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 Hampshire
"[A] 12-year-old boy...was being examined as a "sexual psychopath" because he and a 9-year-old boy compared the length of their genitalia[.]"

The Colonial Period, 1607-1776

New Hampshire was settled in 1623 and, for more than a half century, juridically was part of Massachusetts. The laws of England may have been considered in force, but an early case casts some doubt on that.

In 1635, two men were arrested for committing sodomy with each other "on the Lord’s day in time of public exercise," but they were not prosecuted because the government officials "did not think fit to try them here." ¹

Massachusetts enacted its first sodomy law in 1636 (q.v.) and it therefore had applicability to the area now known as New Hampshire. As a result, the next legal proceeding for sodomitical acts was dealt with harshly.

In 1663, a woman was accused of having claimed falsely that her husband, Matthew Giles, buggered her "servant boy," William Penney. Penney testified that Mrs. Giles "hired him" to lie to investigators about the alleged incident. Each was sentenced to a flogging, and Mrs. Giles also was given an indefinite term in prison. ²

In 1679, New Hampshire separated from Massachusetts and enacted its own laws. The first criminal code ³ included a sodomy law based on prohibitions enunciated in Leviticus, but exempted those under age 14 and those who were victims of an assault from the penalty. All other "Sodomitical filthiness shal [sic] be severely punished according to the nature of it." ⁴ This latter sentence undoubtedly would allow prosecution of fellatio, cunnilingus, frottage and mutual masturbation.

The law was changed in 1718 ⁵ to eliminate reference to the "other Sodomitical filthiness" and added a reference to sodomy as "contrary to the very light of Nature." ⁶

Period Summary: Like Massachusetts, from which it was created, New Hampshire did not adopt the laws of England. As a result, the earliest court records of sodomitical activity reveal that such conduct was not punished. Not until it separated from Massachusetts and adopted a code of laws was sodomy recognized as a crime. The first law conceivably was far broader than other colonial laws, covering "sodomitical filthiness" that was to be punished "according to the nature of it." This may have permitted penalties for oral sex and masturbation as well. Another colonial law eliminated this broad provision, putting New Hampshire back into the mainstream of colonial sodomy jurisprudence.

The Post-Revolution Period, 1776-1873

In 1791, the law was changed again ⁷ to restrict the language to read that "if any Man shall carnally lie with a Man as Man carnally lieth with a Woman[.]" ⁸ Thus, it was made clear that only sodomy between two men was a crime.

A new sodomy law passed in 1812 ⁹ reduced the maximum penalty from death to six months in solitary confinement, followed by 1-10 years at hard labor. ¹⁰ In addition, the crime was reworded that men could commit the crime only with "any man or male child." ¹¹

The New Hampshire Supreme Court decided unanimously in the 1837 case of State v. Rollins ¹² that the English common law disappeared from the state with the American Revolution. ¹³

Period Summary: As did Massachusetts, its parent, New Hampshire revised its sodomy law after the revolution to exclude heterosexual activity from its scope. It was not until two decades into the federal era that the death penalty was eliminated. With a decision of the New Hampshire Supreme Court that common-law crimes disappeared from New Hampshire with the American Revolution, that state became one of the first to abrogate common-law crimes.

The Victorian Morality Period, 1873-1948

In 1899, a new law was passed ¹⁴ that did away with the reference to sodomy and replaced it with the term "unnatural and lascivious acts," an attempt to reach oral sex. The gender specifics of the law also disappeared and the penalty was changed to 3-5 years and/or a fine of $100-$1,000. ¹⁵

The New Hampshire Supreme Court received its first sodomy case in 1941 in State v. Vredenburg. ¹⁶ In a brief, per curiam decision, and without actually stating the facts of the case, the Court, by listing like cases from other states, ruled that the statute covered fellatio. ¹⁷

In preparation for a psychopathic offender law, in 1947 the New Hampshire legislature enacted two resolutions to authorize investigations into the feasibility of a law for the state. The first resolution ¹⁸ showed the impetuosity behind these laws. The deadline for reporting back on what should have been a deliberative study was set at precisely one month after the enactment date of the law. Because it was unable to complete such an undertaking so quickly, another resolution ¹⁹ allowed the committee to investigate until the next session of the legislature.

Period Summary: When New Hampshire broadened its sodomy law to cover oral sex in 1899, it became the first state in the nation to use the term "unnatural and lascivious acts." All other states used "sodomy," "crime against nature," or "buggery." The breadth of the wording may have permitted the prosecution of virtually any erotic activity, but case law is sparse in the state. As with other states, the term was interpreted by the state courts to embrace acts of fellatio. The state sought a psychopathic offender law after the Second World War, but its impetuousness on the issue caused a postponement of the recommendation of a law until after the first Kinsey report was issued.

The Kinsey Period, 1948-1986

In 1949, the New Hampshire legislature responded to the legislative study by enacting a statute ²⁰ that permitted investigation of any person convicted of "...unnatural and lascivious act, bestiality, [or] sodomy..." as well as any attempt to commit these crimes, to see if the person merited confinement in a mental institution. ²¹ Evidence of the commission of "any prior sex acts or sex crimes" could be admitted at the hearing. ²² Criminal prosecution had to be abandoned by the state for anyone found to be a psychopath and committed to a mental health facility. ²³

The New Hampshire Supreme Court, in 1950, decided the case of State v. Desilets. ²⁴ The defendant contended that he could not be prosecuted for sodomy because the psychopathic offender law "impliedly repeal[ed]" the sodomy law. ²⁵ The Court unanimously rejected his claim. ²⁶

The constitutionality of the psychopathic offender law was upheld unanimously by the New Hampshire Supreme Court in 1950 in In Re Moulton. ²⁷

A third case dealing with the psychopathic offender law was In Re Mundy, ²⁸ from 1952. Unanimity disappeared in this case. Mundy claimed that "hearsay" evidence was used to adjudge him a psychopath in that a report from the examining board was entered into evidence and that, in turn was based on probation and police reports. Justice Amos Blandin, speaking for a 3-2 majority, based his conclusion on the Court’s having had to "weigh the great and increasing need for a remedy, the irreparable harm to society and the individual resulting from the lack of [a psychopathic offender law] and the seeming impossibility of solving the problem with any degree of satisfaction under existing laws." ²⁹

A glowing report on the operation of the New Hampshire psychopathic offender law was published in 1962. ³⁰ The study analyzed the years 1958 through 1960, when 170 offenders were committed under the law. Of these, 57, or 34%, were committed for one of three offenses: fellatio, sodomy, and homosexuality unspecified. ³¹ The "unspecified" homosexuality raised the specter of no specific criminal act, merely an orientation. A total of 28 individuals, 16% of the total, were diagnosed with "sociopathic personality disturbance, sexual deviation." ³² The article noted that people might question why more homosexuals were not included in the statistics. They frequently, "by the nature of the trouble that they are in, are not considered to be dangerous to themselves or to society, and commitment is not recommended." ³³ This does not answer, if not dangerous to selves or others, why sexual relations were criminalized. One example of an attempted commitment under the law was that of

a 12-year-old boy who was being examined as a "sexual psychopath" because he and a 9-year-old boy compared the length of their genitalia and the 9-year-old boy reported this to his mother. In this case the families were casually acquainted with each other. It seemed to the examining board that some legal official could have brought these two families together and settled the matter, rather than charging the 12-year-old with juvenile delinquency (lascivious behavior) which initiated a discretionary examination. [Emphasis is the article’s]. ³⁴

In 1967, in the case of State v. Wickey, ³⁵ the defendant claimed that fellatio was not an "unnatural" act within the meaning of the statute. ³⁶ Noting the precedent of the Vredenburg case, the Court ruled unanimously that "the perverted sex conduct complained of was deemed to be within the purview of the statute." ³⁷

A comprehensive criminal code revision in 1971 ³⁸ retained the abrogation of common-law crimes, ³⁹ exempted married couples from the provisions of the sodomy law, ⁴⁰ reduced the penalty for consensual sodomy to a misdemeanor with a penalty of up to one year in jail, ⁴¹ and called the new crime "deviate sexual relations" with a definition of "any act of sexual gratification involving the sex organs of one person and the mouth or anus of another." ⁴²

A third case challenging the criminality of fellatio under the law was decided by the New Hampshire Supreme Court in 1972. In State v. Small, ⁴³ the Court reaffirmed that fellatio was a crime. ⁴⁴

A challenge to the constitutionality of the law was disposed of in State v. Church ⁴⁵ in 1973 without any analysis whatsoever. In fact, one has to read the syllabus of the case to see that this was one of the points raised. ⁴⁶

A revision of the state’s sexual assault laws in 1975 ⁴⁷ repealed the sodomy law. Even though a controversy over this repeal arose later, the then-Attorney General of the State, David Souter, future U.S. Supreme Court Justice, publicly supported the legalization of sodomy. The repeal happened by "sneaking" two new sexual assault sections into the criminal code that repealed two others, one of them the old rape law and the other the consensual sodomy law. The state’s homophobic Governor, who signed the bill, had not reviewed the bill carefully before signing it. ⁴⁸

Period Summary: A psychopathic offender law was enacted by the state in 1949 during a period of great action by the states in creating such laws. The New Hampshire law did require the state to abandon criminal prosecution of anyone processed under the law, something many other states did not. Research into the application of the law revealed that a number of men were processed under it for "homosexuality," something not enumerated in the statute as a trigger for its operation. One case also was reported of a pre-pubertal boy processed under the law for innocent sexual play with a younger boy, showing the extremes to which the state would go to utilize the law. Although sodomy cases universally resulted in victory for the prosecution, the law was repealed in a manner in 1975 that surprised many, including the anti-Gay Governor who signed the repeal bill.

The Post-Hardwick Period, 1986-Present

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 Nathaniel Bouton, ed., Provincial Papers: Documents and Records Relating to the Province of New Hampshire, from the Earliest Period of its Settlement: 1623-1687, Vol. 1, (Concord:G.E. Jenks, 1867), page 106. The date of the proceeding is given as Feb. 14, 1635.

² New Hampshire Court Records, 1640-1692; Court Papers 1652-1668, (Concord:State of New Hampshire, 1943), pages 182-183.

³ Laws of New Hampshire 1679-1702, Vol. 1, Province Period, page 11, ch. 1, enacted Mar. 16, 1679.

⁴ Id. at 13, §10.

⁵ Laws of New Hampshire 1702-1745, page 313, ch. 38, enacted May 14, 1718.

⁶ Id. at 314, no section numbering.

⁷ Laws of New Hampshire 1784-1792, page 596, ch. 42, enacted Feb. 8, 1791.

⁸ Id. at 597, no section numbering.

⁹ Public Laws of New Hampshire June 1812, page 5, enacted June 19, 1812.

¹⁰ Id. at 6, §5.

¹¹ Id.

¹² 8 N.H. 550, decided during December Term 1837.

¹³ Id. at 561-562.

¹⁴ New Hampshire Laws 1899, page 270, ch. 33, enacted Mar. 7, 1899.

¹⁵ Id.

¹⁶ 19 A.2d 414, decided Apr. 1, 1941.

¹⁷ Id. at 415.

¹⁸ New Hampshire Laws 1947, page 542, ch. 301, enacted Apr. 1, 1947.

¹⁹ New Hampshire Laws 1947, page 547, ch. 310, enacted May 29, 1947.

²⁰ New Hampshire Laws 1949, page 422, ch. 314, enacted July 28, 1949.

²¹ Id. at 423, §3.

²² Id. at 425, §5 (III).

²³ Id. at 428.

²⁴ 73 A.2d 800, decided June 6, 1950.

²⁵ Id. at 801.

²⁶ Id.

²⁷ 77 A.2d 26, decided Dec. 5, 1950.

²⁸ 85 A.2d 371, decided Jan. 2, 1952.

²⁹ Id. at 375.

³⁰ G. Donald Niswander, "Some Aspects of `Sexual Psychopath’ Examinations in New Hampshire," 4 N.H.B.J. 66 (Jan. 1962).

³¹ Id. at 68.

³² Id. at 72.

³³ Id. at 74.

³⁴ Id.

³⁵ 235 A.2d 527, decided Nov. 30, 1967.

³⁶ Id. at 528.

³⁷ Id.

³⁸ New Hampshire Laws 1971, page 644, ch. 518, enacted July 7, 1971, effective Nov. 1, 1973.

³⁹ Id. at 645, §625:6.

⁴⁰ Id. at 657, §632:2 (II).

⁴¹ Id.

⁴² Id. §632:2 (IV).

⁴³ 290 A.2d 633, decided Apr. 28, 1972.

⁴⁴ Id.

⁴⁵ 313 A.2d 727, decided Dec. 28, 1973.

⁴⁶ Id.

⁴⁷ New Hampshire Laws 1975, page 273, ch. 302, enacted June 7, 1975, effective Aug. 6, 1975.

⁴⁸ 2 Sex.L.Rep. 68.

New Hampshire

• Statute: Repealed 1975

This repeal was discovered by Frank Kameny a year after it happened because of the ingenious way in which it had been accomplished by the bill's sponsor. The 1971 criminal code (effective 1973) did not repeal the sodomy law, but reduced it the penalty to a misdemeanor and exempted married couples. The 1975 sexual assault reform law repealed the law. (See Laws of New Hampshire 1975, ch. 302).
-- George Painter

History

News

• N.H. High Court Says Gay Sex Not Adultery - Associated Press, November 7, 2003
• Court Considers Gay Adultery Case - The Advocate, April 23, 2003
• Couple’s Query: Is It Adultery If You’re Gay? - Concord Monitor, April 21, 2003

Editorial

• Vermont’s Moment - Concord Monitor, March 21, 2000