Even "gross indecency" between males, however
privately committed, has been since 1885 a penal offense.[270] The clause
is open to criticism. With the omission of the words "or private," it
would be sound and in harmony with the most enlightened European
legislation; but it must be pointed out that an act only becomes indecent
when those who perform it or witness it regard it as indecent. The act
which brought each of us into the world is not indecent; it would become
so if carried on in public. If two male persons, who have reached years of
discretion, consent together to perform some act of sexual intimacy in
private, no indecency has been committed. If one of the consenting parties
subsequently proclaims the act, indecency may doubtless be created, as may
happen also in the case of normal sexual intercourse, but it seems
contrary to good policy that such proclamation should convert the act
itself into a penal offense. Moreover, "gross indecency" between males
usually means some form of mutual masturbation; no penal code regards
masturbation as an offense, and there seems to be no sufficient reason why
mutual masturbation should be so regarded.
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