Also known as: sexual behaviors · sexual conduct
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A category of private intimate conduct between consenting adults that the Due Process Clause protects as a fundamental liberty interest. The state may not criminalize such conduct solely on the basis of moral disapproval when it occurs in private and involves no commercial element or coercion.
A category of private intimate conduct between consenting adults that the Due Process Clause protects as a fundamental liberty interest. The state may not criminalize such conduct solely on the basis of moral disapproval when it occurs in private and involves no commercial element or coercion.
Select any source to read its text and confirm it supports the definition.
Specific instances of a person's past intimate activity that evidentiary rules generally exclude from trials involving alleged sexual misconduct. Limited exceptions permit admission when the evidence proves an alternative source of physical proof or consent with the accused.
Select any source to read its text and confirm it supports the definition.
Specific instances of a person's past intimate activity that evidentiary rules generally exclude from trials involving alleged sexual misconduct. Limited exceptions permit admission when the evidence proves an alternative source of physical proof or consent with the accused.
Each sense below has its own examples, sources, and questions.
Marcus Reed and Julian Ortiz, two adult inmates in a consensual relationship, face charges under a state statute that bans same-sex sexual conduct inside prisons. Officials defend the law solely by citing moral disapproval and offer no evidence of coercion or security threats. The court dismisses the charges because the Due Process Clause protects private consensual adult conduct from criminal prohibition based only on moral grounds.
Adult partners Elena Voss and Marcus Hale are charged under a statute criminalizing private consensual intimacy between adults of the same sex. Prosecutors rely solely on moral disapproval with no claim of coercion or commerce. The court dismisses the prosecution because the Due Process Clause shields such private adult conduct from criminalization on moral grounds alone.
Adult roommates Taylor and Jordan face prosecution under a state law banning private intimate conduct between consenting adults. The state offers only moral disapproval and no evidence of harm or coercion. The court holds the statute unconstitutional because the Due Process Clause protects such private adult conduct from criminal prohibition based solely on morality.
Yes. The Due Process Clause protects the liberty of adults to engage in private, consensual, noncommercial sexual intimacy. A statute that criminalizes such conduct fails rational basis review when the state offers only moral disapproval as justification.
Supporting sources
No. The government may criminalize the sale and distribution of visual depictions of minors engaged in sexual conduct even when the material would not qualify as obscene under the Miller test because child pornography constitutes a distinct unprotected category of speech.
Supporting sources
Zara reports an assault and a rape kit shows semen and abrasions. Zane seeks to introduce proof that Zara had consensual sex with another man earlier the same day. The court admits the evidence because it tends to show that someone other than the defendant was the source of the physical findings.
Zane faces sexual assault charges arising from a business trip. He offers proof of prior consensual encounters with Zara on earlier trips to support a consent defense. The court admits the evidence because it involves specific instances of the victim's sexual behavior with the accused and is offered to prove consent.
Defendant Lee is tried for sexual assault. He seeks to admit evidence of two prior consensual encounters with the complainant to establish consent. The court admits the specific-instance evidence because Rule 412 permits it when offered to prove consent between the victim and the accused.
A defendant may introduce specific instances of the victim's sexual behavior to prove that someone other than the defendant was the source of semen or injury. The same evidence is also admissible when offered to prove consent in encounters between the victim and the accused.
Supporting sources
In civil cases the court may admit evidence of a victim's sexual behavior or predisposition only when its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. Reputation evidence is admissible only if the victim has placed it in controversy.
Supporting sources
…does not say how far the new constitutional right of privacy announced today extends. See, e. g. , Mueller, Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose, however, that even after today a State can constitutionally still punish at least some offenses which are not committed in…