Journal of Criminal Law and Criminology Volume 55 Article 1 Issue 4 December

Winter 1964 Deviation and the Criminal Law Donald J. Cantor

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Recommended Citation Donald J. Cantor, Deviation and the Criminal Law, 55 J. Crim. L. Criminology & Police Sci. 441 (1964)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. The Journal of CRIMINAL LAW, CRIMINOLOGY, AND POLICE SCIENCE

VOL 55 DECEMBER 1964 NO. 4

DEVIATION AND THE CRIMINAL LAW

DONALD J. CANTOR

The author is a member of the Bar of the State of Connecticut. He is engaged in the practice of law in Hartford. A graduate of Harvard College and Harvard Law School, Mr. Cantor has previously contributed articles to both the Connecticut Bar Journaland the Journal of CriminalLaw, Criminology and Police Science. In September, 1962, he served as a delegate to the White House Conference on Narcotic and Drug Abuse. In the following article, Mr. Cantor examines the question, should American criminal law prohibit the private, consensual, homosexual acts of adults? What are the nature, extent, and curability of homosexuality? What do the current state criminal statutes provide regarding homosexual acts, and how effective have they been in the areas of deterrence, prevention, and rehabilitation? Finally, is there utilitarian justification for including in the ambit of criminal law the private, homosexual acts of consenting adults? Considering these and related questions, Mr. Cantor calls for action by the organized bar, religious groups, and the medical profession to aid in enlightening the public to the need for change in laws concerning homosexuality.-EDOR.

Variety is more than the spice of life; it is the Theories exist and have been advanced and refined law of life. Viewed scientifically, man may well be a through time. Its complexity was well captured by single species of life, but man viewed by his fellow Oswald Schwartz when he said that homosexuality man is infinitely varied. And from this fact of "is as intangible, elusive, indescribable as all real variety derive those problems of governance, re- emotional arch-phenomena are." 2 flected in law, to which each polity is heir, regard- But despite this lack of uniformly-accepted defi- less of its theoretical basis or its popular composi- nition, there has clearly been an evolution concern- tion. These problems will vary in importance as ing theories of the nature of homosexual relations. the polity has matured, for with polities as with Early theory dealt with homosexuality as an persons, no surer indication of maturity exists than anomaly, either arising due to some congenital the capacity to understand, appreciate, and co- quirk or due to a form of dissipation during life. To habit with difference. Symonds, a minority of homosexuals were actually Of the many types of difference which exist be- heterosexually disposed persons who turned to tween men, none is more basic than the sexual, "inversion" through an excess of debauchery, and few, if any, have aroused and do arouse the which tired them of normal pleasure, while the same degree of emotional reaction and social and majority were such through abnormal, inborn in- theological consideration. stincts.3 Kraft-Ebbing considered homosexuality This paper seeks to examine the present status to be a morbid predisposition, basically though of American criminal law with regard to but one only latently congenital, which tended to be acti- deviation from our legally prescribed code of vated by onanistic practices.4 The most romantic sexual behavior, i.e., indulgence in homosexual and probably the least credible theory was that of activities. More specifically, the purpose of this Ulrichs, who spoke of a female homosexual as one paper is to consider whether or not American law state of being in both males and females which results in should be so drawn as to exclude from its ambit a desire for sexual relations with one of similar sex. The the private, consensual, homosexual acts of adults. age of the actors, the frequency of desire and/or fulfill- ment, the co-existence of heterosexual desires, and other scientifically relevant factors are not here considered. HoMoSEXUALITY' As a matter of law, these factors are not, for the most Etiology part, deemed germane. 2 KRICH, Preface, TnE HomosExuALs 1 (1962). Precisely why persons seek and indulge in homo- 3 Symonds, A Problem in Modern Ethics, reprinted sexual relations seems to be essentially unknown. in CORY, HoMoSEXUAuTY, A CRoss CuLTURAL Ap- PROACH 9-10 (1956). I Homosexuality, as used herein, refers only to that 4Id. at 32-33. DONALD J. CANTOR [Vol. 55

possessed of a "male soul in a female body' '5 and activity" than it is to explain homosexuality." who defined the phenomenon as imperfect develop- They believe that the choice of erotic direction is ment of the sexual organs.6 A more recent form of conditioned by the effects of one's first experiences, the general view that homosexuality is derived generally accidental, and the subsequent failure of from congenital abnormality suggests that the cultural pressures to alter this direction. 3 Homo- answer lies in the hormonal composition of the sexuality is, to Kinsey, a capacity inherent in body, but this view has not achieved any mean- humans as a biological fact of life, and not in- ingful clinical substantiationY herent merely in some humans as a congenital The bulk of modern theories concerning homo- anomaly or present due to a failure to resolve sexual activity may be grouped together as "psy- infantile trauma. choanalytic." This school regards homosexuality as "The homosexual has been a significant part of arising out of emotional and mental conflicts en- human sexual activity ever since the dawn of countered during childhood. As Krich points out, history, primarily because it is an expression of 4 the resolution of the Oedipus complex is deemed capacities that are basic in the human animal." crucial,8 but precision as to causation is still lack- The layman can hardly choose between the ing, even among psychoanalysts, though all seem various theories adduced, especially in light of the to concur in the belief that the roots of homosexual great dissension which exists and the great lack of preference lie in childhood experience. Doctor definite knowledge which seems to exist. 5 To what Robertiello, for example, attributes the homo- extent, if at all, psychological maladjustment can sexuality of one of his patients primarily to guilt dictate sexual direction without some form of in- feelings resulting from rivalry with a mother and herent sexual propensity, or to what extent, if at sister which she sought to mask by professing a all, an innate homosexual proclivity can be de- love for other women, together with a belief that flected or altered by environment, are questions women were unclean and deformed in their genital for which no incontrovertible answers exist. But, and urinary structure.9 Dr. Bergler, an outspoken despite confusion over the definitions of the etiol- theorist in this field, has said: ogy of homosexuality, even the layman can ascer- "Homosexuality is neither a biologically deter- tain that homosexuality is a basic drive, a per- mined destiny, nor incomprehensible ill luck. It sonality trait, whether it be congenital or acquired, is an unfavorable unwonscious solution of a con- or possibly both, and that it exists, as a rule, quite flict that faces every child."' 1 (Emphasis in beyond the choice of those in whom it resides. original.) Freud, discussing a case of a female patient, Extent traces her homosexuality partially to Oedipal Homosexuality has been extensively practiced trauma, but is careful to specify that factors out- throughout the world and for as long as men have side this trauma had to be present and were de- recorded their doings. The Old Testament stipu- terminative of her sexual direction.n lates: Professor Kinsey and his fellow researchers com- "Thou shalt not lie with mankind as with 8 prise a field of opinion which differs markedly from womankind: it is abomination."' the theory adverted to above. Their feeling is that 12KINSEY, POMEROY, MARTIN & GEBRAP.D, SEXUAL it is harder to understand why "each and every BEHAVIOR IN THE HuMAN FEMALE 451 (1953). "3Id. at 447. individual is not involved in every type of sexual 1'KINSEY, POmEROY & MARTIN, SEXUAL BEHAVIOR IN THE HUMAN MALE 666 (1948). ' Carpenter, The Intermediate Sex, reprinted in "5For a lengthy list of theories re the causes of homo- GORY, op. cit. supra note 3, at 149. sexuality, see KINSEY et al., op. cit. supra note 12, at 6 Symonds, supra note 3, at 64, 65. 447-48. Though the materials referred to relate 7Kinsey, Criteria for a Hormonal Explanation of primarily to female homosexuality, most of the theories the Homosexual, 1 J. CUxicAL ENnoCRINOLOGY (1941), advanced have been applied to male homosexuality as reprinted in CORY, op. cit. supra note 3, at 370-83 well. Reference is also made to THE WOLFENDEN RE- (1956); MERCER, THEY NVAr. IN SHAnow 141, 143 PORT: REPORT or THE COMIITTEE ON HoMosExuAL (1959); KascH, op. cit. supra note 2, at 2. OFFENSES AND PROSTITUTION, recently published in ' ibid. the United States by Stein and Day, where the 9RoBERTiELLO, VOYAGE FROM LESBOS 250, 251 nature of homosexuality is examined at length. (1959). See also the various sources cited throughout this 10BERGLER, HOMOSEXU.LITY 27 (1956). article for a more detailed examination of theories con- " Freud, A Case of Homosexuality in a Wonzan, cerning the nature and causes of homosexuality. reprinted in Kircir, op. cit supra note 2, at 282. 16Leviticus 18:22. DEVIATION AND THE CRIMINAL LAW

And in the New Testament we find charges of Among the males who remain unmarried until 7 homosexual conduct. Writers investigating and the age of 35, almost exactly 50% have homo- chronicling the universality of homosexual prac- sexual experience between the beginning of tices are not rare and dearly establish that homo- adolescence and that age. Some of these persons sexuality, however caused, has been and may be have but a single experience, and some of them found in all places and during all eras.18 have much more in a lifetime of experience; but Despite studies and investigations, however all of them have at least some experience to the scientifically conducted, there is no way of ascer- point of orgasm." taining how many persons participate in homo- It is noteworthy that Kinsey takes especial pains to sexual acts during their lives. But exactitude, explain how the data supporting the percentages though of course desirable, may well be an un- mentioned above were tested and retested. His necessary luxury for our purposes, for enough is study lists twelve different ways in which the said known to indicate that homosexuality is exten- data were checked,4 with the conclusion being that sively practiced, and once this is known, it is "There can be no question that the actual inci- doubtful whether precise figures, even if known, dence of the homosexual is at least 37 and 50 could or should have any effect upon the role of percent as given above. The tests show that the the criminal law in this area. actual figures may be as much as 5% higher, or 24 Donald Webster Cory, writing subjectively still higher.' about homosexuality, refers to rather vaguely con- The percentages contained in the report on the structed estimates of the incidence of homosexu- female showed interesting differences. Whereas the ality ranging from one to ten percent of the popu- American white male shows an incidence rate of lation. But, he adds also that these estimates con- 37%, the rate of contact to the point of orgasm cern only exclusively "inverted" males and appear among females was 13%, and whereas homosexual conservative. 9 Without defining "homosexual" responses were noted in 50% of the males, the 25 precisely another source estimates one of every six figure was 28% in the females. American males to be homosexual.' 0 Others state In both studies, Kinsey refers to and cites other that one-third of all American males engage in at estimates of the incidence of homosexuality, some least one homosexual episode and that three per- lower, some higher than those of his research. In cent of American adult males are "practicing every case known to this writer where an estimate homosexuals.""' has been made, the result is that homosexuals are The study published by Professor Kinsey and thought to exist in very large numbers. True, the his associates is the most thorough and detailed percentage arrived at may be only one or two per- study existent on this subject. As to the American cent of the population, but when this is translated male, Kinsey said:2 into numbers of persons, it reaches the millions. "In these terms (of physical contact to the point Thus, whether one accepts Kinsey's figures, modi- of orgasm), the data in the present study indi- fies them, or rejects them, the fact still seems to be cate that at least 37% of the male population that when one speaks of homosexuals, one speaks has some homosexual experience between the of one of America's (and the world's) large minority beginning of adolescence and old age.... This groups. is more than one male in three of the persons that one may meet as he passes along a city street. Curability 17 Romans 1:26, 1:27. Can a homosexual be "cured"? This is a question 18 Westermarck, Homosexual Lore, reprinted in CORY, op. cit. supra note 3, at 101-27 (1956); MEacER, which could be posed only by one who believed THEY WAic 3w Snmuow 25-34 (1959); Licht, Male that homosexuality was in the nature of a disease. Homosexuality in Ancient Greece, reprinted in Cory, If homosexuality be, in truth, a capacity to re- op. cit. supra 267-348; KINsEY et al., op. cit. supra note 12, at 451-52; LEwlsoN, A HIsTORY OF SEXuAL spond to a particular form of stimulus which is CusTosiS 337-46 (1958); WESTWOOD, A MiNoRY 62- native to humans qua humans, then the question 65 (1960). 19 CORY, THE HosiosxxAL IN AmaxmscA 90 (1951). of "cure" becomes moot. But if, as the psycho- '0 SEAmRN, THE S=x MAN 16 (1961), quoting an analytic theorists maintain, homosexuality is a officer of the Mattachine Society. 21CAMIO & BRENNEi, SEXUAL BEHAVIOR: PSYCHO- 23 Id. at 626. 24 LEGAL AsPEcTs 102 (1961). 25Ibid. 22 Kinsey et a, op. cit. supra note 14, at 623. Kinsey et al., op. cit. supra note 12, at 474-75. DONALD J. CANTOR [Vol. 55 disease traceable to infantile trauma, then the treatment itself; if a homosexual is to be treated, question of "cure" becomes germane. he (or she) must be brought to a point where he Doctor Robertiello, in his work about the psy- desires and can satisfactorily perform heterosexual choanalysis of a female homosexual, claims that coitus. Realization by the patient of the supposed his treatment resulted in cure. He does, however, causes of his homosexuality cannot be assumed to perhaps inadvertently, qualify his claims by effect cure; effects must be gauged before treat- adding at the end: ment can be evaluated and, a fortiori, terminated. "Up to the point of publication-about two Consequently, it seems inescapable that effective years after the last reported session-Connie treatment for homosexuality-assuming such can has never once returned to homosexual ac- occur-must presuppose heterosexual relations tivity."2 6 during its course. In the vast majority of cases, Thus, the one fact which really seems to exist moreover, by the very nature of the condition, this relative to Connie's "cure" is that she has, to the intercourse must be illegal, as the patients will best of her psychiatrist's knowledge only, not seldom be married. Dr. Robertiello's Connie, for actually reindulged in homosexual activity for example, had several unlawful heterosexual con- 30 about two years. Despite the doctor's claims, this tacts prior to her discharge. history falls far short of proof that homosexuality This is not mentioned for the purpose of passing may be cured. a moral judgment on unlawful heterosexual con- Analysts themselves dispute the curability of tacts either in the course of treatment for homo- homosexuality. This is openly admitted by Bergler, sexuality or otherwise, but it is important when who himself believed that cures are possible.27 But one considers whether or not some method of en- of striking importance are the essential prerequi- forced therapy is a desirable addition to the sites of successful treatment laid down by Dr. criminal law as it affects homosexuals. Bergler: A cure for homosexuality, therefore, again "On the basis of the experience thus gathered, I assuming without conceding its possibility, is cer- make the positive statement that homosexuality tainly expensive, if not prohibitively so, is cer- has an excellent prognosis in psychiatric-psycho- tainly a lengthy process, presupposes the desire analytic treatment of one to two years' duration, for cure by the patient, and seems to require the with a minimum of three appointments each patient to violate the laws of heterosexual conduct week-provided the patient really wishes to if treatment is to have a chance for success. With change. '28 (Emphasis in original.) conditions such as these, obviously only a few per- Even, therefore, if curability be judged on terms sons could be expected to qualify. supplied by one of its most outspoken champions, it is clear that the homosexual must desire to be Acts cured, must have the time and means to afford it, of the various acts performed and must be fortunate enough to choose a psycho- Some examination analyst capable of treating homosexuality, for, by persons indulging in homosexuality is necessary of the laws which as we have seen, not all psychoanalysts believe as prologue to an examination apply to such acts. Without attempting to estimate that homosexuality is curable. use and eliminating all Other obstacles also exist. It is conceded by Dr. relative frequencies of Robertiello that his patient was under analysis in forms of sexuality known broadly as "petting," it may be said that homosexual persons will generally excess of four years, though she had not been regular in her appointments. 29 Costs of analysis seek to achieve orgasm in one or more of the follow- being what they are, how many persons could ing ways: 1) Oral-genital contact (applicable to both afford a minimum of 156 appointments for the males and females); not, after all, treatment of a condition that may 2) Anal intercourse (only male to male); actually be curable permanently? And what of the 3) Mutual masturbation of one by another 26 ROBERTELLO, VOYAGE FROm LESBOS 253 (1959). (applicable to males and females); 2 7 BERGLER, HOMsOSEXUAITY 195 (1962). 4) Interfemural or analogous means of simulat- 2 Id. at 176. On the unlikelihood of homosexuals ing vaginal intercourse (male to male usually; wanting to chan ;e, see CORY, TH-E HOMOSEXUAL IN AMERICA 187 (1951). 30 2 ROBERTILLO, VOYAGE FRom LESBOS 238 (1959). Id. at 243, 244. DEVIATION AND THE CRIMINAL LAW

may be female to female where penis substitutes that penetration by the male member into any are utilized). orifice of the human body other than the female Such acts as are outlined above are generally vagina constitutes the crime against nature." unlawful in the United States. In most cases, com- Some statutes have accomplished this by expressly mission thereof makes the actors guilty of a felony. defining the crime of sodomy as "carnal copulation with a beast, or in any opening of the body; except THE LAW" sexual parts, with another human being." (Em- Statutes and Penalties phasis added.) In practically every state, the wording of the statutes is so vague and sweeping Sodomy was defined by common law as the anal that any sexual practice save male-female vaginal penetration of a man by a man. Sexual connection intercourse could fit nicely under its interdictions. between man and beast, now incorporated as a The statutes generally apply to "whoever," rule in the same statutes which regulate conduct "any person," "every person," etc., and conse- between persons, was called "bestiality."-2 For quently would seem to apply equally to female the most part, however, present American statutes homosexuality and male homosexuality. In some defining the crime of sodomy have enlarged its states, however, the wording of the statutes ambit so as to include most acts of sexual con- restricts its pertinence to male homosexuality, 39 nection with the exception of vaginal intercourse. and in those states where heterosexual cunnilingus Homosexuality, in and of itself, is not unlawful has been held not to constitute "the crime against in any jurisdiction. Any attempt to make it so nature," presumably neither would homosexual would clearly seem unconstitutional.13 But the cunnilingus.40 acts of homosexuals in seeking orgasm are un- Since the sodomy statutes generally refer to lawful and fall, for the most part, under the "sodomy" statutes.- acts involving some form of sexual penetration, they do not usually cover masturbation mutually In every state, the statutes prohibit anal inter- effected or effected by one partner for the other. course; in Illinois, it is not unlawful unless force is However, two states label as sodomy the enticing, involved. In 23 states, the language makes it etc., of one under 21 to commit masturbation, plain that the practice of fellatio is unlawful." without specifying that masturbation has to be There seems little doubt that in the states where by the minor of himself,4' and Texas also has the statutes are not explicit as to fellation, the language in reference to minors which would seem general proscriptive language would be held to to make mutual masturbation or masturbation of include fellatio within its terms.3 6 It has been held the actor by a minor sodomy.4 31The "law" which this paper deals with includes The sodomy statutes condemn the proscribed only those statutes which, by their express terms, are meant to apply to homosexual acts intended to result acts as felonies and consequently provide for in orgasm. Those laws prefaced "lewd," "lascivious," or stringent maximum penalties. In seven states, it is "indecent," etc., are admittedly used for prosecutions possible to be sentenced to life imprisonment for in this area, but usually because of a sympathetic prosecutor or a deal with defense counsel. They are not committing an act of homosexual penetration.4 intended to outlaw these acts and are not, conse- quently, society's expressed legal view of these acts. 629 (1913); Comer v. State, 94 S.E. 314 (1917); Ter- 32 48 Am.JuR. 549-50. ritory v. Wilson, 26 Hawaii 360, 362 (1922); State v. 3Robinson v. California, 370 U.S. 660 (1962). This Stant, 65 Ore. 178, 132 Pac. 512 (1913); State v. Cyr, case held unconstitutional, under the cruel and unusual 135 Me. 513, 514, 198 AUt. 743 (1937); Ex park DeFord, punishment provisions of the Fourteenth Amendment, 168 Pac. 58, 60 (1917); Furstonburg v. State, 148 Texas a California statute which made the state of addiction to Crim. 638, 190 S.W.2d 362, 363 (1945). narcotics unlawful without proof of the commission of 31State v. Stant, 65 Ore. 178, 132 Pac. 512 (1913). unlawful acts. OH0mo REv. CODE ANm. §2905.44 (Baldwin 1958). "Other names used: Crime Against Nature, Un- See also NEB. REV. STAT. §28-919 (1956); IOWA CODE natural Crimes, Unnatural or Perverted Sexual Prac- §705.1 (1962). tices, Unnatural and Lascivious Acts, Buggery. "Connecticut, Georgia, Kentucky and South Caro- '1 New York, Alaska, Colorado, Louisiana, Mary- lina. Kinsey's researchers also excepted Wisconsin, land, Minnesota, Missouri, Nebraska, New Mexico, but Wis. STAT. §944.17 (1959) seems to cover cun- nilingus. North Dakota, Ohio, Oregon, Pennsylvania, Texas, 40 Utah, Vermont, Virginia, Washington, West Virginia, KiNsEy el al., SEXUAL BEHAVIOR IN THE HuMAN Wisconsin, Wyoming, Iowa, and Illinois (force re- FEmALE 484 n.36 (1953). 4 1 quired). See Appendix for citations to current state IND. STAT. ANN. §10-4221 (1956); Wyo. STAT. statutes. §6-984 2 (1957). 3G TEX. PENAL CODE, art. 524 (1948). State v. Attwater, 29 Idaho 107, 108, 157 Pac. 43 256 (1916); Glover v. State, 179 Ind. 459, 101 N.E. Missouri, Montana, Nevada, New Mexico, Idaho, DONALD J. CANTOR [Vol. 55

In 13 states, the maximum penalties are less termed "infamous." 4 In all of these 21 states, than life but at least 20 years imprisonment." In save only South Carolina, the offenses are further 22 states, the maximum penalties are between ten described as being a "crime against nature." In and 15 years imprisonment. 45 Of the eight states ten other states, the adjectives "infamous," remaining, six have maximum penalties of five "abominable," and "detestable" are omitted, but years.4 One of these six, South Carolina, provides the phrases "crime against nature" or "against the for a five year penalty upon conviction as a manda- order of nature" are utilized. 49 In three states, the tory period of imprisonment. Thus, though South statutes employ such adjectives as "unnatural," Carolina has one of the lesser maximum sentences, "abnormal," and "perverted" to characterize the in practice its law is one of the most stringent. prohibited acts.50 Only 16 of our 50 states are Delaware and Virginia have the lowest maximum possessed of statutes which simply define the penalties, i.e., three years, with a one year mini- offense and state the penalty therefor. Not even mum in Virginia. None of these statutes, except the crime of premeditated murder is described by New York and Illinois, varies punishment with the adjectives of censure; neither are other sexual presence or absence of force or fraud. crimes such as fornication, adultery, or rape. In fact, no other crimes are so described. Manifested Attitudes This singular attitude of moral censure is also The purpose of a criminal statute is to set forth evidenced by case reports. In an Ohio case which with all possible precision those acts or omissions did not directly concern charges of homosexual which the statute prohibits or commands, and to acts, the court nonetheless referred in dicta to state what the penalty shall be for failure to sexual relations between mature males as "sexual comply. Where statutes go beyond this, and perversion" and "unnatural commerce" and contain language which does not serve to define referred to those who indulged therein as "human the crime but rather to describe it in moral terms degenerates" and "sexual perverts." The par- ticular defendant was called "slimy," "bestial," one may justifiably pause to wonder why. ' In 14 states, the offenses contained in the and "lascivious."5 In North Carolina, the court sodomy statutes are referred to as "abominable" defined the scope of the state sodomy statute and in most instances as both "abominable" and thusly: ' "detestable. "4 In seven states, the offenses are "Our statute.., is broad enough to include ...all kindred acts of a bestial character where- California, and New York. In New York, however, this penalty may apply only where sodomy in the first by degraded and perverted sexual desires are degree occurs, i.e., where the act is imposed by force, sought to be gratified."- threat of force, or where the partner is not aware of Other cases which dealt with sodomy prosecu- what is transpiring. Where an act is consensual, but the partner is a minor, New York has sodomy in the tions-not necessarily homosexual in nature- second degree, which covers a maximum penalty of ten have caused such revulsion in the appellate courts years. Where "a person... carnally knows any male or female person by the anus or by or with the mouth that they have refrained from reciting the facts, under circumstances not amounting to sodomy in the calling the details either "nauseating"53 or "re- first degree or sodomy in the second degree," he is volting."' guilty of a misdemeanor. N.Y. PENAL LAW §690. A misdemeanor without specific penalty is punishable Perhaps the most indicative judicial language under section 1937 with one year, $500.00 fine, or both. "4Ohio (20), Minnesota (20), Nebraska (20), New Jersey (20), North Carolina (60), Hawaii (20 plus sachusetts, North Carolina, Wyoming, Missouri, Mis- $1,000 fine), Arkansas (21), Arizona (20), Massachu- sissippi, and Florida. setts (20), Rhode Island (20 with a minimum of 7), 4"Arizona, California, Colorado, Idaho, Nevada, Utah (20), Connecticut (30), and Florida (20). New Jersey, and Montana. "5Texas (15), Wyoming (10), Indiana (14), Mis- 41Alabama, Hawaii, Alaska, Georgia, Connecticut, sissippi (10), North Dakota (10), Alaska (10), Colorado Maine, Oregon, Tennessee, Louisiana, and Delaware. (14), Maryland (10), Tennessee (15, minimum of 5), 10Maryland (unnatural and perverted); Wisconsin Washington (10), West Virginia (10), Iowa (10), (abnormal); and New Hampshire (unnatural). Illinois (14), Oregon (15), Pennsylvania (10), South 51Barnett v. State, 104 Ohio St. 298, 135 N.E. 647, Dakota (10), Georgia (10), and Alabama (10). Illinois 649 (1922). does not prohibit acts which are consensual between 2 State v. Griffin 175 N.C. 767, 94 S.E. 678, 679 adults. See note 93, infra. (1917). 4"New Hampshire, Louisiana, Vermont, Kentucky, People v. Ramos, 125 Cal. App. 2d 383, 270 P.2d South Carolina, and Wisconsin. 540 (1954). 41 Indiana, South Carolina, Utah, South Dakota, , &ILuevanos v. State, 157 Tex. Crim. 623, 252 S.W.2d Rhode Island, Oklahoma, Michigan, Kansas, Mas- 119 (1952). DEVIATION AND THE CRIMINAL LAW

was that of the Maine Supreme Court when it adult homosexual sodomy with maximum penalties said: in excess of five years; in no state does the maxi- "The statute [sodomy] gives no definition of the mum penalty for adultery exceed five years. In crime but with due regard to the sentiments of fact, only five states have maximum penalties for decent humanity treats it as one not fit to be adultery equal to five years. 59 Whereas the maxi- named, leaving the record undefiled by the mum penalties for adult, consensual homosexual details of different acts which may constitute sodomy exceed three years' imprisonment in 46 the perversion." 55 states, in only six states can adultery be punished Even the texts editorialize with regard to by more than three years.60 Vermont is the only sodomy. In discussing the requisites for indict- state wherein the maximum penalty for adultery ments alleging sodomy, American Jurisprudence equals the maximum penalty for homosexual explains that courts have relaxed some of the acts. In every other state, the homosexual may be strict rules of pleading "because of its [the crime of more severely punished than the adulterer, and in sodomy] vile and degrading nature."5 6 most cases the difference is that of a serious felony compared to a common misdemeanor. Comparative Penalties As part of our effort to present the current law Heterosexual and Masturbatory Offenses relating to the crime of sodomy, in particular Evaluation of the sodomy statutes governing homosexual acts included therein, it is helpful to homosexual connection may be aided by briefly contrast and compare the statutory penalties for considering the other offenses these statutes sodomy with other crimes. This is in order to view proscribe. Though such other offenses bear no these penalties in perspective, to place them direct relation to homosexuality, nonetheless, properly in their social context so that, as a matter being incorporated within the same general of social policy, they may be evaluated. statutes, they indicate the thinking which pre- Since homosexual sodomy is a sexual offense dominates in the whole field of sexual deviation. which does not require force, fraud, or duress for Heterosexual contacts other than vaginal inter- its commission, and since it is a felony which course are major felonies. The same penalties requires sexual connection, the logical crime for apply as are prescribed for homosexual con- comparison is adultery. Before examining the nections. Heterosexual fellatio is the crime of penalties, it should be noted that the crime of sodomy; cunnilingus may or may not be depending adultery seems a far greater threat to domestic upon local interpretation. But many statutes, of tranquillity than does homosexual sodomy. It is more modem origin, are sufficiently definite as to also true that adultery poses the problems of include it. As pointed out above, a few statutes bastardy and spurious issue which, quite obviously, also pertain to masturbation. Moreover, there is do not exist with homosexual sodomy. authority for the proposition that a husband and Nonetheless, a survey of the 50 states with wife may, in private, without the element of force 61 regard to the crime of adultery shows without or duress, commit the "crime against nature." question that homosexual sodomy is viewed as a No state statute has language specifically limiting far more serious offense. Whereas some form of its application to unmarried persons. homosexual connection is criminal in every state, In many of our states conviction of various adultery is not a crime in five states." Whereas crimes identifies the defendant as a potential incarceration is possible for consensual, adult sexual psychopath and the said defendant must homosexual connection in every state but Illinois, thereupon be examined psychiatrically prior to only fines may be levied for a conviction for ($100 max.), West Virginia ($20 max.), and, of course, adultery in six states, making a total of 11 states those states listed in note 57. in which one committing adultery cannot be "Connecticut, Maine, Oklahoma, South Dakota, and Vermont. incarcerated.Y Forty-one states punish consensual, 60 The states listed in note 59 supra plus Michigan (4 years). North Carolina provides for a discretionary State v. Cyr, 135 Me. 513, 198 Al. 743 (1938). sentence for adultery, but deems same to be a mis- 5648 Am. Ju. 551. demeanor. Consequently it is supposed that penalties RKansas, Louisiana, Nevada, New Mexico, and for adultery in North Carolina would seldom, if ever, Tennessee. exceed one year. 68Arkansas ($100 max.), Kentucky ($50 max.), 61Hanselman v. People, 168 Ill. 172, 48 N.E. 304 Maryland ($10 max.), Texas ($1,000 max.), Virginia (1897). DONALD J. CANTOR [VCol. 55 sentencing. Conviction of heterosexual sodomy homosexual love is a manifestation of the love in any form is one of the crimes conviction for need and the sexual drive. In its purest sense, it is which invokes these sexual psychopath provisions. not, though like heterosexual "love" it may This is so despite Kinsey's findings as to the sometimes take the form of a casual dalliance, a incidence of fellatio and cunnilingus 2 and despite wholly optional experience. Those who speak of the fact that oral-genital activity is often recom- homosexual love and its drives make it very clear mended by authorities on marriage.64 that the force of the phenomenon is no less de- manding than is heterosexual love.66 This is THE EFFICAcY OF THE LAW obvious, upon reflection, when one considers the Before considering the propriety of the various fact that homosexuality has existed in all areas at above, it seems logical first to all times despite the harsh penalties meted out for statutes described 7 appraise their efficacy; for the efficacy of a law is homosexual acts. And certainly it is true that the one factor which bears upon its propriety. present penalties are harsh enough to be an It is generally agreed by modem criminologists effective deterrent if, indeed, effective deterrence is and social thinkers that a criminal law may be possible. Though it cannot be conclusively shown enacted for any one, or possibly a mixture of three that more homosexual activity would not occur purposes, i.e., to deter future offenses of the same were such not criminal, nonetheless the various nature by other persons by punishing the par- theories concerning the nature of homosexuality, ticular defendant, to prevent repetition of offenses together with the high incidence estimates, seem by the particular defendant by removing him from to indicate that very little activity, if any, is society, and to rehabilitate the particular de- deterred by threats of punishment. Moreover, fendant by making his incarceration in some the very intensely personal nature of such activity 65 manner therapeutic. implies that the drives must be also intense and even compulsive, thus not deterrible by the Deterrence remote, though severe, legal threat. To the extent Have the laws against homosexual sodomy that some may dabble casually in such activity, since the effectively deterred an appreciable number of the law may have a deterrent capacity, persons from committing the acts proscribed desire is, by definition, not a drive but a curiosity. thereby? Can they do so in the future? However, surely a small proportion of homosexual and The ultimate answer, of course, is nobody activity is attributable to such motivations, that such curiosity is not more knows. But several factors indicate that the who is to say answers to both questions are probably negative. attracted than deterred by the unlawful nature of In the first place, and, however incomprehensible the activity?8 the burden of this may be to many exclusive heterosexuals, As a matter of basic fairness, showing the law's capacity to effect deterrence 62 a full discussion See 29 TEMP. L.Q. 273 (1956) for should be placed upon those who would maintain of these sexual psychopath laws. 6 2 KINSEY e al., SEXUAL BEHAVIOR IN THE HUMAN such restrictions upon individual freedom of FEMALE 257-59 (1953). choice and who would inflict severe penalties upon 64HAIRE, ENCYCLOPEDIA OF SEXUAL KNOWLEDGE 189, 190 (1937). This work also cites VAN DEVELDE'S offenders. To this author's knowledge, no such IDEAL NIaAGE as a supporting view. See, too, claim has ever been competently put forth, though CAPRio & BRENNER, SEXUAL BEHAVIOR: PSYCHO- LEGAL ASPECTS, 68, 69 (1961). One source estimates one reputable critic has criticized Kinsey for not that 30 to 40 per cent of Americans perform mouth to showing that the law has not deterred homosexual genital practices. See ABRAHAMSON, WHO ARE THE 69 Gun.rTY? 299 (1952). activity. 6There is a school which believes that punishment may be proper as a form of social retribution or revenge. 66See VIDAL, TnE CITY AND THE PILLAR (1948). The writer feels that this is a discredited theory, border- This is a novel, but fiction is perhaps the best medium ing on the barbaric and unworthy of consideration. for realistically portraying emotions. Moreover, in a later section, we take up the matter of 6 See note 18 supra. Sodomy was a felony punish- the criminal law as an enforcer of morality, and this able by death at common law. 58 Cj. 788. discussion covers the theory of social revenge which, 6 Bergler, who believes homosexuality to be curable, basically, favors the utilization of criminal statutes for calls threats of imprisonment "futile" and suggests the purpose of mollifying moral outrage. For a very that homosexuals have "unconscious masochistic tend- learned discussion of retribution as a basis for law, see encies" which makes imprisonment "alluring." BERG- MICHAEL & WECHSLER, CRIMINAL LAW AND ITS AD- LER, HOMOSEXUALIrT 28 (1962). MINISTRATION 6-11 (1940). 6 Schwartz, 96 U. PA. L. REv. 914, 915-17 (1956). DEVIATION AND THE CRIMINAL LAW

Prevention SHOULD ADULT, CONSENSUAL OMOSEXUAL AcTs BE UMAwptL? The field of homosexual conduct admits of few facts. But one conclusion does seem to warrant The UtilitarianArguments the title of "fact," and that is that the law cannot Since it appears that homosexuality is universal, serve a preventive function with respect to homo- widespread, deeply motivated, and essentially not sexual conduct. The reason is far from subtle- curable under present conditions, and since it also you cannot prevent homosexual activities by appears that adult, consensual, homosexual acts insuring that homosexuals will be incarcerated are severely condemned and harshly punished, with persons of the same sex. As a matter of and also that the law is incapable of materially common logic, incarceration will promote rather stopping their practice, one must inevitably than discourage such conduct; for not only are question why our laws provide as they do. What is persons of similar sex forced to live together for there about the practice of homosexual acts that extended periods, but they also are denied any creates this animosity and occasions these laws? opportunity for heterosexual experience.70 Such How do homosexual acts threaten society? punishment has the triple effect of encouraging In preface, let it be dear that the homosexual homosexual activity between prisoners, heightening acts to be discussed are only those committed by the probability of increased homosexual activity consenting adults in private. There is no question upon release from confinement, and causing un- about the propriety of making criminal any type rest, discipline problems, fights, and even killings of sexual act which is imposed by one person upon between inmates battling over partners, resisting another through fraud or force, nor is it disputed advances, or having lovers' quarrels. Would we that sexual acts should, by their nature, be private 2 attempt to stop fornication by instituting hetero- and not introduced by adults to minors.7 By so sexual incarceration? defining the scope of the above inquiry, we have rendered immaterial the various attacks on homo- sexual practices based on their being corruptive of Rehabilitation youth, a type of assault, and a type of public That the law cannot perform a rehabilitative nuisance. No one known to this writer has ever claimed function with regard to persons convicted of that the various acts involved in homosexual homosexual offenses also hardly seems debatable. congress are physically harmful. Even those who Assuming arguendo the curability of homosexual- believe that homosexuality ranks as a disease ity, it still remains true that only a small per- would recognize that any debilitative psychological centage of persons can qualify as curable ac- effects thereof derive from the fact that the desire cording to the most optimistic observersY And in exists and not from the fulfillment of that desire order to qualify one must, at very least, have through specific acts. Cofisequently, if the com- consistent, personalized psychiatric attention. mission of homosexual acts has socially deleterious Our prisons do not and cannot provide enough of effects, it must be in relation to persons other than or against society in general. this attention to effect an important number of the actors themselves Persons indulging in homosexual acts, to the cures-again, one need hardly point out that extent that this defines their sexual activity, do placing one with homosexual drives-whether or not reproduce. This is readily conceded. But it is not the person is oriented bisexually-in a society not a crime to fail to reproduce or utterly to eschew composed solely of persons of similar sex is not attempting -to do so. Surely no one would urge likely to lead to heterosexual rehabilitation. that abstinence be deemed a felony. By what 70 See DONNELLY, GOLDsTEiN & SCHWARTZ, CIAin- reasoning, therefore, can this aspect of homo- 7 3 NAL LAW 164 (1962), wherein a portion of a letter from sexuality justify labeling acts thereof as criminal? an inmate in the Connecticut State Prison describes his sexual desperation and the tendency of inmates to 72The precise age to be used for "adults" is not a "satisfy... desires (sexual) with the only thing avail- point to be considered here, nor is the question of what able," i.e., other men. See also CARIo & BRENNER, is the proper crime and punishment to be applied to SExuAL BEA~vIoR: PSYCHo-LEGAL AsPEcTs 150-55 homosexual acts not in private, with minors, or induced (1961). through fraud or force. 1See the discussion supra as to the question of 73For a fuller discussion of this point, see CoRy, Tm homosexuality and its curability. HOMOsExuAL IN AmERIcA 33-34 (1951). Cory also ad- DONALD J. CANTOR [Vol. 55

It has been argued that society loses the use of moral revulsion,7 because they would signify a men (and women presumably) who succumb to love or sex object other than the legal mate. But if homosexual acts because these acts make them this provides a sound reason of social utility for nervous, secretive, and undependable. The answer punitive laws, logic requires that any such law be to this was well phrased by the Moral Welfare restricted to married persons who philander Council of the Church of England when it opined: homosexually and to those who philander with "In reality, however, these defects of character married persons, and that the law be no more are due not to homosexual practices, but to the severe than the adultery and fornication laws fears of punishment or of blackmail engendered which apply to married persons. That none of these 7 4 by the law. requirements is met by contemporary American The Council would have made a finer commentary law illustrates that the preservation of marriage is had it pointed out that many aspects of modern not even a contributing reason for existing statutes. life cause men to be nervous, secretive, and un- This argument is no more than a debater's point dependable, but this provides no basis for very transparently advanced by persons who criminality. Moreover, assuming arguendo that favor present law for wholly different reasons. these characteristics do exist in homosexuals or Point "3" is no more persuasive. Legalization of some of them, surely it is the fact that one has consensual acts in private by adults would leave homosexual desires which is the root cause of these the acts of pedophiliacs as criminal as they characteristics and not the fact that these desires presently are. Moreover, the Wolfenden Report are satisfied. Repressed desires occasion more states that information received from the Nether- nervousness than fulfilled ones. lands police indicates that legalization of con- Other arguments which have been advanced sensual adult acts has tended to deflect some are: (1) that homosexual behavior menaces the persons away from minors and towards adults. health of society; (2) that homosexual behavior This is quite simply because relations with the has a deleterious effect on family life; and (3) that latter are legal and with the former illega. 8 men who indulge in homosexual behavior may turn The Wolfenden Report considers another eventually to minor males. argument for the criminal outlawing of homosexual Point "1," in its fully developed form, is a acts. This argument is that to make homosexual theory of history which maintains that homo- acts lawful, even with restrictions, must "suggest sexual behavior causes demoralization and the to the average citizen a degree of toleration by the decay of civilization. It is, of course, a gross and Legislature of homosexual behavior and that such dearly irrational distortion of history, of which a change would 'open the flood gates' and result 7 9 the Wolfenden Report said simply: "We have in unbridled license. found no evidence to support this view."75 This argument treats as irrelevant the superior Point "2", as stated in the Wolfenden Report, question of whether or not there is a valid social is probably true.76 Homosexual acts by either reason in the first instance to make homosexual partner would obviously tend to jeopardize a acts unlawful, and it also suggests no reasons why marriage, even when the betrayed mate was able an increase thereof would itself be harmful. More- to view such conduct dispassionately and without over, such a view rests on the assumption that the present punitive laws are a great dam holding back a reservoir of potential homosexual acts which vances the argument that today, in many areas at least, will inundate society if the dam is punctured. birth control is the population need, not added pro- creation. There might be some point to this assumption if 74 DONNELLY, GOLDSTEIN & ScHwARTz, CIpMINAL homosexual acts were to any important measure LAw, 143 (1962). Reprinted from Interim Report, The casual, but very dearly they are not. Persons so Problem of Homosexuality by a group of Anglican clergy and doctors. believing greatly exaggerate the effect of these laws 7 REPORT OF THE COmaTTEE ON HoMosEXUAL as a deterrent and just as greatly misunderstand OFFENSES AND PROSTITUTION PRESENTED TO PARUA- IENT BY THE SECRETARY OF STATE FOR THE Hoim 77 Homosexual conduct has been held to be such DEPARTmENT AND THE SECRETARY OF STATE FOR ScoT- cruelty as to warrant divorce. H.V.H., 59 N.J. Super. LAND I3Y ComAm oF HER MAJESTY, Sept. 1957. 227, 236-37, 157 A.2d 721, 726-27 (1959). (Cmmd. 247) (The Wolfenden Report). Reprinted in 78 THE WOLFENDEN REPORT, reprinted in part in part in DONNEzLx, GOLDSTEIN & SCHwARTz, CRgmnNA. DoNNELLY, GOLDSTEIN & SCHWARTZ, CuIHINAL LAW LAw 192 (1962). 193 (1962). 76 Id. at 192-93. 79 Ibid. DEVIATION AND THE CRIMINAL LAW

the nature of the urges which produce homosexual Morality and the Sodomy Laws acts. Once again, to quote the Wolfenden Report: When one considers the lack of socially harmful "It is highly improbable that the man to whom results occasioned by the consensual, adult homo- homosexual behavior is repugnant would find sexual act and, at the same time, bears in mind the it any less repugnant because the law permitted severe penalties provided therefor and the 80 great it in certain circumstances." sense of revulsion which greets such acts by The sad fact seems to be that punitive laws in laymen, judges, and legislators alike, one realizes this area, rather than serving a socially utilitarian that the statutes involved embody moral precepts. end, have the opposite effect. The Moral Welfare Consequently, the proscribed acts are condemned Council of The Church of England has reported not because they have socially harmful effects by that present laws have caused charged men to objective measurement, but because the acts are commit suicide and that they have created an deemed wrong and sinful as a matter of theology.8' opportunity for blackmail by unscrupulous Grasp of this simple truth equips one to under- persons, especially male prostitutes. The Council stand the severity of the applicable statutes as further suggests that older homosexual men have well as the emotional language of decisions and seduced boys out of fear of being blackmailed by observers. older male partners, with the ironic result that the Whether or not it can ever be proper for the law endangers the very young it purports to criminal law to embody moral ideas for their own protect. The Council speaks of the practice of sake is not our question. Whether or not it is proper for the American criminal law to do so is using police "agents provocateurs" to catch offend- precisely the question. And this question must be ers, with the correlative danger of police cor- answered with a definite "no." It must be so ruption, and it further mentions the fact that because the preservation of the liberty and freedom present laws create in homosexuals "an aggrieved of choice of its citizens is the primary role of the and self-conscious minority which becomes the American polity. One aspect of the American centre for dissatisfaction and ferment." No one message is that freedom may be circumscribed can gauge the true extent to which such a "sense only where the interests of society so require, of persecution" can affect individuals and society where the freedom of one will or may work to the adversely," but that such a sense of persecution injury of others. Even here, we circumscribe has deleterious effects is nonetheless a fact. reluctantly and only when the injury appears sufficiently immediate and grave. In this, we are Yet other socially harmful aspects of present the embodiment of the theories of John Stuart law exist. These laws are ineffectual to reduce the Mill.85 Where freedom is restricted and no social incidence of homosexual acts appreciably, and good is thereby advanced, the result is tyranny. they are enforced inequitably. They are, for For tyranny consists of the imposition of rules of example, hardly ever enforced against females conduct, and it exists wherever one man's or one committing homosexual acts,8 and they generally group's moral ideas are forced upon the whole affect only the poor and desperate who publicly society. That the ideas may be held by a majority, seek mates. A law which, like the Volstead Act, however numerous, does not make the result less cannot be effective simply brings disrepute to law tyrannical. Critics may argue that this brief itself, and where it cannot be enforced, as where summary of the sense of American law and the private, adult, consensual acts are involved, it sense of America itself is subject to a thousand exceptions. But this matters little, for it is becomes ridiculous.P against 0 84 Many sources exist which deal with the attitudes 8 Id. at 194. of our predominant religions towards homosexual acts. 81Group of Anglican Clergy and Doctors, Interim See, for example, KINsEY, et al., SEXUAL BEHAVIOR IN Report, The Problem of Homosewualiy, reprinted in part THE HumN FxaAr 481-83 (1953). As is illustrated in DoNNELL-z, GoimsTEiN & ScHwARTz, Cnm'NAL by notes 16 and 17, acts of homosexuality were con- LAw 142-43 (1962). demned in both New and Old Testaments. See also 2Knssv el al., SEXUAL BEHAVIOR IN THE H N further references to biblical attitudes in K-mSEy et al., FEmALE. 484 (1953). supra. "See Letter from Rev. John R. Connery, S.J., Pro- 8"The only purpose for which power can rightfully fessor of Moral Theology to Joseph Goldstein, re- be exercised over any member of a civilized community printed in part in DoNmLLY, GorTs I & SCHWARTZ, against his will is to prevent harm to others." JOHN CRImKWL LAW 140 (1962). STUART MLL, ON LIBERTY, ch. 1. DONALD J. CANTOR [Vol. 55 the ideal that practice must be measured. And, in been mentioned." Most impressive is the Model measuring the liberty of our American citizen to Penal Code, prepared by the American Law Insti- choose his mode of sexual release, America is found tute, article 213 of which provides that private wanting. For here our statutes enforce a religious sexual relations (homosexual or heterosexual) shall tenet in prohibiting homosexual acts,86 and they be criminal only where children are victimized, do so without, at the same time, serving a utili- coercion is involved, or other "serious imposition tarian end. is practiced."9 This basic principle has been It is pleasing to note that more and more voices implemented in one American jurisdiction as of are being raised against governmental imposition Jan. 1, 1962, namely Illinois, where a series of of morals in this area. The Wolfenden Report criminal law reforms were passed in 1961. One stated its conclusion thusly: result was the enactment of sections 11-2 and "We accordingly recommend that homosexual 11-3 of the Criminal Code, which provide that behavior between consenting adults in private sexually deviate behavior is punishable where should no longer be a criminal offense."'' force or the threat thereof is involved. Subsequent Although homosexual acts are still sinful in sections cover cases where minors are involved. Catholic theory, yet there are Catholic clerics who The acts of consenting adults committed in have taken the position that sin is private, between private are no longer criminal, be the "deviation" man and God, not man and government. The homosexual or heterosexual. New York has to seven Catholic clergymen and laymen who sub- some measure adopted this idea by making con- mitted a report to the Wolfenden Committee sensual, adult acts only misdemeanors.Y stated, inter alia: "It is not the business of the state to intervene SUMMJARY in the purely private sphere but to act solely The desire to achieve sexual gratification through as the defender of the common good. Morally homosexual acts is indicative of a basic personality evil things, so far as they do not affect the trait, whether the actors have accompanying common good, are not the concern of the human heterosexual desires or not, and regardless of legislator. what theory be believed as to the nature and "Sin, as such, is not the concern of the State but origin of homosexual desires. Such desires and the affects the relations between the soul and God. commission of acts for their gratification have "Attempts by the State to enlarge its authority existed throughout history, in all peoples, in all and invade the individual conscience, however places, and in numbers which, though not subject high minded, always fail and frequently do to precise determination, still indicate that a positive harm."", sizable minority of any given society share them The British Roman Catholic Advisory Committee to some extent during some period of their lives. on Prostitution and Homosexual Offences and the For the most part, these desires, as a matter of Existing Law recommended that "the criminal practicality, are not subject to cure, even if one law be amended so as to exclude consensual acts assumes, a priori, their curability as a matter of 8 9 done in private by adult males." Other eloquent theory. In every American state, excepting voices have been raised in England, including that Illinois-and to a lesser extent New York-, 90 of Professor H. A. A. Hart, urging that the en- adult, private, consensual, homosexual acts are forcement of morals as morals is not properly a unlawful and subject to very severe maximum governmental function. penalties. These statutes and other sources utilize Fortunately, men of stature in this country are language in referring to these acts which indicate also becoming heard. Judge Murtagh has already 86 91See note 88 supra. Itis the writer's belief that the American sodomy 0 Schwartz, The Model Penal Code: An Invitation to laws are violative of the 1st Amendment to the Consti- Law Reform, 49 A.B.A.J. 452 (1963). tution. No cases so hold, however. 93 ILL. REv. STAT. ch. 38, §11-2 (1963): "Deviate 87THrE Wo xNEN REPORT, reprinted in part in Sexual Conduct" is "any act of sexual gratification DONNELLY, GoLnsEIN & ScitwARTz, CRIMINAL LAW involving the sex organs of one person and the mouth 194 (1962). 9, or anus of another." §11-3: "Any person of the age of As quoted in Murtagh, The Principle of Privacy, 14 years and upwards who, by force or threat of force, Saturday Review, May 4, 1963, p. 31. compels any other person to perform or submit to any 89See the Report of this Committee reprinted in part act of deviate sexual conduct commits deviate sexual in DONIZELLY, GOLDSTEIN & SCIIVARTZ, CRIMnNAL assault." The penalty is from one to 14 years imprison- LAW 142 (1962). ment. Subsequent sections apply specifically to, inter 11HART, LAW, LIBERTY AND MoRALITY (1963); see alia, the performance of deviate sexual acts with minors. also RoBERTs, FORBIDDEN FREEDOM (1960). As to New York, see note 43 supra. DEVIATION AND THE CRIMINAL LAW a deep moral revulsion, a revulsion which explains APPENDIX the sharp disparity between the penalties meted AiA. CODE tit. 14, §106 (1958). out for such acts and those provided for other ALASKA STAT. §11.40.120 (1962). acts, such as adulterous ones, which clearly pose Arz. REv. STAT. ANN. §§13-651, 13-652 (1956). a greater threat to social stability. Moreover, ARx. STAT. ANN. §41-813 (Supp. 1963). these statutes also go so far as to cover hetero- CAL. PEN. CODE §286. sexual acts, even between husband and wife, COLo. REv. STAT. ANN. §40-2-31 (1953). deemed to be contrary to nature. The laws are CoNe. GEN. STAT. REv. §53-216 (1958). ineffective, serving neither a deterrent, preventive, DEL. CODE ANN. tit. 11, §831 (1953). nor rehabilitative function. No argument in favor FLA. STAT. §§800.01, 800.02 (1961). of these statutes, based on social utility, has GA. CODE ANN. §§26-5901, 26-5902 (1953). substance enough to condone the harsh penalties. HAwAIn R v. LAWS §309-34 (1955). In fact, these statutes represent the enforcement of IDTO CODE ANN. §18-6605 (1948). a code of morals for their own sake, a grave misuse ILL. REv. STAT. ch. 38, §§11-2, 11-3, 11-4 (1963). of American criminal law. Learned and powerful IND. ANN. STAT. §10-4221 (1956). voices, clerical and lay, both here and in England, IOWA CODE §705.1 (1962). have been and are being heard for the adoption of KAN. GEN. STAT. ANN. §21-907 (1949). laws which recognize that morals and their in- Ky. REv. STAT. §436.050 (1962). culcation are not the province of the state, and LA. REv. STAT. ANN. §14:89 (1951), §14:89.1 that, accordingly, consensual acts of adults in (Supp. 1963). private are beyond the proper scope of the criminal REv. ANN. ch. 134, §3 (1954). 94 ME. STAT. law. MD. ANN. CODE art. 27, §554 (1957). In order for these present laws to be altered, at MASS. ANN. LAWS ch. 272, §34 (1956). least the following steps must be taken: MicH. STAT. ANN. §§28.355, 28.356 (1962). (1) The organized bar must speak up for the MniN. STAT. ANN. §617.14 (1964). enactment of laws which are designed to serve a Miss. CODE ANN. §2413 (1956). valid social purpose, and not simply to impose Mo. REv. STAT. §563.230 (1959). moral concepts which are not pioperly the concern MoNr. REv. CODES ANN. §94-4118 (1947). of the state and are necessarily ineffectual. NEB. REv. STAT. §28-919 (1956). (2) The churches and synagogues must support NEv. REv. STAT. §201.190 (Supp. 1963). this endeavor by stating clearly that acts of a N.H. REv. STAT. ANN. §579:9 (1955). homosexual nature pose moral questions within N.J. STAT. ANN. §§2A:143-1, 2A:143-2 (1953). the province of ethics and religion, not the law, N.M. STAT. ANN. §§40A-9-6, 40A-9-7 (1964). and uphold the proposition that opposition thereto N.Y. PEN. LAW §690. must come from private beliefs, not public legis- N.C. GEN. STAT. §14-177 (1953). lation. N.D. CENr. CODE §12-22-07 (1960). (3) The medical profession must discuss and OmIo R v. CODE ANN. §2905.44 (Baldwin 1958). define the nature of homosexuality and, by extricat- OKLA. STAT. tit. 21, §886 (1961). ing it from ignorance, seek to induce public compre- ORE. REv. STAT. §167.040 (Supp. 1963). hension of it as a phenomenon of life-perhaps, if PA. STAT. ANN. tit. 18, §4501 (1963). Kinsey is correct, something potentially innate in R.I. GEN. LAWS ANN. §11-10-1 (1956). all creatures. S.C. CODE §16-412 (1962). Until those who have this responsibility exercise S.D. CODE §13.1716 (1939). it, the electorate will remain in its present state of TENN. CODE ANN. §39-707 (1955). mass ignorance as to homosexual acts, and, conse- TEx. PEN. CODE art. 524 (1948). quently, few legislatures will be able to pass corrective measures. UTAH CODE ANN. §76-53-22 (1953). VT. STAT. ANN. tit. 13, §2603 (1959). 14 It has been suggested that a reason for punishment of sex offenders is the conscious or unconscious fear in VA. CODE ANm. §18-1-212 (1960). the rest of us that we might do what the sex offender WAs H. REv. CODE ANN. §9.79.100 (1961). has done. See WEiHOFEN, THE URGE To PUNISH 28 (1957). It should also be noted that in many countries W. VA. CODE ANN. §6068 (1961). adult, consensual homosexual acts in private are al- Wis. STAT. ANN. §944.17 (1958). ready lawful. See CARI'o & BRENNER, SEXuAL BE- Hvion: Psycno-LEGAL AsPecrs 165-71 (1961). Wyo. STAT. ANN. §6-98 (1957).