Notre Dame Journal of Law, Ethics & Public Policy

Volume 28 | Issue 1 Article 4

May 2014 The rC iminalization of Consensual Adult Sex after Lawrence J. Richard Broughton

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Recommended Citation J. R. Broughton, The Criminalization of Consensual Adult Sex after Lawrence, 28 Notre Dame J.L. Ethics & Pub. Pol'y 125 (2014). Available at: http://scholarship.law.nd.edu/ndjlepp/vol28/iss1/4

This Article is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. 34929-nde_28-1 Sheet No. 68 Side A 05/07/2014 15:37:06 of g we 215–22 ISTORY ht and the Fail- g Jane E. Larsen, H with whom ious Ri g See also Criminal law regu- MERICAN 1 A * istries: The Reli g UNISHMENT IN with whom we may have sex (for P . L. 23, 74 (2007). LAWRENCE ROUGHTON RIM 125 of private consensual sex between of private consensual B RIME AND . J. C NTRODUCTION Sex Offender Re M I g , C ICHARD ory of person g , 35 A some forms J. R Creatin . 374, 414 (1993) (stating “[r]egulating human relationships is REIDMAN cate SEX AFTER AFTER SEX EV M. F . L. R Parts I & II. OLUM AWRENCE L Of course, one axiom guiding such criminalization is that the Of course, one axiom guiding such 2 , 93 C See infra See American criminal law punishes private consensual sex between law punishes private consensual American criminal The nuance and complexity of sexual matters notwithstanding, the The nuance and complexity of sexual 2. * Mercy. Associate Professor of Law, University of Detroit I presented an earlier 1. THE CRIMINALIZATION OF CONSENSUAL ADULT OF CONSENSUAL CRIMINALIZATION THE ure to Protect Society’s Vulnerable “Women Understand So Little, They Call My Good Nature ‘Deceit’”: A Feminist Rethinkin (1993); Steven R. Morrison, Seduction among the most difficult of legal tasks.”). version of this paper at the second annual Loyola University Chicago Constitutional Law version of this paper at the second annual Loyola received upon that presentation.Colloquium and appreciate the feedback I I also am Wilkins, Pamela Lysaght, Bret Boyce, grateful to Dale Carpenter, Kelly Strader, Pamela and to Stacy Johnson, and Conor Fitzpatrick and Bob Brown for their helpful comments, for their fantastic research and editorial assistance. Finally, I am grateful to Rachael as well as her many valuable com- Soren for both her research and editorial assistance, ments during the drafting of this piece. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 1 1-MAY-14 14:39 sexual appetite of human beings—like other human appetites—ought can advance important interests to be controlled and that the state through such controls.society devoted to some substantial Yet in a free autonomy, the criminalization of measure of legal protection for sexual adults.crime law, and in unacquainted with American sex Someone and autonomy, protecting his or her sexual privacy the habit of keenly initial observation outrageous.might find that The observation by saying that the however, when we qualify it becomes less outrageous, criminal law punishes adults. imagine that bears scrutiny, for one might Still, the observation proposition—givenit must be a difficult and complexity of the nuance generally—whensexual relationships must select which forms the state it will subject to sexual conduct between adults of private consensual and punishment. moral condemnation them, even far beyond the criminal law has long sought to regulate such as rape. obvious categories of criminalization, may have sex, or the example, siblings, students, patients, or persons married to someone example, siblings, students, patients, else).the sex is, in fact, consensual (even This remains true even where private between consenting adult affirmatively desired) and entirely parties. lates both the manner in which we obtain sex (for example, by force lates both the manner in which we of money) and also and without consent, or by payment 34929-nde_28-1 Sheet No. 68 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 68 34929-nde_28-1 34929-nde_28-1 Sheet No. 68 Side B 05/07/2014 15:37:06 . 8 EV Law- Law- ARPEN- essen- [Vol. 28 C . L. R ht to Privacy ALE ARV g D appears to appears Lawrence See The New Formalism: The Ri . 117 H Lawrence which invalidated a which invalidated Lawrence 3 , Lawrence: (2012). and Calvin Massey, Cf. vindicated was not fundamen- ETHICS & PUBLIC POLICY Romer Justice Kennedy’s Libertarian Revolution: & L. 355, 387-89 (2006) (arguing that recognized a right that should be treated as LAW, though presumably the state’s interest Lawrence v. Texas Lawrence Beyond 9 Lawrence v. Texas Lawrence ENDER ht” That Dare Not Speak Its Name, g “It suffices for us to acknowledge that “It suffices for . 21, 35–36 (2d ed. 2003) (arguing that Lawrence 5 7 . J. G TORY OF EV S . R T OLUM HE Randy E. Barnett, . C : T UP , 15 C S But see “These references [to laws and traditions of the last fifty “These references 539 U.S. at 578 (citing Bowers v. Hardwick, 478 U.S. 186, 216 (Stevens, 6 ATO ONDUCT The “Fundamental Ri , Con- United States v. Marcum, 60 M.J. 198, 205 (C.A.A.F. 2004); Reliable . . C g Yet the extent of that protection remains fuzzy. Yet the extent of Court The NOTRE DAME JOURNAL OF at 578. at 572. at 567. at 562. TER 4 See, e. Id. Id. Id. Lawrence, Id. LAGRANT The constitutional dilemma here is one created chiefly by the chiefly created is one here dilemma constitutional The But the Court ultimately disposed of the case by saying that Texas But the Court ultimately disposed of 9. 8. 7. 6. 4. 5. 3. 539 U.S. 558 (2003). of the facts that led to Lawrence’s The Court’s description implicates the need for heightened scrutiny). , F rence v. Texas, C Comes Out of the Closet fundamental); Nancy C. Marcus, Note, 1893, 1898 (2004) (arguing that sultants, Inc. v. Earle, 517 F.3d 738, 745 n.32 (5th Cir. 2008); Williams v. Att’y Gen. of sultants, Inc. v. Earle, 517 F.3d 738, 745 n.32 v. LaVerkin City, 528 F.3d 762, 771 Ala., 378 F.3d 1232, 1236 (11th Cir. 2004); Seegmiller (10th Cir. 2008). rence J., dissenting)) tially disposed of the “fundamental rights” nomenclature and instead holds that state interference with “liberty” is presumptively unconstitutional); Laurence H. Tribe, Law- rence v. Texas: prosecution pursuant to the Texas homosexual sodomy prohibition, we now know, did prosecution pursuant to the Texas homosexual not fully capture the story behind the case. Fortunately, Dale Carpenter’s excellent the story of recent book has helped us to better understand This has led many courts to find—without the more direction from Court—that whatever right that 126 as a both concerns, serious adults raises between sex consensual private law. of constitutional policy and public of sound matter in Court’s decision Supreme tal. a right is subjected only to Thus, legislation implicating such academic commentary subjects this rational basis review (note that the conclusion to intense criticism), \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 2 1-MAY-14 14:39 speaks of the right broadly, in terms that make the right appear funda- broadly, in terms that make the right speaks of the right judicial scru- presumably subject to more searching mental, and thus freedom of an autonomy of self that includes tiny: “Liberty presumes and certain intimate conduct.thought, belief, expression, The instant and in its more of the person both in its spatial case involves liberty transcendent dimensions”; no rational basis) for the law. possessed no legitimate interest (i.e., years] show an emerging awareness that liberty gives substantial protec- awareness that liberty gives years] show an emerging private lives in in deciding how to conduct their tion to adult persons matters pertaining to sex.” must be something other than a mere effort to recognize and enforce must be something other than a mere adults may choose to enter upon this relationship in the confines of to enter upon this relationship in adults may choose their dignity as own private lives and still retain their homes and their free persons”; Texas statute criminalizing homosexual sodomy. criminalizing Texas statute It is an exceedingly to interpret and apply. but a challenge rich case adults sex between non-prostitution private, consensual, hold that due of substantive under the doctrine protection enjoys constitutional process. 34929-nde_28-1 Sheet No. 68 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 68 34929-nde_28-1 34929-nde_28-1 Sheet No. 69 Side A 05/07/2014 15:37:06 , & 17 12 ). But see, THICS Lawrence Bowers v. Lawrence J.L. E Lawrence Court’s pro- . 1140, 1163–65 are nonetheless g AME EV LAWRENCE 127 D . L. R OTRE Glucksber Lawrence INN And finally, and most And finally, and 18 N and Court’s Exclusions Para- Court’s Exclusions 16 88 M Lawrence ). I therefore use the admittedly unwieldy Lawrence Our Millian Constitution: The Supreme Court’s The Court did not apply (indeed, not apply Court did The , which ordinarily requires, on sub- requires, ordinarily , which . L. 945, 946 (2004) (suggesting that a reex- g Libertarian?, 10 , 517 F.3d at 740, 746–47 (invalidating state ban ONST Lawrence . J. C A See Earle , but argues that Lawrence categorically does not protect prostitution); State v. Frei- categorically does not protect prostitution); does not protect consensual sexual conduct involving does not protect consensual sexual conduct g Is It does not involve “public conduct or prostitu- It does not involve 14 11 ton v. Glucksber ton v. , 6 U. P In it, Justice Kennedy explains that the case does In it, Justice Kennedy g , 517 F.3d at 740, 746–47of sexual (invalidating state ban on sale Lawrence Lawrence Glucksber is that Justice Kennedy’s opinion for the Court con- for the Court Kennedy’s opinion is that Justice 13 Earle Muth v. Frank, 412 F.3d 808, 817 (7th Cir. 2005) (holding Muth v. Frank, 412 F.3d 808, 817 (7th Cir. , 539 U.S. at 578. , 539 U.S. at 578. , 539 U.S. at 578. , see Keith Burgess-Jackson, ., Washin g While it might be argued that this portion of the Exclusions Paragraph can While it might be argued that this portion of Lawrence 407 (2004). ’s protection. Homosexual marriage is not at issue. Homosexual marriage Id. Lawrence Id. Lawrence See, e. Lawrence 539 U.S. at 577–78 dissenting in (adopting Justice Stevens’ statement Y Lawrence ’ , 478 U.S. 186, 216 (1986), that the state’s view of a sexual practice as immoral “is , 478 U.S. 186, 216 (1986), that the state’s view 15 OL THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE An additional and important consideration in understanding the in understanding consideration and important An additional 17. 16. 15. 14. 13. 12. 10. the Court found insufficient. This was the interest advanced by Texas, which 11. 521 U.S. 702, 720–23 (1997). it significant that the Dale Carpenter thinks . P State v. Limon, 122 P.3d 22, 24, 28 (Kan. 2005) (invalidating Kansas “Romeo and State v. Limon, 122 P.3d 22, 24, 28 (Kan. ., g UB on sale of sexual devices, pursuant to be read as not protecting any “commercial” sexual conduct, I am uncomfortable reading the language quite that broadly. phrase “non—prostitution,” to indicate that prostitution is not protected by even if other sexual conduct with a commercial element may be. devices, even though this arguably involves commercial sexual activity, like prostitution). devices, even though this arguably involves commercial does not protect consensual adult incest); United States v. Palfrey, 499 F. Supp. 2d 34, 41 does not protect consensual adult incest); United (D.D.C. 2007) (holding tag, 130 P.3d 544, 545–46 State v. Van, 688 N.W.2d 600, 614 (Ariz. Ct. App. 2006) (same); (Neb. 2004) (holding P e. though the case involved sex between an Juliet statute” on equal protection grounds, even adult and a minor); bondage and sadomasochism because such conduct involves injury to the person). bondage and sadomasochism because such conduct (2004). amination of tiered scrutiny may be necessary in light of, among others, amination of tiered scrutiny may be necessary Lawrence, graph as absolute. Court did not mention Indeed, many courts have read the Indeed, many courts that this phrase is vague as to the universe of actors Again, the Court contemplates. who cannot easily refuse consent It might refer to those Requiem for Tiered Scrutiny? 2014] citizenry. among the morals good Hardwick the practice.”).not a sufficient reason for upholding a law prohibiting For analysis of this aspect of \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 3 1-MAY-14 14:39 compatible. Dale Carpenter, tection and is thus presumably still subject to criminal prohibition. presumably still subject to criminal tection and is thus scope of which lists the I will call the “Exclusions Paragraph,” cluded with what would be excluded from the kinds of conduct that Repudiation of Immorality as a Ground of Criminal Punishment, Repudiation of Immorality as a Ground of Criminal tion.” not involve minors, so sex crimes involving minors are excluded from so sex crimes involving minors are not involve minors, Lawrence stantive due process claims for rights not yet recognized, a careful yet recognized, for rights not process claims stantive due by right be vindicated right and that the of the asserted description tradition. history and did not mention) the substantive due process approach articulated approach process due substantive the not mention) did fully in most importantly for present purposes, Justice Kennedy says the case does purposes, Justice Kennedy says importantly for present or who are situ- who might be injured or coerced not involve “persons be refused.” where consent might not easily ated in relationships 34929-nde_28-1 Sheet No. 69 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 69 34929-nde_28-1 34929-nde_28-1 Sheet No. 69 Side B 05/07/2014 15:37:06 , As 23 as a Law- 21 liberty [Vol. 28 . L. 41 (2011). Justice Kennedy: Lawrence g as a distinctly Barnett sees RIM 18 actually under- J. C Gradin embraces the crimi- Lawrence ERKELEY Lawrence , a rich body of scholarship , 16 B Lawrence ). ETHICS & PUBLIC POLICY Randy E. Barnett, Lawrence . 1582, 1582–90 (2005) (responding to Car- Lawrence EV LAW, see also ’s Criminal Law —and those like Barnett, who actually . L. R 22 INN , this appears to be a gross overstatement. In Strader’s view, note 11, at 1169. infra Carpenter emphasizes the many ways in which Carpenter emphasizes the many ways 89 M validation of laws based on moral choices. Every single 24 note 9, at 21; note 11, at 1141. 20 supra note 9, at 21. —based to “liberty” in the on his repeated references supra , 539 U.S. at 590–91 (Scalia, J., dissenting). writes that: Justice Scalia supra Bowers’ supra opinion would usher in a new era of constitutional law in opinion would usher in a new era privacy J. Kelly Strader, Lawrence Carpenter, Barnett, at 1148–69. NOTRE DAME JOURNAL OF See See Lawrence Id. See See In response, Dale Carpenter rejected the notion of In response, Dale 19 Shortly after the Court decided Shortly after the Court The early scholarship, though, did not grapple primarily with The early scholarship, though, did not as a substantive criminal law limitation. More recently, Kelly Lawrence 23. Carpenter, 24. one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. 22. 21. adult incest, prostitution, mastur- State laws against bigamy, same-sex marriage, bation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of 19. Barnett, 20. 18. at 590. As I will explain Id. A Reply to Professor Carpenter, penter’s claims about libertarian aspects of emerged debating the case’s meaning.emerged debating in an important For instance, major departure Barnett analyzed what he saw as a early piece, Randy from settled due process doctrine. by Justice Kennedy 128 on some based of nonconsent consequences fear harmful they because fact.objective boyfriend with her has sex only a woman For example, he might she fears the past and in violent been sexually he has because pro- who receives a sexual or a woman if she refuses; become violent tells her only because he has sex with him from her boss but position does not do so.will be fired if she that she to any Or it might refer in some disparity consent given, involving regardless of relationship, authority—evenpower or exerted and, or authority is not if that power that such power victim does not reasonably believe indeed, even if the be exerted—becauseor authority would of the relationship the nature induced the con- risk that the power disparity has creates at least some not exist but for the power disparity. sent, which might \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 4 1-MAY-14 14:39 rence a vision of Strader has done just that, articulating libertarian opinion. criminal law decision. Justice Kennedy’s opinion goes out of its way to limit the holding. Justice Kennedy’s opinion goes out hoped for a more libertarian approach than they actually received. hoped for a more libertarian approach nal law’s harm principle (drawn, as he views it, essentially from Millian nal law’s harm principle (drawn, as law of sex punish only conduct doctrine) and requires that the criminal case. rather than Justice Kennedy’s approach as a potentially revolutionary one, if Justice approach as a potentially revolutionary Justice Kennedy’s about a new approach—anKennedy is serious expansion of such, Carpenter argues that the best reading of such, Carpenter argues that the best broadly invalidated by an activist which legal restraints on sexuality were and undemocratic judiciary mines the claims of those like Justice Scalia—whosemines the claims of those like Justice that dissent worried the 34929-nde_28-1 Sheet No. 69 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 69 34929-nde_28-1 34929-nde_28-1 Sheet No. 70 Side A 05/07/2014 15:37:06 , , I 25 , 99 Law- . 1369, ARDOZO EV Lawrence Lawrence Beyond Law- , . 2997, 2997 . 971 (2010) 10 C , including EV islated Morality: EV g LAWRENCE 129 Romer L. R . 1312, 1313 (2004) . L. R EV roup: ICH Lawrence , 2010 BYU L. R g ORDHAM Lawrence v. Texas, 539 U.S. Is Incest Next?, This reflects not mere . L. R see 30 108 M , 77 F INN e, Slippery Slope Rhetoric, and the Polit- ’s Concerns About Le g 88 M dissent, From Outlaws to In Lawrence nition, g because there clearly had been no there clearly had because 1, 1 (2004). g Lawrence protects and the kind and degree of protects and the the Sale of Obscene Devices ht to Sexual Privacy g g Same-Sex Marria Is Your Bedroom a Private Place? Fornication and Funda- Is Your Bedroom a Private Place? Fornication and and fornication. Rather, he argues, that paragraph simply he argues, that paragraph Rather, EMINISM 29 Toys Are Us: Sex Toys, Substantive Due Process, and the Amer- Toys Are Us: Sex Toys, Substantive Due Process, and Unravelin 26 A Bedroom of One’s Own: Morality and Sexual Privacy After A Bedroom of One’s Own: Morality and Sexual Lawrence & L. 807, 809 (2009); Kristin Fasullo, Note, & L. 807, 809 (2009); Kristin Fasullo, Note, Lawrence . 507, 507 (2009) (evaluating Seegmiller v. LaVerkin City, 528 . 507, 507 (2009) (evaluating Seegmiller v. LaVerkin as protecting a right to private, non-prostitution, as protecting a right J.L. & F EV ENDER Accordingly, although most of the academic com- of the academic although most Accordingly, Can Criminal Law Be Controlled?, note 24, at 58–60. to incest ALE did not hold “that the Constitution incorporates the harm princi- did not hold “that the Constitution incorporates 27 a Fundamental Ri 28 g . J. G supra , 16 Y Lawrence . 1543, 1544 (2005); Brett H. McDonnell, Miranda Oshige McGowan, OLUM Lawrence EV See Amanda Connor, Note, Curtis Waldo, Note, Courtney Megan Cahill, at 59. at 66–67. reject this reading Strader’s piece is partly a response to those who , 39 N.M. L. R . ’s significance as to criminal law matters ranging from the use criminal law matters ranging from ’s significance as to See Id. See See Id. hts ust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo ust: A Critical Perspective on Contemporary Family L.J. 337, 337 (2004). g , 18 C g S ’ THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Quite apart from answering our questions about the constitution- answering our questions about the Quite apart from —over ten years later, even—instead for creates further dilemmas 28. 26. Strader, 27. Bestiality, too, is a subject of some debate but I, for one, am less concerned with Bestiality, too, is a subject of some debate 29. 30. 25. Lawrence OMEN ican Way The Constitutionality of Laws Criminalizin 1370 (2010); Marybeth Herald, Lawrence v. Texas (2009); Nathan R. Curtis, Note, (arguing that (describing difficulties of judicial application of the harm principle). (describing difficulties of judicial application ple”); Darryl K. Brown, ics of Dis N.W. U. L. R 558, 586–605 (2003) (Scalia, J., dissenting), overstated his objections to the majority opin- ion—bestiality laws, among others, can be justified on grounds beyond mere moral disapproval. of is no fundamental federal constitutional F.3d 762 (10th Cir. 2008), which held that there right to engage in consensual sex). bestiality laws as a constitutional matter. Even on a more libertarian reading of am confident that the Court would find the state interests in public health and protection of animals from abuse to be sufficient for upholding such criminal prohibitions. On this score, as on others, I think Justice Scalia’s mental Ri rence v. Texas: Craftin W 2014] abstract. in the harmful socially not merely harmful, is actually that Para- the Exclusions that lower courts claim of the also rejects Strader that conduct claim involving on any to relief bar is an absolute graph that paragraph. implicates and the Inevitable Normativity of Group Reco \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 5 1-MAY-14 14:39 mentary sees as to the the literature has been widely divergent consensual adult sex, that nature of the right rence do not involve consensual sex, where those crimes the criminal law of or other sex, public sex, force or coercion, minors, commercial in the Exclusions Paragraph.exploitation contemplated These dilem- in the existing scholarship on mas are reflected judicial scrutiny to which courts must subject sex crime legislation. which courts must subject sex crime judicial scrutiny to then, of sex crime legislation in America, ally permissible scope Lawrence of sexual devices allowed the Court to reserve for another day those cases in which the those cases in which for another day Court to reserve allowed the did a problem the Court identifiable harm, involve some conduct might to confront in not have showing of harm. showing academic interest but, perhaps more importantly, a continued frustra- academic interest but, perhaps more 34929-nde_28-1 Sheet No. 70 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 70 34929-nde_28-1 34929-nde_28-1 Sheet No. 70 Side B 05/07/2014 15:37:06 33 did . See, [Vol. 28 Lawrence terms, can Or such as 32 might protect. Lawrence 582 (6th ed. 2012). AW L Lawrence RIMINAL ETHICS & PUBLIC POLICY C LAW, the proposition seems far less preposter- NDERSTANDING , U Lawrence— RESSLER right of consenting adults to engage in private, non- right of consenting adults to engage State v. Hollenbeck, 53 A.3d 591 (N.H. 2012) (holding D some enerally OSHUA J g NOTRE DAME JOURNAL OF See See a man, D, looks very much like a famous actor, X. V, a woman, very much like a famous actor, X. a man, D, looks To wit, the constitutionality of criminal sanctions concerning both concerning of criminal sanctions constitutionality To wit, the Crimes involving consensual sex between categories of persons—Crimes involving consensual sex between 33. There is an excellent body of academic literature on the enforcement of college 32. 31. 31 what we might think of as prohibited sexual partners—arewhat we might think of as prohibited per- equally not prevent enforcement of felonious sexual assault statute where a psychotherapist had consensual sex with former patient within one year of termination of therapeutic relationship). and university policies forbidding sexual relationships between faculty and students 130 right a concerning and ambivalence vagueness Court’s about the tion unlimited. vital, if not socially seems so that cases to the fairly easy range from and category-of-victim manner-of-sex difficult.the far more sex manner of having punishing the Crimes punish laws, to those that reformed rape traditional and range from by fraud or seduction.rape obtained prob- of the latter Some variation to have person in order deceives another one person lem is familiar: sex with them. on rape by who teach criminal law materials Those scena- it with a classic deception/seduction fraud may well introduce rio: \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 6 1-MAY-14 14:39 sees D and approaches him for conversation, believing that D is the him for conversation, believing sees D and approaches famous actor X. perpetuates the indicates this belief to him, and D She to be X.falsehood, pretending wants to go to his He asks her if she sex that is, in all she does willingly, and they have hotel room, which consensual.apparent respects, D is not X and Afterward, V realizes that X, not D. was limited to having sex with claims that her consent Is this sex crime?rape, or some other Or, to put it in post- plexing. and comparatively uncontroversial Again, there are the easy legally have sex with a ten-year-old, examples: a forty-year-old may not for example. such as barring a psychothera- Yet harder problems exist, relations with a patient, even if pist from engaging in consensual sexual the two has ended. the therapeutic relationship between the state constitutionally criminalize sex obtained by deception, where criminalize sex obtained by the state constitutionally act and therefore deceived as to the nature of the the victim was not to the sex? knowingly and voluntarily consented prostitution sexual conduct, the level of abstraction arguably (if impre- prostitution sexual conduct, the level cisely) adopted in ous.ask whether these are among the It is therefore reasonable to that kinds of consensual sexual relationships barring a twenty-three-year-old from having consensual sex with a barring a twenty-three-year-old from teacher and the latter is a student at nineteen-year-old, if the former is a college professor from the teacher’s high school, or a thirty-year-old a twenty-five-year-old graduate stu- having private consensual sex with dent. that the Constitution might Perhaps it is a preposterous notion high school teacher and adult stu- be thought to protect sex between a and patient, without regard to the dent, or between a psychotherapist are consenting adults.fact that the parties in these situations But if of abstraction—thatviewed at a somewhat broader level the Constitu- tion protects 34929-nde_28-1 Sheet No. 70 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 70 34929-nde_28-1 34929-nde_28-1 Sheet No. 71 Side A 05/07/2014 15:37:06 governs, , 539 U.S. at , and that is could have that Carpenter g is (though it is (though creates the poten- law of consensual LAWRENCE 131 Lawrence is a masterful judi- is a masterful is perhaps less con- See Lawrence note 9, at 960–61. But Lawrence fundamental rights, fundamental Lawrence criminal somethin Lawrence Lawrence supra Lawrence Lawrence Lawrence, Massey, note 11, at 1167. The first involves sex obtained , this Article therefore explores , this Article therefore . 117 (2005). I will refer to this body of See 36 must protect EV supra . L. R Lawrence ’s holding and have not been the subject of much ILL Part III.D. Lawrence infra Carpenter, , despite the fact that these areas of sex crimes are often ’s Quintessential Millian Moment and Its Impact on the Doc- ’s Quintessential Millian Moment and Its Impact , 50 V , See Lawrence ’s Exclusions Paragraph: private, non-prostitution, ’s Exclusions Paragraph: for adults to engage in private, consensual, non- for adults to engage Lawrence and (3) consequently, and (3) consequently, Lawrence 35 (2) nevertheless, to have meaning or importance as a meaning or importance to have (2) nevertheless, , and does not fully engage the issues of administrative or civil sanctions 34 Lawrence ’s looseness and ambiguity. perhaps far more conservatively than it is written). perhaps far more conservatively than it is These two particular some kind in the following ways: (1) although ways: (1) although in the following Lawrence THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Again, much has been said about said about has been much Again, With this understanding of With this understanding Lawrence 34. of On this, I concur substantially with the reading 35.the definition of the right, protecting It is possible to add an additional limit on 36. criminalizing sex by fraud To be clear, this Article does not oppose legislation Paul M. Secunda, Lawrence Lawrence ., g expressed in his early article. literature more fully in Part III. more on this aspect of it only when the sex occurs as part of an intimate relationship. it only when the sex occurs as part of an intimate and certainly does not advocate such con- or sex between teachers and adult students, duct. as it is written, The point of this Article is to argue that, 567. Calvin Massey has described it this way. highly-publicized and often the subject of reported cases, making them worthy topics for scholarly discussion. Moreover, this Article is focused upon the sex after e. trine of Unconstitutional Conditions literature in the wake of 2014] of sex crimes (though lower courts have tial for constitutional challenges to a wide range read areas—sex students—appropriately by fraud and sex between teachers and adult high- light the problems created by for consensual sexual conduct, though this Article acknowledges the possibility of (and perhaps, in some cases, preference for) such sanctions, even without criminal ones. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 7 1-MAY-14 14:39 this ambiguity as it relates to, and the extent to which relates to, and the extent to which this ambiguity as it be proscribed of sexual conduct that cannot plainly the criminalization pursuant to and the standard of review, and I do not wish in this Article to repeat this Article wish in I do not and of review, the standard and litera- in the existing appears case that on the dialogue the excellent ture. so here. is it necessary to do Nor for this Article accounts Rather, Lawrence fair to conclude that of mystery, it is cial work adults.consensual sex between focuses upon In doing so, this Article potential effects of sex crimes which demonstrate the two distinct areas of matter of constitutional law, matter of constitutional a right of need not be) a relatively conservative opinion as to the criminal law of as to the criminal opinion be) a relatively conservative need not sex generally; servative, but still deeply ambiguous and ambivalent, as to the criminal deeply ambiguous and ambivalent, servative, but still non-prostitution adult sex. law of private, consensual, prostitution sex that does not harm others or an institution that the does not harm others or an institution prostitution sex that state may protect; by fraud or seduction, where the adult parties both consented to engag- by fraud or seduction, where the adult traditional criminal law distinction ing in sexual activity, implicating the in the inducement.between fraud in the factum and fraud The second sexual partners, with special involves criminal laws governing forbidden matter of secondary school teacher- attention given to the highly public consenting adults.student sexual relationships between This Article language in argues that the loose and ambiguous real implications for the criminal law of sex in America in these areas real implications for the criminal law rectify this shortcoming by clari- and others, and that the Court should 34929-nde_28-1 Sheet No. 71 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 71 34929-nde_28-1 34929-nde_28-1 Sheet No. 71 Side B 05/07/2014 15:37:06 . 39 CBS , 123 Ryan EV [Vol. 28 See . L. R The Riddle of ic, But Experi- EDUCTION g e cop avoids jail g S ROOK No, the court Not Lo 38 as Brother for Sex, Ex-Oran g , 64 B RAUD OR F Jed Rubenfeld, L.J. 1372 (2013). Rubenfeld No Way Around Consent: A Reply See ALE . 321 (2013); Deborah Turkheimer, About the Riddle of Rape-by-Fraud g (March 9, 2012, 12:00 AM), http:// 122 Y Brian McCready, NLINE ETHICS & PUBLIC POLICY BTAINED BY Lawrence See EGISTER O L.J. O LAW, ’s real virtue actually lies in the narra- actually lies in ’s real virtue R Tom Dougherty, 335 (2013); Patricia J. Falk, Pleads Not Guilty to Posin EX ] (compiling cases from several categories of rape ] (compiling cases from several categories of ALE g rape by coercion, this Article excludes criminal right and its application in the world of in the application and its right S AVEN at 923. He was convicted of rape of an unconscious and NLINE H Id. enerally g 123 Y EW Lawrence , 539 U.S. at 578. if somewhat For a truly comprehensive, Rape by Fraud and Rape by Coercion See § 261(a)(4) (West 2008). , N L.J. O Lawrence -related constitutional problem. although Falk’s Accordingly, ODE Rape by Fraud provides little additional constitutional protection constitutional additional little provides ALE C See Lawrence Lawrence ENAL , 123 Y . 353 (2013). . P Lawrence RIMINALIZATION OF AL on Lessons from the Real World in Thinkin Patricia J. Falk, C g NOTRE DAME JOURNAL OF C NLINE See Lawrence See HE But the criminal law must decide when such lies or misrepresen- But the criminal Twin Trouble: Ex-Cop Jared Rohri The stories and lies that one will perpetuate to persuade another that one will perpetuate to persuade The stories and lies (Oct. 12, 2009, 8:18 AM), http://www.cbsnews.com/8301-504083_162-5372039- Jed Rubenfeld has penned a more recent, and provocative, account of the problem Jed Rubenfeld has penned a more recent, and A somewhat similar factual scenario arose in Connecticut in 2009. Police officer A somewhat similar factual scenario arose 38. People v. Morales, 150 Cal. Rptr. 3d 920, 921–22 Ct. App. 2013). (Cal. Julio 37 37. L.J. O EWS I. T ALE prohibitions involving coercion, because those are clearly subject to the Exclusions Para- prohibitions involving coercion, because those graph of dated, account of these sex crimes, I highly recommend Falk’s piece. dated, account of these sex crimes, I highly created by deceptive sex, and its relation to article covers both rape by fraud (1998) [hereinafter Falk, by fraud). Falk’s piece is extraordinarily comprehensive. This Article does not seek to way.taxonomize rape by fraud in such a comprehensive Rather, it merely offers a synop- is an issue as to the validity of consent, in sis of this category of sex crimes, where there order to frame the Rape-by-Deception and the Myth of Sexual Autonomy, to Rubenfeld on “Rape-by-Deception,” Sex Without Consent Smith, argues that rape law ought to be based on a right of self-possession.argues that rape law ought to be based on a His piece has been subjected to strong criticism. N Y www.nhregister.com/general-news/20120309/ex-orange-cop-avoids-jail-in-milford-twin- sex-switch-case-document-3. ence: Drawin Jared Rohrig allegedly pretended to be his identical twin brother, Joe, in order to have Jared Rohrig allegedly pretended to be his sex with Joe’s girlfriend.encounter, the girlfriend realized that Jared During their sexual that Joe had on his backside. was not Joe because Jared did not have the tattoo Morales was accused of entering Jane Doe’s bedroom after her boyfriend left and having Morales was accused of entering Jane Doe’s sex with her while she was asleep. person. 504083.html. He pleaded no contest to unlawful restraint and criminal impersonation; the State dropped the sexual assault charges. in Milford twin sex Switch case 132 of the the scope fying sex. adult non-prostitution and consensual, private, involving crimes if But even \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 8 1-MAY-14 adult sex, for consensual 14:39 tations produce such significant social harms that they warrant moral significant social harms that they tations produce such the community.condemnation by court phrased one As a California enters the dark it reviewed a recent case, “[a] man such problem when leave late woman after seeing her boyfriend bedroom of an unmarried pretending to intercourse with the woman while at night and has sexual be the boyfriend. Has the man committed rape?” into sex, range from the ridiculous to the bizarre and the truly detesta- the ridiculous to the bizarre and into sex, range from ble. tive that it stimulates beyond constitutional rights—a stimulates beyond tive that it conversa- political sex in of and over-prosecution the over-criminalization tion about America. said—or, California makes it but only if she is married, because yes, the victim into with a person where the actor deceives crime to have sex 34929-nde_28-1 Sheet No. 71 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 71 34929-nde_28-1 34929-nde_28-1 Sheet No. 72 Side A 05/07/2014 15:37:06 N. UARDIAN ONALD G He had He HE 40 & R T The rule was LAWRENCE 133 44 ain,’ g ERKINS M. P 594 (5th ed. 2009). OLLIN AW § 17.3(c) at 908 (5th ed. 2010) uilty of rape after consensual sex with L g AW The court’s conclusion was based on L . . In 2010 in Israel, an Arab man, an Arab in Israel, In 2010 Arab RIMINAL 39 § 261(a)(5) (West 2008). C e ‘was result of a plea bar g May American criminal law punish May American criminal RIMINAL note 40 ODE Victims’ Excuses: The Case of Fraudulently Procured note 37, at 1398–1400. 43 , C C AVE supra supra F ENAL A , Saber Kashour: “My conviction for ‘rape by deception’ has , Saber Kashour: “My conviction for ‘rape by . P NDERSTANDING (July 24, 2010), http://www.guardian.co.uk/world/2010/ AL R. L C Pursuant to one popular description of the doc- Pursuant to one , U note 44, at 594. Fraud in the inducement, then, was akin to what Fraud in the inducement, then, was 45 See AYNE Rubenfeld, Traditional and Contemporary Approaches Traditional and Contemporary As part of a plea bargain, he was convicted under As part of a plea 47 W UARDIAN 215 (3d ed. 1982) (stating “consent induced by fraud is as effective See . supra (July 20, 2010), http://www.guardian.co.uk/world/2010/jul/21/ RESSLER 42 G , AW This is fraud in the factum. other hand, if the On the Arab rape-by-deception char 330, 331 (1986). Rubenfeld is highly critical of the reasoning underly- 150 Cal. Rptr. 3d at 921–22, 929 A. D HE L 46 T By all objective indications, according to one of the Israeli according to one indications, By all objective Harriet Sherwood Adetunji & Sherwood, Subsequently, media reports described a more complicated case in which Subsequently, media reports described a more THICS Joe Adetunji & Harriet Sherwood, UARDIAN 41 . RESSLER OSHUA Id. See also See See Id. Id See Morales, G RIMINAL , 96 E HE , C THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE The traditional rule in the law of rape was, as Joshua Dressler in the law of rape was, as Joshua The traditional rule 45. 40. 42. 43. 46. D 47. 41. 44. J 39. Rachel Shabi, , T OYCE that is, if the deception precluded her from knowing that she was con- precluded her from knowing that is, if the deception B Jew the victim had complained of a forcible rape that was plea bargained to a reduced charge. the victim had complained of a forcible rape See context); R (explaining the distinction in the rape law ruined my life,” jul/25/saber-kushour-rape-deception-charge. the fact that it was unclear whether the jury convicted Morales based on the theory that the fact that it was unclear whether the jury theory) or on the theory that she was she was asleep (which would have been a valid was not valid on these facts).unconscious as to the nature of the act (which Had the convicted under the section of the Penal victim been married, Morales could have been Code described above. as any other consent . . . if the deception related not to the thing done but merely to some collateral matter”); Joel Feinberg, Consent ing the distinction. arab-guilty-rape-consensual-sex-jew. (Sept. 8, 2010, 1:09 PM), http://www.guardian.co.uk/world/2010/sep/08/rape-by- deception-plea-israel 2014] is her spouse. the actor that believing \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 9 1-MAY-14 14:39 victim knew that she was consenting to sex, and was deceived only as to victim knew that she was consenting of the act of having sex, then the some fact ancillary to the nature victim consented and he could not defendant could fairly claim that the be guilty of rape. judges, the sex itself was consensual, but the woman complained after- woman complained but the sex itself was consensual, judges, the he him had she known have had sex with she would never ward, saying was not Jewish. by deception. local law of rape trine, if the victim was deceived as to the nature of the sex act itself— was deceived as to the nature of the trine, if the victim senting to sex—then escape liability by claim- the defendant could not ing consent. who worked in Jerusalem, had a sexual encounter with an Israeli with encounter a sexual had in Jerusalem, worked who not Jewish. he was that learned subsequently who woman this conduct? appropriately describes it, that a seducer is not a rapist. appropriately describes given her a name, “Dudu,” that is a common Israeli name, and the Israeli name, that is a common a name, “Dudu,” given her that he nor did he tell her he was Jewish, asked whether woman never was Arab. predicated upon the distinction between fraud in the factum and fraud distinction between fraud in the predicated upon the in the inducement. 34929-nde_28-1 Sheet No. 72 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 72 34929-nde_28-1 34929-nde_28-1 Sheet No. 72 Side B 05/07/2014 15:37:06 51 In a The [Vol. 28 57 49 Ms. R. . 52 69, 76–77(1988). note 56, at 76–77 (ask- THICS supra . E UST People v. Morales, 150 Cal. Rptr. 55 . J See Boro v. Superior Court Boro v. Superior Berger, . Claiming to be “Dr. Stevens,” Claiming RIM ETHICS & PUBLIC POLICY 50 , 7 C see also Don Moran v. People, 25 Mich. 356, 357–58 Morales See LAW, L.J. 1087, 1120 (1986). ALE . A conviction in the latter is improper because the state . A conviction in the latter is improper because is discussed in note 44, at 584; , 95 Y Not So Simple Rape Boro Or, as Dressler and others have asked, would that Or, as Dressler and others have asked, Boro Rape supra 56 , Boro was charged with rape under California law but with rape under California law Boro was charged 54 RESSLER 48 D Vivian Berger, Ms. R. said she believed she would die if she did not get the she would die if she did not Ms. R. said she believed . at 1226. . . . at 1227. . . at 1230–31. NOTRE DAME JOURNAL OF See See Id Id Id Id Id Id 53 Particularly in light of the rape reform movement that desired Particularly in light of the rape reform One of the most well-known cases on the factum-inducement dis- cases on the factum-inducement most well-known One of the 56. 57. 49. 163 Cal. App. 3d 1224 (Cal. Ct. App. 1985). 50. 51. 52. 53. 54. 55. 48. Susan Estrich, cannot prove the force required for rape. (1872) (doctor induced fifteen-year-old girl to have sex with him by falsely telling her that her father consented, that he treated all women with sex, and that the alternative was a painful procedure that would probably result in her death). ing whether a false “I love you” constitutes a material misrepresentation warranting liabil- ity for rape by fraud). 3d 920, 927 (Cal. Ct. App. 2013). the cases in which consent was said to exist Distinguish from those in which there is, for example, based on the factum-inducement dichotomy therapeutic deception as in 134 fashioned “old as simply Estrich by Susan been described has seduction.” when he was would cost her only $4,500, but The latter option “Dr. Stevens” could not afford that option either, informed that she would be a sufficient down payment. told her that $1,000 \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 10 1-MAY-14 14:39 “treatment.” factum-inducement distinction focus on the issue of consent, the seemed troubling. in the inducement the same? After all, is all fraud difference between a perpetrator Should there be a legally cognizable on the one hand, and the perpetra- claiming that he is a famous actor, not have a sexually transmitted dis- tor assuring a woman that he does sleep with him but only if he does ease, where the woman says she will not have an STD? tinction was the famed California case of the famed California tinction was the California Supreme Court ruled that this was fraud in the induce- Court ruled that this was fraud the California Supreme ment—and therefore not rape—because Ms. R. fully and willingly con- her reasons with the unknown person, even though sented to have sex a fraud. for doing so were predicated upon lead to some absurd results (for example, a man would be guilty of rape lead to some absurd results (for example, her, thus inducing her to have sex if he told his girlfriend that he loved that he never loved her)? with him, even though he later admits he told her that there were only two ways to treat the disease: one was a treat the disease: one only two ways to that there were he told her sex with a man surgery, the other was to have painful and expensive the disease. a donor of a serum that would cure who could serve as could not afford the surgery, so she agreed to the sexual encounter, the surgery, so she agreed to the could not afford donor out in a hotel room with the anonymous and it was carried (Boro). defendant Boro telephoned the victim, Ms. R., claiming to have blood R., claiming to have the victim, Ms. Boro telephoned defendant that a deadly disease she suffered from that suggested test results toilets. the use of public resulted from 34929-nde_28-1 Sheet No. 72 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 72 34929-nde_28-1 34929-nde_28-1 Sheet No. 73 Side A 05/07/2014 15:37:06 She com- 60 LAWRENCE 135 As Estrich popu- 59 Berger says she has 64 Estrich does not claim 61 . 1780, 1799–1800 (1992). Unlike Estrich, who considers EV 63 . L. R note 37, at 49–50. OLUM supra , Beyond Rape: An Essay on the Difference Between the Presence of , 92 C —conceded the strength of Estrich’s argument, note 48, at 1115–21. 66 note 56, at 76–77. supra supra Moreover, he wrote, in light of the complexity of sexual Moreover, he wrote, in light of the complexity Rape by Fraud 67 Perhaps the criminal law’s task, then, is to articulate some task, then, is to the criminal law’s Perhaps Estrich, at 77. at 1802. Dripps preferred instead to focus the sexual expropriation Dripps preferred instead to focus Donald A. Dripps, Berger, Falk, at 76. at 1120–21. at 1121. at 1802–03. at 1119–21. 58 Similarly, Donald Dripps—advancing the idea of a sexual See Id. Id. See Id. Id. Id. Id. Id. See See 68 The factum-inducement distinction is inadequate. The factum-inducement 65 THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE 62 Some scholars like Susan Estrich began asking for a criminal law Susan Estrich began asking for a Some scholars like Others, though, questioned criminalizing this kind of fraud questioned criminalizing this kind Others, though, 66. 65. 64. 63. 62. 60. 61. 68. 67. 59. 58. Force and the Absence of Consent 2014] Falk Patricia coercion, and deception rape by study of comprehensive because “problematic” as dichotomy factum-inducement the described examin[e] “critically fails to that legal distinction a formal upon it relies of the voluntariness that impugn of fraudulent inducements the types consent.” \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 11 1-MAY-14 14:39 expropriation offense that would capture certain conduct less serious expropriation offense that would capture of violence or violent threats is than rape in which pressure short exerted to obtain sex broadly.to Estrich’s paper, suggesting that Vivian Berger responded are despicable characters, many men who engage in such deceptions but ought not to be called rapists. meaningful distinctions among the types of fraud in the inducement, the types of distinctions among meaningful kinds of work particular upon frauds that criminal sanctions imposing and social harms. personal all sex obtained by deception. that sought to punish relationships and the difficulty of determining the causal relationship relationships and the difficulty of determining proposals to criminally punish between sex and a particular deceit, in the “sweeping criminalization fraudulently obtained sex could result of sex.” but was also careful to distinguish extortionate sex from fraudulently but was also careful to distinguish obtained sex. fraudulent sex and extortionate sex together, Berger separates the two fraudulent sex and extortionate sex culpable. and considers sex by extortion far more that sex by fraud or deception ought to be treated and punished the or deception ought to be treated that sex by fraud it to be criminal- forcible rape, but she plainly wishes same as traditional ized. “minimal sympathy for the idea that the law should protect, via criminal “minimal sympathy for the idea that of women who sought to sleep their sanctions, the cheated expectations that they were dealing with swin- way to the top but discovered, too late, dlers.” larly framed the question, why is it that we make it a crime to obtain why is it that we make it larly framed the question, we do not do the through fraud or deception, but someone’s property sex? or deception is used to obtain same when the fraud pares the then-extant rape law to the law of false pretenses and theft by rape law to the law of false pretenses pares the then-extant integrity is a “dif- concludes that loss of bodily deception, and ultimately injury than loss of money.” ferent and greater 34929-nde_28-1 Sheet No. 73 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 73 34929-nde_28-1 34929-nde_28-1 Sheet No. 73 Side B 05/07/2014 15:37:06 . NN . A That [Vol. 28 Other at 1804. 72 TAT Id. 70 . S EV . R , the Tennessee OLO Alabama also makes . §§ 18-3-405.5 (1)(a)(II), 69 73 NN . A TAT State v. Tizard . S ETHICS & PUBLIC POLICY EV at 735–37. The physician argued that the . R LAW, Id. OLO . §§ 53a-71(a)(6), (7) (West 2012 & Supp. 2012); at 740–41. § 261(a)(D) (West 1872); C Id. TAT . S ODE EN § 261(a)(4)(D) (West 2013). C . § 39-13-503(a)(3) (2010). . G for example, California changed its rape law and for example, California NN . § 45-5-501(1)(a)(ii)(C) (2011). ODE Beyond this broader category, many states have Beyond this broader category, many This is perhaps the broadest of all state criminal This is perhaps the ENAL A NN C § 13A-6-65(a)(1) (1975). ONN A 75 . P 71 Boro, ODE AL ODE ENAL C ODE . C And Montana, for purposes of its sex crime provisions, And Montana, for purposes of its . P . C ., . 21-5503(a)(4) (West 2010 & Supp. 2011). For a fuller discussion, see . C g AL LA ENN 74 A T C NN at 741. at 1803. new offense, then, would be to Dripps writes that, “[t]he gist of the ONT NOTRE DAME JOURNAL OF . A See See, e. See Id. See Id. 76 TAT In modern criminal law, many states have taken seriously this schol- states have taken criminal law, many In modern Shortly after 76. 74. 70. 71. 75. M 72. 897 S.W.2d 732 (Tenn. Crim. App. 1994). There, a physician who had been 73. 69. . S AN §§ 18-3-402(1)(c) (West 2001), (g); C K 2(a)(II) (West 2001); C punish any one who purposely or knowingly engages in a sexual act with another person, punish any one who purposely or knowingly a refusal to engage in that act.” knowing that the other person has expressed added a new provision, which now makes it a crime to induce a person which now makes it a crime to added a new provision, is procured by sex acts where the victim’s consent to engage in certain served a representation that “the sexual penetration false or fraudulent when it served no professional purpose.” professional purpose victim was at all times aware that he was being masturbated and that he never objected; in victim was at all times aware that he was being and steroid injections from the physician, fact, the victim continued receiving treatment even after the initial masturbation. treating a seventeen-year-old boy masturbated the boy, claiming that he was obtaining a treating a seventeen-year-old boy masturbated semen sample to test white blood cells. 136 in intimate of words disregard and the consent issue of on the offense in sexual interests implicates conduct such that concluding affairs, violence. from in freedom not though autonomy \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 12 1-MAY-14 14:39 arly debate and have adopted the notion that not all fraud in the that not all fraud the notion and have adopted arly debate some forms of deception that at least is the same and inducement to she was consenting if the victim knew consent, even should vitiate sex. provides that a victim is incapable of consent due to “deception, coer- provides that a victim is incapable of cion, or surprise.” Court of Criminal Appeals expressly rejected the argument that fraud Appeals expressly rejected the argument Court of Criminal under the statute. only in the inducement would bar conviction proscriptions of sex by deception.proscriptions of sex In instances, making it a crime made sex by deception a crime in specific that the perpetrator is the victim’s to deceive a person into believing is a physician or other person spouse, or into believing that the person or any other professional authorized to perform a medical procedure service. it the crime of sexual misconduct for a male to engage in sexual con- it the crime of sexual misconduct for obtained by the use of any fraud duct with a female where consent “was or artifice.” court held that Tennessee law gave “fraud” its broadest meaning and court held that Tennessee law gave ineffective. that consent induced by deception is states have also adopted sex-by-deception prohibitions that appear to sex-by-deception prohibitions states have also adopted punitive than distinction, some more abolish the factum-inducement others. a Class E felony for example, sexual battery is In Tennessee, is “accom- penetration where the penetration and includes sexual plished by fraud.” 34929-nde_28-1 Sheet No. 73 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 73 34929-nde_28-1 34929-nde_28-1 Sheet No. 74 Side A 05/07/2014 15:37:06 a or ” involves LAWRENCE 137 factum in the context of con- Adult Impersonation: Rape by Fraud as a factum Id. . 75 (2007). EV ´ e? note 37, at 69 (describing unpublished case of or casting agent or famed fashion pho- or casting agent or famed fashion 78 supra , . U. L. R W 77 , 101 N Rape by Fraud United States v. Condolon, 600 F.2d 7 (4th Cir. 1979) (defendant con- ., Special Problems: Misrepresented Identity and Seduction and Identity Misrepresented Problems: Special would be committing only fraud in the inducement, so would be committing only fraud g 79 Falk, B. See See, e. THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Notice how this formulation may well differ from the one Notice how this formulation may Not all states have gone so far as to make all fraudulently obtained all fraudulently to make so far as have gone all states Not In this sense, consider a different formulation of the factum- a different formulation of In this sense, consider sensual intercourse? “ The better view is that the of the act and some knowledge of the identity both the nature of the participant.“doctor” cases, consent would not be Thus in the that the “procedure” being present unless the patient realized . . . . [W]e take it that even employed was not medical, but sexual make some assessment of the most uninhibited people ordinarily consenting to sexual inter- a potential sex partner . . . before course. on the identity of the Thus, consent to the act is based prospective partner. Clearly, fraud in the inducement includes such general knavery inducement includes such general Clearly, fraud in the the morn- “Of course I’ll respect you in as: “No, I’m not married”; dollars”; as soon as . . .”; “I’ll pay you _____ ing”; “we’ll get married and so on. to, they are not Whatever else such tactics amount rape. The question is—what is fraud in the 79. 77. United States v. Booker, 25 M.J. 114, 116 (C.M.A. 1987). The court found that 78. Oscar Kendall, who impersonated a famous fashion photographer in order to induce women into locations where he could have sex with them). victed of wire fraud after creating scheme to have sex with women whom he said he would assist in finding acting and modeling work). Booker’s conduct was fraud in the factum. Defense to Statutory Rape Russell L. Christopher & Kathryn H. Christopher, Russell L. Christopher & Kathryn H. Christopher, 2014] \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 13 1-MAY-14 14:39 described previously. formulation, the person who Using the previous or musician, or who feigns pretends to be a famous actor, athlete, employment as a talent scout sex a crime, continuing instead to recognize the traditional factum- the traditional to recognize continuing instead sex a crime, distinction.inducement is especially confounding that distinction But identity cases.in the mistaken being a about Does misrepresentation as misrepresentation the same harms or athlete work famous actor fianc a husband or about being long as the person from whom he obtained sex knew that she was con- long as the person from whom he obtained senting to sex. But using this latter formulation—if “factum” is predi- act is something other than sex cated upon either a belief that the says he is—thebelief that the actor is not who he would same person factum, because he is deceiving arguably be committing fraud in the the victim as to his identity. on this view, would be ineffective Consent, to sex because her consent even if the victim knew she was consenting inducement distinction. case of a man As one court has stated it, in the with a under military law after having intercourse convicted of rape another man, had recently had intercourse with sleeping woman who tographer, 34929-nde_28-1 Sheet No. 74 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 74 34929-nde_28-1 34929-nde_28-1 Sheet No. 74 Side B 05/07/2014 15:37:06 Id. [Vol. 28 When 88 She had sexual He made state- 89 The two then had The two 86 Suliveres v. Common- Suliveres v. 81 The room was dark and the was dark and The room ETHICS & PUBLIC POLICY 80 After stopping in a nearby school After stopping in 87 One approach suggests that, regard- LAW, 93 There, the victim entered Caracciola’s There, the victim note 37, at 66. The court disagreed.con- Caracciola’s 84 . These cases illustrate the more traditional 91 supra Contrast this with the same court’s decision Contrast this with , 92 83 Rape by Fraud sex—where the perpetrator fraudulently leads the victim The victim said she was “not fully awake” at the time of the penetration. The victim said she was “not fully awake” at Falk, at 778. at 777. at 775. at 1091. at 1088. NOTRE DAME JOURNAL OF See Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Caracciola claimed this was not rape in Massachusetts because Caracciola claimed this was not rape She noticed that he was wearing a firearm. She noticed that The court said this was fraud in the inducement and prohibited in the inducement said this was fraud The court continued to recognize the traditional factum-inducement dis- traditional factum-inducement to recognize the continued The Massachusetts Supreme Judicial Court in Judicial Court Supreme The Massachusetts Even more problematic are the mistaken identity cases that result Even more problematic are the mistaken 90 85 82 93. 92. 86. 87. 88. 89. 90. 91. 84. 569 N.E.2d 774 (Mass. 1991). 85. 83. 82. 80. 865 N.E.2d 1086 (Mass. 2007). 81. adulterous Commonwealth v. Caracciola wealth woman by impersonating had sex with a the defendant tinction where boyfriend. the woman’s his brother, 138 she can say, and, we identity assumed man’s on the be based would assumption. for that but consented not have would \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 14 1-MAY-14 14:39 the sex was merely induced by fraud, his lie that he was a police officer, the sex was merely induced by fraud, woman feel more comfortable which presumably simply made the about having sex with him. defendant’s prosecution for rape, recognizing that “[f]raudulently for rape, recognizing that defendant’s prosecution rape as to sexual intercourse does not constitute obtaining consent defined in our statute.” in approach in which fraud will not substitute for force, but where force is approach in which fraud will not substitute a rape conviction would be actually or constructively present, appropriate. in duct and threats about incarcerating the victim, combined with his mis- duct and threats about incarcerating officer, were sufficient to representations about being a police was sufficient to satisfy the Com- constitute constructive force, which monwealth’s rape statute. car after he instructed her to get off of the street where she was walk- her to get off of the street where car after he instructed ing. parking lot, the defendant began touching the victim’s legs. began touching the victim’s parking lot, the defendant woman assumed that the man was her boyfriend. that the man woman assumed to believe that he is the victim’s spouse. Courts have substantially dis- agreed as to whether this is rape. sex. she would be arrested if she did intercourse with him, fearing that not. ments implying that he was a police officer, such as when he said that if he was a police officer, such as when ments implying that up for more to stop crying, he would “lock [her] the victim did not planning on.” things than [he] was she said that she was afraid and that the police frequented the area, the afraid and that the police frequented she said that she was her that he was a police officer. defendant assured 34929-nde_28-1 Sheet No. 74 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 74 34929-nde_28-1 34929-nde_28-1 Sheet No. 75 Side A 05/07/2014 15:37:06 , that 61, 65–66 The law Sex and Guilt 99 NQUIRY LAWRENCE 139 . I . 144 (1921). OC EV & S . L. R Ann Coughlin, AW note 45, at 345 (explaining that OLUM See also 30 L supra At common law, seduction was At common law, , 21 C 96 Gender Inequality and Criminal Seduction: Prose- . 817, 867 (1996) (discussion of seduction in In other states, seduction typically EV note 37, at 1397 (describing impersonation of a note 37, at 1397 (describing impersonation Feinberg, 101 Cf. . L. R supra TAN note 45, at 908 (explaining various approaches). note 1, at 219. Seduction As a Crime Brian Donovan, , 48 S One of the early seduction laws was actually a fore- One of the early seduction By the early twentieth century, in most seduction By the early twentieth century, in most note 96, at 145–50. note 96, at 144. supra supra , 98 , Rubenfeld, 100 See also supra Yet by the early twentieth century (prior to the admis- Yet by the early twentieth AVE supra note 1, at 379 (discussion of history of seduction in tort). F Lewis v. State, 30 Ala. 54 (1857) (holding no rape occurred where slave Lewis v. State, 30 Ala. 54 (1857) (holding no A 97 Notably, though, these statutes were “broad enough to Notably, though, these statutes were ., L g See also RIEDMAN supra This latter view is consistent with the latter formulation of with the latter view is consistent This latter at 146–47. . 1 (1998) (arguing that fraud should negate consent where victim believed . 1 (1998) (arguing that fraud should negate F Regina v. Dee, 15 Cox C.C. 579 (1884). H.W. Humble, 102 at 154. EV Id. Id. 95 Other courts, however, suggest that this amounts to rape—as that this amounts however, suggest Other courts, Id. See See See See, e. See also al Ways of Seduction 94 g THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Finally, a small group of states today have statutes that separately of states today have statutes that Finally, a small group . L. R Sexual Coercion in the Early-Twentieth Century, g 97. 100. 101. Humble, 95. 96. 102. 98. Humble, 99. 94. A (2005) (stating that seduction existed as a tort since the colonial era); Lea Vandervelde, (2005) (stating that seduction existed as a tort The Le cutin 84 V woman’s husband as one of only two generally-recognized exceptions to the general rule woman’s husband as one of only two generally-recognized that deception is not rape). misrepresentation that induces adulterous sex results in more serious harm than other misrepresentation that induces adulterous sex between “suffering an evil and miss- types of misrepresentations of identity, the difference ing a good”). tort); Larsen, entered bed of a white woman and had sex with her, as she thought Lewis was her hus- entered bed of a white woman and had sex band). she was having sex with husband). 2014] the of the nature and the misrepresentation of of the nature less fraudulently and thus consensual, is nonetheless the sex sex, resulting the induce- fraud in merely spouse is victim’s be the to pretending ment. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 15 1-MAY-14 14:39 the factum-inducement distinction mentioned above: even though the above: even though mentioned distinction the factum-inducement is still guilty of consenting to sex, the perpetrator victim knew she was of the act, but a deception as to the nature rape because he worked upon her mistake as to his identity.deception is based Consequently, whether the juris- cases depend not simply upon the mistaken identity but also upon the factum-inducement distinction, diction recognizes applies. understanding of that distinction which variation or criminalize seduction. seduction crimes At one point, gender-specific the United States. were pervasive in fraud in the factum—becausefraud in the act of marital given is to the the consent is more adulterous sex and the resulting to adulterous sex, sex, not harmful. sion of Alaska and Hawaii) thirty-seven states had enacted criminal Hawaii) thirty-seven states had sion of Alaska and seduction statutes. jurisdictions the law had evolved and seduction required a false or pre- jurisdictions the law had evolved and tended promise of marriage. runner of the current teacher-student sex bans: Ohio in 1886 enacted a runner of the current teacher-student twenty-one who was a superinten- law that prevented a man over age sexual intercourse with any female dent, tutor, or teacher from having the sex was consensual. under his instruction, even where barred the seduction and debauchery of a woman of chaste or virtuous barred the seduction and debauchery character. merely a tort. “conclusively presumed that the tutor was a vile seducer, the pupil an “conclusively presumed that the tutor innocent victim.” 34929-nde_28-1 Sheet No. 75 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 75 34929-nde_28-1 34929-nde_28-1 Sheet No. 75 Side B 05/07/2014 15:37:06 [Vol. 28 as seduction Still, today, a 103 109 Still, others have 107 Not unlike rape law, as well Not unlike rape law, Oklahoma has a similar seduc- 105 ETHICS & PUBLIC POLICY 110 LAW, 108 note 1, at 393-97. supra . tit. 21, § 1120 (West 2002). note 1, at 218–20. § 750.532. NN Michigan has the broadest seduction prohibition Michigan has the broadest seduction note 97, at 83. AWS . A supra 112 , . L 111 § 97-29-55. TAT supra . S 104 OMP ODE at 82; Larsen, . C KLA RIEDMAN . C F at 221–22. (quoting State v. O’Hare, 36 Wash. 516, 518 (1904)). (quoting State v. O’Hare, 36 Wash. 516, 518 ISS ICH . at 146. The ruination of a female was taken so seriously that not only a female was taken so seriously that The ruination of NOTRE DAME JOURNAL OF See id. See Id. Id. Id. Id 106 Later in the twentieth century, many states abandoned their seduc- Later in the twentieth century, many Interestingly, then, conduct that might well exculpate a man from that might well then, conduct Interestingly, 110. M 108. Donovan, 109. 105. 106. 107. 104. 112. M 111. 21 O 103. 140 with consent,” case of intercourse every practically cover \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 16 1-MAY-14 14:39 tion laws as part of a growing trend of “anti-heart-balm” statutes tion laws as part of a growing trend female sexuality. designed to account for more active was it the object of criminal legislation, it also gave rise to what Law- of criminal legislation, it also gave was it the object “unwritten law” that justified the rence Friedman has described as the by a man in defense of his wife’s, use of force or violence (often deadly) honor. daughter’s, mother’s, or sister’s personal the crime of rape because it is merely fraud in the inducement could in the inducement it is merely fraud of rape because the crime seduction statute, to criminal liability pursuant to a actually subject him statutory character requirement.if the woman fit the This may seem free of criminal the idea that a person should be inconsistent with to sexual inter- the woman knowingly consents responsibility where inducement doc- defining element of fraud in the course, which is the trine.different concern: laws were predicated upon a But seduction to the sex, woman would not have consented that a chaste or virtuous of the seducer. but for the enticements that does not require a false promise of marriage: it is a felony punisha- that does not require a false promise simply to seduce and debauch an ble by up to five years for a man unmarried woman. tion statute that makes it a crime to have sex with a woman under false tion statute that makes it a crime to promise to marry. as criminal prohibitions on adultery, the preservation of female virtue, on adultery, the preservation as criminal prohibitions of seduction legis- identified as the core concern it turns out, has been lation. suggested that, despite the modern view of criminal seduction as a suggested that, despite the modern repressive bygone era, those laws product of a paternalistic and sexually sexual violence and coer- were actually important tools for combating social justice for vulnerable work- cion and “acted as an instrument of ing-class and immigrant women.” few seduction statutes remain notable. In Mississippi, it is seduction obtain carnal knowledge of any (punishable by up to five years) to by virtue of a feigned or pretended woman of previous chaste character marriage or a false promise to marry. was understood to encompass “‘the to encompass was understood to or wiles of arts, persuasions, use voli- of her disposed, is not female who of the resistance the overcome arts or . . . Any seductive path of virtue. aside from the tion, to step thereto, reluctantly yields involuntarily or where the female promises, are sufficient.’” 34929-nde_28-1 Sheet No. 75 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 75 34929-nde_28-1 34929-nde_28-1 Sheet No. 76 Side A 05/07/2014 15:37:06 consen- ic, But Experi- g in fact LAWRENCE 141 could possibly Not Lo constitutionalizes Falk, Lawrence See also Lawrence are the seduction crimes, where of deception will suffice for criminal will suffice for of deception note 37, at 167. kinds Lawrence supra , and the Sex by Fraud or Seduction Crimes and the Sex by Fraud ’s protection. If the state retains a factum-induce- is unnecessary. former situa- Consequently, in the protects a right to engage in private, consensual, adult protects a right to Rape by Fraud narrow avenue of protection for a defendant accused of a protection for a defendant accused narrow avenue of in which a defendant has been accused of a seduction or in which a defendant has been accused Lawrence Falk, And yet in some jurisdictions, most any deception will suf- most any deception in some jurisdictions, And yet ’s protection. Lawrence very C. Lawrence See , there remains a tiny category of prosecutions in which such , there remains a tiny category of prosecutions . Part, then, the best candi- Of the crimes implicated in this note 37, at 368–69 (observing that criminal laws applicable to fraudulent sex 113 Lawrence THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Lawrence Most states, then, punish some form of fraudulent sex or sex by sex or fraudulent form of some punish states, then, Most If The problem, for a criminal defendant, is this: if the state defines The problem, for a criminal defendant, Of course, rape obviously falls outside of any constitutional protec- Of course, rape obviously falls outside 113. Lawrence ence, supra have been evolving as more real world examples shed light on the harms done). 2014] \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 17 1-MAY-14 14:39 inducement or enticement. or inducement distinc- factum-inducement traditional The law of other in the rape and the law of both in down, has broken tion sex crimes.law, then, is a realization modern criminal What we see in sex whether to criminalize question is not observation that the of Falk’s but rather what by deception, liability. fice. the law in which of an American criminal trend is evidence This essential defining toward making non-consent the pendulum has swung fraud that do not rape, where some categories of element of modern what would nature of the act may be said to vitiate deceive as to the in fact to sex. otherwise be consent sexual activity, then, the argument might run, sexual activity, then, provide a sual. any situations case law does not appear to address Although the post- such an argument relying on sex-by-deception crime and has made Lawrence but it would almost certainly an argument would at least be plausible, like the one in Michigan—ahave to involve a seduction statute rare statute that is seldom enforced. by fraud likely contains a suffi- Rape some cases, much more than this) cient element of exploitation (and in the abstract and would fall outside to at least justify state regulation in of seduction or sexual deception crime where the sex was deception crime where the sex was seduction or sexual consent as being vitiated by fraud (even where fraud was in the induce- consent as being vitiated by fraud (even nonconsensual and is thus outside ment), then the sex is by definition the zone of in the inducement, then state ment distinction and the fraud is merely in the first place and the pro- criminal law cannot reach the defendant tection of tion, the defendant would have to argue that tion, the defendant would have to argue and forbids state law from defining the factum-inducement distinction the common law would not have something as nonconsensual where vitiated consent. far too much of the Court and of This is likely asking Lawrence dates for attack pursuant to applied to seductive sex between adults. tion. But for a challenger, the relevant question is which understand- ing of rape we mean when we say this. Is it possible, one might ask, that 34929-nde_28-1 Sheet No. 76 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 76 34929-nde_28-1 34929-nde_28-1 Sheet No. 76 Side B 05/07/2014 15:37:06 all that [Vol. 28 Perhaps 115 Lawrence . L.J. 1059, 1064 (2004). T 117 S HIO because fraud in the factum because Tennessee could not enforce ’s small universe of protection. , as Cass Sunstein has observed, , as Cass ETHICS & PUBLIC POLICY 118 says “coerc[ion]” and “injur[y]” says “coerc[ion]” —then it is fair to conclude that Lawrence, 65 O LAW, Lawrence 116 does not constitutionalize the factum- Lawrence Lawrence Lawrence constitutionalized the factum-inducement Liberty After . § 39-13-503(a)(4) (West 2005). functions only pursuant to the traditional fac- only pursuant to functions note 1, at 414. Larsen is speaking in the context of tort Lawrence NN note 45, at 909 (placing rape-by-fraud cases in category of A , even if state law does not follow that legal distinc- , even if state law does supra supra ODE Lawrence , Lawrence . C If AFAVE ENN Lawrence L Lawrence v. Texas, 539 U.S. 558, 578 (2003). T Larsen, Cass R. Sunstein, 114 NOTRE DAME JOURNAL OF See See See See See So if (as is likely) 116. 115. 118. 117. 114. actions, but her conclusions about the harm done and the relationship of fraud and con- sent seem to apply equally in the area of criminalization. “coercion”). inducement distinction, political actors therefore retain the latitude to inducement distinction, political actors define what conduct vitiates consent. In Tennessee criminal law, for example, all fraud negates consent. 142 dis- of the factum-inducement aware was sufficiently Kennedy Justice constitutional ensure to sought his opinion law that in rape tinction did so unwittingly? that he or that distinction, for protection predi- The in right recognized cate to the is consent. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 18 1-MAY-14 14:39 tum-inducement distinction, then situations where fraud in the factum where fraud in the then situations distinction, tum-inducement by be unprotected exists would vitiates the consent given.vitiates the does in the inducement But because fraud obtained by fraud then it could be argued that sex not vitiate consent, under the is at least presumptively protected in the inducement umbrella of this is the case.Indeed, it does not mention fraud or deception. explicitly, though tion. because it to be a very large umbrella, however, That would need factum-induce- Court meant to constitutionalize the assumes that the ment distinction—and from there is virtually no evidence such a rule if fraudulent sex falls outside of sense, especially if we adopt a Sexual deception as coercion makes of harm.deeper, and broader, understanding Coercion involving a where she cannot reasonably will a threat places the victim in a position choice to refuse consent. deception, she can still choose With sexual do so is not made on the basis of not to have sex, but the decision to is culpable for the misinforma- accurate information, and the deceiver tion. may fairly be said to be unknow- Consequently, the consent given ing, even unintelligent. In this sense, the victim of the fraud is deprived just as a person who engaged in of her autonomy and bodily integrity, sex via force or threat. has written, “deception into sex As Jane Larsen by force; yet like a rape, sexual is not as physically injurious as rape consent line.” fraud falls on the wrong side of the dichotomy. its face difficult to suggest that And of course, it seems on from defining sex crimes in a the Constitution would forbid the states this was meant to be Justice Kennedy’s way of simply reinforcing the be Justice Kennedy’s way of simply this was meant to any constitutional rape would not be included in obvious point that by force or “coercion” only means sex obtained protections, and that threat. by fraud or is understood to mean sex obtained But if coercion deception—a fair understanding 34929-nde_28-1 Sheet No. 76 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 76 34929-nde_28-1 34929-nde_28-1 Sheet No. 77 Side A 05/07/2014 15:37:06 at Id. did no held that it could Atkins LAWRENCE 143 Lawrence Lawrence could, and should, In short, had the Court 120 Lawrence did not do this, and it is fair to did not do this, and Lawrence speaks of “consensual” sex, it means “con- speaks of “consensual” right is dependent upon the content of state law. right is dependent Lawrence Atkins v. Virginia, 536 U.S. 304 (2002) (allowing states to define Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (holding that Schneckloth v. Bustamonte, 412 U.S. 218, But of course, ., ., g g Lawrence 119 See, e. See, e. THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Merely saying that states should be able to define consent, while be able to that states should Merely saying None of this is to say that all sex by fraud or deception ought to be None of this is to say that all sex by 120. 119. the Eighth Amendment bars the execution of a person who is mentally retarded. The Court, however, explicitly left to the states the task of determining who falls into the category of persons for whom there was a national consensus against execution. 317. mental retardation for purposes of determining who can be executed). consent to search is valid when it is voluntary under the totality of the circumstances). 2014] reasonably state can harms the certain from protection ensures way that identify.to defer we merely arise if questions complicated Of course, by definition, cannot, sexual situations certain that judgment the state’s be consensual. is not unproblematic.likely true, such a plausibly argue that One could of a federal constitutional dictate the scope allow states to rule would relation- sexual some truly consensual it could undermine right, and to foster or at law might otherwise wish ships that the constitutional least grudgingly protect. no independent Consent, on this reading, has constitutional meaning. and thus the It is solely a creature of state law, scope of the constitutional say that consent ought to have some Furthermore, to the scope of a is part of a standard for determining dimension when it work in other is not inconsistent with the Court’s constitutional right adjudication.areas of criminal case criminal pro- In the constitutional to define con- example, the Court has been willing cedure context, for Amendment of determining the scope of Fourth sent for purposes protection. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 19 1-MAY-14 14:39 assume that when assume that when sensual” as defined by the relevant state criminal law.sensual” as defined by the relevant Moreover, in a constitutional right and other contexts the Court has recognized whether the right is impli- allowed the states the latitude to determine creates. cated based on definitions the state meant to give constitutional dimension to “consent” in meant to give constitutional dimension have explicitly done so, even going so far as to say that the right to have explicitly done so, even going adult sex is informed by the legal private, non-prostitution, consensual dichotomy.tradition of the factum-inducement But such thing. state would have a rational basis, criminalized, but rather that the concluding that the conduct is wor- beyond mere moral disapproval, for the conduct outside the scope of thy of condemnation, thus leaving protection.constitutional (as opposed to legislative) Here, then, Jus- tice Kennedy may have been a bit sloppy. of harmful conduct in relation have more explicitly identified the kinds to sex that remain unprotected. if we can say that the sex was Even in the context of the factum- “consensual” as that term is understood by deception still has the ring of, inducement distinction, sex obtained if not the actual taint of, exploitation. For this reason, the more con- 34929-nde_28-1 Sheet No. 77 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 77 34929-nde_28-1 34929-nde_28-1 Sheet No. 77 Side B 05/07/2014 15:37:06 Not 124 supra Even an Prose- [Vol. 28 Falk, g 123 See constitutional described here, (June 8, 2010, 8:15 Recent Michi . ONSPIRACY Lawrence C meaningfully more libertarian OLOKH Lawrence ETHICS & PUBLIC POLICY V HE T LAW, would likely forbid forbid likely would and at least force the state to defend Lawrence note 97, at 71-82 (discussing nineteenth century note 97, at 71-82 (discussing nineteenth prosecutors should be aware at least of the prosecutors should be aware at least 125 supra Lawrence Lawrence note 1, at 217–20. § 750.532 (1970). note 96, at 146 (quoting State v. O’Hare, 36 Wash. 516, 518 note 96, at 146 (quoting State v. O’Hare, 36 note 37, at 357–59. AWS supra , supra . L supra Because seduction can include “arts, persuasions, or “arts, persuasions, seduction can include Because an Unmarried Woman,” OMP Donovan, , g ., might be fatal, however, to seduction as a crime, at least as seduction as a crime, fatal, however, to might be g . C 121 RIEDMAN F Humble, ICH NOTRE DAME JOURNAL OF and not necessarily deception as it is practiced in the fraud as it is practiced necessarily deception and not See See See, e. might arguably view this as precisely the kind of moral interest this as precisely the kind of moral might arguably view 122 Lawrence 125. For an interesting comment on this, see Eugene Volokh, 123. 122. 124. 121. M ic, but Experience g cutions for “Seducin PM), http://www.volokh.com/2010/06/08/recent-michigan-prosecutions-for-seducing- an-unmarried-woman. Lo (1904)). seduction cases and comparing them to modern “date rape” scenarios); Larsen, seduction cases and comparing them to modern be an actionable tort).note 1, at 403 (arguing that sexual fraud should In light of the at least conceivable that some of those same justifications given by those like Larsen, it is justifications—beyond sexual morality—couldstatutes on seduction. validate criminal This is also true if we view seduction as a form of sexual exploitation (such as with rape-by- fraud generally), which I view as outside of any due process protections. This is hardly enough to make rarity of such statutes and the even in practice, however, because of the involving the factual situation greater rarity of seduction prosecutions described here.extent that statutes like the one in Nevertheless, to the the basis for either a criminal trial Michigan are used by prosecutors as or for negotiating a plea, 144 of reading servative \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 20 1-MAY-14 14:39 protection. punisha- makes it a felony statute, which in the Michigan it is enforced unmar- and debauch” an a man to “seduce years in prison for ble by five ried woman. cases or even in the breach of promise to marry statutes, some acts of statutes, some of promise to marry in the breach cases or even seduction—understood broadly—maynot implicate an interest against interest or inter- involve the same kind of autonomy sexual violence nor the sexual fraud that exists with respect to est against exploitation crimes. the history of commonly accepted reading of Rather, one promote a purely that it was primarily designed to seduction suggests case of the Michi- womanly virtue (and in the moral interest: preserving of an unmarried woman in particular). gan statute, the virtue wiles,” vulnerability of seduction crimes after vulnerability of seduction crimes after Lawrence vindication.that does not deserve between adults Consequently, if sex is private and is otherwise consensual in fact, is obtained by seduction, deception of a kind that would not prostitution, and did not involve the victim against exploita- implicate the state’s interest in protecting of seduction could plausibly tion or coercion, a defendant accused claim the protection of other than preserving female the application of the statute on grounds on seduction suggests the state virtue (and the more recent literature given appropriate facts). may have such additional justifications, on the more judicially conservative reading of on the more judicially 34929-nde_28-1 Sheet No. 77 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 77 34929-nde_28-1 34929-nde_28-1 Sheet No. 78 Side A 05/07/2014 15:37:06 127 128 . PECIFIC Lawrence S LAWRENCE 145 , http://www.cbsnews. ETWEEN COM B . But other categories of But other EX EWS S 126 But perhaps the most pub- But perhaps the most DULTS , CBSN 129 . A Cases of Sex Between Teachers and ONSENSUAL C Lawrence Adult Students See id. ATEGORIES OF Lawrence C Notorious teacher sex scandals RIMINALIZATION OF makes clear that sex between people of the same gender people of the that sex between makes clear State v. Dutton, 450 N.W.2d 189 (Minn. Ct. App. 1990). State v. Dutton, 450 N.W.2d 189 (Minn. Ct. Lawrence v. Texas, 539 U.S. 558, 572, 578 (2003). C State v. Hollenbeck, 53 A.3d 591 (N.H. 2012). Admittedly, this area of sex Muth v. Frank, 412 F.3d 808 (7th Cir. 2005). And—not drive politi- unlike many other things in life that ee HE See See See Representative Post- 130 THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Lawrence Brittni Colleps was recently sentenced by a Texas court to five years Brittni Colleps was recently sentenced 129. S 130.synopsis of highly-publicized student- For an interesting and useful gallery and 128. 127. 126. A. II. T crimes is worthy of additional academic and judicial attention, in light of crimes is worthy of additional academic and teacher sex scandals, see (last visited Feb. 23, 2014).com/pictures/notorious-teacher-sex-scandals/ These include, Latourneau, a Seattle teacher who began a as just a few examples, the cases of Mary Kay he was twelve years old and whom she even- sexual relationship with a male student when tually married and had children with; Debra LaFave, a Florida teacher who had sex with a 14-year-old student; Pamela Rogers Turner, a Tennessee teacher who was convicted after having sex with a 13-year-old student; Amber Jennings, a Massachusetts teacher who was accused of having sex with, and sending nude photos to, a 16-year-old student, and who eventually pleaded guilty on the nude photo charges; and most recently, Sarah Jones, a former Kentucky teacher and Cincinnati Bengals cheerleader who had a sexual relation- ship with a 17-year-old student. between psychotherapists and their patients (even former patients); and their patients (even former between psychotherapists are seeking spiri- of the clergy and persons who and between members or therapy from them. tual aid, comfort, 2014] \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 21 1-MAY-14 14:39 cal action—as sex invade more and more instances of teacher-student are to respond the more likely politicians the public’s consciousness, legislation.with legislation, including criminal But even the desirable from sexual exploitation by those notion of protecting young people them could have constitutional with supervisory or other authority over limits. in which those limits have been, This Part explores some cases or could be, tested, in light of is not subject to criminal proscription, at least where it is private, con- where it is private, at least to criminal proscription, is not subject justified proscription is and where the non-prostitution, sensual, and public morals. of preserving only on grounds in prison for engaging in consensual sex with other adults in the privacy in prison for engaging in consensual of her home. Colleps: she was a public school The legal problem for she had sex were students enrolled teacher, and the adults with whom at her school. teacher at Kennedale High Colleps was an English sexual partners potentially implicate concerns beyond simply public beyond simply implicate concerns potentially sexual partners and consensual, is private, (apparently) even when the sex morality, between adults. between, for law forbids sexual conduct Criminal be incestuous; whose sexual contact would example, persons licly prominent category of forbidden sexual partners is that of teacher of forbidden sexual partners licly prominent category and student.regularly covered of teacher-student sex are now Instances is in secondary most often where the student by the mass media, school. 34929-nde_28-1 Sheet No. 78 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 78 34929-nde_28-1 34929-nde_28-1 Sheet No. 78 Side B 05/07/2014 15:37:06 . 20/20 One [Vol. 28 133 might appear The Texas Court All of the students All of the 137 139 . Lawrence 134 Teacher Who Had Group Sex With One student received oral received student One In August 2012, a jury con- In August 2012, Morales claimed a fundamen- 132 Lawrence ETHICS & PUBLIC POLICY 136 138 (Aug, 16, 2012), http://www.star-tele- (Aug. 18, 2012), http://www.star-tele- Jim Dubreuil, LAW, (Sept. 28, 2012), http://abcnews.go.com/US/ See ELEGRAM ELEGRAM . § 21.11(c)(1) (West 2009). . § 21.12(a) (West 2011 & Supp. 2012). EWS -T -T NN NN Over the course of two months at her private months of two the course Over TAR A A TAR Yet Colleps was charged under a Texas crimi- was charged under Yet Colleps More Students Tell of Sexual Escapades With Former Kennedale More Students Tell of Sexual Escapades With Former S Ex-Kennedale Teacher Guilty of Sex With Students; Mom Asks Jury S 131 ODE ODE , ABC N 135 C C ORTH ORTH ENAL ENAL W , a male “Student Activities/Recreation Assistant” at a , a male “Student Activities/Recreation W . P . P ORT EX EX ORT Deanna Boyd, T T F Deanna Boyd, Colleps was recently the subject of a feature on ABC’s news program Colleps was recently the subject of a feature at 489–91. , F NOTRE DAME JOURNAL OF Id. Id. Id. See Id. See See See so liberally. Of course, Colleps’s case differs in significant respects from many case differs in significant respects Of course, Colleps’s First, consider how Texas courts have treated their own statute.First, consider how Texas courts have In 132. 133. 134. 135. 138. 212 S.W.3d 483, 486–87 (Tex. Ct. App. 2006). 139. 136. 137. 131. h Teacher g Students Says She’s the Victim In the interview, Colleps suggests that she was victimized because she never gave her con- In the interview, Colleps suggests that she was sent for the students to shoot the video. For “Mercy,” brittni-colleps-texas-teacher-group-sex-students-shes/story?id=17338821#.UOcyI6zTzoM. gram.com/2012/08/16/4185438/more-students-tell-of-sexual-escapades.html. gram.com/2012/08/17/4189321/ex-kennedale-teacher-guilty-of.html?storylink=digger- topic. Hi 146 Texas. in north School \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 22 1-MAY-14 14:39 of the teacher-student sex cases that have become so red hot in media sex cases that have become so of the teacher-student coverage. that make her facts distinguish Colleps in ways First, several suggest that the engaged in group sex, which might unsympathetic: she of a com- to an expression of love or in furtherance sex was not related she exchanged the sex was captured on video; and mitted relationship; messages with the students.sexually explicit text the other hand, On as “chil- sex with students properly characterized rather than having who were adults. Colleps had sex only with students dren” or “minors,” Colleps with statutory rape, leav- Indeed, prosecutors could not charge statute as their criminal law ing them with the “improper relationship” refuge against her. reading of While a broader to supply Colleps with some basis for challenging the application of the to supply Colleps with some basis for the relevant cases have not read improper relationship statute here, Lawrence home, Colleps had sex with five Kennedale High students, including students, High Kennedale with five had sex Colleps home, students. as four as many sex with group nal statute that forbids improper relationships between an educator improper relationships between nal statute that forbids degree felony. and student, a second Ex Parte Morales pursuant to the improper sexual private Baptist school was convicted, with a male student at the school, relationship statute, for having sex who was over the legal age of consent. tal right to “adult consensual sexual activity” and lodged a facial attack tal right to “adult consensual sexual on the statute’s constitutionality, citing sex from Colleps but did not have intercourse with her. not have intercourse Colleps but did sex from were at least eighteen years old and thus fully capable of consenting to capable of consenting old and thus fully eighteen years were at least Texas law. sex under all sixteen counts of the crime. victed Colleps on encounter was captured on a cell phone video recorded by one of the recorded by one a cell phone video was captured on encounter show Colleps’s face. though it did not students, 34929-nde_28-1 Sheet No. 78 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 78 34929-nde_28-1 34929-nde_28-1 Sheet No. 79 Side A 05/07/2014 15:37:06 in 145 In Law- 147 Morales did not did LAWRENCE 147 Lawrence The statute also 144 That goal could be 146 First, the state has a rational First, the 141 They occupy positions of public . art. VII, § 1, which provides that “a general 148 . ONST . C at 253. EX Id. Lawrence The court emphasized that Morales’s challenge The court emphasized 142 149 The court of appeals was asked to reconsider the soundness of at 496–97 (citing T at 496. at 495–96. court’s reference (which appears I emphasize in quotations that at 497. at 497–98. at 495. at 491–93. In any event, it did not matter that the student in this case was not matter that the student in this In any event, it did Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. 140 143 THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE The court had little difficulty concluding that the state had multi- concluding that had little difficulty The court ’s protection. 145. 146. 143. 144. 142. 149. 147. 148. 141. 140. Berkovsky v. State, 209 S.W.3d 252 (Tex. Ct. App. 2006), and rejected the defendant’s facial challenge to the statute. repeatedly in the opinion) to protecting Texas “schoolchildren.”repeatedly in the opinion) to protecting Texas The reference suggests the law’s legitimate application to minors; that the court was primarily concerned about an adult, the description would seem both otherwise, because the victim in this case was this victim. inappropriate and misplaced as a way of describing diffusion of knowledge being essential to the preservation of the liberties and rights of diffusion of knowledge being essential to the the people,” and that the state legislature has a duty “to establish and make suitable provi- sion for the support and maintenance of an efficient system of public free schools.”). And finally, the State has a rational basis, consistent with the tenets of And finally, the State has a rational education, in having an educa- the Texas Constitution regarding public learning. tional environment conducive to 2014] statute. the upheld of Appeals to the court, According basis review rational only and thus right a fundamental establish applied. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 23 1-MAY-14 14:39 legally an adult because the legislature could have rationally concluded the legislature could have rationally legally an adult because . . . will with the imprimatur of school employment that those “clothed coerce or unduly power disparities enabling them to possess the sort of to engage in sexual conduct.” influence students ple rational bases for the law, despite Morales’s contention that the law contention that despite Morales’s bases for the law, ple rational interest a legitimate state related to as to be not rationally was so broad coercive sex. predatory or in punishing was a facial one, not an as-applied one, and thus the statute would not an as-applied one, and thus was a facial one, minor stu- constitutional in situations involving unquestionably be dents. trust in an educational setting populated by young people and, as a trust in an educational setting populated to constrain their sexual activities result, it is reasonable for the State is a student, someone they teach when the object of their sexual desires or supervise. interest in preventing the exploitation of “schoolchildren” and in con- and exploitation of “schoolchildren” preventing the interest in consent where might not easily be able to refuse cluding that students outside of is an educator, taking the conduct the sexual partner rence undermined if school employees could have sex with students. undermined if school employees could advances the rational goal of preserving trust and confidence in the goal of preserving trust and confidence advances the rational and those whose prohibiting sex between a student school system by students “as a conduit for sex.” employment gives them access to short, teachers are not similarly situated to the kinds of private actors short, teachers are not similarly situated who were prosecuted in 34929-nde_28-1 Sheet No. 79 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 79 34929-nde_28-1 34929-nde_28-1 Sheet No. 79 Side B 05/07/2014 15:37:06 . Law- [Vol. 28 It was with a minor 160 The Wash- 157 When the girl When the The statute does The relationship 153 The jury acquitted 156 151 155 ETHICS & PUBLIC POLICY “[did] not employ a fundamental “[did] not employ “did make clear that this area of autonomy LAW, 161 Lawrence Lawrence involved a similar improper relationship improper a similar involved 150 . § 9A.44.093(1)(b) (West 2009) (defining sexual misconduct NN , 123 P.3d at 876. A —that the State had a legitimate interest in protecting 158 at 880. The court was suggesting that perhaps an argument for inter- ODE Here, although there was no evidence that Clinkenbeard Here, although there was no evidence Id. . C Curiously, the statute defines the crime as sexual misconduct Curiously, the statute defines the crime as sexual at 879. at 876. her buttocks and kissed There was evidence that he had touched at 878. equal protection Interestingly, when considering Clinkenbeard’s at 875–76. She took music lessons from him when she was in the ninth him when she music lessons from She took EV 159 NOTRE DAME JOURNAL OF Id. Id. Id. Id. Id. Id. Id. Id. Clinkenbeard Id. Id. Although she had already turned eighteen when they first had already turned eighteen when they Although she had . R 152 State v. Clinkenbeard State ASH claim. found—applying The court basis review, only rational Id. 154 160. 161. 153. 154. 155. 156. 159. 152. 157. 158. 150. 123 P.3d 872 (Wash. Ct. App. 2005). 151. W See mediate scrutiny could be successfully made. her. challenge, the court recognized that is of great importance,” and “cautions strongly against the states interfering in private relationships.” with a minor in the first degree as a class C felony). Yet the statute applies to actors who as in this case. have sex with students who are legally adults, 148 \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 24 1-MAY-14 14:39 grade and they had frequent phone conversations. they had frequent grade and in the school district. sex, she was still enrolled children from sexual exploitation, particularly in the educational envi- children from sexual exploitation, particularly ronment. and the girl ever had sex prior to her turning eighteen, their personal and the girl ever had sex prior to her thus raising the concern that relationship began when she was twelve, access to the girl offered him Clinkenbeard’s school employment-based her into having sex. an opportunity to “groom or coerce” statute in Washington.statute who was sixty- driver a bus There, Clinkenbeard, a with a relationship formed conviction, of his at the time old two years bus. Clinkenbeard’s girl who rode twelve-year-old not require authority over or supervision of the student. not require authority continued to develop as the girl aged, but does not appear to have been not appear to have girl aged, but does to develop as the continued sexual. next wife, moved his trailer divorced his Clinkenbeard turned eighteen, with the and then had sex on multiple occasions to the girl’s home, girl. but convicted multiple counts of child molestation Clinkenbeard on employee to have that makes it a felony for a school him under a statute is at least sixteen with a student where the student sexual intercourse than a five-year twenty-one, and where there is more but not more than the student and employee. age difference between ington Court of Appeals upheld the statute against Clinkenbeard’s upheld the statute against Clinkenbeard’s ington Court of Appeals rence that based on its conclusion rights analysis” therefore reasonable for the State here to apply this statute, the pur- therefore reasonable for the State from those who would use their pose of which is to protect children access to sexually exploit them. 34929-nde_28-1 Sheet No. 79 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 79 34929-nde_28-1 34929-nde_28-1 Sheet No. 80 Side A 05/07/2014 15:37:06 - , the State McKenzie- Lawrence overruled in Lawrence LAWRENCE 149 McKenzie-Adams did not make it In a somewhat con- 165 at 830–31. Once the two girls Lawrence Id. Thus, teachers are in a unique Thus, teachers are 167 at 836. Beyond this, the facts of at 829–30. Id. Id. Id. The court further explained that The court further explained that . § 21-3520(a)(8) (2007) (repealed 2011). There, the court held that even if a fundamental right of There, the court held that even if a fundamental The court shifted its discussion of the standard The court shifted its discussion of 169 NN Id. . A 170 at 831. There was also evidence that the defendant attempted to State v. Payne, 34 A.3d 370 (Conn. 2012). In State v. McKenzie-Adams, 915 A.2d 822 (Conn. 2007), State v. McKenzie-Adams, 915 A.2d 822 (Conn. TAT 166 288 P.3d at 502. Id. , 288 P.3d at 502. . S There, a thirty-year-old choir instructor at a Wichita area at a Wichita choir instructor a thirty-year-old There, AN , 288 P.3d at 503. K § 3520(b)(9). The statute was actually amended to eliminate age distinc- at 496–97. herself to It was undisputed that the student transported rounds by 162 “Teacher” is defined broadly to include any professional to include is defined broadly “Teacher” . . g strict scrutiny), the court held that strict scrutiny), the Also, a “sexually charged learning environment would con- charged learning environment would Also, a “sexually Id. Edwards, Edwards Id Id. See also Id. See Id. 164 The Kansas statute made it a crime for “a teacher or a person in or a person a crime for “a teacher statute made it The Kansas 168 and Edwards differ in significant respects from other cases—there, the defendant-teacher had THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Repeatedly emphasizing the power disparity between teachers and the power disparity between Repeatedly emphasizing Most recently, the Kansas Court of Appeals rejected a rejected of Appeals Court the Kansas recently, Most 170. 169. 168. 166. 167. 164. 165. 162. 288 P.3d 494 (Kan. Ct. App. 2012). 163. 163 Adams not friendly with one another and then sexual relationships with two students who were deliberately created further dissension between them. pressure the students into certain sex acts, although in other respects the sexual relation- ships appear to have been consensual. learned that each was having sex with the same teacher, they voluntarily reported the teacher’s conduct. Connecticut Supreme Court upheld that state’s statute prohibiting sex between a school Connecticut Supreme Court upheld that state’s employee and student. sex in the context of an inherently coercive consensual sex existed it did not encompass relationship, like teacher and student. part on other tions. Edwards’s home and gave him a condom to use, and that the student was a mother (a fact Edwards’s home and gave him a condom to use, that the State argued had no relevance). based challenge to that state’s unlawful sexual relations statute in statute sexual relations unlawful state’s to that challenge based v. Edwards 2014] \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 25 1-MAY-14 14:39 students, the court said that teachers “have constant access to students, said that teachers “have constant students, the court context.” often in an unsupervised thus undermining the quality of fuse, disturb, and distract students, education in Kansas.” a position of authority” to engage in consensual sex, lewd fondling or sex, lewd fondling engage in consensual of authority” to a position at the offender’s a student enrolled or sodomy with touching, school. grade) and (kindergarten through the twelfth employee at the school no distinctions based on age. the statute makes high school had consensual sex with an eighteen-year-old student of student sex with an eighteen-year-old had consensual high school his. does not protect this sexual activity because this is a relationship where does not protect this sexual activity students are required by law to consent might not easily be refused: and “very well may not have attend the school, are a captive audience, remove themselves from a sexually the necessary level of maturity to charged situation.” narrowly tailored to serve a compel- of review, holding that the statute is explicit whether it viewed this as a fundamental right and that the it viewed this as a fundamental right explicit whether it from constitu- this law were sufficient to protect State’s interests in tional challenge. or abusive con- or coerce students into “exploitive position to groom duct.” fusing opinion that applied two distinct standards of review (rational applied two distinct standards of fusing opinion that basis 34929-nde_28-1 Sheet No. 80 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 80 34929-nde_28-1 34929-nde_28-1 Sheet No. 80 Side B 05/07/2014 15:37:06 [Vol. 28 172 The court Finally, the Finally, 173 171 purposes). Miranda ETHICS & PUBLIC POLICY —then a challenger may well ask 174 LAW, opinions delve more thoroughly than opinions delve more Edwards , for example, identifies the risk of exploitation but , for example, identifies the risk of exploitation into the legitimate interests of the state. into the legitimate Yet in each and Roper v. Simmons, 543 U.S. 551, 570–71 that Eighth (2005) (holding ., g Edwards at 503. . at 502–03. . at 503–04. Morales NOTRE DAME JOURNAL OF See, e. Id Id Id. Clinkenbeard The 173. 174. 172. 171. Amendment bars capital punishment upon offender who was younger than eighteen at the time of the offense); Graham v. Florida, 560 U.S. 48 (2010) (holding same as to imposition of life without parole for non-homicide offense); Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012) (holding that Eighth Amendment bars mandatory life without parole for homicide offenders under age eighteen); J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402–03 (holding that fact that criminal suspect is under age eighteen is relevant (2011) to determination of whether the suspect was in custody for case the court focuses on the state’s effort to protect “children” and on the state’s effort to protect case the court focuses the sex occurred the relevance of the fact that substantially ignores matter on an as- adults, which would seem to between consenting applied challenge.review been one Had the applicable standard of likely have been scrutiny, these courts would involving heightened that the state’s confront the argument forced to more meaningfully seem reduced children from exploitation interests in protecting becomes an in significance when the student (though not eliminated) or exploitation is no evidence of actual coercion adult and where there in the case. does not address whether the absence of actual exploitation ought to does not address whether the absence statute in a given case, preferring matter to the application of the relationship as inherently instead to characterize the teacher-student opportunity to refuse consent. coercive and as preventing meaningful that students generally may The court there assumed in one paragraph to refuse consent, but in the next fail to possess the necessary maturity with the distinctions between the paragraphs, the court occupied itself and eighteen-year-olds, admitting maturity levels of sixteen-, seventeen-, levels of maturity. that eighteen-year-olds possess greater does 150 activity unre- sexual upon “any infringe does not it interest because ling from having teachers prevent does not and of teachers to the job lated not students.” who are adults with relationships sexual \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 26 1-MAY-14 14:39 then failed to specifically grapple with the fact that the student in this then failed to specifically grapple with possessed the heightened case was eighteen and thus presumably maturity that the court acknowledged. If it is true that the maturity adequate for voluntary sexual level of an eighteen-year-old is generally its refusal—anddecision-making as to its consent or even the Supreme in recent years recognizing the dis- Court has decided a series of cases and those below age eighteen for tinctions between eighteen-year-olds purposes of enforcing criminal laws court rejected Edwards’s arguments that the statute fails strict scrutiny: statute fails strict that the Edwards’s arguments court rejected a single only to appease was enacted matter if the statute it did not did not relationship; it a teacher-student was upset over parent who lawful if have been relationship would the same sexual matter that in Iowa matter that courts it did not was a college professor; Edwards sex. civil liability for teacher-student and Idaho had rejected 34929-nde_28-1 Sheet No. 80 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 80 34929-nde_28-1 34929-nde_28-1 Sheet No. 81 Side A 05/07/2014 15:37:06 180 constituted fact, and not 182 LAWRENCE 151 At a minimum, that 178 177 State v. Hirschfelder, 242 See (rather than as an inten- (rather than as a minor) appears to deem most critical appears to deem most however, demonstrates these 179 court is this: if Kansas public pol- if Kansas is this: court Paschal’s actions (and he knew this, Edwards as a student 181 Edwards as a school employee , a defendant may plausibly argue that the , a defendant may 9A.44.093(1)(b) (2009 & Supp. 2012). Paschal v. State, ODE . 21-3522(a) (2007). . C Yet the court goes on to say that the age of the Yet the court goes NN EV . A 175 . R 288 P.3d at 503. Clinkenbeard TAT ASH . S meaning, presumably, that the relationship is one involving meaning, presumably, W . . at 432. AN violation.teacher in Arkansas who Paschal was a high school Id. See Id Id Edwards, 176 THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Another problem for the for the problem Another The recent case of Moreover, particularly in the context of the Washington statute in the context of the Washington Moreover, particularly 182. 177. 181. 176. 178. Note that a subsequent equal protection challenge to the statute was rejected 179. 388 S.W.3d 429 (Ark. 2012). 180. 175. K by the Washington Supreme Court, where the defendant claimed that the statute imper- missibly discriminated between certain school employees. P.3d 876 (Wash. 2010). The relationship included sex. 2014] in prevent- interest the state’s related to is rationally the statute whether least eighteen. is at the student when ing exploitation and seventeen-year-olds maturity of sixteen for the sexual icy had meant and to eighteen-year-olds, from that of easily distinguishable to be so Kansas statute, then sexual relations applying the unlawful matter when for this fact. have accounted law could makes did not, as Kansas But it reflecting a legislative for voluntary sex, age of consent sixteen the sixteen and seventeen-year-olds possess—asdetermination that a matter fact—sufficientof law, rather than voluntary and intelligent capacity for to give or (including, presumably, the capacity sexual decision-making refuse consent). \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 27 1-MAY-14 14:39 an inherently coercive power disparity.an inherently coercive It is therefore student is less important that the mere fact of the teacher-student rela- that the mere fact of the teacher-student student is less important tionship, the maturity level of student, that the maturity level because he expressed concern to the school principal that his career because he expressed concern to the be in jeopardy) and relationship with his children might in preserving the statute. in preserving the challenged in exploitation by in protecting students from State’s asserted interest environment seems difficult those with access to them in an educational Washington legislation.to reconcile with the language of the If it is the mere fact of the student’s status tional coercer or exploiter) that implicates the relevant interest, then tional coercer or exploiter) that implicates if a twenty-three-year-old school that same interest would be implicated nineteen-year-old student.employee had consensual sex with a Yet the in that situation. State does not punish the employee and the employee’s status concerns about the significance of the fact of private consensual adult concerns about the significance of that have refused to recognize a sex, and casts a shadow over the cases Lawrence Clinkenbeard could have raised this problem in asserting his equal pro- Clinkenbeard could have raised this that the age provisions were tection challenge to the statute by claiming asserted interest. not rationally related to the state’s student for several months. had been dating an eighteen-year-old 34929-nde_28-1 Sheet No. 81 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 81 34929-nde_28-1 34929-nde_28-1 Sheet No. 81 Side B 05/07/2014 15:37:06 ’s 186 . The [Vol. 28 Paschal the stat- ) used his 191 did not con- Lawrence The Arkansas The Talbert 183 and use the position involved coercive Talbert By all indications, Pas- By all indications, and refuses to follow Talbert 187 Paschal, was drawn from language used ETHICS & PUBLIC POLICY 194 Because 193 LAW, 189 , in which the court upheld the State’s , in which the court . § 5-14-126(a)(1)(C)(2006 & Supp. 2011)). NN right of an adult to engage in consensual, right of an adult A was decided after is that the statute was unconstitutional because is that the statute was unconstitutional . § 5-14-126(a)(1)(B) (2006 & Supp. 2011). ODE NN . § 5-14-125(a)(6) (2006 & Supp. 2011). . C did not, the court found that A NN That statute requires that the member of the clergy That statute requires Talbert v. State RK Edwards protects all private, consensual, noncommercial acts protects all private, consensual, noncommercial Paschal A ODE 188 388 S.W.3d at 434–35. 388 S.W.3d at 435. . C fundamental ODE , its statement that “‘[T]he right to privacy fundamental Instead, framing the issue at a broader level of generality, at a broader level framing the issue Instead, Paschal RK . C A our law Talbert v. State, 239 S.W.3d 504, 510–11 (Ark. 2006). at 434. at 435 (quoting Jegley v. Picado, 80 S.W.3d 332, 350 (Ark. 2002)) (empha- (citing A at 435. 185 . at 437. . at 436–37. RK NOTRE DAME JOURNAL OF See See Id. Id. Id Id. Id. Id Paschal, Id. Paschal, The State improperly framed the issue as one asking whether a asking whether the issue as one improperly framed The State Moreover, applying strict scrutiny, the court concluded that Moreover, applying strict scrutiny, Rather, if a teacher (like the clergyman in Rather, if a teacher (like the clergyman Lawrence 184 Still, it is unclear how much the court relied upon Still, it is unclear how much the court In holding that such a right existed in Arkansas, the court such a right existed in Arkansas, In holding that 190 189. 186. 187. 188. 193. 194. 191. 192. 185. 190. 184. 183. A 192 sis added). Note that of sexual intimacy between adults,’” 152 at a public a teacher when occurs assault, which sexual second-degree the at who is enrolled student with a contact in sexual engages school twenty-one. age of under the and is school teacher’s \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 28 1-MAY-14 14:39 position of trust or authority over a student in order to create a conduit position of trust or authority over a was punishable under the state law for sexual gratification, the teacher positions of trust or authority from forbidding mandated reporters in using the position to engage in sex. better reading of right.Arkansas law recognizes such a fundamental Although the court cited implicit in even if the state has an interest in protecting school students from the even if the state has an interest in protecting it does, the court said), sexual advances of teachers (which teacher has a fundamental right to have sex with a student enrolled at with a student enrolled right to have sex a fundamental teacher has his school. had intentionally was not a case in which the teacher explained that this a mere con- relationship so as to create exploited the teacher-student of the teacher. duit for sexual gratification non-prostitution, and private sexual conduct with another adult. and private sexual conduct with another non-prostitution, the court said the relevant question was whether the statute invaded the the statute invaded question was whether said the relevant the court personal and be in a position of trust or authority over the victim be in a position of to engage in the sexual activity. conduct and trol. statute making it third-degree sexual assault for a clergyman to have sex sexual assault for a clergyman statute making it third-degree with a penitent. chal and the student were in a committed relationship that involved were in a committed relationship chal and the student casual sex.more than simply to distinguish its The court was careful earlier decision in Supreme Court held the statute unconstitutional as applied to Pas- as applied statute unconstitutional Court held the Supreme chal. means for advancing that inter- ute did not apply the least restrictive est. 34929-nde_28-1 Sheet No. 81 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 81 34929-nde_28-1 34929-nde_28-1 Sheet No. 82 Side A 05/07/2014 15:37:06 195 . and and consti- 197 Lawrence Lawrence was Lawrence LAWRENCE 153 before Lawrence before -type right extends far -type right extends ’s we reasoning is correct, Lawrence , where the teacher Paschal 199 found a fundamental right in the Arkansas Paschal But the majority opinion nevertheless But the majority Paschal 198 and Teacher-Student Sex Crimes best represents, then, is the reality that some best represents, then, and even Still, Paschal explicitly relied on relied explicitly Paschal Still, Constitution.” claim. have amply explained the relevant state interests: have amply explained the relevant state 196 — Paschal , an Arkansas case decided a year a case decided Arkansas , an , 80 S.W.3d at 332. 388 S.W.3d at 435. court said, was that Lawrence Arkansas B. Lawrence ley ’s cover the teacher-student Exclusions Paragraph would g Lawrence— Lawrence v. Texas, 539 U.S. 558, 578 (2003). And the cases that have denied protection to the teacher And the cases that have denied protection at 436 n.7 (emphasis added). at 350. State v. Edwards, 288 P.3d 494, 503 (Kan. Ct. App. 2012).State v. Edwards, 288 P.3d 494, 503 (Kan. Ct. Among the rea- . at 442–43 (Baker, J., dissenting). See Id. Id See Je Id. Paschal, 200 See Edwards ley v. Picado ley v. Id. Lawrence THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE As with the sex by fraud crimes, there are natural reasons to think As with the sex by fraud crimes, there Perhaps what g 200. 199. 198. 197. 195. 196. Je judges are prepared to recognize that a judges are prepared holding. sons, the cannot simply assume exploitation from the mere fact of the teacher- exploitation from the mere fact cannot simply assume student relationship. of proving The state would bear the burden and adult student doubt not simply that a teacher beyond a reasonable of authority as a teacher sought to use the position had sex, but that the way of merely obtaining sex.typical case, and in the absence of In the coercion, or an intent to exploit the objective evidence showing threats, this will be a difficult burden to power disparity in the relationship, meet. has been to read Still, though, the dominant approach that 2014] in rather law grounds, constitutional rest on state to case appears That one. a federal than a teacher or consensual sexual encounters between enough to permit the encoun- and an adult student, at least where other school employee a position of coercion or any intent to exploit ter does not involve student.authority over the Thus if to offer wide deference to legis- in a judicially conservative manner and and risks that would affect not just latures in asserting potential harms education more generally. the student, but the system of public sanctions.sex cases and validate the existing criminal After all, where the sexual conduct would do states that the right would not apply may protect or where the sex damage to an institution that the state consent might not easily be occurs under circumstances in which refused. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 29 1-MAY-14 14:39 Constitution, and that Kansas had not recognized a corresponding state constitutional Constitution, and that Kansas had not recognized right. pursuant to federal substantive due process doctrine to support his claim, doctrine to due process federal substantive tutionally protected protecting students from sexual exploitation, protecting the integrity of protecting students from sexual exploitation, criticized one of the dissents in a footnote, wondering why that dissent why that in a footnote, wondering one of the dissents criticized [the determine whether jurisdictions “to cases from other relied upon right to privacy at issue] violates the fundamental Arkansas statute found in the the dissenting justices seemed to acknowledge that the majority agreed that the majority to acknowledge justices seemed the dissenting with Paschal’s 34929-nde_28-1 Sheet No. 82 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 82 34929-nde_28-1 34929-nde_28-1 Sheet No. 82 Side B 05/07/2014 15:37:06 [Vol. 28 as a teacher implies undue the coercive force of the coercive 469 (5th ed. 2010). For an mere status 202 necessarily AW L refuse consent. These are demands easily note 37, at 366 (arguing that sex within RIMINAL ETHICS & PUBLIC POLICY purposes—than the teacher who C supra , LAW, Lawrence ATERIALS ON State v. Thompson, 792 P.2d 1103, 1104 (Mont. 1990) claim mandates only rationality, these inter- only rationality, mandates claim M see ’s protection, even if the criminal statute at issue ’s protection, even ic, But Experience g ASES AND Lawrence , C Not Lo Lawrence If a State v. Edwards, 288 P.3d 494, 502–03 2012). (Kan. Ct. App. The latter scenario might be construed as an offer rather The latter scenario might be construed Falk, RESSLER NOTRE DAME JOURNAL OF 201 See See D 203 On one level, this power disparity claim might seem difficult to power disparity claim might seem On one level, this So if evidence existed that the teacher actually employed his posi- that the teacher actually employed So if evidence existed 203. The Dressler text uses this hypothetical, and I use it when I teach the material. 202. 201. OSHUA J license revocation, for example; or termination, reprimand, or suspen- reprimand, or or termination, for example; license revocation, example of the latter scenario, (principal not guilty of intercourse without consent under state law). authority-based relationships fall within the domain of rape-by-coercion, because “the inherent power imbalance in these situations so gravely affects the victim’s ability to give meaningful consent that it violates sexual autonomy.”). See 154 the free of system a school preserving and environment, the academic and employees between relationships by sexual created complications students. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 30 1-MAY-14 14:39 limit. power disparities sexual relationships involving After all, many with her adminis- a CEO who has consensual sex are not criminalized: who has consensual sex with her trative assistant, an elected official sex with a poor woman.intern, a wealthy man who has consensual Of the power disparities it wishes to course, the state may pick and choose power disparity as the reason why target, but if the state is serious about coercive or exploitative, then sex inside such a relationship is inherently in other types of relationships the failure to criminalize sex occurring weaken the state’s claim.with power disparities could at least Another claim is that it problem with the power-disparity-as-inherent-coercion of a given relationship.could fail to account for the realities For exam- X, “I will fail you and prevent your ple, the teacher who says to student not have sex with me,” would be graduation from this school if you do situated no differently—for me, I will give you an ‘A’ in my says to student X, “If you sleep with course.” precisely the kinds of coercive tactics that would serve as evidence that a precisely the kinds of coercive tactics disparity, or status as a teacher or faculty member is exploiting a power with the student. school official, in order to obtain sex ests would almost surely be adequate to survive review. adequate to survive almost surely be ests would if pro- But even exploitation from sexual tecting students than a threat, but in each case, the teacher is using his or her position than a threat, but in each case, the student.as a teacher to solicit sex from the And in each case, it can not fairly be said that the student could the criminal law, other interests, while worthy of protection, could be of protection, while worthy law, other interests, the criminal short of criminalization— civil remedies administrative or served by sion from the school. this would surely in order to obtain the sex, tion of power or authority fall outside of make this an element of the crime.did not specifically But the central the “power disparity” or the question is whether or other authority figure in a particular school or other authority influence over a student, or precludes the student from making sexual or precludes the student from influence over a student, intelligently, and voluntarily. choices knowingly, 34929-nde_28-1 Sheet No. 82 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 82 34929-nde_28-1 34929-nde_28-1 Sheet No. 83 Side A 05/07/2014 15:37:06 , 205 That 204 sex with students g ed sex partners of ex- LAWRENCE 155 g The state is now Lawrence v. Texas, 539 206 See . ’s language, from situa- (Aug. 16, 2012, 5:27 PM), http:// Lawrence , we see that courts must con- , we see that courts -based challenge could argue could challenge -based EWS Lawrence ’s applied in Exclusions Paragraph, Edwards , CBS N Lawrence Lawrence Brittni Colleps Case: Students who were alle , or even (Aug. 15, 2012), http://www.star-telegram.com/2012/08/ Jury sees video of former Kennedale teacher havin Paschal ELEGRAM -T TAR Crimesider Staff, Deanna Boyd, S See See ORTH THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE For example, one might imagine a defendant (on specific facts, of might imagine a defendant (on specific For example, one But a defendant raising a raising a defendant But W 206. Indeed, presumably, this is a corollary of 205. 204. ORT Texas teacher say they do not feel like victims www.cbsnews.com/8301-504083_162-57494881-504083/brittni-colleps-case-students-who- were-alleged-sex-partners-of-ex-texas-teacher-say-they-do-not-feel-like-victims/. U.S. 558, 572 (2003). 14/4181766/jury-sees-video-of-former-kennedale.html. F that these scenarios seem far different from a scenario in which a in which scenario from a different far seem these scenarios that romantic close and genuinely develop student an adult and teacher another, and subsequently get to know one one another, feelings for on the could argue situation, the defendant relations; this have sexual direct the teacher has no different if facts, is especially appropriate over the student. authority the adult teacher-adult student sex context, certainly would validate a certainly would validate sex context, teacher-adult student the adult sexual exploitation.state interest in preventing we consider But when some cases, like relationships are of whether adult student-teacher front the question the element or whether a situation exists where inherently exploitative could, at least arguably, be lacking.of actual exploitation So a defen- is it enough to the state prove exploitation, or dant could ask: must simply presume it? that the arguments about exploitation—protectingcourse) claiming disparities or, in students from power not easily be able to refuse consent—maytions where they might not this is likely force where the adult student (though apply with the same sex.very rare) seeks out the teacher for Consider, again, the Colleps prosecution. students involved with Colleps There, at least one of the Colleps had sex with one of his testified that once he found out that him up” with Colleps. friends, he urged the friend to “hook Of course, even if a student independently desires and seeks out sex Of course, even if a student independently negate the risk of exploitation. with a teacher, this does not necessarily to remember that once the student On the other hand, it is important sex, the student enjoys important reaches the age of consent to have own sexuality. privacy rights related to his or her 2014] \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 31 1-MAY-14 14:39 implicitly granting the person sexual freedom that did not exist in the implicitly granting the person sexual an adult.same ways before the person became So the adult student’s own sexual autonomy—not simply the teacher’s—is implicated by the teacher-student sex prohibitions.it possible that we over oversimplify Is nature of sexual and romantic (even misapprehend) the complicated the subsequent sex was exploitative on the part of Colleps seems a the subsequent sex was exploitative we are prepared to say that the somewhat weaker claim, unless, again, an otherwise consensual situa- mere fact that she is a teacher transforms tion into an exploitative one. none of the students in the Moreover, or harmed, or exploited, Colleps case testified that they felt threatened, desire to see Colleps punished. nor did any of the students have a 34929-nde_28-1 Sheet No. 83 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 83 34929-nde_28-1 34929-nde_28-1 Sheet No. 83 Side B 05/07/2014 15:37:06 . . J. 210 ICH note ICH What’s likely [Vol. 28 (1997); , 6 M . 411, 438 supra Consensual , 6 M al Control of g g DUC at the top of at the top . 47, 61 (1997); Lawrence note 114, at 1064 ARASSMENT , where the parties not DUC H E e and University Policies g supra ainst Bannin g , 32 J.L. & E EGAL EXUAL Lawrence S , 539 U.S. at 578 (categorically But other scholars have Sunstein, , 47 J. L Consent, Equality, and Le & L. 269 (1996); Secunda, Indeed, those may well be the Indeed, those may 209 al Effect of Colle g CCUSED OF ETHICS & PUBLIC POLICY But cf. to Yes: The Case A See Lawrence 207 A g ENDER . 493, 505–06 (2001); Caroline Forell, The Le LAW, EV Gettin EMINIST note 114, at 1064 (arguing that, on an as-applied- . U. J. G ”). , F M . L. R . 777 (1988). supra EX EV , 4 A ALLOP Romantic Relationships Between Professors and Their Students: Romantic Relationships Between Professors and Sexual Relationships Between Faculty and Students One of the chief arguments is that such rela- One of the chief arguments is that g Lawrence G note 208, at 92–95. . L. R 208 42 S. T ANE J ulatin AL Sunstein, g supra Re , of course, does not explicitly use this terminology, but I interpret , of course, does not explicitly use this terminology, Neal Hutchens, Note, her Education ., g g enerally See also Consensual Relationships and the Constitution: A Case of Liberty Denied g , 61 S. C exploitative?in some cases at least, an equation also, Such Mack, NOTRE DAME JOURNAL OF See See Lawrence See, e. ’s narrow zone of protection. Romantic Relationships Between Students and Professors & L. 47 (1999); Sherry Young, g ’s reference to coercion and to injury. & L. 79, 94–97 (1999); Martha Chamallas, with Faculty-Student Sex? The Law School Context The body of literature addressing sexual relationships between addressing sexual relationships The body of literature equally g 209. 210. 207. 208. ENDER ENDER (2003); Richard R. Carlson, Morality, Ethics and Law, G J. G challenge where the parties both claim the relationship is consensual, “these cases would be genuinely difficult after Margaret H. Mack, 33, at 156–62. Wron Gary E. Elliott, (questioning whether such policies are constitutional after (questioning whether such policies are constitutional agree that the relationship is consensual). could diminish the sexual autonomy of the adult who is of the adult the sexual autonomy could diminish Sexual Conduct Lawrence Prohibitin Relationships in Hi 156 relation- sex involving all law equate if we by generally, relationships exist, or power disparities in which ships situations all such argue that are \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 32 1-MAY-14 14:39 the power structure, whom the state has now otherwise empowered to otherwise empowered the state has now structure, whom the power live with a consequence, to choices (and, as or her own sexual make his making must live when which other adults of mistakes with the kinds sexual choices). argu- noting that this it is once again worth Of course, is presumed only in situations where exploitation ment would pertain otherwise actually of the relationship, but is not merely by the nature actor. on the part of the authoritative present or intended In cases with an intent or where the teacher acted involving actual exploitation, her position of otherwise take advantage of his or to exploit or to state’s interests in to obtain sex from the student, the authority in order conduct clearly become stronger, and criminalizing the excluding sexual exploitation of this kind). offers no protection in the first place. offers no protection tionships are inherently coercive, which would place them outside of tionships are inherently coercive, which Lawrence overwhelming majority of cases. overwhelming majority level is especially at the college and university faculty and students instructive. much of that literature contends As one might imagine, forbidding such relationships that policies (not criminal laws, however) part because of the risks associated are both necessary and desirable, in of many of the same reasons that with the practice and in part because such relationships at the sec- we see articulated in the cases concerning ondary school level. argued against the validity of general bans on faculty-student sex, argued against the validity of general 34929-nde_28-1 Sheet No. 83 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 83 34929-nde_28-1 34929-nde_28-1 Sheet No. 84 Side A 05/07/2014 15:37:06 215 to the court g inherently response Gettin The state He further be truly con- He responds Edwards 220 LAWRENCE 157 Secunda ulti- 213 can 212 Lawrence 216 211 different. Paul M. Secunda, advances a sexual auton- a sexual advances are See also Lawrence . 55 (2004) (discussing similar subject matter). EV 219 L. R 288 P.3d 494, 504 (Kan. Ct. App. 2012). , note 33, at 147–62. Scale Approach to Faculty-Student Consensual Relationship Policies Scale Approach to Faculty-Student Consensual Relationship note 33, at 148–49. note 33, at 118-19. g YRACUSE supra supra supra Secunda further argues that colleges and universities Secunda further , 55 S This would place the burden on the faculty member to This would place the burden on 214 State v. Edwards Secunda, at 157–60. at 160–62. at 156–57. at 148–50(quoting Lawrence v. Texas, 539 U.S. 558, 567 (2003)). at 147–48. at 147. 217 See Id. Id. Id. Id. Id. Id. See At the same time, the Constitution would presumptively favor At the same time, the Constitution her Education THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Secunda is, of course, focused on internal college and university Secunda is, of course, focused on Beginning with the premise that that the premise with Beginning g 218 220. 219. 218. 215. 216. Secunda, 217. 214. 212. Secunda, 213. 211. Nexus of the Matter: A Slidin in Hi rather, that phrase is likely referring to marriage. rather, that phrase 2014] post- comprehensive, offered a has Paul Secunda and policies. of prohibitive in favor arguments to the \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 33 1-MAY-14 14:39 policies that ultimately provide civil or administrative sanctions, rather policies that ultimately provide civil school teachers who could serve than criminal laws targeting secondary sexual relationships with stu- time in prison for engaging in consensual dents. he makes apply with any The question is whether the arguments of the same force in the latter context. Perhaps, as the nonsupervisory relationships. schools thoughtfully explained, secondary omy rationale beyond one limited to sodomy between people of the between people limited to sodomy beyond one omy rationale devotion to autonomy sees a Millian Secunda (like others) same sex, sexual relationships. protect faculty-student that would are not meant to come within the meaning of Justice Kennedy’s state- come within the meaning of Justice are not meant to law protects;” “abuse of an institution the ment about preventing outweigh the state’s inter- show that her interests in the relationship ests. mately prefers a sliding scale approach to college and university poli- scale approach to college and mately prefers a sliding be given to policies that forbid cies, in which the most weight would a supervisory role for the faculty sexual relationships where there is member. could reasonably argue, or rationally conclude, that good academic could reasonably argue, or rationally special meaning in the secondary order and academic integrity have student assessment is typically not school context, particularly where education environments, like law anonymous (as it is in some higher schools). rationally conclude that because Or perhaps the state could to the “consent might not easily be refused” argument for such policies argument for such easily be refused” might not to the “consent sexual relationships that faculty-student by concluding concluding that, about power disparities by responds to the argument instances to and universities can look to individual although colleges power differen- the faculty member exploited the determine whether and denies the assumes such exploitation tial, a blanket prohibition for “mutually satisfying” relationships—heparties an opportunity is sex as to the notion of faculty-student clearly opposed exploitative. sensual, just as private same-sex sexual relations can be. same-sex sexual relations can sensual, just as private 34929-nde_28-1 Sheet No. 84 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 84 34929-nde_28-1 34929-nde_28-1 Sheet No. 84 Side B 05/07/2014 15:37:06 ’s [Vol. 28 As other Lawrence would for- 223 , which has not may not look at Sex In and Out of Inti- Lawrence Lawrence Lawrence that the right is (or might 222 ETHICS & PUBLIC POLICY note 222, at 810. LAW, supra In this sense, and in light of the Exclusions 224 and the Importance of an Intimate Relationship particularly libertarian. As such, Laura A. Rosenbury & Jennifer E. Rothman, L.J. 809 (2010). enerally Rosenbury & Rothman, g Lawrence Or the state could argue that, although an atmosphere of that, although an state could argue Or the specifically describes the sodomy at issue in that case as “but specifically describes the sodomy at NOTRE DAME JOURNAL OF See Id. See MORY C. Lawrence 221 The concern, then, is not merely with the possibility of exploita- is not merely with the possibility The concern, then, It is also important to note the language in It is also important to note the language 223. Lawrence v. Texas, 539 U.S. 558, 567 (2003). 224. 221. 222. , 59 E who dated his student lover prior to their sexual activity and by all indi- macy escaped thoughtful scholarly attention, 158 have barely below or overwhelmingly are students school secondary to by law are required whom most of and of majority, the age reached be adversely likely to more impressionable, are more they attend, sex is permitted, in which teacher-student an environment affected by per- exploited if a sexually to be sexually even more likely and perhaps and stu- teachers to exist between is allowed missive atmosphere dents. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 34 1-MAY-14 14:39 sexual freedom and permissiveness is to be expected to some extent expected to some is to be and permissiveness sexual freedom (at least not college, such expectations do not apply once one reaches among secondary schools. to the same degree) partic- dangers of sexualizing a learning environment, tion, but with the largely by minors.ularly one inhabited is simply that if The point here in the con- arguments are ultimately persuasive Secunda’s thoughtful raises them—thattext in which he is right about is, if he meaning and reach with respect to consensual sexual relationships in with respect to consensual sexual meaning and reach higher education—then here would have to the criminal laws described school context. interests unique to the secondary be predicated upon articulation. predicate, but one that requires That is at least a plausible Paragraph, there is further evidence that while Paragraph, there is further evidence first blush as traditionally conservative with respect to law and sexuality, first blush as traditionally conservative neither is bid even consensual sex obtained by deception or seduction, because in bid even consensual sex obtained by not for the purpose of such cases the sexual intimacy is consummated relationship, but merely to developing a deeper emotionally intimate who is engaging in fraud or serve the prurient interests of the seducer, rather than to promote intimacy misrepresentation solely to obtain sex within a committed relationship. in the adult teacher-adult student But different teachers differently in cases, it would also require us to treat the cases discussed here. example, treat David Paschal— It would, for be) predicated upon the existence of an intimate relationship or upon be) predicated upon the existence intimacy between people. conduct designed to promote emotional Lawrence is more enduring.” one element in a personal bond that scholars have noted, this language at least suggests that sexuality is scholars have noted, this language value only when it forms a part of worth preserving as a constitutional of intimate relationships that the the development and preservation actors hope will endure. 34929-nde_28-1 Sheet No. 84 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 84 34929-nde_28-1 34929-nde_28-1 Sheet No. 85 Side A 05/07/2014 15:37:06 ’s Lawrence stronger if ’s conserva- LAWRENCE 159 seems is otherwise seri- is otherwise Lawrence where the sex was a right really does depend Lawrence According to their formu- According to their Lawrence 227 Lawrence is accurate (and it certainly is plausi- (and it certainly is accurate The authors describe the existing “sex-nega- The authors describe Lawrence As a result, sexual expression is considered As a result, sexual 225 ’s privacy right.’s privacy of all kinds, including Casual sex 226 Lawrence , or if some subsequent case adopts this formulation, then , or if some subsequent case adopts at 818–19. at 812. at 811. If the Rosenbury/Rothman formulation is the better reading If the Rosenbury/Rothman formulation Id. Id. Id. Id. 228 THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Making these kinds of distinctions, of course, simply reinforces the Making these kinds of distinctions, Yet if this reading of Yet if this 228. 226. 227. 225. Lawrence group sex (consider, again, Colleps’s case), would be unprotected even be unprotected Colleps’s case), would (consider, again, group sex if consensual.strange result if This seems a ble), then fully, truly consensual “one-night stands” would not be pro- stands” would not “one-night fully, truly consensual ble), then tected under sexual autonomy. it describes the importance of ous about the way have written an Rosenbury and Jennifer Rothman More broadly, Laura piece that acknowledges exceptionally thoughtful on and challenges this type of constraint tive approach to sex non-intimate or that sex can have value even in privacy right, arguing enduring relationships. 2014] over time—differentlywith her relationship a serious developed cations group sex, including in casual only engaged who Brittni Colleps, from partners. student with multiple sex, \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 35 1-MAY-14 14:39 the sex is isolated and casual, unconnected to a deeper commitment the sex is isolated and casual, unconnected between the two parties. exploitation appears less likely as By contrast, if objective evidence of such an explanation for the teacher’s conduct relational commitment exists. advance: valuing consensual argument that Rosenbury and Rothman recognizing its value outside of sexual intimacy between adults means moving to a vision of sexual committed relationships, and this means intimacy that more fully considers sex in the context of freedom, self- upon the existence of an intimate relationship, then those persons situ- upon the existence of an intimate relationship, relationships would arguably pos- ated in otherwise prohibited sexual sess a stronger case for protection under of claiming a constitutional bar to his clearly the possibility of a seducer palatable, but again, only to the prosecution becomes somewhat more not also fraudulent or otherwise extent that the seductive activity is exploitative. the teacher who has consensual, The same is true with outside the context of a com- casual, or group sex with adult students, mitted relationship. And yet, if the relationship (which is to say, it part of a deeper and more lasting involves more than merely casual sex). In the case of teacher-student at least sex, the argument for deliberate exploitation acceptable only in narrow circumstances, and any sex that falls outside narrow circumstances, and any sex acceptable only in is stigmatized. of those narrow categories tive landscape” as discouraging sex outside of emotionally intimate rela- discouraging sex outside of emotionally tive landscape” as diversity of deterring “openness about the potential tionships and as sexual experiences.” lation, sexual association and intimate association must not be con- and intimate association lation, sexual association flated. 34929-nde_28-1 Sheet No. 85 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 85 34929-nde_28-1 34929-nde_28-1 Sheet No. 85 Side B 05/07/2014 15:37:06 ht to g . 563, , from EV [Vol. 28 L.J. 957 Lawrence L. R , then, Strader ASTINGS Lawrence ORNELL rightly highlights , 30 H Lawrence AWRENCE L , 62 C , J. Harvie Wilkinson III & G. Lawrence FTER A inter alia ETHICS & PUBLIC POLICY is better understood as a case that RIMES Sexual Autonomy and the Constitutional Ri Yet it is those very distinctions that very distinctions it is those Yet LAW, C 229 EX As the state’s justification is more closely S hts and the Unwritten Constitution Lawrence 230 g note 24, at 51–61. On this aspect of ETHINKING supra ’s significance as a criminal law precedent but also ’s significance as a criminal law precedent , then, cannot be criminalized because it causes no harm , then, cannot be criminalized because at 819–21(citing with approval, Constitutional Protection for Personal Lifestyles III. R Strader, Lawrence NOTRE DAME JOURNAL OF See See id. ’s interest in harm. simpliciter (1979)). Consequently, perhaps the better understanding of Consequently, perhaps the better understanding The two areas of sex crimes discussed here may seem somewhat discussed here areas of sex crimes The two 230. 229. and I seem to agree. Privacy: A Case Study in Human Ri passim 611–13, (1977) and David A.J. Richards, 615 Edward White, 160 self-realization. and fulfillment, \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 36 1-MAY-14 14:39 sets in motion. detached on the surface.detached on focus primarily sex-by-fraud materials The is, whether the consent can be said to exist; that the issue of whether vitiates consent.deception or misrepresentation teacher-student In the focus on the nature of such relationships—whethermaterials, the cases inherently coer- because the relationships are we presume non-consent be legally consensual—andcive and thus cannot upon the state’s inter- and roles of the sex based solely upon identities ests in forbidding sexual partners. or potential areas raise the problem of actual Both sexual exploitation. potential con- Moreover, both areas raise the same non-prostitu- whether, if the sex at issue is private, stitutional problem: may choose to and between adults, the state tion, truly consensual, due process. the sex a crime without violating nonetheless make And compel us to of criminal lawmaking, both areas yet, at a deeper level and degrees, of harm are sufficient confront the question of what types, of the criminal sanction: to implicate the interests and functions worthy of condemnation and whether the conduct at issue is sufficiently community.punishment imposed by the political The politics of crime- discretion become espe- definition and the exercise of prosecutorial law narrative that cially valuable components of the criminal which consensual sexual conduct compels us to consider more carefully we decide to punish. of Strader’s analysis the perspective of criminal law, is not one that focuses upon the funda- the perspective of criminal law, is not of review, or even the nature of mentality of the right, the standard important as those considera- constitutional protection for sexuality, tions are. Rather, perhaps not only Lawrence scrutinized, naturally, the burden is greater on the state to identify the scrutinized, naturally, the burden is to prevent and punish.substantiality of the harm that it seeks But even the harm that the state identifies at the level of rational basis review, to public morality.must be more than an abstract harm Same-sex sod- omy the state is otherwise entitled to to individuals and no social harm that could indicate the difference between a teacher-student sexual relation- sexual teacher-student a between the difference indicate could exploitation, sexual about concerns state implicates that actually ship that does not. and one 34929-nde_28-1 Sheet No. 85 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 85 34929-nde_28-1 34929-nde_28-1 Sheet No. 86 Side A 05/07/2014 15:37:06 See 232 Law- J.L. & Commer- . 457, 466 . 505, 509 EV is read to EV J. Richard ORNELL See . L. R LAWRENCE 161 . L. R , 5 C ICH ICH Lawrence ’s concerns, then, those involving pro- Perhaps this is a prod- , 46 U. R it nonetheless forces us it nonetheless forces and , 100 M . 161 (2005); Michael Conant, 231 EV 233 Lawrence . Even if L. R ht to Commercial Sex: The Impact of g A Date with Justice: Prostitution and the ITY ument for the Decriminalization of Prostitution, emerges as an instrument for pro- emerges as an instrument g note 222, at 810. L.J. 125 (1994); David A.J. Richards, Lawrence S ’ the Ri g supra inin , 9 N.Y. C OMEN g Lawrence W note 232, at 471. I am influenced by Bill Stuntz’s work on ical Politics of Criminal Law Reima g In the context of private, non-prostitution, and In the context of private, non-prostitution, —whether, be that harm must as Strader argues, ARDOZO supra 234 , 1 C The Patholo hts of the Person: A Moral Ar Lawrence . 1195 (1979). g ressional Inquiry and the Federal Criminal Law g EV on Prostitution Statutes Broughton, Rosenbury & Rothman, Con 99 (1996); Margaret A. Baldwin, See See ’s restraints on— holding only reinforces many constitutional Y . L. R ’ A OL THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE Maybe this is the real virtue of Maybe this is the real The literature on overcriminalization in America is substantial, The literature on overcriminalization 233. is sizeable. The literature of decriminalizing prostitution For just a few exam- 232. elsewhere. I have summarized this extensive literature 234. 231. . P UB rather than the increased liberation of—sex,rather than the increased (2002). (2012). ples, see Belkys Garcia, Note, P rence v. Texas Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution Federalism, the Mann Act, and the Imperative to cial Sex and the Ri 127 U. P the politics of criminalization, and he makes a similar point with great persuasiveness. William J. Stuntz, Broughton, Decriminalization Debate but it is not clear that sex crimes have played a significant role in the but it is not clear that sex crimes have debate (beyond the subject of prostitution). 2014] sanction. the criminal through address of sexual categories the Indeed, con- sexual all include Paragraph the Exclusions fit within that conduct commu- the political to harmful sufficiently be deemed that could duct as moral ones only. be characterized harms that may nity, beyond But chal- in this Article, and the ones discussed of conduct, those categories principle of any harm the scope to properly identify lenge us in announced identify state is free to or whether the exist in each case, proven to actually present. risks of exploitation even if not potential harms or then, Understood this way, \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 37 1-MAY-14 14:39 or at least the about the overcriminalization, pelling a larger narrative sex. overprosecution, of apply only rational basis review, thus setting a low bar of justification for basis review, thus setting a low bar apply only rational at least the over- (and thus likely validating all, or most sex crimes of, sex-by-deception crimes whelming majority hibited sexual relationships beyond mere same-sex ones), and even if beyond mere same-sex ones), hibited sexual relationships Lawrence consensual sex, however, this explanation for criminalization does not consensual sex, however, this explanation seem to apply—unlikeconsen- other forms of criminal activity, private, to grapple politically with whether we simply make crimes out of, and with whether we simply make crimes to grapple politically acts. prosecute, too many consensual sex uct of our inability to achieve greater sexual liberation, leaving us mired uct of our inability to achieve greater regards much sexual activity as in a kind of sexual conservatism that morally questionable—evensocially unacceptable, unseemly, or if pri- of marriage.vate and consensual, particularly outside Or perhaps it is legislators can afford to because, like other areas of criminalization, fear of a political downside and broaden criminal prohibitions without exists that is politically because no constituency for decriminalization worthy of defending. tend to merge with those of the criminal law. tend to merge with those of the criminal 34929-nde_28-1 Sheet No. 86 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 86 34929-nde_28-1 34929-nde_28-1 Sheet No. 86 Side B 05/07/2014 15:37:06 The [Vol. 28 236 of Prosecutors: g sanction. n and the Policin g criminal consensual sex does not mean ETHICS & PUBLIC POLICY . 869 (2009). EV some LAW, Institutional Desi And as we see in the student-teacher And as we see in note 37, at 50–51. . L. R 235 note 24, at 74–76. A mere assertion of an abstract TAN supra , supra 61 S Strader, Rachel E. Barkow, See Rape by Fraud enerally g Falk, the moment is ripe for more fully considering how the sub- the moment is ripe for more fully NOTRE DAME JOURNAL OF See See 237 Moreover, the “tough on crime” label that normally drives the normally drives crime” label that the “tough on Moreover, Indeed, at a time when the substantive criminal law has grown by Indeed, at a time when the substantive 237. 236. I understand Strader to make a similar, but slightly different, point in the con- 235. affirmatively prove that the act caused specific harm to person or property (but not Lessons from Administrative Law, harm will not do. text of judging the constitutionality of sex crime statutes. For Strader, if the text of the statute fails to clearly identify the relevant harm being targeted, then the government must “harm to society”). 162 that enough common is of marriage sex outside non-prostitution sual, this in engaging constituency relevant has a legislator American every behavior. is talking apply when one seems difficult to crime-definition politics of adults. sex between about consensual actu- those crimes Still, perhaps sanction. the criminal punishing through an interest worth ally involve sex by themes in the one of the emerging for example, As Falk notes, their frauds upon the perpetrators tend to commit fraud cases is that about sexual pre- raising legitimate state concerns multiple victims, thus dation as well as exploitation. \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 38 1-MAY-14 14:39 stantive criminal law of sex is contributing to the rightful scope and stantive criminal law of sex is contributing power of the state. In such massive—and massively powerful—criminal a mistake to unthinkingly perpetu- law and prosecutorial regimes, it is private, adult sex without ade- ate a regime of criminalized consensual, resources ought to be devoted to quately considering whether public offenders to public punish- prosecuting such cases and to subjecting cases, if the state must seek an external harm to justify what otherwise must seek an external harm to justify cases, if the state simply the risk of sex, the externality is not may be truly consensual or system itself but also the educational institution sexual exploitation must promote to and good order that it and the learning environment young peo- critical but complicated task of educating be effective at the ple. raises legitimate of the learning environment thus Sexualization the risk of exploitation.public concerns beyond larger criminal The could actually be here, then, is that criminal law law-making point the relevant legitimate state interests by including drawn to reflect these allowing us to meaningfully dis- harm as an element of the crime, thus sex that, is unworthy of social con- tinguish the most harmful sex from through demnation and public punishment that we should criminalize most of it.that we should criminalize most of Nor does it preclude us from using other, civil or administrative mechanisms—rather force than the of criminal law—to protect legitimate public interests. as we But even criminal law in this area seek to protect those interests, defining romantic and sexual relationships requires recognizing that, very often, be placed into neat categories that are complicated and cannot easily presume them to be socially harmful. prosecutors with enormous alarming proportions, and has invested power, fact that we ought to criminalize 34929-nde_28-1 Sheet No. 86 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 86 34929-nde_28-1 34929-nde_28-1 Sheet No. 87 Side A 05/07/2014 15:37:06 is not LAWRENCE 163 Lawrence Justice Thomas 241 and even if one 239 238 punishments for any and calling this an “‘uncommonly reaches as far as this Article has reaches as far as criminal 240 Lawrence Griswold, majority, even if his constitutional analysis majority, even if his constitutional note 11. ’s virtue—Justice Thomas’s two-paragraph dis- “Punishing someone for expressing his sexual “Punishing someone for expressing to reach), American policymakers cannot simply to reach), American supra was clearer about the scope of its protection of was clearer about the scope of its 242 , 539 U.S. at 605–06 (Thomas, J., dissenting). Lawrence ued g is worth careful consideration. Justice Thomas When Lawrence as a case that challenges existing political assumptions as a case that challenges Lawrence Carpenter, State v. Hollenbeck, 53 A.3d 591, 598–99 (N.H. 2012). Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Thomas, J., dissenting) (quot- Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). , 381 U.S. at 527 (Stewart, J. dissenting)). See Lawrence See See Cf. See is more conservative than libertarian, Lawrence could be ar Lawrence THE CRIMINALIZATION OF CONSENSUAL ADULT SEX AFTER AFTER SEX ADULT OF CONSENSUAL CRIMINALIZATION THE So regardless of whether So regardless of whether For the thoughtful conservative—who may be skeptical of this consensual, private adult sex to the table as we further the conver- consensual, private adult sex to the 242. 241. 240. 239. 238. Griswold ing 2014] and civil where particularly harms, of actual absence in the ment desirable. more and be available might remedies administrative So would survive that interests non-morality can identify if the state even that those are interests fair to ask whether scrutiny, it is constitutional law force of the criminal using the blunt can protect without the state prosecution.and criminal or Colleps, Edwards, To say that Paschal, environ- the educational to compromise done something Morales have ment—and should be disciplined—is that they one thing. To expend then to imprison on their prosecutions and scarce public resources them is quite another. have sex To say that psychoptherapists cannot do so even after is one thing; to say they cannot with their patients another; to prose- professional relationship is quite termination of the in jail for it is still another. cute and put them \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 39 1-MAY-14 14:39 about the criminal law of sex.about the criminal involving It compels us to bring crimes truly American criminal sanction and sation about the proper scope of the discretion.exercise of prosecutorial power and Even if we assume that Lawrence rely on an ambivalent Supreme Court to determine the scope of per- Supreme Court to determine rely on an ambivalent adult sexuality.missible consensual ought to under- Consequently, we stand (rather skeptically) suggested that it might (or, to put it more precisely, suggested that it might (or, to put (rather skeptically) that it silly law’” vote to repeal the Texas sodomy and saying that he would legislature, statute if he were a member of the Texas is demonstrating a substantive criminal law vision not so attenuated is demonstrating a substantive criminal from that of the wishes that private adult sex, a conservative consensual, non-prostitution, and criminal law of sex remains grounding for a leaner and more sensible possible. methodology) in The result (though not the inconsistent with a thoughtful form of conservatism that embraces pru- inconsistent with a thoughtful form and the power of the state.dent limits on the criminal sanction While sexual practices that inflict identifi- conservatism embraces restraints on able social harms, it does not require all conduct that may be socially undesirable. The criminal law is a vital, a tolerable social order. but not exclusive, instrument for achieving assessment of sent in channels Justice Stewart in differs significantly. 34929-nde_28-1 Sheet No. 87 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 87 34929-nde_28-1 34929-nde_28-1 Sheet No. 87 Side B 05/07/2014 15:37:06 Law- is a [Vol. 28 Lawrence and to discern Lawrence ETHICS & PUBLIC POLICY 243 has real implications for the crimi- , but it is no substitute for clarity. In LAW, ONCLUSION C Lawrence Lawrence offers some admittedly narrow protection for truly offers some admittedly narrow protection has provided American criminal justice policymakers and has provided American criminal justice at 605. (Thomas, J., dissenting). NOTRE DAME JOURNAL OF Lawrence Id. among lower courts, if accurate, suggests that among lower courts, if accurate, Those ambiguities create especially complicated constitutional Those ambiguities Lawrence For ten years, the criminal law has endured the ambiguities of criminal law has endured the ambiguities For ten years, the The prudent political decisionmaker knows that she must pick her that she must pick knows political decisionmaker The prudent 243. 164 with another conduct consensual non-prostitution through preference to expend worthy way to be a appear not says, “does Thomas adult,” resources.” law enforcement valuable \\jciprod01\productn\N\NDE\28-1\NDE104.txt unknown Seq: 40 1-MAY-14 14:39 rence. consensual sexual sexual behavior in factually questions about criminal encounters. this Article does important to emphasize again that It is or conduct at or justify any of the sexual activity not condone, endorse, hypotheticals discussed here.issue in the cases or this Article has What considering the is to identify a framework for attempted to do, however, holding in enticingly rich but deeply unclear whether as to the nature of the act), factually consensual (that is, consensual between adults that the state never- non-prostitution sexual encounters law.theless forbids through the criminal The existing understanding of Lawrence battles, wisely, with serious consideration given to the proper equilib- to the proper consideration given with serious battles, wisely, limits on to reasonable order and freedom, good social rium between and of social custom to an appreciation of the state, and the power customs and traditions that those as well as a recognition tradition evolve. the aims of the overcriminalization concern and In this sense, of sex crimes. compatible, even in the arena conservatism are entirely comparatively conservative opinion that likely offers little in the way of comparatively conservative opinion sex.restraints on the state’s ability to regulate That may well be an accurate interpretation of truth, the loose language in nal law of sex in America and for the sexual behavior of consenting nal law of sex in America and for adults. shortcoming. The Court should rectify this But even if it does not, engage the broader problem of prosecutors with an opportunity to and to target only that sex- overcriminalization in the area of sexuality or socially harmful to justify ual conduct which is sufficiently personally sanction.the coercive power of the criminal When it comes to truly is a universe of conduct that consensual sex between adults, there but it is likely a small one. should be criminalized and prosecuted, 34929-nde_28-1 Sheet No. 87 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 87 34929-nde_28-1