inatory practices which flow from
the existence of such laws.
I am writing to you at this time
in the hope of acquainting you with
our project and enlisting your assistance and cooperation as a group
informed and interested in this
area of the law.
As you know in most states young
people peaceably living in communes, hippies,homosexuals,prostitutes, marrieds and singles are
subjected to selective enforcement
of the criminal statutes which ban
adultery, fornication, sodomy and
other private consensual activities
between adults. Although it is true
that these criminal statutes are
infrequently enforced because itis
difficult to do so, it is imperative
that they be eradicated as they
are used as the primary justification for the pervasive denial of
equal employment, housing, public
accommodations and governmental
benefits and rights to homosexuals.
Of course these laws are used as
a thin veneer for societal disapproval of differing modes of sexual orientation and life styles.
Unfortunately, the disapproval is
often based on widespread ignorance of homosexual motivations'
and activities. Prostitutes, too,
suffer unequal enforcement of the
laws because of society's disapproval. The police employ criminal ''solicitation'' and "loitering''
statutes as well as improper har-
to ensnare both homosexuals and
prostitutes because of the difficulty
encountered in discovering and
prosecuting their truly private
We believe the time if particularly ripe to challenge these laws
and patterns of discrimination as
a result of a combination of the
recent landmark extension of the
constitutional right to privacy by
the Supreme Court in the abortion
decisions, the recent surfacing of
homosexuals who arewillingtoas-
sert their rights, and the relatively
new concurrent emerging tolerance in society,
erance in society.
In view of the general problems
and developments in the area the
following priorities have been
identified for the project:
1) Removing criminal sanctions
against consensual sexual acts between adults in private through use
of litigation and legislation. Lit
igation includes filing of affirmative class action suits as well as
defense of those actually prosecuted for violation of the statutes.
2) Eliminating public and private
employment disc rimination aga -
inst homosexuals through litigation
legislation and public education,
3) Eliminating discrimination against homosexuals in public housing
4) Decriminalizing prostitution.
5) Eliminating police harassment
of homosexuals and prostitutes by
challenge to the loitering and solicitation laws.
6) Protecting the rights of homosexuals to visit and have custody
of their natural children.
In furtherance of the listed priorities the project will endeavor to
mount a coordinated national litigation and legislation effort against
the restrictive laws and practices;
compile and maintain an up-to-
date docket of significant past and
pending ACLU and non-ACLU
cases in the area, which will be
circulated to all ACLU affiliates
and other interested people and
organizations around the country
willing to participate in litigation;
conduct an investigative survey of
the laws and discriminatory practices in each jurisdiction; develop
case materials, model pleadings
and other litigation tools to assist
lawyers in litigation of cases; and
draft model legislative memoranda
for use in affiliate lobbying efforts.
In furtherance of these goals
I hope that you will keep me informed for your general activities
through your publication and keep
me advised of important developments as they occur via mail or
phone. I will keep you on our
mailing list. If the address is
incorrect or if you would like to
designate one person for us to contact please write and tell us so.
Please feel free to call or write
at any time with information as a
coordinated effort is of extreme
importance. I hope to be hearing
from you soon..'
" Marilyn G. Haft
Director,. Sexual Privacy Project
American Civil Liberties Union
22 East 40 Street
New York, N.Y.
Delaware has new sex law
On July 1, 1973, consenting sexual relationships, in private, between consenting adults (homosexual relationships included) became law of the First State of the
Union, Delaware. (To me, that is
as surprising as if the. Southern
Baptist Convention were suddenly
to advocate the use of heroin.)
Nevertheless, it is true. But, a
little history first.
Delaware has always been the
unusual State, insofar as it's statutes are concerned. Many years
ago, most of the States and Commonwealths of the Union were
beginning to formulate laws concerning the legal processes of
incorporation. Many States and
Commonwealths listed a maximum
of 26 reasons for which it was
legal to incorporate a firm. Delaware stood alone in permitting any
group of people to incorporate for
any reasonable (i.e., not unlawful)
purpose. As a consequence, most
of the major big businesses today
are incorporated in Deleware. One
of the first of the major groups
to be incorporated in Delaware
was the A. I. du Pont de Nemours
Corporation. Their corporation
was followed iruickly by the then
New Ford Motor Co., General
Motors, General Foods, etc. Believe it or not, each of these
companies maintains a small
"home office" in the cities of
Wilmington or Dover (the Capitol)
for the purpose of maintaining
their corporate status. .
Despite the seeming progres-
siveness of Delaware Law, many
old pre revolutionary laws were
kept on the books. For example,
the whipping post law still exists
today. If a person, breaks parole,
steals a car, is convicted-of pickpocketing, and several other specific offenses, he maybe sentenced to, "twenty lashes with a cat-
o-nine-tails, well laid on by a
strong man." (If that's your bag,
move to Delaware and become a
criminal, but, be sure of your
offense--you may get a lenient
judge.) The constitutionality of the
above law is being contested under
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the provision of the Bill of Rights
against "cruel and unusual punishment."
In 1962, Gov. Charles L. Terry
(deceased) recognized the confused
status of the Delaware Penal-Code.
He appointed a commission, consisting of 13 attornies-from various parts of the State and Professor of Law from the University
of Pennsylvania. The committee
was charged with the responsibility of codifying the Delaware Penal
Code. The committee submitted its
first revision of the Code to the
Included in the Original Report
Section 433, p. 236f: "A person
is guilty of cons ens ual sodomy
when he engages-iR deviant sexual
intercourse with another person.
'• Is is no defense that the other
1 person consented to the deviant
sexual intercourse." Under the
section titled, "Definitions" is the
statement, "Deviant sexual intercourse includes sexual relations
with persons of the same sex."
The entire revision of the Penal
code was presented to the General.
Assembly of the State of Delaware
and was roundly defeated due,to
the vagueness of the terms used
in the report. A" second and third
revision of the Original"Report
were prepared, presented,' aridde-.
feated in the General Assembly.
Meanwhile, Gov. Terry was defeated in the following gubinotorial election and was succeeded by<jov.
Russell Peterson (Republican). Jiy
that time, a fourth report was
introduced to theGeneral Assembly under the title Senate Sub.
#1 or S.B. 356 in 1972 during
the second session of the 126th
General Assembly. The fourth revision was based by the General
Assembly and was signed into law
by Gov. Peterson. The significant
difference between the first and
fourth revision of the Delaware
Penal Code, insofar as homosexuals are concerned, was the omission of Section 433 altogether.
The fourth revision will become effective July 1, 1973. (The reason
for the delay in the effective date
was due to typographical errors
in the printing of the fourth revision of the Original Report.)
As things stand now in Deleware,
the following offenses remain a
part of the Penal Code. The following list is restricted to those offenses which might be of concern
Section 761: Sexual Assult. The
following is not an exact quote
from Sect. 761. The section reads
essentially that a person is guilty
of sodomy is he engages in sexual
relations with a person of.the same
sex who is under age 16 if the
former is over the age of 20.
Exception: If a minor (defined in
Delaware as a person who has not
reached the age of 20 — not 21
as in many States) engages in sexual relations with a person no more
than 4 years younger or older than
himself, no crime has been committed, provided that the act occured in private. For example, if
a 16 year old man were to engage
in sexual relations with a 13-year
-year old man, no offense has been
committed; no investigation may
insue; and no court hearing is required. The defendant, in the above
case cannot even be arrested.
Section 763: Rape. (This section
should be self-explanatory as it resembles the statutes of-the remainder of the States and Commonwealths of the Union ,1_
is guilty of sodomy if he engages
in sexual relations with a person
of the same sex who has not
consented to such a relationship."
Sodomy is a class B felony.
Section 1341: "A person is guilty
of lewdness when he does anylewd
act in any public place or commits any lewd act which he knows
is likely to be observed by others