Repealing archaic laws

After 50 years of intermittent attempts, we have finally legalized abortion, contraception and consensual adult sex in Massachusetts.  The Governor signed the legislation today.

Since the 60s, we have taken for granted federal constitutional limits on state power to intervene in our private lives.   A line of Supreme Court decisions recognizing privacy rights culminated in Roe v. Wade.  These decisions rendered many older state morality laws unenforceable and so took much of the energy out of campaigns to change state law.

But these decisions left the archaic laws on the books.  In theory, if Roe v. Wade or related decisions were reversed, the archaic laws could be enforced.

Until today,  “fornication” — consensual sex among adults who are not married — was a crime.  The crime of fornication was formally enacted in 1692.   At that time, the man involved was punishable by a fine of 5 pounds or not more than ten lashes of the whip. In 1785, a minimum mandatory fine of 30 shillings was added for the man and penalties were added for the offending woman — no whipping for the woman, but a fine of up to 3 pounds which if unpaid would lead to incarceration of up to 10 days.  In the statutory revision of 1835, the penalty was set at up to 2 months incarceration for both, which was raised to 3 months  before 1860.  The law remained substantially unaltered for 150 years until its repeal today. 

Adultery has always been considered more serious than fornication.  Under a statute passed in 1784, the penalties were defined as follows:

[I]f any man or woman shall commit adultery, and be thereof convicted, every person so convicted shall be set upon the gallows with a rope about his or her neck, and the other end of it cast over the gallows, for the space of one hour, be publickly whipped, not exceeding thirty-nine stripes, be imprisoned or fined, and bound to the good behaviour; all or any of these punishments, according to the aggravation of the offence.

In the statutory revision of 1835, the penalty was set at up to 3 years incarceration and this penalty remained on the books until repealed today.

In 1879, the legislature enacted “An Act in Addition to an Act Concerning Offenses Against Chastity, Morality and Decency”.  This law created a penalty of up to 5 years in state prison for sale of  “any instrument or other article intended to be used for self abuse or any drug or medicine or any instrument or article whatever for the prevention of conception”  In 1966, following the Supreme Court’s decision in Griswold v. Connecticut an exception was created for the sale of contraceptives for married persons by a physician or pharmacist.  For decades, as contraception became widely used, this law remained on the books — until repealed today.

The punitive, puritanical thinking behind criminal penalties for fornication, adultery and contraception is no longer mainstream and the repeal of these laws was long overdue.

Abortion policy remains controversial, but a strong majority believe that the difficult decision to abort a pregnancy belongs to the woman who is pregnant.  That majority has been ascendant in Massachusetts for many years, yet statutes dating at least back to 1860 that punished abortion by up to 7 years in prison remained on the books until repealed today.

One might ask why it took so long.  In general, the legislature avoids difficult subjects if possible.  Any legislation action to soften rules limiting abortions raises concern among some constituents.  Since the Supreme Court’s decisions offered strong protection the case for tackling a controversial issue seemed weak.

Now that the Supreme Court is shifting right, the repeal of these archaic laws felt urgent and I was pleased to see that the repeal passed with a unanimous vote in the Senate and a near unanimous vote (see roll call #409) in the House.  Those votes make a strong statement of commitment to defending adult privacy.

Also this week, for the first time in American history, leadership of a state legislative branch passed from a woman president to a second woman president.  Harriet Chandler handed the Presidency of the Massachusetts Senate to Karen Spilka.  Senator Chandler had long led the charge for repeal of laws infringing on women’s health choices.  It was fitting and not entirely a coincidence that the transition and the repeal happened in the same week.  

Archaic laws on many different subjects clutter our statute books — much more work to do.

Senate President Emerita Harriet Chandler, radiant after the bill signing, with me.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

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41 Comments

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  1. “Archaic laws on many different subjects clutter our statute books”
    –Yah…Previous law makers were stupid to believe that only God or Mother Nature controlled the giving and taking of life. And they also believed weather and climate was controlled by God or Mother Nature, as well.
    Now man takes priority over nature, changes all the rules for his own convenience and voters re-elect’em back into office, time after time and lets them raise taxes to pay for their own salaries and perks, then complain about the government they get.

    1. I suppose you are more than happy to forego modern medicine then? Let nature take its course?

  2. Thank you for your leadership in this important issue and for taking the time to present the context.

  3. Thank you, Will and thank you also for your work on noncompete agreements. I was very interested to read the history behind some of the archaic laws that were finally repealed here in Massachusetts. It is amazing it took until 2018 to repeal laws not enforced or supported for decades. Also, I am overdue in responding to your kind offer to speak on the phone about the new traffic and parking pattern here in Audubon Circle, which includes bike lanes next to the sidewalk. This new design is spreading to other parts of Boston including the Back Bay and in Cambridge. It has been a disaster for Audubon Circle and has led to a reduction in safety for pedestrians, motorists and bicyclists. I will look at my schedule and try to select a few times between 9:00 AM and 5:00 PM during the week when we could speak. However, I know your schedule is much more packed than mine. I hope you have some free time this weekend and keep cool! Best wishes, Kathy Greenough

  4. Thank you Senator for both the back story on these long outdated laws and also for the vote that has finally brought privacy laws into the 21st century. I am proud to be a resident of such a progressive State.

  5. Thanks for explaining this Will!

    For those of us who witnessed pre/post Roe v. Wade during our young adulthood, it very important to see & feel what preceded Roe v Wade in the Massachusetts law!

    We have come so far in terms of privacy!

    Thank you to the MA senate & House for digging so deep to clean up the law for everybody’s sake!

  6. I am actually overwhelmed. I appreciate the foresight shown in addressing these issues now beforehand a court decision creates a sudden emergency.

    I suggest the Senate forms a working group to monitor judicial, administrative and legislative changes coming out of Washington that upend long-established protections so similar quick actions can be taken. There can be no shortage of advocates and law students in this state willing to do the grunt work.