Just last week, the Fourth U.S. Circuit Court of Appeals in Virginia overturned that state's anti-sodomy laws. The decision was based on the ten-year-old US Supreme Court decision stating that it is unconstitutional to criminalize private, consensual sexual activity between adults, basically voiding all anti-sodomy laws in the US. However, several states kept their anti-sodomy laws in the books, and some even attempt to prosecute citizens for them, as in Virginia.
The unfortunate case that sparked the recent Virginia decision is messy, involving solicitation of a minor and questions of non-consensual assault. The state's initial decision to use outdated anti-sodomy laws speaks to our justice system's history of sexual shaming, lack of clarity when issues of sex are raised and the use of laws to moralize, rather than to strictly protect. And this should matter to all of us.
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What are anti-sodomy laws?
Since the founding of our country, anti- sodomy laws were created and used as a way of policing and enforcing certain moral codes for US citizens. Anti-sodomy laws applied to consenting adults, so they immediately broke from the traditional purpose for creating laws which is to set a bare minimum standard to protect citizen's safety and right to property. Initially, they criminalized a fairly large set of sexual behaviors, including oral sex, anal sex, homosexual activity, adultery and heterosexual sex for unmarried people. Punishments ranged from jail time to death.
A common myth is that anti-sodomy laws only applied to homosexual sex. As sexual values and human rights grew in the 20th century, many states in the US did revise their original anti-sodomy laws leaving only the portion of the law targeting homosexuality, which were used as justification for further discrimination and harassment of that community.
So where do these laws stand now? In 2003, the Supreme Court's decision, in Lawrence vs. Texas, declared same-sex anti-sodomy laws unconstitutional. This ruling invalidated all state's anti-sodomy laws relating to consenting adults. Citing citizen's right to personal liberty and privacy, this case confirmed that it is not within a state's role to control the moral choices in your private sexual conduct.
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However some states haven't yet officially repealed their anti-sodomy laws and may still try to invoke them. Current versions of this category of laws policing sexual behavior refer to unclearly defined "lewd and lascivious" sexual behavior. These laws have previously been applied to adult's use of sexually exciting entertainment or sex toys. They currently are applied in defining what sexual activity between teenagers will be considered legal and consensual or a crime. Keep reading ...
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