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 18011
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 18095
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 18316
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 statute8
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 18559
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 later20
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 District24
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 law26
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 189429
included a reference to sodomy30
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 189837
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 code39
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 law45
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 194150
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 statute54
"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 District55
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 law58
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 report68
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 3˝ 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 States86
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 law201
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 arrests210
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
provision224 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
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
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
§22-1312.
