Last edited: February 14, 2005


"Age of Consent" for D. C. Sodomy Law Repeal Bill

MEMORANDUM

To: D. C. City Counci1members  Frank Smith
                                                    Hilda Mason
                                                    Linda Cropp
                                                    Marion Barry

Copies: All other Councilmembers

From:  Franklin E. Kameny
            5020 Cathedral Avenue, N. W.
            Washington, D. C. 20016

Subject: "Age of consent" for D. C. Sodomy law repeal Bill (Bill 10-30)

Date: January 19, 1993

I write as one who has been not only in the forefront of the battle to repeal the D.C. Sodomy law, since 1975, but as the person who drafted the substantive language of the instant Bill 10-30. I am widely recognized as an authority on the laws on sexual offenses, nationally, and am often consulted in that capacity. Thus I am intimately familiar not only with this Bill, and the reasons for its every word and provision, but with the subject matter generally.

I was deeply disturbed, distressed, and dismayed to 1earn that the four Councilmembers to whom this Memorandum is specifically addressed are seeking to raise the "age of consent" for purposes of this legislation from the 16 which has prevai1ed in all D. C. law on sexua1 offenses since 1901, to 18.

I emphasize: This Bill does not lower the age of consent. It leaves in place and unchanged what has been well-settled D. C. law on this matter for at least 92 years and probably longer.

The proposal to raise the age to 18 for Sodomy will open the way for the creation of a hodge-podge of different lower-permissible ages for each different sexual act — truly an insane situation. Are we going to leave the age at 16 for permissible Fornication; raise it to 18 for Sodomy; have something else for fondling and still some other age for kissing? Will we have one age of consent for deep kissing and another for less intimate kissing; one for consensual fondling of a breast, another for such fondling of genitalia, and yet another for fondling of buttocks?

Has consideration been given to one age of consent (say 17) for Oral Sodomy and another (say 18) for Ana1 Sodomy — or vice versa?

That IS where this suggestion to raise to 18 the age incorporated into the Bill 10-30 clearly and unavoidably leads.

And how is the poor 16 or 17-year old, victimized by this idiocy, to know, in the midst of a consensual sexual liaison, whether or not he or she is crossing the line into criminality, as a repertoire of sexual activity is enjoyed?

I hope that you will read this Memorandum with great care, and will then be persuaded to withdraw your objections to the 16-year age which is incorporated in the current Bill.

Let me present you with some facts. However, before I start, I note, as I will repeat below, that: Sodomy and Homosexua1ity are not synonymous. The subject "on the tab1e" and being addressed by this Bill is Sodomy, NOT Homosexua1ity, except through persistent misinterpretations by some people.

1. Sodomy is defined by D. C. law (22-3502) as Oral-genital, and Anal-genital sexual contact by ANY two people: male-female, male-male, female-female; married as well as single. All such acts of Sodomy by any such pairs of participants, are felonies, penalized by up to 10 years imprisonment and a fine of up to $1,000, when the participants are 16 years of age or older, and by up to 20 years in prison, if involving persons below 16. Consent is irrelevant.

Sodomy is a1most universally practiced. Some 93% of all (not just Gay) American adu1ts engage in Ora1 Sodomy; over 50% engage in Ana1 Sodomy (See: Schochet v. State, 541 A.2d 183, 206, 1988). Thus our present Sodomy law makes habitual, recidivist, repetitive felons of almost everyone in the District. Additionally: Oral sex is almost universally engaged in by our post-pubertal teenage population, making habitual felons of them as well.

2. Legal situation in the District

Section 30-103 of the D. C. Code defines the Age of Consent as 16. While that Section then goes on to apply that definition to marriage, the definition is clearly a more general one.

That Section was enacted in 1901. Thus this is deeply embedded in Washington law, having been in effect for almost a century, and possibly reflecting older District law. It is nothing new or recent.

The age of 16 is woven as a thread which pervades the entire body of D. C. law relating to sexual offenses of various kinds. For examp1es (there are others):

  • As indicated above, the current Sodomy law, which this Bill amends, draws a clear line at age 16.
  • Section 22-3501 creates a number of sexual offenses when one of the participants is below age 16, which are not offenses if involving only persons over 16.
  • Section 22-1112b creates a much heightened offense if certain things a sexual nature are said or done in the presence of persons below the age 16.
  • Section 22-2801- Rape effectively sets the defining age for so-called "statutory rape" in the District as 16.
  • Sections 22-2011(2), 2012(1) and (2), and 22014(a), dea1ing with "Sexua1 Performances", permit such performances by persons 16 and o1der.
  • Section 22-2704, dea1ing with certain prostitution-re1ated offenses, incorporates an age of 16.

Thus estab1ishment of 18 as the age of consent for consensua1 Sodomy wou1d create an anomaly in the general body of D. C. law, which would have a number of adverse consequences as indicated above and below.

3. Other Jurisdictions

Sixteen, as the "age of consent" for sexua1 activity blazes no new trails. It is mainstream American law, throughout the country.

In the great majority of states, the age of consent for all sexua1 activity, including Sodomy, is 16 (with a graded, or stepped age of consent for near-peers, down to 12, in a number of states). It is 15 in Connecticut and Co1orado. For all practica1 purposes, it is 14 in Hawaii. It is 13 in New Mexico. While it is higher is a small number of states, they are in a tiny minority.

Thus setting an age of 18 in this matter would set the District apart from the majority of jurisdictions in the country.

Further: There is no American .jurisdiction in which there is a higher age of consent for Sodomy (or for Homosexual sexua1 acts) than for other sexua1 acts (or for heterosexua1 sexual acts), which would be the effect of this proposal. Thus D. C. will be a discreditable first, if this change be effected.

4. Consequences

Raising the age of consent for Sodomy from the current 16, to 18, has a number of consequences, some of them bizarre, and all of them adverse and undesirable. Because this represents tinkering on a piecemeal basis with a code which is relatively uniform in this respect, anomalies develop.

1. Why should the age line be drawn at 16 for Fornication, which produces pregnancies, but at 18 for Sodomy, which produces only enjoyment without adverse consequences? Additionally, this change would mean that if, say, two 17-year-old heterosexuals engage in "conventional" pregnancy-producing sexual intercourse, they would be "guilty" of a mere minor misdemeanor (Fornication), while if they were to engage in innocuous, consequence-free oral-sex, as foreplay, they would be guilty of a felony with a hefty fine and prison sentence. This is sheer insanity!

Making sexual felons out of consenting 16 or 17-year-old teenagers seems hardly to advance the public interest or to represent sound public policy!!

2. D. C. 1aw permits marriage at age 16. If the 1ega1 age for Sodomy be raised to 18, this will mean that lawfully married couples, of ages 16 and 17, can lawfully engage in conventional sexual intercourse, but will be felonious criminals if they choose to engage in universally-practiced forms of sexual foreplay. How silly! This will make a laughingstock out of the District!!

3. I have letters in my possession going back as far as 1973 from Chief Wilson of the Metropolitan Police Department, stating that in the absence of aggravating circumstances (e.g. force; prostitution) they will not prosecute consensual acts of Sodomy engaged in by persons 16 years of age or older. That has been fixed and settled police and prosecutorial policy for at least 20-years. It was recently reaffirmed in public statements, emerging from various places in the Executive Branch of the D. C. Government.

If, now, the age be raised by Council action to 18, this will be taken by law enforcement officials as an affirmative signal to them from the City Council that the law against consensual Sodomy upon the part of 16 and 17-year-olds, a "dead letter" up until now, is no longer a "dead letter", but is intended to be very much alive.

We will then begin to see some very ugly and nasty cases of arrests and prosecutions for fully consensual, private acts of Sodomy involving 16 and 17 year olds, preceded by extensive, intrusive, money-and-resource-wasting investigations, and some vicious cases of entrapment and other manifestations of the worst of police abuses. The official homophobes will have a field day. That is the way the scenario will work its way out. There are always fascists waiting in the wings for a signal which will enable them to expand their repressive control over people, and to do their dirty work. This raising of the age will be taken as that signal.

4. The impact of raising the age of consent for Sodomy will be particularly unfortunate upon younger Gays. We in the Gay community have worked long and hard and not nearly successfully enough so far, to provide for the normal social needs of our Gay teenagers, who are deprived of what heterosexual teens of the same ages consider, without second thought, a normal social life. This change in age will add overt inescapable criminality to the heavy burden of stigmatization and marginalization which these young people must already bear. This raising of the age of consent for Sodomy is a sure-fire recipe for raising the already-far-too-high suicide rate for Gay teenagers.

5. Beyond the direct impact on younger people themselves, a change to 18, while the age of consent remains 16 for other forms of sexuality, maintains and reinforces exactly the symbolic marginalization of Gays which we are trying to eliminate. In the rhetoric of the '60's Civil Rights Movement: We will now be allowed onto the bus, but will be kept firmly and calculatedly in the back.

The implication of this proposed raising of the age, as it has come to me, is that we and our lifestyle are being considered second class, from which our younger people must be protected. That is offensively insulting and is unacceptable.

The inequality and lesser status of Gays and of Homosexuality so symbolized will be intolerable, and will not be tolerated.

In a small number of countries (notably England, and perhaps France), such an age differential (there between Homosexual and heterosexual sex) has proven to be a festering sore and a bone of continuing and bitter political contention. It will become exactly the same here.

We all want to put this issue behind us, once and for all and totally. This raising of the age will keep it alive indefinitely into the future by creating a brand new, heretofore-unthought-of sub-issue. Raising the age to 18 (for what will quickly be interpreted as Homosexual sex but not heterosexual sex) will do exactly that, and we will have to continue wasting everyone's time pestering the Council, with increasing impatience and intensity, in what will become a nasty political battle, until the matter is resolved once and for all and properly. An age of 18 is not properly; an age of 16 is. The issue will not go away, and will fester indefinitely.

Therefore I urge you to abandon this notion of raising the legal age for engaging in Sodomy to 18, as a bad idea. Vote for enactment of this Bill exactly as it stands.

I will be more than pleased to discuss these and related matters with you if you wish. I can be reached at the address above, or at (202) 362-2211.


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