ACLU Testimony for the D.C. Criminal Code Right to Privacy
Amendment Act of 1993
Mary Jane DeFrank
behalf of the
American Civil Liberties Union of the National Capital Area
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 Districts 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
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
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 suspectsthose known to
be active homosexualsand 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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