About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

68 Clev. St. L. Rev. 811 (2019-2020)
Private Affairs: Public Employees and the Right to Sexual Privacy

handle is hein.journals/clevslr68 and id is 814 raw text is: PRIVATE AFFAIRS: PUBLIC EMPLOYEES AND THE RIGHT TO SEXUAL PRIVACY SuSAN A. JACOBSEN* ABSTRACT Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the penumbras of the Constitution, public employees should be protected in their legal sexual conduct. While several states still criminalize adultery and thereby make certain off-duty sexual activity illegal, this Note also argues that anti-adultery statutes are unconstitutional in the same way the Supreme Court found anti-sodomy statutes unconstitutional in Lawrence v. Texas. Ultimately, the United States Supreme Court should extend its logic from Lawrence and find that public employees cannot be disciplined for their legal, off-duty sexual activity. CONTENTS I. INTRODUCTION ..................................................... 812 II. THE HISTORY OF PRIVACY RIGHTS AND ANTI-ADULTERY STATUTES.............817 A. The Evolution of the Right to Privacy ................ ............817 B. Criminalizing Infidelity: A History ofAnti-Adultery Statutes ...................819 C. Present Day Privacy Issues: The Circuit Split on Sanctions of Public Employees for Legal Off-Duty Conduct..................................822 1. Seegmiller v. LaVerkin City: The Tenth Circuit held the constitutional right to privacy is not fundamental ............................822 2. Coker v. Whittington: The Fifth Circuit joins the Tenth Circuit in failing to find a right to privacy ......................................824 3. Perez v. City ofRoseville: The Ninth Circuit recognizes the right to privacy ............................ ....... ....... 825 III. A CONSTITUTIONAL RIGHT TO SEXUAL PRIVACY .........................826 * Susan A. Jacobsen is a third-year law student at the Cleveland-Marshall College of Law. She wishes to offer her sincerest thanks to Alex Frondorf for his insightful advice and guidance, the editors of the Cleveland State Law Review for their invaluable feedback, and all her friends, family, and colleagues who have supported her throughout her law school journey. 811

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most