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

North Carolina
"This commandment has become famous Biblical lore in the story of the destruction by fire and brimstone of the cities of Sodom and Gomorrah where the practice was prevalent."

The Colonial Period, 1607-1776

A charter granted by King Charles II in 1663 ¹ permitted the Carolina colonies to enact laws so long as they were "consonant to reason, and near as may be conveniently, agreeable to the laws and customs of this our realm of England." ² Even with this authority, no law against sodomy is known to have been enacted for a half-century. One text noted that "not many of the laws enacted prior to 1715" have been preserved. ³ Whether a sodomy law was included during this time era is unknown.

In 1712, the Carolina colony was divided formally into North Carolina and South Carolina.

In 1715, a law was enacted ⁴ to adopt the common law of England. ⁵ This made sodomy a capital offense, applicable only to males.

It was noted in 1746 that, because the early laws of North Carolina were not printed, "the people transgress many of them through want of knowing the same[.]" ⁶

A statute of 1749 ⁷ adopted only the English laws that were "apt and good" and which were denominated specifically. ⁸ This list of adopted statutes included both the buggery laws of Henry VIII and Elizabeth I. ⁹ This law technically maintained sodomy as a male-only and capital offense. However, the 1749 law was "universally acknowledged to have been repealed or disallowed by the king in council[.]" ¹⁰

Period Summary: It is unknown why North Carolina existed for nearly a half-century without any law against sodomy or without adoption of English laws. It was not until well into the colonial era that English common law was adopted by North Carolina, but there are no known death sentences from the colony. An even later colonial statute adopting all statutory laws of England was voided by the English government.

The Post-Revolution Period, 1776-1873

In 1778, North Carolina passed another statute ¹¹ that again adopted all of the common and statutory law of England that already had been considered in force. ¹²

A decision by the North Carolina Supreme Court in 1796, Sherrod v. Davis, ¹³ reinforced that all of the common law in force in England still was the law in North Carolina. ¹⁴

The first sodomy statute was enacted in 1836. ¹⁵ The law outlawed "the abominable and detestable crime against nature, not to be named among christians, with either man or beast" and provided a penalty of death, without benefit of clergy. ¹⁶ This law, at least on its face, eliminated the gender specifics of the English law.

In 1843, the North Carolina Supreme Court decided, in Crump v. Morgan, ¹⁷ that the common law of England, as adopted by North Carolina, included canon law, ¹⁸ so that religious motivation for criminal law was allowable in the state.

The law was revised in 1854. ¹⁹ The two changes were removal of the gratuitous clause "not to be named among christians" and elimination of the reference to benefit of clergy. ²⁰

In 1856, a guidebook for justices of the peace was published. ²¹ The editor, Edward Cantwell, praised the legal writings of Beccaria (who advocated decriminalization of sodomy) ²² and the Napoleonic Code (which decriminalized sodomy). ²³ Although not mentioning sodomy specifically, Cantwell advocated the Napoleonic Code for North Carolina. ²⁴ He dutifully presented information on the crime of sodomy and the proper evidence for it, ²⁵ but made no moralizing statements.

A law of 1861 ²⁶ eliminated the need to prove emission.

The death penalty finally was eliminated in a statute of 1868. ²⁷ The penalty was reduced to a still very harsh 20-60 years in prison. ²⁸

This statute apparently was considered too harsh because, less than eight months later, in 1869, the penalty was reduced to 5-60 years. ²⁹

Period Summary: After the Revolution, North Carolina again recognized English common-law crimes and did not enact a sodomy statute until 1836. When the statute was enacted, the death penalty was retained. After having waited so long to enact a specific sodomy law, North Carolina nevertheless revised the law frequently, but did not eliminate the death penalty until after the Civil War. However, the death sentence was replaced by a 20-60-year sentence, the harshest in the nation. This lasted less than a year, the 20-year-minimum being considered too harsh, showing the diminishing horror of sodomy during Victorian times. Also during this era, one legal commentator indirectly recommended repeal of consensual sodomy by recommending adoption of the Napoleonic Code. Unfortunately, the North Carolina legislature chose not to follow the recommendation.

The Victorian Morality Period, 1873-1948

I. Sodomy

In 1912, the North Carolina Supreme Court dealt with its first sodomy case (with a human) in State v. Savage. ³⁰ The court unanimously upheld the right of a jury to return a verdict of attempted sodomy instead of the completed act. ³¹

In 1914, the North Carolina Supreme Court, in State v. Fenner, ³² ruled that fellatio constituted a violation of the law. The Court felt that the term "crime against nature" was broader than the term "sodomy." ³³

The most famous person to be ensnared by this law was 17-year-old future political columnist Drew Pearson. In 1915, he and another young male were arrested in the town of Reidsville, but were acquitted by a jury. ³⁴

In the case of State v. Griffin, ³⁵ in 1917, the North Carolina Supreme Court upheld another conviction for fellatio. Griffin claimed that, since he fellated a boy, rather than the other way around as was the case in Fenner, he had not violated the law. The Court disagreed, saying that "one method is as much a crime against nature as the other." ³⁶ The crime against nature included

all kindred acts of a bestial character whereby degraded and perverted sexual desires are sought to be gratified. ³⁷

The Court also rejected Griffin’s claim that no crime occurred because the boy in the case was prepubertal and, therefore, incapable of an emission. An argument such as this would allow

such degrading practices to be carried on with impunity with those whose tender years and inexperience render them ignorant of their evil effects. The statute aims to protect the young and innocent as well as to punish the hardened criminal who seduces them into such filthy and detestable conduct. ³⁸

Griffin also raised the novel claim that, because he was 52 years old and the father of seven children, he could not be guilty of the crime, it being one committed only by young people. The Court rejected this claim as well, and regretted the "punishment" of the wife and children by the husband for his activities. "Their sufferings can not be mitigated." ³⁹

In 1937, the Court dealt with the case of State v. Callett. ⁴⁰ The Supreme Court unanimously overturned a sodomy conviction because the indictment had not specified that Callett committed the act of sodomy feloniously. ⁴¹ [Emphasis added].

Just a month later, the Court issued a 34-word opinion in State v. May ⁴² upholding a conviction for attempted sodomy as following a sufficient information. Five of the words were that the record was "barren of any reversible error," ⁴³ but the opinion is equally barren of any analysis.

II. Sterilization

North Carolina enacted a sterilization law in 1919 ⁴⁴ that covered those in state institutions, including prisons, whose "moral" condition could be improved by the operation. ⁴⁵

This law was amended in 1929 ⁴⁶ to include a provision making the ordering authority for sterilization surgery absolutely immune from both criminal and civil liability. ⁴⁷

This law was found unconstitutional by the North Carolina Supreme Court in 1933 in Brewer v. Valk. ⁴⁸ The Court found that the law denied due process by not granting the defendant any notice or hearing. ⁴⁹ Some 49 operations were performed in the state under the unconstitutional law. ⁵⁰

The North Carolina legislature responded with a law ⁵¹ passed quickly in 1933 to grant the hearing and notice rights insisted upon by the Supreme Court, as well as other safeguards. The law retained the same language authorizing sterilization of penal institution inmates whose "moral" condition might be improved. ⁵²

In 1935, the law was amended ⁵³ removing the necessity for a pre-sterilization hearing if the person asking for the sterilization is next-of-kin to the patient. ⁵⁴

Period Summary: It was nearly 40 years into this era that North Carolina had a published sodomy case (with a human). Nevertheless, the courts acted quickly in adopting the practices of other states. Just two years after the first sodomy case, the term "crime against nature" was interpreted to include fellatio, even though the statute’s wording had not been changed. North Carolina also was one of the first Southern states to adopt a sterilization law, in 1919. Its law covered persons with vague, undesirable traits. The original law was struck down on due process grounds, but quickly was reenacted with various civil liberties safeguards.

The Kinsey Period, 1948-1986

I. Sodomy

In 1954, a law review discussed the history of the North Carolina "crime against nature" law. ⁵⁵ After reviewing common law, statutory law, and case law, ⁵⁶ a new statute for North Carolina was proposed. Although suggesting that homosexuality was not the threat to society that many considered it, ⁵⁷ the proposed new law did not exempt consensual relations from prosecution. Consensual relations would be considered an unspecified misdemeanor and only married couples would be exempt from prosecution. ⁵⁸

Two cases were disposed of the same day by the North Carolina Supreme Court in 1956. In State v. Lance, ⁵⁹ the Court rejected the defendant’s contention that the enactment of a law to protect minors from sexual molestation impliedly repealed the sodomy law. ⁶⁰ To do so would

lead to the absurdity of imputing to the legislative body a purpose to abolish the statute condemning crimes against nature. ⁶¹

In the curious case of State v. Cannon, ⁶² the Court upheld the right of the trial court to correct errors in the trial record five years after the fact. ⁶³ One aspect that Cannon never challenged was that the public was excluded from his trial "because of the nature of the case." ⁶⁴

In another very brief opinion, State v. Ownbey, ⁶⁵ from 1957, the Supreme Court unanimously upheld a sodomy conviction, conceding that the "charge is serious. The punishment is afflictive." ⁶⁶

The next day, the Court disposed of two more cases, both with brief, undetailed opinions. Both, however, were moralizing. In State v. Pegelow, ⁶⁷ the Court stated that there was "no need to soil the pages of our Reports with a recital of its sordid details." ⁶⁸ In State v. Williams, ⁶⁹ the Court said that it "would serve no needful purpose to discuss the unnatural and depraved conduct to which the evidence relates." ⁷⁰

In 1961, the North Carolina Supreme Court ruled, in State v. Whittemore, ⁷¹ that penetration was essential to commit the act of sodomy. ⁷²

In 1962, the Court, deciding State v. King, ⁷³ upheld the right of the state to prosecute a person for sodomy under an amended indictment. ⁷⁴

The Supreme Court unanimously overturned a sodomy conviction in the 1963 case of State v. Walston. ⁷⁵ The trial court had required Walston to prove his alibi, rather than require the state to prove its case against him, a basic violation of the accusatorial system of justice, and the Court found this to be prejudicial error. ⁷⁶

The fascinating case of Perkins v. North Carolina ⁷⁷ was decided by a federal court in 1964. Release by habeas corpus was sought by a man who received a sentence of 20-30 years in prison for consensual sodomy after pleading not guilty and being convicted by a jury, whereas his partner received only 5-7 years after pleading nolo contendere. Judge J. Braxton Craven was openly hostile to and sarcastic about the North Carolina sodomy law and the moralizing that had gone into its statutory and case law history. First discussing the claim of vagueness, Craven referred to the term "crime against nature" as a "delightful euphemism" for the term "buggery." ⁷⁸ Mentioning the 1854 elimination of the term "not to be named among christians" and the benefit of clergy from the sodomy law, Craven said, "By 1854 Christians had become more articulate and less clergical." ⁷⁹ The fact that the law had not been changed in nearly a century led Craven to call the inaction "a shocking example of the unfortunate gulf between criminal law, and medicine and psychiatry." ⁸⁰ Craven then launched into a criticism of the North Carolina Supreme Court for having "misinterpreted both the statute and the common law" in the Fenner case by ruling that fellatio was a violation of the law. ⁸¹ Saying that "[e]uphemisms have no place in criminal law," ⁸² Craven attacked the North Carolina Supreme Court for having said that "crime against nature" means

much more than it meant at common law or as an enactment during the reign of Henry VIII, [and] its decisions have made equally clear that crime against nature does not embrace walking on the grass. ⁸³

Then turning to the issue of cruel and unusual punishment, Craven noted that imprisoning someone for "homosexual conduct" was akin to punishing drug addicts. ⁸⁴ It was suggested that Perkins may have received the longer sentence in revenge for having insisted upon his right to trial by jury. ⁸⁵ Craven noted that there was frequently "some frustration for the judge required to conduct a trial" if the evidence were clear as to guilt, ⁸⁶ but that seems to violate the spirit of the Sixth Amendment and the presumption of innocence. Craven also felt that Perkins had not received adequate assistance of counsel. ⁸⁷ He ordered Perkins released from prison within 60 days, unless North Carolina elected to retry him. ⁸⁸ Before ending his opinion, Craven embarked on an essay.

Putting Perkins into the North Carolina prison system is like throwing Brer Rabbit into the briarpatch. Most doctors who have studied homosexuality agree that prison environment, including close, continuous, and exclusive contact with other men, aggravates and strengthens homosexual tendencies and provides unexcelled opportunity for homosexual practices. For the confirmed homosexual, imprisonment can accomplish no rehabilitative function; instead it provides an outlet for the gratification of sexually-deviate desires. [Footnotes omitted].

After discussing the proposal by the American Law Institute to decriminalize consensual sodomy, Craven asked

Is it not time to redraft a criminal statute first enacted in 1533? And if so, cannot the criminal law draftsman be helped by those best informed on the subject—medical doctors—in attempting to classify offenders? Is there any public purpose served by a possible sixty year maximum or even five year minimum imprisonment of the occasional, or one-time homosexual without treatment, and if so, what is it? Are homosexuals twice as dangerous to society as second-degree murderers—as indicated by the maximum punishment for each offense? Is there any good reason why a person convicted of a single homosexual act with another adult may be imprisoned six times as long as an abortionist, thirty times as long as one who takes indecent liberties with children, thirty times as long as the drunk driver—even though serious personal injury and property damage results, twice as long as an armed bank robber, three times as long as a train robber, six times as long as one who feloniously breaks and enters a store, and 730 times as long as the public drunk?

These questions, and others like them, need to be answered. [Emphasis is Craven’s. Footnotes omitted]. ⁸⁹

Although Craven may have been well-meaning with that missive, he made the terms "sodomy" and "homosexuality" synonymous by it.

In 1964, in the case of State v. O’Keefe, ⁹⁰ the North Carolina Supreme Court unanimously held that an indictment stating that the defendant committed the abominable and detestable crime against nature with a named male person was sufficient. ⁹¹

Just a week later, the North Carolina Supreme Court upheld another sodomy conviction with a brief, moralizing opinion that gave no facts of the case. In State v. Wright, ⁹² the Court said that it found it "inappropriate to include herein a recital of the sordid evidence revealed by the record." ⁹³

Federal Judge Craven’s plea for a redrafting of the North Carolina sodomy law met with partial success in 1965. A new sodomy law ⁹⁴ changed the penalty from the 5-60 years that Craven found so objectionable to a fine or imprisonment "in the discretion of the court." ⁹⁵ The crime was not redefined, and still was classified as a felony. ⁹⁶

Another attempt to claim that the state’s law against taking liberties with children impliedly repealed the crime against nature statute was rejected in 1965 by the Court in State v. Harward. ⁹⁷

In the 1966 case of State v. Stubbs, ⁹⁸ the Court unanimously upheld a sentence of 7-10 years for a consensual act of sodomy. ⁹⁹ The Court refused to consider the sentence to be disproportionate to the crime, claiming that it was constitutional solely because it was within the statutory limits. ¹⁰⁰ In effect, it was saying that the cruel and unusual punishment clause of the Eighth Amendment had no meaning. The Court also rejected Stubbs’ contention that, if homosexuality were an illness, it could not be punished as a crime. ¹⁰¹ The Court found that

the legislative intent and purpose of [the sodomy law] prior to the 1965 amendment and since is to punish persons who undertake by unnatural and indecent methods to gratify a perverted and depraved sexual instinct which is an offense against public decency and morality. ¹⁰²

In another 1966 case, State v. Thompson, ¹⁰³ the North Carolina Supreme Court finally found a sentence that it could not abide. Thompson had been sentenced to 18-20 years for heterosexual sodomy, and the Court found that, since the 1965 sodomy law did not establish a penalty, it was controlled by another state law that created a maximum penalty of 10 years for crimes with no penalty prescribed. ¹⁰⁴

A sentence of 4-6 years for consensual fellatio in a parked car was upheld unanimously by the Court in the 1967 case of State v. Pugh. ¹⁰⁵

In 1968, in State v. Stokes, ¹⁰⁶ the North Carolina Court of Appeals held that, while it was preferable for an indictment to specify the name of the victim or co-partner in an act of sodomy, failure of the indictment to so read was not reversible error. ¹⁰⁷ This decision was reversed unanimously by the North Carolina Supreme Court. ¹⁰⁸ For unclear reasons, the Court included a paragraph mixing religious condemnation and legal history. In

Leviticus 18:22 (King James) there appears this commandment: "Thou shalt not lie with mankind, as with womankind: it is abomination." This commandment has become famous Biblical lore in the story of the destruction by fire and brimstone of the cities of Sodom and Gomorrah where the practice was prevalent. Genesis 19:24-25. From this Biblical genesis to the present day, the crime of sodomy and the crime against nature have been condemned by American and English jurisdictions. The early common law writers called it peccatum illud horribile, inter christianos non nominandum (that abominable sin, not fit to be mentioned among Christians). [Emphasis the Court’s]. ¹⁰⁹

In the 1971 case of State v. Reep, ¹¹⁰ the Court of Appeals upheld a sodomy conviction over the contention of Reep that he had been incarcerated in jail for some four months before trial, had been kept in solitary confinement for much of that time, and had been denied regular shaving, showers, exercise and change of clothing. ¹¹¹

In State v. Moles, ¹¹² from 1973, the Court of Appeals held unanimously that the term "crime against nature" was not unconstitutionally vague and overbroad. ¹¹³

In 1975, in State v. Jarrell et al., ¹¹⁴ the Court of Appeals unanimously upheld the right of police to make arrests for sodomy committed in a public restroom, based upon observation from in the ceiling. The Court noted that the sexual activity took place, not in an enclosed stall, but in the public area, thereby being visible to others. ¹¹⁵ The Court also rejected an effort by Jarrell to have the sodomy law limited to acts other than between consenting adults. The Court said only that it was unaware of any case law allowing people to engage in sodomy in a public restroom. ¹¹⁶ Finally, the Court found no reversible error in the question of the prosecutor to Jarrell’s co-defendant’s Sunday School teacher, who testified as to his good character. The prosecutor asked: "Teach him Genesis, about Sodom and Gomorrah?" ¹¹⁷ Since the trial judge sustained an objection to the question and instructed the jury to disregard it, the Court found the point not well taken. ¹¹⁸

Also in 1975, the Court of Appeals rejected a constitutional argument against the sodomy law in State v. Enslin. ¹¹⁹

In the 1975 case of State v. Wright, ¹²⁰ the Court of Appeals ruled that penetration was not necessary to complete an attempt to commit sodomy. ¹²¹

A 1979 challenge to the constitutionality of the sodomy law was rejected by the Court of Appeals in State v. Poe. ¹²² First, the Court ruled that consensual heterosexual fellatio constituted an offense under the statute. ¹²³ Second, the right to privacy was not violated by the statute because the Court felt a classification discrimination based on marital status was reasonable. ¹²⁴ Third, the Court rejected a vagueness challenge by saying that

persons of ordinary intelligence would conclude a fellatio [sic] between a man and a woman would be classified as a crime against nature and forbidden by [the sodomy law]. This keeps it from being unconstitutionally vague. ¹²⁵

In 1979, a law was adopted to standardize sentencing for crimes. ¹²⁶ The sodomy law was one of many changed by this new statute, and the effect of it was to change the fine from an unspecified amount to a maximum of $5,000. ¹²⁷ The prison term was not changed.

In 1979, North Carolina also enacted a law ¹²⁸ to outlaw "loitering for the purpose of engaging in prostitution." The law included anyone who "[r]epeatedly interferes with the free passage of other persons" for the purpose of violating either the prostitution law, or the sodomy law. ¹²⁹

A legislative hearing in 1984 on a proposal to repeal the "crime against nature" law was attended by hostile religious fundamentalists ¹³⁰ who succeeded in convincing the legislature to leave the felony law intact. Legislators told reporters that, although they favored repeal, they were afraid of the right-wing opponents. ¹³¹

In 1985, in the case of State v. Evans, ¹³² the Court of Appeals unanimously upheld, as neither vague nor discriminatorily enforced, the 1979 loitering for the purpose of committing the crime against nature. ¹³³ Evans, a woman, claimed that the law discriminated in favor of Gay men, a claim the Court disputed. ¹³⁴

II. Sterilization

Despite the broad wording of the law, through 1948 it was used exclusively for sterilization of the insane, mentally retarded, epileptics, and others thought to benefit from it. A total of 2,152 sterilizations had occurred by that date. ¹³⁵ No sterilization occurred to benefit the "moral" condition of an inmate, ¹³⁶ although a newspaper report revealed a sterilization for rape occurred in 1925, ¹³⁷ showing that the state may have covered up such sterilizations.

Period Summary: North Carolina was the first state in the nation to have an in-depth analysis of its sodomy law made in a law journal, in 1954. The author obviously was influenced by the Kinsey studies, but recommended decriminalizing sodomy only for married couples. North Carolina courts generally were sympathetic to prosecutors in sodomy cases, but a federal judge issued a harsh opinion in 1964 that had some effect on the state. A man had received a long prison term for private, consensual sodomy and Judge Braxton Craven directed his release on cruel and unusual punishment grounds, an action that led to a 1965 change in the penalty from 5-60 years to one with a maximum of ten years and no minimum. Since that time, the law was held constitutional and interpreted as covering heterosexuals. Efforts to repeal the law in the 1980s failed because of the perceived strong opposition of religious fundamentalists in Jesse Helms’s home state. The sterilization law remained and, toward the beginning of the era, had been used on more than 2,000 people.

The Post-Hardwick Period, 1986-Present

I. Sodomy

In 1993, the North Carolina legislature killed a bill to repeal the state’s sodomy law, ¹³⁸ and instead passed a comprehensive revision to criminal penalties. ¹³⁹ The new law created a complex system of penalties for crimes. The one for consensual sodomy was retained as a felony, but reduced to a standard sentence of three years. ¹⁴⁰ Judges also have been given discretion whether or not to impose a jail sentence and jail terms are not, according to the new law, supposed to be imposed on first offenders convicted of the lowest level felonies, of which sodomy now is one. ¹⁴¹

The state continues to recognize common-law crimes. ¹⁴²

II. Sterilization

The sterilization law remains on the books. ¹⁴³ The state insists that the sterilization law never was used for the improvement of "moral" conditions, but was aimed exclusively at "preventing pregnancy in sexually active female residents of our Centers." ¹⁴⁴

Period Summary: North Carolina continues to resist decriminalization of consensual sodomy. A new sentencing law of 1993 made it unlikely anyone would receive a jail or prison term for a first conviction, a three-year penalty remains possible for such an act, however. Common-law crimes remain recognized, and the sterilization law remains viable here.

Footnotes

¹ Laws of North Carolina, Vol. I, (Raleigh:J. Gales, 1821), page 1.

² Id. at 5-6.

³ Paul M. McCain, The County Court in North Carolina Before 1750, (Durham:Duke University Press, 1954), first page of preface.

⁴ A Collection of All the Public Acts of Assembly of the Province of North Carolina: Now in Force and Use, (Newbern NC:James Davis, 1756), page 38, enacted at the Little-River session between Nov. 17, 1715 and Jan. 19, 1716.

⁵ Id. at 39, §VI.

⁶ The Revised Statutes of the State of North Carolina, Passed by the General Assembly at the Session of 1836-7, Vol. I, (Raleigh:Turner and Hughes, 1837), page ix.

⁷ Id. at 293, enacted Oct. 16, 1749.

⁸ Id.

⁹ Id. at 297 (25 Henry VIII c. 6) and 298 (5 Eliz. c. 17).

¹⁰ The Public Acts of the General Assembly of North Carolina, Vol. I, 1715-1803, (Newbern NC:Martin & Ogden, 1804), page 37n.

¹¹ Id. at 252, ch. 5, enacted Apr. 14, 1778.

¹² Id.

¹³ 2 N.C. 370, decided during April Term 1796.

¹⁴ Id. at 371.

¹⁵ The Revised Statutes, supra, at 192, §6, enacted Dec. 1836.

¹⁶ Id.

¹⁷ 38 N.C. 91, decided Fall Term 1843.

¹⁸ Id. at 98.

¹⁹ Revised Code of North Carolina, Enacted by the General Assembly at the Session of 1854, (Boston:Little, Brown and Company, 1855).

²⁰ Id. at 203, §6.

²¹ Edward Cantwell, ed., Swaim’s Justice—Revised. The North Carolina Magistrate, (Raleigh:Henry D. Turner, 1856).

²² Id. at 225, §544.

²³ Id. at 227, §547.

²⁴ Id. §548.

²⁵ Id. at 233-234, §560 and §561.

²⁶ North Carolina Public and Private Laws 1861, page 61, ch. 30, enacted Feb. 22, 1861.

²⁷ North Carolina Public and Private Laws 1868, page 60, ch. 44, enacted Aug. 22, 1868.

²⁸ Id. §4.

²⁹ North Carolina Public and Private Laws 1869, page 406, ch. CLXVII, §6, enacted Apr. 10, 1869.

³⁰ 76 S.E. 238, decided Nov. 13, 1912.

³¹ Id.

³² 80 S.E. 970, decided Feb. 25, 1914.

³³ Id.

³⁴ Jack Anderson, Confessions of a Muckraker, (New York:Random House, 1979), page 218.

³⁵ 94 S.E. 678, decided Dec. 23, 1917.

³⁶ Id. at 679.

³⁷ Id.

³⁸ Id.

³⁹ Id. at 679-680.

⁴⁰ 191 S.E. 27, decided Apr. 28, 1937.

⁴¹ Id. at 28.

⁴² 190 S.E. 343, decided May 19, 1937.

⁴³ Id. at 344.

⁴⁴ Public Laws of North Carolina 1919, page 504, ch. 281, enacted Mar. 11, 1919.

⁴⁵ Id. §1.

⁴⁶ Public Laws of North Carolina 1929, page 28, ch. 34, enacted Feb. 18, 1929.

⁴⁷ Id. at 29, §5.

⁴⁸ 167 S.E. 638, decided Feb. 8, 1933.

⁴⁹ Id. at 640-641.

⁵⁰ Moya Woodside, Sterilization in North Carolina: A Sociological and Psychological Study, (Chapel Hill:University of North Carolina Press, 1950), page 9.

⁵¹ Public Laws of North Carolina 1933, page 345, ch. 224, enacted Apr. 5, 1933.

⁵² Id. §1.

⁵³ Public Laws of North Carolina 1935, page 806, ch. 463, enacted May 11, 1935.

⁵⁴ Id. at 808, §6.

⁵⁵ James R. Spence, "The Law of the Crime Against Nature," 32 N.Car.L.Rev. 312 (Jan. 1954).

⁵⁶ Id. at 312-320.

⁵⁷ Id. at 322.

⁵⁸ Id. at 324, §5. This proposal was praised, for some reason, by a reviewer in the Mattachine Review of March 1955, pages 8-10. One would think that a proposal for decriminalization would be praised, rather than one merely for reducing the penalty from a felony to a misdemeanor.

⁵⁹ 94 S.E.2d 335, decided Sep. 19, 1956.

⁶⁰ Id. at 337.

⁶¹ Id. at 338.

⁶² 94 S.E.2d 339, decided Sep. 19, 1956.

⁶³ Id. at 342.

⁶⁴ Id. at 340.

⁶⁵ 100 S.E.2d 505, decided Nov. 26, 1957.

⁶⁶ Id. at 506.

⁶⁷ 100 S.E.2d 499, decided Nov. 27, 1957.

⁶⁸ Id. at 500.

⁶⁹ 100 S.E.2d 500, decided Nov. 27, 1957.

⁷⁰ Id. at 501.

⁷¹ 122 S.E.2d 396, decided Nov. 8, 1961.

⁷² Id. at 398.

⁷³ 123 S.E.2d 486, decided Jan. 12, 1962.

⁷⁴ Id. at 488. King’s case returned to the Court a year later. State v. King, 128 S.E.2d 888, decided Jan. 11, 1963.

⁷⁵ 130 S.E.2d 636, decided May 1, 1963.

⁷⁶ Id. at 637.

⁷⁷ 234 F.Supp. 333, decided Oct. 5, 1964.

⁷⁸ Id. at 335.

⁷⁹ Id.

⁸⁰ Id.

⁸¹ Id.

⁸² Id. at 336.

⁸³ Id.

⁸⁴ Id. at 336-337.

⁸⁵ Id.

⁸⁶ Id.

⁸⁷ Id. at 338-339.

⁸⁸ Id. at 339.

⁸⁹ Id. at 340.

⁹⁰ 138 S.E.2d 767, decided Nov. 25, 1964. Cert. denied, 380 U.S. 985, decided Apr. 26, 1965.

⁹¹ 138 S.E.2d, at 768.

⁹² 139 S.E.2d 10, decided Dec. 2, 1964.

⁹³ Id.

⁹⁴ Public Laws of North Carolina 1965, page 676, ch. 621, enacted May 19, 1965.

⁹⁵ Id. §4.

⁹⁶ Id.

⁹⁷ 142 S.E.2d 691, decided June 18, 1965.

⁹⁸ 145 S.E.2d 899, decided Jan. 14, 1966.

⁹⁹ Id. at 901-902.

¹⁰⁰ Id. at 902.

¹⁰¹ Id.

¹⁰² Id.

¹⁰³ 150 S.E.2d 781, decided Nov. 2, 1966.

¹⁰⁴ Id. at 782. Thompson took his case to federal court, unsuccessfully seeking habeas corpus release. Thompson v. Turner, 275 F.Supp. 65, decided Aug. 28, 1967.

¹⁰⁵ 156 S.E.2d 561, decided Sep. 20, 1967.

¹⁰⁶ 161 S.E.2d 53, decided May 15, 1968.

¹⁰⁷ Id. at 54.

¹⁰⁸ 163 S.E.2d 771, decided Oct. 30, 1968.

¹⁰⁹ Id. at 774.

¹¹⁰ 182 S.E.2d 623, decided Aug. 4, 1971.

¹¹¹ Id. at 624.

¹¹² 195 S.E.2d 352, decided Mar. 28, 1973.

¹¹³ Id.at 353.

¹¹⁴ 211 S.E.2d 837, decided Feb. 19, 1975. Cert. denied and appeal dismissed, 213 S.E.2d 724, decided Apr. 2, 1975.

¹¹⁵ 211 S.E.2d, at 839.

¹¹⁶ Id. at 840.

¹¹⁷ Id.

¹¹⁸ Id. at 840-841.

¹¹⁹ 214 S.E.2d 318, decided May 7, 1975. Cert. denied and appeal dismissed, 217 S.E.2d 669, decided Aug. 25, 1975. Cert. denied, 425 U.S. 903, decided Mar. 29, 1976. Rehearing denied, 425 U.S. 985, decided May 19, 1976. A later federal appeal of Enslin’s is found, unpublished, at 565 F.2d 156, decided Nov. 1, 1977.

¹²⁰ 218 S.E.2d 511, decided Oct. 15, 1975. Cert. denied, 220 S.E.2d 622, decided Dec. 17, 1975.

¹²¹ 218 S.E.2d, at 513.

¹²² 252 S.E.2d 843, decided Mar. 20, 1979. Cert. denied, 259 S.E.2d 304, decided Sep. 25, 1979. Appeal dismissed, 445 U.S. 947, decided Mar. 31, 1980. Justices Brennan and Stevens voted to hear the case.

¹²³ 252 S.E.2d, at 844.

¹²⁴ Id. at 844-845.

¹²⁵ Id. at 845.

¹²⁶ Public Laws of North Carolina 1979, ch. 760, enacted June 4, 1979, effective July 1, 1980.

¹²⁷ Id. at 866, §14-177.

¹²⁸ Public Laws of North Carolina 1979, ch. 873, enacted June 8, 1979.

¹²⁹ Id. North Carolina General Statutes §14-204.1(b)(3).

¹³⁰ Washington Blade, Oct. 19, 1984, page 10.

¹³¹ Washington Blade, Mar. 8, 1985, page 8.

¹³² 326 S.E.2d 303, decided Mar. 5, 1985.

¹³³ Id. at 306.

¹³⁴ Id. at 308.

¹³⁵ Woodside, at 194.

¹³⁶ Id. at 13.

¹³⁷ Columbus Dispatch, June 24, 1993, 7A:1; Feb. 5, 1994, 1A:1.

¹³⁸ Lesbian/Gay Law Notes, May 1993, 41:1.

¹³⁹ Public Laws of North Carolina 1993, page 1411, ch. 539, enacted July 24, 1993, effective Jan. 1, 1995.

¹⁴⁰ Id. at 1726, §14-177.

¹⁴¹ Lesbian/Gay Law Notes, November 1994, 132:1.

¹⁴² General Statutes of North Carolina, §4-1.

¹⁴³ General Statutes of North Carolina, §35-36, et seq.

¹⁴⁴ Correspondence from Developmental Disabilities Section, Apr. 25, 1996.

North Carolina

• Statute: 14-177, Crime Against Nature. Unconstitutional under Lawrence v. Texas.
• Penalty: 3 years
• Classification: Felony
• Restrictions: None

Statute

14-177. Crime against nature

If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

History

• Greensboro's Untold Story: The Gay Scare of '57 - Greensboro News-Record, September 17, 2006
  On Feb. 4, 1957, a Guilford County grand jury emerged from its closed session and issued a bundle of indictments of a scope unlike any before or since - against 32 men accused of being homosexual.
  After witnesses named the men during police interrogations, the suspects were tried one by one in a Greensboro courtroom for crimes against nature, almost exclusively with consenting adults.

Repeal Bills

GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
SENATE BILL 759
Short Title: Sexual Privacy Act. (Public)
Sponsors: Senators Kinnaird; Gulley and Lucas.
Referred to: Judiciary II.
April 5, 1999

A BILL TO BE ENTITLED
AN ACT RELATING TO CRIMINAL PENALTIES FOR PRIVATE SEXUAL ACTIVITY
BETWEEN CONSENTING ADULTS.
The General Assembly of North Carolina enacts:
Section 1. G.S. 14-177 reads as rewritten:

"§ 14-177. Crime against nature.
(a) If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.
(b) This section shall not apply if the act occurs between consenting adults in privacy and is not for hire."

Section 2. This act is effective when it becomes law.

News

• Mopping Up Operation on Sex Crimes - Leonard Link, November 6, 2006
  Today Westlaw turned up an August 25 opinion by Presiding Superior Court Judge Benjamin Alford of Pender County, North Carolina, declaring unconstitutional NCGS 14-184, which provides "If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other."  Hobbs v. Smith, 2006 WL 3103008.  In the North Carolina statutes, the title for this provision is "Fornication and Adultery" - a bit surprising, since the crime, as described, while possibly pertaining to situations involving both of those, is really just open cohabitation by an opposite-sex unmarried couple.
• Greensboro's Untold Story: The Gay Scare of '57 - Greensboro News-Record, September 17, 2006
  On Feb. 4, 1957, a Guilford County grand jury emerged from its closed session and issued a bundle of indictments of a scope unlike any before or since - against 32 men accused of being homosexual.
  After witnesses named the men during police interrogations, the suspects were tried one by one in a Greensboro courtroom for crimes against nature, almost exclusively with consenting adults.
• Charlotte Attorney Calls for Change in North Carolina Laws Governing Public Sex - November 13, 2003
• North Carolina Still Enforcing Sodomy Law - August 27, 2003
• N.C. Sodomy Law Still Enforced Despite Ruling on Texas Measure - August 25, 2003
• North Carolina Judge Rules State Sodomy Law Unconstitutional - July 15, 2003
• Last Vestige of North Carolina Sodomy Law ‘Unconstitutional’ - July 14, 2003
• Gay Community Warned of Extremist Group's Plans - July 11, 2003
• North Carolina Police Continue to Lay Sodomy Charges - July 7, 2003
• Sodomy Arrest Guidelines Revised - July 6, 2003
• N.C. Gay Rights Groups Applaud Supreme Court’s Sodomy Ruling - June 26, 2003
• Benefits Advocates Criticize Decision - Durham Herald-Sun, March 16, 2003
• Lawmakers Back Away From Penalizing or Protecting Gays - October 8, 2001
• Repeal of North Carolina Sodomy Law Introduced - March 13, 2001
• Push Made for Change in North Carolina Sodomy Law - March 13, 2001
• North Carolina Pressed to Amend Sodomy Law - March 13, 2001
• Changes Sought in State Sex Law - March 9, 2001
• Gay-Rights Activists Prepared for Session Campaign to Change Laws - March 4, 2001
• Atmosphere Improving for Gays in North Carolina Legislature - January 11, 2001
• North Carolina Pride in Durham - June 13, 2000
• James Asks State To Probe ‘Felons’ Remark by Warren - May 14, 1999
• North Carolina Panel Hears Sodomy Reform - May 12, 1999
• Repeal of State’s Sodomy Law Doubtful - May 12, 1999
• Felony Law on Sodomy Debated - May 12, 1999
• Gay Advocates Get Hearing In Senate Committee - May 11, 1999
• Homosexuals Rally For New Laws - March 24, 1999
• Gays Lobby For Changes in Hate Crime Law - March 23, 1999
• North Carolina County Undoes Anti-Gay Funding Bans - February 24, 1999
• Mitchell County Sheriff to Forfeit Pay, Makes Apology for Tape Recording - September 27, 1997
• Sheriff’s Apology Won’t Do, Gay Rights Advocates Say - September 6, 1997

Editorials

• Letter: Higher Court Could Overturn Fatherly Advice - Joy Fincannon in the Wilmington Star, July 6, 2003
• Letter: Repeal the Law - March 23, 2001
• The Answer Isn’t Always a New Crime on the Books - Greensboro News & Record, March 26, 1999
• Letter: In Response to "Felony Law on Sodomy Debated", May 26, 1999
• Mixing Legislators, Leviticus - Rob Christensen in Raleigh News & Observer, March 24, 1999
• Letter: James Misreads Ruling on Homosexual Parents - August 16, 1998
• Letter: Sodomy Laws Aren’t Limited to Homosexual Acts - August 16, 1998
• Letter: Court Is Right; Felons Make Unfit Parents - August 10, 1998

Advocates

Equality North Carolina
PO Box 28768
Raleigh, NC 27611-8768
(919) 829-0343

Raymond A. Warren
309 East Morehead Street Suite 150
Post Office Box 36071
Charlotte, NC 28236
Tel:704-714-4344, Fax: 866-779-3014
Ray@RayWarrenLaw.com