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I gather from having looked at the statements that there may not be total agreement on that panel, so however you will want to work it. I would think it would help the committee, with Mr. Lee and Dr. Kameny, let them go first. You are aware of our time constraints.

Each witness is entitled to 5 minutes but no more; each panelist no more than 5 minutes by comment or question. We would hope you could maintain those time limits.

STATEMENT OF MAYO LEE, PRESIDENT, GAY ACTIVISTS ALLIANCE OF WASHINGTON, D.C., AND THOMAS DePRIEST, COUNSEL

Mr. LEE. My name is Mayo Lee and I am president of the Gay Activists Alliance here in Washington. Also with me today is Thomas De Priest, one of our counsel.

GAA congratulates the District of Columbia Law Revision Commission for the rationality and logical consistency of its proposed revisions of the District of Columbia Criminal Code. Unfortunately, criminal codes have historically lacked a rational and consistent scheme for the determination if proscribed behavior. All too often, criminal acts were merely those acts which a legislative majority viewed with alarm, regardless of the irrationality of or inconsistency of that alarm. The removal of an anachronistic world view from the present criminal code insures increased support for our criminal statutes by those who have experienced irrationality and inconsistency of the present code.

SUPPORTS LRC PROPOSALS

GAA particularly supports the Commission's recommendations in chapter 6, regarding sex offenses. This subject is perhaps the most sensitive in the criminal code. The proposed revisions, correctly we think, treat sex offenses unemotionally from a stance of moral neutrality.

The historical common law terminology, laid with emotional and moralistic connotations, has been replaced with a scheme of classification that carefully details in nonlegal terms exactly what sexual behavior is proscribed.

Chapter 6 reaches only those acts where one party either has not consented to the sexual behavior at issue, or else cannot consent to the behavior, for one reason or another. The proposed code protects people rather than attempting to impose on society a particular set of moral values.

The revised chapter 6 recognizes that the legal system of our local government should not monitor sexual behavior between two consenting adults, regardless of their marital status, their affectional preferences, or the nature of their sexual activities.

Given this stance of moral neutrality, these proposals nevertheless take into account society's concern for the physical and psychological well-being of the young, the mentally or physically incapacitated, the inmates of its prisons, and the patients in its hospitals.

Chapter 6 protects all of these from the sexual misbehavior of those in positions of control for all citizens.

By eliminating reference to gender, chapter 6 proposes increased protection, for all citizens from the most serious form of sexual mis

behavior as set forth in section 22–601. Since a forceful act of sexual penetration can be committed by a member of either sex on a member of either sex, this section correctly contains no gender-identifying references.

None of the proscribed sexual behaviors is defined in gender-identifying terms. These proposals protect all citizens from undesired sexual

contacts.

However, one gender-identifying term does appear in the definition of "spouse," as defined in the spousal defense set forth in section 22-610 (b) (3). The definition refers to "husband and wife, regardless of the legal status of their relationship."

The qualifying phrase indicates the intent of the Commission to reach beyond the limits of a legally recognized marriage, but the insertion of the words "or mates" after "wife" would further clarify that intention.

Gay men and women would like this clarification in order to insure the applicability of the defense to pay couples and to remove the last vestage of discrimination against them from the new Chapter 6.

One additional clarification seems to be required. Section 22-607 proscribes certain sexual behavior with inmates or patients by those in positions of control over them. I think the language seems unclear. I think you should reread it to make sure the section says exactly what you want it to say.

I will conclude now. Thank you, very much, for this opportunity for allowing me to speak.

Mr. MAZZOLI. Thank you very much. Dr. Kameny?

STATEMENT OF DR. FRANKLIN E. KAMENY

Dr. KAMENY. My name is Dr. Franklin E. Kameny. I am pleased to have this opportunity to testify on this carefully drafted, superb proposal by the District of Columbia Law Revision Commission. I testify here as a private citizen of the District of Columbia on this proposed code as a whole.

I testify as one who has particular expertise. I have knowledge in the areas of laws relating to sexual offenses, although, with all due respect to my fellow panelists, only one-quarter of my testimony will deal with that particular area.

The body of law contained in the Commission's proposal is a very large one, with far too much in it deserving of consideration, suggestions, or mere comment, for adequate treatment in the very few minutes alloted to me today. Therefore, I will comment only on four particular points, each more briefly than I would like to be able to do.

SEXUAL ASSAULTS

First, chapter 6 on "Sexual Assaults," I comment here on the assumption, substantiated by informal communications with the Commission, that chapter 6 will ultimately represent the main body of the District's law offenses, except for a few collateral or lesser residual areas such as prostitution and some disorderly conduct type offenses. The Commission's proposal is an excellent one, fully consistent with the developing philosophy and trend of criminal law on this subject in this country. I urge its enactment.

The second minor suggestion has been already suggested by Mr. Lee. Second, it is hoped that the proposed new criminal code will be in effect for many years to come, before it becomes outdated.

FINES ESCALATED

However, there is one aspect of the code which will become outdated in an extremely short period of time, unless steps are taken to avoid that. That aspect has to do with all of the monetary amounts set out in the code.

These are found in such places as sections on page 24 on "Criminal Tampering," 22-771 and 712; on page 29 on "Theft," 22-902 (f) (1) (a), (2) (A), (3), and (4); on pages 30 and 31 on "Fraud," 22-905 (c) (1) and (2); on page 35 on "Forgery," 22-1001 (c) (1) (G) and (2) (D); plus the separate proposal on "Sentencing," subchapter C, section 22-2015, on "Fines," and perhaps other places.

Through centuries and millenia of history, inflation has been a steady, largely monetonic process, with rare and only transitory remissions. The value of money keeps on going down and is likely to continue to do so, if at varying rates from time to time. We are living in a period of particularly and persistently high inflation. At what is nowadays considered a conservative rate of 5 percent annually over the preceding year, prices will have doubled and the true value of monetary sums will have halved in less than 15 years. Thus, all of the Commission's careful work in weighing considerations of grading and sentencing will be largely meaningless within a mere decade, insofar as those considerations involve monetary sums.

I would suggest that there be a statutory provision written into the law for semiautomatic self-activating amendment or revision of all monetary sums found in this criminal code, on the basis of the Consumer Price Index issued on the 20th of each month by the U.S. Bureau of Labor Statistics, in a manner somewhat similar in concept to the usage of this same index in so-called escalator clauses for wages in labor contracts.

I would urge such carefully drawn escalator statutes would be a practical problem for solving a very real problem which left unsolved will quickly render important portions of our new criminal code absolutely almost before the signature of the Executive has dried on it.

CRIMINAL CONSPIRACY

Third, with respect to "Criminal Conspiracy," section 22-203, I am much concerned that the proposed section of the code, as written, and I have quoted it in my written testimony, would in fact make criminal arrangements undertaken by the citizens of the District of Columbia to engage in conduct fully lawful where they intend to engage in it, although perhaps unlawful here.

As examples, it would make it criminal for a group or a District of Columbia travel agency to plan an excursion to visit gambling casinos in Atlantic City or Las Vegas, Nev., where those are lawful because gambling is unlawful in Washington or for a group of District of Columbia businessmen to propose gambling places lawfully in those places.

It would even make it unlawful, as I read it, for a group of 18- to 21-year-olds to plan to travel together to New York City where drinking of liquor is lawful for people of that age because drinking is unlawful for 18- to 21-year-olds in the District of Columbia.

At least this provision seems unclear in its working. I would suggest that it be very carefully reconsidered and perhaps deleted.

CRIMINAL ATTEMPT

Fourth, and lastly, I am concerned that in the case of a completed crime, the proposed statute on criminal attempt does not explicitly rule out a double conviction, for both the attempt and the crime itself.

The Commission makes it clear in its commentary on page 51 that it intends to rule out such double convictions but I am left uneasy unless such double prosecution is ruled out explicitly by the statute itself.

The Commission sets its own precedent in the conspiracy statute where it does just exactly hat. I would urge that at an appropriate place in the proposed statute on criminal attempt there be added the following language.

"A person may be prosecuted for attempt to commit a particular crime, or a completed crime itself, but not for both." Thank you. Mr. MAZZOLI. Thank you very much. Mr. Reitzer ?

STATEMENT OF WILLEL W. G. REITZER

Mr. REITZER. Mr. Chairman and members of the committee, my name is Willel W. G. Reitzer. I appear as a private citizen, but more or less representative of all those who still subscribe to the traditonal legal approach to the subject matter I am addressing.

My residence is 17 5th Street, NE. I am self-employed, a large part of my time is devoted to writing on issues of current public concern, publishing under the name Universal Christian Publications, P.O. Box 2020, Washington, D.C. 20013.

I have degrees in law and theology from accredited institutions. My major undertaking is a book on the ten commandments.

My purpose is to object to provisions of the tentative proposed revisions of the District of Columbia Criminal Code that change existing law with regard to sex offenses, chapter 6 of the "Law Revision Commission Proposals."

The revisions would make basic changes in the traditional legal approach on this subject, leaving certain intrinsic sexual wrongdoings not legislated against, thereby undermining the law's educational impact and consequently the moral fiber and well-being of individual citizens as well as the welfare of society in general.

HOMOSEXUALITY

Objection is raised to the legalization of sexual acts presently unlawful, to the loosening of legal liability in certain particulars, and to certain penalties. I respectfully submit that overall this proposed chapter reflects serious departure from sound law and good govern

ment.

By way of support I offer four essays on the subject of homosexuality. They state not only why homosexual acts between consenting adults, much less adolescents, should not be considered but also why certain other sexual acts are intrinsically wrong and harmful.

Mr. MAZZOLI. They will be made a part of the record. [The material referred to follows:]

HOMOSEXUALITY AND CIVIL RIGHTS

At one time all states outlawed homosexual acts as contrary to their best interests—and attached stiff penalties. But these laws have been under constant attack in the courts and legislatures. Although most attacks have been withstood, recently some disaffection developed, supported by high-sounding phrases such as "basic rights". But a careful analysis uncovers basic flaws and reveals the potential for much mischief.

One argument repeatedly advanced is that states have no power to forbid homosexual acts. (Various jurisdictions, in addition to outlawing sodomywhich includes both anal and oral unnatural sex acts-also outlaw other acts of homosexual significance: hand-holding, dancing, kissing, sexual foreplay, as well as any attempt to engage in homosexual acts and the solicitation thereof, also, for added protection, requiring those with past conviction to register themselves.) Again in 1971, a U.S. District Court (Texas) upheld the power to legislate against homosexuality, stating: "Sodomy *** is an act of immemorial anathema both at common law wherein it was punishable by death, and in ancient times (Gen. 19). It is clearly an offense involving moral turpitude * * * The practice is inherently inimical to the general integrity of the human person. This is a postulate not of dogma but of common knowledge. It warrants the dignity of judicial knowledge *** (It) is clearly within the police powers of the states" (Dawson v. Vance).

Another argument, raised in a 1976 case, is that sodomy laws are an "establishment of religion" because they are "a direct and unbroken legacy of the Christian Church." But the District of Columbia Court of Appeals rejected the contention, citing Chief Justice Warren's earlier retort that to hold otherwise "would give a constitutional interpretation of hostility to the public welfare" (Sewart v. United States).

A third argument seeks legal exemption for sodomous acts in private by consenting adults, on the ground: (1) alleged nonharmfulness to participants and society, (2) a "right of privacy". It received some impetus when recommended by an English study (Wolfenden Report) and its subsequent adoption by Parliament (age of consent: 21). It has been enacted recently by a few U.S. state legislatures.

Such an exemption, however, does have harmful consequences:

(a) It not only gives legal approval to a sphere of immorality, but also an implied aura of respectability by removing the educative impact of the law against this vice. The deterrent effect of law also being removed, the door is opened to experimentation for certain ones who are gullible, inexperienced, uneducated, young, weak-willed.

(b) It portends more openness and aggressiveness by homosexuals in seeking consenting persons in public and in securing consent in private.

(c) It might confer added rights as custody, adoption, immigration, propagation, government welfare.

(d) It forebodes much mischief in the practicalities surrounding the consent concept. At what age may consent commence? One District of Columbia court set it at 16! When does consent stop and coercion start? Consent may be secured under pretense of friendship or given for fear of offending an older adult. Moreover, males do not have as strong a defense mechanism as females to ward off male sexual advances. Also, misdirected male sexual advances toward males cause far more trauma for both sides than misdirected male-female advances. The classic legal approach has been that consent in homosexual acts is of no consequence—as also in certain other crimes (bigamy, incest, dueling, euthanasia, homicide) where basic human values are regarded as being inviolable.

As for the right-of-privacy contention, some people maintained the Constitution extends such a right in this area, thus delimiting all sodomy laws to nonconsensual/public acts.

However, when the question came before a federal district court in Virginia in 1975 (Doe v. Va.), the argument was rejected. The Court held homosexual

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