[reprinted without permission from the Boston Globe, 30 March 1992] Group Seeks Repeal of Old Statutes on Sex ---------------- By Patricia Nealon, Globe Staff ---------------- Gay activists are seeking repeal of archaic statutes that make certain kinds of homosexual -- and heterosexual -- behavior a crime. In its major legislative effort this session, the Coalition for Lesbian and Gay Civil Rights wants to make Massachusetts the 26th [sic, it should be 27th] state to repeal or reform laws prohibiting sodomy, adultery, and fornication -- legally defined as sex between an unmarried man and an unmarried woman. Although the crimes are rarely, if ever, prosecuted, supporters of the bill say the laws, come of them centuries old, threaten the personal freedom of gays and heterosexuals alike and should be removed from the books. "It's really incredible that a state such as Massachusetts, which has such a strong record on civil liberties and civil rights issues would still have these antique laws on the books," said David LaFontaine, lobbying director for the Coalition for Lesbian and Gay Civil Rights, which crafted the bill along with its chief sponsor, state Rep. David B. Cohen (D-Newton). "It's completely inconsistent with laws like the gay rights law, which protects gay people and says they can't be fired from their jobs," added LaFontaine, referring to the landmark 1989 legislation that prohibits discrimination against gays in housing, employment, credit, and public accommodations. "At the same time, they can be arrested for having sex in their houses. It's ludicrous." The Legislature's joint committee on the judiciary will hold its first public hearing on the proposed legislation Wednesday at the State House. The legislation, supporters stress, pertains only to "private, consensual, noncommercial sexual acts between adults." By broadening the legislation to include heterosexual crimes such as adultery and fornication and by framing the debate as a privacy issue, backers hope to build support. Any unmarried person who engages in sex is a criminal under current law, they point out. "I really think it's bad public policy to have laws on the books which make 75 percent of the population subject to arrest for no sensible reason," LaFontaine said. This is the second time in a month that the issue of archaic sex laws has been raised. Three weeks ago, a Boston divorce lawyer asked the state Supreme Judicial Court to decriminalize adultery, arguing that parties in divorce actions frequently refuse to testify for fear of being charged with the crime. The proposed legislation would repeal the adultery statute as a criminal offense but would keep it as grounds for divorce. Conviction on an adultery charge now carries a maximum three-year prison term and a $500 fine. The legislation would also scrap the fornication statute, which makes sex between an unmarried man and an unmarried woman a crime punishable with a three month jail term and a $30 fine. And the bill would also repeal the section of the state criminal code that prohibits anal intercourse, described as "an abominable and detestable crime against nature," language the coalition terms "offensive." Under current law, a single act carries a maximum 20-year prison sentence. "Among gay people it is well known that homosexual sexual behavior is illegal and it creates an atmosphere of fear and intimidation to know that people could be arrested at the whim of police or law enforcement officials," said LaFontaine. "It's very offensive to people and it's frightening at the same time." While acknowledging that the laws are rarely enforced and that a 1974 SJC decision decriminalized private, consensual sexual acts between adults, supporters say they prefer to wipe the laws off the books rather than to tempt fate. "It's a lot safer not to have bad laws on the books rather than to have to rely on a court's interpretation to determine personal liberty," said Cohen. "I think the fact that there are laws on the books that rare rarely enforced is an open invitation to abuse." Attorney Thomas Hoopes, head of the criminal justice section of the Massachusetts Bar Association, said keeping statutes on the books that are never enforced demeans the law in general. "If you have laws that nobody pays attention to you devalue the law," Hoopes said. "When you have something on the books that everybody is ignoring, how many other things do they start to ignore too?" Abner Mason, a member of the Log Cabin Club, a group of gay and lesbian Republicans, and a director [sic, he's a board member] of the Coalition for Lesbian and Gay Civil Rights, is lobbying Republican legislators in support of the bill. "I know many Republicans are completely in support of limiting the role of government," he said, "getting the hand of government out of people's pockets and their bedrooms. It's consistent, it makes sense, and it's something Republicans can support." Of the 22 sponsors who have signed on as sponsors of the bill, however, only one is a Republican, Sen. Charles E. Shannon of Winchester. And his support at this point extends only to reviewing all laws "in light of today's society." "My idea is to have them all looked at," said Shannon, who served on the Lexington police force for 20 years. "It's just good government . . . The court system and the law enforcement community do not need archaic laws to fill a book on a shelf." Shannon, however, said he has not determined if the laws targeted in the new legislation should be scrapped. The trio of laws included in the legislation has prompted different rulings when challenged before the state's highest court. In a 1974 decision involving a man and a woman having sex in a car in a remote area, the SJC in effect decriminalized private, consensual sexual conduct between adults, setting a standard of "reasonable expectation of privacy." But in 1983, the SJC refused to decriminalize adultery, ruling the statute was constitutional and that the state had a right "to regulate the institution of marriage under its police powers" as long as it did not infringe on "fundamental rights." The SJC said that it was the role of the Legislature, not the courts, to change or repeal the law. Supporters of the bill think this is an opportune time for passage, given Gov. Weld's support of gay rights. The governor has not yet taken a position on the legislation. And with the increasingly conservative tilt of the US Supreme Court, they believe steps must be taken to safeguard personal liberties legislatively. They point to a 1986 Supreme Court decision that upheld the right of states to outlaw sodomy. LaFontaine likens his group's efforts to those of abortion rights activists who are working to guarantee access to abortion in individual states should the Supreme Court overturn its decision legalizing abortion. "Increasingly, we have to look to the Legislature rather than the federal courts in privacy issues," said Cohen. "It's clear to me that given the number of Reagan-Bush appointees and their youth, that for the next generation at least the federal court is not going to be the source of new personal liberties. If they are to come, they have to come on the legislative level." --gordon Coalition for Lesbian and Gay Civil Rights P. O. Box 611 Cambridge, MA 02238