The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

You’re Supposed to Be Shocked

Posted on | March 25, 2011 | 8 Comments

The Republican governor of Alaska has nominated a conservative for the panel that approves state judges. Democrats want you to scream in horror to learn that Don Haase thinks sex outside marriage should be against the law:

One blog post on the Eagle Forum Alaska site praised efforts at criminalizing adultery in Michigan, and [Democrat state Sen. Joe] Paskvan asked Haase if he thought it should be a felony in Alaska.
“I don’t see that that would rise to the level of a felony,” Haase said.
Paskvan: “Do you believe it should be a crime?”
Haase: “Yeah, I think it’s very harmful to have extramarital affairs. It’s harmful to children, it’s harmful to the spouse who entered a legally binding agreement to marry the person that’s cheating on them.”
Paskvan: “What about premarital affairs — should that be a crime?”
Haase: “I think that would be up to the voters certainly. If it came before (the state) as a vote, I probably would vote for it … I can see where it would be a matter for the state to be involved with because of the spread of disease and the likelihood that it would cause violence. I can see legitimate reasons to push that as a crime.”

This is really shocking, right? Except for the fact that, within living memory, most states criminalized non-marital sex:

Prior to the 1950s and ’60s, most states had a network of laws, well-rooted in the Anglo-American tradition, that had the cumulative effect of outlawing every manner of sex except between husband and wife.
Adultery, fornication, sodomy — one way or another, if you were messin’ around with anyone except your lawful spouse, you were outside the law. Frank Sinatra was once arrested on a charge of “seduction,” a New Jersey law that made it illegal for a man to use a false promise of marriage to entice a woman into sex.

Of course, people found many ways to circumvent those laws, which in general were only enforced when someone complained. (Sinatra beat the rap because the woman who accused him was a liar.) Our modern idea that all sex between consenting adults must be legal comes from two sources: (a) Alfred Kinsey, who in 1948 claimed that a majority of American men commited sex acts then regarded as crimes, and (b) the 1957 British “Wolfendon Report,” which recommended that “homosexual behaviour between consenting adults in private should no longer be a criminal offence.” (Emphasis added.)

Over time, laws were “reformed” to do away with the old common-law tradition that treated all non-marital sex as illegal. And among the consequences of that change is the great difficulty of prosecuting what we nowadays call “date rape.” In the old days, all that was necessary would be to prove that (a) they had sex and (b) they weren’t married, and the accused party would be guilty under one of the various laws. Whether that legal regime was altogether fair is one question, but it certainly avoided the “he-said”/”she-said” disputes over “consent” that surround so many date-rape cases.

Don Haase’s arguments for returning to the old common-law tradition will, no doubt, cause head-exploding reactions among liberals (and also for many conservatives unfamiliar with the legal history of the “consenting adults” standard), but it is not really so bizarre as it seems.

Lawrence v. Texas — now that’s what I call truly bizarre.


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