Kameny urges repeal of the Common Law
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Kameny urges repeal of the Common Law

Gay and Lesbian Activists Alliance of Washington, DC
P. O. Box 75265
Washington, D.C. 20013
(202) 667-5139

Testimony on Bill 14-636
“Elimination of Outdated Crimes Amendment Act of 2002”

Before the Committee on the Judiciary
December 5, 2002


Madam Chairperson, Members of the Committee on the Judiciary of the Council of the District of Columbia:

My name is Franklin E. Kameny. I live at 5020 Cathedral Avenue, N.W., and have lived in the District of Columbia for some 46 years. I testify here both in representation of GLAA, the Gay and Lesbian Activists Alliance of Washington, D.C. and on my own behalf as a private citizen of Washington.

I am pleased to have this opportunity to testify strongly in support of the Bill 14-636: The Elimination of Outdated Crimes Amendment Act of 2002.

Over long intervals of time, in almost every jurisdiction, statutory codes tend to become barnacle-encrusted, burdened with unamended, unrepealed legal relics reflective of the once-heated but now dead and cold cultural imperatives, and social and political issues of past eras, combined with evolutionary vestiges of the legal history of that jurisdiction. Laws remain on the books which are either unenforceable under the conditions and attitudes of the present, or are uniformly disregarded by citizenry and government alike, and are often viewed as laughable. Cleanup and modernization become increasingly imperative, and eventually the task is undertaken, often over the resistance of traditionalists.

That is very much the situation in the District of Columbia, whose basic legal code originated around 1791, by simple imposition of the British-based colonial Maryland Code which included statutes going back to 1533, in the reign of Henry VIII and 1710 in the reign of Queen Anne, was first formalized about 1800, was extensively revised by Congress in 1901, and has been amended, piecemeal before that, and in the century since, leaving behind and still with us an array of archaic laws.

Among those laws which remain on our books, are ones criminalizing Fornication and Adultery, inconsistent with the spirit and substance of the major revision of the District's laws on sexual offenses first proposed in 1981, and finally enacted in 1995. GLAA, and I personally, tried unsuccessfully to eliminate those two statutes a decade ago. We are indeed pleased to see them listed for repeal in the current Bill.

We wish to recommend the addition to this Bill of four additional repeals, in two pairs. Two of these are really reflections of each other and will be discussed jointly. The other two, also discussed jointly, are clauses — actually short phrases — within larger and lengthier statutes which should remain otherwise unchanged insofar as this legislation is concerned, and for the repeal of which phrases, also, I have been working for many, many years.

First: Common Law Crimes

We strongly urge the repeal of Sections 45-401, Common Law, etc. and 22-1807, Punishment for offenses not covered by provisions of Code. I have appended the texts of both of these to the body of these remarks.

These incorporate into our legal system an inchoate mass of criminal laws, quite inaccessible to anyone not wishing or able to do research in ancient documents going back as much as half a millennium. This is objectionable in that (1) Inadequate notice is provided or obtainable as to which these offenses are; no compendium of them is available; (2) No specification consistent with the precision demanded by modem criminal law is provided as to the elements which comprise these offenses; and (3) Except in the most general way, penalties for violations are not set out.

Further, concern has been expressed by some legal scholars, to whose views we give weight, that upon repeal of a more recent, statutory criminal law addressing a matter also discerned as being included in the ancient common law (such as laws against Sodomy, Fornication, and Adultery, and probably many others) the ancient common law offense becomes automatically reactivated as long as the triggering common law provisions of the D. C. Code remain on the books. This is not a satisfactory situation, and can lead to prosecutions, and to judicial actions by some judges, clearly not contemplated by the spirit of the instant legislation or of recent District legislation.

The Constitution of the Proposed State of New Columbia sets a precedent of sorts for this repeal. That Constitution was drafted by the D.C. Statehood Constitutional Convention and was ratified on November 2, 1982, by a majority vote of the citizenry of Washington. Section 16 of Article I of that Constitution was drafted by this witness, was entitled: Abolition of Common Law Criminal Offenses, and says in relevant part:

Every crime shall be defined with reasonable specificity in a statute enacted by the House of Delegates, and no person shall be accused, arrested, tried, or convicted for any act not expressly defined as an offense by such statute.

Thus, in a way, the abolition of common law offenses, proposed here, has already been approved by District voters.

The whole concept of common law offenses is an archaic, obsolete, outdated relic of the birth of our nation and the creation of its legal system, when we were breaking away from an England who had previously governed us but no longer did. It may once have served a useful purpose. It no longer does, and is long overdue to be dispensed with totally.

Thus we urge that the Council include in the list of repealers listed in the instant Bill, Sections 22-1807 and 45-401.

Second: Solicitations for Lewd or Immoral Purposes

Sections 22-2701 (Inviting for Purposes of Prostitution) and 22-1312a (Lewd, Indecent, Obscene Acts) each contain a single similar but not identical, objectionable, outdated clause, buried in a large amount of other verbiage which we are not questioning for purposes of this legislation.

Both render criminal purely verbal solicitations for non-commercial sexual acts once criminal but no longer so, and therefore protected by the First Amendment.

Following a prohibition against solicitations for prostitution, the clause in 22-2701 then prohibits non-prostitutional solicitation for "any other immoral or lewd purpose". In 1987, in Rose v. U.S., 535 A.2nd 849, the court ruled that "Solicitation for lewd and immoral purposes is limited in the District of Columbia to soliciting for sodomy. Note, again that that refers to ANY solicitation for sodomy, including a casual conversation, and is not limited to a prostitutional solicitation. In 1987, and when this law was originally enacted in 1935, sodomy was a felony. It is now no longer criminal. Therefore this clause has become outdated.

Entrapment arrests of gay people by police plainclothes undercover agents, under this provision, commonly referred to by the acronym "SLIP arrests" were very common in past days, and accounted for far, far more actual arrests than ones for sodomy itself.

This six word clause is now outdated, and should be repealed. This provision does not refer to prostitution, and we repeat that we are not now proposing any actual changes in the laws relating to prostitution itself.

In similar fashion, Section 1312a prohibits "any lewd, obscene, or indecent sexual proposal". All the same considerations as enumerated above, with respect to 22-2701, apply to this clause. As well, this clause was the basis for many SLIP-type arrests in past years. Once again, the once-criminal acts (particularly sodomy or fornication) contemplated as being proposed under this clause are no longer criminal. Thus this seven-word clause is now outdated and should be repealed. Here, too, we repeat that we are proposing no other changes in Section 1312a.

In conclusion, we applaud the Committee on the Judiciary for introducing this much-needed legislation, and suggest that they further monitor the D.C. Code for such additional outdated provisions as may now exist or may in due course become obsolete and outdated.

We VERY strongly urge the repeal of Sections 22-1807 and 45-401, creating and maintaining vague "common law" offenses.

We also urge repeal of the two brief clauses cited in Sections 22-2701 and 22-1312a.

Thank you. I am open for questions from the Committee.



Common Law Provisions Currently in the D.C. Code, and Proposed for Repeal

Section 45-401 — Common law, principles of equity and admiralty, and acts of Congress

The common law, all British Statutes in force in Maryland on February 27, 1801, the principles of equity and admiralty, all general acts of Congress not locally inapplicable in the District of Columbia, and all acts of Congress by their terms applicable to the District of Columbia and to other places under the jurisdiction of the United Slates, in force in the District of Columbia on March 3, 1901, shall remain in force except insofar as the same are inconsistent with, or are replaced by, some provision of the 1901 Code.

[Note: This could be interpreted to nullify any repeals contained in the Bill 14-636 of laws enacted before 1901.]

Section 22-1807 – Punishment for offenses not covered by provisions of the Code

Whoever shall be convicted of any criminal offense not covered by the provisions of any section of this Code, or any general law of the United States not locally inapplicable in the District of Columbia, shall be punished by a fine not exceeding $1,000 or by imprisonment for not more than 5 years or both.


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