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

New Jersey
"Any person who kills...any person attempting to commit...sodomy, is guiltless and shall be totally acquitted and discharged."

The Colonial Period, 1607-1776

What now is New Jersey was controlled by both the Dutch and the Swedes between 1623 and 1664, when it was taken by the English. ¹ It is unclear if either Dutch or Swedish laws ever were considered in force. However, because New Jersey was under the control of the Duke of York when England gained control, his laws, including a capital sodomy law, were spread to the area. ²

In 1668, New Jersey enacted its own sodomy law ³ that used the proscription from Leviticus, but exempted those under age 14 and victims of an assault from the death penalty. ⁴

New Jersey was split in 1676 into East New Jersey and West New Jersey. The two colonies dealt with sodomy differently.

In 1681, Quaker-dominated West New Jersey enacted a criminal code that was silent on the issue of sodomy. ⁵

However, East New Jersey enacted a sodomy law in 1683 ⁶ that was vague as to penalty. A long list of crimes, including sodomy

shall be respectively discouraged and punished by the Judges and Courts of Justice in this Province, according to the nature and kind of the said respective Offenses. ⁷

King James II of England revoked the charters of both halves of New Jersey in 1688, thus restoring them as royal colonies subject to English law, thus reinstating the death penalty for sodomy throughout the state. ⁸

In 1702, the two colonies were reunited and New Jersey continued to operate off English law. ⁹

However, there apparently was a great deal of animosity to the merger. In 1704, the New Jersey legislature adopted a statute ¹⁰ "for uniting and quieting the minds of all her majesty’s subjects within this province." Because of "public quarrels and private animosities" in the colonies and because "disorders, irregularities and misdemeanors" were committed in both the eastern and western provinces, a "general pardon" was thought necessary to calm the populace. ¹¹ Therefore, a pardon was issued to all individuals charged with any crime except for 11 apparently especially heinous crimes exempted. Sodomy was not one of the 11, so, if there were any pending sodomy prosecutions, they were abandoned as of that date. ¹²

A law of 1730 ¹³ imposed a duty on persons bringing into the colony anyone convicted of a number of crimes, including sodomy. Anyone so importing a person was required to pay £5 to the provincial government and to the collector of the port, and was required to post £50 bond for one year’s good behavior by the convicted sodomite. ¹⁴

The first New Jersey Constitution of 1776 ¹⁵ contained a provision that the common and statute law of England "as have been heretofore practised in this Colony" were to remain in force. ¹⁶

Period Summary: New Jersey’s early history on criminalization of sodomy is not clear. Both Dutch and Swedish colonies existed prior to the English takeover, but it does not appear that either the Dutch nor Swedish criminal code was recognized as in force. Once under English jurisdiction, New Jersey enacted a standard capital sodomy law, but later was separated into two colonies. In one, sodomy became legal and in the other, it was mentioned as a form of evil in the code, but its penalty was uncertain. The colonies reunited in 1702 and, although no statute said so, English law became operative throughout the colony. This brought the capital "buggery" law into operation. During the Revolution, New Jersey’s first constitution retained the familiar English laws.

The Post-Revolution Period, 1776-1873

A new law adopted in 1796 ¹⁷ created a statutory sodomy law, abolished the death penalty for it and replaced death with an unspecified fine and solitary imprisonment at hard labor for a period of up to 21 years. This became the first sodomy law in the nation to adopt the term "crime against nature." ¹⁸

A statute of 1799 ¹⁹ abrogated English statutory law. ²⁰

Another law revision in 1846 ²¹ limited the fine for sodomy to $1,000 and eliminated the solitary confinement provision. The hard labor and 21-year maximum sentence remained. ²² A new provision also permitted a death sentence for anyone who, in the course of committing or attempting to commit sodomy, killed another person. ²³

Period Summary: Although clinging to English law during the pre-federal era, New Jersey was one of the earlier states to rid itself of them afterward. Its sodomy law of 1796 made New Jersey one of the first states to eliminate the death penalty and, three years later, all English laws were abrogated.

The Victorian Morality Period, 1873-1948

I. Sodomy

In 1884, the New Jersey Supreme Court ruled, in Van Houten v. State, ²⁴ that indecent exposure could be prosecuted in the state, even if no one saw the act. Thus, any kind of erotic activity could be prosecuted even without a complaint lodged by a viewing third person.

The next change to the New Jersey law occurred in 1898. ²⁵ This was one of the most sweeping anti-sodomy laws ever enacted in the United States. The sodomy provision itself was not changed. However, additional sections showed how it was treated at this time. A defendant in a sodomy prosecution was permitted up to 20 peremptory jury challenges, ²⁶ but could not be bailed. ²⁷ An assault to commit sodomy could lead to a fine of up to $3,000 (three times higher than for the completed act) and/or imprisonment for up to 12 years. ²⁸ Compounding sodomy ²⁹ and concealing it ³⁰ both were made misdemeanors. A "conspiracy" to commit sodomy was exempted from the provision that said conspirators could not be prosecuted unless one or more of the parties committed "some act...to effect the object thereof[.]" ³¹ The 1846 law that permitted a murder charge against someone committing or attempting sodomy that led to a death was retained. ³² Murder committed in perpetration of sodomy was automatically murder in the first degree. ³³ Perhaps the most chilling provision was that any person who killed someone "attempting to commit" sodomy was "guiltless, and shall be totally acquitted and discharged." ³⁴ This law made no reference to a necessity that the attempt be made on the person doing the killing. Presumably, it was broad enough to allow the killing of consenting adults, if they were "attempting" sodomy and someone saw them.

In 1906, a supplemental statute was enacted ³⁵ that

any person who shall in private be guilty of any act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, shall be guilty of a misdemeanor. ³⁶

This law obviously was broad enough to outlaw any form of erotic activity between consenting adults in private.

The first reported sodomy case in the state was State v. Pitman, ³⁷ decided in 1923. The New Jersey Supreme Court ruled that evidence as to the condition of the victim’s rectum three days after an alleged assault was admissible, as was evidence of the rectum’s condition four months later. The Court felt that this evidence could be used by a jury to decide if the condition was "abnormal and significant." ³⁸

Just a few months later, the same court was faced with a case under the private lewdness statute. In State v. Michalis, ³⁹ the New Jersey Supreme Court rejected what may have been an early privacy claim. William Michalis and James Drake had been arrested and Michalis argued that their actions did not fall under the 1906 law since they were committed in private, and therefore did not "debauch the morals and manners of the people." ⁴⁰ The Court felt that the test to see if an act violated the law was whether the act would debauch morals if the act were committed in public and, if so, it was "immaterial" if the act were committed in public or private. ⁴¹ With this logic, marital intercourse in private was illegal also since, if it occurred in public, it would debauch morals.

The sodomy law ⁴² was amended in 1926 to provide a 5-30-year penalty for sodomy if "any person" engaged in sodomy with anyone under 16. This would permit such a severe penalty for a 16-year-old in a relationship with a 15-year-old.

In 1930, another supplemental law ⁴³ was enacted that prohibited solicitation for "unlawful sexual intercourse, or any other unlawful, indecent, lewd or lascivious act." ⁴⁴ This wording did not require the solicited activity to be unlawful.

II. Sterilization

In 1911, New Jersey enacted a sterilization law. ⁴⁵ The law, signed by Governor and future President Woodrow Wilson, authorized the sterilization of insane, epileptic, and retarded persons, as well as certain criminals, including those convicted

of such succession of offenses against the criminal law as in the opinion of this board of examiners shall be deemed to be sufficient evidence of confirmed criminal tendencies. ⁴⁶

Two years later, in 1913, New Jersey made history by being the first state to have its sterilization law ruled unconstitutional. In Smith v. Board of Examiners of Feeble-Minded, ⁴⁷ a unanimous New Jersey Supreme Court found the law lacking. The opinion by Justice Charles Garrison questioned how far the law could go. If

the enforced sterility of this class be a legitimate exercise of governmental power, a wide field of legislative activity and duty is thrown open to which it would be difficult to assign a legal limit. ⁴⁸

Amazingly anticipating the Nazis, Garrison noted a possible abuse of the law.

Racial differences, for instance, might afford a basis for such an opinion in communities where that question is unfortunately a permanent and paramount issue. ⁴⁹

Addressing the argument that sterilizing such people today will save the taxpayers lots of money in the future, Garrison believed that the argument

is not deserving of serious consideration. The palpable inhumanity and immorality of such a scheme forbids us to impute it to an enlightened Legislature that evidently enacted the present statute for a worthy social end, upon the merits of which our present decision upon strictly legal lines is in no sense to be regarded as a reflection. ⁵⁰

Period Summary: New Jersey’s new sodomy law of 1898, coming less than a decade after the Alice Mitchell and Oscar Wilde cases, contained harsh provisions concerning sodomy, including one that was unique. It became legal to kill any person committing or attempting to commit sodomy, whether the person doing the killing was being victimized or merely was a witness. A very broad supplemental law of 1906 outlawed any "private lewdness," which would cover any erotic activity whatsoever in a person’s own home. The second reported sodomy case raised the question of the right of the state to penalize private lewdness, but the courts affirmed the power of the state in such matters. It was held that acts in private could be penalized if they could be penalized if committed in public. As so interpreted, this would make penile-vaginal intercourse between a married couple a crime in their home, because it would be a crime if committed in public. New Jersey was among the first group of states to enact a sexual sterilization law. This law covered unspecified undesirables, but never was utilized. The New Jersey Supreme Court unanimously struck down the law on broad civil liberties grounds, anticipating the Nazis’ use of such laws two decades later.

The Kinsey Period, 1948-1986

New Jersey also was interested in the issue of psychopathic offenders, but, unlike most states, believed that a careful study was necessary before enacting legislation. In 1949, a joint resolution was adopted ⁵¹ that authorized a broad-based committee to look into whether

the habitual sex criminal, the sexual deviate or the sex psychopath should have specific recognition in our statutes for the prevention, treatment and cure of persons engaged in repetitious sex offenses. ⁵²

The committee also was charged with establishing "a concise definition of the sex deviate and sex psychopath." ⁵³

The result of this study was a law enacted in 1950 ⁵⁴ that was much narrower in focus than most. Sodomy and an attempt to commit it both were triggering offenses, but only if the acts occurred with violence or with an adolescent under age 15. ⁵⁵ This law turned out to be, unwittingly, the model law of the nation and later was praised by officials as being the nation’s only psychopathic offender law that actually worked. ⁵⁶

A comprehensive revision of state law in 1951 ⁵⁷ raised the maximum fine for sodomy to $5,000, but generously lowered the maximum prison term from 21 to 20 years. The hard labor provision also was repealed. ⁵⁸

An appellate court decided State v. Johnson ⁵⁹ in 1952. It decided that the date on which an act of sodomy occurred was irrelevant to a conviction, saying that "sodomy is a crime whenever committed." ⁶⁰

In the 1953 case of State v. Morrison, ⁶¹ a trial court ruled that "acts approaching cunnilingus" did not violate the sodomy law, ⁶² but felt it important to moralize. The offense

has always been regarded as something so base and defiling as to be dealt with only in veiled terms. Latin was the medium of expression used in common-law indictments charging sodomy, and ancient and modern precedents are in accord that such indictments and informations need not be cast in particular terms descriptive of the act committed. ⁶³

The Court then noted that the defendant could have been prosecuted for "his revolting acts" under the lewdness act, but lamented that the penalty for it was less severe than for sodomy. ⁶⁴

In the 1957 case of State v. Sinnott, ⁶⁵ the New Jersey Supreme Court divided 6-1 to uphold the conviction of a school janitor for sodomy with several teenage males. The Court decided that the defendant had a "right" to state his marital and parental status, but found that Sinnott’s "right" had been recognized in the trial. ⁶⁶ The Court also found that the prosecutor’s summation, including Biblical references, was "within the bounds of fairness[.]" ⁶⁷ The Court also sustained the trial court’s exclusion of the expert testimony of a psychiatrist who had interviewed Sinnott while he was under the effects of sodium pentothal. The psychiatrist’s conclusions were that Sinnott was "not a sex deviate" and that he "did not have the capacity to commit sodomy." ⁶⁸ Because the interview occurred on the defendant’s own, it was labeled as "hearsay" and, therefore, as excludable. ⁶⁹

A fascinating case was the next sodomy case to be reported in New Jersey. In 1960, an appellate court decided State v. Fleckenstein, ⁷⁰ in which the conviction of an attorney was upheld. Edward Fleckenstein was accused of picking up "young boys" on highways (presumably they were teenagers, old enough to hitchhike) ⁷¹ and committing acts of "lewdness and carnal indecency" with them. ⁷² Fleckenstein raised the issue of a political frame-up in his appeal, asserting that

long standing disputes and feuds between defendant and the Army...his heading a McCarthy organization, his arrest in Germany by the Army and forcible expulsion from that country and his law suits and threatened suits against the Army, play an obvious role. ⁷³

Thus, a right-winger who supported Joseph McCarthy’s anti-Gay crusade himself was charged with sexual acts with young males. The Court could find no reversible error, and affirmed Fleckenstein’s conviction. ⁷⁴

The New Jersey Supreme Court decided State v. Taylor ⁷⁵ in 1966. Nine prisoners had been convicted of committing sodomy upon a tenth one under forcible circumstances. At trial, one prisoner said that he had seen one defendant "on top of" the victim "in an act of sodomy" the night before, presumably in a consensual act. In addition, he said that he "often" saw them with their arms around each other. In rebuttal, both alleged lovers denied having a relationship. Because one prisoner’s confession was admitted into the joint trial, the convictions of the only other two who appealed were reversed unanimously. Six of the nine never appealed, but their convictions would have been overturned had they done so.

In 1970, in State v. Still, ⁷⁶ an appellate court rejected the defendant’s contention that acquittal on a charge of attempting sodomy should acquit him automatically on a charge of making an assault with intent to commit sodomy. ⁷⁷

A new criminal code was proposed in 1971. ⁷⁸ Unlike most state revision commissions, New Jersey’s was charged, in part, with increasing "individual liberties" in suggesting a new code. ⁷⁹ Also unlike other states, New Jersey never had a comprehensive criminal code to revise, so the commission had to "start virtually from scratch." ⁸⁰ Provisions to abolish common-law crimes ⁸¹ and to prohibit local governments from enacting criminal statutes in conflict with the state code ⁸² were recommended. The sodomy provision would have legalized consensual sodomy and set the age of consent at the amazingly low age of 12. ⁸³ Although all sexual relations with a partner under 12 would be illegal, it would be a lesser crime if the victim was "a voluntary social companion" of the offender and "previously permitted the actor sexual liberties." ⁸⁴ Sexual contact, however, (touching) would be illegal with anyone under 16. ⁸⁵ A separate volume gave commentary that explained the reasoning of the commission. Common-law offenses should be abolished, the commission said, because modern law gives "rise to doubts about the constitutionality of some of the common law crime standards and definitions." ⁸⁶ The rationale for repealing the sodomy law was

based on the grounds that no harm to the secular interests of the community is involved in a typical sex practice in private between consenting adult partners. This area of private morals is the distinctive concern of spiritual authorities. ⁸⁷

The extant law permitted "capricious selection of a very few cases for prosecution and serve primarily the interest of blackmailers." ⁸⁸ After such a thorough work product was produced, it would take seven years for the New Jersey legislature to act.

The New Jersey Supreme Court decided the case of State v. Lair ⁸⁹ in 1973. The Court unanimously held that the sodomy statute was not unconstitutionally vague ⁹⁰ and applied both to same-sex and opposite-sex activity, ⁹¹ but could not constitutionally be applied to married couples. ⁹² In a concurring opinion, Chief Justice Weintraub added that he doubted

the existence of a public interest sufficient to justify an edict that the homosexual shall behave as a heterosexual or not at all. The failure to recognize a status within which homosexuals may lawfully follow the dictates of their nature makes the application of punitive measures still more questionable. ⁹³

In 1976, just three years later, after a major turnover in membership of the Court, a far more liberal result was reached in the case of State v. J.O. and F.C. ⁹⁴ Two men had been arrested for engaging in consensual sex with each other in a car parked in a dark area in a rest area along a state highway. They were arrested by highway patrolmen specifically looking for such activity. In a surprising, unanimous vote, the Court ruled that the state could not prosecute the men because the actions did not occur in a public place. The Court noted that it was nearly impossible for anyone to have seen them. ⁹⁵

The last pre-repeal reported case in New Jersey was an odd one. In 1977, in State v. Cherry, ⁹⁶ an appellate court upheld the conviction of Tony Cherry for an act of forcible sodomy committed while a female friend held a knife to the neck of the victim. ⁹⁷ Cherry contended that imprisonment would constitute cruel and unusual punishment because it

continually subjects him, because of his overt transsexualism [sic—transvestism?] to serious problems with other male prisoners and to the constant threat of homosexual attacks[.] ⁹⁸

In 1978, the New Jersey legislature enacted a criminal code revision ⁹⁹ that abrogated common-law crimes, ¹⁰⁰ repealed the sodomy law, and established an age of consent of 16. ¹⁰¹

One State Senator, Joseph Maressa, got himself caught up in the anti-Gay mood of the nation during this year and introduced a bill ¹⁰² to keep criminal consensual sodomy between people of the same sex. Maressa withdrew the bill early in 1979 after opposition from the public. ¹⁰³

An appellate court decided the case of State v. Ciuffini ¹⁰⁴ in 1978 after the repeal of the sodomy law, but before its effective date. The Court overturned the conviction of Ciuffini for a consensual act of sodomy with a male who was two months past his 16th birthday on the ground that the state established an age of consent for females at 16 and could not, without violating the Equal Protection Clause of the U.S. Constitution, prohibit males from consenting at the same age. ¹⁰⁵ The Court then went on to rule that the sodomy law was unconstitutional as it applied to consenting adults. ¹⁰⁶

Period Summary: After the Second World War, New Jersey showed a degree of liberalism on the sodomy issue unusual for the McCarthy era. Although it was one of the states to enact a psychopathic offender law, New Jersey studied the issue very carefully before adopting a law. The one adopted limited its applicability to sexual activity with minors, making it clear that consenting adults could not be processed under it. The penalty for sodomy also received a minor reduction, an act unusual for the McCarthy era. The state showed equal care in studying and proposing a revised criminal law in 1971. There were few reported sodomy cases during the period, but the state showed a growing support for privacy rights. The New Jersey Supreme Court ruled that married couples could not be prosecuted under the law, and later ruled that two men having consensual sex in a parked car could not be prosecuted under the "private lewdness" law, since their conduct was unlikely to be seen by others. The sodomy law was repealed and a legislative effort to reinstate sodomy as a crime failed after massive public opposition.

The Post-Hardwick Period, 1986-Present

A bizarre case decided by an appellate court in 2001 was State v. Cooke. ¹⁰⁷ Joseph Cooke was convicted of a sexual assault by fellating a man he knew while the man slept. The trial judge, disagreeing with the jury verdict, believed the sexual activity was consensual, so sentenced the defendant to probation and a fine. The appellate court found that the judge had no authority to overrule the jury’s finding and reinstated the sexual assault conviction. No explanation was given as to why any penalty would be assessed against consensual sexual activity, which has been legal in New Jersey for more than two decades.

Period Summary: There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution.

Footnotes

¹ The Earliest Printed Laws of New Jersey, (Wilmington:Michael Glazier, 1978), page vii.

² Id. For detail on the Duke of York’s laws, see New York.

³ Grants and Concessions...of the Province of New Jersey 1752, page 79, no section numbering, enacted May 30, 1668.

⁴ Id.

⁵ Id. at 382-411. The date of enactment of the code was not preserved, but the legislative session that enacted it began Nov. 21, 1681. Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 63.

⁶ Grants and Concessions...of the Province of New Jersey 1752, no section numbering, at 227, and 237-239, enacted March 1683.

⁷ Id.

⁸ Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 66.

⁹ The English statute always just has been assumed to have been in force, for there is no reference to it in the early laws. However, close to a century after the surrender of power to the crown, and after independence from England was declared, a law was passed that made it clear that all English laws were considered in force. See Acts of the Council and General Assembly of the State of New Jersey, from the Establishment of the present Government, and Declaration of INDEPENDENCE, to the End of the first Sitting of the eighth Session, on the 24th Day of December, 1783, (Trenton:Isaac Collins, 1784), page 222, ch. CCXC, "An ACT for regulating and establishing Admiralty Jurisdiction," enacted Dec. 18, 1781. The law contained a provision (§15, page 228-229) that admiralty crimes were to be prosecuted under the common law "in like Manner as if the Treason, Felony or Crime, were committed within one of the Counties of this State[.]" Also see the New Jersey Constitution of 1776, §22.

¹⁰ Acts of the General Assembly of the Province of New Jersey, from the Surrender of the Government to Queen Anne, on the 17th day of April in the Year of our Lord 1702, to the 14th Day of January 1776, (Burlington:Samuel Allison, 1777), page 4, ch. 4, enacted Dec. 12, 1704.

¹¹ Id.

¹² Id. at 5.

¹³ Samuel Neville, ed., Acts of the General Assembly of the Province of New-Jersey, From the Time of the Surrender of the Government in the Second Year of the Reign of Queen Anne, to this present Time, being the Twenty Fifth Year of the Reign of King George the Second, (???:William Bradford, 1752), page 210, enacted July 8, 1730.

¹⁴ Id. at 210-211, §2.

¹⁵ New Jersey Constitution of 1776, adopted July 2, 1776.

¹⁶ Id. §22.

¹⁷ Laws of the State of New Jersey; Revised and Published under the Authority of the Legislature, (Newark:Matthias Day, 1800), page 208, enacted Mar. 18, 1796.

¹⁸ Id. at 209, §VII.

¹⁹ Id. at 435, "An Act relative to statutes," enacted June 13, 1799.

²⁰ Id. at 436, §IV.

²¹ A Digest of the Laws of New Jersey, (Philadelphia:Lippincott, 1855), page 160, "An Act for the Punishment of Crimes," enacted Apr. 16, 1846.

²² Id. at 162, §9.

²³ Id. at 161, §3.

²⁴ 46 N.J.L. 16, decided during February 1884 term.

²⁵ New Jersey Acts of the Legislature 1898, ch. 235, enacted June 14, 1898.

²⁶ Id. ch. 237.

²⁷ Id. §23.

²⁸ Id. ch. 235, page 825, §113.

²⁹ Id. at 799, §19.

³⁰ Id. §20.

³¹ Id. §37.

³² Id. §106.

³³ Id. §107.

³⁴ Id. §110.

³⁵ New Jersey Acts of the Legislature 1906, page 101, ch. 71, enacted Apr. 2, 1906.

³⁶ Id.

³⁷ 121 A. 597, decided July 17, 1923.

³⁸ Id. at 598.

³⁹ 122 A. 538, decided Nov. 10, 1923.

⁴⁰ Id. at 539.

⁴¹ Id. Michalis remained in New Jersey and lived to see both the rise of the modern Gay rights movement and the repeal of the state’s sodomy and private lewdness laws. He died Sep. 2, 1978, some two weeks after the legislature passed the new criminal code.

⁴² New Jersey Acts of the Legislature 1926, page 282, ch. 172, enacted Mar. 26, 1926.

⁴³ New Jersey Acts of the Legislature 1930, page 966, ch. 205, enacted Apr. 18, 1930.

⁴⁴ Id.

⁴⁵ New Jersey Acts of the Legislature 1911, page 353, ch. 190, enacted Apr. 21, 1911.

⁴⁶ Id. at 354, §2.

⁴⁷ 88 A. 963, decided Nov. 18, 1913.

⁴⁸ Id. at 966.

⁴⁹ Id.

⁵⁰ Id. at 967.

⁵¹ New Jersey Acts of the Legislature 1949, page 1009, Joint Resolution No. 5, enacted Apr. 11, 1949.

⁵² Id. at 1010, §39(a).

⁵³ Id. §3(c).

⁵⁴ New Jersey Acts of the Legislature 1950, page 454, ch. 207, enacted Mar. 23, 1950.

⁵⁵ Id. §3.

⁵⁶ Mattachine Review, June 1957, pages 18-19.

⁵⁷ New Jersey Acts of the Legislature 1951, ch. 344, enacted Dec. 5, 1951.

⁵⁸ Id. §2-168-1.

⁵⁹ 89 A.2d 482, decided June 17, 1952. This case was handed down just eight days after argument.

⁶⁰ Id. at 483.

⁶¹ 96 A.2d 723, decided May 8, 1953.

⁶² Id. at 727.

⁶³ Id. at 724.

⁶⁴ Id. at 728.

⁶⁵ 132 A.2d 298, decided June 3, 1957.

⁶⁶ Id. at 302.

⁶⁷ Id. at 303.

⁶⁸ Id. at 304.

⁶⁹ Id. at 304-305.

⁷⁰ 159 A.2d 411, decided Mar. 28, 1960. Cert. denied, 162 A.2d 338, decided June 2, 1960.

⁷¹ 159 A.2d, at 413.

⁷² Id. at 412.

⁷³ Id. at 413.

⁷⁴ Id. at 417. The detail of this case is found in the complaint filed against Fleckenstein in New York when he was disbarred there. We learn that Fleckenstein had consensual sex with two 16-year-old males, one of whom came back for seconds. Fleckenstein’s prison term was suspended and he was placed on three years’ probation and fined $1,500.

⁷⁵ 217 A.2d 1, decided Feb. 7, 1966. Three cases were consolidated into this one.

⁷⁶ 271 A.2d 444, decided Dec. 1, 1970.

⁷⁷ Id. at 445-446.

⁷⁸ The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission, published in October 1971.

⁷⁹ Id., Vol. I, page v.

⁸⁰ Id. at viii.

⁸¹ Id. at 5, Section 2C:1-5(a).

⁸² Id. Section 2C:1-5(d).

⁸³ Id. at 61, Section 2C:14-2.

⁸⁴ Id. Section 2C:14-2(a)(3).

⁸⁵ Id. Section 2C:14-4(f).

⁸⁶ Id., Vol. II, page 11.

⁸⁷ Id. at 196.

⁸⁸ Id. at 197.

⁸⁹ 301 A.2d 748, decided Mar. 19, 1973.

⁹⁰ Id. at 752.

⁹¹ Id.

⁹² Id. at 752-753.

⁹³ Id. at 754.

⁹⁴ 355 A.2d 195, decided Mar. 25, 1976.

⁹⁵ Id. at 196-197.

⁹⁶ 381 A.2d 49, decided Nov. 16, 1977.

⁹⁷ Id. at 51.

⁹⁸ Id.

⁹⁹ New Jersey Acts of the Legislature 1978, page 482, ch. 95, enacted Aug. 10, 1978, effective Sep. 1, 1979.

¹⁰⁰ Id. at 500, §2C:1-5.

¹⁰¹ See pages 547-552 for the new sexual offenses.

¹⁰² Senate Bill 1276, introduced July 27, 1978. The bill was sponsored by 19 of the 40 state senators.

¹⁰³ 5 Sex.L.Rep. 8.

¹⁰⁴ 395 A.2d 904, decided Dec. 6, 1978.

¹⁰⁵ Id. at 905-906.

¹⁰⁶ Id. at 907-908.

¹⁰⁷ 785 A.2d 934, decided Dec. 13, 2001.

New Jersey

• Statute: Repealed 1979

History

News

• After Lewdness Conviction Is Overturned, Activists Call for Investigation of Police - The Advocate, August 9, 2006
  A Manhattan gay man's conviction on lewd behavior was overturned by a New Jersey appeals court Monday, prompting a gay rights advocate to call for an investigation of police procedure.
• Old Lewdness Arrest Quashed - Gay City News, March 9, 2006
• Calls for Probe into Treatment of Gays Arrested in New Jersey Park - The Associated Press, July 28, 2005
• Disparate Results in New Jersey Lewdness Arrests - Gay City News, July 14, 2005
• Gay Rights Leaders Applaud Court Decision - The Trentonian, June 28, 2003