From: Valence (valence10@hotmail.com)
Date: Mon Jul 07 2003 - 07:24:03 BST
Hey Johnny,
I tried to wash my hands of this thread but it just won't seem to go away.
"Every time I try to get out, they pull me back in." :-)
> Rick asked:
> "How would you have convinced the Court that the framers didn't intend
> privacy to be
> covered by the 9th amendment? As a great man once wrote, "Show some
> evidence, please, not just your personal "
J
> Because the framers were all active and aware of their state laws, and all
> of those states had marriage laws and adultery laws and laws about sexual
> immorality.
R
I'm not sure what relevance the marriage and adultery laws have, but as for
laws about sexual conduct, you're correct. The framers did know their state
laws (most of them were state governors and members of state legislatures).
So here is how the Court would have responded to you...
US SUPREME COURT - Lawrence v. Texas (J. Kennedy) - citations omitted:
Laws prohibiting sodomy do not seem to have been enforced against
consenting adults acting in private. A substantial number of sodomy
prosecutions and convictions for which there are surviving records were for
predatory acts against those who could not or did not consent, as in the
case of a minor or the victim of an assault. As to these, one purpose for
the prohibitions was to ensure there would be no lack of coverage if a
predator committed a sexual assault that did not constitute rape as defined
by the criminal law. Thus the model sodomy indictments presented in a
19th-century treatise addressed the predatory acts of an adult man against a
minor girl or minor boy. Instead of targeting relations between consenting
adults in private, 19th-century sodomy prosecutions typically involved
relations between men and minor girls or minor boys, relations between
adults involving force, relations between adults implicating disparity in
status, or relations between men and animals.
To the extent that there were any prosecutions for [consensual, private
conduct], 19th-century evidence rules imposed a burden that would make a
conviction more difficult to obtain even taking into account the problems
always inherent in prosecuting consensual acts committed in private. Under
then-prevailing standards, a man could not be convicted of sodomy based upon
testimony of a consenting partner, because the partner was considered an
accomplice. A partner's testimony, however, was admissible if he or she had
not consented to the act or was a minor, and therefore incapable of consent.
The rule may explain in part the infrequency of these prosecutions. In all
events that infrequency makes it difficult to say that society approved of a
rigorous and systematic punishment of the consensual acts committed in
private and by adults..
The policy of punishing consenting adults for private acts was not much
discussed in the early legal literature. We can infer that one reason for
this was the very private nature of the conduct..
R
To bring it all home, the sodomy laws of the framer's day were only actually
used in cases involving rape, statutory rape, and bestiality--- that is,
only for non-consent crimes (animals can't consent period, children can't
consent by statute, and rape victims can't consent by definition). Using
them to go after consensual, private conduct was virtually unheard of in
practice or even in the literature of the time (which might help explain why
they didn't bother to mention it in the Constitution). They were on the
books to make sure that criminal rape statutes were effective enough.
Moreover, the significance of the disparity in the way the evidence rules
applied depending on whether or not the partner had consented cannot be
understated. These rules made it virtually impossible to convict someone of
private, consensual behavior. In fact, the only reason to create such an
evidentiary burden is to make convictions far more difficult. And as you
correctly pointed out, the framers were quite "active" and were well aware
of this legal reality. This infers that the framers (who crafted and
enforced many of those state laws) did recognize a right to private,
consensual sexual conduct.... or at the very least, counters any argument
that the sex laws of the time infer otherwise.
take care
rick
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