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Sodomy Laws - History of Sodomy

The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2005

District of Columbia
 "He was charged with assault and convicted on proof of homosexuality."

The Post-Revolution Period, 1776-1873

What now is the District of Columbia, founded in 1790 from land donated by Maryland and Virginia, existed for more than a decade still under the jurisdiction of the donor states.

Congress enacted a law in 1801 1 that continued all criminal laws of Maryland and Virginia in the now formally structured District, with those of Maryland applying to that portion of the District ceded from Maryland, and those of Virginia applying to that portion ceded from Virginia. 2 This schizophrenic situation continued for almost a half-century.

As a result of this law, the Virginia half was controlled by the Virginia law of 1800 that provided for a penalty of 1-10 years in prison for free persons and death for slaves. 3 The Maryland half was controlled by the law of 1793 that also gave slaves death, but free persons up to seven years in prison with the possibility of working on public works. 4

Maryland adopted a law in 1809 5 that changed the penalty to 1-10 years for both free persons and slaves, so death was possible for slaves only in the Virginia half.

An act of Congress of 1831 6 established penalties for a number of crimes, but not for sodomy. It specified that "every other felony, misdemeanor, or offence not provided for by this act, may and shall be punished as heretofore[.]" 7 Thus, the two halves of the District would continue to have different provisions for slaves, but identical provisions for free persons.

This situation was ended in 1846 when Congress enacted a statute 8 that retroceded the Virginia land to Virginia on the ground that the District of Columbia never would use it. Therefore, the Maryland law had effect in all of the smaller District.

Congress enacted a law in 1855 9 that authorized a recodification of District laws with the command that the code

shall be constructed according to a simple method, and be expressed in language concise and plain, and, [so] far as possible, be made level to the understanding of a person of ordinary intelligence and education[.] 10

The proposed code was to be submitted to the District’s voters for approval or disapproval. 11 The code was completed in 1857. 12 A note said that the compilers felt that much of the existing law in the District was "inconsistent in many of its parts," "obsolete," and "disfigured by the prejudices of a past age." 13 Despite these concerns, the code included a specific sodomy law using the common-law definition and setting a penalty of 2-10 years in prison. 14 However, District voters didn’t care for the new code and, in the referendum, the code lost by a 73%-27% margin. 15

In 1871, Congress granted the District of Columbia home rule. 16 All existing laws were continued unless and until expressly repealed or altered by the new council. 17

Although the District did not enact a sodomy law, it did authorize a comprehensive revision of law for the District in 1871. 18

Period Summary: The District of Columbia was created out of land donated by Virginia and Maryland and the U.S. Congress, rather than giving it a code of laws of its own, merely extended extant laws of those two states to the portion of land in the District each had donated. For a half-century laws were different in the eastern and western halves of the District as a result. After Virginia’s land was retroceded in 1846, all of the District as we know it now remained under the laws of Maryland. An attempt to give the District its own code a few years before the Civil War was made, but voters rejected the proposed code out of pique over continued Congressional control over local affairs. That rejected code would have created a sodomy law with a 2-10 year penalty. After the Civil War, the Congress gave the District home rule, although extant laws remained in force unless and until the District government changed them. A revision of criminal law was undertaken, but it was never completed.

The Victorian Morality Period, 1873-1948

Due to political disagreements with the local government, Congress abolished the home-rule government and restored direct rule by Congress in 1874. 19 The proposed code revision by the District, then in process, never became law.

Despite abolition of the District government, a new code adopted by Congress just two days later 20 still made reference to the District government as it had been constituted in 1871. The new code made no reference either to sodomy or common-law crimes, but retained all local laws made under the home-rule years. 21 It supposedly also restored all laws in existence in Maryland as of the creation of a criminal code for the District of Columbia in 1801, 22 but, as one legal observer noted, the British and Maryland statutes "are not included in this collection or even alluded to." 23 In addition, the published code for the District 24 contained a section that any

felony, misdemeanor, or offense not provided for by this title, shall be punished as provided by laws in force in the District. 25

District of Columbia law, according to the new criminal code of 1874, did not cover sodomy.

Because of the apparent legality of sodomy after the 1874 code was adopted, other miscellaneous laws probably were enforced against such activity. Congress passed a law 26 in 1892 "for the preservation of the public peace and the protection of property within the District of Columbia." Labeled in the law as vagrants were "all public prostitutes, and all such persons who lead a notoriously lewd or lascivious course of life[.]" 27 All offenders had to post bond of up to $200 for good behavior for a period of six months. 28

A curious recompilation of District law published in 1894 29 included a reference to sodomy 30 with a footnote referring readers to the Maryland case of Davis v. State (q.v.), without any explanation as to how a Maryland case now would have applicability to the District. Maryland law had not been in force in the District for some time. Nor was there a citation to any new law of Congress made. This compilation was "the work of a private compiler of existing laws, and is not re-enacted by Congress as the existing law." 31

In 1897, the District of Columbia Court of Appeals decided the case of DeForest v. United States, 32 one of the finest pieces of judicial legislation ever seen in the United States. The defendant had been charged with maintaining a common bawdy house, but claimed that there was no statute proscribing such conduct unless it was "open, notorious and scandalous[.]" 33 The Court disagreed, noting that the crime was indictable at common law. 34 The Court insisted that the District of Columbia recognized common-law crimes and

even in the absence of express statutory enactment we should have to hold, in view of the circumstances, that the common law in its entirety, both in its civil and criminal branches, except in so far as it has been modified by statute or has been found repugnant to our conditions, is in force in the District of Columbia. [Emphasis added]. 35

The reason for this, the Court said, was that the common law was recognized when Maryland ceded its land to the District and the 1801 law said that it "shall be and continue to be in force" in the District. 36 The Court overlooked the fact that this law had been changed since that time.

The vagrancy law was amended in 1898 37 to delete the word "notoriously" from the provision concerning a lewd or lascivious course of life, thereby allowing prosecution of those without notoriety. The bond for good behavior was raised to $500, and the law was made clearly gender-neutral. 38

In 1901, Congress eliminated any ambiguity over the indictability of sodomy by adopting a new code 39 for the District that expressly recognized common-law crimes, with a penalty for them of up to five years and/or a $1,000 fine. 40

A physician and attorney jointly published a book in 1907 on medico-legal issues. They stated that, in the District of Columbia, oral sex was not recognized by statute, but nonetheless was prosecuted as either "assault" or "indecent exposure." 41 This shows that any of numerous "morals" statutes might be used to cover this activity.

A perfect example of how miscellaneous erotic conduct was prosecuted was the 1909 case of Fleming v. District of Columbia. 42 Jerry Fleming had been arrested on a vagrancy charge for having solicited, apparently a police officer, for a "shockingly immoral act." 43 The Court of Appeals, in freeing him from the charge, established a certain safety net in solicitation cases. It said that proof of "a single immoral act does not bring one within this provision." 44

In 1935, Congress passed a law 45 that made it a crime for

any person to invite, entice, persuade, or to address for the purpose of inviting, enticing, or persuading any person or persons...to accompany, to go with, to follow him or her to his or her residence, or to any other house or building, inclosure, or other place, for the purpose of prostitution, or any other immoral or lewd purpose. 46

In addition to a fine of up to $100 and up to 90 days in jail for the offender, courts were permitted to "impose conditions" on anyone convicted under this law, including

medical and mental examination, diagnosis and treatment by proper public health and welfare authorities, and such other terms and conditions as the court may deem best for the protection of the community and the punishment, control, and rehabilitation of the defendant. 47

In 1938, an attorney practicing in the District assisted a psychiatrist with a paper he published in a journal. 48 The attorney, through correspondence, informed the psychiatrist of prevailing court practices in "perversion" cases in the District. In this particular case, a "Mr. Z" had been sent for treatment to the psychiatrist rather than to jail after he was arrested on a sodomy charge. 49

The solicitation law was supplemented by one enacted in 1941 50 labeling as a "vagrant" any person who "engages in or commits acts of fornication or perversion for hire." 51

The only other reported same-sex sex case prior to the post-war era was Posey v. United States, 52 from 1945. In this case, a man was convicted of an "indecent assault" for consensual sexual relations with a minor. This shows how the District prosecutors got around the lack of a sodomy law.

One other possible suppression tool was the Mann Act, also known as the White Slave Traffic Act. The U.S. Supreme Court, in the 1945 case of United States v. Beach, 53 decided that the law covered activity occurring entirely within the District of Columbia, and covered any "immoral" activity with females. Thus, a Lesbian driving another one home, if they engaged in sexual activity, violated this law.

Period Summary: The District of Columbia lost its home rule powers in 1874, after only three years, due to Congressional irritation at the amount of money the local government was spending. This halted the code revision then in progress. However, just two days after the District returned to direct rule by Congress, a new code of laws was given it by the Congress. The new code did not mention sodomy or common-law crimes and stated that all local laws enacted in the home rule years were retained. Since the code was silent on sodomy, it apparently became legalized in the District just at a time of increasing moralism elsewhere. A statute enacted in 1892 covering notoriously "lewd or lascivious" people may have been the only statute that could have been used against sodomites. In 1897, a District court legislated that common-law crimes remained in forced in the District, even without statutory authorization, thus giving the government a tool to use against those who engaged in anal sex. This was codified in a new code of laws enacted in 1901. Also during this time, solicitation and vagrancy laws were enacted to assist police in arresting Gay men or Lesbians who couldn’t be prosecuted under the common-law crimes statute.

The Kinsey Period, 1948-1986

Congress acted to correct the sodomy "problem" in the District in 1948 when it enacted a statute 54 "to provide for the treatment of sexual psychopaths in the District of Columbia, and for other purposes." Passed during an anti-Gay witch hunt sweeping the District 55 and supported by the liberal Washington Post, 56 the law reworded the solicitation law specifically to include soliciting a person to accompany the offender to "his or her residence." 57

Another provision of this law adopted a sodomy law 58 that included oral sex specifically and established a penalty of up to 10 years in prison or a fine of up to $1,000. The law did not authorize both a fine and imprisonment and said that an indictment charging a defendant with having "committed a certain unnatural and perverted sexual practice" was sufficient. 59

Also included with this sodomy law was a psychopathic offender law. 60

In 1949, in the first reported case under the sodomy law, Tonker v. United States, 61 the District of Columbia Circuit Court of Appeals dealt with the indictment provision. The unanimous decision held that a defendant’s facing a charge of having committed "a certain unnatural and perverted sexual practice" was constitutionally sufficient, since the law allowed the defendant, on request, to obtain a bill of particulars. 62

In the 1950 case of Weldon v. United States, 63 the law’s provision for the indefinite indictment again was held to be constitutionally sufficient. 64

In July 1950, Washington police Lieutenant Roy Blick was interviewed for the New York Post by noted columnist Max Lerner. Blick informed Lerner that the Washington police department had four officers whose sole job was to "check on homosexuals." 65 Blick also acknowledged that names of Gay men were obtained by the police when one was arrested and the arrestee was compelled to give names of Gay friends of his. In this manner, a master list of names was compiled. 66

In 1950, the psychopathic offender law was found to be constitutional in the case of Malone v. Overholzer. 67

A U.S. Government report 68 issued at the end of 1950 gave details as to the operations of both the Washington city police and the U.S. Park Police in arresting Gay men in the city. The report went back 3½ years, which would go back before the enactment of the sodomy law in 1948. Some 1,339 arrests were made for sexual activity, 27% of which had charges dismissed by a court. In another 50%, collateral was forfeited by the arrestee and nothing further happened. Most of the arrests were for "disorderly conduct." 69 As a result of the Congressional committee’s calling that fact to the attention of the District’s chief judge, procedures were changed so that a minimum bond of $500 or $300 cash was required for "all persons charged with sex offenses." 70 Additional police also were provided to the vice squad detail whose sole function was to keep an eye on Gay men. 71

In the 1951 case of Brenke v. United States, 72 a conviction for solicitation was upheld by the Municipal Court of Appeals. Chief Judge Nathan Cayton, writing for the unanimous court, noted that Brenke was accused by the undercover police officer of accosting him in a public park and soliciting him. Brenke claimed that it was the other way around. 73 Brenke also argued that the officer’s testimony was uncorroborated, but Cayton stated that government witnesses never had to be corroborated. 74 In effect, anyone accused by the government automatically was guilty. The Court also rejected Brenke’s defense that he had been discharged honorably from the military some five years earlier, a claim apparently arguing that he had to be straight if he had served honorably in the military. Cayton found this insufficient defense evidence. 75

In 1951, it was reported that Washington police were frustrated easily when they raided homes on complaint of neighbors. Many times "Administration untouchables or diplomats sacred from interference" were the ones engaged in "unspeakable parties." 76

The first post-1948 sodomy law court victory in the District of Columbia came in 1952 with Kelly v. United States. 77 In a 2-1 decision, the District of Columbia Circuit Court of Appeals overturned the conviction of Edward Kelly for inviting an undercover police officer, Frank Manthos, "to accompany him for a lewd and immoral purpose." The Court, speaking through Judge E. Barrett Prettyman, set out the facts that

Manthos, in plain clothes, was in Franklin Park on the evening in question for the purpose of making arrests such as this—"vice duties." 78

Another police officer was nearby "to make sure he [Manthos] was not injured." 79 Prettyman discussed the conflicting testimony as to what had transpired between Kelly and Manthos leading to Kelly’s arrest, and noted that Officer Manthos possibly had committed perjury on the witness stand in the trial regarding his testimony that he had not reported Kelly’s arrest to the Public Health Service, where Kelly worked. Another witness contradicted Manthos. Manthos already had made six similar arrests in a single night before arresting Kelly. 80 Prettyman then discussed the need for corroborative evidence in cases such as this, because of the danger to reputation and the difficulty in disproving accusations. 81 Prettyman also believed that it was "less than likely" that a man who was accused of inviting a total stranger in a park home for sex would be able, as did Kelly, to present "credible witnesses of his good character." 82 Considering all of this, the Court overturned Kelly’s conviction.

Two companion cases were decided by the Municipal Court of Appeals in 1952. In King v. United States, 83 the testimony of eight character witnesses was held insufficient to justify a verdict of not guilty to a charge of soliciting an undercover police officer named Costanzo for "an immoral act." King presented testimony from his "steady girlfriend," five coworkers, his employer, and one other acquaintance, each of whom denied any knowledge of "any abnormal sex tendencies" on his part. 84 The Kelly decision was held inapplicable because of King’s failure to deny his guilt to the arresting officer and because the arresting officer did not actively cause the solicitation. 85

The companion case of Bicksler v. United States 86 also involved plainclothes officer Costanzo. Bicksler had been seen by Costanzo in a theatre restroom masturbating and he later solicited Costanzo for "acts of perversion." 87 Bicksler apparently had used language of "special significance among sexual deviates." 88 Bicksler denied soliciting Costanzo, and stated that the reverse was true. The Court found testimony of a second undercover officer witnessing a conversation between the two, without hearing the words, to be sufficient corroboration. 89

In Dyson v. United States, 90 from 1953, the Municipal Court of Appeals split 2-1 to uphold the conviction of a man for "assault." Dyson approached an undercover officer, asking him for a light, then placed his hand on the officer’s privates. At the police station after being arrested, Dyson was asked about "any prior homosexual acts." 91 The Court stated that

a man who takes improper liberties with the person of another man without his consent is guilty of assault. 92

This rule does not distinguish "improper" liberties from "proper" ones. Dyson’s admission of acts of sodomy with other individuals was held to be admissible. 93 In dissent, Judge Andrew Hood believed that the touching in this case could not be classified as an "assault" and that

charging the defendant with an assault was an attempt to evade the Kelly case where it was ruled that in a prosecution for an invitation to a perverted sexual act there must be corroboration. 94

Hood also made reference to the employment dismissals occurring in the federal government by quoting the prosecutor:

There is good reason for the Government to prosecute these cases. All the security agencies of the United Stated immediately fire these people as weak security risks. 95

Hood wanted the conviction reversed for the following reason.

Perhaps defendant is a homosexual; perhaps he had engaged in homosexual acts; perhaps on the night in question he solicited the officer to engage in a homosexual act. He was not charged with any of these things. He was charged with assault and convicted on proof of homosexuality. 96

Congress changed the solicitation law in 1953. 97 The jail term of up to 90 days was retained, but the maximum fine was raised to $250, and the reference to the power of judges to "impose conditions" on the defendant was removed. 98

In 1953, in the case of McDermett v. United States, 99 the District of Columbia Municipal Court of Appeals unanimously shot down another conviction, this time for "assault." An undercover police officer named Klopfer was in a theatre and saw McDermett masturbating, engaged him in conversation, and later took a walk with him. Klopfer went with McDermett to his hotel, but instead of leaving him, took him into the restroom and then exposed himself to McDermett. When McDermett made a sexual suggestion, he was arrested for "assault." The Court questioned why Klopfer had not arrested McDermett when he was masturbating in public but instead

why he allowed himself to be ‘picked up’ (we take the words from the transcript) and why he encouraged, or at least permitted, the acquaintance to develop on a more personal basis? 100

The Courts were not so

uninformed as not to be aware that there are such things as flirtations between man and man. And when flirtation is encouraged and mutual, and leads to a not unexpected intimacy or an intimacy not discouraged or repelled, such cannot be classified as an assault. 101

Justice Andrew Hood, concurring, said that this case was "just another case of charging a defendant with assault and convicting him on proof of homosexuality" and was a "more flagrant example of an attempted evasion" of the Kelly decision. 102

In 1954, the U.S. District Court handled the case of United States v. Kelly et al. 103 in which two men were convicted of a consensual act of "unnatural and perverted practice." Heeding the admonition in the 1952 Kelly decision that testimony in sodomy cases had to be scrutinized carefully, the Court found that the evidence "fully justified" the verdict, including

acts of preparation, including the wearing of a rubber prophylactic, clearly evinces the criminal intent. 104

The Court also considered relevant the fact that defendant Kelly had remained silent in the police station when the accusation of sodomy was made to him. 105

Another case dealing with solicitation as "assault" was Guarro v. United States, 106 from 1956. Another undercover police officer was in a theatre and was approached by Ernesto Guarro, who placed his hand over the crotch of the officer. The police officer then asked Guarro if he was interested in sex and, when Guarro answered affirmatively, arrested him for assault. Judge George Washington (that really was his name) wrote for a unanimous court noting that Guarro "is not alleged to hav[e] physically injured the policeman, nor even to have thought of doing so." 107 After pointing out that the arresting officer testified that he had not been hurt, embarrassed, or humiliated by the touching, Washington added that the

reluctance of these officers to admit embarrassment when, in the line of duty, they are involved in an incident like the one alleged here should not make them a special class whom perverts may assault with impunity. 108

After noting that the police officer seemed to go out of his way to invite the touching, including unbuttoning his coat and asking the defendant "if he wanted to take it," 109 the Court concluded that

a homosexual touching of an apparently willing and competent person is not an ‘assault,’ whatever else it may be in the catalogue of criminal offenses. 110

In 1958, the Municipal Court of Appeals decided the case of McGhee v. District of Columbia . 111 This was a heterosexual case of "lewd, obscene, or indecent act," but the Court concluded that in such cases the evidence needed to be corroborated less stringently than in a homosexual case. 112

In another 1958 case, Seitner v. United States, 113 the Municipal Court of Appeals sustained an assault conviction of defendant Phillip Seitner who walked into the restroom of a university building and, without any preliminaries, placed his hand on the private parts of an undercover police officer. Seitner made the mistake in his trial of admitting that he touched the officer, but said that he believed that the officer was consenting. 114 The Court rejected his contention that the crime needed corroboration, saying that his admission was all the corroboration needed. 115

In another 1958 case, Morrison v. United States, 116 the District of Columbia Circuit Court of Appeals voted 2-1 to reverse a sodomy conviction based on a warrantless search of the defendant’s home. 117

The U.S. Court of Appeals for the District of Columbia Circuit unanimously overturned a decision of the Municipal Court of Appeals in the 1959 case of Wildeblood v. United States. 118 Warren Wildeblood had been convicted of solicitation for sodomy and was given a small fine. The operative law gave the Municipal Court of Appeals discretion whether or not to hear appeals from small fines, and the Court declined to hear Wildeblood’s case. Writing for the court, Judge Warren Burger, future Chief Justice of the United States, showing the homophobia he would refine in that role, noted the "grave moral turpitude and an indelible stigma" that attached to Wildeblood’s conviction. Because he had not had the assistance of counsel in his appeal, the case was remanded to the city court to appoint an attorney for him to assist him in the appeal. 119

The case returned a year later. 120 Despite the appointment of counsel to assist Wildeblood, the Municipal Court of Appeals still refused to hear his case. Judge Henry Edgerton dissented and raised enough civil liberties questions about the handling of Wildeblood’s case that Judges Walter Bastian and Warren Burger, constituting the majority, felt the need to write a lengthy rebuttal to him. They detailed Wildeblood’s solicitation of an undercover police officer, something they had not mentioned in the earlier opinion. 121

In the 1960 case of Rittenour v. District of Columbia, 122 the Municipal Court of Appeals unanimously overturned a conviction for committing a "lewd, obscene, or indecent act." Rittenour apparently was notorious for his sexual activity and the "Morals Division" decided to entrap him. One police officer named Arscott called at his home, stating that he was just out of the Navy and needed a place to stay for a while. Rittenour agreed to let him stay. Upon arrival at Rittenour’s home, the officer

asked for a drink of water and was told to follow appellant into the kitchen. There appellant gave him a glass of water and then placed his hand on Arscott’s privates and made a comment concerning them. Arscott backed away and asked what he meant. Twice again appellant touched Arscott’s privates and to Arscott’s inquiry as to what he had on his mind, appellant made a reply indicating an intention to have homosexual relations with him. 123

Arscott then arrested Rittenour and called for his partner to join him. Justice Andrew Hood, speaking for the Court, said that Arscott’s "acts and misrepresentations" led Rittenour to believe that he would consent to sexual relations. Hood believed that Rittenour had been tried for being a homosexual, but "under our law homosexuality is not a crime." 124

A very brief opinion affirmed a sodomy conviction in the 1960 case of Hehl v. United States. 125 The opinion gives no information whatsoever as to the facts of the case, but states that Hehl’s sentence was only six months to three years, far less than the maximum possible. This makes it likely that the case was one of consensual activity.

In 1962, in Herland v. District of Columbia, 126 the Municipal Court of Appeals unanimously rejected the claim of the defendant that the sexual relations for which he was convicted occurred in private. He had been caught by two police "engaged in an act of perversion in a public restroom with another individual of the same sex." 127 The Court "had no difficulty" in deciding that

an unlocked men’s washroom in a hotel reasonably describes a place that is public or where an indecent act could be seen by others. The fact that the other male participant was willingly engaged with appellant in an act of perversion does not relieve appellant from guilt in committing such indecent act with him in public. 128

In 1963, the District of Columbia Court of Appeals decided the case of Alexander v. United States. 129 The Court unanimously affirmed the conviction of Alexander for boldly soliciting an undercover police officer (a member of the vice squad)

from the window of an adjoining house and ask[ing] the appellant if he had any money which he wanted to spend. Upon receiving an affirmative reply, appellant asked if he wanted to go to bed or have oral sodomy. The officer replied that he wanted the latter and was invited into the house. Appellant was dressed at the time in white Bermuda shorts, a blouse, and a pair of sandals. On his head he wore a long female wig. 130

With the specious premise that he wanted to go get a friend who also had money to spend, the officer left, reported the situation to another officer, and returned with marked money to use in payment. When he returned to the house, the officer found that the defendant no longer was there. More officers arrived and arrested others on the premises before Alexander returned, dressed the same as before, except with "falsies" added, with "another man who told officers, in the presence of appellant, that appellant had picked him up on the street ‘for purpose of sex’." 131 Although Alexander claimed that there was insufficient corroboration as to proof of intent to commit sodomy, the Court said that corroboration existed because there were

no character witnesses to support appellant’s good reputation. The trial judge had before him evidence of unexplained female attire and garb [sic] of appellant, including feminine wig and falsies, and the return of appellant to the same house with another man for a ‘sex purpose.’ 132

This evidence was sufficient corroboration of a purpose to commit sodomy. 133

A similar case decided just two weeks later was Berneau v. United States. 134 An undercover officer initiated a conversation with a man dressed as a woman, who offered to engage in sexual activity for a fee. The evidence was considered sufficient for the conviction, including the female attire and the failure of Berneau to introduce character witnesses. 135

A notable arrest was that of Walter Jenkins, assistant to President Lyndon Johnson, who was arrested in a public restroom at the downtown YMCA in 1964. He had made "indecent gestures" to an undercover police officer and resigned his position after news of his arrest became public. 136

In 1965, it was reported that Washington police made frequent arrests for disorderly conduct for practically any possible non-sodomitical conduct. One "veteran" police officer said that the public couldn’t understand "a problem they don’t see." The officer did not explain why only the police could see the problem. The same officer also claimed that the Washington police were "not interested" in "acts in private." 137

An initial victory was turned into defeat in the 1966 case of United States v. Fleming, 138 when the District of Columbia Court of Appeals unanimously overturned a trial court’s dismissal of charges against Lacy Fleming. He had been convicted of an attempt to commit sodomy only on the basis of a completed act of sodomy that had been proven. The Court rejected the English rule that one could not be found guilty of an attempt on the basis of proof of a completed act. 139

Also in 1966, in the case of Killeen et al. v. United States, 140 a unanimous District of Columbia Court of Appeals sustained a conviction for keeping a disorderly house and vagrancy. An undercover officer named Graham of the "Prostitution and Perversion Squad" of the Washington police entered a restaurant ten separate times and observed

some of appellants’ employees (waitresses, a piano player, and a female impersonator) engaging in homosexual activities with customers. He also testified to seeing numerous transvestites, some of whom were engaged in other homosexual acts. 141

All activity occurred "openly" and the managers of the restaurant "at no time made any attempt to suppress it." 142 The prosecution testimony was due entirely to Officer Graham’s personal recollections of past events, even though he "could not recall certain information[.]" 143 The Court nonetheless found this evidence sufficient. 144

In the case of Reed v. District of Columbia, 145 from 1967, the District of Columbia Court of Appeals upheld another conviction for committing a lewd, obscene and indecent act. Louis Reed was arrested by a police officer in a public restroom of a department store and claimed that the failure of the police to detain another man who left just as the police entered cost Reed a potential corroborating defense witness. The Court upheld the officer because the man who left had not been accused of any criminal activity. 146

In 1969, in Gaithor v. United States, 147 the District of Columbia Court of Appeals unanimously held that trials for solicitation for fellatio could be held without a jury, since fellatio was not recognized as a crime at common law. District of Columbia law provided for jury trials only for felonies and crimes recognized at common law. This is an interesting example of how laws could be stretched so as to go against Gay and Lesbian defendants, but never in their favor. Although fellatio and cunnilingus were not recognized as crimes under the common law, courts throughout the nation merely added them to sodomy laws through judicial fiat, but would not grant a right on that basis.

In 1972, settling the case of Schaefers et al. v. Wilson, 148 the District of Columbia government announced its intention not to prosecute anyone for private, consensual adult sodomy, an action disputed by the U.S. Attorney for the District of Columbia. The action came as part of a stipulation agreement in a court challenge to the law brought by four Gay men. The city agreed that, in light of both case law on privacy in the United States and the legislative history of the District of Columbia sodomy law, the sodomy law

cannot be applied, to private consensual sexual acts involving adults (persons age 16 and over)[.] 149

In the 1972 case of Harris v. United States, 150 the District of Columbia Court of Appeals dealt with the case of a Gay bath house being a bawdy or disorderly house because of homosexual activity on the premises. The Court rejected the notion that the term "disorderly house" was overbroad, 151 refused to consider public values, 152 and, in one sentence, dismissed the claim that consent to the acts barred prosecution. "It is the view of this court that the law does not permit such result." 153

In Riley v. United States, 154 from 1973, a First Amendment challenge to the District of Columbia solicitation statute was rejected by the District of Columbia Court of Appeals. Jasper Riley had approached an undercover police officer and asked him to come with him to an amusement arcade and, when asked by the officer what they would do there, Riley replied

I’ll give you a good blow job up there...I was the best suck man in town...will you follow me? Walk up to the place with me, and follow me in the door. 155

The officer did follow and, when Riley unzipped his pants, he was arrested. 156 The Court rejected the First Amendment claim, stating that it knew "of no authoritative holding which extends First Amendment protection to a solicitation to commit an act lawfully prohibited by statute." 157

A rare victory came in the 1973 case of Shannon v. United States. 158 Frank Shannon was dressed as a woman and solicited an undercover officer with the words, "You want to go out for a while?" The conversation between Shannon and officer Keeton was vague, but obviously centered on sex. It was Keeton who asked Shannon if he would be willing to be anally penetrated. 159 The trial judge was Nicholas Nunzio, a noted homophobe, and he refused to dismiss the case on the basis of entrapment. After printing examples of Nunzio’s sarcastic derision of the attorneys in the case, 160 the unanimous decision of the Court of Appeals was that Nunzio erred in his refusal and it rebuked him sharply.

[T]rial judges are reminded that a trial is intended to be a dignified and impartial search for the truth. After review of the record in this case we deem it appropriate to say what a courtroom and a trial are not. A courtroom is not a classroom and a trial is not a forum for pedantic displays; nor is it simply an opportunity for the trial judge to participate as an advocate or to deride government or defense counsel. 161

The government made a motion for a rehearing, 162 which led to an even more pointed attack on Nunzio’s conduct.

Because of the frequency and manner of the court’s intrusions into the interrogation of the witnesses—sometimes interrupting answers to material questions, we are unable to conduct a meaningful review of the record. Thus, we are left with the conviction that the trial did not meet the minimum standards for the administration of criminal justice. 163

In Davis v. United States, 164 from 1974, the District of Columbia Court of Appeals unanimously upheld a trial court’s refusal to permit a psychiatric evaluation of a sodomy defendant and to refuse voir dire questioning of jurors concerning the morality of sex with a minor and the definition of an act of sodomy. 165

On the same day that the Davis case was decided, the Harris case returned to the Court. In Harris II, 166 a Gay bath house was declared to be a public nuisance per se. 167

In another case from 1974, United States v. Carson, 168 the District of Columbia Court of Appeals overturned the trial court’s dismissal of the case against 15 men for solicitation. The trial court (Judge Charles Halleck, a strong Gay rights supporter) had found the law facially unconstitutional because of the

right of an individual to control the use and function of his or her body without unreasonable interference from the state. 169

The Court of Appeals found that, even if this were true, the fact that the individuals solicited were strangers to the solicitors made the acts no longer private. 170

Judge Halleck had more success on appeal in the next case, District of Columbia v. Walters et al. 171 Halleck had struck down the District’s "lewd, obscene and indecent act" statute as unconstitutionally vague and issued an injunction against the Washington police from their practice of notifying arrestees’ employers of their arrests on sex offenses. Despite previously upholding the law against vagueness challenges, the Court of Appeals this time agreed that it

betrays the classic defects of vagueness in that it fails to give clear notice of what conduct is forbidden and invests the police with excessive discretion to decided, after the fact, who has violated the law. 172

Another effort of Halleck’s went down in flames in the case of United States v. Cozart, 173 from 1974. Halleck had struck down the District of Columbia solicitation law as discriminatory in that it was not enforced against women. The Court of Appeals reversed, noting that the sodomy law applied to cunnilingus, therefore solicitation between women would be covered. 174 Eva Freund, "an expert witness," (she was a founding member of the Washington Mattachine Society) testified at the trial that some women solicit other women, and another woman examined police records for an 11-year period and did not find a single arrest of a woman for solicitation for sodomy. 175 The Court concluded that

[m]ere laxity in law enforcement, or the existence of violators who have not been punished, does not constitute a denial of equal protection. Rather, a deprivation of equal protection will only be found in the existence of intentional or purposeful discrimination. 176

The Court concluded by saying that solicitation between Lesbians may not have been "known to the police." This "lack of knowledge" could not be construed as discriminatory enforcement. 177

In another 1974 case, United States v. Dumas, 178 the Court of Appeals, again reversing Judge Halleck, ruled that the solicitation for lewd and immoral purposes law applied to heterosexual solicitation as well as homosexual solicitation and upheld the law’s constitutionality as applied. 179

In the 1975 case of District of Columbia v. Garcia, 180 the District of Columbia Court of Appeals reversed a trial court judge who had dismissed charges against three men for soliciting plainclothes police, one of whom was a member of the "Prostitution and Perversion Squad." The trial court had found the charges of soliciting for a "lewd, obscene and indecent" proposal to be indistinguishable from the language ruled unconstitutional in the Walters decision. 181 The Court of Appeals disagreed, believing that a solicitation was not constitutionally protected, even with the vague language "lewd, obscene and indecent" attached to it. 182 Judge Hubert Pair, speaking for the Court, embarked on a moralizing odyssey. Heterosexual sex crimes (which he delineated as adultery, fornication, seduction, and incest) were "natural" and were not "inherently abhorrent." 183 On the other hand, sodomy, indecent exposure, and indecent sexual acts with children are offenses

on the outer reaches of immorality which is both unnatural and perverted. Thus sodomy, indecent exposure, and indecent sexual acts with children provisions are beyond the pale of constitutional attack. 184

In conclusion, Pair said, the only sexual acts that are "lewd, obscene and indecent" within the meaning of the solicitation law were sodomy, indecent exposure and indecent sexual acts with children. 185 Solicitation for any of the "natural" sexual acts of adultery, fornication, seduction, and incest (all of them still criminal under District of Columbia law) were not "lewd, obscene and indecent." The Court also rejected free speech claims against the solicitation law. 186

The case of United States v. McKean et al. 187 from 1975 was decided by the District of Columbia Court of Appeals. The Regency Health Club was held to be a public place and sexual activity therein could not be considered protected by a right of privacy. 188

In 1975, the District of Columbia Court of Appeals reversed a trial court in the case of United States v. Buck. 189 The trial court had ruled that the District’s sodomy law could be applied constitutionally only to non-consensual sexual activity. Two men had been arrested in the "Black Forest," a notorious cruising spot near Georgetown, for engaging in a consensual act of fellatio. The Court of Appeals was

aware of no holding of the Supreme Court or of any appellate court in this jurisdiction which provides support for this ruling. 190

In any event, the Court held that the right of privacy "does not extend beyond the seclusion of the home." 191

The Court of Appeals reaffirmed that the District’s law against solicitation "for lewd and immoral purposes" was, due to court construction, limited to solicitations for sodomy in the 1975 case of United States v. Miqueli. 192

In 1976, the Court of Appeals was equally hostile to the eloquent claims raised in Stewart v. United States. 193 Stewart, like Buck, had been arrested in the "Black Forest" for consensual fellatio. First, the Court rejected Stewart’s privacy claim, since he was in "a public area." 194 Second, the Court rejected Stewart’s unique argument of a disparate impact of the sodomy law on Gay men and Lesbians because sodomy was one of their "primary avenues of sexual gratification" and the law was being enforced in a discriminatory manner. 195 Noting that the law was facially neutral, 196 the Court then went on to reject the disparate impact argument because the law "is a reasonable exercise of the right of the legislature to maintain a decent society." 197 Third, the Court rejected the discriminatory enforcement argument because the "evidence" showed that there was a "lack of knowledge by the police concerning heterosexual sodomitic acts." (Perhaps because the police had a "Prostitution and Perversion Squad" that regularly spent time looking for such homosexual activity). 198 Fourth, the Court rejected Stewart’s argument that the law constituted an establishment of religion. 199

In 1981, after the District of Columbia regained home rule from Congress, 200 it enacted a law 201 that repealed the sodomy law, as well as other consensual acts, and made the sexual assault laws gender-neutral. However, the U.S. House exercised the power that it retained to veto laws passed by the District of Columbia Council. On October 1, 1981 after a bitter floor debate that centered on homosexuality, the House voted 281-119 to disallow the new law. 202 Later, one-house vetoes by Congress were declared unconstitutional by the U.S. Supreme Court, 203 but the law was repealed by an act of Congress in a revision to the home-rule law required by the Supreme Court decision. 204

Period Summary: Following a period of political turmoil in the country and an anti-Gay witch hunt, the District of Columbia was given its first sodomy law in 1948. A newspaper had pointed out that the common-law statute was ineffective against many sexual acts enjoyed by Gay men and Lesbians. A "sexual psychopath" law was included with this law. Many of the published sodomy and solicitation cases during the 1950s reveal clear entrapment policies by the local police, some of which were disallowed by reviewing courts. In the 1960s, after the birth of the local Gay rights movement with the founding of a militant chapter of the Mattachine Society, the courts grew less tolerant of Gay and Lesbian sexual activity and remained so into the next decades. After home rule was reestablished in 1973, a torturous process was followed in repealing the sodomy law in 1981, only to see that new law overturned by Congress during the peak of influence of evangelicals during the early part of the Reagan Administration.

The Post-Hardwick Period, 1986-Present

In 1987, in Rose v. United States, 205 the Court of Appeals voted 2-1 to overturn a soliciting conviction of a man who was dressed like a woman and who waved down cars, got into them, and drove off. The majority felt that this was too much of circumstantial evidence with which to convict. 206

In the 1990 case of Roundtree v. United States, 207 the Court of Appeals voted 2-1 to affirm the conviction of a male prison guard for a sexual assault on a female prisoner. The important part of the opinion was that actual penetration of the vagina did not have to occur to establish an act of cunnilingus. 208 Judge Frank Schwelb concurred in part and dissented in part. Although he believed the evidence was unfavorable to a conviction, he included a section of his lengthy opinion on the sodomy law. He noted that the law made no distinction between consensual and non-consensual acts, that the law routinely was violated by an overwhelming majority of District of Columbia residents, and that there was no "rational basis" for a law that treated consensual and non-consensual acts equally harshly. 209

Police activity in the District of Columbia concerning sodomy remained controversial, with police receiving disciplinary action for certain arrests 210 and police making controversial arrests. 211

In response to Gay and Lesbian couples turning themselves in to the police department, the U.S. Attorney’s office announced that it would not prosecute consenting adults. 212 A further limitation announced in 1992 (redundant to its pledge in Schaefers two decades before) was that the law would be enforced only against acts involving force, with juveniles, or in a public place and "in plain view." 213

The Courts remained hostile, however. In 1992, deciding Moore v. United States, 214 the District of Columbia Court of Appeals affirmed same-sex prostitution convictions with language that was not exactly enlightened. Judge Emmet Sullivan wrote the opinion, which concerned entrapment in what Sullivan called "a homosexual bar." A key witness was Detective Mark Gilkey, "the government’s expert witness in terminology and modus operandi used by homosexual prostitutes in the District of Columbia[.]" 215 (No information was given as to how Gilkey became such an expert). Because one of the entrapped prostitutes knew the meaning of "top or bottom," that was corroborative evidence of solicitation for money. Sullivan enlightened readers who might not know this term. He said it referred to "whether an individual is a passive or aggressive person in the context of a homosexual relationship." 216

Efforts to repeal the sodomy law had been blocked by Council Member Wilhelmina Rolark, chair of the Council’s Judiciary Committee. Militant action was spurred by her refusal to release the bill to the floor. 217 However, in 1992, Rolark lost her bid for renomination in the Democratic primary by a margin of more than 3-1. 218

With Rolark gone, a bill to amend the sodomy law to exclude consensual activity passed unanimously in 1993. 219 The age of consent is 16. 220

During the time before the repeal law took effect, two men were arrested for sex in a car and a jury acquitted them simply because they didn’t think such activity should be against the law. 221

Despite repeal of the sodomy law, in 1994, U.S. Park Police instituted a policy of telephoning men who had left their phone numbers in restrooms, inviting them for sex, and arresting them if they solicited. 222

In 1995, the sodomy law, now covering only non-consensual and underage activity, was repealed and replaced with other laws. 223 However, by doing this, the District risked reactivation of the common-law provision 224 that had been muted by the continued existence of a sodomy law, even if it didn’t cover private, consensual acts. There is no case law in the District as to the effect of repealing a statute in derogation of the common law.

However, in 2004, the District of Columbia enacted a law 225 that eliminated some remaining obsolete consenting adult provisions, and included a section that created a statutory disclaimer that the repeal of a statute in derogation of the common law does not revive the common-law provision on the subject. Since the sodomy law was repealed earlier, this provision blocks usage of the remaining common-law provision for prosecution of consensual sodomy.

Continuing as a problem is the “lewd, indecent, or obscene acts” provision of the District of Columbia Code 226 that prohibits both “any lewd, obscene, or indecent sexual proposal,” or any “lewd, obscene, or indecent act” whether in public or private.

Period Summary: A majority of the City Council remained committed to repealing the sodomy law following the initial veto of their efforts by Congress. Evangelical influence waned dramatically in the 1980s, but the Council’s Judiciary Committee was headed by a determined foe of sodomy legalization. It was not until after she was defeated that the repeal bill became law in 1993. By this time, right-wing influence in the Congress had weakened to the point that Jesse Helms backed away from an attempt to lead a Congressional veto. In 1995, however, the District of Columbia Council may have, inadvertently, reinstated some sodomitical acts as criminal with repeal of the non-consensual sodomy law. The confusion over what sexual acts are legal and what are not with the contradiction of a statutory repeal of the sodomy law with a remaining common-law provision was cleared up in 2004 with a disclaimer of revival of common-law provisions covered by a repealed statute.

Footnotes

1 2 Stat. 103, enacted Feb. 27, 1801.

2 Id. §1.

3 A Collection of All Acts of the General Assembly of Virginia 1802, (Richmond:Pleasance and Price, 1803), page 402, ch. CCLXIV, enacted Jan. 25, 1800.

4 Virgil Maxcy, ed., The Laws of Maryland, Vol. II, (Baltimore:Philip H. Nicklin, 1811), page 212, ch. LVII, enacted during a session that ran from Nov. 4 through Dec. 29, 1793.

5 Maxcy, Vol. III, at 460, §8, enacted November 1809.

6 4 Stat. 448, enacted Mar. 2, 1831.

7 Id. at 450, §15.

8 9 Stat. 35, enacted July 9, 1846.

9 10 Stat. 642, enacted Mar. 3, 1855.

10 Id.

11 Id. at 643.

12 Revised Code of the District of Columbia, (Washington:A.O.P. Nicholson, 1857).

13 Id. "Note," at beginning of book, no pagination.

14 Id. at 548, §17.

15 Records of the Columbia Historical Society, Vol. 3, pages 124-125. The election was held Feb. 15, 1858.

16 16 Stat. 419, ch. LXII, enacted Feb. 21, 1871.

17 Id. at 428, §40.

18 Laws of the District of Columbia 1871-72, page 10, ch. IV, enacted Dec. 18, 1871.

19 18 Stat. (Pt. 3) 116, enacted June 20, 1874.

20 18 Stat. (Pt. 2) 1, enacted June 22, 1874.

21 Id. at 9, §91.

22 Id. §92.

23 Records of the Columbia Historical Society, Vol. 3, page 128.

24 Revised Statutes of the United States, Relating to the District of Columbia and Post Roads, Passed at the FirstSession of the Forty-Third Congress, 1873-’74; Together with the Public Treaties in Force on the First Day of December, 1873, (Washington:Government Printing Office, 1875).

25 Id. at 131, §1146.

26 27 Stat 322, ch. 320, enacted July 29, 1892.

27 Id. §8.

28 Id.

29 The Compiled Statutes in Force in the District of Columbia, including the Acts of the Second Session of the Fiftieth Congress, 1887-‘89, (Washington:Government Printing Office, 1894).

30 Id. at 161, §29.

31 Records of the Columbia Historical Society, Vol. 3, page 133.

32 11 App.D.C. 458, decided Nov. 16, 1897.

33 Id. at 462.

34 Id. at 462-463.

35 Id. at 465.

36 Id. at 466.

37 30 Stat. 723, ch. 638, enacted July 8, 1898.

38 Id.

39 31 Stat. 1189, ch. 854, enacted Mar. 3, 1901.

40 Id. at 1337, §910.

41 R.A. Witthaus and Tracy C. Becker, Medical Jurisprudence, Forensic Medicine, and Toxicology, 2nd ed., Vol. 2, (New York:William Wood & Co., 1907), pages 752-753.

42 34 App.D.C. 5, decided Nov. 2, 1909.

43 Id. at 7.

44 Id. at 8.

45 49 Stat. 651, ch. 546, enacted Aug. 14, 1935.

46 Id.

47 Id.

48 Ralph M. Crowley, "The Courts and Psychiatry," Psychiatry, 1:265-268 (May 1938).

49 Id. at 268.

50 55 Stat. 808, ch. 589, enacted Dec. 17, 1941.

51 Id.

52 41 A.2d 300, decided Feb. 16, 1945.

53 324 U.S. 193, decided Feb. 26, 1945.

54 62 Stat. 346, ch. 428, enacted June 9, 1948.

55 David M. Oshinsky, A Conspiracy So Immense: The World of Joe McCarthy, (New York:The Free Press, 1983), page 53.

56 An editorial in the Post endorsed the effort to make "perversion" a crime. The editorial noted the difficulty in securing convictions under the 1901 common-law provision and that, as a result, "Washington has become more or less a haven for sexual perverts and degenerates." The editorial did not recognize that sodomy could be a consensual act between adults and worried about the inability of medicine to "cure" those who engaged in it. Washington Post, Aug. 27, 1947, 10:4.

57 62 Stat. 346, §102.

58 Id. at 347, §104.

59 Id.

60 Id. at 347-350.

61 178 F.2d 712, decided Oct. 26, 1949.

62 Id. at 712-713.

63 183 F.2d 832, decided June 15, 1950. Cert. denied from unreported second decision, 343 U.S. 967, decided June 2, 1952. Rehearing denied, 344 U.S. 849, decided Oct. 13, 1952. Judge Bennett Champ Clark, the author of the opinion, was a former U.S. Senator from Missouri who made anti-Gay comments on the floor of the Senate during the investigation of Senator David Walsh in 1942. Walsh had been accused of visiting a male brothel.

64 Weldon, at 834.

65 Republished in Max Lerner, The Unfinished Country; A Book of American Symbols, (New York:Simon and Schuster, 1959), pages 316-319.

66 Id.

67 93 F.Supp. 647, decided Oct. 26, 1950.

68 "Employment of Homosexuals and Other Sex Perverts in Government," Interim Report Submitted to the Committee on Expenditures in the Executive Departments by its Subcommittee on Investigations. 81st Congress, 2nd Session, Document No. 241, issued Dec. 15, 1950.

69 Id. at 18.

70 Id. at 18-19.

71 Id. at 19.

72 78 A.2d 677, decided Feb. 16, 1951.

73 Id. at 677-678.

74 Id. at 678.

75 Id.

76 Jack Lait and Lee Mortimer, Washington Confidential, (New York:Crown, 1951), page 11.

77 194 F.2d 150, decided Jan. 10, 1952.

78 Id. at 151.

79 Id.

80 Id. at 152.

81 Id. at 153-154.

82 Id. at 155.

83 90 A.2d 229, decided July 25, 1952.

84 Id. at 230.

85 Id. at 232.

86 90 A.2d 233, decided July 25, 1952.

87 Id. at 234.

88 Id.

89 Id. at 234-235.

90 97 A.2d 135, decided May 29, 1953.

91 Id. at 136.

92 Id. at 137.

93 Id.

94 Id. at 138.

95 Id. at 138-139.

96 Id. at 139.

97 67 Stat. 90, enacted June 29, 1953.

98 Id. at 93, §202(b).

99 98 A.2d 287, decided July 14, 1953.

100 Id. at 289.

101 Id. at 290.

102 Id.

103 119 F.Supp. 217, decided Mar. 9, 1954.

104 Id. at 220.

105 Id. at 221.

106 237 F.2d 578, decided Sep. 27, 1956.

107 Id. at 580.

108 Id. at 580 and 581.

109 Id. at 582.

110 Id.

111 137 A.2d 721, decided Jan. 21, 1958.

112 Id. at 722.

113 143 A.2d 101, decided June 20, 1958.

114 Id. at 102.

115 Id.

116 262 F.2d 449, decided Oct. 16, 1958.

117 Id. at 453-454.

118 273 F.2d 73, decided Nov. 19, 1959.

119 Id. at 74.

120 284 F.2d 592, decided Nov. 3, 1960. Rehearing en banc denied Nov. 29, 1960.

121 Id. at 598.

122 163 A.2d 558, decided Aug. 19, 1960.

123 Id. at 559.

124 Id. at 560.

125 288 F.2d 130, decided Oct. 6, 1960. Rehearing denied Nov. 30, 1960.

126 182 A.2d 362, decided June 28, 1962.

127 Id.

128 Id. at 363.

129 187 A.2d 901, decided Feb. 8, 1963.

130 Id.

131 Id. at 901-902.

132 Id. at 902.

133 Id.

134 188 A.2d 301, decided Feb. 21, 1963.

135 Id. at 302.

136 Washington Post, Oct. 15, 1964, 1:6.

137 Washington Post, Feb. 3, 1965, 19A:3.

138 215 A.2d 839, decided Jan. 10, 1966.

139 Id. at 841-842.

140 224 A.2d 302, decided Nov. 28, 1966.

141 Id. at 303.

142 Id.

143 Id. at 305.

144 Id. at 306.

145 226 A.2d 581, decided Feb. 15, 1967.

146 Id. at 583.

147 251 A.2d 644, decided Mar. 21, 1969.

148 11 CrL 2252, decided May 24, 1972. The four courageous men who brought the suit were Richard Schaefers, Charles Hall, Warren Colison and Terry Leigh. Long-time Gay activist Frank Kameny, upon hearing of this policy, sent letters to the U.S. Attorney, Corporation Counsel, and Chief of Police soliciting them for sodomy. Only the Chief of Police responded, and he turned Kameny down, saying that his wife "wouldn’t stand for it." (Correspondence from Frank Kameny, Jan. 21, 1992).

149 Schaefers, at 2253.

150 293 A.2d 851, decided Aug. 10, 1972.

151 Id. at 852.

152 Id. at 853.

153 Id. at 855.

154 298 A.2d 228, decided Dec. 12, 1972. Amended Feb. 20, 1973. Cert. denied, 414 U.S. 840, decided Oct. 9, 1973.

155 298 A.2d, at 229.

156 Id.

157 Id. at 233.

158 311 A.2d 501, decided Nov. 12, 1973.

159 Id. at 502.

160 Id. at 502-505. Examples of Nunzio’s conduct toward the attorneys in the case (both prosecution and defense): "If this is your first trial, let me know, and I’ll try to be a little more kindly to you." "You better get on your feet; I’m not going to conduct your trial for you." "You better start paying attention." "If I feel you’re not doing your job, then I have to interrupt you." He also told the defense counsel that he would deny the defense’s motions "even though I haven’t seen them."

161 Id. at 505.

162 319 A.2d 135, decided Mar. 15, 1974. Rehearing and rehearing en banc denied Mar. 15, 1974.

163 Id.

164 315 A.2d 157, decided Feb. 11, 1974.

165 Id. at 160.

166 315 A.2d 569, decided Feb. 11, 1974.

167 Id. at 574.

168 319 A.2d 329, decided Apr. 18, 1974. This case was a consolidation of the 15 cases. It was argued 359 days before the decision was delivered.

169 Id. at 331.

170 Id.

171 319 A.2d 332, decided May 9, 1974. En banc hearing denied July 3, 1974.

172 Id. at 335.

173 321 A.2d 342, decided June 17, 1974. Rehearing and rehearing en banc denied July 31, 1974.

174 Id. at 343.

175 Id.

176 Id. at 344.

177 Id.

178 327 A.2d 826, decided Oct. 31, 1974.

179 Id. at 827.

180 335 A.2d 217, decided Apr. 1, 1975. This was a consolidation of three cases.

181 Id. at 219-220.

182 Id. at 220-221.

183 Id. at 222.

184 Id.

185 Id. at 223.

186 Id. at 223-224.

187 338 A.2d 439, decided May 30, 1975.

188 Id. at 440-441.

189 342 A.2d 48, decided July 16, 1975.

190 Id. at 48-49.

191 Id. at 49.

192 349 A.2d 472, decided Dec. 18, 1975. Rehearing and rehearing en banc denied Feb. 5, 1976.

193 364 A.2d 1205, decided Oct. 5, 1976.

194 Id. at 1206-1207.

195 Id. at 1207.

196 Id.

197 Id. at 1208.

198 Id.

199 Id. at 1208-1209.

200 87 Stat. 774, enacted Dec. 24, 1973.

201 District of Columbia Act 4-69, enacted July 14, 1981.

202 Congressional Record, Vol. 127, pages H6731-H6734, H6736-H6762.

203 Immigration and Naturalization Service v. Chadha, 462 U.S. 919, decided June 23, 1983.

204 98 Stat. 1974, at 1975, §(k), enacted Oct. 12, 1984.

205 535 A.2d 849, decided Dec. 4, 1987. The case had been argued Mar. 18, 1986, thus taking close to two years to hand the decision down.

206 Id. at 854-855.

207 581 A.2d 315, decided Oct. 2, 1990. This case was argued May 9, 1989, taking a year and-a-half to be issued.

208 Id. at 329-331.

209 Id. at 345-346.

210 Washington Blade, Sep. 14, 1984, page 7; Nov. 16, 1984, page 9; Mar. 6, 1992, page 1; Apr. 10, 1992, page 11.

211 Washington Blade, Mar. 22, 1985, page 6; Feb. 14, 1992, page 1; Feb. 28, 1992, page 1; Oct. 16, 1992, page 6; Nov. 20, 1992, page 6.

212 Washington Blade, Jan. 10, 1992, page 11. Also see an article in the Blade about police refusal to prosecute a man who was arrested having sex with another man in a public park. Oct. 26, 1984, page 8. Compare this with the outrage over prosecution for consensual sodomy, Id. Mar. 20, 1992, page 17.

213 Washington Blade, Aug. 7, 1992, page 1.

214 609 A.2d 1133, decided July 2, 1992.

215 Id. at 1134.

216 Id. at 1136.

217 Washington Blade, Dec. 20, 1991, page 1; Jan. 17, 1992, page 7; Jan. 24, 1992, page 31; Feb. 7, 1992, page 1.

218 Washington Blade, Sep. 18, 1992, page 1.

219 District of Columbia Act 10-23, enacted May 5, 1993, effective Sep. 14, 1993.

220 Id. §2(c).

221 Washington Blade, Aug. 27, 1993, page 15.

222 Washington Blade, Dec. 16, 1994, page 8.

223 D.C. Law 10-257, enacted May 23, 1995.

224 District of Columbia Code, 2001 Ed., §22-1807 and §45-401, respectively.

225 Act 15-154, effective Apr. 29, 2004. Codified as D.C. Official Code § 45-401(b).

226 §22-13 12.

Divider

District of Columbia

  • Statute: Reformed 1993, repealed completely in 1995. The adultery and fornication laws were repealed in 2004.

Statute

§ 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.)

Sec. 22-1602. Fornication.
If any unmarried man or woman commits fornication in the District, each shall be fined not more than $300 or imprisoned not more than 6 months or both.

History

The District of Columbia was formed out of parts of Maryland and Virginia in 1801. The laws of each jurisdiction held sway until the Virginia lands were retroceded in 1946. Various criminal codes were enacted from time to time, but none explicitly included penalties against sodomy until 1948 when Congress enacted a statute "to provide for the treatment of sexual psychopaths in the District of Columbia, and for other purposes." The law was passed during an anti-Gay witch hunt sweeping the District and supported by the liberal Washington Post.

Dr. Franklin E. Kameny began the repeal effort in 1963 in testimony before Subcommittee No. 4 of the Committee on the District of Columbia of the US House of Representative, Chaired by Rep. John Dowdy (D-Texas), entitled "Amending District of Columbia Charitable Solicitation Act". The hearing took place on August 8 and 9, 1963.

Frank Kameny testified as President of the Mattachine Society of Washington.

"Mr. Kameny. -- If it is objected that homosexual acts are against the laws of man in the District of Columbia, then we say that this committee makes the laws of man in the District of Columbia and the remedy for the situation lies with the committee. Change the law and make the acts legal. I take this opportunity formally to recommend to this committee that section 22-3502 of the District Code, insofar as it applies to the District of Columbia, be repealed."

In October 1971, Kameny organized four members of the Gay Liberation Front to sue the DC Police to end the harassment under the law. The case was successful, but applied only to the four plaintiffs.

In 1974, local elections were held for a DC Council with the authority to write laws. The criminal code was not subject to changes until 1980.

A report was issued in 1975 by rape victim advocates for the reform of the sexual assault laws and the repeal of penalties against private, consensual sex. A Task Force was formed to study the reform of the criminal code. The main thrust was the reform of the sexual assault laws. Frank Kameny attended every meeting and was consulted regularly, despite not being an official member of the Task Force. Sharon Pratt Dixon served as a member.

Based on the Task Force's work, the DC Council passed the Sexual Assault Reform bill in 1981, which modernized DC’s law on sex crimes. The bill was signed by then Mayor Marion Barry. The US Congress controls all of DC legislation; bowing to anti-gay sentiment led by Jerry Fawell in a national campaign, killed the entire bill. New legislation was introduced every year starting in 1984 but it languished in the Judiciary Committee controlled by Wilhelmina Rolark.

In February 1992, a raid on a private gay club, the Follies Theater, resulting in 14 arrests—11 on sodomy charges—sparked the gay community to focus efforts on repealing the sodomy law once again.

A separate arrest in 1992 of two men engaging in consensual sex in their car parked in DC also evoked community outrage. The two fought the law in court before a jury and essentially admitted to the act in court, but argued that they had not done anything that should be criminalized. The jury agreed and neutralized the law in their case.

A group of repeal activists from the direct action group Queer Nation turned themselves in to the police for committing sodomy in the District. The police, shocked by this action, were left scrambling for a response. They eventually took sworn statements from 3 couples who could testify that they had committed sodomy with each other. No arrests were made and no one was prosecuted.

Facing considerable public opposition to the arrests, Mayor Sharon Pratt Kelly ordered the police chief to stop enforcing the law against consenting adults.

An amendment to an unrelated bill to reform the law was proposed in 1992 but defeated by the DC Council.

Mayor Marion Barry’s unrelated personal and legal problems resulted in a 6-month jail term for crack cocaine possession. He had declined to run for Mayor in 1990, but in 1992 ran for City Council against Rolark. Rolark was defeated and in 1993, with a shift in committee chairs, the bill was introduced to the City Council.

Hearings on the bill lasted for nearly 9 hours without a break and were almost completely dominated by gay activists. Dr. Kameny, representing the Traditional Values Coalition of Washington, DC and the Mattachine Society, opened the hearing with strong testimony in favor of the bill. Kameny testified that sodomy should be legalized and considered "good, moral, and rewarding."

Kameny had incorporated Traditional Values Coalition in DC forcing the national anti-gay activist group to be identified as being from California where they are incorporated, significantly diminishing their impact on the locally elected officials. Most of the opposition testimony came from local Baptist ministers but they, and a Catholic official, admitted that they were most concerned about public sex which the sodomy-reform bill would not have legalized.

The reform bill, written by Kameny, stated simply "No act engaged in only by consenting persons 16 years of age or older shall constitute an offense under this section." Kameny had wanted to simultaneously repeal the adultery, fornication and similar laws, but met with opposition from DC Council members. The bill passed the Council unanimously and Mayor Sharon Pratt (Dixon) Kelly signed it in a public ceremony.

Representatives of national gay rights groups—including the Human Rights Campaign Fund, the National Gay and Lesbian Task Force and the Campaign for Military Service—asked DC activists to delay sending the reform bill to Congress for approval, saying that the gays in the military fight strained their resources. The DC activists refused. Rep. Barney Frank (D-MA) asked the Republican leadership in the Senate not to support an amendment drafted by Sen. Jesse Helms (R-NC) and they, not wishing another fight on gay sexuality, complied, allowing the reform bill to become law.

The effort came to completion 30 years, one month, 4 days, and 11 hours after Frank Kameny first proposed the repeal, when Congress adjourned for the day at about 11 PM on September 13, 1993, and the reform bill went into effect.

The sodomy law was repealed completely in 1995 with the passage of the Sexual Assault Reform bill that finally modernized the DC criminal code.

-Bob Summersgill

Fun, First and Unique Facts

1858 Though it was merely one part of an entire criminal code being voted on at once, a sodomy law is defeated by the voters of the District of Columbia, the first time voters said no to it.
1897 A District of Columbia court ruled that, despite no adoptive language under District law, all common-law crimes are in effect in the District, meaning that sodomy can be prosecuted even without a sodomy law.
1909 The earliest known published case in the U.S. in which a man solicits a police officer for sex is reported in the District of Columbia.
1972 The District government enters into a stipulation agreement not to prosecute private, consensual sodomy.
1981 After getting home rule from Congress, the District of Columbia Council passes a new sex offenses law that repeals the sodomy law. Congress disallows the new law with a one-house veto by the U.S. House. This is the first time that a local law was disallowed by Congress without it having violated federal supremacy. Later, the U.S. Supreme Court strikes down one-house vetoes, but Congress still repeals the District law.

Sexual Offender Registration

Robert Wilkins, Chief, Special Litigation and Programs Division of the Public Defender Service, called me today to explain his perspectives on an issue that surfaced during Tuesday’s hearing on the proposed Sexual Offender Registration Act.

The problem lies in the definition of "Registration Offense," the same area where "sodomy" was included in the draft legislation. The proposed bill says that a Registration Offense would include "conduct where the sex offender would be required to register in the jurisdiction where the offense was committed."

Mr. Wilkins says there is no Justice Department requirement that states have to register anyone who moves there is they had had to register in some other jurisdiction. In fact, he is not aware of any state that has such a sweeping provision as would be provided by this language for the D.C. law.

Mr. Wilkins says that if adopted, this language would require D.C. to register gays convicted of consensual sodomy in states where such convictions are considered registration offenses, when those people move into or work in or go to school in D.C. He says the following states consider consensual sodomy convictions a registration offense: AL, ID, KS, LA, MS, MO, OK, SC.

In addition, the proposed language would require registration in D.C. of gays convicted of other consensual sexual crimes (e.g., solicitation) wherever states consider such offenses as registration offenses. He has not had time to compile a list of such jurisdictions.

—Craig Howell, June 30, 1999

Most of the provisions which would require registration for consensual acts, including sodomy, were amended out before passage. The law was found unconstitutional in 2001.

News

Editorials

Documents

Lobbying

Testimony

Letters and testimony that led to the successful removal of anti-sex regulations regarding liquor licenses.

December 5, 2002 Judiciary Committee Hearing on Bill 14-636, The Elimination of Outdated Crimes Amendment Act of 2002 [Successfully led to the repeal of the adultery and fornication laws.]

January 29, 1993 Judiciary Committee Hearing on Bill 10-30, the DC Criminal Code Right to Privacy Amendment Act of 1993 [Successfully led to the reform of the sodomy law.]

Congress Overturns DC's Sodomy Law Repeal 1981

Advocates

Gay and Lesbian Activists Alliance of Washington, DC
PO Box 75265
Washington, DC 20013-5265
202-667-5139
equal@glaa.org