Moral Crimes Research Paper

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The study of moral crimes requires awareness of differences in the degree of moral condemnation of conduct. While a number of crimes seem to generate a consensus regarding their immoral character, there are some that do not. These crimes set the stage for conflict and to understand their nature one must be sensitive to the role of power in putting such acts within the criminal law.

What Are Moral Crimes?

In April 2009, the Supreme Court of the State of Iowa ruled unanimously to permit same-sex marriage. In November 2010, three of the judges, who were on the ballot for their job retention, were defeated and removed from office, largely because of their vote on same-sex marriage. One poll found that 41 % of Iowans said they would vote for a ban, while 40 % said they would not; the rest said they would not vote or were undecided (Clayworth and Beaumont 2009). And 92 % said the legalization of gay marriage had brought no real change to their lives. Clearly, the political drive to target the judges in November 2010 was well orchestrated and political in nature.

Chief Iowa Supreme Court Justice Mark Cady defended the 2009 decision based solely on the law and consistent with the Iowa Constitution; he said: “… the public should understand the important voice they have and be informed of the consequences of using that voice to remove judges for simply doing their jobs” (Nation 2011).

A similar scenario played out in New York when legislators there legalized same-sex marriage in 2011. There, four Republican legislators who backed gay marriage faced an uncertain future from their constituents in the next election, constituents who were very vocal in claiming their opposition to the votes of the legislators (Hakim et al. 2011).

What happened in Iowa and New York has been happening for a long time in this country. It was not long after the founding of this country that early settlers discovered that the law could be a resource and that law was not some independent, value-free force in social life. Groups learned that the law could be used to protect their interests and values. It unmistakably began in colonial times when the content of many statutes were lifted wholly from the Christian Bible (Erikson 1966). Even later statutes contained biblical phrases or intents.

It is not surprising that law should reflect moral values. Few people, including those who are not especially religious, would consider such crimes as murder, rape, and the theft of other people’s property as immoral; rather, there are strong moral pronouncements against such behavior and a strong consensus that such acts violate both law and moral sentiments. Murder, rape, and robbery are condemned everywhere, even if there are exceptions to the degree of these acts’ wrongfulness and therefore the offender’s legal responsibility. One traditional argument about the role of law is the reinforcement and protection of the mores, those strongly held beliefs of a people. And, by extension one could ask: “If behavior isn’t immoral, why would there be a law against it?”

But there are other crimes about which there is no consensus as to their morality. There are disagreements, some strong, others weaker, about the immorality of the use of certain drugs, consensual sexual acts among adults such as prostitution, and pornography. Many disagreements also exist with respect to abortion. To some abortion is clearly immoral and condemnable; others disagree. In these so-called moral crimes, the law has come to be used to side with those who are offended by such acts. Some observers have claimed that such conflicts are the result of shifts of “moral time” (Black 2011), while others express the dynamic in terms of shifting power arrangements (Quinney 1970). Regardless of how it is characterized, shifts in opinions, disputes, claims, or differences in moral evaluations mark the border of moral crimes.

To say that there is general agreement about the immorality of many common crimes should not suggest that every single person shares that evaluation. Nor should it suggest that conceptions of immorality alone will prevent such crimes. In spite of strong condemnation of murder, there are murders every year. So too are there robberies, burglaries, and assaults. Yet, there is strong consensus that such acts ought not to happen.

If prostitutes and other sex workers are “moral criminals,” sex offenders are not, regardless of what they actually did. The term “sex offender” conjures horrific images of adults physically harming children. But many of the people on sex offender registries have not engaged in that behavior. Not all registrants are child molesters (Lancaster 2011a). Statutory rapists, who commit an offense involving neither coercion nor violence, are registrants in some states. Some states require “Peeping Toms” and exhibitionists to be on sex offender registries. Louisiana forced some prostitutes to register, and two-thirds of those on the North Carolina registry had been convicted of the nonviolent crime of “indecent liberties with a minor,” a crime which does not necessarily involve physical contact (Lancaster 2011b). In some states, indecent exposure can land an offender on a sex offender registry. There are also other issues with sex offender registries that warrant extensive discussion but are beyond this research paper (Sample and Evans, 2009).

There are, to be sure, offenders who do physical and emotional harm to children, as alleged in the case at Penn State University. Such offenders should be dealt with harshly but we should not be guided in our reaction even to these serious offenders by stereotypes that all such offenders are likely to be recidivists. One federal study found that only 5 % of released sex offenders (those who committed forcible rape or sexual assault) were rearrested for a sex crime 3 years after their release from prison (Durose et al. 2003). This recidivism rate is below that of many other offenders, such as those convicted of burglary and robbery.

The Narrowing Of Morality

Gay and lesbian behavior is not illegal in the United States but this does not mean that there are no legal issues surrounding the lesbian, gay, bisexual, and transgendered (LGBT) community. These issues include the status of gay marriage, the adoption of children by LGBT couples, the extent to which legal restrictions offend equal protection standards, and the presence of gays in the military, among others. Lesbian and gay rights continue to be problematic in the United States because of different evaluations of these people, their conduct, and perceptions of the origins of homosexuality.

That said, it seems clear that gay men and lesbians have made much progress, even if the gay people do not still enjoy the same privileges and rights as straight people. In 1986, the US Supreme Court upheld a sodomy law in Georgia (Bowers v. Hardwick), but an opposing decision made in 2003, which also dealt with a sodomy law (Lawrence v. Texas), left little doubt that courts were acting more positively toward gay issues. In the Lawrence decision, the justices believed that such laws “demeaned the very existence of gay people” (Carpenter 2011).

In 1998, four Harris (Houston) County Sheriff’s deputies, responding to a false report of someone waving a gun, entered an apartment to find John Lawrence and Tyron Garner allegedly (Lawrence and Garner denied they were having sex) violating the Texas law against sodomy. Lawrence was said to be belligerent, which was apparently a major factor in the arrest of the two men.

Lawrence and Garner were unlikely people to have figured too strongly in this major US Supreme Court case (see Carpenter 2012). Both had criminal records and with Lawrence, being white, and Garner, a black man, the relationship had a racial dimension to the case. Texas had a long history of making sodomy criminal. Legislation was refined over time to reflect different examples of possible homosexual behavior, and in 1943 oral sex was added to those acts made illegal. But the law stipulated that oral and anal sex would be prohibited only with another individual of the same gender. One observer said: “Put bluntly, it was now legal in Texas to have sex with a farm animal but not with someone of the same gender” (Oshinsky 2012: 10).

In other developments, the prestigious Washington, D. C., law firm of King and Spalding informed the United States Justice Department in 2011 that it would no longer assist Congress in defending the law that forbids the federal recognition of recognizing gay marriage (Carpenter 2011). The law, called the Defense of Marriage Act, was passed in 1996.

As of early 2012, seven states had legislation to give same-sex couples the right to marry. Those states – Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and Washington State (and the District of Columbia) – are likely to be joined shortly by other states. The New Jersey Senate voted in February 2012 to legalize same-sex marriage, a shift from 2 years previously when a similar measure failed.

But while progress has been made, the history of homosexual rights has been a rocky one and progress has sometimes been slowed, perhaps because the cause of gay rights has not had a national figure to serve as champion. Black civil rights had Martin Luther King and feminism had Gloria Steinem, both of whom championed their causes very successfully. But gay rights activists have been more local figures, such as Harvey Milk in San Francisco, and it is difficult to think of gay activists who have captured a national stage. As a result, most progress toward equal protection of gays has been slow and sporadic.

The victories have been small but not meaningless. The Bureau of Labor Statistics, for example, examined the extent to which domestic partner benefits were enjoyed by all workers. Thirty-three percent of state and local government employees had access to health benefits for same-sex couples, slightly higher than the 29 % of employees in the private sector (Tavernise 2011a). In addition, California became the first state to require public schools to teach gay and lesbian history in 2012. The legislation followed a strongly publicized series of suicides among gay teenagers (Lovett 2011).

The result of local battles suggests that the stigma of being gay is still strong but weakening as people are becoming more accepting. For example, San Francisco is still considered a stronghold for gays but there are other places that are ranked higher than San Francisco in same-sex couples per 1,000 population (Tavernise 2011b).

Perhaps more compellingly, the repeal of “don’t ask, don’t tell” in the United States military set an official tone of increased tolerance. Signed into law in December 2010, the act repealed the discriminatory policy that forced American military men and women to serve with anxiety and isolation. The repeal of don’t ask, don’t tell was an affirmation that even in the military, sexual preference is irrelevant.

The Politics Of Moral Crimes

Early forms of criminal law came about when the state replaced the tribal unit as the dispenser of justice. In so doing, the state (usually in the form of a monarchy) became the unit that administered procedures and sanctions; the blood feud was replaced by the king’s punishment. Since collective responsibility of the tribe or clan no longer existed, the individual offender was punished and restitution for a large number of offenses disappeared (Pennington 1993). Offenses for which there was no compensation were considered crimes, while tort actions were those for which compensation was available. Over time, the number of crimes increased.

Criminal law was used to combat social problems associated with increased industrialization and urbanization both in Europe and the United States. With the manufacture of inexpensive alcoholic beverages, drinking – and drunkenness – was democratized to the lower classes. About the same time, increased industrialization witnessed the increased need for labor to run the factories. The Gin Act of 1736 and the Vagrancy Act of 1744 were designed to address these specific problems in England.

Clearly, some law is the result of processes other than a collective move to reinforce or amplify group mores. The creation of “Sunday laws” which make illegal some activities on Sunday, such as the sale of alcohol and the prohibition of certain kinds of labor, reflects the interests of religious groups who felt the need to protect that day as special from other days.

If there is, by definition, differences of moral opinion regarding these crimes, how has legislation been possible in defining these acts as illegal? Most explanations for offenses where we are all agreed on the wrongfulness of the act suggest that these laws simply grow out of our common conceptions of what is right and wrong. As noted earlier, the content of laws in colonial America was undeniably religious in nature. An analysis of these laws and their enforcement found that crimes brought before the Essex County (Massachusetts) court from 1636 to 1682 were, in order of their frequency, disturbing the congregation, absence from church, contempt of clergy, criticism of the government, and “delivering first child within too short a period of time after wedding” (Erikson 1966: 171).

But an explanation for the existence of laws where there is moral disagreement is lacking. In these instances, theories of law that recognize such conflict is an explicit characteristic of the legislative process are needed. Richard Quinney’s (1970/2001) interest group theory of law serves as one example. Quinney begins with the observation that criminality is not determined by the nature of the behavior; rather, criminality is created and imposed by legitimate agents of social control. Crime is created politically. It is a judgment about the behavior of others who are perceived to be threatening to powerful, entrenched interests.

Conflict is an essential part of the law-making process. Law-making is unmistakably political – it was and is made by political entities (legislatures, Congress) and the judiciary, many of whom are elected officials. What is important is who has influence over those political entities and on what basis they are acting. The central concepts for Quinney are pluralism, power, and conflict.

Modern industrialized nations are pluralistic; they are composed of a multitude of groups who are defined by their interest structure. Some groups are defined solely by their interests and their pursuit of those interests in legislation. Consider the following interests: population control, labor issues, and gun rights. Each of these interests has groups organized with a particular position on the issue and, often, these positions are oppositional. Population control, such as the use of condoms and abortion, elicits strong and opposing views. The interest of the Roman Catholic Church and Planned Parenthood are discernibly different with respect to population control. Similarly, the interests of labor (e.g., unions) and management are often different, as are the interests of such groups as the National Rifle Association and the Brady Campaign to Prevent Gun Violence which seek different goals.

Regardless of the nature of group interests, another unmistakable fact is that there an unequal distribution of power among these groups. Not all groups have access to the same resource base. Some have more members than others; some have more money than others. As a result, some groups have more influence over the legislative process than do others.

As a result of differences in interests, implying conflict among groups, and power, it is inevitable that some interests will be protected in the legal system in the form of the content of laws and interpretation of public policy based on those laws. It is also inevitable, of course, that the content of law will change as some groups increase, and other groups decrease, the amount of power they can bring to bear on their interests.


The study of moral crimes requires awareness of differences in the degree of moral condemnation of conduct. While a number of crimes seem to generate a consensus regarding their immoral character, there are some that do not. These crimes set the stage for conflict and to understand their nature one must be sensitive to the role of power in putting such acts within the criminal law.


  1. Black D (2011) Moral time. Oxford University Press, New York
  2. Carpenter D (2011) How the law accepted gays. New York Times, April 29, p A25
  3. Carpenter D (2012) Flagrant conduct: the story of Lawrence v. Texas: how a bedroom arrest decriminalized gay Americans. Norton, New York
  4. Clayworth J, Beaumont T (2009) Iowa poll: Iowans evenly divided on gay marriage ban. Des Moines Register, September 20: Accessed online at: NEWS10/909210321/1001/NEWS
  5. Durose MR, Langan PA, Schmitt EL (2003) Recidivism of sex offenders released from prison in 1994. Bureau of Justice Statistics, Washington D.C, Accessed online at: ty¼pbdetail&iid¼1136
  6. Erikson K (1966) Wayward puritans: a study in the sociology of deviance. Wiley, New York
  7. Hakim D, Kaplan T, Barbaro M (2011) After backing gay marriage, 4 in G.O.P. face voters’ verdict. New York Times, July 4, pp A1 and A3
  8. Lancaster RN (2011a) Sex panic and the punitive state. University of California Press, Berkeley
  9. Lancaster RN (2011b) Sex offenders: the last pariahs. New York Times, August 21, pp 6–7
  10. Lovett I (2011) California to require gay history in schools. New York Times, July 15, p A16
  11. Nation C (2011) Iowa justice urges duty of citizens: be informed. Omaha World-Herald, April 17, 5B
  12. Oshinsky D (2012) Flagrant conduct. The New York Times Book Review. March 18, pp 1, 10–11
  13. Pennington K (1993) The prince and the law, 1200–1600: sovereignty and rights in the western legal tradition. University of California Press, Berkeley
  14. Quinney R (1970) The social reality of crime. Little Brown, Boston
  15. Sample L, Evans M (2009) Sex offender registration and community notification in Wright R, Sex offender laws: failed policies, new directions. Springer, New York, pp 211–242
  16. Tavernise S (2011a) Access to health care benefits for gay partners is gauged. New York Times, July 27, p A12
  17. Tavernise S (2011b) New numbers, and geography, for gay couples. New York Times, August 25, A1 and A4

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