I appreciate Ed's passing along some real data, but I wonder:
Is it based on relationships involving anal sex, or sexual relationships
more generally? Anal sex, as I understand it, is more dangerous than
genital sex.
But more broadly, as public health and family planning
specialists will tell you, the chief problem isn't that contraceptives
and condoms sometimes fail (though they do) -- it's that much more
often, people don't use them properly or consistently. This is
especially true if they're drunk, on drugs, or on lust hormones.
It thus seems to me that if the law has a communicative effect
on people's behavior, and if the law can stigmatize anal sex generally,
then the law may well do more to fight HIV transmission than would a law
which simply communicates the message "anal sex is fine, so long as you
use condoms." Once people get in the habit of engaging in and enjoying
anal sex, they may well be tempted to lapse on occasion, in order to get
maximum pleasure, or in order to avoid losing an erection, or just
because they're drunk or high and not thinking. Perhaps if people
didn't get into this habit, then they'd be less likely to act even when
they're not thinking carefully for some reason.
Now as it happens I think the law is unlikely to have that much
of a communicative effect here (some but not that much), and I think
that the liberty costs of a ban on anal sex -- even a largely unenforced
one -- exceed the public health benefits. But that just means that on
balance the law does more harm than good, not that it's somehow
irrational.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Ed Darrell
Sent: Sunday, August 21, 2005 12:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious Polygamy
Back to the evidence: CDC studies show that condoms alone are at least
90% effective in preventing the spread of HIV when one partner is HIV
positive. The 90% was calculated on the basis of 9 out of 10 of the
couples had no spread of the disease, not that 1 out of every 10 acts
was infective. There remain some areas where information and education
are still our best tools against disease.
Ed Darrell
Dallas
Rick Duncan <[EMAIL PROTECTED]> wrote:
Does Sandy now agree with me that male on male anal sodomy is
"victim-causing" behavior? If so, then the law could rationally go after
this problem without going after other types of sexual behavior. Indeed,
since this particular form of sexual intimacy is disproportionally
associated with the spread of AIDs, as well as many other STDs, I assume
it would be rational to single this behavior out for criminal liability.
Of course, Texas defended its sodomy laws on moral grounds alone and
Lawrence merely holds that morality alone is an insufficient state
interest to justify criminalizing consensual sexual conduct. Suppose
Texas enacts a ban on homosexual anal sodomy and defends it as a health
measure. Now the Court would have to decide whether there is a
fundamental right of sexual autonomy, and whether it applies to all
consensual sexual activities or only to some. It is not helpful to say
it protects only "non-victim-causing" sexual conduct, because all sexual
conduct has 3d party consequences--pregnancies, disease,etc. Indeed,
sexual conduct is a kind of behavior that has some of the most profound
effects on third parties and on society.
Cheers, Rick
Sanford Levinson <[EMAIL PROTECTED]> wrote:
I think that "consensual adultery" should indeed be protected. But that
is obviously a very tiny subset of the behavior subsumed under laws
prohibiting adultery.
So is Rick defending the criminalization only of male-on-male anal
sodomy, but not, say, the criminalization of fellatio or cunninlingus?
Actually, I assume he would defend the criminalization of all anal
sodomy, including heterosexual (and between married couples, unless the
married couples had passed HIV tests, but it that is enough to save
heterosexual anal sodomy, then why wouldn't sodomy between men who were
both HIV negative be equally all right).
sandy
From: [EMAIL PROTECTED] on behalf of Rick Duncan
Sent: Sun 8/21/2005 12:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious Polygamy
Sandy: If W consents to H's adultery with X, exactly who is the victim?
Doesn't Lawrence recognize the dignity of consenting adults to define
their own intimate lives?
And isn't male on male anal sodomy "victim causing" in terms of AIDS and
other STDs that are disproportiantely spread by this type of behavior?
Cheers, Rick
Sanford Levinson <[EMAIL PROTECTED]> wrote:
Rick writes:
The only possible crime (assuming all parties are consenting adults) is
adultery, and criminal adultery laws probably don't survive Lawrence (or
do they?).
I'm not sure why adultery laws wouldn't survive Recall that Blackmun, in
his Bowers dissent, took care to indicate that his argument didn't
extent to adultery or incest.
Lawrence, at least as a matter of formal analysis, inasmuch as we it is
certainly rational to view adultery as a victim-creating activity and a
well-substantiated threat to marriage. Those of us who support
same-sex marriage (not to mention the far easier case of Lawrence) view
the actions as creating no victims and, in fact, probably strengthening
the institution of marriage. (Ironically, the ban on incest, at least
between adults, is probably harder to defend after Lawrence.)
sandy
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or
Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
numbered." --The Prisoner
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or
Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, b! ! riefed, debriefed,
or numbered." --The Prisoner
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