Sexual Anomalies and the Law

The Catholic Lawyer Volume 9 Number 1 Volume 9, Winter 1963, Number 1 Article 3 Sexual Anomalies and the Law John R. Cavanagh Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons, Criminal Law Commons, and the Sexuality and the Law Commons This Symposium Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. SEXUAL ANOMALIES AND THE LAW JOHN R. CAVANAGH* S TATISTICS CONCERNING the incidence of sexual offenses in the United States are difficult to find. The Federal Bureau of Investigation re- ports that in 1961 there were 7,143 arrests for forcible rape and 46,204 arrests for other sexual offenses including statutory rape. An interesting feature of these figures is that when the 46,204 arrests are broken down by race, 29,680 of the offenders were white and only 11,006 were negro. This is important because of the popular belief that most sexual offenders are negro.1 The laws of the individual states in regard to sexual offenses vary widely. This makes it difficult to summarize what is known concerning such offenses. There is also little agreement among medical men who write on this subject. This is to some extent understandable because the problem is not the offense but the offender. It is with the person who committed the offense. Since no two individuals are alike, it is important to realize that when one speaks of a sexual offense, he is not describ- ing a definite entity but is speaking of a person who has committed a sexual crime. An exhibitionist, for example, is a person and his sexual disturbance will be conditioned by his basic personality. As one reads through the voluminous literature on the subject of sex and the law, there are many areas which immediately attract attention: 1) Much of the terminology of the law is out-dated and confusing. This may lead to misunderstanding. 2) The laws as they are written do not seem to recognize that sexual crimes may be committed by individuals who are not sexual perverts. * B.S., M.D., Georgetown University. Lecturer in Psychiatry and Pastoral Medicine at Catholic University; Associate Clinical Professor of Medicine at Georgetown University Medical School. 1 FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE UNITED STATES (1961). These arrests were in 2,776 cities of over 2,500 citizens with a total population of 85,158,360. SEXUAL ANOMALIES 3) There seems to be little recognition for an offense whose penalty might other- that conditions such as pyromania, klepto- wise be a few days in jail. The editors' of mania, and similar conditions may be based The Mentally Disabled and the Law look on sexual pathology. at the problem in this way: 4) The courts tend to deal primarily The reforms that have swept our penal with the sexual offense although this may institutions from the eighteenth to the be, and frequently is, only a surface mani- twentieth century have left mental institu- festation of a more deep-seated disorder. tions substantially untouched. Physical restraints have departed from the prison These four points represent only a few but are still standard equipment in many of the problems with which a psychiatrist is mental institutions. The overcrowded con- confronted when he looks at sexual anom- ditions alleviated in prisons have remained alies vis- -vis the law. to plague the mental institutions. There is Another disturbing element that becomes doubt about the legality of sterilizing criminals, but sterilization, lobotomy, and apparent as one reviews the literature is electric shock treatment are permissible that many of the sex laws seem to have for sexual psychopaths. Substantial con- been promulgated in anger in response to stitutional questions can be raised about a public demand which has been aroused the right of a criminal court to expose a by some particularly flagrant sexual crime. defendant to the possibility of sterilization, Many laws appear to have been written lobotomy, and electric shock treatment.- hurriedly. As a consequence, the full impli- One can hardly agree that our mental cation of the statute was not realized. The hospitals have not improved in the last two penalties imposed by such laws vary widely, centuries. Even to one who is not a lawyer, some of the penalties being overly severe however, the constitutional question which while others send too many offenders to is raised sounds logical. mental hospitals. Judges and legislators More study needs to be devoted to the often decide who should be sent to mental sexual offender in academic circles so that hospitals without consulting psychiatrists more reasonable laws may be written. Pub- who might be considered more likely to lic indignation and public guilt should not understand the value and limitations of play any part in the writing of laws dealing such a procedure. As a matter of fact, the with sexual offenses. As Bowman stated: mere commitment of an individual to a Exhibitionists and peeping Toms are mental hospital may serve little purpose. looked upon as terrible sex criminals. Yet many of those upset at such types of be- Many psychiatrists feel that there are no havior will go to night clubs to see nude available technics for the treatment of the women dancing in suggestive fashion. These sexual offender. Even if such technics were same persons become indignant, however, available there would not be enough psychi- if some individual is caught peeping through a window while a girl is undress- atrists, in most instances, to apply them. 3 Many sexual offenders are sent to the hos- ing. pital "to remain until cured." This, in spite In addition to emotional attitudes on the of the fact, that there are no criteria of part of the public and the courts, ignorance cure. It is conceivable that under such laws 2 LINDMAN & MCINTYRE, THE MENTALLY Dis- the relatively harmless voyeur or exhibi- ABLED AND THE LAW 310 (1961). tionist could remain in the hospital for life 3DAVIDSON, FORENSIC PSYCHIATRY 109 (1952). 9 CATHOLIC LAWYER, WINTER 1963 plays a part in the enactment of some of olics because their position on such ques- the sex statutes. For example, the frequen- tions is often requested. We are asked cies of coitus have been the subject of re- whether we as Catholics can accept the view in some recent divorce cases. The recommendations on the report. The brief- judges were called upon to consider the est and most authoritative statement on this reasonableness of the coital frequencies subject was published by the Archbishop which the husband had demanded. In of London in the December 2, 1957 issue such cases, nearly daily coitus has been of the Westminster Cathedral Chronicle. ruled to be unreasonable and cruel and suf- The statement is as follows: ficient grounds for securing a divorce. This In view of the Inquiries which have is an example of the law's failure to allow reached Archbishop's House following the for the fact that such apparently high rates publication of the report of the House of coitus are maintained by a not inconsid- Office Departmental Committee on Pros- erable portion of the population.4 titution and Homosexuality, His Grace the Surprisingly few persons, including at- Archbishop of Westminster has thought it useful to set forth the following princi- torneys, are aware that the "crimes against ples which should be borne in mind when nature" statutes can be extended to include consideration is given to the proposals re- married partners. The penalties for such garding homosexual acts between consent- acts may in some jurisdictions be exceeded ing adults: only by the penalties for murder, kidnap- The civil law takes cognizance primarily of public ping and rape. There are court decisions acts. Private acts as such are outside its scope. on the applicability of these sodomy stat- However, there are certain private acts utes, one of which goes so far as to uphold which have public consequences in so far the conviction of a man of soliciting his as they affect the common good. These wife to commit sodomy.5 acts may rightly be subject to civil law. It may be, however, that the civil law cannot effectively The Wolfenden Report-A Catholic control such acts without doing more harm to the common good Viewpoint than the acts themselves would be. In that This is the name given to a proposal in case it may be necessary in the interests of the common good to Great Britain which recommended, in ef- tolerate without approving such acts. fect, that the law should make no effort to It has, for example, invariably been found interfere in the purely private relations of that adultery or fornication (which, how- adult homosexuals, male or female, where ever private, have clear public conse- the element of seduction or duress is ab- quences) cannot effectively be controlled sent.", While this report has failed of adop- by civil law without provoking greater evils. tion, the issue raised is of interest to Cath- Applying these principles to the question 4 KINSEY, POMEROY, MARTIN & GEBHARD, SEX- of homosexual acts between consenting UAL BEHAVIOR IN THE HUMAN FEMALE 369 males: (1953). 1. As regards the moral law, Catholic 5 Id. at 370. moral teaching is: OBERG & ALLEN, THE PROBLEMS OF HoMo- SEXUALITY (1958). This book has a complete a.

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