THE NEW YORK STATE CONSENSUAL SODOMY STATUTE

    New York State's Penal Law Section 130.38 prohibits consensual sodomy; it provides that a person is guilty of consensual sodomy when he or she engages in “deviate sexual intercourse” with another person, and makes such conduct a Class B misdemeanor punishable by imprisonment of up to three months, a fine of $500, or both.
    “Deviate sexual intercourse” is defined in Penal Law 130.00 as:


    In 1965, a revised penal code was presented to the New York State Legislature by the Commission on Revision of the Penal Law and Criminal Code. The revised penal code omitted consensual sodomy as an offense, because the Commission was following the recommendations of the Model Penal Code of the American Law Institute and the Wolfenden Commission in England, both of which had recommended decriminalization of such conduct.
    However, under pressure, the legislature rejected these recommendations and enacted the present section prohibiting consensual sodomy.

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FREEDOM AND SEXUAL LEGISLATION

    As the Bicentennial of the United States approaches, it might be well to consider anew the philosophy of freedom on which the republic was founded. The Declaration of Independence states that every citizen has the right to “life, liberty, and the pursuit of happiness”. The Ninth Amendment to the United States Constitution expresses the same sentiment when it declares that the American people retain certain rights, which may not be denied or disparaged by law regardless of whether or not these rights are specifically enumerated in the Constitution.
    In addition, the Fourteenth Amendment states:


    The time has come to place human sexuality within a positive legal framework, instead of the present negative one. For too long, expressions of sexuality have been seen as sinful, and therefore dangerous and deserving of punishment. Today we should cast off these old notions and recognize that sexual freedom is a necessary part of every human being's right to pursue happiness.
    The law should not be used to enforce sectarian standards of morality in sexual behavior. There should be a general freedom, recognized by law, for all citizens to engage in whatever sexual activities they may freely choose, provided only that others are not harmed or forcibly involved.

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WHY THE NEW YORK CONSENSUAL SODOMY STATUTE SHOULD BE REPEALED

    The New York State Consensual Sodomy Statute is inconsistent with a rational and freedom-respecting philosophy on sexual legislation. It should be abolished for the following reasons:


1. IT PUNISHES ACTS THAT HARM NO ONE.

    This law violates the basic principle that acts that harm no one should not be subject to legal sanction. This philosophy was stated cogently by John Stuart Mill:


The state should not interfere in sexual matters, so long as nobody is injured and no one's interests are encroached upon. Sodomy per se is truly a “victimless crime”, and as such should be dropped from the penal code.


2. IT VIOLATES THE RIGHT TO PRIVACY.

    It violates the right to privacy. The state has no business poking its nose into people's bedrooms. Human beings should be entitled to do what they choose with their own bodies and minds unless verified harm is done to others.


3. IT VIOLATES EQUAL PROTECTION UNDER THE LAW.

    “Equal protection under the law”, guaranteed by the Fourteenth Amendment, is violated. The New York Consensual Sodomy Statute is discriminatory in that it makes a distinction on the basis of marital status, permitting acts to the married that are forbidden to the unmarried.
    In addition, such laws cannot be enforced uniformly, and the authorities do not attempt to do so. Unmarried heterosexuals, to whom the law also applies, are virtually never arrested or convicted, even though research data indicate that a large percentage of them engage in such illegal activities (which are, in fact, encouraged by most serious marriage manuals).


4. CONSTITUTES ESTABLISHMENT OF RELIGION.

    Sodomy statutes are unconstitutional in light of the First Amendment, which forbids the “establishment of religion”. Behind this provision of the Bill of Rights is a feeling of revulsion against the intolerance of the Middle Ages — against the power of a church to impose its beliefs and practices on the entire community. Such power violates a fundamental human right: the right to practise the religion of one's choice or to practise no religion at all.
    The condemnation of homosexuality reflects a theological viewpoint that is by no means universal. It is historical fact that for most of the time there have been human societies on the planet, homosexuality has been accepted as a pleasurable and ennobling aspect of the human experience. In the ancient world, in Asia and Africa, in pre-Columbian America and pre-Christian Europe, homosexuality was not condemned.
    Homosexual acts became criminal for the first time about 2500 years ago, when the Holiness Code of Leviticus imposed a taboo on them. The law of Leviticus made male homosexual acts (but not female) a crime punishable by death; it stated:


    The Christians carried forward the Jewish taboo against homosexuality, incorporating as well the antisexual opinions of St. Paul and such neo-Platonists as Philo Judaeus. After Christianity became the state religion in 323 AD, homosexual acts became criminal throughout the Roman Empire. From this point on, homosexuals became the victims of persecutions as savage as any in history. Millions were tortured, mutilated, and murdered throughout the Dark and Middle Ages.*


    It was through the Canon Law of the Middle Ages that the sodomy laws became part of the Anglo-American criminal code.
    Thomas Jefferson clearly expressed the sentiment of the First Amendment when he wrote:



5. SODOMY LAWS BASED ON FALSE PREMISES.

The sodomy laws — which, varying by state, define same-sex love in phrases like “unnatural acts”, “the crime against nature”, “deviate sexual intercourse”, etc. — are based on false premises. Two influential Church fathers — St. Paul and St, Thomas Aquinas — believed that homosexual acts were not only sinful, but also unnatural, and their beliefs played an important part in shaping the attitudes and legal codes of the Western world.
    Thomas Aquinas actually believed that any form of sex that could not result in procreation was unnatural — a “sin against nature”. He felt that even the least serious of the “sins against nature”, masturbation, was nevertheless far worse than forcible rape; according to his theological reasoning, rape, even though it might cause injury to another person, could still result in procreation, so it was therefore not “unnatural”.
    All evidence, however, contradicts the belief that homosexuality is unnatural. In fact, the findings of anthropology, history, zoology, statistical surveys (such as the Kinsey studies), and studies of one-sex groups (prisons, monasteries, convents, armed forces, athletic teams, etc.) — all prove that homosexuality is just as “natural”, just as healthy, human and desirable, as heterosexuality.
    The sodomy laws are abhorrent to all who owe allegiance to the scientific approach: free inquiry, reason, and the use of evidence.


6. SUCH LAWS CAUSE SUFFERING AND DENIAL OF RIGHTS.

    Laws criminalizing same-sex love cause great personal anguish and suffering; they make homosexuals prey to blackmail, entrapment, assault, and other forms of victimization; they are the source of, and provide a rationalization for, discrimination in employment, housing, and public accommodations. It is significant that several New York City Council members used the sodomy statute as a justification for voting against Intro 2, the gay civil rights bill that was recently defeated,
    The existence of sodomy statutes further leads to denial of constitutional rights. Homosexual rights organizations have been denied the right to have headquarters or to be incorporated, in spite of the First Amendment guarantee of the right of association. And the Fourth Amendment right to be secure against unreasonable seizure has been disregarded when the police “suspected” sodomy was being committed.


7. THEY STIGMATIZE MUCH OF THE POPULATION.

    Such laws stigmatize even those suspected of violating them, and lead to “guilt by association”. A large number of people are affected: according to the Kinsey surveys, 13% of American women and 37% of American men have engaged in homosexual acts as adults — acts which in most states are criminal. Even parents, friends, neighbors, and co-workers of homosexuals are subject to the opprobrium of criminality, which means that the ill effects of sodomy statutes may be felt, directly or indirectly, by the majority of the population.


8. THEY LEAD TO UNDESIRABLE POLICE PRACTICES.

    Sodomy laws lead to undesirable and illegal police practices, such as entrapment, blackmail, and harassment; they divert police energy and manpower from the prevention of violent crimes. Prominent law enforcement officials have recommended that consensual sodomy be dropped from the criminal code — for example, past New York District Attorney, Richard Kuh, and present New York District Attorney, Robert Morgenthau.


9. RELIGIOUS GROUPS URGE REPEAL.

    Repeal of such laws has been urged by many religious groups, including the New York Diocese of the Protestant Episcopal Church, the United Church of Christ, the Lutheran Church in America, the New York Society of Friends, and the Unitarian Church.


10. MEDICAL GROUPS URGE REPEAL.

    Medical groups, including the American Psychiatric Association, the American Medical Association, and the American Mental Health Foundation, have passed formal resolutions urging repeal.


11. PROFESSIONAL GROUPS URGE REPEAL.

    Repeal has been urged by various professional groups, for example, the California Federation of Teachers, the American Anthropological Association, and the American Association for the Advancement of Science.


12. LEGAL GROUPS URGE REPEAL.

    Within the legal profession, repeal has been urged by formal resolution of the American Bar Association, the American Law Institute, the International Congress of Criminal Law, the American Law Committee, and the National Commission on Revision of the Penal Laws. The Model Penal Code of the American Law Institute states:



13. MOST COUNTRIES AND SEVERAL STATES HAVE ALREADY ABOLISHED CONSENSUAL SODOMY LAWS.

    Most European countries have already eliminated laws against consensual homosexual relations, many of them more than a century and a half ago. Other countries never had such laws in the first place. In the United States, the following states have abolished the laws against consensual sodomy: Illinois, Oregon, Connecticut, North Dakota, Ohio, Delaware, Hawaii, and Colorado.
    No undesirable social consequences of any kind have resulted from the abolition of the laws against consensual sodomy.


14 SUCH LAWS SERVE NO RATIONAL PURPOSE.

    The sodomy laws serve no rational purpose. Citizens are already fully protected against injury and victimization by other laws, like the laws against assault, rape, and other offenses against the person.




NOTE
* Such persecutions do not belong only to the distant past, for during World War II, the Nazis sent male homosexuals to their concentration camps, where these men wore the insignia of the pink triangle. The Protestant Church of Austria recently estimated that at least 220,000 homosexual men were exterminated in the Nazi camps.

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WE AS LIBERATED HOMOSEXUAL ACTIVISTS demand the freedom for expression of our dignity and value as human beings through confrontation with and disarmament of all mechanisms which unjustly inhibit us: economic, social, and political. Before the public conscience, we demand an immediate end to all oppression of homosexuals and the immediate unconditional recognition of these basic rights:

THE RIGHT TO OUR OWN FEELINGS. This is the right to feel attracted to the beauty of members of our own sex and to embrace those feelings as truly our own, free from any question or challenge whatsoever by any other person, institution, or “moral authority”.

THE RIGHT TO LOVE. This is the right to express our feelings in action, the right to make love with anyone, anyway, anytime, provided only that such action be freely chosen by individuals concerned.

THE RIGHT TO OUR OWN BODIES,    This is the right to treat and express our bodies as we will, to nurture, display and embellish them solely in the manner we ourselves determine independent of any external control whatsoever.

THE RIGHT TO BE PERSONS. This is the right freely to express our own individuality under the governance of laws justly made and executed, and to be the bearers of social and political rights which are guaranteed by the Constitution of the United States and the Bill of Rights, enjoined upon all legislative bodies and courts, and grounded in the fact of our common humanity.

To secure these rights, we hereby institute the Gay Activists Alliance, which shall be completely and solely dedicated to their implementation and maintenance, repudiating, at the same time, violence (except for the right of self-defense) as unworthy of social protest, disdaining all ideologies, whether political or social, and forbearing alliance with any group except for those whose concrete actions are likewise so specifically dedicated.

It is finally to the imagination of oppressed homosexuals themselves that we commend the consideration of these rights, upon whose actions alone depends all hope for the prospect of their lasting procurement.

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I write books and am proprietor of Pagan Press, a small book publisher.   Please check out the Pagan Press BOOKLIST  — John Lauritsen


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