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.