CONTROLLING OUR REPRODUCTIVE DESTINY: LEGAL PRINCIPLES - PREVENTING HARMFUL
Restriction-of-liberty cases have been made not only for and against people who harm either others or themselves but also against those who act immorally, where the term immoral is not the equivalent of the term illegal. A particular action may be considered immoral without being illegal. For example, lying to friends may be morally wrong, but no legislature is likely to enact laws against it. Conversely, some illegal actions may be morally acceptable; for example, refusing to serve in an unjust war is not immoral and yet it is illegal. Nevertheless, despite the difference between law and morality, these two realms of behavior control do intersect. Indeed, if we examine typical laws against homosexual relations, prostitution, gambling, drugs, drinking, euthanasia, suicide, and obscenity, we will find that they are often based on beliefs about God's commandments, nature's laws, or society's traditions. Currently, because an increasing number of people no longer view God, nature, or society as binding authorities, there is a growing conviction that the law, especially the criminal law, should not forbid an activity simply because it is immoral.
One of the clearest statements of the view that the criminal law's true function is to prevent harmful and not simply immoral conduct was that of the Wolfenden Committee. In the 1950s, this committee was established in England to review laws concerning homosexuality and prostitution. The committee decided that a firm line should be drawn between the public and private realms—that is, between the area in which our actions affect the community as a whole and the realm in which our actions affect only, or primarily, ourselves. Whereas the criminal law has roles to play in the public realm—preserving "public order and decency," protecting "the citizen from what is offensive or injurious," and providing "sufficient safeguards against exploitation or corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind or inexperienced"—it has no role to play in the private realm. What consenting adults do to each other in the privacy of their own homes is their own business.
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