Sin & Criminality

Forty-three states provide some form of criminal penalty for adultery, but in a sample year the nation's police made only 267 adultery arrests,* many of which never went to trial. There is a fairly well-founded impression that the incidence of adultery greatly exceeds the number of arrests. Since adultery laws are not enforced, should they be expunged from the statute books? Last week a group of the nation's most distinguished lawyers and judges, gathered in Washington's Mayflower Hotel for the American Law Institute's annual meeting, gave their answer: yes.

One of the purposes of the American Law Institute, founded 32 years ago by Statesman Elihu Root, is "to promote the clarification and simplification of the law and its better adaptation to social needs." Up for discussion before the institute last week was a Model Penal Code, covering sex and other offenses, which state legislatures can use as a guide. In explaining their approach to sex laws, the code's drafters said: "The code does not attempt to use the power of the state to enforce purely moral or religious standards. We deem it inappropriate for the Government to attempt to control behavior that has no substantial significance except as to the morality of the actor. Such matters are best left to religious, educational and other influences." By a heavy majority, the lawyers agreed that adultery should not be a statutory crime. Sodomy proved more controversial. In the end, the model code provided criminal penalties for homosexual behavior "involving force, adult corruption of minors and public offense." But a broader provision caused a sharper argument. This clause held that "a person who engages in an act of deviate sexual intercourse" commits a crime.

The criminality of sodomy was debated by two of the nation's most eminent jurists. Veteran (29 years) Judge John J. Parker, 69, of the U.S. Fourth Circuit (Richmond) Court of Appeals, opposed the argument that private homosexuality should not be enjoined by the law merely because the law, pragmatically, cannot stop it. Said he: "There are many things that are denounced by the criminal code in order that society may know that the state disapproves . . . When we fly in the face of public opinion, evidenced by the code of every state in this Union, we are not proposing a code which will commend itself ... to the thoughtful members of the profession." Not so, thought venerable (83) Learned Hand, retired chief judge of the U.S. Second Circuit (New York) Court of Appeals. "Criminal law which is not enforced practically is much worse than if it was not on the books at all ... I think it [sodomy] is a matter of morals, a matter very largely of taste, and it is not a matter that people should be put in prison about." Judge Hand recalled that he had previously voted to retain the sodomy clause. "I feared the effect, in general, of its omission from the code," he reflected.

"I have always been in great doubt about that, and I have finally come to the conclusion that the chance of its prejudicing the code is not sufficient . . ." The institute voted, 35 to 24, to uphold Judge Hand's new view and to recommend that sodomy as well as adultery be removed from the list of crimes against the peace and dignity of the state.

* The year under study: 1948. Most adultery arrests: Boston, with 242. The others: Wilmington, Del. 16, Los Angeles four, Baltimore three, Duluth two.

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