• Federal Government & Sex

The federal government and sex have a long history that has changed over the decades. In 1873, it was a federal crime to “send contraceptives or instructions for their use through the mail.”1

Some federal laws are seen as beneficial to vulnerable members of society, but some say the government curtails consensual sexual activity among adults.

While states have their own laws, which are too numerous to compile for this overview, they can be ruled unconstitutional and become invalid, like in the Supreme Court’s June 26, 2003, ruling in Lawrence v. Texas,which held that anti-sodomy laws are unconstitutional.

Some federal laws on sex crimes like obscenity are not clear cut and subject to interpretation.3 There are pros and cons on both sides on many of the government federal laws regulating certain sexual activity. Some laws, like those passed to protect against sex trafficking and prostitution, inadvertently interfere with the rights of consenting adults, according to some sex workers and some members of the BDSM community.4

Technology is also having an effect on federal laws related to sex. For example, there is a bill trying to make its way through Congress that would make it illegal to sell and use lifelike sex dolls and robots made to resemble minors.5 Federal legislation is constantly changing, so sexual activity that is illegal now may not be in the future, and yet to be regulated activity may be illegal at some point. 

The sourced articles below should provide more information on the role of the federal government in regulating sexual activity.

  1. Why Sodomy Laws Matter

    “The Impact of the Lawrence Decision
    All this should change with the Lawrence decision. Lawrence only directly invalidates sodomy [‘anal or oral copulation with a member of the same or opposite sex,’ m-w.com, 3/14/2019] laws in the four states that have laws that only apply to gay people: Texas, Oklahoma, Missouri and Kansas. But the equal protection clause forbids subtle discrimination just as much as it forbids obvious discrimination. And there isn’t much that is subtle about the government saying that a sodomy law justifies taking your children away because you are gay. Either the law in fact applies to everybody-in which case, it provides no justification for treating gay people differently at all-or it applies just to gay people-in which case, it cannot survive today’s ruling.” [“Lawrence v. Texas, legal case in which the U.S. Supreme Court ruled (6–3) on June 26, 2003, that a Texas state law criminalizing certain intimate sexual conduct between two consenting adults of the same sex was unconstitutional. The sodomy laws in a dozen other states were thereby invalidated,” britannica.com, 3/14/2019]

    American Civil Liberties Union, aclu.org, accessed on 3/5/2019

  2. Sex Crimes

    “Federal Sex Crimes
    Being indicted in federal court is something that will change your life. The charges are more severe and the process is different than being charged in state court. A few examples of federal sex crimes would be:
    – Sex Tourism- going to a foreign country and engaging in sexual acts that are illegal in the United States such as having sex with a child.
    – Child Pornography- Various federal organizations engage in sting operations, this can include the FBI or the US Post Office, which involves purchasing pornography that either travels over state lines or using the phone or mail system to purchase the pornography.”

    Kohlmeyer Hagen Law Office, khmnlaw.com, accessed on 3/5/2019

  3. Government Officials Have No Idea How To Regulate The Growing Sex-Robot Industry

    “It is not clear whether anyone in the US already owns a childlike sex robot. But even the possibility of child sex robots prompted a bipartisan House bill, the Curbing Realistic Exploitative Electronic Pedophilic Robots Act, or CREEPER. Introduced in 2017, it passed unanimously six months later.” [Not signed into law as of 3/14/2019]

    Francis X. Shen, businessinsider.com, 2/12/2019

  4. Congress Ramps Up War On Sex Workers And Their Customers With Secret Votes On Four New ‘Protection’ Laws

    “The national plan to ‘end demand’ for prostitution was part of the massive ‘Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act,’ [’01/08/2019 Became Public Law No: 115-425, congress.gov] which cleared the Senate Monday through a secret vote of the sort civil libertarians have long opposed. Congress is now ‘strengthening federal efforts’ to be tough on sex buyers, based on the false idea that customers of consenting adult sex workers drive demand for minors. All state and local cops, prosecutors, and judges are to be trained on ‘best practices for prosecuting buyers’ of sex and how to use asset forfeiture in these cases. A federal working group on the study of sex-buyer arrests will also be created, and grants related to human trafficking must include language encouraging those working on demand-reduction efforts to apply.”

    Elizabeth Nolan Brown, reason.com, 12/21/2018

  5. Citizen’s Guide To U.S. Federal Law On Obscenity

    “18 U.S.C. § 1460- Possession with intent to sell, and sale, of obscene matter on Federal property …
    18 U.S.C. § 1463- Mailing indecent matter on wrappers or envelopes
    18 U.S.C. § 1464- Broadcasting obscene language …
    18 U.S.C. § 1466- Engaging in the business of selling or transferring obscene matter
    18 U.S.C. § 1466A- Obscene visual representations of the sexual abuse of children …
    18 U.S.C. § 1468- Distributing obscene material by cable or subscription television …
    18 U.S.C. § 1470- Transfer of obscene material to minors …
    18 U.S.C. § 2252C Misleading words or digital images on the Internet
    The U.S. Supreme Court established the test that judges and juries use to determine whether matter is obscene in three major cases: Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987). The three-pronged Miller test is as follows:
    1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
    2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
    3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
    Any material that satisfies this three-pronged test may be found obscene.”

    U.S. Department of Justice, justice.gov, updated 12/19/2018

  6. Know Your Rights

    “Title IX of the Education Amendments of 1972 (‘Title IX’), 20 U.S.C. §1681 et seq., is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities (hereinafter ‘schools’) receiving any Federal funds must comply with Title IX. Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.”

    U.S. Department of Education, ed.gov, 9/25/2018

  7. House Passes Bill Targeting Child Sex Robots

    “The House of Representatives on Wednesday [6/13/2018] passed a bill prohibiting the importation and interstate sale of realistic sex dolls and robots designed to resemble children. Introduced by Rep. Dan Donovan, New York Republican, the Curbing Realistic Exploitative Electronic Pedophilic Robots Act of 2017, or ‘CREEPER Act,’ would rein in the sale of so-called ‘child sex robots’ if passed in the Senate and signed into law, putting the U.S. on path to potentially follow Australia and the U.K. in adopting similar measures.”

    Andrew Blake, washingtontimes.com, 6/14/2018

  8. Position On FOSTA-SESTA And Its Impact On Consensual Sex Work And The Chilling Of Sexual Speech

    “On April 11, 2018, President Donald J. Trump signed into law the Fight Online Sex Trafficking Act and the Stop Enabling Sex Trafficking Act (hereafter, FOSTA-SESTA). The law purports to address the scourge of sex trafficking by, in the language of the legislation, ‘clarify[ing]’ section 230 of the Communications Act of 1934 (47 U.S.C. 230, commonly known as the Communications Decency Act of 1996). Section 230 was originally inserted as a ‘safe harbor’ provision in order to provide to websites and internet forums immunity from liability for the actions and posts of their users. FOSTA-SESTA removes this immunity in cases of potential sex trafficking, forcing sites and platforms to remove or censor any user content that could, per the language of the law, ‘promote and facilitate prostitution.’ As numerous commentators and advocates have pointed out, the term prostitution is undefined within FOSTA-SESTA, leading to a sweeping and unproductive conflation of sex trafficking and consensual sex work, …”

    American Association of Sexuality Educators, Counselors and Therapists, aasect.org, 4/11/2018

  9. What The FOSTA/SESTA Anti-Sex Trafficking Bill Means

    “FOSTA/SESTA was birthed thanks to a case against Backpage.com, a classifieds website. In 2016, executives of Backpage were arrested on charges of pimping a minor, pimping, and conspiracy to commit pimping. Prosecutors claimed that Backpage was primarily developed to facilitate illegal sex work, but the court dismissed the case citing Section 230 of the Communications Decency Act. From that came FOSTA/SESTA. … Human trafficking, whether sexual or the less publicized but more common examples like forced labor or debt bondage, does need to be addressed. The real question is, will punishing the forums on which sex workers find community and safety be effective in preventing sex trafficking?”

    Kitty Stryker, teenvogue.com, 3/27/2018

  10. What Is CDC’s Rape Prevention And Education (RPE) Program?

    “The RPE [Rape Prevention And Education] program provides funding to state health departments in all 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands. RPE recipients work collaboratively with diverse stakeholders, including state sexual violence coalitions, educational institutions, rape crisis centers, community organizations and other state agency partners to guide implementation of their state sexual violence prevention efforts.”

    Department of Health & Human Services, cdc.gov, 3/1/2018

  11. New Name, Same Harm: Rebranding Of Federal Abstinence-Only Programs

    “In February 2018, the Title V abstinence-only program (which expired briefly in September 2017) was renewed for two more years at $75 million annually under the new name of ‘sexual risk avoidance education.’ Congress eliminated the ‘abstinence education’ definition, replacing it with similarly motivated topics that the program must address, including ‘the advantage of refraining from nonmarital sexual activity in order to improve the future prospects and physical and emotional health of youth’; ‘the increased likelihood of avoiding poverty when youth attain self-sufficiency and emotional maturity before engaging in sexual activity’; and in the context of preventing sexual coercion and dating violence, ‘recognizing that even with consent teen sex remains a youth risk behavior.’ Additionally, the program specifies information that must be withheld from students, requiring that ‘the education does not include demonstrations, simulations, or distribution of contraceptive devices.'”

    Jesseca Boyer, guttmacher.org, 2/28/2018

  12. Today’s Porn: Not A Constitutional Right; Not A Human Right

    “Both federal and state laws prohibit distribution of obscene material and those who do distribute can be prosecuted. But what is ‘obscene material’ or, rather, when is something ‘obscene’ instead of merely ‘pornographic?’ That is the key question in a prosecution. Not all pornography is obscene and not all depictions of nudity or sexual activity is pornographic. Indeed, individual opinions on what constitutes pornography differ widely as do opinions on what constitutes obscene material.”

    Patrick Trueman, digitalcommons.uri.edu, 7/2017

  13. Legal Censure Of Unconventional Expressions Of Love And Sexuality; Finding A Place In The Law For BDSM.

    “In 2016, it is hard to believe that the law could still criminalize the private sexual activity of consenting adults. Such prohibitions are immediately suspect within a system that values privacy and individual liberty, but even more so following the Supreme Court’s ruling in Lawrence v. Texas, which recognized the criminalization of sodomy as unconstitutional. Despite such a significant legal development, practitioners of BDSM, a practice that often involves an element of pain incorporated into a sexual encounter, remain at risk of criminal prosecution for their private, consensual sexual activities.” [“…bondage, domination, submission/sadism, masochism,” ncbi.nlm.nih.gov, 3/12/2012]

    Anne Onoma, uchastings.edu, 2017

  14. Sex And The Constitution

    “The title, Sex and the Constitution, minimizes both the scope and importance of this book. … The final three parts of the book focus explicitly on how judges have interpreted the Constitution in the areas of sexual expression, reproductive freedom, and sexual orientation from around 1960 to the present.”

    Geoffrey R. Stone, Robert P Holley, Journal of Intellectual Freedom & Privacy, American Library Association, journals.ala.org, 2017

  15. Woodhull Speaks Out On BDSM Court Decision

    “Since Lawrence v. Texas, the law has been clear that citizens have a right to engage in whatever sort of consensual sexual activity they choose within the privacy of their own homes as long as money is not involved. The recent Virginia ruling, however, found that there is ‘no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.’ The states are thus free to regulate BDSM conduct, under this analysis. ‘The minute we heard the court decision we began to bring together a team of attorneys to evaluate Woodhull’s response, and get the word out regarding the potential danger posed by this decision. We have been warning about the current hostile climate towards sexual expression, and the risks to fundamental human rights. We have also been preparing.'”

    Woodhull Freedom Foundation, woodhullfoundation.org, 3/8/2016

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Footnotes

1. thenation.com, 5/3/2017

2. aclu.org, accessed on 3/5/2019

3. justice.gov, 12/19/2018

4. woodhullfoundation.org, 3/8/2016

5. washingtontimes.com, 6/14/2018