Details on State Prohibited Consensual Sexual Activity Laws
The columns in this chart illustrate state laws intended to criminalize certain sexual practices. A related issue, that of exposing a sexual partner to AIDS, is also covered here -- including whether the victim of a sexual crime can compel testing of the perpetrator.
In the 1980s, the U.S. Supreme Court heard a challenge to Georgia's statute prohibiting sodomy. The challenge was based on the principle that consensual sex between two adults was a private matter which the state had no authority to regulate. In that case, the Supreme Court held that the state has sufficient interest in preventing sodomy to warrant the enactment of laws banning the behavior.
In 2003, the U.S. Supreme Court heard decided a case that challenged a similar Texas law. In that case, decided by a 5-4 majority, the Court decided that its earlier decision was in error and declared all laws that prohibit private same-sex sexual conduct to be unconstitutional.
Even though the laws have been overturned as unconstitutional, many states have left them "on the books," either as a hollow protest against the decision of the Court or as a matter of mere legislative inertia. These statutes are still recorded in the following charts for historical purposes only.
This chart also includes references to statutes in which exposure of another to the AIDS virus has been made a crime. Intentional exposure of another to AIDS is a felony in many states. In addition, many states give the victim of a sexual offense the right to require a convicted perpetrator to submit to a test for AIDS. Mandatory testing has always been controversial and resisted by libertarians, but in criminal cases involving sex offenses, there is less resistance to the idea of forcing people to be tested.
The final area covered in this chapter involves categories of crimes that are used to prohibit various kinds of sexual activity. The statutes listed in the column headed "Other Crimes Relating to Consensual Sexual Acts" range from explicit bans on prostitution, lewd public acts, and indecent exposure, to loitering and disorderly conduct. Although some of the offenses listed, such as loitering, can be applied to activity that is non-sexual in nature, these statutes are frequently used to disrupt or prohibit sexual activity or even to discourage non-married couples from living together. These laws illustrate the difficulties which law enforcement officers and officials have in trying to regulate intimate, private behavior. The laws are very general and often vague and may be applied to numerous activities deemed offensive by the person charged with enforcing public order.
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