jquery slideshow by WOWSlider.com v8.7

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

Rhode Island
 "All of the bizarre means for perverting the sexual function that are conceived by depraved minds."

The Colonial Period, 1607-1776

By a statute of 1647, 1 sodomy was made a capital offense in Rhode Island. The wording was unique in the history of the United States. Under the heading "Touching Whoremongers," the statute read like a sermon.

First of sodomy, which is forbidden by this present Assembly throughout the whole colony, and by sundry statutes of England. 25 Hen. 8, 6; 5 Eliz. 17. It is a vile affection, whereby men given up thereto leave the natural use of woman and burn in their lusts one toward another, and so men with men work that which is unseemly, as that Doctor of the Gentiles in his letter to the Romans once spake, i. 27. The penalty concluded by that state under whose authority we are is felony of death without remedy. See 5 Eliz. 17. 2

There were no prosecutions under this law. 3 In 1663, this law, still under the "Touching Whoremongers" heading, was changed slightly to read

This Assembly doe Forbid and Declare First Against Sodomie which Is a vile Affection men given up thereto leave the Naturall use of women & burn in their lust one Towards Another and so men with men worke yt which is abominable and unseemly ye Penalty thereof Is Felony of Death without Remedy 5 Eli: 17[.] 4

There were no prosecutions under this law through the year 1670. 5 This law remained on the books until a statute of 1729 6 reworded it to read

That whosoever shall perpetrate and commit the detestable and abominable Crimes of Sodomy, or Buggery, and be thereof Lawfully convicted, shall suffer the Pains of Death, as in Cases of Felony, without the Benefit of Clergy. 7

A separate section created a statute of limitations of very short duration. All offenses had to be prosecuted within ten days of commission. 8

Period Summary: Rhode Island started with a uniquely worded sodomy law reading like a sermon, although there were no prosecutions under that law. A successor law, worded only with slightly less religious appeal, also had no prosecutions under it for at least its first half-decade. A third colonial law eliminated the religious language of the first two, but its structure clearly emanated from the religious bias of the predecessors.

The Post-Revolution Period, 1776-1873

A statute of 1798 9 again reworded the prohibitive language and lightened the penalty for a first offense.

That every person who shall be convicted of sodomy, or of being accessary thereto before the fact, shall, for the first offence, be carried to the gallows in a cart, and set upon the said gallows, for a space of time not exceeding four hours, and thence to the common gaol, there to be confined for a term not exceeding three years, and shall be grievously fined at the discretion of the Court; and for the second offense shall suffer death. 10

A separate provision of the new criminal code commanded that hanging be the method of inflicting the penalty of death. 11 A new code enacted in 1844 12 eliminated the death penalty for sodomy and substituted 1-12 years in prison. 13 The proscription also was reworded to outlaw "the abominable and detestable crime against nature, either with mankind or with beast[.]" 14 This language would remain unchanged through the years, even with changes in the penalty. In 1872, another comprehensive revision of Rhode Island law 15 raised the minimum penalty from one to seven years, but retained the maximum of 12 years. 16

Period Summary: Rhode Island moved to eliminate the death penalty for sodomy in 1798, but adopted a unique law that removed that penalty only for a first offense. It was not until nearly a half-century later that death was removed as a possibility for any act of sodomy. During Victorian times, the minimum penalty was increased to 7 years, one of the longest minimums in the country.

The Victorian Morality Period, 1873-1948

I. Sodomy

An 1881 revision 17 again raised the penalty. Although the appointed compilers of law were under instructions not to make changes "to affect the substance of the existing statute law[,]" 18 the 7-12 year penalty for sodomy was raised to 7-20 years. 19 No further changes have been made in this law. 20 One reason for the lack of reported sodomy cases in Rhode Island for some three hundred years after founding is that Rhode Island did not maintain transcripts of trials, thus making it difficult for defendants to file appeals. 21 However, one sodomy trial held in 1919 had some details preserved. Samuel Kent, a minister, was tried for sexual relations with males at the Newport YMCA in a notorious Naval scandal. Kent, although almost certainly guilty, was acquitted due to the actions of a hard-hitting defense team. 22

II. Sterilization

One physician, writing in 1925 in a medical journal, recommended a broad sterilization law for Rhode Island, a law that was not adopted. Included should be

the Sodomist and other perverts [who] blight and taint within the State Institutions those younger lives with whom they come in contact. And even after years spent within the narrow confines of their cemented cells, upon their release these perverts hasten to their own reincarnation because they are obsessed by the impulse of depraved passion at the sight of some innocent child. 23

Period Summary: During this era, there are no reported sodomy cases and only a single change to the statute, raising the maximum penalty to 20 years. A sterilization law to cover sodomy was recommended for the state, but never adopted.

The Kinsey Period, 1948-1986

In 1962, more than 300 years after the first enactment of a law against sodomy, the Rhode Island Supreme Court received a case under the law, and began a string of hostile decisions. In State v. Milne, 24 the Court was asked whether fellatio constituted a "crime against nature." Although the decision does not say so, it appears that Milne’s case was notorious, because he had requested and been granted a change of venue during his trial. 25 He had been convicted because of his act of fellatio with a 16-year-old male, both parties consenting to the act. 26 Milne raised the issue of consent in his appeal, which the Court rejected, saying that the issue was a "matter exclusively for determination by the legislature." 27 After reviewing other cases presented with the question as to whether fellatio was included in the term "crime against nature," 28 the Court claimed that the legislature, in using the phrase "crime against nature" had "made clear an intention to change the common law" with respect to the acts covered by the statute. The Court found its logic in reviewing the entire chapter of sexual crimes and the "absurd result" that would be reached if it believed that the legislature’s intent had been to "[leave] uninhibited all other forms of unnatural copulation." 29 Also rejecting Milne’s claim that the term "crime against nature" was not of constitutional certainty, the Court said that it

would not be reasonable to require a legislature to anticipate and describe in other than comprehensive terms all of the bizarre means for perverting the sexual function that are conceived by depraved minds. 30

In a 1970 case, State v. Correia, 31 the Rhode Island Supreme Court unanimously upheld the conviction of a man for sodomy with a 14-year-old male, even though the complaining witness could not recall the date of the alleged act, seemed confused as to what he and the defendant supposedly had been doing before the alleged act 32 and even though a doctor who had examined the young male’s rectum found no evidence of recent penetration. 33 In 1972, Rhode Island enacted a law 34 to permit compensation to any person killed or injured by any of a number of specified crimes, one of them being "the abominable and detestable crime against nature." 35 The Commission on the Jurisprudence of the Future made recommendations for revision of the criminal code in 1973. One was repeal of the "crime against nature" law. By failing to act on the recommendation, the Rhode Island legislature proved that it wished to continue with the jurisprudence of the past. 36 A revision in 1975 37 changed the penalty for the commission of a crime at common law not otherwise covered by statute. Any act that was a felony at common law could be penalized by up to five years in prison and/or a fine of $5,000. 38 In State v. Levitt, 39 decided in 1977, the Rhode Island Supreme Court expressly rejected an argument that the "crime against nature" law was unconstitutionally vague, 40 despite quoting from decisions of the Alaska and Florida Supreme Courts that identical wording was found to be unconstitutionally vague by those courts. 41 In 1980, the Court rejected the privacy claims raised in State v. Santos. 42 The Court first upheld the right of the trial judge to exclude the public from the courtroom because of the "facts to be elicited" during the testimony. 43 The Court gave a lengthy analysis to United States Supreme Court decisions on the right to privacy 44 and concluded that the right existed only for decisions regarding childbearing 45 and that "the right of privacy is inapplicable to the private unnatural copulation between unmarried adults." 46 Two months later, the Rhode Island legislature enacted a statute 47 that expanded the state’s law against "loitering for indecent purposes" (providing for a penalty of up to six months in jail) to cover any "private place." 48 In a second case that year, State v. McParlin, 49 the Rhode Island Supreme Court decided that cunnilingus also was a "crime against nature" and upheld the conviction of McParlin even though his indictment charged him with having committed fellatio on a woman. The Court decided that the word "fellatio" was surplusage, following in the indictment, as it did, the words "abominable and detestable crime against nature." 50 In 1983, the Court decided the case of State v. Souza 51 and rejected a sodomy defendant’s contention that the enactment of a comprehensive sexual assault law impliedly repealed the "crime against nature" statute. 52 A 1983 amendment to the loitering law 53 raised the penalty for a second offense to a maximum of one year in jail and/or a fine of up to $500. 54

Period Summary: Rhode Island did not receive its first reported sodomy case until 1962, more than 300 years after its first sodomy law was enacted. The still-used term "crime against nature" was found to include fellatio and, in a later case, cunnilingus. Heterosexuals were ruled as being covered by the law as well. The Rhode Island legislature ignored a recommendation from a committee to repeal the law. It did, however, enact a unique law permitting damages suits against persons who injured others while engaging in sodomy.

The Post-Hardwick Period, 1986-Present

The Rhode Island Supreme Court again unanimously upheld the constitutionality of the sodomy law in 1995 in State v. Lopes. 55 Showing no improvement in attitude since 1980 when it last upheld the law, the Court again swept broadly with its decision, continuing to include unmarried heterosexuals under its thumb as well. The U.S. Supreme Court declined to review the decision. 56 In 1998, the Rhode Island legislature finally decriminalized consensual sodomy. 57 The new law merely removed references to human sexual activity, leaving the bestiality provision intact. The age of consent is 16.

An effort to continue enforcing this statute against those arrested under it prior to the repeal was squelched by the Rhode Island Supreme Court in 1999 in State v. Mullen. 58 By a 3-2 vote, the Court found that the common law rule requiring abandonment of pending prosecutions against conduct now legalized overrules the state’s general savings statute.

Common-law crimes remain recognized in Rhode Island, 59 and case law in the state is that the repeal of a statute in derogation of the common law revives the common-law statute. 60 However, so long as the bestiality provision remains under the "Abominable and Detestable Crime Against Nature" rubric, the common-law provision is blocked from activation.

Period Summary: Another opportunity for the Rhode Island Supreme Court to strike down the sodomy law decided that private consensual sex remained the prosecutor’s business. The legislature finally did its job and repealed the provisions covering humans in 1998. By keeping bestiality a crime, the legislature, possibly unwittingly, prevented reactivation of the state’s common-law crime reception statute.

Footnotes

1 Rhode Island Proceedings of First General Assembly 1647, pages 31-32, adopted May 1647.

2 Id.

3 Rhode Island Court Records. Records of the Court of Trials of the Colony of Providence Plantations 1647-1662, Vol. I, (Providence, 1920).

4 John D. Cushing, ed., The Earliest Acts and Laws of Rhode Island and Providence Plantations 1647-1719, (Wilmington:Michael Glazier, Inc., 1978), page 64. The exact date of enactment is not provided.

5 Rhode Island Court Records. Records of the Court of Trials of the Colony of Providence Plantations 1662-1670, Vol. II, (Providence, 1922).

6 The Charter Granted by His Majesty King Charles the Second to the Colony of Rhode-Island, and Providence-Plantations in America, (Newport:James Franklin, 1730), "An Act for Punishing Crimes," page 171.

7 Id.

8 Id. at 176.

9 Laws of Rhode Island 1798, "An Act to reform the penal laws," page 584. The date of enactment is not provided.

10 Id. at 586, §8.

11 Id. at 605, §59.

12 Public Laws of the State of Rhode-Island and Providence Plantations, (Providence:Knowles & Vose, 1844), enacted Jan. 1844.

13 Id. at 394, §90.

14 Id.

15 General Statutes of Rhode Island 1872. The date of enactment is not provided.

16 Id. at 553-554, §12.

17 The Public Statutes of the State of Rhode Island and Providence Plantations, (Providence:E.L. Freeman & Co., 1882). The code was enacted in May 1881, but the exact date is not provided.

18 Id. Preface.

19 Id. at 686, §10.

20 Currently codified as §11-10-1, General Laws 1956.

21 Lawrence R. Murphy, Perverts by Official Order, (New York:Harrington Park Press, 1988), page 101.

22 Id. at 101-103.

23 Henry A. Jones, "Is the State of Rhode Island Ready to Have a Law Authorizing the Eugenic Sterilization of the Mental Defectives and Criminals?" The Rhode Island Medical Journal, 8:75-79, at 75 (May 1925).

24 187 A.2d 136, decided Dec. 28, 1962. Cert. denied, 373 U.S. 542, decided May 27, 1963. Famed attorney William Kuntsler represented Milne in his appeal before the U.S. Supreme Court.

25 187 A.2d, at 137.

26 Id. at 137-138.

27 Id. at 138.

28 Id. at 138-139.

29 Id. at 139.

30 Id. at 140.

31 262 A.2d 619, decided Mar. 4, 1970.

32 Id. at 620-621.

33 Id. at 622.

34 Public Laws of Rhode Island 1972, page 972, ch. 254, enacted May 4, 1972.

35 Id. at 976, §12-24-4 (12).

36 The Advocate, Vol. 118 (Aug. 15, 1973), page 16.

37 Public Laws of Rhode Island 1975, page 776, ch. 283, enacted May 22, 1975.

38 Id.

39 371 A.2d 596, decided Apr. 1, 1977.

40 Id. at 598-599.

41 Id. at 599.

42 413 A.2d 58, decided Mar. 20, 1980.

43 Id. at 62.

44 Id. at 66-68.

45 Id. at 68.

46 Id.

47 Public Laws of Rhode Island 1980, page 1217, ch. 279, enacted May 15, 1980.

48 Id. at 1218 §2.

49 422 A.2d 742, decided Nov. 17, 1980.

50 Id. at 743.

51 456 A.2d 775, decided Feb. 25, 1983.

52 Id. at 781.

53 Public Laws of Rhode Island 1983, page 357, ch. 196, enacted May 17, 1983.

54 Id. at 358 §1.

55 660 A.2d 707, decided June 21, 1995.

56 133 L.Ed.2d 861, decided Feb. 20, 1996.

57 Public Laws of Rhode Island 1998, ch. 24, enacted June 5, 1998.

58 740 A.2d 783, decided Nov. 16, 1999.

59 General Laws 1956, §11-1-1.

60 Mathewson v. Phoenix Iron Foundry, 20 F. 281, at 285, decided May 20, 1884.

Divider

Rhode Island

  • Statute: Repealed 1998; 11-10-1, Crime Against Nature
  • Penalty: 7-20 years
  • Classification: Felony
  • Restrictions: Doesn't apply to married couples.

Statute

11-10-1. Abominable and detestable crime against nature

Every person who shall be convicted of the abominable and detestable crime against nature, either with mankind or with any beast, shall be imprisoned not exceeding twenty (20) years nor less than seven (7) years.

History

1729 Rhode Island’s new sodomy law creates a statute of limitations of only ten days.
1798 Rhode Island’s new sodomy law eliminates the death penalty for a first offense, but retains it for a second. No other law in the U.S. had this feature
1972 The Rhode Island legislature enacts a unique law to permit compensation to anyone killed or injured as a result of specified crimes, including “the crime against nature.”

Repeal bill

  • H 7585 Introduced January 28, 1998
    This bill would repeal the "abominable and detestable acts" statute. Passed House, & Senate. Governor signed repeal.
  • H 6160 - Introduced February 4, 1997
    This bill would repeal the "abominable and detestable acts" statute. Died in committee

Legal

State v. Lopes, 1996 Summary
In this case in which a heterosexual man was charged with violating Rhode Island's sodomy statute, the ACLU of Rhode Island filed a friend of the court brief arguing that the sodomy law violated the state constitutional right to privacy. Citing an earlier decision, the court simply rejected the challenge and upheld the law. The U.S. Supreme Court declined to review the case. State v. Quitevis, 1996
The ACLU of Rhode Island is handling an appeal for a person found guilty of "loitering for indecent purposes" at an adult video store after allegedly offering to perform oral sex for an undercover police officer. The trial court rejected the defendant's challenge to the constitutionality of the "loitering" ordinance. The defendant entered a nolo plea and the complaint was "filed" for one year.

News

Editorials