Privacy, Morality, And The Law In Commonwealth v. Sharpless (1815): “Although It Be Not Committed In Public”

One of the more interesting debates even in modern times regards the criminalization of conduct that takes place within the privacy of the home rather than in the public sphere. I found it fascinating to find that in the 1815 State case of Commonwealth v. Sharpless, what amounts to an old-fashioned pornography case, there are two sides of this very debate presented. One of the most important defense counsel arguments, in part, was that “[p]ublicity is the essence of the crime,” and therefore the showing for money of a lewd picture within the home could not be an indictable criminal offense.

The Court and the concurring opinion of Judge Yeates rejected this argument outright. The opinion of the Court was that “[i]t may be safely affirmed, that whatever tends to the destruction of morality in general, may be punished criminally. Crimes are public offences, not because they are perpetrated publicly, but because their effect is to injure the public.” Judge Yeates likewise writes “that where the offence charged, is destructive of morality in general; where it does or may affect every member of the community, it is punishable at common law.”

The assumption of the Court is that the showing of a lewd picture for money is sufficiently detrimental to the moral character of society as to be disallowed by criminal law despite the entire incident having taken place within the privacy of the home. I think whether this specific act rises to today’s standards of being sufficiently detrimental to the morals of society at large is rather beside the point, though it obviously would not. What is more relevant is how this applies to and contradicts the prevalent and general mindset that utters clichés like “the government has no place in the bedroom.” The problem is that oft quoted and repeated catchphrases in regards to moral issues often fail to address an important underlying principle that should itself be the topic of discussion and debate.

The underlying principle is here articulated by the opinions in Sharpless. Many looking at the rulings of these judges would think it is a throwback puritanical mindset that has no place in modern times. But is this really the case? Is the underlying principle that what tends to the general destruction of morality can be criminalized really objectionable at its root? I think the answer to that question is that there is still today a good case to be made that it is not. The disagreement today with those judges is more likely to arise from the fact that morality has changed to include different norms of proper and improper behavior, of what is truly lewd and lascivious. But the broader point that must be made is not to think of these two judges as throwbacks to a primitive bygone day, because the underlying principle they articulate is still prevalent in laws against prostitution, bestiality, incest, possession of child pornography, and other like crimes. These types of crimes exist today and have “moral” underpinnings even if everything taking place happens solely within a home. It therefore seems in large measure that what has changed is not disagreement with the underlying proposition of the judicial opinions, but rather a narrowing of what is now defined as “destructive of morality.” If the principle articulated by the judges is to be abandoned at its core, then why should many of the laws still in existence today with largely “moral” underpinnings not also be sent to the chopping block? And if such laws should indeed face a quick demise, would society be better off tomorrow than it was yesterday?

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