Illustration by Daniel Elchert
Until 2003, Missouri was one of four states that criminalized what Oscar Wilde called “the love that dare not speak its name.” In short, same-sex sodomy. Then the U.S. Supreme Court ruled that laws criminalizing sodomy between consensual adults were unconstitutional. Once, the state had declared any sex outside of marriage a crime; now, it was tiptoeing out of the bedroom altogether.
But, oh, Wilde would have had great fun hiding behind the curtains to watch this ruling play out.
Laura Rosenbury, a professor at Washington University School of Law, co-authored an article in the Emory Law Journal pointing out that, narrowly read, the ruling was insisting on emotional intimacy. “Some lower courts are reading Lawrence as actually requiring a monogamous relationship,” she says with some alarm.
Because of the way Justice Anthony Kennedy worded the decision, writing warmly of sex as “but one element in a personal bond that is more enduring,” lower courts have taken the 2003 Lawrence v. Texas ruling as an excuse to ban sex toys and to allow someone to be fired for adultery. (No, it wasn’t on the desk, and it wasn’t with a co-worker.)
Rosenbury recently rifled through Missouri’s criminal code and found a definition of “deviate sexual intercourse” still on the books (Section 566.010). Granted, it didn’t make the “deviate” acts crimes in themselves, but it distinguished them from “sexual intercourse” and set different provisions and consequences. And what were these deviate acts? The slightest penetrations by an object—the tip of a feather, perhaps. Or just about anything in public.
Do relax: As long as you’re in the privacy of your own home and there’s not a third person present, you’re safe from the law. But all of those great movie scenes are now crime scenes: elevators, beaches, cloakrooms... “I think having sex at a drive-in would potentially constitute
sexual misconduct in the second degree,” Rosenbury sighs.
