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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

Arizona
 "Sodomy has been considered wrong since early times in our civilization."

The Post-Revolution Period, 1776-1873

When the Arizona Territory was organized in 1863, 1 it was given all the laws of the New Mexico Territory, 2 which included a common-law reception statute. Since England had lowered the penalty for sodomy from death to life imprisonment just two years before the Arizona Territory was organized, this made life imprisonment the compulsory sentence for sodomy.

In 1864, the legislature passed a criminal code that included a sodomy law. 3 The penalty was set at five years-life, with a common-law definition. 4

Period Summary: Arizona recognized sodomy as a crime from the time it was given separate status from the New Mexico Territory. The common-law term "crime against nature" was used, but there is no evidence of prosecutions in the territory during this time.

The Victorian Morality Period, 1873-1948

In a new code adopted in 1901, 5 common-law offenses were abrogated. 6

In its first constitution from 1910, Arizona enacted a completely worthless right to privacy provision, taken verbatim from Washington’s pioneering worthless privacy provision. It reads:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law. 7

As written, any statute, enacted for any purpose whatever, can be used to override privacy rights.

The first reported case in Arizona was Weaver v. Territory, 8 from 1912. The unanimous decision was that an act of fellatio did not constitute an offense under the law. Justice Henry Ross, writing for the Court, said

We greatly regret that our statute is not broad enough to cover the facts of this and like cases, and express the hope that our Legislature will extend its terms. 9

The Arizona legislature acted faster than any other in the nation in response to a plea from a court to extend the sodomy law to cover fellatio. Less than seven months later, a law was in place. In 1913, the legislature adopted a statute 10 for the recompilation of state law. One provision denied the compiler "any power to change or modify or make any law or laws," 11 but that was ignored. The sodomy law was changed to include "the penetration of the mouth of any human being by the organ of any male person," 12 the penalty was reduced to one to five years, 13 and the crime was considered complete upon proof of penetration only. 14

Another new law adopted in the Code was that a wife was considered competent to testify against her husband, but not vice versa, in a trial for "the crime against nature, or any similar offense[.]" 15

The absence of the coverage of cunnilingus from the 1913 revision was noticed and corrected with a 1917 statute 16 that any person

who shall wilfully [sic] commit any lewd or lascivious act upon or with the body or any part of member thereof, of any male or female person, with the intent of arousing, appealing to or gratifying the lust or passion or sexual desires of either of such persons, in any unnatural manner, shall be guilty of a felony and shall be imprisoned in the State prison not less than one year nor more than five years. 17

In 1933, the Arizona Supreme Court decided Dutzler v. State. 18 This case concerned whether or not a boy of 14 was competent to testify as a witness. The Court decided that he was, but stated the sexist view that it was "rather unusual" that the boy’s father knew the date of his son’s birth, as he had testified in the trial. Presumably, this was information that was supposed to be within the province only of mothers.

The Arizona Supreme Court decided the case of State v. Farmer 19 in 1944. A trial court certified a question to the high court for an answer, namely whether the language of the 1917 "lewd and lascivious act" statute was defined clearly. The Court unanimously found that the law used "common everyday words, with no hidden or mysterious meaning attached to them." 20 The Court also added that "the act defining the offense is constitutional." 21

The issue of privacy was raised in the fascinating case of Faber v. State, 22 decided later in 1944. This apparently was the first sodomy case in the nation specifically to raise the right to privacy. Adam Faber was investigated by Phoenix police for possible violation of narcotics laws. When they arrived at his front door, no one appeared to be home, so they went to the back door. One officer, James Wallace, noticed a screened sleeping room and he

heard voices in this room. The language being used was obscene indicating, he thought at first, that a difficulty was taking place inside. He testified that the conversation he heard between the two men showed that a vicious act was occurring between them. 23

Wallace then called the other officers over and they all voyeuristically listened for another five minutes before bursting in on Adam Faber and Howard Wojack. Wojack was found "lying on his back in the bed" and testified that Faber had asked him to use the language that he did. 24 An aside for the obvious question. Faber obviously was fellating Wojack, and apparently liked hearing abusive language from the fellatee during the procedure, but the police swore that they heard a "conversation" between the two during the act. How one talks and performs fellatio at the same time is a mystery. Wojack, a soldier Faber picked up downtown, was not prosecuted, presumably because he was taking the "male" role in fellatio. Faber challenged his conviction on the grounds of the warrantless search and that "the privacy of his home" had been invaded. 25 The Court rejected this challenge because the police could tell through "the sense of hearing" that a crime was in progress, and this justified the immediate, warrantless arrest. 26 The trial court had forbidden a cross-examination of Officer Wallace regarding alleged warrantless raids he apparently was well-known for conducting on local hotel rooms. This was called "immaterial" to the case and the Supreme Court sustained the ruling. 27 Faber also challenged his solo prosecution, but the Court dismissed his claim saying that

there is no provision in the Penal Code of this state requiring that all persons concerned in the commission of a crime must be convicted or all will be acquitted. 28

That, of course, did not answer Faber’s claim. He questioned why Wojack had not been prosecuted, whether or not he was acquitted or convicted. The Supreme Court obviously was so outraged at the consensual act of fellatio that all of these violations of Faber’s rights were overlooked.

Period Summary: Arizona became one of the more restrictive jurisdictions concerning sodomy during this time. Although common-law crimes were abrogated, the common-law term "crime against nature" continued to be used, and the law was expanded to include fellatio, then cunnilingus. Convictions uniformly were sustained by the appellate courts. The nation’s first sodomy case raising even a rudimentary privacy claim arose in Arizona during this period, but that claim was ignored by the Arizona Supreme Court.

The Kinsey Period, 1948-1986

In 1951, the Arizona legislature passed three laws that cracked down on sexual offenders of the homosexual type. The first was an emergency law 29 requiring all persons convicted of sodomy or lewd or lascivious act, "or other offense involving lewd or lascivious conduct" to register with their county sheriff, and to report all changes of address to the sheriff. Failure to do so was a misdemeanor. 30

A law also was enacted 31 that defined any person who "loiters in or about a public toilet in a park" as vagrant and thus subject to up to six months in jail and/or a fine of up to $300. 32 If the person had previously been convicted of violating the sodomy or lewd or lascivious act laws, "or any other offense involving lewd or lascivious conduct," then the penalty was raised to a maximum of five years in prison. 33 The law was declared an emergency to preserve the "public peace, health, and safety." 34

The sodomy law also was adjusted in 1951. 35 The reference to the use of the male organ in the mouth was eliminated. 36 The penalty was raised from 1-5 years to 5-20 years 37 and this law also was declared an emergency, for the same reasons as the preceding law. 38

A few months later, the Arizona Supreme Court got the case of Gusick v. Boies 39 that decided how high bail could be set for accused sodomites. The Court decided that $75,000 for each of two counts of sodomy "constituted a clear abuse of discretion" and ordered the bail lowered to $30,000 for each count. 40

In 1953, the Court faced the case of State v. Potts, 41 in which the defendant had been convicted of two counts of fellatio and acquitted on several "lesser offenses" under the lewd or lascivious act statute. 42 However, the fellatio convictions were returned under the state’s sodomy law. The unanimous decision of the Court was that, "[h]owever much we dislike to agree" with the defendant that fellatio was not indictable under the sodomy law as amended in 1951, he had to go free. 43 The act of fellatio had to be prosecuted under the "lewd or lascivious acts" statute, but since he was acquitted of all counts under that law, he was free to go.

Defendant Gusick returned to the Supreme Court in its next sodomy case, State ex rel. Jones v. Superior Court, 44 from 1955. The Arizona Supreme Court undid a lower court’s efforts to free a man from prison on a sodomy charge. Gusick pleaded guilty to 20 counts of fellatio and received a sentence of 3-5 years on each count, to be served consecutively, guaranteeing him 60-100 years in prison for consensual sexual activity. 45 Gusick not only challenged the sentence, but also raised numerous apparently frivolous points. The challenge to the sentence was dismissed by the Court because state law permitted a judge to direct that sentences run consecutively. 46 He refused to give up. In 1956, he was the subject of two cases two weeks apart, both rejected by the Arizona Supreme Court. In the first, 47 the Court refused to grant him a writ of habeas corpus. Another petition on the same issue was rejected by the Court, claiming that there were "no legal grounds" for issuance of the writ. 48 The U.S. Supreme Court also refused to intervene. 49

In 1956, Arizona enacted a unique statute 50 providing that any

person, except in the case of a minor by the parent, who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any child under the age of fourteen years by any means whatsoever with intent to hold or detain, or who holds or detains such child for the purpose of raping or committing sodomy, or lewd or lascivious acts upon the person of such child, or a person who aids or abets any such conduct, is guilty of a felony. 51

The penalty was set at life without parole if the child was harmed and 20-50 years with no parole until 20 years if there had been no harm. 52 The law also had an emergency clause so that it would take effect immediately. 53 By the wording, parents were exempt from abducting their children for sexual purposes.

Also in 1956, the Arizona Supreme Court faced the curious case of State v. McDaniel. 54 High school teacher Winston McDaniel had been arrested on a charge of fellatio with a 14-year-old male he picked up in a café. The chief of police in the town of Coolidge was permitted to testify, over objection, in McDaniel’s trial that he

was curious to know if a person—or, rather, if he had ever taken any steps to seek medical help in helping him to overcome his proclivity or desires for having unnatural sex acts with persons of the same sex as he. 55

The police chief apparently did not explain what "natural" sex acts with persons of the same sex would be. McDaniel allegedly told the police chief that he had "been given shots by a physician" and that

after getting these shots his condition that we had been discussing in the car was helped and relieved greatly until apparently the shots wore off prior to the incidents that had transpired at this particular time for which this hearing was being held. 56

The admission of this testimony was upheld, 57 as was that of three other teenagers who testified to past importunities on the part of McDaniel for fellatio with them. The logic of the Court in upholding the admission of acts not charged in the information was that

[c]ertain crimes today are recognized as stemming from a specific emotional propensity for sexual aberration. The fact that in the near past one has given way to unnatural proclivities has a direct bearing upon the ultimate issue whether in the case being tried he is guilty of a particular unnatural act of passion. The importance of establishing this fact far outweighs the prejudicial possibility that the jury might convict for general rather than specific criminality. 58

Also overlooked by the Court was a statement made by a newspaper reporter in the presence of some jurors to the defendant’s attorney: "I do not like the company you keep." The state claimed that this was "a joke" and the Supreme Court concluded that this point was "much ado about nothing" and affirmed McDaniel’s conviction. 59

Another challenge to the Arizona law’s vagueness was dismissed by the Supreme Court in Lovelace v. Clark 60 in 1957. Curtis Lovelace was seeking release via habeas corpus based on the vagueness of the "lewd and lascivious acts" statute. After noting that they had sustained the law in a similar challenge 13 years earlier and, after listing a number of cases from around the country that rejected vagueness arguments about their laws, the Court concluded that "there is no merit" to Lovelace’s appeal. 61

The next reported case was from 1962, State v. Sheldon. 62 Philip Sheldon had been arrested in Phoenix after suspicious police saw him and a 15-year-old male in a car at four o’clock in the morning. They released the defendant after a search of his car found only a beer carton, but the teenager, who voluntarily submitted to fellatio with Sheldon twice and associated with him, went to the police and told them that Sheldon "is a queer." With this news, Sheldon was stopped and taken to the police station for questioning. 63 At the station, he acknowledged having "no sexual desire for women, that men were attractive to him" and, while acknowledging "probably" having some "tendencies toward other men," Sheldon told the interrogating police officer "you probably do too." The officer’s reaction was not recorded. 64 The Supreme Court believed that the teenager was an accomplice, and that his testimony needed corroboration. They believed that the circumstantial evidence was sufficient and said that

admissions of homosexual tendencies to police interrogators may be corroborative of the commission of sex offenses. 65

In the 1966 case of State v. Alkhowarizmi, 66 the Arizona Supreme Court gave a rare victory to a sodomy defendant, and a good thing, too. The two consenting males received a sentence of 15 years-life for an act that occurred inside a parked van. It is unclear how a sentence of such severity was given by the trial court, since both parties were adults and, even if the sexual activity had been sodomy (anal sex), a 20-year maximum would have been permitted. The Court unanimously decided that the police officer’s testimony was entirely circumstantial, and proof of penetration had not been established. The conviction was overturned. 67

In the 1968 case of State v. Jones 68 the Arizona Court of Appeals issued the state’s third written opinion rejecting a vagueness challenge to the state’s "lewd and lascivious acts" statute. 69

The Arizona Supreme Court decided in the 1970 case of State v. Mortimer et al. 70 that masturbation of another person constituted a violation of the state’s "lewd or lascivious conduct" statute. Police officers in Tucson noticed Ronald Mortimer and Simon Perez

sitting on a bus stop bench in front of a bar; the defendants were embracing and kissing each other on the lips; the defendant Mortimer unzipped the trousers of defendant Perez, and commenced manually masturbating Perez. 71

The question as to whether this conduct constituted a violation of the law was certified to the Supreme Court before Mortimer and Perez were sentenced. As to whether mutual masturbation was "unnatural," as required by the law, the Court said

the act of masturbation by one adult male upon another adult male is an act committed in an unnatural manner. We are aware of a rising school of thought which decries the stigma placed by society upon homosexual activity, but our sole mission here is to interpret the statute as enacted by the legislature. In contemporary Arizona, and as of the date this statute was last amended (1965), homosexual activity is and was considered unnatural. 72

The Court cited no studies to prove this belief. Even though the law

may smack of victorian morality, and represent a standard not in keeping with the times, this is a problem for the legislative process rather than the courts. 73

The Arizona Court of Appeals, deciding the 1975 case of Johnson v. Phoenix City Court, 74 upheld a Phoenix ordinance that barred the commission of

any grossly indecent act in any open or public place within the City which outrages decency and is injurious to or tends to corrupt morals[.] 75

William Johnson had been arrested under this ordinance in an adult movie theatre when he

confronted a Phoenix Police Detective and allegedly grabbed the front of the officer’s pants and, while holding on to the pants and the officer’s private parts, attempted to pull him into a booth. 76

The Court unanimously rejected Johnson’s arguments that the ordinance was too vague to be constitutional. 77

In the 1976 case of State v. Bateman, 78 the Arizona Supreme Court again dealt with the issue of privacy rights. Two trial courts issued conflicting decisions as to the constitutionality of the sodomy and lewd and lascivious acts statutes, and the Court of Appeals struck the laws down. By a 3-2 vote, the Supreme Court reversed the Court of Appeals and held the laws constitutional as applied to people not married to each other. The Court rejected freedom of expression 79 and vagueness 80 as potential challenging points to the laws. However, recognizing the right to privacy, the Court issued a contradictory statement that "the State cannot interfere with the private sexual behavior of two adults," but it could "regulate sexual misconduct." 81 Apparently interpreting the right to privacy under the U.S. Constitution the same as the empty words of the Arizona Constitution’s privacy provision, the Court apparently said that any sexual behavior currently legal was constitutionally protected, but, once outlawed by the legislature, lost its constitutional status. Sodomy, in particular, could be prohibited without violating the right to privacy because it

has been considered wrong since early times in our civilization. Deuteronomy 23:17, Leviticus 18:22-23; 4 Blackstone, Commentaries 215; 2 Pollock & Maitland, The History of English Law 556. 82

Lewd and lascivious acts "have also been traditionally prohibited." The Court then issued another contradictory conclusion that

sexual activity between two consenting adults in private is not a matter of concern for the State except insofar as the legislature has acted to properly [sic] regulate the moral welfare of its people, and has specifically prohibited sodomy and other specified lewd and lascivious acts. 83

In dissent, Justice Frank Gordon referred to the restrictions on "consenting heterosexual adults" 84 and acknowledged that he was

baffled as to how the majority can acknowledge that ‘[t]he right [of privacy] exists within the contexts of the intimate sexual relations between consenting adults in private’, whether single or married, and then can conclude that the Legislature may separate certain of these relations it finds distasteful, label them as misconduct and make the participants felons subject to a prison term of up to twenty years in the state penitentiary. 85

He also said that "the majority implies that sexual activity for purposes other than having children may be prohibited by the Legislature." 86

The legislature passed a comprehensive criminal code revision 87 in 1977. The preamble to the law stated that the purpose of the code was to "proscribe conduct that unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests." 88 This apparently was the purpose behind the retention of sodomy and lewd and lascivious acts as crimes, even between consenting adults. The penalty for each was reduced from a felony to a misdemeanor, with a maximum penalty of 30 days in jail and/or a $200 fine. The language of the statutes otherwise was not changed. 89

Also included in the code was a new loitering law with a broad prohibition against anyone who

present in a public place and in an offensive manner or in a manner likely to disturb the public peace, solicits another person to engage in any sexual offense[.] 90

The haste that the legislature showed in keeping these acts criminal has shown its face more than once when the laws had to be reworded. In 1978, before the effective date of the new code, a lengthy (282 pages) revision to the code was enacted, 91 in effect, a replacement for the 1977 code, correcting numerous problems from the first law. The sodomy and lewd and lascivious acts laws each had the word "knowingly" inserted into the language, so that those who somehow committed either act without knowing that they did so could not be prosecuted. 92

The 1978 code did make one progressive change to the law. It repealed the state’s sex offender registration statute. 93

However, absence makes the heart grow fonder so, in 1983, the Arizona legislature reenacted the sex offender registration law. 94 Conviction of any sex crime under Arizona law would trigger the operation of its provisions, as would a conviction "in any jurisdiction" under a similar law. 95

In 1985, the sodomy law had to be clarified further 96 that the acts, as penalized in these sections, were criminal only with an adult, whereas acts with children were covered by other laws. This law also needed an emergency clause to have it become effective immediately, because of the chaos in state courts the laws were generating. 97 This same law also made an ameliorative change to the sex offender registration law. Now the trigger for the operation of the law was conviction only in another "state," thus eliminating convictions outside the United States. 98

Period Summary: Arizona’s conservatism on the issue of Gay sex continued unabated during this time. Rather than following the Kinsey view of sex, the state leaned toward that of Joseph McCarthy. During the 1950s, Arizona reacted strongly to sex crimes by adopting several harsh measures and, going against the Kinsey and American Law Institute positions, raising the penalty for sodomy to one of the most severe in the nation. Constitutional challenges to the sodomy law routinely were unsuccessful, including one which challenged the right of the state to prosecute married couples.

The Post-Hardwick Period, 1986-Present

In 1990, the Court of Appeals, deciding State v. Lammie, 99 ruled that the sex offender registration law required those convicted of attempts to commit a covered sex offense to register, even though the statute’s language did not require registration for attempts.

A curious dictum in State v. Crane, 100 from 1990, may have opened an exemption in the sodomy law. The Court of Appeals said, "[u]nder the Arizona statutes, consensual sexual conduct with one’s wife is not a crime[.]" 101 The Court gave no citation for its conclusion and did not refer to the contrary decision in Bateman.

The sex offender registration law was challenged and upheld in 1992 in State v. Noble. 102 A lower court had struck the law down and noted that it covered convictions for private, consensual activity. The Arizona Supreme Court, in reversing the lower court, found such speculation unnecessary since the sex act in the case before them dealt with child molestation. The law was constitutional because the registrants

are not forced to display a scarlet letter to the world; outside of a few regulatory exceptions, the information provided by sex offenders pursuant to the registration statute is kept confidential. 103

In 1993, an amendment was made to the registration law 104 changing the word "state" to "jurisdiction," so as to cover convictions in the District of Columbia or territories and, presumably, foreign countries once again. 105

A bill to exempt misdemeanant sex offenders from DNA testing was vetoed in 1995 by Governor Fife Symington. He said in his veto message, in part, that "he" (a sex offender) is "given notice that future crimes could be more easily traced to him[.]" 106

A bill signed by Symington just a couple of weeks later was one 107 that again revised the state’s sex offender registration law. The crime against nature and lewd and lascivious acts were removed from the compulsory registration provision, 108 but judges were given the power to order anyone convicted of either crime to register if the crimes were found to have been committed because of "sexual motivation." 109 It is hard to imagine a sexual crime committed without sexual motivation, but if a defendant can prove such a lack of motivation, he or she will be exempt from registration.

In 2001, Arizona repealed its sodomy law. 110 One legislator who opposed the repeal suggested the possibility of a referendum on the repeal, but backed away from the idea quickly. Governor Jane Hull signed the repeal bill despite a concerted lobbying effort by right-wing organizations. 111 The age of consent is 18.

Period Summary: The state was one of the more vigorous states in pushing its sex offender registration law and requiring those convicted of consensual sodomy to register with law enforcement officials as sex criminals. In 2001, Arizona repealed its sodomy law, rendering the sex offender registration law innocuous, at least proactively.

Footnotes

1 12 Stat. 664, enacted Feb. 24, 1863.

2 Id. at 665, §2.

3 Compiled Laws, Arizona Territory, (Detroit:Richmond Backus & Co., 1877), page 76, §48, enacted Feb. 4, 1864.

4 Id.

5 The Revised Statutes of Arizona Territory, (Columbia MO:E.W. Stephens, 1901), enacted June 20, 1901.

6 Id. at 1183, §3.

7 Arizona Constitution, Art. 2, §8.

8 127 P. 724, decided Oct. 24, 1912. It is unclear why the style of this case includes the word "Territory," since Arizona became a state in February of 1912.

9 Id. Justice Ross was on the Arizona Supreme Court a long time. He also wrote the Court’s decisions in the 1933 Dutzler case and the 1944 Farmer case. He allowed another Justice to write the 1944 Faber case.

10 Laws of Arizona 1913, page 17, ch. 64, enacted May 16, 1913.

11 Id. at 19, §7.

12 Revised Statutes of Arizona 1913. Penal Code, page 64, §280.

13 Id.

14 Id. §281.

15 Id. at 236, §1228.

16 Laws of Arizona 1917, page 2, ch. 2, enacted Feb. 15, 1917.

17 Id. at 2-3.

18 19 P.2d 326, decided Mar. 1, 1933.

19 148 P.2d 1002, decided May 1, 1944.

20 Id.

21 Id.

22 152 P.2d 671, decided Oct. 30, 1944.

23 Id. at 673.

24 Id.

25 Id.

26 Id.

27 Id. at 673-674.

28 Id. at 674. Adam Faber was released from prison on March 1, 1946. (Correspondence from S. Strand, Arizona Department of Corrections, Jan. 16, 1997).

29 Laws of Arizona 1951, page 252, ch. 105, enacted Mar. 28, 1951. Ironically, all three laws were signed by Governor Howard Pyle, the Republican elected in an upset in 1950 with the help of Barry Goldwater, who supposedly was Arizona’s beacon of individual freedom. However, by 1992, Goldwater was endorsing a proposed Gay rights law for Phoenix. See the Washington Blade, July 31, 1992, page 26. Pyle’s career was destroyed by his moral crusade after his administration made a series of raids on polygamists and the public had a negative reaction. The Oregonian, Apr. 13, 1997, 22A:1.

30 Laws of Arizona 1951, at 252-253.

31 Laws of Arizona 1951, page 262, ch. 111, enacted Mar. 28, 1951.

32 Id. at 261-262.

33 Id. at 262.

34 Id.

35 Laws of Arizona 1951, page 365, ch. 134, enacted Mar. 29, 1951.

36 Id.

37 Id. at 366.

38 Id.

39 233 P.2d 446, decided June 26, 1951.

40 Id. at 449.

41 254 P.2d 1023, decided Mar. 23, 1953.

42 Id.

43 Id.

44 280 P.2d 691, decided Mar. 1, 1955.

45 Id. at 692-693.

46 Id. at 696.

47 Gusick v. Eyman, 302 P.2d 944, decided Oct. 30, 1956.

48 303 P.2d 531, decided Nov. 14, 1956.

49 353 U.S. 913, decided Mar. 25, 1957.

50 Laws of Arizona 1956, page 143, ch. 92, enacted Apr. 9, 1956.

51 Id. at 144, §B.

52 Id. §C.

53 Id. §2.

54 298 P.2d 798, decided June 12, 1956.

55 Id. at 800.

56 Id. at 801.

57 Id.

58 Id. at 802.

59 Id. at 803-804.

60 315 P.2d 876, decided Sep. 27, 1957.

61 Id.

62 369 P.2d 917, decided Mar. 14, 1962.

63 Id. at 918-919.

64 Id. at 919.

65 Id. at 922.

66 421 P.2d 871, decided Dec. 30, 1966.

67 Id. at 872-873.

68 446 P.2d 487, decided Nov. 4, 1968.

69 Id. at 489.

70 467 P.2d 60, decided Apr. 1, 1970.

71 Id. at 61.

72 Id.

73 Id.

74 535 P.2d 1067, decided June 18, 1975. Review by the Arizona Supreme Court denied July 14, 1975.

75 Id. at 1068.

76 Id.

77 Id. at 1069.

78 547 P.2d 6, decided Mar. 10, 1976. Rehearing denied Apr. 13, 1976. Cert. denied, 429 U.S. 864, decided Oct. 4, 1976.

79 547 P.2d, at 8.

80 Id. at 8-9.

81 Id. at 9.

82 Id. at 10.

83 Id.

84 Id.

85 Id.

86 Id.

87 Laws of Arizona 1977, page 678, ch. 142, enacted May 31, 1977, effective Oct. 1, 1978.

88 Id. at 689, §13-101 (1).

89 Id. at 730, §13-1411 (crime against nature) and §13-1412 (lewd and lascivious acts).

90 Id. §13-2905 (A)(1).

91 Laws of Arizona 1978, page 677, ch. 201, enacted June 9, 1978, effective Oct. 1, 1978.

92 Id. at 731, §13-1411 and §13-1412.

93 Id. at 770, §242.

94 Laws of Arizona 1983, page 712, ch. 202, enacted Apr. 20, 1983.

95 Id. at 717, §13.

96 Laws of Arizona 1985, ch. 364, enacted May 16, 1985.

97 Id. at 1457, §47.

98 Id. at 1448, §32.

99 793 P.2d 134, decided Mar. 29, 1990. Review by Arizona Supreme Court denied July 3, 1990.

100 799 P.2d 1380, decided May 31, 1990. Review by Arizona Supreme Court denied Nov. 27, 1990.

101 Id. at 1384.

102 829 P.2d 1217, decided Apr. 21, 1992. The case of State v. McCuin, arguing the same point was decided the same day and is published at 829 P.2d 1217.

103 Noble, at 1224.

104 Laws of Arizona 1993, page 33, ch. 15, enacted Mar. 26, 1993, effective immediately.

105 Id. §1.

106 Laws of Arizona 1995, Veto Messages, Apr. 5, 1995 (Senate Bill 1133).

107 Laws of Arizona 1995. page 2008, ch. 257, enacted Apr. 19, 1995, effective July 13, 1995.

108 Id. at 2009, § 13-3821(A).

109 Id. at 2010, § 13-3821(B).

110 Laws of Arizona 2001. ch. 382, enacted May 8, 2001.

111 www.arizonarepublic.com. The law was signed by the Governor May 8, 2001.

Divider

Arizona

  • Statute: 13-1411, Crime Against Nature, Repealed 2001
  • Penalty: 30 days/$500
  • Classification: Misdemeanor
  • Restrictions: None
  • Statute: 13-1412, Lewd and Lascivious Acts, Repealed 2001
  • Penalty: 30 days/$500
  • Classification: Misdemeanor
  • Restrictions: None

Statute

13-1411. Crime against nature; classification

A person who knowingly and without force commits the infamous crime against nature with an adult is guilty of a class 3 misdemeanor.

13-1412. Lewd and lascivious acts; classification

A person who knowingly and without force commits, in any unnatural manner, any lewd or lascivious act upon or with the body or any part or member thereof of a male or female adult, with the intent of arousing, appealing to or gratifying the lust, passion or sexual desires of either of such persons, is guilty of a class 3 misdemeanor.

History

1913 Just seven months after the Arizona Supreme Court ruled that the common-law definition of sodomy did not permit prosecutions for fellatio, the legislature changed the law. Although a complete recompilation of state law was adopted, in which the compiler was denied “any power to change or modify or make any law or laws,” the sodomy law was changed to include “the penetration of the mouth of any human being by the organ of any male person.” Another new law adopted in the Code was that a wife was considered competent to testify against her husband, but not vice versa, in a trial for “the crime against nature, or any similar offense[.]”
1944 The Arizona Supreme Court is the first in the nation to receive a sodomy case in which an explicit right to privacy is raised. The Court did not address the claim; it merely ignored it.
1962 The Arizona Supreme Court upholds a conviction in the only known published sodomy case in which a man arrested for sodomy accuses the arresting officer of being attracted to other men.

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