Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life

Abstract

This Article focuses on the relationship between criminal law and family law in the regulation of marriage, sex, and intimate life. In doing so, it accomplishes two things. First, it challenges an ingrained narrative that argues that until quite recently, the home and family were impervious to criminal intervention. This Article reveals that, in fact, criminal law, working in tandem with family law, has long played an important role in the legal construction of intimate life. Additionally, the Article argues that we have overlooked criminal law and family law's cooperative role in organizing intimate life to our detriment. Historically, criminal law and family law have worked in tandem to produce a binary view of intimate life that categorizes intimate acts and choices as either legitimate marital behavior or illegitimate criminal behavior. More recently, however, cases like Eisenstadt v. Baird and Lawrence v. Texas appear to reorganize sex in a more continuous fashion. In these cases, I argue, the traditional marriage-crime binary is disrupted in favor of a continuum where marriage and crime remain fixed as outer extremes framing an interstitial space where intimate acts and choices are neither valorized as marital behavior nor vilified as criminal behavior.

This zone where sex exists outside of marriage and crime is one of incredible potential and promise. However, as this Article makes clear, this potential has been largely unrealized. Because we have been inattentive to the relationship between criminal law and family law, it has operated under our radar and the binary that it produces has become the ingrained and reflexive way for us to understand, organize, and regulate sex. When faced with the prospect of disrupting this binary in favor of a zone where sex is not regulated by criminal law or family law, we reflexively revert back to what we have known and attempt to interpret this new space through our binary lens. As such, we have bypassed an important opportunity to theorize and work towards a new understanding of sex outside of law.

Keywords: marriage, crime, sex, sexuality, intimacy, privacy, Lawrence