Revision of Sex Laws Arouses Controversy, Evening Star (Article, June 1955)
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Revision of Sex Laws Arouses Controversy
By PHIL YEAGER and JOHN STARK
The age-old problem of using the law to enforce a moral behavior, after slumbering Vesuvius-like for many years, once more seems ready to erupt.
This time the eruptive force is coming from one of the most respected professional groups in the Nation, the American Law Institute, which may shortly bring forth a model penal code recommending that sexual crimes not involving force, adult corruption of minors, or public offense be removed from the statutes.
In other words, this moral code would exclude adultery, fornication and sodomy--all of which are currently punishable crimes in nearly all States and the District of Columbia.
It is a foregone conclusion that the ALI's model code will encounter a storm of opposition, but the institute includes some of the world's best barristers and can wheel up an imposing array of judicial talent to put across the lawyers' view.
Obviously this view accepts the findings of Dr. Alfred Kinsey to the effect that a good deal of adultery and sodomy goes on--much more than the incidence of arrests (let alone convictions) for these crimes would indicate. But the lawyers regard the enforcement problems as akin to those which attended prohibition in the '20s, i.e. virtually insurmountable. Indeed, if Dr. Kinsey is right, most persons would find themselves in difficulty with the police at one time or another if current sex laws were strictly enforced.
Judge Hand's Attitude
LEarned Hand, retired chief judge of the U.S. 2d Circuit Court of Appeals and dean of American jurists has succinctly stated the lawyers' position: "Criminal law which is not enforced practically is much worse than if it was not on the books at all."
Sex crimes such as adultery and sodomy, Judge Hand told the recent ALI convention here in Washington, are largely a matter of morals and "not a matter that people should be put in prison about."
(Fornication and adultery involved "normal" sexual relations between persons not married to each other. Sodomy is a broad term covering a large variety of "unnatural" or "deviating" sexual activities, including homosexuality.)
Not all lawyers, by any means, will agree with the current ALI recommendation, particularly as regards sodomy. But there is a strong likelihood that many criminal lawyers will. Arrests and prosecutions for these crimes, when they occur, are apt to be time-consuming, embarrassing and generally unrewarding. Great difficulties exist in setting up consistent standards of "unnatural" sex conduct since there is no very reliable legal gauge of what is or is not "unnatural".
Time and effort expended in this direction, it is argued, might better be utilized toward the protection of society where it counts, for instance, in rape situations, seduction of minors or exhibitionistic public outrages. Moreover, as long as adultery and sodomy are illegal under all circumstances, they provide a convenient basis for blackmail by various kinds of "shakedown artists," as well as paramours who may be feeling miffed for one reason or another.
The ALI carries much weight with the legal profession. Its recommendations automatically receive deferential, if not uncritical, consideration from the State bar associations. Many of its "restatements" of law have been adopted in toto as State codes by the various legislatures or high State courts.
But lawyers are going to find religious and educational factions squared off against them in no uncertain terms.
Religious Objections
The clergy, as might be expected, takes a strong stand against the lawyers' point of view that these practices are not offenses against society. Catholic, Protestant and Jew alike assert that there would be deep social implications in the repeal of such laws, whether or not the laws are generally enforced. Here are sample comments by leading clerics of the major faiths:
Protestant view. The Rev. Frederick Brown Harris, chaplain of the Senate and recently retired pastor of Foundry Methodist Church:
"Much nonsense has been talked about 'free will' as though it meant that a man were at liberty to do anything he pleases--that if his inner life is a moral cesspool, that is no concern of society.
"Of course, that is old stuff--as old as some of the civilizations Toynbee tells us about, which have perished from the earth. The fundamental problem of life is not how to live with the police, but how to live with oneself. Modern psychology but confirms the deep personality insight found in the Bible: 'As a man thinketh in his heart, so is he.'
"One of the greatest of present day psychiatrists declares: 'Our problem is not primarily to fit a man to face his environment, but to fit him to face himself.' The greatness of any nation, including our own, lies in the number of citizens who yield obedience to laws no policeman can enforce."
Catholic View. Msgr. Philip M. Hannan, chancellor of the Archdiocese of Washington:
"The strength of the country lies in that virtue be shown in the external or internal forum. The function of law is not simply to repress external vice, but at least indirectly to cultivate respect for virtue by indicating what is culpable and blameworthy. The attitude of the majority opinion of the Law Institute is to condone and thus to encourage surreptitious vice.
"The advice of the Savior is applicable: 'Clean first the inside of the cup and the dish that the outside may be clean.'"
Jewish view. Rabbi Solomon Metz, rabbi-emeritus of Adas Israel Congregation:
"The law of the Bible is very plain that adultery is a crime. In Biblical law it was punishable by death. These offenses studied by the Law Institute definitely are crimes against society as a whole because they undermine the social order. When many persons engage in such practices, the fabric of society is weakened."
These comments seem representative not only of the views of religious organizations generally, but of many educational and philanthropic groups as well.
Hence it is becoming clear that the controversy goes directly to the very heart of criminal law concepts.
The 'Minimal' Standard
The legal profession today appears to lean toward the early "minimal code" theory of criminal law. In essence, the idea here is that criminal law should define certain acts which are considered to be disruptive of public order and bad for the community, and that no person may flout this "minimal" level. This, it holds, is a function better performed by the home, the church, and the school.
A contradictory theory has been that the law should itself provide incentives for leading a highly ethical life in conformance with an accepted moral standard. This view developed during the latter Middle Ages, flourishing under the monarchies and ecclesiastical governments. While it is not now widely prevalent in the United States, many State criminal codes contain prohibitions that relate to private morality. In addition to the sex crimes under discussion, suicide is probably the only offense for which the criminal may be prosecuted only when his attempted crime is unsuccessful.
Whether or not sponsors of the new ALI penal code are aware of it, they are apt to run into additional opposition from other professionals, including the psychiatrists.
Psychiatrist Objects
Dr. Addison M. Duvall, acting superintendent of St. Elizabeth's Hospital here, is one of those who signals a "go-slow" on removing sodomy from the criminal codes.
"At the very lead," Dr. Duvall cautions, "extensive studies should be made from the psychological and psychiatric point of view to find out what might happen if these crimes are abolished."
Dr. Duvall inclines toward the idea that if the legal barrier is removed, a certain psychological barrier also will disappear, and with it will vanish the deterrent now keeping many people from drifting into perverted sexual practices. He points out that homosexuality, for example, is often an acquired habit and that the legal stigma currently attaching to it is sufficient to prevent some people from becoming addicted.
In regard to adultery and fornication, Dr. Duvall would also hesitate in loosening the legal code. HE cites several small European states as examples of countries without our legal limitations on sexual promiscuity. "In these areas it is not uncommon to find a man escorting his wife to the lying-in hospital one day and taking his mistress there the next." The thought is that while small, homogeneous nations may be able to handle this sort of thing, the social problems resulting from similar attitudes in America might be quite another matter.
Legal Support Likely
In the final analysis, however, it appears that a considerable segment of the legal profession will lend support to this highly controversial part of the ALI's model penal code. These are the men and women who feel that the incidence of adultery and sodomy is not much greater today than normal population increase and shifting living conditions can account for.
Admitting that the American attitudes toward sex have relaxed in recent years, these people do not believe the law can or should try to influence them. They disagree with Federal Judge John J. Parker of Richmond, Va., when he says that certain things must be denounced by the criminal code merely "in order that society may know that the State disapproved..." They are inclined to remember the verse attributed to Thomas Moore, the 19th century Irish poet:
I find the doctors and sages
Have differ'd in all climes and ages
And two in fifty scarce agree
On what is pure morality.
If we can't agree on the goal, these lawyers inquire, how can we legislate a method of reaching it?
