The Criminalization of Sex

04/14/10

Setting aside a lifetime's worth of lawyer jokes, I like to think that the readers of this web page are polite company, so I must beg your indulgence. Politics, religion and sex are too intertwined with the law to ignore completely. Today I turn my attention to sex and reflect on a pair of stories that have popped up this week involving sex, minors, and the law.


These stories show two ends of a spectrum. The first story involves a father in Texas who used online pornography as an aid in having ''the talk'' with his minor daughters and the second involves an over-zealous DA in Wisconsin who is threatening teachers with criminal prosecution if they comply with a state law mandating sex education classes.

The Texas story involves a divorced father with custody of his two daughters, ages 8 and 9. A complaint sitting on the desk of local DA James Farren, filed by the mother after the girls told a therapist about the incident, alleges that the father had the girls watch another woman perform live on a webcam while he gave her instructions. The father says he was using the woman's performance as a visual aid to help teach the girls about sex. This may seem like incredibly poor judgment but according to DA Farren, it may not be criminal. Texas has a statute on the books that makes it a crime to show pornography to a minor, but it carves out an explicit exemption if the minor is accompanied by a consenting parent. This raises the question - to what extent should the state interfere with a parent's right to teach their children about sex or, for that matter other issues involving morality? Did the father cross the line or is this merely pushing the outer boundaries of parental rights?

What about when sex education in school gets explicit, particularly when it shifts from the biological processes and into expository instruction? That's an issue being played out today in Juneau County, Wisconsin. Wisconsin recently passed a law that requires sex education classes to include, among other things, instruction on how to use contraception and how to prevent STD's. The DA of Juneau County, Scott Southworth, sent a letter to the five school districts in the county saying that any teacher that complied with the new law could face criminal prosecution. According to Southworth's interpretation of the law, providing instruction on how to use contraception will make a sex education teacher criminally liable for the sexual activities of the students, and even if the students practice abstention, the teachers might be prosecuted for delinquency of a minor. Parents in Juneau County have the ability to ''opt-out'', removing their children from any school provided sex education classes. This presents us with multiple issues to discuss. Should the legislature be micromanaging the classroom in any issue, but particularly one as sensitive as sex? And should the law hold a teacher responsible for the (illegal) sexual activities of their students if the teacher provides instruction on how to do it safely?

A proper respect for decorum makes it difficult to openly discuss issues like this, but I promise you dear readers, I am not polite society. I welcome your comments below.