jquery slideshow by WOWSlider.com v8.7

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

Massachusetts
 "The detestable and abominable sin of buggery with mankind or beast, which is contrary to the very light of nature."

The Colonial Period, 1607-1776

I. Plymouth Colony 1620-1691

It appears that the earliest colonists did not necessarily adopt English laws when they settled Massachusetts. There is no record of a sodomy prosecution in Plymouth or Massachusetts Bay until after the adoption of the first statute against it. The Mayflower Compact, signed in 1620 upon arrival at Plymouth, required all settlers to obey laws that might be enacted by the colony, but was silent as to the laws of England. 1

In 1629, five "beastly Sodomitical boys" were discovered on a ship bound from England to Plymouth. They were not prosecuted in Plymouth, but sent back "to be punished in Old England as the crime deserved." 2 The penalty for sodomy in England at this time was death.

In 1636, Plymouth Colony adopted a set of laws 3 that included a sentence of death for sodomy and buggery, although the law made no mention of gender, unlike the male-only English law.

In 1637, two men in Plymouth, John Allexander and Thomas Roberts, were tried for "lewd behavior and unclean carriage." 4 They engaged in frottage with each other, apparently frequently. Allexander was sentenced to be "severely whipped" and "burnt in the shoulder with a hot iron" as well as banished from the colony. Roberts also was "severely whipped" and returned to his master. The death penalty was not exacted because the two did not actually engage in sodomy.

Two other men were prosecuted for a similar offense in 1642. Edward Michell and Edward Preston were found guilty of "lewd & sodomitical practices tending to sodomy." 5 Again, because they did not engage in sodomy proper, their penalty was lighter than death. They were sentenced to be "whipped" publicly twice.

In 1649, there were two more sentences. First, Sara Norman and Mary Hammon were convicted of "lewd behavior each with [the] other upon a bed." 6 No specificity was given in the charge as to the exact nature of the behavior, but it again fell short of the colonists’ definition of sodomy. Norman was sentenced only to public acknowledgement of her "unchaste behavior" and Hammon was not prosecuted.

Later that year, Richard Berry and Teage Joanes were held on charges of sodomy and "other unclean practices." 7 The charge made by Berry against Joanes apparently was false, and Berry was sentenced to be "whipped at the post."

In 1671, the Plymouth law was changed 8 to adopt the wording of Leviticus and to exempt those under fourteen years of age and those who were victims of assault from prosecution. 9

II. Massachusetts Bay Colony 1629-1691

The first charter for the Massachusetts Bay Company was granted by the King of England in 1629. Because the charter named no site for its meetings, the company moved itself to New England and set itself up in what now is the Boston area, but actual government structure did not take place until several years later. The charter was determined to be invalid by English officials, but the colonists refused to surrender it. 10

A proposed sodomy law for Massachusetts Bay, suggested in 1636 by John Cotton, would have made sodomy between two men or between two women a capital offense, with relations between men and women legal. 11 It was not enacted. 12

In 1637, the English government attempted to force the colony to surrender its charter, but was not successful. 13

After a period of turbulence over religious doctrine, Massachusetts Bay enacted its first set of criminal laws in 1641 14 that was misnamed the "Body of Liberties." The sodomy provision 15 adopted the wording of Leviticus.

The first known prosecution was that of servant Elizabeth Johnson in 1642. 16 She was sentenced to a fine and to be "severely whipped" for unspecified "unseemly practices betwixt her and another maid[.]"

A curious case from 1670 involved William Stacey, apparently a teenager or young man, who voluntarily asked for punishment because "Satan[,] having filled his heart & layed a temptation before him, his corrupt nature was ready to embrace it." Whatever this temptation, it "afflicted" his parents and master’s family. He asked the court to be "instrumental for his humbling; & he hoped forever a reclamation from any horrid vice." The court obliged him, directing that he wear a rope outside his clothing and that he receive a flogging. 17

In 1684, the English government finally successfully revoked the charter of Massachusetts Bay Colony, thus restoring the colony to royal rule, reinstating the English sodomy law in the colony. 18

III. Massachusetts 1691-present

A new charter granted in 1691 merged Maine, Plymouth, and Massachusetts Bay colonies into the single colony of Massachusetts. Thus, the English buggery statute was in effect in all three areas. 19

In 1697, the above colonies were united into Massachusetts. New laws were enacted, including one against sodomy. 20 A preamble to the law stated that its purpose was to avoid

the detestable and abominable sin of buggery with mankind or beast, which is contrary to the very light of nature[.] 21

The language of Leviticus was modified slightly, but the reach of the law covered only male-male contacts between humans. The death penalty was retained. 22

A prosecution and apparent death sentence for a violation of this law took place in 1712. 23 A man known only as Mingo was indicted on a charge of "forcible Buggery." He apparently was tried almost immediately and he was found guilty. Mingo may have been hanged a couple of weeks later, but the evidence is not clear.

Period Analysis: Puritan Massachusetts treated sodomy and other erotic activity harshly. The only two documented cases of Lesbians being prosecuted for sexual activity during the colonial era both occurred in Massachusetts. This harshness was not based on English law, but on statutes of local origin and based upon Biblical proscriptions in Leviticus.

The Post-Revolution Period, 1776-1873

The Massachusetts law next was changed in 1785 24 by eliminating the moralizing preamble from the law. 25

The Massachusetts Supreme Court unanimously decided in the 1804 case of Commonwealth v. Leach et al. 26 that the common law of England and all statutes made in supplementation of it were in force in Massachusetts. 27

The next change in the sodomy law was made in 1805 28 when the death penalty was reduced to solitary confinement for up to one year, followed by hard labor for up to 10 years. 29 The crime also was reworded to eliminate the Leviticus-like language and forbade "any man" from committing the "crime against nature with any man or male child[.]" 30

A new code adopted in 1835 31 revised the sodomy law three ways. First, the law was made gender-neutral. 32 Second, the maximum penalty was doubled to 20 years. 33 Third, the references to solitary confinement and hard labor were eliminated. 34

An 1853 guide for justices of the peace 35 published a standard complaint for sodomy referring to all acts of sodomy as being committed by a laborer, as an assault, and against a male. 36 This showed the prevailing belief about sodomitical acts in Massachusetts.

Although it did not lead to a prosecution, famed author Horatio Alger (then a minister) was accused of violating the sodomy law with several boys in his parish in Brewster in 1866. Alger left town just a step ahead of a lynch mob. He left for New York City where he obtained immortality with his writing. 37

The first reported sodomy case in Massachusetts was Commonwealth v. Snow, 38 decided in 1873. This was a case of consensual sodomy that led to remorse on the part of the solicited party, who attempted suicide. The Massachusetts Supreme Court ruled that Willard Smith, the solicited party, was an accomplice, and that his testimony needed corroboration. The corroboration offered was deemed sufficient by the Court, and Snow’s conviction was affirmed. 39

Period Analysis: Massachusetts was the fourth of the twelve colonies with a death penalty for sodomy to reduce the penalty to a term of imprisonment. Although that perhaps is surprising considering its history of puritanism, the residual penalty still was severe. The state recognized only the common-law definition of sodomy, thus freeing Lesbians from prosecution.

The Victorian Morality Period, 1873-1948

A law adopted in 1879 40 prohibited the sale, lending, gift, exhibit or offer to sell, lend or give away any "instrument or other article intended to be used for self-abuse[.]" 41 This, although aimed at masturbation, obviously included sex toys.

In 1887, the Massachusetts legislature enacted a statute 42 creating an entirely separate crime from the sodomy law, "unnatural and lascivious acts." This clearly was an attempt to cover oral contacts. The penalty was less than that for sodomy, a fine of $100-$1,000 and/or a prison term of up to five years, or up to three years in a house of correction. 43 Indictments for this crime did not have to give a description of the act charged, but a defendant could ask for a bill of particulars. 44

The first reported case under this law was Commonwealth v. Dill, 45 decided in 1894. The unanimous decision by the Massachusetts Supreme Court, that then included Oliver Wendell Holmes, was that an indictment saying only that a defendant committed "a certain unnatural and lascivious act" was sufficient. 46

In 1908, the Massachusetts Supreme Court decided the case of Commonwealth v. Delano. 47 This exceedingly brief and nonspecific case decided that "any and all unnatural and lascivious acts" were outlawed by the 1887 statute, whether or not they included copulation. 48

Two unsuccessful bills in the 1914 legislative session concerned morals. One 49 would have permitted the warrantless arrest of any person found committing any of the "morals" crimes. Another 50 would have required a full trial for any person accused of any "morals" crime, prohibiting disposition through guilty pleas or pleas of nolo contendere.

In 1915, a law was enacted prohibiting resorting to any café, restaurant, or saloon "for the purpose of immoral solicitation or immoral bargaining." 51

A law to make "substantive corrections in existing laws" was enacted in 1918. 52 A provision lowered to 2½ years the maximum sentence for a male convict in the house of correction, 53 which affected the 1887 law’s existing three-year maximum there. This also lowered the penalty for violation of the "sex toys" law. 54

In 1921, the Massachusetts Supreme Court unanimously upheld a conviction for maintaining a nuisance in Commonwealth v. Porter. 55 A house in which "indecent and unnatural acts were committed by men with others of their sex" was found to be in violation of state law, even though the acts did not occur between men and women. 56 The Court also found the silence of the house’s proprietor (the defendant) when informed of the goings-on therein to be relevant to the trial, and admissible as evidence against him. 57

In 1923, Massachusetts enacted a law 58 that permitted the trial judge to bar the public from trials in which the victim of "any crime involving sex" was under 17 years of age. 59

This law was changed in 1931 60 to raise the age to 18 for any victim of a sex crime and remains substantially the same today. 61

A statute from 1939 62 required notice to police and the furnishing of personal data about any person convicted of sodomy who was about to be released from a penal or corrective institution in the state. 63

Another law of the same year 64 revised the "immoral bargaining" law by replacing the word "saloon" with the term "tavern." 65

In 1943, the Massachusetts legislature enacted a law 66 requiring the filing of a mental health report on any persons arrested for sodomy, before they could receive bail. 67

Apparently this created an administrative nightmare because, in 1945, the law was weakened 68 so that the reports were required only for those arrested a second time. 69

Massachusetts enacted a psychopathic offender law 70 in 1947. The law defined a psychopath as those

who by an habitual course of misconduct in sexual matters have evidenced an utter lack of power to control their sexual impulses and who, as a result are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desires. 71

This law did not make it clear that these evil individuals actually had to commit a crime in order to trigger the operation of the law. In fact, any person knowing of such a person could file a petition in the probate court to have proceedings instituted. 72 The court could order a commitment, and the person so committed was to be held until full recovery from the psychopathy. 73 The breadth of this law made it possible for any Gay man or Lesbian to be committed by the local homophobe.

Despite this law, a special commission created by the legislature continued to investigate sex crimes and make recommendations against them. The preliminary report 74 issued in 1947 noted that the three areas with which the commission had been charged specially to investigate were 1) the feasibility of mandatory sentences for sex crimes; 2) stricter parole supervision of sex criminals; and 3) the advisability of segregation of the criminals while incarcerated. 75 The brief, six-paragraph report concluded that meaningful suggestions could not be made by the committee without "going beyond the limits imposed" by the authorizing resolution. 76 Although the commission "has achieved considerable progress, the magnitude of the task has prevented completion of the investigation." 77 In a suggested law, the commission defined "sexual deviate" as one whose "expression of the sexual instinct" was "associated with the infliction of injury, loss or pain on any person, creature or object, or which in the expression thereof constitute a public nuisance and evidence a deficiency of moral sense or control." 78 The commission did not explain how an "object" could suffer pain from the sexual desires of a person, and by referring to "a public nuisance," apparently attempted to cover consensual sex in quasi-public places.

The final report 79 noted that, over a 43-year period studied, sex crimes had remained a very small percentage of all crimes prosecuted in Massachusetts and boldly stated, regarding the claim that sex crimes were on the increase: "If sex crimes seem more numerous, it is because those involving violence capture the headlines and arouse the public emotionally." 80 All categories of sex crime had been reviewed by the commission, including sodomy, but the

range of behavior involved in these acts [all sex crimes] is too great, they differ too widely in their danger to the public, and the steps necessary to protect the public from them are too distinct to permit of consideration in a single legislative program. 81

Some sex offenses, including sodomy and unnatural and lascivious act, "justify further investigation of the offender to determine whether he is potentially dangerous." 82 In defining who was a "sexual deviate," the commission chose a definition of "atypical" sexual activity, which it chose over the word "abnormal." 83 The reasoning behind rejecting "abnormal" was not given. Indeterminate sentences were rejected by the commission because the public would be protected from the deviate only during the period of incarceration 84 and institutions were rampant with sex offenses themselves. "Imprisoning a sex offender in a mass-custody penal institution is like committing a malarial patient to a swamp." 85 Recommended instead were "psychiatric study and therapy and a good activity program." 86

Period Analysis: Massachusetts lived up to its tradition of puritanism by enacting one of only four laws in the nation outlawing the use of "sex toys" and being one of the first states to expand the reach of sodomy laws to cover oral sex when it outlawed "unnatural and lascivious acts" in 1887, although the penalty for such acts was less than that for sodomy. This statute was interpreted to include "any and all" such acts, apparently allowing the prosecution of any erotic activity. Massachusetts also was among the early states to enact a "psychopathic offender" law, but its law permitted the law to be exercised against any person thought to be "sexually abnormal" by another citizen, whether or not the "abnormal" person committed a crime.

The Kinsey Period, 1948-1986

In 1950, a medical journal article 87 reported on how sex offenders, including those under the "unnatural and lascivious act" statute, were handled in court. A total of 14% of the sex offenders arrested in one year in the city of Cambridge were under this law, and the law was used to arrest numerous people for unusual opposite-sex sexual activity as well as same-sex activity. "Unnatural act is also a complaint frequently brought against homosexuals." 88 Social workers, at whom the journal was aimed, heard "a lot about homosexuals." Most caused no problems for society and the

best advice to give the true biological homosexual is that he should restrict his sex life to his own home with other homosexuals and keep out of public places and avoid seducing boys. 89

A critical analysis of the psychopath law was published in 1952. 90 First, it was pointed out that the psychopathic offender law had been enacted "as a result of considerable public clamor for legal checks against sex crime[.]" 91 The law was "awkward and oblique[.]" 92 The results of the harsh law included that "relatively minor sex deviates whose crimes are misdemeanors" were committed for life to an institution. 93 No mental health care was given by other states with such laws to those institutionalized under the law. 94 Despite all the hoopla, only one person had been committed under the law in the five years of its existence. 95

One of the earliest constitutional challenges to a sodomy law was decided by the Massachusetts Supreme Court in 1954 in Jaquith v. Commonwealth. 96 Kenneth Jaquith had been convicted under the "unnatural and lascivious acts" statute. The unanimous decision was that, although the Constitution required sufficient definition of any criminal offense, 97 the words "unnatural and lascivious act" were

of common usage and indicate with reasonable clarity the kind and character of conduct which the Legislature intended to prohibit and punish. These words have a well defined, well understood, and generally accepted meaning. 98

They signified

irregular indulgence in sexual behavior, illicit sexual relations, and infamous conduct which is lustful, obscene, and in deviation of accepted customs and manners. 99

The Court felt that it was

enough to say that it generally has been held that the common sense of the community, as well as the sense of decency, propriety, and morality which all respectable persons usually entertain, is sufficient to apply the statute to a situation and determine what particular kind of conduct offends. Further specification in the indictments would be an offence [sic] against common decency. 100

Thus, whatever a police officer or prosecutor felt at a particular time to be "unnatural and lascivious" was sufficient for prosecution.

The sweeping psychopathic offender law of Massachusetts was narrowed in a new law of 1954. 101 Now, in order to trigger the snare, one actually had to be convicted of a crime. Included in the list of triggering laws were sodomy, lewd and lascivious conduct, unnatural act, and an attempt to commit any of these crimes. 102

An analysis of this new law 103 explained that "abuses" occurred under the previous law, "in which a number of persons were committed without the proper legal safeguards of notice and a hearing." 104

The most famous name to be nabbed by the Massachusetts sodomy law was George Curley, the son of former Boston Mayor and Massachusetts Governor James Curley. The younger Curley was arrested in 1957, along with a physician, on "morals" charges involving a male teenager. 105

The psychopathic offender law was revised again in 1958. 106 It limited the applicability of the law to sexual acts with persons under the age of 16. 107

In the 1959 case of Commonwealth v. Marshall, 108 the Massachusetts Supreme Court unanimously permitted sodomy convictions based largely on circumstantial evidence. 109

A new law of 1960 110 excluded anyone convicted of sodomy or an attempt to commit it (but not unnatural and lascivious acts) from early release from parole. 111

In 1962, the "immoral bargaining" law again was amended 112 to make the owner or manager of the place criminally responsible for immoral bargaining occurring in the tavern.

A proposed new criminal code was published in 1972. 113 As proposed, the "crime against nature" and "unnatural and lascivious acts" laws would have been repealed, with the age of consent set at 16. 114 However, the code never has been enacted.

The change in both the times and the makeup of the Massachusetts Supreme Court were reflected in the next reported case, Commonwealth v. Balthazar, 115 decided in 1974. Overruling Jaquith and acknowledging the change in society in the previous 20 years as well as a right to privacy defined by the United States Supreme Court, Justice Herbert Wilkins spoke for the Court in saying that in light

of these changes and in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as [sic] monolithic as the Jaquith case suggested they were in 1954, we conclude that [the unnatural and lascivious acts statute] must be construed as inapplicable to private, consensual conduct of adults. 116

Curiously though, in this case the defendant’s conviction was upheld because his actions were not consensual. 117

In 1977, the Massachusetts Supreme Court overturned a conviction for an unnatural and lascivious act committed in a public place in Commonwealth v. Scagliotti. 118 The defendant had been convicted of consensual sex in a cubicle in a theatre. The Supreme Court agreed with Scagliotti that the trial court erred in instructing the jury that such a cubicle was a public place as a matter of law. 119 The Court felt that the issue of whether it was a public or private place was a matter for the jury to determine. 120

In 1980, the Massachusetts Supreme Court, dealing with the case of Commonwealth v. Sefranka, 121 shot down police actions entrapping Gay men into soliciting them and then arresting them as a "disorderly person" or a "lewd, wanton and lascivious person." The action occurred at a public rest area in which the men out cruising would flash head lights at other cars, and one would get out of the car and go into the other car for sex. Defendant Sefranka responded to undercover police flashing their headlights and was arrested when he solicited the police. 122 The unanimous decision was that the term "lewd, wanton and lascivious person" was unconstitutionally vague as it applied to consenting adults. 123

An unusual case from 1981, Riegle v. Terrizzi et al., 124 was decided by the Suffolk County Court of Appeals. Riegle, a reporter for Gay Community News, had been ordered to leave a public restroom area when he arrived to report on police arrests in the Boston Public Library. Riegle and the newspaper sought a preliminary injunction to prevent the police from barring them from the area during arrests. 125 The appellate court declared the suit to be "frivolous" and punitively gave the police defendants "double costs." 126

Also in 1981, the Massachusetts Supreme Court voted 4-3 to overturn a conviction for an "unnatural and lascivious act" in the case of Commonwealth v. Ferguson. 127 Ferguson had been arrested for being fellated in a parked car. Speaking for the majority, Justice Paul Liacos said that there was insufficient evidence that the parked car was a "public place." Considering that it was nighttime, that the car was parked in a mixed residential and commercial area of Boston, and that the temperature was below zero with a strong wind (thus with few people outside), Liacos found that the car’s location was such that Ferguson took "reasonable measures to secure [privacy]." 128 Writing for the dissenters, Chief Justice Edward Hennessey believed that there was "no reasonable expectation of privacy" in a parked car "in an urban area." 129

Less fortunate was the plaintiff in the 1984 case of Commonwealth v. Bloom. 130 The Court of Appeals unanimously upheld the conviction of Frederick Bloom for engaging in consensual sexual relations in a public restroom. The Court found that the conduct occurred in a public area of the restroom and that overhead surveillance of the urinals did not violate privacy rights since it was "conceivable" that the investigators hidden therein saw "no more than an upper body view[.]" 131 The Massachusetts Supreme Court refused to review this case. 132

Period Analysis: The first broad constitutional challenge to a sodomy law after the Kinsey studies were published was in Massachusetts. The state’s highest court upheld the law in 1954, arguing that it was necessary for the public good. The same year, the legislature greatly revised the psychopathic offender law, now requiring the commission of a criminal act in order to trigger the law’s operation. A change in the political and legal climate in Massachusetts led to a major reversal of constitutional law in the state. In 1974, the Massachusetts Supreme Court acknowledged that times had changed in the preceding twenty years and ruled that the state’s "unnatural and lascivious acts" law could not be applied to private, consensual adult acts. By logical implication, neither can the "crime against nature" law. The Court extended the definition of "private" to parked cars on deserted streets.

The Post-Hardwick Period, 1986-Present

In 1992, a shocking raid on a private home occurred in Boston. Mysteriously, a police officer obtained a pass to a "Boston Jacks" party where 160 men were engaging in an evening of mutual masturbation. No search warrant was used, and ten squad cars of backup police arrived. Arrests made were on the basis of obscenity and "operating a house of ill fame." Although a police official claimed that the raid was an "aberration," that it was outside police policy, and that it would not happen again, nothing in the article said that charges would be dismissed. 133

The Massachusetts Supreme Court put the brakes on the 1990s’s enthusiasm for sexual offender registration laws. In 1997, in Doe v. Attorney General, 134 the Court ruled unanimously that a man convicted of a misdemeanor same-sex sexual offense could not be subjected to the law without due process hearings.

The law concerning "immoral solicitation or immoral bargaining" in bars remains on the books 135 as is the one dealing with instruments for "self-abuse." 136

Period Analysis: Despite the judicial liberalism that has led to a major reversal of constitutional law in the state, statutes have remained that can’t be enforced. The "crime against nature" and "unnatural and lascivious acts" laws remain, though judicially emasculated.

Footnotes

1 Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 38.

2 The Founding of Massachusetts, (Boston:Massachusetts Historical Society, 1930), page 71.

3 Records of the Colony of New Plymouth in New England Laws 1623-1628, [sic] Vol. 11, (Boston:William White, 1861), page 12, enacted Nov. 15, 1636.

4 Records of the Colony of New Plymouth, Vol. 1, (Boston:William White, 1855), pages 64 and 68.

5 Id. Vol. 2, at 35-36.

6 Id. at 137 and 163.

7 Id. at 146-147 and 148.

8 The Compact, Charter and Laws of the Colony of New Plymouth, (Boston:Dutton & Wentworth, 1836).

9 Id. at 243-244, ch. II, enacted June 6, 1671.

10 Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), pages 42, 42-43, and 45.

11 William R. Staples, ed., The Colonial Laws of Massachusetts Reprinted from the Edition of 1672, (Boston:Rockwell & Churchill, 1890), page 35n.

12 Interestingly, Cotton was influenced by Anne Hutchinson, a religious dissenter who deemphasized the importance of the clergy in interpreting religious works and who advocated a "personal" religion. Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 46.

13 Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 46.

14 The Colonial Laws of Massachusetts Reprinted from the Edition of 1660 with the Supplements to 1672 Containing Also the Body of Liberties of 1641, (Boston:Maxwell & Churchill, 1889), enacted Nov. 1641. Religious dissenter Anne Hutchinson and her followers who challenged the authority of the clergy was the cause. The Hutchinsonites were expelled from Massachusetts Bay. Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 47.

15 Id. page 55, §8. The capital laws were called "Liberty #94."

16 Records and Files of the Quarterly Courts of Essex County, Vol. 1, (Salem:The Essex Institute, 1911), page 44.

17 Records of the Courts of Assistants of the Colony of the Massachusetts Bay 1630-1692, Vol. III, (Boston:County of Suffolk, 1928), pages 202-203. The case occurred on Sep. 8, 1670. Spelling has been modernized.

18 Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 64.

19 Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 69.

20 Acts and Resolves of Massachusetts 1692-1714, page 297, ch. 19, enacted Oct. 23, 1697.

21 Id.

22 Id.

23 The Diary of Samuel Sewall 1674-1729; Newly Edited from the Manuscript at the Massachusetts Historical Society by M. Halsey Thomas, Vol. 2, (New York:Farrar, Straus & Giroux, 1973), pages 677 and 678.

24 Acts and Resolves of Massachusetts 1784-85, page 126, ch. 46, enacted Mar. 3, 1785.

25 Id.

26 1 Mass. 59, decided during September Term 1804.

27 Id. at 60.

28 Acts and Resolves of Massachusetts 1804-05, page 209, ch. 133, enacted Mar. 16, 1805.

29 Id.

30 Id.

31 The Revised Statutes of the Commonwealth of Massachusetts, (Boston:Dutton & Wentworth, 1836), enacted Nov. 4, 1835.

32 Id. at 741, §14.

33 Id.

34 Id.

35 A Practical Treatise upon the Authority and Duty of Justices of the Peace in Criminal Prosecutions, (Boston:Little, Brown & Co., 1853).

36 Id. at 714, §1.

37 Edwin P. Hoyt, Horatio’s Boys: The Life and Works of Horatio Alger, Jr., (Radnor PA:Chilton, 1974), pages 1-6 and 60-63.

38 111 Mass. 411, decided during January Term 1873.

39 Id. at 417.

40 Acts and Resolves of Massachusetts 1879, ch. 159, enacted Mar. 26, 1879.

41 Id. §1.

42 Acts and Resolves of Massachusetts 1887, page 1099, ch. 436, enacted June 16, 1887.

43 Id.

44 Id. §2.

45 36 N.E. 472, decided Feb. 28, 1894.

46 Id. at 473.

47 83 N.E. 406, decided Jan. 11, 1908.

48 Id.

49 House Bill 2554, introduced May 1, 1914.

50 House Bill 2687, introduced June 1, 1914.

51 Acts and Resolves of Massachusetts 1915, page 160, ch. 180, enacted Apr. 19, 1915.

52 Acts and Resolves of Massachusetts 1918, page 230, ch. 257, enacted May 29, 1918.

53 Id. at 432, §464.

54 Id.

55 129 N.E. 298, decided Jan. 5, 1921.

56 Id. at 299.

57 Id. at 300.

58 Acts and Resolves of Massachusetts 1923, page 235, ch. 251, enacted Apr. 10, 1923.

59 Id.

60 Acts and Resolves of Massachusetts 1931, page 180, ch. 205, enacted Apr. 16, 1931.

61 Annotated Statutes of Massachusetts, ch. 278, §16-A.

62 Acts and Resolves of Massachusetts 1939, page 104, ch. 116, enacted Apr. 5, 1939.

63 Id.

64 Acts and Resolves of Massachusetts 1939, page 568, ch. 451, enacted Aug. 10, 1939.

65 Id. at 583, §66.

66 Acts and Resolves of Massachusetts 1943, page 347, ch. 330, enacted May 25, 1943.

67 Id.

68 Acts and Resolves of Massachusetts 1945, page 172, ch. 235, enacted Apr. 24, 1945.

69 Id.

70 Acts and Resolves of Massachusetts 1947, page 745, ch. 683, enacted July 1, 1947.

71 Id. §1.

72 Id. at 745-746, §2.

73 Id. at 746, §5.

74 Preliminary Report of the Special Commission Investigating the Prevalence of Sex Crimes, (Boston:Wright & Potter, 1948), House Report No. 1169, issued December, 1947.

75 Id. at 5.

76 Id. at 6.

77 Id.

78 Id. at 7-8.

79 Final Report of the Special Commission Investigating the Prevalence of Sex Crimes, (Boston:Wright & Potter, 1948), House Report No. 2169, issued April, 1948.

80 Id. at 4.

81 Id. at 4-5.

82 Id. at 8.

83 Id. at 8-9.

84 Id. at 11.

85 Id. at 12.

86 Id. at 13.

87 Henry M. Baker, "Sex Offenders in a Massachusetts Court," Journal of Psychiatric Social Work, 20:102-107 (1950).

88 Id. at 102-103.

89 Id. at 105-106.

90 William J. Curran, "Commitment of the Sex Offender in Massachusetts," 37 Mass.L.Q. 58 (Apr. 1952).

91 Id.

92 Id. at 59.

93 Id. at 61.

94 Id. at 62.

95 Id. at 63.

96 120 N.E.2d 188, decided June 4, 1954.

97 Id. at 191.

98 Id. at 191-192.

99 Id. at 192.

100 Id.

101 Acts and Resolves of Massachusetts 1954, page 725, ch. 686, enacted June 10, 1954.

102 Id. §3.

103 William J. Curran, ed., 1954 Annual Survey of Massachusetts Law, (Boston:Little, Brown & Co.), 1955.

104 Id. at 168-169 and 245-247.

105 Columbus Citizen, Sep. 6, 1957, 12:5.

106 Acts and Resolves of Massachusetts 1958, page 542, ch. 646, enacted Oct. 15, 1958.

107 Id. §3.

108 155 N.E.2d 798, decided Jan. 30, 1959.

109 Id. at 799.

110 Acts and Resolves of Massachusetts 1960, page 672, ch. 765, enacted Nov. 9, 1960.

111 Id. at 674, §4.

112 Acts and Resolves of Massachusetts 1962, page 108, ch. 224, enacted Mar. 13, 1962.

113 Proposed Criminal Code of Massachusetts with Revision Commission Notes, (Rochester:The Lawyers Co-Operative Publishing Company, 1972).

114 Id. at 103, §17(a)(1).

115 318 N.E.2d 478, decided Nov. 1, 1974.

116 Id. at 481.

117 Id. at 482.

118 371 N.E.2d 726, decided Nov. 9, 1977.

119 Id. at 727.

120 Id.

121 414 N.E.2d 602, decided Dec. 15, 1980.

122 Id. at 603.

123 Id. at 603-604.

124 417 N.E.2d 1227, decided Mar. 19, 1981.

125 Id. at 1228.

126 Id. at 1229.

127 422 N.E.2d 1365, decided July 1, 1981.

128 Id. at 1367.

129 Id. at 1369.

130 468 N.E.2d 667, decided Sep. 19, 1984.

131 Id. at 668.

132 471 N.E.2d 1354, decided Nov. 29, 1984.

133 Washington Blade, Oct. 16, 1992, page 32.

134 686 N.E.2d 1007, decided Nov. 17, 1997.

135 Annotated Laws of Massachusetts, ch. 272, §26.

136 Annotated Laws of Massachusetts, ch. 272, §21.

Divider

Massachusetts

  • Statute: 272-34, Crime Against Nature (Found unconstitutional by Doe v. Reilly)
  • Penalty: 20 years
  • Classification: Felony
  • Restrictions: Applies only to anal intercourse.
  • Statute: 272-35, Unnatural and Lascivious Acts (Found unconstitutional by Doe v. Reilly)
  • Penalty: 5 years/$100-$1000
  • Classification: Felony
  • Restrictions: Applies only to oral sex.

Unnatural and Lascivious Acts has been held not apply to private consensual adult behavior. Commonwealth v. Balthazar, Supreme Judicial Court 1974. The ruling may also apply to the Crime Against Nature. Gay and Lesbian Advocates and Defenders asked the Supreme Judicial Court to strike down the Crime Against Nature law. The case, Doe v. Reilly, reaffirmed Balthazar on February 21, 2002.

From George Painter: The '74 and '77 court cases wiped out both the CAN and ULA laws, since the court's opinions explicitly overruled the 1954 Jaquith case and decided that, notwithstanding the case being brought under the ULA law, private consensual activity was constitutionally protected in the state.

History

1648 Elizabeth Johnson is the first woman known to be prosecuted for sexual relations with another woman, in Massachusetts Bay Colony.
1697 The new Massachusetts sodomy law refers to sodomy as being “against the very light of nature,” the first statutory reference to nature in a sodomy law.
1821 The Massachusetts Supreme Court decides the nation’s first obscenity case that includes same-sex eroticism.
1921 The Massachusetts Supreme Court issues the first reported decision in the nation concerning sexual relations in a bath house.
1954 The Massachusetts Supreme Court upholds the state’s sodomy law in the first case in the nation to issue a broad challenge to it.

Statute

GENERAL LAWS OF MASSACHUSETTS

Chapter 272: Section 34. Crime against nature.

Section 34. Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years.

Case Law

GLAD’s lawsuit, Doe v. Reilly, asks the highest court of Massachusetts to strike these laws in their entirety and rid New England of its last sodomy laws. The case was found by the Massachusetts Supreme Judicial Court to lack merit as the law cannot be applied to private consensual acts. It was sent back to lower courts for dismissal.

  • Doe v. Reilly Complaint

Repeal Bills

Repeal of Archaic Sex Laws (House bills 2940, 2939 and 2943)

The Massachusetts Gay and Lesbian Political Caucus and the LGBT Political Alliance of Western Massachusetts have been working with a broad coalition of lesbian and gay organizations over the past year for passage of a bill repealing archaic laws. Included in the group working for repeal of these laws are the Equal Rights League, the Gay and Lesbian Bar Association, the Gay and Lesbian Defenders, the Attorney General's office, and the Fenway Victims Recovery Program.

The Criminal Justice Committee voted to send the bill to a "study committee," effectively killing it for this year.

The working group is continuing to meet and to strategize ways of bringing the bill out of committee this year (not very likely) and planning for next year.

Check out the current status of the bill from the State's web site.

Repeal Strategies

The most fun you'll ever have in a pledge drive! The Bisexual Resource Center presents the Sodomy Challenge. Try this at home!

News

Editorials

Advocates