The Challenge and Progress of Homosexual Law Reform (38 pages)

The Challenge and Progress of Homosexual Law Reform (38 pages)

Published by the Council on Religion and the Homosexual, Daughters of Bilitis, Society for Individual Rights, and Tavern Guild of San Francisco, 1968. From private papers of James Waller.

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Essays on Homosexuality
Essay Number 2

The Challenge and Progress of Homosexual Law Reform

Prepared and Published by:
Council On Religion and the Homosexual
330 Ellis Street SanFrancisco, 94102
Daughters of Bilitis
1005 Market Street Room 208 San Francisco 94103
Society for Individual Rights
83 Sixth Street San Francisco 94103
Tavern Guild of San Francisco
83 Sixth Street San Francisco 94103

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Many books and articles have been written on the subject of homosexuality. Some of them are very good, but many of them are of little value. Not much of a serious nature has yet been written from the point of view of the homosexual; and little of that
has received wide circulation. The homophile organizations of San Francisco have undertaken to publish and distribute a series of "Essays on Homosexuality" which will discuss subjects of interest and importance to the general public as well as the homophile community in a serious, informative, and constructive manner.

Prepared by
COUNCIL ON RELIGION AND THE HOMOSEXUAL
330 Ellis Street-San Francisco, California 94102
DAUGHTERS OF BILITIS
1005 Market Street-Room 208-San Francisco, California 94103
SOCIETY FOR INDIVIDUAL RIGHTS
83 Sixth Street-San Francisco, California 94103
TAVERN GUILD OF SAN FRANCISCO
83 Sixth Street-San Francisco, California 94103

one dollar per copy
(organizational rates upon request)

The Challenge And Progress of Homosexual LAW REFORM

Prepared and Published by:
COUNCIL ON RELIGION AND THE HOMOSEXUAL
DAUGHTERS OF BILITIS
SOCIETY FOR INDIVIDUAL RIGHTS
TAVERN GUILD OF SAN FRANCISCO

1968

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Table of Contents
Page
Introduction 5
Four Schools of Thought 7
Historical Survey 10
The English Experience 12
Situation in the United States 15
Present American Laws 16
Police Practices 20
Harassment and Exploitation of Homosexuals 24
Solicitation 30
Arguments For and Against Change 31
Conclusion 36
Notes 41
Homophile Organizations in the United States and Canada 70

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Introduction
The discrepancy between "the law" on the one hand and human practices and scientific knowledge on the other has always been considerable. Nowhere is this discrepancy so noticeable as in matters of sex. Efforts to bridge the gap have not yet proved successful. Anything pertaining to sex-even the "normal" and "approved" kind-arouses intense emotional reactions. As a result, our sex laws are confused, irrational, and ineffective. Their inappropriateness and failure present us with an urgent challenge to which we ought to respond with reason, moderation and practicality. Justice to the individual and society requires no less.

The time for change is at hand. Significant efforts toward constructive reform arc under way. Special law reform commissions and the legislatures of a number of states are at present studying the American Law Institute's Model Penal Code. If legal and religious leaders, politicians, editors and newspaper reporters, commentators on radio and television, and ordinary citizens will speak, write and act with restraint, great progress can be made. Already Illinois ( I 961) and New York (1965) have adopted new penal codes based on the lnstitute's model. In Pennsylvania, Delaware and Michigan, revision commissions have completed similar codes for legislative consideration. In fifteen
other jurisdictions (California, Colorado, Connecticut, the District of Columbia, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Montana, Ohio, South Carolina, Texas and Washington) reform commissions are at work. Hopefully, within the next three to five years over one-third of our states, containing over half the country's population, will live under more rational, humane, and workable criminal laws. If proposed revisions are accepted, it will mean the first comprehensive re-evaluation and recodification of our sex laws in a century.

Attention here is limited to homosexuality even though birth control, abortion, sterilization, and artificial insemination arc also controversial subjects involved in any discussion of law reform. Many people feel that some change in existing laws relating to homosexual acts is both necessary and desirable. But they do not wholly agree on what changes should be made. No one is suggesting the repeal of laws prohibiting homosexual acts with minors or acts involving force or misrepresentation or overt acts committed in public.

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What is being proposed is that the written law be brought into agreement
with present legal practice by removing homosexual acts committed in private
between consenting adults from the criminal statutes. If private acts are to be
dealt with at all, it is suggested that non-criminal means be employed. 2
In discussing law reform, this essay will (I) take a look at the legal changes
which have been proposed, (2) compare American and European statutes and
attitudes on homosexual acts and the law, (3) examine the interpretation and
the methods of enforcement of existing laws in this country, ( 4) allude to the
problem of the harassment and exploitation of homosexuals, and (5) discuss
the arguments for and against change.

Four Schools of Thought
There are four major schools of thought on homosexuality and the law.
Each of them has its own views on what the criminal law should or should
not do about homosexual acts.

The traditional "condemn and punish" school, still supported by 19% of
all Americans according to a poll taken for the Columbia Broadcasting Company
in December 1966, regards homosexual acts as sins or crimes to be
penalized by the state. 3 (Surprisingly, the same poll found that one-half of
the 71 % of the population which considers homosexuality an illness also
favors punishment.) This group believes homosexual acts are the lowest form
of human degeneracy, considers homosexuality the greatest menace any society
faces, denounces homosexual acts as "unfit to be mentioned among
Christians," and holds homosexuals personally responsible for the destruction
of Sodom and Gomorrah, for "famines, earthquakes and pestilences" (as the
Code of Justinian puts it), and for the decline of civilization as "proved" by
the fate of ancient Rome, Nazi Germany and modern Britain. This view,
though emotionally satisfying to many people, is no longer expressed with
the vigor, vehemence, and certitude of former times largely because it does
not agree with scientific findings and is out of harmony with the general
enlightenment of our times.4

The most discussed and an increasingly influential school of thought today
is the one popularized by the American Law Institute in this country, by
the Wolfenden Report in Britain, and by the International Congress on Criminal
Law in all nations. 5 This school holds that homosexual acts committed by
consenting adults in private should be none of the law's concern and bases its
recommendations on three major assumptions: first, that legal prohibition of
any sex act should occur only where there is an element of force or threat,
misuse of a superior position, the absence of consent, involvement with
minors, or a violation of public decency; second, that such laws as now exist,
being literally unenforceable, can only lead to the arbitrary and capricious
prosecution of a small number of unfortunate persons, to the use of unsavory
vice squad tactics, and to disrespect not only for such laws but for other laws
as well; and third, that there exists a distinction between morality and crime,
with every sin not necessarily being criminal and with at least some sins being
reserved to the jurisdiction of the individual and the church rather than the
state. Basic to all three assumptions are the ideas of privacy and choice as
human rights not to be lightly interfered with by the state. At this time,

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according to the CBS survey, only 19% of the American public favors legalizing
private consensual adult homosexual behavior, but 27% expressed no
opinion.6 As happened in England, open and frank discussion is apt to convince
a majority of our citizens to favor change. Already we see candidates
for political office publicly announcing their support of the Model Penal
Code.

A third group, assuming a position between the conservative "condemn
and punish" and the liberal "legalize consensual acts" schools, argues for
retention of laws against any and all homosexual acts on the grounds that the
law (I) can, should, and must express society's disapproval of such conduct
and (2) is a deterrent which at least limits or restrains the commission of
specific acts. This group believes that the law, in a not too religious age,
rep"resents the only meaningful standard of right and wrong and that any
change would not only further weaken present moral standards but would
also be taken to mean approval of previously disapproved conduct. Many
supporters of this school seem willing to accept reduction of consensual adult
acts from felonies to misdemeanors, and some of them would even accept the
removal of all penalties.7

There is yet another school of thought-one with frightening implications-
which unites the retributive and rehabilitative theories of punishment.
This is the "sick," "special care," or "sex psychopath" school. In the name of
science, humanitarianism, treatment, prevention and the security and wellbeing
of the community, at least thirty-one jurisdictions now have laws on
their books authorizing the incarceration or hospitalization of "sex psychopaths"
or "sexually dangerous persons" for an indeterminate period ranging
from one day to life. 8 The issue here is not whether there are such persons
from whom society needs protection but whether these laws are applied to
the right persons. Information on the application of these laws is hard to
come by. In some states, like California, Michigan and Wisconsin, these laws
are extensively used; in other states they are rarely, if ever, invoked.9 The
experts 10 tell us the homosexual "bears the brunt" of these laws. The experience
in California has been that although some officials want to deal with
all homosexuals as sex psychopaths, medical, psychiatric and judicial authorities
in recent years have refused to go along. Hence, in California, the laws are
used only against those homosexuals who become involved with minors or
resort to the use of force." But in some states. a person found or believed to
be a homosexual, or to have committed a homosexual act, may be proceeded
against as a sex psychopath under conditions which could not lead to his
conviction for a criminal offense. In other words, a homosexual may be (and
sometimes has been) deprived or his freedom simply because of his condition
rather than because of overt acts proceeding from his condition. 12 Recently
in one of its less enlightened decisions, 13 the Supreme Court, despite the
presentation of extensive medical evidence that all homosexuals can by no
means be classified as psychopaths, ruled that the term "psychopathic personaility,"
as used by Congress, was meant to include homosexuals. Too often,
the policeman, the prosecutor, the doctor, and the judge impose their own
views under the guise of law. The need for immediate and serious re-thinking
of the sex psychopath issue as it pertains to homosexuality is urgent.

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Historical Survey
European and American attitudes and laws on homosexuality can be
traced back to Jewish, Roman, and early Christian antecedents.1 4 For many
centuries, especially during the Middle Ages, homosexual acts fell under ecclesiastical
jurisdiction. Though the punishment was theoretically harsh and
though death by burning, hanging and burial alive was sometimes imposed,
the usual penalties seem to have been far less severe. Very likely they included
exile, castration, corporal punishment (usually flogging), and most
commonly penance-e.g., exclusion from the sacrament of communion from
one to fifteen years or for life. In 1533 King Henry VIII of England, himself
somewhat deficient in virtuous qualities, transferred jurisdiction over sodomy
from ecclesiastical to royal courts because "there is not yet sufficient and
condign punishment" for this "detestable and abominable vice." Henceforth,
sodomy was to be a felony punishable in secular courts by death Over three
centuries later, in 1861, the penalty was reduced to imprisonment from ten
years to life. In 1823 assault with intent to commit an unnatural offense was
proscribed; and in 1885, in the days of Queen Victoria, the Labouchiere
Amendment-the law under which Oscar Wilde was convicted and
imprisoned-created the wholly new crime of "gross indecency with males in
public or private" punishable by imprisonment up to two years. Committing,
procuring or attempting to procure such acts were all equally prohibited and
penalized. All these laws remained in effect until July 27, 1967.

On the continent15 the penal sections of the Code Napoleon (1810),
which contain no reference to private homosexual acts between consenting
adults, were accepted as law in such countries as France, Spain and Italy. In
the last century, criminal statutes prohibiting private consensual homosexual
acts between adults have been repealed in Belgium (1867), Holland (1886),
Denmark (1933), Switzerland (1937), Sweden (1944), and Czechoslovakia
(1962). In Greece, Poland and Turkey no such laws exist. In Norway, though
all homosexual acts are technically illegal, they may be prosecuted, in the
case of consenting adults, "only if this is considered necessary in the public
interest," and the maximum penalty is imprisonment for one year. In 1953
the Norwegian Penal Code Commission recommended the removal of adult
acts from the law, but no action has yet been taken. Only in such major
countries as Russia and Germany (both West and East), and in such minor
states as Austria, Finland, Bulgaria, Rumania and Yugoslavia do such Jaws
exist. In Russia, homosexual acts between consenting adults are punished by
imprisonment for a term not exceeding five years. The same maximum
applies in both Germanies and Austria where such acts are prosecuted as
"indecency with another male." This offense, dating back to the Imperial
Criminal Code of 1871, was retained by the Nazis in their 1935 code and by
the present German and Austrian governments in their 1953 revisions. In all
three countries, however, the repeal of this law is now under serious consideration.

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The English Experience
On July 27, 1967 the Wolfenden recommendations became law in
England. 16 A brief summary of how this came about should be of special
interest to Americans at this time. In the early 1950s England was shocked by
allegations, repeated by the British Medical Association, (1) that "practicing
homosexuals" are found "in the Church, Parliament, the Civil Service, the
Forces, the Press, the Radio, the Stage and other institutions," (2) that homosexuals
tend "to place loyalty to one another above loyalty to the institution
or government they serve," and (3) that they give "preferential treatment" to
other homosexuals and "require homosexual seduction as expedient for
promotion." 17 In 19 54 came the sensational arrest and trials of Lord
Montagu. Acquitted of charges of indecent acts with young boys, Montagu
(along with two other men) was tried for committing homosexual acts in
private with consenting adult males and was convicted on the testimony of
two airmen granted immunity from prosecution in return for turning queen's
evidence. The three men were sentenced to twelve to eighteen months in
prison.18

The Montagu case was but the most dramatic incident in what appeared to
be a stepped-up official campaign to ferret out homosexuals. It has been
alleged that pressure from American authorities who were concerned with
security matters was at least in part responsible for the campaign. 19 Where
there had been 1,666 arrests for homosexual offenses ( excluding importuning
for which no figures are available) in 1950, there were 2,504 such arrests (a
two-thirds increase) in 1955, with a conviction rate in excess of 90% and
imprisonment imposed in about one-third of the cases. To the 1955 figure
must be added 494 convictions for importuning, almost all of them disposed
of by fines. From a given group of 489 males convicted of homosexual acts,
the arrests in 304 cases (62%) resulted from information obtained by the
police in their investigations of other (usually homosexual) offenses. Government
spokesmen, in reply to parliamentary inquiry, said that the police learn
of about 2,000 homosexual offenses annually, of which approximately 1,300
are prosecuted, with about I 00 of the men being convicted of private consensual
acts with other adult males.20

Public response to the trials soon shifted from an initial expression of
revulsion at such behavior to outrage not only at the methods used by the
police lo obtain evidence but also to a course of action which seemed to
constitute a witch-hunt. 21 After prominent churchmen and public figures
spoke out against the prosecutions, a reluctant Home Secretary agreed to
appoint a special committee, to be headed by Sir John Wolfenden of Reading
University, to investigate "the law and practice relating to homosexual offenses"
and to make recommendations thereon. The committee began its
work in the summer of 1954, interviewed witnesses over a two year period,
and submitted its report in September, 1957. It was profoundly influenced
by the conclusions of the Church of England's Moral Welfare Council and the
Archbishop of Westminster's Catholic Advisory Committee. 22 Both groups
strongly urged that homosexual acts between consenting adults in private be
removed from the criminal statutes. The Wolfenden Committee adopted this
recommendation as its own and added a number of lesser ones as well.

Reaction to the Wolfenden Report was mixed. 23 The metropolitan press
tended to favor its recommendations, but the provincial press opposed them.
The yellow press painted a sensational and lurid picture of things to come.
Prominent persons in public and private life were found on both sides of the
issue. Government spokesmen chose to say as little as possible. In December
1957, the House of Lords, and in November 1958, the House of Commons
took up the subject.2 4 Quiet words of moderation were drowned out by a
strident crescendo of indignation, anger, and disgust. A public opinion poll
showed 47% of the public opposed to the recommendations, 38% in favor
and 15% undecided_25 A year and a half later, in June 1960, the Commons
voted (213 to 99) against any implementation of the recommendations. The
words of opposition were still harsh and often emotional. As the Home
Secretary put the case, the time for change had not arrived, further study of
the subject was needed, progress was being made, sympathy for persons suffering
injustice under the rigors of the present law was proper, but ameliorative
legislation would be misunderstood as approval of immoral conduct. 26

For five years no further official consideration was given to the matter.
However, there was a lively debate in the press and the Director of Public
Prosecutions tried to discourage local authorities from prosecuting "stale"
cases and cases involving private adult consensual acts. 27 Then, 111 1965, a
shift of opinion became apparent. The half-way mark had been reached. In
February the Liberals made it a matter of party policy to support the implementation
of the Wolfenden recommendations; and in May the Lords, not
usually regarded as radical or progressive, voted (99 to 49) for the proposed
changes. But the Commons voted (I 78 to 159) against it. However, even in
the Commons a significant change had occurred-in five years the margin of
opposition had declined from two to one to a bare majority. Reformers saw
victory just around the corner. Soon (in October) another favorable vote by
the Lords (96 to 31) was followed by the introduction of a homosexual law
reform bill in the Commons where it was given its first reading in November,
and a favorable vote (I 64 to 107) on its second reading in February 1966. In
May and June there followed two more favorable votes in the House of Lords

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(70 to 29 and 78 to 60). At this point, lacking only its third reading in the
Commons, the bill died because Parliament was dissolved for national elections.
But in the newly elected Parliament, the Commons on July 5, 1966
voted overwhelmingly (244 to 100) to reintroduce the bill and on December
19th gave it a favorable second reading (194 to 84). By this time public
opinion polls showed 63% of the population in favor of change. 28 Finally on
July 4, 1967 the measure received final approval by the Commons (99 to 14),
despite last minute attempts to filibuster the bill to death, and on July 21st
the bill was approved by the Lords without a formal vote. Where the Conservative
government had actively opposed the change, the Labor government,
though technically neutral, favored it. The battle of the decade was
over. What had seemed radical and visionary in 1957 had become reasonable
and proper by 1967. Humanitarians had chalked up another victory.

Situation in the United States
In this country, which Kinsey found more vehemently anti-homosexual
than any other nation in the world,29 it may take quite some time, except in
the more enlightened states, to effect the proposed reforms so recently translated
into law in England. Apart from Illinois (1961 ), no state has yet accepted
the Model Penal Code's recommendations on homosexuality. There
are those doubting Thomases who say the legislators of Illinois did not realize
what they had voted for. The same cannot be said of the New York legislators
who in May of 1965 adopted a new penal code. In its original form, the code
removed consensual sodomy and adultery from the list of criminal offenses.
The code commissioners and legislative leaders, on the basis of their meetings
with churchmen and other professional groups over a three year period, were
confident of success. But as the time to vote drew near, the strong and open
opposition of spokesmen for the Roman Catholic Church, expressed in an
eighteen-page memorandum sent to each legislator and in oral testimony at
public hearings, caused the legislators to get cold feet. By a vote of 115 to 16,
the two contested acts were retained as criminal offenses. 30

In I 963 Minnesota refused to accept a proposal to reduce its maximum
penalty for consensual adult sodomy from twenty to ten years in prison.31
Two years earlier, New Mexico dropped a proposal to remove consensual
adult sodomy from the criminal code after a measure had passed the lower
house (37 to 28) and was expected to pass the upper chamber. Allegedly the
intervention of a high Catholic cleric caused the reform effort to collapse. 32
In October 1966, a subcommittee of a North Carolina commission studying
laws on public morality recommended that no change be made in the state's
existing sodomy law.3 3 In Pennsylvania the proposed new penal code recently
submitted to the legislature reduces consensual sodomy from a felony to a
misdemeanor and exempts husbands and wives from prosecution for unnatural
acts.34 Georgia reportedly will not only retain its sodomy laws, but
its proposed new code will extend them to include lesbian acts. 35 In
California, Michigan, Washington and Connecticut, 36 revision commissions
are proposing to follow the lead of Illinois.

In some states, like Florida, where a relentless legislative campaign against
homosexuals has been going on since the creation of the Johns Committee in
1955, the trend is toward increasing the severity of present laws. As the
Minority Leader of the Florida House recently put it: "The homosexual
deserves no better treatment than any other criminal," and new laws to
combat homosexuality will be proposed to the legislature because _"homosexuality
must be eliminated. "3 Recently a number of chiefs of police from
such cities as Los Angeles and Denver38 have publicly spoken out against any
modification of present anti-homosexual laws.

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Present American Laws
Our laws prohibiting homosexual acts, though numerous, are characterized
by a vagueness and imprecision not tolerated by legislators and judges
in the case of any other criminal offenses.39 Almost all homosexual acts except
in Illinois, New York, New Jersey and possibly the District of
Columbia-are felonies, though in law California and North Dakota offer a
misdemeanor option; and in practice, all states permit consensual adult sodomy
to be prosecuted as a misdemeanor through the use of alternate sections
of the penal codes. 40 (Technically, felony usually refers to an offense
punishable by death or imprisonment in a penitentiary for one year or more;
and misdemeanor, to an offense punishable by a fine or a jail sentence not
exceeding one year or both.)

The usual terms used to describe homosexual acts are "crime against
nature" (in the statutes of 31 states) and "sodomy" (in 27 states). In addition,
the terms "buggery," "perversion," "fellation," "unnatural intercourse,"
"unnatural and lascivious acts," "unnatural or perverted practices,"
"indecent or immoral practices," "perverse acts," and "deviate sexual conduct"
are occasionally used. 41 To "crime against nature" -a very curious
term-are added the pejorative "abominable and detestable" in 13, and
"infamous" in 7 states. 42 No other offense, not even murder, is prefixed
with such judgmental adjectives.

The penalties imposed for consensual crimes against nature sometimes
reach rather astronomical proportions as far as the lifetime of an individual is
concerned. The maximum penalty is life imprisonment in 5 states, 30 years in
1 state, 21 years in 1, 20 in 10, 15 in 4, 14 in 2, 10 in 18, 5 in 6, 3 in 2, and 3
months in 1.43 (By contrast the maximum penalty in European countries is
five years.) The minimum penalty runs from I day in 1 state, to 4 months in
1, to 1 year in 37 states, to 2 years in 6, to 3 years in 1, to 5 years in 3, to 7
years in 1. In 13 states a fine may be substituted for imprisonment; in 2 states
a fine is levied in addition to imprisonment; and in 11 states both a fine and
imprisonment may be imposed.44

For private consenting adult acts, which are increasingly coming to be
regarded as harmless and inconsequential, such penalties are unquestionably
severe and perhaps self-righteously savage. It is not surprising, therefore, to
learn that the felony statutes are seldom invoked in such cases. To retain the
laws, but not to enforce them, appears to be the desire of both legislators and
citizens-and of many prosecutors and judges as well. Indeed, one of the
factors which convinced many churchmen in New York to favor retention of
present laws was an assurance that they are not used against consenting
adults.4 5 However, some police officials and prosecuting attorneys, having a
rather literal concept of the law and its enforcement, especially when
guarding the community from the sexual nonconformist, still passionately
argue "there is no legal sexual release for the homosexual" and "every homosexual
act is a felony." It is the search and seizure rules currently imposed by
the courts and practical considerations of a limited budget and a manpower
shortage rather than any feeling that society does not want such laws enforced
that deter these officers from proceeding against adult males who
commit homosexual acts in private with consenting partners.

From time to time, the press carries stories of adult homosexuals convicted
of private consenting acts. In January, 1962, Max Doyle Perkins of
North Carolina (according to TIME, a magazine which can hardly be called
soft on homosexuals) was convicted of such an act; and he was sentenced to
20 to 30 years-in short, to imprisonment for the rest of his natural life_46 In
1955, in Boise, Idaho, in a TIME-inflamed witch-hunt, 5 of the 16 men
arrested were charged with committing homosexual acts with consenting
males aged 18 or over. 4 7 Three of these men were given prison sentencesone
for 7 years and the other two for 5 years each. In Canada, two years ago,
Everett Klippert, after being convicted of performing consensual homosexual
acts in private with four other adult males over a nine-month period, was
sentenced to "an indefinite period of detention." His sentence was recently
upheld as constitutional by the Supreme Court of Canada .48 There are no
doubt many other cases which have not been brought to public attention
because sentences have not been excessive.

As an alternative or a supplement to criminal prosecution, 31 jurisdictions
permit the civil commitment of an individual charged with private consensual
sodomy or of a person believed to be a homosexual for an indeterminate
period between one day and life.49 Unfortunately, no satisfactory statistics
on the implementation of the sex psychopath laws are available; but the
above actualities and possibilities argue for revision of present felony statutes.
Most consensual homosexual offenses are prosecuted as misdemeanors,
partly because judges and juries are reluctant to convict on felony charges
carrying such excessive penalties, partly because prosecutors find it difficult
to obtain the evidence and corroboration necessary for conviction even under
the relaxed standards permitted in sex trials, partly because the number of
cases is so great that effective prosecution of them as felonies is beyond the
temporal and financial capacities of the prosecutor's office, but primarily
because most prosecutors and judges have concluded that these offenses are
mere nuisances. As the system now operates, only a few defendants charged
with consensual homosexual acts ever plead not guilty and thus compel the
prosecution to present its case before judge or jury. Rather, most such de-

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fondants either confess from the start or, being threatened with prosecution
for a felony, agree to "cop out" -i.e., plead guilty to a misdemeanor
charge. 5 0 (As the President's Crime Commission reported, confession and
pleading guilty to a lesser offense account for as many as 90% of all convictions
in some jurisdictions of the United States today. 51 )

The specific charges for which homosexuals are usually arrested are these:
solicitation, loitering, disorderly conduct, lewd or indecent acts, indecent
exposure, disturbing the peace, lewd vagrancy, assault, public nuisance, or
being a lewd and wanton person. Many of these offenses are as ill-defined as
they are a matter of personal judgment. But very simply put, the acts behind
these charges consist of actual or attempted anal or oral contact, exposure of
the sex organ, physical touching, an individual's presence in the wrong place
at the wrong time for the wrong purpose from the arresting officer's point of
view, 52 the exchange of money, or a conversation which may or may not
have sexual overtones.

The penalties for these nuisance offenses, almost all of which occur in
public, involve fines ranging from $10 to $1,000, jail sentences, when imposed,
varying from 3 to 12 months, or some combination of the two. 53
Sinte it is so universally agreed that prison is the wrong place for a homosexual,
jail sentences, at least for first offenders, are frequently suspended;
and probation is substituted. What the arrested homosexual has to fear is not
the severity of his sentence, but the consequences of revelation. Personal
humiliation, alienation from family and friends, and loss of jobs-these are
the real penalties; and they become operative at the moment of arrest rather
than after conviction.

Precise statistical data on homosexual offenses are not readily available.
Police and court record-keeping has long been unsystematic, imprecise, and
confusing; and the police, for a variety of reasons, often refuse or are reluctant
to release such information. 54 Figures supplied in the UCLA study 55
show that in Los Angeles County there were 439 felony cases referred to the
Superior Court during the three year period 1962-64 (or an average of 146
per year) and that 2,994 persons were involved in misdemeanor cases brought
before the Municipal Court during the year starting May 1, 1964. Using a
random sample of 64% of the felony and 16% of the misdemeanor cases and
excluding any cases involving minors or the use of force or fraud, the study
found that the conviction rate was 23% for sodomy (anal penetration) and
54% for foliation (oral copulation), was 95% for the misdemeanor cases, and,
when felony charges were reduced to misdemeanors as they were for 40% of
the defendants originally so charged, was 89% overall.

Because no comparable studies have been made for any other area, only a
few additional figures can be given. During the 1950s, felony arrests in
Philadelphia averaged about 10 per month and misdemeanor arrests, about
100. 56 Back in the McCarthy days, approximately 1,200 homosexual arrests
were made each year in the District of Columbia. 57 For the years 1960-63,
the number of arrests made annually in New York City is estimated at between
1,000 and 1,200. Of these, only 250 are for felony offenses; the
remainder involve misdemeanor charges of solicitation of decoy officers,
except for 125 arrests for sexual acts in public. 58 In Chicago, about 150
homosexuals are arrested each month 59 In Columbus, Ohio, there are approximately
300 arrests a year.60 In San Francisco arrests are down from 911
in 1961 to 354 in 1964. 61 Because of increasing public awareness of homosexual
activity and because of markedly stepped-up police activity in this
field, today's arrest figures are very probably considerably higher than most
of those just cited. Conviction rates for the above arrests, though not available,
presumably exceed 90%.

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Police Practices

It is a truism that our laws proscribing homosexual acts cannot possibly be
enforced as they stand. To suggest they can is preposterous. The number of
homosexual acts committed is too great; the facilities needed to prosecute,
imprison, or treat homosexuals on a mass basis do not exist; the cost of
creating them would be prohibitive; and the general feeling of the populace is
against it. A modest estimate of the predominantly homosexual population of
the United States today is ten million. It is sobering to learn that during the
whole of 1965 there were 2,780,015 offenses of all kinds ( excluding traffic
violations) known to the police,6 2 that the country's detention capacity is
approximately 425,00o,63 and that the number of psychiatrists is around
20,000. 64 People who speak in the simplistic terms of literal enforcement of
the law or incarceration and treatment of homosexuals, not knowing or unable
to accept the actual situation, naively believe homosexuals are few and
far between and fail to appreciate the implications of their views. But police
and prosecutors must be more realistic. Of necessity, they limit themselves to
"selective" enforcement. Normally, of the many homosexual cases coming to
their attention, only those which involve minors, public display, and force or
fraud are prosecuted. 65 Although there is some disagreement about what
should be the age of consent and what constitutes force or fraud, the impropriety
of public sex acts is widely acknowledged, as is the desirability of
doing something about them. However, the shock which public sex acts committed
by homosexuals arouses in the delicate sensibilities of hardened vice
officers is to be contrasted with the indifference which public heterosexual
acts bring and with the tacit encouragement given to such acts when lovers'
lanes are ignored or given police protection.

If the idea of arresting homosexuals for being homosexual has an appeal, as it
does to some people, then the problem of enforcement becomes simply a
matter of catching or identifying homosexuals, preferably at twenty paces.
Though there are those who would argue to the contrary, it appears that
build, manner of walking, tone of voice, or even color of the hair are not
sufficiently reliable stigmata to warrant the risk of false arrest. Hence, the
practical matter of uncertainty, strengthened by the philosophical principle
that "dislike of the unlike" is not sufficient grounds for arrest, supports the
proposition that the commission of homosexual acts rather than the existence
of the homosexual condition should be the basis for arrest. Though there is
no denying that solicitation and homosexual acts occur in public, police
claims that such activity is blatantly offensive and is a special danger to
minors are not supported by complaints from aggrieved parties, by police
testimony, or by such research as has been done on the subject. Rather,
researchers have found that solicitation tends to be discreet and unnoticeable
to a disinterested party and that homosexual acts are abruptly discontinued
at the approach of an unknown or unsympathetic person. 66

In order to catch persons engaged in homosexual acts, the police have
chosen to rely on two major techniques-both very expensive in time and
money: "clandestine observation" which means spying through peepholes (as
in the case of former White House Aide Walter Jenkins) or special mirrors,67
using hidden TV cameras, 68 or secretly taking photographs;69 and trapping
or "decoy operation" which means sending out plainclothesmen who dress,
walk, talk and act as they think homosexuals do for the sole purpose of
enticing a homosexual solicitation. (In addition, police occasionally are able
to make arrests as a result of personal confessions, investigation of specific
complaints, utilization of information obtained incidentally in the investigation
of other matters, or stumbling accidentally upon persons engaged in a
homosexual act.)

In Los Angeles, according to the UCLA study, the police relied on clandestine
observation in 93% of the felony arrests and 39% of the misdemeanors.
Because such a procedure has raised questions of search and seizure
and invasion of privacy, the courts have restricted this practice to some
degree. Spying on people using public toilet facilities in the hope of ultimately
discovering someone who commits an illegal act can be criticized on practical
and ethical as well as legal grounds. 70

The use of decoys is widespread. In Chicago last summer (1966) three bars
were closed after decoys testified they had been "solicited" in them. 71 In
Tallahassee, in December, 1965, the governor of the state and the president
of Florida State University publicly protested police use of college boys as
decoys to trap homosexuals at ten dollars a head.72 And in New York City,
the mayor and chief of police, in April, 1966, after the police had denied over
and over again that any such thing happened, ordered plainsclothesmen to
cease enticing and entrapping homosexuals. 73 The Los Angeles police used
decoy operations to effect 51 % of their misdemeanor arrests. 74 Here the
problems of enticement and entrapment abound. Police policy may forbid
vice officers to engage in such conduct; but the idiosyncracies of individual
plainclothesmen, the testimony of arrested homosexuals, and the indefiniteness
of the whole situation raise serious doubts. Masters, in his book, holds
that police practices "amount to entrapment," and the UCLA study flatly
asserts that "enticement is widely practiced." 7 5 And Paul Welch, in his article
in LI FE, clearly showed how the decoy may take the initiative. 76 The same
issue is at stake in the activities of state liquor agents who frequent bars
catering to homosexuals for the explicit purpose of soliciting invitations

Page 13:
which can be used to justify complaints and arrests which may lead to revocation
of a bar's liquor license. In court, judges and juries almost without
exception believe the decoy's version of what happened. (In Los Angeles only
7 out of 434 misdemeanor (1.6%) and 12 out of 493 felony arrests (2.4%)
made by decoys were dismissed.) 77 Because verbal and visual exchange without
the commission of any overt act is sufficient for arrest, because corroboration
of the decoy's testimony is not required, because so little evidence of
citizen complaint or public outrage has been presented, and because the
opportunity for error and injustice is so great, serious doubts about the whole
decoy system have been raised.

Judicial definitions of entrapment also leave much to be desired. Judges
say the test for entrapment involves finding answers to two questions: First
did the intent to commit the crime originate in the mind of the defendant or
the decoy. Only if it originated in the mind of the officer has entrapment
occurred. And second-a relaxation of the preceding test-did the defendant
have a "pre-existing" intent? If he did, then the officer's intent is irrelevant;
and entrapment has not occurred. Since judges ASSUME a pre-existing intent
in the defendant's mind in homosexual cases, it would appear that entrapment
has been defined out of existence as a defense in homosexual cases. 78
Learned judges may divine what is in the minds of the decoy and his prey,
but ordinary mortals are less talented. In recent years a number of church
groups and legal specialists have criticized present court definitions of entrapment,
especially as they pertain to homosexuals, for being unrealistic, impractical,
evasive, emotionally inspired, and concerned with a false issue.79
They have proposed that the test should be concerned with the decoy's
behavior rather than his intent-a matter which can be empirically determined.
Specifically, they argue that if the decoy dresses, talks, or acts in a
manner suggestive of a homosexual rather than heterosexual orientation he
should be guilty of entrapment.

The more economical, and apparently equally effective, way to control
public homosexual behavior is to rely on uniformed patrol of suspected areas
at irregular intervals. When, for example, upon the suggestion of the
WASHINGTON POST and the request of the Mattachine Society of
Washington, the District of Columbia police agreed to substitute uniformed
officers for decoys in such places as Lafayette Park, the number of arrests
(and presumably the amount of homosexual solicitation) declined by one-half.
80 But police preference for the use of decoys rather than patrol by
officers in uniform suggests a greater interest in encouraging violations of the
law in order to make arrests than in preventing the commission of offenses. 81
Though over-zealous decoy activity has been repeatedly denounced by the
courts, 82 the criticism has made little or no impression on police and prosecutors.
Furthermore, as the courts have restricted clandestine observation,
the police, at least in Los Angeles, have increased their use of the decoy
system. 83 Until the courts revise their present definition of entrapment or
an outraged public demands a change, the decoy system will be more and
more widely used.

Another police practice extensively used consists of compiling lists of
names of known or suspected homosexuals. Once an arrest is made, intensive
interrogation leads to additional names. The named persons are in turn interrogated,
often under conditions which can only be described as extralegal if
not illegal. The scandal in Boise, Idaho, a decade ago illustrates the technique.
84 Starting with the interrogation of a dozen or so males, a specially
hired investigator, employing questionable tactics for which he was never held
to account, accumulated a file of 500 names. The fear and suspicion that ran
rampant through that small city are graphically described by John Gerassi in
his BOYS OF BOISE. The propriety and purpose of drawing up such rosters
needs explanation.

Also needing thoughtful reconsideration are the laws requiring life-long
registration of certain types of sex offenders with the law enforcement officials
of any community in which they may live. Allegedly the purpose of
registration is to protect society from persons who commercialize sex, resort
to crimes of violence, or commit offenses against children. In California, in
the case of homosexuals, sodomy, fellation, indecent exposure, and soliciting
for, loitering for, or engaging in lewd acts are all registerable offenses.85 The
UCLA study found that the police are "adamant" in their determination to
have all homosexual offenders registered, arrest for an offense requiring registration
whenever possible, and are "annoyed" when judges allow homosexual
defendants to plead to a "non-registerable lesser included offense."86 But
since research studies show so conclusively that homosexuals are rarely involved
in crimes against children or in crimes of violence, 87 the justification
for registration of adult consensual homosexual offenders, with the stigma
attached to it, is without foundation. Specifically, of the 968 defendants
studied by the UCLA group, only 6 (.6%) had ever been convicted of a crime
involving a child, and only 21 (2%) had ever been convicted of a crime
involving violence. Hence, keeping a list of persons convicted of consensual
homosexual acts with adults seems of dubious practical value for law enforcement
purposes. In addition, registration may violate the constitutional
guarantee against sefl-incrimination, and keeping such lists unfortunately
lends itself to the possibilities of abuse and harassment through disclosure of
information to unauthorized persons. 88

Although they deny it, the police often feel a special obligation, which
they do not assume for other and more serious offenses, to report the arrest
of homosexuals to their employers and landlords.89 It seems unclear why, if
most homosexual offenses are regarded as nuisances, the police should take
such action when they know full well it is likely to result in the individual
being fired from his job and evicted from his home. What are the moral,
psychological, and legal implications of such a course of action?

Page 14:
Harassment and Exploitation of Homosexuals

Homosexuals claim that they are not only harassed by public officials
through the agencies of the police, the liquor authorities, and the post office,
but that they are also victimized, often with near impunity, by a few policemen,
by young thugs, and by organized extortionists. (In addition, they point
out that they are discriminated against in employment and military service.90)

"Gay bars,"91 probably the most popular social institution in homosexual
society, arouse the hackles of some people. For years, efforts have been made
to close them down as menaces to the "public welfare and morals." Individual
homosexuals and owners of such bars allege that vice and liquor officers
practice enticement and entrapment in order to make arrests, hold homosexuals
to a much higher standard of conduct than heterosexuals and harass
both patrons and owners by repeated and extended surveillance and by raids
which result in mass arrests. 92 Such harassment not only deprives the homosexual
of his personal right of patronizing places of his own choice but also
threatens the economic livelihood of the bar owner.

Challenging the policy and decisions of the police and the state liquor
authorities93 is a slow and expensive proposition; and until recently, the
likelihood of success-even on appeal-has been small. Slowly but decisively
the courts are assuming the position (a) that homosexuals have a constitutional
right to congregate in public places of their choice so long as they
commit no illegal or immoral acts and (b) that bar owners may not have their
licenses suspended or revoked simply because they cater to a homosexual
clientele.

In California the issue was fought out between the legislature, the Alcoholic
Beverage Control Department, and the courts in the 1950s .94 On the
east coast, the issue is only now being resolved. Last year three members of
the New York Mattachine Society threatened to file a formal complaint with
the State Commission on Human Rights and to sue the owner of the bar
where they had been refused service because they were homosexuals. At this
point the Chairman of the State Liquor Authority denied the commission has
ever indicated that homosexuals should not be served.95 Yet, in recent years
bars which attracted homosexuals were closed one after another until very
few remained.96 During the past year the licenses of three bars in New Jersey
were suspended or revoked by the State Alcoholic Beverage Commission
specifically for "permitting apparent homosexuals to congregate" in them. 97

But the New Jersey Supreme Court has recently overruled this policy and has
decreed that homosexuals "have the undoubted right to congregate in public'
so long as their behavior "conforms with currently acceptable standards of
decency and morality."98 (Exactly ten years ago, however, the same court
had with equal certainty upheld the legality of such suspensions or revocations:
"Assuredly," it had said, "it is inimical to the preservation of our social
and moral welfare to permit public taverns to be converted into recreational
fraternities for homosexuals .... "99) In Florida, the situation is quite different.
In Miami an ordinance prohibits homosexuals from working, being served, or
congregating in places selling alcoholic beverages. In a test suit filed by the
former president of the Mattachine Society of Florida, the ordinance was
found constitutional. Inasmuch as the Florida Supreme Court has refused to
review the lower court's decision, the ordinance stands.100 And since that
refusal, Coral Gables has passed a similar ordinance. Such a prohibition cannot
possibly be enforced, but it is tailor-made for harassment and corruption.101

Outright police harassment of homosexuals is now becoming a matter of
public knowledge. Newspapers all over the country are reporting police raids
on bars, or other places, "known or alleged to be homosexual hangouts."
What happened in Chicago in April, 1964, is not unusual. Front page stories
listed the names and addresses and places of employment of many of the I 03
persons taken into custody at the Fun Lounge, a bar near O'Hare Field.
Ultimately all charges were dismissed. But in the meantime, 30 men had lost
their jobs and all concerned had been publicly branded as persons frequenting
"a rendezvous for deviates." 102 Two years later, in the summer of 1966, the
Chicago police were still making arrests on a mass basis. As one attorney
pointed out, "There's never the slightest hope of conviction in cases like
these." 103 Indeed, the police do not even bother to show up at court, but
they build up the department's arrest statistics; and they saddle alleged or
actual homosexuals with the handicap of a police record for the rest of their
lives. Civil libertarians consider these mass arrests vicious police harassment
and prima facie evidence of discriminatory enforcement of the law. Moreover,
American Civil Liberties Union chapters in New York, Chicago, and Atlanta
have recently denounced this sort of activity and "this growing practice by
police to treat sexual deviancy as a criminal offense." 104

Another clear-cut example of police harassment occurred in San Francisco
on the evening of New Year's Day, 1965, at a benefit ball sponsored by a
number of homophile organizations as a means of raising funds for the
Council on Religion and the Homosexual.10 5 In order to avoid trouble, a
delegation of ministers and representatives of the homophile community first
cleared their plans with the police department. Going back on their word, the
police showed up in force-squad cars, patrol wagons, uniformed officers,
plainclothesmen, and photographers. They took pictures, both still and

Page 15:
movie, of persons entering and leaving the hall. When they demanded the
right to enter, they were told by three lawyers that the dance was a private
affair and that, unless they had information that a crime was being committed
inside, they could not legally enter without a search warrant. Thereafter
the three lawyers and a married woman taking tickets at the door were
arrested for interfering with police officers in the performance of their duty.
Having entered the hall without any difficulty, the police, an hour later,
arrested two men for committing lewd acts. Subsequently six ministers publicly
accused the police of "intimidation, broken promises, and obvious hostility."
At their trials the three lawyers and the ticket taker were acquitted by
order of the judge, but a jury found the two men guilty of disorderly conduct.
Last New Year's Eve a dramatic incident, involving elements of police
brutally as well as probable harassment, occurred in Los Angeles.106 It is
still too close in time and emotion, however, for the matter to be seen in
proper perspective. Officials maintain no violence was intended. But when
police officers see a man in female attire (as several of the defendants were),
they sometimes, even though being so dressed does not per se constitute an
offense, find it hard to control their emotions. At the stroke of midnight,
plainclothes vice officers, who had been in the bar as "customers" for quite
some time, with guns and fists as their "identification," began their raid.
Joined almost immediately by a number of uniformed officers, who had been
waiting nearby in squad cars, they arrested 16 persons in the Black Cat and
12 in the New Faces bars. Grounds for arrest was lewd conduct (kissing),
except for two charges of drunkenness and one for assault. During the altercation,
according to a witness who wrote to PLAYBOY, 107 one of the officers
kept yelling, "Save a queer for me."

At the Black Cat trial, testimony that two bartenders and a number of
customers had been beaten by the police was excluded as irrelevant but
testimony that the police had been attacked was allowed; and contradictions
between the testimony of the officers and their official arrest reports were
revealed. Though the story of the raids was partially covered by local radio
and television stations and by the underground LOS ANGELES FREE
PRESS-not one word on the subject appeared in the daily newspapers-most
of the information was held back for about two weeks. All of the men
arrested at the Black Cat have been tried. Two of them were fined after
pleading NOLO CONTENDERE. Seven were tried together-six were found
guilty by the jury and were fined ($50 to $300). Their convictions are being
appealed. The other man, who had been seen in court with a girl friend during
the tnal, had charges against him dropped when the jury could not agree on a
verdict. The remaining seven defendants were tried separately and acquitted.

Complete details on the New Faces case are not yet available. But one of
the arrested men, a waiter, who had been so seriously beaten by the police
that he had to have an emergency operation to remove a ruptured spleen, has
been found not guilty of assaulting the police. Another man, a bartender, and
the woman who owned the bar were also beaten by the police-but they were
not arrested. Neither bar exists any longer. Within three weeks, after nightly
visits by uniformed officers checking rest rooms, licenses, and the conduct of
patrons, business fell off so drastically that the owner of the New Faces had
to close the bar. The Black Cat, its liquor license suspended, closed its doors
May 21st.

Other types of harassment 108 include: checking identification cards of
bar patrons for age, arrests for jay-walking or minor traffic violations of
persons seen leaving a homosexual bar, repeated inspection of premises for
possible violations of fire and health ordinances, parking police cars (with or
without flashing lights) in front of or near gay bars, and stopping persons on
the street for identification and interrogation. Again, as the UCLA study
pointed out, such harassment directed only at known or suspected homosexuals
is quite possibly a violation of the equal protection clause of the
Fourteenth Amendment.109

Many homosexuals have refused to subscribe to homophile publications
for fear that their names would appear on some official list and that the
consequences would be serious 110-a fear that seems to have some basis in
fact. Two years ago, in Pennsylvania, a state employee was forced to resign
after postal inspectors informed his superior that he had received materials
published by the Janus Society and other groups interested in homosexuality.
In similar fashion, postal authorities went to the supervisor of a federal employee
and, in the case of a professor, to the president of his college. I I I Last
year congressional investigators looking into governmental invasions of privacy
discovered that the Post Office has been placing "mail covers" (i.e.,
drawing up lists of names and addresses) on persons receiving books and
magazines aimed at homosexuals and that, on request it has been passing
along the names to employers in government and private industry. Under
congressional prodding, the Postmaster General has said he will order his
department to stop these mail covers.112

Homosexuals face occasional violence at the hands of police, "queerbaiters,"
and offended persons approached by them or sexually involved with
them. A few policemen realize that they can get away with using unnecessary
force against homosexuals and justify beating up queers on the grounds that
judges let them off too leniently;l 13 and some policemen also treat homosexuals
with contempt or "psychical brutality." 114

"Queer-baiting" (i.e., tracking down homosexuals in order to beat them
up and rob them) has become an acceptable pastime among some teenagers.
For example, one night in April, 1961, four San Francisco boys beat up and
robbed a young man completely unknown to them, but whom they suspected
might be a homosexual, and left him lying on the street where he was run

Page 16:
over by a street car. After his death, the boys were arrested, prosecuted, and
convicted. A police inspector said the boys considered beating up queers a
civic duty, and one of them boasted, "I know one fellow who has 28 or 29
queers to his credit." 115 In Denver, in the spring of 1962, eleven teenage
youths who had been picked up for queer-baiting justified their action with
such somments as, "A guy's gotta do something for kicks" and "I just can't
stand them" 116

Newspapers frequently carry brief stories about men beaten up or killed
by parties claiming to have been offended by indecent proposals or homosexual
acts perpetrated upon them. To what degree the assailant was a willing
or reluctant partner is difficult to determine. Among the many examples to
be found are the following: 117 a 57 year old Massachusetts doctor stabbed to
death by a 27 year old man, a 21 year old soldier found not guilty of
murdering a 38 year old man, a San Francisco father acquitted after shooting
his son's homosexual friend, a 20 year old ex-Marine from Georgia admitting
he shot a 21 year old Pennsylvania man, a 22 year old man convicted of
murdering a 42 year old minister in Minnesota, a Miami business man stabbed
to death by a young man, a 41 year old Canadian scholar found stabbed to
death in a motel room in New Orleans, a young Englishman and his girlfriend
convicted of murdering a 17 year old homosexual who refused to give them
money, three sailors accused of beating a Philadelphia man to death in
Martinique, and three former paratroopers in their twenties acquitted of murdering
a 56 year old mortician in Indiana.

Blackmail and extortion have long been familiar byproducts of homosexuality.
In March 1966, the nation's press headlined the news that the
district attorney and police of New York City, in cooperation with the
Federal Bureau of Investigation, had uncovered a nation-wide racket operated
by a ring of some seventy or more men who had extorted over a million
dollars from several thousand homosexuals during the last decade. 118 Leader
of the ring was John J. Pyne, a former Chicago policeman, who provided his
workers with genuine police badges, arrest warrants, and extradition papers.
The ring's mode of operation was simple and effective: a "chicken" (a young
man serving as the decoy) would approach a known or suspected homosexual,
usually in a bar, and suggest going to a hotel; there the "chicken" would
either overpower his victim, steal his money and identification papers, or be
"discovered" in a compromising position by partners posing as detectives who
would suggest maybe a deal could be worked out to avoid arrest; later,
members of the ring would visit the victim at his home or place of employment
to demand payment on threat of exposure.

Among the victims were a Congressman who paid $40,000, an admiral
($5,000), a general ($2,000), a British producer ($3,000), a minister
($2,000), two well known singers, a TV personality, a movie actor, a musician,
a west coast surgeon, a California nuclear scientist, two university deans,
a number of college professors, many businessmen (including a Utah contractor
who paid $10,000), and a wealthy midwestern school teacher who is
said to have paid out $120,000 over a four year period. Another of their
victims was a military officer who committed suicide the night before he was
scheduled to testify before a grand jury. Some of the victims who refused or
were reluctant to pay were beaten up; others lost their jobs and suffered
broken marriages and homes when the blackmailers notified their employers
or families by letter or telephone. So far, 45 members of the ring have either
pleaded guilty or have been convicted. All of them have received prison
sentences, a few as high as ten years.

Extortion schemes of this sort are not new. Back in 1940, the district
attorney of New York City broke up a similar ring which had been operating
in and around that area for twenty years. 119 In that instance, 23 blackmailers
went to prison. Still another gang was broken up in New York City
around 1960. 120

Recent exposures have aroused considerable concern as frank and full
news coverage indicates. Police officers and F.B.l. officials have contacted
leaders of homophile organizations to request their cooperation in bringing
criminals who prey on homosexuals to trial. 121 Writers in religious journals,
as well as in the popular press, have called for an end to this sort of activity
.122 Many police departments have begun to do something about curtailing
exploitation of homosexuals, whether in the form of violence and
robbery perpetrated by fellow police officers, teenage gangs, or individual
thugs or in the form of extortion by organized rings or individual blackmailers.
But for them to be successful, homosexuals must be willing to
register complaints and to testify against their assailants~something which
homosexuals arc still reluctant to do. To encourage victims to come forward,
a number of district attorneys arc willing to grant immunity from prosecution,
expressed in writing, for any homosexual offenses which may be in volved
and to do all in their power to handle the matter as quietly as possible.
In the recent extortion trials, for example, no homosexual involved was identified
by name in the press.

Page 17:
Solicitation

One of the "touchiest" problems facing homosexuals is solicitation. A
large percentage of homosexuals who run afoul of the law are arrested for
solicitation. Under present laws it is understandable that solicitation to commit
a forbidden act is itself an offense. Under the proposed reforms of the
Wolfenden Committee and the American Law Institute, public solicitation to
commit sexual acts which are themselves no longer illegal would continue to
be unlawful. This logical anomaly is justified as a practical necessity designed
to "control" the public conduct of homosexuals and to limit behavior which
many people find offensive and immoral. English law permits arrest when
importuning is "persistent."123 and the Model Penal Code makes "loitering
in or near any public place for the purpose of soliciting or being solicited to
engage in deviate sexual relations" a petty misdemeanor punishable by a fine
as high as $500 or a jail term up to thirty days. 124 Presumably, as research
st udics have shown, 125 homosexual solicitation is carried on in a discreet and
unobvious fasl1ion and usually consists of an indirect sexual proposition -e.g.,
How would you like to go for a ride'/ Would you care to come over to my
place for a drink? etc. But even assuming the law may properly proceed
against solicitation which is too blunt and open, the ALI proposal is dangerously
vague. Since courts automatically assume in decoy cases that a homosexual
has a "pre-existing" intent to commit a homosexual act, 126 it is quite
possible that any homosexual outside the four walls of his home could be
arrested under the proposed loitering statute. Entrusting police officers with
carte blanchc authority to proceed against so nebulous an offense would both
permit and encourage the sort of decoy activity, enticement and entrapment
which have been so severely criticized under existing statutes and practices. It
would be more realistic and equitable (I) to pcrmi t homosexual solicitation
in bars, etc. which have a reputation for being meeting places for homosexuals,
(2) to require the element of "persistence" so that a single instance
would not be grounds for arrest, and (3) to prosecute only bonafidc complaints
made by aggrieved parties and not those made by decoy officers.127
Otherwise, the change in the law would be all form and no substance. and
homosexuals would be no better off than before.

Having examined the laws pertaining to homosexual acts and their enforcement
and having discussed the consequences of legal and social attitudes,
we now turn to a summary of the arguments which have been put forward by
proponents and opponents of change.

Arguments for and Against Change

Why an individual believes what he docs is a complex matter which no
one, including the individual himself, can fully explain. But it is possible to
give reasons for one's beliefs regardless of their accuracy or relevance. On the
matter of changing or not changing existing laws prohibiting homosexual acts
between consenting adults in private, the number of arguments given have
been both numerous and varied. What is considered a thoroughly proper,
pertinent, logical and convincing argument by one person may be deemed
quite the opposite by another. The arguments themselves tend to fall into
four overlapping categories: the philosophical, the medical-psychological, the
religious-moral-emotional. and the rational-practical-humanitarian.

In the philosophical category fall the arguments of the Wolfenden Committee,
the American Law Institute, and Lord Patrick Devlin, an English
judge. The purposes of the criminal law, according to the Wolfenden Report,
128 arc five in number, three affirmative and two negative- namely, to
preserve public order and decency, to protect citizens from what is offensive
and injurious, to safeguard the exploitation and corruption of others (especially
the young and immature), to avoid enforcing any particular pattern
of behavior, and to abstain from interfering in the private lives of citizens.
The lnstitite's concept, 129 basically the same, plays up the all-importance of
privacy and of freedom for the individual to choose his own course of action
so long as it docs not infringe on the liberty of others. In the view of the
Wolfenden group and the ALI, private homosexual acts between consenting
adults cannot be shown to have a sufficiently adverse effect upon society to
warrant limiting an individual's freedom of choice or invading his privacy.
Lord Devlin proposes a philosophical position which comes to the opposite
conclusion. 130 Assuming that morality is basic to any system of society and
law, he argues that society itself decides what forms of immorality are acceptable
(e.g., fornication and adultery) or unacceptable (e.g., homosexual
acts) and has the right to punish what it considers wrong even if it is itself in
error about what is wrong. When society (as represented by the opinion of
twelve men in a jury box) reacts to some form of conduct with "indignation,
disgust, and intolerance" or feels itself injured, it has the right and power to
take such action as will punish, deter or reform the offender. (Interestingly
enough, though initially opposed to homosexual law reform, Lord Devlin
ended up supporting it. 131

The medical-psychological arguments reveal how divided arc the experts
on the subject of homosexuality. 132 Not only do competent persons differ

Page 18:
on the most basic assumptions and issues, but they at times confuse what is
with what should be and argue with more dogma than science. Most doctors
call the homosexual sick; and some of them say homosexuality is a disease.
But many others, realizing "homosexuality as a clinical entity does not
exist," speak of the condition as a "symptom" of some basic psychological
illness or disorder. Still other experts hold that homosexuality is just one of
several forms of human sexual behavior having no moral or medical significance
apart from that which society assigns it. On the legal issue, one group
of doctors argues that the present law should be repealed because homosexuals,
being sick people, are not responsible for their condition and because
the law prevents them from seeking medical help133 while another group
argues for retaining the present law because it encourages homosexuals to
seek medical help, because its repeal will hinder the police in their preventive
work in the community, and because in prison homosexuals can be given
psychiatric treatment enabling them to return to society cured and rehabilitated.134

The religious-moral-emotional arguments also permit an individual to support
either side of the question. People who favor change, besides tending to
agree with the practical and humanitarian points to be mentioned below,
make the following three points: First-sin and crime are not always identical;
homosexuality is a sin but not a crime; the individual should be permitted
to pursue his chosen form of sexual expression so long as no one else is
harmed; guilt and penalties are matters between the homosexual and his
conscience or the homosexual and his spiritual advisers.1 3 5 Second-the
present law does more harm than good since it leads to consequences ( e.g.,
inequitable enforcement; blackmail; such undesirable practices as enticement,
entrapment, harassment, and mass arrests; and the creation of an aggrieved
minority) which are more serious and evil than the condition or act it forbids.
136 Third-the biblical passages used to condemn homosexuality are no
longer very convincing and are to be criticized on the grounds that they
represent the personal and fallible views of such men as St. Paul; that they
refer to an attitude and situation unique to the Jews at a given time and place
in ancient history; that they do not single out homosexuality, homosexual
acts, or homosexuals as any more sinful than any of a number of other
conditions, acts, or persons; that they cannot be given credence in the light of
modern medical and psychological knowledge; and that they are sometimes,
as in the Sodom story, based on an incorrect reading and interpretation of the
original Hebrew text.137

Those who oppose change of present laws on religious grounds assert that
God considers homosexuality the most abominable of all offenses, destroyed
the Cities of the Plain because of the homosexual acts of their inhabitants,
and excludes homosexuals from heaven. 138 This argument tends to be based
on a literal reading of certain carefully selected texts ( or portions thereof)
and a studied dismissal of other passages or of other information contained in
the selected passages. More impressive is the argument that since law has
replaced religion as our moral guide, we must turn to it to learn what is
condemned and condoned. 139 In an extension of this point, it is argued that
any further relaxation of the law would not only greatly undermine standards
already too much weakened but would also indicate approval of such conduct.
The line must be drawn somewhere, and homosexuality is that line. 140

The vacuity and all-inclusiveness of the emotional arguments, representing
little more than personal value judgments, are matched by the belligerence
with which they are delivered. For the most part they are presented as dogmas
or axioms not open to question and in no need of proof or clarification.
Indeed, most of them are in the nature of propositions which do not lend
themselves to proof or disproof. Illustrative of the moral and emotional
pronouncements are the following: 141 Homosexuality is unnatural and immoral,
contrary to the laws of God, nature and man. All people are born with
an "instinctive revulsion" to homosexuality. Unnatural vice is indescribably
worse than natural vice. Homosexuality is an infectious disease which unless
eradicated once and for all will spread like cancer until it destroys society.
Homosexuality so weakens the individual that he becomes a degenerate and
debauched monster preying on small boys. Homosexuality destroys family
life and causes the decline of civilization. Changing laws will only increase the
number of traitors and spies in our midst. The experience of other countries,
which do not have anti-homosexual laws or have repealed old laws, is not
relevant. Since homosexuals are by nature proselytizers and exhibitionists,
any change can only result in a tremendous increase in the number of homosexuals,
especially among young, immature and marginal persons. On the
reverse side, it is argued in equally irrational and doctrinaire fashion that
homosexuality is a way of life superior to heterosexuality, that homosexuals
are uniquely creative, talented people, and that everyone who opposes or
criticizes homosexuality is himself a repressed or latent homosexual. 142
Sometimes, it seems, emotion is a soul-satisfying escape from fact and reason.

For many men of reason and good will, the rational-practical-humanitarian
arguments are the ones that seem to make the deepest impression.
In favor of change the following set of arguments has been put forward:
First, the present law, being ineffective and unenforceable as it stands, (a)
leads to discriminatory, arbitrary, and capricious enforcement, with the result
that only a tiny but unfortunate fraction of those who violate it are caught
and punished, (b) requires the police to employ objectionable methods which
involve enticement and entrapment of the unwary, insult the dignity of the
individual, and degrade the police officers who engage in such distasteful
work, ( c) brings law enforcement officials into disrepute and arouses hostility,
if not hatred, among the general populace by compelling policemen to act
as armed preachers and moral guardians, ( d) prevents the police from

Page 19:
directing their time and resources to the prevention and solution of serious
crime, ( e) causes fear, misery, and frustration in general and blackmail, extortion
and suicide in particular, (f) makes possible the launching of a moral
crusade or witch-hunt which can impersonally and irrevocably destroy any
homosexual (including the well adjusted and socially productive deviant) at
the whim of an aroused and barbarous community spirit in search of a scapegoat,
and (g) leads to disrespect for the anti-homosexual laws in particular
and for other laws as well.143

Second, a civil rights issue, which thoughtful people have only recently
come to see, is involved. 144 The rights and interests of homosexuals, who
form one of the largest minority groups ( estimated at 10%) in society, have
long been ignored or violated with impunity. Present laws forbidding private
homosexual acts between consenting adults not only invade the privacy of
the individual and deny him freedom to lead his private life in responsible and
constructive manner but also threaten to prevent him from pursuing a career
for which he has prepared and is qualified; and present arrest and trial procedures
often make a mockery of justice. Because current laws discriminate
against an entire class of people, are based on ignorance and prejudice, and
perpetuate· laws based on the religious concept of sin rather than the secular
concept of crime, they should be changed. And furthermore, in matters of
this nature, the government should take the lead in educating the public, in
redressing valid grievances, and in integrating minority groups into the fabric
of society rather than succumb to prejudice or fall back on the defense that it
cannot and should not act because society does not understand homosexuality
and does not yet approve a change in the law.

Third, it is time to see things in perspective, to realize (a) that homosexuality
is not the free choice of an individual and is not easily cured, (b)
that it is the preferred sexual orientation of a very small but fairly constant
percentage of any given society, (c) that homosexual activity is more likely to
decline than increase if the law is changed because the danger and glamour
associated with its illegal status will have been removed, ( d) that homosexual
offenses are no more serious than comparable heterosexual offenses, ( e) that
it is inconsistent to prosecute consensual homosexual acts when fornication,
adultery, and lesbian acts are not, and (f) that the dire consequences predicted
if homosexual acts are not proscribed is supported by neither the experiences
of other countries nor empirical research. 145

Members of the rational-practical-humanitarian school who prefer retention
of the status quo argue that the time for change is not yet at hand; that
public opinion still opposes the change; that further study and research arc
necessary; that current laws are a deterrent; that laws exist to reform the
individual; that one must be reluctant to change laws which have been sanctioned
by centuries of tradition; that although we would not pass such laws
today, we should not change them because doing so would be misconstrued
as giving approval; and that later the time will come to revise downward the
severity of present penalties, to take corrective action on the matter of blackmail,
to provide a more equitable scheme of enforcement and prosecution,
and to restrict the type of cases which should be tried. 146

Page 20:
Conclusion

Homosexual law reform will come, but it will take time. In Britain, it
came after a decade of debate as a special relief measure designed to remedy
what had come to be regarded as an outdated, unfair, and unmanageable legal
anachronism. In the United States, it will come instead as one small part of a
thorough and comprehensive recodification of penal statutes designed to
bring the whole of the criminal law up to date and into accord with professional
principles and practices. Even with the support of professional groups
and of enlightened citizens and public officials, that part of proposed code
revisions pertaining to sex offenses can be expected to face strong opposition.
Though lip-service may be given to the principle that consenting adults should
be permitted to perform in private such sex acts as satisfy them so long as no
harm is done, there are many people (including some legislators) who will
quibble over the matter and will see harm where others do not. In some
states, the proposed homosexual law reform will be made without difficulty;
in others, it will require two steps. In the latter case, reduction of adult
consensual homosexual acts from felonies to misdemeanors may have to precede
their complete removal from the statutes.

For quite some time, laws prohibiting private consensual adult homosexual
acts have been dead letters in most jurisdictions. Except for bringing
an end to the prosecution of those few cases which have aroused considerable
public resentment in recent years, the proposed reform will simply harmonize
the letter of the law with actual practice. Public homosexual acts, acts with
minors, and acts involving force or fraud will continue to be illegal, but
penalties will be made more realistic and uniform. And homosexual solicitation,
a matter which has not yet received adequate consideration, will very
probably be retained as an offense in order to facilitate acceptance of the
principle of the non-criminality of private consensual adult sex acts and in
order to regulate an activity considered a minor nuisance or affront to the
community at large.

At first glance, the proposed changes would appear to be so inconsequential
and so long overdue that one wonders what all the excitement is about
and whether the new situation will be enough of a change to merit the
physical and emotional effort required to bring it about. If one believes that a
number of little changes can add up to significant improvement, the answer is
yes; but if one insists upon achieving the millennium in one great leap, the
answer is no.

Among the changes which, when added together, constitute significant
improvement are the following: (1) The debate over law reform is compelling
us to reconsider the purpose and function of criminal law and to formulate a
philosophy which gives due regard to the rights and interests of both the
individual and the community and which takes into consideration scientific
facts and insights as well as traditional moral and religious values. As a consequence,
we are better off for having learned something about ourselves about
our emotions, our motives, and our thinking processes. (2) The heterosexual
majority is discovering that its reaction to homosexuality and to
homosexuals has been too much based on ignorance, fear, and prejudice; that
it has been unknowingly harsh and unfair in its treatment of homosexuals;
and that it has been too often misled on the nature and range of homosexual
activity. Public debate is leading to greater understanding, tolerance, and
acceptance of a heretofore taboo subject. (3) The homosexual minority will
reap concrete benefits from changed laws and changing attitudes: (a) The
removal of the criminal label from private consensual adult acts will for the
first time offer homosexuals a "legal" sexual release, may help some of them
more easily accept themselves and overcome feelings of guilt or shame, will
encourage others to admit rather than hide or deny their sexual orientation
and to lead more responsible lives, should foster greater cooperation between
homosexuals and health authorities in the campaign to eradicate venereal
diseases, should reduce police harassment, should restrict the practice of
"copping out" for a lesser offense when threatened with prosecution, and
should end the necessity of registering as a sex offender in many cases. (b) No
longer will homosexuality be so automatically and arbitrarily cited as
justification for exclusion from employment, dismissal from jobs, and social
ostracism. And ( c) some of the legitimate grievances of the homosexual community-
e.g., police harassment, job discrimination, and violation of civil
rights-will be alleviated to some degree. However, in the crucial matter of
finding sexual partners, homosexuals will continue to be subject to possible
harassment, arrest and prosecution.

The legal change will come because homosexuality and law reform are
profiting from open discussion, because certain wrongs need to be corrected,
because today's sexual revolution has brought greater freedom and light to
this area of human activity, because in an increasingly pluralistic society the
moral views of one particular group cannot be imposed upon all groups,
because the advantages of change so greatly outweigh the disadvantages, and
perhaps, as one English editor put it, 147 most of all because homosexuality
"has ceased to shock" the general public. Reform of our sex laws will mean
that society is learning to live with homosexuality as an acceptable though
not necessarily approved form of sexual behavior, that the same basic standards
of conduct and responsibility will be applied to the homosexual minority
as already apply to the heterosexual majority, and that all citizens will be

Page 21:
permitted to seek their own brand of personal fulfillment so long as no harm
is involved and to make their individual contributions to society without
regard to their sexual orientation. Society should profit handsomely from
the change.

Notes

Page 22:
1 The American Law Institute, 1967 ANNUAL REPORT (Philadelphia, 1967), p.20.;
Letter to the Editor, PLAYBOY, 13:58, May 1966 and 14:83, Dec. 1967; Webster
Schott, "Civil Rights and the Homosexual," N.Y. TIMES MAGAZINE, Nov. 12, 1967,
pp. 44-72 at 54.

2 Herbert Sturtz of the Vera Foundation and others ("Summer '60: Cops on the
Spot," NEWSWEEK, 67:22-26, 31, Jun. 27, 1966) have questioned whether the police
should handle the problem of homosexuality and have suggested their role should be
limited to "referring" homosexual offenders to medical personnel. The President' Commission
on Law Enforcement and Administration of Justice in its TASK FORCE REPORT:
THE COURTS (Washington: U. S. Government Printing Office, I 967) skirts the
issue. It suggests (p. I 04) that the social interest in the prosecution of adult consensual
homosexual acts is unclear, that the deterrent effect of present attempts to prosecute
such behavior is limited, that the penal system is not suited to deal with homosexuals,
and that the existence of these anti-homosexual laws creates opportunities for extortion
and discriminatory enforcement. It concludes by saying only that "the inappropriateness
and the scope of criminal sanctions in respect to these sexual activities deserves discussion
and analysis by those concerned with the improvement of criminal administration."

3 CBS Survey, "Homosexuality: Public Attitudes," DRUM, no. 25, pp. 10-13, 29-31,
at p. 29, Aug. 1967.

4 The "condemn and punish" school often distinguishes between the condition of
homosexuality (for which the individual is not responsible) and the commission of
homosexual acts (for which he is accountable). The recommended solution is for the
homosexual either to adapt to a heterosexual life or to lead a non-sexual life. People who
support this position are usually less specific in their written than in their spoken words.
A summary of the traditional Christian position of condemnation can be found in
Derrick S. Bailey, HOMOSEXUALITY AND THE WESTERN CHRISTIAN TRADITION
(London: Longmans, Green and Co., 1955), chaps. 1-5. Supporting condemnation and
punishment arc the following: Lord Kilmuir, HANSARD, Lords, 206:773, 776, Dec. 4,
1957; Dr. C. G. Learoyd, Letter to the Editor, LANCET, 273:542-43, 1957; "The
Unspeakable Crime" (the Beaverbrook Press), TIME, 62:35-36, Nov. 16, 1953; S. Oley
Cutler, "Sexual Offenses-Legal and Moral Considerations," CATHOLIC LAWYER,
9:94-105, 1963; Michael J. Buckley, MORALITY AND THE HOMOSEXUAL: A
CATHOLIC APPROACH TO A MORAL PROBLEM (Westminster: Newman Press,
1959); "How Should Homosexuality Be Viewed?" AWAKE, Jan. 8, 1964, pp. 14-16;
"Don't Call Me Queer, Call Me Gay," MATTACHINE REVIEW, 12:22-26, Jul.
1966-reprint of a pamphlet entitled "Gay" published by Teen Challenge; Arthur G.
Matthews, IS HOMOSEXUALITY A MENACE? (N.Y.: McBride Co., 1957), p. 196;
"Crime and Sin," LAW TIMES, 224: 283-84, 1957.

5 American Law Institute, MODEL PENAL CODE (Philadelphia, 1962), sections
213.2, 3, and 6 and 251.1, 2, and 3 at pp. 145-46 and 236-37. Sec also the Institutc's
"Commentary," MODEL PENAL CODE TENTATIVE DRAFT NO. 4 (Philadelphia,
America! Law Institute, 1955), pp. 276-91. THE WOLFENDEN REPORT: REPORT OF
THE COMMITTEE ON HOMOSEXUAL OFFENSES AND PROSTITUTION (American
Edition, N.Y.: Stien and Day, 1963), with introduction by Karl Menninger, paragraphs
13, 14, 48, 49, and 61. (Paperback edition: Lancer 74-849.) For the report on the
proceedings and recommendations of the 9th International Congress on Criminal Law,
sec Morris Ploscowe, "Report to the Hague," CORNELL LAW QUARTERLY,
50:425-45, 1965.

Page 23:
6 OP. CIT., p. 30

7 For examples of this school of thought, sec especially the speeches of Lord Kilmuir,
speaking for the government (HANSARD, House of Lords, 206: 776 and 274:611 ), and
Horne Secretary R. A. Butler (HANSARD, House of Commons, 596:370). Cf. also
Justice Samuel H. Hofstadter, Letter to the Editor, NATION, 201 :428, 1965; editorial,
LIFE, 58:4, Jun. 11, 1965; J. P. Eddy, "The Law and Homosexuality," CRIMINAL
LAW REVIEW, 1956:22-25: Dorothy Hopkinson, "Sex Speaks Out," TWENTIETH
CENTURY, 156:54-66, Jul. 1954: "The Wolfenden Report in Parliament," CRIMINAL
LAW REVIEW, 1959:38; "The Wolfenden Report," LAW TIMES, 224:182, 1957; "The
Wolfenden Report," JUSTICE OF THE PEACE AND LOCAL GOVERNMENT RI-:VIEW,
121:623-25, 1957. Albert J. Hutchinson, a former California prosecuting attorney,
said on National Education TV: "I am not concerned with the kind of punishment,
but I am interested in seeing that there be on the statute books a declaration
against this kind of conduct"--"Thc Rejected," KQED Sep. 11, 1961 (printed in booklet
form, San Francisco: Pan-Graphic Press, 1961, p. 19 ).

8 The most useful introduction to this subject is Karl Bowman and Bernice Engle,
"Sexual Psychopath Laws," in SEXUAL BEHAVIOR AND THE LAW, edited by Ralph
Slovcnko (Springfield, Ill.: Thomas, l 965), pp. 757-78. Sex Psychopath Laws (n. 2, p.
774) exist in: Ala., Cal., Colo., Conn., !·Ida., Ill., Ind., Ia., Kans., Md., Mass., Mich.,
Minn., Mo., Nebr., N. Hamp., N. J., N. Y., 0., Ore., Pa., S. Dak., Tenn., U., Vt., Va.,
Wash., W. Va., Wis., Wyo., and D.C.
Thomas Szasz (LAW, LIBERTY, AND PSYCHIATRY [N.Y.: Macmillan, 1963], p.
249) suggests that today we do in the name of mental health what in the Middle Ages
the Inquisition did in the name of faith.

9 Between I 958 and 1962 California averaged about 400 commitments a year:
Michigan (1954-63) committed l ,051 sex psychopaths; and Wisconsin (1951-60),
783--Bowman and Engle, OP.CIT., pp. 761-62.

10 Karl Bowman and Bernice Engle, "A Psychiatric Evaluation of the Laws of Homosexuality,"
TEMPLE LAW QUARTERLY REVIEW, 29:273-326, 1956; Bernard C.
Glueck, Jr., "An Evaluation of lhc Homosexual Offender," MINNFSOTA LAW REVll•:
W, 41: 187-210 at 208, 1957; Edwin H. Sutherland, "The Sexual Psychopath Laws,"
JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 40:543-54 at 553, 1940; Ralph
Slovcnko and Cyril Phillips, "Psychosexuality and the Criminal Law," VANDERBILT
LAW REV] EW, 15: 797-828 al 822, l 962; Alan H. Swanson, "Sexual Psychopath
Statutes," JOURNAL 01· CRIMINAL LAW, CRIMINOLOGY, AND POLICE SCIENCE,
51 :215-35 at 221, 1960; Phillip I·:. Stebbins, "Sexual Deviation and the Laws of Ohio,"
OI-11O STATE LA \V JOURNAL, 20: 346-60 at 357. 1959: Samuel M. Fahr, "Iowa's New
Sexual Psychopath Law - An Experiment Noble in Purpose?" 1O\VA LAW REVIEW.
41:523-57 at 545,549: 1956: and Paul W. Tappan, "Treatment of the Sex Offender in
Denmark," AMERICAN JOURNAL 01· PSYCHIATRY 108:241-49 at 241, 1951.

11 Reginald S. Rood, "Forensic Psychiatry and the State Hospital System," JOURNAL
OF SOCIAL THERAPY 4:257-62, 1956 and "The Nonpsychotic Offender and the
State Hospital," AMERICAN JOURNAL 01' PSYCHIATRY 115:512-13, 1958: Walter
Rapaport and Daniel Lieberman, "The Sexual Psychopath in California," CALIFORNIA
MEDICINE 85: 232-34, 1956. Similarly in Wisconsin, homosexuals per se arc not considered
dangerous sex deviates Anton Motz, "Criminal Law Wisconsin's Sexual Deviate
Act," WISCONSIN LAW REVIEW, 1954: 324-25. The California Supreme Court (People
v. Giani, 302 P. 2d 813 at 816-17; 1956) concluded that neither the state legislature nor
expert medical testimony equates "homosexual" with "sexual psychopath."

12 According to Bowman and Engle in the Slovenko volume (OP. CIT., nn. 4-6, pp.
774-75), sex psychopath proceedings may be initiated without a charge or conviction of
a sexual offense in 5 jurisdictions (la., Minn., Nebr., N. Hamp., D.C.), upon the charge of
a sexual offense in 6 states (Fida., Ill., la., Mich., Mo., Wash.), and only after conviction
of a sexual offense in the remaining 20 states. Falu (OP. CIT., pp. 545, 549) says that of
33 persons committed in Iowa, one was committed for "homosexuality, no overt acts."
Commitment as a sexual psychopath is a civil procedure. Though details vary, the
usual pattern is as follows: In cases involving conviction of a sex offender, a superior
court judge, on the motion of a trial judge, a prosecuting attorney, or the defendant,
may, or in some cases must, order the accused to undergo a medical examination and to
appear at a civil hearing. On the basis of the medical report and the testimony of two or
three psychiatrists, the judge may order the defendant to a state hospital for observation
for a three month period. If the superintendent of the hospital declares him a sexual
psychopath, the defendant is ordered hospitalized until "cured" or "no longer a menace
to society." (If not declared a psychopath, the individual is sentenced under the criminal
statutes.) When released from the state hospital, the offender returns to the court where
he may be granted probation, sentenced, or ordered recommitted.
The sexual psychopath laws, the exact provisions of which vary, have been severely
criticized for the following reasons: ( I) the definition of the term "sexual psychopath"
(e.g., a person suffering or alleged to suffer from a mental disorder, a person having
"criminal propensities toward the commission of sex offenses," or a person dangerous to
himself and others) is vague and unscientific; (2) the commitment procedure sometimes
violates due process (e.g., denial of the rights of counsel, trial by jury, subpoena of
witnesses, cross-examination, appeal, and the possibility of self-incrimination and double
jeopardy); (3) the ineffectiveness of treatment or the absence of treatment facilities
defeats the very purpose of hospitalization; and (4) the failure to distinguish between
serious and non-serious or dangerous and non-dangerous offenders and offenses, between
transgressions which were in public or private, or between consenting or non-consenting
adults permits the removal of "social undesirables" and hospitalization or incarceration
for indeterminate periods.

13 BOUTILIER V. IMMIGRATION AND NATURALIZATION SERVICE, 87 S. Ct.
1563 (1967). Boutilier was an immigrant from Canada who applied for U.S. citizenship.
Because he indicated on his application form that he had once been arrested (though not
convicted) for sodomy and because he admitted he had engaged in homosexual acts, he
was ordered deported. The Supreme Court upheld his deportation. Mr. Justice Douglas
wrote a strong dissent and used some of the arguments that Judge Moore of another
court had used in a similar case (LAVOIE V. IMMIGRATION AND NATURALIZATION
SERVICE, 360 F. 2d 27, 1966.) Sec also a letter in PLAYBOY (14:86, Dec.
1967): a former immigrant from Norway was deported after it was learned that he was a
homosexual.

14 The most comprehensive and satisfactory treatment of this subject is to be found
in Bailey, OP. CIT., chaps. 1-5. Briefer treatment is found in H. Kimball Jones, TOWARD
A CHRISTIAN UNDERSTANDING OF THE HOMOSEXUAL. (N.Y.: Association Press,
1966), chap. 2 and Norman St. John-Stevas, LIFE, DEATH AND THE LAW
(Bloomington: Indiana University Press, 1961), pp. 201-07.

Page 24:
15 Incomplete surveys of the laws of European countries can be found in St. John-Stcvas,
OP.CIT., pp. 328-32 (Appendix VII); H.A. Hammclmann, "Homosexuality and
the Law in Other Countries," in THEY STAND APART, edited by J. Tudor Recs and
Harley V. Usill (London: Heineman, 1955), pp. 143-83; Rudolf Klimmer, "Homosexuality
in East Germany," MAN AND SOCIETY, no. 10, pp. 30-33, Winter 1966;
"Homosexual Laws in History," LONDON TIMES, Jan. 14, 1958-reprinted in
MATTACHINE REVIEW, 4:16-18, Mar. 1958; Johs Andcnaes, "Recent Trends in the
Criminal Law and Penal System in Norway," BRITISH JOURNAL OF DELINQUENCY,
5:21-26, 1954; and George Sturup, "Sex Offenses: the Scandanavian Experience," LAW
AND CONTEMPORARY PROBLEMS, 25: 361-75, 1960.
For the proposed changes in Germany, sec: M. Grunhut, book review, BRITISH
JOURNAL OF DELINQUENCY, 7:322-23, 1957; "Committee in Germany Seeks Law
Revision, MA TT A CHINE REV! EW 5:5, Dec. 195 8; and "Britain Secs Passage of Homosexual
Bill," WASHINGTON POST, Dec. 21, 1966, p. A3, which says the Minister of
Justice in the new Bonn government will press for a bill for West Germany similar to the
one just passed in England. In Austria, the situation is unclear. Three members of
Parliament (Kenneth Robinson, Home Secretary Roy Jenkins, and Leo Absc in
HANSARD, Commons, 625: 1457, 724:849, and 731 :261) said during the 1966 debates
that Austria had changed its law in 1960. John Dizazga, "Homosexuality," in SEX
CRIMES (Springfield, Ill.: Thomas I 960), pp. 205-16, says Austria is considering making
a change and the San Francisco Chapter NEWSLETTER of the Daughters of Bilitis for
July, I 967 refers to a UPI news release from London reporting that the Roman Catholic
Church in Austria has put pressure on the government to retain present laws.

16 Chap. 60, SEXUAL OFFENSES ACT OF 1967, amending the SEXUAL OFFENSES
ACT OF 1956. A survey of the homosexual law reform effort can be pieced
together by reading the lengthy debates in Parliament found in HANSARD (sec n. 24
below) and the hundreds of newspaper and magazine articles, editorials, and letters to
editors reflecting public and private opinion on the subject. Parts of the story arc told by
Peter Wildcblood (AGAINST THE LAW I London: Weidenfcld and Nicolson, 1955 or
Penguin Paperback 1188]) and Rupert Croft-Cooke (THE VERDICT OF YOU ALL
I London: Secker and Warburg, 1952] ). Both men were imprisoned for homosexual
offenses with consenting adults in private in the anti-homosexual campaign of the early
1950s.
In the American press, the subject has been covered by(]) the NEW YORK TIMES:
Apr. 29, p. 35 and May 20, p. 8, 1954; Nov. 27, p. 4, 1959; Jun. 30, p. 6, 1961; May 13,
p. 4, 16, p. 13 part IV, 25, p. I, and 27, p. 3, 1965; Feb. 12, p. I, Mar. 18, p. 11, Apr. 1,
p. 14, May 11, p. 14, Jun. 17, p. 35, Jul. 6, p. 7, and Dec. 20, p. I, 1966: and Jul. 5, p.
I, 1967; (2) NEWSWEEK: 50:50-55, Sept. 16, 1957; 50:60, Oct. 7, 1957; 50:58-59,
Dec. 16, 1957; 56:78, Jul. 11, 1960; 61:77, Mar. 4, 1963; 65:38, Jun. 7, 1965; 67:54,
Feb. 21, 1966; 69:28, 30 Jan. 2, 1967; and (3) TIME: 62:35-36, Nov. 16, 1953; 67:33,
Jun. 4, 1956; 70:39-40, Sep. 16, 1957; 70:74, Oct. 7, 1957; 70:22, 25, Dec. 16, 1957;
80:60-62,Oct.12, 1962;84:86Nov.13, 1964;and90:30,Jul. 14, 1967.
The background of the English law is discussed in Nancy Wilkins, "How It Happened:
A History of Homosexual Legislation in England," MAN AND SOCIETY, no. 6, pp.
8-13, Autumn 1963.

17 "Homosexuality and Prostitution: British Medical Association Memorandum of
Evidence for the Departmental Committee," BRITISH MEDICAL JOURNAL SUPPLEMENT,
2: 165-70, 1955. Cf "Men Only," TIME, 66: 19, Dec. 26, 1955.

18 Details of the Montagu case can be found in Wildeblood, OP. CIT., chap. 2. Sec
also, "Lord in the Dock," NEWSWEEK 42: 33, Dec. 28, 1953.

19 Wiideblood, OP. CIT., p. 46 quotes an article from its London correspondent in
the SYDNEY MORNING DISPATCH for Oct. 25, 1953 strongly supporting this contention.

20 The statistics given here come from Appendix I to the WOLFENDEN REPORT
and from debates in Parliament, especially the debate of May 12, 1965 (HANSARD,
Lords, 266:95-96). After the publication of the Wolfenden Report, the number of
homosexual offenses known to the police and the number of prosecutions declined as
did the number of prison sentences given-J. E. Hall Williams, "Sex Offenses: the British
Experience," LAW AND CONTEMPORARY PROBLEMS, 25:334-60 at 359, 1960. By
1960, two-thirds of all homosexual offenders were being fined.

21 "The Homosexuality Issue," NEWSWEEK, 42:44-47, Nov. 16, 1953; "The Unspeakable
Crime," TIME, 62:35-36, Nov. 16, 1953. Cf. Wildeblood's remarks (OP. CIT.,
pp. 94-95 and 110-13) on public response to his trial and conviction. ENCOUNTER
(3:20-21, 1954) published a letter of George Bernard Shaw, written in 1889, calling on
all "champions of individual rights" to join in protesting a law which can send two adult
men to prison for twenty years. For some years the NEW STATESMAN AND NATION
had been urging a change in the laws and the appointment of a special commission to
make recommendations to Parliament on the subject of homosexuality (e.g., 42:284,
1951; 46:562, 1953) and the SPECTATOR now both criticized present policies oftrial
and imprisonment and urged law reform (e.g., 191:470, 1953; 192:460, 1954; 193:576,
1954). In LANCET (266:541-46, 1954), Dr. Kenneth Soddy strongly criticized the way
the police, courts, Parliament, and public were dealing with homosexuality. In Parliament,
Desmond Donnelly, Sir Robert Boothby, and others (HANSARD, 526: 1745-49,
Apr. 28, 1954) raised similar criticisms and called on the Home Secretary to appoint a
royal commission to look into the law relating to homosexuality. With the appointment
of the Wolfenden Committee, public clamor subsided to break out anew upon publication
of its Report in 1957.

22 The Moral Welfare Council's Report, SEXUAL OFFENDERS AND SOCIAL
PUNISHMENT (Westminster: Church Information Board, 1956), was compiled and
edited by Derrick S. Bailey. The "Report of the Roman Catholic Advisory Committee
on Prostitution and Homosexual Offenses and the Existing Law" was published in the
DUBLIN REVIEW, 230: 57-65, 1956.

23 For an indication of the varied reactions, sec: Mollie Panter-Downs, "Letter from
London," NEW YORKER, 33: 136-40, Sep. 28, 1957; J.E. Hall Williams, OP. CIT.; "The
Wolfenden Committee and the Press," LANCET, 273:549, 1957; "The Wolfenden Report,"
TIME, 70:39-40, Sep. 16, 1957; and Gregory Trout, "Readers' Reactions to the
Wolfenden Report," MATTACHINE REVIEW, 4: 12-15, Jan. 1958. Some journals (e.g.,
ECONOMIST, 184-85:735-36, 1957; LANCET, 273:527-29, 1957; NEW STATESMAN
AND NATION, 54:261, 1957; and SPECTATOR, 199:291, 1957) came out in support
of the recommendations. Others (e.g., LAW TIMES, 224: 182, 1957 and JUSTICE OF
THE PEACE AND LOCAL GOVERNMENT REVIEW, 121 ;623-25, 1957) declared their
opposition. Letters to the editor, pro and con, were numerous, as well as expressed in
strong language. Cf. "Facing the Facts," NEWSWEEK, 50:30, Sep. 16, 1957.

24 The whole debate and voting record of Parliament can be traced by reading
HANSARD: Lords, v. 182, cols. 737-67 (May 19, 1954); 206:753-832 (Dec. 4, 1957);
266:71-172 (May 12, 1965); 266:631-712 (May 24, 1965); 267:287-448 (Jun. 21,

Page 25:
1965); 268:403-43 (Jul. 16, 1965); 269:677-730 (Oct. 28, 1965); 270:28 (Nov. IO,
1965); 274:605-51 (May 10, 1966); 275:146-78 (Jun. 16, 1966); HANSARD: Commons,
526:1745-56 (Apr. 28, 1954); 589:647 (Jun. 13, 1958); 596:365-508 (Nov. 26,
1958); 625:1454-1514 (Jun. 29, 1960); 713:611-20 (May 26, 1965); 724:782-874 (Feb.
11, 1966); 731:259-68 (Jul. 5, 1966); 738:1068-1148 (Dec. 19, 1966).The debates of
July 4 and 21, 196 7 and the voting records of both houses are not yet available in
published form in this country.

25 Panter-Downs, OP. CIT.; Williams, OP. CIT.; and N. A. Jepson, "Homosexuality
Capital Punishment, and the Law," BRITISH JOURNAL OF DELINQUENCY:
9:246-57, 1958. Jepson also took a poll of adult students at the University of Leeds.
The results were practically identical to the Gallup Poll figures.

26 HANSARD, Commons, 625:367-71.

27 Statement of Lord Stonham to Parliament, HANSARD, Lords, 266: 100.

28"Change to Wolfenden Say Liberals," NEWS OF THE WORLD, Feb. 28, 1965, p.
5; "Cheers for Democracy," ECONOMIST, 218:712, 1966; C. H. Rolph, "Homosexuality:
Reform at Last?" NEW STATESMAN, 71: 152, 1966; speech of Norman St.
John-Stevas, HANSARD, Commons, 738: 1119.

29 Alfred C. Kinsey, Wardell B. Pomeroy, Clyde E. Martin, and Paul H. Gebhard,
SEXUAL BEHAVIOR IN THE HUMAN FEMALE (Philadelphia: Saunders, 1953), pp.
477 and 483 in paperback edition (Pocket Book 99700). Wainright Churchill, HOMOSEXUAL
BEHAVIOR AMONG MALES (N.Y.: Hawthorn Books, 1967) says (p. 215):
"In the United States homoerotophobia has reached proportions unmatched elsewhere
in the world today .... " Sec also remarks of Albert J. Reiss, "Sex Offenses: the Marginal
Status of the Adolescent," LAW AND CONTEMPORARY PROBLEMS, 25:309-33 at
318, 1960.

30 Hugh Heffner, "Playboy Philosophy," PLAYBOY, 12: 83-87, 220-25 at 222-24,
Dec. 1965; N.Y. TIMES, Nov. 25, p. 43, 1964, Mar. 17, p. 35, May 28, p. 36, Jun. 10, p.
43, and Jul. 23, p. 1, 1965. Cf. "The 'Crime' of Deviation," NEWSWEEK, 64:90, Dec. 7,
1964; "Crimes for the Times," TIME, 83;36, Mar. 27, 1964; and "New Pressure to Ease
Moral Laws," U.S. NEWS AND WORLD REPORT, 57;12, Dec. 7, 1964.

31 Jon J. Gallo, Stefan M. Mason, Louis M. Meisinger, Kenneth D. Robin, Gary D.
Stabile, and Robert J. Wynne, "The Consenting Adult Homosexual and the Law: An
Empirical Study of Enforcement and Administration in Los Angeles County," UCLA
LAW REVIEW, 13:643-832 at pp. 669-71 and nn. 75-77, 1966.

32 Editor's Note, MATTACHINE REVIEW, 7:26, Mar. 1961 and "What To Do
About Homosexuals? MATTACHINE REVIEW, 7:4, May 1961.

33 TANGENTS, 1: 13-14, Sep. 1966--quoting from the NEWS AND OBSERVER
(Raleigh, North Carolina), Oct. 19, 1966. Cf. DRUM, no. 23, p. 7, 1967.

34 DRUM, 5:22, Oct. 1965; personal letter from editor of DRUM, dated May 19, 1967.

35 TANGENTS, 1;14, Sep. 1966.

36 Charles Raudebaugh, "Liberalized State Sex Law Drafted," SAN FRANCISCO
CHRONICLE, Jul. 13, 1967, pp. 1, 9; William Borders, "Hartford Urged to Ease Sex
Laws," N.Y. TIMES, May 28, 1967, p. 49; Schott, OP. CIT., p. 54; DRUM, no. 28, p. 5,
Jan. 1968.

37 PHOENIX, 1: 13, Sep.-Oct. 1966-quoting from the SUN-SENTINAL. The state
legislative committee originally set up to investigate subversive activities turned its attention
instead to homosexuality. After ten years of probing, it published its findings in
an official report entitled "Homosexuality and Citizenship in Florida." Popularly known
as "the purple pamphlet" because of its sensationalism as well as the color of its cover,
the report consists of 48 pages-a skimpy text of 13 pages written in the tradition of
yellow journalism, 4 pages of sensational photographs (two men kissing, a young man
loosely bound with ropes, shots of pre-teen boys, and two adult males apparently engaged
in fellation), and miscellaneous pages of homosexual slang, state sex laws, a bibliography
only a fraction of which pertains to homosexuality. Public reaction was one of
disbelief: the governor refused to read the report; editors recoiled in horror; a district
attorney called the pamphlet obscene; responsible and enlightened citizens were stunned;
and the ligislature did its best to disassociate itself from the document. State funds were
used to print thousands of copies of what the committee had felt sure would be a best
seller. But as a result of the public uproar, the pamphlet was suppressed. However,
facsimile copies are available; but none of the profit is going into the state treasury. The
essay devotes one page to the committee's purpose and mode of operation; two pages to
medical and scientific data on the subject; seven pages to certain bizarre and sensational
aspects of homosexuality, to an attack on homophilc organizations, and to alleged
recruitment and corruption of minors; and three pages to the detection and "control" of
homosexuals, to registration of homosexual offenders, to the removal and exclusion of
homosexuals from teaching positions and other state and local jobs, and to the treatment
of sex psychopaths. "Rather than review the multitudinous theories, conclusions, and
contentions" about homosexuality, the committee suggests "that the biblical description
of homosexuality as an abomination has stood well the test of time." A state representative
has suggested that the Committee refrain from issuing any further statements on the
subject without first conferring with experts and the Psychiatric Society of Greater
Miami passed a resolution urging the Committee to refrain from staging any public forum
on the topic--DRUM, 4:23, Nov. 1964.

38 Editorial, TANGENTS, 2:2, Jan. 1967

39 James R. Spence (N. CAR. LAW REVIEW, 32:312-24 at 318, 1954) says of the
state's crime against nature statute that "it is virtually impossible for a man of common
intelligence, or even a lawyer, to ascertain the acts which are now prohibited under the
statute," Ralph Slovenko and Cyril Phillips (VANDERBILT LAW REVIEW, l5 :797-828 2, a
812, 1962) say the crime against nature statutes represent legal definition "at its vaguest."
The UCLA study (pp. 658-62, 676-77, and nn. 21, 22, 26, 27, 31, 33) points out that
despite a trend toward uniformity in recent revisions of sodomy statutes in a number of
states, "there is no quick method of ascertaining exactly what acts arc included or
excluded under present-day sodomy laws." The same study (p. 677) suggests that "the
man of ordinary intelligence cannot know in sufficient clarity what the courts have yet
to decide." For other similar observations, sec: TEMPLE LAW QUARTERLY REVIEW,
29:273-326 at 275, 1956; ARK. LAW REVIEW, 8:497-500, 1954; LAW AND CONTEMPORARY
PROBLEMS, 25:244-57 at 246, 1960; U. OF FLDA. LAW REVIEW,
12:83-92 at 85, 1959; OHIO STATE LAW JOURNAL, 20:346-60 at 349, 353-54,
1959; U. OF CINCINNATI LAW REVIEW, 35:211-41 at 227, 1961; BOSTON U. LAW

Page 26:
REVIEW, 45:391- 415 at 402, 1965; and Morris Ploscowe, SEX AND THE LAW, revised
ed. (N.Y.: Ace Books, 1962) pp. 184-85.

40 In Illinois, private adult consensual sodomy is no offense; in New York it is a
misdemeanor; in New Jersey it is a high misdemeanor; and in the District of Columbia,
according to court interpretation (RITTENOUR V. D.C., 116 A. 2d 558; 1960) it is no
offense. Technically under California law, a sodomy (anal intercourse) conviction may
not be reduced to a misdemeanor.
The sections of state penal codes under which consenting adult homosexuals arc
prosecuted are as follows, with the felony references preceding the misdemeanor references
and separated from each other by a semicolon: ALA. 14.106; 14.42, 14.326(1),
14.437, 14.438, 15.327. ALAS. 11.40.120; 11.40. 080. ARIZ. 13.651, 13.652; 13.371,
13.992, 13.993, 13.1271, 13.1274, 13.1645. ARK. 41.813; 41.106, 41.2701, 41.3202.
CALIF. 286, 288a; 16, 19,290,314,415, 647(a), 647(b), 647(d), 647a, 647b, 650 1/2.
COLO. 40.2.31(1); 40.2.31(2), 40.8.19, 40.9.15, 40.2.31(2)[the last reference may be
imposed as either a felony or misdemeanor]. CONN. 53.216; 53.175, 53.177, 53.216,
53.220, 53.226, 53.235. DEL. 11.831; 11.731, 11.732. D.C. 22.3502; 22.1112,
22.1121, 22.3302, 22.3303, 22.3304, 22.3502. FLDA. 800.01; 796.07, 800.02, 800.03,
856.02, 856.03. GA. 26.5901, 26.5902; 26.5301, 26.5501, 26.5905, 26.6101, 26.7001,
27.2506. HAW. 309.34; 267.1, 267.10, 314.1, 314.2(g). IDA. 18.6605; 18.113,
18.4101. ILL, no felony; 38.11.2, 38.11.9. IND. 10.4221; 10.2801. IA. 705.1, 705.2;
725.1. KANS. 21.907; 21.908. KY. 435.102(2), 436.050; 436.075, 436.520. LA. 14.89;
14.106, 14.107. ME. 17.1001; 17.1901, 17.3758. MD. 27.553, 27.554; 27.122. MASS.
272.16, 272.34, 272.35; 272.53. MICH. 28.355, 28.570, 28.570(1); 28.364, 28.365,
28.567, 28.567(1), 28.772. MINN. 617.4; 617.23. MISS. 2413; 2290. MO. 563.230;
563.150, 556.270. MONT. 94.4118; 94.116, 94.3603. NEBR. 28.919; 28.920,
28.920.01. NEV. 201.190, 201.210; 193.130, 193.140, 193.150, 201.210, 201.220,
207.151-57. N. HAMP. 579.9; 570.1, 570.6, 570.22, 570.25, 579.3. N.J. 2A:85.7,
2A:115.l, 2A:143.l, 2A:170.l, 2A:170.5 [Allactsarclabellcdhighmisdcmcanors.] N.
MEX. 40A.9.6, 40A.29.3; 40A.9.8, 40A.29.4. N.Y. no felony; 130.00.2, 130.38,
240.35.3, 245.00, 60.004(d), 70.15.2, 70.15.4, 80.05.2, 80.05.14. N. CAR.
14.2, 14.3, 14.177; 14.190. N. DAK. 12.22.07; 12.06.10, 12.21.10, 12.22.01, 12.42.04.
OHIO 2905.44; 2905.30, 2909.09,2950.01-08. OKLA. 21.886; 21.22, 21.1029-31. ORE.
167.040; 166.060, 167.145. PA. 18.4501, 18.4502; 18.4519. R.I. II.JO.I; 11.45.1. S.
CAR. 16.412; 16.409, 16.411, 16.413. S. DAK. 13.1716; 13.0607, 13.1701, 13.1722.
TENN. 39.707; no misdemeanor. TEX. 524; 474, 607, 608. UTAH 76.53.22; 76.39.5,
76.39.13, 76.61.1. VT. 13.2601, 13.2603; no misdemeanor. VA. 18.1.212; 18.1.9,
18.1.236. WASH. 9.79.080, 9.79.100; 9.79.120, 9.87.010, 9.92.020. W. VA.
6068; 6082(1), 6289. WIS. 944.17: 944.20. WYO. 6.98; 6.102. U.S. CODE OF
MILITARY JUSTICE 80, 125, 134; 134.

41 Crime against nature: Ala., Alas., Ariz., Calif., Colo., Del., Fida., Haw., Ida., Ind.,
Kans., La., Mc., Mass., Mich., Miss., Mo., Mont., Nebr., Nev., N.J., N. Car., Okla., Ore.,
R.I., S. Dak., Tenn., Utah, Va, W. Va., Wyo. Sodomy: Alas., Ark., Calif., Conn., Del.,
D.C., Ga., Haw., Ind., la., Ky., Md., Mass., Mich., Minn., Nebr., N.J., N. Mex., N.Y., N.
Oak., Ohio, Ore., Pa., Tex., Utah, Wash., Wyo., UCMJ. Buggery: Ark., Ky., Mass., S. Car.
Perversion: Calif., Wis. Fcllation: Vt. Unnatural copulation: Colo. Unnatural intercourse:
Miss. Unnatural and lascivious acts: Mass., N.H. Unnatural or perverted practices: Md.
Indecent or immoral practices.

42 The following adjectives pertain only to felony offenses: "abominable and
detestable:" Flda., Ind., Kans., Mass., Mich., Miss., Mo., N. Car., Okla., R.1., S. Car., S.
Dak., Utah, Wyo.; "infamous:" Ariz., Calif., Colo., Ida., Mont., Nev., N.J. In addition,
"unnatural" is used in Alas., Colo., Md., Mass., Miss., N. Hamp., Utah; "indecent" in Ky.
and N.J.; "perverted" in Md. and Ore.; "lascivious" in Mass. and N. Hamp.; "lewd" in N.
Hamp. and N.J.; "immoral" in Ky.; and "abnormal" in Wis.

43 Life: Calif., Ida., Mo., Mont., Nev.; 30 years: Conn.; 21 years: Ark.; 20 years:
Ariz., Fida., Haw., Mass., Minn., Nebr., N.J., Ohio, R.I., Utah; 15 years: Mich., Ore.,
Tenn., Tex.; 14 years: Colo., Ind.; 10 years: Ala., Alas., D.C., Ga., la., Kans., Me., Md.,
Miss., N. Mex., N. Car., N. Dak., Okla., Pa., S. Dak., Wash., W. Va., Wyo.; 5 years: Ky.,
La., N. Hamp., S. Car., Vt., Wis.; 3 years: Del., Va.; 3 months: N.Y.

44 Minimum penalties: 1 day: N.Y.; 4 months: N. Car.; 1 year: Alas., Ark., Calif.,
Colo., Conn., Del., D.C., Fida., Ga., Haw., Ida., Ia., Kans., La., Me., Md., Mass., Mich.,
Minn., Miss., Nebr., Nev., N. Hamp., N.J., N. Dak., Ohio, Okla., Ore., Pa., S. Car., S.
Dak., Vt., Va, Wash., W. Va., Wis., Wyo.; 2 years: Ala., Ind., Ky., Mo., Tex.; 3 years:
Utah; 5 years: Ariz., Mont., Tenn.; 7 years: R.I. In Ill. there is no penalty. The U.S.
Armed Forces impose a sentence of up to 5 years for sodomy.
Substitution of a fine: D.C., Ind., La., Md., Mich., N. Hamp., N.J., N. Mex., N.Y., N.
Car., Pa., S. Car., Wis. Addition of a fine: Del. and Haw. Both imprisonment and a fine:
Ind., La., Md., N. Hamp., N.J., N. Mex., N.Y., N. Car., Pa., S. Car., Wis.

45 Heffner, OP. CIT., p. 224.

46 "Out of the Briar Patch," TIME, 84:54-55, Dec. 25, 1964; Alexander Bickel,
"Homosexuality as Crime in North Carolina," NEW REPUBLIC, 151:5-6, Dec. 12, 1964;
PERKINS V. N. CAR., 234 F. Supp. 333 (1964). The adverse publicity from the Perkins
case and the harsh criticisms of Judge Craven in his decision helped convice the North
Carolina legislature to revise its sodomy statute. Where the old law prescribed imprisonment
between 5 and 60 years, the new law calls for a fine or imprisonment at the
discretion of the judge, with the imprisonment limited to between 4 months and 10 years.

47 For the full account, see John Gerassi, BOYS OF BOISE (N.Y.: Macmillan, 1966).

48 N.Y.TIMES, Nov. 9, 1967, p. 34; VECTOR, 4:4, Dec. 1967; PLAYBOY, 15:41,
Feb. 1968. The majority decision held that though the defendant was not a sexually
dangerous person, he was likely to repeat the prohibited act. The Chief Justice in a
minority opinion warned that under the court's ruling every practicing homosexual in
Canada was made liable to penal detention for life. This decision led not only to demands
for a change in the law, editorial support for such change, and an assurance by the
Prime Minister that he would be happy to consider a proposal to appoint a national
committee to study homosexuality and the law but also to the introduction of an
amendment to the criminal code which would legalize homosexual acts between consenting
adults and to the initial approval of the amendment by the Canadian Parliament-"
Canadian Homosexual Bill gets OK," SAN FRANCISCO CHRONICLE, Dec. 22, 1967, p. 14.
Justice Stanley Mosk of the California Supreme Court tells (UCLA study, p. 645) of
two men convicted of private voluntary acts in his court some years ago when he was a
superior court judge.
Because judges are still reluctant to describe "the loathsome and disgusting details"
of sodomy cases (e.g., LA. V. BONANO, 163 So. 2d 72; 1964), it is often impossible to
know the exact nature of the offense, the age of the participants, and whether the acts

Page 27:
were committed in public or private. However, from an examination of _approximately
one hundred American appellate cases, only one (STATE V. MICHALIS, 122 A. 538;
N.J., 1923) indicated clearly that private adult acts were involved. Most American cases
fall into two catcgorics--cither minors or vice officers arc involved.

49 See nn. 8 and 12 above.

50 The UCLA study (p. 763) found that over 90% of the homosexual cases were
disposed of by submitting the case to the judge on the basis of the transcript of the
preliminary hearing. This procedure means that the defendant has in essence admitted
his guilt, minimises the time spent in court, and avoids the publicity of a public trial. But
as Superior Court Judge Francis McCarty says (SAN FRANCISCO EXAMINER, Nov. 2,
1967, p. 12) such a procedure "actually involves no trial at all." The "inevitable result"
is conviction. For a variety of reasons most lawyers recommend to their clients that they
accept this method of handling their cases.
On the matter of less exacting trial standards for homosexual than for other criminal
cases, see James M. H. Gregg, "Other Acts of Sexual Misbehavior and Perversion as
Evidence in Prosecution for Sexual Offenses," ARIZONA LAW REVIEW, 6:212-36, 1965.

51 President's Commission on Law Enforcement and the Administration of Justice,
THE CHALLENGE OF CRIME IN A FREE SOCIETY (Washington, D.C.: U.S. Government
Printing Office, 1967), p. 134.

52 Most convictions for homosexual offenses arc obtained on the basis of the uncorroborated
oral testimony of the police officer which judges and juries almost without
exception believe rather than that of the homosexual defendant. The UCLA study (n.
17, p. 767) found that 93% of the felonious homosexual offenses were decided on the
basis of the uncorroborated testimony of the arresting officer. In this way the corroboration
required of an accomplice's testimony is circumvented. The UCLA study (pp. 695,
757) seriously questions the propriety of such a procedure. In KELLY V. U.S. (194 F.
2d 150; D.C., I 952) the court warned of the possibility of injustice in a swearing contest
between two persons, one of them a police officer and the other an accused citizen, and
laid down several rules it hoped would help improve the situation.

53 Maximum fines run $1,000 in 7 states(Ga., Haw., Mass., Mo., Nev., N.J., Wash.),
$500 in 18 (Ala., Alas., Calif., Fida., Ill., Kans., La., Mich., Mont., Nebr., N.Y., N. Dak.,
Ohio, Ore., Pa., S. Dak., Va., Wis.), $300 in 5 (Ariz., D.C., Ida., Utah, Vt.), $250 in I
(Ark.), $200 in 6 (Colo., Conn., Ia., Ky., N. Hamp., Tex.), $100 in 5 (Ind., N. Mex., S.
Car., W. Va., Wyo.), and $50 in 2 (Md., Miss.). Minimum fines arc set at $500 in Nev.;
$50 in Alas., Ark., and Conn.; $25 in Colo.; $20 in W. Va.; $10 in Haw., Ky., and Wash.;
$5 in Ind., Md., and Minn. No maximum or minimum is set in 5 states (Del., N. Car.,
Okla., R.I., Tenn.). Maximum jail sentences run as high as 5 years in Pa. and Vt.; 3 years
in Mass., N .J ., and R.1.; 2 years in Ariz. and Colo.; 1 year in 19 states (Ala., Alas., Ark.,
Calif., Ga., Haw., Ky., La., Mich., Mo., Nev., N. Dak., Ohio, Okla., Ore., S. Dak., Va.,
Wash., Wis.); 6 months in 13 states (Conn., Fida., Ida., Ill., Ind., la., Kans., Me., Mont.,
Nebr., N. Hamp., N. Mex., Utah); 3 months in D.C., N.Y., and Wyo.; 2 months in Md.; 1
month in S. Car. and W. Va.; and 20 days in Miss. Minimum jail sentences run 7 days in
Md.; 10 days in Minn.; one month in Ark., Colo., and Okla.; 3 months in Alas.; and 6
months in Nev. In 38 jurisdictions both a fine and jail sentence are authorized--Ala.,
Ariz., Calif., Colo., Conn., D.C., Fida., Ga., Haw., Ida., IJI., Ind., Kans., Ky., La., Mc.,
Mich., Miss., Mo., Mont., Nebr., Nev .. N. Hamp., N.J., N. Mex., N.Y., N. Dak., Ohio,
Ore., Pa., S. Car., S. Dak., Utah, Va., Wash., W. Va., Wis., and Wyo. In Texas only a fine
(up to $200) is levied. And in Del. and N. Car. either a fine or jail or both are authorized,
with the sentence left to the discretion of the judge.

54 The President of the Florida League for Good Government (in a personal Jetter
dated Sep. 30, 1967) says he has been attempting to obtain information on the number
of homosexual arrests in Dade County (Miami) for three years without success. Last
April, however, the sheriffs department released figures on the number of "incidents" of
"child molestation."

55 Pp. 799, 767-70, 805-06, 829. For the year 1948, the conviction rate in Los
Angeles for sex perversion was 89% for misdemeanors and 46% for felony arrests-R. W.
Bowling, "The Sex Offender and Law Enforcement," FEDERAL PROBATION,
14:11-16 at 15, Sep. 1950.

56 "Philadelphia's New Criminal Procedure for the Abnormal Sex Offender," LEGAL
INTELLIGENCER, Dec. 11, 1950. TIME ("Philadelphia's Magisterial Mess," 86:59, Oct.
1, 1965) says morals charges were dropped after payments ranging from $300 to $2,500.
In 1961 Richard H. Elliott, in a study of homosexual arrests in Philadelphia, cites 60
arrests in 7 months - which would suggest about 100 arrests a year. His study has
recently been printed in DRUM ("The Morals Squad," no. 26, pp. 10-13, 26-28, Sep.
1967).

57 until the McCarthy period and the Senate's severe criticism of District officials for
their Jax and inconsequential manner of handling homosexual offenses, District police
arrested about 400 persons a year, usually on disorderly conduct charges which were
processed by simple forfeiture of collateral ($25) or outright release. After April, 1950,
the number of arrests increased markedly, department officials were notified in the case
of all government employees, more serious charges were invoked, and penalties (fines
and/or jail sentences) were greatly increased. See, "Employment of Homosexuals and
Other Sex Perverts in Government," Interim Report submitted to the Committee on
Expenditures in the Executive Departments by its Subcommittee on Investigations. 81st
Congress, 2nd session. Senate Document No. 241. Dec. 15, 1960.

58 Robert C. Doty, "Growth of Overt Homosexuality in City Provokes Wide Concern."
N.Y. TIMES, Dec. 17, 1963, pp. 1, 33; Henry H. Foster, Book Review, JOURNAL
OF CRIMINAL LAW, CRIMINOLOGY, AND POLICE SCIENCE, 55:393-96 at
395, 1964. Dr. Edmund Berglcr (ONE THOUSAND HOMOSEXUALS [Patterson, N.J.:
Pageant Books, 1957], p. 248) quotes a New York City public health doctor as estimating
6,500 homosexual arrests annually. Former Judge Morris Ploscowe (OP.CIT., p.
194) says that for the period 1950-57 there were about 330 sodomy arrests each year in
New York City and that in 1949 there were 931 arrests for "degenerate acts" and 2,213
for loitering. How many of the latter were homosexual in nature is not indicated. Of the
present 1,000 to 1,200 annual arrests, between 40 and 70 (4 to 7 percent) involve adults
and boys, usually in their late teens.

59 Lois Wille, "Police Watch Homosexuals' Hangouts Herc," CHICAGO DAILY
NEWS, Jun. 22, 1966, p. 3.

60 DRUM, no. 21, p. 22, 1966--citing an article by John Huddy in the COLUMBUS
DISPATCH,Jul. 17, 1966.

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61 MikeCulbert, "90,000 San Francisco Perverts--Startling Police Report," SAN
FRANCISCO NEWS CALL BULLETIN, Mar. 18, 1965, p. 3.

62 U.S. Dept. of Justice, UNIFORM CRIME REPORTS: 1965 (Washington, D.C.:
U.S. Government Printing Office, 1966), p. 3; THE CHALLENGE OF CRIME, p. 5. The
number of arrests, as distinguished from the number of offenses known to the police, has
been estimated at 5,000,000 of which about one-half are for crimes lacking "victims"
(e.g., drunkenness and illegal consensual sex acts) or for breaches of the public peace-of.
"Crime: American Style: the President's Commission," COMMONWEAL, 86: 141-42,
1967. For a recent discussion of the subject indicated in its title, see Edwin M. Schur,
CRIMES WITHOUT VICTIMS (Englewood Cliffs, N.J.: Prentice-Hall, 1965; Spectrum
Paperback S 111), and especially pp. 67-119 on homosexuality.
In parody of the public's misconception of the number of homosexuals, DRUM
(5: 14-15, Mar. 1965) contains a story entitled "I Was a Homosexual for the FBI" in
which the secret agent, after special training, was assigned the task of rounding up
homosexuals. He was so successful that "instead of catching three or four of them as we
had hoped, we caught every homosexual in the entire country, and now all twelve of
them were on trial."
No one knows how many homosexual acts arc performed in any one year, but the
Group for the Advancement of Psychiatry, in its Report No. 9 ("Psychiatrically Deviated
Sex Offenders," !Topeka, Kans.: GAP, Feb. 1950), p. 2) estimates that 6,000,000
homosexual• acts take place for every 20 convictions. The WOLFENDEN REPORT (n.,
par. 40) alludes to estimates in Britain running all the way from 2,500 to 1 to 30,000 to 1.

63 The President's Crime Commission could find no one who knew how many people
are incarcerated in correctional institutions. Its own figures suggest 425,673 on an average
daily basis--CHALLENGE OF CRIME, p. 1. Since the number of inmates in federal
and state prisons for 1965 numbered 213,736 (WORLD ALMANAC: 1965, p. 692), the
capacity of city and county jails would be 211,937.

64 Cf. THE AMERICAN PSYCHIATRIC ASSOCIATION (Washington, D.C., i l 966
p. 8) infonnational pamphlet; FIFTEEN INDICES: AN AID IN REVIEWING STA TE
AND LOCAL MENTAL HEAL.TH AND HOSPITAL PROGRAMS, 1966 EDITION of
Joint Information Service of the American Psychiatric Association and the National
Association for Mental Health (No place or date of publication), p. 18.

65 The First Deputy Police Commissioner of New York City (Doty, OP. CIT., p. 33)
is quoted as saying: "No attempt is made to enforce the theoretical ban on private
homosexual conduct between consenting adults." Wayne R. LaFave in his recent study
(ARREST: THE DECISION TO TAKE A SUSPECT INTO CUSTODY !Boston: Little,
Brown, 1965], p. 465) says: "Private homosexual conduct between consenting adults is
not in practice a matter of major concern to Jaw enforcement agencies." Cf. Martin D.
Adler, "The Application of Discretion in Enforcement of the Law in Mental Health
Situations," POLICE, 9:48-53, Nov.-Dec. 1964. The UCLA study (p. 689) says: "The
first concession to pragmatic considerations is to jetison any attempt to enforce against
homosexual activity which occurs in private. Even if the police know that homosexuals
arc cohabiting they generally will not initiate any action." A police lieutenant (Wille, OP.
CIT., p. 3) says he knows homosexuals engage in sexual activity but he cannot do
anything about it even though they "might be breaking the Ten Commandmc"nts." Cf.
Manfred Guttmacher and Henry Wcihofcn, "Sex Offenses," JOURNAL OF CRIMINAL
LAW, CRIMINOLOGY, AND POLICE SCIENCE, 43: 153-75 at 156, 1952.
In England, however, there have been a goodly number of prosecutions for private
homosexual acts between consenting adults. As late as 1964-65, during a nine-month
period, 30 men were convicted on such charges--John Grigg, "Is Homosexuality a
Crime?" N.Y. TIMES MAGAZINE, Jun. 27, 1965, pp. 6-7.

66 The UCLA study (n. 17 on p. 688, n. 24 on pp. 689-90, n. 37 on p. 692, p. 698, n.
83 on p. 698, p. 699, n. 84 on p. 699, p. 796) concluded (1) that complaints to the
police are rare, (2) that statements of complaint on arrest forms are "a matter of form,"
(3) that many bars are quasi-private clubs which keep out or ostracize nonhomosexuals
or unknown patrons, (4) that "homosexuals are discreet as to whom they solicit," and
(5) that "the majority of solicitations are made only if the other individual appears
responsive and are accomplished by quiet conversation and the use of gestures and
signals having significance only to other homosexuals." Harold Jacobs ("Decoy Enforcement
of Homosexual Laws," U. OF PA. LAW REVIEW, 112:259-84 at 259, 1963)
discovered that homosexual solicitations are so quiet and so barely noticeable that "a
casual observer could hardly recognize them." Elliott in his Philadelphia study (OP. CIT.,
p. 11) found that homosexual solicitations are usually made "in ambiguous language"
and require the decoy officer to seek further explanation. Cf. Paul Welch's article in
LIFE ("Homosexuality in America: The 'Gay' World Takes to the Streets," 56:68-74 at
72-73, Jun. 26, 1964). R. A. Laud Humphreys (1967) in an unpublished study ("They
Meet in Tearooms: A Preliminary Study of Participants in Homosexual Encounters")
found (pp: 4, 9-10 and n. 17) that his subjects in public restrooms usually relied on a
lookout to avoid unexpected interruption, discontinued their activity on the approach of
a stranger, and completely avoided any sexual contact with teenage boys. C. H. Rolph
("The Problem for the Police," NEW STATESMAN AND NATION, 59:944-45, 1960)
suggests that if homosexual solicitations cannot be detected without using AGENTS
PROVOCATEURS, then they can hardly be considered a threat to public decency.
Sherri Cavan ("Interaction in Home Territories," BERKELEY JOURNAL OF
SOCIOLOGY, 8:17-32 at pp. 25, 27, 1963) concluded from her study of a gay bar in
San Francisco that "outsiders" may be treated in such fashion as will convince them
either to leave or to be considered an active participant "in the ongoing behavior patterns"
of the bar. Helen Branson (GAY BAR [San Francisco: Pan-Graphic Press, 1957],
pp. 27, 42-43, 49-50, 54-56) tells how she, as the owner and operator of a bar catering to
homosexuals, kept out or got rid of "outsiders."

The Kinsey group (Paul H. Gebhard, John H. Gagnon, Wardell B. Pomeroy, and
Cornelia V. Christensen, SEX OFFENDERS; AN ANALYSIS OF TYPES [N.Y.: Harper
and Row, 1965], pp. 315 and 34 7) found a "mutuality" in the initiation of relationships
between homosexual offenders against adults and their partners in most instances; in the
case of homosexual offenders against minors, they found the initiative was taken by the
child in about 15% of the cases and that a mutuality of initiative occurred in another
15%. Lauretta Bender and Abram Blau ("The Reaction of Children to Sexual Relations
with Adults," AMERICAN JOURNAL OF ORTHOPSYCHIATRY, 7:500-18 at 513,
1937) found that the child "often" takes the initiative rather than the adult.

67 "The Senior Staff Man," TIME, 84: 19-23, Oct. 23, 1964. James Stephens in a
letter to PLAYBOY (14: 174, Jun. 1967) refers to a story in the MIAMI HERALD
stating that 26 men were arrested after a two-way mirror was installed in the city-owned
bus terminal in Coral Gables, Fla. Cf UCLA study, p. 708.

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68 YMCAs sometimes use such devices--cf. Norman Fuller, "The Use of Closed Circuit
TV for the Study and Elimination of Homosexual Activity in the YMCA" (Confidential
Report by the Executive Secretary of the Central YMCA of Philadelphia, 1962)-cited by
Gaeton J. Fonzi, "The Furtive Fraternity," GREATER PHILADELPHIA MAGAZINE,
Dec. 1962 as reprinted in booklet form by Pan-Graphic Press of San Francisco, p. 11.
Laguna Beach, Calif (TANGENTS, 2:9, Nov. 1966) is planning to install closed circuit
TV in order to keep watch on "objectionable" activities along a two and one-half mile area.

69 For example, Miami Beach police say photography is of "deterrent value" in
controlling homosexuals--DRUM, 5:20, Jun. 1965. In Mansfield, Ohio, the police have
used films as the basis for arrest of homosexuals--DRUM, 5:5, May 1965. In Lake
Milton, Ohio, the sheriff's office announced it would make arrests of 25 men on the
basis of evidence provided by 500 feet of movie film, etc.--DRUM, 5:25, Dec 1965. See
also n. 70 below for further use of photography by police in homosexual cases. In the
case of a Marine Corps sergeant discharged back in 1958, it was revealed that the Defense
Dept. has used secret photographs taken in men's rooms in the Pentagon. After initially
admitting it, the department denied the practice--THE INSIDER (newsletter of the
Mattachine Society of Washington), Dec. 1966, p. 3.

70 UCLA study, n. 133 on p. 707. In Long Beach, police spied on occupants of a
public toilet by looking through a pipe installed in the ceiling. When they saw illegal acts
occur, they made arrests. The California Supreme Court ruled (BIELICKI AND WELCH
V. SUPERIOR COURT, 371 P. 2d 288; 1962) that such a technique is unconstitutional
because it is a general exploratory search conducted without warrant and for the sole
purpose of finding guilt. In BRITT V. SUPERIOR COURT (374 P. 2d 817;1962) the
police arrested two men for homosexual acts after looking through ceiling vents over a
toilet booth in a department store and after taking motion pictures of them. The
California Supreme Court again held that since the officers observed "anyone who
happened to come in" they had engaged in an unlawful search. But in the case of
SMAYDA V. U.S. (352 F. 2d 251; 1965), we have a U.S. Court of Appeals coming to a
different conclusion. Holes were cut in the ceiling above toilet booths in a restroom in
Yosemite National Park and were disguised as ventilation screens. After observing 40
innocent persons, a park ranger and photographer, installed in the attic, arrested two
men for unlawful acts. In this case an uneasy court found no violation of constitutional
guarantees against unreasonable search and no problem involving invasion of privacy.
The public interest in privacy must "to that extent" be subordinated to the public
interest in law enforcement, the court said. Cf. "The Peephole Problem," TIME, 86:59,
61, Nov. 12, 1965.

71 Wille, OP.CIT., p. 3.

72 "Students Used in Morals Cases," TALLAHASSEE DEMOCRAT, Dec. 27, 1965,
p. 11; "College Boys Help Trap Homosexuals," SAN FRANCISCO CHRONICLE, Dec.
29, 1965, p. 2.

73 N.Y.TIMES, Apr. 2, 1966, p. !;May 11, 1966, p. 39;May 30, 1966,p. !;Sep. 17,
1966, p. 3.

74 UCLA study, n. 132 on p. 707. Elliott (OP. CIT., p. 13) found that about half
(46%) of all arrests for homosexual activity in Philadelphia resulted from solicitation of
decoys. Elliott also concluded (p. 28) that the reasons the police give to justify their
policies toward homosexuals arc not supported by the facts.

75 THE HOMOSEXUAL REVOLUTION (N.Y.: Julian Press, 1962), pp. 167-68;
UCLA study, p. 691, n. 34 on p. 691, n. 37 on p. 692, n. 51 on p. 694, n. 111 on p. 703,
n. 119 on pp. 704-05. For a condemnation of entrapment in the popular press, see Pete
Hammill ("The Worst Job," N.Y. POST, Apr. 19, 1966) which ends with the observation
that the next time a cop arrests a homosexual by "enticing" him in a steam bath, etc.,
"the cop should be arrested too, for loitering to commit a degenerate act. You can't call
it anything else." TANGENTS (1: 16, Feb. 1966) cites Part IV of a series of articles on
"Our Penal Law" by Joseph Kahn in the N.Y. POST, daily magazine section, which
vigorously attacks police entrapment of homosexuals. For England, the Wolfenden Committee,
after considering the matter of decoy activity and entrapment, concluded (par.
121) that the use of decoys is "necessary," that the police "do everything they can" to
avoid acting in a "deliberately provocative" manner, and that in the detection of homosexual
offenses "a police officer legitimately resorts to a degree of subterfuge."

76 OP. CIT., pp. 72-73. The official policy of the Los Angeles Police Department is
for decoys to avoid suggestive dress, gestures, and language. But the LIFE article showed,
both by words and pictures, as the UCLA study puts it (n. 3 7 on p. 692) that "policy is
not consistent with practice."
How far the police will go in initiating situations which may lead to arrest is especially
well illustrated in RITTENOUR V. D.C. (163 A. 2d, 558; 1960). A vice officer,
pretending to be "down and out" and in need of a place to stay until he "could catch a
bus out of town," telephoned Rittenour and got himself invited to the latter's apartment
where he was propositioned. Arrested and convicted, Rittenour appealed and had his
conviction overturned.
Fonzi (OP. CIT., pp. 15-16) questions "the propriety of the police luring someone
into committing a crime" and says it is difficult to determine just how much entrapment
occurs in homosexual arrests.

77 UCLA study, n. 58 on p. 695. Individual homosexuals have written letters to
PLAYBOY (e.g., 13:63, May 1965 and 14:84, Dec. 1967) alleging enticement, entrapment,
and perjury to which the editor responds that the court rarely believes the defendant
"although there are numerous cases where evidence has subsequently come to
light proving the testimony of the arresting officer was false."

78 An excellent discussion of entrapment is found in the UCLA study, pp. 701-07.

79 Episcopal Diocese of California, REPORT OF THE DIOCESAN COMMITTEE ON
HOMOSEXUALITY (San Francisco, 1967), recommendation no. 2 on pp. 7 and 9;
UCLA study, n. I 03 on p. 702; "Private Consensual Homosexual Behavior: the Crime
and Its Enforcement," YALE LAW JOURNAL, 70:623-35 at 633-34, 1961. Cf. Council
on Religion and the Homosexual, A BRIEF OF INJUSTICES (San Francisco, 1965), p.4.

80 UCLA study, pp. 699 and 712; editorial, WASHINGTON POST-reprinted in
MATTACHINE REVIEW, 7:2, Jun. 1961; DRUM, 16:22, Apr. 1966.

81 Another significant issue is the point at which arrest is made. Some officers arrest
as soon as an individual commits an offense; others wait until what might have been a
misdemeanor has evolved into a felony. Cf. UCLA study, n. 197 on p. 717.

82 In BUTTS V. U.S. (273 F. 35 at 38; 1921) the court said: "The first duties of the
officers of the law arc to prevent, not to punish crime. It is not their duty to incite and
create crime for the sole purpose of prosecuting and punishing it." In SORRELS V. U.S.

Page 30:
(287 U.S. 435 at 444; 1932) the Supreme Court accepted the Butts statement, and in
SHERMAN V. U.S. (356 U.S. 369 at 384; 1958) it further stated: "The power of
Government is abused and directed to an end for which it was not constituted when
employed to promote rather than detect crime and to bring about the downfall of those
who, left to themselves, might well have obeyed the law." In U.S. V. BECKER (62 F. 2d
1007 at 1009; 193 3) the court expressed its "spontaneous moral revulsion against using
the powers of government to beguile innocent, though ductile, persons into lapses which
they might otherwise resist."
Though the courts have practically defined entrapment out of existence as a defense
in homosexual cases by their assumption of pre-existing intent, they occasionally conclude
that entrapment has occurred. For example, in the Rittenour case (OP. CIT., p.
560) the court concluded that the vice officer had "led the appellant to believe he would
consent" and had, in the privacy of the appellant's home, "trapped the suspect into
making a homosexual proposal and then arrested him." In KELLY V. U.S. (194 F. 2d
150 at 154-55; 1952) the appellate court, choosing to believe the testimony of the
defendant over that of the vice officer, laid down three guidelines which it hoped would
in the future limit the possibility of false accusation and false conviction in homosexual
cases. In MCDERMOTT V. U.S. (98 A. 2d 287 at 290; 1953) the court said: "An officer
of the law, as we have said, has the duty of preventing, not encouraging crime" and
should not be permitted to "torment and tease weak men beyond their power to resist..
.. " Exactly the same words were again used by the same court in GUARRO V. U.S.
(237 F. 2d 578 at 581; 1956). And in PEOPLE V. HUMPHREY (111 N.Y.S. 2d 450;
1952) the court held the police had resorted to entrapment in their arrest of the defendant
for disorderly conduct (loitering and soliciting) after the defendant had invited
an acquaintance (who, unkown to him, was actually a vice officer) to his apartment for
"beer, candy, and fun." Such an invitation, the court said, did not necessarily constitute
a prior intent to commit lewd (i.e., homosexual) acts.

83 Cf. UCLA study, pp. 686,694,717.

84 The U.S. census for 1950 and 1960 gives the population of Boise as just under
35,000. (When outlying areas arc included, the figure would probably double.) Kinsey
found that 4% of the adult male population is exclusively homosexual, and other
specialists estimate the predominantly homosexual male population at 10%. Assuming
that half of the population is male and that the percentage of males aged 15 and over is
the national average of approximately 70%, the 4% and 10% figures for Boise proper
would be 490 and 1,225. For details of the scandal, see Gerassi (OP. CIT., pp. 39-40,
126, and PASSIM). The private investigator is quoted as saying the authorities could
probably have gotten convictions of all 500 men if they had tried.
The Mattachine Society of N. Y. ("Long Island Homosexuals to Get Legal Aid," N.Y.
TIMES, Jul. 24, 196 7, p. 19) advises homosexuals to leave their address books at home.
In Florida the MIAMI NEWS announced that the metropolitan police have a list
3,000 local persons suspected of being practicing homosexuals-quoted in
MATTACHINE REVIEW, 8:21, May 1962. The investigator for the Broward County
school system, according to a letter from the President of the Florida League for Good
Government dated Oct. 9, I 967, claims he has built up a list of 55,000 known or
suspected homosexuals, a list which he is willing to make available to employment
agencies and the police.
Elliott in his study of the vice squad in Philadelphia (OP. CIT., p. 12) says the police
automatically search homosexual offenders for the names and addresses of other possible
homosexuals as well as ask them for the names of sexual partners.

85 CALIF. PENAL CODE, sec. 290.

86 p. 737. If an accused person is found guilty of disturbing the peace, disorderly
conduct, or outraging public decency, he does not have to register as a sex offender.
(The courts have recently found the offense of outraging public decency unconstitutional.)

87 UCLA study, p. 738 and n. 315 on p. 738. The UCLA group also found (p. 787)
that every psychiatrist interviewed, virtually all legal and medical authorities, and most
of the judges sitting in the Criminal Division of the Superior Court of Los Angeles reject
the argument that homosexuals are a menace to society in general and to children in
particular. The Kinsey group (SEX OFFENDERS, pp. 285, 323, 345) found (1) that the
homosexual offender against children is the least homosexually and the most heterosexually
oriented of all homosexual offenders, (2) that the homosexual offender against
minors (age 12 to 15) has retreated from competition with adult homosexuals or is a
situational offender, and (3) that the homosexual offender against adults is notinterested
in prepubescent boys, prefers (76%) partners over 18, and especially partners of his own
age bracket (25-34). Michael Schofield in SOCIOLOGICAL ASPECTS OF HOMOSEXUALITY
(London: Longmans, 1965) found that pedophilia (the preference for
children as sex partners) and homosexuality are "two quite separate phenomena" (pp.
147, 149, 208, 212) and that only 18% of his subjects had had their first homosexual
experience with an adult (pp. 31-32, 81-82, 109-111). The WOLFENDEN REPORT
(par. 57) found that adults who have homosexual relations with other adults "seldom
tum to boys." Moreover, since "sex deviates persist in the type of behavior in which
they have discovered satisfaction," it is not likely that the adult homosexual offender
will tum to children-Slovenko and Phillips, OP. CIT., n. 84 on pp. 823-24, quoting from
the Report of the New Jersey Commission on the Habitual Sex Offender (1950).
On the matter of crimes of violence and recidivism among male homosexual offenders
against adults the Kinsey group (SEX OFFENDERS, pp. 350-51) found (1) that
only 7.5% of them had had juvenile convictions (the smallest percentage among all sex
offenders), (2) that 65% of them had no record of conviction for any other types of
offenses (the largest percentage among all sex offenders), (3) that those who did have
such records had been convicted of vagrancy-disorderly conduct (charges to which
homosexuals arc "predisposed") and crimes against property, and (4) that their
recidivism rate was "definitely low" (42% had had but one previous conviction).

88 Cf. remarks in UCLA study, pp. 738 and 794.

89 Robert K. Woetzel, "Do Our Homosexuality Laws Make Sense?" SATURDAY
REVIEW OF LITERATURE, 48:23-25, Oct. 9, 1965. Elliott (OP. CIT., p. 12) found
that the Philadelphia police routinely ask persons arrested for homosexual offenses
where they arc employed, that they notify the employer if the individual works for
the federal, state, or local government, that they supply the information to other employers
on request, and that by holding the accused until he has been arraigned they
make it "highly probable" the employer will learn of the arrest. Releasing the names of
arrested homosexuals to the press also has the effect of notifying employers. The lawyers
arrested at the San Francisco New Year's Day ball (sec n. 105 below and text pertinent
thereto) discovered that the police department had sent a report to the San Francisco
Bar Association to the effect that they had been arrested defending homosexuals-A
BRIEF OF INJUSTICES, p. 6.

90 Since employment and military policy arc subjects which will be treated in some
detail in other papers in this series, they will not be discussed here. Suffice it to say (I)

Page 31:
that the federal government (and some state governments and private employers as well)
automatically dismisses or refuses to hire persons known or believed to be homosexual
or to have engaged in homosexual acts, without evidence of rehabilitation, on the
grounds that such persons engage in immoral and illegal conduct, undermine the morale
and efficiency of other employees, and arc security risks, (2) that the armed services
exclude homosexuals from military service and discharge them, usually with an undesirable
discharge and loss of veterans' benefits, and (3) that these policies are criticized
not only by homosexuals but by a variety of legal, medical and religious groups.

91 See Evelyn Hooker, "Male Homosexuals and Their 'Worlds,' " in SEXUAL INVERSION,
edited by Judd Marmor (N.Y.: Basic Books, 1965), pp. 83-I07 (chap. 5);
Cavan, OP. CIT.; Branson, OP. CIT.; Donald W. Cory, "Drop Another Nickel In," in
THE HOMOSEXUAL IN AMERICA (N.Y.: Greenberg, 1951), pp. 120-28 (chap. 11);
Donald W. Cory and John P. LeRoy, "The Gay Bar-an Emerging Institution" and "Are
Gay Bars Harmful?" in THE HOMOSEXUAL AND HIS SOCIETY (N.Y.: Citadel, 1963),
pp. I 05-27 (chaps. 9 and IO); Nancy B. Achilles, "The Homosexual Bar," MA Thesis, U.
of Chicago, 1964; Nancy B. Achilles, "The Development of the Homosexual Bar as an
Institution," in SEXUAL DEVIANCE, edited by John H. Gagnon and William Simon
(N.Y.: Harper and Row, 1967), pp. 228-44; Clark P. Polak, "On Gay Bars," DRUM,
5: 12-15, Feb. 1966. Also, John Rechy in his novel, CITY OR NIGHT (N.Y.: Grove
Press, 1963), offers intimate glances into gay bars. Paul rorbes ("The Astor Shuts Its
Doors-Waits Wreckers," N.Y. TIMES, Jun. 30, 1966, p. 41-reprinted in DRUM, no. 20,
pp. I 1-12, 1966) tells the story of the Astor Hotel Bar as a meeting place for homosexuals
during and since World War II.

92 G. R. Schwartz, the owner of a gay bar in Los Angeles (Letter to the Editor,
PLAYBOY, 14:55-56, Jan. 1967 and 14:52, Apr. 1967), tells of harassment by Los
Angeles police against him and his customers and of his loss of his liquor license since his
first letter to PLAYBOY. The Council on Religion and the Homosexual (A BRIEF OF
INJUSTICES, pp. 6-10) indicts law enforcement officials for enticement, entrapment,
and harassment of homosexuals in gay bars and criticizes in the strongest possible
language the grounds on which licenses of gay bars arc revoked and the manner in which
evidence to justify revocation is obtained. Ernest Lenn ("Special Cops for 'Gay' Bars,"
SAN FRANCISCO EXAMINER, Oct. 12, 1961, p. 3-reprinted in MATTACHINE REVIEW,
7 :4, Nov. 1961) writes that "specially trained young policemen in plain clothes
are being sent into homosexual bars here to get evidence aimed at revoking their liquor
licenses" and that police and liquor authorities are pleased with the results since last
year's 30 gay bars have been reduced to 18, with revocation proceedings pending against
15 of them. Morris and Juliet Lowenthal in their Appellant's Opening Brief' in the case
of Stoumen v. Riley (1 Civil No. 20,3 IO) in the first appellate division of the District
Court of Appeal, dated Jun. 8, 1962, say (n. 2 on p. 111 and unnumbered note on p.
193, citing the transcript of the trial, pp. 369 and 381) that the procedure of using
undercover agents "in wholesale fashion under instructions to 'make a case' against the
bar, has never been applied against 'non gay' bars" and that the Alcoholic Beverage
Control Department is determined to "close every gay bar in California." (The Stoumen
case involves the famous Black Cat bar in San Francisco which had become a national
tourist attraction and which was finally closed down after twelve years of litigation.) In
the Vallerga case (sec n. 94 below) city and military police had the bar under "almost
daily" surveillance for nine months during which time no arrests were made and "not
once" were improper acts by patrons called to the attention of the management. The
liquor authority revoked the bar's license on the grounds that the "premises were a
hangout for homosexuals."
Another form of police harassment has been to post "Raided Premises" signs and to
station a uniformed police officer at the entrance of places that allegedly allow homosexual
solicitation-N.Y. TIMES, Mar. 19, 1966, p. 31. After criticism of this practice on
a TV news program, the police agreed to reconsider the policy. Thereafter, one bar in
Greenwich Village, for the first time in ten months, found itself without sign or policeman.
See also, DRUM, 6:6, Mar. 1966. However, police have recently (N.Y. TIMES,
Nov. 30, 1967, pp. 1, 50) posted a "raided premises" sign at the entrance to a private
club catering to homosexuals.
Homophile publications are filled with examples of "harassment." The most notorious
technique is that of mass arrest. In addition to the Chicago raid involving l03
persons (sec n. 102 below and text pertinent thereto), here are several other examples:
In mid-June, 1956 (MATTACHINE REVIEW, 2:43, Aug. 1956 quoting from the N.Y.
TIMES of Jun. 17) the New York City police arrested 387 "undesirables" during the
past weekend; on Feb. 19, 1956 (MATTACHINE REVIEW, 2:3-4, 36, Mar. 1956) the
sheriff of San Mateo, California, rounded up 200 men, charging 87 of them with lewd
vagrancy and acts outraging public decency-charges which were later reduced to disorderly
conduct with a guarantee of no fine, no jail sentence, and no probation in return
for a pica of guilty; on Aug. 13, 1961 in San Francisco l03 persons (MA TT A CHINE
REVIEW, 7: 12-14, Sep. 1961) were arrested in a bar and charged with frequenting a
disorderly house; on a Sunday night (exact date not indicated) Atlanta police arrested 85
persons at a night club and charged them with disorderly conduct (TANGENTS, 1: 12,
Dec. 1965); in New Orleans, at the Quorum Club (NATION, 199:272-75, Oct. 26, 1964)
the police "recently" arrested 73 persons on the charge of disorderly conduct-four
persons pleaded guilty and charges were later dropped against the other 69; and on May
2, 1964 (ONE, 12:13, Jul. 1964) Chicago police arrested 58 persons at a private party,
52 of whom were later released for lack of evidence. In many of the above cases, names
and addresses were published in newspapers and many men lost their jobs. Police justify
these raids as a means of keeping homosexuals "under control" -cf. the remarks of a
police official at a symposium on law enforcement in New York ("A Psychological
Deviation-the Homosexual," POLICE, 3:39, Jul.-Aug. 1959) to the effect that the
police make "planned periodic raids" for this purpose at Cherry Grove on Fire Island.

93 Procedures used by state liquor authorities vary, but a general pattern is discernable
from a reading of court cases. Bars are supervised by plainclothes liquor agents or
police officers whose identity is unknown to the license holder or his customers. In
addition, occasional visits by uniformed police are not uncommon. When violations of
laws or moral standards occur, arrests may or may not follow. If made, they rarely occur
in the bar or its immediate vicinity. Violations or arrests are reported to the state liquor
authority. It is not until the bar owner is informed that suspension or revocation of his
license is under consideration that he learns what immoral acts, solicitations, arrests, etc.
arc on file against him. When the charge is that he has permitted his bar to become a
meeting place for homosexuals, it is assumed he can tell the difference between a
homosexual and a heterosexual. Agents' reports (as in the New Jersey case cited inn. 98
below) state: patrons were conversing "in a lisping tone of voice," moved their wrists in
a "limp" fashion; extended "their pinkies in a very dainty manner," looked into each
other's eyes, "swished and swayed" while walking, and "laughed, giggled, and were very chummy."

94 STOUMEN V. REILLY, 243 P. 2d 969 (1951); KERSHAW V. DEPARTMENT OF
ALCOHOLIC BEVERAGE CONTROL, 318 P. 2d 494 (1957); NICKOLA V. MUNRO,
328 P. 2d 271 (1958); and VALLERGA AND AZAR V. DEPARTMENT OF AL-

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COHOLIC BEVERAGE CONTROL, 347 P. 2d 909 (1959). The issue involved in these
cases was twofold-may bars be closed for no other reason than the fact they cater to
homosexuals or is the commission of illegal and immoral acts a necessity? The latter view
prevailed.

95 "Three Homosexuals in Search of a Drink," DRUM, no. 18-19, pp. 18-19, Sep.
1966; "SLA Won't Act in Deviate Bars," N.Y. TIMES, Apr. 26, 1966, p. 54.

96 The Chairman of the State Liquor Authority says (in the newspaper article referred
in the preceding note) that homosexual bars were closed only when they had
become disorderly places. Yet the record shows, to cite only two examples, that the
N.Y. Civil Liberties Union opposed the closing of Greenwich Village's Cafe Bohemia
simply because homosexuals were "congregating" on its premises (ONE, 11: 17, Jun.
1963) and that in the case of Hanley's Grill testimony was presented by liquor investigators
to the effect that homosexuals (females with short haircuts and dressed in mannish
attire and men wearing tight-fitting clothes and talking in high-pitched voices) were
permitted to congregate there (DRUM, 5:6, Jun. 1965). Cf. also, DRUM, 5:24, Oct.
1965. Doty (OP. CIT., p. 33), who used the closing of two gay bars in New York City as
the basis for his feature article, says that "scores" of gay bars have been closed in the last
few years, and over thirty in the last year alone. The editor of DR UM (no. 18-19, p. 5,
Sep. 1966) says that in the entire borough of Manhattan only one or two gay bars
remained open. The situation changed, however, when the N.Y. POST ran a hard-hitting
series of articles on police entrapment, when the N.Y. TIMES indicated its intention to
do a similar series, and when Mayor John Lindsay assumed office and appointed a new
police commissioner. Late in 1967 (N.Y. TIMES, Nov. 30, 1967, pp. 1, 50) the number
of homosexual bars, restaurants, or private clubs had risen to 73, and police officials say
the Mafia is selling some of its gay bars to legitimate business men and is investing more
heavily in private clubs for homosexuals.

97 DRUM, no. 22, p. 6, Dec. 1966, no. 24, p. 6, Mar. 1967, and no. 27, p. 26, Oct.
1967; TANGENTS, 1:17, Aug, 1966.

98 "High Court in New Jersey Overturns a Ban on Homosexuals in Bars," N.Y.
TIMES, Nov. 7, 1967, p. 28.

99 PADDOCK BAR V. DIVISION OF ALCOHOLIC BEVERAGE CONTROL, 134 A.
2d 779 (1957).

100 DRUM, no. 27, p. 27, Oct. 1967; PHOENIX, 2:13, Jun. 1967.

101 Morris Ploscowc (Letter to the Editor, PLAYBOY, 14:52, Apr. 1967) suggests
that laws against homosexuality and the like only encourage corruption in the form of
payoffs-c.g., by proprietors of gay bars. "It is not the function of the law," he says, "to
sec that policemen die rich." Just such a "gayola" scandal occurred in San Francisco in
1960 where a number of policemen and liquor agents were indicted for taking money
from bar owners whose establishments catered to homosexuals. Among the persons
convicted were liquor agent Lawrence Cardellini (SAN FRANCISCO EXAMINER, Sep.
24, 1960, p. 8) and police sergeant Waldo Rcesink (SAN FRANCISCO CHRONICLE,
Sep. 8, I 960, p. 2). In New York, where gay bars have often been operated by the crime
syndicate, the Police Commissioner said (Doty, OP. CIT., p. 33) that some low-level
police payoffs may occur.

102 Lois Wille ("Homosexual Clergyman Tells of His Bizarre Double Life,"
CHICAGO DAILY NEWS, Jun. 21, 1966, p. 4) tells of the raid on the Fun Lounge and
011 other places-including a raid on the Lincoln Baths where 15 men were arrested, of
whom 12 lost their jobs. Cf. ONE, 12: 12-14, Jul. 1964.

103 Quoted by Wille, "Police Watch Homosexuals' Hangouts Here," CHICAGO
DAILY NEWS, Jun. 22, 1966, p. 3. MATTACHINE MIDWEST (2:3, Aug. 1966) warns
its members and readers that "enticement, entrapment, and harassment face the homosexual
every time he steps into the street" in Chicago, that homosexuals are being picked
up by the police, usually on a charge of loitering, without having done anything, that
taking a walk in the park or along the beach is "asking for trouble," and that the police
department has refused to reply to repeated Mattachinc requests for a meeting to discuss
the situation.

104 N.Y. TIMES, Apr. 2, 1966, p. J; CHICAGO DAILY NEWS, Jun. 22, 1966, p. 3;
ATLANTA JOURNAL AND CONSTITUTION-quoted in TANGENTS, 1:22-23, Mar.
1966 and DRUM, 6:21, Apr. 1966.
Police "crackdowns" designed to "control" homosexuals, to drive them out of town,
or to put an end to homosexual activities "once and for all" are a familiar occurrence.
Limiting examples to the last several years only, we find such campaigns proclaimed in
Cincinnati (DRUM, 5:5, Dec. 1964), Portland, Ore. (DRUM, 5:21, Apr. 1965), Boston
(DRUM, 5:6, Oct. 1965), Providence (DRUM, 5:25, Jan. 1966), Seattle (TANGENTS,
I: 15, Sep. 1966), Grand Rapids, Mich. (TANGENTS, 2: 20-21, Oct. 1966), and Cherry
Grove, N .Y. (DRUM, no. 27, p. 27, Oct. 1967). Similar campaigns have netted 31 men in
Chula Vista, Calif. (CHULA VISTA STAR-NEWS, Apr. 16, 1964, p. I); 40 men in San
Bernardino, Calif. and 17 in Fort Worth, Tex. (DRUM, 4:5-6, Oct. 1964); 40 men in
Santa Ana, Calif. and 19 in Chicago (DRUM, 5:5-6, Jul. 1965); 34 men in Harrisburg, Pa.
(DRUM, 5:7, Oct. 1965); 12 men in LcHabre, Calif. (DRUM, 5:18, Nov. 1965); 14 men
in Hollywood and 7 in Newport Beach, Calif. (DRUM, no. 18-19, p. 8, Sep. 1966); 18
men in Cherry Grove, N.Y. (DRUM, no. 21, p. 23, Nov. 1966); 9 men in Los Angeles
(PRIDE, 2: 1, 4, Jul. 1967), 26 men in Xenia, 0. (DRUM, no. 25, p. 24, Aug. 1967); and
17 men in Dayton (DRUM, no. 27, p. 24, Oct. 1967).
An especially unfortunate incident occurred in Massachusetts late in 1960. Two
homosexual adult males from California, one white and one Negro, travelling crosscountry
on a vacation (John Logan, "Puritan Terror," MATTACHINE REVIEW, 7:4-7,
Apr. 1961), were stopped on Sep. 10th as they crossed the state line on Route 20 and
taken to the state police barracks at Charlton. There their luggage was searched and a
small metal box containing a copy of the Sep. 1960 issue of the MATTACHINE REVIEW,
a copy of PHYSIQUE PICTORIAL, and a personal letter from the Boston Arca
Council of the Mattachinc Society, was broken into. The two men were then taken to
Southbridge where they were held for trial on the charge of "possession of pornographic
literature [the copy of the MATTACHINE REVIEW[ for the purpose of display and
exhibition." Finally, on Jan. 12, 1961, they were tried, convicted and sentenced to pay a
fine of $ 250 each. All told, the two men had been detained 125 days.
The unfortunate concomittants and consequences of police actions designed "to
control" homosexuals in Philadelphia arc well shown by Fonzi (OP. CIT., pp. 15- I 6).
Not only have psychiatrists, lawyers, and the local ACLU criticized the police for entrapment
practices; but, far more serious, a corrupt racket involving policemen, bail bondsmen,
lawyers, and perhaps even magistrates has thrived and "apparently still llourishes."
After reports of a racket "involving the systematic mulcting" of homosexuals leaked out.
the deputy police commissioner found ( 1961 ), after studying 337 cases, that (I) certain
police officers grilled suspects about their business and financial situation before booking

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them, (2) bail bondsmen were arriving at city hall with signed copies for a suspect's
release before his arrival, (3) bondsmen were directing arrested men to certain lawyers
from whom they were getting a 50% kickback and were charging $40 to $60 for copies
of charges which could be obtained free from magistrates, ( 4) lawyers were charging
outrageous fees (up to $7000), and (5) the 337 cases were handled by only nine lawyers.
A subsequent investigation of 31 complaints by the district attorney led to the arrest of
10 bail bondsmen. Though four lawyers and six policemen were also involved, none of
them were arrested.

105 SAN FRANCISCO CHRONICLE, Jan. 3, 1965, p. IA; Jan. 6, 1965, p. 7; Feb.
12, 1965, p. 3; "Three Lawyers and Secretary Acquitted," (San Francisco) ACLU
NEWS, Mar. 1965, pp. 1, 3; "Homosexual Harassment: San Francisco Police," ACLU,
1963-66 [Report of the ACLU of Northern California], p. 65. (A three-page mimeographed
"Report to Concerned People," prepared by Rev. Lewis E. Durham of the Glide
Urban Center of San Francisco, describes the events. Copies are available upon request
from the Council on Religion and the Homosexual.)

106 The account given here is based upon excited and incomplete accounts found in
the homophile press, about the only written material available: ONE CONFIDENTIAL,
12: 5-10, Apr. 1967; VECTOR, 3:1, 6, Feb. and 3:3, 22, Mar. 1967; PRIDE, 1:1, 6,
Feb. and 2:1, 4, 9, Jul. 1967; PHOENIX, 2:9, 11, Feb. 1967; ARC NEWS, 2:1, 6, Feb.
1967; DRUM, no. 24, p. 6, Mar. and no. 27, pp. 26-28, Oct. 1967; TANGENTS, 2:4-7,
Jan. 1967; THE HOMOSEXUAL CITIZEN (Mattachine Society of Washington, D.C.),
2:3-7, Mar. 1967. As an interesting sidelight, witnesses affirm that one of the officers
who had testified at the trial with hand and arm in a sling and cast, experienced so
miraculous and sudden a recovery that within twenty minutes after the jury had withdrawn,
he was seen opening doors and drinking coffee with his injured arm, no longer
burdened with sling or cast.

107Letter to the editor, 14:84, Dec. 1967.

108Cf. UCLA study, p. 719.

109Pp. 718-27, especially nn. 207,208,209,211, and 213 on pp. 719-21.

110"Take My Name Off Your Mailing List," MATTACHINE REVIEW, 1:33-35,
Sep.-Oct. 1955.

111 "Mail Snooping," NEW REPUBLIC, 153:6-7, Aug. 21, 1965.

112 "The Watch on the Mails," NEWSWEEK, 67: 24, Jun. 13, 1966.

113 Cf. William A. Westley, "Violence and the Police," AMERICAN JOURNAL OF
SOCIOLOGY, 59:34-41, 1953; Thomas R. Brooks, "Why Seven Out of Ten Cops Will
Use the Third Degree," FACT, 2:3-9, Nov.-Dec. 1965.

114 Cf. LaFavc, OP. CIT., p. 469.

115 MATTACHINE REVIEW, 7:6-15, Jun. and 7: 24, Oct. 1965, quoting extensively
from coverage of the story in the San Francisco newspapers. Walter B. Miller ("LowerClass
Culture as a Generating Milieu of Gang Delinquency," JOURNAL OF SOCIAL
ISSUES, 14:5-19, 1958) refers to street-corner youths who have institutionalized "queer
baiting" as a means of proving their own masculinity and toughness.

116MATTACHINE REVIEW, 8:8-11, May 1962, quoting from the ROCKY MOUNTAIN NEWS.

117 ONE, 6:20, Oct. 1958; ONE, 6:18, Apr. 1958; MATTACHINE REVIEW, 7:24,
Dec. 1961; DRUM, 5:22, Feb. 1966; ONE, 11:21, Oct. 1963; ONE, 8:20, Jan. 1960;
VECTOR; 4: 13, Feb. 1968; N.Y. TIMES, Apr. 30, 1966, p. 10; ONE, 12: 18, Apr. 1965;
ONE, 13:16, Feb.1965.

118 N.Y. TIMES, Mar. 3, 1966, pp. 1, 25; May 17, pp. 1, 35, Jul. 12, p. 31, Sep. 28,
p. 39, 1967; CHICAGO TRIBUNE, May 18, 1967, p. 9. Sensationalized but informative
accounts are given in I. M. Kamp, "Fake Cops Who Prey on VIPs (Very Important
Perverts,)" CONFIDENTIAL, 14:20-21, 68, Jul. 1966; Ormen Elemen, "The Truth
About That Homosexual Blackmail Ring," CONFIDENTIAL, 15: 14-15, 48, Oct. 1967;
J.M. Kamp, "That Homosexual Blackmail Ring: How It Was Smashed," UNCENSORED,
16:32-33, 46-48, Oct. 1967. In addition, "Shakedown," the American Broadcasting
Company's premiere episode in its new "N.Y.P.D." television series (Monday, Sep. 5,
196 7) dealt with a ring of blackmailers preying on homosexuals.

119 Ploscowe, SEX AND THE LAW, pp. 195-96.

120 Jess Stearn, THE SIXTH MAN (Garden City: Doubleday, 1961), p. 185. (Paperback:
MacFadden MB 60-106.) Among other examples of extortion are the following: a
Georgia business man who paid $10,000 (TANGENTS, 2: 17, Jan. 1967), an Alabama
man who paid $1,700 (DRUM, no. 23, p. 5, 1967), two Pennsylvania men convicted of
attempted extortion (DR UM, no. 22, p. 24, Mar. 1967), a Milwaukee man who paid
$4,300 (DRUM, 4:5, Oct. 1964), ten fake cops arrested in New York for shaking down
fifteen men for sums as high as $10,000 (MATTACHINE REVIEW, 6:2, Oct. 1960), and
a Tucson man who paid $25,000 (ONE, 8: 9, Jan. 1960). For another type of extortion
uncovered in Philadelphia in Oct. 1961, seen. 104 above.

121 SUBSCRIBERS' NEWSLETTER (Phoenix Society), Oct. 1967; John Hunter,
"Phoenix-Police Hold Meeting," PHOENIX, 2:9-10, 14, Aug. 1967; Drew R. Schafer,
"President's Corner," PHOENIX, 2: 3, Oct. 1967.
The situation seems to have changed from what it was some years ago when Alfred C.
Kinsey, in a speech before the National Probation and Parole Association (quoted by
John Rocburt, SEX-LIFE AND THE CRIMINAL LAW [N.Y.: Belmont Books, 1963],
p. 93) said: "There arc cities in the United States in which there is no greater blackmail
racket than that operated by police against homosexuals."

122 Roger L. Shinn ("Persecution of the Homosexual," CHRISTIANITY AND
CRISIS, 26: 84-87, May 2, 1966) argues for a change of social attitude and goes along
with a change in the law. Howard R. Moody, writing in the same journal ("Homosexuality
and Muckraking," 27:270-71, 1967) takes the same position as Shinn but goes
on to call for a moratorium on the use of homosexuality as a political weapon.
AMERICA ("Law and Homosexuality," 113:71, Jul. 17, 1965) agrees there is a case for
legal change and ("The Wicked and the Weak," 116:802-03, Jun. 3, 1967), affirming
that the consenting adult homosexual is not a criminal, calls for punishment of persons

Page 34:
who blackmail homosexuals. William F. Buckley, Jr. ("Homosexual Laws," SAN
FRANCISCO EXAMINER, Mar. 3, 1960, p. 35) cites blackmail as one of the justifiable
reasons for supporting a change in the law.
In England, where the Labouchicrc Amendment (making gross indecency between
males a crime) has been called "the Blackmailer's Charter," Earl Jowett told Parliament
(HANSARD, Lords, 187:745, May 1954) that when he became Attorney-General
twenty-five years ago "at least 95% of the cases of blackmail which came to my attention
arose out of homosexuality." However, the WOLFENDEN REPORT (par. 110)
found that only 45% of the blackmail cases reported to the police during the period
1950-53 were connected with homosexuality. William Simon and John Gagnon ("Homosexuality:
Formulation of a Sociological Perspective," JOURNAL OF HEALTH AND
SOCIAL BEHAVIOR, 8: 177-85 at p. 181, 1967) report that from their studies at the
Kinsey Institute, it appears that between 6 and 16% of the homosexuals on whom they
have information have been blackmailed. The Mattachine Society of Washington is currently
doing research on homosexual blackmail in the United States.

123 Sec. 32, SEXUAL OFFENSES ACT OF 1956-retained as an offense in the 1967
amendment to that act as recommended by the Wolfenden Report, par. 116, 121, 123,
124, and 355( xii).

124 Sec. 251.3, 6.03, and 6.08.

125 Sec n. 66 above and text pertinent thereto.

126 Sec n. 78 above and text pertinent thereto.

127 Gilbert Cantor, a Philadelphia attorney, suggests that "perhaps solicitation laws
should not apply where policemen are the victims" according to an article in the
Philadelphia Bar Association SHINGLE quoted in DRUM, no. 18-19, p. 31, Sep. 1966.

128 Par. 13-14.

129 Cf. "Commentary," TENTATIVE DRAFT NO. 4, pp. 277-78.See also n. 5 above
and text pertinent thereto.

130 THE ENFORCEMENT OF MORALS (London: Oxford, 1959); "Law,
Democracy, and Morality," U. OF PA. LAW REVIEW, 110:635-49, 1962; and "Mill on
Liberty in Morals," U. OF CHICAGO LAW REVIEW, 32: 215-35, 1965. For a critique of
Devlin's views, sec H. L.A. Hart, LAW, LIBERTY, MORALITY (Stanford: Stanford U.
Press, 1963) and "lmmorality and Treason," LISTENER, 62: 162-63, 1959; Richard
Wollhcim, "Crime, Sin and Mr. Justice Devlin," ENCOUNTER, Nov. 1959, pp. 34-40;
Eugene V. Rostow, "The Enforcement of Morals," CAMBRIDGE LAW JOURNAL,
18: 174-98, 1960; and H. L. A. Hart, "The Use and Abuse of Criminal Law," OXFORD
LAWYER, 4:7-12, 1961.

131 Letter to the Editor, (London) TIMES, May 11, 1965, p. 13. Cf. remarks of Lord
James of Rusholme in HANSARD, 266: 107, May 12, 1965.

132 The "sickness" theory has monopolized public discussion of homosexuality in
the United States. Hence, it is not surprising to find 71 % of the American public (sec n.
3 above) regard homosexuality as an illness. Psychoanalyst Edmund Bergler (HOMOSEXUALITY
DlSEASE OR WAY OF LIFE? [N.Y.: Hill and Wang, 1956]) argues from
the first to the last page that homosexuality is a "curable illness." Irving Beibcr and his
associates (HOMOSEXUALITY: A PSYCHOANALYTIC STUDY OF MALE HOMOSEXUALS
[N.Y.: Basic Books, 1962], p. 18) claim that "all psychoanalytic theories
assume that homosexuality is psycho pathologic." Albert Ellis (HOMOSEXUALITY: ITS
CAUSE AND CURE [N.Y.: Lyle Stuart, Inc., 1965], p. 82) maintains that rather than
simply being neurotic, "most fixed homosexuals arc basically psychotic." and TIME
("The Homosexual in America," 87:40-41, Jan. 21, 1966) sought to foreclose consideration
of any other view with its decree that there must be "no pretense that [homosexuality]
is anything but a pernicious sickness."
But there arc psychiatrists and psychoanalysts, starting with Sigmund Freud, who do
not subscribe to the sickness theory. Freud, in "A Letter to an American Mother"
(AMERICAN JOURNAL OF PSYCHIATRY, 107:787, 1951--rcprinted in Hendrik M.
Ruitenbcck, THE PROBLEM OF HOMOSEXUALITY IN MODERN SOCIETY [N.Y.:
Dutton, 1963], pp. 1-2) states that homosexuality "cannot be classified as an illness."
Recent empirical research undertaken by scientists and social scientists have seriously
undermined the sickness theory. The Kinsey group (Alfred C. Kinsey, Wardell B.
Pomeroy, and Clyde E. Martin, "Homosexual Outlet," in SEXUAL BEHAVIOR IN THE
HUMAN MALE [Philadelphia: Saunders, 1948], pp. 610-66 and passim at 660) concluded:
"The opinion that homosexual activity in itself provides evidence of a psychopathologic
personality is materially challenged by our incidence and frequency data."
From their studies, the Kinsey group found that a "high proportion" of males with
homosexual histories "would not be considered psychopathic personalities on the basis
of anything else in their histories." In their volume on the female (Op. CIT., p. 448),
they said: "The impression that infra-human mammals more or less confine themselves
to heterosexual activities is a distortion of the fact which appears to have originated in a
man-made philosophy." Clcllan Ford and Frank Beach ("Homosexual Behavior" in PATTERNS
OF SEXUAL BEHAVIOR [N.Y.: Harper, 1951], pp. 125-43 at 143) found that
"human homosexuality is the product of the fundamental mammalian heritage." Evelyn
Hooker ("The Adjustment of the Male Overt Homosexual," JOURNAL OF PROJECT!
VE TECHNIQUES, 21: 18-31 at 31, 1957-rcprinted in Ruitenbeek, OP. CIT., pp.
141-61 at 160) concluded, after a meticulous analysis and comparison of matched pairs
of homosexuals and heterosexuals, that homosexuality "may be a deviation in sexual
pattern which is within the normal range, psychologically." The Wolfenden Committee
in its REPORT (par. 25-30 at 26) rejected the sickness theory because "homosexuality
docs not satisfy any of [the three criteria for disease] unless the terms in which they arc
defined arc expanded beyond what could reasonably be regarded as legitimate." An
impressive critique of the sickness theory is found in Simon and Gagnon (OP. CIT., pp.
177-80).

133 Cf. Kenneth Younger, HANSARD, Commons, 526:497; J. L. Fluker, Letter to
the Editor, BRITISH MEDICAL JOURNAL, 2:49, 1962; Norman St. John-Stevas,
HANSARD, Commons, 73 8: 1122, Dec. 19, 1966.

134 WOLFENDEN REPORT, Reservations of James Adair, par. 8(i-ii); Maurice
Labelle, "Laws Needed to Force 'Homos' to Seek Help," CORAL GABLE TIMES, Feb.
4, 1965, p. 6; Dr. Reginald Bennett and Dr. D. D. Broughton, HANSARD, Commons,
526:448, 497; MODEL PENAL CODE, n. 87, p. 278.

135 WOLFENDEN REPORT, par. 13, 14, and 61. This argument was expressed repeatedly
in debates in Parliament, on radio and television shows, and in articles and
letters in the press.

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136 See n. 7 5 above. This was one of the arguments used by the Catholic Advisory
Committee. The matter of blackmail and police tactics received constant attention in the
press and in speeches in Parliament-e.g., Norman St. John-Stevas (HANSARD,
Commons, 738: 1122) said he hoped the Home Secretary "can assure the House that the
detestable practice of policemen acting as AGENTS PROVOCATEURS in public lavatories
and other places has been discontinued." Cf. also the speeches of the Earl of
Huntingdon, the Earl of Arran, and Lady Gaitskill, in HANSARD, Lords, 206;805,
266: 128, and 274:607; and the comments of the ALI (p. 279) on TENTATIVE DRAFT
NO. 4 of its Model Penal Code.

137 Helmut Thielicke, THE ETHICS OF SEX, translated by John W. Doberstein
(N.Y.: Harper and Row, 1964), pp. 269-92 (chap. 4); Norman St. John-Stevas, "Homosexuality,"
in LIFE, DEATH, AND THE LAW (Bloomington: Indiana U. Press, 1961),
pp. 198-231 at 202-04, 214-15, 223; Jones, OP. CIT., pp. 66-77; Bailey, OP. CIT., pp.
1-8; "The Sins of Sodom," TIME, 82:54, Sep. 6, 1963; William G. Cole, SEX AND
LOVE IN THE BIBLE (London: Hodder and Stoughton, 1960), pp. 342-43, 351,
360-61. Robert W. Wood in CHRIST AND THE HOMOSEXUAL (N.Y.: Vantage Press,
1960), p. 174, cites three conditions under which homosexuality should be regarded as moral.

138 The pertinent Bible passages arc: GENESIS xiii: 13; xviii: 20-22, xix:4-8, xix: 13,
xix:24-25; LEVITICUS xviii:22, xx:13; DEUTERONOMY xxiii:17-18; JUDGES
xix:22-24; I KINGS xiv:24, xv:12, xxii:46; II KINGS xxiii:7; ROMANS i:24-32; I
CORINTHIANS vi:9-10; GALATIANS v:19-21; I TIMOTHY i:9-10; II PETER ii:6:
JUDE i:7: REVELATION xxi:8.

139 Sec n. 7 above. Cf. also Adair's reservations to the WOLFENDEN REPORT,
8(iii), and speeches in the House of Lords by Lord Denning, the Bishop of Carlisle, the
Earl of Kilmuir, and Lord Saltoun (HANSARD, Lords, 206: 810, 814-15, 817; 274: 611, 624).

140 Cf. the Earl of Kilmuir, HANSARD, Lords, 274:615.

141 Each of the arguments mentioned here was expressed in debates in Parliament as
well as in articles in the press. Sec especially the speeches of Lords Denning, Kilmuir, and
Winterton and of the Bishops of Carlisle and Rochester in the House of Lords
(HANSARD, 206:793, 796-98, 807-09, 816, 817, and 274:615) and of Sir Cyril Black,
Sir Cyril Osborne, Mrs. Jean Mann, Mr. James Dance, Mr. F. J. Ballinger, Mr. William
Shepherd, Dr. R.R. Broughton, Dr. Reginald Bennett, and Mr. David Renton in the
House of Commons (HANSARD. 526:417, 427, 437, 443, 447, 454, 461,463,465,
482, 502-03, 554; 713: 615; and 724: 817, 834.
Articles and letters in the popular press tended toward extreme statements-e.g., Mr.
John Gordon in the SUNDAY EXPRESS of Sep. 8, 1957. Articles and letters in professional
journals and in the liberal press sometimes expressed basically extreme views, with
varying degrees of camouflage or moderation--e.g., the letter of Dr. C. G. Learoyd in
LANCET (273: 542-43, 1956, plus nine others).
The idea that homosexuality is a threat to the family was the major argument used
by Catholic spokesmen against the law reform in New York-see references to articles in
PLAYBOY and the NEW YORK TIMES in n. 30 above. This was also the decisive
argument in the LIFE editorial (58:4, Jun. 11, 1965) supporting the New York legislature's
refusal to repeal laws prohibiting homosexual acts between consenting adults in
private.

142 Extreme views such as these seem to be more often spoken than written and are
probably to be viewed as defensive reactions. Albert Ellis ("Homosexuality and Creativity,"
JOURNAL OF CLINICAL PSYCHOLOGY, 15:376-79, 1959) attacks homosexual
claims of special creative talents and the New York Academy of Medicine ("Homosexuality:
A Report") in its mimeographed statement of May 11, 1964, denounces
homosexuals for presenting homosexuality as a "desirable, noble, preferable way of life."

143 ALI Commentary to Tentative Draft No. 4 of the Model Penal Code, OP. CIT.,
pp. 276-91; the President's Crime Commission task force report on the courts, OP. CIT.,
p. 104; the UCLA study, pp. 695, n. 122 on p. 705, 712, 719-20, n. 223 on p. 724,
724-25, 738, 760, 793, 795; comments and speeches in Parliament, HANSARD, Commons,
526: 1749 (Sir Robert Boothby), 596: 388 (Mr. Greenwood), 738: 1119, 1122 (Mr.
St. John-Stcvas) and Lords, 206: 805 (the Earls of Huntingdon and Arran), 266: 128
(Lady Gaitskill), 274:607 (the Earl of Arran), etc.; Howard S. Becker, review of BOYS
OF BOISE, in BOOK WEEK, 4:20-21, Nov. 6, 1966. (Many of these arguments are also
presented in countless books and articles in magazines and newspapers, some of which
have been referred to in many of the above footnotes.)

144 For many people, including some law enforcement officials and judges, as well as
the general public, homosexuals have been people who possess no civil rights. The legal
profession and the courts have been, and still arc, reluctant to recognize that a civil rights
issue is involved or to do anything to uphold the civil rights of homosexuals. However,
the recent civil rights movement in this country has focused attention on all minorities
and on the infringement upon and denial of their basic human rights. The demands of
the homophile organizations, the legal challenges individual homosexuals are raising, the
awakening consciences of religious and humanitarian groups, and current research in the
social and biological sciences have specifically called attention to society's treatment of
the homosexual.
A civil rights issue underlies the ALI position and is explicit in the policy statement
of the American Civil Liberties Union released by the national office in New York last
August 31st. Rev. Robert Wood (OP. CIT., pp. 89-90), back in 1960, seems to have been
the first minister to discuss homosexuality in terms of civil rights. He has expressed
himself more fully on the subject in "Homosexuality and the Church," N.Y.
MATTACHINE NEWSLETTER, 9: 11-20, Dec. 1964. The denial of their civil rights was
the basis for the Council on Religion and the Homosexual's indictment, in its BRIEF OF
INJUSTICES, of society's treatment of homosexuals in San Francisco. The Mattachinc
Society of Washington ("Federal Employment of Homosexual American Citizens," a
17-pagc mimeographed statement, dated Nov. 15, 1965, presented by the society to the
U.S. Civil Service Commission) has brought the civil rights issue to the official attention
of the U.S. government. The most forthright treatment in the popular press is to be
found in the recent article by Schott (OP. CIT.) in the N.Y. TIMES entitled "Civil Rights
and the Homosexual: A 4-Million Minority Asks for Equal Rights." The UCLA study (p.
720) has raised the issue of harassment being a possible violation of the equal protection
clause of the Fourteenth Amendment. But to somc-e.g., an editorial in AMERICA
(113: 71, Jul. 17, 1965) and the letter of the Chairman of the Civil Service Commission
to the Washington Mattachinc Society, dated Feb. 25, 1966 (reproduced in
MATTACHINE REVIEW, 12:27-30, Jul. 1966 and THE HOMOSEXUAL CITIZEN, May
1966)-thc idea that homosexuals arc a minority being deprived of their civil rights is
anathema.
In this country many individuals and groups have called for law reform: the
American Law Institute (sec n. 5 above), the UCLA study (pp. 793-94), the Kinsey

Page 36:
group (cf. Paul Gebhard, LADIES' HOME JOURNAL, 82:66-67, May 1965), the
Episcopal Diocese of California (OP. CIT., recommendation no. 1), a Philadelphia panel
of the United Presbyterian Church of the U.S. (DRUM, 6:5, Mar. 1966), the National
Federation of Temple Sisterhoods of Reformed Judaism (N .Y. TIMES, Nov. 19, 1965, p.
15), the U. of Wash. Young Republican Club (PLAYBOY, 13:63, Oct. 1966), the Young
Democrats of the U. of Wis. at Milwaukee (N.Y. TIMES, Apr. 10, 1966, p. 80),
PLAYBOY (14:36, Jan. 1967) in its "Playboy Philosophy" series, the U. of Texas
Student League for Responsible Sexual Freedom (TIME, 87:66, Mar. 11, 1966), the
Stanford Sexual Rights Forum (PLAYBOY, 14:36, Jan. 1967, the Second Annual Model
Congress, a group of high school students from northeastern United States (PLAYBOY,
13:68, Nov. 1966), a group of six Michigan doctors (Stephen C. Mason ET AL..
JOURNAL OF THE MICHIGAN STATE MEDICAL ASSOCIATION, 60:635-38, 1961;
the N.Y. TIMES (editorial, Mar. 18, 1965, p. 32), the SAN FRANCISCO CHRONICLE
(editorial, Jul. 6, 1967, p. 40), the MIAMI BEACH DAILY SUN (editorial, Dec. 27,
1964), the Univ. of Cal. DAILY CALIFORNIAN (editorial, Dec. 8, 1965, p. 8). In
addition, various state and local bar associations, many individual lawyers, some judges,
and numerous writers in legal journals have called for reform. In San Francisco, Mayor
Joseph Alioto (Charles McCabe, "Alioto on Crime," SAN FRANCISCO CHRONICLE,
Dec. 20, 1967, p. 24) has appointed a crime commission which will do for the U.S. what
the Wolfenden Report did for England. In the popular press, except for numerous
references in PLAYBOY and occasional articles in such magazines as the SATURDAY
REVIEW OF LITERATURE (48:23-25, Oct. 9, 1965) and NATION (186:57-58, Jan.
18, 1958 and 187:283, Oct. 25, 1958), there has been very little discussion of homosexual
law reform. National columnist Sidney J. Harris (MIAMI HERALD, Dec. 23,
1964) and James J. Kilpatrick (WASH. STAR, Dec. 24, 1964) have spoken out for
change.Churchmen and religious periodicals arc beginning to discuss homosexuality, but
few of them have yet reached the point where they arc even discussing homosexual law
reform. However, some churchmen, like Bishop James Pike (N.Y. TIMES, Oct. 11, 1966,
p. 35), some church groups, like the Episcopal Dioceses of California (referred to earlier
in this note) and of New York (PLAYBOY, 12: 222, Dec. 1965), and some periodicals,
like CHRISTIAN CENTURY (82:659, May 26, 1965), have called for homosexual law
reform. According to a poll taken by a Sociology professor at San Francisco State
College in October of 1965 (TANGENTS, 1: 10-11, Dec. 1965), 56% of the 353 persons
interviewed-Bay Arca adults of the middle class income group-favored legalizing
private homosexual conduct among adults.
It is not yet possible to know how extensive is the opposition to homosexual law
reform since the subject has not received much of a public hearing. In addition to LIFE
(editorial, 58:4, Jun. 11, 1965), the CATHOLIC LA WYER ("Sexual Offenses: Legal and
Moral Considerations," 9:94-105, 1963) opposes change. In Wisconsin, the Republican
governor reacted to the proposal of the Young Democrats for reform by calling them
"Homocrats" (N.Y. TIMES' Apr. 10, 1966, p. 80). Republican Governor Ronald Reagan
of California, in response to questions by Yale students (Bob Greenwald and Marc Kahn,
Letter to the Editor, NEWSWEEK, 71:6, Jan. 8, 1968), said he opposes making homosexual
acts between consenting adults legal. In a panel at Gonzaga Law School; consisting
of a psychiatrist, a prosecuting attorney, and a journalist (DRUM, no. 18-19, p.
30, Sep. 1966), it was agreed the law should not be changed. In New York, New Mexico,
and Minnesota (sec nn. 30, 31, 32 above), the legislatures have refused to alter present
laws. In a Harris Poll (WASHINGTON POST, Sep. 27, 1965, p. 2; DRUM, 5:5, Dec.
1965), when asked what they considered most harmful to the nation, the people interviewed
placed homosexuals in third place (behind Communists and atheists) by vote of
82% of the males and 58% of the females. But 3 out of 10 Americans thought homosexuals
arc not a matter of serious concern. According to the CBS poll (OP. CIT., p. 30),
54% of those interviewed favor punishment of homosexuals, and presumably oppose law
reform. Since 27% expressed no opinion, it appears that a large number of people have
not yet made up their minds for or against reform.

145 All of the arguments mentioned here were presented in Parliament and have
also appeared in various books and articles in magazines and newspapers. Cf. HANSARD,
Lords, 206:754-55, 765, 812 (speeches by the Archbishop of Canterbury, Lord
Brabazon, and Lord Jessel), 274:606 (speech by the Earl of Arran), 275: 168 (speech by
Lord Snow); Commons, 596: 392 (speech by Mr. Hyde), 625: 1457 (speech by Mr.
Robinson), 724: 849, 867 (speeches by Roy Jenkins and Leo Abse); the WOLFENDEN
REPORT, par. 58-59; Kinsey on the male (OP. CIT., p. 651).

146 These arguments were presented by Home Secretary R. A. Butler to the House of
Commons and by the Earl of Kilmuir to the House of Lords as official spokesmen for
the British government: HANSARD, Commons, 596:367-71 and 625:1490-92 and
Lords, 206:773, 776 and 274:611. Cf. Lords, 206:810, 814-17, 828 (speeches by Lord
Denning, the Bishop of Carlisle, and Lord Strabolgi) and Commons, 526:4 72-78 (speech
by Mr. Rawlinson), 625: 1482 (speech by Mr. Shepherd), and 724: 803 (speech by Sir
Cyril Black). See also, the reservations of James Adair (par. 2, 3, 8 (iii, v, vi) to the
WOLFENDEN REPORT.

147 Percgrine Worsthorne, LONDON SUNDAY TELEGRAPH, Feb. 13, 1966-cited
in AMERICA, 114:316, Mar. 5, 1966.

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HOMOPHILE ORGANIZATIONS IN THE UNITED STATES AND CANADA

ASSOCIATION FOR RESPONSIBLE CITIZENSHIP
P.O. Box 895, Sacramento, California 95814

CENTER FOR DIALOGUE
2175 Northwest 26th Street, Miami, Florida 33142

CINCINNATI HOMOPHILE ORGANIZATION
P.O. Box 1493, Cincinnati, Ohio 45201

CINCINNATI MATTACHINE SOCIETY
P.O. Box 625, Cincinnati, Ohio 45201

CIRCLE OF FRIENDS
P.O. Box 9737, Dallas, Texas 75214

CIRCLE OF LOVING COMPANIONS
129 North Edgeware Road, Los Angeles, California 90026

COUNCIL ON EQUALITY FOR HOMOSEXUALS
P.O. Box 179, New Hyde Park, New York, New York l 1040

COUNCIL ON RELIGION AND THE HOMOSEXUAL (CRH)
330 Ellis Street, San Francisco California 94102 (phone: 771-6300)

DALLAS COUNCIL ON RELIGION AND THE HOMOSEXUAL
3133 Inwood Road, Dallas, Texas 75235

DAUGHTERS OF BILITIS (DOB)
National Headquarters and San Francisco Chapter
1005 Market Street, Room 208, San Francisco, California 94103 (phone: 861-8889)
Los Angeles Chapter - P.O. Box 727, Manhattan Beach, California 90266
New York Chapter - P.O. Box 3629 Grand Central Station, New York, New York 10017
Philadelphia Chapter - P.O. Box 14383 Bustlcton Station, Philadelphia, Pa. 19107

DORIAN SOCIETY OF SEATTLE
P.O. Box 799, Seattle, Washington 98101

FLORIDA LEAGUE FOR GOOD GOVERNMENT
P.O. Box 301, Miami, Florida 33101 (phone: 374-4591)

HOMOSEXUAL LAW RErORM SCOIETY (formerly Janus Society)
34 South 17th Street, Philadelphia, Pennsylvania 19103 (phone: 103-5100)

HOMOSEXUAL VOTERS ADVISORY COUNCIL
P.O. Box 5131 Terminal Annex, Denver, Colorado 80217

INSTITUTE OF SOCIAL ETHICS
119 Ann Street, Hartford, Connecticut 06103

MATTACHINE MIDWEST
P.O. Box 89, Chicago, Illinois 60690

MATTACHINE SOCIETY, INC.
348 Ellis Street, San Francisco, California 94102 (phone: 474-6995)

MATTACHINE SOCIETY OF NEW YORK
1133 Broadway, New York, New York 10010 (phone: 924-7743)

MATTACHINE SOCIETY OF WASHINGTON
P.O. Box 1032, Washington, D.C. 20013 (phone: 737-4957)

NATIONAL LEGAL DEFENSE FUND
330 Ellis Street, San Francisco, California 94102

NATIONAL LEAGUE FOR SOCIAL UNDERSTANDING
9201 Sunset Boulevard, Los Angeles, California 94069
733 West Pacific Highway, Long Beach, California
P.O. Box 14171, San Francisco, California 94114

ONE, INC.
2256 Venice Boulevard, Los Angeles, California 90006 (phone: 735-5252)

ONE OF CHICAGO
Room 1015, 100 North LaSalle Street, Chicago, Illinois 60602

ONE OF DETROIT
P.O. Box 7926 Kercheval Station, Detroit, Michigan 48215

ONE OF NEW YORK
c/o Erickson Foundation, 1045 Park Avenue, New York, New York 10028

PHOENIX SOCIETY FOR INDIVIDUAL FREEDOM
P.O. Box 1191, Kansas City, Missouri 64141

PRIDE (Personal Rights in Defense and Education)
P.O. Box 2067, Hollywood, California 90028

PURSUIT AND SYMPOSIUM
2141 Baxter Street, Los Angeles, California 90039

SAN FRANCISCO HOMOPHILE LEAGUE
P.O. Box 5794, San Francisco, California 94101

SOCIETY ADVOCATING MUTUAL EQUALITY (SAME)
P.O. Box 77 5, Rock Island, Illinois 61202

SOCIETY FOR INDIVIDUAL RIGHTS (SIR)
83 Sixth Street, San Francisco, California 94103 (phone: 781-1570)

SOUTHERN CALIFORNIA COUNCIL ON RELIGION AND THE HOMOPHILE
3330 West Adams Boulevard, Los Angeles, California 90018

STUDENT. HOMOPHILE LEAGUE OF COLUMBIA UNIVERSITY
c/o Office of the University Chaplain
202 Earl Hall, Columbia University, New York, New York 10027

STUDENT HOMOPHILE LEAGUE OF HARTFORD UNIVERSITY
Room 930, Asylum Avenue, Hartford, Connecticut 06105

STUDENT HOMOPHILE LEAGUE OF STANFORD UNIVERSITY
P.O. Box 2354 Stanford, California 94305

TANGENTS
34 73½ Cahuenga Boulevard, Hollywood, California 90028 (phone: 464-1737)

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TAVERN GUILD OF SAN FRANCISCO
83 Sixth Street, San Francisco, California 94103

TAVERN GUILD OF SOUTHERN CALIFORNIA
11012 Ventura Boulevard, Studio City, California 91604

TIDEWATER HOMOPHILE LEAGUE
P.O. Box 623, Norfolk, Virginia 23501

WASHINGTON AREA COUNCIL ON RELIGION AND THE HOMOSEXUAL
P.O. Box 5618, Washington, D.C. 20016

WESTSIDE DISCUSSION GROUP
P.O. Box 592 Cathedral Station, New York, New York 10025

CANADIAN HOMOPHILE ORGANIZATIONS ASSOCIATION FOR SOCIAL KNOWLEDGE (ASK)
P.O. Box 4277, Vancouver 9, British Columbia

INTERNATIONAL SEX EQUALITY ANONYMOUS
P.O. Box 145, Station G, Montreal, Quebec