GLAA testifies on Criminal Code Modernization Amendment Act
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Bill 16-0130

D.C. Council

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GLAA testifies on Criminal Code Modernization Amendment Act


GAY AND LESBIAN ACTIVISTS ALLIANCE OF WASHINGTON
Fighting for Equal Rights Since 1971
P. O. Box 75265
Washington, D.C. 20013

Testimony before the D.C. Council Committee on the Judiciary

"Criminal Code Modernization Amendment Act of 2005", B16-0130

Tuesday, May 31, 2005


Chairperson Mendelson, Members of the Committee, and Fellow Citizens:

My name is Bob Summersgill. I am the Treasurer of the Gay and Lesbian Activists Alliance of Washington (GLAA), the nation's oldest continuously active gay and lesbian rights organization.

GLAA strongly supports this legislation and we thank Councilmembers Patterson and Evans for introducing the legislation and Councilmembers Ambrose, Catania, Cropp, and Graham for cosponsoring it.

The bill will finally repeal the last of the criminal laws used by the police to harass and intimidate gay men. Although the "Solicitation for Lewd and Immoral Purposes" (SLIP) laws have not been enforceable since 1974, their repeal has been one of our goals.

The SLIP laws appear in two sections of the code, 22-2701, "Inviting for purposes of prostitution prohibited," and 22-1312, "Lewd, indecent, or obscene acts."

In the fall of 1972, D.C. Superior Court Judge Charles W. Halleck ruled the "lewd, obscene, or indecent acts" statute unconstitutionally vague in District of Columbia v. Walters, et al.

The Mid-January 1973 issue of the Gay Blade newspaper reported 20-30 arrests per week of gays entrapped by police under the "Soliciting for Immoral Purposes" charge.

In February 1974, Judge Halleck ruled that the Soliciting for Lewd and Immoral Purposes (SLIP) Law is applied in a discriminatory manner. Legal research revealed that the law had only been applied against black male transvestites.

On May 9, 1974, the Appellate Court upheld Judge Halleck's ruling in District of Columbia v. Walters et al. The Court of Appeals agreed that the solicitation for lewd and immoral purposes (SLIP) law "betrays the classic defects of vagueness in that it fails to give clear notice of what conduct is forbidden and invests the police with excessive discretion to decide, after the fact, who has violated the law." An en banc hearing was denied on July 3, 1974.

Section 5 of this bill removes the more obnoxious of the two clauses, which is in the chapter on prostitution:

22-2701. Inviting for purposes of prostitution prohibited.
(a) It shall not be lawful for any person to invite, entice, persuade, or address for the purpose of inviting, enticing, or persuading, any person or persons in the District of Columbia for the purpose of prostitution or any other immoral or lewd purpose. The penalties for violation of this section shall be a fine of $500 and no less than one day but no more than 90 days imprisonment for the first offense, a fine of $750 and no less than one day but no more than 135 days imprisonment for the second offense, and a fine of $1,000 and no less than one day but no more than 180 days imprisonment for the third and each subsequent offense. Any person convicted of a violation of this section may be sentenced to community service as an alternative to, but not in addition to, any term of imprisonment authorized by this section.

Section 5 of the bill excises the offending phrase:

Section 1(a) of An Act For the suppression of prostitution in the District of Columbia, approved August 15, 1935 (49 Stat. 651; D.C. Official Code 22-2701(a)), is amended by striking the phrase "or any other immoral or lewd purpose" at the end of the first sentence.

We believe that is an excellent fix to this historic problem.

The second SLIP clause is in 22-1312:

22-1312. Lewd, indecent, or obscene acts.
(a) It shall not be lawful for any person or persons to make any obscene or indecent exposure of his or her person, or to make any lewd, obscene, or indecent sexual proposal, or to commit any other lewd, obscene, or indecent act in the District of Columbia, under penalty of not more than $300 fine, or imprisonment of not more than 90 days, or both, for each and every such offense.

(b) Any person or persons who shall commit an offense described in subsection (a) of this section, knowing he or she or they are in the presence of a child under the age of 16 years, shall be punished by imprisonment of not more than 1 year, or fined in an amount not to exceed $1,000, or both, for each and every such offense.

We believe that a more encompassing rewrite of this section is needed than has been offered in the bill.

22-1312 has a problem with the lack of definitions. As Judge Halleck ruled in 1972, the law is unconstitutionally vague. "Lewd," "indecent," and "obscene" have no objective definitions in common usage and no definitions in the law. What one person finds lewd, indecent, or obscene, another will find mundane. It is certainly unclear what acts or events would trigger police action or prosecution. We recommend adopting language similar to that found in 22-3101, Sexual Performance Using Minors, to clarify what is prohibited.

The section also has three related but distinct purposes, to prohibit lewd, indecent, or obscene exposure, proposals, and acts.

We believe that it would be best to deal with each of these in separate paragraphs, instead of in one run-on sentence as it is now.

The clause on exposure presumably intends to criminalize public exposure of genitals or other usually covered body parts with intent to shock or offend. Flashers would be the classic example. However, the language does not distinguish between public and private behavior; between malicious and innocent intent; or expected and unexpected exposure.

As written, changing in a locker room, breast-feeding, certain theatrical performances-including licensed nude dancing-and private sexual relations with the lights on could all be found criminal in this section of the law.

The clause on proposals likewise is far more overreaching than we would like. Section 2 of the bill modifies the code so that indecent proposals will only apply to youth, the mentally retarded, or the mentally ill-three groups who can reasonably be thought of as vulnerable to predators. This strikes us as a good way to handle the issue. Propositioning competent adults is part of courtship and should not be criminal unless it reaches the level of harassment, which is handled elsewhere in the code.

The clause on acts is likewise overbroad because it fails to distinguish between private and public acts. When the law was written in 1892, criminalizing private, non-commercial, consensual sexual behavior between adults in private was generally considered proper. In our more enlightened times, the D.C. Council has struck down most of the laws regulating private consensual sex, and the U.S. Supreme Court in Lawrence v. Texas has likewise restricted government access to the bedroom.

A new section of code should be substituted for 22-1312:

22-1312. Lewd exposure; proposals to children, the mentally retarded, and the mentally ill; and public sexual conduct.
(a) It shall not be lawful for any person or persons to:
1. Make any lewd public exposure of his or her genitals or anus with the intent to cause alarm or offense to an unwitting observer.

2. Make any lewd sexual proposal to a child under the age of 16 years, to a person who is mentally retarded, as that term is defined in section 103(19) of the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, effective March 3, 1979 (D.C. Law 2-137; D.C. Official Code 7-1301.03(19)), or to a person with mental illness, as that term is defined in section 102(24) of the Mental Health Service Delivery Reform Act of 2001, effective December 18, 2001 (D.C. Law 14-56; D.C. Official Code 7-1131.02(24))"

3. Commit any public sexual conduct with the intent to cause alarm or offense to an unwitting observer.

"Sexual conduct" means:

(1) Sexual contact:
(i) Between the penis and the vulva, anus, or mouth;
(ii) Between the mouth and the vulva or anus; or
(iii) Between an artificial sexual organ or other object or instrument used in the manner of an artificial sexual organ and the anus or vulva;
(2) Masturbation;

(3) Bestiality; or

(4) Sadomasochistic sexual activity for the purpose of sexual stimulation.

(b) Any person or persons who shall commit an offense described in subsection (a) of this section, shall be punished by imprisonment of not more than 90 days, or fined in an amount not to exceed $300, or both, for each and every such offense.'

(c) Any person or persons who shall commit an offense described in subsection (a) of this section, knowing he or she or they are in the presence of a child under the age of 16 years, shall be punished by imprisonment of not more than 1 year, or fined in an amount not to exceed $1,000, or both, for each and every such offense.

We would be happy to discuss this proposal in greater depth with the Council.

Section 3 of the bill repeals 22-1807:

22-1807. Punishment for offenses not covered by provisions of Code.
Whoever shall be convicted of any criminal offense not covered by the provisions of any section of this Code, or of 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.

We welcome the repeal of this catchall for undefined crimes, which police or prosecutors chose to invent. As a nation of laws, we should not be allowing for criminal prosecution of unnamed and undefined offenses. If there are other criminal laws that are needed from the remains of the 1801 Maryland common law, they should be codified and the last remnants of the common law be stricken from the criminal code. This section wisely makes the common law section moot by removing the penalties.

Section 4 of the bill seems to have misidentified the section that is being amended. D.C. Official Code 4-118 is referenced in regard to making solicitation to commit murder a crime, but that section deals with Public Welfare Supervision.

Thank you again for the opportunity to testify. I am happy to answer any questions that you may have.


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