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76 Notre Dame L. Rev. 643 (2000-2001)


When Dwight Eisenhower was President, and the baby boomers of today were but gleams in the eyes of their monogamous parents, it was well understood that chastity was the prevailing social norm.

On the whole, the standard was reinforced by the social ambiance. It was not at all difficult for people of relatively chaste mind to go for days, sometimes weeks, without encountering much of anything at which they could justly take offense. In most environments, social discourse was relatively free of explicit sex, and even sexual innuendo was far from pervasive. Films and broadcasting were closely censored, and detailed descriptions of sexual acts were rare in the print media also. The reticence of the period is in sharp contrast with the pervasive, even compulsive frankness that prevails today.

Looking back on the earlier period, I believe that the most important consequence of the prevailing reticence was the absence of any general assumption of unchastity. Steady dating couples could be constantly in each other's company and even have keys to each other's apartments without it being taken for granted that they were sleeping together. People of the same sex could share an apartment and not be involved in dating without it being assumed that they were homosexual lovers. On dates, marks of affection such as were shown in movies consistent with the rigors of the Production Code were freely exchanged, and in some situations conventional. But nothing more was expected in the absence of a clear signal that it would be forthcoming.

The conventions afforded a certain amount of protection against both sexual harassment and date rape. Both may have been more common than was supposed at the time, but I believe they were considerably less common than they are now. In or out of the workplace, a sexual overture that bypassed the dating conventions was commonly regarded as an insult not only by the person addressed but also by everyone who learned of it. And within the conventions, it was not too difficult to avoid the crossed signals that often presage date rape.

The social commitment to chastity was of course not new, but new forces had arisen in its support. These supplemented, and in part superseded, utilitarian concerns with the social function of monogamy and with what we now call family values. The gradual domestication of the conventions of the medieval courtly love tradition had been going on for more than a century, so that those conventions had come to be firmly identified in the popular culture with honorable courtship and ensuing marriage. At the same time, new developments in philosophy and theology were placing new emphasis on the transcendent significance of the human person, on interpersonal ("I-Thou") relations, on the metaphysical complementarity of male and female, and on the unitive power of sex. New attitudes toward love and complementarity were also fostered by a gradual expansion of the social roles of women that had been going on since the late nineteenth century and by a religious revival that set in after the Second World War. The whole combination led to a general acceptance of the idea that waiting for marriage, marrying for love, and living faithfully thereafter were both normal and normative. That acceptance was both rooted and reflected in the law. Only in a few cases was the law a serious obstacle to anyone who was determined to be unchaste. But as a witness to how society regarded the subject, it was a support and encouragement to people who aspired to chastity and a guide to those who were making up their minds.

What I intend to do in this Article is to survey the common law and statutory provisions that produced that effect and to indicate what has become of them. I will try to show that we should not put up with the marginalization of chastity that has accompanied these changes in the law, and I will offer a legal agenda that those who still think chastity is an important social value can hope to see put in place.


Reprinted with permission of the Notre Dame Law Review.



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