From: johnny moral (johnnymoral@hotmail.com)
Date: Mon Jul 07 2003 - 08:43:18 BST
>R
>I'm not sure what relevance the marriage and adultery laws have, but as for
>laws about sexual conduct, you're correct.
As to their privacy. I agree they are irrelevant to this case, as they
might create children, which are obviously not private (being someone else).
>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..
A million acts of sodomy are thwarted every year, and billions more not even
attempted, in part because of the state law.
>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.
Keep in mind that sodomy was very rare at the time. I bet my parents never
did it, let alone their great grandparents 200 years ago. Is there much
evidence that people did it back then?
You say they were on the books to make rape statutes were effective? I
think if there was a 19th century case involving rape, they would have
prosecuted it as rape, and that those cases involving force were just not
rape but were sodomy (there was no intercourse, or there was sodomy in
addition to rape).
At any rate, the framers were content to have laws that hopefully would
never be enforced on the books of their states, they must have felt they
served a good purpose and were constitutional. You nor the Majority have
convinced me otherwise on that count. Perhaps they "trembled for their
country" when they thought about how God would punish us for making people
with same-sex orientation meet in dark private places, unable to announce
their sexual practices before the public...
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