- Written assignment -

Devlin v. Hart debate: sexual immorality

1) The debate between Devlin and Hart recovers the question of the connection between

crime and sin and to what extent, if at all, should the criminal law concern itself with the

enforcement of morals and punish sin or immorality as such. It's a debate about law and morality.

To Devlin, private sexual immorality is analogous to treason and must be punished by the

criminal law such as treason is. Indeed, to his mind victimless crimes representing immorality such

as homosexuality, prostitution, unmarried sex, sodomy (even for married couples), ... should be

condemned by the law. He did not want Britain to decriminalize the consensual sex crimes.

He based his theory on morality and society. Indeed, society is held together by its shared

morality. It is constituted by the behavior of its people. « I think, therefore, that it is not possible to

set theoretical limits to the power of the State to legislate against immorality. It is not possible to

settle in advance exceptions to the general rule or to define inflexibly areas of morality into which

the law is in no circumstances to be allowed to enter. » - Lord Devlin, The Enforcement of Morals

(pages.12–13). Thus, Devlin is afraid that if we get rid of the support of the consensual sex crimes

morals morality will collapse and the society will also crumble as a result of it. So the State,

through law, has to do something to avoid that. His famous equation of immorality with treason and

his advocacy of the right of any state to defend against either make a claim about the harm that

would occur if the actual moral code of a society were allowed to be attacked and weakened.

In Great Britain in 1957 the Wolfenden Committee issued its Report on Homosexual Offenses

and Prostitution, which stated that “there must remain a realm of private morality and immorality”

that is “not the law’s business.” The committee states that it is not the law duty to enforce morality.

The right to privacy is here put forward. Devlin criticized this view. He is saying that, “the price of
toleration of serious deviance from a society’s constitutive morality is the loss of a distinctive form

of interpersonal integration in community understood as something worthwhile for its own sake.”

He underlines a conflict between individual moral freedom and social control. To him, personal

behavior should never interfere with the public well-being especially the public moral or opinion.

Also according to Devlin, religion represents morality so everything outside of it is considered

as immoral. To enforce Religion the enforcement of morality is necessary. Morality is learnt

through religion. Bible allows things and forbids others and to Devlin that the only way the people

should live their lives. Devlin has a communitarian position on the legal enforcement of morals.

The law is here no only to protect the individuals but also to protect the whole society against harm.

Therefore, if someone kill a person with his permission oral or written, this person will still go to

jail.

So sexual immoral behavior is a betrayal to the bible and to the society. That is why Devlin

compare it to treason.

Whereas Devlin defends a “disintegration thesis,” according to which a society will be

destroyed if its morality changes Hart argues this view is either trivial, if the disintegration thesis is

a mere pleonasm, inded if the society is only defined by a particular morality, or else, it would

appear, demonstrably wrong. Individualism and what is allowed or not have increased markedly in

many democratic societies since the 1960s without any significant breakdown in social order

accompanying them. So here, personal actions in a private environment is shown as not to be a

disturbing factor for the coherence of the society itself. To Hart, Devlin's analogy is not valuable.

The question that Hart is asking here is whether victimless crimes, I would rather say

immorality, can be considered as crimes per se. As the opposite of Devlin, Hart's answer is no. He

criticizes Devlin point of view. To him (and later also according to Mill) it is not a legitimate

function of the state to punish conduct simply on the grounds that it is immoral. If there is no harm
no punishment should be given. However, Hart agrees with the interference by law with liberty only

if the actions are immoral per se and harm a third party.

I do think that Hart's argument, against Devlin, is the strongest. I side with him in believing

that the sexual immoral conduct should not be criminalized. If the action is made in the privacy of

someone's home and it does not harm anybody I do not see the point of punishing it. To my mind,

the right to privacy and liberty are fundamental and should never be violated. Plus, the law has too

many other more important matters to deal with such as victim crimes. I also think that Devlin's

argument is pretty weak. Indeed, I absolutely do not think that if someone act “immorally” it will

persecute someone else and will put the entire society's morality in danger which will follow by its

fall. The Kinsey reports in 1948 shows that sexual immorality did not only concern homosexuals

but also straight couples. So the vision of Devlin is, I think, extremely narrow minded. However, I

do side with him in believing that there is no obvius line marking the contours of the distinction

between immoral and harmful conduct. So it can sometimes be difficult to draw a line between

these two. Some actions can be both harmful and immoral such as rape for example.

2) The Communications Decency Act of 1996, title V of the Telecommunications Act of 1996,

Public Law 104-104, 110 Stat.56 defines obscenity as offensive. Any “comment, request,

suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms

patently offensive as measured by contemporary community standards, sexual or excretory

activities or organs” is considered as obscene. Any obscene or indecent material is forbidden to any

person under eighteen years old.

In 2003, Congress amended the CDA to remove the indecency provisions struck down in Reno v.

ACLU since the Communications Decency Act of 1996 did not define "patently offensive," a term

with no prior legal meaning. In that case it was considered as unconstitutional abridgment of the
freedom of speech protected by the 1st Amendment of the US Constitution. Nonetheless, obscenity

is not protected by the 1st Amendment .

The definition of obscenity, given in the Communications Decency Act of 1996, differs from the

definition of obscenity given by the Miller v. California case. Indeed, in that case, the Supreme

Court set up a new test for obscenity. It has to answer to three criteria:

1. Whether the work taken as a whole appeals to the prurient interest.

2. Whether the work depicts or describes in a patently offensive way, a specific sexual conduct.

3. Whether the work taken as a whole lacks serious, artistic, literary, political, scientific value

average person applying contemporary standards.

The definition of obscenity differs according to the state because of the US federal system. Thus,

the outcome concerning obscenity cases can be different because of the definition of obscenity

given in the State.