247 (1957). 1962). tution, Report, 9 CATHOLIC LAWYER, SPRING 1963 years towards a final form of its Model of the Institute is quite apparent throughout Penal Code. Such a final revision was sub- its entire treatment of this and related sexual mitted to and approved by its membership offenses. Authorities admit this to be the at the Institute's annual meeting in Wash- ALI intent? 7 This basic Institute approach ing, D. C., in May of 1962. The Institute in raises doubts as to the willingness on the its Code did not espouse the "mutual con- part of the American community to accept sent" approach with respect to homosexual some of the basic moral assumptions of the acts, as did the Wolfenden Report. In its Institute. It would seem that its present rec- original form, as proposed by its Reporters ommendations face as hard a fight for gen- and unanimously approved by the Advisory eral acceptance as its proposed revision of Committee, the Wolfenden "consensual ap- the M'Naghten Rule as a defense in proach" was followed. 12 This move was not criminal cases. approved by the Council of the Institute." As the ALI's then tentative Draft No. 4 General Moral Norms declared: Returning now to the Wolfenden pro- posals, we observe a most interesting and Some members believe that the Reporters' position is the rational one but that it would controversial moral reaction. At this point, be totally unacceptable to American legis- as we discuss general moral norms, we re- latures and would prejudice acceptance of strict our attention to the single issue of the Code generally. Other members of the homosexual offenses. Council oppose the position of the Reporters Among the principal observations at the and the Advisory Committee on the ground that sodomy is a cause or symptom of moral end of its own report, the Wolfenden Com- decay in a society and should be repressed mittee made it quite clear that, as a group, by law .... 4 it was fully aware of the agonizingly difficult With respect to the corruption of the decisions it had been called on to make. This morals of minors, treated in a subsequent is an area, it declared, where "there is no section of the Code, persons who engage in frontier more controversial." 1 deviate sexual acts are guilty of an offense British religious reaction to the Commit- only if the other participant is under the age tee's proposals was easily predictable from of sixteen and the actor is at least four years the nature of the testimony given the Com- older.' 5 These ages of consent, the Institute mittee by the Church of England Moral and concedes, are arbitrary ones, and it leaves Welfare Committee which had declared: to individual lawmaking bodies the final It is not the function of the State and law to determination."' constitute themselves guardians of private Although such leeway is evident here for morality and thus to deal with sin as such belongs to the province of the church. On legislative choice, the permissive approach the other hand, it is the duty of the State to punish crimes and it may take cognizance of 12 Cf. MODEL PENAL CODE § 207.5, comment and define as criminal those sins which also (Tent. Draft No. 4, 1955). 13 Ibid. 14 Ibid. 17 Cf. MUELLER, LEGAL REGULATION OF SEXUAL 15 See MODEL PENAL CODE (Tent. Draft No. 4, CONDUCT 22 (1961). 1955). IS Street Offenses Committee, Report, CMD. No. 1r, Ibid. 3231, at 38-49 (1928). SEXUAL OFFENSES

constitute offenses against public morality.", 2. However, two questions of fact arise: The Anglican Council's attitude towards (i) If the law takes cognizance of pri- existing legal restrictions on consensual, vate acts of homosexuality and adult homosexual activities has aptly been makes them crimes, do worse evils described as one of "laissez-faire." 1, follow for the common good? (ii) Since homosexual acts between con- Official Catholic reaction was expressed senting males are now crimes in law, by His Grace The Archbishop of West- would a change in the law harm the minster through a statement of his printed common good by seeming to con- in the Westminster Cathedral Chronicle: done homosexual conduct?'-'2 The civil law takes cognizance primarily of To some extent, at least, British Catholic public acts. Private acts as such are outside thinking leaves the door open on the two its scope. so-called "questions of fact." Nevertheless, However there are certain private acts in a volume published by an English priest which have public consequence in so far as shortly after the appearance of the Wolfen- they affect the common good. These acts may rightly be subject to civil law. den Report, we discover a clear "no" to the : It may be, however, that the civil law above two questions of fact.2 1 The Catholic cannot effectively control such acts without Archbishop of Liverpool seems to hold a doing more harm to the common good than similar view.- would do. In that case it the acts themselves On the subject of homosexual offenses, may be necessary in the interests of the the American Law Institute's Model Penal common good to tolerate without approving 2 1 such acts. Code, as we have already seen, eschews the all-or-nothing Wolfenden approach. As a Specifically, as to legislation of homosexual consequence, in this country there has been offenses, His Grace continued: no such sharp definition of the issue as we regards the moral law, Catholic moral 1. As observe in Great Britain. Because of the teaching is: state of the question here, it seems best to (i) Homosexual acts arc grieviously sin- ful. bring this entire issue down to its most basic (ii) That in view of the public conse- elements. quences of these acts, e.g., the harm which would result to the common Law and Morals conduct became good if homosexual As in Great Britain, so here, most schol- widespread or an accepted mode of conduct in the public mind, the civil ars of the problem of sexual offenses (or law does not exceed its legitimate even the specific one of homosexuality) and scope if it attempts to control them the law are keenly aware that the real ques- by making them crimes. tion here - the relationship of law to mor- The teaching authority of the Bishops is ality - must first be met and answered. That primarily concerned with laying down these our criminal law both in origin, development two principles of law which cannot be and spirit is permeated with moral concepts denied by any Catholic. - Id. at 38. 20 Fletcher, Sex Oflenses: An Ethical View, 25 LAW & CONTEMP. PROB. 240, 250 (1960). '2Id. at 198. 23 Ibid. L' Quoted in BUCKLEY, MORALITY AND THE HoNMo- 211d., Foreword at xix-xxiii. SEXUAL 197 (1959). 9 CATHOLIC LAWYER, SPRING 1963 is a fact beyond all dispute. 25 Nowhere is may possibly have an effect upon the com- this fact more evident than in the area of munity and upon the common good if legal- criminal responsibility, traditionally repre- ization of homosexual practices in private sented by the mens rea concept. It is no would lead to the breakdown of a nation's accident we find this in society as it matures strength and integrity. Consent has never towards more civilized levels, because many made a right out of a wrong. What is in- of these moral aspects of our criminal law volved here is aptly reflected in the distinc- represent the dread decision of adjudging tion of Catholic moral teaching between ob- guilt and affixing punishments, sometimes jective and subjective moral guilt. Great as even death, to our fellow human beings. It may be our collective sympathy for the un- is not enough, as in discussions on the aboli- fortunates afflicted with homosexual prob- tion of sanctions against consensual homo- lems, we cannot take individual hardships as sexual acts between adults, to draw again to the basis for general legal norms. our common attention the liaison between Some Catholic opponents of any legal public morality and private morality. To reform in this area, such as Father Buckley, - state this obvious truth and then to conclude mentioned above,2 tend to oversimplify this that problems can be easily solved by one problem by demanding almost absolute re- group of society, with no relevancy to the sponsibility in every case. Advocates of rest of society, is surely a great oversimpli- sweeping reforms, on the other hand, seem fication. to find little, if any, responsibility in these To oppose the increasing tendency to cases. One group diminishes freedom to the permissiveness in criminal law towards sex- vanishing point, while the other demands ual offenses, especially as to homosexual too much. Both positions, I believe, are offenses, should not be considered as an equally untenable. Father Burlchaell, a se- 2 attempt by one segment of society to impose vere critic of Father Buckley's opinion, 11 its ethics or beliefs upon others. The so- insists that this view fails to take into con- called "modern school" which favors aboli- sideration the etiology of what is truly a 2 6 tion of certain criminal sanctions agrees. mental condition. If medical science has In admitting the necessity of retaining or given us new insights into this problem, can even stiffening2 7 sanctions against violent we still treat the occasional "harmless" type assaults, etc., the modern school itself con- of offender in the same fashion as we would cedes that there are common goals towards a hardened criminal? Obviously we cannot, which society aspires to move. This also for the collective conscience of the com- should imply, I think, that "private acts" munity refuses to inflict punishment where it cannot discover responsible human be- havior. Catholic moralists have long since given this subjective aspect of the offender

25 Cf. Cohen, Moral Aspects of the Criminal Law, 49 YALE L.J. 987 (1940); HALL, GENERAL PRIN- CIPLES OF CRIMINAL LAW 158-59 (1947). 26 Cf. MUELLER, op. cit. supra note 17. 7 Ploscowe, Sex 0jenses, The American Legal 28 See note 21 supra. Context, 25 LAW & CONTEMP. PROB. 217, 224 9 Guild of Catholic Psychiatrists Bull., July 1960, (1960). p. 193. SEXUAL OFFENSES the profound restudy it deserved." similar view." If the homosexual offender does represent Some of the other more common argu- a mental problem, the ordinary laws, it ments in favor of abolition of sanctions upon seems to me, should be called upon to han- homosexual acts committed privately be- dle such situations. In many states of the tween consenting adults are: the unenforce- United States, such laws are called sexual ability of present laws, difficulties in secur- psychopath statutes. These laws, of course, ing evidence, and the absence of violence cry out for modernization, as most authori- which outrages public decency. ties have demanded. One such voice de- All of these arguments could be true and clared recently: not necessarily represent reasonable justifi- Unfortunately the vagueness of defini- cation for abolition of sanctions; reform by tion of sexual psychopath contained in these way of law revision might be more appro- statutes has obscured their basic underlying priate. purpose.... Natural and Normal The result, is that many nuisance type, nondangerous sex offenders have been im- The designation of certain sexual offenses prisoned for long periods of time, without of a perverse type has traditionally been in ' treatment, in those jurisdictions where such terms such as "unnatural." 3 5 Unfortunately, laws have been enforced." such terminology suffers an easy onslaught Long imprisonment, characteristic of such from those who rightfully attempt to define statutes, is no solution without adequate the "natural" or "normal" man. Hence fol- prison medical therapy. The above authority lows the accusation that many of our sex is aware of this and suggests rather: offenders statutes are anachronistic because This is not to say that the compulsive, they reflect the spirit of "unnatural" termi- nondangerous types of sex offenders should nology, which in turn reflect the values of be immune from prosecution and punish- another era and of an outworn philosophy. ment; but short sentences or probation are Of course, no serious writer who is at all more than adequate to deal with these delic- acquainted with the scholastic natural law tions, unless better facilities are provided.' ' tradition would be so naive as to confound As for the dangerous, repetitive sex of- it with the desiccated concepts of "natural fender who oftentimes resorts to violence in law" and "nature" as find expression in the their molestation of youth, this same au- moralistic Commentaries of Blackstone. thority calls for stronger penalties - up to This attempt at defining the "natural" life imprisonment when necessary. Parole and hence the "normal," presents a real dif- should be based on proven rehabilitation ficulty, it seems, to some modern commen- and demonstrated improvement.: The American Law Institute proposals reflect a

:o Cf. FORD & KELLY, CONTEMPORARY MORAL 'I" MODEL PENAL CODE, Appendix D at 288 (Tent. THEOLOGY (1958); HAGMAIER & GLEASON, COUN- Draft No. 4, 1955). SELLING THE CATHOLIC 231 (1959). :15Cf. BISHOP, CRIMINAL LAW 503 (1882); BLACK- Ploscowe, supra note 27, at 223. STONE, COMMENTARIES 214. For an interesting dis- :- Ibid. cussion of such statutes, see also State v. Williams, :13Ploscowe, supra note 27, at 224. 34 La. Ann. 87 (Sup. Ct. 1882). 9 CATHOLIC LAWYER, SPRING 1963

38 tators.3 6 The following is a characteristic ented towards future goals. statement of this problem: Undoubtedly, the term normal is an It is true that current law and morals re- equivocal one. Its many meanings are well gard every other sexual activity [i.e., other described by Father John Ford: than ordinary marital intercourse] as unnat- Some psychiatrists seem to object to ural. But surely this is unreal, for natural can be only that which is conditioned and using it at all - as if it had no meaning, as if there were no such thing as a normal determined by nature. Thus, if upon exam- person." ining a man charged with sodomy.., we find that the hormone structure of his body Father Ford also suggests that normal can is predominantly female, although his phys- mean "conformed to some ideal standard." ical appearance is predominantly male, it Abnormal, therefore, will be identified with seems that his behaviour was rather natural, anyone who falls short of such a standard. namely in accordance with his natural en- dowment. It is seriously questioned, there- Again, it can mean "average," as where fore, whether current definitions of "the measurable qualities are involved. Finally, natural" are in accordance with reality, and it can mean conformity to conduct which is whether the law should continue to regard usual in a given group. Of course, if such what it thinks to be abnormal as also im- conduct were wrong, as lying, it would be plicitly unnatural.37 considered abnormal not to conform to such The question of the advisability of retain- evil. ing such terminology as "natural," etc., has So many meanings might suggest that already been discussed. Yet, surely, this there is no such being as a normal person. cannot mean we must therefore dispose of the term "normal" also, or even to identify It would seem that those who object to the word normal, as having little or no meaning, the two. Although every law student admits fasten their attention too exclusively on one to initial problems in defining the "reason- or another of these meanings. They are able, prudent man" and even "normal," it impressed also by the fact that so-called "normality" is well known that this is a practical and shades off into so-called "ab- working norm, necessary for most of the law normality" by imperceptible degrees.... It is natural enough, but fallacious neverthe- of torts as well as of crimes. A distinguished less, to conclude that because one cannot American psychiatrist some years ago at- draw a definite line separating normal from tempted his definition of the "normal man" abnormal, therefore there is no real distinc- for just such needs as we have here. He tion between them .... 40 declared: In conclusion to this present discussion, The normal person may be defined as then, we state again that the law is inexor- one who conforms to the average human ably joined to the entire gamut of moral being in his methods of thinking, feeling, issues- from determining criminal respon- willing and acting, is reasonably happy, sibility to assigning criminal sanctions emotionally balanced and adjusted and ori-

s Cavanagh, Criminal Responsibility and Free Will, Guild of Catholic Psychiatrists Bull., Dec. 1955, pp. 24-25. 36 Cf. MUELLER, LEGAL REGULATION OF SEXUAL :i9 FORD & KELLY, op. cit. supra note 30, at 347. CONDUCT 20-21 (1961). .0 FORD & KELLY, CONTEMPORARY MORAL THEOL- 37 Id. at 21. OGY 348 (1958). SEXUAL OFFENSES against prohibited behaviour. Law surely from the notable absence of any strong re- cannot legislate morality in the sense that it form movements among various groups in cannot automatically create the perfect man, our society, one is forced to agree with a operating freely within an ideal human recent conclusion: society. Within the sphere of sexual offenses, no To be perfectly practical, we must finally problem is harder to tackle, legally, socio- ask ourselves: Can we safely remove restric- logically or psychologically, than that of tions on aberrant sexual conduct? Perhaps prostitution.... Suffice it to say that the law we could, on the basis of the principle earlier has no intention to give up trying to repress prostitution by the methods at its command. Archbishop of Westminster' stated by the Evidence gathered by the United Nations on that the toleration of evil is often necessary a world-wide basis makes this course appear for the promotion of the common good. On preferable to a permissive attitude of legal- 2 the other hand, abolition might well lead to ized and state-regulated prostitution.4 greater dangers than already exist in this The American Law Institute in its study perplexing area. This is what I particularly of the question, notes that although prosti- fear, because any proposed legal reform tution is prohibited in all American jurisdic- here involves necessarily the definition of tions, the number of prostitutes may be "adult," 4 that is to say, involves the setting upwards of 200,000 here . Admittedly, a of age limits. At best this is a very difficult problem does exist here. In Great Britain, task. State statutes establishing a lower age for example, the Wolfenden Committee re- limit for drinking are ample evidence of ported a marked increase in the number of this. With the possibility of the moral cor- arrests, prosecutions and convictions, espe- ruption of our younger citizens involved, I cially for solicitations for prostitution dur- 4 believe that the abolition of existing sanc- ing the past twenty years. 4 The Committee tions on sexual conduct (even if consensual) observed two main defects in then existing is too risky an experiment to hazard. This British law which could account for some of simply is not a case of private, individual this increase. Both were concerned with the morality. definition of the elements of the offense and the difficulty in substantiating these ele- Specific Problems ments in a court of law. The Committee's Although it is obviously impossible with- proposals for reform were directed in the in the confines of this article to discuss every main to driving off the streets sources of aspect of sexual offenses from a viewpoint annoyance to the public and occasions for of law and morality, still several specific affronts to public decency. Shortly after the problem areas call for some brief comment. publication of the Wolfenden Report, the new Street Offenses Act was passed." Only Prostitution From the vast number of statutes in the United States covering all features of the 42 MUELLER, op. cit. supra note 36, at 49. contemporary prostitution problem, and 43 MODEL PENAL CODE § 207.12 (Tent. Draft No. 9, 1959). 44Cf. Committee on Homosexual Offenses and Prostitution, Report, CMD. No. 247 at 143 (1957). 41 Cf. text accompanying notes 21-22. 4'Street Offenses Act of 1959, 7 & 8 Eliz. 2, c. 57. 9 CATHOLIC LAWYER, SPRING 1963

some of the Committee's proposals were of sexual offenses. incorporated in the new legislation. From what has been reported so far, the new law Obscenity seems to be operating satisfactorily. Our survey of the contemporary legal The British spirit of nonintervention into landscape with respect to sexual offenses what has been called "the private life of would not be complete without some con- consenting men and women," 46 is reflected sideration of the problem of obscenity. Ob- in most of the modern thinking on the pros- scenity, as a sex-related offense, has long 4 9 titution problem.4 7 Rather than trends since been under the surveillance of law. towards abolition of present-day criminal Both the meaning of the term obscene, and sanctions, however, we in the United States the intention of legislation directed against observe instead, insistence on stricter penal- it, never seemed unclear to earlier ages. ties and law enforcement in order to rid Thus in 1857 Parliament passed the Lord society of an "annoyance." The other reason Campbell Act against obscene written alleged for stronger controls on the problem works. This Act was interpreted by Sir is the frequent tie up between the vice and Alexander Cockburn in 1868 in the famous commercialized crime, police and other gov- case of Queen v. Hicklin.50 It was Judge ernmental corruption. Stricter suppression, Cockburn who decided that the test of ob- therefore, is advocated on a frankly utili- scenity should now be "whether the tend- tarian basis. What is disturbing in this spirit, ency of the matter charged as obscenity is of course, is its pallid unconcern for the to deprave and corrupt those whose minds rehabilitation of offenders and prevention are open to such immoral influences, and of the extension of the vice among greater into whose hands a publication of this sort 8 numbers of lower income victims.4 may fall.""' Also neglected in many discussions of the Obscenity cases have traveled an uneven problem is reference to the reasonable de- course in the United States. Currently, in mands of public morality even in our con- American law, both the definition of "ob- temporary society, with its pluralistic moral scenity" and the legislative intent of statutes concepts and beliefs. As long as public mo- passed against it lie in mystery. In the case rality continues to be, as so often it appears of Roth v. United States, the United States to be, merely a question of good taste and Supreme Court chose to define "obscene" as manners, this individualistic spirit of hedon- "material which deals with sex in a manner ism will probably continue to guide and appealing to the prurient interest."5 2 inspire the legal reforms in this special area The language of this new test was bor- rowed from the American Law Institute's Model Penal Code." The ALI test was de-

46 Anglican Council Report to the Wolfenden Committee, in Committee on Homosexual Offenses 49 McDonald, Youth, Obscenity and the Law. and Prostitution, Report, CMD. No. 247 (1957). 1961 WASHBURN L.J. 220. 47 Cf. MODEL PENAL CODE 235 (Prepared Official 50L.R., 3 Q.B. 360 (1868). Draft 1962). 51Id. at 371. 48 Cf. Ball & Logan, Early Sexual Behaviour of 5r2Roth v. United States, 354 U.S. 476,487 (1957). Lower-Class Delinquent Girls, 51 J. CRIM. L., 53 MODEL PENAL CODE § 207.10 (Tent. Draft C. & P.S. 209 (1960). No. 6, 1957). SEXUAL OFFENSES liberately formulated to avoid the ambigu- On the question of a state's competency ities of the older "tendency" tests. Never- to legislate in this area of public morals, the theless, the United States Supreme Court United States Supreme Court has left no majority in Roth, reviewing various older doubt: state tests, declared: "We perceive no sig- It has never been held that liberty of speech nificant difference between the meaning of is absolute. Nor has it been suggested that obscenity developed in the case law and all previous restraints on speech are invalid. the definition of the A.L.T. ... ,4 [T~he protection even as to previous re- straint is not absolutely unlimited. [Citing Since then, in the eyes of this Court, there Hughes, C. J.,in Near v. Minnesota, 283 is no "significant difference" between the U. S. 697, 715-16 (1931)].... In addition, Roth (i.e., the ALI) text and those used by the Court said that "the primary require- the courts in the various states, we are left, ments of decency may be enforced against 5 for all purposes, with no constitutional test obscene publications." for obscenity. This no man's land situation If a state seriously attempts to regulate has led some to observe: materials which it considers to be obscene Any one of these verbal formulas (referring and injurious to youth, a further, more prac- to various state tests) may be constitution- tical question arises: Does a certain class of ally acceptable as a definition of obscenity, printed or pictorial materials have the effect provided it meets the requirements that the of corrupting morals? There seems no doubt material be judged as a whole instead of by that courts presently will uphold legislation its parts, and by its appeal to or effect upon the normal person, instead of the weak and to prevent outrages of public decency. The susceptible and provided the definition is question then, comes down to a considera- only applied to material that the Court con- tion of the cause and effect ratio, if any, of siders obscene. For what really counts is not obscene materials upon youth. While ad- kind definitions or verbal formulas, but the dressing ourselves to this core aspect of the of material the Court views as obscene. 55 topic, we do not wish at all to imply that we In one sense, the vagueness as to what is here propose or advocate a "decency" stand- legally considered as obscene leaves the ard for films and books, predicated upon the question of the definition an open one. This norm of youthful ignorance, immaturity and demands that commentators and all serious curious sense of good taste. students of this problem reconsider several The critical issue cannot but be to decide basic issues: whether obscene materials do actually lead 1 ) the competency of state and local gov- to a breakdown of public morality, and es- ernments to legislate in this area, and pecially, the corruption of our youth - sub- 2) the validity of the legislative intent, stantive evils against which states certainly namely, to protect morality and/or to pre- can exercise their police power prerogative. vent the corruption of the morals of our The causal relationship, here referred to, youth by the imposition of criminal sanc- evokes quite contrary responses. Prompted tions against obscene materials. 54Roth v. United States, supra note 52, at 487 n.20. 56Times Film Corp. v. City of Chicago, 365 U.S. 55 Lockhart & McClure, Obscenity Censorship: 43, 47 (1961); cf. Kingsley Int'l Pictures Corp. v. The Core Constitutional Issue-What is Obscene? Board of Regents, 360 U.S. 684 (1959) (the 7 UTAH L. Rnv. 289, 292 (1961). famous Lady Chatterly's Lover case). 9 CATHOLIC LAWYER, SPRING 1963 by Dr. Fredric Wentham's famous book, count on their side in this latter conclusion 5 The Seduction of The Innocent, 7 it had the late Dr. Kinsey, Drs. Sheldon and been assumed that certain comic books do Eleanor Glueck, the Brown University psy- influence young minds to criminal conduct. chology team report of Drs. Levy, Lipsitt, Drs. Eberhard and Phyllis Kronhausen, es- and Rosenblith, as well as many other con- 6 2 tablished authorities in the field of the psy- temporary scholars. chology of pornography, declare quite the Many present-day authorities tend to opposite."' These two scholars insist on an agree with the medical viewpoint stated important distinction between "obscenity" above. The conclusion of some of these is and what is erotic realism in literature. As that, in keeping with the lines set down by 6 3 for "obscene books," they declare: "It seems the United States Supreme Court in Roth to us undeniable that the vast majority of and with common sense itself, obscene ma- 'obscene books' fulfill their first and primary terials should be judged by the audience for function of stimulating most readers eroti- which they were primarily intended. As cally," 59 or are books which "are designed some have put it: 6 to be psychologically aphrodisiacs." This variable obscenity approach re- Books containing passages of erotic real- quires that in each instance the finding of ism are accounted as just one of numerous obscenity be based upon the nature of the psychological stimuli of an erotic nature in primary audience to which the sales appeal our culture. The erotic book, in its very is made and the nature of the material's ap- peal to that audience. In each instance the nature, tends to sustain the erotic stimula- question should be: With respect to the tion over a longer period of time and with primary audience is the material treated as greater intensity. With these points kept in hard-core pornography - to satisfy or nour- mind, one must also consider the subjective ish erotic fantasies of the sexually imma- factors of the reader of obscene materials. ture? This requires that any peripheral audience be disregarded.64 So it is that they conclude: The advantages claimed for this approach to [W]hile it is perfectly true that the aim and, the Roth definition problem are: the effect of an "obscene" book is to act as an erotic stimulus, the ultimate test of [lI]t permits control over hard-core pornog- whether something is "obscene" cannot be raphy, or anything treated as such, without conclusively deduced from its effects; it can the fiction of pretending that such stuff ap- only be determined on the basis of the con- peals to the prurient interest of the normal tent analysis of the book itself.6 1 adult in order to make it fit the verbal for- announced in Roth.5 These two authors see no ready answer at mula the moment to the question of the measur- Not all authorities so minimize the effect able effects of reading obscene literature, of obscene materials upon the minds of the especially the causal ratio between such young. One such voice is that of FBI Direc- reading and juvenile delinquency. They tor, Mr. J. Edgar Hoover.6 62 1d. at 279. 57 WERTHAM, SEDUCTION OF THE INNOCENT (1959). 63 Roth v. United States, 354 U.S. 476, 490 (1957). 58 KRONHAUSEN & KRONHAUSEN, PORNOGRAPHY 64 Lockhart & McClure, Obscenity Censorship: AND THE LAW (1959). The Core Constitutional Issue-What is Obscene? 59 Id. at 263. 7 UTAH L. REV. 289, 299 (1961). 6 5 60 Ibid. Id. at 301. 61 Id. at 265. 66 Letter From J. Edgar Hoover to All Law En- SEXUAL OFFENSES

Apparently, definite conclusion of the the proposed reforms of the various con- causal ratio of obscene materials and their temporary movements for drastic changes effect on impressionable young minds can- in our laws indicate a marked lack of prac- not be established. I do not think it is ticality and the absence of hard thinking on enough in our society, conscious as it is of its the foundations of the public philosophy of responsibilities to our future citizens to erad- law that must underpin any great changes. icate juvenile delinquency, etc., merely to In our own appraisal of the current legal consider this problem as "peripheral" and situation with regard to sexual offenses, we "to be disregarded." I would rather subscribe have frequently had recourse to the phrase "corruption to the view of L. D. McDonald,e7 that until of youth." This factor was so we know more about the causal ratio, we do stressed because, it seems to me, it must be our utmost to safeguard our greatest natural the overriding consideration which must be resource-our youth. He also has a practical kept in mind when we are speaking of laws suggestion for a current solution or modus that could possibly affect the moral fitness vivendi with the problem: of our nation's greatest resource-its youth. [E]ach state should be allowed to establish This motivation is only scantily obvious in its own policy concerning obscene publica- current thinking on the topic here in ques- tions and their distribution. A statute so tion. sell or make worded as to punish those who Finally, the state has its moral respon- available obscene literature to youth is within powers of the state, and is directly sibilities too, and social experimentation comparable with the selling of alcoholic through law is one of its most cunning temp- liquors to minors. In one case the body is tations. Such experimentation is dangerous injured; in the other the mind; but in both, if predicated on a "bad man" theory of law the community ultimately suffers the loss. that harks back to Holmesian positivism. Sex intrigues all, especially the young, who find it difficult to cope with the coming of Much is made today in discussions on the maturity. The natural problems are enough, topic of our symposium of the supposed without subjecting them to unrealistic and inhibitive influence of morality upon law. unnatural situations in obscene publications It is instructive, I think, to recall on this that clothe these situations in normalcy."' point, the insights of Professor Lon Fuller. General Conclusion Speaking of the inverse ratio of the effect of One great impression that must come to law upon morality, he said: any student of the general problem of sex- It should be noted that the view I am ex- ual offenses vis-A-vis their legal and moral pounding here does not assert that men are, in the ordinary affairs of life, consciously relationships is one of uncertainty and also deterred by legal penalties. It concedes that of uneasiness. One senses uncertainty be- the effective deterrents which shape the cause there is an admitted shortage of fac- average man's conduct derive from moral- tual data to support many of the proposed ity, from a sense of right and wrong. What it reforms of the so-called "modern school" asserts is that these conceptions of right and in this area. One senses uneasiness because wrong are significantly shaped by the daily functionings of the legal order, and that forcement Officials, Jan. 1, 1960, in FBI Law they would be profoundly altered if this Enforcement Bull. (Jan. 1960). legal order were to disappear.';! 67 McDonald, Youth, Obscenity and the Law, 60 FULLER, THE LAW IN QUEST OF ITSELF 137 1961 WASHBURN L.J. 220. 6s id. at 231. (1940).