Sodomy Laws - History of Sodomy

The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2005

American Samoa

The Victorian Morality Period, 1873-1948

The Territory of American Samoa was acquired from Germany by the Convention of 1899 ¹ but sodomy never was a criminal offense until the Samoan legislature was given home rule. ²

Period Summary: This distant territory, heavily Polynesian, remained a land outside the consciousness of most of the country. The Polynesian culture’s acceptance of homosexuality showed in the lack of local regulation of it, but the U.S. Congress, technically its legislature through this time period, failed to enact a criminal code for the territory. For more than six decades from the time of its acquisition, sodomy remained legal.

The Kinsey Period, 1948-1986

The first sodomy law was enacted in 1963 ³ and was a verbatim adoption of the law of Georgia with a penalty of up to 10 years for "carnal copulation against the order of nature, by man with man, or in an unnatural manner with woman[.] ⁴ Thus, Lesbians could not be prosecuted in the territory.

A comprehensive criminal code revision adopted in 1979 ⁵ redefined sodomy so as to exclude consenting adults from coverage, with the age of consent set at 15. ⁶ Common-law crimes were abrogated. ⁷ There is no case law prior to the decriminalization.

Period Summary: Once Congress exercised criminal jurisdiction over the territory, morals of another culture were superimposed on it. The sodomy law of 1963 was a verbatim enactment of the Georgia law, leading one to believe that a Georgian in Congress authored the code. Because of the unusual wording of the Georgia (and hence American Samoa) sodomy law, Lesbians could not be prosecuted, but both Gay men and heterosexuals could. Once home rule powers were given to the territory, it reverted to its traditions and repealed the law.

The Post-Hardwick Period, 1986-Present

Period Summary: There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution.

Footnotes

¹31 Stat. 1878, signed Dec. 2, 1899.

² Correspondence from Dennis McKay, Assistant Legal Counsel to the American Samoa Legislature, May 20, 1991.

³ Public Law 8-3, enacted Feb. 21, 1963.

⁴ §26-5902, Georgia Code 1933.

5 Public Law 16-43, enacted July 9, 1979, effective Jan. 1, 1980.

6 Id. at 59, §1105. This was recodified as §46.3611 in the American Samoa Code Annotated (1981).

⁷ Public Law 16-43, §2. Recodified as §46.3104 in the American Samoa Code Annotated (1981).

American Samoa

• Statute: Repealed 1979

History