Last week's House action in striking down the District's sex reform law has been widely attacked as a congressional assault on local home rule. It has also been up as an example of the demagogic power of the Moral Majority.
It is both things. But it is also a frontal assault on common sense.The proposal shot down by a timid House of Representatives represented important legal reforms. It offered important new protections. It was good law.
The emphasis, perhaps naturally, was on homesexual activity. The bill would have decriminalized homesexuals acts between consenting adults. But it would also have decriminalized certain heterosexual acts between consenting adults. It was an effort to get the law out of the bedroom.
Under the present law, for instance, both parties to a sexual act between a married woman and a single man are guilty of adultery and subject to a fine up to $500 and a year in jail. If he is married and she is single, only he is guilty of adultery. Does that make sense?
Under the present law, two single adults who engage in "normal" sex acts are guilty of fornication and subject to six months in jail and fines $300. Does that make sense?
Under the present law, a man and wife who participate, both willingly, in unorthodox sexual behavior are guilty of sodomy and can go to prison for 10 years. Does that make sense?
Under the present law, adult homosexuals who engage in sexual activity, no matter how privately, are guilty of sodomy and subject to 10 years' imprisonment. Does that make sense?
No doubt many Washingtonians (and members of Congress) who are criminals under the law the city tried to reform don't take these archaic statutes seriously because they know they are unlikely to be prosecuted under them. But that hardly suffices as a reason to keep absurd laws on the books.
Some of the laws the reform bill would have corrected are not quite so benign. Under the current law, for instance, a woman must prove fear of "grave bodily harm or death" in order to convict her attacker of rape. The reform measure would have changed the requirement to a fear of "significant" bodily harm and, in addition, would have allowed a rape conviction on the ground that her assailant threatened the safety of others -- her small children, for instance.
Under current law, a man cannot rape his wife. A man who drugs a woman without her knowledge and then proceeds to take advantage of her is not guilty of rape. A man -- a jail inmate, for instance -- cannot, under the present law, rape another man. A guard who corces a prisoner into a homosexual act can be found guilty only of sodomy.
The reform proposal would have degenderized sexual offenses while making them easier to prosecute
Perhaps the most controversial section of the proposal (aside from the effort to redefine statutory rape, withdrawn by the city council last summer) would have stricken the "seduction by a teacher provision of the existing law. That provision prohibits any male teacher over age 21 from having consensual intercourse with any female student between the ages of 16 and 21. (If she is under 16, she is protected under the statutory rape section. If he is not her teacher, he is guilty only of fornication.) The "seduction by a teacher" provision, on the Districts's books since 1901, has never been used, according to legal researchers. The reform measure would have eliminated it.
Even the statutory rape section, which the council abandoned after it generated so much public controversy, made sense. Far from "legalizing" sex between juveniles, as the news media (including this one) characterized it, the proposal simply would have held consensual sexual relations between two juveniles of substantially the same age not to be statutory rape. The point wasn't that it is perfectly all right for a 16-year-old boy to sleep with his 14-year-old girlfriend, only that he shouldn't go to prison as a rapist for doing so.
This same confusion between legalization and decriminalization -- the difference between saying it's okay and saying we won't send you to jail for it -- is what led to the defeat of the council-passed reform bill. But this time the confusion was deliberately sown. The Moral Majority's Jerry Falwell was less concerned to examine the contents of the legislation than to get off a few rounds of cheap shots at the District's perverted act about perverted acts."
And what was the perversion? The proposal said essentially that the law should not attempt to regulate sexual conduct so long as it is private, noncommercial, consensual, nonincestuous and between adults.
It makes sense to me.