Last edited: February 14, 2005


District of Columbia Criminal Code Right to Privacy Amendment Act of 1993 - Committee Report

Council of the District of Columbia
Report
1350 Pennsylvania Avenue, N. W. Washington, D.C. 20004


To:         Members of the Council of the District of Columbia

From:     James E. Nathanson, Chairman of the Committee on the Judiciary

Date:      February 10,1993

Subject:  Bill 10-30, the "District of Columbia Criminal Code Right
              to Privacy Amendment Act of 1993".

SUMMARY OF RECOMMENDATION

The Committee on the Judiciary, to which Bill 10-30, the "District of Columbia Criminal Code Right to Privacy Amendment Act of 1993" was referred, reports favorably thereon, and recommends its enactment by the Council.

LEGISLATIVE HISTORY

January 18, 1991 Bill 9-79 introduced by Councilmember Nathanson
January 4,1993 Bill 10-30 co-introduced by Counci1members Nathanson, Evans and Chairman Wilson
January 6,1993 Bill 10-30 referred to the Committee on the Judiciary
January 29,1993 Public Hearing on Bill 10-30
February 10, 1993 Mark-up & discussion of Bill 10-30

 

SUMARY OF CONTENTS PAGE
I. Background and Need 2
II. Purpose and Effect 2
III. Section by Section Analysis 3
IV. Summary of Public Hearing 3
V. Executive Comments 12
VI. Fiscal Impact Statement 13
VII. Impact on Existing Law 13
VIII. Committee Action 13
IX. Attachments 14

 

I. BACKGROUND AND NEED

Bill 9-79, the "District of Columbia Criminal Code Right to Privacy Amendment Act of 1991", was introduced by Councilmember Nathanson on January 18, 1991, and referred to the Committee on the Judiciary. The Committee took no action on Bill 9-79 in Council Period IX.

The "District of Columbia Criminal Code Right to Privacy Amendment Act of 1991", and one section of the "District of Columbia Sexual Assault Reform Act of 1981" (D.C. Act 4-69) which would have repealed all prohibitions on voluntary and non-commercial sexual conduct between consenting adults, were predecessors to Bill 10-30.

Since 1973, even before the District of Columbia achieved Home Rule, the District’s official policy regarding non-commercial sodomitic conduct between consenting adults in private has been one of non-enforcement. Without legislation, the existing policy of non-enforcement will continue to be subject to the discretion of administrators charged with its implementation, and the potential for selective enforcement will continue to exist.

On January 4, 1993, Bill 10-30 was co-introduced by Council members Nathanson, Evans and Chairman Wilson, and co-sponsored by Councilmembers Jarvis, Smith and Mason. Notice of the proposed legislation and Notice of Public Hearing appeared on January 15, 1993 in the District of Columbia Register. A Public Hearing was held on January 29, 1993, which commenced at 10:15 a.m. and concluded at 6:50 p.m.

II. PURPOSE AND EFFECT

The purpose of Bill 10-30, the "District of Columbia Criminal Code Right to Privacy Amendment Act of 1993", is to eliminate criminal penalties and the stigma of criminality of certain private, consensual, non-commercial sexual acts between consenting adults. The existing law in the District of Columbia which prescribes all acts of sodomy is codified in D.C. Code 22-3502.

Bill 10-30 provides that private and voluntary sodomitic practices between persons 16 years of age or older, whether between members of the same or opposite sex, or between persons who are not married to each other, will no longer be criminal offenses.

III. SECTION-BY-SECTION ANALYSIS

Section 1

States the short title of the Act.

Section 2

Reforms D.C. Code 22-3502, which makes all acts of sodomy a felony, by decriminalizing non-commercial sodomitic acts engaged in by consenting persons 16 years of age or older in private.

Section 3

States the standard effective date of the act.

IV. SUMMARY OF PUBLIC HEARING

On January 29, 1993, the Committee on the Judiciary held a Public Hearing to receive comments on Bill 10-30, the "District of Columbia Criminal Code Right to Privacy Amendment Act of 1993". The following persons testified at the Public Hearing or submitted written statements on behalf of agencies or organizations:

Jeffrey Robinson      Office of Corporation Counsel
Dr. Carolyn Robinowitz      American Psychiatric Association
Kyle Pitsor                        President, Dupont Circle Citizens Association
Dr. Harold Weiss               President, Medical Society of the District of Columbia
Gilpin Walker
Arthur Meigs
Cleveland Park Citizens Association
Franklin Kameny               Traditional Values Coalition Inc. of D.C. & Mattachine Society of Washington, Inc.
Sabrina Sojourner             Gertrude Stein Democratic Club
Jeff Coudriet                       President, Gay & Lesbian Activists Alliance of Washington, DC
Kevin Ivers
Roger Moffatt
Capital Area Log Cabin
Larry Ray
Dennis Bass
ANC 28
Don Haines                    GAYLAW
Craig Howell                        Citizen
Rev. Larry Uhrig
Rev. Candace Shultis
Metropolitan Community Church
Marie de Matons                  Citizen
Mary Jane DeFrank            Executive Director, ACLU
Pastor Lester James           Regional Director of the East Coast   Traditional Values Coalition of California
Rev. Moses L. Jackson, Jr.
Rev. Aubrey C. Lewis
Rev. Cleveland Sparrow
Committee of 100 Ministries
Troy Willitt                       OUT, Oppression Under Target
Dino Drudi                      Federation of Citizens Associations
Milton Grossman President, Glover Park Citizens’ Association
Dr. Allen R. Horton Civic & Social Action Committee, DC Baptist Minister’s Conference
Mindy Daniels                     Citizen
Gail Gottlieb                       Citizen
Martin Hiraga
Karen Bullock Jordan
National Gay & Lesbian Task Force
Billy Hileman
Robert Niehaus          
1993 March on Washington for Lesbian, Gay & Bi Equal Rights & Liberation
Stephen Smith                Queer Nation
Steven Reichert        Sodomy Repeal Project
Phil Pannell                 Citizen
Michael Beer
Gary Filmore
AMBI, Alliance of Multi-Cultural Bi-Sexuals
Bob Summersgill             President, George Washington University Gay/Lesbian Alumni/ae
Dr. D. Lee Owens         President, Clergy Church & Religious Leaders  United to Uphold the Truth
James Crutchfield Capital Region Gay-Lesbian- Bisexual Veterans of America
Jarmila Dokladalova         Host Committee Local Chapter, 1993 March on Washington for Lesbian/Gay & Bi Equal Rights and Liberation
Richard Rosendall           Citizen
David Clarke              Former Chairman of the Council of the District of Columbia
Dr. Elias Farajaje Jones
Lynelle Johnson
D.C. Coalition of Black Lesbians, Gay Men and Bisexuals
Victoria Wells            ANC 48-10 Commissioner
Antonio Pisig               Gay Asian Pacific Islander Network
Sean Bugg                  Citizen
Deacon L. Page MacCubbin
Jim Bennett
Lambda Rising
Debbi Hauser
Tim Coghill
Antonessa Woodard
Center for Population Options
Beverly Hunter                Citizen
Stuart H. Adams, Jr. D.C. Chapter of National Conference of Black Lawyers
Michael Schwartz        Archdiocese of Washington
Cary Johnson               Amnesty International USA
Mary Bergman            Citizen
Paul Kuhn                 Citizen
Lawrence Guyot        ANC 18 Commissioner
Oriole Saah               Unitarian Universalist Association of Congregations

The following is a summary of the salient points presented orally and in writing to the Committee:

Franklin Kameny, Traditional Values Coalition Inc., of D.C. and the Mattachine Society of Washington, Inc., testified in support of Bill 10-30. Mr. Kameny stated that sodomy is not synonymous with homosexuality, and cited statistics which indicate that a substantial majority of Americans — homosexuals and heterosexuals — engage in sodomy as it is legally defined. Twenty-six states, Mr. Kameny said, have repealed or struck down their sodomy laws. In addition, Mr. Kameny stated that sodomy laws have been used unfairly as justification for restricting adoptions and child visitation rights and denying security clearances to homosexuals. Mr. Kameny noted that 16 is the legal age of consent for other sexual acts in the District of Columbia and has been since at least 1901. Raising the age as it applies to sodomy reform would be anomalous to the "general body of D.C. law," and "would have a number of adverse consequences," Mr. Kameny said.

Sabrina Sojourner, Administrative Vice-President of the Gertrude Stein Democratic Club, testified in support of Bill 10-30. Ms. Sojourner stated that existing sodomy law runs contrary to the D.C. Human Rights Act and is discriminatory. She echoed Mr. Kameny’s statements regarding the selective enforcement of sodomy statutes as a means of denying homosexuals fair and equal treatment. Failure by the Council to reform D.C. sodomy statutes would be tantamount to condoning human rights violations, she said.

Jeff Coudriet, President of the Gay and Lesbian Activists Alliance of Washington, testified in favor of Bill 10-30. Mr. Coudriet equated sodomy reform with furthering citizens. right to choose, citing the "realm of personal privacy." He characterized the existing sodomy law as "a legal facade to bigotry" and "a green light for people who hate." He said raising the age of consent for sodomy to la "would forever enshrine an unfair ‘separate and unequal’ standard in the law and would further stigmatize the lives of gay and lesbian teenagers."

Larry Ray, Advisory Neighborhood Commissioner for ANC 2B01, testified on behalf of ANC 2B in favor of Bill 10-30. Mr. Ray called the District’s sodomy law archaic and "an infringement on the constitutional right to privacy of every resident of the District of Columbia," which serves as a symbol of repression.

Don Haines, representing the National Lesbian and Gay Law Association, testified in favor of Bill 10-30. Mr. Haines noted that if the U.S. Congress had not struck down previous legislation approved by the Council reforming the District’s sodomy law, Bill 10-30 would not be necessary. Mr. Haines said that sodomy laws invade the privacy rights of all Americans. He cited a 1983 study of 12,000 people nationwide that determined that 90 percent of the married and unmarried heterosexuals interviewed engaged in oral sex. Furthermore, Mr. Haines said only 15 states have as restrictive a sodomy statute as the District. He concurred with previous testimony and said sodomy law encourages discriminatory enforcement against minorities and "collateral discrimination against lesbians and gay men."

Rev. Larry Uhrig and Rev. Candace Shultis, representing the Metropolitan Community Church, testified in support of Bill 10-30. Rev. Uhrig said that the fundamental issue is privacy, and that what occurs in private between consenting adults is not the concern of government. The selective enforcement of sodomy law "serves to perpetuate injustice and the abuse of the civil liberties of gay people," he said. Rev. Shultis said citing the Bible as justification for opposing sodomy reform is an abuse of the scriptures.

Mary Jane DeFrank, Executive Director of the American Civil Liberties Union of the National Capital Area, testified in support of Bill 10-30. Ms. DeFrank said "no substantial governmental interest will be sacrificed by the proposed legislation," and that other D.C. laws will remain in place to prohibit certain conduct in public. Ms. DeFrank stated that until the District achieves statehood, D.C. courts will not protect residents. Civil liberties as they pertain to sodomy because the U.S. Supreme Court has previously held that state sodomy laws do not run contrary to the U.S. Constitution. Because the District has no state constitution, D.C. courts are left to the U.S. Constitution and U.S. Supreme Court rulings for guidance, limiting the chance for judicial relief from sodomy laws, as has occurred in other states. It is therefore left to the Council to initiate sodomy reform. Furthermore, Ms. DeFrank said the effect of raising the age of consent for sodomy to 18 could be "to criminalize certain sexual activity between two people who are legally married." The age of consent should remain 16, she said. Ms. DeFrank also said the fact that the District’s sodomy law is not enforced is no reason not to legislate reform. "There are few things more chilling than generally unenforced criminal laws posing the threat of discriminatory enforcement," she said.

Rev. Lester James, Regional Director of the Traditional Values Coalition, testified in opposition to Bill 10-30. Rev. James said that "Judeo-Christian values must be protected as the foundation for all of our liberties," and that the proposed legislation is poor public policy that could have social and economic recriminations. Sodomy reform, Rev. James said, repeals the vital structure of the family as established by God. He also said he fears that Council approval of sodomy reform will start the District down a path that could lead to homosexuality being taught to children in the classroom as a viable alternative lifestyle. Rev. James said the Council is being held hostage by a relatively small component of the population and that elected officials must be careful in choosing sides on moral issues. Rev. James did say, however, that the privacy issue has some merit in sodomy reform, but only within the framework of traditional heterosexual marriage.

Rev. Moses L. Jackson, Rev. Andrew Fowler and Rev. Cleveland Sparrow, representing the Committee on 100 Ministries, testified in opposition to Bill 10-30. Rev. Jackson said approving sodomy reform legislation would make the Council a proponent of an increase in sodomy and broken vows. He characterized sodomy reform as a concerted effort to destroy the family, which would also lead to the deterioration of the fabric of society and cause an increase in murder, drunkenness and other unwanted social behaviors. Rev. Lewis said privacy is fine, but since it is unlikely the law will ever be enforced on those acting in the privacy of the home, existing sodomy law should be left in place.

Dino Drudi, representing the Federation of Citizens Associations of the District of Columbia, testified in opposition to Bill 10-30. Mr. Drudi warned that approving sodomy reform legislation would damage the District’s relationship with the federal government. Furthermore, Mr. Drudi said sodomy was the primary means of spreading the virus which causes AIDS, and sodomy reform, therefore, would have an adverse impact on the health of the community at-large. Sodomy reform would be equivalent to encouraging the spread of AIDS and would increase the burden on the medical and social infrastructure of the city, rendering any argument for sodomy reform on the basis of privacy invalid, Mr. Drudi said.

Dr. Allen R. Horton, Chainman of the Civic and Social Actions Committee of the Missionary Baptist Ministers Conference, testified in opposition to Bill 10-30. Dr. Horton enumerated the detrimental effects the Ministers Conference believes sodomy reform would have on society — including an increase in crime, unemployment, indebtedness and the rate of the spread of disease. Sodomy and homosexuality, Dr. Horton said, are perversions and contrary to God’s designs.

Martin Hiraga, Director of the Privacy Project of the National Gay and Lesbian Task Force, testified in favor of Bill 10-30. Mr. Hiraga cited privacy as an argument for sodomy reform and stated that executive orders mandating non-enforcement of sodomy statutes are only temporary measures subject to the will of those in office. He also stated that the proposed legislation would have no effect on laws preventing forced sexual acts.

Stephen Smith, representing Queer Nation, testified in favor of Bill 10-30. Mr. Smith said the existing law is used to discriminate against homosexuals, in direct contrast to the D.C. Human Rights Act, and leads to increased crimes against gay men and lesbians. Mr. Smith also commented that the age of consent, whether set at 16 or l8, should be consistent throughout D.C. law.

Steven Reichert, representing the Sodomy Repeal Project of Queer Nation, testified in support of Bill 10-30. Mr. Reichert cited the right to privacy and said the government has no compelling interest in controlling private, adult and consensual sexual decisions. Mr. Reichert also said sodomy laws stigmatize sexual behavior, discouraging individuals from seeking care and counseling for sexually transmitted diseases.

Katherine L. Becker, Assistant Director Division of Government Relations, American Psychiatric Association, submitted a written statement in support of Bill 10-30. In her written correspondence, Ms. Becker stated that "[i]t is the position of the APA — and has been since 1973 — that ‘existing legislation making criminal offenses of sexual acts performed by consenting adults in private should be repealed.’"

Dr. Harold Weiss, MD, President, Medical Society of the District of Columbia, submitted a written statement in support of Bill 10-30. In his written correspondence, Dr. Weiss stated "[w]e do not believe that any laws in the District should unjustifiably intrude on the privacy of individuals without just cause, and urge the repeal of any laws which violate this principle."

Dr. D. Lee Owens, President of the Clergy, Church and Religious Leaders to Uphold the Truth, testified in opposition to Bill 10-30. Dr. Owens said the sodomy reform legislation, as drafted, promotes homosexuality and is contrary to biblical principles and the laws of God. Dr. Owens said that while existing penalties were too harsh, some form of punishment may be warranted for violating sodomy statutes. He suggested that existing law could be amended to permit sodomy between married adults in the privacy of their homes, which would be sufficient to ensure some measure of privacy. Police, he said, are not going to break into people’s bedrooms to enforce the sodomy statute.

Dr. Elias Farajaje-Jones, Co-Chair of the Political Action Committee of the D.C. Coalition of Black Lesbians, Gay Men and Bisexuals, testified in support of Bill 10-30. Dr. Farajaje-Jones commented on the validity of the accepted interpretation of the biblical story of Sodom, which is reflected in modern day sodomy law. "This story has exercised a powerful influence, directly or indirectly, upon both civil and ecclesiastical attitudes to same-sex behavior ... By extension, sodomy came to represent any form of sexual behavior considered to be contrary to nature," he said. Dr. Jones stated further that "there is no valid appeal to the Sodom narrative in order to condemn same-sex activities, or any other sexual activities," and that there is "no sound religious or theological basis for not reforming" the District's sodomy law.

Deacon L. Page Maccubbin and Jim Bennett, President and Vice-President of Lambda Rising, testified in support of Bill 10-30. Mr. Maccubbin said the government has no right to intrude on the privacy of the bedroom and that the moral and religious ideals encompassed by the debate on sodomy reform are better discussed in the religious arena — not by the District Council. Mr. Maccubbin repeated statistics concerning the widespread practice of sodomy, as well as previous assertions that the proposed legislation does not repeal other statutes pertaining to sexual crimes. Mr. Bennett testified that he is tired of being branded a criminal because he leads a gay lifestyle and that sodomy reform is a civil rights issue.

Debra Hauser, Director of the Support Center for School-Based and School-Linked Health Centers, Center for Population Options, testified in support of Bill 10-30. Ms. Hauser stated that anal and oral sex is normal behavior and that continued debate over sodomy will create a climate of fear that will prove counterproductive to current public health efforts to reduce high-risk behavior among adolescents. Ms. Hauser cited statistics presented by the D.C. Commission on Public Health which state that 70 percent of District tenth graders are sexually active, magnifying the importance of maintaining an open atmosphere where teenagers and adults can communicate on sexual matters.

Timothy Coghill, member of the Teen Council of the Center for Population Options, testified in support of Bill 10-30. Legalizing anal and oral intercourse between consenting individuals age 16 and older would help ease tensions concerning teenagers’ sexual behavior, increasing the likelihood that youth would come forward and discuss sexual matters, Mr. Coghill said. In addition, he stated that the age of consent for anal and oral intercourse should be consistent with the age of consent for other sexual activities.

Stuart H. Adams, Jr., HIV Committee Chairperson for the Washington Chapter of the National Conference of Black lawyers, testified in support of Bill 10-30. Mr. Adams echoed many of the comments made previously concerning the privacy issue as well as the sodomy statute’s impact on the prevalence of hate crimes. He further categorized enforcement of the sodomy law as discriminatory and said it contributes to the stigma surrounding homosexuality.

Michael Schwartz, representing the Archdiocese of Washington, testified in opposition to Bill 10-30. The Catholic Church, Mr. Schwartz said, regards sodomy as a grave sin. Legalizing what was once criminal behavior would help create the impression "that there is a newly-created right to that behavior, that the public authorities now condone it," Mr. Schwartz said. He also added, however, that "strict enforcement of the law might produce more harm than good," and that the current policy of non-enforcement, with few to no prosecutions except in conjunction with other charges, could be considered a suitable compromise. "It may be argued that this is not the way the law is supposed to work in theory. Nonetheless, it seems to be a good practical arrangement which serves the community well in light of the demands placed upon our law enforcement and judicial systems," Mr. Schwartz said.

Cary Johnson, representing Amnesty International USA, testified in support of Bill 10-30. Mr. Johnson said that simply having sodomy laws, whether enforced or not, "sends a message that gays and lesbians are criminal, aberrant and therefore punishable."

Harry Singleton submitted testimony in support of Bill 10-30. Mr. Singleton, in his written comments, stated "that the freedom of the individual in our democratic society is almost sacrosanct," and that government has no place infringing on the privacy of the bedroom. He states further that the proposed legislation does nothing to encourage "an alternative lifestyle," but is indeed neutral on sexual orientation, as is the existing law.

Oriole Saah, Assistant to the Director of the Unitarian Universalist Association of Congregations, submitted written testimony on behalf of the Association in support of Bill 10-30. The Association cites its member denominations' support of the fundamental right to privacy in supporting the proposed legislation. "Among the religious denominations and religious-related organizations supporting this statement, there is a diversity of opinion about the moral propriety of heterosexual and homosexual sodomy, but we share a common moral position in support of the principles of privacy and equal rights embodied in the proposed Privacy Amendment Act," the testimony states.

V. EXECUTIVE COMMENTS

Jeffrey D. Robinson, Principal Deputy Corporation Counsel, submitted a written statement in support of Bill 10-30. In his written correspondence, Mr. Robinson stated, "Mayor Kelly has consistently taken the position that private, noncommercial sexual acts between consenting adults should not be stigmatized as criminal." Mr. Robinson also stated that the official position of the District government is not to make arrests for sodomitic acts engaged in by consenting adults in private, but that "the Council should enact bill 10-30 to ensure certainty and non-discriminatory treatment of all residents of the District." Attached to Mr. Robinson’s written statement is a list of 26 states which have repealed their sodomy laws or whose sodomy statutes were struck down by a court decision.

VI. FISCAL IMPACT STATEMENT

There will be no fiscal impact from the proposed legislation.

VII. IMPACT ON EXISTING LAW

The proposed bill would reform, rather than repeal, the existing sodomy statute by maintaining proscriptions against sodomitic acts involving animals and sodomitic acts between persons which are coerced, of a commercial nature, engaged in with minors, and/or committed in public.

Nothing in the proposed bill would eliminate prohibitions in the existing law governing prostitution, which is defined in D.C. Code 22-270l.l as "the engaging, agreeing to engage, or offering to engage in sexual acts or contacts with another person in return for a fee". Nor would the proposed legislation protect lewd, indecent, or obscene acts which constitute disturbances of the public peace, and are prohibited by D.C. Code 22-lll2.

VIII. COMMITTEE ACTION

On February 10, 1993, the Committee on the Judiciary met to discuss and mark-up Bill 10-30, the "District of Columbia Criminal Code Right to Privacy Amendment Act of 1993."

Councilmember Jarvis offered an amendment to Bill 10-30 to add language to the legislation affirming its link to the District of Columbia Human Rights Act of 1977, and its prohibition of discriminatory practices.

Councilmember Ray opposed the inclusion of human rights language in the bill, but stated he would support similar language in the Committee Report. Councilmember Ray said the proposed legislation is neutral in its application, and therefore is not discriminatory. Furthermore, since Bill 10-30 is an amendment to the criminal code, Councilmember Ray said, it should not reference a civil statute.

Chairperson Nathanson agreed with Councilmember Ray, stating that including human rights language in the portion of the legislation which would be codified was inappropriate. He added, however, that he would support the inclusion of human rights language in the Committee Report and perhaps in the title. Chairperson Nathanson then remarked that the Human Rights Act already protects against discrimination based on sexual orientation, and that sodomy reform is an issue which impacts the community in general and not one group.

Councilmember Evans stated his support for the inclusion of human rights language in Section 2 of the bill.

Following discussion, Councilmember Jarvis moved to include human rights language in the bill, with leave for staff to make any technical modifications. The Committee Print has been amended to reflect Councilmember Jarvis' amendment appropriately. The vote on the amendment was as follows:

Amendment
Chairperson Nathanson Aye
Councilmember Brazil Absent
Councilmember Jarvis Aye
Councilmember Ray Nay
Councilmember Thomas Absent

The amendment passed.

Following the vote on the amendment, Councilmember Ray commented on the "age of consent" issue raised by several witnesses at the public hearing. He disagreed with the opinion that setting a different age of consent for sodomitic acts would be discriminatory. Bill 10-30, Councilmember Ray said, is neutral on the matter of sexual orientation, and does not discriminate. He further stated that in voting in favor of the legislation in committee he remained open to the issue of change in the age of consent. Councilmember Ray also stated that he would not support a waiver of section 403 of the Committee of the Whole Rules, which sets forth the deadline for consideration of the proposed legislation.

Upon conclusion of the discussion, Chairperson Nathanson moved the Committee Print, as amended, and the corresponding Committee Report, with leave for staff to make technical corrections. The vote was as follows:

Bill 10-30 as Amended Report on Bill 10-30
Chairperson Nathanson Aye Aye
Councilmember Brazil Absent Absent
Councilmember Jarvis Aye Aye
Councilmember Ray Aye Aye
Councilmember Thomas Absent Absent

IX. ATTACHMENTS

A. Committee Print
B. Bill 10-30, the "District of Columbia Criminal Code Right to Privacy Amendment Act of 1993"
C. Testimony and Written Statements Submitted into the Record of the Public Hearing
D. Fiscal Impact Statement


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