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

The Common Law

The common law derives from England and is a set of rules of behavior and procedure handed down over generations from judicial decisions, but which is recognized as law. In effect, it is a body of law based on general custom or usage established by government largely during medieval times. It has been described as “a heritage of the race.” ¹ The common law is unwritten, in that there is no published code for perusal by the public. There are both civil and criminal branches of the common law, only the latter of which is of importance here. Under the criminal branch, certain acts have been recognized as criminal, and sodomy is one of them. Prosecution can be undertaken for common-law crimes, even without any statutory ban on the activity prosecuted.

Under the common law of England, which carried to the United States, sodomy was defined only as anal sex between two men or between a man and a woman, and any kind of sexual activity with a subhuman animal of the opposite sex. This limitation remains in the definition today. Adoption of the common law in the United States automatically also adopted English statutory law. This includes the English “buggery” statute from the 16th century, since it was in effect prior to the first English settlement in what now is the United States.

All of the United States except Louisiana recognizes the civil branch of the common law. However, for common-law crimes to be recognized, a jurisdiction must have a statutory provision expressly either adopting common-law crimes or the common law in its totality.

Certain courts have interpreted common-law crime reception statutes to incorporate religious dogma. North Carolina’s common law adoption includes canon law, ² and Vermont’s includes ecclesiastic law. ³

In 1955, when the American Law Institute published its proposed Model Penal Code, it recommended abrogation of common-law crimes. Because much of the common law was adopted hundreds of years ago and under extremely different social situations, and because it is unwritten, this places a strange burden on individuals to know whether their acts or omissions are legal so that they don’t violate unwritten laws.

Prior to the Model Penal Code’s publication, common-law crimes either had been abrogated by statute or court decision (mostly in the 19th century) ⁴ or determined never to have been recognized ⁵ in a total of 29 jurisdictions. The East and the South disproportionately were the regions recognizing common-law crimes, because they had the most direct English influence. The Midwest traditionally has been the region of the country most hostile to recognition of common-law crimes.

Since the Model Penal Code was published, the number of jurisdictions abrogating common-law crimes has grown to 42, ⁶ leaving only 13 states and the District of Columbia recognizing them ⁷ All but four of these holdouts are in the East and the South.

Due to the Supreme Court’s 2003 decision in Lawrence et al. v. Texas, the issue of common-law crimes and the criminalization of sodomy is moot, because a common-law prosecution would not be any more constitutional than would be a statutory prosecution.

A major problem with adoption of common-law crimes is that it criminalized consensual sodomy independently of sodomy statutes. Merely repealing a sodomy law did not necessarily make sodomy legal. In eight of the 14 jurisdictions still recognizing common-law crimes, courts were asked to decide whether repeal of a statute derogating the common law reinstated the common-law provision. Seven of the eight said that it did, meaning that sodomy could remain criminal in these states, even with repeal of a sodomy law.

In addition, in Vermont, no sodomy law ever was enacted, with all sodomy prosecutions processed under the common-law reception statute. A law criminalizing oral sex was passed by the legislature in 1937 (since oral sex is not within the common-law definition of sodomy) and was repealed in 1977. Although the state therefore was considered a “free” state on the issue of sexual behavior, in fact private, consensual, anal sex remained indictable in the state under the common-law reception statute until Lawrence.

In New Mexico, Washington, and West Virginia, sodomy law repeals did not disturb the common-law crime reception statutes and courts in those states interpreted the repeal of a statute derogating the common law to revive the common-law provision, meaning that, in those states, private, consensual pre-Lawrence anal sex also remained indictable.

In the District of Columbia, the sodomy law has been repealed, but two common-law reception statutes remain, and courts there have not decided whether the repeal of a statute in derogation of the common law revives the common-law provision. Consequently, private, consensual pre-Lawrence anal sex may have remained criminal there. Since Lawrence was handed down, the District of Columbia enacted a law ⁸ that prevents the revival of a common-law provision if a companion statutory provision is repealed.

In Maryland, the statutes derogating the common-law provision on sodomy were ruled unconstitutional, so, even though courts have not decided the issue of repeal of a statute reviving a common-law provision, it is almost impossible that the common-law provision outlawing the same acts would not have been unconstitutional as well.

In Rhode Island, the sodomy law has been repealed, but common-law crimes remain recognized and the courts have decided that repeal of a statute in derogation of the common law revives the common-law provision. Notwithstanding this fact, the decision of the Rhode Island legislature in 1998 to legalize sodomy simply by removing human references from the “crime against nature” law and leaving a prohibition of bestiality blocked the common-law provision from reactivation. The reason is that there still is a statutory crime of sodomy, even if limited to acts with animals, so the common-law provision on sodomy remained silenced so long as that statute remained, until Lawrence made it irrelevant.

In Florida, Mississippi, and Virginia, where consensual sodomy remained criminal, repeal of the sodomy law before Lawrence would not have freed all private, consensual sodomy. In each state, courts have ruled that repeal of a statute in derogation of the common law revives the common-law provision.

In Idaho, North Carolina, and South Carolina, also where consensual sodomy remained criminal, pre-Lawrence repeal of a sodomy law might or might not have made the states free. The courts in those states have not decided the issue of reactivation of a common-law provision after repeal of a statute in derogation of it.

Only in Michigan was the issue irrelevant. Although private, consensual sodomy remained criminal there, Michigan, alone among the affected states, has case law stating that the enactment of a statute in derogation of the common law is a permanent repeal of any common-law provision on the subject.

Detail on these common-law provisions is found in the individual state chapters.

Until the Lawrence decision, the only certain way to legalize all forms of private, consensual sodomy in these jurisdictions was to repeal the provisions recognizing common-law crimes. Common-law crimes have been anachronisms since the Bill of Rights was adopted.

Footnotes

¹ 5 L.R.A. 805, at 806, § 1.

² Crump v. Morgan, 38 N.C. 91.

³ LeBarron v. LeBarron, 35 Vt. 365.

⁴ Arizona, California, Georgia, Hawaii, Indiana, Massachusetts, Montana, Nebraska, Nevada, New Hampshire, New York, Ohio, Oklahoma, South Dakota, and Texas. One sees the heavy tilt toward the Midwest and West in this list and the list in the next note, showing a great dichotomy between the two halves of the country.

⁵ Alaska, American Samoa, Guam, Iowa, Kansas, Louisiana, Maine, Minnesota, North Dakota, Northern Mariana Islands, Oregon, Puerto Rico, Utah, and the Virgin Islands.

6 Alabama, Arkansas, Colorado, Connecticut, Delaware, Illinois, Kentucky, Missouri, New Jersey, Pennsylvania, Tennessee, Wisconsin, and Wyoming are the states to do away with common-law crimes since 1955.

⁷ District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, Rhode Island, South Carolina, Vermont, Virginia, Washington, and West Virginia.

⁸ Act 15-154, effective Apr. 29, 2004. Codified as D.C. Official Code § 45-401(b).