As we said, there are four elements of the crime. You do not have to corroborate, the proposed amendment says, each and every element. First you need a woman: no problem in corroborating that. You can put a doctor on the stand and say this female complainant is female. Second, you have the element of a male perpetrator who is not married to her. That might be more difficult to corroborate but I think we could satisfy that. Third, you have a serious problem as to whether there was the slightest penetration, whether there was sexual intercourse. And fourth, the biggest problem, whether there was force or fear.

Under this proposed amendment which says you don't have to corroborate every element of the offense, it clearly means that three of these four will be sufficient if the legislature is to be heeded. But, which three? And will two be sufficient, because two is also not every element of the offense. Would one be sufficient? One is not every element of the offense. So, the only thing clear under this amendment is that zero and four of the elements are not required to be corroborated, that whether two or three will suffice remains to be a matter of judicial construction, and we have had very bad luck with our appellate courts in the State of New York on the question of corroboration. I ask this committee then not to join New York and Iowa in introducing into Federal criminal law administration a rather strange requirement-statutory requirement-something that the courts have been free from and that has enabled the federal courts to be far more successful than the State courts in the prosecution of organized crime without the accomplice statutory requirement of corroboration. And that, I think, is all I should say about sex.

I might add one or two things on guns.

Senator MCCLELLAN. The gun statement-your prepared statement. with reference to sections 1811 and 1814 of the Federal Criminal Code may be printed on the record at this point and now you may comment about it.

(The document referred to follows:)

STATEMENT OF FREDERICK J. LUDWIG, CHIEF ASSISTANT DISTRICT ATTORNEY,

QUEENS, N.Y.

The statement of one Senator on the then pending Gun Control Act of 1968 (18 U.S.C. §§ 921-928 [Title I] (26 U.S.C. §§ 5091-5872 [Title II]) was: "I have carefully examined the evidence compiled on both sides of the gun control issue, and the most prominent impression I have gained is that it is only conjecture to assert that [the Bill] would have any appreciable effect toward a reduction in firearms misuse and in serious crimes."

"My own State of South Dakota, for example, would be damaged far more by stringent controls than would New York, because of the heavy recreational use our citizens and visitors make of firearms. We should be extremely caution about superimposing a single set of requirements over all 50 states when their conditions vary so widely."

(Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Committee on the Judiciary, United States Senate, Nintieth Congress, 1967, pp. 1098, 1099.)

These observations raise first the gravest questions on the wisdom of any regulations whatsoever on firearms; and, second, the role of a federal government in enacting legislation in areas covered by local statutes.

On the first question, the relatonship between violent crime and the easy availability of deadly weapons ought to be explored. No large civilized nation in the world presents our macabre picture of violence wreaked with weapons.

One study made by me compared the incidence of violent crime in England and Wales, which have strict regulation of weapons, with the United States. In 1962, the homicide rate per 100,000 inhabitants in the United States (4.5) was more than eight times that of England (0.56), the rate for robbery in the United States (51.3) more than ten times that of England (5.0), and the rate of aggravated assault in the United States (75.1) more than seventeen times that of England (4.3). On the other hand, for non-violent crime, the difference in rate between the two countries is not only not as great, but also shows greater incidence in England. For example, larceny, other than petty larceny and that involving motor vehicles, actually occurs almost three times less frequently in the United States (290.5) than in England (848.8).

Compare the availability of firearms in England with that in the United States. Weapons statutes in England date from 1328 when the Statute of Northumberland (2 Edw. III, c. 3) was enacted. Under this statute, which is still in force, anyone appearing before the king's justice or ministers, with force and arms, or going armed by night or day in any fair, market or elsewhere in such manner as to terrify the king's subjects, or bringing force "in affray of the peace" is guilty of a misdemeanor. Exempted are the king's servants, ministers and those assisting them in the execution of their duties. Since the Gun License Act of 1870, possession of firearms has been controlled by licensing. Under its most recent revision, the Firearms Act of 1937 (1 Edw. VIII & Geo. VI, c. 12), "no person shall purchase, acquire or have in his possession any firearm or ammunition to which this Part of the Act applies unless he holds a firearms certificate in force at the time: (id. Pt. I, § (1)). "The certificate shall be granted by the chief officer of police if he is satisfied that the applicant has a good reason for purchasing, acquiring, or having in his possession the firearm or ammunition in respect of which the application is made, and can be permitted to have in his possession that firearm or ammunition without danger to the public safety or to the peace" (id. § 2(2)). The certificate may be revoked if "the chief officer is satisfied that the holder is prohibited by this Act from possessing a firearm to which this Part of the Act applies, or is of intemperate habits or unsound mind, or is otherwise unfitted to be entrusted with such a firearm" (id. § 1(7) (a)).

Notwithstanding the Firearms Act, there was an increase in violent crimes in England in recent years. The British bar has attributed this increase to weapons other than firearms in the hands of the Teddy boy-sharpened bicycle chains, "knuckle dusters" and the "flick" knife (28 The Solicitor 223 [1961]). In the Restriction of Offensive Weapons Act of 1959, the British borrowed almost verbatim the provisions contained in the New York statute prohibiting possession of switchblade and gravity knives (Appendix A, post §§ 1896(4), (5); 1897(3)).

In the United States, primary responsibility for enactment of statutes dealing with weapons rests with the fifty States and the District of Columbia. So far as pistols, revolvers and firearms capable of being concealed are concerned, at least twenty-three States have either no statutes at all or ones with toothless provisions. One of these State borders on New York. Tweny-seven States and the District of Columbia having licensing statutes. These vary widely only three States make mandatory the taking of fingerprints: less than half undertake any licensing of dealers. In all of them, except Hawaii and New York, unlimited arsenal may lawfully be possessed without license or supervision in the home, place of business or on one's own property.

Consider crime statistics for our ten largest cities for the first nine months of 1966. The homicide rate per 100,000 in New York City (5.9) was just about one-third the rate in Houston (16.7). The New York City rate was less than one-half that of Washington, D.C. (14.3) and Baltimore (14.3). Cleveland (11.0), Chicago (10.3), Detroit (9.2), and the average rate for nine such cities, other than New York was (11.0).

Why these enormous variations among cities of the same country, each characterized by mass urbanization of millions of Americans? One important reason is the enormous variation in laws governing weapons.

Inder the weapons laws of Texas, possession of a rifle or shotgun is denied to no one, regardless of his background. Possession of pistols and revolvers is not licensed. Under general prohibitory statutes, any one, regardless of his background, my lawfully possess a pistol or revolver in his home. Away from his home, any one may openly carry a pistol or revolver regardless of

his background. To violate the weapons laws of Texas, the defendant must (i) carry concealed (ii) away from his home (iii) a pistol or revolver; (iv) have been convicted of a felony (v) involving a crime of violence, and (vi) the particular act of violence must have been committed, not with any weapon, but a firearm. Small wonder that Texas provided the locale for the assassination of President Kennedy in November 1963, and the sniper who slew fifteen persons from the campus tower in Austin, Texas on August 1, 1966.

On the other hand, New York, with one-third the homicide rate of the largest city in Texas, has the so-called Sullivan Law, which requires a license to possess a hand gun in one's home or place of business. Only one other State has such realistic regulation of hand guns (Hawaii) and its homicide rate per 100,000 inhabitants (1.7) is one of the lowest anywhere. Actually that rate for Hawaii is almost four times less than the rate for Alaska (6.5), our other new State. Like Texas, Alaska has no laws governing possession of weapons. The much maligned Sullivan Law of New York, which was revised to eliminate contradictions and absurdities in 1963 by me as Legislative Counsel was held up as a model to be emulated by other States by President Johnson in his special message to Congress on Crime February 6, 1967. Legislation controlling firearms, said President Johnson, "wll gain added strength as states pass firearms legislation and licensing laws similar to the Sullivan Law."

As the President's Commission on Law Enforcement and Administration of Justice pointed out: "New York State's Sullivan law is the most stringent firearms control regulation in the United States. The laws of several States require that anyone carrying concealable firearms have a license, but the Sullivan law prohibits anyone from keeping a pistol or revolver in his home or place of business without a license. Further, no one may even purchase a pistol or revolver until he has obtained either a license to possess or a license to carry such a weapon. The New York law does not require a license to possess or carry rifles and shotguns, but does state that they cannot be carried in an automobile or a public place when loaded."

I will give you just one illustration of what we would hope to accomplish if we had effective weapons laws. On March 25, 1911, there was a building still standing opposite New York University down at Greenwich Village. The ninth floor of that building was occupied by the Triangle Shirtwaist Factory. There were 600 people employed there, mostly women. It was customary occasionally for one of them to steal a shirtwaist, and in order to prevent them from leaving that building, one of the operators of that factory locked one of exit doors at the time work was done on March 11 and stationed himself at the other to supervise the egress of these female employees. And where he saw a telltale bulge, without any search warrant he just hauled her back in. A fire broke out just at quitting time. Many people rushed to the other locked door and were unable to get out. The result: within 10 minutes, the fire was over. It didn't destroy the building, but it killed 145 of those employees. Now the two operators of that factory were placed on trial for manslaughter in the first and manslaughter in the second degree. They were lucky enough to obtain Max David Steuer as their lawyer. In fact, that case made his reputation. One of the fortunate things was that these two operators were acquitted because there was insufficient proof that they knew that the locked door was locked. I say it was fortunate because Governor Dix of New York in 1911 appointed a factory committee of the legislature.

Nobody proposed redefining manslaughter or adding to its penalties. Nobody proposed in the legislature the abolition of factories. What they did propose was sensible licensing, regulation, inspection of factories to make such holocausts as the Triangle Shirtwaist an impossibility in the future. That is what we are trying to do by regulating weapons.,

On the second question, viz, the role of a federal-type government in enacting legislation in an area already covered by local statutes. I congratulate the Commission on its recommendation in its final report that regulatory legislation be adopted by Congress:

(1) ban the production and possession of, and trafficking in, handguns, with exceptions only for military, police and similar official activities; and

(2) requies registration of all firearms.

As pointed out, only the New York statute contains the crucial registration requirements that make sensible enforcement of gun control laws. The "backstop" theory of Federal legislation-to strengthen enforcement of existing statutes-fails because 24 out of 25 States have inadequate weapons legislation.

ADDITIONAL RECOMMENDATIONS

1. Minimum standards should be incorporated into the New Federal Regulations covering production, possession and trafficking in handguns and provision for exemptions.

Comment. The so-called Sullivan Law of New York which was completely revised and overhauled from 1960 to 1964 is set forth in APPENDIX B, post, in its current form. It offers one of the only two workable statutes on the State level. If the "backstop" theory of Federal legislation is to come to grips realistically with the problem of violence in our society, it must reinforce workable local laws, not the toothless placebos that pass in most States as gun legislation.

2. Administration of licensing requirements must be directed at disarming aggressors and not their probable victims, arbitrary, capricious, and unreasonable denial of permits for handguns to qualified citizens must cease. Comment. The ultimate goal of a relatively non-violent society is far from attainment at the current time. The object is that aggressors be disarmed and violent crime be prevented before it can occur. In some sections of urban America, this goal may in certain instances be attained by progressive administration of licensing requirements. Every non-aggressor who is the victim of a deadly attack and has no alternative means of saving his life has an immemorial right of self-defense. By sanctioning the taking of the life of the wrongdoer, it has been the underlying policy of the Anglo-American law of crime that in the long run aggression will be discouraged. Consideration of the extent of deadly attack and its increase in the last decade in the United States makes this clear:

The gravament of three-quarter million deadly and felonious annually in this nation is not the astounding number of victims but even the alarm aroused in the much greater number of non-victims. Firearms undoubtedly play the major role in the prepetration of these attacks.

Sensible police and other agency administration to make available training, instruction and licensing of qualified citizens in unduly interstitial areas ought to be encouraged at this time. Nevertheless, the ultimate goal of a non-violent society must also be a disarmed society where even our policemen-like their prototype in Lord Peel's force in London of 1830-may safely discharge their daily duty armed only with a truncheon. The attainment of this goal is always postponed by ill-considered measures that move in the direction of a gun fight at O.K. Corral as a means of settling disputes.

3. In the light of enormous number of handguns currently reported in circulation, affirmative measures, such as amnesty provisions and tax credits should be undertaken to induce their voluntary surrender of weapons. Comment. Law is a means to an end. The traditional role of the law of crime has been negative to induce actual and potential offenders to maintain their own self-restraint by infliction or threat of unpleasant treatment, or by incapacitating or transforming them into law abiding citizens. If law is truly a tool to attain a worthwhile goal, viz. the advancement of the common good by preventing crime before it can occur, then traditional restrictions such as confining a criminal code to negative sanctions ought to be re-examined.

We have in my draft of New York's weapons law [Appendix B, post] affirmative inducements, such as the grant of immunity for voluntary surrender of weapons. If current estimates of 50 million handguns in circulation in the United States are creditable, then such measures ought to be inserted in the recommended Federal Code of Regulations. The dimensions of the problem of the easy availability of such deadly weapons because of the astounding hugeness of their supply, may even necessitate the granting of tax rebates to those making voluntary surrender.

Appendix A

PROPOSED §§ 1811 TO 1814 FEDERAL CRIMINAL CODE

Legislative Document (1965) No. 6

STATE OF NEW YORK

At the fateful hour on Friday, November 22, 1963, when an assassin's bullets took the life of the President of the United States in Dallas, a full meeting of the Joint Legislative Committee on Firearms and Ammunition in New York was considering legislation to prevent such tragedy before it could happen. At the identical moment of the event, the chairman and counsel were actually explaining such program to previously invited members of the press in the offices of the Temporary President of the Senate at 270 Broadway, New York City. At such time, only New York, among the fifty states and the District of Columbia, had any apparatus in force and effect for comprehensive revision of laws affecting firearms and weapons. Only New York had achieved comprehensive revision. Only New York had under active consideration extensive substantive changes in the new statute.

The heart of the work of this Committee has been the new statute. In many respects the statute is landmark legislation in the law-making history of New York: first as a model of draftsmanship in the fields of both criminal and administrative law with respect to clarity, conciseness, definiteness, and order and ararngement; second, line by line, as the most extensive revision of the penal law actually enacted in the twentieth century, rivalled only by the enactments introduced by Caleb Baumes (Assemblyman, 1909-1913; Senator, 1919-1930); and third, as the only revision to succeed in enactment of the concededly most controversial provisions of the penal law in more than fifty years of their existence.

This is a report on the work of the Joint Legislative Committee and supplements two major reports of the Committee, one made in 1962 (Legislative Document No. 29, 33 pp.) and the other in 1964 (Legislative Document No. 12, 15 pp.).

THE OLD SULLIVAN LAW AND THE NEW STATUTE

The first requirement of a sound provision of penal law is to draw a line as clear and unmistakable as the best draftsmanship can supply between lawful and unlawful conduct, and then to give fair warning in language that everyone will understand of what the law proposes to do when that line is overstepped.