Last edited: February 14, 2005


ACLU Testimony for the D.C. Criminal Code Right to Privacy Amendment Act of 1993

Testimony of

Mary Jane DeFrank
Executive Director

on behalf of the

American Civil Liberties Union of the National Capital Area

on the
District of Columbia Criminal Code Right to Privacy Amendment Act of 1993
Before the Committee of the Judiciary of the Council of the District of Columbia

January 29, 1993

The American Civil Liberties Union of the National Capital Area, of which I am the Executive Director, welcomes this opportunity to express its support for the District of Columbia Criminal Code Right to Privacy Act of 1993 which is currently before this Committee for consideration.

The proposed Act is the model of simplicity, but its effect will be profound and salutary. It will bring the District of Columbia into the 20th century, in the twilight years of that century, by declaring that government has no business concerning itself with what occurs in the bedroom between consenting persons. By providing that no act engaged in by consenting persons 16 years of age or older shall constitute an offense under the District's "sodomy" statute (D.C. Code 22-3502), the proposed Act will withdraw from law enforcement officials the ability to police and make criminal the most intimate conduct that can occur between consenting persons.

No substantial governmental interest will be sacrificed by the proposed legislation. The sodomy statute remains intact and enforceable against those who engage in coerced sexual activity proscribed by that law. The District’s public lewdness statute (D.C. Code 22-1112) remains in force to deal with those who would engage in the conduct now prohibited by the sodomy statute in public. And the proposed legislation will not affect enforcement of the District's prostitution and pandering laws. (D.C. Code 22-2701 et seq.) Only private consensual conduct is placed off limits by the proposed Act, and for good reason. Our experience as a people and a nation tell us that there are certain activities that government simply has no business scrutinizing, and what happens in private between consenting persons is far beyond government's legitimate concern.

The District will break no new ground with the pending legislation. A majority of the states no longer permits enforcement of sodomy statutes against private consensual activity. In 23 states, the change has come through legislative actions. In five other states, courts have ruled sodomy statutes to be in violation of state constitutional provisions. The proposed Act would simply put the District in the mainstream.

The District, however, can join the mainstream only by action of the Council. In a 1986 ruling that was harshly criticized by the ACLU and others concerned about civil liberties, the Supreme Court, by a 5 to 4 vote, held that state sodomy laws did not offend the federal constitution. (Bowers v. Hardwick, 478 U.S. 176.) Since that decision, three states — Michigan, Kentucky and Texas — have ruled that the sodomy laws in those states violated provisions of their state constitutions. By so acting, they joined a growing number of states that are looking to state constitutional provisions to protect civil liberties that the Supreme Court has left unprotected under the federal constitution.

The District, by contrast, does not yet have its own constitution as a recourse when Supreme Court rulings on the federal constitution fall short of protecting liberties that District citizens want protected. Until we achieve statehood, District citizens can invoke only the federal constitution to protect their rights in District of Columbia courts, and the Bowers decision currently forecloses District courts from reaching the same result as the courts in Michigan, Texas and Kentucky reached. Thus, the burden is on the Council to act to declare the bedrooms of consenting persons off limits to criminal law enforcement in the District.

Some have suggested limiting the effect of the proposed legislation by making it applicable to consenting persons 18 years of age or older. That proposal would produce anomalous results. In the District, the age of consent for a valid marriage is 16. (D.C. Code 30-103(4).) If the age of consent for the proposed legislation is raised to 18, the effect could be to criminalize certain sexual activity between two people who are legally married. We doubt that legislation designed to remove the criminal law from the bedrooms of consenting persons could intend such a result. The District has already decided that the age of consent for its marriage and rape (D.C. Code 22-2801) statutes should be 16. That same age of consent should remain a part of the proposed legislation.

 

Some argue that, because the District's sodomy law is not enforced, the proposed legislation is unnecessary. In our view, the very fact that the sodomy law is not enforced is a reason why the proposed legislation should be enacted. There are few things more chilling than generally unenforced criminal laws posing the threat of discriminatory enforcement. In striking down a local vagrancy law as unconstitutional, the Supreme Court gave as two of the reasons for its action that the law could lead to arbitrary arrests and convictions and vested too much discretion in the police to enforce or not enforce as they saw fit. Papachristou v. City of Jacksonville, 405 U.S. 156, 161-72 (1972). The same evils lurk in the largely dormant sodomy law in the District's criminal code.

Consider, for example, an openly gay attorney who uncovers a pattern of systematic physical abuse by District police against a class of criminal suspects—those known to be active homosexuals—and threatens to expose the pattern of abuse in defense of a client who has been subjected to the abuse. And suppose that person was threatened with criminal prosecution for sodomy that, if successful, could threaten the attorney's good standing with the D.C. Bar. Is this a likely scenario? Probably not. Is it possible? It most certainly is.

Consider also the plight of the federal worker. Unlike this council, Congress has not seen fit to extend the protection of federal anti-discrimination laws to persons on the basis of their sexual orientation. We are all familiar with the difficulties encountered by federal workers, and especially those in positions considered "sensitive," who are openly gay or suspected of being gay. Simply being arrested under the existing sodomy statute, irrespective of any subsequent prosecution or conviction, can create serious job-related difficulties for such workers.

These examples are, of course, hypothetical. But the scope of the problem of discriminatory use of sodomy laws is anything but hypothetical. The Washington Post recently reported (Jan. 27, 1993, Metro Section, p. B1) that two Virginia police organizations do not hire gay applicants because they believe homosexual activity may violate the state's sodomy laws and they do not hire persons who violate the law. Thus, a sodomy statute can foreclose employment opportunities even when it just remains in the criminal code unenforced.

These examples highlight the evils than can be created by a seldom enforced sodomy statute. Why would anyone argue to preserve a largely unenforced criminal statute unless there was a desire to enforce that statute in the future under unarticulated circumstances? Common sense tells us that criminal laws such as vagrancy and sodomy statutes are, in fact, enforced in a discriminatory manner when they are enforced, and those who fight to preserve them contemplate discriminatory enforcement in the future.

Viewed in this light, the pending legislation would be an important adjunct to the District's Human Rights Act and the District's pioneering effort through that act to eliminate discrimination based on sexual orientation. We blink at reality if we ignore the fact that openly gay persons, who are protected against discrimination by the Human Rights Act, are the likely targets of selective and discriminatory enforcement of the sodomy statute. Eliminating that statute as a potential source of harassment against those in the District's gay community would be a giant step forward for the promise of equal and nondiscriminatory treatment embodied in the Human Rights Act.

At root, one wonders what there is to preserve in the sodomy statute. If the sexual practices of persons in the District, whether heterosexual or homosexual, mirror those in the nation as a whole, the sodomy statute is the most violated provision of the District's criminal code. For example, a 1977 study of sexual practices in the United States showed that up to 85 percent of married couples engage in oral sex. C. Tavris & S. Sadd, The Redbook Report on Female Sexuality (1977). All forms of oral sex, of course, are made criminal by the sodomy statute. Since we know of no groundswell of opinion to eradicate the practice of oral sex between consenting persons in the privacy of their bedrooms, we must conclude that the District's sodomy law no longer serves whatever purpose it was once thought to serve, and the proposed legislation is an effective way to keep that law from being applied in a discriminatory fashion in the future.

I thank the Committee for the opportunity to present this testimony and for the consideration it will give to the views of the ACLU. If we can provide the Committee with any additional assistance as its deliberations on this important legislation proceed, I invite the Committee to call on us.


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