Prosecution for Cohabitation
Fifteen states have laws against what is termed "lewd and lascivious" cohabitation, which, upon investigation, turns out to be nothing more than an unmarried couple living together as man and wife, or carrying on an extended affair in what is deemed to be an "open and notorious" manner. One might logically assume that society would prefer this more permanent sort of liaison to the promiscuous, hit-and-run variety, but it must be obvious by now that logic has nothing to do with our sex legislation and, in general, the penalties for cohabitation are greater than for random fornication. In fact, Arkansas, California, Louisiana and New Mexico, which do not have laws against either fornication or adultery, do have statutes prohibiting cohabitation.
And in Arkansas, the more constant a fellow is to the girl of his dreams, the rougher things get: His first conviction for living with the lady brings only a small fine ($20 to $100); the second conviction for cohabitation boosts the fine to a minimum of $100 and a maximum that is left to the discretion of the kindly old reprobate on the bench, who—should judicial ire be provoked by the defendant, for taking a local pussycat out of circulation with such an illicit bed-and-board arrangement—can elect to slap the fellow in the pokey for 12 months; the third time around, the constancy of the relationship is rewarded with a prison sentence of from one to three years.
On the other hand, if the same brash lad turned into a promiscuous version of the Arkansas Traveier, never tarrying in any one domicile for more than a night or two, he could visit every maid and madam in the community—including the judge's wife and daughter—with nary a fear of legal reprisal.
This tendency to deal more harshly with long-lasting relationships than with short-lived ones is also reflected in a number of the adultery and fornication statutes, which are worded in such a way as to make them actually laws against cohabitation. A number of lower court convictions for fornication and adultery have also been reversed by the higher courts, because no more than a single assignation, or two, was involved.
The prejudice against more permanent nonmarital affairs is justified by the proposition that they have a greater tendency to "debase and lower the standard of public morals," because they are less furtive, less secretive, are more open and available to public scrutiny. But we fail to see the logic in a legal position that promotes the promiscuous and prefers the hidden over honestly open; nor are we able to comprehend how the same act can be legal when it occurs more frequently.
The peculiar wrinkle in our sex legislation was conceived, we suspect, so that citizens could not easily enjoy the pleasures of hearth and home without the official church-state seal of approval. Such control over our private lives provides the Establishment with power; such power begets more power, which is used further to restrain us. It is a power that should rightly rest with the individual, we think, rather than with our government.
Two Cases of Adultery
A single act of nonmarital sex is sometimes quite sufficient, of course. And an act of adultery may be prosecuted, even when perpetuated with the approval of the spouse, an Oregon gentleman named Ayles learned the hard way. In the case of State vs. Ayles, a man was arrested for adultery for having had intercourse with a married woman. (As we have noted previously, in The Playboy Philosophy, February 1964, adultery is variously defined in the different states, sometimes including only the married members in extramarital affairs, and sometimes including the unmarried members as well.) During the trial Ayles offered to prove that the woman's husband had induced the adulterous relationship by leaving the couple alone, after making various remarks and innuendoes indicating to the defendant that whatever occurred would be all right with him. The Court excluded this evidence. The conviction was upheld on the ground that even if the husband had induced the relationship, the defendant was still guilty.
In an even more unusual case, commented upon in the February installment, intercourse between a husband and wife was construed to be adultery by the Court (State vs. Grengs, Wisconsin, 1948). The court record indicates that a man and woman were married in Wisconsin and subsequently 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 the second marriage was valid, despite the Wisconsin one-year waiting period. The newly married couple then decided to return to Wisconsin to live—and that was a mistake. They were arrested, tried and convicted of adultery, because under Wisconsin law the wife was still married to her first husband.
Sex and Uncle Sam
In addition to the state statutes, the federal government also has a law, commonly referred to as the Mann Act (after Representative James Robert Mann, who drafted it), which has been used prosecute acts of nonmarital sex. Though officially titled the White-slave-traffic Act, and passed by the U.S. Congress in 1910 to curb interstate prostitution, the law reads, "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 simple fornication—nonmarital intercourse between consenting adults—and the maximum penalty prescribed is a fine of $5000, or five years in prison, or both; if the girl involved is under the age of 18, the potential penalty is a $10,000 fine and/or imprisonment for up to ten years.
A young man who takes his girlfriend with him on a vacation is subject to prosecution under the Mann Act, if they travel from one state to another—even if neither of the states has laws against fornication. The young man may be found guilty under this law, even if he and his girl are not actually intimate; intention is sufficient: If he merely considered the possibility of their being intimate when he was making preparations for the trip, and she later refused him, he is guilty.
The first unfortunate fellow to be convicted in this manner was a Californian named Caminetti who took a female friend to Reno with him for the weekend. Writer Alan Holmes commented on this case in an article on the subject in Playboy (The Mann Act, June 1959), concluding: "Clearly, it had not been the intention 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....'" Mr. Caminetti's weekend in Reno cost him a $1500 fine and 18 months in prison.
Prosecution of Noncoital Sex
Just as the penalties for noncoital sex acts are more severe, so are they also more frequently applied. This is because, as Kinsey states, "There has been an insistence under our English-American codes that the simpler and more direct a sexual relation, the more completely it is confined to genital coitus, and the less the variation which enters into the performance of the act, the more acceptable the relationship is morally."
As previously stated, the sodomy laws of America are actually a catchall for every manner of nonprocreative sexual behavior. They are primarily used to prosecute offenses of a homosexual nature, but the statutes are written so as to apply to heterosexual noncoital acts as well. And none of the sodomy statutes of the United States make any distinction regarding the marital status of the partners.
Kinsey states, "It is not often realized that the [sexual] techniques which are employed in marriage may be subject to the same legal restrictions which are placed on those techniques when they occur between persons who are not wedded spouses.... In most states the sodomy acts are so worded that they would apply to mouth-genital contacts and to anal [intercourse] between married spouses, as well as to both heterosexual and homosexual relations outside of marriage.... While the laws are more commonly enforced in regard to such relations outside of marriage, there are instances of spouses whose oral activities became known to their children and through them to the neighborhood, and ultimately led to prosecution and penal sentences for both husband and wife."
There are court decisions not involving a husband and wife that have confirmed the applicability of these sodomy statutes to married couples also. In the case of State vs. Nelson in Minnesota, for example, the Court stated: "It is not the normal sexual act that this statute aims at. Rather and only it is the unnatural and prohibited way of satisfying sexual desires that the statute is designed to punish. Thus husband and wife, if violating this statute, could undoubtedly be punished, whereas the normal sexual act would not only be legal but perhaps entirely proper."
Circumstantial evidence may be sufficient to obtain a conviction and the mere attempt to commit the act may be all that is required. The Alabama law states: "An offense may be proven under this section as in other cases, by circumstantial evidence, when positive proof is wanting" and "...A conviction may be had for attempt to commit an offense denounced by this section."
It is actually possible for a husband to be arrested and convicted of sodomy for simply suggesting to his wife that their marital sex might be more satisfying if it included something more than simple intercourse. Kinsey reports, "One case even goes so far as to uphold the conviction of a man for soliciting his wife to commit sodomy."
Kinsey's records include "cases of persons who were convicted because one of the spouses objected, or because some other person became aware that oral or anal play had been included in the marital activities." He goes on to say, "In those states where the definition of cruelty as one of the grounds for divorce include 'personal indignities' or 'mental cruelty,' divorce cases involving either the husband's or wife's desires or demands for the use of oral techniques are not infrequent." Ploscowe reports that in 1951 an appellate court in Pennsylvania had two such divorce proceedings in a single day (Glick vs. Glick, in which the wife asked for the relations; and Kranch vs. Kranch, in which the request came from the husband).