
doi: 10.2307/1190376
"St. Paul's advice is as sound today as it was two thousand years ago," says Morris Ploscowe. "It would be a great deal better if men and women remained continent sexually or got married and then adhered to their marriage vows. Much emotional disturbance, human misery, crime, disorder, and illegitimacy would be averted if humanity could abide by St. Paul's teachings. It never has."l Because the "flesh is weak" in most people some of the time and in some people most of the time, with resulting offenses either to the persons or the opinions of others in the community, the law has erected fences of prohibition and of penalty. How effective these fences are is, at the very least, questionable. One distinguished writer on jurisprudence, Edmond Cahn, has observed that "the criminal laws relating to sex have very little systematic enforcement anywhere. Most of them ought to have been repealed long ago."2 There is some evidence, based on one serious, although debatable, attempt at research into sexual behavior, that if existing laws were actually enforced, about ninety-five per cent of the male population in America would go to jail.3 If this finding even remotely reflects the realities, it is plain that there is room to wonder whether our criminal sex laws are legally viable, and possibly also to question their ethical validity. Why are these unenforced laws still on the statute books? Morris Ploscowe, in another place, has explained their presence as "dead letter legislation" kept there "because of the fear that a vote for repeal would be branded as a vote for immorality."4 Writing more than a quarter of a century ago, Walter Lippmann offered a second explanation, saying that "what everybody must know is that sexual conduct, whatever it may be, is regulated personally and not publicly in modern society. If there is restraint, it is voluntary; if there is promiscuity, it can be quite secret."5 Here, in these two comments, we have a large part of the reason for our continued lip service to unenforced sex laws: fear of appearing indiferent to morality if we advocate cutting out the dead wood, in the eyes of those who think by what recently
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