District of Columbia Criminal Code Right to Privacy Amendment Act of 1993 - Committee
Council of the District of Columbia
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
Date: February 10,1993
Subject: Bill 10-30, the "District of Columbia Criminal Code Right
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.
|January 18, 1991
||Bill 9-79 introduced by Councilmember Nathanson
||Bill 10-30 co-introduced by Counci1members Nathanson, Evans and
||Bill 10-30 referred to the Committee on the Judiciary
||Public Hearing on Bill 10-30
|February 10, 1993
||Mark-up & discussion of Bill 10-30
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
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1981" (D.C. Act 4-69) which would have repealed all prohibitions on voluntary and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
Districts 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.
States the short title of the Act.
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.
States the standard effective date of the act.
IV. SUMMARY OF PUBLIC
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:
||Office of Corporation Counsel
|Dr. Carolyn Robinowitz
||American Psychiatric Association
||President, Dupont Circle Citizens
||President, Medical Society of the
District of Columbia
|Cleveland Park Citizens Association
||Traditional Values Coalition Inc. of
D.C. & Mattachine Society of Washington, Inc.
||Gertrude Stein Democratic Club
||President, Gay & Lesbian Activists Alliance of Washington, DC
|Capital Area Log Cabin
Rev. Candace Shultis
|Metropolitan Community Church
||Executive Director, ACLU
||Regional Director of the East Coast
Traditional Values Coalition of California
Moses L. Jackson, Jr.
Rev. Aubrey C. Lewis
Rev. Cleveland Sparrow
|Committee of 100 Ministries
||OUT, Oppression Under Target
||Federation of Citizens Associations
||President, Glover Park
||Civic & Social Action Committee,
DC Baptist Ministers Conference
Karen Bullock Jordan
Gay & Lesbian Task Force
|1993 March on Washington for
Lesbian, Gay & Bi Equal Rights & Liberation
||Sodomy Repeal Project
|AMBI, Alliance of Multi-Cultural
||President, George Washington
University Gay/Lesbian Alumni/ae
|Dr. D. Lee
||President, Clergy Church &
Religious Leaders United to Uphold the Truth
||Capital Region Gay-Lesbian- Bisexual
Veterans of America
||Host Committee Local Chapter, 1993
March on Washington for Lesbian/Gay & Bi Equal Rights and Liberation
||Former Chairman of the Council of
the District of Columbia
Elias Farajaje Jones
|D.C. Coalition of Black Lesbians,
Gay Men and Bisexuals
||ANC 48-10 Commissioner
||Gay Asian Pacific Islander Network
L. Page MacCubbin
|Center for Population Options
||D.C. Chapter of National Conference
of Black Lawyers
||Archdiocese of Washington
||Amnesty International USA
||ANC 18 Commissioner
||Unitarian Universalist Association
The following is a summary of the salient points presented orally and in writing to the
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. Kamenys 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
Larry Ray, Advisory Neighborhood Commissioner for
ANC 2B01, testified on behalf of ANC 2B in favor of Bill 10-30. Mr. Ray called the
Districts 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
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 Districts 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
Districts 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 Districts
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 Gods 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 peoples 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
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 statutes 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
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.
Robinsons 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
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:
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
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
A. Committee Print
B. Bill 10-30, the "District of Columbia Criminal Code Right to Privacy Amendment Act
C. Testimony and Written Statements Submitted into the Record of the Public Hearing
D. Fiscal Impact Statement
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