On September 30th a couple were arrested at Cedar Point for charges of "public indecency" for engaging in a sexual act in public as they were waiting to enter a haunted house, the Fairground Freakshow. A 17-year girl waiting in line capture the incident on video.
Do such sexual acts cause harm to anyone? If not, should such actions be illegal?
Besides the occasional ultra-conservative hideouts, the world has, on net, become a more accepting and liberal place. As societies move to become more liberal, they have to make new vital decisions on what to allow and what to prohibit in law, especially when it actions that may be offensive to others, like sex and intimate relationships. Whether public or private, heterosexual or homosexual, this debate has gained considerable steam within the past few decades. Offensive actions are critical as a society may be obligated to stop activities that cause significant emotional or physiological damage. However, they, at the same time, cannot limit the liberty of their citizens. With the help of Joel Fienberg’s book offensive to others, the line between where liberty ends and pure offense begins becomes more definable. For a society to restrain offensive actions while preserving the liberty of its citizens, it must place a burden of proof on the person committing the offense and those witnessing it, all placed within the context of how offensive the action is.
ReplyDeleteFor a state to be justified in using coercion to stop an offensive action, Joel Fienberg places a burden on whether an action is worthy of punishment not on the government that imposes the law but instead on the individuals involved in the act. This change is an interesting deviation from the liberal idea that the burden of proof on whether an action (like a law) is helpful or harmful to society on the government imposing it, not the individual championed by John Stuart Mill. To Fienberg, whether an action is offensive is determined by the two types of people involved, those committing the act and those witnessing it. For those committing the act, a government should consider the relative importance of that activity to that person and whether that action can be performed in any other context. Fienberg defines this as the “reasonableness” of the action (Fienberg 37). Law has to determine the importance of an offender’s action to themselves to see whether it is worthy of punishment. How necessary the action is an integral part of this consideration. These goals can be physical, like wealth or health, or more abstract, like the feeling of personal fulfillment. It then must be considered whether the action can be performed anywhere else without significant inconvenience to prevent the interaction between the offender and the witness from ever happening. Finally, there is the idea of whether the offender acted with the intention with the intent to offend others. There is also some burden placed on the witness to the offensive. Fienberg calls this idea the “standard of reasonable avoidability” in which a person can avoid witnessing offensive actions (35). Avoiding an offense can be as simple as closing one’s eyes and moving elsewhere. Of course, this isn’t always possible, but it's an option, Fienberg believes it is better to seek avoidance of the offense the create a confrontation based on it.
In the case of public sex, these factors, including just how offensive the action was, are considered. If public sex were to occur in a line at an amusement park, for example, where the exiting of the line would significantly inconvenience the witness is not acceptable. There might be some personal gratification that the individuals might feel from the act, but it is far outweighed by the extent of the offense being taken (sex in front of children and minors). In addition, one can responsibly assume that the individuals could still get the same experience of sex in the privacy of their homes. And even if the public nature of the sex is an essential component, there are still spaces where sex in front of others is permissible and even encouraged (like brothels, for example). With all this taken into account, there is little justification left for a couple who decides to have public sex in a line to get on a ride at the amusement park. The state is perfectly justified in using its coercive power to stop such an offense from continuing.
The book Offense to Others by Joel Feinberg provides multiple criteria to evaluate situations such as the one listed above, from which one can conclude that engaging in sexual acts in public while waiting to enter an amusement park’s haunted house does cause harm to anyone and thus should be illegal. Firstly, due to the government’s tendency to overreact in cases of offensiveness, the utmost caution should be exercised when evaluating this example. The first question one must resolve is the seriousness of the offense which is measured through extent, duration, and character. The extent of this action is quite large insofar as everyone in line for the haunted house would be forced to watch and/or listen. While one could turn away, any noises or substances created from the action creates an uncomfortable environment for all patrons and especially for minors who may not be exposed to such activity yet. While duration is not specified the physical remnants of the action could be long-lasting since substances may not be cleaned up after the fact. Finally, character. It is difficult to objectively measure character, but in a society where sexual activity is thought to be only private activity, it can be included that this action has an offensive character. The second question is about the social value of the land. While none of the patrons own the land on which the act is occurring, it can be reasonably assumed that everyone in the amusement park entered the premises with the goal of enjoyably riding amusement park rides and entering haunted houses. Thus, the most productive use of the property would be to allow people to ride the rides and go to the haunted houses; however, the ability to do such things may be hindered by a couple engaging in sexual activities. The third question is if the patrons of the amusement park can take precautions to avoid the couple’s action. While patrons can look away, sexual activity often produces verbal and physical effects (such as substances). Patrons cannot avoid any verbal effects of the action, and if any substances are not cleaned up, it could lead to serious health effects for patrons. The fourth and final question is the reasonableness of the couple’s actions. The social value of their action is quite low since the only people it can benefit are the two of them, but, as mentioned earlier, the negative consequences of the action are quite high. Additionally, the couple could take reasonable actions to prevent harm to others such as using a blanket to cover the action, completely cleaning up after themselves, etc. All in all, Feinberg would conclude that the couple’s actions cause harm to others, and thus should be deemed illegal.
ReplyDeleteIn this case we can refer back to the reading Offense to Others by Feinberg because he evaluates different scenarios in which could be harmful to others and whether or not it should be legal. For this specific example, Feinberg would say that this should be illegal. More specifically, he would say that since there was no way to avoid this because everyone in line was under the presumption that they were in line for a haunted house, not a show of a couple. Given we are unaware of the actions that took place exactly, we can assume that private parts were shown and there was an exposure of bodily fluids. Which is a health risk for the other guests. Still under the presumption that we are at a family friendly park, we can conclude that there were minors present. Children of all ages could have been waiting in this line which is even more of an issue. Looking more into it, we could take a closer look at the amusement parks policies and determine if any of them have been violated, which I'm surely they would have been. Comparing it to one of the scenarios provided in the reading, (story 15-17), this is similar in regards to there is no way out in that moment and it is not a place where this occurs often so people are often shocked and in disbelief when this occurs. In the original scenario, the 17-year old girl that captures the incident on video is also at risk. What she did is technically pornography, since she is under 18 this would be a serious offense. Although this is an extremely uncomfortable situation to be present in, is it technically illegal? I would refer to the rules and regulations of the amusement park for an actual answer but Feinberg would say that it should be illegal in the sense that it has potential to cause offense and harm to others.
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