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overwhelming majority of states outside the old confederacy have repealed their laws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For your information I am enclosing a list of states that have repealed or otherwise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
