POLICE MAY NOT INCITE 1 CRIME, RULES RULES WASHINGTON APPEALS COURT JUDGE

Significant to report are the facts of conviction, followed by an appeal that was lost, and still another appeal which was won in a sex offense case in the District of Columbia not long ago. For the opinion of Judge George T. Washington of the . S. Court of Appeals, Washington, D. C., Hattachine salutes what citizens everywhere will agree upholds a vital intention in our laws. The report here uns written by Hack Fingal.

A recent court decision in the District of Columbia in the Brnesto Guarro case clearly shows a judicial attitude which slaps at the aggressive "agent provocateur" activities of police in plain clothes.

Reported in two Washington newspapers in late September, the Guarro case was also reported recently in the Mattachine Newsletter from Washington, D. C., as follows:

According to official reports, the officer in this case was in the rest room of a theater and saw Guarro leave and go to the mezzanine balcony. The officer followed and "paused for a few minutes to lean against the wall." Then Guarro approached him (and made advances). The officer inquired if Guarro would like to engage in a homosexual act. When, Guarro answered in the affirmative, the officer identified himself and made the arrest. Two other officers who were standing at a distance then accompanied them to police beadquarters, where a confession was wrung from Guarro.

In Municipal Court, Guarro was prosecuted for assault, which provides for a fine of "not more than $500" or imprisonment for "not more than 12 months," or both. Losing his case he appealed to the Municipal Court of Appeals in the District of Columbia, where he again lost, with Judge Quinn citing his previous decision in the Dyson case (1963), where he ruled that "a man who takes improper liberties with the person of another man (Guarro had been charged with touching the genitalia of the arresting officer in the theater situation above) without his consent is guilty of assault." In the Dyson case another judge (named Hood) wrote a dissenting opinion in which a dissenting opinion in which mattachine REVIEW

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he stated that while he thought a conviction should stand in sexual assault cases where women and children are assaulted by men, it should not stand in cases where a male plainclothesman and a homosexual or other male were involved.

The Court of Appeals, however, refused to review the Dyson case when the Guarro matter came up. The Dyson case was also shortly followed by another, the McDermott case, where a judge named Clayton, now retired, reversed the conviction of the lower court. Judge Clayton had ruled that the officer had consented to McDermott's sexual "assault" by encouraging him and "egging him on." The judge pointed to a famous Federal Court decision of 1921, which holds that "the first duties of officers of the law are to PREVENT, not to punish crime. It is not their duty to incite to and CREATE crime for the sole purpose of its prosecution and punishment." (Capitals supplied.)

But getting back to Guarro, after losing two court battles he next appealed to the U. S. Court of Appeals, where Judge George T. Washington, who wrote the opinion, ruled in october in Guarro's favor. The officer, said Judge Washington, by his actions and words, gave "apparent consent" to Guarro's overtures. He further stated that where anyone, including a pólice decoy, is competent to give consent, there can be no a88ault. And he contrasted the use of decoys in homosexual cases with their use in narcotics cases, pointing out that narcotics traffic seriously affects all society, where most homosexual activities do not.

As a matter of information only, sexual assault and battery generally referred to as "indecent assault") is usually a misdemeanor, although in some places, among them California, it is a felony, and ag seen above, carries a heavier penalty than soliciting, which is more often charged.

Soliciting draws a fine of "not more than $250 or imprisonor both in the District of ment for not more than 90 days, Columbia. Strictly speaking, the assault is the attempt and Sexual assault and battery the battery is the completed act. consists of touching sex organs or the breasts (in a woman), kissing, fondling, leering, groping, caressing, exposing genitalia, etc. It must be offensive to the other person and it must be done purposely. But any touching, however slight, may constitute battery. Unless there is fraud, a breach of the (Continued on page 44)

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