Review 1: Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex

Author's Note:

First review, inaugurating with one of the oldest pieces in my reference collection. Unfortunately finding full citation on this piece is a major royal pain in the ass, but it's still a good piece!

My postings of my literature reviews will be more erratic than what I was doing with the state reviews, as the disparity between each piece is a LOT bigger than with the state reviews. At least one every two weeks, that's my promise.

- Jason

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Review 1
Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex.
Harvard Law Review, 1991.
Author's Unknown

This is an older piece, but gives the same kind of depthful analysis of more modern works on non-monogamy. The primary thesis is that fornication and adultery laws should be seriously scaled back and consist of primarily civil-only legislation. The current state of affairs for these laws is discriminatory and advances state hegemony on heterosexual monogamous marriage without showing anywhere enough compelling interest to do so.

Though the work does show a great deal of insight in connecting sexuality to privacy issues, it stops it’s argument short in providing some legitimacy for the state to intrude on situations tat involve violation of trust and adverse affect on others. It cites the common cultural assumptions on adultery as a foundation of this, which seems shaky ground to support such an intrusion into the private sexual lives of married individuals.

In total, the strongest part of this piece is the connection between legislation and state controlled hegemony on sexuality, thus demonstrating a critical importance of legislation in allowing or controlling individual’s sexual lives.

Holes Plugged, Lit Reviews Ho!

Hey everyone,

Just finished going through the missing holes in the research for the state reviews. New link to the spreadsheet: https://docs.google.com/spreadsheet/ccc?key=0AgjR0Xz9d5o_dEJWRXZ6MWR1bXZQVjVyaC1rdW9sbmc I edited the previous post too so no confusion. I did modify a few things after some due consideration, most notably my interpretation of Alabama's adultery law.

So shoot me it was my first review (-:

Anyhow, next up, lit reviews!

Seeya soon!

- Jason

State of Review - 51 Done! Yay!

Hi everyone. As you probably noticed, I completed all 50 states plus D.C. I did say this was going to be a 52 part series, and the next part is the final summary review. That's going to take a looooooooong time (I'm thinking a few months), so bear with me while I work on that. Prior to starting that, however, I'm going to be plugging a few holes in the research that I had when I started.

I've got a cheat-sheet of sorts that'll help quickly overview the criminal liabilities for non-monogamists. Feel free and take a look: https://docs.google.com/spreadsheet/ccc?key=0AgjR0Xz9d5o_dEJWRXZ6MWR1bXZQVjVyaC1rdW9sbmc

I'll be making my updates directly on the sheet, and not re-editing the essays. The final peice will be a conglomeration of everything, including updates between now and then. It's gonna be a pretty hefty process, as after I do the clean-up I need to do re-do a literature review of existing academic work on the subject, then do the paper write-up. The lit review will be rather intense, as I can't sustain my 200 pages per week that I was doing with my senior project (work + school = less time & sad face).

When I hit the lit review portion I'll be posting summaries of my readings on a regular basis, similar to the work I did previously when I was working on my senior project, though much more specific to criminal law issues. Don't think I'm just jumping ship yet (-:

For the moment though, I've earned a slight respite (-:

Cheers!

- Jason

Non-Monogamous Families and the Law, Part 51: Summary of Wyoming Laws

Non-Monogamous Families and the Law, Part 51: Summary of Wyoming Laws

Adultery:

Wyoming has no adultery or fornication laws.

Bigamy:

Wyoming has simple bigamy, applicable only to the marryer (Wyoming State Legislature, 2012f). Bigamy is liable as a felony, punishable by up to 5 years imprisonment and a fine up to $5,000 (Wyoming State Legislature, 2012f). Repeat escalation is applicable, increasing imprisonment to 10-50 years for the second repeat, and to life imprisonment for the third repeat (Wyoming State Legislature, 2012g). Inchoate applies in full, with accessory, conspiracy, solicitation and attempt liable at the same level as bigamy (Wyoming State Legislature, 2012a; Wyoming State Legislature, 2012b; Wyoming State Legislature, 2012c; Wyoming State Legislature, 2012d; Wyoming State Legislature, 2012e).

Round-Up of Laws:

With the absence of fornication and adultery, and simple bigamy laws, Wyoming liability is quite low. Liability only exists if there is an actual bigamous marriage.

Non-Monogamous Strategies:

Because of the low liability level, the only way to minimize liability further is to not have an actual bigamous marriage. Beyond this, criminal liability is nonexistent.

References

Wyoming State Legislature. (2012a). Accessory before the fact. (Wyoming Statutes 6-1-201). Cheyenne, WY: Wyoming State Legislature.

Wyoming State Legislature. (2012b). Attempt; renunciation of criminal intention. (Wyoming Statutes 6-1-201). Cheyenne, WY: Wyoming State Legislature.

Wyoming State Legislature. (2012c). Solicitation to commit felony; renunciation of criminal intention. (Wyoming Statutes 6-1-302). Cheyenne, WY: Wyoming State Legislature.

Wyoming State Legislature. (2012d). Conspiracy; renunciation of criminal intention. (Wyoming Statutes 6-1-303). Cheyenne, WY: Wyoming State Legislature.

Wyoming State Legislature. (2012e). Grading. (Wyoming Statutes 6-1-304). Cheyenne, WY: Wyoming State Legislature.

Wyoming State Legislature. (2012f). Bigamy; penalties; defense. (Wyoming Statutes 6-4-401). Cheyenne, WY: Wyoming State Legislature.

Wyoming State Legislature. (2012g). “Habitual criminal” defined; penalties. (Wyoming Statutes 6-10-201). Cheyenne, WY: Wyoming State Legislature.

Non-Monogamous Families and the Law, Part 50: Summary of Wisconsin Laws

Non-Monogamous Families and the Law, Part 50: Summary of Wisconsin Laws

Adultery:

Wisconsin adultery is liable to both parties as a class I felony (Wisconsin State Legislature, 2012i), punishable by up to 3.5 years imprisonment and a fine up to $10,000 (Wisconsin State Legislature, 2012e). Repeat escalation increases imprisonment to be up to 7.5 years (Wisconsin State Legislature, 2012g). Inchoate laws apply in full, with accomplice, conspiracy and solicitation at the same level as adultery (Wisconsin State Legislature, 2012a; Wisconsin State Legislature, 2012b; Wisconsin State Legislature, 2012c). Attempt is at a class A misdemeanor (Wisconsin State Legislature, 2012d), punishable by up to 9 months imprisonment and a fine up to $10,000 (Wisconsin State Legislature, 2012f).

Wisconsin has no fornication law.

Bigamy:

Wisconsin has simple bigamy, with no purportation or cohabitation, and is liable to both marryer & marryee (Wisconsin State Legislature, 2012h). Liability is as a class I felony (Wisconsin State Legislature, 2012h), the same as adultery, with the same punishments, repeat escalation and inchoate applicability (Wisconsin State Legislature, 2012a; Wisconsin State Legislature, 2012b; Wisconsin State Legislature, 2012c; Wisconsin State Legislature, 2012d; Wisconsin State Legislature, 2012e; Wisconsin State Legislature, 2012f; Wisconsin State Legislature, 2012g).

Round-Up of Laws:

With the absence of fornication, but the presence of adultery and bigamy, only unmarried non-monogamists have no criminal liability. Liability for dyadic and non-dyadic non-monogamists is identical.

Non-Monogamous Strategies:

Because Wisconsin has simple bigamy and an adultery law, but does not have a fornication law, liability can only be avoided by not having a legal marriage within the family.

References

Wisconsin State Legislature. (2012a). Parties to a crime. (Wisconsin Statutes 939.05). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012b). Solicitation. (Wisconsin Statutes 939.30). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012c). Conspiracy. (Wisconsin Statutes 939.31). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012d). Attempt. (Wisconsin Statutes 939.32). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012e). Classification of felonies. (Wisconsin Statutes 939.50). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012f). Classification of misdemeanors. (Wisconsin Statutes 939.51). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012g). Increased penalty for habitual criminality. (Wisconsin Statutes 939.62). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012h). Bigamy. (Wisconsin Statutes 944.05). Madison, WI: Wisconsin State Legislature.

Wisconsin State Legislature. (2012i). Adultery. (Wisconsin Statutes 944.16). Madison, WI: Wisconsin State Legislature.

Non-Monogamous Families and the Law, Part 49: Summary of West Virginia Laws

Author's Note:

I seriously feel like I missed something with West Virginia, but I did give it's criminal laws a through go-over. Inchoate laws appear to be pretty specific to each kind of charge, as does repeat escalation, and neither are attached to bigamy.

It still feels weird, having only one reference here...

- Jason

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Non-Monogamous Families and the Law, Part 49: Summary of West Virginia Laws

Adultery:

West Virginia has no adultery or fornication laws.

Bigamy:

West Virginia has simple bigamy, liable only to the marryer (West Virginia State Legislature, 2011a). Bigamy is a felony, punishable by 1-5 years imprisonment (West Virginia State Legislature, 2011a). Repeat escalation and inchoate laws appear to not apply to bigamy.

Round-Up of Laws:

With the absence of adultery and fornication, unmarried and dyadic non-monogamists have no criminal liability. Because West Virginia has only simple bigamy, with no escalation and inchoate applicability, even non-dyadic non-monogamists have minimal liability, only applicable if there is an actual bigamous marriage.

Non-Monogamous Strategies:

Due to the lightness of West Virginia’s laws, the only thing that non-monogamists can do to decrease the already minimal liability is to not have a bigamous marriage.

References

West Virginia State Legislature. (2012a). Bigamy - Penalty. (West Virginia Code 61-8-1). Charleston, WV: West Virginia State Legislature.

Non-Monogamous Families and the Law, Part 48: Summary of Washington Laws

Non-Monogamous Families and the Law, Part 48: Summary of Washington Laws

Adultery:

Washington has no adultery or fornication laws.

Bigamy:

Bigamy in Washington has a purportation clause, and is applicable to both marryer and marryee (Washington State Legislature, 2011f). Bigamy is considered a class C felony (Washington State Legislature, 2011f), punishable by up to 5 years imprisonment and a fine up to $10,000 (Washington State Legislature, 2011b). Inchoate attempt, conspiracy and solicitation apply with liability as a gross misdemeanor (Washington State Legislature, 2011c; Washington State Legislature, 2011d; Washington State Legislature, 2011e), punishable by imprisonment for up to 364 days and a fine up to $5,000 (Washington State Legislature, 2011b). Complicity is liable at the same level as bigamy (Washington State Legislature, 2011a). Repeat escalation appears to not apply.

Round-Up of Laws:

With the absence of adultery and fornication, unmarried and dyadic non-monogamists have no criminal liability in Washington. Non-dyadic non-monogamists need to take care of the purportation law, as liability from that law could extend to them.

Non-Monogamous Strategies:

Because of the purportation clause in bigamy, non-dyadic non-monogamists need to be careful with public image to minimize their liability under bigamy. If successful, non-dyadic non-monogamists enjoy the same nonexistent criminal liability as unmarried and dyadic non-monogamists.

References

Washington State Legislature. (2012a). Liability for conduct of another – Complicity. (Revised Code of Washington 9A.08.020). Olympia, WA: Washington State Legislature.

Washington State Legislature. (2012b). Maximum sentences for crimes committed July 1, 1984, and after. (Revised Code of Washington 9A.20.021). Olympia, WA: Washington State Legislature.

Washington State Legislature. (2012c). Criminal attempt. (Revised Code of Washington 9A.28.020). Olympia, WA: Washington State Legislature.

Washington State Legislature. (2012d). Criminal solicitation. (Revised Code of Washington 9A.28.030). Olympia, WA: Washington State Legislature.

Washington State Legislature. (2012e). Criminal conspiracy. (Revised Code of Washington 9A.28.040). Olympia, WA: Washington State Legislature.

Washington State Legislature. (2012f). Bigamy. (Revised Code of Washington 9A.64.010). Olympia, WA: Washington State Legislature.

Non-Monogamous Families and the Law, Part 47: Summary of Virginia Laws

Non-Monogamous Families and the Law, Part 47: Summary of Virginia Laws

Adultery:

Virginia contains adultery and fornication laws, extending liability to both parties (Virginia State Legislature, 2011i; Virginia State Legislature, 2011l). Both adultery and fornication are liable as a Class 4 misdemeanor (Virginia State Legislature, 2011i; Virginia State Legislature, 2011l) with punishment of a fine up to $250 (Virginia State Legislature, 2011b). There is no repeat escalation, and only inchoate attempt applies (Virginia State Legislature, 2011g), as accessory, conspiracy and solicitation apply only to felonies (Virginia State Legislature, 2011c; Virginia State Legislature, 2011d; Virginia State Legislature, 2011e; Virginia State Legislature, 2011h). The punishment for attempted adultery and attempted fornication is at the same level as the original crimes (Virginia State Legislature, 2011g).

Bigamy:

Virginia contains a simple bigamy law, with liability limited to the marryer and not the marryee under the bigamy law (Virginia State Legislature, 2011k). Liability for bigamy is as a class 4 felony (Virginia State Legislature, 2011k), punishable by 2-10 years imprisonment and a fine up to $100,000 (Virginia State Legislature, 2011a). There is no repeat escalation; however inchoate laws apply in full, with accessory before the fact being at the same liability (Virginia State Legislature, 2011c); accessory after the fact as a class 1 misdemeanor (Virginia State Legislature, 2011d), punishable by up to 12 months imprisonment and a fine up to $2,500 (Virginia State Legislature, 2011b); conspiracy as a class 5 felony (Virginia State Legislature, 2011e), punishable by 1-10 years imprisonment and a fine up to $2,500 (Virginia State Legislature, 2011a); attempt and solicitation as a class 6 felony (Virginia State Legislature, 2011f; Virginia State Legislature, 2011h), punishable by 1-5 years imprisonment and up to $2,500 fine (Virginia State Legislature, 2011a).

In addition to bigamy, there is also a law prohibiting cohabitation of unmarried partners which affects both parties in the same way a cohabitation clause would (Virginia State Legislature, 2011j). Liability is as a class 3 misdemeanor for the first offence (Virginia State Legislature, 2011j), punishable by a fine up to $500 (Virginia State Legislature, 2011b); and a class 1 misdemeanor for consecutive offences (Virginia State Legislature, 2011j), punishable by up to 12 months imprisonment and a fine up to $2,500 (Virginia State Legislature, 2011b). Inchoate only applies with attempt (Virginia State Legislature, 2011c; Virginia State Legislature, 2011d; Virginia State Legislature, 2011e; Virginia State Legislature, 2011g; Virginia State Legislature, 2011h) at the same level as the original law (Virginia State Legislature, 2011g).

Round-Up of Laws:

The combination of adultery, fornication and bigamy laws, with supplementary cohabitation law, creates liability for all forms of non-monogamy. The lowest liability is with unmarried non-monogamists and dyadic non-monogamists, whom only have liability of a fine. Non-dyadic non-monogamists have higher liability from the supplementary cohabitation clause, as well as the additional applicability of inchoate laws on bigamy.

Non-Monogamous Strategies:

Unfortunately the only law in Virginia which has some leeway for non-monogamists is the cohabitation law. This primarily affects non-dyadic non-monogamists, and separate living arrangements divided by married couple would limit the liability these non-monogamists have.

References

Virginia State Legislature. (2012a). Punishment for conviction of felony; penalty. (Code of Virginia 18.2-10). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012b). Punishment for conviction of misdemeanor. (Code of Virginia 18.2-11). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012c). How principals in the second degree and accessories before the fact punished. (Code of Virginia 18.2-18). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012d). How accessories after the fact punished; certain exceptions. (Code of Virginia 18.2-19). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012e). Conspiracy to commit felony. (Code of Virginia 18.2-22). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012f). Attempts to commit noncapital felonies; how punished. (Code of Virginia 18.2-26). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012g). Attempts to commit misdemeanors; how punished. (Code of Virginia 18.2-27). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012h). Criminal solicitation; penalty. (Code of Virginia 18.2-29). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012i). Fornication. (Code of Virginia 18.2-344). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012j). Lewd and lascivious cohabitation. (Code of Virginia 18.2-345). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012k). Person marrying when husband or wife is living; penalty; venue. (Code of Virginia 18.2-362). Richmond, VA: Virginia State Legislature.

Virginia State Legislature. (2012l). Adultery defined; penalty. (Code of Virginia 18.2-365). Richmond, VA: Virginia State Legislature.

Non-Monogamous Families and the Law, Part 46: Summary of Vermont Laws

Non-Monogamous Families and the Law, Part 46: Summary of Vermont Laws

Adultery:

Vermont has no adultery law, however there is a rather vague Lewd and Lascivious conduct law, which applies only to “open and gross” conduct (Vermont State Legislature, 2012k). This vaguely defined law could apply like a fornication and/or adultery law, and will be treated as such for the purposes of this review.

Lewd and Lascivious conduct is liable as a felony (Vermont State Legislature, 2012a), punishable by up to 5 years imprisonment and a fine up to $300 (Vermont State Legislature, 2012k). Inchoate laws apply partially, with attempt and accessory laws applying at the same liability (Vermont State Legislature, 2012b; Vermont State Legislature, 2012c; Vermont State Legislature, 2012d; Vermont State Legislature, 2012g), and conspiracy not applicable (Vermont State Legislature, 2012j). Additionally there is inciting and compounding laws, with inciting acting like solicitation (Vermont State Legislature, 2012e), and compounding applicable if there is an exchange for the concealment or compoundment of the act (Vermont State Legislature, 2012f). Though conspiracy isn’t applicable, the overall inchoate applicability because of these laws covers similar ground.

Punishment for all applicable inchoate laws is at the same level as lewd and lascivious (Vermont State Legislature, 2012b; Vermont State Legislature, 2012c; Vermont State Legislature, 2012d; Vermont State Legislature, 2012g), with the exception of inciting which increases the fine to up to $500 (Vermont State Legislature, 2012e), and compoundment which increases the imprisonment to up to 10 years and the fine to up to $1,000 (Vermont State Legislature, 2012f).

There is repeat escalation, in after the 4th commission of a felony offence the punishment is up to life imprisonment (Vermont State Legislature, 2012h).

Bigamy:

Vermont bigamy has a cohabitation clause, however is only applicable to the marryer (Vermont State Legislature, 2012j). Liability is as a felony (Vermont State Legislature, 2012a), with imprisonment for up to 5 years, and no fine (Vermont State Legislature, 2012j). Inchoate and repeat escalation applies identically as to lewd and lascivious (Vermont State Legislature, 2012b; Vermont State Legislature, 2012c; Vermont State Legislature, 2012d; Vermont State Legislature, 2012e; Vermont State Legislature, 2012f; Vermont State Legislature, 2012g; Vermont State Legislature, 2012h).

Round-Up of Laws:

The combination of lewd and lascivious and cohabitation for bigamy creates a broad base of liability for all non-monogamists, especially considering the punishments for both are very similar. The inchoate laws also create a fairly broad base of liability for affiliated parties. In addition, with the felony applicability of lewd and lascivious and bigamy, and the life imprisonment for the 4th conviction, there is a high danger of encountering this punishment if care is not taken.

Non-Monogamous Strategies:

The weakness in Vermont’s laws is in the vagueness of the lewd and lascivious law. It could be argued that “open and gross” only applies to public display, or to non-monogamous families who are publicly known to be as such.

Additionally, non-dyadic non-monogamists would need to show care about cohabitation situations, and may wish to divide up residences by marriages to limit liability to bigamy.

References

Vermont State Legislature. (2012a). Felonies and misdemeanors defined. (Vermont Statutes 13.1). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012b). Accessory aiding commission of felony. (Vermont Statutes 13.3). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012c). Accessory before the fact. (Vermont Statutes 13.4). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012d). Accessory after the fact. (Vermont Statutes 13.5). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012e). Inciting to felony. (Vermont Statutes 13.7). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012f). Compounding felony. (Vermont Statutes 13.8). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012g). Attempts. (Vermont Statutes 13.9). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012h). Habitual criminals. (Vermont Statutes 13.11). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012i). Bigamy. (Vermont Statutes 13.206). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012j). Conspiracy. (Vermont Statutes 13.1404). Montpelier, VT: Vermont State Legislature.

Vermont State Legislature. (2012k). Lewd and lascivious conduct. (Vermont Statutes 13.2601). Montpelier, VT: Vermont State Legislature.