The Court says that "as a general rule" the state shouldn't be able to use
its criminal laws "to define the meaning of the relationship or to set its
boundaries absent injury to a person or abuse of an institution the law
protects."
Could this opinion logically be extended to protect (from criminal
prosecution) intra-familial pedophilia in certain circumstances?
Consent (or inability to consent) cannot supply the answer. The citations to
Meyer, Pierce, etc seem to suggest some continued recognition of family
privacy. In fact, the court says that "In our tradition the State is not
omnipresent in home." Much of what goes on in the home presupposes the
inability of the child to consent, giving the parents (within reason - where
are the boundaries??)the room ("both in its spatial and more transcendent
dimensions") to make decisions in the best interest of the child. The
parents decide whether the child will be raised in a religious or
non-relgious home, whether the child will be taught relativism or
transcendent truth, bigotry or tolerance, etc. Why not include whether the
family rituals include initiation into the world of sex within the friendly
confines of the family?
The court does say that this general rule of relational liberty only applies
"absent injury to a person or abuse of an institution the law protects."
Maybe the state can regulate pedophilia because of "injury to a person," the
child? But, Bruce Rind, et al, A Meta-Analytic Examination of Assumed
Properties of Child Sexual Abuse Using College Samples, 124 Psych. Bull. 22
(1998) suggests (if I remember correctly) that the perceptions of injury are
overstated. I also have a psychologist friend (and this would be anecdotal
except for the fact that he or someone like him could serve as an expert
witness on this subject)who says that the only reason most children suffer
injury from adult-child sexual conduct is because of the stigma society
places on such contact. "Injury" is a fact question, and I'm not sure that
we can make a conclusive determination as to which way it is decided. And,
as societal values change so might perceptions of injury.
Or, perhaps, this conduct wouldn't be protected because there is not (yet??)
an "emerging awareness" or an "emerging recognition" in the scholarly
commentary, in the states, and in international and foreign law that such
liberty ought to be protected.
If there is such an "emerging awareness" or an "emerging recognition" in
five, ten, or twenty years, coupled with more studies discounting or
dismissing injury, would Lawrence logically extend to protect intra-familial
pedophilia? Or, to put it in Mark's frameword, does "the government have
pretty good/really good/compelling reasons to restrict" that liberty?
Michael Scaperlanda
-----Original Message-----
From: Volokh, Eugene
To: [EMAIL PROTECTED]
Sent: 6/26/2003 2:10 PM
Subject: Lawrence vs. Glucksberg
I'm certainly not going to mourn the demise of sodomy laws,
which
I've long thought were quite outrageous. But I'm wondering about the
boundaries of the majority's logic, and in particular how it relates to
the
right to assisted suicide rejected in Glucksberg. Wouldn't a right to
decide how to die be as important to one's "dignity as [a] free
person[]" as
the right to build sexual relationships?
I realize that there are stronger arguments for why the
government
may properly burden or even prohibit the exercise of that right; but
Glucksberg held that the right really isn't protected by anything more
than
a rational basis test, relying largely on the "only traditional rights"
rationale that Lawrence seems to pretty decisively reject. Is this
still
sound post-Lawrence?
Eugene
