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

Maryland
"[T]hat most horrid and detestable crime (among christians not to be named,) called Sodomy."

The Colonial Period, 1607-1776

A charter granted by King Charles I in 1632 ¹ gave the Maryland proprietor, Lord Baltimore, and his heirs the right to "ordain, make, and enact laws, of what kind soever, according to their sound discretions[.]" ² The only restriction on the laws was that they be "consonant to reason, and be not repugnant or contrary" to the laws of England. ³ Even though this vague command did not seem to adopt the laws of England expressly, those statutes were regarded as in force in Maryland.

Despite the harshness of English penal law carried to Maryland, the colony apparently was carnally oriented. In 1676, one Episcopal rector claimed that, "All notorious vices are committed; so that it is [sic] become a Sodom of uncleanness and a pest-house of iniquity." ⁴

Period Analysis: Maryland, alone among the colonies, clearly recognized English law as in force. Just why this was so is unknown, since neither the governing charter nor any local statute provided for English law.

The Post-Revolution Period, 1776-1873

In 1776, after Independence, Maryland adopted a Declaration of Rights ⁵ that specifically adopted the common law of England. ⁶

For the period of 161 years that Maryland operated solely off the English common law, there were only three prosecutions for sodomy, two resulting in acquittal, and one in a verdict of "ignoramus." ⁷

A unique statute of 1793 ⁸ adopted a penalty for sodomy applicable only to males, allowing justices of the peace to hand down a sentence of

labour for any time, in their discretion, not exceeding seven years for the same crime, on the public roads of the said county, or in making, repairing or cleaning the streets or bason [sic] of Baltimore-town; and the said justices may procure a proper place or places for the confinement of such criminals, and may appoint and employ a fit and proper person or persons to take care of such criminals, and to keep them, (and if necessary, secure them in irons), to constant and hard labour, according to their age, health and strength of body, and to cause the said criminals to be cloathed with necessary and coarse apparel, and fed with bread and coarse meat, and water, and not allowed any kind of strong liquor, except only as a medicine, by the prescription of a physician, who may be employed by the said justices to attend and furnish medicines to the said criminals; and the said justices may compel any of the said criminals to wear such badge or mark of distinction as they shall direct; and any one of the said justices shall have full power to order any of the said criminals to be close confined, and whipped, not exceeding thirty-nine lashes, for any misconduct, or refusal or neglect to labour, and to be fed with bread and water only, for such time as the said justices shall direct. ⁹

A separate provision mandated a penalty of death for any slave who committed sodomy, although a justice of the peace could commute the sentence to a maximum of 14 years at hard labor, a sentence twice that for free persons. ¹⁰

In 1809, a new statute was enacted ¹¹ changing the penalty for sodomy to 1-10 years, eliminating the discrimination between slave and free, and eliminating all of the details of punishment from the 1793 law.

The first reported sodomy case in Maryland also was the first known reported case in the United States. In 1810, the Court of Appeals decided Davis v. State. ¹² By a vote of 4-1, the Court upheld an indictment that charged that Davis,

not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on &c. with forms and arms at, &c. in and upon one W C, a youth of the age of 19 years, in the peace of God, and the state of Maryland, then and there being, did make an assault, and him the said W C, then and there did beat, would, and ill-treat, with an intent that most horrid and detestable crime (among christians not to be named,) called Sodomy, with him the said W C, and against the order of nature, then and there feloniously, wickedly and devilishly, to commit and do, to the great displeasure of Almighty God, contrary to the act of assembly in such case made and provided, and against the peace, government, and dignity of the state. ¹³ [Emphasis the Court’s].

An 1847 book for justices of the peace in Maryland defined the crime of sodomy as "carnal knowledge committed against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with beast." ¹⁴

Period Analysis: Maryland remained one of the more primitive of the original colonies in terms of law. Despite independence from England, Maryland’s first constitution recognized the English common law and this remained the basis for much of Maryland law throughout this time period. The first published sodomy case in Maryland, which was the first in the nation, appealed to religion (an adjunct of the common law) for its justification, an action unnecessary given Maryland’s sodomy law. A guidebook for justices of the peace revealed that the English common-law definition of sodomy was recognized by Maryland courts.

The Victorian Morality Period, 1873-1948

During the period just before World War I, many cities in the country established vice commissions to investigate sex conditions in the cities and make recommendations. Maryland created a statewide commission which issued its report in 1915. Although concentrating heavily on conditions in Baltimore, the commission did study other cities, including Annapolis and Frederick. In its report, ¹⁵ heterosexual and homosexual activity were castigated equally. "Perversion," which was defined as fellatio, was noted as practiced by female prostitutes, ¹⁶ as were the "unusual forms of perversion" of heterosexual masochism and sadism. The report was erroneous both in the spelling of masochism ("mochochism") and in referring to masochism as a desire to hurt another, with sadism defined as a desire to be hurt. ¹⁷ Conversations with physicians revealed to the investigators that "many forms of perversion are found among married people." ¹⁸ All of the investigation of homosexuality was confined to seven pages of a more than thousand-page report. The investigators located 15 "young men scattered about the city" (Baltimore) "who practiced perversion for money." Police had gone undercover upon learning of this form of prostitution and arrested 25 men on charges of "assault" for consensual activity. ¹⁹ Also discovered was "a kind of organization" composed of between 40 and 60 males who "meet in rooms and have disgusting sexual orgies." Cited as Gay slang and labeling their speaker as Gay were terms "how charming," "most enchanting," "gorgeously delicious," and "oh, my dear." ²⁰ Gay men also liked to write letters. ²¹ A large number of actors were Gay. ²² An unidentified all-male school investigated was found to be a hotbed of homosexuality, ²³ although the description of it and a venereal disease epidemic therein sound suspiciously like a Baltimore reform school epidemic reported in 1886.

Obviously as a result of this report, a statute of 1916 ²⁴ added a new section prohibiting oral sex, with a penalty of up to 10 years and/or a $1,000 fine. The law also prohibited any undefined "unnatural or perverted sexual practices." ²⁵ Clearly, per the report of the Vice Commission, both homosexual and heterosexual activity was intended to be covered, despite what the Maryland Court of Appeals said more than seven decades later in the Schochet case (q.v.).

In 1920, Maryland enacted a law ²⁶ prohibiting soliciting for the purpose of lewdness ²⁷ and that defined "lewdness" to be only "any unnatural sexual practice." ²⁸

This section was construed by the Maryland Court of Appeals in the case of Lutz v. State, ²⁹ from 1934. Judge T. Scott Offutt, speaking for the unanimous court, found that the statute "is directed to the suppression of sexual vice and perversion practiced for gain[.]" ³⁰

The second reported case in the state was Berger v. State ³¹ from 1941. This was a heterosexual sodomy case, with a physician being prosecuted. Berger challenged his conviction because he had been found guilty of both an "unnatural and perverted sexual act" and assault and battery. Its importance is only that it stated that standard procedure in Maryland was to charge a defendant with "several offenses" and, if found guilty of some or all, to pass judgement only on the most serious of them. ³²

The Kinsey Period, 1948-1986

The next reported case also was heterosexual in nature. In 1952, in Haley v. State, ³³ the Court of Appeals unanimously sustained the right of the state to prosecute heterosexual "unnatural and perverted practices."

A study published early in 1956 ³⁴ analyzed court sentences for those convicted of sodomy or "unnatural and perverted practices" in the city of Baltimore over a 2½-year period (July 1952 through December 1954). First, it was stated that penal sanctions for homosexual activity

naturally reflect the basic attitudes of the sentencing judge. These are dependent upon his convictions and his prejudices, born of his early training, his life experiences, his religious beliefs, and, perhaps above all in this area, upon his psychosexual make-up. ³⁵

Sex offenders now constituted 20% of those referred by judges to the court’s psychiatric clinic, not because of an increase in the number of sex offenses being committed, but because of the increasing belief of judges that psychiatrists could be of help in such cases. ³⁶ The sentences given by judges in Baltimore did not mirror the

gross discordance that is reported to exist in some courts. There seems to be an unexpected degree of unanimity in regard to the types of cases in which probation should be used and in those to which long prison sentences should be given. One cannot in fairness say of any one of these sentencing judges that he showed an unreasonable attitude toward sexual offenders as a group nor in any particular type of sexual offense. ³⁷

In the 2½-year period studied, only 26 "homosexual offenders" were before the courts, an average of one every five weeks. A table detailed the offenses and the disposition by the court in each case. Eight of the 26 (31%) were charged with sodomy, which, under Maryland law, is limited to anal sex. Thirteen (50%) were charged under the "unnatural and perverted practices" law, which conceivably could cover just about any erotic act. Four (15%) were charged with "assault" and one (4%) with "disturbing the peace." All offenders were male and the racial breakdown was 54% white and 46% black. Six of the eight sodomy cases were with minors, although almost all were adolescent. In two cases, those convicted were committed to a mental institution, and the other four received prison terms ranging from 1½-8 years, all under than the maximum of 10 years allowable under state law. Two cases were of a Gay male couple whose recorded "crimes" were "living as man & wife with youth, 20" and "living with man as wife." No indication is given as to how they were apprehended. The older was given probation and the younger got three months in jail. Of the 13 charged under the "unnatural and perverted practices" law, seven were with minors, most of them adolescents, and all of them involving fellatio. One of the seven was of a father fellating his 13-year-old son. The other six were consensual activity between adults, four of them fellatio and two mutual masturbation. Of the seven involved with minors, three received probation, and three got sentences of less than a year. The father who fellated his son got 41 years total, due to incest with his daughter as well. Of the four "assault" cases, one involved "touching genitals of boy in movie," one for giving a ten-year-old boy whiskey and then masturbating him, one for "forcing 4 yr. boy to ground," and one for "having 6 yr. boy suck his tongue." The first case received probation with psychotherapy, and the last received three months in jail. The other two received sentences of three or seven years. The solitary "disturbing the peace" conviction was for "anal intercourse with adults." The offender was a "confirmed homosexual prostitute" and received three months in jail. Among the "remarks" for the offenders: one of those convicted for fellatio: "Last Job: Santa Claus." One of those convicted of anal sex: "Psychotic after arrest." One arrested for mutual masturbation: "Claims was asleep." The partner of one prosecuted for fellatio "suicided after arrest." ³⁸ Despite the small samples available to the researcher, it was noted that probation was given to one-third of homosexual offenders, but one-half of heterosexual offenders. ³⁹ One of the conclusions of the study was that sexual activity between consenting adults was "viewed benignly" by the Baltimore judges. ⁴⁰

In 1956, in Blake v. State, ⁴¹ the Maryland Court of Appeals unanimously rejected a challenge to the "unnatural and perverted sexual practices" statute as being vague and uncertain. The Court felt that

statutes should be expressed in language as specific as the subject matter will permit, but it is obviously impossible to define some types of crime by a detailed description of all possible cases that might arise. ⁴²

In 1957, in Gregoire v. State, ⁴³ the Court of Appeals unanimously sustained the "unnatural and perverted sexual practices" conviction of a man for consensual relations with two teenage boys. One of the boys "made no objection to anything that appellant did, although he knew it was wrong." ⁴⁴ The second boy said during the trial that "he made no effort to get away from the appellant[.]" ⁴⁵ The Court rejected Gregoire’s contention that this implied consent and made the boys accomplices. ⁴⁶

In another case from 1957, Taylor v. State, ⁴⁷ the Court of Appeals split 4-1 to uphold the conviction of a man for an "assault" to commit sodomy for unzipping a teenage hustler’s pants and soliciting him. The hustler, on several previous occasions, had engaged in fellatio with the defendant for money. ⁴⁸ The majority stated that such an act constituted a breach of the public peace and permitted prosecution of the offender under laws dealing with contributing to the delinquency of a juvenile. ⁴⁹ In dissent, Judge William Horney believed that the "assault" complained of was not sufficient to constitute an "aggravated assault" under state law. ⁵⁰

The 1958 case of Jefferson v. State, ⁵¹ showed that consensual relations even with a pubescent minor was not considered so serious a crime. Louis Jefferson, a teacher, received two years in prison for "contributing to the delinquency of a minor" for relations with a 14-year-old male. Because Jefferson could have received up to 10 years in prison if prosecuted under the "unnatural and perverted practices" law, the Court of Appeals felt that he had nothing to complain about in his appeal.

In the case of Canter v. State, ⁵² from 1961, the Court of Appeals unanimously upheld a conviction that followed an indictment charging the defendant with committing "buggery," even though the term is not found in the Maryland criminal code. ⁵³ Canter and his co-defendant were caught in a consensual act of sodomy by "police who carried flashlights." ⁵⁴

In Bradbury v. State ⁵⁵ in 1964, the Court of Appeals unanimously upheld a sodomy conviction in which the jury found proof of penetration despite the victim’s statement that he did not think that the penis actually penetrated him. ⁵⁶

In 1964, the Court of Appeals decided McKenzie v. State. ⁵⁷ In this case, four teenagers were playing cards at McKenzie’s house, where, "as a joke" three of them removed the trousers of the fourth, on whom McKenzie then allegedly performed fellatio. One of the other three stayed over night with McKenzie, at which time an act of fellatio was said to have been performed on him as well.

Also in 1964, the Court of Appeals, in Daniels v. State, ⁵⁸ unanimously upheld the applicability of the state’s "unnatural and perverted practice" law to acts between people of the opposite sex. Following Berger and Haley, this third case seemed to create a strong precedent that heterosexual activity was prohibited by the laws. Later, the Court of Appeals would pretend these cases never occurred.

The first victory in a sodomy case was in 1967 in Gorski v. State. ⁵⁹ The Court of Appeals unanimously determined that the trial court committed reversible error when it permitted a police officer to testify that the defendant had been arrested in Washington for indecent exposure and "had a sex problem." ⁶⁰

A law review article in 1970 ⁶¹ gave information as to public policy in Maryland. A state commission recommending changes in criminal law voted 12-2 to recommend the decriminalization of "private homosexual acts of adults." The action "may well rival capital punishment and abortion in its potential for arousing public controversy." ⁶² Current practice in Maryland included frequent entrapment in Baltimore by "decoy" police from the vice squad, ⁶³ and suicides sometimes resulted from sodomy arrests. ⁶⁴ The article noted that the anxiety that some people feel toward homosexuality

is arguably a social harm of a sort which may justify efforts at control if homosexual activity can be controlled. ⁶⁵

But "the best argument for repressing homosexuals" was that "it performs a social good in assisting latent homosexuals to deny their homosexuality." ⁶⁶ Perhaps the most important statement concerning the government’s philosophy in the article was one of the arguments given against the repeal of sodomy laws: "Medical science has not advanced far enough so that treatment is a reasonable alternative for punishment. The law must do the best it can, and at present it is better to punish than to treat." ⁶⁷

The actual proposed code was published in 1972. ⁶⁸ The code would have set an age of consent for sodomy at 19, but 16 for penile-vaginal intercourse. The reason for this was that "males generally mature later than females." ⁶⁹ Thus, the commission believed that sodomy was a uniquely male-male event. This bias was reinforced by two other comments as to the reasoning for the commission’s recommendation for decriminalization. One was that incarceration in "the all-male environment of a prison" was "hardly appropriate punishment for homosexual behavior" ⁷⁰ and that "Adult homosexuals often persuade teen-aged boys to engage in homosexual conduct by offering them money." ⁷¹

The Maryland Court of Special Appeals decided the interesting case of Hughes v. State ⁷² in 1972. Hughes had been convicted under the "unnatural and perverted practices" law with another male who was under 18. The Court refused to rule on the law’s constitutionality, but pointed out that it apparently covered married couples. Such sexual activity, it believed, was not "consistent with the description of the marriage relationship" made by the U.S. Supreme Court in the Griswold contraceptives case. ⁷³ Hughes also raised the novel claim that imprisonment was not appropriate for such a crime, because in prison violators could continue to engage in such activity. The Court ignored this aspect of his claim and decided simply that imprisonment for criminal activity was not unconstitutional. ⁷⁴ Hughes also objected to the warrantless seizure of a book of his, Guidebook to Sexual Positions between Consenting Adult Males. The Court found that it was seized because it was spotted in the course of serving a lawful warrant. ⁷⁵

The Maryland legislature enacted a new sexual offenses law in 1976, ⁷⁶ but didn’t exactly follow the recommendations of the state commission. The Senate passed a law that included repeal of the sodomy and unnatural and perverted sexual practices laws, but the conservative House Judiciary Committee reinstated the provisions. Repeal bills also passed the Senate in 1977 and 1987, but failed to be considered by the House. ⁷⁷

In the 1978 case of Lucado v. State, ⁷⁸ the Court of Special Appeals decided that a male victim’s alleged heterosexuality was irrelevant to a decision as to his "chastity" under the pre-1976 sexual assault laws. ⁷⁹

The Court of Special Appeals decided Kelly v. State ⁸⁰ in 1980 and rejected a privacy challenge. Part of the reason for the Court’s support for the law was its "ancient vintage," including references in Exodus, Leviticus, and Deuteronomy. ⁸¹

In 1981, the Court of Special Appeals, in Kirby v. State, ⁸² upheld the right of a trial court to admit a 25-year-old sodomy conviction into evidence against the defendant to impeach his credibility on a charge of assault to commit rape.

The Court of Appeals decided the case of Neville v. State ⁸³ in 1981, which is rich in detail as to the prosecution of sodomy in Maryland. An apparently voyeuristic police officer named Brewer noticed the act of fellatio between Neville and a woman and hid in a wooded area witnessing the entire performance, waiting until Neville reached orgasm to arrest the pair. Even though Maryland law permitted a sentence of up to 10 years in prison, defendant Neville only was fined $10 and costs, both of which were suspended. ⁸⁴ Undoubtedly two men or two women would not have been treated so leniently. By a vote of 6-1, the Court rejected the privacy rights of the heterosexual defendants. In dissent, Justice Rita Davidson claimed that the semi-secluded wooded area in which Neville was fellated was a private place and entitled to constitutional protection. ⁸⁵

The curious case of Diehl v. State, ⁸⁶ was decided in 1982 by the Court of Appeals. By a vote of 4-3, the high court overturned the disorderly conduct conviction of Robert Diehl for saying "fuck you" to a police officer who arrested him illegally. Speaking for the majority, Justice Harry Cole found that the words did not "excite sexual desire" in the police officer, so it could not fall under the statute being prosecuted. ⁸⁷ Officer Vincent Gavin had been forced into the situation of acknowledging either that he had acted illegally in arresting Diehl, which would throw out the prosecution, or, in order to save the prosecution, saying that he was sexually aroused by the thought of being penetrated anally by him.

In 1984, in Ross v. State ⁸⁸ the Court of Special Appeals split 2-1 to reverse part of a conviction of a man for unnatural and perverted sexual practices with a 15-year-old male. He videotaped an act of fellatio with the teen and this tape and others were seized without a warrant by arresting police officers. Ross was also convicted of unlawful interception of oral communications on the basis of this tape but, because it had no sound track, the Court overturned this portion of the conviction. It allowed the conviction for the sexual act to stand. ⁸⁹

Period Analysis: Unlike most states, there were neither statutory changes nor published sodomy cases in Maryland during the late Victorian period. A statewide vice commission studying conditions in 1915 nevertheless recognized widespread sodomy—both homosexual and heterosexual—and condemned each equally. The following year, the legislature enacted an "unnatural and perverted practices" law with a broad prohibition of sexual activity not covered by the sodomy law. Clearly, the law was aimed at both sexual orientations. The first two published sodomy cases of the century concerned heterosexual sodomy. Later decisions by the state courts rejected the idea that opposite-sex or marital sodomy were exempt from prosecution.

The Post-Hardwick Period, 1986-Present

A prosecution for indecent exposure in a federal park was sustained in United States v. Lanen, ⁹⁰ in 1989. Lanen had entered a restroom and began masturbating in a toilet stall. An undercover park police officer, to whom he had spoken earlier, stood watching Lanen, whose back was to him. Lanen, on more than one occasion, looked over his shoulder and noticed the officer, Edward Ramos, looking at him. He believed that Ramos was interested and turned toward him, being immediately arrested for "an obscene act." ⁹¹ Lanen argued that Ramos’s apparently interested watching of him, and his inability to be seen by the public removed his act from its public aspect. ⁹² Judge J. Frederick Motz decided that, even if Ramos was not alarmed by the act, "there was certainly the risk that other members of the public who might have entered the bathroom in the interim would have been" and he affirmed the conviction. ⁹³

In 1990, the Court of Appeals decided the case of Schochet v. State, ⁹⁴ in which it ruled 5-2 that the state’s sodomy and unnatural and perverted sexual practices laws could not be applied constitutionally to consenting adults of the opposite sex. In a ludicrous opinion ignoring contrary decisions in Berger, Haley, Daniels, and Hughes, and utterly disregarding the 1915 Vice Commission report, Justice Eldridge reviewed reported sodomy cases and noted that all were for homosexual activity, activity with minors, or activity in public places. ⁹⁵ Then, stating that none of the reported cases in Maryland involved "consensual, non-commercial, heterosexual activity between adults in the privacy of the home" the Court added that this was "a strong indication that such conduct is not within the contemplation of [the laws]." ⁹⁶ The Court failed to note that there also is no reported case involving two women or consenting adult males in private, but did not add that the law does not contemplate this activity, either, and made no mention of the possibility of discriminatory enforcement. The Court then went on to analyze why the sodomy and unnatural and perverted sexual practices laws were not repealed in the 1976 law revision. The Maryland legislature "may" have kept the law knowing that heterosexual activity was not covered, or it "may" have decided that homosexual acts still should be prohibited, or it "may" have decided that public sex was covered by it, or it "may" have decided to have it cover consensual activity with minors. ⁹⁷ Thus, with this clear legislative mandate, the Court of Appeals yanked heterosexual adult activity from the law’s reach, even while not conceding that the legislature "may" have wanted it to be covered. Lest anyone think that there were two enlightened members of the Court, the dissent was to uphold the conviction of the heterosexual defendants and to rule that their conduct was just as illegal, and the prohibition just as constitutional, as that of others. ⁹⁸

In 1991, in Lancaster v. State, ⁹⁹ the Court of Special Appeals unanimously rejected the right of a sodomy defendant to inquire into the past sexual practices of his partner. Lancaster argued that the information was necessary to establish consent and, therefore, the need of corroboration, but the Court disagreed. ¹⁰⁰ The Court of Appeals later heard Lancaster’s appeal ¹⁰¹ and issued a curious decision. By a vote of 5-2 the Court ruled that his conviction for unnatural and perverted practices and for a fourth-degree sexual offense had to merge into one crime. The one that controlled, the Court said, was the fourth-degree sexual offense, which had a maximum penalty of only one year in jail. As the dissenters pointed out, the logic of the court’s decision was that

an unnatural or perverted sex practice by an adult on an adult carries up to ten years’ imprisonment, but if committed by an adult on a 14 or 15-year-old child, there is merger of offenses and the maximum punishment for the act will be reduced to one year. ¹⁰²

The sodomy and unnatural and perverted sexual practices remained in force until 1998 and 1999, when a judge, in separate decisions, struck them down. The first to fall was the "unnatural and perverted practices" statute. In Williams v. Glendenning, ¹⁰³ Judge Richard Rombro found that the law, after its judicial limitation to same-sex couples in the Schochet case, violated equal protection of the law. Three months later, Rombro extended his decision to cover the sodomy law. ¹⁰⁴

Although common-law crimes remain recognized, it is unlikely that any court would allow a prosecution for sodomy under the common-law provision if the corresponding statute violates the constitution. ¹⁰⁵

Period Analysis: Despite a lengthy, unbroken string of case law that heterosexual sodomy was illegal, in 1990 the Maryland Court of Appeals reversed course without acknowledging that it did so. The Court insisted that heterosexual sodomy never had been covered by Maryland law, despite the 1847 guidebook, the 1915 vice commission report, and at least four previous decisions by the same court, all to the contrary, one less than a decade before. This decision came back to haunt the Court when another judge struck down both the sodomy and unnatural and perverted practices laws on equal protection grounds.

Footnotes

¹ Printed in Laws of Maryland 1799, Vol. I, n.p, adopted June 20, 1632.

² Id.

³ Id.

⁴ Howard B. Woolston, Prostitution in the United States Prior to the Entrance of the United States into the World War, (New York:The Century Co., 1921; reprint Montclair NJ:Patterson Smith, 1969), page 9.

⁵ Id. n.p. "The Declaration of Rights, and the Constitution and Form of Government of the State of Maryland," adopted Oct. 14, 1776.

⁶ Id. §3.

⁷ William Kilty, ed., A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland, and Which by Experience Have Been Found Applicable to Their Local and Other Circumstances; and of Such Others As Have Since Been Made in England or Great-Britain, and Have Been Introduced, Used and Practised, by the Courts of Law or Equity and Also Such Parts of the Same as May be Proper to be Introduced and Incorporated into the Body of the Statute Law of the State, (Annapolis:Jehu Chandler, 1811), page 161, ch. 6. Unlike most states, Maryland has a very strong history of recognizing sodomy as a common-law crime, as well as recognizing common-law crimes. In State v. Buchanan, 5 H. & J. 317 (1821), the Maryland Court of Appeals noted that the common law existed, among other reasons, "to correct the morals" of the public. In Day v. State, 7 Gill 321 (1848), the Court mentioned the defendant’s "novel and extraordinary proposition" that the common law was not in force in Maryland.

⁸ Virgil Maxcy, ed, The Laws of Maryland, Vol. II, (Baltimore:Philip H. Nicklin, 1811), page 212, ch. LVII, enacted during a session that ran from Nov. 4 through Dec. 29, 1793.

⁹ Id. at 215, §X.

¹⁰ Id. at 216, §XIII.

¹¹ Maxcy, Vol. III, page 460, §8.

¹² 3 H. & J. 154, decided Dec. 1810.

¹³ Id.

¹⁴ John Latrobe, ed., The Justices’ Practice under the Laws of Maryland; including the Duties of a Constable, (Baltimore:Fielding Lucas, Jr., 1847), page 318, §1539.

¹⁵ Maryland Vice Commission Report, 5 vols., (no publication data, 1915).

¹⁶ Id. Vol. 1, at 102-103; Vol. 2, at 91; Vol. 3, at 144.

¹⁷ Id. Vol. 1, at 103.

¹⁸ Id. at 429.

¹⁹ Id. at 423.

²⁰ Id. at 424.

²¹ Id. at 424-425.

²² Id. at 425.

²³ Id. at 425-427.

²⁴ Laws of Maryland 1916, page 1293, ch. 616, enacted Apr. 18, 1916.

²⁵ Id. at 1294, §439-A.

²⁶ Laws of Maryland 1920, page 1436, ch. 737, enacted Apr. 16, 1920.

²⁷ Id. at 1437, §19(e).

²⁸ Id. at 1438, §19-A.

²⁹ 172 A. 354, decided Apr. 26, 1934.

³⁰ Id. at 356.

³¹ 20 A.2d 146, decided May 20, 1941.

³² Id. at 148.

³³ 88 A.2d 312, decided May 7, 1952.

³⁴ Manfred S. Guttmacher, "The Homosexual in Court," American Journal of Psychiatry, 112:591-598 (Feb. 1956).

³⁵ Id. at 591.

³⁶ Id. at 593.

³⁷ Id. at 596.

³⁸ Id. at 594-595 (Table).

³⁹ Id. at 596.

⁴⁰ Id. at 598.

⁴¹ 124 A.2d 273, decided July 11, 1956.

⁴² Id. at 274.

⁴³ 128 A.2d 243, decided Jan. 8, 1957.

⁴⁴ Id. at 244.

⁴⁵ Id. at 245.

⁴⁶ Id. at 246-247.

⁴⁷ 133 A.2d 414, decided June 26, 1957. Rehearing denied July 31, 1957.

⁴⁸ Id. at 415.

⁴⁹ Id. at 415.

⁵⁰ Id. at 418.

⁵¹ 147 A.2d 204, decided Dec. 22, 1958.

⁵² 168 A.2d 384, decided Mar. 16, 1961.

⁵³ Id.

⁵⁴ Id.

⁵⁵ 197 A.2d 126, decided Jan. 30, 1964.

⁵⁶ Id. at 127.

⁵⁷ 204 A.2d 678, decided Nov. 23, 1964.

⁵⁸ 205 A.2d 295, decided Dec. 7, 1964.

⁵⁹ 228 A.2d 835, decided Apr. 21, 1967.

⁶⁰ Id. at 836-837.

⁶¹ Robert G. Fisher, "The Sex Offender Provisions of the New Maryland Criminal Code: Should Private, Consenting Adult Behavior Be Excluded? 30 Maryland L.Rev. 91 (Spring 1970).

⁶² Id. at 91.

⁶³ Id. at 92, n.10.

⁶⁴ Id. at 93, n.12.

⁶⁵ Id. at 98.

⁶⁶ Id.

⁶⁷ Id. at 107.

⁶⁸ State of Maryland Commission on Criminal Law, Proposed Criminal Code, June 1, 1972.

⁶⁹ Id. at 192, comment following §130.30.

⁷⁰ Id. at 193, 3.

⁷¹ Id. 5.

⁷² 287 A.2d 299, decided Feb. 16, 1972. Cert. denied by Maryland Court of Appeals, Apr. 11, 1972. Cert. denied, 409 U.S. 1025, decided Nov. 20, 1972.

⁷³ 287 A.2d, at 304.

⁷⁴ Id. at 306-307.

⁷⁵ Id. at 307-308.

⁷⁶ Maryland Laws 1976, ch. 573, enacted May 17, 1976.

⁷⁷ For the 1977 effort, see the Washington Post, Mar. 29, 1977, page 3C:2. For the 1987 effort, see the Washington Blade Mar. 6, 1987, page 1; Mar. 13, 1987, page 1; Mar. 20, 1987, page 4; and Apr. 3, 1987, page 1.

⁷⁸ 389 A.2d 398, decided July 13, 1978.

⁷⁹ Id. at 402-407.

⁸⁰ 412 A.2d 1274, decided Apr. 10, 1980.

⁸¹ Id. at 1277.

⁸² 426 A.2d 423, decided Mar. 9, 1981.

⁸³ 430 A.2d 570, decided June 3, 1981.

⁸⁴ Id. at 573.

⁸⁵ Id. at 581.

⁸⁶ 451 A.2d 115, decided Oct. 13, 1982. Cert. denied, 460 U.S. 1098, decided Apr. 18, 1983.

⁸⁷ 451 A.2d, at 120.

⁸⁸ 475 A.2d 481, decided June 6, 1984.

⁸⁹ Id. at 490.

⁹⁰ 716 F.Supp. 208, decided June 28, 1989.

⁹¹ Id. at 209.

⁹² Id. at 210.

⁹³ Id. at 211.

⁹⁴ 580 A.2d 176, decided Oct. 9, 1990.

⁹⁵ Id. at 184-185.

⁹⁶ Id. at 185.

⁹⁷ Id. at 186.

⁹⁸ Id. at 186-187. A law review article praised this decision for its "sense of justice." See Thomas F. McKeon, "The Court of Appeals of Maryland Turns to Statutory Construction to Avoid Constitutional Right-to-Privacy Issue," 21 U.Balt.L.Rev. 139 (1991).

⁹⁹ 585 A.2d 274, decided Feb. 6, 1991. Cert. denied, 589 A.2d 73, decided May 1, 1991. Judge Eldridge voted to hear the case.

¹⁰⁰ 585 A.2d, at 279-280.

¹⁰¹ 631 A.2d 453, decided Oct. 7, 1993.

¹⁰² Id. at 485.

¹⁰³ No. 98036031/CL-1059 (Baltimore City Cir. Ct.), decided Oct. 15, 1998.

¹⁰⁴ www.geocities.com/privacylaws/USA/MAryland/mdnews07.htm, decided Jan. 19, 1999.

¹⁰⁵ Maryland Constitution, Art. 5.

Maryland

• Statute: Declared unconstitutional, 1999. 27-553, Sodomy
• Penalty: 10 years
• Classification: Felony
• Restrictions: None.

• Statute: Declared unconstitutional, 1998. 27-554, Unnatural or Perverted Sexual Practices
• Penalty: 10 years/$1000
• Classification: Felony
• Restrictions: None.

27-554, Unnatural or Perverted Sexual Practices, found not to be constitutional when applied to noncommercial, heterosexual activity in private. Schochet v. State, 1990.

Schochet v. State found to apply equally to homosexual acts. Williams v. Glendening, 1998.

27-553 found to also be unconstitutional in a 1999 settlement with the ACLU which argued Williams v. Glendening.

Statute

§ 553. Sodomy

Every person convicted of the crime of sodomy shall be sentenced to the penitentiary for not more than ten years.

§ 554. Unnatural or Perverted Sexual Practices

Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court.

And in any indictment for the commission of any of the acts, hereby declared to be offenses, it shall not be necessary to set forth the particular unnatural or perverted sexual practice with the commission of which the defendant may be charged, nor to set forth the particular manner in which said unnatural or perverted sexual practice was committed, but it shall be sufficient if the indictment set forth that the defendant committed a certain unnatural and perverted sexual practice with a person or animal, as the case may be.

History

From: JBOUSHKA@aol.com
To: queerlaw@abacus.oxy.edu
Date: Wednesday, July 14, 1999 8:35 AM
Subject: *QL*: Tulane Univ article on sodomy laws by Dirk Selland

Dirk Selland (from Selland v. Perry, 905 F. Supp 260 (D. Md 1995) challenging Don’t Ask, Don’t Tell) has recently had published his essay "Will Maryland Enter the Twenty-First Century on the Right Direction by Rescinding Its Ancient Sodomy Statutes?" in Tulane University School of Law Law and Sexuality, A Review of Lesbian, Gay, Bisexual and Transgender Legal Issues, Volume 8, 1998, pp. 672-688.

I urged those of you with access to a law library to read it. (I don’t know whether it is yet on the w.w.w.) It presents a very detailed history of sodomy laws, back to colonial times, and a history of state litigation as well as Bowers v. Hardwick (1986) and the recent litigation in Maryland. At the ends, he concludes "The issue of equal rights and civil justice cannot be randomly supported simply based on which group seeks protection at the moment. Equal rights, whether for homosexuals, racial minorities, women, or the disabled represent the same context in which present day issues such as repealing a sodomy statute that targetrs gays must be considered."

This essay was (apparently) submitted to a NLGLA Writing Competition and published as a result.

Bill

News

• Gay Father Appeals Custody Ruling - Washington Post, February 3, 2005
• Gay Father Fights Antigay Custody Restriction - The Advocate, February 2, 2005
• Ouster of Gay Partner ‘Negative’ - Associated Press, January 31, 2005
• Appeal in Case of Gay Couple Ordered to Split Up Over Child - 365Gay.com, January 31, 2005
• Gay Pair Appeals Order to Split Over Child - Gay.com, January 31, 2005
• NCLR and Lambda Legal File Appeal on Behalf of Gay Dad in Maryland Custody Case - NCLR and Lambda Legal, January 31, 2005
• Ruling on Gays Stirs Up Emotions - June 28, 2003
• Maryland Front Should Remain Quiet - January 11, 2002
• Letter: Definition of Sodomy Shouldn't Be Ignored - April 1, 1999
• Maryland Judge's Ruling Protects Private, Consensual Sex Acts - January 20, 1999
• Gay, Lesbian Activists Target Maryland Law Southeast County Briefs - January 19, 1999
• Maryland Trial Judge Rules Sodomy Law Does Not Apply to Gays in ACLU Challenge, But Sustains Solicitation Law - October 20, 1998
• Court Rejects Maryland Oral Sex Ban - October 19, 1998
• ACLU Hails Swift Court Action in Voiding Maryland's Criminal Ban on "Unnatural Sex" - October 19, 1998
• ACLU Hails Judge’s Ruling Against Maryland Law Affecting Gays - October 17, 1998
• Homosexuals Win Challenge to State Sex Practices Law - October 17, 1998
• Gay, Lesbian Activists Target Maryland Law Southeast County Briefs - August 26, 1998
• Picking up the pieces - June 19, 1998
• Anti-Gay Bias Alleged in Md. Sex Law - February 6, 1998
• Maryland’s Criminal Ban on ‘Unnatural Sex’ Targeted by ACLU Class-Action Suit - February 5, 1998
• Pols asked to modernize adultery law - January 29, 1998
• Pr. George's Judge Arrested In Restroom - January 16, 1998
• ACLU targets Maryland sodomy law - January 2, 1998
• Executioner Requests Payment - Proceedings and Acts of the General Assembly, October 21, 1681

Editorials

• Letters: Gay Rights as Source of Strength - July 5, 2003