During the dark ages, the medieval Church dominated almost every level of European society. Many of the Church leaders were negatively obsessed with sex, to a degree unknown in early Christianity, and this antisexuality was perpetuated by both ecclesiastical and Church-influenced secular law.
It might be expected that the Reformation would have produced a freer society—one less inclined to sexual suppression and less controlled by an alliance between church and state—but as we have indicated in earlier installments of The Playboy Philosophy, it had no such effect.
Many of the original settlers in America left the Old World to escape religious persecution, so it might be supposed that here, finally, man would seek the personal moral and religious freedom that had been so long denied him. Indeed, our own founding fathers took seriously the lesson to be learned from the centuries of religious tyranny in Europe and gave us a Constitution and a Bill of Rights that guaranteed the separation of church and state (that they might both be free); and Thomas Jefferson wrote, in the Declaration of Independence, of each individual’s unalienable rights to life, liberty and the pursuit of happiness.
But how successful have we been in protecting these ideals for both ourselves and our fellow citizens? Just how personally free is each one of us in modern America? The dream of individual freedom persists, but are we actually allowed to live our own lives, rejoice in our liberty, and pursue our personal concepts of happiness—limited only by the extent that we infringe upon the like rights of others?
Incredible as it should seem, and despite all Constitutional guarantees to the contrary, we do not enjoy a true separation of church and state in the U.S. today. Each citizen in our democracy has a right to expect that the laws of his government have been established and will be enforced in a rational manner consistent with the aims and protections of the Constitution. But many of our laws are not based on any such premise; they are evolved, instead, from old ecclesiastical laws, from religious beliefs and dogma, to which some of our citizens subscribe, and many others do not.
Liberal religious leaders are among the most outspoken opponents of this church state alliance, but much of this church-state alliance, but much of the organized religion in America still includes a distinct element of antisexualism—a carryover from the teachings of the medieval Church and the Protestant Puritanism that followed it. And it is, therefore, in our laws related to sex that we find the greatest church-state intrusion upon our personal freedom.
Sex and the Law
Today, in the U.S., we have religiously oriented statutes limiting freedom of speech and press, statutes regulating personal sex behavior, marriage, divorce, birth control, abortion and prostitution, that are based not on a concern for the health, happiness and welfare of the individual, but upon various concepts of religious morality. Thus sin and crime become intermixed and confused—and the religious views of a portion of society are forced upon the rest of it—through government coercion—whether they are consistent with the personal convictions of the individual or not.
We will consider, in this issue, some of the specific statutes regulating private sexual behavior and the extent to which these laws are at odds with the sex practices of a sizable portion of the population—making us a nation of criminals. Some consideration will be given, too, to the wide disparity in the sex laws of the various states—making it possible, quite literally, for a couple to indulge in intimacies within the privacy of their home that are perfectly legal, while another couple engaging in the same activity in a house a block away (but in the jurisdiction of an adjoining state) is guilty of a crime that carries a ten-year prison sentence. We will also discuss the wholly arbitrary manner in which these various laws are enforced, or not enforced, and the effect such law enforcement has upon the entire fabric of law and order, in addition to the injustices thus perpetrated.
In our examination of U.S. sex law, it should not be assumed that we necessarily approve of all of the behavior thus brought under legislative control of the state. We will establish, in a later installment of this editorial series, what we personally consider to be healthy sexual morality for a rational society. The point to be made here is not that we find this sex behavior either moral or immoral, but that the moral questions involved - when they relate to private sex between consenting adults—are the business of the individual and his personally chosen religion, and not the business of our government.
It must be mentioned, too, that this view of the matter is shared by a number of our most highly respected religious leaders and with a majority of the leading legal minds who constitute the American Law Institute, which authorized the publication of a Model Penal Code in 1955 recommending that all consensual relations between adults in private should be excluded from criminal law. The logic underlying this recommendation was that “no harm to the secular interest of the community is involved in atypical sex practice in private between consenting adult partners” (and, as we shall see, much of the behavior legislated against is anything but atypical); and, further, that “there is the fundamental question of the protection to which every individual is entitled against state interference in his personal affairs when he is not hurting others.”
Although this Model Penal Code to govern behavior was published nine years ago, no state has yet reshaped its laws along the lines recommended by the Law Institute—despite the fact that one of the primary purposes of this illustrious judicial body is the drafting of such model codes as a guide to making more uniform and reasonable the statutes in all 50 of the United States.
Marriage and Divorce
Sin and crime are not synonymous. As Morris Ploscowe, a former judge of the Magistrates' Court of the City of New York and presently Adjunct Associate Professor of Law at New York University, points our in the preface to his book Sex and the Law: “The fact that certain behavior is sinful should not necessarily make it criminal. The policeman, prosecutor and jailer cannot replace the priest, minister or rabbi in the control of sex behavior.” Not attending church, temple or synagogue, eating meat on certain days, or eating certain kinds of meat at any time, are sins to some members of our society, but they are not crimes. In the final analysis, personal morality (sexual or otherwise), when it does not infringe upon the rights of others, should be left to the determination if the individual.
No one can reasonably question the powerful role that sex plays in all our lives. It is a dominant force in society. It can be a force for either good or evil, but sex in itself is neither.
Some believe that the sole, or primary, purpose of sex is procreation, but there is a great deal more to sex than that. It is the single greatest civilizing force on earth. Without this attraction between the sexes, the world would be a very strange, barbaric place. Our society, its culture, its interest and desires, and many of our major motivations are based upon sex.
Because of its power, man early learned to fear sex, and in pre-Christian societies, many worshiped it. Christianity changed the fear into aversion and sex became associated with guilt and shame. To cope with this force within them that they did not understand, early Christians established complex laws to control sex. These religious laws have been handed down through the centuries to the present day, and form the basis for our own social and legal controls over sex.
Ploscowe comments, “Our legal and social attitudes toward sex bear the unmistakable imprint of early doctrines of ascetic Christianity. Sex was evil to the early Christians, while the absence of sexual activity, virginity, and chastity were great goods. All forms of sexual relations between unmarried persons were mortal sins. Even sexual thoughts unaccompanied by external acts were sinful. Sex activity was permissible only in marriage, whose necessity was grudgingly recognized by the early Christians.”
Marriage thus became the answer developed by society to satisfy the sex drives of men and women. But what about the two thirds of our society who are biologically adult, but unmarried? For them our society has supplied a simple, if unrealistic, answer: abstinence.
Marriage thus becomes a church-state license to practice sex. Without this religious-governmental approval, sex is forbidden. Thus, in a supposedly free society, our most personal actions are regulated by the state.
Sex is so vital to marriage that a marriage may be annulled where one of the members of the union proves incapable of performing coitus. Moreover, prolonged sexual intimacy between two unwed individuals may actually create a state of marriage (common-law) in the eyes of the state.
The precise legal nature of marriage in our society is not easily understood. It is a good deal more than a civil contract. As Ploscowe points out, “If the parties to a commercial agreement are not satisfied with its terms, they may without consulting any public authority rescind or modify them. What they do with a contract is their own concern.”
No such freedom exists in marriage. A husband and wife cannot, of their own volition, agree to dissolve a marriage contract. A divorce or annulment must be granted by the government, and it must be legally sufficient reasons, and not simply because the two parties involved desire it. What is more, the legal reasons for granting a divorce rarely have anything to do with the real reasons the two parties have for requesting it.
Ploscowe states, “[Our] conception of marriage stems from the Roman law. But the lawyers of imperial Rome could call a marriage a civil contract with much more justice than American lawyers, for Roman law permitted men and women to dissolve their marriages at their own will and pleasure, without he intervention of any public authority. Our law has never given married people this authority.”
Control over marriage gives the government control over sex. This need not be true, but is this case on our society, because sex is limited by law to the married.
Control over sex is not he only reason that society is interested in the institution of marriage, however. Marriage and the family are considered an essential part of our social structure and, as expressed by the court, in a New York divorce decision (Fearon vs. Trenor): “Marriage…is more than a personal relation between a man and a woman. It is a status founded on contract and established by law based on principles of public policy affecting the welfare of the people of the state…. From time immemorial the state has exercised the fullest control over the marriage relation, justly believing that happy, successful marriages constitute the fundamental basis of the general welfare of the people.”
But if marriage is truly to be an institution which serves the general welfare of the people, a great many laws and administrative procedures require serious re-evaluation. Whose welfare is served by divorce laws totally unrelated to the actual causes for the dissolution of a marriage? How can a court even begin to come to grips with the problems it faces in a suit for divorce, if the statutes regulating the court’s decision stipulate only synthetic, legally acceptable conditions that must be “met” in order for a husband and wife to end an unwanted marriage?
Each of the 50 states has its own particular set of divorce statutes—some lenient, some strict. The stricter the statutes, the more artificial, and unrelated to the actual causes of divorce, they are apt to be. Nor are the stricter divorce laws any serious deterrent to the breakup of an unsuccessful marriage.
A couple desiring a divorce simply goes to a more lenient state to secure it or, more frequently, they tailor their divorce complaint to suit their own state’s requirements. In other words, with the able assistance of their attorneys, they perjure themselves. And here we have the first example, with a great many more to follow, of how unrealistic sex statutes turn ordinary citizens into criminals.
“The fewer the grounds for divorce,” states Ploscowe, “the greater the incentive to commit perjury.”
New York is an excellent example of a state with a strict divorce law: The only ground for divorce in New York is adultery. That is the requirement that must be met in New York, if a couple wishes a divorce—adultery. The Bible says, “Thou shalt not commit adultery”; but the State of New York says, “If you want a divorce, you must!”
Despite what may appear to be a state sanction of sin, a majority of New Yorkers seeking an end to an unhappy marriage seem to prefer some manner of legal subterfuge to extramarital sex. This we were recently privileged to witness the wife of the Governor of New York journeying to another state to secure a divorce on grounds that were not legally acceptable in her own state.
More often, however, New Yorkers get their divorces at home—and if an adulterous affair is not to their liking, the state simplifies matters by making subterfuge and perjury easy: The law does not require actual proof of sexual intercourse to grant a divorce on the ground of adultery; it is sufficient if there was an opportunity to commit adultery and what the statute refers to as an “adulterous disposition.” Thus, a husband need only register at a hotel with a woman who is not his wife, followed shortly thereafter by a prearranged raiding party that conveniently discovers the pair in a state of partial undress or in a “compromising position.” This is enough to justify the granting of a divorce.
As a result, a thriving business has sprung up that caters to this need for prearranged “adultery.” In 1948 a group of such “divorce mill” specialists was exposed and indicted in New York. They offered two kinds of service to husbands and wives who were seeking divorce: (1) the set-up job, similar to the hotel-room raid described above, complete with an “unknown woman” (or man, as the case might require); and (2) the testimony job, which was simply perjured testimony about such a raid, concocted in the corridors of the courthouse. Hundreds of divorces were secured by this ring, whose nefarious doings were discovered when one of their professional “unknown women,” a Mrs. Sara Ellis, became upset over the small fees she had been receiving (eight to ten dollars a case).
How does any of this serve the general welfare of the people? Obviously, it does not. Our divorce statutes are based, for the most part, not on reason or any real concern for public welfare, but on religious convictions that are unrelated to the social problems that both cause divorce and are the result of it.
The current irrational state of affairs in divorce legislation can be corrected, and the general welfare of the people best served, by (a) establishing uniform divorce laws in the 50 separate states; and (b) relating those laws to the actual causes of divorce.
As we shall see, the problem of uniformity is a serious one that appears throughout all of our U.S. sex legislation. It is responsible for what is termed migratory divorce—a discrimination situation which permits those able to afford it to seek divorce in a state other than their own where the legislation is more lenient by setting up temporary residence there. This is not only unfair to citizens of lesser financial means, it can also produce cases like the following that occurred in Wisconsin in 1948: A man and woman were married in that state. They separated, the wife moving to Minnesota. The husband then obtained a divorce in Wisconsin; under Wisconsin law, the divorce was not final for one year. During the year, the woman remarried in Iowa. Under Iowa law this second marriage was valid—the Wisconsin one-year waiting period notwithstanding. The newly married couple returned to Wisconsin and set up house. They were both convicted of adultery, because under Wisconsin law the wife was still married to another man (State vs. Grengs).
Divorce laws should not only be uniform in all the states, they should be based on the actual reasons for seeking an end to a marriage, even when the reason is no more complicated than the fact that a couple no longer cares for each other. It is to the best interests of the husband and wife, as well as to the best interests of the court and society as a whole, to permit the couple contemplating divorce to seek it on honest grounds. By thus encouraging a frank and open discussion of the marital problems that produced the proceeding, the court is in the best possible position to deal with the problems and possibly save the marriage.
Where children are involved, a special attempt should be made to salvage the relationship, through the introduction of professional counseling and a period of readjustment. Failing in this, however, the divorce should be granted on the simple and quite honest basis that the couple no longer wishes to remain husband and wife. Society does not benefit from the forced perpetuation of a marriage that is no longer desired by the couple involved. More harm is done to children raised in a family torn by disunity, tension and personal dissatisfaction than results from a broken home.
Permitting divorce to be granted on the basis of mutual consent, instead of requiring a couple to meet arbitrary and often artificial legal requirements, would maximize the court’s chances of saving the marriage by eliminating the significant element of subterfuge in present divorce hearings. Despite this face, Ploscowe observes ironically, in Sex and the Law: “Divorce by consent may have been good enough for the heathen Romans of imperial Rome under the dictum that ‘if marriages are made by mutual affection it is only right that when the affection no longer exists it should be dissoluble by mutual consent.’ It may have appeared attractive to the mountaineers of the Swiss cantons. It may have appeared desirable during periods of revolution and disorder like the French and Russian Revolutions, when all institutions of society tend to break down. Divorce by consent may even have been urged by great men such as John Milton, Sir Thomas More, Jeremy Bentham, and John Stuart Mill. However, divorce by consent has never been recognized by English or American law.”
It is feared that more realistic and, therefore, more seemingly liberal laws would appreciably increase the rate of divorce, but even if the perpetuation of unwanted marriages could be rationalized as beneficial to society, it is doubtful that the present statutory hodgepodge achieves that end. Despite the seeming strictness of our present statutes, divorce itself is commonplace and can be secured with relative ease by any couple so inclined. At the turn of the century, there was approximately one divorce for every 12 marriages; by 1930, the ration had jumped to one out of every six: today, approximately one marriage in four winds up in the divorce courts.
Whatever else they may prove, these statistics make one fact abundantly clear: For a sizable section of our society, “trial marriage” is not just an interesting social theory—it is a way of life. If a person becomes dissatisfied with his or her choice of mate, one can always obtain a divorce and try again. We may pretend to live in a monogamous society, but a great many of us are practicing what has been called sequential polygamy.
The polygamous nature of our society—all pretense to the contrary—prompts a side observation on marriage and religious freedom, unrelated to the problem of divorce: The Mormon Church historically countenances polygyny, in which one husband is permitted to take several wives—all of whom dwell in a single household, with their assorted offspring. Despite the question of religious freedom clearly involved, the government prosecutes as bigamists any followers of the faith who take their religion seriously in this regard; the Biblical injunction to “be fruitful and multiply” has U.S. government approval only so long as it is done with one spouse at a time.
Though the majority of us undoubtedly prefer our mates in sequence—and, indeed, most husbands find the problems presented by a single wife quite sufficient—it is difficult to see how the welfare of society is served, when a man wished to take a new mate, by forcing him to desert his original family.
Returning to the problem of divorce, it seems doubtful that stricter laws would help matters any—they would simply intensify courtroom subterfuge and render the courts even less effective in dealing with the actual causes of marital mishap.
Divorce should also be recognized as a symptom of social disease, rather than the disease itself; attempts at cure should logically be directed more at the disease—marital unhappiness—than at the symptoms, especially since the request for a divorce represents one of the last stages of an unstable marriage, when the chances of cure are appreciably less than they might previously have been.
It should also be recognized that the substantial increase in the divorce rate over the last half century does not necessarily represent a comparable increase in marital disharmony. It is reasonable to assume that the greater number of divorces is more the result of a lessening of society’s taboos in that area and our increased emphasis on the importance of individual happiness in present-day society; unhappy marriages were probably just as common in 1900 as they are today, but contemporary men and women are more inclined to do something to solve their unhappiness.
If society is sincerely interested in happy, successful marriages as being in the best interests if the public welfare, what is needed is stricter marriage laws, not stricter laws on divorce. We will expand, in a later issue, on our belief that too easy and too early marriages are the primary causes of marital unhappiness and failure. But we should recognize here the extent to which society and the estate produce early and subsequently unhappy marriages.
By making marriage a church-state license to enjoy the pleasures of sex—by making sex outside of marriage a social and legal taboo—our society supplies a tremendous impetus to early marriage, whether couples are emotionally, psychologically and economically prepared for it or not.
Laws limiting the marriage of children, and the mentally and emotionally incompetent are too lax. Indeed, if an underage couple eloped and the union has been sexually “consummated,” our irrational religious heritage lends strong argument to allowing the marriage to stand, whether or not the couple is mature enough to comprehend and undertake the responsibilities inherent in marriage and the raising of a family.
So-called “shotgun” marriages may even force one member in a relationship into marriage against the person’s better judgment, because there has been sexual intimacy or, more often today, because that intimacy has resulted in pregnancy. If a literal “shotgun” attitude still persists and society seems more anxious to force the unprepared into wedlock than to properly educate the young in how to avoid unwanted pregnancy or solve, in any rational and humane manner, the problem of undesirable pregnancy (through legal abortion) when it does occur.
If an engagement prior to marriage is seen as a period during which a man and woman are allowed a time of close acquaintanceship that they may better judge if each is best suited to the other, then the entire legal history of breach-of-promise suits is irrational—wherein a person (almost always the male), once having proposed marriage, is penalized (and sometimes heavily) for changing his mind.
The observation has been made that in breach-of-promise actions the average jury, historically generous with other people’s money, utilizes two prime considerations in the computation of damages: (1) the plaintiff’s beauty; and (2) the ability of the defendant to pay. As a result, verdicts have been generous and appellate courts have sustained damages ranging from $500 to $45,000 against charges that they were excessive. In one New York case, the plaintiff had admitted that she did not love the defendant. She was 29 years of age and the defendant was 84 and partially palsied. However, his fortune was estimated at $15 million. The offer to marry the plaintiff was made only a few days before the breach-of-promise action was taken. Nevertheless the jury awarded the plaintiff $225,000, which the appellate court reduced to $125,000. In a Michigan case, the jury awarded a woman the sum of $450,000, which was reduced to $150,000 by the court.
Ploscowe comments, “These verdicts, however, present only a partial picture of the social consequences of the breach-of-promise action. Large numbers of breach-of-promise actions are settled outside of court because of the consequences which might flow from publicity which this type of action entails. No man of prominence or social position can afford to have his love life aired in the way that the tabloid press has made familiar. As a result, the adventuress and the gold digger are presented with an unparalleled opportunity for shakedown and blackmail.”
Our legislatures and courts have finally come to recognize the undesirable nature of breach-of-promise suits and approximately 17 states, including New York, have now outlawed such actions. Breach-of-promise suits should obviously be abolished in all states.
No human act between two people is more intimate, more private, more personal than sex, and one would assume that a democratic society that prided itself on freedom of the individual, whose Declaration of Independence proclaimed the right of every citizen to life, liberty and the pursuit of happiness, and whose Constitution guaranteed the separation of church and state, would be deeply concerned with any attempted infringement of liberty in this most private act.
But our society still carries the searing brand of antisexualism inherited from the medieval Church of Europe and the Puritanism of England and so, while America has been traditionally permissive in most areas of human behavior, we have been restrictive in matters of sex.
We have prized virginity and chastity, especially in women, and proclaimed that sex outside of the married state is wrong. We have reinforced this religious viewpoint at every level of secular society and the state has further established this restriction by legislative edict: non-marital and extramarital sexual intercourse between adults is prohibited under statutes covering fornication, adultery and lewd cohabitation in 48 of the 50 states and the District of Columbia (excluding only California and Tennessee), as well as the Federal Mann Act where interstate activity is involved.
This behavior, publicly condemned throughout most of our society, and forbidden by both state and federal law, is privately practiced—not by a select minority—but by a considerable majority of our adult population. Nonmarital coitus (fornication) is engaged in by approximately 90 percent of adult males, according to Dr. Alfred C. Kinsey and his research associates at Indiana University (Wardell . Pomeroy, Clyde E. Martin, Paul H. Gebhard), in their monumental study of U.S. sex behavior, published in two volumes, Sexual Behavior in the Human Male and Sexual Behavior in the Human Female.
Dr. Kinsey and his associates found that sexual activity varies greatly, in both form and incidence, depending upon educational and social backgrounds. Among males who go to college, some 67 percent have sexual intercourse prior to marriage; among those who receive some high-school education, but do not go further, approximately 84 percent have premarital intercourse; and among males who do not go beyond a grade school education, the accumulative incidence figure is 98 percent. Kinsey reports that in some groups among the lower social levels, it is virtually impossible to find a single male who has not had sexual intercourse by the time he reaches his mid-teens. In addition, nearly all men (about 95 percent) who have been initiated into regular coital experience in marriage, continue to engage in sexual intercourse after their marriages have been terminated by the spouse’s death, by separation or divorce. They “repudiate the doctrine that intercourse should be restricted to marital relations. Nearly all ignore the legal limitation on intercourse outside of marriage. Only age finally reduces the coital activities of those individuals, and thus demonstrates that biological factors are, in the long run, more effective than man-made regulations in determining the patterns of human behavior.”
Kinsey comments on the nature and number of partners that may be involved in premarital intercourse for the male: “There are males, particularly of the upper social level, who may confine their premarital intercourse to a single girl, who is often the fiancée. There are males who have some dozen or scores of partners before they marry, in some cases, lower-level males may have intercourse with several hundred or even a thousand or more girls in premarital relations. There are quite a few individuals, especially of the grade-school and high school levels, who find more interest in the pursuit and conquest, and in a variety of partners, than they do in developing long-time relations with a single girl.”
Although our society places the strongest taboos upon women engaging in sexual intercourse outside of marriage, approximately 50 percent of all females have premarital coitus. Unlike the men, however, the higher educational and social level females tend to have a higher, rather than a lower, percentage with nonmarital sex experiences; among women with a college education, approximately 60 percent have premarital intercourse. Postmarital sex for females, who have lost their spouses through death, or separation or divorce, follows the same general pattern as with the men—once a woman has engaged in regular coital experience as a part of marriage, she tends to continue to engage in such experience after the marriage has ended. Significantly, with both men and women, the percentage of total sexual outlet through coitus continues to be approximately the same after the conclusion of a marriage as it was within it.
In contrast to U.S. laws forbidding nonmarital sex, Kinsey comments, in Sexual Behavior in the Human Male: “Premarital relations have been more or less openly accepted in most of the other civilizations of the world, in the Orient, in the Ancient World, and among most European groups apart from the AngloAmerican stocks.” And in Sexual Behavior in the Human Female, Kinsey states: “There is no aspect of American sex law which surprises visitors from other countries as much as this legal attempt to penalize premarital activity to which both of the participating parties have consented and in which no force has been involved…. There is practically no other culture, anywhere in the world, in which all nonmarital coitus, even between adults, is considered criminal.”
In England, which shares with us a common Puritan heritage, there are no specific laws prohibiting fornication or adultery. In the United States, however, 38 states have specific statutes forbidding fornication—a single act of coitus between consenting adults. The penalties for fornication range from a $10 fine in Rhode Island to a $500 fine and five years in prison in South Dakota.
Arizona, Arkansas, California, Delaware, Iowa, Louisiana, Maryland, New Mexico, New York, Oklahoma, Vermont and Washington have no state statutes prohibiting fornication, but Arizona, Arkansas, Louisiana, New Mexico and Washington do have laws prohibiting lewd cohabitation—a habitual relationship or one in which an unmarried couple lives together as man and wife. Alaska law prescribes a maximum fine of $500 or two years' imprisonment for fornication, or both; Connecticut specifies a $100 fine or six months in jai as a maximum penalty; North Carolina law calls for a fine and/or imprisonment, “as the court may direct”; Colorado law imposes a $200 fine or six months; imprisonment as the maximum for the first offense, a doubling of the sentence for the second conviction, and so on.
Cohabitation is defined as a habitual sexual relationship or one in which an unmarried couple lives together as man and wife. Fourteen states have specific statutes prohibiting cohabitation. It would seem logical for society to prefer sexual liaisons of a more permanent nature to the more casual, indiscriminate variety, but logic has very little to do with our sex laws and, in general, the penalties for cohabitation are more severe than for random fornication. Arizona, which has no statute prohibiting fornication, does have one against cohabitation, with a maximum sentence of three years' imprisonment; Maine, with a $100 fine and 60-day jail sentence for fornication, has a maximum penalty of $300 and five years for cohabitation; Massachusetts, with $30 or 90 days for fornication, raises the sentence to a maximum of $300 or three years for cohabitation; Arkansas, with no statute prohibiting either fornication or adultery, stipulates a penalty of $20 to $100 for cohabitation on the first conviction, a $100 minimum or one-year maximum for the second conviction, and one to three years' imprisonment for the third.
Some fornication statutes actually read more like cohabitation laws, as in South Carolina, where the statute reads: “Must be habitual or parties must live together…. Not less than $100 nor more than $500, or imprisonment for not less than six months not more than one year, or both fine and imprisonment, at the discretion of the court.
The Alabama law against fornication also has this cohabitation aspect to it; it is written specifically to discourage a continuing relationship between the same two partners: "Not less than $100 and may be sentenced to the county jail for not more than six months; on second conviction with the same person, not less than $300 and may be imprisoned in county jail for not more than 12 months; and on third conviction with the same person, shall be imprisoned in penitentiary for two years.”
The Mann Act
In addition to the individual state statutes, there is a federal law, commonly referred to as the Mann Act, that is used to prosecute persons who engage in illicit sexual activity, where interstate travel is involved. Though officially titled the White-slave-traffic Act, and passed by Congress in 1910 for the specific purpose of curbing interstate prostitution, the law states, “Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for…any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose…shall be deemed guilty of a felony.” The federal courts have interpreted “any other immoral purpose” to include fornication—sexual intercourse between consenting adults—and the penalty is a maximum fine of $5000 or five years in prison, or both; if the girl involved is under the age of 18, the potential penalty is up to $10,000 and imprisonment for up to ten years.
The first unfortunate fellow to be convicted under the Mann Act was a Californian named Caminetti who took a female friend to Reno with him for a weekend. Alan Holmes commented on this case in an article on the subject in Playboy (The Mann Act, Playboy, June 1959): “Clearly, it not had been the intent of Congress to apply the Mann Act to this kind of peccadillo—but in order to revise the law to conform to its original purpose, some brave congressman would have had to propose an amendment which would surely result in his being tagged throughout the land as an advocate of sin. A congressman that brave was not to be found at the time, and none has appeared since.
"Appellate courts have consistently ruled, therefore, that premarital intercourse comes under the heading of ‘any other immoral purpose,’ even though it isn’t even illegal in many states—New York for one. Thus, in that state it is not illegal to crawl into the sack with a girl, but it is a serious crime to drive her there from another state with the intention of doing so.” Mr. Caminetti’s weekend in Reno cost him a $1500 fine and 18 months in prison.
In his article for Playboy, Holmes describes the strange workings of this law: “Let’s suppose that you live New Jersey. One bright morning at the office you spot a new addition to the staff: a soft auburn hair, cute face, big wide-set eyes and a lovely pneumatic figure. It turns out that she lives in your town, too; she’s 23 and a B.A. from Bennington. You move in and your expense is rewarded with a date on the following Friday for dinner and a play in Manhattan. You pick her up on the appointed night and you roll through the Lincoln Tunnel into the glittering world of midtown Gotham after dark. You stuff her with seafood coquille and tournedos at Le Chanteclair and get her to the theater just as the curtain rises. So far, so good. But you really have no idea how far you can get with this girl. Being basically a pessimist, you don’t expect much more than a few kisses at her doorway. But as the evening progresses, so do you; the dear little thing proves far friendlier than she looks, and you end the evening in a small suite in a Gramercy Park hotel.
"Next day you discreetly describe the girl’s warm and affectionate nature to your best buddy, who promptly decides that he is just as deserving as you are. He makes a date and takes her across the Hudson, too, fully expecting to follow in your fortunate footsteps. Alas, he scores a goose egg; he leaves her at her doorstep with the warm memory of a sincere-type handshake to speed him on his way.
"A serious federal offense has been committed here. By you? Not at all. By your friend, who could be dragged off to the penitentiary for five years and fined $5000 to boot. He has violated the Mann Act, though he got nothing but a handshake for his pains. You, who enjoyed the fullest pleasure the lady had to offer, could not be booked for so much as jaywalking. You are completely in the clear….
"The ‘crime’ the Act condemns is not ‘immorality.’ It is the transportation of a woman with an immoral intent. Once you take her across a state line (with the lurking thought that you may score), the crime has been committed, no matter what happens next—or doesn’t happen. Your friend broke the law because he had an ‘immoral’ intent when he took Miss Bennington through the Lincoln Tunnel. You, not even considering the possibility of making out (until after all the transportation was over), are in the clear.”
Because it is transportation for an immoral purpose that the law forbids, a businessman was charged with a violation of the Mann Act when, after a few days' vacation in Florida, he became lonely and wired a girlfriend, with whom he had previous relations, to join him there. His wire included the cost of air transportation; she caught the next flight to Miami Beach, and they spent the rest of his vacation there together. At vacation’s end, they had a quarrel, but being a gentleman he saw to it that she was returned safely home. Subsequently, on her testimony, the man was charged with and convicted of violating the Mann Act.
Because the intent to commit an immoral act is all that is required, the man could have been convicted of violating the Mann Act even if the girl had refused to join him in Florida. Even if he had not paid for her transportation, he could have been found guilty, because the law specifies that to “induce” or “entice” is sufficient—thus, theoretically, the mere invitation, with the expectation of sexual intimacy, would have been enough.
Holmes notes, “If you make arrangements with a young lady to spend the night in a hotel room in another state, and you and she travel there in separate cars, at different times, you have nevertheless broken the law if you ‘persuaded, induced, enticed, or coerced’ her to go. (Money, incidentally, is readily recognized as a powerful ‘persuader,’ etc.) On the other hand, if the whole thing was her idea in the first place, there is no violation. Nor can a woman be convicted under the Mann Act for transporting herself across a state line, though she can be held liable for transporting another woman. There is no section in the Act which makes it a federal crime for either a man or a woman to transport a man across a state line for immoral purposes.”
For those unfortunate enough to live in the District of Columbia, matters are worse still. In our nation’s capital, you don’t even have to cross a state line to violate the Act—all you have to do transport, with the necessary immoral intent, of course. “If you are taking your girl home in a Washington taxi and the possibility of spending the night with her flits through your mind,” observes Holmes, “you have just violated the Mann Act. If you walk her home, however, you’re safe—but don’t get gallant and carry her into her apartment. (To be really and truly safe, you can do no better than follow the dictum of the Court of Appeals for the District of Columbia, which recently held that ‘about the only place where sexual intercourse can take place without running athwart the local law is in an anchored balloon.’)”
The most notorious prosecution under the Mann Act was that of famous comedian Charlie Chaplin, when the government charged him with the violation for taking a cross-country train trip with a comely young “protégé”; she later proved the wisdom of Congreve’s 17th century adage about the fury of a woman scorned when she became the state’s star witness against poor Charlie. He escaped the Mann Act charges, but she nailed him with a paternity suit, even though medical evidence, held inadmissible by the court, proved conclusively that he was not the father of her child.
A popular song of a few years back musically endorsed the pleasures of “love on a Greyhound bus.” Enjoyable they may be, but if the bus crosses any state lines, you’ll be wise to get out and walk.
In our society, adultery is generally held to be a worse sin than fornication. This is reflected in our state statutes which tend to treat this behavior as a crime warranting more severe punishment.
Adultery is forbidden in the Ten Commandments, which play an important part in both the Christian and Jewish religions. It doesn’t matter that the original Judaic injunction against adultery was primarily concerned with property rights (when a wife was considered her husband’s possession); nor that the admonition historically applied only to women (it was not thought improper in olden times for married men to have sexual intercourse with other than their wives). The antisexualism of the Middle Ages imbued adultery with its present sexual significance and broadened its prohibition to include male and female alike (though even today society is more tolerant of the adulterous husband than wife).
Statutes forbidding fornication and adultery have no historical basis in common law—traditionally this behavior has been dealt with by the ecclesiastical court; consistent with its origin as a violation of property, however, common law has permitted the innocent spouse to claim damages through civil action.
Fornication is easily defined as illicit sexual intercourse between two unmarried individuals, but a legal definition of adultery is not quite so simple. What distinguishes adultery from fornication? The married state of one or both of the partners in illicit coitus is the determining factor, but beyond that the definition is variously applied. Suppose a married man and a married woman were to have intercourse with a single woman and a single man; which of the four would be guilty of adultery and which of fornication? Some would hold that all four—married and unmarried—would be adulterous, since one member of each relationship was married; others would consider that the three of the four had committed adultery—excluding only the single female who had intercourse with the married man; still others would say that two of the four had committed adultery, though they would not necessarily agree on which two—some suggesting that only the pair who were married were guilty of adultery and some stating that the married woman and her lover were the adulterous ones; and still others would argue that one of the four had committed adultery—excluding all but the married woman. Here we find a differentiation of definition dependent not only upon the marital state, but also the sex of the participants in illicit coitus—varied viewpoints that have their origin, of course, in the fact that prohibitions of adultery originally applied only to married women.
On this confusion, Ploscowe writes, “The Roman law, which influenced much of our thinking on this question, differentiated between the illicit sexual intercourse of a married man and that of a married woman. A married man might have sexual intercourse with a single woman and not be guilty of adultery or any other crime. A married woman was guilty of adultery whenever she had sexual intercourse with a man who was not her husband, whether that man was married to someone else or was single. In such a case, both the married woman and the paramour were guilty of adultery.
"These Roman-law conceptions may be encountered in common-law views on adultery. While adultery was not generally regarded as a crime at common law, it might still be on the subject of a civil suit for damages…. If an Englishman wanted a divorce, he had to bring an action first for criminal conversation based on the adultery of his wife. Only a husband could bring such an action. A wife could not sue another woman for damages because the latter had made love to her husband. Adultery was therefore defined as common law as at Roman law; the sexual intercourse with another man’s wife was adultery.
"Many of our modern criminal statutes on adultery are interpreted in the same way, making sexual intercourse with another man’s wife adultery and sexual intercourse by a married man with a single woman fornication or no crime at all. The justification of this distinction between married men and married women, with respect to extramarital sexual intercourse, has come down to us from medieval times and is reiterated by modern cases. For example, in this case of State vs. Armstrong, the court stated: ‘…the gist of the crime, independently of statutory enactments, is the danger of introducing spurious heirs into a family, whereby a man might be charged with the maintenance of children not his own, and the legitimate offspring be robbed of their lawful inheritance. That an offense which may entail such consequences upon society is much more aggravated in its nature than the simple incontinence of a husband, few can doubt….’ ”
But Plascowe notes, “If this rationale were adequate, sexual intercourse with a married woman who was unable to bear children should not be adultery. We have been unable to find any judicial decision which makes such an exception to the adultery statute.
"The English ecclesiastical law took an entirely different approach to adultery than the Roman law…. Adultery was defined by the ecclesiastical [court] as ‘the inconstancy of married persons, a sin arising out of the marriage relation,’ which was equally great whether the offender was male or female….”
This view of adultery was adopted by the early American courts and has also received statutory sanction in many states. For example, in the Massachusetts case of Commonwealth vs. Call, the defendant, a married man, was found guilty of having intercourse with Eliza, a single woman. Call contended that this was adultery, stating in its opinion, “Whatever…may have been the original meaning of the term adultery, it is very obvious that we have in this Commonwealth adopted the definition given to it by the ecclesiastical courts…. We hold the infidelity of the husband as well as that of the wife the highly aggravated offense constituting the crime of adultery.”
This religious interpretation of the word is specifically adopted by a number of state statutes; for example, the New York Penal law reads: “Adultery is the sexual intercourse of two persons, either of whom is married to a third person.” Under this type of statute, both the man and the woman are guilty of adultery, only if one of the parties (either one) is married.
There are other states, however, which hold husbands and wives to the same standards of sexual fidelity, but make distinctions between the guilt of the single partner in illicit intercourse and the married one. In these statutes, the single partner is deemed guilty of fornication and the married one is declared guilty of adultery.
Ploscowe adds this postscript, which helps underscore the earlier Roman definition of adultery as a crime involving married women: “At the end of 1961, it is interesting to note, the High Constitutional Court of Italy, the country’s highest tribunal, upheld a provision of the penal code enacted 30 years previously, under which a wife faces up to two years in jail if found guilty of adultery…. Under the law, however, a husband cannot be punished at all for simple adultery.” But whichever definition we apply to the term, the Kinsey studies of our sexual behavior make abundantly clear that all the combined church and state prohibitions have been notably unsuccessful in suppressing adultery in America. Kinsey’s statistics on extramarital sexual intercourse include only the incidences of extramarital coitus of married adults; the coital experiences of the partners in these relationships, when the partners are themselves single, appear in the studies as part of the premarital and postmarital calculations, even though this behavior is legally termed adultery by a number of the states. If these additional statistics were added to those that follow, the incidences for adultery would be, of course, much closer to those of other nonmarital intercourse.
Kinsey’s research indicates that approximately 50 percent of all married males have intercourse with women other than their wives at some time while they are married. Kinsey and his associates found a higher degree of cover-up and reluctance to supply answers on questions related to extramarital sexual experience than was evidenced in other part of their studies. The 50-percent figure is therefore considered a minimum one and the real figure is probably somewhat higher. Nearly three-quarters (72 percent) of the married males in a study conducted by Terman in 1938 expressed an interest in extramarital relations, and Kinsey’s extensive study revealed a “similarly high proportion” who expressed such desires. The gap between the desire for such experience and actual behavior must be viewed as the result of the strong taboos placed upon adultery in our society and on lack of opportunity.
As with premarital sex, educational and social backgrounds play an important role in determining the frequency and form of extramarital sexual activity. Married men of grade- and high-school education tend to have more extramarital coitus in the early years of marriage, but the incidence tapers off sharply with older married men; conversely, males with a college education tend to have fewer extramarital experiences in their first years of marriage, increasing the number of such relations in later years. The increasing incidence of extramarital coitus for married males with a college background can be understood as resulting from a lessening of the greater sexual inhibitions evidenced in early life by upperlevel males; Kinsey is unable to offer any similar explanation for the reverse trend in lower-level married males, however.
For most men, at every social level, extramarital intercourse is usually sporadic, occurring on an occasion or two with one female, a few times with the next partner, not happening again for some months or a year or two, but then occurring several times, or every night, for a week or even for a month or more, after which the particular affair is abruptly ended. Kinsey reports, “There are extreme instances of younger males whose orgasms, achieved in extramarital relations, have averaged as many as 18 per week for periods of as long as five years; but these are unusual cases. Lower-level males are the ones who are most likely to have more regularly distributed experience, often with some variety in females. Among males of the college level, extramarital relations are almost always infrequent, often with not more than or two or a very few partners in all of their lives, and usually with a single partner over a period of some time – in some cases for a number of years.”
In the study of the U.S. female, 26 percent admitted extramarital intercourse; among women with a college education, the incidence is somewhat higher, amounting to 29 percent. Here again, the coverup evidenced in this portion of the studies suggests that the true percentages are somewhat higher than those reported.
For both the male and female, there are few types of sexual activity which occur more irregularly than extramarital intercourse. This, as Kinsey points out, is primarily because of limited opportunities and the fear of discovery; in addition, many married persons sharply limit their extramarital relations in order to avoid emotional involvements which might seriously endanger their marriages.
It is interesting to note that Kinsey found nearly half of the women who admitted to extramarital intercourse stated that their husbands either knew about it (40 percent) or suspected it (9 percent). There are a variety of psychological and emotional, as well as some physical causes for extramarital intercourse in both sexes. We will not attempt, at this point, to evaluate the effect that extramarital sex may have upon a marriage relationship, though obviously the effect is far more dependent upon the attitudes of the person involved than on the sexual activity itself. The only point to be emphasized here is that these problems are personal ones and should remain the private business of the people involved; they are not the proper business of our government.
Nevertheless, 45 of the 50 states (excluding only Arkansas, California, Louisiana, New Mexico and Tennessee) have specific statutes prohibiting adultery. These laws are, in general, more severe than those for fornication, and range from a $10 fine in Maryland to a maximum penalty of $1000 or five years' imprisonment in Maine; Arizona, Idaho, Iowa, Massachusetts, New Hampshire, New Jersey and Wisconsin all have statutes with a maximum prison sentence of three years for conviction of adultery; in Michigan it is four years; in Connecticut, Maine, Oklahoma, South Dakota and Vermont, it is five.
Seventeen states have the same penalty for adultery as they do fornication; Florida has a $300 or 90-day maximum for fornication and a $500 or two-year maximum for adultery, however, and Illinois a $200 and six-month maximum for fornication, with $500 and one year for adultery; in Nebraska the maximum penalty for fornication is $100 and six months, while conviction on a charge of adultery can bring imprisonment up to a year; in Wisconsin fornication may bring $200 and six months, while adultery may be good for $1000 and three years.
Arizona, Delaware, Iowa, Maryland, New York, Oklahoma, Vermont, and Washington have no law against fornication, but do have statutes prohibiting adultery; no state has a law against fornication, but no law for adultery, though several have laws for neither, but prohibit illegal cohabitation (Arkansas, Louisiana, New Mexico); as we commented earlier, only California and Tennessee have no statutes prohibiting any of the three.
Alaska is the only state in which the penalty for fornication (maximum of $500 or two years for both) is greater than for adultery (maximum of $200 or 90 days), presumably because the Alaska fornication law has some of the elements of statutes prohibiting cohabitation. Hawaii is the only state that has different adultery penalties for men and women – $30 to $100 or three to 12 months or both for men; $10 to $30 or one to three months for women. Hawaii is a doubly unique among the states in that the greater penalty applies to the male, whereas society is generally more severe with women for such behavior (as exemplified by the two years' imprisonment for women for adultery in Italy, with no comparable penalty for men).
A study of the statutes of the various states affords us only a portion of the true picture of things, of course, since many laws exist that are not actively enforced. These sex statutes are, in fact, among the least enforced and least enforceable of any in existence in these United States. During the fiscal year of July 1959 through June 1960 in New York, for example, 1700 divorces were granted in New York City on grounds of adultery, but an analysis of the Annual Report of the Police Department for the same period fails to disclose a single arrest for the crime, which is punishable in New York with a fine up to $250 or six months in jail or both. The same evidence of adultery that is legally acceptable for the granting of a divorce is rarely then applied to a criminal prosecution for the activity.
However, some arrests and convictions for fornication and adultery do take place. For the year 1960, for example, the following typical municipal arrests for adultery were reported: Baltimore, two (both dismissed): Dallas, ten; Seattle, 31 (adultery and fornication). In 1959, Boston reported that two males and 17 females had been arrested and committed to a city prison for adultery; ten cases of fornication were similarly dealt with. Philadelphia reported the arrest of three adulterers.
The arbitrary and often capricious manner in which these laws are enforced constitutes a serious problem for the nation. By making the sexual behavior of the majority of adults illegal, these laws breed contempt for all law, and the fact of their being so widely unenforced induces disrespect for all law enforcement, in much the same way that Prohibition did in the Twenties. In addition, their existence permits them to be used by the unscrupulous for intimidation and blackmail.
Dr. Alfred Kinsey states, in Sexual Behavior in the Human Female: “The current sex laws are unenforced and are unenforceable because they are completely out of accord with the realities of human behavior, and because they attempt too much in the way of social control. Such a high proportion of the females and males in our population is involved in sexual activities which are prohibited by law of most of the states in the Union, that it is inconceivable that the present laws could be administered in any fashion that even remotely approached systematic and complete enforcement…. The consequently capricious enforcement which these laws now receive offers an opportunity for maladministration, for police and political graft, and for blackmail which is regularly imposed both by underworld groups and by the police themselves…”
Finally, these sex statutes stand as mute evidence of the extent to which we have failed to live up to the ideal of a free and separate church and state in America.