Since now every civil and political precept are on the table, I thought it might be useful to develop an approach to dealing with sexual deviancy. There is of course outright criminalisation and exceptionless prosecution in every case, then there’s our contemporary situation of outright celebration and establishment as a protected class under the law. We then have everything in between from discreet toleration to open toleration but social disapproval.
I would like to propose an approach modelled on the English Canons of 1604. While it is a church canon, I think it can be easily adapted to a civil legal system. I would like to begin by quoting a commentary and analysis of the canons of excommunications given by the Rev Davis. In the 1604 canons most canons which prescribe excommunications uses the wording: “let him be excommunicated ipso facto”. Davis comments:
It is also to be observed that the sentence is not that all such shall certainly be excommunicated, but only that they deserve it—that it is right for the authorities of the Church to excommunicate them : — “let” them “be” so. And they are not to be treated as “excommunicate” persons, until they are actually excommunicated. For, as Archdeacon Sharp observes : “They are laid under this censure here as being excommunicated ipso facto in the Canons under the first title; but, till a sentence hath passed upon them, this discipline of repelling will not reach them.” (Charge vi., p. 104.) So that, as has been observed, the import of these Canons is, that “the Church has a right to excommunicate any person who boldly and publicly affirms the Articles, Liturgy, &c, to be superstitious and erroneous.” (The late Rev. C. R. Elrington, D.D., Regius Professor of Divinity at Trinity College, Dublin.) Upon ipso facto excommunication it has been remarked : “The ipso facto excommunication takes effect, as to the intention of the Canon, from the moment that the fact is committed. It has not a legal effect till a sentence has been pronounced in court. The man who commits the fact, knowing the Canon, is excommunicated in his own conscience from that moment forward. If he be brought into a spiritual court, and it be proved against him, he is not excommunicated then, but pronounced to have been excommunicated from the time of his offence. The court does not excommunicate him, but the Canon. The effect of this method of excommunication is, that he is prevented from anticipating his sentence by a profession of penitence and submission. For the rule anciently was that no one should be excommunicated, except he were obstinate as well as criminous.
The idea here is that the canons gives the Church the right to prosecute and excommunicate anyone who falls foul of the canons, but it is not compelled or required to actually proceed with the prosecution. It can take into account repentance or encouragement to repent in deciding whether to proceed with the prosecution. As such, even in criminal law, there is prosecutorial discretion for many crimes and the Attorney General has leeway to decide whether to proceed taking in account various casuistical elements.
This ties in with my earlier discussion on the idea of laws as “instruments of government”, they exist to enable rulers and governors to achieve their broad political objectives or goals, but they do not bind in themselves but are merely one instrument or means to help them achieve their objectives. If the goal is rehabilitation for such criminals, then it may make sense not to proceed with the prosecution, and have it reserved only for the notoriously and obstinately unrepentant as a public warning, deterrent, and for public setting of standards.
Unlike cases of murder or robbery where there is a victim who demands retribution or recompense, in such cases usually the victim and the perpetrator are one and the same person, as such, it is an offense against their own natures and they may not always want to prosecute themselves, especially if they ask for a chance to be rehabilitated and to change.
Would such prosecutorial discretion be abused? Most certainly, but I think there is much to be said for having governors who consider the “weightier matters of the law” rather than mechanically applying every clause strictly. Of course, this will mean less a “rule of law” culture and more a “rule by law” culture whereby it is not the law which rules but ultimately some sovereign with fundamental intentions, purposes, and objectives, and the laws are but instruments and means to realise these fundamental purposes. As such, every decision whether to proceed with a prosecution or not will be fundamentally a matter of casuistry, to be determined on a case by case basis given all the facts and features of the case and by value judgements of the governors, etc. However it is important for the law to remain on the books as a “schoolmaster” or teacher of the norms and standards which governs the polity even if its application to particular cases are fact sensitive.
I think this strides the golden mean between turning sexual deviancy into a protected class and relentlessly attempting to prosecute everyone guilty of it.