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

Missouri
"[Being] identified as a homosexual has involved certain political costs...[but i]f homosexual conduct is properly forbidden...social stigma attaching to those who violate this proscription cannot be constitutionally suspect."

The Post-Revolution Period, 1776-1873

When the Missouri Territory was organized in 1812, ¹ it received all laws of Louisiana. ² The Louisiana sodomy law in force that it received used the common-law definition and established a penalty of life imprisonment.

In 1816, the Missouri Territory enacted a law ³ that adopted the English common law and English statutes in aid of the common law prior to the Jamestown settlement. A proviso of the law, however, was that no British criminal statutes were adopted. Another proviso limited the penalty for violation of a common-law crime to fine and imprisonment. ⁴ The English common law provided death for sodomy.

No change was made in the sodomy law until 1835 when a new code ⁵ created the now state of Missouri’s first sodomy law that established a penalty of a minimum of ten years. ⁶ This still allowed a sentence of life imprisonment, but no longer made it compulsory.

Period Analysis: Missouri was created out of the Louisiana Territory and received its laws. The sodomy law received contained a compulsory life sentence and, when the now-state of Missouri adopted its own sodomy law in 1835, it retained a life sentence as a maximum sentence, although it had a lower minimum. It used the common-law term " crime against nature."

The Victorian Morality Period, 1873-1948

The earliest sodomy case in Missouri to receive publication (albeit in a medical journal) occurred in 1881. An 18-year-old male, James Smith, known as an "abandoned character," engaged in sodomy with a 13-year-old male. This was a crime that is "rarely brought to the knowledge of the public." The victim made no effort to notify police of the assault and it became known only because a police officer happened upon him as he was crying. The young man was reluctant to tell the police or a physician what had happened. ⁷

The first reported Missouri sodomy case (with a human) was State v. Smith, ⁸ from 1897. A Department of the Missouri Supreme Court unanimously sustained the conviction of a St. Louis police officer for attempted sodomy. Lee Smith had forced a 16-year-old male to accompany him to a lumber yard and forced him to lower his pants and lie "face downward on the lumber." ⁹ Smith then made "obscene expressions indicating his detestable desire," and attempted to penetrate him, but, for unspecified reasons, did not actually do so. ¹⁰ The Court said that

[d]etestable and abominable as the offense is, and loth [sic] as we are to believe that any man, and much less a public officer, whose duty it was to maintain the peace and order of the city, would or could be so brutal in his instincts, we are unable to say that this verdict is without substantial evidence to support it. ¹¹

In 1907, a medical journal discussed a police raid in St. Louis on a ball at which a number of black Gay men dressed as women, and sexually servicing white men, were arrested. ¹²

In the 1909 case of State v. Wilkens, ¹³ a Department of the Missouri Supreme Court unanimously sustained the conviction of a St. Louis coal and ice dealer for sodomy with a number of young males. ¹⁴

In 1911, Missouri adopted a new sodomy law ¹⁵ that reworded the proscription to cover "the sexual organs or the mouth," ¹⁶ and lowered the minimum penalty from 10 to two years, but retained the possibility of life imprisonment. ¹⁷

The first reported case under this new law was State v. Wellman, ¹⁸ from 1913, challenging a conviction for cunnilingus. Wellman had been informed against as having committed "sexual intercourse" with his mouth. A Department of the Missouri Supreme Court unanimously overturned his conviction, charging that, despite the new law, "sexual intercourse" can not be accomplished with the mouth. ¹⁹

A Department of the Missouri Supreme Court unanimously decided in 1915, in the case of State v. Katz, ²⁰ that fellatio was a violation of the amended law. ²¹

In the 1925 case of State v. Gurnee, ²² a Department of the Missouri Supreme Court upheld the sodomy conviction of a man for relations with his son. The case revealed much family hostility, but the conviction was affirmed. ²³

In 1927, in State v. Hubbard, ²⁴ the Missouri Supreme Court, In Department, ruled that being fellated constituted a violation of the sodomy statute. A boy testified that Hubbard had him "suck his worm." ²⁵

Period Analysis: Missouri did not have a reported human sodomy case until 1897, although a medical journal reported on a case that came to police attention in 1881, showing probably that few convictions were appealed. The state revised the statute in 1911 to recognize use of the mouth as a way to commit sodomy, but the Missouri Supreme Court interpreted cunnilingus as legal, because it believed that "sexual intercourse with the mouth" was an oxymoron. However, fellatio convictions uniformly were sustained. Thus, like neighboring Illinois, the state had a double standard for oral sex, with fellatio illegal and cunnilingus legal, only because of the apparent Victorian notion of sex between women as an impossibility.

The Kinsey Period, 1948-1986

In 1949, Missouri adopted a "psychopathic offender" law. ²⁶ Such an offender was defined as a person "suffering from a mental disorder" who also had "criminal propensities to the commission of sex offenses." ²⁷ A hearing was to be held after a person had been accused of a sex crime ²⁸ and "past acts of sexual deviation by the person charged" were admissible. ²⁹ Regardless of the outcome of the hearing, the trial court had authority either to commit the offender to a state hospital or to order a criminal prosecution, "as the interests of substantial justice may require." ³⁰ A determination that an offender was psychopathic did not constitute a defense against criminal prosecution. ³¹

The Missouri Supreme Court interpreted this law in the 1950 case of State ex rel. Sweezer v. Green. ³² The Court unanimously decided that the psychopathic offender law was civil in nature, despite its triggering only by a criminal arrest and, therefore, it could be applied ex post facto. ³³ The defendant also could be compelled to be a witness against himself or herself. ³⁴

At the time of the adoption of the psychopath law, St. Louis police began training on sex crimes. The Missouri law, unlike those in most other states, had not been adopted during any kind of sex crime wave in the state, but was enacted as a copycat measure of others. ³⁵ The police were taught in classrooms and teaching materials selected were

a reading from the Book of Leviticus of the Holy Bible, beginning at verse ten of chapter twenty. This was done for the purpose of giving a historical background beginning in ancient times. ³⁶

The "theme" was "social morality" that included

putting emphasis on the other types of behavior that are objectionable to society, keeping sex out of the foreground until there appeared to be acceptance of what social attitude and its fluctuation means. This was then integrated in religious, aesthetic, and social idealism. The approach to the biological and physiological aspects of sex behavior proved to be very acceptable, provided that the parallels of bladder and bowel functions and nursing were thoroughly discussed. ³⁷

Also discussed was "sexual variance," but the instructors learned that "any swing far into the field of sexuality distracted from the result with a drop in interest due to a loss of orientation." ³⁸ In other words, any kind of learning experience about the variety of human sexuality was over the head of the typical 1949 St. Louis police officer. A question-and-answer period included "the necessity of suppressing homosexuality, the effects upon the character and intelligence of sex perversion, and the method of treatment of the offender of this type and in general offenders of all types." ³⁹

In the 1951 case of State v. Villinger, ⁴⁰ a Department of the Missouri Supreme Court unanimously sustained a sodomy conviction and decided that consent was not a defense to the charge. ⁴¹

In 1954, in State v. Rutledge, ⁴² a Department of the Missouri Supreme Court unanimously sustained a sentence of life imprisonment for sodomy with a male teenager who was gotten drunk by the defendant prior to the act. ⁴³ This case clearly revealed that the two-year minimum without a maximum did, in fact, permit life sentences.

In State v. Atkinson, ⁴⁴ from 1956, the Court of Appeals overturned the conviction of a man for engaging in sex with "young boys." The "young boys" were fifteen or older, and the jury had set the penalty at two years in prison, the minimum allowed by law. The court overturned the conviction because of the introduction of testimony by other teenagers as to sexual activity with them. The state argued that the testimony should be allowed because

[s]o strange and unusual are the acts of homosexuality, so far outside the ordinary pattern of male conduct, that a man who is proven to have committed the act with one or more persons would certainly be deemed to be much more likely to have committed the act with yet another person, and so proof of the act with persons other than the prosecuting witness would certainly tend to prove that the act was committed between the defendant and the prosecuting witness. ⁴⁵

Although the court thought there might be "some merit in this argument," it thought it should follow precedent and bar the admission of such evidence. ⁴⁶

Less fortunate was the defendant in the 1959 case of State v. Wilson. ⁴⁷ In this case, a man picked up two fifteen-year-old hitchhikers and took them home with him. He got into bed with them and fellated each, neither protesting or resisting. Testimony by one as to the fact that the defendant fellated the other teen first was allowed to stand because of its close tie-in with the fellating of the testifying witness immediately thereafter. ⁴⁸

In 1971, a Department of the Missouri Supreme Court unanimously upheld a conviction for sodomy in State v. Norris. ⁴⁹ Norris, a clinical psychologist, and a co-defendant had been spotted engaging in consensual sodomy in a restroom by security guards using electronic surveillance. ⁵⁰ Norris’s wife of 23 years testified for his defense, saying that he was a "normal husband" and that he had lost his job as a result of his arrest. ⁵¹

A constitutional challenge was rejected by a Department of the Missouri Supreme Court in the 1972 case of State v. Crawford. ⁵² Crawford had challenged the law saying that it did not establish

any ascertainable logical standard as to just what sexual, quasi-sexual, or non-sexual acts, between what persons, of what status, or what degrees of consanguinity, if any, and using just what organs of which sex or sexes, are prohibited with the dead or only with the quick. ⁵³

Commissioner Norwin Houser noted that, although "the passage of time does not operate to insulate a statute from attack on constitutional grounds," the fact that no constitutional challenge ever before had been lodged in the state showed that "there was no lack of understanding of the meaning of the language used[.]" ⁵⁴

A proposed new criminal code was published in 1973. ⁵⁵ A "sexual misconduct" law was proposed that was not much different from what later was adopted. Engaging in "deviate sexual intercourse" with "another person to whom he [sic] is not married" would be a Class A misdemeanor. ⁵⁶ A Comment said that the Committee studying the new code "was closely divided" over the question of private, consensual "deviate" sexual relations. "It remains a crime under this section, unless the courts ultimately hold the provision unconstitutional as unjustified governmental interference with the developing right to sexual privacy." ⁵⁷

In 1974, in Griffith v. State, ⁵⁸ the Missouri Court of Appeals rejected arguments including "sociosexual articles" urging the decriminalization of sodomy between consenting adults. The Court said that such articles should be addressed to the Missouri legislature rather than to the courts. ⁵⁹

A rare victory for a sodomy defendant in Missouri occurred in the 1976 case of State v. Bursley. ⁶⁰ The Missouri Court of Appeals unanimously decided that a conviction could not stand when based on contradictory and inconsistent testimony. ⁶¹

Missouri enacted a comprehensive criminal code revision in 1977. ⁶² Common-law offenses were abrogated ⁶³ and the sodomy law was changed, somewhat along the lines of the proposed code of 1973, except for whom was covered by the law. The new provision renamed the crime "sexual misconduct," reduced the penalty to a misdemeanor with a penalty of up to one year in prison, and made the law applicable only to people of the same sex. ⁶⁴ "Deviate sexual intercourse," which was what was outlawed in the new code, was defined so as to include "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person." ⁶⁵ Thus, the new Missouri law was broader than most, including mutual masturbation. The original proposal for a new criminal code recommended, by a close vote of the committee, repealing this section, but the Missouri legislature chose not to follow the recommendation. ⁶⁶

The psychopathic offender law was repealed in 1980, ⁶⁷ but the commitment of those already under its control was not to be affected by the repeal. ⁶⁸

In a 1982 child custody case, L___ v. D___, ⁶⁹ a Department of the Missouri Supreme Court unanimously mentioned that the 1977 law was constitutional. ⁷⁰ The reasoning for this was only that Texas and Mississippi courts had held their differently worded laws constitutional. ⁷¹

Period Analysis: Missouri followed the national trend in adopting a psychopathic offender law after World War II, although this law was considered a "copycat" law of other states. Unlike most other states enacting them, Missouri did not report a major increase of sex crimes after the War leading to public demands for such laws. The constitutionality of the law was challenged and quickly upheld by the Missouri Supreme Court. The Court also held the law to be civil in nature, thus allowing it to be applied retroactively and allowing those processed under it to be witnesses against themselves. A few years later, the Court upheld a life sentence for sodomy, showing that, even though it was not experiencing the wave of shocking sex crimes seen in many other states, the McCarthy view of sex was prevalent there. In 1972, as a number of other states were dealing with new criminal codes, the Missouri Supreme Court unanimously upheld the constitutionality of the state’s law and said that, since no one had challenged it before, it would assume that the public generally understood the meaning of the term "crime against nature." Unfortunately, when the state did get around to enacting a revised criminal code, it was in 1977 during the anti-Gay backlash fostered by Anita Bryant. The new sodomy law did lower the penalty from a felony with a possible life sentence to a misdemeanor with a maximum of one year in jail. However, it also made the law discriminatory—applicable only to people of the same sex.

The Post-Hardwick Period, 1986-Present

A direct challenge to the law was launched in the 1986 case of State v. Walsh. ⁷² The Missouri Attorney General’s office sought a reversal of the trial court that had struck down the sexual misconduct law as violative of the Equal Protection Clause in an ACLU-supported suit. ⁷³ The Missouri Supreme Court, sitting en banc, was happy to oblige. By a vote of 5-2, the Court reversed the trial court and upheld the law. Speaking for the Court, Justice Robert Donnelly noted that defendant Huber Walsh had placed his hand over the clothed crotch of an undercover police officer, and thereby committed sexual misconduct with his hand, a violation of the 1977 law. ⁷⁴ The discrimination challenged by Walsh was answered by the state with the specious argument that, while men were prohibited from engaging in sex with men, which women could do, women were equally denied the right to engage in sexual activity with women, something that men could do. ⁷⁵ The Court rejected the argument that homosexuality was an immutable characteristic. It said that "the weighing of such social science data is better left to the legislative department" and that the Court would defer to that judgement. ⁷⁶ The Court noted that the law did not criminalize homosexual orientation, only homosexual activity, and that it was not impossible to refrain from "certain conduct." ⁷⁷ While conceding that Gay men and Lesbians historically have been victims of prejudice and discrimination, the Court said that

so have other classes whose members have violated society’s legal and moral codes of conduct. There is a distinction between classifications that result from prejudice and judgments that result from legitimate classifications. The ACLU’s position on this point begs the question of whether the classification is legitimate. ⁷⁸

In other words, the prejudice and discrimination was the fault of the Gay men and Lesbians for existing and criminal classifications were "legitimate" if they were based on moral codes. The Court also noted that Gay men and Lesbians never had been denied the ability to engage in politics, and thus rejected the ACLU’s contention that they were thereby politically powerless. That being

identified as a homosexual has involved certain political costs does not diminish this ability. The ACLU has again begged the question. If homosexual conduct is properly forbidden, any social stigma attaching to those who violate this proscription cannot be constitutionally suspect. ⁷⁹

In other words, institutionalizing prejudice in a criminal statute gives it constitutional protection. The Court also rejected the contention that private sexual activity was a fundamental right. It based its rejection on the Hardwick case of the U.S. Supreme Court of just two weeks earlier. The next argument rejected was that the state had no right to promote morality. "Nowhere does the Constitution state that the promotion of morality is an impermissible state objective." ⁸⁰ The Court also noted that the statute was a valid exercise to promote public health and, in a footnote, approved of the works of defrocked and homophobic psychologist Paul Cameron. ⁸¹ Finally, the Court noted that Missouri’s constitution did not have an express right to privacy and, therefore, such claims could not be raised against the sexual misconduct law. ⁸² The two dissenting justices did so only because they did not believe that Walsh’s touching of the police officer constituted a violation of the sexual misconduct law. ⁸³

In the 1988 case of State v. Ermatinger, ⁸⁴ the Missouri Court of Appeals unanimously upheld the sodomy conviction of a man for fellatio with a teenager who had received psychiatric treatment "on matters which included fears of homosexuality[.]" ⁸⁵ The Court found this fact to be irrelevant to the case. ⁸⁶

A bill to repeal the state’s "sexual misconduct" law was introduced in 1990 by Representative Charles Troupe (D-St. Louis). It did not become law. ⁸⁷

In State v. Keil, ⁸⁸ from 1990, the Court of Appeals ruled that the state’s sodomy law was not violated by placing a finger in the rectum, because it did not involve the use of a genital organ with the rectum. ⁸⁹

In 1991, the Court of Appeals, deciding State v. Stewart, ⁹⁰ upheld the admission of "pornographic material" owned by the defendant as evidence against him, claiming that it was "used in furthering the crimes he committed[.]" ⁹¹

A rare victory in a Missouri sodomy case occurred in 1991 in State v. Ellis. ⁹² Ellis had been convicted of sodomy with a minor and the state injected questions concerning his homosexuality into the trial, arguing that homosexuals were per se likely to seek sexual contacts with minors. Judge Gerald Smith, writing for the unanimous Court of Appeals, said that

[t]o the extent this contention is based upon the proposition that homosexuality per se establishes a propensity to engage in sexual activities with children under the age of consent we reject it out of hand. It is no more reasonable to assume that a preference for same gender adult sexual partners establishes a proclivity for sexual gratification with same gender children than it is to assume that preference for opposite gender adult sexual partners establishes a proclivity for sexual gratification with opposite gender children. The sexual preferences of the defendant are irrelevant to the question of consent, actual or statutory. To allow its injection into the trial here was an attack on the character and reputation of the defendant which character and reputation he had not put into issue. ⁹³

The most amazing aspect of the case is that the 16-year-old "victim" himself testified that he initiated the sexual contact with the defendant, asking him if he wanted his "thing sucked." ⁹⁴

Another victory was in 1992 in State v. Follin, ⁹⁵ in which the Missouri Court of Appeals ruled that the sodomy law was not violated by a mere rubbing of a vagina. Actual penetration had to occur to constitute a criminal offense. ⁹⁶

Gay sexuality remains a topic of great personal interest to heterosexuals. In 1993, a television station arranged for a male prostitute to visit a priest in St. Louis and cameras captured a fee payment. Local prosecutors were looking into filing charges against station KMOV for facilitating prostitution. ⁹⁷

In 1993, in State v. Ellis, an appellate court upheld the state’s law against patronizing prostitution in a case in which a Gay man propositioned an undercover police officer. It is unclear why prostitution was charged, since there was no mention of payment. ⁹⁸

A change in state law in 1993 affected the "sexual misconduct" law. Missouri had required the posting of bond by those convicted of certain sexual crimes, the bond to cover the cost of HIV-antibody testing. The new law ⁹⁹ eliminated the requirement that the sexual activity involve "sexual intercourse," ¹⁰⁰ thus adding the sexual misconduct law, which includes mere caressing of a crotch, to the HIV-antibody bond-for-testing requirement.

The law was amended again in 1994. ¹⁰¹ In what was supposed to be a comprehensive revision of sex crime law in the state, the Missouri legislature got itself into a lot of hot water over the wording it chose. An effort was made to repeal the "sexual misconduct" law. That failed, but the wording used in the revised law ended up making nearly all sex, except that between married couples, illegal in the state. The new definition of "sexual misconduct," that caused the problems, was engaging in "deviate sexual intercourse with another person of the same sex" or

purposely subject[ing] another person to sexual contact or engag[ing] in conduct which would constitute sexual contact except that the touching occurs through the clothing without that person’s consent. ¹⁰²

This legal and grammatical nightmare was noticed by attorneys reading the law after its passage. ¹⁰³ The definition of "deviate sexual intercourse" was changed slightly so that it now was any "act," rather than "sexual act," and reference to use of the "hand" was eliminated. However, abrogating the Keil decision, it specifically made insertion of a finger into the "male [sic] or female sex organ or the anus" for purposes of sexual pleasure a violation of the law. ¹⁰⁴ The penalty remained the same, unless the person had a previous conviction, or if the act "is committed as a part of a ritual or ceremony." There is no explanation of this last provision. In either case, the penalty was raised to a felony. ¹⁰⁵

In 1999, in State v. Cogshell, ¹⁰⁶ this law was gutted by the Western District Court of Appeals when it decided that a partner's consent eliminated the possibility of prosecution under the law. Even though the language of the 1994 law clearly makes all same-sex activity illegal, regardless of consent, the court stated that, in order to convict under the law, "the State must prove that the sexual contact alleged occurred without the consent of the victim." ¹⁰⁷ Because this case was not appealed to the Missouri Supreme Court and because the state has multiple appellate districts, this decision has precedental value only in the one district.

Period Analysis: As with the enactment of the new criminal code, a challenge to the constitutionality of the new sodomy law had bad timing. Coming only two weeks after the U.S. Supreme Court upheld the Georgia law and ruled that there was no constitutional right to engage in homosexual sodomy, the Missouri Supreme Court also upheld the state's discriminatory law. It referred to the Georgia case and stated that any discrimination or violence that might happen to Gay and Lesbian people from such a law was purely their fault for being Gay or Lesbian. Most court decisions have affirmed sodomy convictions, but courts have determined, from a literal interpretation of the law, that placing a finger into the rectum of another person or rubbing a vagina without penetration do not violate the law. Legislative attempts to repeal the law have been unsuccessful, with one failed attempt in 1994 leading to the enactment of a nightmare of a law that apparently made it illegal for any unmarried people to engage in sex. This occurred as a result of an anti-Gay legislator's authoring inclusive language to retain penalties for same-sex eroticism. This bizarre law received an even more bizarre interpretation by an appellate court that has left it unenforceable in one appellate district in the state, at least until the Missouri Supreme Court rules on it.

Footnotes

¹ 2 Stat. 743, enacted June 4, 1812.

² Id. at 747, §16.

³ Laws of the Missouri Territory 1816, page 436, ch. 260, enacted Jan. 19, 1816.

⁴ Id.

⁵ Revised Statutes of Missouri 1835, (St. Louis:Argus Office, 1835), enacted Mar. 20, 1835.

⁶ Id. at 206, §7.

⁷ St. Louis Medical and Surgical Journal, 40:196-197 (Feb. 1881).

⁸ 38 S.W. 717, decided Jan. 19, 1897.

⁹ Id.

¹⁰ Id. at 717-718.

¹¹ Id. at 718.

¹² Reprinted in Jonathan Katz, Gay American History, (New York:Crowell, 1976), pages 48-49.

¹³ 120 S.W. 22, decided June 8, 1909.

¹⁴ Id. at 23-24.

¹⁵ Laws of Missouri 1911, page 198, S.B. 22, enacted Mar. 30, 1911.

¹⁶ Id.

¹⁷ Id.

¹⁸ 161 S.W. 795, decided Dec. 9, 1913.

¹⁹ Id. at 798.

²⁰ 181 S.W. 425, decided Nov. 30, 1915. Rehearing denied Jan. 4, 1916.

²¹ Id. at 426.

²² 274 S.W. 58, decided June 5, 1925.

²³ Id. at 62.

²⁴ 295 S.W. 788, decided June 3, 1927.

²⁵ Id. at 789.

²⁶ Laws of Missouri 1949, page 252, enacted Aug. 1, 1949.

²⁷ Id. at 253, §1.

²⁸ Id. §2.

²⁹ Id. at 254, §3.

³⁰ Id. at 255, §4.

³¹ Id. §6.

³² 232 S.W.2d 897, decided Oct. 9, 1950.

³³ Id. at 901.

³⁴ Id. at 902.

³⁵ Val B. Satterfield, "The Education of a Metropolitan Police Department Respecting Sex Molestation," Journal of Criminal Law, Criminology, and Police Science, 42:403 (May-June 1951).

³⁶ Id. at 404.

³⁷ Id.

³⁸ Id. at 404-405.

³⁹ Id. at 406.

⁴⁰ 237 S.W.2d 132, decided Feb. 12, 1951. Rehearing and en banc hearing denied Mar. 12, 1951.

⁴¹ Id. at 134.

⁴² 267 S.W.2d 625, decided May 10, 1954.

⁴³ Id. at 626.

⁴⁴ 293 S.W.2d 941, decided Oct. 8, 1956.

⁴⁵ Id. at 943.

⁴⁶ Id.

⁴⁷ 320 S.W.2d 525, decided Feb. 9, 1959.

⁴⁸ Id. at 526-527.

⁴⁹ 471 S.W.2d 229, decided Sep. 13, 1971. Rehearing and en banc hearing denied Oct. 11, 1971.

⁵⁰ Id. at 230-231.

⁵¹ Id. at 231.

⁵² 478 S.W.2d 314, decided Feb. 22, 1972. Rehearing and en banc hearing denied Apr. 10, 1972. Cert. denied, 409 U.S. 811, decided Oct. 10, 1972. Rehearing denied, 409 U.S. 1051, decided Dec. 4, 1972.

⁵³ 478 S.W.2d, at 316.

⁵⁴ Id. at 317-318.

⁵⁵ The Proposed Criminal Code for the State of Missouri, Prepared by The Committee to Draft a Modern Criminal Code, (St. Paul:West, 1973).

⁵⁶ Id. at 149, §11.090.

⁵⁷ Id. at 150. Oddly, the Comment continued to explain why criminal penalties were being repealed for bestiality. The Kinsey studies were cited, and the conclusion was that "[f]ocusing public attention on the person who happens to be found in such an act serves no useful social purpose and may seriously impair the development of the accused to a normal life." Thus, Missouri would view human oral, manual, or anal sexual contacts with an infra-human animal as less offensive than with another human being.

⁵⁸ 504 S.W.2d 324, decided Jan. 10, 1974. Motion for rehearing en banc and transfer to Missouri Supreme Court denied Jan. 18, 1974. Application to transfer denied Feb. 11, 1974.

⁵⁹ Id. at 326.

⁶⁰ 548 S.W.2d 586, decided July 6, 1976. Rehearing and transfer denied and Aug. 2, 1976. Transfer denied Oct. 12, 1976.

⁶¹ Id. at 589-590.

⁶² Laws of Missouri 1977, page 658, S.B. 60, enacted July 6, 1977, effective Jan. 1, 1979.

⁶³ Id. at 664, §556.026.

⁶⁴ Id. at 687, §566.090.

⁶⁵ Id. at 686, §566.010.

⁶⁶ "Comment to 1973 Proposed Code," following §566.090, Missouri Statutes Annotated.

⁶⁷ Laws of Missouri 1980, page 503, H.B. 1724, enacted June 9, 1980.

⁶⁸ Id. at 581, §632.475.

⁶⁹ 630 S.W.2d 240, decided Mar. 1, 1982.

⁷⁰ Id. at 243-244.

⁷¹ Id. at 244.

⁷² 713 S.W.2d 508, decided July 15, 1986.

⁷³ Washington Blade, May 23, 1986, page 12-13.

⁷⁴ Walsh, at 509.

⁷⁵ Id. at 510.

⁷⁶ Id.

⁷⁷ Id.

⁷⁸ Id. at 511.

⁷⁹ Id.

⁸⁰ Id.

⁸¹ Id. at 512-513. See 512, n.3 for the reference to Cameron’s work.

⁸² Id. at 513.

⁸³ Id. at 513-514.

⁸⁴ 752 S.W.2d 344, decided Apr. 19, 1988. Rehearing and transfer denied May 20, 1988.

⁸⁵ Id. at 346.

⁸⁶ Id. at 346-347.

⁸⁷ St. Louis Post-Dispatch, Mar. 16, 1990, 11:4.

⁸⁸ 794 S.W.2d 289, decided Aug. 7, 1990.

⁸⁹ Id. at 291.

⁹⁰ 815 S.W.2d 9, decided July 2, 1991. Motion for rehearing and/or transfer to the Supreme Court denied Oct. 16, 1991. Application to transfer denied Oct. 16, 1991.

⁹¹ Id. at 11.

⁹² 820 S.W.2d 699, decided Dec. 10, 1991. Motion for rehearing and/or transfer to the Missouri Supreme Court denied Jan. 10, 1992.

⁹³ Id. at 702.

⁹⁴ Id. at 700.

⁹⁵ 829 S.W.2d 90, decided Apr. 28, 1992.

⁹⁶ Id. at 91.

⁹⁷ Columbus Dispatch, June 11, 1993, page 6A.

⁹⁸ Lesbian/Gay Law Notes, Summer 1993, 53:2, decided May 18, 1993.

⁹⁹ Laws of Missouri 1993, page 1391, S.B. 233, enacted June 30, 1993.

¹⁰⁰ Id. at 1393, §4.

¹⁰¹ Laws of Missouri 1994, page 1359, S.B. 693, enacted July 14, 1994, effective Jan. 1, 1995.

¹⁰² Id. at 1363, §566.090 (1).

¹⁰³ Columbus Dispatch, Nov. 6, 1994, 5A:1.

¹⁰⁴ Laws of Missouri 1994, at 1360, §566.010 (1).

¹⁰⁵ Id. at 1363, §566.090 (2).

¹⁰⁶ 997 S.W.2d 534, decided July 6, 1999. Motion to Modified Opinion Denied, Aug. 31, 1999.

¹⁰⁷ Id. at 537.

Missouri

• Statute: 566.090, Sexual Misconduct. Unconstitutional under Lawrence v. Texas. (Repealed July 2006)
• Penalty: 1 year/$1000
• Classification: Misdemeanor
• Restrictions: Same-sex only

The Missouri Court of Appeal ruled July 6, 1999 in State of Missouri v. Cogshell, 1997 S.W.2d 534 (Mo.App., W.D.), that a revision of the state’s sodomy law had, in effect, decriminalized consensual sodomy in the state.

Attorney General Jay Nixon urged the court to reconsider or clarify its opinion, but the court has refused to do so, and Nixon, who has since told the local press that he believes consensual sodomy should not be a crime, has announced he will not try to appeal the ruling further. (The defendant in the case continues to serve prison time due to conviction under a separate provision of the penal code concerning sex with minors.)

Legislators who had opposed a law revision commission’s recommendation to decriminalize sodomy had insisted on an amendment to the pending law reform proposal, but apparently botched the job by producing a grammatically inept run-on sentence that was just ambiguous enough to give the court room to conclude that consent was a defense to a sodomy charge.

-- Lesbian/Gay Law Notes, October 1999
Editor: Prof. Arthur S. Leonard
New York Law School, 57 Worth St., NY, NY 10013
212-431-2156, fax 431-1804
email: asleonard@aol.com or aleonard@nyls.edu

"The Missouri Western District Court of Appeals issued a somewhat confused ruling that essentially said that if the act was consensual, it is not a crime. We do not know if the Southern District or Eastern District court of appeals will agree. We are deciding what to do. There is a possibility legislation will be introduced to clarify the state’s policy opposing queer sex. (Everything’s up-to-date in Kansas City!)"
--Jeff Wunrow

A word about terminology:
In Missouri criminal statutes the word "sodomy" is used only in the context of "forcible sodomy" (section 566.060) or "statutory sodomy" which refers to ages of the people involved (sections 566.062 and 566.064). Hence those of us working to repeal the same-sex portion of the sexual misconduct code are not working to repeal the Missouri laws with "sodomy" in the title.
- Alan Easton, member Privacy Rights Education Project (PREP), St. Louis.

Statute

566.090, Sexual misconduct, first degree, penalties

1. A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact or engages in conduct which would constitute sexual contact except that the touching occurs through the clothing without that person's consent.

2. Sexual misconduct in the first degree is a class A misdemeanor unless the actor has previously been convicted of an offense under this chapter or unless in the course thereof the actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a ritual or ceremony, in which case it is a class D felony.

(L. 1977 S.B. 60, A.L. 1994 S.B. 693)

Effective 1-1-95

History

Repeal Bill

The Missouri State House of Representatives has passed a bill that expands the definitions of sexual offenses. House Bill 850/851 allows persons to be convicted of forcible sodomy, statutory sodomy, deviate sexual misconduct, and sexual misconduct in the first degree if there is a sexual act involving the genitals of a person and the hand of another person and the other current statutory elements of the crime are satisfied. Currently, persons can only be convicted of these crimes if there is a sexual act involving the genitals of a person and the mouth, tongue, or anus of another person. I believe this includes the portion of Missouri's sexual misconduct statute which makes consenting, same-sex sexual activity a crime.
An amendment sponsored by Rep. Vicky Riback Wilson (D-Columbia) which would have removed the portion of the Missouri sexual misconduct law that makes consenting, same-sex sexual activity a crime was overwhelmingly defeated. For the full text of HB850 and current legislative action, see the Missouri House of Representatives web site at http://www.house.state.mo.us
-- Bruce Alspaugh, April 2, 1999

HB 1760 - February 12, 1998

Legal cases

The Missouri Court of Appeal ruled July 6, 1999 in State of Missouri v. Cogshell, 1997 S.W.2d 534 (Mo.App., W.D.), that a revision of the state’s sodomy law had, in effect, decriminalized consensual sodomy in the state.

In 1996 the ACLU of Missouri, with the assistance of volunteer attorney Robert Payne of Springfield, MO, is representing a gay man who was charged in an undercover operation by the Joplin police force with violating the city's "mashing" ordinance; the ordinance defines "mashing" as the use of words or acts "to annoy or attract the attention of any person by any suggestive act or word." From newspaper reports, as many as thirty gay men were charged with "mashing" in Joplin in April.

News

• Group Says it Lobbied for Repeal of Ban on Gay Sex Saturday - Southeast Missourian, February 10, 2007
• Missouri Gay Rights Group Marks 20th Anniversary - The Advocate, September 1, 2006
  Missouri has made strides over the last two decades in protecting the rights of its lesbian, gay, transgender, and bisexual residents, the leader of advocacy group Promo said. The group was founded in St. Louis as the Private Education Rights Project to work for the repeal of a state law that made sodomy between same-sex partners a crime. In July, three years after the U.S. Supreme Court ruled a similar Texas law unconstitutional, the group finally got its wish when Gov. Matt Blunt signed legislation removing the sodomy statute from the books.
• Missouri Repeals Gay Sodomy Law - - 365Gay.com, June 4, 2006
  Missouri lawmakers have repealed the Sexual Misconduct law - three years after the US Supreme Court ruled such laws were unconstitutional.
• Group Forms Task Force to Focus on Gay Rights - September 2, 2004
• Some Charges Dropped, But Lives Changed for Men in Sodomy Case - June 29, 2003
• Missouri’s Anti-Sodomy Law Similar to Texas Case - KOLR10-TV, June 26, 2003
• Head Cases - January 2, 2003
• Sodomy Law Faces Challenge in Missouri - The Data Lounge, December 18, 2002
• ACLU Challenges Missouri Video Store Arrests - Advocate, December 18, 2002
• ‘Missouri Gay Sex Ban Unconstitutional’ Lawyer - December 17, 2002
• Defendants in Missouri Sodomy Case Challenge State’s Ban on Gay Sex - Kansas City Star, December 16, 2002
• Full Assault on Sodomy Laws - August 20, 2002
• Three Arrested in Raid Plan to Challenge Law Banning Gay Sex - August 7, 2002
• Gay Games: A Political Campaign Gets Bitchy - July 25, 2002
• Missouri Prosecutor Brings Sodomy Charges - April 3, 2002
• Missouri Porn Theater Bust Targets Gays - April 2, 2002
• Charges Against Gay Men Draw Criticism - April 2, 2002
• Cops Raid Video Store, 6 Charged - April 2, 2002
• Prosecutor Uses Anti-Gay Sex Statute to Charge Six Men in Prostitution Case - March 31, 2002
• Unprotected Sex - December 6, 2001
• UCC LGBT Coalition Meets and Protests in Kansas City - August 2001
• Judges Let Sex Ruling Stand - September 1, 1999
• Nixon Disagrees With State Ban On Gay Sex - August 22, 1999
• Attorney General Seeks Clarification of Law about Homosexual Sex - August 9, 1999
• Legislative Activity Percolates Across The Nation - April 23, 1999
• Police Enforcing Law Against Asking For Gay Sex In Park - September 23, 1998
• Low Turnout In City Primary May Be A Plus For Bill Haas (excerpt) - July 27, 1998
• Letter: Voting patterns - March 2, 1998
• Gay legislator introduces bill to repeal ban on homosexual sex - February 26, 1998
• Lewinsky Case Prompts New Efforts To Repeal Laws Against Oral Sex - February 26, 1998
• Missouri - pro-gay bills, pro-gay ruling - February 15, 1998

Editorials

• Sodomy Ban Should Have Ended Sooner - Robert N. Minor in the Kansas City Star, July 14, 2003
• Queer Theory: Is It Still Called Sodomy When We’re Fucked By The System? - Kerry Shatzer on Rainbowarch, April 24, 2002
• Letter: Blown Call - December 21, 2001
• Letter: Antiquated Laws - August 9, 1998
• Gay Rights - March 2, 1998

Advocates

PROMO
The bill for repeal of a portion of Missouri’s sexual misconduct law Section 566.090.1 is being promoted by the Privacy Rights Education Project, PREP. We have lobbied for repeal since 1990.
314-862-4900
mailto:info@promoonline.org
PROMO@PROMOonline.org