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

Minnesota
 "[T]his was an offense that any person, no matter how depraved in morals or decency, would naturally hate to admit."

The Post-Revolution Period, 1776-1873

When the Minnesota Territory was organized in 1849 1 it received all the laws of Wisconsin. This included the sodomy statute of 1839 that provided for a penalty of 1-5 years in prison. 2 In 1851, the Territory enacted its own code of laws 3 that retained the penalty received from Wisconsin, with a common-law definition of the crime. 4 This same code abrogated common-law crimes. 5

Period Analysis: Minnesota’s first criminalization of sodomy was indirect, occurring merely by receiving the laws of Wisconsin upon organization by Congress. Nevertheless, the first local code adopted by the territory adopted its own sodomy law and utilized the common-law definition of it.

The Victorian Morality Period, 1873-1948

In 1888, the Minnesota Supreme Court confirmed, in the case of State v. Shaw, 6 that there were no common-law crimes in the state. No change was made in the sodomy law until 1909 when a statute 7 raised the penalty to a maximum of 20 years, with no minimum stated, and determined that the crime was complete upon penetration only. 8 Another statute from 1909 9 provided for the punishment of vagrants, who included any male person "who in any public place solicits for immoral purposes." 10 In 1921, the Minnesota legislature enacted a new statute 11 that redefined sodomy to include oral sex. 12 The first reported sodomy case in Minnesota was State v. Nelson, 13 decided in 1937. The defendant was a postal clerk accused of fellatio with several young men who was apprehended with the help of a postal inspector. Nelson, during interrogation, acknowledged the truth of the allegations, but said that he hated to admit it. The Minnesota Supreme Court noted that

this was an offense that any person, no matter how depraved in morals or decency, would naturally hate to admit. 14

In dictum, the Court made a pronouncement that would come back three decades later: "[H]usband and wife, if violating this statute, could undoubtedly be punished[.]" 15 In 1938, the Court faced its second case, State v. Panetti. 16 The conviction of the defendant was overturned because the trial court had not treated a 19-year-old male who procured a 16-year-old male for the defendant as an accomplice. 17 In 1939, after a wave of molestations of children in St. Paul, 18 Minnesota enacted the third psychopathic offender law in the nation. 19 The term "psychopathic offender" was defined to be

any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons. 20

The law provided that all laws of the state dealing with insane persons were to be extended to cover those with psychopathic personalities. 21 This law quickly was challenged and ended up in the U.S. Supreme Court in less than a year. In 1940, in Minnesota ex rel. Pearson v. Probate Court of Ramsey County et al., 22 the Court unanimously (including the Court’s noted civil libertarian majority of Stone, Hughes, Black, Douglas, and Murphy) upheld its constitutionality. The brief opinion by Chief Justice Charles Evans Hughes found the law to be in conformity with requirements of due process, because it afforded the defendant an adversary hearing and other rights. 23 The sustaining of this law encouraged other states to adopt similar laws. Despite the reference to dangerous people in this law, it was used mostly for persons "charged with homosexuality," and most were held for short periods of time, making it appear that most were processed under the law for consensual activity. 24 A 1947 address 25 to the International Association of Chiefs of Police meeting in Duluth helped to keep false and stereotyped beliefs before police. Dr. Carleton Simon, the criminologist of the organization, opened his address with a moralization:

Through the ages, society has done little to eradicate the evils and crimes recorded in the Bible and ascribed to the cities of Sodom and Gomorrah. 26

It was "our" belief that although "born" male homosexualists

have male sexual organs their minds are of the female type. This conclusion is further fortified by secondary female manifestations, their walk, their body contour, their voice, their mannerism, the texture of their skin and their inhibitions. There are, however, some exceptions to this rule of physical appearance; the individual may seem normal and of virile masculinity. 27

Having just contradicted himself, Simon went on to so do again in the last sentence of his next paragraph. Because

of their feminine mental trait, they like housekeeping, are artistic, adept in theatrical productions and choruses, skillful designers of female attire, and successful in many kindred pursuits. We also find them in executive positions of large enterprises. 28

"Being female in everything but their sex organs," they

early in life awaken to a realization of their attraction for men. When this knowledge conflicts with their moral sense, they frequently commit suicide. Some lead lonely lives. Others marry in an endeavor to overcome or cure their unnatural desires. They generally find this uncongenial and a failure. Many live as decent members of society, recognizing their sexual inversion, and try to hide this from their associates. Frequently, they seek medical advice for relief. These types rarely come to the official attention of the police. Many great men in recorded history were sexual perverts. 29

However, sometimes homosexuality was present in psychopathic personalities and, if so, these people are

brazen and indifferent to public opinion. They are highly egoistic, believing themselves superior to the rest of mankind. They derive pleasure in dressing in female attire, using rouge and facial makeup, and are adamant to the ridicule and disgust they create in the public mind.

There is a fraternal fellowship among them, their herding instinct being very pronounced; the promiscuous ones meeting in night clubs, or gathering in definite places, adopting female names, accentuating feminine mannerisms and exulting in obscene conversation. These types solicit men and are just as dangerous as female prostitutes in spreading venereal diseases. Many are addicted to the smoking of marihuana or cannabis indica, which has an inhibitory effect upon morals, releasing sexual impulses in the normal person and greatly so in the instance of the pervert.

Homosexualists without funds or gainful occupation, especially those whose shameful practices find them indifferent to public opinion, become venal prostitutes. They constantly seek wealthy immoral men upon whom they can fasten an abnormal sexual desire and to whom they cling as a leech. These types are blackmailers, sometimes accusing innocent men of making overtures of abnormal sexual acts. 30

Turning next to Lesbians, at least the psychopathic kind, Simon said that they

are given to exhibiting their yearnings by the cultivation of masculine habits, manner of wearing their hair and in mannish attire. They are fickle minded and always eager to add to their list of conquests. They seek new acquaintances, not solely as passive victims but also as active participants. Like the male counterpart, they find it repugnant to have intercourse with the opposite sex. They are likewise extremely jealous of the object of their lust. Like the male invert, they are found in all classes of society and in all races. Usually, large cities attract them, where the selective field is more expanded and where, if necessary, they can cover up their predilections. A great many are predatory prostitutes to obtain their living and to enable them to carry on their licentious practices without financial worry. 31

Simon then amazingly said:

We wish to take this opportunity to voice our condemnation of those character assassins who in whispering campaigns so frequently slander normal men and women in the public eye as being sex perverts. 32

Certainly, after the group character assassination Simon gave Gay men and Lesbians, being associated with such a group would be abhorrent to anyone. Simon then went on with descriptions of other "perversions," but none was afforded the language he reserved for homosexuality.

Period Analysis: It was not until the twentieth century began that any changes were made in the sodomy statute and not until nearly three decades later before a published case was handed down. Minnesota was one of the last Midwestern states to recognize oral sex as a violation of the sodomy law. However, it was one of the first states to enact a "psychopathic offender" law and this statute was the one whose constitutionality was affirmed by the U.S. Supreme Court, guaranteeing that other states would follow in enacting them. Despite this law’s stated purpose of protecting children and others from sexual assaults, Minnesota’s law was used mostly against consensual homosexual activity.

The Kinsey Period, 1948-1986

A sodomy conviction was upheld in the 1957 case of State v. Hopfe. 33 The Minnesota Supreme Court believed two teenagers who had continuing sexual relations for money with a man rather than the man who said that they were trying to blackmail him. Evidence used against Hopfe was a mattress inexplicably kept in his office and three towels put back into a box. The mattress and towels all had traces of semen on them. 34 In 1963, the Minnesota legislature passed a criminal code revision 35 that retained the abrogation of common-law crimes, 36 but did not make any change in the sexual offenses. The legislature believed the issue of consenting adults was too controversial, and postponed action on these laws until a later date. Also in 1963, the Minnesota Supreme Court ruled in State v. Mlynczak 37 that an attempt to persuade a 14-year-old male to engage in fellatio constituted a violation of the state law forbidding the inducement of a performance of an indecent act on a male or female under age 16. 38 In 1965, in State v. Anderson, 39 the Minnesota Supreme Court unanimously rejected intoxication as a defense against a charge of sodomy. Because the sodomy law required no particular state of mind to be present in order to establish guilt, intoxication could not be used as a defense. 40 In a case from 1966, State v. Schmit, 41 a sodomy conviction went down in flames after the Minnesota Supreme Court got hold of it. The trial court, over the defendant’s objection, issued an order that "because of the nature of the case, we’ll exclude the public." 42 The Supreme Court questioned whether the public could be excluded "solely because of the obscene nature of the crime." The Supreme Court conceded that the trial court

in deference to consideration of public decency and morality, was activated by the highest motives, for the record before us indeed reveals the sordid details of the most extreme type of vulgar, scandalous, and revolting conduct. 43

After a ponderous discourse on the pros and cons of excluding the public, the Court concluded that the defendant’s right to a fair trial had been violated. 44 In a dictum that was quite similar to that of the Nelson case, the Court stated that "it is conceivable that a husband and wife could be convicted of sodomy even though the proof established consent." 45 Also in 1966, the Court dealt with the case of State v. Tellock 46 and decided that a defendant could be convicted of an attempt to commit sodomy, even though he was not charged with any intent to commit the crime. 47 In 1967, the time arrived at which the Minnesota legislature was able to face the issue of consenting adult laws. Despite the recommendation of the American Law Institute, Minnesota felt that what consenting adults did in the privacy of their own home was the prosecutor’s business. A new sex offenses law 48 merely reduced the penalty for such acts from a felony to a misdemeanor, with that for sodomy set at up to one year in jail and/or a fine of up to $1,000. 49 The case of State v. Pooley, 50 from 1967, raised questions of whether homosexuality was a disease. Defendant Pooley entered a guilty plea only because of "a misapprehension of his rights." He

sought help for his homosexuality problem at Ancker Hospital, but was told there was nothing wrong with him and sent home. After the commission of the offense, but before the making of the complaint herein, he made arrangements to see a private psychiatrist, whom he consulted at least six times. 51

Because he was unable financially to continue with the psychiatric sessions, Pooley went to the St. Paul police where, after being promised "medical aid for his problem," he confessed to sodomy and "was led to understand that the prosecution for the crime was but a necessary formality, prerequisite to obtaining the treatment he needed." 52 Pooley ended up receiving, not "medical aid," but five years in prison, a sentence that the Court felt was not excessive. 53 In a footnote, the Court noted that the sodomy law "does not make criminal homosexuality or any other disease[.]" 54 Pooley’s case returned to the Supreme Court in 1969. 55 In Pooley II, the Court denied post-conviction relief on the same ground as sought in the first case. 56 In 1967, in State ex rel. Sanden v. Lund, 57 the Minnesota Supreme Court unanimously rejected a habeas corpus petition of a man in prison for nine years for sodomy. He claimed that the public defender in his case made "promises" that induced him to plead guilty. The Court, without specifying the promises, found the claim to be without merit. 58 In another 1969 case, State ex rel. Radke v. Tahash, 59 the Minnesota Supreme Court partially overruled the Nelson case to the extent that an act of indecent assault was found not to be included in the crime of sodomy. 60 Meanwhile, in 1969, Minnesota revised its psychopathic personality law 61 by merging its procedures with those covering insane persons, in effect, labeling the psychopaths as insane. This action gutted the reason for having separate laws in the first place. The first non-unanimous sodomy decision by the Court was the 1970 case of State v. Bryant. 62 A bitterly divided 4-3 decision overturned the conviction of a man arrested in a department store restroom. The store suspected that sexual relations were taking place in the restroom after the security supervisor, David Imire, discovered a glory hole cut between two stalls. Imire and a police officer then stationed themselves in the roof, looking down on the stalls, which led to the arrest of Bryant for making use of the glory hole. 63 After noting other court decisions concerning the same issue, which led to the reversal of convictions for violations of privacy, Chief Justice Oscar Knutson, writing for the majority, stated that

once the store provided facilities of such a nature that the user was assured of privacy, it could not destroy that privacy by giving its consent to secret surveillance by police. 64

In dissent, Justice Robert Sheran, who resigned shortly after the decision was announced, stated that his disagreement consisted "only" of the fact that

persons who use places of this kind for illegal activities which subvert the object of the owner’s invitation should not be allowed to shield their perversions by appealing to the court’s proper concern for the rights of others not involved in the prosecution. 65

Justice James Otis also dissented, noting the authorities’ "duty" to prevent

legitimate customers and their children from being exposed to defendant’s revolting deviant behavior. 66

A bill to repeal the state’s sodomy law was defeated in 1973 by the House of Representatives by a vote of 69-46, with 19 members not voting. 67 In State v. Schweppe, 68 from 1975, the Minnesota Supreme Court upheld a conviction for making "terroristic threats" against a male teenager with whom he had an ongoing sexual relationship unilaterally terminated by the teen. At Schweppe’s trial, the prosecutor made repeated references to his homosexuality, and the trial court reluctantly allowed the references to stand, despite their "prejudicial potential," because they were "inextricably connected to the state’s proof of the defendant’s purpose and intent." 69 The Court believed that the references were "excessive and tasteless," but not prejudicial to the defendant. 70 In 1982, in Henningsgard et al. v. Bouza et al., 71 Judge Neil Riley enjoined a bookstore owner from interfering with police "while in their official undercover capacity when on plaintiffs’ store premises" and from alerting patrons of the undercover police’s presence. 72 Also, viewing booths for films were limited to one person each. 73 Riley also prohibited the police from arresting bookstore owners due to sexual activity on the premises unless the police had reasonable cause to believe that the owners received money from the activity or actively encouraged it. 74 In 1984, Minnesota raised the maximum fine for consensual sodomy to $3,000, without changing the jail term. 75 The 1984 case of State v. Blom 76 was the first to deal with the issue of cunnilingus. "Sexual penetration" for purposes of the various sexual assault laws could be accomplished by cunnilingus, according to the Court. 77

Period Analysis: Although Minnesota enacted a new criminal code based on the Model Penal Code in 1963, far earlier than most states, it failed to follow the Code’s lead on sexual crimes. Four years later, during a time when the issue was thought to be less controversial, a new sex crime law was enacted that followed the Model Penal Code’s suggestions for sexual assaults, but still did not decriminalize consensual sexual activity. The compromise by the legislature was for the penalty to be reduced to a misdemeanor. Later attempts at repeal have failed. Minnesota was the first state after California to be confronted with the issue of the privacy rights of sex in a public restroom enclosed stall. By a single-vote margin, the Minnesota Supreme Court followed the California precedent, thus making sex in a restroom legal, but keeping it illegal in one’s home. The state courts generally have sustained sodomy convictions and in 1984 the law was interpreted to cover cunnilingus as well as fellatio.

The Post-Hardwick Period, 1986-Present

In 1987, the Minnesota Supreme Court decided State v. Gray. 78 A trial court decision striking down the state’s sodomy law as an infringement of privacy unanimously was reversed by the Court because Gray’s sexual activity was for hire. The Court noted that the state petitioned for an "expedited review" after the trial court’s decision. 79 Although the Court refused to attach privacy rights to Gray’s conduct, it did recognize a right of privacy under the Minnesota Constitution, which it limited to "fundamental rights." 80 The Court said that sex for hire was not such a right, but remained silent on the issue of non-commercial sex. 81 In 1988, in Doe v. City of Minneapolis, 82 federal district court judge James Rosenbaum upheld a Minneapolis ordinance requiring the removal of doors from booths in adult bookstores. The ordinance was enacted allegedly to prevent the spread of sexually transmitted diseases through "high risk sexual conduct." 83 Rosenbaum found that the epidemic of sexually transmitted illnesses was sufficient justification for the Big Brother ordinance making government responsible for individual safety, rather than individuals being responsible for their own. 84 Rosenbaum found insignificant that the ordinance exempted hotels, motels, apartment complexes, condominiums, and rooming houses, saying that the city had to be afforded the right to "experiment" in controlling diseases. 85 On appeal, 86 the Eighth Circuit unanimously affirmed. After noting that there was no constitutional right to view sexually explicit films in a secluded viewing booth, 87 the court also rejected a challenge to the discriminatory nature of the law that exempted other establishments. 88 Unlike practically any other state, Minnesota continues to have and to utilize its psychopathic personality law. In 1992, it was amended 89 to permit the Attorney General to act as a county prosecutor in psychopathy cases, if requested by the county attorney, 90 and authorized the Minnesota Supreme Court to appoint a panel of judges to oversee all psychopathy proceedings. 91 In an unreported decision from 1996, State v. Juarez, the Minnesota Court of Appeals ruled that a trial court can admit evidence that a defendant in a sexual assault case is Gay. The court found it both relevant and unlikely to have prejudiced the jury. 92 In 2001, the sodomy law finally fell, although it took an interesting set of cases to accomplish that feat. A group of conservative residents of the state attempted to recall the Attorney General for his alleged failure to enforce the sodomy law. In In Re Proposed Petition to Recall Mike Hatch, Attorney General, 93 the Minnesota Supreme Court unanimously threw out the petition, citing procedural errors on the part of the petitioners, as well as their failure to state a cause of action. The case challenging the sodomy law, Doe et al. v. Ventura et al., 94 was decided in 2001 by a judge in Minneapolis, Delilah Pierce. In one of the best organized challenges to such a law, a coalition of plaintiffs including Gay men, Lesbians, heterosexuals, and disabled persons, presented an array of arguments against the law, including some not seen in other states. Under Minnesota law, licensed professionals can lose their licenses for violating any criminal statute, whether or not that crime affects their profession, and any property renters can be evicted from rental properties for violating any criminal statute on the premises. As a result, the group of plaintiffs could cite both a fear of criminal prosecution as well as loss of professional livelihood and possibly a place to live if the sodomy law remained on the books. Pierce noted the Gray decision of the Minnesota Supreme Court that hinted there was a constitutional right to sexual privacy in the state, but no mention was made of the Bryant case from 1970 which found a right to privacy in restroom stalls. 95 (Logically, if one has a right to engage in sex in a restroom stall, how can you not have that right in your own home?) Citing recent decisions in Kentucky, Tennessee, Montana, and Georgia striking down sodomy laws under state constitutions, and rejecting Hardwick as flawed, 96 Pierce found the plaintiffs’ arguments persuasive and found the sodomy law unconstitutional "as applied to private, consensual, non-commercial acts of sodomy by consenting adults, because it violates the right of privacy guaranteed by the Minnesota Constitution. 97 Pierce went farther. The American Civil Liberties Union asked her to certify the decision as a class action, which would give the ruling statewide applicability. The State opposed the move, but Pierce agreed and issued the certification. Governor Jesse Ventura, though a defendant because of his position as Chief Executive of the state, issued a statement that he agreed with the court’s decision. 98 The state had 60 days to appeal Pierce’s certification, but the Attorney General also agreed with the court’s analysis and allowed the appeal period to pass, thereby eliminating the statute. 99

Period Analysis: Although a trial court struck down the sodomy law as a violation of the right to privacy, the Minnesota Supreme Court reversed on the ground that the arrestee had been charged with prostitution and could not assert a privacy claim. The Court did acknowledge that a right to privacy existed under the state constitution, which it limited to "fundamental rights." It did not define what constituted such rights, but excluded commercial sexual activity from it. Having recognized a right to privacy in public restrooms, the Courts held that one did not exist in adult bookstore film stalls. An ordinance to prohibit such activity was enacted after the AIDS epidemic began and was found to be a reasonable public health measure. Nevertheless, disease continues to be allowed to be transmitted sexually in the constitutionally sacrosanct restroom stalls. Minnesota, one of the pioneers of psychopathic offender laws, continues to have, utilize, and expands its law, with the most recent revision in 1992. It is one of only two states that still use such laws. By 2001, a better constitutional challenge than that of 1987 was launched and it led to a victory under previous privacy decisions from Minnesota courts.

FootNote

1 9 Stat. 403, enacted Mar. 3, 1849.

2 Statutes of Wisconsin, (Albany:Packard, Van Benthuysen & Co., 1839), page 367, §14.

3 The Revised Statutes of the Territory of Minnesota, (St. Paul:James M. Goodhue, 1851), advertisement, no pagination. Publication date is September 1851.

4 Id. at 520, §13.

5 Id. at 490, §1.

6 9 N.W. 305, decided Aug. 28, 1888.

7 General Laws of Minnesota 1909, page 319, ch. 270, enacted Apr. 20, 1909.

8 Id.

9 General Laws of Minnesota 1909, page 608, ch. 487, enacted Apr. 24, 1909.

10 Id. §3.

11 General Laws of Minnesota 1921, page 277, ch. 224, enacted Apr. 12, 1921.

12 Id.

13 271 N.W. 114, decided Jan. 22, 1937.

14 Id. at 116-117.

15 Id. at 118.

16 280 N.W. 181, decided June 17, 1938.

17 Id. at 182.

18 Gordon R. Kamman, "Evolution of Sexual Psychopath Laws," Journal of Forensic Sciences, 6:170 (1961).

19 General Laws of Minnesota 1939, page 712, ch. 369, enacted Apr. 21, 1939.

20 Id. at 712-713, §1.

21 Id. §2.

22 309 U.S. 270, decided Feb. 26, 1940.

23 Id. at 274-276.

24 Edwin H. Sutherland, "The Sexual Psychopath Laws," Journal of Criminal Law and Criminology, 40:543-554, at 553 (January-February 1950).

25 Dr. Carleton Simon, "Homosexualists and Sex Crimes," Presented before the International Association of Chiefs of Police, September 21-25, 1947.

26 Id. at 1.

27 Id. at 2.

28 Id.

29 Id. at 2-3.

30 Id. at 3.

31 Id. at 3-4.

32 Id. at 4.

33 82 N.W.2d 681, decided May 3, 1957.

34 Id. at 683.

35 General Laws of Minnesota 1963, page 1185, ch. 753, enacted May 17, 1963.

36 Id. at 1186, §609.015.

37 123 N.W.2d 358, decided Aug. 9, 1963.

38 Id. at 366.

39 134 N.W.2d 12, decided Mar. 12, 1965.

40 Id. at 16-17.

41 139 N.W.2d 800, decided Jan. 21, 1966.

42 Id. at 802.

43 Id. at 804.

44 Id. at 807.

45 Id. at 809.

46 142 N.W.2d 64, decided Apr. 15, 1966. Rehearing denied May 10, 1966.

47 Id. at 65.

48 General Laws of Minnesota 1967, page 1047, ch. 505, enacted May 17, 1967.

49 Id. at 1049, subd. 5.

50 153 N.W.2d 143, decided Sep. 15, 1967.

51 Id. at 144.

52 Id.

53 Id. at 146.

54 Id., n.5.

55 169 N.W.2d 397, decided July 3, 1969.

56 Id. at 398.

57 153 N.W.2d 894, decided Nov. 3, 1967.

58 Id.

59 166 N.W.2d 710, decided Mar. 28, 1969.

60 Id. at 713.

61 General Laws of Minnesota 1969, page 657, ch. 431, enacted May 15, 1969.

62 177 N.W.2d 800, decided May 22, 1970.

63 Id. at 801.

64 Id. at 804.

65 Id.

66 Id. at 805.

67 Leigh W. Rutledge, The Gay Decades, (New York:Plume, 1992), page 55.

68 237 N.W.2d 609, decided Dec. 26, 1975.

69 Id. at 615.

70 Id. at 615-616.

71 No. 761468, (Hennepin County District Court), decided Sep. 1, 1982.

72 Id. at 1.

73 Id. at 2.

74 Id. at 3.

75 General Laws of Minnesota 1984, page 1576, ch. 628, enacted May 2, 1984. The sodomy provision was part of a wholesale criminal fine enhancement. It is found in a table on pages 1662-1663, §11. This provision took effect May 3, 1984.

76 358 N.W.2d 63, decided Nov. 21, 1984. Rehearing denied Dec. 18, 1984.

77 Id. at 64.

78 413 N.W.2d 107, decided Oct. 2, 1987.

79 Id. at 110.

80 Id. at 111.

81 Id. at 113-114.

82 693 F.Supp. 774, decided Aug. 19, 1988.

83 Id. at 777.

84 Id. at 785.

85 Id.

86 898 F.2d 612, decided Mar. 12, 1990.

87 Id. at 615-616 and n.11.

88 Id. at 621-622. In an addendum, the court reprinted the Minneapolis ordinance in question. Curiously, the law defined "high-risk sexual conduct" as including fellatio, which is not generally regarded as such, while excluding cunnilingus, as well as "vaginal intercourse with persons who engage in sexual acts in exchange for money." Id. at 622-623. This latter definition means that wildly promiscuous vaginal intercourse without an exchange of money is not at risk for disease, in effect that it is the money that creates the risk.

89 General Laws of Minnesota 1992, page 1983, ch. 571, enacted Apr. 29, 1992, effective Apr. 30, 1992.

90 Id. at 2009, Art. 3, §1.

91 Id. at 2012, §6.

92 Lesbian/Gay Law Notes, January 1997, 3:1. The case was decided Dec. 10, 1996.

93 628 N.W.2d 125, decided June 25, 2001.

94 File No. MC 01-489, decided May 15, 2001.

95 Id. at 3-4.

96 Id. at 7-9.

97 Id. at 9.

98 www.geocities.com/privacy/laws/USA/Minnesota/mnnews17.htm. Pierce’s certification was issued July 2, 2001.

99 www.geocities.com/privacy/laws/USA/Minnesota/mnnews33.htm. The 60-day period expired on August 31, 2001.

Divider

Minnesota

The sodomy ruling came in two parts from Hennepin County District Judge Delila Pierce. In May 2001, she ruled that the sodomy law was unconstitutional as applied to the plaintiffs before her. The State had 60 days to appeal that ruling, and did not. The second ruling came on July 2, 2001, in which Judge Pierce certified the plaintiffs before her as a statewide class; the purported effect of this ruling is to allow her ruling to have statewide application. The State similarly had 60 days to appeal that decision, and did not. The State has widely been seen as supportive of Judge Pierce’s rulings, though the State is in the position of theoretically having to defend its statutes. The Minnesota Supreme Court dismissed an ethics complaint against Attorney General Mike Hatch on June 25, 2001, which had alleged he had violated professional ethics by failing to adequately defend the sodomy law; the ruling by Chief Justice Kathleen Blatz was entirely silent on the Court’s view of Judge Pierce’s rulings. Thanks to Phil Duran of OutFront Minnesota and a plaintiff in the case for this synopsis.

Statute

609.293 Sodomy

Subdivision 1. Definition. "Sodomy" means carnally knowing any person by the anus or by or with the mouth.

Subd. 2. Repealed, 1977 c 130 s 10

Subd. 3. Repealed, 1977 c 130 s 10

Subd. 4. Repealed, 1977 c 130 s 10

Subd. 5. Consensual acts. Whoever, in cases not coming within the provisions of sections 609.342 or 609.344, voluntarily engages in or submits to an act of sodomy with another may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

HIST: 1967 c 507 s 4; 1977 c 130 s 4; 1984 c 628 art 3 s 11

Case Law

History

1937 The Minnesota Supreme Court upholds a sodomy conviction based on letters opened by the post office, the first such situation reported in a U.S. sodomy case.
1963 The Minnesota legislature passes a new criminal code, but fails to change any of the sex offense sections, stating that they were just too controversial to handle.

News

Editorials

Advocates

Outfront Minnesota
310 E. 38th St., Suite 204, Minneapolis, MN 55409-1337
612-822-0350 ext. 616
800-800-0350 ext. 616