First, proof of the act. In the absence of eye witnesses, it has been held that foreign substances such as sperm or fecal matter are proofs that support a judgment of conviction. Anal lacerations and foreign lubricants are not infrequently used as corroborative evidence.

Where eyewitnesses are used the usual criminal law rules with respect to accomplices apply. That is, the uncorroborated testimony of an unwilling partner will support a conviction, but the uncorroborated testimony of an accomplice will not, as in all criminal cases, testimony of an accomplice must be corroborated to sustain a conviction. Who is an accomplice is a question for the jury under proper instruction from the court. A few years ago there were three important decisions on this point. Briefly, the cases held that ordinarily a child under 14 is not regarded as an accomplice.(13)

There is an appellate decision you may find interesting. It was a case involving three physicians, a case, I hasten to add, where the role of each physician was confined to that of expert witness. The defendant pleaded guilty and made an application for determination of sexual psychopathy. The court appointed a panel of three experts and they gave him a 2-1 decision. The trial court reached a conclusion opposite to that of the majority of the experts and the trial court's right to go counter to the experts was upheld by the reviewing court,(14)

We will look at one more phase of the subject before concluding. What is a violation? In a prosecution against the active party it is of course no defense(15) to show the passive party consented because the act itself is a crime. It is a crime like adultery, rather than rape or battery. However, it has some resemblances to rape, for neither requires proof of emission and in both there must be some proof of penetration, no matter how slight.

The problem of proof of penetration can perhaps best be illustrated by two recent cunnilingus cases although each of these cases was based on a heterosexual incident. In one known as the Angier case(16) the court held: "The word copulation has never had the meaning of a mere contact. A mere contact, either by a licking or a kissing cannot be construed to mean a copulation." In the later, Coleman case(17) the conviction was upheld and the Angier case distinguished for the reason that in the Coleman case there was testimony that the act was continuous for a period of five to ten minutes. Logically, of course, the time element shouldn't be so important, but since these are the only reported cases in California, we should be grateful for at least this much guidance.

In concluding, I desire to point out that the courts generally try to give defendants in such cases, at least those who have no records on the particular or related sexual offenses, careful consideration. This is particularly true of the appellate courts who have stated on more than one occasion that they believe they should look very closely into the stenographic record of the trial, since the crime is an offense easily charged and difficult to defend, and because the proof is often based on testimony of accomplices, a type of testimony always to be regarded with suspicion, (18)

References:

(1) G. Legman, in his Glossary to Henry's SEX VARIANTS, Vol. II, ascribes the origination to Binkert.

(2) Dr. A. W. Herzog, "Medical Jurisprudence", p. 570

(3) Herzog, Ibid p. 565

(4) "Studies in the Psychology of Sex," Vol, on Sexual Inversion, p. 343

(5) Studies in the Psychology of Sex," Vol, on Sexual Inversion, p. 343 (6) Ellis, Ibid, p. 350

(7) Jahrbuch fur sexuelle Zwischenstufen, April, 1913