State Laws About Sex and Sexual Expression
All You Wanted to Know About State Laws relating to sex, expression about sex, and adult entertainment.
Age of Consent for Sex. State Obscenity Laws. Prostitution. Zoning Laws Regulating Sexually Oriented Businesses.
Age of Consent for Sex.
- State laws differ widely, and it is the law of any particular state which must be examined with particularity, because the penalties are frequently quite harsh. In general, the age of consent for sex in Illinois is 17, though the age is 18 when one of the participants is in a position of trust, authority, responsibility or care over the other, and when prostitution is involved. In Michigan, the age of consent is 16. In Wisconsin, Calfornia, and a great many other states, the age is 18, but in many states, what would otherwise be a crime because of the age of one of the participants may not be a crime if they are close enough in age to each other. There is no substitute for actually examining the law of each jurisdiction and preferably getting a professional legal opinion from an attorney practicing in that state.
- The law of consent for sex and the law of child pornography do not mesh. Though voluntary, consensual sex among peers, without prostitution may be legal among young people under the age of 18 in certain jurisdictions, federal law asserts that the creation, distribution, and possession of lascivious images of persons under the age of 18 are always a serious federal crime, punishable between 5 and 40 years in prison. Thus, though in some places, with some people, sex with a 17 year old, all night long, and involving complicated topological permutations, may be no crime at all, simply talking a lascivious image of a partner on a cell phone afterward could but someone in the federal Bureau of Prisons for 15 years.
- In some jurisdictions, it is a defense that the accused reasonably believed his partner to be of the lawful age. However, other jurisdictions give no slack in this regard. In states such as New York, Florida, and Utah, one has sex with another at one's own peril: even if the partner displayed an ID (fake, illegitimately issued, stolen, or borrowed) demonstrating that partner to be 21 years of age or older, even if that partner was met in a liquor establishment that may only lawfully admit persons of that age, nevertheless, none of those things will amount to any defense at all in those jurisdictions. This has something to do with history, and something to do that the affirmative defense of "mistake of fact" was generally available only when the good-faith mistake would have made the conduct fully lawful if the facts believed to be true by the accused really were true. The historical underpinning is, in some of those jurisdictions, that even if the partner was 21 yeares of age or older, the crime of fornication would still admittedly have been committed, and so therefore, the mistaken facts would not have wholly exonerated the act, it would just have been a less serious offense, and so the defense is not available.
- It is hard to know how many young lives have been destroyed through the selective enforcement of these laws. I've seen men go through anguish after a break-up when a heart-broken, dumped ex-girlfriend went to the police to even the score; I've known of a young man who went to prison after his girlfriend confided to a trusted aunt about the relationship, after the trusted aunt told her sister, the mother, and after the mother went to the police. The young man in question was well-known to the police, they were itching to find a reason to lock him up, brought in the girlfriend, and applied incredible pressure, threatening and scaring her and perhaps lying to her.
- Several resources exist online which purport to set out the legal age of consent. One of them with worldwide information, Avert, is found here. Another, focusing on the US is found here. Wikipedia provides two articles, one worldwide in focus here, and another page focusing on North America. It is with some reservations that I provide a link to Age of Consent. The problem is that the site has not been updated in ten years, and surely much in the law has changed during that period of time. ANY ONLINE SOURCE IS SURELY WRONG OR MISLEADING WITH RESPECT TO SOME JURISDICTIONS AND THE PRESENT LAW MUST BE CONSULTED BECAUSE NONE OF THEM ARE UPDATED DAILY, AND THE LAW DOES CHANGE FREQUENTLY WITHOUT MUCH NOTICE OR FANFARE. AgeofConsent.com does provide some phenomenal text and references, however, available nowhere else, that are a good point of departure for the further research absolutely NECESSARY to arrive at the present state of the law. It also archives the history of changes in laws around the world in a way no other site does. But don't rely on its tables or other informtion to be current and reflecting laws presently in force and effect. It does not to that. Only with those reservations, and surely with NO WARRANTY OF ACCURACY AND IN FACT DISCLAIMNING ANY AND ALL WARRANTIES OF ACCURACY, INCLUDING THE WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE, are any of these links provided. Use them at your own risk.
Obscenity Laws in the States.
- At last count, about 45 states had prostitution laws of general application on the books and one - New Mexico - has a statute that punishes obscene movies when they are shown on the screens of outdoor movies. They widely differ in the punishment they impose, from a minor offense in some states to a felony senence served on a chain gang in others, and while all of them must conform to the limitations found in the obscenity jurisprudence of the United States Supreme Court emerging from the First Amendment and the Fourteenth Amendment, they sometimes have peculiarities, such as the provisions in the laws of some states that a transfer of obscene materials among friends and without consideration is no crime. They differ widely in how they define the relevent "community" whose standards of tolerance or acceptance helps shape the first two elements of the offence. This is an area where the particular statute must be read closely and where it pays to research the actual track record of local prosecutions and jury verdicts. At least one Chicago judge has said from the bench that nothing is obscene in Chicago that does not involve pain, children, or animals, that may or may not be accurate, but it surely says nothing about what a jury might do in Northern Florida.
- The Nature of the "Community" Under the Miller Test..
- A Table of Obscenity Prosecutions Including Known State Prosecutions.
- An external link offering the state and federal obscenity statutes in one place - from a website of an opposing view.
- This area is included for two discete reasons. First, one of the commonest questions presented at legal seminars is about the risk of prosecution under prostitution laws for the commercial videography of explicit sex. Second, because this office represents persons charged with prostitution offenses on both sides of the coin, customers and sex workers.
- A good reference to both federal (don't forget about the Mann Act and the Travel Act) and state statutes concerning prostitution is found here, but as I've said elsewhere in another context, use it as your own risk because its information may be out of date. A similar caution extends to a link from the same organization about international prostitution laws.
- The Reasons to Fight If You Are Charged With a Prostitution-Related Offense - "Not Guilty"
- Our Video About Your Rights When Charged with a Prostitution Offense
- A Primer on the Law of Prostitution in Illinois, Updated 2012.
- Escort Advertising and the First Amendment
- The Communications Decency Act and Escort Advertising
- Case Materials from Sheriff Tom Dart's unsuccessful lawsuit against Craigslist, seeking to have its Erotic Services Section abated as a "public nuisance" under state law. His claim was trumped by the Communications Decency Act. First, his voluminous Complaint, in parts One and Two. Then, the Defendant's Motion for Judgment on the Pleadings, Part One, Two, and Three. Finally, Judge Grady's Order granting judgment to Craigslist.
- Prostitution and the Making of Porn Essential cases that deal with this issue.
Local Zoning Laws That Discriminate Against Adult Businesses.
- If, at any time during the early 1960's, you might have asked a good lawyer familiar with the First Amendment whether it was permissible to discriminate against bookstores because of the kind of books they sold, you would almost certainly have received a resounding "NO". Then came Young v. American Mini-Theaters, a case that established the power of municipalities to treat adult businesses differently, and worse, than other kinds of businesses, under the theory that it was not the content of the books that was being afflicted with extra burdens, but rather their "adverse secondary effects" that were targeted. This area of law was further developed in Renton and Alameda Books and is treated in many cases found in the "Time, Place, and Manner" category of this site's Cases Area.
- To provide you with a glimpse of the cynical manner in which local governments sometimes work using legal forms in what is really a desire to impose morality from top-down on people, we set out a case that had a happy ending, a case in which this office overturned the adult use zoning laws of DuPage County, Illinois, and which resulted in the establishment of that County's first "legal" adult use, a Gentlemens' Club named Diamond's.
- We successfully brought a civil rights action against the County of DuPage in Unied States District Court, obtained summary judgment including the award of attorney's fees, successfully argued the County's subsequent appeal to the Seventh Circuit, and successfully argued against Certiorari to the Supreme Court of the United States. By that successful litigation, we secured the right of our clients to open and operate the the first lawfully permitted Adult Use in DuPage County, Diamond's. It was necessary in that litigation to overcome arguments made - seriously - by the County that the Club would imperil the animals in a portion of a Forest Preserve not open to public recreation, and that its existence might adversely affect the students in school busses traveling along Illinois Highway 64 on field trips, en route to the more distant parts of the Forest Preserves actually open to recreation. Seriously.
- We've set the important documents of this case out here.
State Statues of all of the states may be accessed here. Believe it or not, one cannot rely on any such collection to actually state the law; such collections will include statutes in many cases which have been declared unconstitutional but never were repealed and many others whose actual meaning has been defined by the courts in ways that would startle or surprise a layman; examining a statute is only a first start to understanding it, and an "annotated" version of a statute that includes judicial interpretations and history should be consulted in any serious issue.
Copyright 2012 J. D. Obenberger. All rights reserved.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately, but offer no physical resistance.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is email@example.com.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented online programs.