Maryland Sex Law

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.

As discussed in Part 1 of this series on the law of sex, the Maryland Annotated Code prohibits many forms of exposure to minors of “adult sexual displays” defined to include portrayals of any sadomasochistic abuse, sexual conduct or sexual “excitement” in visual, oral or explicit narrative format.  Several such statutes appear in Subtitle 1 of Title 11 of the Criminal Law Article of the Code (“Indecency and Obscenity”).  As discussed before, many R-rated films contain these explicit depictions of sexual conduct and certainly sexual excitement (e.g. “I’ll have what she’s having”), and 17 year-olds can clearly see R-rated films, as can much younger teenagers or even children with a parent or guardian.

I suspect, but cannot tell, that the phrase “sadomasochistic abuse, sexual conduct or sexual excitement” used in several sections of that subtitle may have led some lawmakers to conclude that “sadomasochistic” modified “sexual conduct” or “sexual excitement” when in fact “sadomasochistic abuse”, “sexual conduct” and “sexual excitement” are each stand-alone noun phrases defined as terms of art in section 11-101 of the Criminal Law Article.  Had the terms been ordered “sexual conduct, sexual excitement or sadomasochistic abuse” I suspect that the law would have had a harder time passing; had it passed in that format, I suspect that a few of the more puritanical State’s Attorneys might have tried to prosecute the local Blockbuster or Barnes & Noble for public morals or for the justification of their own budgets in hard times. But then I think the worst of prosecutors much of the time, so perhaps I am just jaded.

Similarly, in section 11-105 of the same subtitle, it is prohibited in Maryland to portray for advertising purposes an image of the human body that depicts “sadomasochistic abuse, sexual conduct or sexual excitement” OR “contains a verbal description or narrative account of sadomasochistic abuse, sexual conduct, or sexual excitement.”  So basically, this means that you cannot show a picture of popcorn icon Orville Redenbacher, replete with bowtie, while playing Marvin Gaye’s “Let’s Get It On” in the background loop – IF you are doing it to advertise something (e.g. popcorn.)  The penalty for this is up to 6 months in jail and a $1,000.00 fine – greater than the penalty for hitting someone’s unoccupied automobile and running without leaving insurance information.

I am not well-schooled on the constitutional limits on commercial speech regulation, but in general the Supreme Court has held that speech in commercial contexts, including but not limited to advertising, is less protected under First Amendment jurisprudence than is speech for mere personal, political or artistic expression.  The state is considered to have a greater interest in controlling commercial speech to prevent fraud, to regulate a specific industry (including my industry, professional legal services), to define how prices and other information is communicated and to enact other regulations as to time, place and manner for such speech.

This is the first post in a series on the law of sex in Maryland. This first post will focus on the age(s) of consent for sexual activity, defined broadly, in Maryland.

There is, simply put, no uniform age of consent in Maryland in the realm of sexuality. Maryland’s criminal code prohibits a number of different activities on the basis of age, with aggravated penalties for certain acts involving particularly young people. Some of the crimes allow for a consent defense; others by their definition involve circumstances inconsistent with consent and/or do not allow consent as a defense. No substitute exists for a close reading of the relevant statutes. While this post is primarily about consent and not about sexual predation, violence or assault, a brief discussion of sex crimes more broadly is necessary.

The Annotated Code of Maryland (abbreviated Md. Code Ann. according to a blue book known as The Bluebook published annually by one law school in suburban Boston) is divided predominantly into subject volumes, such as Real Property, Family Law and the like. The process of re-codifying Maryland’s 1957 Code – largely alphabetical such that Alcohol article would come numerically before Animals but after Adoptions – has taken a long time. Article 27, Crimes and Punishments, has been recodified into the Criminal Law Article and to some extent the Criminal Procedure Article.

Title 3 of the Criminal Law Article deals with miscellaneous crimes against persons such as robbery, kidnapping and sexual crimes, the last in subtitle 3. Maryland’s Constitution provides in the Maryland Declaration of Rights, Article V, that the common law of England as it stood on Independence Day, subject to lawful modification, is not merely the law of Maryland but something to which the Inhabitants of Maryland are “entitled.”

It is in this spirit that Maryland’s General Assembly maintained much of the common law of rape – defined at common law heteronormatively and anatomically, with force and without consent – while creating a separate charge titled as “sexual offense” for other analogous sexual acts, with parallel penalties. Interestingly, Maryland does not have a charge called “statutory rape”; certain underage sexual acts that do not constitute common-law rape are defined as one degree or another of sexual offense or as second-degree rape. Maryland’s Code even goes out of its way to preserve the common law definition of rape in cases of doubt or ambiguity by an explicit provision at section 3-302 of the Criminal Law Article.

Maryland’s sex crimes statutes rely on three “workhorse” definitions: vaginal intercourse, sexual acts – defined as:

(i) analingus;

(ii) cunnilingus;

(iii) fellatio;

(iv) anal intercourse, including penetration, however slight, of the anus; or

(v) an act:

1. in which an object penetrates, however slightly, into another individual’s genital opening or anus; and

2. that can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party.

and sexual contact, defined as the touching of the “genital, anal or other intimate area” for the sexual arousal, gratification or abuse of either party.

In general, it is a fourth degree sex offense to engage in a sexual act or vaginal intercourse when the victim is 14 or 15 AND the performer of the act is more than 4 years older than the victim. In addition, teachers who are 21 or older and meet other criteria can be prosecuted under the same statute for sexual contact, a sexual act or vaginal intercourse with a minor, even one who is over the age of 15. The charge is a misdemeanor and carries a maximum of a year in jail and a $1,000 fine maximum; to compare, the same penalties apply for driving an uninsured motor vehicle.

It is a third degree sex offense in Maryland – a felony – for someone 21 or older to engage in a sexual act or vaginal intercourse with someone 14 or 15 years old, or for anyone more than 4 years older than an under-14 victim to engage in sexual contact with that victim; sexual acts or vaginal intercourse under the latter age spreads constitute second-degree sexual offense and second-degree rape.

In sum, 16 year-olds can consent to sex, period. 14- and 15-year olds can consent legally to sex with persons less than 4 years older than themselves. Sexual activity generally between those over 18 and those under 13 brings a felony charge against the older party, period, with a significant risk of severe mandatory sentences.

There are other laws designed to protect youth from sexual exploitation, such as a 30-year penalty for a continuing course of sexual conduct with a child and laws prohibiting the exposure to minors of certain adult sexual displays. While some of those laws make common sense, §11-602 of the Criminal Law Article reads as follows:

(a) Prohibited.- A person may not knowingly sell or offer to sell to a minor:

(1) a picture, photograph, drawing, sculpture, motion picture, film, or other visual representation or image of an individual or portion of the human body that depicts sadomasochistic abuse, sexual conduct, or sexual excitement;

(2) a book, magazine, paperback, pamphlet, or other written or printed matter however reproduced, that contains:

(i) any matter enumerated in item (1) of this section;

(ii) obscene material; or

(iii) explicit verbal descriptions or narrative accounts of sadomasochistic abuse, sexual conduct, or sexual excitement; or

(3) a sound recording that contains:

(i) obscene material; or

(ii) explicit verbal descriptions or narrative accounts of sadomasochistic abuse, sexual conduct, or sexual excitement.

I won’t make a comprehensive analysis of the statute here, but it’s the “narrative description” that bothers me. How many Harlequin romance novels pass through Barnes and Noble bought by – or for – teenage girls? How many movies and audio recordings sold at Blockbuster include narrative accounts of “sexual excitement” or “sexual conduct”? Would this include Cyndi Lauper’s 1980’s suggestively autoerotic hit “She Bop“, or the film “American Pie”, or would they not be sufficiently “explicit”?  Consider that it may be lawful for a 17-year old to watch “American Pie” in the back of the theatre while engaging in “sexual conduct” with her 17-year old date (if not exposing themselves and not told to leave by management), but a jailable offense for Blockbuster to sell her the tape of “American Pie” on video after she’s seen it lawfully in the cinema under this statute – until she turns 18.  It’s legal to have sex, but not to read too much about it, at age 16 or 17 in Maryland – a perverse public policy result, since reading about sex, unlike sex itself, carries absolutely no teen pregnancy or STI risks.

While I think reasonable people can count on common sense to keep the State’s Attorneys and overtime-seeking vice cops out of the romance aisle at the local bookstore, this statute just seems sloppily overbroad in its language and constitutionally suspect accordingly under First Amendment jurisprudence, though I am not particularly well-read in that area.  This blog series will come back to these statutes with a focus on matters other than age(s) of consent in future posts.