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

Indiana
"The crime of sodomy has always been deemed a very pariah of crimes[.]"

The Post-Revolution Period, 1776-1873

A statute ¹ adopted by the Legislative Council of the Northwest Territories in 1795 received the common law of England, as well as all English statutory law passed before 1607. This included the capital buggery law, applicable only to males.

A code of law for the Indiana Territory was enacted in 1800, ² but no portion of the code is known to have survived, so it is unknown if it covered either sodomy or common-law crimes.

In 1807, the Indiana Territory adopted a comprehensive criminal code ³ that included a sodomy law that eliminated the gender-specifics and reduced the penalty to a maximum of 1-5 years in prison, a fine of $100-$500, up to 500 lashes "well laid on, on his or her bare back" and a permanent loss of civil rights. ⁴ The imprisonment sentence was the third-longest in the criminal code, and the 500 lashes for sodomy were the most that could be given for any crime. The new law was signed by Governor and future President William Henry Harrison. ⁵

A second provision of this same code permitted an alternative sentencing for anyone convicted of a crime and sentenced only to a fine to be hired out to another person for any "reasonable" term. ⁶ This law technically permitted the hiring of convicted sodomites, if they were given only a fine, as "kept boys."

A supplemental statute of 1818 ⁷ adopted the common law of England and all but a few of the English statutes enacted prior to 1607. The English buggery law was not excluded. This law acted merely as a backup to the sodomy law.

In 1820, the Indiana Supreme Court, deciding Fuller v. State, ⁸ ruled that crimes prohibited both by statute and the common law could be prosecuted under either. "If an offense at common law be prohibited by Statute, this takes not away the indictment at common law." ⁹

However, in 1831, Indiana passed a new criminal code ¹⁰ that repealed the sodomy law, and left the common-law statute intact. This raised the penalty for sodomy to death and again restricted its applicability to males.

A statute passed in 1852 ¹¹ limited the applicability of the common law and English statutes to civil cases. ¹² This actually legalized sodomy, since the 1831 code had eliminated reference to it.

Although it was not, at this time, a crime in Indiana, a decision by the Indiana Supreme Court in a slander case gave a clear impression of how the courts viewed an act of sodomy. In 1858, in Ausman et ux. v. Veal, ¹³ the Court defined it as

a connection between two human beings of the same sex—the male—named from the prevalence of the sin in Sodom. ¹⁴

Thus, heterosexual sodomy was not covered, and any act of sodomy was a "sin."

Period Summary: Indiana showed wild swings in its laws regarding sodomy. It began, like Ohio and Illinois, receiving the English common law from the Northwest Territories government. This made sodomy punishable by death. In 1807, the Indiana Territory enacted an extremely harsh criminal code that made sodomy one of the most severely penalized of acts. A new code of 1831 eliminated mention of sodomy, but reinstituted common-law crimes, raising the penalty back to death. The code of 1852 abrogated common-law crimes without mentioning sodomy, thus legalizing it.

The Victorian Morality Period, 1873-1948

I. Sodomy

The absence of a sodomy law was corrected when Indiana enacted a comprehensive criminal code revision in 1881. ¹⁵ However, Indiana worded its law in a way that no other U.S. jurisdiction had. It said that, whoever

commits the abominable and detestable crime against nature, by having carnal knowledge of a man or a beast, or who, being a male, carnally knows any man or woman through the anus, and whoever entices, allures, instigates or aids any person under the age of twenty-one years to commit masturbation or self-pollution, is guilty of sodomy, and, upon conviction thereof, shall be imprisoned in the State prison not more than fourteen years nor less than two years. [Emphasis is the law’s]. ¹⁶

This statute differentiated between "carnal knowledge" and anal sex, thus presumably intending to cover acts like fellatio. Also, masturbation with a person of either gender under age 21 was sodomy, but not with a person of either gender over 21.

Also as part of the new criminal code, Indiana enacted a law banning the sale, lease, or giving away of instruments used for "self-pollution," ¹⁷ which would ban sex toys.

For unclear reasons, the sodomy statute was made less comprehensive, at least on its face, in another criminal code revision in 1905. ¹⁸ The "abominable and detestable crime against nature" epithet remained, as did the reference to masturbation of a person under 21, but the reference to "carnal knowledge" disappeared, thus apparently legalizing fellatio and other erotic activity. The prison term remained the same, but a fine of $100-$1,000 was added. ¹⁹

The first reported sodomy case in the state arose in 1913 to decide if this law covered fellatio. In Glover v. State, ²⁰ the Indiana Supreme Court unanimously ruled that, despite the apparent weakening of the sodomy law, fellatio was covered by the term "crime against nature." The

crime of sodomy has always been deemed a very pariah of crimes, and the acts constituting it but seldom specifically defined. There can be no doubt that many of the definitions are amply broad to include the act in question. ²¹

After critically reviewing English case law on the subject, ²² the Court felt that it was "free to conclude" that the Indiana legislature

chose rather the broad definition of the crime, which would include those abominations within the mischief of the law, rather than the narrow one which without reason would exclude from punishment a perpetrator of what might well be considered the vilest and most degenerate of all the acts within the inclusion of the broad definition. ²³

It was "inconceivable" that the legislature would punish anal sex severely but leave "the vilest and, if possible, most unnatural one to go undenounced and unpunished." ²⁴

In the second reported sodomy case, Young v. State, ²⁵ from 1923, the Indiana Supreme Court decided the other half of the oral sex question, that dealing with cunnilingus. In a unanimous opinion by Justice David Myers, the Court, after generally agreeing with the appellant that criminal statutes had to be construed strictly, ²⁶ found that contemporary dictionary definitions of masturbation and pollution, as mentioned in the sodomy law, were broad. Myers said that the words included

the corruption of morals, the disgrace of human nature by an unnatural sexual gratification, of which reason and decency forbids a more detailed description. They seem to be sufficiently broad and extensive to include the abominable and detestable act, cunnilingus, proved in this case. ²⁷

In 1924, the Indiana Supreme Court unanimously upheld a sodomy conviction in the case of Borolos v. State. ²⁸ The defendant had objected to the introduction of testimony concerning other sexual partners, but the Court found no error in this. ²⁹

In 1939, in the case of Connell v. State, ³⁰ the Indiana Supreme Court rejected the defendant’s contention that sodomy between persons of the opposite sex was not covered by the statute. ³¹ The Court went on to bend case law. It stated that cunnilingus was included within the term "sodomy," and referred to the Young decision of 1923. ³² However, the earlier case said that cunnilingus was a form of masturbation within the law, not sodomy.

In the 1940 case of Sanders v. State, ³³ the Indiana Supreme Court unanimously upheld the sodomy conviction of a man even though the trial court limited the number of his character witnesses after the prosecutor said no character witnesses would be called by the state. ³⁴ Justice George Tremain, the author of the opinion, felt a need to end his opinion with a moralizing statement. The sodomy law

gives no other definition of the crime, obviously out of regard to the better sentiments of decent humanity, and to leave the record undefiled by details. The court has read the evidence in the record, and for the same reasons which influenced the framers of the statute, refuses to defile the reports by a recital of the sordid, immoral, depraved, and detestable statements therein contained. ³⁵

An entrapment defense was rejected unanimously by the Indiana Supreme Court in the brief 1943 case of Ditton v. State. ³⁶ A 27-year-old male had sought over a period of several days to set up a rendezvous with a 17-year-old male for sexual relations. The younger man finally consented and went with him to a secluded place where the defendant was arrested by police who had been notified in advance by the young man. ³⁷

In an amazing case from 1944, Spence v. Dowd, ³⁸ the Seventh Circuit Court of Appeals sternly ordered lower courts to review the case of a man who had been arrested on a charge of contributing to the delinquency of a minor. He had been denied an opportunity to consult an attorney, then charged with sodomy, never informed against or indicted, tried without an attorney, and denied the right to prepare his defense. After six years in prison, he had filed for a writ of habeas corpus, which was denied summarily without a hearing. ³⁹ The Indiana state courts and federal trial court consistently had refused to hear Spence’s claims. Judge Otto Kerner of the Seventh Circuit said that Spence "is entitled to be heard. The District Court should have inquired into and specifically found the facts." The case was remanded with instructions to hear Spence’s case. ⁴⁰

Also in 1944, in Montgomery v. State, ⁴¹ the Indiana Court of Appeals unanimously overturned the conviction of Guy Montgomery for "encouraging a boy to commit sodomy." ⁴² No details of the case were given, and the Court rejected Montgomery’s claim that mere encouragement was not a crime. ⁴³ However, owing to an erroneous instruction to the jury, the conviction was overturned. ⁴⁴

Through the year 1944, only one woman had been prosecuted for sodomy in Indiana, and that was the inmate of a penal institution for activity within the institution. ⁴⁵

A study of court proceedings in the city of Indianapolis in 1947 revealed that one man convicted of sodomy with a 17-year-old male received only a $100 fine. ⁴⁶

II. Sterilization

In 1907, Indiana enacted the world’s first law ⁴⁷ to provide for sterilization of certain individuals, including "confirmed criminals[.]" ⁴⁸ The surgery could be performed only if the mental condition of the inmate made procreation "inadvisable" and the condition was considered unchangeable. ⁴⁹

The law was enforced only at the Indiana Reformatory ⁵⁰ and then ran into major hurdles. In 1909, newly elected Governor Thomas Riley Marshall, future Vice President, instructed state institutions to disregard the law. ⁵¹ The policy of the institutions in ordering sterilizations "was not entirely above board and regulated, which is why Governor Marshall put a stop to it long before the Supreme Court struck down the law itself." ⁵²

In addition, a criticism of the sterilization law appeared in a law journal in 1911. ⁵³ The article noted that the criminal law of Indiana nowhere defined what constituted a "confirmed criminal," thus leaving that definition to the whim of physicians. ⁵⁴ It also noted that the law did not state who was to give the required "recognized ability" to the physicians performing the surgery, ⁵⁵ and that the law did not specifically prohibit castration, which was likely to be cruel and unusual punishment under the Indiana Constitution. ⁵⁶

The sterilization law came to grief in the 1921 case of Williams et al. v. Smith. ⁵⁷ In a brief opinion, the Indiana Supreme Court unanimously struck down the law as violative of due process of law in that it did not afford defendants the opportunity for an adversary hearing. ⁵⁸

Period Summary: Indiana reinstituted sodomy as a crime with a new code adopted in 1881. It was, at the time, a uniquely worded sodomy law, covering both masturbation of another person and "carnal knowledge" separate from sodomy, which may have covered fellatio. Later, the Indiana Supreme Court interpreted a less clear sodomy law to prohibit fellatio and its long, historically oriented opinion later became the precedent-setting case to which courts in many other states deferred. A decade later, cunnilingus was determined to be an act of "masturbation" under this law, thus making it illegal as well, but only with a partner under 21. It therefore should be no surprise that a survey of prosecutions over seven decades found only one woman prosecuted for sodomy. The Indiana Supreme Court rejected a heterosexual defendant’s argument that opposite-sex sodomy was not covered by the law. Especially in the 1940s, Indiana courts routinely showed little regard for the due process rights of those charged with sodomy. Indiana enacted the first law anywhere in the world providing for sexual sterilization of certain persons convicted of crimes. The law little was used and later found unconstitutional.

The Kinsey Period, 1948-1986

In 1949, Indiana enacted a psychopathic offender statute. ⁵⁹ Any person over 16 who suffered from an undefined "mental disorder" other than insanity or feeblemindedness "coupled with criminal propensities to the commission of sex offenses" was a "criminal sexual psychopathic offender" per se. ⁶⁰ Commitment to an institution was to be until the full recovery from criminal psychopathy, which could be for life. ⁶¹ The law was enacted following publicity over a series of rape/murders in the Fort Wayne area during World War II and in Indianapolis after the War. ⁶² The original proposal required examination by psychiatrists, but, because of the "lack of psychiatrists in many areas of Indiana," it was changed to require examination only by a physician. This led to many people being committed under the law even though they did not fit the medical definition of a psychopath. ⁶³

While the psychopath law was being debated in the Indiana legislature, the state Attorney General issued an opinion ⁶⁴ that the proposed law would be constitutional. Attorney General J. Emmett McManamon dismissed the fear that the proposal would allow commitment to an institution of a person who had not committed any crime. McManamon noted that the bill referred only to those who had been convicted of or pleaded guilty to an offense. ⁶⁵ Apparently alluding to the Kinsey report, another fear was that everyone in the state of Indiana would be committable under the law. McManamon thought that "untenable" because he could not conceive that everyone in the state possessed a "mental disorder that is coupled with criminal propensities to the commission of sex offenses." ⁶⁶

Another short opinion in the 1953 case of Baumgartner v. State ⁶⁷ led to victory. The Indiana Supreme Court unanimously overturned the conviction because the original affidavit did not state that the alleged act took place "with mankind or beast." Even the Attorney General of Indiana sided with the defendant, so the Court ordered the affidavit quashed. ⁶⁸

Just two weeks later, the first reported case under the federal Assimilative Crimes Act occurred in Indiana. United States v. Gill ⁶⁹ was a case of heterosexual sodomitical assault occurring on a U.S.-registered ship docked in the territorial waters of Indiana. The defendant claimed that sodomy on federal property could not be prosecuted under Indiana law, ⁷⁰ but the Seventh Circuit Court of Appeals rejected the claim, noting that the purpose of the Assimilative Crimes Act was to cover federal property, and to defer to the laws of the state wherein a given crime was committed. ⁷¹

A 1955 report showed that a judge in South Bend acquitted a man accused of being a "sex psychopath" because the Kinsey Report on human sexuality made "the area of sex psychopathology" "ill-defined." ⁷²

Indiana is one of the few states in which detailed information about the operation of its psychopathic offender law was published. The first was a law review article in 1957 ⁷³ that noted 160 commitments under the law in its first seven years of operation. ⁷⁴ A table showed that 60 of these commitments, or 38%, were for sodomy, with five others for "assault and battery with intent to gratify sexual desires," one for "disorderly conduct," 13 for "contributing to the delinquency of minors," and one for "unnatural acts with wife." ⁷⁵ Some 53% of the committed sodomy cases involved activity strictly between adults. ⁷⁶ Not one of the 160 commitments was of a woman ⁷⁷ which led the author to complain that

there are women with strong sex drives who prefer young boys to men and who might find themselves at odds with the laws concerning contribution to the delinquency of minors...It would seem that certainly some might have qualified as criminal sexual psychopaths. Despite this, there has not been a single commitment of a female under this statute. A partial explanation may be the more ready acceptance of aberrant sexual behavior in women by society. Two women dancing or holding hands arouses little comment. A second cause might be the reluctance of police officials and courts to bring women before the bar. ⁷⁸

Thirty-nine of the 160, or 24%, received a psychiatric diagnosis of "sexual deviate," ⁷⁹ which is only two-thirds of the total sodomy commitments. The conclusion was that the psychopathic offender law not only did not improve the situation in society, but actually aggravated it, and should be repealed. ⁸⁰

Possibly as a result of this analysis, the psychopath law was amended in 1959. ⁸¹ Reports of the mental examination of those sentenced under the law no longer were "competent evidence" in any other proceeding against the offender. ⁸² As a result, the person being examined lost the right to refuse to cooperate with examining psychiatrists, and could be held in contempt of court for refusing to answer their questions. ⁸³

The sex toy law was struck down by the Indiana Supreme Court in 1961, in State v. Kuebel. ⁸⁴ By a vote of 3-2, the Court found that the statute did not require scienter, as demanded by the U.S. Supreme Court.

Another analysis of the psychopath law’s operation was published in 1962. ⁸⁵ This article limited its concerns to one state institution, but, despite being written by different authors, made a similar complaint about the law as five years earlier. No female offender had been committed to the institution, "although females are sometimes guilty of the same behavior that a man would be arrested for [sic]." ⁸⁶ Of the 20 individuals studied, 18, or 90%, had committed a sex crime on a female. ⁸⁷ In the first 20 years of operation of the law, ten "consenting adult homosexuals" were committed under the law. ⁸⁸

In 1963, the sex toy law was repealed. ⁸⁹

In the next reported sodomy case, Lamar v. State, ⁹⁰ from 1964, the Indiana Supreme Court voted 4-1 to uphold the conviction of a man despite his claim of alibi. His sexual history also was permitted to be introduced into the trial because, as an exception to the general rule,

it is always permissible for the state, in actions involving abnormal sexual intercourse, to introduce evidence as to other improper acts of sexual intimacy committed by the defendant. ⁹¹

In other words, in only one type of criminal case in Indiana was it permissible to prejudice the jury against the defendant. Acts of "normal" sexual intercourse, including rape, would be shielded from the jury’s knowledge. The dissent without opinion by Justice Amos Jackson was the first in a string of dissents that showed his hostility to sodomy laws.

In Estes v. State, ⁹² from 1964, the Indiana Supreme Court rejected the contention of the defendant that the term "abominable and detestable crime against nature" was unconstitutionally vague and overbroad. The 4-1 majority stated that the term had a "clear and long established meaning" per the Glover decision of 1913. ⁹³ The majority was also eager to reject the defendant’s contention that the alleged eyewitness’ statement that he could not remember seeing the defendant and the prosecuting witness engage in sodomy. It felt that the testimony only meant that the witness could not remember the date on which the act supposedly occurred. Justice Amos Jackson again dissented, but this time spoke out. Jackson disputed the majority’s interpretation of the witness’s "I don’t remember" statement and noted that the state had not tried to get him to clarify what he didn’t remember. ⁹⁴ His anti-sodomy law language would sharpen with later cases.

In 1967, in Phillips v. State, ⁹⁵ the Indiana Supreme Court, dividing 3-2, upheld as constitutionally sufficient an indictment charging "the abominable and detestable crime against nature." ⁹⁶ The heated dissent of Justice Amos Jackson, in which he was joined by one other justice, said that the

very language of the statute purporting to define the offense of sodomy, is so indefinite and uncertain that its unconstitutionality follows as certainly as night follows day. ⁹⁷

Jackson also said that he

hoped that the incoming legislature will either clarify or abolish this anarchism reminiscent of the heyday of the witch hunts of early colonial times. In today’s space age and sophisticated society, it seems that the statute should spell out in language understandable by the person of average scholastic attainment and intelligence the specific nature of the crime with which he is charged and if that cannot be done then it should not be denominated a crime. ⁹⁸

In the next case of Dombkowski v. State, ⁹⁹ decided later in the same year, the Indiana Supreme Court upheld a conviction while conceding that

the prosecuting attorney may have been overenthusiastic and overzealous for a conviction. We are also impressed from the record as a whole that the Trial Court may have been overanxious to conclude the trial and may have taken more part in the trial than would be recommended in a treatise on modern trial practice. ¹⁰⁰

The Court also acknowledged that the case was "replete with many borderline questions," but it did not feel that Dombkowski’s rights had been violated. ¹⁰¹ Curiously, Justice Amos Jackson concurred in the result, refusing to join the Court’s opinion, but also not dissenting. ¹⁰²

The psychopathic offender law was upheld by the Indiana Supreme Court in a 3-2 vote in 1968 in State ex rel. Haskett v. Marion County Criminal Court, Division One et al. ¹⁰³ Continuing his crusade for civil liberties, Justice Amos Jackson wrote for the dissenters. He noted that the law used "euphemistic" language, ¹⁰⁴ clearly was criminal in nature rather than civil, thus requiring more due process guarantees, ¹⁰⁵ did not make clear in whose opinion a defendant had to be psychopathic in order to trigger the law, ¹⁰⁶ and allowed commitment for life of those not convicted of any crime. ¹⁰⁷

The Seventh Circuit Court of Appeals got its second Indiana sodomy case in 1968 with Cotner v. Henry. ¹⁰⁸ A 2-1 majority decided that, despite no statutory exemption, married couples could not be prosecuted under the law, citing the right to privacy. ¹⁰⁹

In the 1968 case of Meadows v. State, ¹¹⁰ Justice Amos Jackson scored his first victory when the Indiana Supreme Court unanimously overturned a sodomy conviction because the alleged victim, a mental patient, had been coached by the prosecution. ¹¹¹

In a third sodomy case from 1968, Jones v. State, ¹¹² the Indiana Supreme Court upheld a sodomy conviction based on the uncorroborated testimony of a 12-year-old partner. ¹¹³ Justice Amos Jackson again concurred only in the result.

In the 1969 case of Nichols v. State, ¹¹⁴ the Indiana Supreme Court sustained the defendant’s conviction despite the improbable evidence that the defendant, an adult, was in the presence of the prosecuting witness, an 11-year-old boy, to return one of his shirts that he borrowed (he must have been a very small adult) and that the boy offered the man a piece of candy on the condition that the man show his "thing" to the boy. ¹¹⁵ The above facts were accepted as true by the Supreme Court, and labeled as "sufficient evidence of probative value." ¹¹⁶ Even Justice Amos Jackson went along with it. ¹¹⁷

In 1970, in Ayad v. State, ¹¹⁸ the Indiana Supreme Court split 4-1 to uphold a sodomy conviction that inflamed Amos Jackson. In his dissent, he said that the

evidence relied on the by the State is the uncorroborated testimony of a fourteen year old delinquent adduced by improper direct, leading and suggestive questions by the prosecuting attorney and denied by one of the State’s witnesses and by the defense witnesses. ¹¹⁹

Jackson also felt that the jury had been coerced into returning a verdict after twice reporting that it was deadlocked and the trial court told it to continue deliberating. ¹²⁰

Jackson’s dissent was vindicated when the case returned to the Court a few months later. In Ayad II, ¹²¹ the Court unanimously decided that Ayad, who had succeeding in getting the main prosecution witness to admit that his testimony had been "wholly false and the result of the police’s coercive questioning techniques," had to follow post-conviction relief procedures to overturn his conviction. ¹²²

In 1970, in Kerlin v. State, ¹²³ the Indiana Supreme Court split 3-2 to uphold the sodomy conviction of a man based largely on the testimony of witnesses who had sex with the man earlier. Kerlin had performed fellatio on a 15-year-old boy more than once, without the boy’s objection, and the two other witnesses’ acts of sodomy were in no way related to the charge Kerlin faced. ¹²⁴ In dissent, Justice Roger DeBruler, predictably joined by Justice Amos Jackson, noted that the acts of sodomy with the other witnesses were with adults seven years prior to the acts in question. ¹²⁵ The dissenters believed this was prejudicial to Kerlin. This was Justice Jackson’s last sodomy case. Very shortly after this decision, he resigned due to ill health. ¹²⁶

The next case was Dixon v. State, ¹²⁷ from 1971. In this case the Indiana Supreme Court, in a 3-2 vote, upheld the constitutionality of the state’s sodomy law against a vagueness challenge. Writing for the majority, Justice Richard Givan said that the Court was

unimpressed by the claim via Dr. Kinsey and others that the acts complained of in this case are widespread in acceptance. Though such might be a valid argument to make to the Indiana legislature in an attempt to modify the existing laws, it is hardly an argument upon which this Court can justify a judicial decision. ¹²⁸

Pointing out that the defendant in the case was not married to his partner in cunnilingus, ¹²⁹ the Court added that courts

have universally pointed out that the acts sought to be prevented by this and similar statutes are of such a nature that legislatures and courts are reluctant to engage in detailed descriptions of the many acts which the human being is capable of accomplishing which are so offensive as to be deemed an ‘abominable and detestable crime against nature with mankind or beast.’ This terminology has been used for generations in this and other jurisdictions and has been deemed to be understood as encompassing not only the act with which the appellant is charged, but many other acts as well. ¹³⁰

In dissent, Justice Roger DeBruler, joined by Justice Dixon Prentice, the successor to Amos Jackson, believed that the law was unconstitutional both on grounds of vagueness and invasion of privacy. He argued that

[t]he words ‘abominable’ and ‘detestable’ are mere epithets and are not descriptive of any behavior at all. ¹³¹

DeBruler added that, to be punishable, a crime must be

against the sovereign State of Indiana[,] not against something called ‘nature,’ [and] the words do not tell anyone what behavior constitutes the crime. What is meant by ‘nature’? A deviation from a statistical norm or from some unannounced moral norm? The words ‘crime against nature’ are also mere epithets. They could be used to punish whatever behavior the majority considered morally offense or perverse without any advance notice of the kind of behavior prohibited. ¹³²

Quoting with disapproval from the 1913 Glover case, DeBruler ridiculed the moralizing that led the Court of six decades earlier to interpret the state’s sodomy law as it did. ¹³³ He said that he believed "that private sexual conduct between consenting adults" was constitutionally protected and he could "see no valid reason to limit the right of sexual privacy to married persons." ¹³⁴ The

moral preferences of the majority may not be imposed on everyone else unless there exists some harm to other persons. Sexual acts between consenting adults in private do not harm anyone else and should be free from state regulation. ¹³⁵

In 1971, just two days after the above decision, the Indiana legislature amended the state’s psychopathic offender law ¹³⁶ to exclude sodomy and "homosexuality" from the list of triggering offenses, if committed with a consenting adult. ¹³⁷

A minor change in the sodomy law in 1973 ¹³⁸ legalized some consensual sexual activity. This law lowered the age from 21 to 18 that would activate the provision outlawing the assistance of masturbation. ¹³⁹

An Indiana appellate court decided the next sodomy case, State v. Lopez, ¹⁴⁰ in 1973. The court read the law literally and unanimously ruled that the consensual masturbation of a person over the age of 21 did not constitute a violation of it. ¹⁴¹

The last reported Indiana sodomy case was Russell v. State ¹⁴² from 1975. An appellate court unanimously rejected a novel claim from a prisoner accused of sexually assaulting another prisoner. Defendant Russell claimed that it was not made clear at the outset of the trial that the victim was a human being. The appellate court judges commendably kept their laughter well under control in deciding that it was "common knowledge" that prisoners kept in jail were human beings. ¹⁴³

In 1976, the Indiana legislature passed a comprehensive criminal code revision ¹⁴⁴ that repealed the consensual sodomy law and established an age of consent of 16. ¹⁴⁵

In 1977, a bill to reinstate consensual sodomy as a felony, only between persons not married to each other, was introduced into the Indiana House. ¹⁴⁶ Hearings were held on it, but the bill was killed by a 6-4 committee vote. ¹⁴⁷

In the 1985 case of Thompson v. State, ¹⁴⁸ an Indiana appellate court, by a vote of 2-1, decided that viewing booths in adult bookstores were "public" places, despite curtains hiding them from the public. Thompson had placed his penis through a glory hole into a booth occupied by an undercover police officer. The majority believed that privacy ended the moment that Thompson placed his penis through the hole into the next booth. ¹⁴⁹ In dissent, Judge Patrick Sullivan was uncomfortable with his role as defender of Thompson’s conduct, which

was intrusive. It was offensive. It was disgusting. It is subject to condemnation and sanction by society and by the law. But it did not occur in a public place. ¹⁵⁰

Sullivan did not explain how conduct occurring in private was "subject to...sanction...by the law." He did come up with an interesting analogy, however. He likened it to saying that

one’s private residence becomes a public place merely by the unauthorized and unwanted intrusion of a burglar or other trespasser. ¹⁵¹

In 1986, another bill to reinstate sodomy as a crime was announced, but it never was introduced. ¹⁵²

Period Summary: Indiana joined the ranks of states enacting psychopathic offender laws after World War II. As with other states, the law followed a series of sensationalized sex crimes. Indiana, unlike other states, has fairly detailed documentation of how the law was used. A number of consenting adult Gay men were processed under this law, as was one heterosexual man for "unnatural acts" with his wife. Between 1964 and 1970, the Indiana Supreme Court had the most outspokenly anti-sodomy law judge in the nation, Associate Justice Amos Jackson. The Court upheld nine of 11 sodomy convictions before it during these years, but Jackson voted to overturn eight of them. He argued forcefully in dissent that the sodomy law was unconstitutionally vague and overbroad, and that the psychopathic offender law suffered from the same defect. Although a new criminal code adopted in 1976 repealed the sodomy law, there have been two attempts in the legislature to reinstate the law. One was in 1977 during the backlash caused by Anita Bryant’s crusade against the Dade County civil rights ordinance and the other was in 1986 during one of the periodic hysterias over the AIDS epidemic.

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 Laws of the territory of the United States north-west of the Ohio, adopted and made by the governour and judges, in their legislative capacity, at a session begun on Friday, the XXIX day of May, one thousand eleven [sic] hundred and ninety-five, and ending on Tuesday the twenty-fifth day of August following: with an appendix of resolutions and the ordinance for the government of the territory. (Cincinnati:W. Maxwell, 1796), enacted July 14, 1795.

² Laws of the Territory of Michigan 1805-1821, (Lansing:W.S. George & Co., 1871), page xii-xiii.

³ Illinois Historical Collections, Vol. XXI, Laws of Indiana Territory 1801-1809 (Springfield:Illinois State Historical Library, 1930), page 247, §23, enacted Sep. 17, 1807.

⁴ Id.

⁵ Interestingly, Harrison was elected President in 1840 after a bitter election in which his supporters accused President Martin Van Buren of being Gay.

⁶ Illinois Historical Collections, at 250, §30.

⁷ Revised Statutes of Indiana 1838 Public and Private, page 398, ch. LX, enacted Jan. 2, 1818.

⁸ 1 Blackf. 63, decided during July Term 1820.

⁹ Id. at 66.

¹⁰ Revised Statutes of Indiana, (Indianapolis:Douglas & Maguire, 1831), page 180, ch. XXVI, enacted Feb. 10, 1831.

¹¹ Statutes of Indiana, Vol. 1, ([Indianapolis?]:Gavin & Hord, 1852), page 415, ch. LXXXVII, enacted May 31, 1852.

¹² Id. at 416, §II.

¹³ 10 Ind. 355, decided during May Term, 1858.

¹⁴ Id. at 356.

¹⁵ Acts 1881 Indiana, page 174, ch. XXXVII, enacted Apr. 14, 1881, effective Sep. 19, 1881.

¹⁶ Id. §100.

¹⁷ Id. §1996.

¹⁸ Acts 1905 Indiana, page 584, ch. 169, enacted Mar. 10, 1905.

¹⁹ Id. at 694, §473.

²⁰ 101 N.E. 629, decided Apr. 25, 1913.

²¹ Id. at 631.

²² Id. at 631-632.

²³ Id. at 632.

²⁴ Id.

²⁵ 141 N.E. 309, decided Oct. 31, 1923.

²⁶ Id. at 310.

²⁷ Id. at 311.

²⁸ 143 N.E. 360, decided Apr. 9, 1924.

²⁹ Id. at 361.

³⁰ 19 N.E.2d 267, decided Feb. 20, 1939.

³¹ Id. at 268.

³² Id.

³³ 25 N.E.2d 995, decided Mar. 25, 1940.

³⁴ Id. at 996.

³⁵ Id.

³⁶ 51 N.E.2d 356, decided Nov. 23, 1943.

³⁷ Id.

³⁸ 145 F.2d 451, decided Nov. 8, 1944.

³⁹ Id. at 452. The original case of State ex rel. Spence v. Worden (39 N.E.2d 733, decided Feb. 27, 1942) was a brief per curiam that amazingly said the court lacked jurisdiction to hear Spence’s claim because he was in jail, as if an incarceration made it impossible for judges to review possible trial errors.

⁴⁰ 145 F.2d, at 453.

⁴¹ 57 N.E.2d 943, decided Dec. 11, 1944.

⁴² Id. at 944.

⁴³ Id. at 945.

⁴⁴ Id. at 945-946.

⁴⁵ Alfred Kinsey et al., Sexual Behavior in the Human Female, (Philadelphia:W.B. Saunders, 1953), page 485.

⁴⁶ Robert C. Bensing, "Sex Law Enforcement in Indianapolis," 4 Western L.Rev. 33, at 36 (1952).

⁴⁷ Acts 1907 Indiana, page 377, ch. 215, enacted Mar. 9, 1907.

⁴⁸ Id. at 378.

⁴⁹ Id.

⁵⁰ H.C. Sharp, The Sterilization of Degenerates, (no publication data), page 8.

⁵¹ Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 63. Curiously, Marshall, a strong opponent of sterilization, served as Vice President under Woodrow Wilson who, as Governor of New Jersey, had signed that state’s sterilization law. Although a sterilization law was not enacted until 1907, it was practiced at the Indiana Reformatory since 1899 without legal authorization. Id.

⁵² Correspondence from Robert Horton, Indiana State Archives, Jan. 18, 1996.

⁵³ 15 Law Notes 47 (June 1911).

⁵⁴ Id.

⁵⁵ Id.

⁵⁶ Id. at 47-48.

⁵⁷ 131 N.E. 2, decided May 11, 1921.

⁵⁸ Id.

⁵⁹ Acts 1949 Indiana, page 328, ch. 124, enacted Mar. 7, 1949.

⁶⁰ Id. at 329, §1.

⁶¹ Id. at 330, §8.

⁶² Anthony and Susan Jamart Granucci, "Indiana’s Sexual Psychopath Act in Operation," 44 Ind.L.J. 555, at 559 (Summer 1969).

⁶³ Id. at 560.

⁶⁴ 1949 Opinions of the Attorney General, page 12, issued Jan. 25, 1949.

⁶⁵ Id.

⁶⁶ Id. at 14.

⁶⁷ 111 N.E.2d 727, decided Apr. 24, 1953.

⁶⁸ Id. at 728.

⁶⁹ 204 F.2d 740, decided May 8, 1953. Rehearing denied June 17, 1953. Cert denied, 346 U.S. 825, Oct. 12, 1953.

⁷⁰ 204 F.2d, at 742.

⁷¹ Id.

⁷² Jerome Himelhoch and Sylvia Fleis Fava, eds., Sexual Behavior in American Society: An Appraisal of the First Two Kinsey Reports, (New York:Norton & Co., 1955), page 268.

⁷³ Elias S. Cohen, "Administration of the Criminal Sexual Psychopath Statute in Indiana," 32 Ind.L.J. 450 (1957).

⁷⁴ Id. at 451-452.

⁷⁵ Id. at 453.

⁷⁶ Id. at 454.

⁷⁷ Id. at 455.

⁷⁸ Id. at 455-456.

⁷⁹ Id. at 458.

⁸⁰ Id. at 467.

⁸¹ Acts 1959 Indiana, page 955, ch. 356, enacted Mar. 13, 1959, effective July 1, 1959.

⁸² Id. §1(a).

⁸³ Id.

⁸⁴ 172 N.E.2d 45, decided Jan. 31, 1961.

⁸⁵ Ott B. McAtee and George A. Zirkle, "A Descriptive Study of Criminal Sexual Psychopaths at Madison State Hospital," The Journal of the Indiana State Medical Association, 55:1010 (July 1962).

⁸⁶ Id.

⁸⁷ Id. at 1011.

⁸⁸ Anthony and Susan Jamart Granucci, "Indiana’s Sexual Psychopath Act in Operation," 44 Ind.L.J. 555, at 587 (Summer 1969).

⁸⁹ Acts 1963 Indiana, page 7, ch. 12, at 8, §9, enacted Feb. 23, 1963.

⁹⁰ 195 N.E.2d 98, decided Jan. 8, 1964. Rehearing denied Feb. 26, 1964.

⁹¹ Id. at 101.

⁹² 195 N.E.2d 471, decided Jan. 23, 1964.

⁹³ Id. at 473.

⁹⁴ Id. at 476.

⁹⁵ 222 N.E.2d 821, decided Jan. 24, 1967. Rehearing denied Mar. 29, 1967. Appeal dismissed for want of a substantial federal question, 389 U.S. 12, decided Oct. 9, 1967.

⁹⁶ 222 N.E.2d, at 821-822.

⁹⁷ Id. at 823.

⁹⁸ Id. at 824.

⁹⁹ 230 N.E.2d 602, decided Nov. 6, 1967.

¹⁰⁰ Id. at 609-610.

¹⁰¹ Id. at 610.

¹⁰² Id.

¹⁰³ 234 N.E.2d 636, decided Feb. 28, 1968. Rehearing denied Apr. 9, 1968.

¹⁰⁴ Id. at 643.

¹⁰⁵ Id. at 643-644.

¹⁰⁶ Id. at 644.

¹⁰⁷ Id. at 646.

¹⁰⁸ 394 F.2d 873, decided Apr. 17, 1968. Rehearing denied May 29, 1968. Rehearing denied en banc May 29, 1968. Cert denied, 393 U.S. 847, decided Oct. 14, 1968.

¹⁰⁹ 394 F.2d, at 875-876.

¹¹⁰ 238 N.E.2d 280, decided July 1, 1968.

¹¹¹ Id. at 282-283.

¹¹² 240 N.E.2d 809, decided Oct. 16, 1968.

¹¹³ Id. at 811-812.

¹¹⁴ 246 N.E.2d 179, decided Apr. 7, 1969.

¹¹⁵ Id. at 180.

¹¹⁶ Id.

¹¹⁷ Id. at 181.

¹¹⁸ 261 N.E.2d 68, decided July 29, 1970.

¹¹⁹ Id. at 70.

¹²⁰ Id. at 70-71.

¹²¹ 263 N.E.2d 150, decided Oct. 26, 1970.

¹²² Id. at 150-151.

¹²³ 265 N.E.2d 22, decided Dec. 22, 1970.

¹²⁴ Id. at 23.

¹²⁵ Id. at 25.

¹²⁶ Jackson’s surprisingly superficial obituary revealed that he had served as a prosecuting attorney, probation officer, and an attorney with the U.S. War Department before his judgeship. See the Indianapolis Star, Oct. 2, 1972, 25:1.

¹²⁷ 268 N.E.2d 84, decided Apr. 6, 1971. Rehearing denied May 20, 1971.

¹²⁸ Id. at 86.

¹²⁹ Id.

¹³⁰ Id. at 87.

¹³¹ Id. at 88.

¹³² Id.

¹³³ Id. at 88-89.

¹³⁴ Id. at 90.

¹³⁵ Id.

¹³⁶ Acts 1971 Indiana, page 2084, Public Law No. 452, enacted Apr. 8, 1971.

¹³⁷ Id. at 2085, §2(a)(5) and (6).

¹³⁸ Acts 1973 Indiana, page 1732, Public Law No. 320, enacted Apr. 16, 1973.

¹³⁹ Id. at 1733-1734, §3.

¹⁴⁰ 296 N.E.2d 918, decided June 11, 1973. Rehearing denied July 10, 1973.

¹⁴¹ Id. at 923-924.

¹⁴² 322 N.E.2d 384, decided Feb. 6, 1975.

¹⁴³ Id. at 385-386.

¹⁴⁴ Acts 1976 Indiana, page 718, Public Law No. 148, enacted Feb. 25,1976, effective July 1, 1977.

¹⁴⁵ See pages 733-734 (§2) for the new language concerning sexual assaults.

¹⁴⁶ House Bill 1173, introduced Jan. 5, 1977. The bill was sponsored by far-right Representative Donald Boys (R-Greenwood). He was defeated for renomination in the 1978 Republican primary.

¹⁴⁷ The Advocate, Vol. 214 (Apr. 20, 1977), page 35.

¹⁴⁸ 482 N.E.2d 1372, decided Oct. 1, 1985.

¹⁴⁹ Id. at 1376.

¹⁵⁰ Id.

¹⁵¹ Id.

¹⁵² Washington Blade, Apr. 4, 1986, page 10.

Indiana

• Statute: Repealed 1977

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