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

Guam
"[T]he defendant invited and permitted members of the armed services of the United States to use him as the passive partner in the act of sodomy."

The Victorian Morality Period, 1873-1948

The Territory of Guam was obtained in 1898 after the Spanish-American War and, as was so common due to a clash of cultures, became the object of zealous moralists. From its acquisition until 1950 it was governed by a Naval Governor who had the power to promulgate laws.

In the first compilation of Naval Governor’s orders, published in 1902 and covering three years of Guamanian occupation, no sodomy law was included. However, one order from 1900 did cover certain possibly erotic activity of males. The

males of the Caroline islanders’ community in Guam are hereby forbidden to appear in public in their customary nude condition, or "string-and-pouch" decoration[.] ¹

A replacement set of orders from 1925 ² again made no reference to sodomy, but did contain a general vagrancy law labeling as vagrant "every lewd or dissolute person" who wandered about at late hours, ³ thus creating a catchall provision for Gay or Lesbian people. A penalty of up to $250 and/or one year in jail was the penalty. ⁴

Another code of 1931 ⁵ included a provision that outlawed the keeping of "a house for lewd purposes." ⁶ Although the other prostitution-related provisions of this law were gender-specific, this single provision was not. A penalty of 3-6 months in jail and/or a fine of $50-$100 was provided for violations. ⁷ The new regulations expressly abrogated those of 1925 and, in doing so, the vagrancy provision was repealed.

That repeal obviously caused problems, because the vagrancy law was reinstated verbatim in 1932. ⁸

The issue of sodomy finally came to a head in 1933 when a penal code was ordained by the Naval Governor. ⁹ The code pirated the California laws, including their code section numbers, outlawing sodomy ¹⁰ and sex perversions (fellatio and cunnilingus). ¹¹ The penalty was set at 1-10 years for each. ¹²

Period Summary: Early in its history as a U.S. jurisdiction, moralizing against local customs was common. Military regulations against male nudity were enacted and the California criminal code was adopted for the territory.

The Kinsey Period, 1948-1986

An organic law granting home rule to Guam in 1950 ¹³ contained a provision that all extant naval laws would continue in force. ¹⁴

The only reported sodomy case was Government v. Pennington, ¹⁵ from 1953. Both the trial record and appeal are reported officially. In the trial record, Pennington is described as having

invited and permitted members of the armed services of the United States to use him as the passive partner in the act of sodomy. ¹⁶

Pennington argued that, since he was penetrated anally, he did not commit sodomy. The Court rejected this notion, citing California cases that held both consenting parties liable. ¹⁷ The trial judge also rejected Pennington’s right to be tried by a jury, based solely on the social structure of Guam where trial by jury was not practiced. The Court ignored the constitutional claim. ¹⁸ Pennington appealed his conviction. In Pennington v. Government, ¹⁹ the Ninth Circuit Court of Appeals unanimously reversed the trial court, writing a terse opinion concluding that the trial court had been without authority to try Pennington without a jury. ²⁰

In 1976, Guam enacted a comprehensive criminal code revision ²¹ that reworded the sodomy and sex perversions statutes so as to apply only to those not consenting, acts in public, and acts with those under the age of 16. ²²

A further revision in 1979 ²³ eliminated the word "sodomy" from the code and replaced the language with modern references. The age of consent was not changed.

Period Summary: Shortly after the first Kinsey report, Guam was given home rule by the Congress. There is only one reported sodomy case in the territory, and it resulted in victory for the defendant only because of procedural reasons. A new criminal code abolished the portions of the sodomy and oral copulation laws covering consensual adult activity.

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

¹ General Orders Issued by [the] Naval Governor in Force December 20, 1902, (Washington:Government Printing Office, 1902), page 10, General Order No. 21, issued June 11, 1900. Other moralizing and interference with tribal customs are evidenced by other orders limiting the celebration of saints’ feast days to inside a church or private residence ( Id. at 3, No. 4); one banning concubinage ( Id. at 4, No. 5); and one prohibiting abusive language such as "damned dagoes" and "niggers" being hurled at the natives by occupying U.S. forces ( Id. at 7, No. 11).

² Orders and Regulations with the Force and Effect of Law in Guam, no publication data, dated Jan. 1, 1925.

³ Id. at 91, §XXXII.

⁴ Id.

⁵ Orders and Regulations with the Force and Effect of Law in Guam, no publication data, preface dated Nov. 15, 1930. Although the publication date on the front cover is 1931, this set of regulations contains provisions enacted well into 1932, so it is probably a comprehensive code that included amendments after the main code was promulgated.

⁶ Id. at 19, §VI, #3, enacted Feb. 15, 1931.

⁷ Id.

⁸ Id. at 113, §XXXII, enacted Aug. 4, 1932.

⁹ The Penal Code of Guam, In Two Parts, (Manila:Bureau of Printing, 1933), enacted May 1, 1933.

¹⁰ Id. at 89, §286.

¹¹ Id. §288a.

¹² Id. Respective sections.

¹³ 64 Stat. 384, enacted Aug. 1, 1950.

¹⁴ Id. §25.

¹⁵ 114 F.Supp. 907, decided Sep. 18, 1953.

¹⁶ Id.

¹⁷ Id. at 908.

¹⁸ Id. at 909.

¹⁹ 228 F.2d 892, decided Dec. 19, 1955.

²⁰ Id. at 893.

²¹ Criminal and Correctional Code, enacted Sep. 2, 1976, effective Jan. 1, 1978.

²² Id. at 71, §25.25 and §25.30.

²³ Public Law 15-60, enacted Aug. 31, 1979.

Guam

• Statute: Repealed 1976

History