Last edited: February 14, 2005

Testimony of Troy Willitt of Out! for Sodomy Law Reform

P.O. Box 18781
Washington, DC 20036
(202) 986-HOMO (4666)

OUT! Testimony
D.C. Criminal Code Right to Privacy Amendment Act
Delivered by Troy E. Willitt
Before the Judiciary Committee of the City Council of the District of Columbia
29 January 1993

Chair Nathanson and the members of the Judiciary Committee, thank you for the opportunity to speak before you this morning. My name is Troy Willitt and today I will be speaking on behalf of the membership of OUT!/D.C. Formed in 1987, OUT! is the Washington area’s original Lesbian, Gay and Bisexual non-violent, direct-action organization. OUT! through a variety of peaceful demonstrations, letter writing campaigns and other forms of outreach, is dedicated to, among other things, ensuring Lesbian, Gay and Bisexual equality, liberation and freedom.

Since its formation, OUT! has used various strategies in working toward the repeal of the District’s Sodomy Law. Long frustrated by council inaction on the issue, today’s hearing is certainly a welcome change. This long-awaited, and sorely-overdue, occurrence will benefit all residence of Washington, DC. By finally moving forward with the D.C. Criminal Code Right to Privacy Amendment Act, the Judiciary Committee and the City Council will be bringing the written law into line with realities of today’s society and will be taking a step towards true recognition of the District’s much touted diversity and tolerance.

There are a host of reasons. Several of which I will focus on. Why all individuals living in the District will benefit from the removal of the antiquated sodomy law. First, the law, as written, is simply poor legislation, as it makes a majority of D C. residents criminals and is detrimental to the public’s health. And, second, the law invades every residents right to privacy. While all people living in the District will benefit from the removal of the law, the Lesbian and Gay community will be particularly relieved, since our community has remained the primary target of the sodomy law.

Section 22-3502 of the D.C. Code — "The Sodomy Law" — outlaws almost all forms of sexual activity performed in the privacy of District residents’ homes and applies to heterosexual, as well as homosexual, activity. The specifics of the law will, no doubt, be discussed in great detail today. Simply put, however, by outlawing all forms of oral and anal sex, among others, the law makes anywhere from 85% to 95% of all D.C. residents criminals (based on results of most reliable "sex surveys" conducted in recent years). Individuals committing offenses under this law could be charged with up to a $1000 fine and 10 years in jail. This means that the city, if it were to fully enforce the law, would need to bring criminal proceedings against well over three-fourths of the District’s residents and theoretically jail each and everyone of them. The question begs to be asked then — how can this city, faced with a financial crisis, expect to jail all but 5 –15% of its residents for sexual activity with another consenting person occurring inside the privacy of the home?

The District has the unfortunate distinction of having a high HIV/AIDS ratio. There are those who, in heated debate, will point to the high rate of HIV infection and use that as a justification for maintaining the sodomy law. In actuality, however, the sodomy law may stand as a barrier to effective educational and prevention campaigns. Countless public health officials, from the American Public Health Association, to U.S. Conference of Mayors, to the Association of State and Territorial Health Officials, agree that stigmatization of sexual activity and behavior discourages people from seeking care for sexually transmitted diseases.

While it has not happened in the District, other states with sodomy laws have used these laws to water-down and censor safe sex education materials. Citing the sodomy law, state officials argued that the educational material would have encouraged lawlessness. Without going into further detail on this issue, I come back to the point I made just a minute ago. It is surprising that the District, which is facing financial difficulty, has a law on its books which reduces the incentives for people to seek early diagnosis and care for HIV/AIDS and other STDs — especially when It is this early intervention that has proved to reduce the overall financial burden of caring for these individuals in the long run. It is also shocking, to say the least, that the District has maintained a law which threatens explicit prevention messages regarding HIV/AIDS, when it is crucial that such educational messages be released in order to slow the spread of HIV infection in the area.

I initially argued that the sodomy law was, quite simply, poor legislation because it makes a majority of D.C. residents criminals. This argument assumes, however, that the District Police would be able to catch all offenders in the act. The law, as I stated earlier, makes no distinction between heterosexual or homosexual activity. And, it makes no exception for sexual activity occurring inside of a resident’s dwelling place. Therefore, the law criminalizes most sexual activity for all District residents, regardless of whether the individuals are gay or straight, married or unmarried. Even married couples engaged in sexual activity inside the privacy of their homes are felons under the law. Quite simply, the law denies D.C. residents the right to privacy. It is ironic that the District, which has domestic partnership legislation and legal marriages at age 16, has on its books a law outlawing most types of sexual activity between consenting individuals even if it occurs inside of private dwellings.

While the sodomy law applies to all D.C. residents. It is of particular concern to the Gay and Lesbian community. The Gay and Lesbian community has been, and is, the primary target of enforcement of the sodomy law. The courts even tacitly acknowledged this in a 1976 case. Stewart v. United States. The court stated that the higher incidence of arrests of homosexuals under this section was "due to the lack of knowledge by the police concerning heterosexual sodomitic acts." The plain truth is that police department has never fully enforced the sodomy law and has only used it selectively — most often against lesbians and gay men. As an example. within the past year we have witnessed two separate instances where individuals, or groups of individuals, were charged with "sodomy" and in both cases the accused were gay men.

Selective enforcement of the law aside, the existence of sodomy laws promote homophobia and other forms of discrimination. Sodomy laws are used to ban gay men and lesbians from serving as police officers; to deny professional licenses to lesbians and gays: to take away children of gay and lesbian parents in custody battles because they are "unconvicted criminals"; and, within the past year in D.C., as justification to raid gay and lesbian bars. All of us in the Gay and Lesbian community who rent apartments, and whose lease states that "occupants shall not violate any laws of the District of Columbia," have had to lie in order to obtain a place to live. It is not a great stretch of the imagination to think that certain landlords could, and would, use this as justification to evict gay and lesbian tenants.

The District’s sodomy law long ago outlived any usefulness it may have had. Today, by making 85 – 95% of all D.C. residents criminals and therefore becoming unenforceable, the sodomy law serves only to undermine the credibility of all D.C. written law. Today, by hindering public health educational efforts, the law may actually be needlessly condemning people to an early death. Today, in a city which has made a host of efforts to respect and promote diversity among it residents, the sodomy law denies each and every individual living in Washington. DC the right to privacy.

For nine years, the residents of Washington, DC, and specifically the members of the Gay and Lesbian community, have waited for City Council action. We have written letters, called, marched, demonstrated and lobbied, all to no avail. A variety of reasons have been held up as justification for no action on sodomy law repeal, The most frequent reason being "now it is not a good time." For gay and lesbian residents of D.C., the sodomy law is viewed as a slap in the face of our civil rights and is seen as contradictory to the District’s non-discrimination policy, which includes sexual orientation. Therefore, the members of OUT! join in with the rest of our community in welcoming this break in the frustration. We join in congratulating you, the members of the Judiciary Committee of the City Council of the District of Columbia, on this first, and giant, step towards passage of the D.C. Criminal Code Right to Privacy Amendment Act. Thank you.

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