Sexuality: a search for perspective; The protection of the person in laws regarding sexual behavior
When you finally walk out there is nothing more cruel than to take the life of someone else. It is the only omen. So all right that is the ultimate civil right of the child in the womb. All those who believe. That the child in the womb is not different in any significant aspect in the child outside the womb. I am a model gloomily. You insist on the protection of a child. Michigan State University radio presents sexuality a search for perspective a series of recorded lectures from an interdisciplinary colloquy on human sexuality held on the campus of Michigan State University. The purpose of this series is to provide a comprehensive discussion of human sexuality in its broadest possible perspective. And yet deal with this important and timely topic in an
organized informed and rational manner. The lecturer today will be Dr. John T Newman and professor of law in the University of California School of Law at Berkeley. Dr. Noonan has taught in the School of Law at Notre Dame University and is a writer in the fields of law and theology. He's the author of contraception a history of its treatment by the Catholic theologians and candidates. His topic today is the protection of the person in laws regarding sexual behavior. Now Dr. John T Newman what I'd like to talk to you about is the law in relation to the person sexual patterns. And to do so requires a statement at the beginning about what the law
does in a society how it. Functions are supposed to function. Now I suggest. That there are three. Functions of the law. The channeling function any coercive function and the teaching function. Do the logical you through the influence of the jurisprudence of John Austin as a pendency and popular discussion the focus on one aspect. Of the law and that is the coercive aspect. I think we in America. Oh a considerable day at. 2:00 on forever. The habit of law school. By his work bringing out the channeling function
of all. And I suggest. That when you consider what law is supposed to be doing it is often not only coercing. Or channeling but teaching. I think if you look at it just as you have clean. Image of the law are lighted to the bad man and the law tells the bad man what he can or cannot do. One of the bad me and I can't be caught. The law as in a fact of it's really failed to function. However most people. Are not bad man but uncertain and hesitant man. Knowing me and.
People who want instruction as to what those who have devoted study and care of the matter feel would be a rational way to behave. And for them in many areas the law is a teacher. I would like having made that introductory statement on the three functions of law so I would more on the coercive function then develop at some length. What I think is the primary channeling and teaching functions of war in this area of sexual morality. And then to return at the end to one aspect of the coercive function. Usually when you speak of a coercive function of all you are thinking of a criminal. And Amasa area. It seems to me. That a serious mistake is made. If. The.
Criminal dealing with sexual conduct. Is looked at. In isolation. From. Other criminal laws the reason I think that is that there's a great deal of dissatisfaction. In the legal profession and outside of it. With the whole criminal apparatus. With a great deal of feeling by at. Least some active operation of the criminal or are. On a relatively tiny percentage of persons who commit a crime is not a very good why to handle the problem. And virtually everything that can be observed. About the criminal laws dealing with sexual behavior. Could be observed about all our criminal laws. And. To
some extent one doesn't focus on the main problem if one just looks Lampley sexual laws. In this regard to look at the larger picture one can observe that an estimated 5000 people every year killed last spouses husbands kill wives wives kill husbands. Ron in 20 of those persons actually goes to jail for this crime. So that 19 out of 20 people. Didn't kill their husband or wife and got away with it. And if you just looked at planned. Protest like I doubt if you would conclude from much that we Should they are for abandoning or are of homicide and make it permissible for spouses to kill each other because we only punish. Now
the unlucky one in 20 who actually gets caught and gets sent to jail ought to take another type of statistic where if you're looking at the whole criminal law problem I think you can see. The meaninglessness of making the sexual area a special case the number of crimes against property. If you simply take Lassally of amounts over $50 a year $50 you have around seven hundred and fifty thousand cases of Lawson's And lastly no one to the police and you have another four hundred and fifty thousand cases of automobile faffed known to the police so annually you have
a million two hundred thousand instances of violation of the laws of family which are known. Though I think very few people knowing those statistics infer from that that the proper approach to the law of laughter would be to consent of the people who have their property stall on and causing the problem and to advocate the abolition of the laws of the APA because they are so manifestly in affective and so manifestly out of keeping with the mores of us lodge number of Americans who practice lastly. I suggest if you look at any of these areas of her I think. Most Americans would like to preserve
the perfection on our boards. You will feel that the problems lie not in the victims bought in the dolls who victimized them and in the whole system of enforcement and the system of punishment which instead of making people bad makes them worse. Well having said that. On the coercive use of the law in general let me turn to what I think is my fun. The more significant an area for our study and that is the area where the law channels and teaches. It does now most fundamentally and most
simply by the long which is in existence in every state creating and regulating. The institution of marriage. In this way the law mocks off one type of sexual behavior. And as for saving the approval of a community as the way it is proposed the persons that they meet as man and woman in a sexual life. Now if you look at the marriage law as we all take it for granted it doesn't seem very remarkable that we should have a license and system for marriage and a divorce
system and that we should have this kind of institution that we're familiar with. But if you look at it in comparison with what this has emerged from you can see that certain values. You know mentally bound up with the notion of the human person channeled into the four that we know as marriage in accordance with law and in channeling sexual activity in the marriage. The law provides the opportunity for man and woman to cooperate in a peculiar way and teaches that this is the way that is a rational way for human persons to cooperate.
The kind. Of marriage that weigh up a million whether in terms of legal model is has these characteristics. It is monogamous and excludes polygamy which is the more common form of marriage in historical experience. Yet explodes not only polygamy and excludes concubinage as only your own life can offer many parts of the world and you have an edge as a secondary part of marriage has been a recognized institution. It excludes the boss at the option of the person and incensed the social interest in the stability of the marriage. It
affirms the equality of sexual rights and obligations. In contrast to many systems in which a dollar a year is an offense that can be committed only by a married woman with a married woman. And it treats the family. As the primary unit for the education of the children in moral values. Now if you ask where one of these ideas come from which we now find you know you go into the ocean at this corner of the plane and evolve out
of the experience of west in the AM and evolved out of. I crossed values which them in pot from the Jewish path of the Judeo-Christian tradition and even more from the question of that tradition. If you look back at what the Roman warrior of marriage was like which was the horror of marriage forming the right background for our own Western European law marriage was essentially an upper class affair. It was something that was the right
and privilege of the upper classes. It was regulated and they are a guy and it was. Only Paul rated as far as the lower classes were concerned. But more. Serious last plank of the Roman system was that marriage was actually denied to a substantial portion of the population. Marriage was impossible for the slaves. So but in the 70s up to perhaps a third of a. City and in the country perhaps an even larger number of human persons was incapable
of entering into this privileged relation. It is only with the establishment of the Christian nations of Western Europe and in only in the 12th century that the idea was put forward that everybody for a lie is entitle to marriage and that this is put forward as a legally operative ideal. So what we try so easily and so randomly for granted that every man and every woman and the right to get married is something that has evolved and not something that has just happened and evolved from the notion of a human person as.
The ultimate sign our. Rights and duties without evolution making marriage open to all that has gone and evolution as to the equality of man and woman in that relation. In the Mediterranean with Christianity appeal the very fact of slavery meant that a great many persons. That's why we're going to be treated as planes as objects for the use of biomass and they have by sexually exploited beyond the simple fact of the use of slaves as sexual
playings was the possession of a woman in the Jewish law. Divorce was at the option of the man in the Roman law. It was virtually at the option of the man. The right term adulterate Jewish and Roman law for that matter in the Ten Commandments referred to a sexual act with a married woman and a man having in a cost whether an unmarried woman did not commit adultery either in Jewish or Roman long lane Christian teaching first set out by Jesus and by and by Paul in the first the pestle to the
Corinthians was a radically new teaching and incest thing that there was an equality of rights and obligations in sexual madness and that what was. True for the woman was also true for the main. This notion of sexually quality took on long time to realize in law again was not the Roman law but the law of Western Christian Europe that first man and woman on an equal level as far as the law so actual behavior was concerned. And of course to have this whole ideal put in the law was still very far from
putting it into reality. A very false picture was sometimes created by people who take laws for realities or take ideals whether they are questioned ideals or anyone else's ideals as well by themselves became operative in each case. All these ideals I speak of you have ideals being put forward as a religious tradition. Let me put forward to a man who pile of their own culture who govern by a 5000 other cultural influences and they will do the bast to reconcile the ideal player sleeve with the other social pressures around them so that the progress and acceptance of any set of ideals is a slow.
And faltering one. Number last it seems to me that in the long run Western Civilization accepted this ideal and the equality of sexual rights between man and woman. There is a further I asked planked of the development of the ideal pattern in the law and that is the ideal of choice in choosing one's spouse. As the Roman law presented the ideal plan for the upper classes a marriage was arranged by the parents and in most cases it seems to have been arranged and early and point particularly for the girl and the girl was 12 13.
It was often a knock arranged so that the boy and girl had not seen each other. Before they were. Married. Again Laura as a psyche was not changed until its wild century when the ideal of freedom of choice in marriage was put forward as a derivation from the Christian idea of what it meant to get married. And again there are long small and painful process went on and the cause of which the question Id put forward categorically in the canon law was in Chapter conflict with the small gentle ideals of an aristocracy that wish to control their property through the marriages of the children. Also related to the ideas
of equality and love. Person to Person is the idea of a faithful undivided monogamous commitment. Yeah you have a flame out of here as in the Old Testament in a rather rudimentary form in the first book in Genesis. The idea of a man leaving as father and mother and joining him self to a wife and becoming one with an idea that is then obscured in Judaism by the acceptance of the like of me which carried whether the cause and inequality of relationship
and which is then resumed in the history of Israel only through the prophets. Through manlike and Jeremiah o proclaim the ideal union in their image already the raw emotion of God to Israel. Now when you look back at the cluster of ideas which have emerged on the both Jewish and Christian development as the pattern for Western Europe it is clear that this is a rather remarkable sign of concepts remarkable and contrasts at least in what went before and wonder why I asked Can it survive.
You know they psyche of US society if we leave supporting theology is rejected. So far. I have spoken on the channeling force of our American law which is set up this pattern of equal monogamous free choice marriage as an ideal. I no wish to turn to one ass plank of the coercive power of the law. Weather was the greatest. The gray of controversy in the United States today and that is the law bearing on abortion. Here again I think it helps somewhat to look at the antecedent history before looking at the present
situation. When Christianity made its emergence in the Mediterranean world of Washington was widely practiced you know it was legal with the slant of the Father in Roman law and was seen at most as a kind of cheating of the father's rights. The Roman law took the position that the biology of the day that the fetus was a pot on the mother. And the Roma are active against the background in which the earlier law had said that the father had the right of life and death over his children until they became adults. And what even of the time of the yearly empire gave substantial rights of
the parents over their children the children being looked at as they are things the parents things there were two currents of thought apart from the law and the popular acceptance of abortion which were opposed to it. One was Jewish thought as other developed in the Diaspora inly Sanna's of Hynek culture to which Jews from Palestine and come. And then the site has developed an abortion opposition opposition that was first of all required acted in the great translation of the all Testament by the Jews which introduced in the exodus a problem of abortion after the fetus had reached a certain stage and then in the most
humanistic of Jewish teachers of the first century in the teaching of fly a lot of Alexandria there was an emphatic model rejection of abortion as the taking of a human life. The other comment of thought was medical stemming from the writings of the fifth century attributed to the school of hypocrisy where on grounds that a doctor should never take a life the Hippocratic Oath was framed and the doctor applied himself. Never give an abortifacient to a woman. The above trends of thought Greek medical and Jewish moron of week as opposed to the popular practice of abortion.
All rather wide scale. And for that matter the popular practice of infanticide on a wide scale. And when the questions appear had. It was in the face of the legal moms and the popular culture that they maintain that it was a grave evil to take the life of the child in the womb they did so on two grounds. First of all to thank the life of the child was to destroy the image of God and in that Fridays which evokes the words of Genesis the man is made in the image of God. They recognize both that there was another human being in the womb and that God had a plot in the creation of that human being which man could not
on his own volition destroy. The other rationale was put in terms of love of neighbor in one of the earliest of first century writings. The statement is made. You shall love your neighbor more than your life. You shall not supply the child in the womb. That's a question attitude not a fact. Along again until the establishment of a Christian nation in Western Europe and here as in the other areas I have discussed the secular law of the canon law and adopted its standards. In the 12 century one the canon law was written
a distinction was made not in the model of gravity but in the social sanction attached to abortion in canon law. Treated as subject to social sanction only the killing of the fetus after the 40th day. It's treated as a grave sin. The killing of the fetus at any time. The English law attempted the fall of the canon law which spoke of animation and Solomon as the important element in English that claims to have come out and seem to come out quick thing and the English landed was put in terms of the moment at which the child was felt.
The move in the mother's womb and any event from sometime in the thirteenth century and so early in the nineteenth century the criminal are betting on what type of the fetus. Why the coercive sanction of the law. Only after the quickening. The feeling of movement in the womb. In the 19th century and the canon law and the English law which no longer of course was influenced by the canon law. Both changed and changed for the same reason the law they went along to influencing each other. They changed because of medical developments. The doctors had been saying for about a century. It doesn't make much sense to talk about quick thing I want to talk about
in so much these terms not mean anything medically. Once a child is conceived there isn't any point in drawing all line in its light of development and in response to that medical opinion. The Canon Law speaking now of course only to the Catholic community impose the social sanction which hitherto had been reserved only for healing after a certain point. Impose a social sanction of excommunication on all those who participated in the washing. Which is still the canon law of the day. The English law was also changed to make it a crime to kill the fetus from conception and that a much natural change in 18 0 3 was generally copied in
the United States. In Lee English and American statutes as also in the model casual strain that had developed in the Catholic Church. An exception was made in case of sell the plans in case where the mama to save her own life had to sleep in abortion. The statute did not prohibit an abortion and this commonsensical recognition of the fact that when two wives were at St.. You cannot by law make one person prefer another life who was known as Ban Lee passed on of American statutes up until three years ago.
Now in the last 20 years as an American long there has been a development which bans have only on the present state of the legal argument and the legal force of the laws. That development has occurred in the O.R. of tort law that punishes not by putting people in jail but by providing a civil remedy and civil damages for doing an injury to your fellow human beings. War to what is most familiar to you of course in the war of automobile negligence weigh on you somebody who runs in the you negligently you have an action and sought to cover for the injury
done you a lot of top of Anglo-American law had traditionally refuels to give any compensation for injuries in abortion or injuries to a embryo in the womb and it did so for precisely the reasons that I've been given by the Roman law. You only saw the fetus was regarded as part of the mother. Then something happened something that Dean Prasar who was the leading American authority on thoughts cause the most spectacular reversal that has ever happened to a well sort of settled law of torts beginning shortly after World War 2. The rule was reversed and
recovery was allowed for injury to the child in the womb. A remarkable trend of legal opinion to provide civil remedy for injury was slanted. And is not generally recognized that if you injure a child in the womb and action lies into ought against you in the course of this revolution two issues will last a matter of spite authority. One was did the trial after be viable in on. Well the end your right to be recognized on some
courts. Sad that it did but the majority of courts sad that it did not. And Judge could his box add in the pinion for the Supreme Court of Pennsylvania. The catalyst is not the age of viability of the fetus its status as a person. What the author is recognizing is that the fetus is a person well before it is viable and in his opinion the supreme caught of Pennsylvania committed a fetus of one month to recover. The injuries inflicted on the fetus in the womb. The other unsubtle question was was an abortion itself a thought for which one could recover.
And here look Kautz one hung up. I want to bend for centuries in the past the hang up of the general common law of thought and all common law of torts a ban that if you were killed to wash asleep you couldn't recover for the enjoy only you but your estate could not recover the rather hard boiled approach of the all common large band. If you're going to endure somebody you better enjoy it infernally. Because of his dad. He cannot bring suit and nobody can bring suit for killing him. And that rather strange anomaly was corrected in the nineteenth century by what were called wrongful death acts that permitted the man to state to bring a suit if he himself had been killed. And the question that was presented to a number
of courts was under the existing wrongful deaths that you would do they include the fetus who was killed on that question. There has been a division of authority a slight majority of courts however have said that the child who was killed also has a right of action through his estate. And the leading case on that is the decision very recently of the Massachusetts Supreme Court which after reviewing all the authorities. So as it is neither logical not just to the NYE recovery when the child is killed when you would permit recovery of the child when the only injured and survives. So that now there was a substantial body of secular jurisprudence which has taken the possession of the child in the womb is implied all of the protections of the civil law.
Why do that revolution occur and occur principly in response to scientific data in a particular to the date of two relatively new sciences the dado of Vitalogy the study of the fetus and the data of child psychology. Later we can all agree you know as well summarized in a book that came out two or three years ago by two doctors a man and wife who specialized in transfusing babies before birth and the name is my only ally only why the book is by the wife a chamomile liability. It's called modern motherhood.
It's recommended by many obstetricians for their patients and I recommend it to you if you want to know what the reality one is dealing with. When one talks of abortion because in this book The Much of the latest findings as to what the life of a child in the war is like it's presented the lion lays another think colleges have been able to study the life of the fetus through what she calls a kind of closed circuit TV X-Rite and she still has that many of the old maps and pictures of the fetus have been exploded. For example the idea that the placenta is hot of the mother. For example that the fetus does not see the fetus the book
nominates its environment as much as any human being outside the womb it is seeing it is acting the way a child outside the womb act and it has from about the age of six weeks the features of a human by one talks of abortion. One is talking about killing what looks like a human being but acts like a human being and where it's very hard to see that one is doing anything but making advantage of the early age and helplessness of a child in order to doll one's conscience to what one is doing in abortion. The other day you know I've referred to comes from trial psychology
and I think particularly of the work of al of the Child Development Institute at Yale. If you look at his book on the puts five years of life he spots right in the womb to describe mental growth. He says why he has mental growth after all. And for him as a psychologist and as the development of patterns of nervous reaction and those times he says mental growth begins at 4 weeks when the pattern that is the pattern of the human hide becomes the pattern of the embryo. And the development goes on from there. So that by five months the 12 billion nerve cells which make up the nervous system of any one of us are present in the embryo.
One of the two of us combined that our Tom Aji and child psychology. But the courts have yielded in giving the protection of the civil law. At the same time. Another quota has come the argument of the criminal law should be changed. And as you know several flights have now made changes in the a.m. on almost changes. I think there are several points to be made. One is the kind of eye given that has been most affective with legislatures in persuading them to change and I would speak from my own experience in California that the most
effective with the legislature have band to emphasize the number of abortions in the United States in the number of maternal damp from criminal abortions. And these figures as presented by the advocates of change have been drawing on these growing lodge numbers have been reported by the PRAST and even used as the basis for editorial quite knows. They have formed the basis in California the most popular pamphlet was called Must 10000 women die each year but the claim was that 10000 women were killed every year by criminal abortionists. And where a million abortions was lead to work every year in the United States. So what do we actually know. As far as the
test looks like and how many abortions legally in the United States the only honest answer to that question as we do not know we are in the law. Abortion is a crime which is not only sacred. Like many crimes of the mansion you know that weeks last fall the people who perform it will keep it secret and there is no very easy way to make a survey of the number of abortions. You can make projections from maternal mortality and such a study was made in anger on. The Soma abortion like the memory it's now since it's a somewhat serious operation. There's always a chance of mortality and where a 1 percent mortality is not
exactly unreasonable to suppose. Particularly if the abortion outside of the hospital. The English study which was done under the English law that was like all of American statutes came to the conclusion that there were 10000 abortions a year as contrasted markedly with the propaganda for you listening on the 100000 that study is why God had in the eugenics review three years ago. If you took the same approach the good hat took for anyone you would come up with a figure for the United States of 50000 abortions a year. Able in the effort and the affluence to some spot asked the man to double that. And made it 100000. You'd have to give only a tenth of what is used by
most people debating this and used to persuade legislatures that they have a big crime problem on their hands. The other figure which is relevant here is the number of maternal deaths from abortion. And here we do have a very high odds to test like there are about 250 known deaths each year from abortion. Now it's raised Mobile's appalled but not all the data reported what that most of them if you will try can well of course the potentially O is director of race for the Population Council. He says that his best estimate is to double at 250 and saying that there are five
hundred maternal deaths a year. Now it seems to me there was something wrong with and I get what you require as an exaggeration. My two files with a slant increase from 500 to hand thousand to make its point. And yet that is the kind of argument that has been presented to a number of American law just slide shows and do quite a bit of the American public. Of course the potentially in a statement at the International Conference on abortion and what's now in Washington in one thing's likely Saddam was I asked what about the stamp on the body and 5000. And he said that is unmitigated nonsense. That's reported in The New York Times for September 7th. Nineteen sixty seven if you're interested in seeing a statement on
those figures. What unmitigated nonsense has been the type of propaganda used to persuade some American lie just like you. The other type of my argument advanced in the legislatures has been look at the hardship on the woman in the case of right. Think of the suffering of the abortion statutes and in that case it seems to me very evident that anybody who faces those situations is a way out of a terrible human dilemma and a tragedy. But the question is are you going to make the law in such a way that by trying to meet
those very exceptional cases you destroy the right to life of Kano's millions of other human beings. And what happened in California is in this respect instructive. A California legislature accepted the argument from the right in incest case who's put that into the statute. And them the same persons who had sponsored those exceptions in the law have now turned around and attacked the California laws as unconstitutional. And I'm sad that this night has shown that it has no interest in the lives of the fetus that permits the fetus to be destroyed in the case of ripen in Sask and through the Nile the equal protection of the laws not to permit the fetus to be destroyed. In other cases where the mother wishes to destroy the child all that kind of I get when using the exceptions as a
springboard for an attack on any protection of life in the womb is not what one clean the kind of logical possibility and that's actually the argument used this month with a good deal of fact before the Supreme Court of California where the constitutionality of the California abortion laws now being. When you finally look at it there is nothing more cruel than to take the life of someone else. It is the only Obama. So right it was the ultimate civil rights of the child in the womb. Those who believe. That the child in the womb is not different in any significant aspect in the child outside the
womb have a moral duty to insist on the protection of the child. I cannot fly. This is a case where everybody does his own playing. When you carry out your mocking of a killing and I carry out mine I think that the human community doesn't really stand by kind of isolationism. I think if you feel you know about human beings being stripped of they are so right. You are involved. And you have an obligation to do so I even the all who disagree with you. That may be your opinion as long as you can't show me that this being a good thing I will want all the crap like that.
Why of all I feel on this issue as one looks at the American seeing the day that one thanks very much of the words of the song written on the wind. How many times. Can a man throughout his fight and pretend that he just doesn't sleep. I think if people. Are willing not to put in their place with what they want to put human rights in the womb they will realize that. They are only doing what their own convenience and even on their own the financially with lack of buy on a live young woman and male. Thank. You. Thank you. Thank. You have been listening to Dr John T Newman professor of
law in the School of Law at the University of California at Berkeley. Dr. Noonan spoke on the topic the protection of the person in laws regarding sexual behavior. This is Ben sexuality a search for perspective a series of recorded lectures from an interdisciplinary colloquy on human sexuality held on the campus of Michigan State University. Editor for the series is Steve Jensen This is a Michigan State University radio production. This is the national educational radio network.
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- University of Maryland (College Park, Maryland)
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- The sixth program in this series features John T. Noonan, professor at the School of Law at the University of California, Berkley.
- Series Description
- A series of lectures from an interdisciplinary colloquy on human sexuality, held on the campus of Michigan State University.
- Social Issues
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Editor: Jensen, Steve
Producing Organization: Michigan State University
Speaker: Noonan, John Thomas, 1926-
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University of Maryland
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