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Last edited: February 14, 2005
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Sodomy Law Repeal Memorandum
MEMORANDUM
TO: Mr. Thomas Bastow
Office of the Corporation Counsel
The District Building
1350 Pennsylvania Avenue, N. W.
Washington, D. C. 20004
FROM: Franklin E. Kameny
5020 Cathedral Avenue, N. W.
Washington, D. C. 20016
SUBJECT: Sodomy Law Repeal
DATE: September 7, 1990
I. INTRODUCTION
In this Memorandum, I've tried to touch upon all of the concerns which I could
identify, even some rather remote ones, which must (or might) be considered in deciding on
the text of a de facto anti-Sodomy-law repeal bill to be introduced by Jim
Nathanson, as soon as the City Council reconvenes in January, 1991. I've tried to err on
the side of over-inclusively and over-completeness (including a few digressions just for
the sake of information, education, and amusement), and to touch upon everything relevant,
in order that we can come to the best decision on this matter. Finally, I've concluded
with several specific proposals for language to be adopted, some very similar, but others
somewhat different, with some indication of my own preferences among them. As you will
notice, the suggestions and proposals below, gradually evolve, as did my own thinking.
Initially, I was quite well satisfied with the language and specifics embodied in the very
first proposal (Page 4). That gradually changed, I now consider than one somewhat
cumbersome and I am now most comfortable with the very last proposal (top of Page 6) and specifically
recommend that one.
It is my understanding that what we are aiming for, here, is a "minimalist"
approach, very narrowly directed, which will rid us of the existing criminalization of consensual,
adult Sodomy, engaged in by human beings, (amendment of §22-3502 of the D. C.
Code) with as little tinkering with the remainder of the existing D. C. criminal code as
we can get by with while accomplishing our goal. In this Introduction, for the sake of
completeness, I have tried to address all possible relevant concerns, even some which are
trivial, if only to dismiss them, and at least one which is more substantive, only,
finally, to dismiss that also.
Past approaches to Sodomy law repeal have included that repeal within much more
grandiose and ambitious proposals for generalized sexual-offense-law reform for very good
reason: The remainder of our laws on these subjects are so archaic, and so bound up in
ancient, common-law approaches and definitions of offenses, often highly gender-role
dependent, and restricted as to the sexual acts which they cover, that in actual practice,
in order to provide bases for prosecution of all offenses occurring in real life, they are
intertwined with each other, and do not stand up as fully sufficient in their own right,
but require invocation of the Sodomy law for complete definition of the offenses, as those
offenses are defined and conceived of (and committed and prosecuted) nowadays. A simple
repeal of the Sodomy law alone would have left us without prosecutorial recourse in the
face of a variety of other sexual offenses. There are two places where this is (or has
been considered to be) of particular concern: Rape and Prostitution.
(1) Our Rape law (22-2801) is applicable only in instances of a female victim of
non-consensual, penile-vaginal insertion by a male. It does not cover same-sex assaults,
and it does not cover sodomitic assaults, whether Homosexual or heterosexual. The Sodomy
law is routinely invoked for prosecution of those kinds of sexual assaults, which would
otherwise be prosecutable only as a simple assault. Therefore any amendments which we may
make must leave as criminalized non-consensual acts of Sodomy, or, in the converse,
decriminalize only consensual acts of Sodomy.
(2) Prostitution (22-2701 and 2701.1) has been traditionally defined in terms of a
female prostitute and a male customer, exchanging money for penile-vaginal sexual
intercourse (See the wording of titles and statutes comprising the entire Chapter 27
of Title -22, including the Table of Contents for that Chapter). Unlike the Rape
law, which has been unchanged since its enactment long ago, after several decades of
stasis the Prostitution law underwent significant change in the course of the 1980's, with
several City Council amendments and additions, which have significantly altered the legal
landscape. As a reading of the case-law annotations in the latest edition of the D. C.
Code shows, the courts have not completely and consistently caught up with the changes,
and there is a significant amount of inconsistency and direct contradiction in the
opinions quoted. The net effect, however, would seem (a) to make unnecessary continuation
of the Sodomy law as a prosecutorial adjunct to the Prostitution law and (b) possibly to
soften and narrow the breadth and scope of application of the non-prostitutional clause
("solicitation for any other immoral or lewd purpose") which was used in the
past to "get" Gays (along with the somewhat similar clause in 22-11l2(a)).
While, personally, I believe that Prostitution should also be completely decriminalized,
this is not the time to get into that particularly thorny and contentious thicket. It must
particularly be noted, that under D. C. law, Prostitution, per se, is not illegal;
only solicitation for Prostitution is. {Vide: The title of 22-2701: Inviting
for purposes of prostitution prohibited; there is no complementary: Prostitution
prohibited). Thus, as an aside from the issues at hand: If Prostitute and customer can
manage to make their arrangements without an actual solicitation of either one by the
other, then whatever they do, including the payment therefor, is not a violation of any
Prostitution-related law. I feel that it would be inadvisable were we inadvertently to
make a crime of Prostitution- related Sodomy, per se, rather than, as now, merely
of Prostitution-related solicitation for Sodomy.
In particular, as indicated above, 22-2701 includes the phrase: [inviting for]
"any other immoral or lewd purpose", which had been uniformly and firmly
interpreted by the courts to criminalize both prostitutional and non-prostitutional
invitations for Homosexual Sodomy, and was long used by the Police, as the basis of
choice for arresting Gays, by solicitating solicitations and then arresting the person so
entrapped. A similar provision, to the same effect, and operating in tandem with the one
discussed here, is found in §22-lll2(a), where it was added in 1953 at the height
of the McCarthyite homophobia. Eventually, we will have to get rid of both, since they do
represent "ticking time bombs". But elimination of the Sodomy law might provide
the basis for defusing those time bombs (see below). In any case, more recent case law at
least suggests the possibility of a retreat from application of this clause to
non-prostitutional solicitations.
Thus such amendments as we may propose, in the intended absence of a re-writing of
other D. C. sex-offense statutes, will have to be tailored to those concerns. This means
that we will have to devise means for leaving the current law in place as it applies to
non-consensual acts of Sodomy, and as to commercial or commercially-motivated acts
(keeping additionally in mind, again, that because our present anti-Prostitution laws do
NOT criminalize Prostitution, per se, but only solicitations for
Prostitution, and therefore we must leave in place criminalization of prostitutional solicitations
for Sodomy while allowing for non-criminalization of non-prostitutional
solicitations for now-to-be-decriminalized Sodomy).
However: Life is never simple. There is one additional complication, which needs
to be addressed here: Bestiality. Our Sodomy law also criminalizes
Bestiality, formulated with language which leaves it intertwined, virtually inextricably,
with human Sodomy. While my own approach to Bestiality has always been that if the animal
doesn't mind (and it usually doesn't), then I don't mind and I don't see why anyone else
should, as you are well aware, some people get very upset at the very notion of
Bestiality, and become even more irate and livid (if that be possible) at the thought of
permitting Bestiality, than they do at the thought of permitting Sodomy.
As I was the first to point out to many lawyers, starting some 25 years ago, the
anti-Bestiality provisions of our law are unusual, in that, as a careful reading of 22-3502
shows, they prohibit only sodomitic Bestiality (engaged in by only a tiny minority of
Bestialists), and not "conventional" Bestiality. It has always been my
interpretation of this law that those writing it in 1948 were so overcome with horror at
the very notion of these unmentionable acts that they were unable to apply rational,
analytical thought to what they were doing, and came out with this strangely limited
product. This has been a source of much amusement to many.
In any case, as a political matter, we must be sure that we do not end up
inadvertently legalizing consensual adult Bestiality and that our decriminalization of
Sodomy be limited to acts involving human beings only.
We are left, additionally, with the ancillary issue of Fornication. Fornication
is defined as necessarily-heterosexual, penile-vaginal intercourse between two people
married neither to each other nor to anyone else. It is criminalized as a misdemeanor,
under the D. C. Code (22-1002). There is, perhaps, a certain element of fairness
and equity, which might say that if we're decriminalizing Sodomy, we should also
decriminalize Fornication, which (unlike Sodomy) could be accomplished by a simple repeal
of the existing statute, without the kind of complications addressed above. However, we
are then moving back into a general, higher-profile law-reform endeavor, which is what we
are trying to avoid. I would suggest that the anti-Fornication law be left alone at this
time, for attention some other day. A possible rationale for making a distinction, if
rationale be needed, could be that Fornication results in pregnancies, whereas Sodomy (per
se) has no consequences, and Fornication is only a misdemeanor while Sodomy is a
felony.
Just for completeness, yet another issue usually packaged up in sexual-offense law
reform efforts is the criminalization of Adultery (22-301), a misdemeanor. While
this has largely fallen into desuetude in D.C., as in most other jurisdictions still
retaining such laws, it is showing some signs of a revival in some places (a recent
prosecution in Wisconsin and four in Connecticut, after many years with none at all
anywhere in the country.). I would suggest that in our instant endeavor, we leave this
untouched as well.
I have intentionally omitted from all consideration, questions of public vs. private
acts. There is a separate sub-body of D. C. criminal law (e.g. 22-1112, but
probably not that only) dealing with public indecency, quite independently of any of the
concerns being addressed herein. That would be unaffected by any of the approaches taken
here, and would in no way that I can see, impact upon, or be impacted upon by, the
proposals contained herein.
Finally, as a reading of 22-3502 shows, it effectively creates an "age of
consent" of 16 years. This is consistent with all other D. C. sexual-offense
statutes, which uniformly make an age distinction at that point (e.g. 22-1112(b)
and 22-3501, inter alia). Modern law on sexual offenses makes special
provision for sexual activity by near-peers of ages significantly lower than the general,
across-the-board age of consent, as did the original version of the 1981 Sexual Assault
Reform Act, and as do the laws of a significant number of states. While this would
seem to be sensible and desirable from both a theoretical and a practical point of view in
these days of universally sexually-active, ever-younger teen-agers and pre-teens, I would
suggest that, for our instant endeavor, we leave that matter untouched also, and the
intent of the law unaltered.
Thus, in summary, what we are trying to do is to de-criminalize consensual, non- prostitution-related
acts of Sodomy, involving only human non-juveniles, without more, and with
the minimum possible alteration of the language of existing law.
II. PROPOSALS
For convenience in understanding what follows, I have attached, hereto, a copy of the
full texts of the current D. C. Sodomy law (22-3502), and of
the Inviting for Prostitution law (22-2701 and 22-2701.1) without the published commentary and annotations.
A. Approach 1
The matter of non-consensuality is easily addressed, by (1) inserting the word nonconsenting
in three places in the first sentence of 22-3502, (2) deleting the word other
in each instance, and (3) reversing the order of appearance of the words animal and
person, so that the result "scans" correctly and unambiguously. That
first sentence, (with the insertions underlined and the deletions (in parentheses))
would then read:
Every person who shall be convicted of taking into his or her mouth or anus the
sexual organ of any animal or (other) nonconsenting person, or who shall be
convicted of placing his or her sexual organ in the mouth or anus of any animal or (other)
nonconsenting person, or who shall be convicted of having carnal copulation in an
opening of the body except sexual parts with a(nother) non-consenting person, shall
be fined not more than $1000 or be imprisoned for a period not exceeding 10 years.
That necessitates a compensating amendment to the second sentence, to make it
read either:
Consent notwithstanding , any person convicted under this section of committing
such act with a person under the age of 16 years shall be fined not more than $1000 or be
imprisoned for a period not exceeding 20 years.
or:
Any person convicted under this section of committing such act with a consenting
or nonconsenting person under the age of 16 years shall be fined not more than $1000
or be imprisoned for a period not exceeding 20 years.
or:
Any person convicted under this section of committing such act with a person under
the age of 16 years, consent notwithstanding, shall be fined not more than $1000 or
be imprisoned for a period not exceeding 20 years.
The 1981 enactment of 22-2701.1 would seem to make it unnecessary for us to
address questions of Prostitution; they are now adequately taken care of, whatever we do
with Sodomy, per se. In fact, we explicitly should not address Prostitution
in any amendment to 22-3502, because there is no way that I have thus far been able
to devise, to insert language into 22-3502, addressing non-commercial solicitation
for Sodomy, in a manner similar to that done just above with respect to consensuality.
Anything of that nature done in this statute will simply decriminalize something
(prostitutional Sodomy itself) which is not now criminalized at all, as distinguished from
mere solicitations for prostitutional and/or non-prostitutiona1 Sodomy (which are
criminalized in 22-2701), thereby accomplishing nothing and possibly creating a new
crime.
Therefore, for our purposes, we should not deal in any way with Prostitution-related
concerns.
B. Approach 2
As an alternative to the above, to the same end, we could add an additional subsection
to 22-3502, (to be designated either (b) or (c), with re-designation of the current
(b) as (c), if appropriate); or an additional sentence inserted into the
midst of the main body of Subsection (a), to read:
This section shall not be construed to apply to persons above the age of 15,
consensually committing such acts with other such consenting persons.
or, in the passive voice:
This section shall not apply to such acts committed by and with consenting persons
above the age of 15.
Stylistically, I prefer the second to the first, but the first is more consistent with
the style of the existing language, which phrases itself in terms of "persons
committing acts" and not of "acts committed by persons". Legalistically, I
see no difference, but perhaps you do.
Here, too, with some reluctance and hesitation, I would tend to leave unaddressed for
the present the Prostitutional questions raised by the "immoral or lewd purpose"
clause, and come back to them some other day. While that still leaves us vulnerable to a
hostile Police Department, for non-prostitutional solicitations for Sodomy (although with
the decriminalization of such Sodomy, a First Amendment attack on the solicitation clause
might then prevail; the Virginia state supreme court has stated just that), I see no
negative impact on valid law enforcement concerns thereby.
III. CONCLUSION
Having explored the matter and ancillary concerns (with possible over-attention to the
prostitutional aspects, which are really not all that important), and set out possible
alternatives, I would suggest that, everything considered, the Nathanson Bill consist of
an amendment to Section 22-3502, by the addition of a single sentence (i.e. Approach
2). That sentence can either be inserted in mid-text, between the existing
second and third sentences (i.e. immediately preceding "And in any indictment for the
commission ---"), or as a new Subsection (c). In two proposed
alternative versions (representing still further changes from the language proposed just
above), that sentence would read:
This section shall not apply to any of the acts herein described, when the
commission of those acts involves only consenting persons above the age of 15.
or (preferred and final recommendation):
No act engaged in only by consenting persons above the age of 15 shall constitute an
offense under this section.
As indicated, I distinctly prefer the second of these, and tend to prefer making it a
new Subsection (c) rather than inserting it in mid-text, but you will want
to consider all possibilities.
This would seem to address all necessary concerns:
only and persons takes care of bestiality
consenting takes care of rape
above age 15 takes care of juveniles
under this section leaves unaltered all other criminal and prosecutorial
concerns found elsewhere in the Code, including prostitution, public acts,
and whatever else.
With the few unresolved minor "loose ends" considered above, that new
language added to §22-3502 should do the job, and constitute the substance of the
Nathanson Bill in its entirety. Once enacted and gone into effect, it will have the full
force and effect of a narrowly-construed repeal of the D. C. anti-Sodomy law, for all
instances in which we consider that it should be repealed, without impairment of any valid
law enforcement or prosecutorial interests that I can perceive, or entanglement with other
issues.
As a final thought, I would suggest that if it is possible to stretch definitions and
procedures sufficiently, this be considered a "technical amendment" and be
buried in one of the occasional omnibus technical amendment bills which are routinely
passed by the Council, which make small changes to a large number of existing laws, and
are enacted as a package. That, of course, would make a Congressional overturn much more
difficult, since the whole package would have to be rejected. It's worth thinking about.
###
§ 22-3502. Sodomy.
(a) Every person who shall be convicted of taking into his or her mouth or anus the
sexual organ of any other person or animal, or who shall be convicted of placing his or
her sexual organ in the mouth or anus of any other person or animal, or who shall be
convicted of having carnal copulation in an opening of the body except sexual parts with
another person, shall be fined not more than $1,000 or be imprisoned for a period not
exceeding 10 years. Any person convicted under this section of committing such act with a
person under the age of 16 years shall be fined not more than $1,000 or be imprisoned for
a period not exceeding 20 years. And in any indictment for the commission of any of the
acts, hereby declared to be offenses, it shall not be necessary to set forth the
particular unnatural or perverted sexual practice with the commission of which the
defendant may be charged, nor to set forth the particular manner in which said unnatural
or perverted sexual practice was committed, but it shall be sufficient if the indictment
set forth that the defendant committed a certain unnatural and perverted sexual practice
with a person or animal, as the case may be: Provided, that the accused, on motion, shall
be entitled to be furnished with a bill of particulars, setting forth the particular acts
which constitute the offense charged.
(b) Any penetration, however slight, is sufficient to complete the crime specified in
this section. Proof of emission shall not be necessary. (June 9, 1948, 62 Stat. 347, ch.
428, title I, § 104; 1973 Ed., § 22-3502.)
§ 22-2701. Inviting for purposes of prostitution prohibited.
(a) It shall not be lawful for any person to invite, entice, persuade, or ad- dress for
the purpose of inviting, enticing, or persuading, any person or per- sons in the District
of Columbia for the purpose of prostitution or any other immoral or lewd purpose. The
penalties for any violation of this section shall be a fine of $300 for the first offense,
a fine of $300 and 10 days imprisonment for the second offense, and a fine of $300 and 90
days imprisonment for each subsequent offense. Any person convicted of a violation of this
section may be sentenced to community service as an alternative to, but not in addition
to, any term of imprisonment authorized by this section.
(b) Inviting, enticing, persuading, or addressing for the purpose of inviting,
enticing, or persuading, for the purpose of prostitution includes, but is not limited to,
remaining or wandering about a public place and:
(1) Repeatedly beckoning to, stopping, attempting to stop, or attempting to engage
passers-by in conversation for the purpose of prostitution;
(2) Stopping or attempting to stop motor vehicles for the purpose of prostitution; or
(3) Repeatedly interfering with the free passage of other persons for the purpose of
prostitution. (Aug. 15, 1935, 49 Stat. 651, ch. 546, § 1; June 9, 1948, 62 Stat. 346, ch.
428, title I, § 102; June 29, 1953, 67 Stat. 93, ch. 159, § 202(b); 1973 Ed., §
22-2701; Dec. 10, 1981, D.C. Law 4-57, § 3, 28 DCR 4652; Nov. 21, 1985, D.C. Law 6-62, §
2, 32 DCR 4581; Dec. 1, 1987, D.C. Law 7-44, § 2, 34 DCR 5310.)
§ 22-2701.1. Definitions.
For the purposes of this act, the term: (1) "Prostitution" means the
engaging, agreeing to engage, or offering to engage in sexual acts or contacts with
another person in return for a fee.
(2) "Public place" means any street, sidewalk, bridge, alley t plaza, park,
driveway, parking lot, transportation facility, or the doorways and entrance ways to any
building which fronts on any of these locations, or a motor vehicle in or on any such
place. (Dec. 10, 1981, D.C. Law 4-57, § 2(1), (2), 28 DCR 4652.)
Background information on this memorandum by Frank Kameny
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