The court undoubtedly would mention consent and harm to others in
distinguishing adult, consensual sexual relations in privacy from incest and
adultery --and perhaps defense of marriage. The "consent" aspect of incest
is that: with children and incest, the problem is power relations and lack
of emotional and cognitive skills; despite NAMBLA and others assertions
that children just can consent and derive erotic pleasure from contact iwth
adults, the evidence is against such claims (see below) In terms of adult
incest, there are real genetic concerns, which at leas traise an important
state interest, as well as residual power concerns. On adultery, the damage
is to marriage, a state institution, with an "innocent' third party
although arguably no-fault divorce and repeal of adultery laws cut the other
way) Meyer and Pierce certainly do not stand for "nontraditional" ways of
relating within a family, and they have not been read to preclude state
intervention in abuse and neglect cases.
I cannot let the psychological claims in Michael's e-mail go unaddressed,:
In the past 13 years, there has been a considerable amount of controversy
over "child sexual abuse". The Rind study mentioned in the e-mail is deeply
flawed: for criticisms, see Dallam, Gleaves, cepeda-Benito, Joyanna
silberg, Helena Kraemer & David Spiegel, *The Effects of Child Sexual Abuse:
Comment on Rind (et al)*, 127 Psych Bulletin 715 (2001) See also Charles
Whitfield, MD, Joy Silberg, PhD, & Paul Fink, MD, *Misinformation Concerning
Child Sexual Abuse* (Haworth Press 2002), See generally sources cited and
summarized at www.leadershipcouncil.org . Sexual abuse hurts children, and
hurts them badly. The psychologist who says it is the stigma and not the
actual abuse that causes the harm is operating from a 1950s assumption
(resurrected in the past 10 years by those seekign to deny that there is
harm.) Shameless self promotion: see Henderson, *Without Narrative: Child
Sexual Abuse*, 4 Va. J. Social Policy & L (1997).
To tie this all to con law: Context/facts do matter, and incest and child
sexual abuse --and adult rapes--can be distinguished from the conduct
prohibited in *Lawrence* *Meyer* Pierce* *griswold* and *Eisenstadt* all
have to do with adult consensual sexual relations. I doubt this Court--or
any Court--would suddenly find that the right to privacy extends to these
crimes or battering within the home.
Sincerely
Lynne
----- Original Message -----
From: "Scaperlanda, Michael A" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Thursday, June 26, 2003 1:12 PM
Subject: Lawrence and the boundaries of logic
> 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
