Last edited: February 14, 2005

National Lesbian and Gay Law Association Testimony for Sodomy Law Reform


Bill 10-30, The District of Columbia Criminal Code Right to Privacy Amendment Act of 1993

by the
National Lesbian and Gay Law Association

before the
Committee on the Judiciary
of the
Council of The District of Columbia

January 29, 1993

The National Lesbian and Gay Law Association (NLGLA) is pleased for this opportunity to testify on D.C. Bill 10-30, the District of Columbia Criminal Code Right to Privacy Amendment Act of 1993.

Founded in 1988, NLGLA is the national association of lesbians and gay men in the legal profession. Among its members are lawyers, judges, law students and legal professionals, as well as local lesbian and gay bar associations and other legal organizations. NLGLA is an affiliated organization of the American Bar Association with a voting seat in its House of Delegates. NLGLA and our local affiliates have been active in civil rights and sodomy repeal efforts in several jurisdictions. One of our national co-chairs is a long-time District voter, and we are pleased that our members have been active on various legislation before this Council.

The existing District criminal code, section 22-3502, makes it a felony, punishable by $1,000 fine and 10 years imprisonment, for a person to engage in either gay or heterosexual sodomy, whether oral or anal.

Although repealed earlier by the District Council, this section remains in the code only because of the one-house congressional veto of District legislation.

The bill under current consideration would leave the existing criminal code intact while adding one sentence, "No act engaged in only by consenting persons 16 years of age or older shall constitute an offense under this section."

This statement focuses on three topics.

Sodomy Laws Invade the Privacy Rights of All Americans and the Modern Trend Is Toward the Repeal and Renunciation of Such Laws.

The conduct made a felony and punishable by 10 years imprisonment under the District's sodomy law is an important aspect of private sexual expression for the general heterosexual population as well as for lesbians and gay men. A 1983 study of 12,000 people nationwide found that 90% of the married and unmarried heterosexual couples studied had engaged in oral sex. P. Blumstein & P. Schwartz, American Couples 236 (1983). This finding is fully supported by various other studies including C. Tavris & S. Sadd, The Redbook Report on Female Sexuality (1977) and M. Hunt, Sexual Behavior in the Seventies 198-99 (1974). A major Consumer's Union study reported that, after reaching the age of 50, roughly half of men and women engaged in oral sex. E. Brecher, Love, Sex, and Aaina: A Consumer's Union Report 358-59 (1984).

All of this private conduct occurs routinely with no harm to others, and, for that reason, numerous legal and other authorities conclude that it should be left up to private decision-making free from governmental interference.

In 1955, the American Law Institute published its draft Model Penal Code, recommending that all private adult consensual relationships be legalized. The Institute carefully notes that since "there is the fundamental question of the protection to which every individual is entitled against state interference in his personal affairs when he is not hurting others," the Model Penal Code "does not attempt to use the power of the state to enforce purely moral or religious standards." ALI Model Penal Code, Tentative Draft No.4277-78, 207 (1955).

Only 28 % of Americans live in the 15 states which have as restrictive a sodomy statute as the District of Columbia does. Fifty seven per cent of Americans live in the 27 states which have eliminated their sodomy laws since 1961 by either legislative or judicial action. Another 7% live in Texas, where the trial court and the appeals court have struck down the Texas sodomy statute—with the Texas Supreme Court set to rule this year. We are confident that this Committee is prepared to lead the way in removing the sodomy statute's shackles from private consensual behavior so that we in the District can join the large majority of Americans who are free from this intrusion into their private relationships.

The trend in American jurisdictions has been mirrored abroad where nearly all major Western and industrialized nations have eliminated their sodomy laws. England and Wales did so twenty-five years ago; Scotland in 1980. Northern Ireland's sodomy law was repealed after it was found in violation of the European Convention on Human Rights and Fundamental Freedoms, Dudgeon v. U.K., Eur. Comm'n H.R. 1, 35-36 (1980) and 45 Eur. Ct. H.R. (Ser. A) 24 (1983), and a similar ruling has issued on the Republic of Ireland's statute, Norris v. Ireland, 6/1987/129/180 (Oct. 26, 1988). Canada, Germany, France, Italy, Japan, Norway, Sweden, Denmark, and the Netherlands have all repealed their sodomy statutes. In fact, of the relevant jurisdictions, such laws have been retained only in South Africa, the Isle of Man, the Channel Islands and Gibraltar. Thus the historical tradition of proscriptions against sodomy has clearly given way to the social outlook that regards sodomy laws as an affront to human dignity. The District's sodomy statute, certainly as applied to noncommercial, private consensual behavior between persons above the existing age of consent, has become an anachronism--one which the Council wisely struck from the books struck but for the outside interference of Congress would already have been removed from the books.


Precisely because the sodomy law criminalizes conduct which is so widely practiced by both heterosexual and gay people—and just as many people violate the law—it sets the stage for selective enforcement against disfavored minorities and individuals. Obviously, the police do not—indeed, could not—even attempt to ferret out and arrest every person who commits this felony; but the law remains in force as a possible tool of harassment against otherwise completely law-abiding citizens. Moreover, many District residents would be simply astounded to learn that the intimate consensual behavior they routinely practice could place them in prison for a decade.

The sodomy statute is similar to the vagrancy and loitering laws struck down in the civil rights era because they were vague and the source of potentially discriminatory enforcement against African-Americans, Latinos, Asian-Americans, civil rights activists, and others out of favor with those in power. In Papachristou v. Citv of Jacksonville, 405 U.S. 156 (1972), for example, the United States Supreme Court struck down a vagrancy/loitering statute because, among other reasons, it permitted and encouraged arbitrary and erratic arrests and convictions, granted too much discretion to police officers, and criminalized activities which by modern standards are normally considered fully harmless.

The reform bill will reduce the opportunity for discrimination on the basis of sexual orientation (and other prohibited grounds) and thus serves to enforce the District's Human Rights Act (D.C. Code sec. 1-2501, et seq.). We urge that the reform bill include an express acknowledgment of this as one of its purposes.

The District's sodomy law, even when not enforced, encourages collateral discrimination against lesbians and gay men and potentially against other disfavored minorities as well.

Sodomy laws are used to justify the denial of associational rights to lesbians and gay men. Though usually enjoined by the courts as violating the First Amendment, this form of discrimination is deeply wounding and imposes profound human costs.

Sodomy laws have also been used to justify the denial of professional licenses to lesbians and gay men. For example, the commission of an offense exhibiting "moral turpitude" is a basis for denial of admission to the Bar in most states, and while the District's Human Rights Act prohibits discrimination on the grounds of sexual orientation in the granting of licenses, decriminalization of private consensual sodomy removes a possible ambiguity from the District's licensure structure.

As reported as recently as two days ago in the Washington Post, sodomy laws have been used to justify discrimination against lesbians and gay men in hiring for police force positions. And although a spokesperson for the Metropolitan Police Force stated that it does not ask applicants if they are gay, the existence of a sodomy law clearly is a background problem. "Area Police Agencies Differ Widely on Hiring Homosexuals," Washington Post B1, col. 2-6 and B6, col. 3-6 (Jan. 27, 1993).

In fact, the Post article itself reflects the discriminatory application of sodomy laws to lesbians and gay men and the collateral effect on their police careers. Both Virginia and the District have sodomy laws which apply, theoretically, with equal force to heterosexuals. Yet it apparently did not occur to any of the police officials interviewed to discuss the effect of such criminal conduct on the police careers of heterosexuals.

Because sodomy laws have been used in this and in other kinds of collateral discrimination, passage of the sodomy reform bill will further reduce discrimination prohibited under the Human Rights Act. This provides additional reason for the Committee to include in the bill a specific acknowledgment that this reduction in discrimination is one of the reasons for the bill.


Widespread support for the equal rights of lesbians and gay men exists today among Judeo-Christian religious bodies. Many major religious groups in America are today embracing their gay and lesbian members and expressing their support for the equal civil rights of lesbians and gay men. Many denominations have concluded that the condemnation which was prevalent earlier in the twentieth century has become outmoded.

Whatever the stance of prior interpretations of the Bible and other religious thought, there is an increasing acceptance of sexually active lesbians and gay men as not inherently immoral individuals and as equal participants in religious endeavors. The Protestant Episcopal Church in the U.S.A., the American Friends Service Committee, the American Jewish Congress, the American Lutheran Church, the United Church of Christ, the Unitarian Universalist Association, the Union of American Hebrew Congregations, the Presbyterian Church in the U.S.A., and the General Board of Church and Society of the United Methodist Church, among others, have all adopted statements supporting equal civil rights for homosexual persons.

Most major religious denominations, whether they believe that homosexual sexual expression is moral or immoral, strongly oppose criminal punishment for such conduct. As one commentator noted, even the general issue of civil rights "initially involved the decriminalization of homosexual practice between two consenting adults and ending police harassment . . . "J. Melton, The Churches Speak on Homosexuality xxvi (1990).

The Presbyterian Church in the U.S.A., the General Board of Church and Society of the United Methodist Church, the American Jewish Committee, the American Friends Service Committee, the Unitarian Universalist Association, the Office of Church in Society of the United Church of Christ, The Union of American Hebrew Congregations, and other religious organizations believed so deeply that criminalizing such conduct is morally wrong that they filed amicus briefs in the case wherein the Kentucky Supreme Court ruled that Kentucky's law, criminalizing only homosexual acts, violated the Kentucky constitution's guarantees of privacy and equal protection. Commonwealth of Kentuckv v. Wasson (90-SC- SS8--TG) (1992). The Lutheran Church in America, the Reformed Church in America, and the American Jewish Congress, among others, have also called for decriminalization of private consensual homosexual activity.

Within the Roman Catholic Church, the National Federation of Priests' Councils has declared "its opposition to all civil laws which make consensual homosexual acts between adults a crime and thus urges their repeal." House of Delegates of the National Federation of Priests' Councils, Resolution on Civil Rights of Homosexual Persons (1974).

In the context of deploring "so called 'sodomy laws’" that are "often enforced only upon the homosexual community," the Disciples of Christ have urged the enactment of "legislation on local, state and national levels which will end the denial of civil rights and the violation of civil liberties for reasons of sexual orientation or preference." The Disciples of Christ resolution specifically recognizes that "[t]he church, among other elements of society, has contributed to the persecution and suffering of homosexuals, and it is its culpability in this regard which provides one reason for seeking a more enlightened understanding." General Assembly of the Christian Church (Disciples of Christ), Resolution Concerning Civil Liberties of Homosexual Persons (1977).

Contrary views are still held by some religious organizations and will no doubt be expressed in this hearing, but it is important to realize that these topics are matters of profound dispute within the religious community, with the number of groups opposing equal rights for homosexual persons and favoring sodomy laws steadily shrinking. Simply put, the government has no business—and in fact, in our view, is constitutionally barred—from weighing in on one side of that dispute with the coercive power of the criminal law. Government should leave the issue of the morality of private conduct to those individuals involved.

Finally, quite apart from their statements on homosexual persons, numerous religious groups have emphasized that private sexual activities, heterosexual or homosexual without distinction, must be left free from the intrusion of government.

The National Lesbian and Gay Law Association urges the speedy adoption of the sodomy reform bill, modified to acknowledge expressly that one of its purposes is to reduce discrimination prohibited under the Human Rights Act.

Affiliated with the American Bar Association
Member of the International Lesbian and Gay Association

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