The Law of Sex in Maryland Part 3 – Sex with Wal-Mart, Sex with Animals, Perverted Sex and Unnatural Sex

Out of decorum, I note that today’s post will be a little bit more graphic in its content than the average post on sex in the law. The purpose is not to offend, but to provide a lesson in statutory construction.

Much has been made of a recent Florida statute that appears to have banned sexual conduct or sexual contact with an animal.  While it is likely that the drafters of the bill intended to distinguish between humans (which are indeed animals) and non-human “animals”, the statute is less than clear in its strict reading.

Of course had some of the good commenters over at Professor PZ Myers’ Pharyngula site been Marylanders, they might have spotted the embarrassing ambiguity in our own Unnatural and Perverted Sexual Practices statute, Md. Ann. Code §3-322:

(a) Prohibited.- A person may not:
(1) take the sexual organ of another or of an animal in the person’s mouth;
(2) place the person’s sexual organ in the mouth of another or of an animal; or
(3) commit another unnatural or perverted sexual practice with another or with an animal.

The maximum penalty for violations of this section is 10 years in prison and a $1,000.00 fine; more on this later.

First, it raises the question of what the difference is between a “person” and a “animal.” Human beings are indeed animals. One might be tempted to argue that some human beings are not persons, and that some non-human animals have real personality, as Vincent Vega famously argued regarding pigs to Jules Winnfield in “Pulp Fiction.” The Criminal Law article helpfully defines “person” at section 1-101 to mean “an individual, sole proprietorship, partnership, firm, association, corporation, or other entity.” It’s a bit ridiculous to think of how a partnership or corporation could engage in an “unnatural or perverted sexual practice” with or perhaps against a person, but to those of us who have had to deal with senior law partners. with health insurance companies or with a cell phone company the concept perhaps quite plausible. More laughable perhaps is that such “persons” would be considered “persons” when they have unlimited life, limited liability and exist in their precise form by precise keystroke dictate of their “parents” – traits that we human persons do not have.

More generally, the sexual practices identified between individual human persons – let us, for decorum, remove both Porky Pig and Wal-Mart from the definition of “person”, please – carry greater maximum penalties than those existing for DWI. One suspects that it would be exceedingly difficult to prosecute this statute against, well, perhaps a substantial percentage of Maryland couples. This is a law firm website, not a sex research site, but I really shudder to think what percentage of the Maryland Bench has committed violations of this statute in the last 30 days.

If you look closely at subsection (3), you will see that “unnatural or perverted” remains undefined. Birth control is legal under Griswold v. Connecticut but what else might be “unnatural”?  Turning on – or turning off – a night light?  Putting on a Marvin Gaye CD?  Dressing up like Blanche from “The Golden Girls”?  How about having sex while Dr. Ruth Westheimer is on the radio in the next room?  I am being facetious, but we don’t have a clear line, and the penalty isn’t a $20.00 fine but up to 10 years in prison.  I don’t know that conjunctive “unnatural AND perverted” would be much help, but we have a ten-year criminal penalty for a crime for which we cannot say, “THIS is what it is” and precisely which either “unnatural or perverted” practices in the DISjunctive are jailable.  Nor is the spine of Maryland’s constitutional structure – the common law of England as incorporated in Maryland’s Declaration of Rights, article 5 – much help; this is a creature of statute and the common law did not know these terms in a specific way.  We know what “sodomy” is from the common law, but we cannot define “unnatural or perverted sexual practices.”

One suspects that this statute benefits from extremely rare prosecution, that the provisions regarding practices between human persons are almost unenforceable after three decades of the aforementioned Dr. Ruth and now Dan Savage, and that the public outcry against any State’s Attorney who would fine or jail any couple for playing “Monica and Bill” quietly and in private would kill that attorney’s political career with extreme prejudice.  I can imagine, however, that moral zealots in more conservative parts of the country might use tax dollars to investigate and prosecute not car theft, not burglary and not the scourge of jaywalking but consensual sex not bearing the Church Lady seal of approval of being both “natural” and “non-perverted.”

I end with an old joke:

Why did the chicken cross the road?  To get to the other side.
Why did the pervert cross the road?  He was superglued to the chicken.

Much of law deals with finding some type of useful, fair, consistent and observable line between, more or less, listening to Dr. Ruth Westheimer on the radio and supergluing oneself to a chicken.

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