9 SODOMY
its authorities; the word should not be cation for laws intended to stamp out
confounded with the later psychiatric "ungodly practices" that would expose
stems
notion of "horno~exua1,~~which from Christian society to divine retribution.
a different conceptual scheme strongly in- Recent legislation has tended to avoid the
fluenced by the writings of thc homophile term because of its ambiguity, its older
apologists Ulrichs and Kertbeny in the definitions, and strongly affective charac-
1860s.However, thelay public on learning ter, not to mention the archaic ties with
the new term then superimposed it upon the Bible that would ill become a secular
the semantic field occupied by the familiar code of law.
expression llsodomite," so that the after- I Warren Iohansson
glow of the older set of associations has
never been fully dispelled.
The verb to sodomize, which was SOLICITATION
rare in European languages until the last American law contains various
third of the nineteenth century, usually provisions for the action of soliciting, or
has the meaning of anal penetration, seeking to obtain by earnest request, en-
whether homosexual or heterosexual. In treaty, petition, or diligent and importu-
England it is a more learned variant of the nate asking, of the person of the opposite
common verb to bugger. or same sex for sexual favors. The concept
Historically, the legend of the des- derives from English law.
truction of the Cities of the Plain served Basic Features. Statutes have been
to tinge sodomy with the aura of a fathom- employed to make arrests for solicitation
less abyss of depravity, of the unspeakable, to commit sexual acts in private between
the monstrous, of "unnatural vice" that consenting adults which are no longer ille-
provokes the wrath of God against its gal in those American states that have
perpetrators. The associations were rein- decriminalized sodomy. This practice on
forced by the sight of the barren terrain on the part of the police results in inconsis-
the shores of the Dead Sea which genera- tency vis-i-vis the consenting adult acts,
tion after generation of pilgrims from violates the First Amendment, and is often
Western Europe described in their travel supported solely by the uncorroborated
accounts. As has been mentioned, the scope testimony of a plainclothes member of the
of the term expanded to include "unnatu- vice squad. If such solicitation contains no
ral" heterosexual activity and intercourse offer of or request for money and thus does
with animals-not even implied in the not involve prostitution or the corruption
tale in Genesis 19 from which it derived. of minors, its criminalization nowhere
As a result of these manifold enhance- antedates the English act of 1898. This act
ments, the diabolical intimations of the punished with a maximum of two years'
notion came to seem perversely glamor- imprisonment any "male person who in
ous for a few wayward spirits. any public place persistently solicits or
Even now sodomy evokes from importunes for immoral purposes," and
the unsophisticated a shudder of horror, thus does not specifically mean homosex-
though Biblical criticism long ago demol- ual conduct. It was aimed originally at
ished the credibility of the composite pimps and procurers, but soon became the
narrative in Genesis, analyzing it as the recognized Englishvehicle against all forms
Judaic amplification of a local myth that of homosexual solicitation. A number of
explained the barrenness and salinization American jurisdictions soon adopted the
of the shores of the Dead Sea. From the concept. The provision of the old New
time of Justinian (reigned 527-565) on- York Criminal Code (superseded in 1965
ward, however, the legendwas deployed as by Section 722) was representative, pun-
a theological and pseudo-historical justifi- ishing as a "disorderly person" anyone
SOLICITATION 4.
"who, with intent to provoke a breach of practices encourage shakedowns and ex-
the peace. .. frequents or loiters about any tortion.
public place solicitingmen for the purpose Solicitation and Sexual Crimi-
of committing a crime against nature or nalization. Where sodomy committed in
other lewdness." The English statute had private between consentingadults has been
required "persistent" importuning, intend- decriminalized, as it has been in 25 of the
ing to limit its criminal sanctions to those 50 states, solicitation to commit it should
whorefused to take "no" for an answer and ips0 facto have also been decriminalized.
thereby threatened a breach of the peace, But this has not always been the case. In
thus extending the common law concept Illinois, the first state to decriminalize
that underlay the notion of "open or public sodomy in 1961, arrests actually increased
lewdness," a danger because it could incite in the next year or so. Over 95 percent of
violence. those convicted for sex-related crimes are
Modern legislators such as those not convicted of sodomy or of other felo-
of New York in 1965 have conveniently nies difficult to prove such as rape, statu-
forgotten that the maintenance of public tory rape, gross indecency, or incest, but
peace was the purpose of the older laws. for prostitution or lesser crimes and mis-
They do not insist that the importuning be demeanors such as solicitation, public or
persistent or continued, rather they em- open lewdness, battery, indecent exposure,
phasize the affront and disgust experienced gross indecency between males, and (until
by the "innocent" bystanders to homosex- its limitation in recent years) loitering.
ual solicitation. They meant to protect the Need for Reform. The crime of
public from offensive behavior. Yet it is "solicitation for sexual activity" should
inconsistent that the locus per se (the be stricken from the codes in its entirety.
place itself)converts a conversation other- It flies in the face of modern legal thought,
wise private into a public one unless over- is inconsistent with the remainder of
heard by others. Rather, most men cruis- most penal codes, and is of doubtful con-
ing for partners employ ambiguous glances, stitutionality. On many occasions it has
gestures, and words, often not even no- been argued that if someone who is solic-
ticed by a disinterested heterosexual, to ited, so long as the behavior involves only
evoke a receptive response before un- consenting adults in private, is not inter-
equivocally soliciting. If not encouraged, ested in the proposal, he need only say
they usually desist and seek another part- "no" to the solicitor. In punishingsolicita-
ner. Circumspect and cautious as it usu- tions to commit crimes, the law may even
ally is, homosexual solicitation subtly infringe freedom of speech. It might be a
using innuendo and subterfuge belies the matter for the legislature to decide
myth of flagrant homosexuals brazenly "whether the punishment of solicitations
accosting defenseless and abashed respon- should be curtailed in order to protect free
dents. Instead it is normally plainclothes speech," and allow sexual liberty. If "a
decoys who entice and entrap those alleg- solicitation to commit a crime" consti-
edly so open and brazen as to constitute an tutes "a substantial step in a course of
affront to public decency. Most convic- conduct planned to culminate in" the
tions are secured exclusively on the ar- "commission of the crime," the solicita-
resting officer's allegation, particularly in tion in those 25 states that have not de-
past decades when pocket recording de- criminalized sodomy is treated as a crimi-
vices did not exist at all; complaints by nal attempt and is punished accordingly.
private citizens are rare, indeed virtually But some codes limit the "definition of
non-existent for solicitation, in contrast crimes of attempt to thosesituationswhere
with indecent exposure. Such unsavory the offense attempted is a crime." "An
O SOLICITATION
attempt to commit a disorderly persons citizens, attempts legitimate enoughunder
offense i s . . .not sufficiently serious to be the Old Regime, but without justification
made the object of the penal law. Many i n t h e modern liberal s t a t e whose
disorderly persons offenses are too innocu- constitution guarantees freedom of con-
ous or themselves too far removed from science and of action to those who reject
the feared result to support an attempt the tenets of an ascetic morality.
offense." Codes punish solicitations to
commit prostitution, but prostitution, by BIBLIOGRAPHY. Thomas E. Lodge,
"There May Be Harm in Asking:
definition, is an offense, while private Homosexual Solicitations and the
sexual activity between consenting adults Fighting Words Doctrine," Case Western
is in 25 states no offense at all. Under some Reserve LowReview, 30 (1980),461-93;
codes, any young man loitering on a park Arthur C. Warner, "Non-Commercial
bench who asks a girl to go to bed with him Sexual Solicitation: The Case for Judicial
Invalidation," SexuaLowReporter, 4
could be sent to prison. (1978),1, 10-20.
A number of states, including WiLliam A. Percy and Arthur C. Warner
Illinois, Connecticut, Hawaii, and North
Dakota, have eliminated such provisions
in the course of adopting new criminal SOLON
codes. New Mexico has managed to live Poet, lawgiver, and chief archon
quite comfortably without ever having (magistrate) of Athens in 594-93 B.C.
had a sexual solicitation law on its statute Overpopulation had caused the exploita-
book. These changes are the result of a tion of Attica's poor, whowere enserfed or
growing recognition that such laws are even sold abroad into slavery for debt.
nothing but relics of a puritanical past and Solon canceled all debts secured by land or
serve merely to make criminals of other- liberty and ended serfdom but did not
wise law-abiding people without carrying redistribute all land as the radicals de-
out any useful social purpose. "To remove manded. He standardized coinage, weights
criminal sanctions from the conduct it- and measures, extended citizenship to
self, yet to continue to punish solicita- immigrant craftsmen, encouraged export
tions to engage in the now licit conduct is of olive oil, and took other measures to
not only a masterpiece of inconsistency, improve the economy. He divided the citi-
but provides blackmailers, extortionists, zens into four classes according to wealth,
and others disposed to violence against apportioning political power so that only
homosexuals with a substantive vehicle the rich could serve as archons and areop-
for their operations." agitici (councilors and judges), but also
A solicitation to commit a lewd strengthened the ecclesia (assembly of
act may be lewd or not depending on its citizens].
character, not on the nature of the act Having visited Crete to study its
solicited. Speech is not automatically laws, Solon institutionalized pederasty in
rendered obscene by its subject matter. Athens. Copying the spectacularly suc-
More than 30 years ago, Mr. Justice Bren- cessful reforms recently introduced to
nan said: "Sex and obscenity are not syn- Sparta from Crete by Lycurgus to limit the
onymous." Neither is a solicitation auto- increase of their hoplites (foot soldiers) so
matically "fighting words" and hence a that their estates would not become
threat to public peace and order. Solicita- overly subdivided, Solon ordained that
tions are thus neither automatically legal men should marry between ages 28 and 35,
or illegal and should not be indiscrimi- in the fifth seventh of their lifespan. Set-
nately punished. The crime of solicitation ting the example himself, he copied the
is a relic of attempts by the state to sup- Cretan and Spartan system of having each
press sexual activity on the part of its aristocratic young man at about age 22,