Sodomy - Rep. William E. Dannemeyer
Congressional Record Page: E482 (Extension of Remarks -
March 1, 1990)
HON. WILLIAM E. DANNEMEYER
in the House of Representatives
THURSDAY, MARCH 1, 1990
Mr. DANNEMEYER. Mr. Speaker, ever since the Supreme Court decided the Hardwick case in
1986, questions have been raised about the crime known as sodomy. Indeed, particularly
within the District of Columbia, there seems to be quite a bit of confusion regarding the
crime and its enforcement—or lack thereof.
Although sodomy is a crime in 24 States as well as in the District of Columbia, the
District is unique in that Congress rejected a recent attempt by the DC City Council to
abolish the crime, see United States v. Langley, 112 WLR 801 (Sup. Ct.). For this
reason, and because Congress has both a particular interest and specific constitutional
responsibility with regard to crimes committed in the Nation’s Capital, it seems
appropriate to try to put some of the confusion to rest.
This memo, therefore, attempts to briefly address some of the most common questions and
misconceptions related to the crime of sodomy in the District of Columbia. 1
The issue is addressed generally, and the memo does not expressly or by implication
refer to any particular Member of Congress. As the attached article indicates, sodomy and
solicitation for sodomy remain serious problems in the District, and interfere with
education at the District’s major universities, including Georgetown and George
Washington. 2
Footnotes at end of article.
Is a law prohibiting sodomy in private between consenting adults constitutional, or
does it violate fundamental rights?
In a case with the ironic name of ‘Hardwick,’ the U.S. Supreme Court made it
clear in 1986 that there was no fundamental right for homosexuals to engage in sodomy,
even in private, and that it was not constitutional for States to make homosexual sodomy a
crime, 3 even when
committed in private and between consenting adults. See Bowers v. Hardwick, 106
Sup. Ct. 2841 (1986).
The Court based its decision on the fact that:
(1) sodomy had been a crime ever since the Nation began, and that it remained one in 24
States and the District of Columbia at the time of the decision;
(2) sodomy had been universally condemned throughout most of history; and
(3) a contrary holding with regard to sodomy would probably mean that other sexual acts
committed in private—that is, incest between consenting adults—would probably
also have to receive constitutional protection.
Not specifically mentioned, but certainly not far from the minds of the Justices, was
the argument that making homosexual sodomy a fundamental constitutional right would make
it very difficult if not impossible to adopt laws, regulations, and even enforcement
policies aimed at controlling the spread of AIDS through anal intercourse. 4
To justify actions closing down bath houses and other places where homosexuals
frequently practice anonymous sodomy, restricting male-male escort services which often
serve as a cover for prostitution, keeping homosexuals out of the Army and so forth would
have required a showing that there was a compelling governmental interest, and that the
Government had taken the narrowest, weakest possible action which could protect that
interest. 5 In practice,
this is a very difficult standard to meet.
Is it true that sodomy, like other so-called victimless crimes which occur in private,
are rarely if every prosecuted?
Sodomy, like other crimes which occur strictly in private and do not have immediate
identifiable victims, is usually not prosecuted in the absence of aggravating
circumstances. 6 However,
this is not always true, and such cases are frequently punished where one or more of a
large number of aggravating circumstances are present. This section compares sodomy with
other so-called victimless crimes.
(1) Prostitution: Mistresses who are kept by men, and compensated for providing sex are
usually not prosecuted—nor are the men—if the activity is done strictly in
private and in a discreet manner. This is true even if someone else—for example, the
man’s jealous wife—finds out and seeks prosecution.
Indeed, even escort and outcall services are not often prosecuted because the sexual
acts are kept secret. Notorious cases, in which the matter creates a public scandal like
the ‘Mayflower Madam’ case in New York City, are the exception which tends to
prove the rule.
(2) Illicit drug use: The use of illicit drugs in private between consenting adults is
rarely the basis for prosecution by itself. Where drug-related prosecutions occur they are
more likely to involve selling or attempts to sell, attempts to use or acquire the drugs
in a public place, or where drug possession is uncovered as a result of an investigation
into something more serious. However, vigorous prosecution efforts are frequently employed
where the perpetrator is a politician, sports celebrity, or other public figure.
(3) Gambling: Gambling which occurs in private is almost never prosecuted, even where
it is illegal. However, where aggravating circumstances are present—such as where it
occurs in public, involves cheating, result in fights, has connections to organized crime,
and so forth—it may be.
(4) Miscellaneous: Telling fortunes, even for money, incest when it occurs between two
mature consenting adults, charging excessive rates of interest for noncommercial loans,
and other so-called victimless crimes are also rarely prosecuted except where aggravating
circumstances are present.
What types of aggravating circumstances are likely to result in a prosecution for
sodomy or other victimless sex crimes?
It appears that while people are usually not charged with the crime of sodomy unless
there are aggravating circumstances, prosecutions are frequently brought where there are
aggravating circumstances. These aggravating circumstances for sodomy include:
(1) when it occurs during the course of robbery, rape, or some other crime involving
violence;
(2) when one of the parties claims that violence or the threat of violence was used,
even if the evidence is not strong enough to support a conviction;
(3) when minors are involved, as was apparently true in the Gobie case;
(4) when it occurs in public or in a public place, or where the solicitation is
occurring in a public place. From time to time one reads about situations where restrooms
known to be used for casual homosexual sodomy are put under surveillance, and those
engaged in the act are arrested;
(5) where it occurs as part of an act of prostitution, or in connection with other
crimes such as drug dealing;
(6) when charging the perpetrator may help persuade him to confess to other crimes, or
to otherwise assist the police by providing information, cooperating in a setup, and so
forth;
(7) where it involves a prominent person and/or becomes known to the public in such a
way that law enforcement authorities cannot ignore it. 7
Does the public’s knowledge of a crime constitute an aggravating circumstance
justifying prosecution?
Indeed, there appear to be many circumstances where an action which would not
ordinarily be prosecuted as a crime is treated in this way because of the need to make an
example and to avoid giving the public the wrong impression that persons escape
prosecution because of their station in life. The following are recent examples.
(1) It is not unusual for prosecutorial authorities to fail to prosecute for a variety
of reasons, but to be forced to change their minds by public pressure which results from
an exposure of the situation on television or in a newspaper article.
(2) Persons who violate the income tax law are generally dealt with in civil
proceedings, However, in the case of prominent people such as Mrs. Helmsley, or tax
protestors who publicly boast about their activities, prosecution may be seen as warranted
so as to deter others from engaging in similar acts. Otherwise, prominent people seem to
be getting away with it, and this harms public confidence in the fair enforcement of the
law.
(3) Situations in which an innocent person uses deadly force to defend against a threat
are usually not made the basis for prosecution. New York City subway shooter Bernhard
Goetz appears to have been an exception because of the massive publicity and public
outcry, even though persons involved in similar situations occurring at the same time were
never even charged.
(4) Mayor Barry is of course a prime example of this general principle. Certainly the
U.S. attorney would not have conducted a lengthy and very expensive investigation
resulting in an elaborate sting operation if he had received information that an ordinary
person
such as a businessman was using cocaine at parties, and in private with close friends
or business associates. However, when politicians, rock stars, and other prominent persons
are involved, prosecution is more likely because of the significant deterrent effect it
will have on nonprominent people, and to avoid any impression that ‘big shots’
can get away with it.
Is sodomy a crime which is rarely if ever prosecuted, both in the District of Columbia
and elsewhere?
Contrary to the view of many people who know little about the criminal justice system,
sodomy is prosecuted with some frequency in the District as well as elsewhere.
For example, at least half a dozen convictions for sodomy were reviewed by the D.C.
Court of Appeals, the District’s highest court, during the year 1989, and were the
subject of a written opinion. Most were affirmed, and where they were not it was on some
technical or evidentiary basis having nothing to do with the nature of the crime. This
number does not include those convictions for sodomy which were appealed and did not
result in a written opinion. It also appears that during the 1980’s, approximately 60
sodomy cases were decided by the same court.
It is also generally true that for every conviction of a crime which is reviewed by a
jurisdiction’s highest court, there are dozens if not hundreds of convictions which
are not appealed, and a much larger number of situations in which the crime was charged,
but the person was allowed to plead guilty to a lesser offense, or was found not guilty.
Thus it would appear that sodomy is still prosecuted with some frequency in the District.
To see what the pattern was in other States, the WESTLAW service was asked to determine
how many cases there were in other States decided during the year 1989 which had the word
sodomy’ in them. The answer was over 500. While not all of these cases involve
convictions of the crime, and may use the word only incidentally in connection with other
matters, it does suggest that there are a significant number of sodomy prosecutions in
other States also.
In addition, the NEXIS service was asked to see how many news and magazine stories in
its database written during 1989 mentioned the word ‘sodomy,’ and also used in
the same article any one or more of the following words: ‘convict,’
‘conviction,’ ‘charge,’ ‘charged,’ or ‘appeal.’
The answer was that far more than 500 did.
When the same search was narrowed to the period of the last 3 1/2 months—after
October 1989—the number was still over 200. While some of these stories may likewise
only mention sodomy in some other context, this research also indicates that the term is
alive and well in the news media as well as the courts, and that prosecutions in other
States with similar statutes occur frequently.
[Page: E484]
1 As it is most states
where it is illegal, sodomy is a very serious crime in the District of Columbia.
Prohibited by Sec. 22-3502, it is a felony punishable by 10 years in jail. It has also
been held in the District that consensual sodomy is a ‘crime of moral
turpitude,’ Valez-Lozano v.
Immigration & Naturalization Serv., 462, F.2d 1305 (D.C. Cir. 1972), thereby
providing the basis for deportation or disbarment of persons found guilty.
There are also several other criminal statutes which apply to sodomy: see, e.g.,
Inviting for purposes of prostitution, 22-2701; making lewd, obscene, or indecent sexual
proposals, Sec. 22-1112; maintaining premises for lewdness or prostitution, 22-2713; and
keeping a bawdy or disorderly house, 22-2722.
2 ‘Book Directs
Homosexuals to Local College ‘Cruising’ Spots,’ Brian Reilly; Washington
Times, February 23, 1990:
Officials at Georgetown and George Washington universities have been forced to consider
increasing security at campus buildings that became major homosexual ‘cruising’
spots after being listed in a national homosexual guidebook.
‘It is not conducive [to the functions] of the university to have people engaging
in homosexual activities in the bathrooms,’ Capt. RoccoGrande [of GWU] said.
‘Officers enter the men’s rooms and check for anything suspicious.’
Ms. Gatta said most of the ‘cruisy areas’ listed concern men’s
bathrooms, and said the homosexuals use restrooms in order to protect themselves.
‘You can’t be that blatant,’ she said. ‘You can’t just get
down and do it in the hallway.’
‘The problem needs to be handled on the societal level,’ said Marcel Prather,
president of GW’s Lesbian and Gay People’s Alliance. ‘When there is less
homophobia, there will be a decrease’ in such incidents.
However, Mr. Prather said that because of the burgeoning problem in the GW student
center, ‘I personally don’t feel comfortable using the bathrooms.’
Recent reports of homosexual activity and indecent exposure in Goergetown
University’s Lauinger Library included the drilling of holes in the partitions
separating stalls in the men’s rooms which, according to the university security
director, could be used for peep holes or for anonymous sex.
‘If there is a hole, it can be used for any purpose,’ said Georgetown
security director William Tucker . . .
‘They are seeking quick, anonymous, furtive sex,’ Whitman-Walker health
educator Joe Izzo said. ‘It’s been going on for centuries, and I don’t
believe it’s going to stop.’
3 The U.S. Supreme Court
specifically limited its decision to acts of sodomy between homosexuals. Most experts seem
to agree that it would unconstitutional to make heterosexual sodomy illegal, especially
between married people, since it falls within the zone of privacy which applies to acts
related to procreation and reproduction.
4 According to the most
recent report from the Center for Disease Control dated January 26, 1990, 115,786 cases of
AIDS in adults and adolescents have been reported. Of these 70,093 (60.5%) were reported
among homosexual or bisexual males, 24,212 (20.9) among intravenous drug abusers, and an
additional 8,117 (07%) among homosexual males who were also drug abusers. In contrast, the
total number of reported cases among both heterosexual men (2,308, 02%) and women (3,322,
2.9%) who are not drug abusers was less than 5% of the total. It is also relevant to note
that Washington D.C. had more reported cases than all but five cities: New York, Los
Angeles, San Francisco, Houston, and Newark, N.J.
5 Within the past several
days the U.S. Supreme Court rejected arguments that barring homosexuals from the armed
forces violated either the First Amendment of Equal Protection rights of homosexuals. In
doing so the Court held that the government need only show a rational basis, not a
compelling state interest. See Ben-Shaiom v. Marsh, 58 U.S.L.W. 2118 (1990).
6 In other words,
homosexuals who engage in acts of sodomy in strictest privacy with lovers with whom they
have a long-term commitment and a lasting and loving relationship probably have little
worry about prosecution, see, e.g., Hardwick. However, they engage in random acts of
sodomy with prostitutes, or with casual strangers in semi-public places, prosecution is
much more likely, and also much more justified. See note 2.
7 For example, several
months ago the National Law Journal reported on a male state senator who apparently let a
call girl perform oral sodomy on him at a party, and who was then charged and (to the best
of my memory) pleaded guilty to a lesser offense.
[FROM THE WASHINGTON TIMES, FEB. 23, 1990]
(BY BRIAN REILLY)
Officials at Georgetown and George Washington universities have been forced to consider
increasing security at campus buildings that became major homosexual ‘cruising’
spots after being listed in a national homosexual guidebook.
‘Bob Damron’s 1989 Address Book,’ a North American guidebook for
homosexuals, lists buildings at Georgetown, Catholic, Howard and George Washington
Universities and the University of Maryland as so-called ‘cruisy areas’ where
homosexual men can seek out semi-public illicit sex.
Capt. Anthony RoccoGrande of the GW security department said the university attempts to
thwart such activities by ‘barring suspicious individuals’ from campus buildings
who are not affiliated with the university in any way.
‘It is not conducive [to the functions] of the university to have people engaging
in homosexual activites in the bathrooms,’ Capt. RoccoGrande said. ‘Officers
enter the men’s rooms and check for anything suspicious.’
He said homosexual men seem to target the student center, or Marvin Center, and he is
concerned with what he called the predisposition of off-campus men to frequent the
building. ‘We don’t want this to become a mecca of the homosexual
community,’ he said.
Officials at GW and Georgetown have considered increasing ID checks at entrances to the
buildings, all of which are now open to the public. But both Marvin Center Operations
Director Donald Cotter and Georgetown Librarian Joseph Jeffs said such measures are often
too costly and burdensome.
Gina Gatta, a sales representative for the San Francisco-based Damron Co. that
publishes the address book, said they receive the information on the cruising areas from
readers. She said the book is a resource for homosexuals across the continent, and the
varying locations are listed and deleted depending on reader requests.
‘We don’t go looking for the spots. We keep them in the book until readers
say, ‘I don’t want it there’ because of problems with law enforcement or
outbreaks of violence.
Ms. Gatta said most of the ‘cruisy areas’ listed concern men’s
bathrooms, and said the homosexuals use restrooms in order to protect themselves.
‘You can’t be that blatant,’ said. ‘You can’t just get down
and do it in the hallway.’
The head of GW’s student homosexual rights group said he does not condone the
activities but sympathizes with the men who resort to such measures.
‘The problem needs to be handled on the societal level,’ said Marcel Prather,
president of GW’s Lesbian and Gay People’s Alliance. ‘When there is less
homophobia, there will be a decrease’ in such incidents.
However, Mr. Prather said that because of the burgeoning problem in the GW student
center, ‘I personally don’t feel comfortable using the bathrooms.’
Recent reports of homosexual activity and indecent exposure in Georgetown
University’s Lauinger Library included the drilling of holes in the partitions
separating stalls in the men’s rooms which, according the university security
director, could be used for peep holes or for anonymous sex.
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