Last edited: February 14, 2005


Corporation Council Testimony for Sodomy Law Reform

Government of the District of Columbia
Office of the Corporation Counsel
Judiciary Square
441 Fourth St., NW
Washington, DC 20004

January 28, 1993

The Honorable James E. Nathanson
Chairman, Committee on the Judiciary
Council of the District of Columbia
District Building

Washington, D.C. 20004

Dear Chairman Nathanson:

Thank you for this opportunity to express the support of the Executive Branch for Bill 10-30, the "D.C. Criminal Code Right to Privacy Amendment Act or 1993." This bill would amend the District statute which makes sodomy a felony, by providing that it would not apply to acts engaged in only by consenting persons who are 16 or older.

Throughout her public career, Mayor Kelly has consistently taken the position that private, noncommercial sexual acts between consenting adults should not be stigmatized as criminal. More than 20 years ago, as a member of the D.C. Law Revision Commission she helped draft a comprehensive amendment of the District’s sexual assault laws which incorporated that view. The Law Revision Commission’s amendment was adopted by the Council as the Sexual Assault Reform Act of 1981, but ultimately fell to a one-house veto by the House of Representatives after a lobbying blitz by the Reverend Jerry Falwell. As a candidate for Mayor, Mayor Kelly stated that she was committed to repealing laws which make private noncommercial sexual acts between consenting adults illegal. She has reiterated that position as Mayor.

Moreover, since even before the advent of Home Rule, it consistently has been the official position of the District government not to make arrests for acts of sodomy committed by consenting adults in private. Then Police Chief Jerry Wilson clearly enunciated that policy in 1973, and it has been continually reiterated, most recently last year by the current City Administrator.

The District’s sodomy law represents an archaic view that has long ago been abandoned by enlightened law enforcement officials and legislators across the country. The overwhelming majority of states outside the old confederacy have repealed their laws criminalizing particular sexual acts between consenting adults. In a few states, no such repeal was necessary because the states’ highest courts had invalidated such laws. For your information I am enclosing a list of states that have repealed or otherwise overturned such laws.

Furthermore, it should be noted that Congress recently enacted the Sexual Abuse Act of 1986 to define what sexual acts are prohibited in federal prisons and other places where the Federal Government exercises exclusive jurisdiction. See 18 U.S.C 2241 et seq. This act of Congress is quite similar to the Sexual Assault Reform Act which Mayor Kelly helped to draft: it is gender neutral; it does not mention sodomy; and it does not prohibit sexual acts between consenting adults.

Turning to the provisions of Bill 10-30, the bill provides that the criminal prohibition set forth in D.C. Code sec. 22-3502 would not apply to any of the prohibited acts if they are engaged in "by consenting persons 16 years of age or older." This age of consent is consistent with other provisions in the D.C. Code

which provide that only individuals over the age of 16 may give an informed consent to participate in sexual activity, including D.C. Code sec. 22-2801 (which provides that any adult who has sex with a female under the age of 16 is guilty of rape) and D.C.

Code sec. 30-103 (which provides that people over the age of 16 may get married without parental approval). The bill is also consistent with Federal law, which provides an age of consent of 16 for the gender-neutral offense of sexual abuse of a minor. See 18 U.S.C 2243.

If Bill 10-30 is enacted, participation in any of the prohibited sexual activities for money or in public would remain illegal under District law. The District’s prostitution law is gender-neutral and covers all sex acts offered in exchange for money. See D.C. Code sec. 22-2701. The District’s laws against public indecency are also gender-neutral. See D.C. Code sec. 22-1112.

Absent a general revision of the District’s sexual assault laws, Bill 10-30 correctly avoids simple repeal of D.C. Code sec. 22-3502. The District’s law on forcible and statutory rape, D.C. Code sec. 22-2801, protects only female victims. Bill 10-30 would continue to protect both male and female victims of sex crimes by continuing in effect the criminal prohibition against sodomy, if one of the parties does not consent to participate or if one of the parties is under 16.

Even though the District’s sodomy law is widely recognized to be an anachronism and is not currently being enforced against consenting adults, the Council should enact bill 10-30 to ensure certainty and non-discriminatory treatment of all residents of the District.

First, the law’s non-enforcement rests solely on administrative pronouncements that could be changed at any time by different personnel in the District government and that do not bind the numerous Federal law enforcement agencies which have varying degrees of jurisdiction to make arrests for violations of District law.

Second, even when no arrests are made, the sodomy law continues to provide a legal basis for discrimination against gay men and lesbians whom it defines as felons.

In short, Bill 10-30 would protect the privacy of District residents by decriminalizing sexual activities in which the government has no interest — that is, noncommercial sexual activities conducted in private by those old enough to consent to such participation. Current prohibitions against public, non-consensual, and commercial sexual activity, and sexual activity with persons under the age of 16, would remain in effect. The Executive Branch urges the Committee to approve Bill 10-30.

Sincerely,

Jeffrey D. Robinson

Principal Deputy
Corporation Counsel

Enclosure


 States in Which Private, Consensual Acts of Sodomy Are Not a Crime

In states marked by an asterisk, the statute prohibiting private, consensual acts of sodomy was struck down by a court decision.[1] In all other listed states, this result was achieved by legislative action.

1. Alaska 14. New Jersey
2. California 15. New Mexico
3. Colorado 16. New York *
4. Connecticut 17. North Dakota
5. Delaware 18. Ohio
6. Hawaii 19. Oregon
7. Illinois 20. Pennsylvania *
8. Indiana 21. South Dakota
9. Iowa 22. Vermont
10. Kentucky * 23. Washington
11. Maine 24. West Virginia
12. Nebraska 25. Wisconsin
13. New Hampshire 26. Wyoming

[1] In addition, statutes have been struck down by intermediate appellate courts in Michigan and Texas; cases are pending in the Supreme Courts of those two states.


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