Police Methods Criticized By Court in Morals Case, Evening Star (Article, September 1956)
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Police Methods Criticized By Court in Morals Case
By HOWARD L. DUTKIN
The conduct of arresting officers in homosexual cases today was closely scrutinized by the United States Court of Appeals in reversing an assault conviction.
The court held that actions and words of the policeman constituted apparent "consent" to overtures made by the defendant.
The latter, a 23-year-old secretary, was charged with assault after he had touched the policeman during a conversation in a movie theater in 1951.
The conviction had been upheld by the Municipal Court of Appeals. But today the United States appellate tribunal reversed.
The court pointed out that if consent is given, by one competent to give consent, there can be no assault.
Opinion Draws Distinction
Today's opinion recited that the policeman after noticing the defendant in a lavatory, followed him to the balcony, then stopped by a stairway and waited. After some conversation, the touching was alleged to have occurred.
Of this, the court stated:
"If the policeman did no more than permit the alleged touching, there would be no real or apparent consent. But more happened here than that. Considering the totality of the policeman's conduct, including his inviting inquiry to the defendant, we cannot say that the evidence is more consistent than with an act induced in part by apparent consent.
"In a case like the present, to let the suspect think there is consent in order to encourage an act which furnishes an excuse for an arrest will defeat a prosecution for assault."
Need for "Decoys" Recognized
The court noted that in many situations such as narcotics investigations, "police decoys" may be a necessity.
But, the opinion stated, "selling drugs is a crime against society no matter how willing the customer may be to purchase, whereas 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."
The defendant, on appeal, was represented by Attorney Claire O. Ducker, sr. The opinion was written by Judge George T. Washington. Judges David L. Bazelon and Wilbur K. Miller concurred.
