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

South Carolina
"How and when this law has been enforced in South Carolina has been something of an enigma."

The Colonial Period, 1607-1776

A charter granted by King Charles II in 1667 to the Carolina colonies permitted local officials to enact criminal laws so long as they did not conflict with laws of England. ¹Despite this authority, it went unexercised as far as sodomy was concerned for nearly a half-century. In 1712, redundant laws were enacted that criminalized buggery. ² One provided for a compulsory death sentence and forfeiture of property only for males who engaged in "the detestable and abominable vice of buggery." ³ Offenders could be convicted by "verdict, confession, or outlawry." ⁴ The second statute adopted the Henrican law verbatim, ⁵ and apparently this law was what was considered in force since it was what appeared in the various codified versions of South Carolina law in later years. A third statute adopted the common law of England. ⁶

Period Summary: Like North Carolina, South Carolina existed for a half-century before sodomy became a crime. Unlike its neighbor, and unlike most southern states, South Carolina chose a local sodomy statute rather than adoption of English law.

The Post-Revolution Period, 1776-1873

There was a decision by the South Carolina Supreme Court in 1813, State v. LeBlanc, ⁷ that emission of semen was not necessary to complete the crime. This law apparently either was enforced laxly or ignored daringly by many. Correspondence from 1826 between Thomas Jefferson Withers and James Hammond, two young men who later would distinguish themselves in the cause of the Confederacy, reveals that they were engaged in a sexual relationship. ⁸ Despite the penalty of death that could be exacted even for consensual relations, Withers openly discussed the "extravagant delight" of the "poking and punching" that Hammond gave with his "long fleshen pole" that Withers "often had the honor of feeling." ⁹ In a second letter, Withers imagined Hammond

charging over the pine barrens of your locality, braying, like an ass, at every she-male you can discover. ¹⁰

The sodomy law remained unchanged until after the Civil War. A statute of 1869 ¹¹ abolished the death penalty for all crimes except murder as well as abolishing benefit of clergy for all crimes. Although the statute set new penalties for the formerly capital crimes of manslaughter, burglary, rape, and arson, no penalty was set for buggery, apparently an oversight. This error was corrected in a comprehensive code revision of 1872. ¹² A new penalty of five years in prison and/or a fine of $500 at the discretion of the trial court was established. ¹³

Period Summary: No changes were made to the 1712 "buggery" statute until after the Civil War when the death penalty was abolished. The follow-up statute creating a new penalty retained the term "buggery."

The Victorian Morality Period, 1873-1948

Even though there is but one reported sodomy case in the state, there have been prosecutions. In five years between 1899 and 1910, there were four prosecutions for "buggery," leading to two convictions. ¹⁴

Period Summary: During this entire period, there was neither a single change to the colonial law, nor a reported sodomy case. However, there were both prosecutions and convictions under the law.

The Kinsey Period, 1948-1986

In 1955, in the single reported case under this law, State v. Nicholson, ¹⁵ the South Carolina Supreme Court ruled unanimously that a trial court properly had set aside the "sodomy" conviction of a man for engaging in cunnilingus with a young girl. ¹⁶ The opinion is barren of analysis on this question. It must be presumed that the trial court believed an act of cunnilingus did not constitute the common-law crime of "buggery." ¹⁷ The South Carolina statute is the only one continuing to use the common-law term "buggery." Since the law has been determined not to include cunnilingus, it is likely that it does not include fellatio, mutual masturbation, tribadism, or frottage. One writer stated, "[h]ow and when this law has been enforced in South Carolina has been something of an enigma[.]" ¹⁸ Despite this concern, records ¹⁹ show active enforcement of the buggery law. In one twenty-year period, there were 146 prosecutions with 125 convictions (86%). They are as follows.

One writer suggested that it was "doubtful" if consensual relations ever have been prosecuted. ²⁰ Despite that claim, the 1959-60 report of the Attorney General reveals that four teenage males, ages 14 to 17, were convicted of "sodomy," apparently with each other. ²¹ In 1971, the state constitution was amended to establish a right to privacy reading

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained. ²²

The buggery statute remains in force today ²³ and, despite more than 100 prosecutions documented in 20 years, in 1983, it was claimed that the law was not enforced. ²⁴

Period Summary: The first, and still only, reported sodomy case in South Carolina occurred during this era, a case that held cunnilingus not to be a violation of the "buggery" statute. The law received no changes to it, making it, by more than six decades, the last state to use the term "buggery." A review of Attorney General reports shows that, in the 20-year period from 1954 to 1974, there were 146 prosecutions, an average of seven per year, with 125 convictions. Not a single one of those cases ended up before the South Carolina Supreme Court. A constitutional amendment adopted in 1971 made South Carolina one of only ten states with a specific right to privacy.

The Post-Hardwick Period, 1986-Present

Despite the musings of the writer above about the enforcement of the buggery law, it is clear that the state legislature considers the law to be viable. In 1988, a law was enacted ²⁵ requiring any person convicted of certain sex crimes, including buggery, to be tested for AIDS. ²⁶ The law makes no differentiation between consensual and nonconsensual buggery and mandates that the cost of the test shall be borne by the person convicted. ²⁷ In 1989, a law was enacted ²⁸ raising the penalty for any sex offense, including buggery, to a maximum 10 years in prison and/or a $10,000 fine if the act occurred within 100 yards of a "public or private child day care facility." ²⁹ As worded, this would cover acts occurring within someone’s home, if the home is that close to a day care facility. A bill was introduced into the South Carolina House in 1993 to change the sodomy law by eliminating the term "buggery" and replacing it with a ban on "any sexual act involving the sex organs of one person and the mouth or anus of another." The penalty also would be changed to a maximum of five years in prison, rather than the mandatory five years. The $500 fine also would be eliminated. ³⁰ That bill did not pass, but another law of the same year ³¹ did adopt the penalty provision of this bill. It declared "buggery" to be a Class F felony, the lowest level of felony in the state. ³² This changed the penalty from a mandatory five years to a maximum of five years. ³³ In 1994, South Carolina enacted a sex offense registry law. ³⁴ Registration with the county sheriff became required for all persons convicted, in South Carolina or elsewhere, of any of a list of sex offenses, including buggery. ³⁵ This law even covers registrants who leave the state. ³⁶ Common-law crimes remain recognized in South Carolina as well. ³⁷

Period Summary: How the privacy amendment as it relates to sodomy might be interpreted by the courts will have to await a reported case. Given South Carolina’s track record, one reported case in almost 300 years, and no rewording of the statute in that time, the wait may be a long one.

Footnotes

¹ Thomas Cooper, ed., Statutes at Large of South Carolina, Vol. 1, (Columbia:A.S. Johnston, 1896), pages 24-25, §6.

² Statutes of South Carolina, Vol. 2, (Columbia:A.S. Johnston, 1837), pages 465 and 493, enacted Dec. 12, 1712.

³ Id. at 465.

⁴ Id.

⁵ Id. at 493.

⁶ Id. at 99.

⁷ 2-3 Brevard 429, decided May 1813. This case actually deals with rape, but was claimed to deal with sodomy, without a citation, by the Louisiana Supreme Court in 1900. State v. Vicknair, 28 So. 273, at 275.

⁸ Martin Duberman, "Writhing Bedfellows": 1826 Two Young Men from Antebellum South Carolina’s Ruling Elite Share "Extravagant Delight," in Salvatore Licata and Robert Petersen, eds., Historical Perspectives on Homosexuality, (New York:Haworth Press & Stein & Day, 1981), pages 85-99.

⁹ Id. at 87-88.

¹⁰ Id. at 88-89.

¹¹ Laws of South Carolina 1868-1871, page 175, "An Act to Amend the Criminal Law," enacted Feb. 4, 1869.

¹² The Revised Statutes of the State of South Carolina 1873, (Columbia:Republican Printing Co., 1873), enacted Feb. 10, 1872.

¹³ Id. at 736, §4.

¹⁴ There is one prosecution in each year for 1899, 1900, 1906, and 1908, and none in 1910. See the Report of the Attorney General to the General Assembly of South Carolina for those years. The 1899 report also lists a separate prosecution for "beastiality" [sic] indicating that "buggery" and "sodomy" prosecutions were for human contacts. The other years’ reports are missing from the collection consulted.

¹⁵ 89 S.E.2d 876, decided Oct. 31, 1955.

¹⁶ Id. at 877.

¹⁷ Id.

¹⁸ Gerald E. Berendt, "Criminal laws which prohibit consenting adults from participating in homosexual activities in private," 23 S.Car.L.Rev. 816, at 817 (1971).

¹⁹ Report of the Attorney General to the General Assembly of South Carolina.

²⁰ William Shepard McAninch, The Criminal Law of South Carolina, (South Carolina Bar:1982), page 289.

²¹ Report of the Attorney General to the General Assembly of South Carolina 1959-60, page 434.

²² South Carolina Constitution, Article I, §10.

²³ Code of Laws of South Carolina 1976, §16-15-120.

²⁴ Gay Community News, Feb. 19, 1983, page 1.

²⁵ Statutes at Large of South Carolina 1988, page 4087, No. 490, enacted May 2, 1988, effective immediately.

²⁶ Id. at 4098, §18.

²⁷ Id. at 4099, §18.

²⁸ Statutes at Large of South Carolina 1989, page 623, No. 189, enacted June 8, 1989, effective immediately. This was part of the state budget.

²⁹ Id. at 1462, Subsection 37.

³⁰ House Bill 3938, introduced Apr. 13, 1993.

³¹ Statutes at Large of South Carolina 1993, No. 184, enacted June 21, 1993, effective Jan. 1, 1994.

³² Id. §F.

³³ Id. §A(6).

³⁴ Statutes at Large of South Carolina 1994, page 5129, at 5794, §112, No. 497, enacted June 29, 1994, effective July 1, 1994. This was part of the state budget.

³⁵ Id. at 5796, §23-3-430(10).

³⁶ Id. at 5797, §23-3-460.

³⁷ Code of Laws of South Carolina 1976, §14-1-50.

South Carolina

• Statute: 16-15-120, Buggery. Unconstitutional under Lawrence v. Texas.
• Penalty: 5 years/$500
• Classification: Felony
• Restrictions: None

Statute

Section 16-15-120. Buggery. Whoever shall commit the abominable crime of buggery, whether with mankind or with beast, shall, on conviction, be guilty of felony and shall be imprisoned in the Penitentiary for five years or shall pay a fine of not less than five hundred dollars, or both, at the discretion of the court.

History

News

• Sodomy Now Legal in S.C., Across U.S. - TheState.com, June 27, 2003
• U.S. Supreme Court Strikes Down South Carolina’s Sodomy Law - Associated Press, June 26, 2003
• Gay Rights Group Challenges State Sodomy Law - March 19, 2003
• USC Sexual Orientation Policy Draws Fire - December 7, 2001
• USC Faculty Would Ban Sexual Orientation Bias - December 6, 2001

Editorials

• June 26: The Day South Carolina Was Changed - Ed Madden on CommonDreams.org, July 4, 2003
• Ruling Makes Gays, at Last, Equal Citizens - Ed Madden on TheState.com, June 28, 2003
• S.C. Laws Used to Discriminate Against Gays - Ed Madden on MyrtleBeachOnline.com, March 22, 2003