Why and How Sexual Freedom Changed Western Criminal Law (19th and 20th centuries)
Résumés
Cet article explique « pourquoi » et « comment » le nouveau paradigme de la liberté sexuelle a radicalement changé le droit pénal occidental. Le « pourquoi » concerne le changement du paradigme sexuel moral en Occident au niveau culturel. Le « comment » décrit la manière dont les lois (pénales) sexuelles ont été réformées conformément au nouveau paradigme culturel, en décrivant les influences mutuelles entre les États-Unis et l’Europe : alors que la Cour suprême des États-Unis a pris l’initiative d’interdire aux États d’adopter des lois susceptibles d’interférer avec le comportement sexuel en recourant au droit à la vie privée – et cette doctrine juridique a notamment influencé la plupart des juridictions européennes –, en Europe, les juristes et les législateurs ont été les protagonistes de la réforme du droit pénal, en adaptant le droit pénal sexuel aux nouvelles idées culturelles.
Entrées d’index
Mots-clés :
Liberté sexuelle, droit pénal sexuel, tradition juridique occidentale, histoire juridique comparée, Cour supreme américaineKeywords:
Sexual freedom, sexual criminal law, Western legal tradition, comparative legal history, US Supreme CourtPlan
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I. Introduction
1Sexual behaviour has radically changed in Western society throughout recent decades. These changes have notably altered many legal institutions pertaining both to public and to private law. It is not possible to properly understand all these legal reforms without understanding the historical and cultural factors that triggered the shift from the past sexual moral paradigm to the current one. Law is an historical and cultural reality. In fact, law is part of culture, as it is history, philosophy, philology, sociology, and all humanities and social sciences combined.
2The importance of the relationship between the historical and cultural context on the one hand, and the law and its reform on the other, explains the title and the structure of this paper: “Why and how sexual freedom radically changed the Western criminal law”. While I use the expression “why” to tackle the change in the moral sexual paradigm in the West at the cultural level (Part II), I employ the word “how” to describe the ways in which sexual (criminal) laws were reformed in accordance with the new cultural paradigm (Part III). In doing so, I will emphasise how law and legal reforms can be properly understood only when they are presented within their own historical and cultural context.
3Although the deepest historical roots that caused the change of the moral sexual paradigm in the current world date back to medieval philosophy, the present article will offer just a brief outline from the 19th century up until May 1968, the moment when the new culture – encompassing both philosophical and scientific ideas – of the so-called sexual revolution was introduced in Western society. In doing so, I have made choices to select a few authors, particularly those who are – in my view – most crucial to understanding the key points of the new cultural paradigm. As such, I have also avoided giving some definitions (such as sexual behaviour) that are precisely at the core of the cultural transformation described in Part II.
4If law is part of culture, it can neither exist, nor be understood, in isolation from history and culture. In fact, the expression “making of law” shows the inescapable historical dimension of law. This explains two methodological approaches – both formal (or structural) and substantive – of this article. First, the main distinction between Part II (culture) and Part III (laws); and second, the need for a comparative approach, since laws differed from one jurisdiction to another, despite the fact that they all received and shared a relatively common cultural heritage. Here, too, choices needed to be made. In doing so, I was particularly interested in exploring the mutual influences between United States and Europe.
5A final – but not inconsequential – preliminary, methodological issue concerning the relation between law and culture should be made from the very beginning. Affirming that law is part of culture, that law reflects the culture of its own time, or that law cannot be properly understood independently from its own culture, does not imply a denial that the law also notably contributes to transform its own culture. In other words, legal change is not simply the – almost mechanical – effect of cultural change. The relation between law and culture moves in both directions, cultural changes pave the way to legal reform, and legal reforms also trigger an impact on social mentality and culture. This explains why it is so difficult to change some laws, because they tend to shape the culture of their time, and it is not easy to swim against the mainstream mentality that is embedded in the legal order of a society. Thus, by distinguishing between between Part II (culture, referring to “cultural and philosophical ideas” and “moral paradigm”) and Part III (laws, referring to “legal or legislative transformations of reforms”), I am not denying that the law also actively participates in shaping culture. I make this distinction because, being aware of the analytical nature of human intellect, I consider that this distinction helps to better understand both realities: first, why or who emerged in the new moral paradigm of sexual freedom in Western culture, and, second, how the new paradigm was received in the legal realm, whose legal reforms – with the active collaboration of politicians, legal scholars and other legal professionals – contributed, in turn, to consolidate and extend the new ideas to the whole society.
II. Why – Law as Part of History and Culture: Legal History and History of Ideas
- 1 * This study has been carried out within the framework of two research Projects on tradition and fo (...)
6Law is a dynamic reality which is in constant movement, as is the society whose legal system serves it. In this sense, it can be said that the law is imprisoned by time, either by the past or by the future1.
- 2 See H. Mitteis, Die Rechtsgeschichte und das Problem der historischen Kontinuität, Berlin, Akademie (...)
- 3 H. Thieme, “Ideengeschichte und Rechtsgeschichte”, Ideengeschichte und Rechtsgeschichte. Gesammelte (...)
7In the middle of the 20th century, part of the German doctrine posed the problem of the Kontinuität of law in its historical evolution2. A few years later, returning to this subject, Hans Thieme pointed out that the history of law has a dynamic and a static element, since there are permanent questions or Dauerfragen (static element) that have received different answers over time (dynamic element). In his view, legal history has to deal with these changing “ideas” that constitute the dynamic element and which exert an important influence on the law of each epoch3.
8Some authors (the Historical School of Law’s proponents, for example) even go so far as to state that law is nothing more than an historical and cultural product, which would explain the diversity of legal systems, although not so much the numerous common elements and features that are present in different legal traditions. The historical study of law makes it possible to explain the reasons for legal institutions as well as their evolution over time up to the present day. Even current institutions require an analysis of their gestation if their meaning is to be understood.
- 4 H. Mitteis, Vom Lebenswert der Rechtsgeschichte, Weimar, 1947.
- 5 Ibidem, p. 13-14.
9To this end, the history of law must not be limited – as Heinrich Mitteis has already pointed out – to the simple history of institutions (“bloße Institutionengeschichte”)4. The task of the legal historian is precisely to show the development of legal ideas through history (“Gang der Rechtsidee durch die Geschichte”). The history of law can no more be a mere description of legal institutions than the history of facts or events5. It is therefore necessary to reflect the relationship between the personal or human factor and the institutional, because personalities are the bearers of ideas (dynamic element). Mitteis called this way of doing legal history “Lebenswert der Rechtsgeschichte”.
- 6 H. Thieme, “Die Bedeutung der Wirtschaftsgeschichte für die Rechtsgeschichte”, Ideengeschichte und (...)
10For Hans Thieme, the legal historian cannot explain and conclude the existence of a law by the mere fact that it is in force, because such a law may become obsolete, fall into disuse, or be completely forgotten. Consequently, legal law must never be identified with real and lived law. This rule applies both to current law and to historical law6. Along these lines, Thieme noted the importance of economic history for the study of the history of law, although he acknowledged that other aspects such as philosophical, moral, religious ideas, etc., should also be taken into account.
- 7 Idem, “Kontinuität – Diskontinuität in der Sicht der Rechtsgeschichte”, Ideesgeschichte und Rechtsg (...)
- 8 J. W. Goethe, Sprüche VI. Jena, May 1817. Vorspruch zur Gedichtgruppe Gott und Welt, 1827; vertont (...)
11Ultimately, it is not possible to historicise law without historicising ideas. The history of law cannot be dissociated from the history of ideas. The continuity of legal institutions generally reflects the permanence of ideas, but the discontinuity of legal institutions necessarily shows the evolution – or sometimes the involution – of ideas. Hans Thieme addressed this question almost four decades ago7. According to him, German legal historiography has upheld the idea of continuity (Kontinuitätsidee) since Savigny and Eichhorn. He acknowledges that due to the rationalisation of law (Rationalisierung), the pendulum then swung to the opposite idea of discontinuity. On the other hand, the dynamic element of Ideengeschichte, which has such a strong influence on the development of law, also seems in principle to tilt the balance towards the idea of discontinuity. However, this does not lead to the conclusion that the idea of continuity has ended up playing an important role in the history of law, but rather that the existence of both elements must be acknowledged. Legal history should, in his view, follow Goethe’s wise advice, remaining faithful to the old and open to the new, “Ältestes bewahrt mit Treue, freundlich aufgefaßtes Neue”8.
12These brief historiographical reflections are applicable to the present study. There are institutions that enjoyed validity in the past, but which have lost their raison d’être in the present, falling into disuse or being suppressed or reformed by the legislature. Others were and still are valid, but the way they are conceived has changed considerably. This is the case of concepts such as sexual freedom and the right to privacy, notions that in the last sixty years seem to have undergone a radical transformation. Thus, for example, the expressions “sexual offences” or “crimes against sexual freedom” are from the last half-century, and were completely unknown until the 19th century, despite the fact that many of these same conducts were criminally punished (rape, abduction, etc.). Yes, they were punished, yet the texts did not include the aforementioned expressions, but others such as “crimes against honesty”, “crimes against decency”, “crimes against the family”, etc.
13These legal or legislative transformations or reforms, although they may sometimes affect only – or above all – nomenclature, category, or expression, reflect a change of perspective, a cultural change and a change of mentality. Sometimes these changes take place at such a slow and gradual pace that it takes a long time for them to be noticed. At other times, the opposite is true: in a few years, society can undergo such an accelerated transformation that some legal institutions seem to have changed completely in a short period of time. This is what has happened with sexual relations in general and sexual criminal law in particular.
14I intend to briefly describe the evolution that sexual criminal law has undergone since the 1960s, but this requires first describing the change in the new moral paradigm rooted in the cultural legacy of the last two centuries. In this sense, the revolution of May ‘68 was an important milestone with respect to the reception or social penetration of the new philosophical-cultural paradigm, although its juridical embodiment would come a few years later, in the 1970s. These transformations affected the whole of Western culture, including the Anglo-Saxon tradition in general, and the North American tradition in particular. There is a certain parallelism between the evolution of sexual criminal law in the United States and in Europe, and there is a certain American influence in Europe, although the latter sometimes seems to be somewhat reluctant to follow in the wake of the former, which is not easy given the economic and political weight that the United States still has in the Western world.
15Here I try to explain in a coherent way the cultural and philosophical ideas that allow us to understand the legal evolution of the concept of sexual freedom from the 1960s to the present day. Hence, there are some parts whose content is more legal and others that have a more cultural or philosophical nature, because I understand that any legal reform responds to cultural and philosophical approaches that should be known, and on which it is necessary to reflect and analyse with a critical spirit. This follows what Heinrich Mitteis was referring to when he defended that way of doing legal history that he came to call Lebenswert der Rechtsgeschichte; or Hans Thieme, when he stressed the importance of the dynamic element of Ideengeschichte, which is essential to understand the evolution of law.
A. The Change in the Moral Sexual Paradigm in the West (19th and 20th centuries) and its Social Reception: The May 1968 Sexual Revolution
- 9 On the emergence of dualism (nature vs. reason) and its legal-philosophical consequences, particula (...)
16Philosophical and legal-philosophical ideas matter and have an impact9. In this vein, let us now focus more on the cultural ideas and social mentality that revolved around sexual behaviour and explain the shift from the medieval and early modern age paradigm to the late-modern age one, particularly the one that emerged in the 20th century. This cultural shift will enable us to better understand why sexual laws remained almost unaltered for centuries and only in recent decades changed so radically.
- 10 J. Carabante, Mayo del 68: Claves filosóficas de una revuelta posmoderna, Madrid, Rialp, 2018, wher (...)
- 11 See, for example, A. Silvera, “The French Revolution of May 1968”, The Virginia Quarterly Review, 4 (...)
- 12 On Nietzsche, see B. Russell, A History of Western Philosophy, New York, Simon and Schuster, 1945, (...)
17It is undeniable that the West has experienced a moral paradigm shift since the 1960s. May ‘68 was, for Europe and the West as a whole, the tip of the iceberg of the new paradigm. But the historical roots of the change predate the 20th century. It is not the purpose of this article to detail the historical, philosophical-moral10 and social keys11 to this important episode in contemporary history, but to briefly examine the most immediate precedents of this new paradigm, which has its roots in Anglo-Saxon empiricism and utilitarianism – with figures such as David Hume and John S. Mill – and goes through nihilism, the nihilist movement and the socialist movement – Mill, through the nihilism of the German Friedrich W. Nietzsche (1844–1900) to the psychoanalysis of the Austrian Sigmund Freud (1856–1939), the latter two authors being considered the most influential intellectuals in the history of modern Western culture12.
- 13 P. De Lora, Lo sexual es político (y jurídico), Madrid, Alianza Editorial, 2019, p. 34.
18Rejecting any moral norm (of social, cultural, religious, etc. origin) that restricts sexual behaviour is not the same as advocating amoral or immoral sexual behaviour. Rather, it implies changing the moral paradigm. Freudian and Nietzschean ideas, together with the substratum of 19th-century liberal and utilitarian thought, such as that embodied by John S. Mill in his On Liberty (1859), which became the vade mecum of American university campuses in the second half of the 20th century, marked the aforementioned change, giving rise to a new sexual morality, “that of liberalism”13.
- 14 D. Hume, A Treatise on Human Nature, 1738–1740, II, 3, 3, 415.
19David Hume made a statement that would later have clear resonances in the doctrine of John S. Mill: “Reason is, and ought only to be the slave of the passions, and can never pretend to have any other office than to serve and obey them”14.
20For his part, Mill, in his work On Liberty, referring to “a sphere of action in which society, as distinct from the individual, has but an indirect interest, if any”, points out that it consists of three principles. Along with freedom of conscience – together with freedom of speech, as “liberties […] inseparable in practice” – and freedom of association, he mentions another, that of “human liberty”, understood as “freedom of tastes and inclinations”. Let us read Mill’s well-known text in this respect:
- 15 J. S. Mill, On Liberty, 1859 (I use the edition by Batoche Books, Kitchener, 2001, p. 15, available (...)
Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do not harm them, even though they should think our conduct foolish, perverse, or wrong15.
- 16 In this sense, Mill follows Hume’s approach, for whom, as we have seen, “[r]eason is, and ought onl (...)
21Mill does not mention sexuality at any point, but it is evident that it is inserted – after Nietzschean and Freudian thought – within that principle of human freedom that requires “freedom of tastes and inclinations”16. In fact, is there any material – or physical – taste or inclination more paradigmatic, once the need for nourishment has been satisfied, than the desire to satisfy the sexual drive?
22For Nietzsche, a morality that preached the existence of a spirit that could oppose sexual desire as impure made no sense:
- 17 F. Nietzsche, Ecce homo, 1908 (I use the English edition entitled Ecce homo. Notebooks and Letters, (...)
That the very first instincts of life were taught to despise; that one lied to a “soul,” a “spirit,” to shame the body; that in the prerequisite of life, in sex, one is taught to feel something impure; that one looks for the evil principle in the deepest need for prosperity, in strict selfishness (–the word itself is slanderous!–); that, conversely, one sees the higher value in the typical signs of decline and instinctual contradiction, in “selflessness”, in the loss of emphasis, in “depersonalization” and “love of one’s neighbor” (– charity!), what am I saying! sees the value in itself!… How! would humanity itself be in decadence? was it always? – What is certain is that it was only taught decadence values as the highest values17!
- 18 S. Freud, “‘Civilized’ Sexual Morality and Modern Nervous Illness”, The Standard Edition of the Com (...)
- 19 Ibid., p. 185. “If we disregard the vaguer ways of being ‘nervous’ and consider the specific forms (...)
- 20 Ibid., p. 187.
23Sigmund Freud, conferring scientific status on the idea of the unconscious in Nietzsche – as well as in Eduard Hartmann and Arthur Schopenhauer – developed the notions of “unconscious”, “unconscious desire” and “repression”. In his study Modern Sexual Morality and Modern Nervousness18, he argues that nervous disturbances are a consequence of “the harmful suppression of the sexual life of civilized peoples (or classes) through the “civilized” sexual morality prevalent in them”19. For the Austrian doctor, “[t]he man who, in consequence of his unyielding constitution, cannot fall in with this suppression of instinct, becomes a “criminal”, an “outlaw”, in the face of society – unless his social position or his exceptional capacities enable him to impose himself upon it as a great man, a “hero”20.
- 21 Ibid., p. 196.
- 22 Ibid., p. 197.
- 23 Ibid., p. 199.
24Freud does not advise against repressing oneself sexually in order to avoid falling into neurotic pathologies, but rather positively recommends the enjoyment of the sexual instinct, on which – in his opinion – depends the energy with which one is able to undertake and pursue other ends in life. In negative terms, “in the vast majority of cases the struggle against sexuality eats up the energy available in a character”21. Concerning women, since education suppresses their “sensuality till her marriage”22, and the prohibition to think extends beyond the sexual sphere, Freud argues that “the undoubted intellectual inferiority of so many women can rather be traced back to the inhibition of thought necessitated by sexual suppression”23.
- 24 A. Kinsey, Sexual Behaviour in the Human Male, 1848 (I use the Philadelphia ed., Sounders, 1953).
- 25 Herbert Marcuse, a German naturalised American, authored Eros and Civilisation: A Philosophical Inq (...)
- 26 The Sexual Revolution, 1945, (Die Sexualität im Kulturkampf, translated by Theodore P. Wolfe), in w (...)
- 27 J. Lacan, Écrits: The First Complete Edition in English, transl. by Bruce Fink, New York, W.W. Nort (...)
- 28 In this regard, see the collection of essays by Edwin M. Schur, entitled The Family and the Sexual (...)
25Later authors such as the Americans Alfred Kinsey (1894-1956)24 and Herbert Marcuse (1898-1979)25, the Austrian Wilhelm Reich (1897-1957)26 – Marcuse and Reich carried out a synthesis of the doctrines of Marx and Freud – and the Frenchman Jacques Lacan (1901-1981), the great populariser of Freud after his own particular re-reading27, among others28, kept Freudian thought alive, without which it is impossible to understand the paradigm shift represented by May ‘68, rejecting any repressive moral norm that prevents the satisfaction of sexual instinct and drive.
- 29 For an account of the influence of the feminist movements in general and of Simone de Beauvoir in p (...)
- 30 D. Allyn, Make Love, Not War: The Sexual Revolution: An Unfettered History, New York, Routledge, 20 (...)
26Here and now it is not necessary to develop further which authors and which philosophical currents contributed to consolidate a vision of sexuality understood fundamentally as the satisfaction of the sexual drive. It is enough to bear in mind the notion of human freedom understood as the search for and satisfaction of one’s own “tastes and inclinations” (John S. Mill); the idea of the superman who, lacking in spirit, should not contradict sexual desire (Nietzsche); the convenience of not repressing oneself sexually in order to avoid falling into neurosis (Freud), a doctrine that was developed and spread by North American (Kinsey, Marcuse) and European authors (such as the Austrian Reich and the French Lacan); and some feminist currents (such as that defended by Simone de Beauvoir in her work The Second Sex, 1948)29, and so on… All this led to May ‘68, an event that marked the social – or sociological – reception of the aforementioned philosophical and scientific theses, to the point of encouraging people to make love (as opposed to make war)30.
B. The Impact of the New Culture of Sexual Behaviour in Western Society
- 31 On this matter, see R. H. Helmholz, Marriage Litigation in Medieval England, Cambridge, Cambridge U (...)
27In medieval and early modern Europe, sexual morality revolved around the idea of honest conduct, good customs, and family concerns. Sexual relations were supposed to have their place within the restricted context of those who were married and were open to have children. Alternative sexual behaviour or sex outside marriage was always present in medieval society, but they were generally considered as “transgressive”. Sex and marriage were inextricably linked, and social mentality commonly admitted the reasonableness of those moral and legal sexual norms that sought to protect the family as the main relevant social institution31.
- 32 S. Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian, Oxford, (...)
- 33 C. N. L. Brooke, “Aspects of marriage law in the Eleventh and Twelfth Centuries”, Proceedings of th (...)
- 34 A. Masferrer, “The reception of marital consent in the medieval legislation of Castile and Norway. (...)
- 35 The word koinonia, society, referred to various kinds of union between men. The political associati (...)
- 36 This explains why adultery was regarded as the gravest crime, not so much because it was against pu (...)
- 37 C. Jr. Donahue, Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Fi (...)
28In fact, there is a continuity of the good that was primarily protected by criminal law since the medieval centuries: the family or, if one prefers, a family model, commonly accepted in the West, based on heterosexual marriage, and which hardly changed from its regulation by Roman law at the end of the 4th century – and, particularly from the Middle Ages – until the second half of the 20th century. On the basis of Roman law32, which was of indisputable authority in the eyes of the jurists of medieval and modern Europe, another authority was added – that of the Church33, whose prestige in the moral sphere is comparable to the Roman in the legal sphere – which, by influencing the matrimonial regime of Roman law, emphasised three aspects of marriage: marital consent, indissolubility, and the prohibition of incestuous marriages34. In addition, Christian philosophy and morality, by delving deeper into this reality of marriage and the family, pointed out something that pre-Christian philosophy had already taught, namely the natural character of marriage and the family. In other words, it was not the Christian religion or the Church that conferred an institutional character on marriage and the family, but simply surrounded them with a sacred form; their institutional character comes already from classical philosophy, linked to the concept of oikía, as a response to the two most basic natural needs: generation (union of male and female), perpetuation (parents and children) and preservation (lords and servants)35. In short, for classical philosophy and Judeo-Christian thought, these were not merely arbitrary, culturally or religiously imposed conventions, but the most rational and coherent way of socially articulating the individual instinct of reproduction and perpetuation of the species. Only from this perspective can we understand the sexual criminal law of medieval and modern times, whose legally protected good had a markedly collective, not individual, character: the family36. This conception was the most widespread throughout the West37. However, it should be added that, in modern times, with the rise of absolute monarchies, states – in particular Calvinist and Puritan states – tended to punish sexual conduct that had nothing to do with the protection of the family (e.g. fornication or masturbation).
29This view of marriage, family and sexuality changed completely in the West in the course of the 20th century, in particular – including in the legal sphere – since the 1960s.
- 38 On the right to privacy, see M. J. Sandel, “Moral Argument and Liberal Toleration: Abortion and Hom (...)
- 39 P. De Lora, Lo sexual es político (y jurídico), op. cit., p. 26: “If there is a predominant sexual (...)
30The new paradigm of sexual morality in the West could be summarised as follows: The new conception of sexuality places human freedom as the primary moral criterion. In short, the new sexual morality is based on two pillars: i) self-determination or freedom manifested through consent (tacit or express) and, consequently, ii) respect for the freedom of others. And to this must be added two other elements, secondary and variable with the passage of time, which are iii) a certain public decorum in order to respect the (negative) freedom of those who do not want to be involved in the context of sexual relations of third parties, even if only their visualisation; hence, while there is no objection to two people – of different sexes or the same, married or not – having a sexual relationship in private, it would be understood as inadmissible to have it in the public square; in this sense, the idea of privacy refers both to the prohibition of outside interference in the private sphere of my conduct38, and to the obligation to keep certain sexual conduct in the strictly private sphere, not under the eyes of others; and iv) certain cultural elements, which lead to a preference for certain sexual models over others: preference for monogamy over polygamy – polygyny or polyandry – rejection of incestuous relationships with first-degree relatives, etc39.
- 40 On the prohibition of expressing or making value judgments about the conduct of others (or “non-jud (...)
31Within these limits, any sexual behaviour is understood as licit and legitimate, and no one has the right to judge the conduct of others, precisely because, in this area, the most authentically moral thing to do is to act in freedom, as long as the freedom of others is respected40. What is decisive is the free consent of the individual – or individuals – at the very moment of sexual intercourse.
- 41 R. H. Knight, The Age of Consent, The Rise of Relativism and the Corruption of Popular Culture, Dal (...)
32A major proportion of cinema (Hollywood), television, art and literature were responsible for gradually and progressively transmitting the new philosophical-moral keys to sexuality to Western society from the middle of the 20th century until, in effect, the new moral paradigm of sexuality took hold, shaping a more permissive – and even relativistic – society with respect to sexuality, an area in which there was no longer any other criterion of morality than that of consent itself, initiating a stage that could be called the “age of consent”, as reflected in the title of a work that describes the effects of the new culture (cinema, television, art, literature) in the United States (“The Age of Consent”)41.
- 42 On the relevance of subjective desires to the making of human rights, see A. Masferrer, “The Emerge (...)
33According to the new liberal and utilitarian morality, sexuality is more a sphere for well-being and pleasure than that of another reflecting previous ties (marriage) or causing future obligations (procreation and education of new human lives). Thus, any sexual intercourse should be able to take place, if so desired by the parties involved42, without the need for a marital, premarital or other bond. Two people can enjoy a sexual relationship within five minutes of meeting, regardless of whether they never see each other again, and regardless of whether they are of the same or different sex; nor would it be morally relevant if there were more than two people – one man with several women, or one woman with several men – as long as there is consent between adults (and also between lesser adults, if it is between them, it being assumed that between them no one can abuse a position of superiority).
- 43 J. Ballesteros, “La constitución de la imagen actual del hombre”, Tópicos: Revista de Filosofía, 15 (...)
34As has been said, if the enjoyment of sexual relations free of prior and subsequent ties is fundamental, it would make no sense for anyone to seek to “bind”, “restrain” or “demand” anything from anyone on the grounds that they have had a sexual relationship to which they both freely consented. Hence, in a situation where a woman who, for whatever reasons – even if the man had told her that he would want to have a child and would be willing to take care of it – had become pregnant, it is understood that she should have every right to get rid of it. In this sense – and without going into the question of when human life begins – abortion is the most logical consequence of the current moral paradigm, and it is not surprising that criminal law – which cannot fail to reflect the moral values of a society – has decriminalised it over the last few decades43.
- 44 On this subject, see, for example, “How much is the porn industry worth in 2024? (statistics)”, Ear (...)
- 45 See, for example, E. Chase and J. Statham, “Commercial and Sexual Exploitation of Children and Youn (...)
- 46 Cunnilingus, fellatio, fellatio in coitus, irrumation, humming, 69 sex position, double fellatio, e (...)
35What has just been stated is not theoretical, experimental, or the work of a laboratory – unlike many of the cases in Sigmund Freud’s or Wilhelm Reich’s practice, or Alfred Kinsey’s experiments – but the current, common, everyday social reality. Indeed, sexual relations between adults have increased, particularly among adolescents. The consumption of pornography has increased exponentially worldwide, becoming a business that generates huge profits44, as well as the sexual exploitation of people45. Along with the most common sexual behaviours – mere masturbation and vaginal intercourse with a person of different sexes – other forms of sexual enjoyment have increased, such as anal intercourse and the various forms of oral sex46.
- 47 See http://www.independent.co.uk/news/world/europe/incest-and-necrophilia-should-be-legal-youth-swe (...)
- 48 See http://www.independent.co.uk/news/world/europe/german-ethics-council-calls-for-incest-between-s (...)
- 49 See https://en.wikipedia.org/wiki/Laws_regarding_incest_in_the_United_States.
- 50 See http://prostitution.procon.org/view.subissues.php?issueID=000363; https://en.wikipedia.org/wiki (...)
- 51 See http://bigthink.com/think-tank/is-necrophilia-wrong.
- 52 See http://www.elmundo.es/ciencia/2015/10/01/560c1d4be2704e996b8b459a.html
- 53 See http://www.bbc.co.uk/newsbeat/article/32411241/denmark-passes-law-to-ban-bestiality;
36As consent is the fundamental criterion of sexual conduct, it is logical that voices have been raised in some countries – such as Sweden47, Germany48 or the United States49 – in favour of the legalisation of incest. Along the same lines of the primacy of consent, there is a well-known current that defends the decriminalisation or legalisation of prostitution50. Some even advocate paedophilia and necrophilia51. Another form of sexual enjoyment that is on the increase – and which does not pose any problem from the point of view of consent – is that of having sex with robots52. The same cannot be said, however, of zoophilia or bestiality, which having been decriminalised in most Western countries during the 19th century, has been recriminalised in some US territories under pressure from the animal lobby, not because it is considered improper or degrading for human beings, but because it degrades the animal – the victim – which is illegitimately abused because it cannot give or express its free consent to the individual who seeks to satisfy their sexual instinct at the expense of the “dignity” of the animal53.
37The new paradigm of sexual morality does not logically imply that all individuals in society share – to use Mill’s terminology – the same “tastes” and “inclinations”, and that some may find repugnant or detestable certain sexual practices that for others constitute their particular pleasure and path of personal fulfilment, but, in any case – and this is what is really important – “human freedom” carries with it “freedom of tastes and inclinations” that all must respect. The statement – attributed to Freud – that “the only sexual deviation is a complete absence of sex, the rest is a matter of taste” is well known. From this perspective, it is understandable that what is most genuine in today’s sexual morality is not the conduct itself, its objective or intrinsic value and even less its beauty – who decides on what is beautiful or repugnant – but the free and voluntary character of those involved in sexual intercourse, as well as the respect and silence of others in relation to the “tastes” and “inclinations” of individuals. In fact, this is the fundamental principle – or perspective – of law with respect to “sexual freedom”, both in the private sphere (matrimonial and family law) and in the public sphere (constitutional and criminal law).
III. How – The Pre-eminence of Sexual Freedom in Western Criminal Law
38Once the cultural context enables us to understand why sexual laws changed so much throughout the 20th century, we turn to how these laws changed, that is, how legal reforms where addressed, what jurisdictions took the lead and might influence others, and to which extent Europe followed in the United States’ footsteps, or vice versa. Since the contextual philosophical ideas were so common in Western culture, it is not easy to ascertain the origins or roots of some legal reforms, but it is possible at least to detect the peculiarities in the development of particular sexual legal reforms of some jurisdictions.
A. The Shift from “Sexual Honesty” to “Sexual Freedom” as the Main Legally Protected Good, and the Decriminalisation of Some Sexual Behaviours
- 54 A. Masferrer, De la honestidad a la integridad sexual…, op. cit.
39The most important effect of the new sexual moral paradigm throughout the West from the 1960s onwards was to place “sexual freedom” at the centre of sexual criminal law. To put it simply, only sexual intercourse not consented to by either party now constitutes a sexual offence. The principle of freedom was established as the main legally protected good. The second effect was a logical consequence of the first: the gradual process of decriminalising all those sexual conducts whose criminalisation went beyond the protection of the legally protected good, namely, individual sexual freedom. Of course, both effects had their limits because, in reality, it is not entirely true that individual sexual freedom is the only legal good deserving of criminal protection. There is no Western country that has decriminalised indecency or public immorality, as well as other expressions of sexual freedom that violate the sexual integrity of the most vulnerable persons. Hence, “sexual integrity” – and not “sexual freedom” – is the expression that best reflects the legally protected good of sexual criminal laws, as I proposed in a case study published some years ago54.
40In some countries, the first effect brought about the reform of the rubric of the title dedicated to offences of a sexual nature, which sometimes contained other expressions such as “offences against honesty”, “offences against good morals”, “offences against public morals”. This was done by Germany, whose example was followed by Austria, Hungary and Spain. Not all countries chose to reform their penal codes with the aim of replacing the existing rubric with a more explicit one regarding “sexual freedom”. In fact, many countries did not change this because they understood that a change of rubric making explicit the safeguarding of sexual freedom was unnecessary.
- 55 For a broader and wider view of this law reform in Europe, see ibid., p. 292-300.
41Let us quickly examine what happened in Europe in this respect on the basis of an analysis of 10 countries: France, Italy, Germany, Austria, Belgium, the Netherlands, Denmark, Finland, Sweden and Hungary55. As mentioned above, only three opted for an identical – or analogous – reference to “sexual freedom”, as the Spanish criminal legislature did in 1989: “Sexual self-determination” in Germany, “Sexual integrity and self-determination” in Austria, and “Sexual freedom and sexual offences” in Hungary. The other countries opted for other alternatives: First, to use a rubric with a more or less generic reference such as “Sexual assaults” (France), “Sexual offences” (Sweden) or “Serious offences against public morals” (Netherlands); second, to integrate all sexual offences under a single rubric composed of two areas, as in the Belgian case (“Crimes and offences against the order of families and against public morals”); and third, to combine all sexual offences under two separate rubrics, as in the Italian case (“Crimes against public morals and decency” on the one hand, and “Crimes against the family” on the other), the Danish case (“Crimes against family relations” on the one hand, and “Sexual offences” on the other), the Finnish (“Offences against public order” on the one hand, and “Sexual offences” on the other), or even the Dutch, taking into account that the offence of bigamy is placed under “Serious offences against marital status”.
42In any case, outside Hungary, Germany, Austria and Spain, the expression “sexual freedom” does not appear in penal texts, which does not mean that sexual freedom is irrelevant, nor that these Codes fall into a paternalistic moralism. It simply means that it does not occupy that central position, partly because it is taken for granted, partly because, with regard to sexual conduct, two other aspects are of concern, which, going beyond the idea of freedom, are intimately related to sexual behaviour: 1) the family; hence several countries regulate sexual offences within a title or section relating to the family (Italy, Belgium, Denmark); and 2) public morals and good customs, which explains the choice of other countries to criminalise sexual conducts – many or few – in parts of the Code under headings whose denominations have to do with “Public morals and good customs” (Italy), with “Crimes and offences against the order of families and against public morals” (Belgium), with “Serious offences against public morals” (Netherlands), with “Offences against public [moral] order” (Finland).
43These references to “morality” are not seen in the European countries that use them as an illegitimate encroachment of morality into sexual criminal law, but are based on the recognition of the moral dimension of sexuality. This explains why the criminal legislature of many European countries not only did not consider “sexual freedom” as a fundamental legally protected good of sexual crimes – unlike the Spanish criminal legislature, who chose to follow the German model, perhaps as a reaction to Franco’s dictatorial and national-Catholic regime – but also had no qualms about grouping sexual offences under the rubric of “Public morality”, as well as criminalising certain conducts, naming certain offences or describing them with expressions that would be inconceivable in Spain today – in fact, since the 1980s: “adultery and concubinage” (Italy), “incest” (Germany, Austria, Denmark, Finland, Hungary), “bigamy” (Germany, Belgium, Holland, Denmark, Sweden), “Public outrages against good morals” (Belgium), “sexual immorality” or “exhibit[ing] an immoral type of life” (Denmark), “public obscenity” or “obscene material” (Finland), “immoral conduct” or “indecent exposure” (Hungary, which makes it compatible with its heading “Sexual freedom and sexual offences”).
- 56 For a broader and wider view of this law reform in Latin America, see ibid., p. 300-329.
44If the Western world also encompasses America, one might wonder whether the European tendency described here can be perceived in the American continent. For that reason, 21 Latin American countries were analysed, with the outcomes being similar to those of Europe56. All of them started, in the mid-1970s, from the following premise: sexual offences protect the family, honesty and good morals – or public morality. While some Codes included all these legally protected goods under a single rubric – such as “Crimes against honesty” (Argentina, Dominican Republic, Honduras), “Attempts against morality” (Haiti), “Crimes against family order and public morality” (Chile, Paraguay) or “Crimes against good customs and family order” (Panama, Uruguay, Venezuela) – the other Codes opted to include sexual crimes under two or even three different rubrics: “Crimes against good morals” and “Crimes against the family” (Bolivia, Brazil); “Sexual crimes” and “Crimes against civil status” (Ecuador); “Sexual crimes” and “Crimes against the family” (Costa Rica); “Crimes against persons” and “Of the celebration of illegal marriages” (Nicaragua); “Crimes against sexual freedom and security and against modesty” and “Crimes against the family legal order and against civil status” (Guatemala); “Crimes against modesty and sexual freedom” and “Crimes against marriage and family morality” (El Salvador); “Crimes against honesty”, “Crimes against the family” and “Crimes against marital status” (Puerto Rico); “Crimes against decency”, “Crimes against the family” and “Crimes against freedom” (Peru); “Crimes against public morals”, “Sexual crimes” and “Crimes against marital status and bigamy” (Mexico); “Crimes against sexual freedom and honour”, “Crimes against public morals” and “Crimes against the family” (Colombia); “Crimes against the normal development of sexual relations”, “Crimes against the normal development of the family” and “Crimes against the normal development of childhood and youth” (Cuba). In addition, several Codes included, in the part or section relating to offences, a rubric related to sexual conduct, such as “Offences against good morals” (Guatemala) or “Offences against public morality and good customs” (Nicaragua), to give two examples.
45This diversity of legally protected goods shows the legacy of tradition not only in Latin America but also in Europe in general and in Spain in particular. Paradigmatic criminal conducts against the family were adultery, concubinage and incest, because all of them were understood to threaten the peace and stability of the family. Regarding bigamy, some Codes placed it as a crime against the family (Brazil, Colombia, Costa Rica, Nicaragua, El Salvador), others as a crime against civil status (Ecuador, Mexico), or under a rubric relating to both legal goods (Guatemala). With regard to abduction, some Codes placed it under the rubric relating to the family (such as the Colombian Code), or under another rubric relating to other legal property (honesty, good customs, etc.).
- 57 This Haitian Penal Code, having been adopted in 1835, was influenced by the Napoleonic Code and sub (...)
46How have these legal rights evolved, reflected in the criminalisation of certain conducts and the amendment of the rubrics, from the 1970s to the present day? Of course, there have been changes in sexual criminal law, especially in the decriminalisation of certain conducts, such as adultery, concubinage and incest. But not all countries have removed these offences from their penal texts. Thus, for example, the Brazilian Criminal Code, under the rubric “Crimes against the family” – and within the Chapter “Crimes against family morality” – includes adultery and incest, as well as bigamy. In this sense, other Latin American penal codes continue to criminalise some of these conducts: Colombian CP (incest), Haitian CP (adultery, Arts. 284–286; concubinage, Art. 287; bigamy, Art. 288)57, Mexican 1931 PC (adultery, incest), Nicaraguan 1974 PC (incest), Panamanian 2007 PC (bigamy), Puerto Rican 2012 PC (incest, bestiality), El Salvador 1998 PC (bigamy); Venezuelan 2005 PC (adultery); etc.
47What can be said about the possible renaming of the rubrics under which sexual conduct is criminalised? Several countries have so far opted not to change the rubric at all. This is the case with Costa Rica, Cuba, Chile, Ecuador, Haiti, Uruguay, Venezuela and Brazil (although it has incorporated a Chapter with the heading “Crimes against sexual freedom”, with references to crimes against “Sexual availability”). Others have amended some of the two or three rubrics regulating the various sexual conducts. For example, Colombia replaced “Sexual freedom and honour” with “Sexual freedom, integrity and formation”, leaving intact those relating to “Crimes against public morals” and “Crimes against the family”. Puerto Rico replaced the heading “Crimes against honesty” with “Crimes against indemnity”, leaving the others intact. Argentina replaced the reference to “honesty” with “sexual integrity”.
48The expression “freedom” appears in those Codes that have opted to group all sexual offences – hitherto collected under two different titles or sections, with their respective rubrics – under a single rubric. This is the case in Bolivia, which has gone from having two headings (“Crimes against morality” and “Crimes against the family”) to one (“Crimes against sexual freedom”). The same applies to Guatemala (“Crimes against the sexual freedom and indemnity of persons”), Nicaragua (“Crimes against sexual freedom and integrity”) and Peru (“Crimes against freedom”). In two countries, the process has been reversed, moving from a single rubric relating to sexual offences to two. This is the case of the Panamanian PC, whose rubric “Crimes against good morals and family order” has been replaced by two others (“Crimes against sexual freedom and integrity” and “Crimes against the family legal order and civil status”). The same is true of Paraguay’s PC, whose rubric “Crimes against the order of the family and good customs” has disappeared and been replaced by the rubrics of two Chapters covering various sexual offences (“Crimes against sexual autonomy” and “Crimes against minors”). The Mexican PC has replaced the three old rubrics with three new ones (“Crimes against freedom and normal psychosexual development”, “Crimes against the indemnity of sexual information” and “Crimes against the free development of personality”). El Salvador, on the other hand, has changed the two rubrics (“Crimes against modesty and sexual freedom” to “Crimes against sexual freedom”, and “Crimes against marriage and family morality” to “Crimes relating to family relations”). A particular case is that of Honduras, which opted to amend its old rubric (“Crimes against honesty”) to one that reflected the idea of freedom, but without renouncing “honesty” as a moral reference: “Crimes against sexual freedom and honesty”.
49As can be seen, eight Latin American countries – out of the 21 analysed – took up the idea of “freedom”. However, only two use the expression “sexual freedom” for an umbrella term for all criminalised sexual conduct: Bolivia, which makes it perfectly compatible with some reference to “indecent assault”, as well as with other Chapter rubrics such as those on “Crimes against sexual morality” and “Outrages against public decency”, something that some would see as incompatible with a freedom free – forgive the redundancy – of moral connotations; and Peru, whose heading is divided into three other sections (“Violation of sexual freedom”, “Pimping” and “Offences against public decency”). The others use composite rubrics in which, alongside the expression “freedom”, other references are added whose meaning significantly “neutralises” a libertarian notion of freedom: “sexual indemnity of persons” (Guatemala), “honesty” (Honduras), “normal psychosexual development” (Mexico), and “sexual integrity” (Panama). In El Salvador, the rubric “Crimes against sexual freedom” is made compatible with the expression “indecent” (Art. 392) and with the heading of Chapter IV (“Offences relating to the family, good morals and public decency”).
- 58 Section 213.0.(3), prescribing the definitions of Art. 213 US Model Penal Code: “‘Deviate sexual in (...)
- 59 Art. 213.5 US Model Penal Code.
50In the United States, it was not considered convenient to make explicit the change of the legally protected good (from “honesty” to “sexual freedom”), not because the American social and legal culture rejected sexual freedom but because it was preferred to use the generic expression “Sexual offences”, both in the legal texts of several states and in the US Model Penal Code (1962). Nor does it seem that this American text tried to avoid expressions that had any kind of moral connotation, but rather the opposite; hence the use of expressions such as “Deviate sexual intercourse”58 or “Indecent exposure”59.
- 60 E. M. Schur and H. A. Bedau, Victimless Crimes: Two Sides of a Controversy, Englewood Cliffs (N.J.) (...)
- 61 E. M. Schur, Crimes without Victims: Deviant Behavior and Public Policy-Abortion, Homosexuality, Dr (...)
- 62 In addition to the reference contained in footnote 61, see also H. L. Packer, The Limits of the Cri (...)
- 63 See, for example, N. Morris and G. J. Hawkins, The Honest Politician’s Guide to Crime Control, Chic (...)
51In addition, the United States also went through a gradual decriminalisation of some sexual behaviours due to them being considered as “victimless crimes”60, a category that even today is somehow present in the public debate, but particularly in the academic realm. For those who endorse the notion of “victimless crime”, some offences would fall within that category: public drunkenness, vagrancy, various sexual acts usually involving consenting adults (fornication, adultery, bigamy, incest, sodomy, homosexuality, and prostitution), obscenity, pornography, drug offences, abortion and gambling, among others. As can be seen, some of them revolved around “deviant” sexual behaviour61. It is not by coincidence that the expression “victimless crimes” emerged in the 1960s62 and has spread over the following decades until the present day63.
- 64 H. Wechsler, “The Challenge of a Model Penal Code”, Harvard Law Review, 65, 7, May 1952, p. 1100: “ (...)
52The concern for the criminalisation of some sexual behaviour was present in the mid-20th century. In this vein, the US Model Penal Code (MPC) sought to make uniform the differences between criminal offences among states, being “the range of sexual offenses” among them64, as Herbert Wechsler stated:
- 65 Ibid., p. 1117-1118.
In some states, for example, the single category rape includes both violent sexual assault and intercourse with a consenting female under the prescribed age of consent (usually 16 or 18 years), without discrimination in the applicable mode of disposition. And even where there is a differentiation in these terms, the latter conduct usually is a felony. Only recently New York reduced the grade of the offense but only if the male is under twenty-one. Much thought is needed to determine what distinctions in the realm of sexual behaviour are appropriate to circumscribe the area in which it is defensible to treat the conduct as a serious offense or as an indication of a deviation fraught with dangerous potentialities calling for maximum control. The problem is especially important at a time when popular emotion on the subject has been much aroused65.
- 66 In addition to decriminalizing fornication and adultery, in 1955 the American Law Institute also vo (...)
- 67 Lawrence v Texas, 539 US 558 (2003); two decades after the decriminalization of homosexual behaviou (...)
53The MPC did not criminalise consensual sexual conduct between adults, excluding crimes of fornication and adultery and sodomy66. Many states did not follow in the MPC’s footsteps, so it took over half a century to decriminalise homosexual behaviour between consenting adults67. However, seven decades later it seems that – regarding sexual crimes – the current MPC is outdated again:
- 68 P. H. Robinson and M. D. Dubber, “The American Model Penal Code: A Brief Overview”, New Criminal La (...)
The code’s Special Part also has become dated in some areas, such as in its treatment of sexual offenses and drug offenses. American society’s views on many sexual and gender issues have changed since the code was drafted in the 1950s. Modern American codes typically adopt a gender-neutral approach to defining sexual offenses, give greater expression to the concern for victims of sexual offenses, and reflect a greater sensitivity to the history of sexual victimization of women by men68.
- 69 A. Masferrer, “The Need for a Secularized Criminal Law: Past, Present and Future. A Proposal to Unr (...)
- 70 J. D. Weinstein, “Adultery, Law, and the State: A History”, Hastings Law Journal, 38, 1986, p. 195- (...)
- 71 M. Ziegler, “Why the Effort to Make the Texas Abortion Bans More Humane Is Doomed”, Slate, 14th Mar (...)
- 72 F. Kornbluh, A Woman’s Life is a Human Life: My Mother, Our Neighbor, and the Journey from Reproduc (...)
54Although the convenience – or inconvenience – of decriminalising some sexual behaviours is an unending topic69, in the United States some sexual behaviours – such as fornication and adultery – seem difficult to fully decriminalise70. Besides, today abortion71 – as well as reproductive rights72 – continues to be a controversial issue for public debate.
B. “How Sex Became a Civil Liberty”: Freedom of Expression and Right to Privacy in the United States and its Influence in Europe
- 73 Cato Institute. Amicus curiae brief in support of petitioners. Lawrence v Texas, 539 US 558, 9 (200 (...)
- 74 Ibid.
55The US influence over Europe in recent decades is undeniable, particularly from the 1970s to the present. The US Supreme Court established that, within the Due Process Clause of the Fourteenth Amendment, there exists a right to privacy that prevents states from “interfer[ing] with people’s control of their own bodies, disrupt[ing] personal relationships, and intrud[ing] into the innermost sanctum of the home, the bedroom”73. The right to privacy was used by the US Supreme Court to strike down “state laws that attempted to prohibit the use of contraceptives and intruded into marital privacy [Griswold v. Connecticut, 381 US 479 (1965)], limited access to contraceptives for unmarried people [Eisenstadt v. Baird, 405 US 438 (1972)], and restricted a woman’s right to obtain an abortion [Roe v. Wade, 410 US 113 (1973)]”74.
- 75 Cato Institute. Amicus curiae brief in support of petitioners. Lawrence v Texas, 539 US 558, 9 (200 (...)
- 76 Lawrence v Texas, 539 US 558 (2003), p. 578: “The petitioners are entitled to respect for their pri (...)
56Although these rulings were not strong enough to decriminalise sodomy laws in the 1960s and 1970s, they paved the way and had a notable impact: 18 states decriminalised consensual sodomy consistent with the MPC, while other states (Kansas, Texas, Montana, Kentucky, Missouri, Nevada and Tennessee) decriminalised opposite-sex consensual sodomy, leaving consensual same-sex sodomy as a misdemeanour crime75. Eventually, the US Supreme Court decriminalised homosexual behaviour between consenting adults76.
- 77 Griswold v. Connecticut, 381 U.S 479, 1965; available at https://supreme.justia.com/cases/federal/u (...)
- 78 Eisenstadt v. Baird, 405 U.S. 438, 1972; available at https://supreme.justia.com/cases/federal/us/4 (...)
- 79 On this, see A. J. Macleod, “Why Non-Judgmentalism is Unloving”, Canon & Culture, 20th March 2015, (...)
57Indeed, this right to privacy with respect to the exercise of sexual freedom began with a famous Supreme Court decision (Griswold v. Connecticut, 381 US 479, 196577), which declared unconstitutional a Connecticut state law prohibiting the use of contraceptives. According to the US High Court, this prohibition was contrary to the constitutional right to privacy of married couples. A few years later, in another well-known ruling (Eisenstadt v. Baird, 405 US 438, 1972)78, the same court declared that limiting the sale of contraceptives to married couples only – as was done in the State of Massachusetts – violated the Equal Protection Clause. These two cases marked an important step towards an ideological movement promoting sexual permissiveness, protected – or supported – by the absence of outside value judgements (“non-judgmentalism”)79. In other words, that in this sphere, everyone could do what they wanted without allowing anyone to make a value judgement about it.
- 80 Roe v. Wade, 410 U.S. 113, 1973; available at https://supreme.justia.com/cases/federal/us/410/113/c (...)
- 81 Doe v. Bolton, 410 U.S. 179; available at https://supreme.justia.com/cases/federal/us/410/179/case. (...)
- 82 Planned Parenthood v. Casey, 505 U.S. 833, 1992; available at https://supreme.justia.com/cases/fede (...)
58The requirement of non-judgement of the moral conduct of others in general, and of sexual conduct in particular, was reinforced in two subsequent rulings of the Supreme Court (Roe v. Wade, 410 US 113, 197380; and Doe v. Bolton, 410 US 179; 197381), which, by decriminalising abortion, legitimised sexual relations free of their possible consequences. Since in this “age of rights”, legally legitimising conduct is tantamount to granting the individual that power, which is understood as conferring a right, this gave rise to the well-known conflict between the right of the unborn and that of the mother. Two decades later, another Supreme Court decision (Planned Parenthood v. Casey, 505 US 833, 199282) upheld the previous two, but incorporated as a foundation a “mystery clause” that went further, stating that “at the heart of liberty is the right of each to define his or her own concept of existence, of meaning, of the universe, and of the mystery of human life.”
59In any case, the main message of the early Griswold and Eisenstadt rulings was to make its way through American society: “no one has the right to judge the sexual conduct of others”. The law had begun to support this permissiveness and to protect it on the basis of the constitutional rights of privacy (“right to privacy”) and equality (“Equal Protection Clause”).
- 83 Lawrence v. Texas, 539 U.S. 558, 2003; available at https://supreme.justia.com/cases/federal/us/539 (...)
60Once the law had reached the point of recognising and protecting this supposed right to the most common (heterosexual) sexual relations without the need to abide by their consequences, it was only a matter of time before it accepted, on the basis of the same rights of privacy and equality, those less common (homosexual) sexual behaviours or preferences. In other words, if the law had allowed two adults to have sexual relations without fear of the value judgements of others or their biological consequences (possible pregnancy), it made no sense to limit this “conquest” or “right” only to heterosexual relations. Another well-known Supreme Court decision (Lawrence v. Texas, 539 US 558, 2003)83 extended that power to homosexuals, declaring unconstitutional the laws criminalising sodomy (both in Texas and in 13 other American states), since – in the opinion of the High Court – any sexual intercourse carried out freely and in privacy by adults is part of the sphere of freedom constitutionally protected by the 14th Amendment (“by substantive due process under the Fourteenth Amendment”).
- 84 Brown v. Buhman, U.S. District Court, 947 F. Sup. 2d 1170, of 13th December 2013; available at http (...)
- 85 See, in this regard, the special issue of the Emory Law Journalî, 64, 6, 2015; available at http:// (...)
61Along these lines, a judgment of the Federal District Court (Brown v. Buhman, US District Court, 13th December 201384), taking this same criterion to its ultimate consequences, recognised the right to polygamy. According to the aforementioned Court, if the law does not punish a man who, having abandoned his wife, cohabits with or is with another woman, whom he calls – or has as – his wife, how can someone be prevented from having two wives as long as he does not attempt to enter into multiple marriage contracts? Constitutionally, the Court continues, “nothing should prevent such a person from living with several women and considering them as his wives.” The controversy as to whether polygamy produces a social harm that justifies its criminalisation is still present in American doctrine85.
- 86 Obergefell v. Hodges, 576 U.S. (2015), available at http://www.supremecourt.gov/opinions/14pdf/14-5 (...)
- 87 576 U.S. (2015), p. 13: “The nature of marriage is that, through its enduring bond, two persons tog (...)
- 88 576 U.S. (2015), Robert’s dissenting vote in fine: “If you are among the many Americans – of whatev (...)
62If marriage is a mere affective relationship, a mere cultural product or construct, and no social function is attributed to it, nothing should prevent a man from marrying several women (polygamy), or a woman from marrying several men (polyandry). So what could prevent people of the same sex from marrying as well? Nothing. What is more. To prevent it would be a violation of the principle of equality. This was precisely the core content of the Supreme Court ruling of 26th June 2015, which declared unlawful – with five votes in favour and four against – laws prohibiting same-sex marriage in 14 states86. While it is true that it was the principle of equality – the Equal Protection Clause of the 14th Amendment, together with the Due Process Clause – that was the ratio decidendi of this judgment, it seems clear that the right to privacy is also at the basis of this ruling. A close reading of the ruling reveals how many times the expression “same-sex intimacy” appears, and what place privacy occupies in redefining marriage on the basis of that right. Indeed, if marriage expresses fundamental rights or freedoms such as privacy, it is understandable that the judgment holds that it would make no sense to deny such privacy to persons of the same sex87. The dissenting opinions issued by the four dissenting justices express their complete disagreement, because it is not up to the Supreme Court to legislate on the matter, and because a conception of marriage that goes against the fundamental principles of the American constitutional order is given a free hand88.
- 89 In this regard, see A. Masferrer, “Libertad sexual y derecho a la privacidad en la tradición nortea (...)
- 90 Id., “The Decline of Freedom of Expression and Social Vulnerability in Western Democracy”, Internat (...)
63It is logical that in this relativist or libertarian social and legal context, in which the notion of freedom depends on each individual and in which moral behaviour in general, and sexual behaviour in particular, is completely protected by a right to privacy that prevents anyone from making value judgements (because if everything is relative, what difference does one option make!), the exercise of the right to religious freedom constitutes a threat that should be restricted as much as possible. Religious beliefs and convictions, however accurate they may be – or however reasonable they may seem – clash in a society whose moral relativism prevents it from going beyond what is open to opinion, and it is frankly wrong for anyone to say that there are moral options that are better than others, or that there are behaviours that violate human dignity, harming other people or the common good. Since that denunciation alone is considered an attack on individual freedom in general (the “mysterious” notion and scope of which necessarily depends on each individual), and an inadmissible violation of the right to privacy, the tendency of some states in recent decades has been to gradually restrict this “intolerable” and “disrespectful” exercise of religious freedom89. The aim is not so much to suppress religious freedom as to restrict the scope of its exercise so that, by confining it to the private sphere, it does not emerge in the social (or public) sphere. This would not distort or undermine cultural values that are presented as predominant and tolerant, but which in reality are conscientiously imposed and exclusionary. Hence, while the coercive force of law is not used in some cases to safeguard the most vulnerable (the unborn, children, the sick, the elderly, etc.), it is used to prevent dissenting and dissenting voices from being raised, thereby restricting both religious freedom and the freedoms of conscience and expression90.
- 91 For Europe, see id., “Libertad sexual y derecho a la privacidad en la tradición norteamericana (196 (...)
64The consideration of sexual freedom as a form of exercise of freedom of expression, and its safeguarding against possible interference by third parties through the right to privacy, influenced the continental legal tradition, both in Europe and Latin America. In this sense, the line of argument used in these territories to defend the right to abortion, thus combating those who defend the right to life, has undoubtedly US resonances91.
- 92 In this regard, the Spanish (2023) and French (2024) reactions in the wake of the Dobbs v. Jackson (...)
- 93 A. C. Kinsey, W. B. Pomery ans C. E. Martin, Sexual Behavior in the Human Male, Bloomington, Indian (...)
- 94 On this matter, see the reference cited in the footnote 41, particularly chapters 4 (“The Sexual Re (...)
- 95 See, for example, the International Conference on Human Rights in Tehran, 22 April to 13 May 1968, (...)
65Indeed, the path travelled by the USA since the 1960s, from the legalisation of abortion to the acceptance of a new model of human dignity and sexuality, from the admission of new forms of marriage – including homosexual marriage – to the protection of a supposed right to privacy that prevents – under threat of sanction – the passing of value judgements on the sexual conduct of others, is part of the Western cultural tradition of the last fifty years. It is clear that what happened in the 20th-century US notably affected – and still affects92 – Europe more than what happens in Europe might affect the US. The powerful influence of United States over Europe seems indisputable from economic, political and military perspectives, but also from a cultural standpoint. Some scholarly reports on sexual behaviour were translated and had a remarkable impact among European scholars and intellectuals93. Hollywood notably contributed to the transformation of sexual behaviour, customs and mentality not only to Americans, but also to Europeans and to the Western world in general94. In addition, the US influence over Europe also came indirectly, through its weight in the organization of international conferences touching upon sexual behaviour95.
- 96 On this matter, in addition to the assertions and evidence that have been given in the references o (...)
66Thus, for example, the principle that “no one has the right to judge the sexual conduct of others”, enshrined in American jurisprudence (Griswold v. Connecticut, 381 US 479, 1965; and Eisenstadt v. Baird, 405 US 438, 1972), not only permeated American society but also European culture and mentality96. The idea that sexual conduct is part of an individual’s private sphere that the law must protect, preventing any interference by the state or others, also took hold in Europe. And in time, as in the United States, it was no longer a matter of prohibiting value judgements on the conduct of others but of demanding – with the coercive force of law – a positive contribution to make a claim on those who do not share certain conduct, forcing them to act against their conscience.
67The controversy that arose in the United States when companies were forced to finance abortion drugs for their employees, initially denying them – until the Supreme Court ruled – the possibility of refraining from this service for religious or conscientious reasons, is similar to the numerous cases that have arisen in Europe where the exercise of conscientious objection has been hindered or prevented in specific cases related to the performance of one’s own professional activity. A very frequent case has been that of hospital employees who, for reasons of conscience, do not wish to make medical interventions to carry out abortions.
- 97 In this respect, see the study by V. Bellver Capella, “¿Nuevas tecnologías? Viejas explotaciones. T (...)
- 98 Mennesson v. France (application no. 65192/11) and Labassee v. France (no. 65941/11), ECHR 185 (201 (...)
68The primacy of the right to privacy over the respect or right to life has also been introduced at the European level. In 2014, the European Court of Human Rights decided two cases, whose judgments are binding on all Council of Europe Member States, obliging the registration of surrogate children in the civil registers of the surrogate parents under Article 8 of the European Convention on Human Rights on the right to personal and family privacy97. I refer to the cases Mennesson v. France (2014) and Labassee v. France (2014)98.
69In any case, most of the conflicts that, in the last half-century, have taken place in the United States between the right to privacy (in particular, for conduct related to sexuality or sexual freedom) and other fundamental rights (freedom of conscience, freedom of religion, freedom of expression, etc.), have also taken place in Europe, and developments in Europe do not seem to differ much from the American case. The United States influenced Europe, and sometimes vice versa.
- 99 Note that in France, three months before the US Roe v. Wade ruling, the relevant date for the abort (...)
- 100 In 1955, abortion was legalized in Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrg (...)
- 101 Note that Tunisia had already authorised abortion (1964) in specific cases (women with more than 5 (...)
- 102 1974 (Singapore, Sweden), 1975 (Austria, France, Vietnam), 1977 (Bosnia and Herzegovina, Croatia, M (...)
70In this vein, the decriminalisation of abortion and the creation of a “constitutional right” to abortion in Europe was a process notably influenced by the US Supreme Court doctrine (particularly by the Roe v. Wade case, 410 US 113, 1973), but mutual influences might have occurred99. Both processes towards a new cultural paradigm of sexuality and a gradual decriminalization of abortion, to the extent of presenting it as a right, have taken place in the Western context, with neither belonging to a particular European or American jurisdiction, although the United States might have played a major role in the whole process. In fact, in the Western world100, the United Kingdom (1967) and Canada (1969) were the first jurisdictions to prescribe abortions as legal. In 1973, right after the US Supreme Court decision Roe v. Wade (410 US 113), Denmark and Tunisia followed the same path101. From 1974 to 2023, almost fifty other countries decriminalized abortion102, encompassing around 60% of the world’s population.
- 103 STC 44/2023, recurso de inconstitucionalidad núm. 4523-2010, 9th May 2023; on this matter, see A. M (...)
- 104 Addition to the article 34 of the French Constitution; note that the joint session of the Congress (...)
71Unlike the United States, European jurisdictions preferred – until 2023 – to decriminalise and regulate abortion, rather than to enshrine it as a “constitutional right”. This explains why France and Germany, following in the United States’ footsteps, decriminalised abortion in 1975 but did not enshrine any constitutional right to abortion. On the contrary, the Constitutional Court of Germany (BVerfG, 25th February 1975) recognised the obligation of the state not to harm the position of the unborn child and also to guarantee that others would not harm the possibility of its development. It established the rule of unenforceability (Unzumutbarkeit), which applies when abortion is necessary to avoid a risk to the life of the mother or very serious damage to her health. Beyond that, the BVerfG acknowledged that it was up to the legislature to decide on other extraordinary circumstances that could justify leaving abortion without criminal punishment. Many other European jurisdictions followed the German model. However, this European tendency recently changed after two jurisdictions took a step further, following the US Supreme Court’s removal of the constitutional right to abortion in June 2022 (Dobbs v. Jackson Women’s Health Organization, 24th June 2022) – Spain, in 2023, with a Supreme Court judgment declaring a “constitutional right” to abortion similar to Roe v. Wade103, and France, on 4th March 2024, approved a constitutional amendment stating that “[t]he law determines the conditions by which is exercised the freedom of women to voluntarily terminate a pregnancy, which is guaranteed”104.
C. The Decriminalisation of Some Sexual Offences in Europe: The Case of Spain
72As we have seen, the constitutional development of sexual freedom, based on the right to privacy, came from the US Supreme Court at the instigation of some organisations (such as the American Civil Liberties Union), with the consequent decriminalisation of some conducts (abortion, sodomy, pornography, etc.).
73In Europe, on the other hand, the path towards a more libertarian criminal law came from the legislature and at the impetus of legal doctrine, both from legal philosophers and criminal lawyers. The Enlightenment principles and their normative implementation – both constitutional and legal – thanks to the introduction of the liberal political system – in some cases, after the triumph of a political-liberal revolution – led to the promulgation of penal codes characterised by the desire to systematise, humanise and secularise. However, the decriminalisation of certain conducts related to sexual morality was the result of a slow and gradual process.
- 105 Art. 559 of the Italian Penal Code of 1930 read as follows: “La moglie adultera è punita con la rec (...)
74A paradigmatic example is the crime of adultery, a conduct punished by all penal codes until the second half of the 19th century. France, whose Napoleonic penal code regulated this offence in Arts. 336–338, was not the first European country to decriminalise this conduct (1975). It was preceded by Italy (1969)105, Germany (1969), Malta (1973) and Luxembourg (1974); followed by Spain (1978), Portugal (1982), Greece (1983), Belgium (1987), Switzerland (1989) and Austria (1997), Turkey (2004) and Romania (2006), among others. Currently, there is not a single European country that maintains the crime of adultery.
75It is clear that May ‘68 had a notable influence on the decriminalisation of adultery. In Spain, at the beginning of 1978, there was among the political class a general climate to reform of sexual offences, which resulted in the presentation to the representative Chamber, by the UCD government, of a draft law in compliance with the legal and political agreements of the Moncloa Pacts (of 27th October 1977) which affected three very specific points: i) the decriminalisation of adultery and cohabitation (“amancebamiento”), ii) the decriminalisation of the sale and dissemination of contraceptives, and iii) the amendment of the ages of women taken into consideration for the criminalisation of abduction and statutory rape.
76It is true that, had Spain not been under Franco’s regime, the crimes of adultery and cohabitation (“amancebamiento”) would have been decriminalised a few years earlier, and that perhaps the age limit of 23 years for kidnapping and rape would have been reduced a few years before 1978, but it should not be forgotten that this criminal legislation was not enacted by Franco, and that the reform of Franco’s Criminal Code (of 1944) was much more in line with the Republican Code (of 1932) than with Primo de Rivera’s (of 1928).
77Moreover, the criminalisation of the sale and dissemination of contraceptives, which had been introduced for the first time in art. 617.II CP 1928 as a 'public scandal' offence, was reestablished in the Franco’s regime. Indeed,, the Law of 24th January 1941, for the protection of the birth rate against abortion and contraceptive propaganda, punished the “public dissemination, in whatever form, of means or procedures to avoid procreation, as well as all types of contraceptive propaganda” (art. 14). This law, which in addition to punishing abortion also criminalised the sale and distribution of contraceptives, was reflected in art. 416 CP 1944, which was hardly amended in the various reforms of the Criminal Code throughout the Francoist period (1963, 1967, 1974).
78The discussion and approval in Congress took place a few months later, on 26th April 1978. On 1st September, the Cortes issued an opinion in which the reference to contraceptives was eliminated from art. 416 of the Criminal Code, and a few weeks later Law 45/1978 of 7th October was passed, amending arts. 416 and 343 bis of the Criminal Code, whose Additional Provision included, despite the objections expressed by section 4a of the General Codification Commission, that “[f]or the corresponding information, the Government will create the appropriate family planning and guidance services”. The sale and dissemination of contraceptives was thus definitively decriminalised.
D. The Peculiarity of the United States: The Current Criminalisation of Fornication, Cohabitation and Adultery
- 106 Alabama, Arizona, Florida, Georgia, Idaho, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Mi (...)
- 107 The laws against fornication have been a dead letter (i.e. unenforceable) since the Supreme Court c (...)
- 108 Currently, Michigan and Mississippi have enforceable laws against cohabitation; other states such a (...)
79In the Americas, adultery was decriminalised one or two decades later than in Europe: Paraguay (1990), Chile (1994), Argentina (1995), Nicaragua (1996), Dominican Republic (1997), Brazil (2005), Haiti (2005) and Mexico (2011), among others. Like in Italy, in Guatemala (1996) and Venezuela (2016) adultery laws were struck down by courts on the ground that they discriminated against women. In the United States, nonetheless, some sexual behaviours as adultery106, fornication107 and (unmarried) cohabitation108 remain criminalised.
- 109 See, for example, R. Green, “Fornication: Common Law Legacy and American Sexual Privacy”, Anglo-Ame (...)
- 110 T. S. Stratton, “Notes and Comments, No More Messing Around: Substantive Due Process Challenges to (...)
80The development of the US sexual criminal laws has attracted notable attention109, but nonetheless it might not be easy to understand and explain how some current criminal laws are compatible with the Supreme Court’s ruling that a person’s private sexual acts are protected by the 14th amendment’s Due Process Clause. Concerning fornication, for example, it seems that its criminalisation cannot be enforced due to the Supreme Court’s decision in Lawrence v. Texas (2003), so government actors cannot intrude into and criminalise these personal actions. However, a few states still have fornication laws on the books. If such criminal laws cannot be enforced, then they can neither be challenged in court since a challenge requires actual harm, not just disagreement. Hence, these laws seem likely to remain until legislatures formally repeal them. Moreover, some scholars maintain that “fornication laws do not violate substantive due process, [so] states should publicize, but not enforce them”110.
- 111 Id., “No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornicat (...)
81Fornication was rarely criminalised in Europe, and only among Lutheran and Calvinist jurisdictions, not among Catholic ones. It seems clear that the criminalisation of fornication and cohabitation was due to the strong Puritan influence in the States. As has been stated, “the American colonies, which lacked ecclesiastical courts – like in England –, consistently regulated fornication by statute. Intent on enforcing Puritan morality, the colonists enacted statutes making fornication an offense punishable by fine, marriage, or corporal punishment”111.
- 112 J. D. Weinstein, “Adultery, Law, and the State: A History”, op. cit., p. 226.
- 113 Id., “Adultery, Law, and the State: A History”, op. cit., p. 227.
82The Puritan legacy also contributed to the fact that adultery was a crime in most American jurisdictions: “In 1650, the Puritans of the Commonwealth made adultery a capital offense by statute, and although this statute was nullified after the Restoration, the Puritans in the American colonies made adultery with a married woman a capital offense”112. As it happened, in the Western tradition adultery was criminalised by statute in most states until the 20th century. In 1955, in drafting the Model Penal Code, the American Law Institute recommended the decriminalisation of adultery, a recommendation that was followed by many states. However, some kept it as a crime, most generally as a misdemeanour, but some jurisdictions punished it with imprisonment113.
83In recent years, some states have abolished adultery laws: West Virginia (2010), Colorado (2013), New Hampshire (2014), Massachusetts (2018), Utah (2019) and Idaho (2022). However, adultery is still a criminal offence in 16 states: Oklahoma, Michigan and Wisconsin as a felony; New York, Maryland, Rhode Island, South Carolina, Florida, Alabama and Virginia, among others, as a misdemeanour. Only occasional prosecutions occur in these states, although the enforceability of adultery criminal laws is unclear following Supreme Court decisions since 1965 relating to the privacy and sexual intimacy of consenting adults, particularly after Lawrence v. Texas (2003).
- 114 D. L. Rhode, “Why Is Adultery Still a Crime?”, Los Angeles Times, 2nd May 2016, available at https: (...)
- 115 Id., Adultery: Infidelity and the Law, Cambridge (Mass.), Harvard University Press, 2016.
- 116 See the following two book reviews: R. Probert, Social & Legal Studies, 27, 1, 2018, p. 121-124; M. (...)
- 117 J. Sweeny, “Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Crimin (...)
- 118 Ibid.
84“Why is adultery still a crime?”, asked Deborah L. Rhode in an article published in Los Angeles Times on 2nd May, 2016. Since such a complex issue could not be properly answered in a newspaper article114, she decided to devote a whole book to its analysis115, but many questions were still left unresolved116. The complete answer does not seem to be found just within the legal realm. The culture or cultural context from which law stems and evolves is necessary. In this vein, Puritanism seems to be a relevant factor. Although all Christian denominations contributed to protect marriage through criminal laws, Puritans were stricter than Catholics on some moral and religious issues. This explains why Catholic jurisdictions never punished fornication and cohabitation (unmarried couples), or neglecting to attend Sunday services, while Puritan and Calvinist territories long did so. One might understand why “[c]ourts […] currently do not present a viable path to erasing adultery and fornication statutes from the books”117, since these laws are hardly enforced and also “implicate shame and embarrassment, which makes it unlikely that those targeted by these laws will be willing to fight for their repeal”118. It is more difficult to understand why it has taken such a long time for states legislatures to repeal them, and, even today, 16 states maintain their validity. Perhaps what Thurman W. Arnold stated about the symbolic character of these laws is true:
- 119 T. W. Arnold, The Symbols of Government, New Haven, Yale University Press, 1935, p. 160.
Most unenforced criminal laws survive in order to satisfy moral objections to our established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals119.
- 120 See, for example, D. S. Ben-Atar and R. D. Brown, Taming Lust: Crimes Against Nature in the Early R (...)
85No matter how incoherent such a mentality might seem, that is the case for adultery in the United States, showing perhaps the incoherence of a Puritan culture or morality that was very strict in theory, but then considerably laxer in practice120. This might help in understanding how some states appear to lack the necessary political determination to repeal some criminal laws that seem to be unconstitutional for decades.
- 121 For Spain, see A. Masferrer, El adulterio en la Codificación penal española…, op. cit.
86In my opinion, marriage is a legal institution that deserves to be protected by law, but not by criminalising those deviant sexual behaviours that damage it, and not because they should be considered moral or beneficial for society (they are not, particularly when the couple has children), but because criminal laws are not the most appropriate means to enhance and promote marriage, and evidentiary difficulties make adultery laws highly inconvenient121.
IV. Concluding Remarks
87Law is part of culture. New philosophical ideas gave birth to a change in the moral paradigm of sexual behaviour in the West, affecting both Europe and the Americas. Figures such as David Hume, John Stuart Mill, Nietzsche and Freud – and others who spread Freud’s ideas such as the Americans Alfred Kinsey and Herbert Marcuse, the Austrian Wilhelm Reich, or the Frenchman Jacques Lacan – contributed to the emergence of new way of understanding sexual behaviour based upon liberal, individualistic and hedonistic principles. These ideas underwent a social implosion in the 1960s, both in Europe and in the United States.
88Such cultural context explains why legal changes occur from then onwards, but not how they evolved. Concerning how sexual crimes changed within the new cultural context, while the US Supreme Court took the lead in forbidding states to make laws that might interfere in the sexual behaviour of those who were married first and then in any sexual behaviour among adult consenters by resorting to the right to privacy – and this legal doctrine notably influenced most of European jurisdictions (e.g. Italy) –, in Europe – above all – legal scholars and legislatures were the protagonists in undertaking criminal law reform, adjusting sexual criminal law to the new cultural ideas. In doing so, while all European jurisdictions gradually abrogated adultery laws, in the United States the decriminalisation of fornication, cohabitation and adultery was more complex and, in fact, in some states these laws remain untouched, albeit hardly enforced.
89Abortion is not a “sexual offence”, but its criminalisation or decriminalisation is inextricably connected to the new cultural paradigm that not only presents sexuality as an area that is exclusive to the freedom of each individual, but also promotes the satisfaction of one’s own sexual drives, relegating to a secondary level any other aspect that is not of purely individual interest (commitment to the other person, marital fidelity, family stability, etc.). Hence, in reality, the decriminalisation of abortion is the logical consequence of the new sexual morality, which presents unwanted pregnancy as something whose decision concerns exclusively the pregnant woman. This explains why abortion is today at the core of “sexual and reproductive rights.” Once the new sexual morality based on mere consent has been culturally and legally introduced, it would be incoherent, on the one hand, to provide abortion care services (which includes information, management of abortion, and post-abortion care), and, on the other, to criminalize any woman who decide to terminate a pregnancy.
90It is possible, as US pro-life groups argue, that the Roe v. Wade decision did not really reflect the public opinion of the American people at the time, but its half-century-long hold was instrumental in shaping the current mindset; and it would be naïve to think that the new Dobbs v. Jackson Women’s Health Organization decision has returned the US to where it was half a century ago. Not at all. Events in Ohio in 2023 are a good example. In August, a Republican proposal to make it harder to amend the state constitution (to prevent pro-abortion reform) was defeated by 13 percentage points, and in November such a reform to include abortion rights up to birth won by the same margin. Other recent pro-life proposals to prohibit abortion in some US states with Republican majorities have also failed. It seems that most voters want abortion to be regulated [i.e., not free], but do not want abortion to be banned. As can be seen, on the one hand the new cultural paradigm contributed to the Roe v. Wade decision in 1973 (at that point, law reflected the new cultural paradigm); on the other, the enforcement of this decision for half a century shaped society so much that the new decision (Dobbs v. Jackson Women’s Health Organization) does not imply the majority is willing to pass state laws prohibiting abortion (law shaping and extending the new culture). Some European reactions (Spain in 2023 and France in 2024) in the wake of the Dobbs v. Jackson decision go some way to confirming this thesis.
Notes
1 * This study has been carried out within the framework of two research Projects on tradition and foreign influences in the Spanish Criminal Codification: contribution of jurisprudence (1870-1995) in the evolution of the Special Part (PID2019-105871GB-I00) and the General Part (PID2023-150447NB-I00), both financed by the Ministry of Science and Innovation.
H. Holzhauer, “Die Geschichtlichkeit des Rechts und die geschichtliche Rechtswissenschaft”, Beiträge zur Rechsgeschichte, ed. H. Holzhauer, Berlin, Erich Schmidt Verlag, 2000, p. 30-43; see in particular p. 30: “Der Gegenstand des Rechts ist der Zeit verhaftet, sei es der Vergangenheit, sei es der Zukunft”.
2 See H. Mitteis, Die Rechtsgeschichte und das Problem der historischen Kontinuität, Berlin, Akademie-Verlag Berlin, 1947.
3 H. Thieme, “Ideengeschichte und Rechtsgeschichte”, Ideengeschichte und Rechtsgeschichte. Gesammelte Schriften von Hans Thieme, Böhlau Verlag Köln-Wien, 1986, p. 3-26, in particular p. 11-13.
4 H. Mitteis, Vom Lebenswert der Rechtsgeschichte, Weimar, 1947.
5 Ibidem, p. 13-14.
6 H. Thieme, “Die Bedeutung der Wirtschaftsgeschichte für die Rechtsgeschichte”, Ideengeschichte und Rechtsgeschichte. Gesammelte Schriften von Hans Thieme, Köln-Wien, Böhlau Verlag, 1986, p. 27-38, in particular p. 27.
7 Idem, “Kontinuität – Diskontinuität in der Sicht der Rechtsgeschichte”, Ideesgeschichte und Rechtsgeschichte…, op. cit., p. 63-79.
8 J. W. Goethe, Sprüche VI. Jena, May 1817. Vorspruch zur Gedichtgruppe Gott und Welt, 1827; vertont von Kurt Thomas (1904-1973): “Weite Welt und breites Leben”, Cantata: “Ältestes bewahrt mit Treue, Freundlich aufgefasstes Neue, Heitern Sinn und reine Zwecke: Nun! Man kommt wohl eine Strecke”.
9 On the emergence of dualism (nature vs. reason) and its legal-philosophical consequences, particularly on the relationship between law and morality, and its impact in the development of sexual laws in the Western tradition, see A. Masferrer, “Criminal Law and Morality Revisited: Interdisciplinary Perspectives”, Criminal Law and Morality in the Age of Consent: Interdisciplinary Perspectives, ed. A. Masferrer, Dordrecht-Heidelberg-London-New York, Springer, 2020, p. 1-27.
10 J. Carabante, Mayo del 68: Claves filosóficas de una revuelta posmoderna, Madrid, Rialp, 2018, where the author describes the philosophical currents and ideas that brought about the student revolt.
11 See, for example, A. Silvera, “The French Revolution of May 1968”, The Virginia Quarterly Review, 47, 3, 1971, p. 336-354 (available at http://www.jstor.org/stable/26443428; accessed 6th April 2024).
12 On Nietzsche, see B. Russell, A History of Western Philosophy, New York, Simon and Schuster, 1945, p. 766 and 770; on Freud, see “Freud, Sigmund”, Britannica Concise Encyclopedia, London, Encyclopaedia Britannica, 2006, p. 712.
13 P. De Lora, Lo sexual es político (y jurídico), Madrid, Alianza Editorial, 2019, p. 34.
14 D. Hume, A Treatise on Human Nature, 1738–1740, II, 3, 3, 415.
15 J. S. Mill, On Liberty, 1859 (I use the edition by Batoche Books, Kitchener, 2001, p. 15, available at https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf).
16 In this sense, Mill follows Hume’s approach, for whom, as we have seen, “[r]eason is, and ought only to be the slave of the passions, and can never pretend to have any other office than to serve and obey them” (see footnote 15).
17 F. Nietzsche, Ecce homo, 1908 (I use the English edition entitled Ecce homo. Notebooks and Letters, 1888–1889, translation by D. F. Ferrer, 2023, available at https://ia801901.us.archive.org/0/items/ferrer-ecce-homo-translation-2023-nov/Ferrer%20Ecce%20Homo%20translation%202023%20Nov.pdf); see also J. K. McDonough, “Nietzsche’s On the Genealogy of Morality: Whence Conscience, Bad Conscience, and Guilt?”, Saints, Heretics, and Atheists: A Historical Introduction to the Philosophy of Religion , 2022, online edition, Oxford Academic, 20th October.2022, https://doi.org/10.1093/oso/9780197563847.003.0023, accessed 6th April 2024); M. Risse “The Second Treatise in On the Genealogy of Morality: Nietzsche on the Origin of the Bad Conscience”, European Journal of Philosophy, 9, 1, 2001, p. 55-81.
18 S. Freud, “‘Civilized’ Sexual Morality and Modern Nervous Illness”, The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume IX (1906-1908), Jensen’s “Gradiva” and Other Works, 1908, p. 177-204, available at https://sexualityandthemodernistnovel.files.wordpress.com/2017/02/freud_sexualmorality.pdf.
19 Ibid., p. 185. “If we disregard the vaguer ways of being ‘nervous’ and consider the specific forms of nervous illness, we shall find that the injurious influence of civilization reduces itself in the main to the harmful suppression of the sexual life of civilized peoples (or classes) through the ‘civilized’ sexual morality prevalent in them”; “Anyone who is able to penetrate the determinants of nervous illness will soon become convinced that its increase in our society arises from the intensification of sexual restrictions” (p. 194).
20 Ibid., p. 187.
21 Ibid., p. 196.
22 Ibid., p. 197.
23 Ibid., p. 199.
24 A. Kinsey, Sexual Behaviour in the Human Male, 1848 (I use the Philadelphia ed., Sounders, 1953).
25 Herbert Marcuse, a German naturalised American, authored Eros and Civilisation: A Philosophical Inquiry into Freud (1955), where he already advocated the liberation of repressed sexuality and the corresponding transformation of society; it is possible that his work One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society (1964) inflamed Parisian students, with phrases such as the following: “The capacities (intellectual and material) of contemporary society are immensely greater than ever, which means that the extent of society’s domination over the individual is immensely greater than ever”; “What is false is not the materialism of this way of life, but the lack of freedom and the repression it conceals”; other works of his, written and published a few years before – or just after – May ‘68, are: Soviet Marxism: A Critical Analysis (1958); Repressive Tolerance (1965); Culture and Society (1967); The End of Utopia (1967); Industrial Society and Marxism (1968); An Essay on Liberation (1969); Psychoanalysis and Politics (1969); Ethics of Revolution (1970); The Oppressive Society (1972); Counterrevolution and Revolt (1972).
26 The Sexual Revolution, 1945, (Die Sexualität im Kulturkampf, translated by Theodore P. Wolfe), in which the author presents himself as a precursor of the contemporary sexual revolution: He provides ideas on improving the methods and use of contraceptives, distributing them to prevent abortions, providing young people with shelters to have sex, and promoting the cessation of the repression of masturbation by children and adolescents; was a disciple of Freud, although he separated from Freud by having ideas of his own and focusing exclusively on sex, which was the part of Freudian doctrine that most appealed to him; on orgasm, Reich argued that “a person’s mental health can be measured by his orgasmic potential”; other works, mostly related to sex, were: The Discovery of Orgone, Volume 1: The Function of the Orgasm (Die Entdeckung des Orgons Erster Teil: Die Funktion des Orgasmus, Internationaler Psychoanalytischer Verlag, 1927), translated by Theodore P. Wolfe, 1942; and volume 2: The Cancer Biopathy, 1948; Sexual Arousal and Sexual Satisfaction, Münster Verlag, 1929; Sexual Maturity, Abstinence, Marital Morality: A Critique of Bourgeois Sexual Reform, 1930; The Irruption of Sexual Morality: The History of the Sexual Economy, Copenhagen: Verlag für Sexualpolitik, 1932; The Sexual Struggle of the Young, Copenhagen: Verlag für Sexualpolitik, 1932; Technical Character Analysis and Fundamentals of Psycho-Therapy for Students and Practising Analysts, Berlin, 1933; The Mass Psychology of Fascism (Massenpsychologie des Faschismus, 1933), translated by Theodore P. Wolfe, 1946; What is Class Consciousness? On the Reform of the Labour Movement, 1934; The Struggle for the New Way of Life in the Soviet Union, 1934; Dialectical Materialism and Psychoanalysis, Copenhagen, Verlag für Sexualpolitik, 1934; Psychic Contact and Vegetative Flow, 1935; Experimental Results on the Electrical Function of Sexuality and Anxiety, 1937; The Function of the Orgasm: The Discovery of the Orgone and Sexual Economic Problems of Biological Energy, 1942; Ether, God and Devil, 1949; The Invasion of Compulsory Sex-Morality, 1951; Cosmic Superimposition: Man’s Orgonotic Roots in Nature, 1951; he is considered, for his controversial sexual treatments, one of the most radical psychoanalysts in history (on this, see https://www.bbc.com/world/news-46846221).
27 J. Lacan, Écrits: The First Complete Edition in English, transl. by Bruce Fink, New York, W.W. Norton & Co., 2006; see also his books entitled The Seminar (published between 1988 and 2016); see also Feminine Sexuality: Jacques Lacan and the École Freudienne, ed. J. Mitchell and J. Rose, transl. J. Rose, New York, W.W. Norton & Co., 1983.
28 In this regard, see the collection of essays by Edwin M. Schur, entitled The Family and the Sexual Revolution, London, George Allen-Unwin, 1966, containing the essays by Kinsey, W. Pomeroy, C. Martin and P. Gebhard, on “Premarital intercourse. Some arguments and attitudes”; A. Ellis, on “The Folklore of Sex”; P. Goodman, “Growing up in the Absurd”; T. Poffenberger, “A Symposium on Premarital Sexual Behaviour”; M. Basset, “The Double Pattern”; B. Russell, “Marriage on Trial”; P. A. Sorikin, “The American Sexual Revolution”; S. Hiltner, “A Modern Christian Viewpoint”; A. S. Neill, “Sexual Attitudes”; and M. Ploscowe, “Sex and the Law”.
29 For an account of the influence of the feminist movements in general and of Simone de Beauvoir in particular, see A. Masferrer, De la honestidad a la integridad sexual. La formación del Derecho penal sexual español en el marco de la cultura occidental, Cizur Menor (Navarra), Thomson Reuters Aranzadi, 2020, chapter 6; see also C. Duchen, Feminism in France. From May ‘68 to Mitterrand, London and New York, Routledge & Kegan Paul, 1986; D. Kaufmann-McCall, “Politics of Difference: The Women’s Movement in France from May 1968 to Mitterrand”, Signs, 9, 2, 1983, p. 282-293; C. Monteil, “Simone de Beauvoir and the women’s movement in France: an eye-witness account”, Simone de Beauvoir Studies, 14, 1997, p. 6-12.
30 D. Allyn, Make Love, Not War: The Sexual Revolution: An Unfettered History, New York, Routledge, 2001.
31 On this matter, see R. H. Helmholz, Marriage Litigation in Medieval England, Cambridge, Cambridge University Press, 1974; H. J. F. Reinhardt, Die Ehelehre der Schule des Anselm von Laon. Einetheologie- und kirchenrechtsgeschichtliche Untersuchung zu den Ehetexten der frühen Pariser Schule des 12. Jahrhunderts. Beiträge zur Geschichte der Philosophie und Theologie des Mittelalters, Münster, Verlag Aschendorff, 1974; G. Duby, Medieval marriage, Baltimore-London, The Johns Hopkins University Press, 1978; J. Gaudemet, Sociétés et marriage, Strasbourg, Cerdic-Publications, 1980; M. M. Sheehan, Marriage, Family and Law in Medieval Europe: Collected Studies, Toronto-Buffalo, University of Toronto Press, 1996; J. T. Rosenthal, Women, Marriage, and Family in Medieval Christendom: Essays in Memory of Michael M. Sheehan, Michigan, Medieval Institute Publications, Western Michigan University, 1998.
32 S. Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian, Oxford, Clarendon Press, 1991; C Jr. Donahue, “The Case of the Man Who Fell into the Tiber: The Roman Law of Marriage at the Time of the Glossators”, American Journal of Legal History, 22, 1978, p. 1-53; J. T. Noonan, Jr., “Power to Choose”, Viator, 4, 1973, p. 419-434.
33 C. N. L. Brooke, “Aspects of marriage law in the Eleventh and Twelfth Centuries”, Proceedings of the Fifth International Congress of Medieval Canon Law, ed. S. Kuttner and K. Pennington, Città del Vaticano, Biblioteca Apostolica Vaticana, 1980, p. 333-344; Ch. jr. Donahue, “The Dating of Alexander the Thirdʼs Marriage Decretals: Dauvillier Revisited after Fifty Years”, ZRG, KA, 99, 1982, p. 70-124; J. A. Brundage, “Concubinage and Marriage in Medieval Canon Law”, Sexual Practices and the Medieval Church, eds. V. L. Bullough and J. A. Brundage, Buffalo, Prometheus Books, 1982; more recently, S. McDougall, “Marriage: Law and Practice”, eds. A. Winroth and J. Wei, The Cambridge History of Medieval Canon Law, Cambridge, Cambridge University Press, 2022, p. 453-474.
34 A. Masferrer, “The reception of marital consent in the medieval legislation of Castile and Norway. A comparative approach to the Castilian Siete Partidas and the Norwegian Landslög”, Tidsskrift for Rettsvitenskap [Nordic Journal of Legal Science], 137, 3, 2024, p. 429-482, available at https://www.idunn.no/eprint/BUYXIK7HMMUBPPUHPMIZ/full.
35 The word koinonia, society, referred to various kinds of union between men. The political association of men was more perfect than the natural union of the family house (oikía), understood as a community of private life, because in it all are unequal, whereas political life (bíos politikós) constituted a public life, in which all are equal. In his Politics, Aristotle does not conceive of the family as the modern world understands it; he speaks rather of oikía, family house, which the Latins translated as domus or domestic family, that is, the group of people and goods that make up the family community. The anthropological origin of the polis and that of the family within it, for Aristotle, is the same: “natural necessity”. In the first place, there are the primary needs, referring to the generation of man and the preservation of the species; such needs stem from two basic instincts: that of procreation, which drives the union of male and female; and that of preservation, which establishes mutual bonds between lord and servant. In order to satisfy these needs, the oikía arises (Aristotle, Politics, 1252 b 10). Secondly, there are the non-daily needs, which stem from the desire to live comfortably and the desire to live nobly; to achieve this end, people feel the impulse to help each other, establishing a common sphere of exchange and dialogue, through language and the exercise of justice. To meet these needs, which are higher, the “village” appears first, and then the polis. From the community for generation and from the community for preservation “the family house (oikía) is formed first”. In this house live the male and the female, as well as the lord and the servant. The “first” domestic family generates another personal community, that of father and son, for the perpetuation of the species. Thus, male and female are the primary elements of the basic community, “naturally constituted to take care of the everyday (epheméran), the family household. In it its members are either housemates (ties of kinship) or table companions (ties of support)” (Aristotle, Politics, 1252 b 13-15). Aristotle states that “first of all, it is necessary that beings which cannot exist without each other, namely the female and the male, be united in pairs with a view to generation, for here, as in animals in general and in plants, there is a natural instinct (physikon) which tends to leave behind a being similar to oneself” (Aristotle, Politics, 1252 a 26-29). Marriage is thus the natural means to achieve the continuation of the human species. Aristotle adds, moreover, that generation is the “origin”, but not the “exclusive end” of marriage: in marriage man also seeks an inner individual perfection (Nicomachean Ethics VIII, 14, 1162 a). The family is united by the principle of domestic religion, proper to the ancestors. Marriage itself was a sacred ceremony, the first act of which took place in the paternal house, before the Lares gods; the second act took place in the husband’s house, also before the sacred fire and the ascendant gods of the new family. From then on, the husband’s gods would be the wife’s gods. With this new existence, the woman legally became her husband’s “daughter”; I am grateful to my colleague and friend Pedro Talavera for this reflection and those references that I could not find, and which he generously and unselfishly provided me with.
36 This explains why adultery was regarded as the gravest crime, not so much because it was against public honesty or morality but rather because it threatens the family as the basic social institution; on this regard, see A. Masferrer, De la honestidad a la integridad sexual…, op.cit.; in fact, the 19th and 20th-century criminalization of adultery primarily sought to protect family, as sources clearly show; see id., El adulterio en la Codificación penal española. Contribución del Tribunal Supremo y su doctrina legal a su proceso configurador (1870-1978), Cizur Menor, Aranzadi La Ley, 2024.
37 C. Jr. Donahue, Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts, Cambridge, Cambridge University Press, 2007.
38 On the right to privacy, see M. J. Sandel, “Moral Argument and Liberal Toleration: Abortion and Homosexuality”, California Law Review, 77, 1989, p. 521-538 (later published as Democracy’s Discontent, Cambridge (Mass.), Harvard University Press, 1996; and in Public Philosophy: Essays in Morality in Politics, Cambridge (Mass.), Harvard University Press, 2005, p. 122-144), in particular p. 124-133; L.-A. Wheeler, How Sex Became a Civil Liberty, Oxford, Oxford University Press, 2013, ch. 4; see also A. Masferrer, “Libertad sexual y derecho a la privacidad en la tradición norteamericana (1965-2015)”, Pensar el tiempo presente. Homenaje al profesor Jesús Ballesteros Llompart, Valencia, Tirant lo blanch, 2018, vol. I, p. 813-841.
39 P. De Lora, Lo sexual es político (y jurídico), op. cit., p. 26: “If there is a predominant sexual taboo, historically and transculturally, it is that of incest”, and he goes on to take up the opinion of Lévi-Strauss, for whom the avoidance of incest – with a meaning different from that commonly understood – constitutes “the indicator par excellence of the transition from nature to culture”.
40 On the prohibition of expressing or making value judgments about the conduct of others (or “non-judgmentalism”), see A. J. Macleod, “Why Non-Judgmentalism is Unloving”, Canon & Culture, 20th March 2015, available at http://www.canonandculture.com/why-non-judgmentalism-is-unloving/; on this, see also my study “Libertad sexual y derecho a la privacidad en la tradición norteamericana (1965-2015)”, op. cit.
41 R. H. Knight, The Age of Consent, The Rise of Relativism and the Corruption of Popular Culture, Dallas, Spence Publishing Company, 1998.
42 On the relevance of subjective desires to the making of human rights, see A. Masferrer, “The Emergence of Desire-Rights in Postmodern Culture”, Loyola Law Review, 71, 2, Spring 2025.
43 J. Ballesteros, “La constitución de la imagen actual del hombre”, Tópicos: Revista de Filosofía, 15 (2nd semester), 1998, p. 9-29, in which the author states: “The voluntarist model thus despises the reality of the body […]. Together with this contempt for the body, there is contempt for nature. It is a matter of liquidating the ancient notion of physis as the principle of all birth, source of life and engendering power” (p. 11-12).
44 On this subject, see, for example, “How much is the porn industry worth in 2024? (statistics)”, Earthweb, 3rd March 2024, available at https://earthweb.com/how-much-is-the-porn-industry-worth/; see also N. W. Mecham, M. F. Lewis-Western and D. A. Wood, “The Effects of Pornography on Unethical Behavior in Business”, J Bus Ethics, 168, 2021, p. 37-54.
45 See, for example, E. Chase and J. Statham, “Commercial and Sexual Exploitation of Children and Young People in the UK-A Review”, Child Abuse Review, 14, 2005, p. 4-25, available at https://onlinelibrary.wiley.com/doi/epdf/10.1002/car.881.
46 Cunnilingus, fellatio, fellatio in coitus, irrumation, humming, 69 sex position, double fellatio, etc.
47 See http://www.independent.co.uk/news/world/europe/incest-and-necrophilia-should-be-legal-youth-swedish-liberal-peoples-party-a6891476.html.
48 See http://www.independent.co.uk/news/world/europe/german-ethics-council-calls-for-incest-between-siblings-to-be-legalised-by-government-9753506.html; http://www.independent.co.uk/news/world/europe/european-court-supports-guilty-verdict-in-incest-case-7640776.html.
49 See https://en.wikipedia.org/wiki/Laws_regarding_incest_in_the_United_States.
50 See http://prostitution.procon.org/view.subissues.php?issueID=000363; https://en.wikipedia.org/wiki/Decriminalizing_sex_work; http://www.salon.com/2015/07/20/4_reasons_to_decriminalize_prostitution_partner/; http://www.salon.com/2015/07/20/4_reasons_to_decriminalize_prostitution_partner/; http://www.economist.com/blogs/economist-explains/2015/08/economist-explains-13; http://maggiestoronto.ca/uploads/File/10reasons.pdf; http://www.nytimes.com/roomfordebate/2015/08/26/should-prostitution-be-a-crime.
51 See http://bigthink.com/think-tank/is-necrophilia-wrong.
52 See http://www.elmundo.es/ciencia/2015/10/01/560c1d4be2704e996b8b459a.html
53 See http://www.bbc.co.uk/newsbeat/article/32411241/denmark-passes-law-to-ban-bestiality;
http://archive.bangordailynews.com/2001/04/06/taking-stock-should-bestiality-be-criminalized-in-maine/; http://www.northjersey.com/news/n-j-senate-committee-advances-bill-to-criminalize-bestiality-1.1328986.
54 A. Masferrer, De la honestidad a la integridad sexual…, op. cit.
55 For a broader and wider view of this law reform in Europe, see ibid., p. 292-300.
56 For a broader and wider view of this law reform in Latin America, see ibid., p. 300-329.
57 This Haitian Penal Code, having been adopted in 1835, was influenced by the Napoleonic Code and subject to numerous amendments by various laws (1845, 1846, 1860, 1864, 1870, 1875, 1878, 1898, 1927, etc.).
58 Section 213.0.(3), prescribing the definitions of Art. 213 US Model Penal Code: “‘Deviate sexual intercourse’ means sexual intercourse per os or per anum between human beings who are not husband and wife, and any form of sexual intercourse with an animal”.
59 Art. 213.5 US Model Penal Code.
60 E. M. Schur and H. A. Bedau, Victimless Crimes: Two Sides of a Controversy, Englewood Cliffs (N.J.), Prentice-Hall, 1974; W. S. Smith, Victimless Crime: A Selected Bibliography, Washington D.C., U.S. Department of Justice, 1977; A. Wertheimer, “Victimless Crimes”, Ethics, 87, 1977, p. 302-318; note that in Europe, France was the first jurisdiction to decriminalise sodomy in 1791, along with all “victimless-crimes” (sodomy, heresy, witchcraft, blasphemy). The Napoleon Code pénal followed in the previous code’s steps, and such legal regime was introduced in other parts of Europe then ruled by the French Empire and its cognate kings, thus, decriminalizing sodomy in most of continental Europe.
61 E. M. Schur, Crimes without Victims: Deviant Behavior and Public Policy-Abortion, Homosexuality, Drug Addiction, Englewood Cliffs (N.J.), Prentice-Hall, 1965.
62 In addition to the reference contained in footnote 61, see also H. L. Packer, The Limits of the Criminal Sanction, Stanford, Stanford University Press, 1968; D. H. Oaks, “The Popular Myth of the Victimless Crime”, University of Chicago Law Alumni Journal, 1975, p. 3-14.
63 See, for example, N. Morris and G. J. Hawkins, The Honest Politician’s Guide to Crime Control, Chicago, University of Chicago Press, 1970; R. G. Kessler, “Enforcement Problems of Gun Control: A Victimless Crimes Analysis”, Criminal Law Bulletin, 16, 1980, p. 131-149; J. Feinberg, The Moral Limits of the Criminal Law. vol. 1, Harm to Others (1984); vol. 2, Offense to Others (1985); vol. 3, Harm to Self (1986); vol. 4, Harmless Wrongdoing (1988), New York, Oxford University Press, 1984-1988; D. A. Dripps, “The Liberal Critique of the Harm Principle”, Criminal Justice Ethics, 17, Summer-Fall 1998, p. 3-18; K. Roach “Four Models of the Criminal Process”, Journal of Criminal Law and Criminology, 89, 1999, p. 671-716.
64 H. Wechsler, “The Challenge of a Model Penal Code”, Harvard Law Review, 65, 7, May 1952, p. 1100: “The substantive indications are as plainly marked. There are important differences among the states as to the conduct that is criminal even in fields that involve serious behavior problems, e.g., justification and excuse in homicide and other crimes involving bodily injury; the extent to which reckless or negligent injury or creation of the risk of injury is criminal; the range of sexual offenses”.
65 Ibid., p. 1117-1118.
66 In addition to decriminalizing fornication and adultery, in 1955 the American Law Institute also voted to decriminalize consensual sodomy, so the MPC did not include it in its statutory language.
67 Lawrence v Texas, 539 US 558 (2003); two decades after the decriminalization of homosexual behaviour, sodomy is still frequently addressed by academics; see, for example, R. Weinmeyer, “The Decriminalization of Sodomy in the United States”, Virtual Mentor, 16, 11, 2014, p. 916-922, available at https://journalofethics.ama-assn.org/article/decriminalization-sodomy-united-states/2014-11; S. Robertson, “Shifting the Scene of the Crime: Sodomy and the American History of Sexual Violence”, Journal of the History of Sexuality, 19, 2, May 2010, p. 223-242.
68 P. H. Robinson and M. D. Dubber, “The American Model Penal Code: A Brief Overview”, New Criminal Law Review: An International and Interdisciplinary Journal, 10, 3, Summer 2007, p. 329.
69 A. Masferrer, “The Need for a Secularized Criminal Law: Past, Present and Future. A Proposal to Unravel a Complex Issue in the Western Society”, Trending Topics of Law and Justice: Legal English Workshops 2015/16, Tirant lo Blanch, 2017, p. 300.
70 J. D. Weinstein, “Adultery, Law, and the State: A History”, Hastings Law Journal, 38, 1986, p. 195-238; J. Sweeny, “Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws”, Loyola University Chicago Law Journal, 46, 2014, p. 127 ff.; D. L. Rhode, Adultery: Infidelity and the Law, Cambridge (Mass.), Harvard University Press, 2016.
71 M. Ziegler, “Why the Effort to Make the Texas Abortion Bans More Humane Is Doomed”, Slate, 14th March 2023, available at https://slate.com/news-and-politics/2023/03/texas-abortion-ban-lawsuit-life-exceptions-broken.html.
72 F. Kornbluh, A Woman’s Life is a Human Life: My Mother, Our Neighbor, and the Journey from Reproductive Rights to Reproductive Justice, New York, Grove Press, 2023; the work explores three questions: How did liberal and radical feminists, and allies, change the law to increase abortion access – first in New York and then nationally? How did a different group of feminists and allies change the law to control sterilization abuse? And how did the coalitions that enabled these changes conflict with one another, generating years of debate over “reproductive rights” and “reproductive justice” approaches to feminist politics?
73 Cato Institute. Amicus curiae brief in support of petitioners. Lawrence v Texas, 539 US 558, 9 (2003) (No. 02–102); this text has been taken from R. Weinmeyer, “The Decriminalization of Sodomy in the United States”, op cit.
74 Ibid.
75 Cato Institute. Amicus curiae brief in support of petitioners. Lawrence v Texas, 539 US 558, 9 (2003) (No. 02-102), p. 16; I took it from R. Weinmeyer, “The Decriminalization of Sodomy in the United States”, op cit.
76 Lawrence v Texas, 539 US 558 (2003), p. 578: “The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their identity by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government”.
77 Griswold v. Connecticut, 381 U.S 479, 1965; available at https://supreme.justia.com/cases/federal/us/381/479/case.html.
78 Eisenstadt v. Baird, 405 U.S. 438, 1972; available at https://supreme.justia.com/cases/federal/us/405/438/case.html.
79 On this, see A. J. Macleod, “Why Non-Judgmentalism is Unloving”, Canon & Culture, 20th March 2015, available at http://www.canonandculture.com/why-non-judgmentalism-is-unloving/; accessed 11th November 2023.
80 Roe v. Wade, 410 U.S. 113, 1973; available at https://supreme.justia.com/cases/federal/us/410/113/case.html.
81 Doe v. Bolton, 410 U.S. 179; available at https://supreme.justia.com/cases/federal/us/410/179/case.html.
82 Planned Parenthood v. Casey, 505 U.S. 833, 1992; available at https://supreme.justia.com/cases/federal/us/505/833/.
83 Lawrence v. Texas, 539 U.S. 558, 2003; available at https://supreme.justia.com/cases/federal/us/539/558/case.html.
84 Brown v. Buhman, U.S. District Court, 947 F. Sup. 2d 1170, of 13th December 2013; available at https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?211cv0652-78.
85 See, in this regard, the special issue of the Emory Law Journalî, 64, 6, 2015; available at http://law.emory.edu/elj/content/volume-64/issue-6/index.html.
86 Obergefell v. Hodges, 576 U.S. (2015), available at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.
87 576 U.S. (2015), p. 13: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation”.
88 576 U.S. (2015), Robert’s dissenting vote in fine: “If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent.”
89 In this regard, see A. Masferrer, “Libertad sexual y derecho a la privacidad en la tradición norteamericana (1965-2015)”, op. cit.; see also id., Libertad y ética pública. Por qué pensar críticamente en clave para salvar la democracia, Córdoba, Sekotia, 2022, p. 105-120.
90 Id., “The Decline of Freedom of Expression and Social Vulnerability in Western Democracy”, International Journal for the Semiotics of Lawî, 2023, available at https://link.springer.com/article/10.1007/s11196-023-09990-1.
91 For Europe, see id., “Libertad sexual y derecho a la privacidad en la tradición norteamericana (1965-2015)”, op. cit.; for Latin America, see, with regard to abortion, and by way of example, id., “El derecho al aborto en la jurisprudencia mexicana. Contribución al estudio de la influencia norteamericana en el constitucionalismo mexicano”, La Constitución mexicana de 1917: estudios jurídicos, históricos y de derecho comparado a cien años de su promulgación, eds. G. Garduño Domínguez ans M. Andreu Gálvez, México City, Instituto de Investigaciones Jurídicas – Universidad Nacional Autónoma de México, 2019, p. 361-408.
92 In this regard, the Spanish (2023) and French (2024) reactions in the wake of the Dobbs v. Jackson US Supreme Court decision (June 2022) (see § 71) go some way to confirming this thesis, in this case not to follow the last US decision but reacting precisely towards the opposite one, the one that had been reversed (Roe v. Wade, 410 U.S. 113).
93 A. C. Kinsey, W. B. Pomery ans C. E. Martin, Sexual Behavior in the Human Male, Bloomington, Indiana University Press, 1948 (it was translated into Spanish, for example, in 1967, with the title Conducta sexual del hombre, Buenos Aires, Ediciones Siglo XX, 1967); A. C. Kinsey, W. B. Pomery, C. E. Martin and P. H. Gebhard, Sexual Behavior in the Human Female, Bloomington, Indiana University Press, 1953; later on, these reports were criticized by some scholarly authors, who denounced the falsity of their results, largely due to the lack of scientific rigour of the sampling employed in their sociological analysis based on interviews with thousands of men and women; for example, A. H. Maslow and J. Sakoda, “Volunteer error in the Kinsey study”, Journal of Abnormal Psychology, 47, 2, 1952, p. 259-262; see also M. Tarasco, “Consideraciones sobre la Influencia del Reporte Kinsey”, Cuadernos de Bioética, 4, 1997.
94 On this matter, see the reference cited in the footnote 41, particularly chapters 4 (“The Sexual Revolution: Relativizing Eros”) and 9 (“Hollywood Films”).
95 See, for example, the International Conference on Human Rights in Tehran, 22 April to 13 May 1968, declaring that “[p]arents have the fundamental human right to freely determine the number and spacing of their children”; it was the first time that a legal text had enshrined as a ‘human right’ the right of parents to decide on the number and spacing of their children. Although parents had not previously lacked this power, this precept was a response to concern about the demographic question and to scientific advances that allowed massive recourse to contraceptive methods. It thus constituted a call for the use of contraception that allowed sexuality and procreation to be dissociated; six years later, The World Population Conference in Bucharest (1974) extended this right, which had been recognized in Tehran to parents, to all couples in general – even if they were not married – as well as to all individuals. It was understood that no marriage or other bond between a man and a woman was required to have a child. Moreover, even individuals – without the need for a partner – could have children. The text of the Conference also reflected the desirability of individuals having the means, information and education necessary for the free exercise of sexuality. A few years later, the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (1979). Although the text does not include the term ‘reproductive rights’, it does refer to the ‘reproductive function’. Indeed, Art. 11 states: ‘1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: […]; f. The right to protection of health and safety in working conditions, including the safeguarding of the reproductive function’; on the US influence over these international conferences, see M. Elósegui Itxaso, Diez temas de género. Hombre y mujer ante los derechos productivos y reproductivos, Madrid, Ediciones Internacionales Universitarias, 2002 (I am using the 2nd ed., 2011), p. 135-154, in particular p. 136.
96 On this matter, in addition to the assertions and evidence that have been given in the references of the footnotes of § 65, is particularly revealing the insightful work by Wheeler, How Sex Became a Civil Liberty, op. cit.; although giving a complete evidence of this statement would require to have access of particular sources of different jurisdictions, this is the clear conclusion to which I came when I analyzed a European jurisdiction (such as Spain) and an American one (such as México); for México, see my work entitled “El derecho al aborto en la jurisprudencia mexicana. Contribución al estudio de la influencia norteamericana en el constitucionalismo mexicano”, op. cit.; for Spain, see A. Masferrer, “Abortion: From a Crime to a Constitutional Right? The Spanish Case in Comparative Perspective (1984-2024)”, Church, Communication & Culture, 10, 2, 2025.
97 In this respect, see the study by V. Bellver Capella, “¿Nuevas tecnologías? Viejas explotaciones. The case of international surrogacy”, SCIO. Revista de Filosofía, 11, 2015, p. 1-24.
98 Mennesson v. France (application no. 65192/11) and Labassee v. France (no. 65941/11), ECHR 185 (2014) 26.06.2014; see, in this respect, another recent judgment involving Italy, Paradiso and Campanelli v. Italy (application no. 25358/12) [ECHR 028 (2015) 27.01.2015], in which the European Court of Human Rights decided by majority that article 8 of the European Convention on Human Rights, concerning the right to personal and family privacy, had been violated.
99 Note that in France, three months before the US Roe v. Wade ruling, the relevant date for the abortion advocates is 1972, the year of the “Bobigny trial” that helped decriminalize abortion in the country, before the 1975 Veil Law fully legalized voluntary abortions in France. It is logical to maintain that US Supreme Court judges knew this precedent and that it might somehow have influenced their views; in any case, US newspapers today provide evidence of the French precedent, to the extent of calling it “France’s Roe v. Wade”; see “France’s Roe v. Wade was the trial of a 16-year-old girl”, The Washington Post, 25.6.2022, available at https://www.washingtonpost.com/history/2022/06/25/bobigny-trial-roe-wade-france/.
100 In 1955, abortion was legalized in Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine; in 1957, China, Czech Republic, Slovakia (as part of Czechoslovakia); as can be seen, before 1973, most of the countries that decriminalized abortion were under the Communist political dominion.
101 Note that Tunisia had already authorised abortion (1964) in specific cases (women with more than 5 live children + pathological pregnancy), so it seems that the 1973 law may therefore be more the result of an internal logic in Tunisian history than a consequence of the Roe v. Wade’s influence. As Irene Maffi and Malika Affes point out, “Tunisia is the only Arab country where abortion for social reasons has been legal for all categories of women since 1973. The law allows abortion in medical institutions under the authority of physicians until the end of the first trimester for married and unmarried women without marital consent. […] The decriminalization of abortion dates back to the mid-1960s when, influenced by the neo-Malthusian ideology circulating in the postwar period, the political elite of independent Tunisia considered the reduction of the high fertility rate a priority. For several decades, Tunisian institutions promoted family planning and abortion as practices contributing to reducing the number of citizens and improving their educational and socioeconomic situations with the aim of engineering a modern society. The legalization of abortion and promotion of family planning were the results of a political decision made by a modernist elite rather than the conquest of a women’s movement, as in many European countries and North America” (“The Right to Abortion in Tunisia after the Revolution of 2011: Legal, Medical, and Social Arrangements as Seen through Seven Abortion Stories”, Health and Human Rights, 21, 2, 2019, p. 69-78).
102 1974 (Singapore, Sweden), 1975 (Austria, France, Vietnam), 1977 (Bosnia and Herzegovina, Croatia, Montenegro, North Macedonia, Serbia, Slovenia as part of Yugoslavia), 1978 (Italy, Luxembourg), 1979 (Norway), 1983 (Turkey), 1984 (Netherlands), 1986 (Cape Verde, Greece), 1988 (Canada), 1989 (Mongolia), 1990 (Belgium, Bulgaria, Romania), 1992 (Germany), 1993 (Guinea-Bissau), 1995 (Guyana), 1996 (Albania), 1997 (Cambodia, South Africa), 2002 (Nepal, Switzerland), 2007 (Portugal), 2010 (Spain), 2012 (São Tomé and Príncipe, Uruguay), 2015 (Mozambique), 2018 (Cyprus), 2019 (Iceland, Ireland), 2020 (New Zealand), 2021 (Argentina, South Korea, Thailand), 2022 (Colombia, San Marino), 2023 (Finland); this information has been taken from the entry “Abortion law”, available at https://en.wikipedia.org/wiki/Abortion_law.
103 STC 44/2023, recurso de inconstitucionalidad núm. 4523-2010, 9th May 2023; on this matter, see A. Masferrer, “Abortion: From a Crime to a Constitutional Right? The Spanish Case in Comparative Perspective (1984-2024)”, Church, Communication & Culture, Volume 10.1 (1925), p. 19-44 (available at https://www.tandfonline.com/doi/full/10.1080/23753234.2025.2473107); A. Masferrer, “Derecho al aborto en perspectiva comparada,” El Debate, 1.7.2023 (available at https://www.eldebate.com/sociedad/20230701/derecho-aborto-perspectiva-comparada_125193.html).
104 Addition to the article 34 of the French Constitution; note that the joint session of the Congress at the Château of Versailles concluded the amendment process initiated following the US Supreme Court’s removal of the constitutional right to abortion in June 2022, so the decision clearly stemmed from the reversal of Roe v. Wade by Dobbs v. Jackson Women’s Health Organization. Moreover, the first version of the amendment included references to the US Supreme Court’s decisions in the very first sentence of the explanatory statement.
105 Art. 559 of the Italian Penal Code of 1930 read as follows: “La moglie adultera è punita con la reclusione fino a un anno. Con la stessa pena è punito il correo dell’adultera. La pena è della reclusione fino a due anni nel caso di relazione adulterina. Il delitto è punibile a querela del marito”; however, the Constitutional Court declared, by judgment no. 126 of 19th December 1968, the unconstitutionality of the first and second paragraphs, considered discriminatory on the basis of art. 29, which establishes the “moral and legal equality of spouses”. Similarly, with judgment no. 147 of 3rd December 1969, the same court declared the third and fourth paragraphs unconstitutional.
106 Alabama, Arizona, Florida, Georgia, Idaho, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Mississippi, New York, North Dakota, Oklahoma, South Carolina, Utah and Wisconsin.
107 The laws against fornication have been a dead letter (i.e. unenforceable) since the Supreme Court case of Lawrence v. Texas (2003) held that private sexual activity is protected from government scrutiny by the liberty clause of the 14th amendment. Nevertheless, in some states it is still on the books, although no longer enforced (Georgia, Illinois, Mississippi, North Carolina, and North Dakota). The list is changing because recently states have been repealing both their anti-adultery and anti-fornication statutes. This is due to both the changing mores and the Supreme Court Lawrence judgment; on this matter, see Joanne, Sweeny, “Adultery and fornication: Why are states rushing to get these outdated laws off the books?”, Salon, 6 May 2019, available at https://www.salon.com/2019/05/06/adultery-and-fornication-why-are-states-rushing-to-get-these-outdated-laws-off-the-books/.
108 Currently, Michigan and Mississippi have enforceable laws against cohabitation; other states such as Florida, North Carolina, North Dakota, Virginia and West Virginia, had anti-cohabitation laws.
109 See, for example, R. Green, “Fornication: Common Law Legacy and American Sexual Privacy”, Anglo-American Law Review, 17, 3, 1988, p. 226-238; R. A. Posner and K. B. Silbaugh, A Guide to America’s Sex Laws, Chicago, University of Chicago Press, 1998, p. 98-102 (fornication) and p. 103-110 (adultery).
110 T. S. Stratton, “Notes and Comments, No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication”, Washington Law Review, 73, 1998, p. 797; and the author adds: “By doing so, states benefit from the law’s rhetorical effect, but avoid the dangers that may result from enforcement. Keeping fornication statutes on the books and informing the public of their existence might not prevent fornication, but it will send a much needed message of social disapproval, driving this immoral conduct underground”.
111 Id., “No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication”, op. cit., p. 769.
112 J. D. Weinstein, “Adultery, Law, and the State: A History”, op. cit., p. 226.
113 Id., “Adultery, Law, and the State: A History”, op. cit., p. 227.
114 D. L. Rhode, “Why Is Adultery Still a Crime?”, Los Angeles Times, 2nd May 2016, available at https://www.latimes.com/opinion/op-ed/la-oe-rhode-decriminalize-adultery-20160429-story.html.
115 Id., Adultery: Infidelity and the Law, Cambridge (Mass.), Harvard University Press, 2016.
116 See the following two book reviews: R. Probert, Social & Legal Studies, 27, 1, 2018, p. 121-124; M. F. Brinig, “Book Review of Rhode, Adultery, Infidelity and the Law: Adultery, Trust and Children”, Texas Law Review, 95, 2nd August 2016, available at https://ssrn.com/abstract=2817543.
117 J. Sweeny, “Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws”, op. cit., p. 173.
118 Ibid.
119 T. W. Arnold, The Symbols of Government, New Haven, Yale University Press, 1935, p. 160.
120 See, for example, D. S. Ben-Atar and R. D. Brown, Taming Lust: Crimes Against Nature in the Early Republic, Philadelphia, University of Pennsylvania Press, 2014; J. D’Emilio and E. B. Freedman, Intimate Matters: A History of Sexuality in America, Chicago, University of Chicago Press, 2012; M. E. Wiesner-Hanks, Christianity and Sexuality in the Early Modern World: Regulating Desire, Reforming Practice, New York, Routledge, 2010; R. Godbeer, Sexual Revolution in Early America, Baltimore, Johns Hopkins University Press, 2002.
121 For Spain, see A. Masferrer, El adulterio en la Codificación penal española…, op. cit.
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Aniceto Masferrer, « Why and How Sexual Freedom Changed Western Criminal Law (19th and 20th centuries) », Clio@Themis [En ligne], 28 | 2025, mis en ligne le 01 mai 2025, consulté le 23 juin 2025. URL : http://journals.openedition.org/cliothemis/5867 ; DOI : https://doi.org/10.4000/13wwf
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