Homosexual offenders vs. adults are adult males who made homosexual overtures to, or had sexual contact with, males aged sixteen or more. As in the case of other homosexual offenders, the number of incestuous or forced cases is so small that they have not been made into separate categories of offenses, but are included and identified within die group of homosexual offenders vs. adults.
The social problem posed by the homosexual offender vs. adults is the same as that of the heterosexual offender vs. adults—namely, what jurisdiction has society over a sexual relationship between consenting adults? In the case of homosexuality, where there are no reproductive consequences to form a legitimate concern of society, this question is especially acute. Rather than launch into a lengthy discussion at this point we may summarize by stating that the law against adult homosexual activity is designed not for the protection of person or property but for the enforcement of our cultural taboo against homosexuality.
While all homosexual behavior, even if it does not involve physical contact, is illegal in most states, we are aware that there is a strong selective factor that determines who among those with homosexual behavior are arrested and convicted. This selective factor is not evident in the statutes or in the courts; it is operative primarily among the police. It is, in essence, our cultural concept that sexual techniques indicate who is a “real” homosexual and who is not. This concept has become a part of psychology and psychiatry, giving rise to the distinction between “active” and “passive” homosexuals. If a policeman discovers individual A masturbating individual B or with B’s penis in his mouth, individual A is certain to be arrested and charged; however, there is a fair possibility that B will not be arrested, but released after a scathing reprimand. The police attitude seems to be that individual A is a proven “fairy” or “queer” because he was stimulating B, whereas B is simply an ordinary person with a regrettable but understandable tendency toward sexual opportunism. Yet, illogically, if the policeman finds B inserting his penis in A’s rectum, this attitude is unshaken and A is still considered the homosexual. Apparently the crux of the matter is this: the man who is bringing the other man to orgasm is the “real” homosexual; the man being brought to orgasm is not. To put it another way, the policeman may feel that seeking an orgasm is not really blameworthy even in a homosexual situation, but that being interested in bringing another male to orgasm is unmitigated perversion. Since alternate stimulation is commonplace in homosexual relationships, the question of who is arrested often depends upon the moment at which the officer appears on the scene.
This attitude is widespread. We have interviewed many men who disapproved of homosexuality and hotly denied homosexual activity, but freely admitted that they had been brought to orgasm by other males. Such men felt that since they made no attempt to bring the other man to orgasm they could not be said to have displayed any homosexual behavior.
In the heterosexual sex-offense categories we have ordinarily differentiated between behavior involving physical contact and behavior not involving contact, the latter constituting a discrete group. In the homosexual-offense categories, however, both contact and noncontact behavior have been considered together. Explanation of this seeming inconsistency has been delayed until now, since it is only in the homosexual offenders vs. adults group that noncontact cases constitute any appreciable percentage of the total cases (21 percent).
There are several reasons why, in the homosexual groups, the non-contact cases have been considered with the contact cases. In the first place, homosexual solicitation is usually given some vague label (e.g., “disorderly conduct,” “public indecency,” or even simple “vagrancy”) which gives no clue to whether or not there was physical contact. The brief official record is also frequently no more helpful than the charge itself; it will simply be a statement that the subject made a homosexual approach to someone. The subject himself, while satisfactorily explicit in instances where specific sexual activity had begun, often neglects the details of a solicitation that did not result in specific activity. A typical subject’s description of a solicitation would be, “I propositioned this guy in a subway toilet, and right away a cop grabbed me.” Since we know that some physical contact is common in homosexual solicitation (e.g., a hand on the thigh or on the clothed genitalia), and since we know that were it not for interruption a high percentage of solicitations would have led to physical contact, we are not disturbed at the necessity for combining contact and noncontact cases.
Further justification for combining them exists in the social philosophy behind the law and its enforcement. Society is not interested in curbing heterosexual solicitation unless it is of an unsuitably young person or unless it is offensive in being overly explicit, repetitious, or involves physical contact. The latter is an important point: ordinarily a stranger will not be arrested for saying, “Hey, beautiful, what are you doing tonight?” but if in addition he touches the female he is immediately open to arrest. On the contrary, in homosexual solicitation society is rather indifferent to whether the overtures include contact; the simple fact that the solicitation is a homosexual one makes the solicitor legally vulnerable. In brief, with regard to the heterosexual, society necessarily makes fine distinctions that we consequently follow in this study, but with regard to the homosexual, society is inclined simply toward a single all-inclusive prohibition.
Lastly, the combining of homosexual contact and noncontact cases has a psychological justification. In the heterosexual sphere there are some males who derive considerable satisfaction from noncontact behavior directed toward females. Exhibitionists and peepers are the best-known examples, but there are others who obtain gratification from making obscene telephone calls or remarks, or writing obscene letters. In the homosexual, however, individuals who obtain sexual gratification without physical contact are essentially nonexistent. Where, in the homosexual, sphere, is there the counterpart of the peeper or telephone caller? True, there may be exhibition of genitalia, but this is confined to toilets, locker-rooms, and other situations where genital exposure is socially sanctioned, and such deliberate genital exposure is not a source of gratification in itself (as is often true in the heterosexual), but is simply a mode of solicitation.
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