Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P17 ppt

asked for a leave of absence from work in October 1994, a leave to which he was entitled under the Family and Medical Leave Act (Pub. L. 103-93, 1993). He asked for four to eight weeks of unpaid leave but was turned down. In November, his wife was hospitalized with complications from the pregnancy, and he again asked for leave. He was informed that a new state law allowed only ten days of unpaid leave for “secondary caregiver,” which was how he was viewed by his employer unless his wife was severely incapacitated. Knussman was told that if he did not return to work after the ten- day period his job would be in jeopardy. Knussman filed federal suit in April 1995 against his employer (Knussman v. State of Maryland, No. B-95-1255), claiming that his rights under FMLA had been violated—as had his Fourteenth Amendment right of EQUAL PROTECTION under the law. After nearly four years, during which the Maryland State Police claimed that they had merely been confused by the new statute, a jury awarded Knussman $375,000 for emotional suffering. Interestingly, during this time the Knussmans had a second child, and Knussman’s request for 12 weeks of paid leave was granted. Other legislation aimed at eradicating sex- based discrimination was also passed during this era. The Equal Credit Opportunity Act (15 U.S.C.A. § 1691) prohibits discrimination on the basis of sex or marital status in the extension of credit. Title IX of the Education Amendments of 1972 (20 U.S.C.A. §§ 1681–1686) prohibits educational institutions that are receiving federal financial assistance from engaging in sex discrim- ination, including the exclusion of individuals from noncontact team sports on the basis of sex. (In 1982 the Supreme Court extended this prohibition to sex-stereotyped admissions and employment practices of schools.) The Equal Rights Amendment The boldest attempt to outlaw sex discrimina- tion was congressional passage in 1972 of a CONSTITUTIONAL AMENDMENT, popularly known as the EQUAL RIGH TS AMENDMENT (ERA). The ERA, which had originally been introduced in Congress in 1928, stated: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” It gave Congress the authority to enforce this provision by appropriate legislation. The ERA, like all constitutional amendments, had to be ratified by at least three-fourths of the states to become part of the Constitution. At first, the amendment was met with enthusiasm and little controversy in the state legislatures. By 1976, the ERA had been ratified by 35 of the needed 38 states. In the late 1970s, however, conservative groups mounted strong opposition in those states that had yet to ratify. Opponents contended that the ERA would lead to women in combat, unisex bathrooms, and the overturning of legitimate sex-based classifications. Although Congress extended the period for RATIFICATION until 1982, the ERA ultimately failed to win approval from the required 38 states. Judicial Review of Sex-Based Discrimination With the defeat of the ERA, constitutional interpretation in the area of sex discrimination has been largely based on the Fourteenth Amendment. In 1971, in Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225, the Supreme Court extended the application of the equal protection clause of the Fourteenth Amendment to gender-based discrimination in striking down an Idaho law that preferred men to women as probate administrators. In Reed, the Court appeared to be moving toward making sex a “suspect classification” under the Fourteenth Amendment. The SUSPECT CLASSIFICATION doctrine holds that laws classify- ing people according to race, ethnicity, and religion are inherently suspect and are subject to the STRICT SCRUTINY test of JUDICIAL REVIEW. Strict scrutiny forces the state to provide a compelling state interest for the challenged law and demonstrate that the law has been narrowly tailored to achieve its purpose. Although strict scrutiny is not a precise test, it is far more stringent than the traditional RATIONAL BASIS TEST, which requires only that the government offer a reasonable ground for the legislation. Therefore, making sex a suspect classification would have dramatically improved the chances that sex- based laws would be struck down. The Supreme Court, however, has declined to make sex a suspect classification. Neverthe- less, it has invalidated a number of sex-based policies under a “heightened scrutiny” or “intermediate scrutiny” test. In Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), the Court articulated its intermediate standard of review for sex-based policies. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 148 SEX DISCRIMINATION According to this test, “classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.” Presumably, this test is stricter than the rational basis test but less strict than the compelling state interest test. In Craig, the Court struck down an Okla- homa law that outlawed the sale of beer contain- ing less than 3.2 percent alcohol to females under the age of 18 and males under the age of 21. Oklahoma argued that the law was a public safety measure and purported to show that men between 18 and 21 were more likely to be arrestedfor drunk driving than were women in the same age bracket. The Court rejected this argument, holding that the state had failed to demonstrate a substantial relationship between its sexually discriminatory policy and its admittedly important interest in traffic safety. Craig is considered to be a seminal decision, given that it articulated a separate level of scrutiny, an intermediate l evel, for gender dis- crimination under the Fourteenth Amendment. In Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the Court reviewed an Alabama law that required divorced men, under certain circumstances, to make ALIMONY payments to their ex-wives but exempted women in the same circumstances from paying alimony to their ex-husbands. The state argued that this policy was designed to compensate women for eco- nomic discrimination produced by the institution of marriage. Though the Court accepted that such compensation was an important state interest, it concluded that the law was not substantially related to the achievement of this objective. Justice William J. Brennan Jr., in his majority opinion, pointed out that wives who were not dependent on their husbands benefited from the disparate treatment. In other cases, however, the Court has upheld gender-based policies. In one of its most contro- versial decisions, Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981), the Court upheld the constitutionality of a male-only draft registration law, the Military Selective Service Act (MSSA) of 1980, 50 U.S.C.A. App. §§ 451 et seq. In his majority opinion, Justice WILLIAM REHNQUIST rejected the idea that the MSSA violated the FIFTH AMENDMENT by authorizing the president to require the registration of males and not females. Rehnquist noted that the statute involved national defense and military affairs, an area that the Court had accorded the greatest deference. Heconcluded that Congress had not acted unthinkingly or reflexively in rejecting the registration of women. He pointed out that the question had received SOURCE: U.S. Department of Labor, Women’s Bureau, 20 Leading Occupations of Employed Women, 2008, and the U.S. Bureau of Labor Statistics, Highlights of Women’s Earnings in 2007. Leading Occupations for Women in 2008 Occupation Secretaries and administrative assistants Registered nurses Elementary and middle school teachers Cashiers Retail salespersons Nursing, psychiatric, and home health aides First-line supervisors/managers of retail sales workers Waiters and waitresses Receptionists and information clerks Bookkeeping, accounting, and auditing clerks Customer service representatives Maids and housekeeping cleaners Childcare workers Managers, all others First-line supervisors/managers of office and administrative support Accountants and auditors Office clerks, general Teacher assistants Cooks Personal and home care aides Total Employed (Men and Women) 3,296,000 2,778,000 2,958,000 3,031,000 3,416,000 1,889,000 3,471,000 2,010,000 1,413,000 1,434,000 1,908,000 1,434,000 1,314,000 3,473,000 1,641,000 1,762,000 1,176,000 1,020,000 1,997,000 871,000 Percent Women 96.1 91.7 81.2 75.5 52.2 88.7 43.3 73.2 93.6 91.4 68.3 89.7 95.6 35.8 71.2 61.1 84.4 91.8 40.1 85.4 Women’s Earnings as a Percentage of Men’s (2007) 86.0 88.9 90.3 84.1 64.1 83.2 72.1 86.7 95.4 90.2 85.7 81.3 N.A. 77.0 84.1 72.3 94.2 N.A. 90.5 85.9 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SEX DISCRIMINATION 149 national attention and was the subject of public debate in and out of Congress. Rehnquist noted that “women as a group, unlike men as a group, are not eligible for combat” under statute and established policy. These combat restrictions meant that Congress had a legitimate basis for concluding that women “would not be needed in the event of a draft.” Therefore, there was no need to register women. The law did not violate equal protection because the exemption of women from registration was closely related to the congressional purpose of registration as a way to “develop a pool of potential combat troops.” In upholding the draft law, the Court avoided applying the intermediate scrutiny test. Sex Discrimination by Educational Institutions Numerous state- operated or publicly operated or supported educational in stitutions have limited enrollment to one sex. The Supreme Court first addressed whether such limitations on enrollment constituted sex discrimination in Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982). The Court voted 5-4 to require the Mississippi University for Women to admit a male student to its nursing school. In defending its refusal to admit Joe Hogan, the school argued that having a school solely for women compensated for sex discrimination in the past and that the presence of men would detract from the performance of female students. Writing for the majority, Justice SANDRA DAY O ’CONNOR rejected both of the school’s argu- ments. O’Connor rejected the “compensation” argument as contrived because the school had made no showing that women had historically lacked opportunities in the field of nursing. As for the concern that the presence of men would hurt the performance of female students, O’Connor pointed out that the school had been willing to admit Hogan to classes on a noncredit basis. In the Court’s view, the principal effect of the female-only nursing program was to “perpetuate the stereotyped view of nursing as an exclusively woman’s job.” In 1996 the Supreme Court again addressed the issue of educational sex discrimination in the highly publicized case of United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735. TheCourt ruled thatthe Virginia Military Institute (VMI), a publicly funded military college, must give up its all-male enrollment policy and admit women. The all-male policy violated the equal protection clause of the Fourteenth Amendment. In light of its holding that the Commonwealth of Virginia failed to show an “exceedingly persuasive justification” for excluding women from its program, the decision is said to have perhaps articulated a level of scrutiny more exacting than intermediate scrutiny. The lower federal courts had upheld the VMI admission policy, basing their decision on the need to preserve the “VMI experience,” a physically and emotionally demanding military regimen that has remained the same since the early nineteenth century. Co-education would prevent both men and women from undergoing the “VMI experience” and would distract the male cadets. During the LITIGATION, the state of Virginia proposed the establishment of a parallel program for women, called the Virginia Women’s Institute for Leadership (VWIL), with VMI remaining an all-male institution. The Supreme Court rejected the arguments advanced by the courts below. Justice RUTH BADER GINSBURG , writing for the majority, stated that “Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women.” Ginsburg rejected Virgi- nia’s contention that single-sex education yields such important educational benefits that it justi- fied the exclusion of women from VMI. The generalizations about the differences betweenmen and women that the state offered to justify the exclusion of women were suspect. According to Ginsburg, the generalizations were too broad and stereotypical, with the resultthat predictionsabout the downgrading of VMI’s stature if women were admitted were no more than self-fulfilling proph- ecies. The categorical exclusion of women from VMI denied equal protection to women. The Court was also unimpressed with the creation of the VWIL as a remedy for the constitutional violation of equal protection. Justice Ginsburg noted numerous deficiencies, pointing out that VWIL afforded women no opportunity to “experience the rigorous military training for which VMI is famed.” Sex Discrimination to Protect Fetal Health In the 1980s female employees in certain industries complained that they were barred GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 150 SEX DISCRIMINATION from certain jobs because the employer believed the jobs exposed women to hea lth hazards that could affect their ability to reproduce and could also affect the health of a fetus. The Supreme Court, in UAW v. Johnson Controls, 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 (1991), ruled that a female employee cannot be excluded from jobs that expose her to health risks that might harm a fetus she carries. The Court found that the exclusion of the women violated Title VII of the Civil Rights Act of 1964 because the company policy applied only to fertile women, not fertile men. The Court noted that the policy singled out women on the basis of gender and childbearing capacity rather than on the basis of fertility alone. If a job presented potential dangers to the worker or the worker’s fetus, it was up to the worker to decide whether to accept the position. Gender Bias in the Courts Beginning in the 1980s, many state court systems established taskforces to investigate the existence of gender bias in the courts. The reports of these taskforces have documented sex discrimination, with its victims more often women than men. The taskforces have found that much gender- biased behavior is unconscious and that the manifestations of bias, although often subtle, are deeply ingrained in state judicial systems. For example, the studies have noted the existence of stereotypes concerning victims of DOMESTIC VIO- LENCE and sexual ASSAULT; many judges believe that women who are beaten by a spouse or raped have provoked the attack. These studies also have shown that judges do not always treat men and women equally in the courtroom. For example, judges may identify women appearing before them by their first name but use professional titles or “Mister” when addressing men. In response to these findings, states have set up judicial educational programs on the dangers of gender-based stereotypes and have modified judges’ and lawyers’ codes of conduct to explicitly prohibit gender-biased behavior. These taskforces have also recommended that more women be appointed to the bench. FURTHER READINGS Atwell, Mary Welek. 2002. Equal Protection of the Law? Gender and Justice in the United States. New York: P. Lang. Becker, Mary, Cynthia Grant Bowman, and Morrison Torrey. 2006. Cases and Materials on Feminist Jurispru- dence: Taking Women Seriously. 3d ed. St. Paul, Minn.: West Group. Befort, Stephen F. 2009. “The Battle for Black Land: Fighting Eminent Domain.” Louisiana Law Review 70 (Fall). Kimmel, Michael S., 2007. The Gendered Society. 3d ed. New York: Oxford Univ. Press. Macklem, Tony. 2003. Beyond Comparison: Sex and Discrimination. New York: Cambridge Univ. Press. Osterman, Rachel. 2009. “Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident.” Yale Journal of Law and Feminism. 20. Smith, Patricia. 1993. Feminist Jurisprudence. New York: Oxford Univ. Press. Williams, Susan H. 2009. Constituting Equality: Gender Equality and Comparative Constitutional Law. New York: Cambridge Univ. Press. CROSS REFERENCES Armed Services; Bradwell v. Illinois (Appendix, Primary Document); Dworki n, Andrea; Employment Law; Feminist Jurisprudence; Fetal Rights; Friedan, Betty Naomi Gold- stein; Husband and Wife; Ireland, Patricia; Millett, Katherine Murray; Schlafly, Phyllis Stewart; Sexual Harass- ment; Women’sRights. SEX OFFENSES Sex offenses are a class of sexual conduct pro- hibited by the law. Since the 1970s the area of the law covering sex offenses has undergone significant changes and reforms. Although the commission of sex offenses is not new, public awareness and con- cern regarding sex offenses have grown, resulting in the implementation of new rules of evidence and procedure, new police methods and techni- ques, and new approaches to the investigation and prosecution of sex offenses. Forcible Sex Offenses Forcible RAPE and SODOMY are sexual offenses that have been widely recognized since the beginning of American common law. Rape was defined as an act of forcible sexual intercourse with a female other than the perpetrator’s wife. Modern legislation in the United States has expanded that definition to include the act of forcible sexual intercourse with any person, even the spouse of the actor. The offense of rape combines the crime of ASSAULT (fear of imminent bodily harm) with the elements of fornication (sexual intercourse between two unmarried persons) or ADULTERY (sexual intercourse with someone other than the actor’sspouse). Sodomy is defined as anal intercourse but is often used in the law as a generic classification, including BESTIALITY (sexual intercourse with an animal) and FELLATIO and cunnilingus (two forms of oral sex). These forms of sexual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEX OFFENSES 151 conduct were outlawed because widely accepted religious beliefs and moral principles dictate that they are unnatural forms of sexual activity, often called crimes against nature. Forcible rape and sodomy are generally perceived as similarly grave offenses. Most state criminal statutes require some physical penetration in order to consummate the crime of rape or sodomy, but many statutes have a low threshold for demonstrating pene- tration, calling only for a showing of “some penetration, however slight.” Comple- tion of the sex act as evidenced by orgasm, ejaculation, or achievement of sexual gratifica- tion, however, is not required to prove a rape or sodomy case. Most forcible sex offense statutes do require some forcible compulsion to submit and earnest resistance. However, courts will consider the circumstances of the attack, includin g the characteristics of the perpetrator and the victim, the presence of a weapon, threats of harm, and the assault itself, in assessing the victim’s resistance. Statutes do not require victims to resist if to do so would be futile or dangerous. Although modern statutes have eliminated the marital rape exception, some states still have some form of restrictions in the prosecution of the crime of marital rape . For example, some states will only prosecute marital rape claims if the couple is legally separated or have filed for DIVORCE. However, due to legal criticism and growing public awareness of spousal abuse, the trend in the United States is toward the elimination of all exceptions to the prosecution of these crimes. In the 1990s the public became more aware of issues involving violence in the home am ong family members. Many studies showed that women are far more likely to be victims of violence at the hand of a husband or boyfriend than by a stranger. Victims of DOMESTIC VIOLENCE or rape are believed to be reluctant to report these crimes for fear of continued or retaliatory violence. In response to these issues, Congress enacted the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994 (42 U.S.C.A. §§ 3796dd et seq.). One part of that act is the section entitled the Safe Homes for Women Act of 1994 (18 U.S.C.A. §§ 2261 et seq.). This section created new federal crimes and penalties for domestic violence. Non-Forcible Sex Offenses Non-forcible sex offenses include sexual con- duct with individuals that the law assumes are not capable of giving consent to sex ual acts. Because of this legal principle, it is said that in non-forcible sex offense cases, lack of consent by the victim may be a MATTER OF LAW. In other words, statutes will assume that underage, physically helpless, and mentally incompetent victims are incapable of giving consent to sexual acts and will not consider consent as a valid defense to the crime. The age at which criminal statutes acknowl- edge that an individual is capable of consenting to sexual acts varies by state. Most jurisdictions have special statutes for sex offenses committed with an underage victim, usually termed STATUTORY RAPE laws. In some states non-forcible sexual acts with an underage individual are considered as serious as forcible sexual acts. In other states forcible sexual acts are deemed more serious and are punished more severely. Where the offense is committed forcibly with an underage individual, the more serious statute and punishments will apply. It does not matter if the perpetrator reasonably believed that the victim was of the AGE OF CONSENT becaus e MISTAKE OF FACT is no defense in a statutory rape case. The law also considers physically helpless and mentally disabled victims to be incapable of giving consent to sexual acts. Physically helpless individuals include those who are unconscious, paralyzed, restrained, or otherwise incapable of resisting the sexual acts. Mentally disabled victims may include those who are permanently mentally disabled or those who are drugged and in a temporary state of mental disability. Some state statutes even include involuntarily intoxicated individuals in the category of tempo- rarily mentally disabled victims. Although mis- take of fact is no defense for sexual offenses with a minor, it is a defense for a physically helpless or mentally disabled adult victim if the perpetrator can show that he reasonably believed that the victim was not physically helpless or mentally disabled. Fornication and Adultery Fornication (sexual intercourse between two unmarried persons) and adultery (sexual intercourse with someone other than one’s spouse) are non-forcible sex offenses that have been recognized since early American common law. These acts are still GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 152 SEX OFFENSES unlawful under some state statutes. Fornication, however, has been eliminated as a criminal offense in most jurisdictions as a result of a more liberal view of the role of public law in mandating moral principles. However, neither fornication nor adultery is prosecuted with much regularity. The requirements of penetration that must be proved in other sexual offenses involving sexual inter- course also must be proved for fornication and adultery. Consensual Sodomy Consensual sodomy sta- tutes outlaw the act of sodomy even when it is consensual, meaning that it is accomplished without the use of force. The view supporting these statutes, which still exist in a minority of states, is that sodomy is an unnatural act, and when the act is consensual, all participants are guilty of wrongdoing. However, since the 1980s, most STATE COURTS have overturned consensual sodomy laws, calling them unconstitutional prohibitions of sexual conduct between two consenting adults. The Supreme Court addressed the issue of the constitutionality of consensual sodomy laws in Bowers v. Hardwick (478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986]). In Bow ers two consenting men were found engaged in sodomy in a private home in a state that had an anti- sodomy law. The Supreme Court found no basis in the Constitution supporting the argument that homosexuals have a FUNDAMENTAL RIGHT to engage in sodomy. In 2003, however, the Court reversed its ruling in Lawrence v. Texas (539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 [2003]). The situation of the case was similar to Bowers: Two men were found having consensual sex in a private home by Houston police, who had been called to the residence on a reported weapons disturbance. The men were arrested because a Texas statute made it a crim e for two people of the same sex to engage in “deviate sexual intercourse.” In a 6–3 decision, the Court ruled that the Texas statute outlawing a same-sex couple from having intimate conduct was unconstitutional under the due process clause. Polygamy POLYGAMY, another non-forcible sex offense, is the crime of marrying more than one spouse while the marriage to a first spouse is still valid and existing. Bigamy is committed when a person has exact ly two spouses at the same time. Bigamy per se consists simply of a person’s attempt to marry another person while already married. Bigamy per se does not require a showing of living together as husband and wife or of sexual intercourse. Most statutes state that the person must know of the continued validity of the first marriage to be guilty of bigamy. Thus, if a woman reasonably believed that her husband was dead, which would have ended their marriage, she could marry another man without violating bigamy/polygamy statutes. Indecent Exposure Indecent exposure, also called public lewdness, is the intentional expo- sure of one’s genitals to unwilling viewers for one’s sexual gratification. This crime is gene- rally classified as a misdemeanor (a less serious crime). Obscenity and Pornography OBSCENITY and PORNOGRAPHY are non-forcible sex offenses that have proven very difficult for the legislatures and courts to define. In Miller v. California (413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]), the Supreme Court held that material is por- nographic or obscene if the average person, applying contempor ary community standards, would find that the work taken as a whole appeals to the prurient interest, that it depicts sexual conduct in a patently offensive way, and that taken as a whole, it lacks serious literary, artistic, political, or scientific value. The Su- preme Court has also held that obscenity and CHILD PORNOGRAPHY are not protected by the FIRST AMENDMENT . With the advent of new technology, the law has changed to address and encompass more methods of disseminating obscene and porno- graphic materials. For example, laws in the early 2000s forbid obscenity and pornography trans- mitted via television and cable television pro- grams, telephone services, and the Internet. The Internet, in particular, as one of the fastest-growing media for the transmission of information, is easily accessible to childr en as well as adults, and many leaders advocate the restriction of obscene or pornographic material via the Internet. In 1996 Congress passed the Communications Decency Act (47 U.S.C.A. §§ 230, 560, 561), which made it a felony to place indecent or patently offensive material on the Internet that is accessible to children. However, this act came under fire almost immediately as violating the First Amendment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEX OFFENSES 153 In 1997 the Supreme Court in Reno v. America n Civil Liberties Union (521 U.S. 1025, 117 S. Ct. 2329, 138 L. Ed. 2d 874) struck down the indecent and patently offensive provisions of the act as unconstitutional. Other Sex-related Offenses Another sex-related offense is INCEST (sexual intercourse with a close relative). Generally, laws against incest forbid sexual intercourse with those close relatives that the law forbids one from marrying. PROSTITUTION is another offense in and of itself, but that crime is often intermingled with other sex offenses, such as statutory rape or adultery where the prostitute or the customer is underage or married to so meone else, respec- tively. Another criminal offense commonly charged in conjunction with other sex offenses is the offense of impairing the morals of a minor. Prosecutions for that offense are gener- ally pursued when the evidence is insufficient to support a statutory or forcible rape or sodomy charge. Child Sexual Assault Child sexual assault, long considered to be one of the most horrific of sexual offenses, presents many difficult issues to courts and legislatures. One controversial issue is the balancing of the defendant’s right to confront an accuser versus the need to protect child witnesses from undue trauma in facing their abusers. The Supreme Court has considered this issue in several cases. In Coy v. Iowa (487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 [1988 ]), the Court held that it is a violation of the right of confrontation to allow a child victim to testify in court separated from the defendant by a screen. But in Mary- land v. Craig (497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 [1990]), the Court upheld the use of a one-way closed-circuit television to receive the out-of-court testimony of a child witness. In Craig, the Court held that the defendant does not have an absolute right to confront his accuser face-to-face, especially where it is necessary to protect a child victim from trauma. In 1990, in response to the alarming increase in reported CHILD ABUSE cases, Congress enacted the Victims of Child Abuse Act (42 U.S.C.A. §§ 13001 et. seq.). It requires professionals who work with children to report all suspected cases of child abuse. It also amended the United States Criminal Code to ensure that the rights of children are protected in court proceedings. As a result, the Justice Department created model rules to guide law enforcement officers, investi- gators, prosecutors, and any person officially involved in a child abuse case, in the “proper and appropriate treatment of child victims and witnesses.” For example, a child witness does not have to be physically present in an open court. He or she may present testimony via closed-circuit television or videotaped DEPOSITION. Every state, along with the District of Columbia, Puerto Rico, and the Virgin Islands, have mandatory reporting statutes that require certain individuals who work with children to report suspected cases of child abuse or neglect. The general definition of child abuse is any non- accidental injury or pattern of injuries, includ- ing sexual molestation, to a child under the age of 18. The individuals who must report these cases include doctors, teachers, social workers, CHILD CARE providers, and psychologists. In some states priests, ministers, coroners, and attorneys are included. Individuals who report suspected abuse or neglect, even if their suspicions turn out to be false, are protected by IMMUNITY against legal action as long as they acted in GOOD FAITH. Reporters may also ask to be kept anonymous when making such allegations. Prosecution of Sex Offenses The prosecution of sex offenses differs in many respects from the prosecution of other crimes. The experience of the victim is very different from that of the victims of other crimes, the reaction of the police may be different, and sex offense prosecutions present many difficult issues. The UNIFORM CRIME REPORTS and other national studies indicate that rape is the most underreported crime. Because of the victims’ emotional trauma and the widespread bias in the legal system, whether perceived or real, many rape victims do not want to report the crime becau se they do not want to undergo the ordeal of testifying at the criminal trial. Well-trained police officers are taught about the difficulties presented in sex offense investi- gations and prosecutions, including their own susceptibility to societal biases toward sex offenses. Some police departments have spe- cially trained sex offense detectives, including female officers, who may reduce the amount of trauma victims undergo in reliving and recounting their injuries. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 154 SEX OFFENSES Investigators’ biases may be manifested in several ways. They may disbelieve or doubt the victim, which may discourage the victim from cooperating with police investigations. In child sex offense cases, defendants often have argued that the police officers or prosecuting attorneys coerced or powerfully suggested certain facts until the child victim adopted them as real. Prosecution of Non-Forcible Sex Offenses Some non-forcible sex offenses have been called VICTIMLESS CRIMES, because the victim has been difficult to identify. For example, in the case of prostitution, it is argued that neith er the prostitute nor the customer is a victim because they each willingly enter into the agreement. However, some argue that society itself is the victim of such crimes. Others argue that the prostitute is in fact the victim, even though she willingly commits the act, and that statutes should protect the individual from herself. Society’s responsibility to protect indivi- duals from themselves is the rationale accepted for non-forcible sex offenses involving minors. These statutes simply assume that minors are not able to make sound judgments for them- selves. Similar theories support statutes prohi- biting sexual conduct with mentally impaired individuals. For other non-forcible sex offenses such as adultery or bigamy, statutes are based on the premise that society strives to protect families and their stability. However, such justifications are not as easily applied to the sex offenses of fornication and consensual sodomy. Prosecuting attorneys have some discretion to choose which non-forcible sex offenses to prosecute. Where the constitutionality of a statute is at issue, such as statutes forbidding consensual sodomy, prosecutors generally choose not to enforce those statutes through prosecution. Adultery and fornication are other non-forcible sex offenses that are rarely prose- cuted. Private individuals who are not the victims of the particular sex offense, whether forcible or non-forcible, do not have a legal RIGHT OF ACTION against the offender. Prosecuting attorneys carry out the public function of pursuing criminal complaints against sex offenders on behalf of the people of the state. Constitutional Issues Many statutes making sexual conduct criminal have been attacked as unconstitutional. The most common claims made are that the statutes are too vague, violate personal rights to privacy, or violate the EQUAL PROTECTION clause. The Supreme Court considered the argu- ment that statutes violating sodomy are uncon- stitutionally vague in Rose v. Locke (423 U.S. 48, 96 S. Ct. 243, 46 L. Ed. 2d 185 [1975]). The Rose case involved a state statute that forbade “crimes against nature,” and the defendants argued that the terms of the statute were imprecise and vague. The Supreme Court held that the statute did not violate the Constitution because even though the language may have been imprecise, it was still possible to determine the meaning of the statute so as to provide sufficient warning to people who may be affected by it. Courts have held that “crimes against nature” include sodomy, fellatio, and cunnilingus. Statutes forbidding obscene language or conduct have also been challenged because they are vague. Specifically, critics claim that it is not clear what is considered obscene. State legisla- tures have attempted to define or describe the term obscene, but this often results in the use of other arguably vague terms such as lewd, lascivious, and wanton. Sex offense statutes have also been challenged on the ground that they violate an individual’s right to privacy. The Supreme Court addressed this argument in the 1986 case of Bowers v. Hardwick, when it held that there is no federal privacy right to engage in same-sex acts. Since Bowers, many state courts issued similar rulings. However, the Supreme Court, in its 2003 landmark Lawrence decision, changed the land- scape. According to the Court, private conduct is protected under the due process clause, and as such, Bowers “should be and now is over- ruled.“In his opinion, Justice ANTHONY KENNEDY stated, “The petitioners are entitled to respect for their private lives.” Sex offense laws have also been challenged on the ground that they violate equal protection guarantees under the Constitution. Most courts have followed the Supreme Court’s decision in Michael M. v. Superior Court (450 U.S. 464, 101 S. Ct. 1200, 67 L. Ed. 2d 437 [1981]), that they do not. The Michael M. case involved a state statutory rape law that prohibited sexual intercourse with a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEX OFFENSES 155 woman who is under 18 years of age and who is not the perpetrator’swife.Thus,onlymales were liable under the law. The defendant was a 17-year-old boy who had sexual intercourse with a 16-year-old girl. The defendant argued that the statute violated the equal protection clause of both the federal and state constitutions. The Supreme Court held that the “obviously discrim- inatory classification” was justified by the impor- tant STATE INTEREST in protecting women who, unlike men, can become pregnant and suffer the harmful and inescapable consequences of preg- nancy. It has also been held that non-statutory rape laws do not violate the equal protection clause in the following cases: State v. Kelley (111 Ariz. 181, 526 P.2d 720 [1974]), cert. denied (420 U.S. 935, 95 S. Ct. 1143, 43 L. Ed. 2d 411 [1975] ); Wilson v. State (288 So. 2d 480 [Fla. 1974]); State v. Lorenze (592 S.W.2d 523 [Mo. Ct. App. 1979]); State v. Rivera (62 Haw. 120, 612 P.2d 526 [1980]); Griffin v. Warden (277 S.C. 288, 286 S. E.2d 145 [1982]). The Supreme Court addressed constitution- ality of the death penalty for child rapists in Kennedy v. Louisiana (554 U.S. —— , 128 S. Ct. 2641 [2008]). In that case, the defendant was convicted of the aggravated rape of his eight- year-old stepdaughter and was sentenced to the death penalty pursuant to a Louisiana statute authorizing CAPITAL PUNISHMENT for the rape of a child under 12 years of age. In a 5-4 decision, the Court held that the Louisiana statute violated the Eighth Amendment’s ban on CRUEL AND UNUSUAL PUNISHMENT . In reaching its deci- sion, the Court observed that the death penalty could be imposed for child rape in only six states and that none of the other states that provided for a death penalty, nor had any federal jurisdiction authorized capital punish- ment for the crime. Shortly after the decision, it was discovered that the Court’s observation was incorrect and that an amendment to UNIFORM CODE OF MILITARY JUSTICE in 2006 allowed child rape to be punishable by death. Despite this discovery, the Supreme Court let its decision stand. Evidentiary Issues A modern and revolutionary means of identify- ing criminal defendants in sex offense cases is the use of DNA EVIDENCE, often called DNA fingerprinting. Most of the cells of the body and bodily fluids contain a copy of the individual’s DNA. Because every person has unique DNA (with the exception of identical twins) it can be used as reliably as a fingerprint in identifying someone. The Florida District Court of Appeals, in Andrews v. State (533 So. 2d 841 [1988]), review denied (542 So. 2d 1332 [1989]), was the first appellate court in the country to uphold the admissibility of DNA evidence in a criminal case. The Andrews case involved DNA testing of semen left at the crime scene that matched the DNA of the defendant. The court permitted the admission of the DNA evidence on the ground that it was considered scientifically reliable. Most states now permit such evidence to eliminate an individual from the list of criminal suspects. DNA testing has also been used to examine evidence from crime scenes gathered years before DNA testing was available. These tests have been successful in many post-conviction proceedings to show that the individual con- victed and incarcerated was not the actual offender. Thus, DNA evidence has secured the release of many innocent people. DNA evidence has been successfully chal- lenged based on the laboratory’s methods of running or performing the DNA tests. Human error can render unreliable results and make the basis for a challenge to such evidence in any trial. These attacks generally affect the weight of the evidence but usually do not make the evidence inadmissible. Rape Shield Laws Rape SHIELD LAWS are state statutes that restrict the admission of a rape victim’s sexual history into evidence in rape trials. British and Ameri- can common law routinely admitted evidence of a rape complainant’s past sexual history. It was believed that this evidence could bear adversely on the complainant’s credibility as a witness. In addition, courts adhered to the belief that if a woman had consented to sexual activities in the past, it was an indication that she was more likely to have consented to the sexual acts alleged. Rape law reform gathered momentum in the 1970s and resulted in the enactment of rape shield laws in every jurisdiction in the United States in little more than a decade. Some states enacted special laws and other states amended their existing evidentiary rules to greatly restrict evidence of a rape victim’s sexual history. However, there are several general exceptions GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 156 SEX OFFENSES in which such eviden ce is deemed relevant and thus admissible. If the prosecution raises the issue of the complainant’s physical condition, by arguing that the defendant was the source of pregnancy, sexually transmitted disease, or semen found on the COMPLAINANT, the defendant may bring up the complainant’s sexual history to show that another man was the actual source. Defendants may also introduce such evidence to show the complainant’s modus operandi (method of operating), most commonly used to demon- strate that the complainant regularly exchanged sexual favo rs for money; in other words, that she was known as a prostitute. Another exception to most rape shield laws is using past sexual history of the complainant’s sexual relations with the defendant to show that if she consented in the past, she was more likely to have consented on the occasion in which she alleges rape. Some states also permit evidence of prior sexual history to show that the defendant was informed of something that led him to believe that the complainant would readily consent to sex, thereby negating the defendant’s mens rea (crimi- nal intent) necessary to convict him. Past sexual history can also be introduced like any other evidence where it contradicts the witness’sprevi- ous testimony, showing that the witness has been untruthful when testifying under oath. Evidence that a complainant has previously fabricated sexual assault charges is also generally admissible to IMPEACH the complainant’s credibil- ity as a witness. Finally, past sexual history may be admitted into evidence to show the complainant’s motive to testify falsely. For example, a com- plainant may be trying to explain a pregnancy or hide the fact that she had sex with someone other than her boyfriend. HIV and AIDS Like other areas of law, sex offense law has been affected by the health concerns related to the human immunodeficiency virus (HIV) and ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) epidemic. In 1990 Congress passed the Ryan White Comprehensive AIDS Resource Emergency Act (42 U.S.C.A. §§ 300ff et seq.), which requires states to prosecute people who knowingly or intentionally expose others to the virus through sexual contact, blood or tissue donations, or sharing of hypodermic needles. States must do so in order to be eligible for federal grant money. Some states have used traditional criminal statutes to prosecute such offenders, by charging them with attempted MURDER or assault. For example, in State v. Haines (545 N.E.2d 834 (Ind. Ct. App. 1989), the defendant was convicted of attempted murder for biting, scratching, spitting, and throwing blood on others with the intent to infect them with his HIV condition. In Zule v. State (802 S. W. 2d 28 [Tex. Ct. App. 1990]), the court upheld the conviction of aggravated sexual assault and transmission of HIV where the defendant, who knew that he was HIV positive, engaged in sodomy with a 15-year-old boy who, two years later, tested positive for HIV. Approximately half of the states have specific statutes that address the crime of knowingly transmitting HIV through sexual and other conduct. For a defendant to know that he is HIV positive is enough to establish intent under these statutes. Many of these statutes forbid “intimate contact” or conduct reasonably likely to result in the transmission of “bodily fluids.” These statutes have withstood constitutionality challenges that they are vague (People v. Dempsey, 242 Ill. App. 3d 568, 610 N. E.2d 208 [1993]; People v. Russell, 158 Ill. 2d 23, 630 N.E.2d 794 [1994]. Consent is generally a defense to these crimes; however, lack of medi- cal evidence supporting a likelihood of trans- mission or a lack of actual transmission of the disease is not a defense. Another legal development that has arisen over the public concern about HIV and AIDS is mandatory AIDS testing of accused and con- victed sexual offenders. In 1990, Congress passed the Crime Control Act (42 U.S.C.A. §§ 3756 et seq.), which requires HIV testing of sex offenders when specifically requested by a victim of sexual assault. In response, most states enacted laws requiring individuals accused of certain crimes to be tested for AIDS. Some states mandate pre- conviction testing; others require post-conviction testing. In some states, testing is permitted if the alleged victim can demonstrate a compelling need to have the test results. These laws have been challenged in the courts on the grounds that they violate privacy rights, FOURTH AMENDMENT rights against unreasonable searches, and the PRESUMPTION OF INNOCENCE of criminal defendants. Most courts have rejected such claims based on the Supreme Court’s GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SEX OFFENSES 157 . (2007) 86.0 88 .9 90.3 84.1 64.1 83.2 72.1 86.7 95 .4 90 .2 85.7 81.3 N.A. 77.0 84.1 72.3 94 .2 N.A. 90 .5 85 .9 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, . Women 96 .1 91 .7 81.2 75.5 52.2 88.7 43.3 73.2 93 .6 91 .4 68.3 89. 7 95 .6 35.8 71.2 61.1 84.4 91 .8 40.1 85.4 Women’s Earnings as a Percentage of Men’s (2007) 86.0 88 .9 90.3 84.1 64.1 83.2 72.1 86.7 95 .4 90 .2 85.7 81.3 N.A. 77.0 84.1 72.3 94 .2 N.A. 90 .5 85 .9 ILLUSTRATION. non-forcible sex offenses that have been recognized since early American common law. These acts are still GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 152 SEX OFFENSES unlawful under some