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HOMOSEXUAL ORIENTATION RULED NO BASIS FOR PROVING DEFENDANT MORE LIKELY TO COMMIT ACTS OF HOMOSEXUALITY

From Farin County, California, recently came a significant ruling on the admissability of evidence of "a homosexual orientation" in criminal trials where it is advantageous to the prosecution to show thất such predilection would be conducive to oroof that defendant is therefore prone to commit the act for which accused.

The following comment has been extracted from the printed brief in the case of The People, Appellant, Robert Giani, Respondent, Crim. No. 3233, 1st Dist., Div. One, Oct. 31, 1956. The raragraphs give in legal language the rulings upon which the granting of a new trial was affirmed:

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[1] Witnesses-Cross-examination-Defendants in Oriminal Oases. -Where a defendant on trial for sex perversion in violation of Pen. Code, § 288a, denied the charge in his direct examination and no inquiry was made as to whether his sexual makeup was homosexual or heterosexual, it was improper to ask him on cross-examination whether he was a homosexual on the date of the alleged offense.

[2a, 2b] Sodomy-Evidence.-In the absence of supporting expert medical testimony, there is no sound basis for entertaining a presumption or an inference that every homosexual is psychobiologically predisposed or compelled to commit the acts of sex perversion proscribed by Pen. Code, § 288a.

[S] Witnesses Cross-examination-Defendants in Criminal Cases. -A defendant on trial for sex perversion in violation of Pen. Code, § 288a, is not required to support his objection to a cross-examination question as to his homosexuality by demonstrating that not every homosexual is psychobiologically predisposed or compelled to commit the proscribed act; rather it is for the cross-examiner to show that homosexuals are so predisposed.

[4] Criminal Law-Sex Psychopathy.-The Legislature has not declared that every homosexual is a sexual psychopath who

[1] See Cal.Jur., Witnesses, §73; Am.Jar., Witnesses, §§ 820, 651.

McK. Dig. References: [1] Witnesses, § 120(2); [2] Sodomy, 810; [3] Witnesses, § 120(1); [4] Criminal Law, § 236.1; [5, 6] 6 Sodumy, § 2; [7] Criminal Law, § 393(6); Sodomy, § 9.

is defined as a person affected, in a form predisposing to the commission of sexual offenses and in a degree constituting him a menace to the health and safety of others, with any of the following conditions: mental disease or disorder, psychopathic personalty, marked departure from normal mentality (Welf. & Inst. Code, § 5500); and a person might be affected by one or another of such conditions but not in a form predisposing him to commit sexual offenses, nor in a degree constituting him a menace to the health or safety of others. [5] Sodomy-Definitions.-In the absence of expert medical testimony on the subject, the word "homosexual" will not be equated with the term "sexual psychopath."

[6] Id-Elements of Offense.-No particular purpose, motive or intent is a necessary element of the offense of sex perversion denounced by Pen. Code, § 288a.

[7] Oriminal Law-Evidence-Other Crimes: Sodomy-Evidence. -Evidence of other similar crimes is not ordinarily admissible to prove specific intent unless the intent committing the act is equivocal or it is claimed by defendant that the act was the result of mistake, accident or inadvertence, or the intent is otherwise denied; and evidence of a personality trait or quality, such as homosexuality, may not be admitted as showing a predisposition to commit the act of sex perversion proscribed by Pen. Code, § 288a.

APPEAL from an order of the Superior Court of Marin County granting a new trial. Carlos R. Freitas, Judge. Affirmed.

In the comment, the ruling stated: "We are mindful of Edmund Burke's classic utterance in his Second Speech on Conciliation with America: 'I do not know the method of drawing up an indictment against a whole people.' Equally true, we think, would be the statement 'You cannot indict an entire segment of the ponulation. Yet, it would seem, that is "recisely what the challenged question ('Were you a homosexual on the date of the offense?') does.

"Perhaps we could extress it more clearly were we to assume the charge to be that of rane, 'accomplished with a female, not the wife of the perpetrator' (Penal Code Sec. 261), and that the prosecutor asked the defendant upon cross-examination 'Are you a heterosex. ual?' the contention being that every heterosexual is of a 'psycho-biological' make-up which predisposes, indeed comels,' him to commit rape."

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