LA case: oral sex, rape, adultery & drugs

[Edward Hartnett]

It is interesting to note that the Louisiana case did not involve homosexual
conduct.  Instead, it involved a woman who claimed that she was raped by a
man she met in a bar.  The trial court disbelieved her, but convicted the
man for what even he acknowledged he did: engage in oral sex.  The state AG
did not participate in the case; the local DA argued that the verdict should
be seen as a compromise.

As I understand it, this is the major use of sodomy statutes by prosecutors
today: as a tool for convicting alleged rapists -- notoriously difficult to
convict of rape -- of something.

On another point raised in this thread: I too am unpersuaded by the notion
that sex cases can be distinguished from drug cases because the drug cases
involve forbidden substances, while the sex cases do not.  Although there is
a long tradition of treating some conduct as inherently wrongful (malum in
se), is there any such practice of treating any substance as inherently
wrongful?  Aren't all laws against forbidden substances considered malum
prohibitum?

If, as has been suggested, any distinction between sex and drugs should be
based on social harm, can we think about adultery (which seems to be
protected by the LA opinion) rather than homosexual conduct?  Does anyone
know of any evidence comparing, for example, the social harm caused by use
of marijuana and the social harm caused by adultery?


Edward Hartnett
Scholar in Residence
University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903-1789
(804) 924-3022
ehartnett at law1.law.virginia.edu