Amicus Curiae Brief — Lawrence v. Texas

JOHN GEDDES LAWRENCE and TYRON GARNER,

Petitioners,

STATE OF TEXAS,

Respondent.

On Writ of Certiorari to the Court of Appeals of Texas

Fourteenth Division

BRIEF OF AMICUS CURIAE

FIRST PRINCIPLES, INC.

in support of the Respondent

COL. RONALD D. RAY

he Counsellors at Law

: 3317 Halls Hill Road

Crestwood, KY 40014

(502) 241-5552

Attorney for Amicus Curiae

WESTERMUELD-SONTE €O., 619 W. KEWTUCKY-.0. BOX S881, LOUIEVELE, KY

> BEST AVAILABLE Te HOH

BR AOS Bgl Seed IE eer AOD CPO OO aa

i

INTEREST OF THE AMICUS

This Brief is filed with consent pursuant to S. Ct. Rule

37 and Fed. R. App. P. 29a). Amicus files this Brief in

support of the Respondent, State of Texas, and urges the

Court to uphold the decision of the lower court in Lawrence

v. Texas, 41 S.W.3d 349 (Tex. App. 2001), which holds that

the Texas Penal Code Ann. §§ 21.06 (Vernon 1994) did not

offend the Texas state or federal constitutions. First Prin-

ciples, Inc., is a public educational foundation organized

and existing as a non-profit corporation under the laws of

the Commonwealth of Kentucky. First Principles is con-

cerned about educating, preserving and defending the his-

tory and foundations of American law and civil govern-

ment, our first principles which are increasingly under at-

tack in the courts and other public institutions. As Justice

Oliver Wendell Holmes, Jr., said, “A page of history is

worth a volume of logic.” (See New York Trust Co. v.

Eisener, 256 U.S. 345 (1921).) The suppression, rewriting,

and even censorship of American history effects many le-

gal and public issues, and in litigation, as in war, truth is

ofen the first casualty.

STATEMENT OF LEAVE TO FILE BRIEF TABLE OF CONTENTS

AMICUS CURIAE FIRST PRINCIPLES, INC. enaamne

in support of the Respondent PAGE

I THE TEXAS SODOMY STATUTE IN

The Respondent has confirmed consent to the filing of QUESTION WAS FASHIONED UPON

this brief amicus curiae. | THE ALI MODEL PENAL CODE. ......................... 1

| Il. THE AMERICAN LAW INSTITUTE’S MODEL

Colonel Ronald D. Ray | PENAL CODE (ALI) AND ITS RELIANCE

Attorney for Amicus Curiae UPON THE DEBUNKED AND DIS-

First Principles, Inc. CREDITED KINSEY REPORTS IS

3317 Halls Hill Road CENTRAL TO AN UNDERSTANDING AND

Crestwood, KY 40014 PROPER DECISION OF THIS CASE. ................. 3

502/241-5552 Ill. AMERICA’S LAW ORDER CHANGED FROM

THE FIXED PRINCIPLES OF THE DECLA-

RATION OF INDEPENDENCE “ENDOWED

BY THEIR CREATOR” TO MAN-CENTERED

“CHANGING VIEWS” BASED ON

EVOLVING LAW AND EVOLUTIONARY

' PLANTED BY “SCIENCE-BASED LAW

V. THE ALI MODEL PENAL CODE IS AN UNRE-

LIABLE AUTHORITY UPON WHICH TO

DECIDE THIS CASE BECAUSE OF THE

CODE’S RELIANCE UPON THE FRAUDU-

LENT AND CRIMINALLY DERIVED

KINSEY REPORTS. .................cccscssssessesesnesesneeesnesees 11

VL THE KINSEY REPORTS’ JUNK SEX SCIENCE

IS AUTHORITY FOR “SCIENCE-BASED”

LEGAL REFORM AND THE PRIMARY

AUTHORITY FOR DECRIMINALIZING

iv

TABLE OF AUTHORITIES

:

Cases:

Adams v. State, 86 S.W., 334, (Tex. 1905)...........

Bowers v. Hardwick, 478 U.S. 186 (1986) .......... 3, 23,

Commonwealth v. Wasson, 842 S..N.2d 487

Se 4

"la 0 eo

Griswold v. Connecticut 381 U.S. 479 (1965) ......

Lawrence v. Texas, 41 S.W.3d 349 (Tex. App.

I ceria eariaeetllacacitastaaatataatciadiardatideaatinialtiiaasieaiiiaes i,

Lewis v. State, 35 S.W. 372 (Tex. 1896) ...............

New York Trust Co. v. Eisener, 256 U.S. 345

ITT cite sieiienideieidihainieeaeimnedemiinaiaaitaaaiiadate

Prindle v. State, 21 S.W. 360 (Tex. 1893) ............

Roth v. The United States 352 U.S. 964 (1957) ...

Statutes:

Texas Penal Code, Ann. § 21.06 (Vernon 1994) ..

Laws of Texas, Chapter 111 (1943)......................

Kentucky Revised Statutes 510.100 ....................

Rules:

I icin eneianiiitalietaienienaniinens ggnesnseenecenn i

Se eT TTD i

Other Authorities:

David Allyn, Private Acts / Public Policy: -

a Se

—r

% © two

orn

do e-

(BBBED nccccccscnsscnsscnsssvesssesesessssnsesossscosasessses 7, 8, 9, 18, 29

Response to Child Sexual Abuse Offenders:

How Is It Working? Executive Summary.

State Justice Institute, Grant,

SIT-88-L1LI-E-O1B. .........scccsssssssssecsresseessenneseseenes 30

AMERICAN Law InstrruTE, Mope. PENAL Cope Art.

v

Other Authorities (Continued)

B. E. C., Jr. Pedophilia, Exhibitionism, and

Voyeurism: Legal Problems in The Deviant

Society 4 Georaia Law Review (1969)............... 25

Raoul Berger, Jack Rakove’s Rendition of Original

Meaning, 72 Inpiana Law JourRNAL, (1997)

www.law.indiana.edu/ili/v72/no3/berger. html. 6

Robert C. Berring, Great AMERICAN Law REVIEWS

Eprrep with COMMENTARY (1984) ....................... 7

William Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND (1769) .0..........ccccccccccceseeeeceeeees 1, 5,6

Morgan S. Bragg, Victimless Sex Crimes: To the

Devil, Not the Dungeon, 25 Untverstry oF

Fiorina Law Review (1973) .0...........ccccccceeeceeeceee 26

Cassell, Carol, Co Sexuality, THe

AMERICAN ASSOCIATION OF SEX EDUCATORS,

COUNSELORS AND THERaPists (AASECT),

ES EE LT 21, 22

John C. Danforth, The Modern Criminal Code for

Missouri (Tentative Draft)—A Challenge

Fulfilled and the Challenge Presented, 38

Missouri LAW REVIEW (1973) .............ccccceeeceeeees 26

THE DECLARATION OF INDEPENDENCE, printed in 1845

by the authority of the United States Congress.

RANT ECan 6

Albert Deutsch, Sex Hasrrs or AMERICAN MEN.

EEE SEES CENCE cae eee 18

Documents [Illustrative of the Formation of the

Union of American States, 69% Congress,

1* Session, House Document #398 (1927) ....... 6

John S. Eldred, Classification and Degrees of

Offenses—An Approach to Modernity, 57

Kentucky Law JOURNAL (1968-69) ..................... 26

Joseph Epstein, Commentary, January, 1998, at

j i downloaded March 31,

Sa iceaieeeieettierieeeieeahaeritaaaetininiesaercntaeatenieetieiinietinteaeitaeenes 27

Morris Ernst and David Loth, American SEXUAL

BEHAVIOR AND Tue Kinsey Report (1948) .......... 19, 20

Morris Ernst and Alan U. Schwartz, Tue Ricur

TO BE LET ALONE (1962) ............cccccccccecccceeeeeeeeceee 7

Edward N. Fadeley. Sex Crime in the New Code,

51 Orecon Law Review (1972) ..0.0...........cccc0000. 25, 26

vi

Other Authorities (Continued)

Johnathon Gathorne-Hardy, ALFRED C. KINSEY:

Sex THE Measure or AIL Tunas (1988) ............

Paul Gebhard, a eS, Say

and Cornelia Christenson, Szx OrFENDERS

AAA TEL ITL e

Paul Gebhard and A. Johnson, Tue Kinsey Data:

MArcINAL TABULATIONS Or THE 1938-1963

INTERVIEWS CONDUCTED By Tue INSTITUTE

For Sex Researcu, W.B. Saunders Co.,

Philadelphia, 1979 ............ sececescees eeocceseecesensessecs

Law —. susanggousessqnevenseggsussnesvusmasanseacqepnsmennsvenes

Hugh Hefner. The Enforcement

BEHAVIOR IN AMERICAN Soir a

16

Vii

of the Oklahoma Laws Concerning Sexual

Behavior, 23 OKLAHOMA Law Review (1970) ..... 25, 26

Arno Karlen, Snmnaey sa Santesenneasee (ab72) 11

45 Texas Law REVIEW (1967) .............cccccceeeeeeees 2,3

Alfred C. Kinsey, Wardell Pomeroy, Clyde Martin,

oR IN THE HuMAN MALE (1948)... passim

Alfred C. Kinsey, Wardell Pomeroy, C de Martin,

Paul Gebhard, SexuaL Benavior IN

HUMAN FEMALE (1953) ................cscccceessceeeeeeseeeees 18

oe ee ee ee —_———

JOURNAL OF SociaL PsycHo.oey (1942) .............. 14

Abraham Maslow, Test for Dominance-Feeling

(Self-Esteem) in Women, 14 Tue

JOURNAL OF SociaL PsycHo.ocy (1940) .............. 14

Mops. Pena, Cope AND COMMENTARIES, § 213.2...... 3

Monet Prenat Cope ann COMMENTARIES, § 213.6...... 3

National-Zeitung, May 15, 1957 ..............cccc00c00000 17

The New Jersey Penal Code, Final Report of the

Law Revision Commission (1971) .................... 26

Morris Ploscowe, Sexual Patterns and the Law,

A A ETC 19

Wardell Pomeroy, Dr. KINsEY AND THE INSTITUTE

FOR SEX RESEARCH (1972) ..............cccccccesseeeeseeeees 22

Judy Potter, Sex Offenses, 28 Maine Law Review

(BGG) ...2.0-0-cereveveesecrcecersrerscoconecenecscsceveeeseseseseoeees 25

i of the Subcommittee on Sex

Crimes of the Assembly Interim Committee

on Judicial System and Judicial Process,

California Assembly, March 8, 1950, reported

in foreword, unnumbered. .......................00000000. 13, 22

= Kinsey?” 337 Tue Lancet, (March 2, ~

PP fq 777 ~

(2™ ed. 2000) ............................. 11, 17

Albert J. Sex The M

pale = Sy ek mee | phy spa

CONTEMPORARY PROBLEMS (1960) ............0.c.cc00000. 25

9

Consultant, February 1, 1950 ...............:-see 23

- Report of the Illinois Commission on Sex Offenders

CRITE ... -ccseasssenscneguecnnctiapengiamnecnanenenammnennensensenrane 21, 23

Orville Richardson, Sexual Under the

Proposed Missouri Criminal Code, 38

Missouri LAW REVIEW (1973) .........::cccceeeeeeeeeenees 25, 26

Robert Rothe , The Plain-Language Law

Dictionary (1981) ..........:ssssesesseereeeesrssensernsees 8

Louis B. Schwartz, Book Reviews: Sexual Behavior

in the Human Male 96 Untverstty OF

PENNSYLVANIA LAW Review (1948) ..............0000+++ 24, 25

Arthur H. Sherry, Criminal Law Revision in

California, 4 Jounnat Or Law Rerorm (1971) .. 27

Ralph Slovenko and Cyril Phillips, Psychosexuality

and the Criminal , 15 VANDERBILT Law

Phillip E. Stebbins, Sexual Deviation and the

Laws of Ohio 20 Ono State Law JOURNAL

CRITI n-ccussicsnnecceunesunenensnsessnaenenncssnevessensssneneneasees 25

Tagespiegel, Oct. 1, 1957 ..........csssseeeseesrserereenenenes 17

Herbert W. Titus, God, Man and Laws: The

Biblical Principles (1994)...................seeseeeeeeeeees 7

TSP, a 17

Samuel D. Warren and Louis D. Brandeis, The

ight to Privacy 4 Harvarp Law REVIEW

CO ——————————————————— 7,8

Warren Weaver, Desk Diary, May 7, 1951,

pp. 4-5, Archive Center. .............+.. 13, 14

Noan Wesster, THE AMERICAN Dicrionary Or THE

ENGLISH LANGUAGE (1828) ...............0-cseeeeeeeeeeeeees 28

Herbert Wechsler, Spee Model Penal

Code 63 Harvarp Law = 4, 8,19

Paul E. Wilson, New Bottles for Old Wine:

Criminal Law Revision in Kansas, 16 Kansas

LAW REVIEW (1968) .............:cccccccssereeneeeeeeeeeenenenes 26

1

REASONS FOR AFFIRMING THE DECISION OF

THE COURT OF APPEALS OF TEXAS BELOW

Il. The Texas Sodomy Statute in Question Was

Fashioned upon the ALI Model Penal Code.

The first sodomy law was enacted in Texas on Febru-

ary 1, 1860, using the common law definition of a crime

against nature with a penalty of 5-15 years in prison.

American Common Law was primarily based on

Blackstone’s Commentaries on the Laws of England 1765.

In Volume IV, pp. 215-216, sodomy is described:

The infamous crime against nature, committed either

with man or with beast...the very mention of which is

a disgrace to human nature. (Our English law] treats

it, in its very indictments, as a crime not fit to be

named. This the voice of nature and of reason, and

the express law of God, determine to be capital...But

now the general punishment of all felonies is the same,

namely, by hanging.

Texas courts interpreted this definition to exclude oral

sex,! and to include both homosexual and heterosexual de-

viate acts.2 In 1943, the statute was amended to include

fellatio as sodomy, passing unanimously in the House and

Senate, 127-0 and 24-0. The law proscribed copulation

with animals as well:

Whoever has carnal copulation with a beast, or in an

opening of the body, except sexual parts, with another

human being for the purpose of having carnal

copulation...shall be guilty of sodomy, and upon con-

viction thereof shall be deemed guilty of a felony, and

1 Prindle v. State, 21 S.W. 360 (Tex. 1893). “(However) vile

and detestable the act proved may be, and is, it can constitute no

offense, because hot contemplated by the statute, and is not

embraced in the crime of sodomy.”

2 Lewis v. State, 35 S.W. 372 (Tex. 1896). See also, Adams v.

State, 86 S.W. 334 (Tex. 1905).

2

shall be confined in the penitentiary not less than two

(2) nor more than fifteen (15) years.

Laws of Texas, 1943, at 194, chapter 111, enacted April 8,

1943.

In 1971, a Texas federal court rejected a married couple’s

request for injunction to prohibit enforcement of the sod-

omy law against married couples. The court noted that no

married couples had ever been prosecuted under the law

and future prosecution of them was unlikely. The court

found sodomy to be a “heinous” crime laws against which

the federal courts should respect.

Dawson v. Vance, 329 F. Supp. 1320 (D. Tex. 1971).

In 1973, Texas followed the lead of other states in en-

acting a comprehensive criminal code revision based on

the American Law Institute’s Model Penal Code. The Texas

Law Review reported a grand jury’s statement that: “The

Penal Code of Texas, as it now exists...is a hodgepodge of

inconsistencies, inequities, and penalties which have no

basis in reason or common sense.”°

Why would Texas consider the laws which had served

its citizens for a century so inept? The revision committee

reports,

The State Bar committee was encouraged in its deci-

sion to revise the [Texas] penal code by three factors

which indicate the timeliness of the project. First, the

American Law Institute’s Model Penal Code is avail-

able as a guide for the study; secondly, a great num-

ber of other states have recently taken action to bring

their penal codes up to date, and finally our own state

legislature has launched a general statutory revision

program...the outstanding virtue of the Model Penal

3 W. Page Keeton and William G. Reid. Proposed Revision of

the Texas Penal Code, 45 TEXAS LAW REVIEW, 402 (1967).

3

Code is that it offers a draft conceived and reviewed

by experts...‘

Il. The American Law Institute’s Model Penal Code

(ALD and Its Reliance Upon the Debunked and

Discredited Kinsey Reports Is Central to an

) cana and Proper Decision of This

ase.

Basic to an understanding of the radical change which

Petitioners seek to effect in a Texas sodomy statute is the

fact that the elimination of sodomy statutes, accomplished

in a majority of states and advocated herein by the Peti-

tioners, represents an abandonment of the American com-

mon law and our unique system of Federalism based on an

unreliable authority. On page 6 of their Petition for Writ of

Certiorari, Petitioners state:

The Homosexual Conduct Law was substituted [in

1974] for a facially nondiscriminatory law at a time

when many States, prompted by changing views about

the proper limits of government power that were re-

flected in the American Law Institute’s Model Penal

Code, were revising their criminal codes and completely

abandoning offenses like fornication and sodomy. See

Model Penal Code and Commentaries § § 213.2 cmt.

2, 213.6 note (1980). By 1986, 26 States had invali-

dated their sodomy laws. Bowers, 478 U.S. at 193-94.

This brief will demonstrate the ALI Model Penal Code

(MPC) Reporters extensively used what is now known to

be fraudulent and criminally-derived scientific authority.

The ALI’s MPC Draft recommended decriminalizing acts

of sodomy based upon the unreliable Kinsey Reports. The

ALI Reporters adopted “changing views” based on The

Kinsey Reports with the “Kinsey Scale” of a fluctuating

human sexuality. Long-settled American common penal

laws like those proscribing “fornication and sodomy,” meant

* Keeton and Reid, supra., at 404.

4

to protect society’s smallest building block, marriage, were,

according to Chief ALI Reporter Herbert Weschler, “inef-

fective, inhumane and thoroughly unscientific,” based on

the truth now available through “objective scientific pur-

suit.”

Kentucky’s experience is illustrative of the way other

sodomy statutes have been improperly overturned, and

bears strong resemblance to this case. When the Ken-

tucky General Assembly was recognized as unlikely to re-

peal the sodomy statute, K.R.S. 510.100, in the foreseeable

future, advocates of change undertook the defense of a

criminal prosecution which had been brought under the

sodomy statute in Fayette District Court. At trial, the

advocates offered the testimony of six expert witnesses,

including an anthropologist, a minister, a psychologist, a

medical doctor, and a co-author of the Kinsey Reports, and

filed briefs submitted by 26 amici curiae.

Commonwealth v. Wasson, Ky., 842 S. W. 2D 487, 489-

90 at N. 1 (1992).

The prosecution, by contrast, “presented no witnesses,”

and offered “no scientific evidence or social science data.”

842 S. W. 2d at 490.®

Not surprisingly, upon such a record, the trial court

found the statute unconstitutional, and the Fayette Cir-

cuit Court affirmed that decision. 842 S.W. 2d at 488-489.

5 Weschler, H., Challenge of a Model Penal Code, 65 HarvarD

Law Review, 1103 (1952).

® However, “Fayette District Judge Lewis Paisley refused to

allow the county attorney to introduce any treatises on the sub-

ject of sodomy. A motion for separation of the defense witnesses

was also denied.” Moreover, “(Fayette Circuit] Judge Tackett

expressed the opinion that the sexual acts performed by consent-

ing adult homosexuals are necessary for them to enjoy a full and

satisfying sexual life.” Wasson, 842 S.W. 2d at 510 —

(Wintersheimer, J., dissenting).

5

The Kentucky Supreme Court then accepted the case upon

a direct submission bypassing the Kentucky Court of Ap-

peals. 842 S. W. 2d at 489. A sharply divided Kentucky

supreme Court affirmed by a 4-3 vote and invalidated the

state’s sodomy statute, over two strong dissenting opin-

ions. In its opinion, the majority noted that Kentucky

thus joined “the moving stream” of “change,” doing so “in

deference to the position taken by the American Law Insti-

tute in the Model Penal Code.” 842 S.W. 2d at 497-98.

Thus the Wasson decision as in this case also relied upon

the Kinsey Reports via testimony from its co-author, and

upon the ALI Model Penal Code.

Ill. America’s Law Order Changed From the Fixed

Principles of the Declaration of

“Endowed by Their Creator” to Man-centered

“Changing Views” Based on Evolving Law and

Evolutionary “Science-based Legal Reform.”

“A page of history is worth a volume of logic.”

JUSTICE OLIVER WENDELL Ho.mgs, Jr., New York Trust

Co. v. Eisener, 256 U.S. 345, 349 (1921).

From the birth of our Republic, “One Nation Under

God,” American common law rested on the foundation of

five centuries of English common law, particularly as set

out in the Commentaries of Sir William Blackstone, whose

legal foundation was declared to be:

the Law of Nature and the Law of Revelation {upon

which] depend all human laws; that is to say, no hu-

man laws should be suffered to contradict these.

William Blackstone, Commentaries On Tue Laws Or En-

GLAND, Vol. 1, at 42 (1769).

Since 1793, the U.S. supreme Court has referred to Sir

Williar. Blackstone’s Commentaries more than 272 times,

in 200 years, for direction in the law. There were 57 such

references between 1990 and 1996.

6

Following Blackstone, America’s Declaration of Inde-

pendence, the Charter of law, justice, and civil govern-

ment, was thus based upon “the Laws of Nature and of

Nature’s God.”” American Colonies and then State penal

codes also adopted much of the English common law and

prohibited “Offenses against Persons” and “Crimes against

Morals.” American Law was fixed on “truths” which are

“self-evident” which guaranteed certain “unalienable Rights,

... Life, Liberty, and the Pursuit of Happiness” which are

endowed from “their Creator.”

These fixed principles from our founding Charter, upon

which the U.S. Constitution is based, are capable of being

understood by We the People with resort to original mean-

ing—“the canon that a document is to be construed to ac-

complish the draftsmen’s intention”—a process of legal

interpretation that reaches back to English law of the thir-

teenth century.

Chief Justice John Marshall wrote that he could cite

ane Rnagheste smaglied Fp

7 The Declaration of Independence is the first ordinance in

the first volume of The Public Statutes at Large of the United

States o* America, printed in 1845 by the authority of the United

States Cv. *ress. Stat. 1-3 (1845). See also, Documents ILLustRa-

TIVE OF THE FORMATION OF THE UNION OF THE AMERICAN States, 69%

Congress, 1* Session, House Document No. 398 (1927).

8 Raoul Berger, Jack Rakove’s Rendition of Original Mean-

ing, 72 Inpiana Law JournaL (1997). Online version at

www.law.indiana.edu/ilj/v72/no3/berger.html

7

IV. Fixed American Penal Law Is Supplanted by

“Science-based Law Reform.”

(Ljaw cases can turn almost entirely on an understanding

of the underlying technical or scientific subject matter.®

In 1870, following the publication of Charles Darwin’s

“The Origin of Species,” Christopher Columbus Langdell of

Harvard University and that institution’s president, Charles

_ William Elliott, led a movement to infuse Darwinian prin-

ciples into law and education. Langdell and Elliott held

that since mankind and nature are not creations of a “Su-

preme Being,” but rather are continuously evolving, the

law must do likewise.?°

1890 distinguished Harvard Law graduate (1877) and

Boston attorney Louis D. Brandeis, assisted in founding

the Harvard Law Review and co-authored The Right to

Privacy, the most influential such article in American

legal history. “Privacy,” a highly controversial legal inno-

vation described “a common-law right to be let alone that

had not expressly been recognized by any English or Ameri-

can court,”!? which innovation is implicit throughout the

ALI’s Model Penal Code in regard to “Sex Offenses.” In

the 1950s, David Allyn reports, the ALI “attempted to shape

its Model Penal Code in accordance with Kinsey’s scientific

® Stephen Breyer, Associate Justice U.S. supreme Court, The

Interdependence of Science and Law, SctENCE Maaazine, 280;

537-538 (April 24, 1998).

10 Herbert W. Titus, Gop, Man AND Laws: Tue BreuicaL Prin-

CIPLES, at 130 (1994).

11 Samuel Warren and Louis Brandeis, The Right to Privacy,

_Harvarp Law Review (1890).

12 Robert C. Berring, Great American Law Reviews, Edited

with Commentary, p. 16 (1984); Morris L. Ernst and Alan U.

Schwartz, Privacy, THe Ricut To Be Ler Auong, (1962).

8

discoveries — by privatizing most moral questions.”® As

Brandeis’ 1890 Harvard Law Review began to simply “de-

fine anew” common law protections for the person and prop-

erty, similarly Professor Weschler’s 1952 Harvard Law

Review reports on the ALI’s attempt to merely “define and

clarify” the common law principles that exist in our coun-

try.”27

Louis B. Schwartz, ALI Reporter responsible for draft-

ing the “Sex Offenses” section of the Model Penal Code;

sought to distinguish between “private” and “public” sexual

behavior. Though “slippery,” he “felt that any behavior

which might somehow be classified as private could be

successfully deregulated.” Schwartz summed up the ALI’s

“privacy” innovation in “Sex Offense” law by saying; “Con-

trary to existing law . . . any behavior participated in by

small groups of consenting adults should be legal.”’®

Kinsey’s omission of the negative social impact of sexual

acts, while claiming grave social disorder due to traditional

rules of monogamy and chastity, played a critical role in -

the mid-century privatization of morality. By 1996, Profes-

sor David Allyn of Princeton University explained in detail

what escaped most judges and lawyers trained since 1960,

Sexual Behavior in the Human Male undermined the

assumptions of the dominant moral economy in two

ways. First it drew a sharp opposition between sci-

ence and sexual morality, between realism and ideal-

ism. Kinsey made it clearer that many American moral

16 David Allyn, Private Acts /Public Policy: Alfred C. Kinsey,

the American Law Institute and the Privatization of American

Sexual Morality, JouRNAL oF AMERICAN STUDIES, aT 407 (1996).

17 Robert Rothenberg, THE PLAmN-LANGUAGE Law Dictionary,

p. 19 (1981).

18 David Allyn, supra, p. 424.

9

values were grounded in false assumptions about hu-

man behavior. Because American private behavior

did not conform to public expectaticns, Kinsey sug-

gested that such expectations were therefore unrealis-

tic. Second, I would argue, Kinsey’s text aided the

privatization of morality in a more subtle manner by

down-playing the problem of public sexual expression.

The text gave the impression that sexual behavior

only occurred in the private space of the home. Sexual

Behavior in the Human Male was virtually silent when

it came to questions of public sexuality; this silence

served Kinsey's deregulatory ends ... This rhetorical

opposition allowed the Supreme Court to produce two

seemingly contradictory lines of argument in Roth v.

The United States (1957) and Griswold v. Connecticut

(1965). The first upheld the criminality of pornogra-

phy while the second established the sexual rights of

married couples. Both cases drew on the American

Law Institute’s model penal code’s distinction between

public and private sexual expression, which, in turn,

drew on the work of Alfred Kinsey.”

In 1923, two generations after evolution took root in

American law at Harvard, the American Law Institute, in

1923, began a study of the assumed “defects” in American

criminal law. The ALI’s Model Penal Code project, first

advanced in 1931 by the Joint Committee on Improvement

of Criminal Justice, composed of representatives of the

American Bar Association, th- American Law School Asso-

ciation, and the American Law Institute; see, ABA Rep.

25, 494, 513 (1931) was a private study without state or

federal legislative authorization. The ALI Model Penal Code

project received encouragement from President Franklin

Delano Roosevelt and funding from the Rockefeller Foun-

dation in 1950.”

1® David Allyn, supra, p. 407.

® Letter of President Roosevelt included in Report of the

Advisory Committee on Criminal Justice to the Council of the

American Law Institute dated January 30, 1935, 373-375, Ameri-

can Law Institute Archives, Philadelphia.

10

Psychiatrist and ALI advisor Manfred Guttmacher ex-

plained the 25-year delay from 1923 in the criminal code

In 1950 the American Law Institute began the monu-

mental task of writing a Model Penal Code. I am told

that a quarter of a century earlier the Institute had

approached the Rockefeller Foundation for the funds

needed to carry out this project, but at that time, Dr.

Alan Gregg, a man of great wisdom counseled the

Foundation to wait, that the behavioral sciences were

on the threshold of development to the point at which

they could be of great assistance. Apparently, the In-

stitute concluded that the time had arrived.

Manfred Guttmacher, M.D., Tue Roe or Psycuiatry ww Law,

INTRODUCTION, pp. Vv, vi (1968).

By the 1970s the ALI’s MPC was being widely referred

to and taught from the Appendix in Criminal Law text-

books in law schools throughout America as having “abol-

ished common law crimes.”

In 1962 the American Law Institute adopted the Model

Penal Code, portions of which appear as an Appendix

to this [criminal law text) Book...The Code has had a

very significant impact. In recent years 36 states have

enacted comprehensive new criminal codes, 5 others

have completed work on but have not enacted new

codes, and another 2 have revisions under way. These

{state criminal] codes draw heavily upon the Model

Penal Code, and most of them have followed its lead

in abolishing common law crimes."

21 Wayne R. Lafave, Mopern Crmana. Law: Cases, COMMENTS

AND Questions, at 46-47 (2™4 Edition, 1988).

11

Vv. The ALI Model Penal Code Is an Unreliable

Authority Upon Which to Decide This Case

Because of the Code’s Reliance Upon the

Fraudulent and Criminally Derived Kinsey

Reports.

The respected medical journal, The Lancet, reviewed

Dr. Reisman’s first book, Kinsey, Sex and Fraud (1990)

Dr. Judith A. Reisman and her colleagues demolish

the foundations of the two reports...The important al-

legations from the scientific viewpoint are imperfec-

tions in the sample and unethical, possibly criminal,

observations on children...The book goes beyond that,

however, for Kinsey, et. al, questioned an unrepresen-

tative proportion of prison inmates and sex offenders

in a survey of “normal” sexual behaviour...Kinsey, an

otherwise harmless student of the gall wasp, has left

his former co-workers some explaining to do.”

Dr. Judith Reisman’s research into the “scientific” ba-

sis for the ALI's MPC “Sex Offenses” section, and the Kinsey

Reports, has dispositively revealed, from the Kinsey au-

thors themselves, the data are fatally flawed.”

For 50 years the exalted validity of the Kinsey studies

derived primarily from the large sample claimed, possibly

18,000 subjects; however, Kinsey “used only a quarter of

the cases in his two reports, without notice.“

It will be shown there are many official published ad-

missions and acknowledgments of zoologist Alfred Kinsey

and his co-authors that their sex “science” is an unreliable

22 “Really Dr. Kinsey?,” 337 Tue Lancet 547 (March 2, 1991).

23 J. A Reisman, Kinsey: Crimes AND ConsEQuENCEs, (2000).

*% J. A. Reisman, Kovsey: Camas Anp Consequences, 50-53,

(2™4 ed., 2000). See also Arno Karlen, Sexuatrry AND Homosexu-

aurty, 456 (1971).

12

authority for any change in law or public policy. In fact,

Kinsey’s “methodology” for changing society's sexual life

was modeled after gall wasp studies. Kinsey said “The

techniques of this research [were] born out of the senior

author’s longtime experience with a problem in insect tax-

onomy. The transfer from insect [gall wasps] to human

material is not illogical,” and could be applied to any popu-

lation (Male volume, p. 9). Co-author and former Kinsey

Institute Director Paul Gebhard reported:

In the early stages of the research, when much inter-

viewing was being done at Indiana correctional insti-

tutions, Dr. Kinsey did not view the inmates as a

discrete group that should be differentiated from people

outside; instead, he looked upon the institutions as

reservoirs of potential interviewees, literally captive

subjects. This viewpoint resulted in there being no

differentiation in our 1948 volume between persons

(kept) a record of refusal rates—the proportion of those

who were asked for in interview but who refused.”

Kinsey Hagiographer Johnathan Gathorne-Hardy, re-

vealed that Kinsey never hired a statistician. “Frank

Edmondson, young astronomer” who had had “some rether

superficial statistical training” was Kinsey’s fake statisti-

cian. Clyde Martin “was no scholar” and had no such know!l-

edge. Said Edmondson, Kinsey “wasn’t a mathematician,”

in fact Kinsey “often got muddled between mean (average)

and median,” elementary statistical concepts.”

25 Gebhard, Gagnon, Pomeroy, and Christenson, Szx OrrEnp-

ERS, 31-33 (1965 emphasis supplied).

6 Johnathan Gathorne-Hardy, Aurrep C. Kinsey: Sex Tue

Measure Or At Tunas, p. 97, 98, 144 (1998).

13

Yet the Kinsey team regularly wrote and testified to

the “normal” or “average” nature of their male sample.

Within months after the Male Volume was published, Dr.

Kinsey was invited to testify before a judicial committee of

the California Legislature, regarding sex offense law. First,

he claimed that his decade of research reflected “normal

sexuality” to be found in the entire American male popula-

tion; “(Our research] has the advantage of having a back-

ground of the picture typical in the population as a

whole...”2’

Paul Gebhard undertook to “clean up” the data after

Kinsey’s death and in 1979, when most state penal code

revisions, including Texas’, were concluding, revealed that

of the 18,000 interviews, 5,300 White Males accounted for

the research base in the Male Volume. Of that 5,300,

2,446 were designated as convicts, 1.003 homosexuals, 50

transvestite, 117 mentally ill, 342 “Other,” 650 boys* (KKC,

p. 99), yielding 4,628 n= Aberrant and 873 n=“Normal.”*

Dr. Alan Gregg, director of the Medical Science Divi-

sion of the Rockefeller Foundation, funded Kinsey’s research

and Warren Weaver recorded Gregg’s concerns regarding

serious flaws in Kinsey’s data on May 7, 1951:

[Tihere has never been, in this group, any trained

mathematical statistician who comes within gunshot

of having the competence, training, and experience

which are required. In Dr. Kinsey’s own listing of his

staff (Progress Report, April 1, 1950) he says that Mr.

Clyde E. Martin ‘continues in charge of the statistical

~ 27 Testimony of Alfred C. Kinsey before the Assembly In-

terim Committee on Judicial System and Judicial Process of the

California Legislature, 1949, p. 133. Recorded in the Assembly

Journal, March 8, 1950.

28 NIMH Grant The Kinsey Data; Marginal Tabulations, 1979,

p. 3.6 Gebhard and Johnson claim theirs is a 5,460 White Male

Sample.

V4

handling our data (sic).’ His scientific stature has not

as yet caused him even to be listed in American Men

of Science, the latest edition of which contains about

50,000 names. Dr. Kinsey must approve highly of him,

for in 1951, he raised his salary by 36 per cent. In his

own diary record of a visit to Kinsey in July 1950, Dr.

Gregg said, under the heading of personnel: ‘Past and

present needs remain unsatisfied in point of... sta-

tistics.” This fault — this admittedly absolutely basic

fault — existed in the project in 1942, it has existed

ever since, there is no promise whatsoever that it will

cease to exist — and we do nothing about it.”

Moreover, Kinsey failed to allow for “volunteer error.”

As Dr. Abraham Maslow has noted:

[Vjolunteers will always have a preponderance of [ag-

gressive] high dominance people and therefore will

show a falsely high percentage of non-virginity, mas-

turbation, promiscuity, homosexuality, etc. in the popu-

lation.”

Finally, zoologist Alfred C. Kinsey was not the conven-

tional, middle-American family man, who was merely a

“disinterested” academic Indiana University, and the mass

media presented him to be. In 1997, Kinsey biographer

James H. Jones, reveals,

The man I came to know bore no resemblance to the

canonical Kinsey. Anything but disinterested, he ap-

proached his work with missionary fervor...He wanted

to undermine traditional morality, to soften the rules

of restraint...Kinsey was a crypto-reformer who spent

29 Warren Weaver, Desk Diary, May 7, 1951, pp. 4-5,

Rockefeller Archive Center.

30 Abraham Maslow, Test for Dominance-Feeling (Self-Es-

teem) in college Women, Tue JOURNAL OF SOCIAL PsycHoLocy 255,

270 (1940); Abraham Maslow, Self-esteem, Dominance, Feeling

and Sexuality in Women, 16 Tue JourRNaL or SociaL PsycHOLocy

259, 294 (1942)

15

his every waking hour attempting to change the sexual

mores and sex offender laws of the United States...In

Kinsey’s case, the personal was always political.”

Later Jones commented on how Kinsey’s own carefully

manufactured persona hid his “missionary fervor...to un-

dermine traditional morality” and his own sexual predilec-

tions which would have damaged his credibility and stopped

his mission to change the sex offender laws of the United

States:

There is no way that the American public in the 1940s

and the 1950s would have sanctioned any form of be-

havior that violated middle class morality on the part

of the scientist who was telling the public that he was

disinterested and giving them the simple truth....Any

disclosure of any feature of this private life that vio-

lated middle class morality would have been cata-

strophic for his career....For Kinsey, life in the closet

came complete with a wife, children, a public image...

that again he preserved at all costs. Kinsey’s reputa-

tion still in large measure rests upon an image of him

that he cultivated during his lifetime... .the official mys-

tique.*

It was safer to reveal in 1997 that Kinsey was a sado-

masochistic homosexual, than in 1950 before many sod-

omy laws changed via The Kinsey Reports and the ALI

MPC. Sexual harassment was rampant in his team and

his relationship with “statistician” Clyde Martin may ex-

plain why Kinsey allowed the Reports statistics to suffer:

The power relationship between Kinsey and then un-

married Martin ... was not exactly equal. Kinsey

%* James H. Jones. “Dr. Yes,” THE NEW YORKER, Septem-

ber 1, 1997, p. 100-101.

2% James H. Jones, interview in Tim Tate, Secret Histories:

Kinsey's Paedophiles. (Yorkshire Television (Channel 4), United

Kingdom, aired August 10, 1998.

16

was older, well established professionally, and Martin’s

employer. Kinsey worked hard at seducing this inee-

cure, anxious, and financially strapped young man.

Finally Jones reports that, “Kinsey concentrated on

negative eugenics, calling for a program of sterilization

that was at once sweeping and terrifying. “The reduction

of the birth rate of the lowest classes must depend upon

the sterilization of perhaps a tenth of our population.”®*

While Gore Vidal pronounced Kinsey the “most famous

man in the world for a decade” the Channel 4, British

Yorkshire Television documentary, “Kinsey’s Paedophiles,”

also confirmed Dr. Judith Reisman’s findings including how

Kinsey’s team collaborated with active pedophiles and the

resulting criminally derived pedophile “data,” became “Table

34,” on page 180 in Sexual Behavior in the Human Male.

Kinsey-favoring biographer James Jones admitted in the

British Yorkshire interview what was printed in Kinsey’s

own seminal research that children some as young as 2

months of age were used by “9” adult male subjects for

Kinsey’s human experiments:

j relied u ing, a pedophile] for the chapter

y+ ber pn omg hs sper me ... Many

of his victims were infants and Kinsey in that chapter

himself gives pretty graphic descriptions of their re-

sponse to what he calls sexual stimulation. If you read

those words, what he’s talking about is kids who are

screaming. Kids who are protesting in every way they

can the fact that their bodies or their persons are

being violated.”

31 James H. Jones, Aurrep C. Kinsey: A Private/Pus.ic Lire,

p. 393.

32 Td., at 809, FN 78 (1997).

33 “Secret Histories, Kinsey Paedophiles, supra. See also

Kinsey, infra, at 161 (noting “violent convulsions, groaning, sob-

bing, violent cries, with an abundance of tears (especially among

younger children.”)).

17

In addition to King’s data, until the Yorkshire investi-

gators located the criminal trial records and news reports

in Berlin, only a few in Kinsey’s inner circle knew about

the Kinsey Institute’s long-standing collaboration with Dr.

Fritz Von Balluseck, the Nazi pedophile, who contributed

his child abuse data (from roughly 1936-1956) to Kinsey’s

research database.** A sampling of German newspaper

accounts tell the story:

The Nazis knew and gave him the opportunity to prac-

tice his abnormal tendencies in occupied Poland on

Polish children, who had to choose between Balluseck

and the gas ovens. After the war, the children were

dead, but Balluseck lived.

(National-Zeitung, May 15, 1957].

Balluseck . . . corresponded with the American Kinsey

Institute for some time, and had also got books from them

which dealt with child sexuality. [Tagespiegel, October 1,

1957].

The connection with Kinsey, towards whom he’d showed

off his crimes, had a disastrous effect on [von

Balluseck]...[IJx his diaries he’d stuck in the letters from

the sex researcher, Kinsey in which he’d been encouraged

to continue his research .... He had also started relation-

ships ... to expand his researches. One shivers to think of

the lengths he went to. [TSP, May 17, 1957, emphasis

added]

Kinsey recorded these horrific events in his Male vol-

ume cloaked in scientific respectability:

Better data on preadolescent climax come from the

histories of adult males who have had sexual contacts

with younger boys and who, with their adult back-

grounds, are able to recognize and interpret the boys’

% J. A. REISMAN, supra., pp. 165-170.

18

experiences . . . 9 of our adult male subjects have

observed such orgasm. . .we have secured information

on 317 preadolescents who were either observed in

self masturbation, or who were observed in contacts

with other boys or other adults.*

VL. The Kinsey Reports’ Junk Sex Science Is

Authority for “Science-based” Legal Reform and

the Primary Authority for Decriminalizing

Sodomy Laws.

Kinsey’s Sexual Behavior in the Human Male appeared

in January, 1948 and Sexual Behavior in the Human Fe-

male followed in August, 1953 each with extraordinary

media coverage. The American Law Institute adopted The

Kinsey Reports’ findings, which included the conclusion

that 95% of “normal” American men, many veterans of

“the greatest generation,” would be classified as sex of-

fenders under the common law code in 1948. The Ameri-

can Law Institute concluded these state sodomy laws were

unenforceable and should be modified to take into account

‘man’s sexual evolution. “Regarding homosexuality, [ALI

Reporter] Schwartz cited the Kinsey Reports as evidence

of the frequency of homosexual activity and the senseless-

ness of trying to control it.”*7 Indeed, upon the Kinsey

“research” many state sodomy laws have been changed or

overturned.*

35 Alfred C. Kinsey, Wardell Pomeroy, Clyde Martin, SzxuaL

BEHAVIOR IN THE HuMAN Mag, p. 144 (1948).

3 “This is one of the startling observations of the Kinsey

group ... When a total clean-up of sex offenders is demanded, it

is in effect a proposal to put 95% of the male population in jail.”

Deutsch, Sex Habits of American Men, p. 121.

37 David Allyn, supra. 426 (1996).

38 Richard Green, SEXUAL SCIENCE AND THE Law, pp. 1, 5 (1992).

19

A. The Call for “Science-based” Legal Reform

A 1952 article in the Harvard Law Review by ALI’s

Chief Reporter Herbert Weschler advocated for revision of:

“ineffective, inhumane and thoroughly unscientific” state

criminal laws which, its author claimed, were not based on

the truth which had now become available through “objec-

tive” scientific pursuit.°® Attorney Morris Ernst, a few

months after the appearance of the 1948 Kinsey Report,

published one of five books which would be published ad-

vocating penal reform based on the “science” of the Kinsey

Reports, stating:

[V]irtually every page of the Kinsey Report touches on

some section of the legal code . . . a reminder that the

law, like our social pattern, falls lamentably short of

being based on a knowledge of facts.“

Based upon Kinsey’s biased and seriously flawed data,

the “Sexual Offenses” Art. 207, of the Model Penal Code

was constructed. ALI Reporter Morris Ploscowe parroted

Kinsey’s “scientific” findings:

These pre-marital, extra-marital, homosexual and ani-

mal contacts, we are told, are eventually indulged in ~

by 95 per cent of the population in violation of statu-

; tory prohibitions. If these conclusions are correct, then

it is obvious that our sex crime legislation is com-

pletely out of touch with the realities of individual

living and is just as inherently unenforceable as legis-

lation which prohibits . . . an activity which responds

to a wide human need.*!

89 Weschler, H., Challenge of a Model Penal Code, 65 Harv.

Law Review 1103 (1952) . va

_ © Morris Ernst and David Loth, American SexvaL BEHAVIOR

AND THE Kinsey Report, n. 28, 132 (1948).

“! Morris Ploscowe, Sexual Patterns and the Law, in Albert

Deutsch, Sex Hasrrs or AMERICAN MEN: A SymPpostuM ON THE KINSEY

Report, 126 (1948).

_ 20

In addition to this book by Albert Deutsch (Ed.), to

which Ploscowe contributed, three of the four others call-

ing for “science-based” law reform based on the new “sci-

ence” of the Kinsey Reports, were collections of essays of

luminaries in education, law, psychiatry, psychology, and

medicine. *”

B. Changing Standards Changes terms:

Section 207 of the ALI Model Penal Code, abandoned

discrete common law terms in favor of new scientific terms:

“Sexual Offenses,” first appeared in 1955, Draft 4.

Section 207.5, titled “Sodomy and Related Offenses,”

proposed that consensual sodomy with an “actor” 10 years

or older be classified a misdemeanor. Appendix A to sec-

tion 207.5 is titled Frequency of Sexual Deviation, and

consists of 21 quotations, 19 of which are taken from

Kinsey's book, Sexual Behavior in the Human Male (1948).

The ALI Model Penal Code Reporters quote Kinsey’s find-

ings that 72% of males experiment with mouth-genital con-

tact, 40 to 50% of farm boys have animal contact, “37% of

the total male population has at least some overt homo-

sexual experience to the point of orgasm between adoles-

cence and old age. This accounts for nearly 2 males out of

every 5 that one may meet.”

42 Rene Guyon, Tue Eruics or Sexuat Acts (1948); Morris

Ernst, AMERICAN SEXUAL BEHAVIOR AND THE KInsEY REporT, (1948);

Donald Porter Geddes and Enid Curie, Eps., Asour THe KINsEy

Report (1948); Jerome Himelhoch and Sylvia Fava, Eps., SEXUAL

BEHAVIOR IN AMERICAN Soctety (1948).

43 Model Penal Code, Draft 4, Section 207.5 (1955) Sodomy

and Related Offenses, appendix A, pp. 281-282. Quoting from

Kinsey's Male volume, pp. 371, 671, Figure 156 [page 625].

21

Cc. s data

Kinsey’ ae all present thinking

Although the authors of the ALI MPC accepted Kinsey’s

conclusions at face value, Kinsey’s data are more than fa-

tally flawed, and are not even scientific as the sample was,

according to Kinsey’s coauthors, never representative of

the American adult male population.

The ALI began a campaign to secure enactment of its

provisions as state law beginning in Illinois which adopted

the Code in 1961. Frank Horack, Jr., acting Dean of Indi-

ana University, writing in support of the Kinsey Reports’

impact on law, astutely predicted:

The principal impact of the Kinsey Report will be at

the level of the administration of the law. It will pro-

vide the statistical support which police officers, pros-

ecutors, judges, probation officers and superintendents

of penal institutions need for judging individual cases

. . . Officials will read it. Defense counsel will cite it.

Even when it is not offered into evidence, it will condi-

tion official action. Psychiatrists, psychologists, penolo-

gists, juvenile and probation officers all participate in

modern penal procedures — they will use the data

and their professional advice will be heeded by the

judge. Here the Report will control many decisions

and dictate the disposition and treatment of many

offenders.“

Just as Professor Horack looked forward, Carol Cassell,

when president of the American Association of Sex Educa-

tors, Counselors and Therapists (AASECT), looked back,

“ Report of the Illinois Commission on Sex Offenders, March

15, 1953, p. 9.

“ Frank E. Horack, Jr. Sex Offenses and Scientific Investiga-

_—~ 44 Iuuwois Law Review, 156, 158 (1950) (emphasis sup-

22

she confirmed The Kinsey Reports as the root of their pro-

fessional authority and success in the group’s monthly or-

gan, Contemporary Sexuality,

Look how we've used the Kinsey data. We've used it

for everything from assessing the stability of marriage

to raising children to trying to understand human

growth and development — not just sexual but also

psychological growth and changes over time.“

Concurrent with the publication of Indiana University’s

and the Kinsey Institute’s Male and Female volumes, a

number of states conducted ‘fact-finding” commissions to

study sex crime problems. Pomeroy states that Kinsey per-

sonally worked on “the revision of sex laws” with Illinois,

New Jersey, New York, Delaware, Wyoming, and Oregon

commissions. *?

In December 1949, Kinsey testified for an entire day

before the “California Subcommittee on Sex Crimes.”

Kinsey told the committee:

For the last 11 years we have had a research project,

as you know, underway at the university on human

sexual behavior . . . we find that 95 percent of the

[male] population has in actuality engaged in sexual

activities, which are contrary to the law.“

In 1951, the Illinois legislature funded a commission to

study the sex offender. Francis Allen chaired the commit-

tee that drafted the report submitted to the Illinois legisla-

ture. Under Section II, “Scientific Findings,” Allen writes:

“No specific reference to the Kinsey findings is made here

since these permeate all present thinking on this subject.

Allen also chaired the workgroup “Framework for Sex Of-

4 Cassell, C., October 1991. Contemporary Sexuality, Tur

AMERICAN ASSOCIATION OF SEx EpucaToRS, COUNSELORS AND THERA-

pists (AASECT).

47 Wardell Pomeroy, Dr. Kinsey AND THE INstrTruTe For Sex

REsEARCH, 210-11 (1972).

* Preliminary Report of the Subcommittee on Sex Crimes of

the Assembly Interim Committee on Judicial System and Judi-

cial Process, California Assembly, March 8, 1950, reported in

foreword, unnumbered.

23

fender Laws” to which Alfred C. Kinsey and Wardell

Pomeroy served as consultants.*®

A similar commission was conducted in New Jersey

and the report was facilitated by Paul W. Tappan, who

would be a Reporter for the ALI Committee which drafted

the Model Penal Code. Section II of the New Jersey report

is titled: “Sex Deviation: Its Extent and Treatment.” It

begins with quotations from Kinsey's Male volume. The

New Jersey Commission expressed its gratitude to Dr.

Kinsey and Morris Ploscowe for their “frequent and ex-

tended consultations.” ©

The New Jersey Commission’s report stated:

(Tyhere can be no real doubt that a very large number

- of the male population of New Jersey has engaged in

practices coming within the enumerations of our

present abnormal sex offender law, on the basis of

which they might be committed to one of our state

mental hospitals.*!

The significant influence of the Kinsey Reports is also

evident in the case at bar. The majority opinion in Bowers

v. Hardwick, 478 U.S. 186 (1986) noted that prior to 1961,

“all 50 states outlawed sodomy.” 478 U.S. at 194. It added

that the first state to decriminalize sodomy, Illinois, did so

in that year when it “adopted the American Law Institute’s

Model Penal Code, which decriminalized adult, consensual,

private, sexual conduct.” id., at 194, n. 7. The Texas Court

of Appeals cited the unreliable Kinsey Reports for the

proposition that only fifty percent of the population re-

mains exclusively heterosexual. Lawrence v. State, 41

S.W.3d 349, 353 n. 6 (Tex. App. - Houston [14 Dist.]

“ Report of the Illinois Commission on Sex Offenders, March

15, 1953, at 9.

5 Report and Recommendations of the Commission on the

Habitual Sex Offender as Formulated by Paul W. Tappan, Tech-

nical Consultant, February 1, 1950 at 12.

51 Td., at 18.

24

2001). The instant Petitioners also cited The Kinsey Re-

ports for this proposition. Brief of Petitioners at 12.

Louis B. Schwartz, author of the Sex Offense section of

the Model Penal Code, reviewed Kinsey's Male Volume in

the University of Pennsylvania Law Review in 1948. His

article provided the new language that was used to nor-

malize deviate sexual conduct for the American bench and

bar. Schwartz wrote:

reassuring

“redirect behavior” (Kinsey p. 660) - all these add up

to a denial that sexual “perversion” is an evil.™

Schwartz then pictures “the distant day when Ameri-

cans cease to regard minority morals as a legitimate object

of social coercion,” and suggests a covert and undemocratic

method for change in state criminal codes:

Although a number of new studies have now appeared

in an attempt to support Kinsey's discredited and debunked

“junk science,” the decriminalization of sod ‘cinated

in a single source — Indiana University’s Kinsey Reports.

52 Louis B. Schwartz, Book Reviews: Sexual Behavior in the

Human Male, 96 Untverstry or Pennsytvamia Law Review 917

(1948)

The ALI penal reform campaign appealed to the bench

and bar via states’ Law Journals, citing the Kinsey Re-

ports as the “scientific” authority to define normal and

therefore non-criminal behavior. The North Carolina Law

Review testifies to its readers:

Other states cite the Kinsey Report data to advocate

prostitution (Maine, 1976); boy prostitutes (Duke Univer-

sity, 1960); lightening sex crime penalties (Ohio, 1959);

legalizing homosexuality (South Dakota, 1968); “beneficent

concern for pedophiles” (Georgia, 1969); general revision

(Oklahoma, 1970); 95% of males are sex offenders (Oregon,

1972); young children are seducers (Missouri, 1973, Ten-

nessee, 1965); bias against judges “severe condemnation of

sex offenders” (Pennsylvania, 1952); and finally, the Colo-

rado Law Review ridicules American standards of virtue,

58 Schwartz, supra.

* Judy Potter, Sex Offenses. 28 Mamve Law Review 78 (1976);

Albert J. Reiss, Sex Offenses: The marginal status of the adoles-

cent. 25 Law AND CONTEMPORARY PRrosLEms 311-312 (1960); Phillip

E. Stebbins, Sexual Deviation and the Laws of Ohio 20 Omo

State Law JourNAL 347 (1959); Ronald P. Johnsen, Sodomy Stat-

utes—A Need for Change, Sovrn Dakota Law Review 395-396

(Spring, 1968); B. E. C., Jr. Pedophilia, Exhibitionism, und Voy

(Continued next page)

of Morality” ae ee iota por-

nographer Hugh Hefner. Claiming to be Kinsey's “pam-

phleteer,” Hefner writes to his legal audience,

Kinsey re that in some groups among lower so-

deh lcd ts to aiteatin meni 40 al 6 Gate

male who has not had sexual intercourse by the time

he reaches his mid-teens.©

Revision Commissions reported to state legislatures that

the Model Penal Code was their blueprint for complete

revision, generally occurring for the first time since state-

hood, across the nation.

In the rush to “science-based legal reform,” not all state

commissions accepted the sweeping revisions as an assumed

improvement in the “clarification of law.” In 1970 the

Michigan Journal of Law Reform published the report of

(Continued from preceding page) -

eurism: Legal Problems in the Deviant Society 4 Grorcia w

Review 152 (1969); Larry E. Joplin, Criminal Law: An Exami-

nation of the Oklahoma Laws Concerning Sexual Behavior, 23

Ox.aHoma Law Review 459 (1970); Edward N. Fadeley. Sex Crime

5% Hugh Hefner. The Legal Enforcement of Morality. 40

Universtry or Cotorapo Law Review 200 (1967).

fenses—An 5 > item yp Ay he

81 (1968-69); John C. Danforth, The Modern Criminal Code for

Missouri (Tentative Draft)—A Challenge Fulfilled and the Chal-

lenge

Kansas, 16 Kansas Law Review, 588 (1968).

27

the director of the Criminal Law Revision Commission in

California describing the advisory board’s reaction to its

“revision”:

. . . its product at first inspection struck most of the

members of the Board, unfamiliar with the Model Pe-

nal Code or another contemporary criminal law revi-

sion, as a strange and baffling departure from all of

the familiar landmarks of conventional law. The style

of the Model Penal Code, its rigorously logical order

and its general abandonment of common law termi

odes Ub ois EUs tt Gate Chere erties

educational and professional experience has been cir-

cumscribed by the eighteenth century common law

concepts still preserved in the criminal law of Califor-

nia. The staff, of course, was greatly influenced by

the Model Penal Code.”*’

Vil. CONCLUSION

“Alfred Kinsey was a moral revolutionary in

scientist's clothing. The science was bad, even bogus;

the man himself may now be forgotten; but the revo-

lution came to stay, with a vengeance. Kinsey’s mes-

sage—fornicate early, fornicate often, fornicate in ev-

ery possible way—became the mantra of a sex-ridden

age, our age, now desperate for a reformation of its

own.”

The Kinsey Reports, well known to sexual and legal

revolutionaries, are all but unknown to the current bench

and bar. Kinsey's once taunt “official mystique” sags now

with many troubling revelations, since 1997. However,

Kinsey’s reputation still must be maintained because his

Reports are the foundation of evolutionary sexuality world-

wide. Sexual anarchists everywhere need “Kinsey,” so an

57 Sherry, Arthur H., Criminal Law Revision.in California, 4

JOURNAL OF Law Rzerorm 433 (1971).

56 Joseph Epstein, Commentary, January, 1998. At

www.Britannica.com, downloaded March 31, 2001

—

28

image reconstruction effort is being mounted by Hollywood,

Myriad Pictures and Coppola’s American Zoetrope studios.

Reinventing Kinsey as “sexual pioneer” may continue to

cover up the ugly reality of the Indiana University zoolo-

gist, eugenicist, evolutionist, pedophile collaborator Kinsey

and his assault on the Law’s majesty, and maybe not.

The manufactured statistics of The Kinsey Reports

transformed “normal” human sexuality into another im-

age, which became indelible, when the American Law In-

stitute put The Kinsey Reports junk science into 1955 Draft

#4, “Sexual Offenses,” Section 207, of the Model Penal Code

and sent it to the bench and bar in every state where,

based on the ALI MPC and the Kinsey Reports, their long-

settled and fixed common law standard was abolished via

Prior to 1950 American Law largely prohibited any

sexual acts outside of marriage. Marriage was a public

contract, both civil and religious. Society had an interest

in the security and solvency of every marriage. Marriage

was to provide for the progeny of the union, secure the

orderly passage of property to the next generation and

prevent any burden to the State wrought by divorce, pro-

miscuity, perversion and “unnatural” acts.** Marriage

served the “public interest,” but the “experts” of the ALI

MPC dismantled the institution, based on the Kinsey Re-

ports, by recommending the legalization of fornication, co-

habitation, adultery, sodomy, etc., all suddenly “private”

behaviors between “consenting” individual(s). The new free-

59 Wessrer’s AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE

(1828). “The act of uniting a man and woman for life ; wedlock ;

the legal union of a man and woman for life. Marriage is a

~ contract both civil and religious, by which the parties engage to

live together in mutual affection and fidelity, till death shall

separate them. Marriage was instituted by God himself for the

29

dom, “Privacy,” was to be left alone to pursue one’s one

sexual “tastes,” according to Judge Learned Hand.

The ALI created a “myth of moral equivalents” and

equated degenerative acts with generative acts, as Science

scaled the fixed and known walls of Law and Biology pro-

tecting the “marital act,” to the unwalled world of “any-

thing goes” “sexualities.” The negative connotation to

Sodomite was transformed to the scientific sounding “ho-

mosexual,” and Sodomy, per os/per anum, was divided eu-

phemistically “oral sex,” (now not even considered “sex” by

many) and “anal sex.” Thanks to Kinsey’s pedophile find-

ings of erotic capacities for children from birth, child mo-

lestation has been softened to “intergenerational sex” or

“adult/child sex,” now rampant in Church and State.

The viability of the two standards can be measured.

ALI’s Schwartz declared of his MPC work; “We have tried

to base the criminal law with regard to sex offenses on

danger to society rather than moral indignation.”*' Since

the legal and sexual revolution has the “danger to society”

increased or decreased? The common law governed when

divorce was difficult and less prevalent and rates of sexual

disease and dysfunction much less. AIDS was nonexistent.

The public health reality reported by the CDC is that only

4 percent of infected males were exposed to AIDS through

heterosexual contact; while 56% report exposure from sex

with men, 22% from drug use (elective acts), 8% from both,

and 8 % not identified.”** Thanks to the ALI, the Law now

finds preying on children less offensive as the American

30

Bar Association reported in 1990 that 80% of child molest-

ers serve no time in prison.™

It is “self-evident truth” that private acts have enor-

mous economic and social public consequences. February

11, 2003, CIA Director George Tenet, in Congressional tes-

timony, called the new venereal disease, AIDS, a national

security threat which undermines economic growth, exac-

erbates social tensions, diminishes military preparedness,

creates huge social welfare costs, and further weakens be-

leaguered states: The virus respects no border. If, as Jus-

tice Brandeis said, law points the way,™ then the “public”

and “privacy” interests are not served by the imposition of

an evolutionary law order, polluted by fraudulent science,

upon the nation.

Accordingly, Amicus respectfully request that, for the

reasons above, the decision of the Texas Court of Appeals

must be affirmed as follows:

1. However, the incomplete reasoning and any reliance

upon the junk sex science used by the American Law

Institute’s Model Penal Code is entirely misplaced; or

in the alternative

2. Certiorari was improvidently granted;

3. Petitioners are overreaching in their demand that Bow-

ers v. Hardwick be overturned, which must be rejected;

4. Finally, this Honorable Court has a duty to recognize

that any and all state sodomy statutes overturned based

on the ALI Model Penal Code and the Kinsey Reports

junk “science” should be overturned.

63 AwEeRICAN Bar AssociaTION. 1990. The Probation Response

to Child Sexual Abuse Offenders: How Is It Working? Executive

Summary. State Justice Institute, Grant, SJI-88-llJ-E-015.

4 LZONARD BAKER, BRANDEIS AND FRANKFURTER: A Dual BioGra-

phy (1986) at 29: “...the conduct of life is to so large an extent

determined by the existing legal institutions, that an under-

standing of the legal system must give you a clearer view of

human affairs in their manifold relations, and must aid you in

com ing the conditions, and institutions by which you are

surrounded.”

31

Respectfully submitted,

Colonel Ronald D. Ray

Attorney for Amicus

First Principles, Inc.

3317 Halls Hill Road

Crestwood, Kentucky

502 241-5552