The roles and rules of law in sexual development - Statistical Data Included

Journal of Sex Research, Feb, 2002 by Roger J.R. Levesque

How individuals and society approach sexuality and sexual behavior necessitates a close look at how the legal system formally regulates individuals and seeks to foster certain dispositions. The law regulates sexual behavior and development in numerous and complicated ways. The law regulates sexuality through three major legal paradigms: criminal law, civil law, and child welfare law. These paradigms are enforced at three different levels of jurisdiction: local, state, and federal law. In mm, these paradigms and levels derive from three different sources: case law, legislative law, and constitutional law. All of these paradigms, sources and levels of jurisdiction provide the foundation for analyzing how the law controls sexual behavior. Given the complexity of laws, no compendium has yet to examine the numerous types of laws, the effectiveness of such laws, and how laws regulate sexuality throughout the entire life-span. This brief overview necessarily focuses on general legal trends. To do so, the analysis separates the regulation of sexuality to focus on the extent to which the law controls factors influencing sexual activity, attitudes, and related behaviors.

REGULATING SOCIAL INFLUENCES ON SEXUALITY

Understanding how the law influences the development, attitudes, and outcomes of sexuality requires beginning with the central factors often identified as highly influential: families, schools, media, and service provision. These factors are all the subject of considerable regulation, and even have contributed to the development of cases eventually decided by the Supreme Court. Although the regulations increasingly result in settled doctrine, it is important to emphasize that other factors are emerging as important to consider (such as group factors involving, for example, religious and cultural concerns) and that those factors are now being addressed more systematically by the legal system. Although much may remain to be determined, we can nevertheless discern important trends and developments that certainly will guide and be reflected in future efforts.

Family

Law partly regulates sexuality through its regulation of family life. That regulation generally treats adults and children differently. The law generally views children as belonging to their parents and protects the parental right to control the upbringing of their children. This generally allows parents to control their children's rights, ranging from the parents' general right to control information their children receive, their children's associations with others, and their children's activities (Levesque, 2000a). The law generally treats adult family members as separate individuals (Levesque, 2000a). Yet, the law still allows adults considerable freedom to control the rights of others, so long as the others are willing. The difference between children and adult family members' rights become most obvious when conflict (or potential conflict) between family members arises. The different rights of children and adults result, for example, in granting adults greater power to exercise the right to access contraceptives, receive abortions, raise children, and gain direct access to medical treatment and social services for matters relating to sexual activity, behavior, and relationships.

Although parents and adults within families possess considerable rights, the rights are not without their limits. The state's two broad powers allow it to intervene in families (for a review see Levesque, 2000a). The parens patriae power allows the state to act as parents would when parents fail to perform their duties or allows the state to act in a manner that supports parents (e.g., by permitting the use of curfews, limiting access to sexualized materials and services, and requiring parental permission to receive certain medical treatments). The state's police power allows it to intervene to protect both minors and adults. That power authorizes the state to act as protector of the community--to make laws to protect the public health, safety, welfare, and morals. It is through this power, for example, that states may enact criminal laws to protect family members from victimization (Levesque, 2002a). Both of these powers provide important limits on the extent to which families may act freely in influencing other members' sexual development, behavior, and attitudes.

The manner in which the law regulates families, by providing them with considerable freedom and important restraints on that freedom, provides important opportunities for fostering responsible sexual attitudes and behaviors. Most notably, for example, laws allow for protecting children from emotional, physical, and sexual maltreatment, all of which have important developmental consequences on sexual behavior and attitudes (for a review see Levesque, 1998, 1999). In addition, the broad legal principles of family privacy and parental rights protect families from unwarranted state intrusion. Those principles allow, for example, families to perform socialization functions consistent with community values that foster healthy development. However, the extent and manner the rights limit efforts to intrude in families remains highly controversial. One side of debates seeks to increase the rights of parents so they can fulfill their responsibilities while the other side seeks to increase the rights of children so that the state may have more freedom to ensure their best interests. Although those debates most likely will continue, important efforts move beyond polarizing tendencies and benefit from what we know about the necessarily multiple influences on sexual development. For example, parents retain the venerable right to raise their children as they see fit even to the extent that it allows them to foster sexist beliefs and attitudes. The right, however, faces many social limits in the form of extrafamilial influences on sexual development and attitudes (e.g., schools and the media). The law allows for regulating those other social influences in ways that may foster responsible sexual development by complementing parental rights and ensuring that parents act within accepted community standards.