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 upper-level 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."