Last edited: March 01, 2005

A Changing Morality Within Our Society

The Barbados Advocate, February 28, 2005

By Jeff Cumberbatch

By some quirk of coincidence, the Friday, February 18 edition of the New York Times featured, on its letters page, some contributions on the seemingly universal proposal of abstention as a sexual lifestyle. There’s an oxymoron for you! One letter writer did raise an intriguing point, nevertheless. He argued, much as I did in last week’s Musings, that the proponents of abstention are less concerned with its prophylactic efficiency against sexually transmitted diseases than with its semblance of purity, sinlessness and virtue. He argues that if there were a pill that could be swallowed to prevent the contraction of any STD, including HIV/AIDS, the abstention lobby would nevertheless be against it since it would permit safer indulgence in sexual intercourse, an activity that it considers essentially nasty and to be avoided except for purposes of procreation. A critical perspective, indeed.

A recent decision of the Virginia Supreme Court, Martin v. Ziheri has struck down that state’s criminal ban on fornication which had existed since the early 18th century but, like most criminal sex laws outside of non-consensual conduct, had not been enforced for many years. Yet, as an online legal commentary states, laws criminalising non-marital sexual conduct “still persist on the books in about 20 per cent of the states”.

The facts of the case are interesting in themselves. Ms. Martin filed a complaint against her ex-lover Mr. Ziheri for allegedly transmitting genital herpes to her through unprotected sexual intercourse knowing that he was infected with the disease. She sued in tort, claiming damages for negligence, battery and intentional infliction of emotional distress.

Ziheri’s defence was a creative one. He argued that there was no case to answer since, even if the facts alleged were true, there could be no recovery for harm suffered while the parties were willingly engaging in illegal activity; in this case fornication—sexual intercourse by an unmarried person with any other person.

This defence, well known to those learned in the common law as “ex turpi causa non oritur action”—loosely, “no action may be brought on the basis of an illegal enterprise”, succeeded at the trial. But this decision was reversed on appeal on the ground that the fornication law was unconstitutional. Much of the court’s reasoning is based on the earlier Supreme Court decision in Lawrence v. Texas. There, it had been held that the constitution protects the right of adult individuals to conduct consensual personal relationships in the confines of their own homes and their own private lives, and that this right included the overt expression of the relationship in intimate conduct. In other words, there is a constitutional right to make love.

This right is not absolute or inviolable, but the justification for its limitation must be compelling. Neither perceived immorality nor the protection of public health nor the desire that children be born into wedlock is a sufficient justification and thus there was no legitimate state interest which could “justify its intrusion into the personal and private life of the individual”. It seems clear, however, that fornication laws are falling all over the US Professor Grossman of Hofstra University, the author of the review article, reports that similar laws have been repealed or struck down in Georgia, Arizona and the District of Columbia, while the Attorney-General of Utah has promised that the law there will not be enforced against consenting adults. No longer, it seems, will the law be permitted “to (improperly) abridge a personal relationship that is within the liberty interest of persons to choose”.

But does this signal an onset of sexual anarchy? Justice Scalia in an emotive assertion in Lawrence, foresaw the demise of the laws against bigamy, masturbation, incest, adultery, same sex marriage and bestiality, inter alia. This is plainly irrational. The preservation of the marriage institution, the protection of minors and the presence of consent are all essential elements of the nature of the sexual activity protected. On this basis, bigamy, bestiality and incest involving minors are thus unlikely to be ever considered unconstitutional while the criminalisation of masturbation (arguably the next safest form of sexual activity after abstinence) is at least laughable.

However, as Professor Grossman notes, it is adultery and same-sex marriage which are likely to pose the more complex constitutional questions. The former might/does affect the institution of marriage, but is conducted in private between consenting adults. Happy to relate, the issue is not a live one in Barbados where adultery is perfectly legal and generally connived at.

Same-sex marriage, while consistent with the preservation of stable domestic unions and while essentially a private consensual relationship, runs contrary to local legal requirements that marriage be a union between a man and a woman. Again, luckily for us in Barbados, no constitutional issue is engaged since the hoary section 26 of our Constitution may serve to negate the question. Moreover, there does not appear to be any significant local lobby for this form of union. Nevertheless, given the legislative and other impetuses from Europe and North America, it is probably safe to conclude with Prof. Grossman... “only time will tell”.

(Jeff Cumberbatch is a law consultant and educator.)

[Home] [Editorials] [Barbados] [World]