Last edited: March 28, 2004

Going Down Down South: Fighting Absurd Sex Laws

Playboy, April 1998

By Chuck Shepherd.

Abstract: Activist Howard Fletcher intentionally engaged in illicit sex in Florida to challenge the state's repressive laws on sex. As in a number of other states, Florida defines sodomy in vague terms that make the law hard to follow.

If Howard Fletcher, co-founder of the National Sexual Rights Council, has his way, spring-breakers will want to stay out of Florida this year. Too dangerous. Maybe they should head to Iowa. Or South Dakota. Surf's lame, but at least those states aren't weighed down by 19th century sex laws that turn sexually active tourists (and residents) into criminals.

Florida laws prohibit living together, sex outside of marriage and sodomy (defined as "any unnatural and lascivious act"). The sodomy statute also notes, inexplicably, that "a mother's breast-feeding of her baby does not violate this section."

The fact that the state of Florida included this exception suggests that any combination of mouth and breast not involving an infant violates the code. One wonders what law-abiding citizens do for foreplay in Florida.

Sodomy laws in Florida and in many other states are notoriously vague, a sign of the generally upright demeanor of sexually challenged lawmakers. An exception was the code in the District of Columbia, which showed the dangers of being too specific. Until recently it stipulated that carnal copulation was forbidden not only in the mouth and anus but in any opening of the body other than the vagina. So much for nostril sex or for inserting anything but a Q-Tip into your ear. Was such behavior a serious problem in the capital?

A more important question is: Do the punishments fit the crimes?

If convicted under Florida's antisex laws, which treat cohabitation, fornication and sodomy as misdemeanors, you could face up to 60 days in jail. By some standards, that's progressive. Thirteen states still consider sodomy a felony; some call it an "abominable and detestable crime against nature." Go down on your date in Michigan and you could spend 15 years up the river.

Howard Fletcher thinks all such laws are ridiculous. He could have chosen to make his case in any of the states that criminalize sodomy and fornication, but he chose Florida. If you are willing to go to jail for sex, better to do it in a state that can lock you up for only two months.

Last November, aided by a grant from Hugh Hefner, Fletcher flew from his hometown of Juneau, Alaska to Boca Raton. There he checked into a single-bed hotel suite with a female friend and performed with her a pleasurable variation of lewd and lascivious lovemaking. They broke all three antiquated laws almost before Fletcher's credit card number had cleared the hotel's computer.

(Full disclosure: About the time Fletcher and friend were slam-dunking those three laws, so were yours truly and his primary love unit, in a nearby hotel. Our illegal tryst, of course, was conducted purely in the interest of professional journalism.)

On his third day in Boca Raton, Fletcher held a press conference. No, the sex hadn't been that newsworthy-- or at least Fletcher would not go into detail beyond specifying that oral sex took place. Instead he told invited members of the press that he was going to turn himself in to the local police, which he proceeded to do. (Yours truly did not.)

Despite Fletcher's full, written confession and several non-explicit photographs he made available, the Boca Raton police department said it would have to "conduct further investigation" before the state's attorney could decide whether to file charges. So far, no charges have been filed.

Actually, recalls Fletcher, the presiding detective, Guy DiBenedetto, was a "real professional." In the midst of a Kennedy-worthy array of local television cameras, "he kept a straight face and treated the entire process with dignity and respect. And he also said he'd have to be careful how he behaved with his wife."

The sleep-in became a teach-in. Fletcher carried out his act of civil disobedience self-effacingly, befitting his status as a 66-year-old great-grandfather who genially admits that he is occasionally unable, tumescently, to break as many consensual-sex laws as he would like.

His latest marriage is now almost 20 years running, and it's secure enough, he said, that his wife heartily approved of his Boca Raton tour de force.

With the National Sexual Rights Council, Fletcher has targeted the religious right as the source and defender of repressive sex laws. He describes the enemy as "bigoted, self-righteous, holier-than-thou, hypocritical, narrow-minded, power-hungry, inflexible, anal-retentive, prurient, nosy, reactionary, totally unchristian political terrorists."

Joining Fletcher at his postcoital news conference was the other half of the NSRC leadership, West Palm Beach attorney Elliot Shaw. As passionate on the topic as Fletcher is, Shaw warms to the subject of archaic sex laws.

These statutes "make criminals out of nearly everyone," Shaw told reporters. "Even you," he shouted at a female journalist who had confessed that she lives with her boyfriend. "The laws are based on the double-standard, Madonna/whore complex," he went on, "and they're simply not valid now, if they ever were." The steam in the room was palpable as Shaw plowed through a rack of Masters and Johnson statistics, evolutionary psychology theory ("We are programmed with a massive sex drive") and biblical history ("When Eve stretched out for knowledge beyond the garden, God gave her pain, enmity and total subservience"). He ended his rant sounding like he had just cooked up another agenda item: "These laws are almost something we should report to the human-rights people."

At the press conference, Fletcher explained why the council had chosen Florida. The sleep-in was the opening salvo of a three-pronged attack. Although Fletcher wasn't arrested, he and Shaw say they used his standing as an admitted criminal to file a federal lawsuit to prevent the state from prosecuting him (or anyone else on the same charges). In the suit they demand that the statutes be invalidated as violating the constitutional right of privacy. They hope to take their case to the U.S. Supreme Court.

The suit also seeks an order requiring the state to protect naive visitors, such as those spring-breakers, who may hop into bed unaware that they are breaking the law.

You have to love these guys.

On a second front, the NSRC is attempting to gather almost 500,000 signatures to place its Right of Intimate Privacy Initiative on a statewide ballot this year. The initiative would amend the state constitution to read: "No act of sexual intimacy committed in private between consenting persons above the age of majority shall be prohibited by law." That's a polite way of telling the state to butt out.

As its third initiative, the NSRC is pushing for repeal of the antisex statutes in the state legislature. The group is now lobbying to bring lawmakers on board. The NSRC counts on at least one of these three courses of action to succeed.

When it comes to sex crimes, Florida seems to be the geographic expression of a confused psychopath. Even on good days the police-blotter columns of the state's newspapers are filled with a disproportionately large number of paraphiliacs, both creative and mundane.

But just when observers realize that the best thing for the state might be for it to admit itself en masse to the Betty Ford Clinic, along come Fletcher and Shaw to reveal that Florida has even more perverts (hundreds of thousands, in fact), than previously known. It's not just the spring-breakers but also the senior citizens who buddy up out of convenience and occasional wildness. The criminal class includes swingers on baseball's world champion Marlins, and even the Goldie Hawns and Kurt Russells who drop in at Disney World or South Beach. (We have no idea if Goldie and Kurt have ever violated the laws of Florida. But if they bunk down in the same hotel room, they're at least guilty of cohabitation.)

For a nation whose church and state are supposed to have been separated, biblical admonitions and religious doctrine saturate our sex laws. Florida's fornication law, says Fletcher, originates with the notion that a daughter is the property of her father until marriage. (The government acts as if someone has broken into Dad's garage and ruined his power saw.) Similarly, allowing only marriage partners to have government-approved sex is based on biblical teachings that a woman escapes from her father's bonds only by becoming the chattel of her husband. Any man who slept with another man's wife, says Fletcher, "was in fact committing theft, much as joyriding is grand theft auto."

Despite Florida's take on it, the predominant view among Americans holds that marriage is merely a civil contract under which the parties are free, but not legally required, to commit to sexual exclusivity.

Prevention of sodomy--that abominable and detestable crime against nature-has a biblical basis as well, but Fletcher says it may also be grounded in the need for one tribe to outpopulate another. Hence, there can be no wasted seed. But Fletcher believes that the amount of thrill-ride sex today outstrips procreative sex by at least 1000 to 1 (which is good, if you believe the anti-population growth activists).

To be valid, according to the U.S. Supreme Court's familiar test of constitutionality, a law must serve a "legitimate" government interest, and if it infringes on a fundamental right, such as the right of privacy in intimate relations, it must have "compelling" justification. The NSRC says the three Florida laws that Fletcher violated and similar ones on the books in dozens of other states fail this "legitimate and compelling interest" test.

In fact, the only justification the government might muster is that it somehow has a duty to make everyone a biblically good citizen, just as some public high schools have SAT preparation courses to help students get into college, a lawmaker might argue, the purpose of these laws is to help people get into heaven. But it is done, in most cases, against our wills.

OK, the laws are stupid, but how big a priority is eliminating them? After all, asked one reporter, how often are they enforced?

"Every day," says Shaw.

He admits that the newspapers aren't filled with accounts of police officers breaking down doors to arrest fornicators. But the laws often crop up in other legal actions. Mary Albert was accused of forcible sodomy, but even had he proved that the act was consensual, he could still have faced up to five years in jail for it.

Most of the time the laws do damage in ways that are far more subtle. Last summer in Texas, for instance, a child-welfare official removed a baby from his foster mother's care because the woman was living in sin with another woman. The official contended that, as the state's sodomy laws criminalize homosexual sex, the foster mother was involved in an ongoing crime.

Lawmakers are notoriously unenlightened when it comes to revising sex laws. Letting the people decide through a referendum is a compelling idea. But getting on the ballot won't be easy. The NSRC will need those half a million signatures.

Still, says Shaw, the NSRC's campaign is a lot more realistic than waiting until a majority of Florida's lawmakers stand in the legislature to praise shacking up and lactation-free breast kissing.

So far, the demand for warnings to out-of-staters is the NSRC's most intriguing idea. The legislature might have to call on the good people of Sheraton and Hyatt and their stockholders to warn their guests and, more onerously, to check proof of matrimony before allowing two people to share a room.

Imagine if the state were compelled to display this warning at its borders:

(WE ID.)

(Reach the NSRC toll-free at 1-888-247-9413.)

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