George Bernard Shaw had this to say on the subject of immorality: “Whatever is contrary to established manner and customs is immoral. An immoral act or doctrine is not necessarily a sinful one: On the contract, every advance in thought and conduct is by definition immoral until it has converted the majority. For this reason it is of the most enormous importance that immorality should be protected jealously against the attacks of those who have no standard except the standard of custom, and who regard any attack on custom—that is, on morals—as an attack on society, on religion, and on virtue….
"It is immorality, not morality, that needs protection: It is morality, not immorality, that needs restraint; for morality, with all the dead weight of human inertia and superstition to hang on the back of the pioneer, and all the malice of vulgarity and prejudice to threaten him, is responsible for many persecutions and many martyrdoms….”
In the February and April installments of The Playboy Philosophy, we examined the extent to which our own society has attempted to control sexual “immortality” by governmental edict; we discussed in detail the degree to which the United States perpetuates, through its laws, the extreme antisexualism of our Puritan religious heritage.
In addition to the legitimate statutes established to protect the individual from uninvited and unwelcome acts of sexual abuse, aggression and attack, there are laws in all 50 of the separate states prohibiting—under penalty of fine and/or imprisonment—various forms of sexual intimacy between consenting adults, even within the privacy of a person’s own bedroom and when the intimacy may reflect the considered wishes of both partners.
Our democratic government, dedicated to the doctrine of individual freedom and the establishment of a permissive society, nevertheless invades out most private domain and dictates the details of our most personal behavior. The government boldly asserts that our very bodies do not belong to us—that we cannot use them in our own way, and at our own discretion, but only when and how the state permits. In matters of sex, we have already reached Orwell’s world of 1984!
The legislators, judges and minor minions of the law are allowed to lurk in the shadows of our bedrooms, to pull away the covers—revealing our nakedness—and to direct the very kisses and caresses we may and may not use in our lovemaking.
Though we are free citizen in most other respects, in sex we are the slaves of among the most restrictive of any country’s in the world; and they have helped in sustaining what is surely one of the most sexually repressed societies of the 20th century.
Drs. Eberhard and Phyllis Kronhausen wrote, in a concluding chapter of their book Sex Histories of American College Men: “We cannot help but feel that the present state of sexual confusion and its resulting miseries which most of us in the Western world have grown accustomed to enduring are not necessarily the most desirable and certainly not the only possible experience of which humanity is capable.”
Dr. Alfred Kinsey and his associates of the Institute for Sex Research of Indiana University, in a summarizing statement in their comprehensive study Sexual Behavior in the Human Female, observed: “The law specifies the right of the married adult to have regular intercourse, but it makes no provision whatsoever for the approximately 40 percent of the population which is sexually mature but unmarried. Many…unmarried females and males are seriously disturbed because the only sources of sexual outlet available to them are either legally or socially disapproved. Kinsey added, "In nearly every culture in the world except our own, there is at least some acceptance of coital activities among [the] unmarried….”
The late Dr. Harry Stack Sullivan, who has been described by others in the field of social science as one of the foremost clinicians of our time, commented, in The Interpersonal Theory of Psychiatry: “Our culture is the least adequate in preparing one for meeting the eventualities of sexual maturity, which is another way of saying we are the most sex-ridden people on the face of the globe.”
Sex and Marriage
A majority of U.S. sex laws are predicated on the religious dogma that sex is immoral outside of marriage. The marriage license thus becomes a church state sanction to engage in sex. Without it, in most parts of the country, a couple that engages in coitus is committing a crime.
The sex-in-marriage concept is related, in turn, to the religious belief that the purpose of sex is procreation. Since children are best raised, in the framework of our society, as a part of a family unit that includes both a mother and father, there appears to be some rational secular justification for the prohibitions against nonmarital sex. But in order to be something more than the governmental enforcement of a religious morality (which is totally inconsistent with the American doctrine of religious freedom), legislation should properly be directed against the secular aspect of the problem—prohibiting conception of children out of wedlock—rather than indiscriminately outlawing all acts of nonmarital intimacy; and the inconsistency of this argument is compounded by our society’s willingness to dissolve marriages, though state-sanctioned divorce, where children of even tender years are involved.
The religious origin of these statutes is especially obvious when one considers the unusually severe penalties prescribed for acts of nonprocreative sex. If the actual purpose of the laws was to assure offspring the benefits of being raised in a family environment, with both parents present and accounted for, the legislators would have been most concerned with prohibiting those forms of unsanctioned sex that could result in illegitimate births. But Judaeo-Christian moral tradition has, for 2000 years, stressed taboos against nonprocreative sexual behavior, and so it is nonprocreative sex—marital and extramarital, heterosexual and homosexual—that our lawmakers have proclaimed as the most serious crimes, and for which they have prescribed the most extreme punishments.
The religious taboos surrounding noncoital sexual activity may be considered consistent with the moral view that the purpose of sex is procreation. But the person who accepts such a sexual morality for himself should still oppose any attempt on the part of the state to force these religious restrictions upon those in our society who do not wish to accept them. By establishing a specific sex ethic as the law, our government deprives each individual of the free choice that our democracy is supposed to assure. This separation of the interest of church and state is one of the fundamental principles upon which this country was founded; it is one of the most important guarantees of the U.S. Constitution; it is what set American democracy apart from the suppressive church-state rule of the Old World.
The laws that govern our land are supposedly created out of a rational and humane concern for each citizen—to protect his person and property—and to keep secure his inalienable rights to life, liberty and the pursuit of happiness. The statutes that place coercive controls over the personal sex behavior of the adult members of our society are, however, quite clearly no more than the reflection of a particular religious code that is unrelated to our secular interests and welfare.
The state’s intrusion into the private religious-moral conduct of its citizens would be improper even if a relatively few members of society were adversely affected. But U.S. sex laws are so irrationally conceived, and so unrelated to the actual moral conduct of the community, that they make criminals out of almost everyone.
The most authoritative studies of U.S. sex behavior indicate that most American males (over 85 percent) and approximately half of all females (ranging up to 60 percent among women with some college education) have sexual intercourse prior to marriage. And almost all men and women (well over 90 percent) who have been previously married, but who have lost their spouses through death or divorce, continue to engage in sex on a fairly regular basis, with partners to whom they are not wed. But this sex activity is listed as the crime of fornication in 36 of the 50 states, with penalties ranging from a $10 fine in Rhode Island to $1000 and/or one year in prison in Georgia, Missouri and Nevada.
In addition, approximately one out of every two married males, and one out of every four married females, have sexual intercourse with someone other than their respective spouses at some time during their marriages. This behavior is prohibited under adultery statutes in 45 states, with penalties including both fines and imprisonment in most, ranging up to five years at hard labor in Maine, Oklahoma, South Dakota and Vermont.
The Sin of Sex
Even though many of our society’s present attitudes on sex are a direct outgrowth of the period, it is difficult for most of us to conceive the extent of the extreme antisexualism that existed in America at the end of the 19th and beginning of the 20th centuries, when most of our sex statutes were written.
We devoted the previous installment of this editorial series (The Playboy Philosophy, July 1964) to a consideration of this time of suppressive Puritanism in America, which had its parallel in the Victorian Era in England a few years earlier. Our grandparents grew up in a society so ashamed of the human body and its functions, and so generally guilt-ridden about sex, that it was not considered a fit subject even to be discussed in polite company; it was clearly understood that a “nice” girl did not possess any sexual desire; and sexual intercourse, within the bonds of marriage, was looked upon as a necessary evil for the perpetuation of the human race.
The notion that sex is inherently evil has been a part of the Christian tradition for centuries, but it has received greater emphasis in some periods than in others, and we have previously examined the complex codification that the medieval Church brought to all sexual activity—both within and outside of marriage. The Puritans further reinforced this antisexualism after the Reformation and eventually almost all leisure was considered ungodly.
The sin of sex was primarily in its pleasure, and any sexual act that was not for the purpose of procreation, but engaged in for pleasure alone, was necessarily and especially immoral. Thus masturbation, sex play with animals and sexual intimacy between members of the same sex were all forbidden by religious law and called for the most severe penalties, sometimes including death. In the more extreme periods of religious antisexualism, nonprocreative sex was also forbidden between members of the opposite sex, even within marriage, since it frustrated the moral (religious) purpose of sexual congress.
Out of the close alliance of church and state in Europe, many of these ecclesiastical laws eventually found their way into the laws of secular society. And so, even while proclaiming the separation of church and state in America, we accepted into our own legislative doctrine many of the same statutes covering private sexual behavior that were, by then, a part of English common law—even though they were clearly no more than a reinforcement of church dogma by the state.
Crime Without Coitus
The taboos—both social and legal—surrounding nonprocreative sex are still extreme in modern American society, but the activity is, nevertheless, quite common. Although masturbation was thought to cause all manner of mental, emotional and physical ills in our grandparents’ day, almost all males (over 90 percent) and a majority of females (over 60 percent) admit to having some masturbatory experience; and precoital petting commonly includes some mutual masturbation, especially among males and females of higher education.
Mouth-genital activity (fellatio and cunnilingus) is also a common part of the heterosexual foreplay to coitus, and sometimes serves as a substitute for sexual intercourse, especially among unmarried, upper-educated adolescents and adults, with whom the taboos surrounding premarital intercourse seem most successful. Dr. Alfred Kinsey states, in Sexual Behavior in the Human Male: “Mouth-genital contacts of some sort, with the subject as either the active or passive member in the relationship, occur at some tine in the histories of nearly 60 percent of all males.”
Kinsey and his associates found, in their studies of U.S. sex behavior, that approximately 18 percent of all American men have premarital, heterosexual oral-genital relations of an “active” nature (cunnilingus, performed by the male upon the female) and 38 percent have “passive” oral-genital relations prior to marriage (fellatio, performed by the female upon the male); approximately 15 percent of all U.S. women have some mouth-genital experience, either “active” or “passive,” prior to marriage; and between 40 to 50 percent of all husbands and wives engage in such activity.
Although Kinsey neglected to tabulate the statistics on anal intercourse derived from his studies, and so specific figures on this behavior do not appear in either Sexual Behavior of the Human Male or Female, Dr. Paul Gebhard, who succeeded Dr. Kinsey as director of the Institute for Sex Research on the latter’s death, indicates that this form of noncoital sex is far more common than was previously assumed, and eventually involves between 10 and 20 percent of the total population.
Crimes With Man and Beast
Homosexuality is considered a perversion by most of contemporary American society and the recognized homosexual—especially the male—is often subjected to considerable abuse. It may come as a surprise to many, therefore, to learn that a relatively high percentage of all men and women have had some homosexual experience.
It is recognized by experts in the field of sexual behavior that most males and females can, under certain circumstances, be erotically attracted to members of the same sex. Whenever either men or women are placed in a situation in which their contacts are largely limited to their own sex for any appreciable length of time—as in prison, boarding school or certain assignments in the armed service—there is a marked increase in homosexual activity.
While only a small percentage is exclusively homosexual for a lifetime (4 percent of all U.S. males), Kinsey’s researchers found that a minimum of 37 percent of the male population has some overt homosexual experience to the point of orgasm after puberty and prior to the age of 45; and 20 percent of the total female population has engaged in some homosexual activity prior to that age.
Sexual contacts between humans and other forms of animal life are even more taboo in our society than homosexual activity and, until recently, this was assumed to be a relatively rare form of sexual release for man; but Kinsey found that in rural areas, where a variety of animals was readily available, animal contacts were quite common in the early sexual experimentation of young males. Kinsey states, “Something between 40 and 50 percent of all farm boys…have some sort of animal contact, either with or without orgasm, in their preadolescent, adolescent, and/or later histories.” While only 8 percent of the total male population has postadolescent experience with animals resulting in orgasm, the lowness of this figure would appear to reflect lack of opportunity more than anything else, since approximately 17 percent of the males from rural and farm communities have such contacts, and in some Western parts of the United States, the incidence rises to as high as 65 percent.
Crimes Abominable & Detestable
All of the aforementioned nonprocreative sexual behavior has been lumped together by our state legislators into omnibus statutes against “sodomy.” In the literal sense, sodomy is anal intercourse involving two males—the word is derived from the Biblical story of Sodom, which the Lord destroyed with fire and brimstone, because He was displeased with the prevalence of the practice there—but its meaning is now sometimes extended to include sexual acts with animals (bestiality), as well.
It is difficult to arrive at any adequate legal definition, however, for the sodomy statutes of the U.S. encompass, without distinction, almost every imaginable form of noncoital sex—homosexual and heterosexual, marital and nonmarital—including fellatio, cunnilingus, pederasty, buggery, bestiality and, in two states (Indiana and Wyoming), even mutual masturbation.
Although the common law of England—from which most American law is derived—considered sodomy as either the act of pederasty or bestiality performed by or upon a man, a majority of our states’ statues have given it a far broader application—covering oral as well as anal intercourse, and prohibiting such activity not only between members of the same sex, but also between members of the opposite sex. Including husband and wife.
Minnesota’s statute reads, in part: “Any person who shall carnally know any animal, bird, man or woman, by anus or mouth, or voluntarily submits to such knowledge…is guilty of sodomy….”
Iowa goes further with: “Whosoever shall have carnal copulation in any opening of the body [emphasis ours] except sexual parts with another human being, or shall have carnal copulation with a beast shall be deemed guilty of sodomy….”
And Arizona goes further still: “Any person who shall willfully commit any lewd or lascivious act upon or with the body of [or] any part or member thereof, of any male or female person with intent of arousing, appealing to, or gratifying the lust, or passion, or sexual desires of either person in any unnatural manner shall be guilty of a felony….”
The Indiana law reads: “Whoever commits the abominable and detestable crime against nature with mankind or beast; or whoever entices, allures, instigates or aids any person under the age of twenty-one (21) years to commit to masturbation or self-pollution shall be deemed guilty of sodomy….”
Forty-nine of the 50 states have sodomy statutes; they are among the most irrationally conceived and emotionally written of any to be found in contemporary jurisprudence. The phrase “abominable and detestable crime against nature” appears with great frequency in these laws and often serves as an alternate name, and sometimes as the only description, for the offense.
Rhode Island actually lists its statute under that title; the entire Rhode Island law reads as follows: “11-10-1. Abominable and detestable crime against nature.—Every person who shall be convicted of the abominable and detestable crime against nature, either with mankind or with any beast, shall be imprisoned not exceeding twenty (20) years nor less than seven (7) years.” In Utah, Arizona and Nevada, the offense is referred to as the “infamous crime against nature.”
These phrases further substantiate the religious superstition from which such laws were derived. The very concept of a “crime against nature” is religious; it is another way of describing what is considered to be, within a particular religious framework, an act that goes against the will of God.
Without any evaluation of the moral issues involved, it must be pointed out that the modern social scientist, armed with insights of psychiatry and evidence of the actual incidence of noncoital sexual activity in human and infrahuman species, recognized that such behavior cannot be considered abnormal, or “unnatural,” in any scientific sense.
But these laws evolved from Puritan antisexualism, not scientific insight. And the subject has traditionally been considered so distasteful by those who have dealt with it, on both the legislative and judicial levels, that the statutes and their court application form a record of injustice that is far more “abominable and detestable” than the personal behavior they are supposed to suppress.
Crimes Not Fit to be Named
The noted 18th century justice Sir William Blackstone, author of the famous Commentaries, which are still fundamental in any study of English or U.S. law, reflected his own Puritan environment and the irrational emotionalism long associated with the subject, when he wrote: “I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named….”
The “delicacy” to which Blackstone refers is quite without precedent in English and U.S. law. It means precisely what it implies—that these acts have been deemed so improper, are viewed with suck loathing and disgust, that it is considered unnecessary to describe them in any detail in either the statutes or the actual court indictments. The defendants in such cases are traditionally expected to prove themselves innocent of a charge, the particulars of which are unspecified, because they are “not fit to be named.”
Former Judge Morris Ploscowe of the New York Magistrates’ Court, now Adjunct Associate Professor of Law at New York University, states in his book, Sex and the Law: “Ever since Lord Coke’s time, the attitude of judges has been that sodomy is ‘a detestable and abominable sin among Christians not to be named.’ The result of this attitude is a sharp departure from the usual rules of criminal pleading. It is one of the basic canons of criminal procedure that a defendant is entitled to know the particulars of the crime charged against him, so that he can adequately prepare his defense. If the indictment is not sufficiently specific, the defendant has a right to demand a bill of particulars. But when a man is charged with sodomy or a crime against nature, an indictment in the language of the statute is enough. It is enough that the indictment alleges that at a particular time and place the defendant committed a 'crime against nature’ with a specific person. The defendant need not be informed of the particular sexual perversion which is charged against him. As the Court put it in the case of Honselman vs. People:
”'It was never the practice to describe the particular manner or the details for the commission of the crime, but the offense was treated in the indictment as the abominable crime not fit to be named among Christians. The existence of such an offense is a disgrace to human nature. The legislature has not seen fit to define it further than by the general term, and the records of the courts need not be defiled with the details of different acts which may go to constitute it. A statement of the offense in the language of the statute is all that is required.’“
Punishment to Fit the Crime
Because U.S. sodomy statutes are so all-inclusive in their suppression of noncoital sex, the penalties prescribed are identical for the partners in a homosexual liaison, the farm boy who gets too friendly with his pet heifer, or the husband and wife whose marital intimacies include something more than simple sexual intercourse. All are equally guilty under the law.
And consistent with the Church’s historically harsh view of sex for pleasure rather than reproduction (the fire and brimstone that God used on the Sodomites in the Old Testament was but a foretaste of the centuries of carnage the religious offered in pious sacrifice to antisex), the secular statutes against noncoital sex are especially severe. The English common law punishment for sodomy was death; the penalties that still exist here in the United States are, in some instances, exceeded only by those for murder, kidnapping and rape.
In 34 states and the District of Columbia, the maximum sentence specified for any act that may be considered a "crime against nature” is imprisonment for from 10 to 20 years. In Connecticut, the maximum possible sentence is 30 years; in North Carolina, the minimum sentence is 5 years, the maximum is 60; Arizona, Idaho, Montana and Tennessee statutes also have minimum sentences of 5 years; and in Rhode Island, the minimum is 7. In Wyoming and Indiana, where sodomy includes inducing or aiding any person under the age of 21 to masturbate, the maximum sentence prescribed are 10 and 14 years, respectively. In Georgia, a first conviction calls for imprisonment at hard labor for from 1 to 10 years; a second conviction increases the sentence to from 10 to 30. In California, Idaho, Missouri, Montana and South Carolina, the maximum possible penalty is left to the discretion of the courts; in Nevada, the law specifies imprisonment for life.
The combined effect of these premarital, extramarital and assorted noncoital sex statutes is to turn us into a nation of lawbreakers. The private sex behavior prohibited by these laws is, all public pronouncements to the contrary, practiced by a majority of our adult population. It has been estimated that if all of the sex statutes of the United States were strictly and successfully enforced, over 85 percent of our adult population would be put into prison.
Unenforced and Unenforceable
The majority of our sex laws are not efficiently or effectively enforced, of course, but this only adds another dimension to the problem. Ploscowe states, “Nowhere are the disparities between law in action and law on the books so great as in the control of sex crime.”
Kinsey comments, “The current sex laws are unenforced and are unenforceable because they are too completely out of accord with the realities of human behavior, and because they attempt too much in the way of social control. Such a high proportion of the females and males in our population is involved in sexual activities which are prohibited by the law of most of the states of the Union, that it is inconceivable that the present laws could be administered in any fashion that even remotely approached systematic and complete enforcement. The consequently capricious enforcement which these laws now receive offers an opportunity for maladministration, for police and political graft, and for blackmail which is regularly imposed both by underworld groups and by the police themselves.”
The very existence of laws such as these is an invitation to malfeasance and malicious mischief; while the random and often irrational enforcement of the statutes causes incalculable havoc, hurt and heartache—making a mockery of the majesty of law—applying justice in an unjust, inhumane, capricious and cruel manner.
Prosecution of Nonmarital Sex
There are only two legally permissible sexual outlets for the unmarried members of society: nocturnal emissions and solitary masturbation. Our Anglo-American legal codes restrict the sexual activity of those unwed by characterizing all nonmarital coitus as fornication, adultery, lewd cohabitation, seduction, rape, statutory rape, prostitution, associating with a prostitute, incest, delinquency, contributing to delinquency, disorderly conduct, public indecency, or assault and battery—all of which are offenses, with assorted penalties prescribed.
Several of these statutes are designed to deal with special circumstances associated with the sexual act—the use of force or coercion, the involvement of a minor, the payment of money for coitus, or intercourse between close kin. There is justification for some of these laws, though not necessarily the form that they sometimes take, or the manner in which they are sometimes administered. We will discuss these variations in sex legislation a little later.
Those laws which cover uncomplicated nonmarital coitus are only occasionally enforced: Although proof of adultery is grounds for divorce in every state, for example, and several thousand divorces are granted for adultery annually, the same evidence is rarely used for subsequent criminal prosecution: though it obviously could be, in any of the 45 states in which adultery is a crime.
A small number of unfortunate men and women do continue to get themselves arrested, convicted, fined and/or imprisoned, on charges of fornication and adultery each year, however. In most states these laws are what Ploscowe calls “dead letters.” The annual crime reports for a majority of U.S. cities rarely include any reference to the apprehension and prosecution of adults for simple illicit intercourse; but a select minority of our municipalities continue to bag a random few for their bedroom behavior. The numbers recorded are consequently slight, obviously representing the minutest imaginable percentage of like behavior occurring in each of these jurisdictions; but slight is hardly the word to describe the hurt done to the luckless citizens that these numbers represent.
The perusal of a half-dozen recent reports, from as many cities, reveals that Philadelphia, “City of Brotherly Love,” can also become something of a Big Brother, à la Orwell’s 1984, spying on love of a more illicit sort that might otherwise remain hidden in the shadows: There, among the figures for murder, aggravated assault, burglary, armed robbery and rape, are three arrests for criminal adultery. The Boston report for the same year is better: Two males and 17 females arrested and committed to the city prison for adultery; ten cases of fornication dealt with in a similar manner. The municipal records of 1960 for Baltimore include two cases of adultery (both dismissed); for Dallas, ten cases of adultery; for Seattle, 31 cases of adultery and fornication.
The citizens that these statistics represent were liable for punishments ranging from a $10 fine (the penalty for adultery in Maryland) to a $500 fine or three years in prison (the penalty for adultery in Massachusetts).
In New York during the same period (the city’s fiscal year of July 1959 through June 1960), approximately 1700 divorces were granted for adultery (the only ground for divorce in New York State): but an analysis of the Annual Report of the Police Department for those 12 months fails to reveal a single arrest for the crime, which is punishable with a fine up to $250 or six months in jail or both. Quite obviously, as Judge Ploscowe observes, “The left hand of the law does not know what the right hand is doing.” Quite obviously, too, those 31 residents of Seattle, who were arrested for adultery and fornication would have had a happier, less harried year if they’d been residents of New York instead.
Kinsey offers this interesting comment on the capricious manner in which our state fornication and adultery statutes are administered: “Extramarital coitus is rarely prosecuted because its existence rarely becomes known to any third party. Even when it does become known, the matter is rarely taken to criminal court. Most of the cases which we have seen in penal institutions were prosecuted because of some social disturbance that had grown out of the extramarital activity, as when a wife had complained, or when the family had been neglected or deserted as a result of the extramarital relationships…. Not infrequently the prosecutions represented attempts on the part of neighbors or relatives to work off grudges that had developed over other matters. In this, as in many other areas, the law is most often utilized by persons who have ulterior motives for causing difficulties for the nonconformant individuals. Not infrequently the prosecutions represent attempts by sheriffs, prosecutors or other law-enforcement officers to work off personal or political grudges by taking advantage of extramarital relationships which they may have known about and ignored for some time before they became interested in prosecuting.”
Kinsey then notes that in Boston, one of the few large cities in which there is an active use of the adultery law, the statute appears to serve chiefly as a means of placing heavier penalties on prostitution than the directly applicable statute provides. This explains the disproportionate female-male ratio to be found in the statistics cited for that city.
Prosecution for Cohabitation
Fifteen states have laws against what is termed “lewd and lascivious” cohabitation, which, upon investigation, turns out to be nothing more than an unmarried couple living together as man and wife, or carrying on an extended affair in what is deemed to be an “open and notorious” manner. One might logically assume that society would prefer this more permanent sort of liaison to the promiscuous, hit-and-run variety, but it must be obvious by now that logic has nothing to do with our sex legislation and, in general, the penalties for cohabitation are greater than for random fornication. In fact, Arkansas, California, Louisiana and New Mexico, which do not have laws against either fornication or adultery, do have statutes prohibiting cohabitation.
And in Arkansas, the more constant a fellow is to the girl of his dreams, the rougher things get: His first conviction for living with the lady brings only a small fine ($20 to $100); the second conviction for cohabitation boosts the fine to a minimum of $100 and a maximum that is left to the discretion of the kindly old reprobate on the bench, who—should judicial ire be provoked by the defendant, for taking a local pussycat out of circulation with such an illicit bed-and-board arrangement—can elect to slap the fellow in the pokey for 12 months; the third time around, the constancy of the relationship is rewarded with a prison sentence of from one to three years.
On the other hand, if the same brash lad turned into a promiscuous version of the Arkansas Traveier, never tarrying in any one domicile for more than a night or two, he could visit every maid and madam in the community—including the judge’s wife and daughter—with nary a fear of legal reprisal.
This tendency to deal more harshly with long-lasting relationships than with short-lived ones is also reflected in a number of the adultery and fornication statutes, which are worded in such a way as to make them actually laws against cohabitation. A number of lower court convictions for fornication and adultery have also been reversed by the higher courts, because no more than a single assignation, or two, was involved.
The prejudice against more permanent nonmarital affairs is justified by the proposition that they have a greater tendency to “debase and lower the standard of public morals,” because they are less furtive, less secretive, are more open and available to public scrutiny. But we fail to see the logic in a legal position that promotes the promiscuous and prefers the hidden over honestly open; nor are we able to comprehend how the same act can be legal when it occurs more frequently.
The peculiar wrinkle in our sex legislation was conceived, we suspect, so that citizens could not easily enjoy the pleasures of hearth and home without the official church-state seal of approval. Such control over our private lives provides the Establishment with power; such power begets more power, which is used further to restrain us. It is a power that should rightly rest with the individual, we think, rather than with our government.
Two Cases of Adultery
A single act of nonmarital sex is sometimes quite sufficient, of course. And an act of adultery may be prosecuted, even when perpetuated with the approval of the spouse, an Oregon gentleman named Ayles learned the hard way. In the case of State vs. Ayles, a man was arrested for adultery for having had intercourse with a married woman. (As we have noted previously, in The Playboy Philosophy, February 1964, adultery is variously defined in the different states, sometimes including only the married members in extramarital affairs, and sometimes including the unmarried members as well.) During the trial Ayles offered to prove that the woman’s husband had induced the adulterous relationship by leaving the couple alone, after making various remarks and innuendoes indicating to the defendant that whatever occurred would be all right with him. The Court excluded this evidence. The conviction was upheld on the ground that even if the husband had induced the relationship, the defendant was still guilty.
In an even more unusual case, commented upon in the February installment, intercourse between a husband and wife was construed to be adultery by the Court (State vs. Grengs, Wisconsin, 1948). The court record indicates that a man and woman were married in Wisconsin and subsequently separated, the wife moving to Minnesota. The husband then obtained a divorce in Wisconsin; under Wisconsin law, the divorce was not final for one year. During the year, the woman remarried in Iowa. Under Iowa law the second marriage was valid, despite the Wisconsin one-year waiting period. The newly married couple then decided to return to Wisconsin to live—and that was a mistake. They were arrested, tried and convicted of adultery, because under Wisconsin law the wife was still married to her first husband.
Sex and Uncle Sam
In addition to the state statutes, the federal government also has a law, commonly referred to as the Mann Act (after Representative James Robert Mann, who drafted it), which has been used prosecute acts of nonmarital sex. Though officially titled the White-slave-traffic Act, and passed by the U.S. Congress in 1910 to curb interstate prostitution, the law reads, “Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for…any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose…shall be deemed guilty of a felony.” The federal courts have interpreted “any other immoral purpose” to include simple fornication—nonmarital intercourse between consenting adults—and the maximum penalty prescribed is a fine of $5000, or five years in prison, or both; if the girl involved is under the age of 18, the potential penalty is a $10,000 fine and/or imprisonment for up to ten years.
A young man who takes his girlfriend with him on a vacation is subject to prosecution under the Mann Act, if they travel from one state to another—even if neither of the states has laws against fornication. The young man may be found guilty under this law, even if he and his girl are not actually intimate; intention is sufficient: If he merely considered the possibility of their being intimate when he was making preparations for the trip, and she later refused him, he is guilty.
The first unfortunate fellow to be convicted in this manner was a Californian named Caminetti who took a female friend to Reno with him for the weekend. Writer Alan Holmes commented on this case in an article on the subject in Playboy (The Mann Act, June 1959), concluding: “Clearly, it had not been the intention of Congress to apply the Mann Act to this kind of peccadillo—but in order to revise the law to conform to its original purpose, some brave congressman would have had to propose an amendment which would surely result in his being tagged throughout the land as an advocate of sin. A congressman that brave was not to be found at the time, and none has appeared since.
"Appellate courts have consistently ruled, therefore, that premarital intercourse comes under the heading of 'any other immoral purpose….’” Mr. Caminetti’s weekend in Reno cost him a $1500 fine and 18 months in prison.
Prosecution of Noncoital Sex
Just as the penalties for noncoital sex acts are more severe, so are they also more frequently applied. This is because, as Kinsey states, “There has been an insistence under our English-American codes that the simpler and more direct a sexual relation, the more completely it is confined to genital coitus, and the less the variation which enters into the performance of the act, the more acceptable the relationship is morally.”
As previously stated, the sodomy laws of America are actually a catchall for every manner of nonprocreative sexual behavior. They are primarily used to prosecute offenses of a homosexual nature, but the statutes are written so as to apply to heterosexual noncoital acts as well. And none of the sodomy statutes of the United States make any distinction regarding the marital status of the partners.
Kinsey states, “It is not often realized that the [sexual] techniques which are employed in marriage may be subject to the same legal restrictions which are placed on those techniques when they occur between persons who are not wedded spouses…. In most states the sodomy acts are so worded that they would apply to mouth-genital contacts and to anal [intercourse] between married spouses, as well as to both heterosexual and homosexual relations outside of marriage…. While the laws are more commonly enforced in regard to such relations outside of marriage, there are instances of spouses whose oral activities became known to their children and through them to the neighborhood, and ultimately led to prosecution and penal sentences for both husband and wife.”
There are court decisions not involving a husband and wife that have confirmed the applicability of these sodomy statutes to married couples also. In the case of State vs. Nelson in Minnesota, for example, the Court stated: “It is not the normal sexual act that this statute aims at. Rather and only it is the unnatural and prohibited way of satisfying sexual desires that the statute is designed to punish. Thus husband and wife, if violating this statute, could undoubtedly be punished, whereas the normal sexual act would not only be legal but perhaps entirely proper.”
Circumstantial evidence may be sufficient to obtain a conviction and the mere attempt to commit the act may be all that is required. The Alabama law states: “An offense may be proven under this section as in other cases, by circumstantial evidence, when positive proof is wanting” and “…A conviction may be had for attempt to commit an offense denounced by this section.”
It is actually possible for a husband to be arrested and convicted of sodomy for simply suggesting to his wife that their marital sex might be more satisfying if it included something more than simple intercourse. Kinsey reports, “One case even goes so far as to uphold the conviction of a man for soliciting his wife to commit sodomy.”
Kinsey’s records include “cases of persons who were convicted because one of the spouses objected, or because some other person became aware that oral or anal play had been included in the marital activities.” He goes on to say, “In those states where the definition of cruelty as one of the grounds for divorce include 'personal indignities’ or 'mental cruelty,’ divorce cases involving either the husband’s or wife’s desires or demands for the use of oral techniques are not infrequent.” Ploscowe reports that in 1951 an appellate court in Pennsylvania had two such divorce proceedings in a single day (Glick vs. Glick, in which the wife asked for the relations; and Kranch vs. Kranch, in which the request came from the husband).
New scientific insights regarding the sexual nature of man have considerably altered society’s views on this subject in recent years. What was once considered “unnatural” is now recognized as perfectly normal and, in many instances, desirable, since such noncoital techniques can add appreciably to the pleasure and satisfaction gained by both partners in the sexual act.
Most modern marriage manuals and experts in the field of sex education endorse a natural freedom in the love play that accompanies coitus; they indicate that the intimate preliminaries that precede the actual act of intercourse can be extremely important to the success of the coitus itself; they conclude that no intimacy that brings pleasure to both partners in the relationship should be considered improper or taboo.
This quote from Sexual Harmony in Marriage by Dr. Oliver M. Butterfield is typical: “Any position is proper which permits full satisfaction for both parties. All parts of the body are proper for use if they can be made to contribute to the general goal without giving offense to the taste or feelings of either partner, and if neither partner is harmed thereby.”
D. Stanley Jones states, in a volume published by Medical Press: “Many of the variants of conventional sexual technique which were formerly regarded as perversions are now acknowledged as playing a legitimate part in the fore-pleasure that leads up to happily consummated intercourse…. It is now recognized that any form of body manipulation which can be used as an adjunct to mutual sex orgasm may in no way be regarded as a perverse or unnatural addiction.”
Dr. Albert Ellis writes, in an article published in Marriage and Family Living: “The only true sexual 'perversion’ is a fetish or rigidity which convinces an individual that he or she can only have satisfactory sex relations in one method or position. The great majority of sexual 'perverts’ in this country are not sadists, homosexuals, exhibitionists or similar deviates, but 'normal’ married individuals who only enjoy one method of coitus…because they are afraid or ashamed to try the dozens of other sexual variations that are easily available to them.”
The attitude of most organized religion has also changed in this regard. A majority of the contemporary Protestant and Jewish clergy who offer guidance in this area expound the same enlightened viewpoint on the naturalness of noncoital sex as do the secular experts. The Catholic Church holds a similar view, restricted only by the dictum that the natural end of the sexual association must always remain coitus, and thus procreation.
But in offering such sound advice, the marriage counselors, educators, scientists and clergy are actually inviting their fellow citizens to commit criminal acts in their bedrooms—acts that are prohibited by law almost everywhere in America, with lengthy prison sentences prescribed for the guilty.
Almost all the U.S. sex laws are woefully unrelated to the realities of contemporary society, but the disparity is nowhere more evident than in legislation designed to suppress “unnatural” sex behavior.
Until quite recently, every state in the Union had a sodomy law and/or similar legislation on “perversion” and “crimes against nature.” In 1961, in a moment of rare sexual enlightenment for a U.S. legislative body, the lawmakers of Illinois repealed their statute on sodomy, which was typical of those described in this editorial, including the usual prohibitions against unnatural acts with man or beast. As of this writing, none of the legislatures of the other 49 states has seen fit to follow in Illinois’ lead. Nor is the current Illinois position as rational or permissive as this particular legislative action suggests. For the lawmakers repealed the state’s sodomy statute, but left standing those for fornication and adultery. This puts Illinois in the interesting position of being more tolerant of homosexual than heterosexual sex; of permitting “unnatural” acts between partners of the same or opposite sex, while prohibiting acts of “natural” intercourse. (See letter of comment on this matter from Charles H. Bowman, Professor of Law at the University of Illinois, who was Chairman of the Drafting Sub-committee of the Joint Committee to Revise the Illinois Criminal Code, in The Playboy Forum in this issue.)
Ploscowe writes, “While it would appear that there is a definite softening of the legislative attitude toward the crime of sodomy in certain jurisdictions, there is no uniform profile of improvement or progress in this area. Here and there, retrogression in the form of increasingly severe penalties may be observed.
"Formerly, sodomy in Arkansas was punishable by a minimum prison term of five years. But in 1955, owing to the fact that juries for a long time had evidently displayed reluctance to condemn defendants to five years’ imprisonment for the crime, the Arkansas legislature reduced the minimum penalty to one year. [In five states the minimum sentence is still five years and in one it is seven.]
"In a counter direction, just a few years earlier, Arizona, which previously had on the books a one-to-five-year range of prison penalties for sodomy, in 1951 increased the limits to five to twenty years.
"The severity of the penalties against sodomy and crimes against nature in so many jurisdictions indicates that the law has lost little of the abhorrence for aberrant sex behavior expressed by the early text writers [i.e., Blackstone, quoted earlier]. It is even more clearly revealed in the laws of states like Wyoming and Indiana. These states punish a completed act of sexual intercourse between a man and a girl under 21 as fornication, with imprisonment of three months and six months respectively. The masturbation of such a girl in those states would be sodomy, punishable by maximum imprisonments of five years and fourteen years respectively.”
Prosecution of Homosexuality
All of the methods of sexual gratification that are commonly employed in a homosexual relationship are prohibited under our sodomy laws; and the statutes are more frequently enforced against homosexual than heterosexual partners. What is less commonly recognized is that almost all of the prosecutions for homosexual behavior are against male, although acts of female homosexuality (lesbianism) are quite common.
Kinsey states, “Our search through the several hundred sodomy opinions which have been
reported in this country between 1696 and 1952 have failed to reveal a single case sustaining the
conviction of a female for homosexual activity. Our examination of the records of all the females admitted
to the Indiana Women’s Prison between 1874 and 1944 indicates that only one was sentenced for homosexual activity, and that was for activity which had taken place within the walls of another institution.
Even in such a large city as New York, the records covering the years 1930 to 1939 show only one case of a woman convicted of homosexual sodomy, while there were over 700 convictions of males on homosexual charges, and several thousand cases of males prosecuted for public indecency, or for solicitation, or for other activity which was homosexual. In our own more recent study of the enforcement of sex law in New York City we find three arrests of females on homosexual charges in the last ten years, but all of those cases were dismissed, although there were some tens of thousands of arrests and convictions of males charged with homosexual activity in that same period time.”
Several of the state statutes on sodomy do not apply to female homosexuality, including those of Connecticut, Georgia, Kentucky, South Carolina and Wisconsin. A footnote to the Georgia statute states: “Crime of sodomy as defined in this section cannot be accomplished between two women; hence person convicted in indictment charging her with sodomy, both participants in act being alleged to be females, will be discharged on habeas corpus on ground that she is being illegally restrained of her liberty, in that indictment on which she was convicted was null and void.”
Heterosexual cunnilingus (mouth-genital act performed upon the female) has been held not to be “the crime against nature” by the courts in Illinois (prior to repeal of Illinois’ sodomy statute), Mississippi and Ohio, and the decisions would presumably apply to homosexual cunnilingus as well. There is also some doubt as to whether the laws in Arkansas, Colorado, Iowa and Nebraska would apply to female homosexuality. In those states in which sodomy includes fellatio, but not cunnilingus, a heterosexual act of oral-genital intercourse performed by a female upon another female is not.
The legal leniency shown female homosexual behavior is consistent with the traditional religious attitude on the subject. The ancient Hittite code condemned only male homosexuality, and that only under certain circumstances, and made no mention of homosexual activity among females. Similarly, the references to homosexual activity in the Bible and in the Talmud apply primarily to the male. The condemnations were severe and usually called for the death of the transgressing male, but they rarely mentioned female activity, and when they did, no severe penalties were proposed. In medieval European history there are abundant records of death imposed upon men for sexual activities with other men, but very few recorded cases of similar action against women.
This inconsistency in attitude toward male and female homosexuality is probably a result of the differing social and legal status of the sexes in the past. Being socially less important than males, the private activities of females were more or less ignored, except where another man was involved. (We have previously commented upon the manner in which our modern prohibitions against adultery grew out of the early concept of women being the property of men; thus to use another man’s wife sexually was a crime against property; the moral significance was not added until later.)
The prosecution of male homosexuality in the United States is not declining; if anything, it is on the increase. Ploscowe notes, for example, that during the ten years from 1930 to 1940, the New York City Police Department reported a total of 1396 arrests for sodomy, or an average of only 139.6 per year; during the eight-year period from 1950 through 1957 (the last year in which sodomy statistics were listed separately), a total of 2637 arrests were listed, an average of 329.6 per year. The great majority of these arrests were for homosexual acts, and these figures do not include the many thousands of additional arrests for homosexual behavior on other than sodomy charges.
In an excellent article titled “Homosexuality in America,” in their issue of June 26, 1964, Life comments on the current get-tough attitude of officials in California and Florida: “As part of its antihomosexual drive the Los Angeles police force has compiled an 'educational’ pamphlet for lawenforcement officers entitled Some Characteristics of the Homosexual. The strongly opinionated pamphlet includes the warning that what the homosexuals really want is 'a fruit world.’
Life mentions that the legislators of some states, including New York and California, are currently considering penal code revisions similar to Illinois’, which would remove the restrictions on homosexual acts between consenting adults. "But in Florida,” the article continues, “early this year the Legislative Investigation Committee’s consideration of homosexuality produced an inflammatory report, calling for tougher laws to support the conclusion that 'the problem today is one of control, and that established procedures and stern penalties will serve both as encouragement to law-enforcement officials and as a deterrent to the homosexual [who is] hungry for youth.’ Its recommendations would make psychiatric examination of offenders mandatory and create a control file on homosexuals which would be available to public employment agencies throughout the state. The report, which included an opening-page picture of two men kissing and photographs of nude men and boys, was so irresponsible that it brought attacks from the Dade County state’s attorney and the Miami Herald, which described it as an 'official obscenity.’”
Some authorities have suggested that homosexuality is itself increasing, but Kinsey’s statistics tend to refute this assumption; he found little difference in the incidence of this and other forms of sexual activity among persons growing up in each of the decades since the turn of the century. He concludes that, in general, human sexual behavior changes from generation to generation; what changes greatly, however, is society’s attitude toward the behavior. There is no question but that the new openness and permissiveness toward sex in contemporary society has produced a greater awareness of homosexual activity, creating the impression that the behavior itself is more prevalent.
We tend to think of ourselves as a heterosexual society; and to view homosexuality as relatively uncommon and a symptom of sickness. Neither assumption is valid.
Katherine B. Davis studied 1200 unmarried female college graduates who averaged 37 years of age; she found that half of them had experienced intense emotional relationships with other women and over 300, or one fourth of the total, engaged in sexual acts with members of their own sex. Of 100 married women studied by G.V. Hamilton, one fourth admitted homosexual episodes of a physical nature. Kinsey’s research was far more extensive and must be considered the most authoritative available; he found that 20 percent of the total female population has some overt homosexual experience prior to the age of 45, and 13 percent has homosexual activity resulting in orgasm. Among women who are still unmarried at the age of 45, the incidence of overt homosexual experience rises to 26 percent.
Kinsey’s research on male homosexual activity also confirmed the findings of previous, less extensive U.S. studies by G.V. Hamilton (1929), G.V. Ramsey (1943) and F.W. Finger (1947); Kinsey and his associates found that no less than 37 percent of the total male population has some homosexual relations resulting in orgasm between puberty and 45 years of age. Among males who are still unmarried at the age of 35, the percentage increases to “almost exactly 50 percent.”
Ex-judge Ploscowe comments, “Obviously, the notion that sodomy and crimes against nature are loathsome perversions which occur only in rare instances and must be severely repressed because of their very abnormality is erroneous.”
Even those who oppose the criminal prosecution of homosexuality as unjust and inhumane often consider it the result of an emotional abnormality; they believe it is simply a problem for the psychiatrist rather than the police. But you cannot call behavior abnormal when it involves 37 percent of the male population – not if you want the word to retain any semblance of its scientific meaning.
Most analysts, psychiatrists and psychologists consider the confirmed homosexual emotionally disturbed; and the majority of those with whom they come in contact undoubtedly are. Analyst Ernest van den Haag was once told by a colleague, “All my homosexual patients, you know, are quite sick.” “Ah, yes,” said Dr. van den Haag, “but so are all of my heterosexual patients.”
Freud did not believe that homosexuals were necessarily neurotic; in a letter to a mother of a homosexual, who had asked him for help, he wrote, “Homosexuality is assuredly no advantage, but it is nothing to be ashamed of – no vice, no degradation, it cannot be classified as an illness.” Neither did Kinsey, who was certainly no Freudian; he concluded that homosexual conduct was simply too widespread, in our own society and others, to be considered a sickness.
Kinsey points out the error in thinking of the homosexual and the heterosexual as two distinct classifications or types; there are only individuals who respond to various kinds of sexual stimulation in various ways; the nature of the response is dependent upon the taboos of a particular society and the extent to which the individual has accepted them. All mammals, human beings included, are born with the innate capacity to respond to homosexual as well as heterosexual stimuli. Zoologists have observed homosexual behavior in nearly every species of animal; anthropologists find it in human societies the world over; and historians find records of it in the civilizations of the past.
It may help our understanding of the matter if we make a distinction between the person for whom homosexual activity is but a part of the total sex experience; and the true invert, who may emotionally disturbed, and for whom homosexuality represents an escape from relations with the opposite sex. (Only 4 percent of the males interviewed by Kinsey were exclusively homosexual throughout their lifetimes; the other 33 percent had varying proportions of both homosexual and heterosexual activity in their histories.) But it must be remembered that the law does not prohibit being a homosexual; it prosecutes a person for the performance of a homosexual act (or, as in the example of Los Angeles law enforcement, the individual who simply suggests such an act). Thus the full 37 percent of all U.S. males could be arrested for this part of their sexual experience; and undoubtedly would be, if they happened to be caught.
Even though homosexual activity is prosecuted far more aggressively than illegal heterosexual activity, it is obvious that the arrests represent only a minute percentage of the total behavior. Ploscowe states, “When the number of arrests and convictions are compared…with the estimates of homosexuality, and with reports on the incidence of unconventional methods of sexual satisfaction, it is obvious that the legal prohibitions against sodomy, homosexuality and crimes against nature are practically unenforceable. One study estimated that six million homosexual acts of sodomy, fellatio, and mutual masturbation take place each year for every 20 convictions.”
Even if it could be justified, the most vigorous law enforcement would neither curb nor cure homosexual activity. Life reports, “Law officials and psychiatrists who have tried to make international comparisons do not believe that homosexuality is any more widespread in places like France, the Netherlands and Sweden, where it is not punishable under the law, than in other nations like ours where it is considered a crime.
"Most people who have studied homosexuality believe that the laws against it are what Freud once called them, 'a great injustice’ and 'cruelty’ – unjustly penalizing the few who are unlucky enough to be caught. Indeed some observers think that the legal penalties and social stigma which threaten the homosexual’s life may cause him more emotional disturbance than homosexuality itself – and that even some defiant and thrill-seeking men may take up homosexuality for the very reason that it is illegal, just as some people who had never drunk before began drinking during Prohibition.”
Society actually combines with nature to perpetuate homosexuality. The sexual patterns established at an early age tend to continue for a lifetime. And precisely at that period in his development when a young man’s sexual desires are greatest, society forbids him to find release through heterosexual contacts. It is not surprising, therefore, that the most sexually precocious males are the ones most apt to be drawn into early homosexual experiences.
Says Life, displaying rare insight regarding sex for an American mass-circulation magazine: “Some well-meaning people feel that homosexuality could be reduced if our society were not so blatantly sexual in general – that is, if we protected our growing boys from the stimulation of sexy movies, books, magazines and outright pornography. But this theory ignores the urgency of the adolescent’s sexual drive. 'When a boy reaches puberty,’ says Dr. Gebhard [head of the Institute for Sex Research], 'his hormones keep him far more stimulated from the inside than he could possibly be stimulated by anything he sees or hears.’ About the only effective way to discourage homosexuality at that crucial age, Dr. Gebhard believes, would be 'to encourage heterosexuality.’” That simple statement has significant implications for all of our social and legal restrictions on sex, including censorship, and the rest. If the legislator, judge, police official and common citizen understood the truth in those words, and their full significance, we might at last have an end to our society’s continuing attempts at sex suppression.
Nothing but a healthier emphasis on the heterosexual will ever reduce the homosexual element in society. And not even that, it must be added, will ever eliminate it entirely – for it is one of the natural variations on the human sexual theme. We must agree on this with the author of the article in Life, who concluded: “Many optimistic students of our society believe that we may someday eliminate poverty, slums and even the common cold – but the problem of homosexuality seems to be more akin to death and taxes. Even if every present-day American with the slightest trace of homosexuality could be deported tomorrow and forever banished, Dr. Gebhard believes, there would probably be just as many homosexual men in the U.S. a few generations hence as there are now.”
To which we add this thoughtful note from Kinsey, for a society that tends to perpetuate perversion when it believes it is suppressing it: “The judge who is considering the case of the male who has been arrested for homosexual activity should keep in mind that nearly 40 percent of all other males in the town could be arrested at some time in their lives for similar activity, and that 20 to 30 percent of the unmarried males in that town could have been arrested for homosexual activity that had taken place within that same year. The court might also keep in mind that the penal or mental institution to which he may send the male has something between 30 and 85 percent of its inmates engaging in the sort of homosexual activity which may be involved in the individual case before him.
"On the other hand, the judge who dismisses the homosexual case that has come before him, or places the boy or adult on probation, may find himself the subject of attack from the local press which charges him with releasing dangerous 'perverts’ upon the community. Law-enforcement officers can utilize the findings of scientific studies of human behavior only to the extent that the community will back them. Until the whole community understands the realities of human homosexual behavior, there is not likely to be much change in the official handling of individual cases.”
Sex Laws and Social Levels
As we mentioned in the April installment of this editorial series, Dr. Kinsey and his associates found a marked difference in sexual attitudes and behavior at various social and educational levels in society. These differences have a definite effect upon the legislation and administration of our sex laws. Upper-level males suffer the greatest inhibitions regarding premarital intercourse and frequently resort to other forms of sexual release (masturbation, heavy petting, mouth-genital activity) in preference to coitus. In contrast, almost all lower-level males engage in coitus prior to marriage (98 percent of those with no more than a grade school education, compared to 84 percent of all males who have been to high school, and 67 percent with some college education); lower-level males have premarital intercourse more frequently and with a far greater number of different partners than their upper-level counterparts, but they have much stronger taboos against noncoital sex, often considering such activity as “unnatural” or a form of “perversion.”
Kinsey comments on the relationship between educational background and our sex laws in Sexual Behavior in the Human Male: “Anglo-American sex laws are a codification of the sexual mores of the better educated portion of the population. While they are rooted in English common law, their maintenance and defense lie chiefly in the hands of state legislators and judges who, for the most part, come from the better educated levels.
"Consequent on this fact, the written codes severely penalize all nonmarital intercourse, whether it occurs before or after marriage; but they do not make masturbation a crime, even though there are a few courts which have tried to read such interpretations into the law [and, as previously noted, two states specifically prohibit mutual masturbation or inducing another person to masturbate].
"However, the enforcement of the law is placed in the hands of police officials who come largely from grade school and high school segments of the populations. For that reason, the laws against nonmarital intercourse are rarely and only capriciously enforced, and then most often when upper-level individuals demand such police action. It is difficult for a lower-level policeman or detective to feel that much of a crime is being committed when he finds a boy and a girl in a sort of sexual activity which was part of his own adolescent history, and which he knows was in the histories of most of the youth in the community in which he was raised. If the behavior involves persons against whom the policeman has a grudge (probably for some total nonsexual reason), if the relation involves too public an exhibition, if it involves a contact between a much older and a younger person (which under the policeman’s code is more or less taboo), if it involves relations between persons belonging to different racial groups (which under his code may be exceedingly taboo), then the laws against premarital intercourse become convenient tools for punishing these other activities. But if it is the routine sort of relationship that the officer very well knows occurs regularly in the lower-level community, then he may pay little attention to the enforcement of the laws. The policemen’s behavior may appear incongruous or hypocritical to the citizen from the other side of town, but it is based on a comprehension of realities which the other citizen is not often aware. There are policemen who frankly state that they consider it one of their functions to keep the judge from knowing things that he simply does not understand.
"On the other hand, if it is the case of a boy who is found masturbating in a back alley, the policeman is likely to push the case through court and see that the boy is sent to an institution for indecent exposure, for moral degeneracy, or for perversion. When the boy arrives in the reformatory, the small-town sheriff may send a letter urging that the administration of the institution pay special attention to curing the boy of the perversion. However, the educated superintendent of the institution is not much impressed by the problem, and he may explain to the boy that masturbation does him no harm, even though the law penalizes him for his public exposure. The superintendent may let it be known among his officers that masturbation seems to him to be a more acceptable form of sexual outlet than the homosexual activity which involves some of the inmates of the institution, and he may even believe that he has actually provided for the sexual needs of his wards by making such a ruling. On the other hand, the guards of the institution, who are the officials most often in contact with the inmates, have lower-level backgrounds and lower-level attitudes toward masturbation. In consequence, they continue to punish inmates who are discovered masturbating as severely as they would punish them for homosexual activity.”
Sex and the Military Though Kinsey does not explore the matter to any degree, it is interesting to note the extent to which the sexual attitudes that have long prevailed in all the branches of our military service reflect, even at the upper echelons, prejudices peculiar to the lower educational level in society as a whole. The U.S. Armed Forces have traditionally taken an extremely permissive attitude to nonmarital coitus: Free contraceptives are issued to all servicemen on request, regardless of age, rank or marital status; and there were instances during World War II in which military bases overseas sanctioned and controlled houses of prostitution in their areas.
Evidence of homosexuality automatically precludes a man from the military service, however; and a single homosexual act by any member of the Armed Forces is sufficient cause for a dishonorable discharge. It is fortunate that no examining officer can single out, with any degree of accuracy, the majority of the men who have had some homosexual experience, since the ranks of our Army, Navy, Air Force and Marines would be severely depleted if the one male in every three who has engaged in such activity was not permitted to serve.
In response to any suggestion of a possible negative correlation between homosexuality and military prowess, a historian would be apt to point out that Julius Caesar, one of the foremost military men of all time, was almost as well known for his conquests in the bedroom – with male and female alike – as for those on the battlefield (Caesar was referred to by his soldiers as “the husband of every woman and the wife of every man”). A sociologist might add that some of the fiercest fighters in the world belong to Arabian tribes that are notoriously homosexual. And a psychologist might suggest that the U.S. Armed Forces, or the military of any country, probably includes a higher proportion of males with homosexual experience than is to be found in society at large, since any protracted sexual segregation invariably leads to increased homosexual behavior.
A more remarkable lower-level sexual prejudice in the military is the attitude toward masturbation, which is considered due cause for the rejection of a candidate for the U.S. Naval Academy at Annapolis (any candidate “shall be rejected by the examining surgeon for…evidence of…masturbation” –U.S. Naval Acad. Regul., June 1940). If the inability to pinpoint the homosexual histories of men being considered for the armed services is fortunate, the futility in any examining surgeon’s attempt to weed out Naval Academy aspirants who masturbate must be considered the height of good luck – for if he were successful, Annapolis would be a lonely place; masturbation is commonest among college-level males and candidates for the Academy would have to be found among the sparse two or three percent without such experience.
Social Levels & Judicial Justice
In a further consideration of the relationship between law enforcement and educational background in society at large, Kinsey states: “On sex cases, the decisions of the judge on the bench are often affected by the mores of the group from which he originated. Judges often come from better educated groups, and their severe condemnation of sex offenders is largely a defense of the code of their own social level. Lower-level individuals simply do not understand the bitter denunciations which many a judge heaps upon the lower-level boy or girl who has been involved in sexual relations. They cannot see why behavior which, to them, seems perfectly natural and humanly inevitable should be punishable under the law. For them, there is no majesty in laws which are as unrealistic as the sex laws. Life is a maze. The sex laws and the upper-level persons who defend them are simply hazards about which one has to learn to find his way. Like the rough spots in the sidewalk, or the traffic on the street, the sex laws are things that one learns to negotiate without getting into too much trouble; but that is no reason why one should not walk on sidewalks, or cross streets, or have sexual relations.”
As Kinsey notes, the influence of class mores is strikingly shown by a study of the decisions which are reached by judges with different social backgrounds. There is still a portion of the legal profession that has not gone to college and, particularly where judges are elected by popular vote, there are some instances of judges who have originated in lower social levels and acquired their legal training by office apprenticeship or night school courses. In addition, the GI Bill has made it possible for a number of veterans of the armed services from lower socioeconomic levels, who would not normally have been able to afford a higher education, to continue into college and postgraduate training. Sexual attitudes and patterns are established at an early age, however, and the individual most often carries the prejudices of his own social background with him for a lifetime, even though the increasing social mobility of our society may have permitted him to advance to an upper socioeconomic or educational level.
“The significance of the background becomes most apparent,” Kinsey states, “when two judges, one of upper level and one of lower level, sit in alternation on the same bench. The record of the upperlevel judge may involve convictions and maximum sentences in a high proportion of the sex cases, particularly those that involve nonmarital intercourse or prostitution. The judge with lower-level background may convict in only a small fraction of the cases. The lower-level community recognizes these differences between judges, and expresses the hope that when it is brought to trial it will come before the second judge, because 'he understands.’ The experienced attorney similarly sees to it that his case is set for trial when the understanding judge is on the bench. Parole officers and social workers who investigate cases before they are decided in court may have a good deal to do with setting a particular case before a particular judge, in order to get a verdict that accords with the philosophy of their (the parole officers’) background.
"Judges who are ignorant of the way in which the other three-quarters of the population lives, naively believe that the police officials are apprehending all of those who are involved in any material infraction of the sex laws. If the community has been aroused by a sex case which has involved a forceful rape or a death following a sexual relation, the judge may lead the other public officials in demanding the arrest of all sex offenders in the community. Newspapers goad the police, and there is likely to be a wave of arrests and convictions which carry maximum sentences, until the wide scope of the problem becomes apparent to even the most unrealistic official….”
Dr. Kinsey sums up: “Eighty-five percent if the total male population has premarital intercourse, 59 percent has some experience in mouth-genital contacts, nearly 70 percent has relations with prostitutes, something between 30 and 45 percent has extramarital intercourse, 37 percent has some homosexual experience [and] 17 percent of the farm boys have animal intercourse. All of these, and still other types of sexual behavior, are illicit activities, each performance of which is punishable as a crime under the law. The persons involved in these activities, taken as a whole, constitute more than 95 percent of the total male population. Only a relatively small proportion of the males who are sent to penal institutions for sex offenses have been involved in behavior which is materially different from the behavior of most of the males in the population. [Thus] it is the total 95 percent of the male population for which the judge, or board of public safety, or church, or civic group demands apprehension, arrest and conviction, when they call for a cleanup of the sex offenders in a community. It is, in fine, a proposal that 5 percent of the population should support the other 95 percent in penal institutions. The only possible defense of the proposal is the fact that the judge, the civic leader, and most of the others who make such suggestions, come from that segment of the population which is most restrained on nearly all types of sexual behavior, and they simply do not understand how the rest of the population actually lives.”
And it can be stated, in addition, that since the publication of the Kinsey reports, in 1948 (Male) and 1953 (Female), the legislators, judges, police officials, and other assorted defenders of public virtue no longer have the excuse of ignorance to justify their intemperate and inhumane attempts at sex suppression.
The extent and variety of human sexual behavior is now an established scientific fact, widely published and well publicized. Whenever a person is now arrested, tried or convicted for committing a sexual act of the kind we have been discussing here, those in authority are blatantly ignoring the evidence that a majority of our society regularly engages in similar activity.
Our officials should be prepared either to imprison all of us – or none of us.
We can think of nothing more fitting, as a conclusion to this installment, than these words from Dr. Alfred Kinsey:
“Somehow, in an age which calls itself scientific and Christian, we should be able to discover more intelligent ways of protecting social interests without doing such irreparable damage to so many individuals and to the total social organization to which they belong.”