THis is probably an inadvertent misstatement, but I don't see how Meyer
(striking down a ban on teaching children in German) and Pierce (striking
down a ban on private schooling), "have to do with adult consensual sexual
relations," unless the concept of sexual relations is defined very
broadly:). The other cases Lynne cites are of course on point.
Ilya
On Thu, 26 Jun 2003, Lynne Henderson wrote:
> 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
>
