Appendix 3 Survivals of Medieval Sex Law in the United States and the Western World

Both Puritan and Catholic divines have often maintained that government has an obligation to enforce Christian religious prescriptions about sexual morality. This belief has been especially influential in the United States, where a long­standing Puritan tradition has coexisted since the mid-nineteenth century with a sizable Catholic population, many of whose leaders bear the imprint of Jan­senist rigorism.

Perhaps the most striking example of the American penchant for public regu­lation of private sexual behavior occurs in criminal statutes dealing with for­nication and adultery. Voluntary noncommercial sex between consenting adults who are not married to each other constituted a criminal offense as of 1984 in seventeen states, the Commonwealth of Puerto Rico, and the District of Co­lumbia. Most of the remaining States formerly considered adultery and fornica­tion crimes, but decriminalized them during the previous two decades.¹ Nei­ther adultery nor fornication was a crime at common law, although both were violations of ecclesiastical law.² In England, adultery (but not fornication) be-

¹Alabama, Code (1975) § 13.8.1; Arizona, Rev. Stat. Ann. § 13.1408-9; Connecticut, Gen. Stat. Ann. 53a-81; District of Columbia Code Ann. (1981) § 22.301; Florida, Stat. Ann. § 798.01, 798.03; Georgia, Code Ann. § 16-6-18, 19; Idaho, Code § 18-6601-4; Illinois, Smith-HurdAnn. Stat., Ch. 38, § 11-7, 8; Kansas, Stat. Ann. 21-3507; Mary­land, Ann. Code §§ 1, 4; Massachusetts, Ann. Laws, G.L., ch. 272 §§ 14, 16, 18; Min­nesota, Stat. Ann. § 609.34, 3θ; Nebraska, Rev. Stat. 1943 (1977 reissue) § 28-704; New Hampshire, Rev. Stat. Ann. § 645.1, 3; NewYork, McKinneys Cons.

²State v. Lash, 1 Harrison 380 (N.J. 1838) at 386; Commonwealth v. Call, 38 Mass. came a felony, punishable by death, under the Puritan Commonwealth in 1650. Adultery had been made a crime even earlier in the Massachusetts Bay Colony, where it was punished by a severe whipping. In 1631, Massachusetts went fur­ther and authorized the death penalty for adultery, although the extreme sen­tence seems not to have been imposed with any regularity. In colonial Massa­chusetts and Connecticut sexual relations between a betrothed woman and any man other than her fiance also counted as adultery and made her subject to the death penalty.^{[2155] [2156] [2157] [2158]} Such extreme measures against sexual offenders gradually gave way to milder ones, but adultery and fornication remained criminal offenses almost everywhere in the United States until the 1960s.

In practice the courts dealt with charges under these statutes rather gin­gerly. Although adultery and fornication are usually considered “crimes of darkness and secrecy,”^[2159] U.S. courts have often held that these offenses must be open, notorious, and habitual in order to be subject to statutory criminal penal­ties—a construction of the statutes that makes successful prosecution unlikely in most cases.^[2160] American adultery and fornication statutes originally sought, be­yond much doubt, to use the criminal law in order to enforce, or at least to enunciate, Christian moral standards.

being persons of ill-fame and reputation and of wicked, corrupt, and depraved dispositions, and wholly lost to all sense of morality, de­cency, and religion, and intending, as much as in them lay, to cor­rupt and vitiate the morals of the good citizens of this State, and to bring into disgrace and disrepute the honorable estate of matrimony, with force and arms... did and still do live in open lewdness, whoredom and adultery, to the great displeasure of Almighty God, the evil example of all others in like cases offending, to the great corruption of the morals and manners of the citizens of this State, and against the peace and dignity of the same State aforesaid.⁶

But this heady rhetoric failed to convince the Supreme Court of South Caro­lina. The court found that the offenses charged belonged under the jurisdiction of the spiritual forum and accordingly granted the defendants the arrest of judg­ment that they sought. In the second half of this century, however, Justice Goldberg, concurring in the majority opinion of the U.S. Supreme Court in Griswold v. Connecticut (1965), maintained that the constitutionality of state statutes prohibiting adultery and fornication was “beyond doubt” and his opin­ion has recently been supported by Justice White, writing for the majority of the court in Bowers v. Hardwick (1986).⁷ The New Jersey Supreme Court had previously questioned the constitutionality of such statutes and a Federal dis­trict court in Texas had held that the right of privacy shields consenting adults from prosecution for voluntary noncommercial sexual relations.⁸ American law on these matters still remains in flux; the recent contention of the Attorney General of the State of Georgia that no one has a right to engage in sexual inter­course outside of marriage, goes against a substantial body of contrary decisions and is not likely to be the final word on the matter.⁹

In actual practice, few complaints were filed under the old adultery and for­nication statutes and even fewer resulted in convictions—the statutes were simply not enforced, which raised the question of what function they were thought to serve.

⁶State v. Brunson and Miller, 17 S.C.L. (1 Bail.) 149 (1831).

⁷Griswold v. Connecticut, 381 U.S. 479 (1965); Bowers v. Hardwick, Slip Op., as well as New York Times, 1 July 1986, p. 10. See also Robert A. Brazener, “Validity of Statute Making Adultery and Fornication Criminal Offenses,” 41 A.L.R.3d 1338-42.

⁸State v. Saunder, 75 N.J. 200 at 203, 381 A.2d 333 at 339-40 (1977); Baker v. Wade, 553 ^f- Supp. 1121 (1982).

⁹Bowers v. Hardwick (No. 85-140), argued on 31 March 1986, decided on 30 June 1986, slip op.; also New York Times, 1 April 1986, p. 19, and 1 July 1986 pp. 1, 10-11. The defendant, Michael Hardwick, was arrested for committing sodomy with another man in the privacy of his own bedroom. The police had entered his dwelling in order to arrest Hardwick for failure to pay a fine for drinking in public. The U. S. Court of Appeals held that the State of Georgia failed to show a compelling interest in restricting the right of privacy as it applied to sexual relations between consenting adults. The Supreme Court, however, ruled that the right of privacy does not extend to homosexual sodomy. Chief Justice Burger in a concurring decision pointedly noted that legislation prohibit­ing homosexual acts sprang from Judeo-Christian religious beliefs about morality, which in his view the states have every right to enforce by law. Justice Blackmun, however, in a strongly argued dissenting opinion, rejected the Chief Justice’s reasoning, asserting that “A state can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus. ” thought unseemly and indecorous. As Slovenko put it, these laws “are unen­forced because we want to continue our conduct, and unrepealed because we want to preserve our morals.”^[2161] The recent rash of repeals of statutes that im­posed criminal penalties on adulterers and fornicators—and repeals of such measures are not limited to the United States, although they are particularly common here—presumably indicates some change in the level of anxiety about moral standards, as well perhaps as a feeling that the enforcement of sexual mo­rality through the criminal process may be inappropriate as well as ineffective.^[2162]

The medieval Church’s marriage law clearly lies at the base of common law doctrine that forcible sexual intercourse between man arid wife is no crime and that marriage therefore furnishes an affirmative defense to criminal prosecu­tions for rape.

“Ralph Slovenko, “Sex Mores and the Enforcement of the Law of Sex Crimes: A Study of the Status Quo,” Kansas Law Review 15 (1967) 271; Larry E. Joplin, “An Ex­amination of the Oklahoma Laws Concerning Sexual Behavior,” Oklahoma Law Review 23 (i97°) 4θ2, 47^o∙

¹¹The Greek Parliament, for example, recently abolished the practice of public sham­ing for adulterers and removed adultery from the offenses in the penal code; the Code previously provided not only a one-year prison term for those convicted of adultery, but also prohibited marriages between convicted adulterers, which likewise reflected the canonical tradition; Times (London), 27 July 1982, p. 7. The contention that criminal law is an inappropriate means to enforce beliefs about sexual morality is, of course, by no means a twentieth-century innovation; see for example Bernard Mandeville (1670- 1733), A Modest Defence of Public Stews: Or, an Essay upon Whoring as it is now Prac­tic’d in These Kingdoms... Written by a Layman (London: Printed by A. Moore near St. Paul’s, 1724; repr. Los Angeles: William Andrews Clark Memorial Library, 1973), P' 7⁰∙

¹²The spousal exclusion is currently recognized by explicit statutory provision in Ala­bama, Code § 13A-6-60(4); Alaska, Stat.

A similar example of the unacknowledged incorporation of medieval canon law into modern statutes occurs in jurisdictions that prohibit “sodomy” and re­fer to the offense not only by that biblical title, but also call it a “crime against nature” or “unnatural act”—terms that remain common in current law, both in the United States and Great Britain. At least twelve American states use the medieval terminology—usually in the form hallowed by Sir Edward Coke (1552-1634)—while twenty-two other States impose criminal penalties specifi­cally upon those who participate in oral or anal sex acts, whether homosexual or heterosexual.^{[2164] [2165] [2166] [2167] [2168] [2169] * * * [2170] Persistence of the concept that these activities should be penal­ized because they are “contrary to nature” is by no means confined to legis­lators. Both state and federal courts in the United States continue to employ suppositions about proper sexual conduct that would have been perfectly rec­ognizable to any thirteenth-century theologian.[2171] A recent California case, People υ. Baldwin (1974), furnished a conspicuous example. In Baldwin the Court of Appeals rejected the defendants argument that the sodomy statute enacted Judeo-Christian religious taboos into public law and hence that it breached the constitutional separation of Church and State. In denying the de­fendants claim, the court asserted that the statute reflected a general public consensus about homosexual behavior. While the justices conceded that this consensus had religious foundations, they held that the statute did not enact religious doctrine.[2172]}

The courts reasoning was less than compelling and its distinction between religious doctrine and community consensus was certainly no model of clarity. The ruling may have satisfied the majority of the court, but it did not deal squarely with Baldwins contention that the California Penal Code, as it then stood, incorporated Christian religious beliefs and that those, in turn, rested on assumptions about the character of human sexuality that were, to say the least, debatable. Since the Baldwin ruling, the California legislature has altered its statutes to meet many of the points that Baldwin raised, for legislation has now eliminated references to the “crime against nature” and decriminalized private oral and anal sex acts between consenting adults.^[2173] Other states have similarly modified their treatment of oral and anal sex in recent years. In several jurisdic­tions the courts have ruled that sodomy statutes may not apply to sexual rela­tions between husband and wife, although some earlier decisions had held the opposite.^[2174] The recent rulings mark a clear break with medieval ecclesiastical notions about permissible marital sex practices—views that Catholic authori­ties continue to reiterate, although in practice many Catholics have rejected them, as have liberal Protestants, Jews, and most non-Christians.^[2175]

Other types of legislation on sexual matters, both in the United States and elsewhere, continue to rely upon modified versions of medieval Christian views about sexual propriety. In some respects American statutes often seem more rigid and uncompromising than the policies enunciated in medieval law. The contrast is particularly marked in statutes dealing with prostitution, brothels, pandering, and other aspects of commercial sex. Where medieval authorities typically regarded prostitution as an evil to be tolerated in order to avoid still graver social problems, current statutes in all American states, with the ex­ception of Nevada, ban prostitution, penalize pimps, panderers, and brothel­keepers, and sometimes prescribe penalties for the clients of prostitutes, as well as for the prostitutes themselves.^[2176] These statutes are notoriously inefiec-

Fuchs, Sexual Desire and Love, pp. 172-209; W. Norman Pittenger, Making Sexuality Human (Philadelphia: Pilgrim Press, 1970), pp. 29-58, 69-96.

“The canonical dictum that equates promiscuity with prostitution, whether the pros­titute charges a fee or not, apparently is still treated as law in some parts of the U.S.; see People v. Brandt, 306 P.2d 1069 at 1072 (Cal., 1956); Bayrouth v. State, 294 P.2d 856 (Okla., 1956); Salt Lake City v. Allred, 430 P.2d 371 (Utah, 1967). Current statutes ban­ning prostitution include: Ala., Code § 13.7.1-2; Alaska, Stat. § 11.66.ιoo, 110-130, 150; Ariz., Rev. Stat. Ann. § 13.3201 to 3212; Ark., Stat. § 41-3001 to 3006, 3051; Cal., Codes Ann., Penal Code §§ 266, 309; Colo., Rev. Stat. 18-7-101 to 208; Conn., Gen. Stat. Ann. § 53a-82 to 89; Del., Code Ann., tit. 11 §§ 1342-1344, 1355-1356; District of Columbia, Code Ann. § 22-2701, 2704, 2705, 2707, 2708, 2712, 2722; Fla., Stat. Ann. §§ 796.01,.03-.07; Ga., Code Ann. §§ 16-6-9 to ¹²> 16-6-16; Hawaii, Rev. Stat. §§ 712-1200 to 1202; Idaho, Code §§ 18-5602, 5606, 5608 to 5610, 5612 to 5614; Ill., Smith-Hurd Ann. Stat., Ch. 38, §§ 11-14 ^{to 1}SL Ind., Code Ann. §§ 35-45-2 to 4; Iowa, Code Ann. §§ 725.1-3; Kans., Stat. Ann. §§ 21-3512 to 3515; Ky., Rev. Stat. Ann. §§ 529.20 to.070; La., Rev. Stat. Ann § 14:82 to 86; Me., Rev. Stat. Ann., tit. 17, §§ 851 to 853B, 855; Md., Ann. Code, art. 27 §§ 15 to 17; Mass., Ann. Laws, G.L., Ch. 272 §§ 2, 6, 7, 24, 53; Mich., Comp. Laws Ann. §§ 750.448 to 449a; Minn., Stat. Ann. §§ 609.321, 323, 324; Miss., Code Ann. §§ 97-29-49 to 53; Mo., Stat. Ann. § 567; Mont., Rev. Code Ann. §§ 45-5-601 to 603; Nebr., Rev. Stat. §§ 28-801 to 804; N.H., Rev. Stat. Ann. § 645:2; N.J., Stat. Ann. § 2Q34-1; N.M., Stat. Ann. §§ 30-9-2 to4; N.Y., McKinney’s Cons. Laws Ann., Penal Law §§ 230.00 to.03,.15,.20,.25,.30,.32,.40; N.C., Gen. Stat. §§ 14.203-14, 204 to 208; N.D., Cent. Code §§ 12.1-29-01 to 03; Ohio, Rev. Code Ann. § 2907.21 to.25; Okla., Stat. Ann., tit. 21 §§ 1025, 1028, 1029; Or., Rev. Stat. § 167.002,.007,.012,.017; Pa., Stat. Ann., tit. 18 § 5902; Puerto Rico, Laws Ann., tit. 33 §§ 4070 to 4072; R.I., Gen. Laws §§ 11-34-1 to 5; S.C., Code §§ 16-15-90 to 110; S.D., Comp. Laws Ann. § 22-23-1 to 8; Tenn., Code Ann. §§ 39^-35^o4> 35⁰5i Tex., Vernons Codes Ann., Penal Code § 43.02 to.05; Utah, Code Ann. § 76-10-1302 to 1306; Vt., Stat. Ann., tit. 13 § 2632; Virgin Islands, Code Ann., tit. 14 §§ 1622 to 1625; Va., Code Ann. §§ 18.2-346 to 349, 355 to 358; Wash., Rev. Code Ann. §§ 9A.88.0.0 to.090; W. Va., Code Ann. §§ 61-8-5 to 8; Wis., Stat. Ann. §§ 944.30 to 34; Wyo., Stat. Ann. §§ 6-5-103 to 105, 109, 110. In Nevada, where prostitu­tion is no crime, the statutes restrict many details of its practice; thus Rev. Stat. § 201.380 forbids operating a brothel within 400 yards of a school or church and § 201.390 prescribes that property located on principal streets or those zoned for business must tive, however, and in many jurisdictions are largely ignored, save during those occasional spasms of moral self-righteousness that seem to afflict Americans as intensely and Unpredictably as they do Englishmen.^{* [2177]}

The influence of Christian moral doctrine is even more obvious in modern marriage law, since the definition of the conjugal unit draws directly from Christian theology. An obvious example is the insistence throughout the West­ern world that marriage must be monogamous. Western prohibitions of polyg­amy are clearly religious and rooted firmly in medieval canon law. The history of the admission of Utah to the United States furnishes a striking example of the determination of modern Western governments not to compromise on this basic principle of family structure. In this struggle federal authorities success­fully demanded that Utah’s Mormons sacrifice their religious principles as a necessary condition of incorporation into the Union, and the courts upheld the constitutionality of the whole proceeding.^[2178]

The consensual marriage theory of the canonists has also impressed itself deeply into the matrimonial jurisprudence of many modern states. In England the pre-Tridentine canon law of marriage remained in effect until the passage in 1753 of Lord Hardwickes Act. Since that date, consensual marriage—often referred to as “common law marriage,” despite the fact that its historical roots lie in canon law—has not been recognized in England.^[2179] In the United States, however, the simple exchange of marital consent, even if done in private—in short, clandestine marriage as the medieval canonists knew it—long remained a perfectly acceptable type of marital union and is still recognized in thirteen states. In 1884 the United States Supreme Court declared that

Under our law a marriage depends solely upon the mutual consent of the contracting parties. They may enter into the marriage se­cretly, and the fact may be unknown to all save the man and the woman.... [A] marriage is valid without witnesses and no cere­mony is necessary.^[2180]

Virtually the whole gamut of medieval theological and canonical opinion about marriage formation has been incorporated at some point or other in the civil jurisprudence of the United States. Several states that uphold (or upheld) the validity of common law marriages replaced the rule that consent, not coitus, makes a marriage {consensus non concubitus facit matrimonium) with the coital marriage theory that intercourse makes marriage (concubitus facit matrimonium). Still other states were at one time prepared to accept future consent followed by coitus as valid marriage for civil purposes, although appar­ently no state does so currently.^[2181] While nineteenth-century American judges revived medieval clandestine marriage, English judges rewrote the history of consensual marriage law. With a great show of learning the House of Lords in Regina v. Millis reached the historically indefensible conclusion that marriage by present consent of the parties alone had never existed in England and that the presence of an ordained clergyman had always been required for valid mar­riages in the English kingdom.^[2182]

Twentieth-century American courts continue to wrestle with other problems familiar to their twelfth- and thirteenth-century predecessors, such as the problem of the equitable treatment of the financial interests of a concubine. The leading issues in Marvin v. Marvin (1976) were tolerably familiar to medi­eval commentators and the solution that the California Court of Appeals ar­rived at would scarcely have astounded them, although the amount of property at issue might well have done so.^[2183] Modern civil law jurisdictions have struggled with these same issues and in many cases, notably in Latin America, have bor­rowed heavily from medieval canon law in resolving them.^[2184] In France, even though the Civil Code ignored the existence of concubinage, twentieth-century legislators and judges have found it necessary to deal with the problem and, consciously or not, have followed lines of reasoning similar to those of the can­onists in resolving the problems of concubines and their children.^{[2185] [2186]}

Divorce is yet another department of modern domestic-relations law where the influence of canon law remains visible, although during the past quarter­century the canonical element in divorce law has steadily diminished. Still, in many jurisdictions the grounds for divorce and even the processes, procedures, and administrative paraphernalia of divorce were closely linked until recently to medieval law.²”

As these examples show, the medieval Church’s doctrines concerning mar­riage and sex not only furnished the antecedents from which modern law grew, but continue to exert a powerful influence on both law and practice. The mod­ern secular state is neither as modern nor as secular as it is often thought to be. Medieval Christian value systems remain pervasive and prominent in legal treatments of sexual matters, in and out of marriage.