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 York
"[T]he natural sex instinct is for the opposite sex."

The Colonial Period, 1607-1776

New York originally was a Dutch colony, founded in 1613 as New Netherlands. The West India Company, a trading outfit, was given legislative powers. ¹ Although the laws generally conformed to those of the Netherlands, ² the statutes of the Netherlands considered operative in the new colony did not include the criminal laws. ³ Therefore, any penalty for sodomy had to be based on either a statute of the colony or on natural law. Because there are three known sodomy prosecutions in New Netherlands, it is important to know which is the case. Unfortunately, a large number of the early laws of the colony are lost. ⁴

In a charter of 1629, the rulers were granted power to punish "capital crimes" and "offenses subject to corporal punishment." ⁵ Since Dutch criminal law did not transfer with the colony, one must presume that there either were laws against sodomy enacted by the colony, or the natural law was enforced.

Among early extant laws is one from 1638 ⁶ permitting the punishment of unspecified "immoralities" according to "the circumstances of the case...as an example to others." ⁷

Another statute of 1638 ⁸ recognized "much mischief and perversity" due to heavy drinking and forbade any person from sleeping with servants at night without consent of the colony’s Director. ⁹

In 1646, the first known sodomy trial was conducted, from the surviving language on authority of the natural law. A man named Jan Creoli was convicted of a second offense of sodomy and sentenced to death. Sodomy was "condemned of God[.]" Nothing in the records mentions any criminal statute on which Creoli’s sentence was based. He was choked to death and then "burned to ashes." ¹⁰

A colonial statute enacted in 1648 ¹¹ noted that the "Common people and the Company’s servants" were "seriously debauched" and were "drawn from the path of Virtue and into all sorts of irregularity." ¹² The law then established regulations for taverns.

A second sodomy case was recorded in 1658. Nicolas Hillebrant (or Hillebrantsen) was accused of sodomy and scheduled for a hearing on the charge, but the records do not indicate the outcome of his case. ¹³

In 1660, the third case occurred. Jan Quisthout van der Linde (or Linden) was accused of sodomy with a servant. He was convicted, tied into a sack, and thrown into a river to drown. The servant was flogged. Three years later, Quisthout’s widow petitioned for bankruptcy protection. ¹⁴

Beginning in 1664, for a decade, there was dispute as to whether the Dutch or English controlled the New Netherlands Colony. The English took control by force that year and, in 1665, a set of laws was enacted ¹⁵ that included a sodomy law based on Leviticus. It set a penalty of death for any male other than one under age 14 or a victim of assault. These two classes still could be penalized "at the Discretion of the Court of Assizes." ¹⁶

The English temporarily lost control to the Dutch again in 1673, then permanently regained it in 1674, at which time the above statute came into force. ¹⁷

In 1691, New York surrendered its local authority to the Crown and was governed by the English buggery statute. ¹⁸ All laws of New York enacted prior to this date were abrogated. ¹⁹ This remained the state of the sodomy law in New York until after Independence.

Period Summary: New York’s earliest legal history is mysterious. A large number of early statutes have been lost, so statutory authorization for the three known colonial sodomy prosecutions (at least two of them resulted in death sentences) is unclear. Originally a Dutch colony, it is known that Dutch criminal law did not transfer to the colony. Without either local or Dutch statutes covering such activity, it appears that prosecutions rested on "natural law." This is apparent in the first known prosecution in which the act was referred to by the court as "condemned of God." Once English control was established, a capital sodomy law was put into force, although no known prosecutions have been uncovered under it. Later, local government powers were surrendered and the English sodomy law, still with a capital sentence, became operative and remained so until after the Revolution.

The Post-Revolution Period, 1776-1873

In 1787, New York adopted a sodomy law ²⁰ retaining the death penalty for sodomy committed as it was known at common law (thereby excluding two women and any acts other than anal sex or bestiality between others). Conviction could be had on verdict, confession, or outlawry. ²¹

A comprehensive criminal law revision in 1788 ²² retained the death penalty for sodomy ²³ and authorized the forfeiture of all property to the state of anyone so convicted, ²⁴ but prohibited corruption of blood or forfeiture of the dower of the wife. ²⁵

A new criminal code in 1796 ²⁶ reduced the penalty for sodomy from death to a maximum of 14 years at either solitude or hard labor. ²⁷

In 1801, a new law ²⁸ raised the penalty for sodomy to a compulsory sentence of life imprisonment. ²⁹ If thought proper, hard labor or solitude could be made a condition of the lifetime sentence. ³⁰

The penalty was reduced in 1828 in a new criminal code ³¹ to a maximum of 10 years in prison. The reference to hard labor and solitude disappeared. ³²

The first reported sodomy case in New York was Lambertson v. People, ³³ from 1861. The Dutchess County Supreme Court sustained a conviction following an indictment that Lambertson

in and upon the body of Peter Cohen, in the peace of God and of the said people, then and there being with force and arms, did feloniously make an assault, and him, the said Peter Cohen, then and there feloniously, wickedly, diabolically, and against the order of nature, with the said Peter Cohen, did commit and perpetrate the detestable and abominable crime of buggery, against the statute in such case made and provided, to the evil example of all others in like case offending, and against the peace of the People of the State of New York, and their dignity. ³⁴

Period Summary: The English sodomy law remained in force in until after the Revolution. The first statute enacted by New York afterward retained the death penalty. In 1796, following Pennsylvania, Maryland, and New Jersey among the original English colonies, New York eliminated the death penalty for sodomy, although, in varying laws throughout this period, it retained long prison sentences as a penalty.

The Victorian Morality Period, 1873-1948

I. Sodomy

A comprehensive criminal code revision in 1881 ³⁵ abrogated common-law crimes ³⁶ and raised the penalty for sodomy to 5-20 years. ³⁷

In 1886, another criminal law revision ³⁸ left the penalty as it was, but expanded the reach of the law to include one who

[c]arnally knows any male or female person in any manner contrary to nature; or [v]oluntarily submits to such carnal knowledge. ³⁹

This law obviously was designed to cover oral sex, but was so broad that practically any erotic activity imaginable was covered, and it made no discrimination on the basis of gender.

Another criminal law revision in 1892 ⁴⁰ retained the 20-year maximum for sodomy, but eliminated the 5-year minimum, and limited the scope of the prohibited acts to "by the anus or by or with the mouth[.]" ⁴¹ This clearly legalized activity such as mutual masturbation, frottage, and tribadism.

The most famous person to be charged under this law was professional boxer Alfred Griffith, known as The Young Griffo. In 1895, he was arrested on a charge of "Oscar Wildeism" with a boy. He pleaded not guilty, but further information is lacking. ⁴²

An unreported sodomy case from 1898 was prosecuted by the New York Society for the Prevention of Cruelty to Children. Edward Haskins, whose age is not given, was prosecuted for assisting 16-year-old Henry Ranson to engage in sodomy with 13-year-old Lawrence Saggen. ⁴³

In 1902, in People v. Deschessere, ⁴⁴ the Appellate Division of the Supreme Court unanimously overturned the sodomy conviction of a man with a 17-year-old male of limited mentality because of the young man’s testimony that his father had coached him on what to say. ⁴⁵

In People v. Bahr, ⁴⁶ also from 1902, the Appellate Division of the Supreme Court overturned another sodomy conviction, this time because of the trial court’s refusal to allow the defendant to introduce character witnesses on his behalf. ⁴⁷

A police raid on the Ariston Baths in 1903 led to a number of arrests. Two men arrested were George Galbert and Walter Bennett, ⁴⁸ for sex with each other. The indictments were worded that Galbert and Bennett had assaulted each other, because that’s how the preprinted indictment forms were worded. Bennett received a sentence of more than seven years in prison for consensual sex and asked Governor Frank Higgins for a pardon. Higgins asked for more information on the case and the District Attorney furnished a detailed account of the arrests at the Ariston. There is no information in the records as to the Governor’s response.

An unreported sodomy case from 1910, People v. Williams and Krause, ⁴⁹ involved consensual sodomy but, as was standard practice, the indictments were worded that Williams and Krause had assaulted each other. Detectives had seen Williams and Krause speaking on a corner and followed them to a hotel where they looked through a transom to witness an act of fellatio. The detectives then "broke in [the] door" of the defendants’ room and arrested them. The trial judge appointed a Commission in Lunacy to examine Williams.

A 1917 lecture at the Society of Forensic Medicine ⁵⁰ noted that the New York sodomy law apparently did not cover tribadism, but probably did cover cunnilingus, because the latter effected sexual penetration. ⁵¹

A sodomy case with little detail included was People v. Sileo, ⁵² decided in 1922. The Appellate Division of the Supreme Court overturned a sodomy conviction because the complaining witness had been described by the trial judge as not an accomplice "as a matter of law." ⁵³ Unfortunately, no further details exist in the opinion.

In 1923, a supplemental law was enacted ⁵⁴ making it a crime, in New York City only, to frequent or loiter in

any public place soliciting men for the purpose of committing a crime against nature or other lewdness. ⁵⁵

The penalty was set at up to six months in a jail or workhouse, or a fine of up to $50, or both, or probation for up to two years. ⁵⁶

A study ⁵⁷ published in 1938 revealed, first, that the sample of Gay men convicted of various sexual offenses in one year in New York showed that 97% were convicted of sexual acts with other adults. ⁵⁸ A second revealing statistic was that

[s]ome judges for one reason or another impose jail sentences on all homosexuals, even in the case of first offenders. As these men come before the courts again and again, the term of imprisonment is lengthened until they receive the maximum penalty, although neither imprisonment nor the threat of imprisonment produces any change in the offender’s mode of living; at most it serves to make him more cautious. ⁵⁹

This study obviously had no effect on the conduct of judges or prosecutors.

A medical journal article ⁶⁰ from 1939 gave valuable detail to court practices in New York City concerning those arrested for sodomy or other sexual crimes. In late 1937, due to "a series of flagrant sex crimes," Mayor Fiorello LaGuardia ordered all prisoners convicted of "sex crimes involving perversion" to be kept under medical observation and held indefinitely if found to be insane. Unfortunately for him, only a tiny fraction of the prisoners were diagnosed as such. The prisoners then were sent back to the courts for disposition, but disagreement arose among various experts in the city as to the rightful way to handle the cases. Some believed that

at least some of the punishable perversions were intrinsically harmless constitutional variants, that an adult’s sexual preferences were purely his own concern so long as the physical or property rights of others were not involved. ⁶¹

Specifically concerning sodomy, it was noted that such arrests constituted 7% of all sex-related arrests in New York City. The value of criminal prosecution for such activity was questioned and,

though it may be questioned whether the law is entitled to interfere with voluntary private practices engaged in discreetly by adults, it seems fairly obvious that no culture can for very long openly tolerate sex practices which lie outside the sphere of normal intercourse, since the perpetuation of any such unorthodox tradition would mean the quick disappearance of the race that tolerated it. ⁶²

The conclusion was that social taboos, rather than criminal law, should be the resort for "the preservation of any one normal pattern of sexual behavior[.]" ⁶³

In 1939, in People v. Hall, ⁶⁴ a county court decided a case of attempted sodomy. The court noted that, for an attempt to be proved, the state had to prove that the acts

were committed wilfully and designedly; in other words, that they were not accidental, unintentional nor done as a joke. ⁶⁵

The court believed that the evidence

justified the conclusion that over a period of time the defendant had been a person with abnormal, unnatural and perverted sexual desires. This crime is unusual and unnatural. The statute refers to it as a crime against nature. A normal person would not commit the crime. Who would commit such a crime? It certainly is essential to inquire into the mental attitude and physical reactions of a man charged with this crime in order to determine whether he is such a man. ⁶⁶

The court went on to say that the

natural sex instinct is for the opposite sex. How then, are we going to determine the sexual attitude of this defendant toward his own sex? He is presumed in law to be a man with normal sexual desires and not possessing an abnormal perversion. It was necessary for the People to prove that the defendant was homo-sexually inclined; that he had emotions which led him to commit the crime; that he had a passion toward his own sex that was unnatural. If it be determined that the defendant was possessed of the passion, emotion and desires referred to, then he is capable of committing the crime of Sodomy and it follows that the jury could infer that he had a sexual force which impelled him to attempt it. ⁶⁷

Thus, at least according to this one judge, sodomy could be accomplished only between persons of the same sex, because any passion, and therefore any sexual acts, directed at the opposite sex is "normal," despite the broader wording of the New York law.

Even though New York did not enact a psychopathic offender law until 1950, it is obvious that some state officials took matters into their own hands. In 1942, a medical journal article ⁶⁸ described a Gay "sex psychopath" who was lobotomized by the state (using only local anesthesia during the procedure). ⁶⁹ A later report detailed the sad descent of the man into dementia and concluded that the lobotomy was solely responsible for the man’s loss of his mind. ⁷⁰

A study published in 1943 ⁷¹ detailed how the State of New York had attempted to "treat" minor males who had been in consensual same-sex relationships. In a chapter called "Adult Sexual Failures" (meaning that the behavior opposed by the state was not changed), two homosexual cases were discussed. "A.G.," almost 16 years old, had become involved

with a vicious group of adults, who conditioned him to all the practices and ceremonials of homosexualism. He soon made fruitless trips to California on wild adventurous schemes of coming into "big" money through homosexual affairs. Even during intervals at home, when unemployed and pressed for money, he would venture into these practices. He came to New York City from his home in New Jersey because his companions had informed him of the great opportunities existing for homosexuals in the "big city." ⁷²

He was brought before the Children’s Court in 1929 for "soliciting and engaging in homosexual practices as a means of livelihood." He was placed on probation under New Jersey authority but, a year-and-a-half later, was sent to prison for "homosexual practices." ⁷³ The case of "C.S." was that of a 15-year-old male called a "pansy" by playmates and thought to be a "sissy" by his father. He was brought to the Children’s Court in 1932 when he was discovered performing sodomy on "his younger siblings" (their gender was not stated). He was found to be a "psychopathic personality, with effeminate and homosexual traits." He had been placed on probation, but less than a year later returned "for much the same type of behavior." He then was imprisoned, released, and rearrested "for practicing sodomy with a small boy." He then vanished before being brought to court on that charge, and he had not been located since. ⁷⁴ In the chapter called "Adult Successes" were two other young males with homosexual dispositions. "D.K." was brought before the Children’s Court in 1928 because "he permitted boys in his neighborhood to commit sodomy on him." After being placed on probation, he returned two years later on several charges, one of them "for participating in perverted practices." After being sent to a reform school, he appeared in court a third time at age 18 to face several charges, one of them "associating with an undesirable group of companions." After being sent to a state training school, he developed good self-esteem and later got a steady job. ⁷⁵ Nothing in the "success" listed for him mentioned becoming heterosexual. "W.M.," age 16, was brought before the Children’s Court in 1930 because he

met a Negro pianist who was effeminate and a degenerate. The adult readily victimized the boy, conditioned him to the ideologies and practices of homosexualism. He had the boy sleep in bed with him on nights when his wife was out. He taught William all types of perversions, but the intimacy between the white boy and colored man created suspicion that reached the attention of the Society for the Prevention of Cruelty to Children; they investigated and had the boy and the degenerate brought into custody. ⁷⁶

He was placed on probation and his family followed a suggestion to move to a "distant neighborhood." Since that time the boy "has come into no known difficulties with the law[.]" ⁷⁷

In 1943, in People v. LaCasse, ⁷⁸ a sodomy conviction was overturned by the Appellate Division of the Supreme Court because the question of whether the partner was an accomplice never had been submitted to the jury. ⁷⁹

Yet another conviction was overturned on the same point in 1947 in People v. Petrucci. ⁸⁰ In this case, the trial court stated that the partner was not an accomplice "as a matter of law." ⁸¹

Also in 1947, in People v. Radaha, ⁸² a county court affirmed a charge of public indecency against a man for sending a letter to a male teenager saying, "I’ll give you $5.00 or more if you let me fuck you." The young man’s mother had intercepted the letter. ⁸³ The court found that, although the personal letter did not involve the public, the standard for determining indecency

connotes the moral standard by which the people in the various communities of the State abide. That standard or moral code does not include pederasty. ⁸⁴

Nevertheless, a month later, Radaha went free when another judge granted his petition for a writ of habeas corpus, noting that he had been convicted on a charge that did not actually state an offense under New York law. ⁸⁵

Another conviction fell in 1947 in the case of People v. Crocker. ⁸⁶ An Appellate Division of the Supreme Court voted 3-2 to overturn the conviction of a "man of education and culture, with a distinguished war record." ⁸⁷ He had been accused by a mentally retarded, vagrant 15-year-old male of sodomy, but the young man’s testimony was "neither clear nor convincing." ⁸⁸

II. Sterilization

New York passed a sterilization law in 1912 ⁸⁹ covering, among others, "criminal and other defective inmates" who might produce defective children. ⁹⁰ There was no restriction on the type of sterilization surgery that could be performed. ⁹¹

In 1918, in the case of Osborn v. Thompson, ⁹² the sterilization law was found to be unconstitutional. Justice William Rudd of the Supreme Court in Albany County first noted that Frank Osborn, a mentally retarded man in an institution, had received only a "somewhat superficial" examination by the board that authorized his sterilization ⁹³ and mentioned testimony by several doctors who favored castration rather than vasectomy for Osborn, because vasectomy would not kill his sex drive. ⁹⁴ Rudd criticized the doctors involved in the case, saying that they "apparently know very little about the subject," ⁹⁵ and sounded a humanitarian theme in discussing the appellant.

Frank Osborn is not a malefactor. He is mentally deficient. He is defective without personal responsibility for such defect. It must be assumed that he is poor in the sense that there are no parents or friends to give him a home and provide for him, and so he becomes a ward of the state to be cared for and treated and strengthened and developed, if possible. ⁹⁶

Rudd believed that sterilization was not a

proper exercise of the police power. It seems to be a tendency almost inhuman in its nature. ⁹⁷

On appeal, the Appellate Division of the Supreme Court unanimously affirmed Rudd without opinion. ⁹⁸

Although New York appealed this decision to the State Court of Appeals, the legislature didn’t wait. In 1920, the sterilization law was repealed, ⁹⁹ never to be reenacted.

Period Summary: New York became one of the first states to revise its sodomy law to cover oral sex, in 1886. Case law remained sparse throughout this period. A law of 1923 outlawed loitering for sodomy only in New York City, suggesting that there was an early recognition of a large, visible Gay male community by that time. A sterilization law to cover miscellaneous undesirables was enacted in 1912, one of the earliest in the country, but it never was used. A trial court, using harsh language, struck it down, and an appellate court unanimously affirmed that decision without an opinion. The legislature, fearful that the Court of Appeals would follow suit, repealed the law in 1920.

The Kinsey Period, 1948-1986

A 1948 radio broadcast ¹⁰⁰ of a panel discussion of homosexuality gave important law enforcement information. The program, called "Something Ought to Be Done," had a format in which letters from the public were received concerning some particular topic or problem and the letter writers, if invited, would appear on the program to express themselves further. In this case, a man wrote a letter talking about his entrapment and arrest by a police officer who enticed him into solicitation. Moderator J. Raymond Walsh noted that this program was the first in which the entire half-hour would be dedicated to one letter. A panel discussed the letter without the author being present. The five panelists were New York City’s Chief Magistrate, Edgar Bromberger; noted psychiatrist Frederick Wertham; New York State Senator McNeill Mitchell; sex author Howard Whitman; and Josiah Marvel, chair of the Quaker Emergency Service. The anonymous letter, written by someone who had internalized the anti-Gay hatred prevalent in society, was read on the air and it contained the following.

I was in a subway toilet one day when a man came in. He made advances to me which meant only one thing. Since I am in this pathetic mental condition I reciprocated to his advances. Whereupon, this ‘gentleman’ pulled out a badge and told me that I was under arrest. I was arrested and taken to a Police Court. For the first time in my life, outside of my army career, I was fingerprinted. I was advised to plead guilty, which I did. I pleaded guilty and the judge sentenced me to a $25.00 fine or 10 days in jail. ¹⁰¹

Moderator Walsh was concerned about the legitimacy of the letter and his panelists agreed that the letter was likely to be genuine. Judge Bromberger said that the arrest and trial procedures mentioned in the letter were common in New York City "prior to 1946," the year in which he

decided to establish an experiment in the Magistrate’s Court of a rehabilitative process where these unfortunates have been brought before us and found guilty. ¹⁰²

Author Whitman, also agreeing that the letter was not a hoax, said that the situation described was "worse" outside New York City than in. He noted that, in Ohio, after the appearance of his book, he received letters from people who said that what was done to homosexuals in Ohio was "Just send the homosexual out of the country and so not let him come back." In "the West" a judge claimed that he "never dreamed such things existed" and proceeded to give "the worst sentence that he could possibly give." ¹⁰³ Psychiatrist Wertham urged that doctors help the man "in his own attitude towards himself." ¹⁰⁴ The first hint of argument came after Wertham spoke. Judge Bromberger complained that he didn’t feel the man had

the right to criticise the manner in which he was arrested because, after all, to detect crime, we must have people who will detect crime, and the fact that he may have been invited into the offence merely emphasizes his problems and is no cause for criticism of the detective authorities. Of coures [sic], if he did not have a predilection for that sort of sex deviation, no amount of invitation would have induced him to participate in it. ¹⁰⁵

Bromberger then mentioned the psychiatric clinic run by the Quaker Emergency Service to which such offenders had been referred for the past two years and added that the courts also advised offenders

to consult one of the clergymen of his religious denomination who is on our panel and to receive the support of religious therapy, and advice and spiritual guidance. ¹⁰⁶

Wertham challenged Bromberger’s defense of entrapment by saying that he did not like "the idea of egging a man on to commit any crime." Bromberger responded by asking, "How else are you going to discover them, doctor? Many of these men are grateful that they have been brought in, as a matter of fact." ¹⁰⁷ Josiah Marvel, head of the Quaker Emergency Service, noted that the recidivism rate for homosexuals dropped from 22% per year to 1% with their service. He did not specify if the service merely counseled them how to be more discreet or whether they attempted to "cure" their homosexuality. ¹⁰⁸ State Senator Mitchell urged expansion of the state’s mental hospitals "to give the treatment that these men deserve." ¹⁰⁹ Author Whitman noted that the author of the letter promised to commit suicide if his parents ever found out that he was Gay. He thought that point was the "key" in the letter. That was

where we have to start with the bite of public opinion. Parents are the best friends of any young man or any child and if they so misunderstand this subject and can have such tremendous prejudice against it that the young man would commit suicide if they knew about it, you can imagine what a job we have got to do—not only to make parents accept the possibility of the personality disease or maladjustment of homosexuality, but that his friends, his neighbours, the people he works with, will also regard it as a distortion of personality, like alcoholism. The man needs help, not suicide. ¹¹⁰

A report issued in 1950 ¹¹¹ analyzed the state’s handling of sex criminals and made recommendations for legislative action. During the preceding year, only 4.7% of those arrested for sodomy had been sentenced to prison, with the others plea-bargaining their way to a lesser charge. ¹¹² The 102 sex offenders at Sing Sing Prison studied were divided into four categories based on prognosis for treatment and recommendations for legislation were made. One was for a psychopathic offender law ¹¹³ and that it be compulsory for those engaging in sodomy involving force or those under the age of consent. ¹¹⁴ A table of the 102 offenders detailing their crime, life history, sentence, and prior criminal record was published, dividing them into the four treatment prognosis categories. Of the 18 classified as "Predisposed to Violence and Untreatable," only one (5.6%) was imprisoned for same-sex sodomy. His history revealed a violently abusive mother. Of the 32 offenders classified as "Untreatable at Present," five (15.6%) were imprisoned for same-sex sodomy. One of the "negative" factors in these cases, the report said, was that they had no guilt about their homosexuality. Of the 44 classified as "Treatable As In-Patients," five were imprisoned for same-sex sodomy and one for extortion from another Gay man (13.6% total). Many of these were amenable to treatment, the report said, because they had guilt feelings about their homosexuality. The final group of eight classified as "Treatable As Out-Patients" contained none imprisoned on same-sex sodomy charges, revealing the bias of the authorities as to the danger of homosexuals. ¹¹⁵

The recommendations of this report largely were followed. New York made history with a new law in 1950. ¹¹⁶ The penalty for consensual sodomy was lowered to a misdemeanor, with a maximum penalty of six months in jail. ¹¹⁷ Sodomy, even with consent, was a felony in the rest of the states. A psychopathic offender law was included with this statute, ¹¹⁸ but covered only sexual acts with minors or with the use of force or threats.

In 1950, the Attorney General issued an opinion ¹¹⁹ that the governing sodomy law covered both participants in an act of fellatio, the wording of the law being broader for oral sex than for anal. This opinion would be affirmed by a court interpretation more than a decade later.

In 1952, in People v. Humphrey, ¹²⁰ a county court held that the evidence against the defendant was insufficient to sustain a conviction for disorderly conduct. Humphrey allegedly solicited a plainclothes police officer, Robert Shepard, to go with him to his apartment for "some beer, candy and for some fun." Humphrey allegedly made "indecent advances" to Shepard once inside the apartment. ¹²¹ The court held that "[f]un is a very broad term and does not necessarily have a sinister or evil meaning." ¹²² It concluded that there was no proof that Humphrey’s offer on the street was a sexual solicitation, and believed that Humphrey was being entrapped. ¹²³

Also in 1952, in People v. Doyle, ¹²⁴ the Court of Appeals voted 5-2 to overturn a sodomy conviction based on the uncorroborated testimony of an accomplice. The Court found a statement made to a state trooper to be insufficient corroboration.

In another 1952 case, People on Complaint of Sullivan v. Strauss, ¹²⁵ another disorderly conduct charge was dismissed for lack of evidence. In this case, City Magistrate LoPiccolo noted that the arrested men were in a public restroom in the presence of an undercover police officer and one fondled the genitals of the other in front of the officer. "It appears that the officer was on duty at this time for the express purpose of making arrests of degenerates." ¹²⁶ Amazingly, LoPiccolo believed that the fondling was not "intended to provoke a breach of the peace" and, therefore, could not be prosecuted. ¹²⁷ The complaint was dismissed and the defendants were discharged "to avoid double jeopardy." ¹²⁸

Later in 1952, sexologist Dr. Alfred Kinsey taught a "short course" to prosecutors in New York pointing out the fallacy of trying to enforce laws against consensual sexual activity. He said that there are 6,000 "homosexual acts" committed per one million people, yet only 20 to 30 arrests out of that same million. ¹²⁹

Many trial court judges obviously were either unaware of decisions on the matter of accomplices, or ignored the rulings, but yet another sodomy conviction was overturned on appeal in People v. Knorr, ¹³⁰ in 1953. The trial court in this case also had stated that the partner was not an accomplice "as a matter of law," rather than allowing the jury to decide the matter. ¹³¹

"Fun" got another defendant convicted under the disorderly conduct law. In 1953, in People v. Pleasant, ¹³² a court upheld the conviction of a man for soliciting an undercover police officer in a Manhattan bar to "have a few beers and have some fun." ¹³³ The officer went to the apartment and testified that he was solicited there for anal sex. ¹³⁴

A report issued in 1954 ¹³⁵ recommended that the state’s psychopathic offender law be broadened to include "minor sex offenses." ¹³⁶ It also recommended that the state undertake a comprehensive revision of the state’s criminal code. ¹³⁷ The first recommendation never was followed, and the second took almost a decade to begin.

In the 1957 case of People v. McCormack, ¹³⁸ another victory was scored by the defendant. McCormack and his partner had been arrested in a restroom allegedly for engaging in sexual activity in a stall. However, one of the arresting officers testified that he had not actually seen McCormack’s private parts, nor had he seen him touch his partner, nor had he heard any conversation between them. ¹³⁹ In addition, a time card from McCormack’s place of employment had been excluded as evidence, even though it showed he could not even have been in the restroom at the time alleged. This was considered reversible error by the appellate court. ¹⁴⁰

In 1958, in People v. Spry, ¹⁴¹ the Appellate Division of the Supreme Court decided 3-2 that penetration had to be proven in sodomy cases, overturning a conviction following a judge’s charge to the jury that was contrary. ¹⁴²

Yet another disorderly conduct conviction was overturned in People v. Burgwin, ¹⁴³ from 1958. In a terse opinion, the appellate court said that the record "is devoid of any proof" that Burgwin had loitered, solicited, attempted to breach the peace, or actually breached the peace. ¹⁴⁴

The police lost again in a disorderly conduct case in 1958 in People v. Feliciano. ¹⁴⁵ Feliciano solicited and fondled an undercover police officer, but no other person had observed the transaction. ¹⁴⁶ City Magistrate Charles Solomon decided that the disorderly conduct law was "concerned exclusively with the preservation of the public peace" and that

one may indulge in the kind of behavior ascribed to this defendant, that he may frequent or loiter about any public place soliciting men for the purpose of committing a crime against nature or other lewdness, provided this is not done with intent to provoke a breach of the public peace or whereby a breach of such peace may be occasioned. The statute is not aimed at sex deviation as such—"degeneracy." [Emphasis added]. ¹⁴⁷

Continuing in an annoyed tone, Solomon said that

[o]rdinary common sense at once suggests that the defendant in this type of case would not entertain any intention to breach the public peace and that to cause such a breach would be just about the farthest thought from his mind. Yet we go right on, as we have been doing as far back as this court can remember, with this kind of arrest and prosecution, which illustrates again the "increased tendency to employ [the disorderly conduct law] whenever it is determined a person should be arrested." [Citation omitted]. ¹⁴⁸

Solomon noted that he himself had proposed a broadened law to the New York legislature that had failed to pass. ¹⁴⁹

Once again a prosecution failed in the 1958 case of People v. Burnes. ¹⁵⁰ This case was very similar to the case of Strauss, in that two men had fondled each other in a public restroom in the presence of police officers. The appellate court decided that, because there was no evidence of solicitation by either party, the conviction could not stand. ¹⁵¹

In 1959, by a vote of 5-2, the New York Court of Appeals upheld a loitering conviction in People v. Liebenthal. ¹⁵² The case gives no detail whatsoever other than that Liebenthal had been arrested under the section of the loitering law banning "soliciting men for the purpose of the committing a crime against nature." The two dissenters felt that there was no evidence to prove that Liebenthal actually had solicited, as required by the statute. ¹⁵³

Later in the year, in People v. Evans, ¹⁵⁴ the Appellate Division of the Court of Special Sessions unanimously overturned a disorderly conduct conviction. A police officer was working undercover in a restroom and claimed that he saw "a naked knee" and then "two knees" and "a naked erect penis" thrust at him from under a stall. ¹⁵⁵ He then arrested John Evans for disorderly conduct. Justice Benjamin Gassman, writing for the court, reiterated New York case law that there had to be a breach of the peace in order for a conviction to stand under the law and, since there was no such breach, the conviction was reversed. Nevertheless, Gassman felt a need to do some moralizing. He first suggested text for an amendment to the disorderly conduct law to cover such cases, ¹⁵⁶ which might make prosecution of them more "fruitful" ¹⁵⁷ (obviously a pun). "Abhorrent as acts of degeneracy may be to the court—and they are—under the present state of the law, they are not sufficient to convict without evidence of actual or possible breach of the peace." ¹⁵⁸ Concurring, Justice William Ringel added that a toilet stall was not a public place, hinting that all consensual sexual activity occurring therein was protected from the law. ¹⁵⁹

Also in 1959, in People v. Lopez, ¹⁶⁰ the Court of Appeals split 4-3 to uphold another such conviction, again without any detail of the case other than the reference to the "crime against nature" provision. The three dissenters said that they felt that Lopez’s "guilt has not been established beyond a reasonable doubt." ¹⁶¹

In 1960, in People v. Hale, ¹⁶² the Court of Appeals voted 6-1 to uphold the vagrancy conviction of a man for soliciting a police officer in a bus terminal. The Court, speaking through Judge Sydney Foster, said that homosexual solicitations were solicitations for "lewdness and indecent acts" as stated in the vagrancy law. ¹⁶³

Even though the definition of sodomy in New York had not changed in nearly 70 years, in 1961, in the case of People v. Randall, ¹⁶⁴ the hole in the law received legal meaning. The Court of Appeals unanimously overturned Randall’s conviction for having allowed himself to be penetrated anally. The Court noted that the wording of the law outlawed only the inserter’s actions. ¹⁶⁵

Despite the American Law Institute’s plea for decriminalization of consensual sodomy, the New York legislature responded to Randall by enacting a law in 1962 ¹⁶⁶ to expand the reach of the sodomy statute to include the "insertee" in anal intercourse. ¹⁶⁷

An attempt to expand Randall to limit to scope of the law in acts of oral sex was the subject of the 1962 case People v. Maggio. ¹⁶⁸ This decision was handed down six weeks after the sodomy law was changed, but had been prosecuted under the former law. The Appellate Division of the Supreme Court voted 4-1 to apply Randall to oral sex, despite the clear language of the sodomy law that both partners in acts involving the mouth were guilty. In dissent, Presiding Judge George Beldock pointed out the practical result of the decision when he stated that the majority

emasculated the statute by making it impossible for a female to commit this crime, and by making it impossible for a male to commit the crime with his mouth on a male or female. Such an interpretation, in my opinion, is erroneous. ¹⁶⁹

Another case later in the year, People v. Katt, ¹⁷⁰ resulted in an identical 4-1 reversal of conviction for the same reason.

The state appealed the Maggio case and the Court of Appeals voted 4-3 to reverse the appellate court and reinstate the convictions. ¹⁷¹ The decision of the high court was exactly 22 words long.

Order reversed upon the dissenting opinion of Beldock, P.J., at the Appellate Division, and the judgment of the Rockland County Court reinstated. ¹⁷²

The dissenters believed that Randall would have to be overruled to reach the conclusion found by the majority. ¹⁷³

The convictions of five prisoners for consensual sodomy in their jail cells were upheld by the Appellate Division of the Supreme Court in 1963 in People v. Henry et al. ¹⁷⁴

In another 1963 case, People v. Burney, ¹⁷⁵ the Appellate Division of the Supreme Court unanimously overturned a sodomy conviction with little detail but the following tantalizing opening.

The verdict of the jury was against the weight of the evidence. Reversal is also required because of the prejudicial and inflammatory remarks of the district attorney during the summation. The effect of his injection of race and color into the case was unwarranted and improper. ¹⁷⁶

Also in 1963, in People v. Lawrence, ¹⁷⁷ the Appellate Division of the Supreme Court unanimously found oral admissions made by the defendant to three members of the state police to be sufficiently corroborating evidence. ¹⁷⁸

In 1964, the Appellate Division of the Supreme Court upheld another sodomy conviction in People v. Sanabria. ¹⁷⁹ Sanabria had been arrested with another man in a public restroom and, having waived his right to a jury trial, was convicted by a 2-1 vote of a three-judge panel. First, the court upheld the exclusion of the testimony of Sanabria’s wife because a

natural marital relationship between the defendant and his wife would neither prove nor disprove his ability or inclination to perform unnatural acts. ¹⁸⁰

The non-unanimous vote to convict him also was upheld, with the Court stating that the judges were then a "court" and not a "jury," so the requirement of unanimity no longer mattered. ¹⁸¹

In 1965, the New York legislature finally got around to enacting a new criminal code. ¹⁸² As written, it repealed the sodomy law, but opposition was strong enough to this provision and two others (decriminalization of adultery and permitting resistance to an unlawful arrest) that separate bills to reinstate these provisions were voted on at the same time as the code. ¹⁸³ Governor Nelson Rockefeller, in a memorandum on the subject, noted that the code revision would not have passed without restoration of these three provisions. "Accordingly, without reaching their merits, I am approving these bills." ¹⁸⁴ The new sodomy provision reduced the maximum penalty from six months to three months and excluded married couples. ¹⁸⁵ The new code also failed to reenact the psychopathic offender law.

The U.S. Supreme Court refused to get involved in a case of entrapment of Gay men in a New York bar after an undercover police officer went in and allowed himself to be solicited. ¹⁸⁶ The case, Robillard et al. v. New York, ¹⁸⁷ was unreported at its lower levels of appeal.

The first of several such cases in New York dealt with sexual activity on the stage as part of a play in 1969 in Raphael et al. v. Hogan et al. ¹⁸⁸ The U.S. District Court for the Southern District of New York upheld the right of New York to prosecute actors and others involved in the production of Che! for a

performance including scenes in which various performers fondled one anothers [sic] naked sexual organs and engaged in or aided or abetted in deviate sexual intercourse to wit, acts of oral and anal sodomy. ¹⁸⁹

Judge Irving Ben Cooper rejected the defendants’ First Amendment claim as "imaginative" ¹⁹⁰ and worried that the

prohibited evil is not thus disguised; it is like pouring cologne on gangrene.

It is a constant source of deep concern whether the alleged contribution to artistic advancement which is claimed for such an "artistic" work in which sodomy on view in public places is part and parcel thereof, is worth the dreadful price of outbursts of criminal deportment which are excited by such stimulation, and community apprehension which inevitably follow. ¹⁹¹

Cooper also found that the New York sodomy law was constitutional. ¹⁹²

The defendants from the same performance were convicted in state court and the trial opinion was reported in 1970 in People v. Bercowitz et al. ¹⁹³ The three-judge panel voted 2-1 for conviction. Judge Arthur Goldberg wrote the opinion and stated early on that

the insistent and pervasive sex talk and vile profanity and utter filth which permeated the play are not quoted in this opinion but they are quoted in the trial testimony and also appear as exhibits, which include the scripts and tape recordings. ¹⁹⁴

Goldberg also noted, in passing, that several theatre critics had testified as defense witnesses, urging protection of the performance on First Amendment grounds. ¹⁹⁵ Goldberg stated that there were 23 "different sex acts" presented in the play, including

simulated heterosexual copulation by nude performers, masturbation and three kinds of sodomy (male homosexual, heterosexual and even an attempted male self-sodomy [sic]). There was a simulated defecation scene performed by a nude male, complete with the use of toilet tissue at one performance. At other performances, the material used was a piece of cloth showing a "field of stars." At some performances, a flowerpot was used in this scene, superseded at other performances by a standard toilet. ¹⁹⁶

The majority on the court thus upheld the obscenity convictions, but reversed the sodomy convictions because there was insufficient proof of actual completion of sexual acts. ¹⁹⁷ In dissent, Judge Morris Schwalb noted that Che! addressed

the subjects of politics and sex and the use and abuse of sex in revolutionary politics, power and abuse of power, and political and sexual repressions. ¹⁹⁸

Schwalb also noted that the entire play never had been presented to the court, only the most controversial excerpts. ¹⁹⁹ He believed that the First Amendment barred prosecution of the defendants, and voted for acquittal. ²⁰⁰

Beginning in late 1969, a series of raids on the Continental Baths occurred in New York City. Patrons were charged with "lewd and lascivious acts" and employees with "criminal mischief." ²⁰¹

In 1971, a trial court decided that solicitation to engage in sodomy was not an attempt to commit the act, in the case of People v. Spencer. ²⁰²

In the 1974 case of People v. Johnson, ²⁰³ a trial court in Buffalo found that the sodomy law was unconstitutional because it discriminated between married and unmarried persons. ²⁰⁴ Judge Carmelo Parlato could see no constitutional reason to distinguish between the married and the unmarried, but he could see a logical and constitutional reason to distinguish between heterosexual and homosexual sodomy. ²⁰⁵ On appeal, ²⁰⁶ the Erie County Court reversed. The Court overlooked the marital status discrimination issue because it noted that Johnson’s conduct occurred in public, making marital status irrelevant as an issue. ²⁰⁷

In 1975, a petition for a writ of habeas corpus was rejected in the case of People ex rel. Price v. Warden. ²⁰⁸ Since Price had been released, the Court of Appeals found the issue to be moot. ²⁰⁹

In 1976, the companion cases of People v. Mehr ²¹⁰ and People v. Rice ²¹¹ were decided by the Appellate Division of the Supreme Court. In both cases, the court unanimously rejected a constitutional challenge to the marital status exemption, claiming that the exemption was required by the Supreme Court’s privacy decisions. ²¹² On appeal to the Court of Appeals, ²¹³ the high court unanimously took the easy out by refusing to review the "novel and difficult" constitutional issues raised without a trial record. ²¹⁴ Thus, Mehr and Rice had to be convicted before the court even would listen to their arguments.

Another case raising First Amendment questions concerning sodomy on stage was raised in 1976 in People v. Chang et al. ²¹⁵ The trial court ruled against the claim, while being apparently unaware of the earlier Raphael and Bercowitz cases.

Another lower court struck down the state’s sodomy law in 1977 in the case of In Re P. ²¹⁶ Judge Margaret Taylor of the Family Court went farther and included the prostitution law in the group of statutes felled by her opinion.

Sodomy convictions for consensual activity in a public restroom were upheld in the 1979 case of People v. Anonymous. ²¹⁷ However, the trial court added that both homosexual and heterosexual sexual activity was "absolutely beyond the right of the state to interfere" [emphasis added], but that principle could not apply here since the activity occurred in a public place. ²¹⁸

Also determined to be a public place was a van parked on a street. A sodomy conviction thus was sustained in the 1979 case of People v. Jose L. ²¹⁹

The confusion over whether or not the sodomy law was constitutional finally was decided in 1980 in People v. Onofre et al. ²²⁰ The New York Court of Appeals decided by a vote of 5-2 that the law was unconstitutional. Judge Hugh Jones, writing for a majority of four, believed that the law was void both as violative of privacy and equal protection. Jones believed that the right to privacy was a "right of independence in making certain kinds of important decisions." ²²¹ He also noted that the legislature, in retaining criminal penalties for sodomy in the 1965 penal code, was doing so only on moral grounds. ²²² Jones believed that the state had shown no "threat" that could occur as a result of private, consensual sodomy ²²³ and that it failed to show any rational basis for the marital exemption. ²²⁴ Judge Matthew Jasen concurred on the narrower ground that the law had to fall only on the ground of equal protection. ²²⁵ If married couples were included in the jeopardy of the law, it then would be constitutional, he believed. In a lengthy dissent, Judge Dominick Gabrielli, joined by Chief Judge Lawrence Cooke, stated that the majority

has recognized for the first time a constitutional right of personal autonomy broad enough to encompass at least the freedom to indulge in those sexual practices which have long been proscribed by our criminal law. ²²⁶

Gabrielli was critical of the majority’s dismissal of traditional religious condemnation of sodomy. It

erroneously ascribes no legal significance to that fact, relegating it instead to an irrelevant phenomenon of theology and privately held moral beliefs. This rather glib refusal to take account of the historical treatment of consensual sodomy as criminally punishable conduct has left a gaping hole in the majority’s analysis. ²²⁷

Curiously, Gabrielli claimed that there never had been legal proscription for certain types of activity, including matrimony and procreation, despite the fact that the U.S. Supreme Court had to strike down long-extant laws against miscegenation and contraception. ²²⁸ He continued in his erroneous vein when he said that the decision in Onofre was a "radical departure" from cases, such as the contraception and abortion decisions, that

merely swept aside State laws which impaired or prohibited entirely the free exercise of rights that traditionally had been recognized in western thought as being beyond the reach of government. [Emphasis added]. ²²⁹

Again, where Gabrielli got the idea that contraception and abortion always had been legal in the United States is unclear, since the proliferation of laws against them belies that fact. The U.S. Supreme Court refused to review this decision. ²³⁰

Although this case disposed of the sodomy law, it did not dispose of the loitering law. A Buffalo man, Robert Uplinger, was arrested for soliciting an undercover police officer for sex. In 1983, in People v. Uplinger et al., ²³¹ the Court of Appeals decided by a 6-1 vote that the solicitation law was unconstitutional. In a short opinion, the Court concluded that, because the activity solicited now was legal, the state could not constitutionally prohibit solicitation for it. ²³² The solitary dissenter was Judge Matthew Jasen, who misread the solicitation law as one

designed to protect persons from being harassed on the public streets by others who seek only their own sexual gratification. ²³³

Jasen, in giving the history of the law, did not see the discrimination in it. He quoted accurately from the original 1923 law that prohibited only male-male solicitation ²³⁴ and could not understand how the existing law, descendant of the earlier, was not viewed by the majority as "a harassment statute." ²³⁵ Jasen believed that it was rational for the legislature to protect those in the population "who desire only to live a quiet and private life" from such "harassment." ²³⁶

In this case, the U.S. Supreme Court did agree to review the decision but, after hearing oral arguments, voted 5-4 to dismiss the case as improvidently granted. ²³⁷ The Court decided that confusion over whether the case turned on federal or state constitutional grounds made it impossible for the federal court to review the case. ²³⁸

Period Summary: In the McCarthy era, New York became the one state that could be classified honestly as "liberal" on the sodomy issue. Its psychopathic offender law of 1950 excluded private, consensual activity from its scope and, accompanying that new law was a reduction of the penalty for sodomy from a felony to a misdemeanor, the first such action in the country. A string of court decisions in the 1950s led to the reversal of a number of loitering convictions of Gay men cruising for sex. One court went so far as to rule that a breach of the peace in such cruising was the only act that could lead to an arrest. Although the legislature responded to another liberal interpretation of the sodomy law (that some activity was not outlawed by it) by expanding the reach of the law in 1962, three years later, the law came close to being repealed. A new code of 1965 originally excluded penalties for sodomy, but a new law was inserted after opposition from the Catholic Church. Nevertheless, the misdemeanor penalty was halved in the new code. In 1980, the New York Court of Appeals struck down the law on privacy grounds and later invalidated the loitering law, also on broad civil liberties grounds.

The Post-Hardwick Period, 1986-Present

In a case from 1986, Arcara v. Cloud Books, Inc., ²³⁹ the U.S. Supreme Court voted 6-3 to reverse the New York Court of Appeals and permit New York to close down a bookstore because of sexual activity occurring on its premises. The opinion by Chief Justice Warren Burger noted that a

Deputy Sheriff personally observed instances of masturbation, fondling, and fellatio by patrons on the premises of the store, all within observation of the proprietor. He also observed instances of solicitation of prostitution, and was himself solicited on at least four occasions by men who offered to perform sexual acts in exchange for money. ²⁴⁰

The Court found that speech was not being regulated by the nuisance statute. ²⁴¹

In 1989, a New York court approved the clearing of a "loitering for the purpose of deviate sexual intercourse" charge from the record of a man who had been so arrested 20 years earlier. The Manhattan District Attorney’s office announced that it would clear other such records as well. ²⁴²

The Court of Appeals decided in 1991, in People v. McNamara et al., ²⁴³ that the state’s law against sex in public places had to be construed narrowly. By a vote of 6-1, the Court overturned convictions of several people for consensual sex in parked cars. Speaking for the majority, Judge Judith Kaye said that "the existence of a diminished expectation of privacy does not transform the interior of an automobile into a ‘public place’." ²⁴⁴ Kaye also noted that the statute in question was aimed at "a person’s sensibilities," and "where no such harm is likely, the statute is not violated." ²⁴⁵

The McNamara case concerned heterosexual defendants, but the rule was followed in United States v. Hoffman, ²⁴⁶ decided in 1994. Eric Hoffman had been arrested for engaging in fellatio in shrubbery in a federal park. Judge Raymond Dearie followed the construction given by the Court of Appeals in McNamara and found that the shrubbery, even in daylight, was too dark for anyone to be able to see into it. He said that neither the New York statute banning public lewdness nor the McNamara decision "suggests that the outdoors must always be a public place."

An unsuccessful attempt to extend McNamara and Hoffman was People v. Davis, from 1995. Raymond Davis had been spotted masturbating in a public restroom and the court found that there was no way that his activity couldn’t be seen by others. ²⁴⁷

In 1995, an Orange County judge, deciding Barbulean v. City of Newburgh, struck down a Newburgh ordinance banning the operation of a movie theatre in an area zoned otherwise. Barbulean operated an adult-oriented bookstore that contained video booths. Judge DiBiasi found that the New York state constitution contained a broader protection of free speech than did the federal constitution and that the restriction on Barbulean’s business violated that provision. ²⁴⁸

In 1997, an appellate court overturned the conviction of a man for voluntary sexual relations with a 14-year-old male in the case of People v. Seaman. ²⁴⁹ John Seaman, a lawyer who was disbarred because of his conviction, was convicted based entirely on the "sexual climate" of his home that included books on sex, beer, cigars, and nude hot tub bathing. The 4-1 majority found that the evidence bore no relation to the crime charged.

Period Summary: The New York courts have not relented in their movement toward sexual freedom. Although a 1986 decision of the U.S. Supreme Court reversed the state’s highest court (on federal grounds) concerning sexual privacy, the state courts since have interpreted New York’s law against public indecency quite liberally, excluding from it acts in parked cars in residential neighborhoods and in shrubbery.

Footnotes

¹ The Colonial Laws of New York, Vol. I, 1664-1719, (Albany:James B. Lyon, 1894), page x.

² Id.

³ Charles T. Gehring, ed., Laws & Writs of Appeal 1647-1663, (Syracuse:Syracuse University Press, 1991), page xvii.

⁴ Colonial Laws, supra, at x.

⁵ Id. at xii.

⁶ E.B. O’Callaghan, ed., New Netherlands Laws and Ordinances 1638-74, (Albany:Weed, Parsons & Co., 1868), page 10, enacted Apr. 15, 1638.

⁷ Id. at 12.

⁸ Id. at 12, enacted May 17, 1638.

⁹ Id. at 13.

¹⁰ E.B. O’Callaghan, ed., Calendar of Historical Manuscripts in the Office of the Secretary of State, Albany, N.Y., (Albany:Weed, Parsons & Co., 1865).

¹¹ New Netherlands Laws and Ordinances, at 93, enacted Mar. 10, 1648.

¹² Id.

¹³ Calendar of Historical Manuscripts, supra, at 201.

¹⁴ Id. at 211, 213, 251-252.

¹⁵ Earliest Printed Laws of New York 1665-1693, (Wilmington DE:Michael Glazier, Inc., 1978), page 110, enacted Mar. 1, 1665.

¹⁶ Id. at 124, §6.

¹⁷ The Colonial Laws of New York, Vol. I, 1664-1719, (Albany:James B. Lyon, 1894), at xiii and xiv.

¹⁸ Laws of New York 1691-1751, (New York:James Parker, 1752), page 1, enacted May 6, 1691.

¹⁹ Colonial Laws of New York, supra, at xix.

²⁰ Jones & Varick, comp., Laws of New York 1777-1789 Vol. 2, (New York:Hugh Gaine, 1789), page 45, ch. XXI, enacted Feb. 14, 1787.

²¹ Id.

²² Id. at 242, ch. XXXVII, enacted Feb. 21, 1788.

²³ Id. §II.

²⁴ Id. at 243, §VI.

²⁵ Id. at 244, §VII.

²⁶ Laws of New York 1796, page 669, ch. 30, enacted Mar. 26, 1796.

²⁷ Id.

²⁸ Laws of New York 1801, page 253, ch. LVIII, enacted Mar. 21, 1801.

²⁹ Id. §II.

³⁰ Id.

³¹ The Revised Statutes of the State of New York, (Albany:Packard and Van Benthuysen, 1836), page 46, enacted Dec. 10, 1828, effective Jan. 1, 1830.

³² Id. at 575, §20.

³³ 5 Park.Crim.Rep. 200, decided during May Term 1861.

³⁴ Id.

³⁵ Laws of New York 1881, page 913, ch. 676, enacted July 26, 1881, effective May 1, 1882. Known as The Penal Code of the State of New York.

³⁶ Penal Code, at 2, §2.

³⁷ Id. at 74, §303.

³⁸ Laws of New York 1886, page 39, ch. 31, enacted Mar. 3, 1886.

³⁹ Id. at 41, §6.

⁴⁰ Laws of New York 1892, Vol. 1, page 681, ch. 325, enacted Apr. 18, 1892.

⁴¹ Id. at 682, §4.

⁴² No mention of Griffith’s arrest is found in the index of either the New York Times or the New York Herald. The solitary reference to it that I located was in the Columbus Press-Post, May 25, 1895, page 1. No records exist with the New York Department of Correctional Services. They probably were destroyed. (Correspondence from Linda Foglia, Assistant Public Information Officer, Dec. 27, 1996).

⁴³ DAP #21,292, dated Apr. 21, 1898. The material sent by the New York City Municipal Archives does not reveal the outcome of the case.

⁴⁴ 74 N.Y.S. 761, decided Feb. 14, 1902.

⁴⁵ Id. at 762-763.

⁴⁶ 77 N.Y.S. 443, decided July 8, 1902.

⁴⁷ Id.

⁴⁸ DAP #41,914, dated Mar. 4, 1903.

⁴⁹ DAP #80,706, dated Dec. 30, 1910. The material sent by the New York City Municipal Archives does not reveal the outcome of the case.

⁵⁰ Given by Alfred Herzog, a physician, Nov. 27, 1917. His lecture is printed in The Medico-Legal Journal, 34:1-3, (Nov.-Dec. 1917) with notes on the same subject by Dr. Bernard Talmey on pages 3-4.

⁵¹ Id. at 2.

⁵² 194 N.Y.S. 968, decided May 26, 1922.

⁵³ Id.

⁵⁴ Laws of New York 1923, page 960, ch. 642, enacted May 22, 1923.

⁵⁵ Id. at 961, §722(8).

⁵⁶ Id. at 962, §723. In the 1930s only one woman was convicted of a same-sex sex charge in New York City, but many thousands of men were as a result of this discriminatory law. See Alfred Kinsey et al., Sexual Behavior in the Human Female, (Philadelphia:W.B. Saunders, 1953), page 485.

⁵⁷ George W. Henry and Alfred A. Gross, "Social Factors in Case Histories of 100 Underprivileged Homosexuals," Mental Hygiene, 22:591-611 (Oct. 1938).

⁵⁸ Id. at 594.

⁵⁹ Id. at 599.

⁶⁰ Joseph Wortis, "Sex Taboos, Sex Offenders and the Law," American Journal of Orthopsychiatry, 9:554-564 (1939).

⁶¹ Id. at 554.

⁶² Id. at 559.

⁶³ Id. at 563-564.

⁶⁴ 16 N.Y.S.2d 328, decided Dec. 15, 1939.

⁶⁵ Id. at 329.

⁶⁶ Id.

⁶⁷ Id. at 330.

⁶⁸ Journal of Criminal Psychopathology, 4:59-66 (July 1942).

⁶⁹ Id. at 63.

⁷⁰ Joseph W. Friedlander and Ralph S. Banay, "Psychosis Following Lobotomy in a Case of Sexual Psychopathy," Archives of Neurology and Psychiatry, 59:302-321 (1948).

⁷¹ Lewis J. Doshay, The Boy Sex Offender and His Later Career, (New York:Grune & Stratton, 1943).

⁷² Id. at 97-98.

⁷³ Id. at 98.

⁷⁴ Id. at 98-99.

⁷⁵ Id. at 137-138.

⁷⁶ Id. at 146.

⁷⁷ Id. at 146-147.

⁷⁸ 42 N.Y.S.2d 730, decided June 30, 1943.

⁷⁹ Id. at 730-731.

⁸⁰ 67 N.Y.S.2d 611, decided Jan. 27, 1947.

⁸¹ Id.

⁸² 69 N.Y.S.2d 722, decided Feb. 21, 1947.

⁸³ Id. at 724. The court was sensitive enough that it replaced the word "fuck" with "(engage with you in an act best defined as pederasty)."

⁸⁴ Id.

⁸⁵ People ex rel. Radaha v. Mock, Sheriff, 69 N.Y.S.2d 725, decided Mar. 13, 1947.

⁸⁶ 74 N.Y.S.2d 593, decided Nov. 12, 1947.

⁸⁷ Id.

⁸⁸ Id.

⁸⁹ Laws of New York 1912, page 924, ch. 445, enacted Apr. 16, 1912.

⁹⁰ Id. at 925, §351.

⁹¹ Id.

⁹² 169 N.Y.S. 638, decided Mar. 5, 1918.

⁹³ Id. at 639.

⁹⁴ Id. at 639-642.

⁹⁵ Id. at 642.

⁹⁶ Id. at 643.

⁹⁷ Id. at 644.

⁹⁸ 171 N.Y.S. 1094, decided July 1, 1918.

⁹⁹ Laws of New York 1920, page 1574, ch. 619, enacted May 10, 1920.

¹⁰⁰ The transcript is reprinted in Journal of Sex Education, 2:66-75 (1949).

¹⁰¹ Id. at 68.

¹⁰² Id. at 69.

¹⁰³ Id. at 70.

¹⁰⁴ Id. at 71.

¹⁰⁵ Id.

¹⁰⁶ Id. at 71-72.

¹⁰⁷ Id. at 72.

¹⁰⁸ Id. at 72-73.

¹⁰⁹ Id. at 73.

¹¹⁰ Id. at 74.

¹¹¹ New York Legislative Documents, One Hundred and Seventy-Third Session 1950, No. 56, issued Mar. 15, 1950.

¹¹² Id. at 11.

¹¹³ Id. at 43-44.

¹¹⁴ Id. at 44-46.

¹¹⁵ Id. at 49-79.

¹¹⁶ Laws of New York 1950, page 1271, ch. 525, enacted Apr. 11, 1950.

¹¹⁷ Id. at 1278-1279, §690(5).

¹¹⁸ Id. at 1279, §17.

¹¹⁹ Informal Opinions of the Attorney General 1950, page 96, issued Sep. 1, 1950.

¹²⁰ 111 N.Y.S.2d 450, decided Apr. 2, 1952.

¹²¹ Id. at 452.

¹²² Id. at 454.

¹²³ Id. at 454-455.

¹²⁴ 106 N.E.2d 42, decided Apr. 23, 1952. The lower court decision reversed is at 101 N.Y.S.2d 238.

¹²⁵ 114 N.Y.S.2d 322, decided Aug. 1, 1952.

¹²⁶ Id. at 323.

¹²⁷ Id. at 324.

¹²⁸ Id.

¹²⁹ Columbus Citizen, Aug. 7, 1952, 3:1.

¹³⁰ 118 N.Y.S.2d 429, decided Jan. 26, 1953.

¹³¹ Id. at 430.

¹³² 122 N.Y.S.2d 141, decided June 12, 1953.

¹³³ Id. at 142-143.

¹³⁴ Id. at 143.

¹³⁵ New York Legislative Documents, One Hundred and Seventy-Seventh Session 1954, No. 41.

¹³⁶ Id. at 18-19.

¹³⁷ Id. at 25-26.

¹³⁸ 169 N.Y.S.2d 139, decided Dec. 10, 1957.

¹³⁹ Id. at 141.

¹⁴⁰ Id.

¹⁴¹ 170 N.Y.S.2d 722, decided Feb. 3, 1958.

¹⁴² Id. at 724.

¹⁴³ 172 N.Y.S.2d 726, decided Feb. 11, 1958.

¹⁴⁴ Id. at 727.

¹⁴⁵ 173 N.Y.S.2d 123, decided Mar. 27, 1958.

¹⁴⁶ Id. at 124-125.

¹⁴⁷ Id. at 125-126.

¹⁴⁸ Id. at 126.

¹⁴⁹ Id.

¹⁵⁰ 178 N.Y.S.2d 746, decided Oct. 17, 1958.

¹⁵¹ Id. at 750.

¹⁵² 182 N.Y.S.2d 26, decided Jan. 8, 1959.

¹⁵³ Id.

¹⁵⁴ 192 N.Y.S.2d 144, decided Oct. 27, 1959.

¹⁵⁵ Id. at 145.

¹⁵⁶ Id. at 146.

¹⁵⁷ Id. at 147.

¹⁵⁸ Id. at 146.

¹⁵⁹ Id. at 147.

¹⁶⁰ 196 N.Y.S.2d 702, decided Dec. 30, 1959.

¹⁶¹ Id. at 703.

¹⁶² 203 N.Y.S.2d 71, decided July 8, 1960.

¹⁶³ Id. at 73.

¹⁶⁴ 214 N.Y.S.2d 417, decided Mar. 30, 1961.

¹⁶⁵ Id. at 421-422.

¹⁶⁶ Laws of New York 1962, page 1325, ch. 378, enacted Apr. 9, 1962.

¹⁶⁷ Id. §1.

¹⁶⁸ 228 N.Y.S.2d 791, decided May 21, 1962.

¹⁶⁹ Id. at 794.

¹⁷⁰ 234 N.Y.S.2d 988, decided Oct. 29, 1962.

¹⁷¹ 235 N.Y.S.2d 377, decided Nov. 1, 1962.

¹⁷² Id.

¹⁷³ Id.

¹⁷⁴ 239 N.Y.S.2d 146, decided Apr. 11, 1963.

¹⁷⁵ 244 N.Y.S.2d 1012, decided Dec. 5, 1963.

¹⁷⁶ Id.

¹⁷⁷ 245 N.Y.S.2d 16, decided Dec. 19, 1963.

¹⁷⁸ Id. at 16-17.

¹⁷⁹ 249 N.Y.S.2d 66, decided Apr. 16, 1964.

¹⁸⁰ Id. at 67-68.

¹⁸¹ Id. at 68.

¹⁸² Laws of New York 1965, ch. 1030, enacted July 20, 1965, effective Sep. 1, 1967.

¹⁸³ Id. at 2120, "Governor’s Memoranda." Also see Roger M. Fritts and Favor R. Smith, "Deviate Sexual Behavior: The Desirability of Legislative Proscription," 30 Albany L.Rev. 291, at 293 (1966). The opposition to liberalization was led by the Catholic Welfare Committee.

¹⁸⁴ Laws of New York 1965, at 2121.

¹⁸⁵ Id. at 1591, §130.38. The recommendations of the commission included repeal of the disorderly conduct law as redundant with one enacted by New York City, New York Legislative Documents, One Hundred and Eighty-Sixth Session 1963, No. 8, Appendix G, page 66; and repeal of the sodomy law, New York Legislative Documents, One Hundred and Eighty-Seventh Session 1964, No. 14, page 23.

¹⁸⁶ A history of the case is in Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court, (New York:Basic Books, 2001), pages 139-141.

¹⁸⁷ 385 U.S. 928, decided Nov. 7, 1966.

¹⁸⁸ 305 F.Supp. 749, decided Apr. 28, 1969.

¹⁸⁹ Id. at 752.

¹⁹⁰ Id. at 753.

¹⁹¹ Id. at 755.

¹⁹² Id. at 756.

¹⁹³ 308 N.Y.S.2d 1, decided Feb. 25, 1970.

¹⁹⁴ Id. at 4.

¹⁹⁵ Id.

¹⁹⁶ Id.

¹⁹⁷ Id. at 12.

¹⁹⁸ Id. at 13.

¹⁹⁹ Id.

²⁰⁰ Id. at 15.

²⁰¹ Leigh W. Rutledge, The Gay Decades, (New York:Plume, 1992), page 12.

²⁰² 322 N.Y.S.2d 266, decided June 11, 1971.

²⁰³ 355 N.Y.S.2d 266, decided Apr. 22, 1974.

²⁰⁴ Id. at 267-268.

²⁰⁵ Id. at 268.

²⁰⁶ 412 N.Y.S.2d 721, decided Apr. 14, 1975.

²⁰⁷ Id.

²⁰⁸ 375 N.Y.S.2d 112, decided Sep. 17, 1975.

²⁰⁹ Id.

²¹⁰ 383 N.Y.S.2d 798, decided Mar. 4, 1976.

²¹¹ 383 N.Y.S.2d 799, decided Mar. 4, 1976.

²¹² Id. at 799 (Mehr) and 800 (Rice).

²¹³ People v. Mehr and People v. Rice, 395 N.Y.S.2d 626, decided Apr. 26, 1977.

²¹⁴ Id.

²¹⁵ 382 N.Y.S.2d 611, decided Mar. 29, 1976.

²¹⁶ 400 N.Y.S.2d 455, decided Dec. 5, 1977.

²¹⁷ 415 N.Y.S.2d 921, decided Jan. 30, 1979. The lead attorney for the defendants was Harris Kimball, an attorney who had lost his license to practice because of his own sodomy conviction and who later was the plaintiff in a precedent-setting case on behalf of Gay attorneys.

²¹⁸ Anonymous, at 923.

²¹⁹ 417 N.Y.S.2d 655, decided June 13, 1979.

²²⁰ 434 N.Y.S.2d 947, decided Dec. 18, 1980.

²²¹ Id. at 949.

²²² Id. at 951.

²²³ Id. at 952.

²²⁴ Id. at 953.

²²⁵ Id. at 954.

²²⁶ Id.

²²⁷ Id. at 960.

²²⁸ Id.

²²⁹ Id.

²³⁰ 451 U.S. 987, decided May 18, 1981.

²³¹ 447 N.E.2d 62, decided Feb. 23, 1983.

²³² Id. at 63. Chief Judge Lawrence Cooke, who voted to uphold the sodomy law, joined with the majority in striking down the loitering law. Judge Dominick Gabrielli, the other Onofre dissenter, no longer was on the court in 1983.

²³³ 447 N.E.2d, at 63.

²³⁴ Id.

²³⁵ Id. at 64.

²³⁶ Id.

²³⁷ New York v. Uplinger, 467 U.S. 246, decided May 30, 1984.

²³⁸ Id. at 248-249. The four dissenters were Byron White, Warren Burger, William Rehnquist, and Sandra Day O’Connor, all with a very hostile judicial philosophy toward Gay and Lesbian plaintiffs. They believed that the case had been decided on federal grounds and could be reviewed by the Supreme Court. At oral arguments, White was openly hostile to Uplinger’s claims. See the Washington Blade, Jan. 20, 1984, page 10.

²³⁹ 478 U.S. 697, decided July 7, 1986.

²⁴⁰ Id. at 699.

²⁴¹ Id. at 707.

²⁴² Washington Blade, Dec. 15, 1989, page 18.

²⁴³ 578 N.Y.S.2d 476, decided Dec. 19, 1991.

²⁴⁴ Id. at 479.

²⁴⁵ Id. at 481.

²⁴⁶ New York Law Journal, Oct. 20, 1994, 1:3.

²⁴⁷ New York Law Journal, Mar. 2, 1995, 28:4.

²⁴⁸ New York Law Journal, Sep. 1, 1995, 28:6.

²⁴⁹ New York Law Journal, May 12, 1997, 1:3.

New York

• Statute: Ruled Unconstitutional 1980, repealed by the legislature on June 23, 2000.
• Case Law: People v. Onofre 415 N.E.2d 936 (N.Y. 1980)
• Restriction: Does not apply to married couples.

People v. Onofre ruled the NY sodomy law unconstitutional based on the federal constitutional privacy protections. These protections were found not to apply to homosexual sodomy in Bowers v. Hardwick in 1986. In the 2000 legislative session, the sodomy law was repealed as part of the Sexual Assault Reform Act which modernizes the criminal code.

Answers to Common Questions

Statute

Sec. 130.38 Consensual sodomy

A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.

Consensual sodomy is a class B misdemeanor.

Sec. 130.00 Sex offenses; definitions of terms

The following definitions are applicable to this article:
…
2. "Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.

History

News

• Sex Arrests on a Gay Beach Provoke a Hamptons Debate - July 19, 2003
• NY Gay Pride Marchers Cheer New Hero: Supreme Court - June 29, 2003
• New York Deletes ‘Sodomy’ from Its Laws - Gay.com / PlanetOut.com Network, June 20, 2003
• New York Kills Last Vestige of Sodomy Law - 365Gay.com, June 20, 2003
• New York Deletes Sodomy from Books - Advocate, June 20, 2003
• NCSF Meets with Linda Fairstein, Head of the Manhattan Sex Crimes Unit - July 10, 2001
• Protest To Mark 100th Anniversary of Oscar Wilde’s Death - November 28, 2000
• Governor Signs Sexual Assault Reform Act - October 19, 2000
• Legislature Wraps Up with a Bang - June 30, 2000
• Legislature Departs Albany on an Upbeat Note (Go Figure!) - June 30, 2000
• New York Sexual Assault Reform Law to Repeal Consensual Sodomy Statute - June 23, 2000

Editorials

• A Gay Pride Day to Remember - New York Daily News, June 29, 2003

Repeal bills

1999-2000

1997-1998

Advocates

Empire State Pride Agenda
647 Hudson St.
New York, NY 10014
212-627-0305
Fax:212-627-4136
prideagenda@prideagenda.org

Founded in 1990, the Empire State Pride Agenda is New York’s statewide, non-partisan lesbian and gay political advocacy organization. With offices in Albany, Buffalo, Rochester and New York City, the Pride Agenda fights for equal rights for lesbian and gay New Yorkers by lobbying the state legislature and the Governor, electing supportive candidates, organizing the community and educating the public. The organization has 13 full-time employees, 8 part-time employees, and a $2.2 million budget.