The opinion
KERN, Associate Judge
(concurring) :
I agree that the judgment of conviction should be affirmed but my approach to this case differs somewhat from that taken by the majority.
Appellant attacks his conviction for “keeping a bawdy or disorderly house” in violation of D.C.Code 1967, § 22-2722 upon the grounds that the statute (1) is void for vagueness under the fifth amendment and (2) “is unconstitutionally overbroad in its vague encroachments upon constitutionally privileged conduct.” (Br. at 17.) In support of the latter contention appellant cites Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965) and Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969), but those decisions are inapposite to the instant case. Here, we are dealing not with the relationship between husband and wife in the home or the individual’s possession and use, privately, of certain material, but rather the maintenance by appellant of a place where homosexual gratification might be obtained by anyone who could afford to buy it. The mere fact that adults were the participants in his emporium of pleasure and that their activities were behind closed doors does not transmogrify his operation from a public nuisance into privileged conduct which Congress cannot constitutionally proscribe. 1
As to appellant’s contention that the language of the statute is “so vague and standardless that a person of common understanding would be uncertain as to what conduct it proscribes,” (Br. at 10), the evidence showed that appellant maintained a *856 house where homosexual activity, was carried on in exchange for money or material gain. In essence, appellant was operating a house of prostitution and I do not doubt that such an operation is commonly known and understood to be the keeping of a bawdy or disorderly house. Under these circumstances, the vagueness doctrine is not applicable. See Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (decided June 12, 1972).
Appellant’s most serious challenge is to point to our decision in Payne v. United States, D.C.Mun.App., 171 A.2d 509 (1961) and the 1897 decision in De Forest v. United States, 11 App.D.C. 458 , and urge that they have imparted a gloss to the statute in question: That an element of the crime of keeping a bawdy or disorderly house is that such conduct must be “subversive to public morals” and that the prosecution must prove this beyond a reasonable doubt. What is “subversive to public morals” is in the abstract difficult to define and was in this case, as the prosecutor conceded, not proven. In my view, however, Congress has already determined that keeping a bawdy or disorderly house, when it is a house of prostitution, is contrary to the public interest. Therefore, in “a house of prostitution” case, 2 I do not consider it necessary for the prosecution to prove that keeping a bawdy or disorderly house subverts public morals and I am of opinion that the trial court should avoid in the future so instructing the jury. In the instant case, the trial court’s instruction was superfluous but harmless. Accordingly, I would affirm.
. The purported policy recently announced by a representative of the District of Columbia government not to prosecute private consensual homosexual acts between adults, see 11 Crim.L.Rep. 2252 (June 21, 1972), pertains only to conduct in the privacy of the home. The United States Attorney does not, however, join in that policy pronouncement.
. As I read De Forest v. United States, 11 App.D.C. 458 (1897), the court recognized (at 462-463) that Congress had outlawed the keeping of a bawdy or disorderly house, when it was a house of prostitution, because it constituted a public nuisance and in effect subverted public morals, even though “the business is [not] conducted openly and notoriously” (at 463). In Payne v. United States, D.C.Mun.App., 171 A.2d 509 (1961), we were applying the bawdy/disorderly house statute to an operation other than a house of prostitution and, thus, I do not believe that case is applicable here.