# Amicus Curiae Brief — Lawrence v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A40 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 558 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A40. Public record. Not legal advice.