The Volokh Conspiracy discusses a ruling upholding the use of "incest" laws against sexual relations between consenting adult step-family:
After the Supreme Court declared Texas' anti-sodomy law unconstitutional in Lawrence v. Texas,
there was substantial speculation about the implications of the
decision for other laws targeting consensual sexual activity among
adults. If state prohibition on consensual homosexual activity was
unconstitutional, some reasoned, then it might be difficult to maintain
state prohibitions on incest, at least among consenting adults. Not so,
ruled the Ohio Supreme Court earlier this week.
In State v. Lowe,
the Ohio Supreme Court considered the constitutionality of the state's
prohibition on incest as applied to consensual sexual relations between a
step-father and his adult step-daughter. After first concluding that
the statute, by its terms, applied to adults as well as children, a
six-justice majority rejected the defendant's constitutional challenge,
concluding that the statutory prohibition passed muster under the
rational basis test because the state has a legitimate interest in
prohibiting sexual relations between relatives, even those related by
law rather than blood.
Lowe cites Lawrence v. Texas
to argue that he has a constitutionally protected liberty interest to
engage in private, consensual, adult sexual conduct with his
stepdaughter when that activity does not involve minors or persons who
may be easily injured or coerced. In Lawrence, a Texas statute
criminalizing homosexual conduct was held to be unconstitutional as
applied to adult males who had engaged in private and consensual acts of
sodomy. Lowe contends that Lawrence named a new fundamental right to engage in consensual sex in the privacy of one's home.
However, the statute in Lawrence was subjected to a
rational-basis rather than a strict-scrutiny test, with the court
concluding that the Texas statute furthered no legitimate state interest
that could justify intrusion into an individual's personal and private
life. In using a rational-basis test to strike down the Texas statute,
the court
declined to announce a new fundamental right arising from the case.
In addition to emphasizing that the court in using a rational-basis
test did not name a new fundamental right, the state in this case
distinguishes Lawrence as being limited to consensual sexual
conduct between unrelated adults. Lowe and his stepdaughter were not
unrelated. The state argues that since Lowe has no fundamental right in
this case, and the state has a legitimate interest in prohibiting
incestuous relations and in protecting the family unit and family
relationships, the rational-basis test should apply. . . .
We agree with the state that a rational-basis test should be used to
analyze the statute. Lawrence did not announce a "fundamental" right to
all consensual adult sexual activity, let alone consensual sex with
one's adult children or stepchildren. Because Lowe's claimed liberty
interest in sexual activity with his stepdaughter is not a fundamental
right, the statute affecting it need only have a reasonable relationship
to some legitimate governmental interest. . . .
. . . as applied in this case, [the statute] bears a rational
relationship to the legitimate state interest in protecting the family,
because it reasonably advances its goal of protection of the family unit
from the destructive influence of sexual relationships between parents
or stepparents and their children or stepchildren. If Lowe divorced his
wife and no longer was a stepparent to his wife's daughter, the
stepparent-stepchild relationship would be dissolved. The statute would
no longer apply in that case.
Justice Pfeifer was the
lone dissenter. He argued that the true purpose of the statute was to
protect children, not prohibit consensual sexual activity between adults
who lack any blood relationship. He also speculated that the only
interest this application actually serves is providing the state with a
"shortcut to conviction," because the statute provides "a
strict-liability, slam-dunk sex offense that does not allow the
defendant to present any evidence regarding the consent of the victim."
"This sort of use of the statute demeans its true purpose," Pfeifer
wrote.
Key to the majority's ruling was its conclusion that Lawrence
failed to announce a fundamental right or apply heightened scrutiny,
making it easier to sustain other state laws governing consensual sexual
activity. This interpretation makes Lawrence a less significant decision as it limits the "threat" Lawrence poses to other state efforts to regulate morality and makes Lawrence a much less effective weapon against the criminalization of victimless crimes.
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