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."