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 Dakota
"Even if our Legislature had in such statute used the term ‘sodomy’, we would feel bound to give such word the broad meaning given it by lexicographers."

The Post-Revolution Period, 1776-1873

When organized by Congress in 1861, ¹ the Dakota Territory was given neither a sodomy law nor a reception of common-law crimes.

The Territory of Dakota, then comprising both of the current Dakota states, enacted a criminal code ² in 1862 that established a sentence of one year to life for sodomy, with the common-law definition. ³

Period Summary: As with most new territories, the Dakota Territory (which then included South Dakota) received no criminal code from Congress upon creation. However, also like most territories, Dakota adopted one early on in its home-rule period. The wording, also typical, was the common-law definition, and the maximum penalty was life imprisonment, also common.

The Victorian Morality Period, 1873-1948

This law was amended in a new code adopted in 1877 ⁴ that eliminated the minimum penalty and reduced the maximum penalty to ten years. ⁵

In 1889, the Dakota Territory was split into two states that were admitted into the Union. The 1877 law remained in effect. The two Dakotas took different paths when it came to sodomy laws. South Dakota, unlike its twin to the north, made no effort to revise its law.

In a new code of laws adopted in 1903, ⁶ South Dakota abrogated common-law crimes. ⁷

There is only one reported sodomy case in the state, State v. Whitmarsh, ⁸ decided in 1910. By a 4-1 vote, the South Dakota Supreme Court ruled that fellatio constituted the "crime against nature." In a decision that was highly moralistic, the Court regretted that it had to

soil the pages of our reports with a discussion of a subject so loathsome and disgusting as the one confronting us. ⁹

Then, discussing the unusualness of the act of fellatio, the Court added that "this unusual act is many times more ‘detestable and abominable’ than that made criminal at common law." ¹⁰ After reviewing ancient writers and other court decisions on the issue, ¹¹ the Court concluded that "the clause ‘crime against nature’ as used in our statute was so used intending to include therein every unnatural carnal copulation." ¹² The Court went on to say that it would have no hesitation legislating in place of the state legislature.

Even if our Legislature had in such statute used the term ‘sodomy,’ we would feel bound to give such word the broad meaning given it by lexicographers. ¹³

Justice Dighton Corson dissented without opinion. ¹⁴

Period Summary: Early in this era, the Dakota Territory reduced the maximum sodomy penalty from life to 10 years, an action that was unusual. In 1889, the territory was divided and admitted to the Union as two states. South Dakota left its sodomy law worded as the "crime against nature," but the state’s Supreme Court interpreted that wording to include an act of fellatio.

The Kinsey Period, 1948-1986

In 1950, South Dakota enacted a psychopathic offender law. ¹⁵ The law was limited to sexual acts with minors and created a broad crime of "indecent molestation of children." ¹⁶ This makes it unclear if the legislators thought that there was "decent" molestation of children. The definition of this crime was

any lewd or lascivious act or acts, deed or deeds, sign or signs, performance or performances, or conduct upon, or in the immediate vicinity of the person of a minor child under the age of fifteen years. ¹⁷

The breadth of this law made it possible to be convicted of molesting a child for posting a "lewd or lascivious" sign somewhere and having a child see it unintentionally.

The law was toned down in 1955 ¹⁸ to require willful commission of a sexual act on the body of the minor. ¹⁹ The psychopathic offender provision remained limited to such acts with minors. ²⁰

No other action was taken either in the courts or the legislature on the sodomy law until a comprehensive criminal code revision of 1976 ²¹ retained the abrogation of common-law crimes, ²² repealed the consensual sodomy law, ²³ and established an age of consent of 13 years. ²⁴

This age of consent apparently was a source of controversy because, in 1978, a new law ²⁵ raised it to 15. ²⁶

Period Summary: South Dakota adopted a very broad psychopathic offender law during the McCarthy era, which it later toned down. There were no other reported sodomy cases in the state and no changes to the sodomy law during that time. In 1976, a new criminal code was adopted that repealed the sodomy law and set the age of consent at 13, the lowest in the nation. Two years later, the age was raised to 15, still among the lowest.

The Post-Hardwick Period, 1986-Present

Period Summary: There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution.

Footnotes

¹ 12 Stat. 209, enacted Mar. 2, 1861.

² Laws of Dakota 1862, page 165, ch. IX, §47, enacted Apr. 28, 1862.

³ Id.

⁴ Territorial Revised Codes of Dakota 1877, page 777, ch. XXXI, §346, enacted Feb. 7, 1877.

⁵ Id.

⁶ G.C. Moody, Bartlett Tripp, and James M. Brown, compilers, The Revised Codes 1903 State of South Dakota, (Pierre:State Publishing Company, 1903), enacted Jan. 21, 1903.

⁷ Id. Penal Code, Ch. I, page 1098, §2.

⁸ 128 N.W. 580, decided Nov. 18, 1910.

⁹ Id. at 581.

¹⁰ Id. at 582.

¹¹ Id. at 582-583.

¹² Id. at 583.

¹³ Id.

¹⁴ Id.

¹⁵ Laws of South Dakota 1950 Special Session, page 5, ch. 2, enacted Feb. 15, 1950.

¹⁶ Id. §1.

¹⁷ Id.

¹⁸ Laws of South Dakota 1955, page 48, ch. 27, enacted Mar. 1, 1955.

¹⁹ Id. §1.

²⁰ Id.

²¹ Laws of South Dakota 1976, page 227, ch. 158, enacted Feb. 27, 1976, effective Apr. 1, 1977.

²² Id. at 232, §1-2.

²³ Id. at 262, §22-8. The sodomy law had been codified previously as §22-22-21.

²⁴ Id. at 261, §22-3.

²⁵ Laws of South Dakota 1978, page 221, ch. 158, enacted Mar. 8, 1978.

²⁶ Id. at 223, §10.

South Dakota

• Statute: Repealed 1977

History

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