This whole San Andreas storm in a Hot Coffee cup is getting a bit ridiculous now.
Let's look at the facts:
1) The sexually explicit scenes are in the retail release code of the game, and were not declared to ESRB. (This is undeniably stupid, but somewhat mitigated by fact number two.)
2) These scenes cannot actually be accessed in the retail build of the code. (i.e. you need to make an intentional modification to the game to access it - it can't be accessed as standard - you have to download the mod and install it; you have to really *want* to see it)
3) The only reason the ESRB re-rated the game was because a modder discovered the sexual content and distributed the code to make it become freely available in the game (In violation of the End User License Agreement).
This sets a very dangerous precedent - should the ESRB re-rate The Sims 2 because some modders have created skins to make the 3D models have nipples and sexual organs? By logical extension, they should, but would render the whole rating system meaningless, because I could create a sex mod for the Spongebob Squarepants game if I was so inclined and potentially get a completely harmless game taken off the shelves. Once you start re-rating games because of content enabled by game modification (which is completely beyond the control of the developers), you're opening up Pandora's Box.
The ESRB's original rating for San Andreas was actually appropriate for the content available within the unaltered, retail version of the game. It was only changed because it was politically expedient to do so. Anything to keep the reports of suicide bombings in Iraq out of the news, eh? Rockstar and Take Two have become a target for the neo-cons simply because they're successful. There are any number of games out there which feature far more graphic sex - for example the Singles franchise uses it as its unique selling point to distinguish it from being an otherwise uninspired Sims clone, and that only has a "Mature" ESRB rating. The only reason people like Hilary Clinton and Jack Thompson don't go after that is because it doesn't sell...
It's rank hypocrisy at its worst... So it's okay for a 17 year old to beat people to death with baseball bats, or blow their heads off with automatic assault weapons, but not to see two people engaged in the physical act of love or in a state of nakedness? What kind of message is that giving out? And people wonder why the United States has one of the highest rates of gun crime in the world.
What these scandalous political outbursts fail to take into account in their self-righteous rage is that NOT ALL GAMES ARE DESIGNED TO BE PLAYED BY CHILDREN. Twelve year old kids shouldn't be playing something like San Andreas anyway, and it's the fault of politicians and moral guardians in the media for not getting the message across to parents, not the fault of publishers and games developers for selling games containing adult material. Adult material is available in games (and in books, film or any other entertainment media) because consumers, ADULT CONSUMERS, want it to be there. It's the responsibility of policy makers to put in place the necessary infrastructure to handle these games correctly and the responsibility of parents to educate themselves to prevent inappropriate material falling into the hands of children. These media outrages by ill-informed morons who've probably never even played the games in question do little more than provide games with free publicity to boost sales my making more people who shouldn't be buying the game want to buy it, no doubt scandalising the politicians into an even more rabid fervour.
If this carries on much longer, the only people going to make a killing out of the situation are the lawyers, as the US Federal Government and Take Two/Rockstar knock lumps out of each other in the courts...