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What's the point?

A bill that would remove outdated restrctions on the personal, sexual lives of consenting adults passed the Arizona Legislature's Senate Judiciary Committee Tuesday. Hopefully, this will bring Arizona up to speed with 21st century sensibilities. The time is well past for these archaic sex laws to be stricken from the legal code. The rest of the Legislature could do no better than to follow the judiciary committee's lead in taking the laws off the books.

Currently, the Arizona Revised Statutes contain laws outlawing sodomy, "lewd and lascivious acts" such as oral sex, adultery and cohabitation. These acts are considered misdemeanors and are punishable by a relatively small fine and a 30-day jail term, but when the laws were originally written into the statutes between 1901 and 1917, they carried much harsher penalties. Originally these crimes were felonies, cohabitation bringing a sentence of three years in prison, sodomy up to 20 years in prison and "lewd acts" anywhere from five years to life in prison without parole.

Aside from being illegitimate instances of governmental power, these sexual codes are unenforceable. Law enforcement agencies can barely deal with drunk drivers and drug dealers, how can they be expected to deal with live-in girlfriends and cheating husbands as well? They can not, but more importantly, they should not be expected to attend to such matters.

What these laws represented then and continue to represent now is an overstepping of boundaries by the government. There is not one good reason for a state to regulate the private, sexual behavior of consenting adults. There are good reasons for a state to promote certain behavior, but to codify that behavior, especially in so private a sphere, is unacceptable. It is in a state's best interest to discourage unmarried women from bearing children, but it is inappropriate for a state to pass a law forbidding unmarried women to bear children.

Supporters of these sex laws do realize that sexual legislation is unenforceable; they do not, however, seem to realize that while appearing as the height of morality, these laws are actually, within a democratic framework, morally repugnant. Defenders of the law contend that sexual legislation has an important function independent of its ability to be enforced. The true purpose of these laws is not to prosecute people under them, but rather to promote a generally acceptable moral atmosphere. Sen. Tom Smith, R-Phoenix, who voted against the repeal, put this side of the issue in succinct terms saying, "Some of these standards may not be able to be met, but they still are standards for our state." Again, it is fine for a state to have and promote moral standards, but wrong to codify these standards in such a way that they inhibit what should be a perfectly free sphere of action.

Since the turn of the 20th century, these laws have become archaic. While they may still represent some people's sense of morality, it is safe to assume that these laws neither serve nor protect the majority of Arizona's population. They do not reflect today's sexual sensibilities; they do not reflect today's sexual realities, but rather offend those sensibilities and turn a blind eye to those realities. Kathie Gummere, co-chair of the Arizona Human Rights Fund, points out that "90 percent of the adult population violates the statute." The state's cohabitation, sodomy and lewd acts laws are seldom enforced, and only five reports were filed with the Maricopa County Attorney's Office in the past two years. Not one was prosecuted.

Neither failure on the part of many or most to obey a law, nor failure on the part of state attorneys to prosecute a law are excuses to strike a law from the legal code. These do, however, point to a need to evaluate the necessity and effectiveness of a law. A number of Arizona senators have recognized this need and acted accordingly. The rest of the state Legislature should follow suit and finally banish from the legal code offensive, outmoded sexual regulations that should never have been codified in the first place.

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