Last edited: February 14, 2005


Sodomy Law Repeal Memorandum

MEMORANDUM

TO: Mr. Thomas Bastow
Office of the Corporation Counsel
The District Building
1350 Pennsylvania Avenue, N. W.
Washington, D. C. 20004

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

SUBJECT: Sodomy Law Repeal

DATE: September 7, 1990

I. INTRODUCTION

In this Memorandum, I've tried to touch upon all of the concerns which I could identify, even some rather remote ones, which must (or might) be considered in deciding on the text of a de facto anti-Sodomy-law repeal bill to be introduced by Jim Nathanson, as soon as the City Council reconvenes in January, 1991. I've tried to err on the side of over-inclusively and over-completeness (including a few digressions just for the sake of information, education, and amusement), and to touch upon everything relevant, in order that we can come to the best decision on this matter. Finally, I've concluded with several specific proposals for language to be adopted, some very similar, but others somewhat different, with some indication of my own preferences among them. As you will notice, the suggestions and proposals below, gradually evolve, as did my own thinking. Initially, I was quite well satisfied with the language and specifics embodied in the very first proposal (Page 4). That gradually changed, I now consider than one somewhat cumbersome and I am now most comfortable with the very last proposal (top of Page 6) and specifically recommend that one.

It is my understanding that what we are aiming for, here, is a "minimalist" approach, very narrowly directed, which will rid us of the existing criminalization of consensual, adult Sodomy, engaged in by human beings, (amendment of 22-3502 of the D. C. Code) with as little tinkering with the remainder of the existing D. C. criminal code as we can get by with while accomplishing our goal. In this Introduction, for the sake of completeness, I have tried to address all possible relevant concerns, even some which are trivial, if only to dismiss them, and at least one which is more substantive, only, finally, to dismiss that also.

Past approaches to Sodomy law repeal have included that repeal within much more grandiose and ambitious proposals for generalized sexual-offense-law reform for very good reason: The remainder of our laws on these subjects are so archaic, and so bound up in ancient, common-law approaches and definitions of offenses, often highly gender-role dependent, and restricted as to the sexual acts which they cover, that in actual practice, in order to provide bases for prosecution of all offenses occurring in real life, they are intertwined with each other, and do not stand up as fully sufficient in their own right, but require invocation of the Sodomy law for complete definition of the offenses, as those offenses are defined and conceived of (and committed and prosecuted) nowadays. A simple repeal of the Sodomy law alone would have left us without prosecutorial recourse in the face of a variety of other sexual offenses. There are two places where this is (or has been considered to be) of particular concern: Rape and Prostitution.

(1) Our Rape law (22-2801) is applicable only in instances of a female victim of non-consensual, penile-vaginal insertion by a male. It does not cover same-sex assaults, and it does not cover sodomitic assaults, whether Homosexual or heterosexual. The Sodomy law is routinely invoked for prosecution of those kinds of sexual assaults, which would otherwise be prosecutable only as a simple assault. Therefore any amendments which we may make must leave as criminalized non-consensual acts of Sodomy, or, in the converse, decriminalize only consensual acts of Sodomy.

(2) Prostitution (22-2701 and 2701.1) has been traditionally defined in terms of a female prostitute and a male customer, exchanging money for penile-vaginal sexual intercourse (See the wording of titles and statutes comprising the entire Chapter 27 of Title -22, including the Table of Contents for that Chapter). Unlike the Rape law, which has been unchanged since its enactment long ago, after several decades of stasis the Prostitution law underwent significant change in the course of the 1980's, with several City Council amendments and additions, which have significantly altered the legal landscape. As a reading of the case-law annotations in the latest edition of the D. C. Code shows, the courts have not completely and consistently caught up with the changes, and there is a significant amount of inconsistency and direct contradiction in the opinions quoted. The net effect, however, would seem (a) to make unnecessary continuation of the Sodomy law as a prosecutorial adjunct to the Prostitution law and (b) possibly to soften and narrow the breadth and scope of application of the non-prostitutional clause ("solicitation for any other immoral or lewd purpose") which was used in the past to "get" Gays (along with the somewhat similar clause in 22-11l2(a)). While, personally, I believe that Prostitution should also be completely decriminalized, this is not the time to get into that particularly thorny and contentious thicket. It must particularly be noted, that under D. C. law, Prostitution, per se, is not illegal; only solicitation for Prostitution is. {Vide: The title of 22-2701: Inviting for purposes of prostitution prohibited; there is no complementary: Prostitution prohibited). Thus, as an aside from the issues at hand: If Prostitute and customer can manage to make their arrangements without an actual solicitation of either one by the other, then whatever they do, including the payment therefor, is not a violation of any Prostitution-related law. I feel that it would be inadvisable were we inadvertently to make a crime of Prostitution- related Sodomy, per se, rather than, as now, merely of Prostitution-related solicitation for Sodomy.

In particular, as indicated above, 22-2701 includes the phrase: [inviting for] "any other immoral or lewd purpose", which had been uniformly and firmly interpreted by the courts to criminalize both prostitutional and non-prostitutional invitations for Homosexual Sodomy, and was long used by the Police, as the basis of choice for arresting Gays, by solicitating solicitations and then arresting the person so entrapped. A similar provision, to the same effect, and operating in tandem with the one discussed here, is found in 22-lll2(a), where it was added in 1953 at the height of the McCarthyite homophobia. Eventually, we will have to get rid of both, since they do represent "ticking time bombs". But elimination of the Sodomy law might provide the basis for defusing those time bombs (see below). In any case, more recent case law at least suggests the possibility of a retreat from application of this clause to non-prostitutional solicitations.

Thus such amendments as we may propose, in the intended absence of a re-writing of other D. C. sex-offense statutes, will have to be tailored to those concerns. This means that we will have to devise means for leaving the current law in place as it applies to non-consensual acts of Sodomy, and as to commercial or commercially-motivated acts (keeping additionally in mind, again, that because our present anti-Prostitution laws do NOT criminalize Prostitution, per se, but only solicitations for Prostitution, and therefore we must leave in place criminalization of prostitutional solicitations for Sodomy while allowing for non-criminalization of non-prostitutional solicitations for now-to-be-decriminalized Sodomy).

However: Life is never simple. There is one additional complication, which needs to be addressed here: Bestiality. Our Sodomy law also criminalizes Bestiality, formulated with language which leaves it intertwined, virtually inextricably, with human Sodomy. While my own approach to Bestiality has always been that if the animal doesn't mind (and it usually doesn't), then I don't mind and I don't see why anyone else should, as you are well aware, some people get very upset at the very notion of Bestiality, and become even more irate and livid (if that be possible) at the thought of permitting Bestiality, than they do at the thought of permitting Sodomy.

As I was the first to point out to many lawyers, starting some 25 years ago, the anti-Bestiality provisions of our law are unusual, in that, as a careful reading of 22-3502 shows, they prohibit only sodomitic Bestiality (engaged in by only a tiny minority of Bestialists), and not "conventional" Bestiality. It has always been my interpretation of this law that those writing it in 1948 were so overcome with horror at the very notion of these unmentionable acts that they were unable to apply rational, analytical thought to what they were doing, and came out with this strangely limited product. This has been a source of much amusement to many.

In any case, as a political matter, we must be sure that we do not end up inadvertently legalizing consensual adult Bestiality and that our decriminalization of Sodomy be limited to acts involving human beings only.

We are left, additionally, with the ancillary issue of Fornication. Fornication is defined as necessarily-heterosexual, penile-vaginal intercourse between two people married neither to each other nor to anyone else. It is criminalized as a misdemeanor, under the D. C. Code (22-1002). There is, perhaps, a certain element of fairness and equity, which might say that if we're decriminalizing Sodomy, we should also decriminalize Fornication, which (unlike Sodomy) could be accomplished by a simple repeal of the existing statute, without the kind of complications addressed above. However, we are then moving back into a general, higher-profile law-reform endeavor, which is what we are trying to avoid. I would suggest that the anti-Fornication law be left alone at this time, for attention some other day. A possible rationale for making a distinction, if rationale be needed, could be that Fornication results in pregnancies, whereas Sodomy (per se) has no consequences, and Fornication is only a misdemeanor while Sodomy is a felony.

Just for completeness, yet another issue usually packaged up in sexual-offense law reform efforts is the criminalization of Adultery (22-301), a misdemeanor. While this has largely fallen into desuetude in D.C., as in most other jurisdictions still retaining such laws, it is showing some signs of a revival in some places (a recent prosecution in Wisconsin and four in Connecticut, after many years with none at all anywhere in the country.). I would suggest that in our instant endeavor, we leave this untouched as well.

I have intentionally omitted from all consideration, questions of public vs. private acts. There is a separate sub-body of D. C. criminal law (e.g. 22-1112, but probably not that only) dealing with public indecency, quite independently of any of the concerns being addressed herein. That would be unaffected by any of the approaches taken here, and would in no way that I can see, impact upon, or be impacted upon by, the proposals contained herein.

Finally, as a reading of 22-3502 shows, it effectively creates an "age of consent" of 16 years. This is consistent with all other D. C. sexual-offense statutes, which uniformly make an age distinction at that point (e.g. 22-1112(b) and 22-3501, inter alia). Modern law on sexual offenses makes special provision for sexual activity by near-peers of ages significantly lower than the general, across-the-board age of consent, as did the original version of the 1981 Sexual Assault Reform Act, and as do the laws of a significant number of states. While this would seem to be sensible and desirable from both a theoretical and a practical point of view in these days of universally sexually-active, ever-younger teen-agers and pre-teens, I would suggest that, for our instant endeavor, we leave that matter untouched also, and the intent of the law unaltered.

Thus, in summary, what we are trying to do is to de-criminalize consensual, non- prostitution-related acts of Sodomy, involving only human non-juveniles, without more, and with the minimum possible alteration of the language of existing law.

II. PROPOSALS

For convenience in understanding what follows, I have attached, hereto, a copy of the full texts of the current D. C. Sodomy law (22-3502), and of the Inviting for Prostitution law (22-2701 and 22-2701.1) without the published commentary and annotations.

A. Approach 1

The matter of non-consensuality is easily addressed, by (1) inserting the word nonconsenting in three places in the first sentence of 22-3502, (2) deleting the word other in each instance, and (3) reversing the order of appearance of the words animal and person, so that the result "scans" correctly and unambiguously. That first sentence, (with the insertions underlined and the deletions (in parentheses)) would then read:

Every person who shall be convicted of taking into his or her mouth or anus the sexual organ of any animal or (other) nonconsenting person, or who shall be convicted of placing his or her sexual organ in the mouth or anus of any animal or (other) nonconsenting person, or who shall be convicted of having carnal copulation in an opening of the body except sexual parts with a(nother) non-consenting person, shall be fined not more than $1000 or be imprisoned for a period not exceeding 10 years.

That necessitates a compensating amendment to the second sentence, to make it read either:

Consent notwithstanding, any person convicted under this section of committing such act with a person under the age of 16 years shall be fined not more than $1000 or be imprisoned for a period not exceeding 20 years.

or:

Any person convicted under this section of committing such act with a consenting or nonconsenting person under the age of 16 years shall be fined not more than $1000 or be imprisoned for a period not exceeding 20 years.

or:

Any person convicted under this section of committing such act with a person under the age of 16 years, consent notwithstanding, shall be fined not more than $1000 or be imprisoned for a period not exceeding 20 years.

The 1981 enactment of 22-2701.1 would seem to make it unnecessary for us to address questions of Prostitution; they are now adequately taken care of, whatever we do with Sodomy, per se. In fact, we explicitly should not address Prostitution in any amendment to 22-3502, because there is no way that I have thus far been able to devise, to insert language into 22-3502, addressing non-commercial solicitation for Sodomy, in a manner similar to that done just above with respect to consensuality. Anything of that nature done in this statute will simply decriminalize something (prostitutional Sodomy itself) which is not now criminalized at all, as distinguished from mere solicitations for prostitutional and/or non-prostitutiona1 Sodomy (which are criminalized in 22-2701), thereby accomplishing nothing and possibly creating a new crime.

Therefore, for our purposes, we should not deal in any way with Prostitution-related concerns.

B. Approach 2

As an alternative to the above, to the same end, we could add an additional subsection to 22-3502, (to be designated either (b) or (c), with re-designation of the current (b) as (c), if appropriate); or an additional sentence inserted into the midst of the main body of Subsection (a), to read:

This section shall not be construed to apply to persons above the age of 15, consensually committing such acts with other such consenting persons.

or, in the passive voice:

This section shall not apply to such acts committed by and with consenting persons above the age of 15.

Stylistically, I prefer the second to the first, but the first is more consistent with the style of the existing language, which phrases itself in terms of "persons committing acts" and not of "acts committed by persons". Legalistically, I see no difference, but perhaps you do.

Here, too, with some reluctance and hesitation, I would tend to leave unaddressed for the present the Prostitutional questions raised by the "immoral or lewd purpose" clause, and come back to them some other day. While that still leaves us vulnerable to a hostile Police Department, for non-prostitutional solicitations for Sodomy (although with the decriminalization of such Sodomy, a First Amendment attack on the solicitation clause might then prevail; the Virginia state supreme court has stated just that), I see no negative impact on valid law enforcement concerns thereby.

III. CONCLUSION

Having explored the matter and ancillary concerns (with possible over-attention to the prostitutional aspects, which are really not all that important), and set out possible alternatives, I would suggest that, everything considered, the Nathanson Bill consist of an amendment to Section 22-3502, by the addition of a single sentence (i.e. Approach 2). That sentence can either be inserted in mid-text, between the existing second and third sentences (i.e. immediately preceding "And in any indictment for the commission ---"), or as a new Subsection (c). In two proposed alternative versions (representing still further changes from the language proposed just above), that sentence would read:

This section shall not apply to any of the acts herein described, when the commission of those acts involves only consenting persons above the age of 15.

or (preferred and final recommendation):

No act engaged in only by consenting persons above the age of 15 shall constitute an offense under this section.

As indicated, I distinctly prefer the second of these, and tend to prefer making it a new Subsection (c) rather than inserting it in mid-text, but you will want to consider all possibilities.

This would seem to address all necessary concerns:

only and persons takes care of bestiality

consenting takes care of rape

above age 15 takes care of juveniles

under this section leaves unaltered all other criminal and prosecutorial concerns found elsewhere in the Code, including prostitution, public acts, and whatever else.

With the few unresolved minor "loose ends" considered above, that new language added to 22-3502 should do the job, and constitute the substance of the Nathanson Bill in its entirety. Once enacted and gone into effect, it will have the full force and effect of a narrowly-construed repeal of the D. C. anti-Sodomy law, for all instances in which we consider that it should be repealed, without impairment of any valid law enforcement or prosecutorial interests that I can perceive, or entanglement with other issues.

As a final thought, I would suggest that if it is possible to stretch definitions and procedures sufficiently, this be considered a "technical amendment" and be buried in one of the occasional omnibus technical amendment bills which are routinely passed by the Council, which make small changes to a large number of existing laws, and are enacted as a package. That, of course, would make a Congressional overturn much more difficult, since the whole package would have to be rejected. It's worth thinking about.

###


22-3502. Sodomy.

(a) Every person who shall be convicted of taking into his or her mouth or anus the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth or anus of any other person or animal, or who shall be convicted of having carnal copulation in an opening of the body except sexual parts with another person, shall be fined not more than $1,000 or be imprisoned for a period not exceeding 10 years. Any person convicted under this section of committing such act with a person under the age of 16 years shall be fined not more than $1,000 or be imprisoned for a period not exceeding 20 years. And in any indictment for the commission of any of the acts, hereby declared to be offenses, it shall not be necessary to set forth the particular unnatural or perverted sexual practice with the commission of which the defendant may be charged, nor to set forth the particular manner in which said unnatural or perverted sexual practice was committed, but it shall be sufficient if the indictment set forth that the defendant committed a certain unnatural and perverted sexual practice with a person or animal, as the case may be: Provided, that the accused, on motion, shall be entitled to be furnished with a bill of particulars, setting forth the particular acts which constitute the offense charged.

(b) Any penetration, however slight, is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary. (June 9, 1948, 62 Stat. 347, ch. 428, title I, 104; 1973 Ed., 22-3502.)

 

22-2701. Inviting for purposes of prostitution prohibited.

(a) It shall not be lawful for any person to invite, entice, persuade, or ad- dress for the purpose of inviting, enticing, or persuading, any person or per- sons in the District of Columbia for the purpose of prostitution or any other immoral or lewd purpose. The penalties for any violation of this section shall be a fine of $300 for the first offense, a fine of $300 and 10 days imprisonment for the second offense, and a fine of $300 and 90 days imprisonment for each subsequent offense. Any person convicted of a violation of this section may be sentenced to community service as an alternative to, but not in addition to, any term of imprisonment authorized by this section.

(b) Inviting, enticing, persuading, or addressing for the purpose of inviting, enticing, or persuading, for the purpose of prostitution includes, but is not limited to, remaining or wandering about a public place and:

(1) Repeatedly beckoning to, stopping, attempting to stop, or attempting to engage passers-by in conversation for the purpose of prostitution;

(2) Stopping or attempting to stop motor vehicles for the purpose of prostitution; or

(3) Repeatedly interfering with the free passage of other persons for the purpose of prostitution. (Aug. 15, 1935, 49 Stat. 651, ch. 546, 1; June 9, 1948, 62 Stat. 346, ch. 428, title I, 102; June 29, 1953, 67 Stat. 93, ch. 159, 202(b); 1973 Ed., 22-2701; Dec. 10, 1981, D.C. Law 4-57, 3, 28 DCR 4652; Nov. 21, 1985, D.C. Law 6-62, 2, 32 DCR 4581; Dec. 1, 1987, D.C. Law 7-44, 2, 34 DCR 5310.)

 

22-2701.1. Definitions.

For the purposes of this act, the term: (1) "Prostitution" means the engaging, agreeing to engage, or offering to engage in sexual acts or contacts with another person in return for a fee.

(2) "Public place" means any street, sidewalk, bridge, alley t plaza, park, driveway, parking lot, transportation facility, or the doorways and entrance ways to any building which fronts on any of these locations, or a motor vehicle in or on any such place. (Dec. 10, 1981, D.C. Law 4-57, 2(1), (2), 28 DCR 4652.)


Background information on this memorandum by Frank Kameny


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