The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Alabama
"We cannot think upon the sordid facts contained in
this record without being reminded of the savage horror practiced by the
dwellers of ancient Sodom from which this crime was nominally
derived."
The Post-Revolution Period, 1776-1873
Alabama originally was part of the Mississippi Territory. The Organic Act
of 17981 made no reference either to sodomy or
common-law crimes.
The first code of laws for the Territory, known as Sargent’s Code, was
adopted in 1799. It included a criminal code that was silent both as to sodomy
and common-law crimes.2
In 1802, the Mississippi Territory enacted a new code3
that recognized common-law crimes, thus making sodomy a capital offense.
The Mississippi Territory was divided in 1807 and, in that year, the new
Alabama Territory enacted its own code.4 This
Code continued to recognize common-law crimes,5
but contained another provision stating that "all statutes of England and
Great Britain" not contained in the original Mississippi Territory code
were repealed.6 It is a mystery as to how laws
that never were adopted could be repealed.
The Alabama Supreme Court decided a slander case from 1822, Coburn v.
Harwood.7 In strangely convoluted reasoning,
the Court concluded that sodomy was not indictable in Alabama under the common
law.8
However, the same court ruled in a case from 1830, State v. Cawood,9
that it was "obvious" that Congress intended to make the common law,
both its civil and criminal branches, applicable to Alabama and Mississippi
when the Mississippi Territory was created in 1798.10
Ignoring or unaware of Coburn, Justice Henry Collier quoted from the
1802 code that "every other felony, misdemeanor or offence whatsoever,
not provided for" by the code were to be punished under the common law.11
A new code of 183312 specifically adopted
common-law crimes13 without any reference to
English statutes, as existed in previous codes.
A new code adopted in 184114 created the
first sodomy law in Alabama. Using the common-law definition, the penalty was
set at 2-10 years in the penitentiary.15
Period Summary: The early codes of Alabama were confusing as to
the status of sodomy. It was not until more than four decades after its
founding that a statute outlawing sodomy was enacted. Prior to that,
common-law crimes were recognized for a period of time and not recognized
for another. The Alabama Supreme Court decided without analysis that, even
with the adoption of common-law crimes by the state, that sodomy was not
indictable under it.
The Victorian Morality Period, 1873-1948
I. Sodomy
Although there are apparently no reported sodomy cases (with a human)
between 1883 and 1910, during these years there were 142 prosecutions in the
state for "sodomy" or "crime against nature," leading to
82 convictions (42% acquittal/nollie rate).16
The first reported sodomy case (with a human) was Woods v. State,17
in 1914. This case had to decide if fellatio constituted a violation of the
law. The Alabama Court of Appeals decided unanimously that it was. Lifting
verbatim from the Illinois Honselman decision (q.v.), the Court
decided that fellatio was a crime against nature, without giving any analysis
for its conclusion.18
An example of the moralizing attitude toward sodomy was a 1914 speech in
Congress by Representative Richmond Hobson (D-AL) during a debate on a liquor
prohibition amendment. Hobson, who had been defeated for renomination earlier
in the year after opposition from liquor interests, said that liquor
will actually make a brute out of a negro, causing him to commit
unnatural crimes.
The effect of liquor was "the same on the white man[.]"19
In 1933, Alabama supplemented the sodomy law with a unique statute20
creating the crime of "conspiracy to commit [a] felony." Any two or
more persons "conspiring together" for any one of seven specified
crimes, including the "crime against nature," was guilty of a
felony, and could receive a penalty of 1-10 years.21
In the next reported sodomy case, Brown v. State,22
from 1945, the Alabama Supreme Court dealt with the issue of cunnilingus and
the crime against nature statute. In an opinion notable for its lack of
analysis, the Court decided that cunnilingus was just as much a crime against
nature as fellatio.23
II. Sterilization
The Alabama legislature passed an astonishing bill in 1935. Trying to
expand the existing therapeutic sterilization law, Alabama attempted to go the
rest of the country one better with a bill24 to
include
those suffering from perversions, constitutional psychopathic
personalities or marked departures from normal mentality[.]25
This group included any inmate of a penal institution or insane asylum
whose "physical, mental or moral condition" would be improved and
who was a
sexual pervert, Sadist, homosexualist, Masochist, Sodomist, or any
other grave form of sexual perversion [sic].26
The bill stated that either vasectomy or salpingectomy or "any other
sterilization procedure accepted as invariably and universally effective by
the medical profession" was to be performed on those to be sterilized.27
This bill would allow castration and ovariotomy, and made no requirement that
the "other sterilization procedure" be safe, only that it be
"effective." Physicians performing the surgery were immune from
criminal and civil liability.28 Because of the
broad discretion as to which type of surgery could be performed, it is
probable that Gay men and Lesbians would be subjected to the more radical
castration/ovariotomy surgery, since vasectomy/salpingectomy would eliminate
only the power to reproduce, something clearly at odds with the apparent
intent of the bill.
The bill was influenced by the recently enacted sterilization law of Nazi
Germany. J.N. Baker, the state’s health officer, testified to the state
legislature regarding the bill.
With bated breath, the entire civilized world is watching the bold
experiment in mass sterilization recently launched in Germany. It is
estimated that some 400,000 of the population will come within the scope
of this law, the larger portion of whom fall into that group classed as
inborn feeblemindedness [sic]...29
Governor Bibb Graves asked the Alabama Supreme Court to exercise its power
to render an opinion as to the constitutionality of this bill.30
In In Re Opinion of the Justices,31 the
Alabama Supreme Court unanimously decided that the proposed law would be
unconstitutional. The per curiam opinion believed that sterilization
was a major procedure and so could be carried out constitutionally only with
due process guarantees of notice and hearing, something that the bill did not
authorize.32 However, the Court did not
doubt the police power of the state to provide for the sterilization of
the subjects enumerated in the bill when the proper method is prescribed
for the ascertainment or adjudication of their status, or that, when such
status is legally ascertained, sterilization will not amount to such cruel
and unjust punishment as is prohibited by the Constitution.33
The legislature reenacted a nearly identical bill, except that the
procedural safeguards demanded by the Alabama Supreme Court were included.
Graves vetoed that bill as well34 and the bill
was tabled by the House without an override vote being taken.35
Later attempts to pass similar bills in 1939 and 1943 were not considered
seriously by the legislature. An attempt in 1945, after much scientific
evidence appeared in opposition to sterilization and after the Nazi schemes
had been uncovered, failed.36
Period Summary: Alabama reported no sodomy cases (with a human)
for more than forty years into this period. However, reports from the
Attorney General’s office demonstrate that the law was prosecuted
actively, with 142 cases noted in a 28-year period. Among them were 82
convictions, none of them being published cases. It must be assumed either
that those convicted did not appeal, or the cases reaching the appellate
court were left unpublished. Although the common-law term "crime
against nature" was used by the state, both fellatio and cunnilingus
were determined by courts to be included within that definition. A 1933
supplemental law, unique in the United States, outlawed a
"conspiracy" to commit the crime. It is possible that this law
was aimed at groups of Gay men or Lesbians, although there is no case law
under it to document how it was used. In 1935, the legislature passed the
most anti-Gay sterilization law in the nation, one that didn’t become
law only because of the constitutional questions the Governor receiving it
asked the Alabama Supreme Court to decide. This proposal reflected the
prevailing sentiment that homosexual persons were "sick" and
needed some kind of medical treatment, in this case, sterilization.
The Kinsey Period, 1948-1986
In 1951, Alabama joined the chorus of states singing the praises of
psychopathic offender laws by enacting its own statute37
which labeled as a "criminal sexual psychopathic person" those
"suffering from a mental disorder" coupled with "criminal
propensities to the commission of sex offenses[.]"38
Anyone convicted of a sex offense could be referred for a psychiatric
examination if believed to be a criminal sexual psychopathic person.39
If so found, the individual could be committed to an institution until
"fully and permanently" recovered from the psychopathy.40
If recovered and discharged, the prisoner was to be placed on probation
"for such reasonable time as the circumstances may justify."41
In the 1957 case of Fuller v. State,42
the Court of Appeals unanimously ruled that the testimony of an accomplice in
a sodomy case had to be corroborated.43
In 1961, Alabama revised its psychopathic offender law44
to eliminate the need for a criminal conviction to trigger the operation of
the law. One merely had to be "charged with" a sexual offense in
order to have proceedings instituted.
The 1966 case of Parris v. State45
was moralizing, even though it was brief and led to victory on the part of the
appellant. The Court of Appeals unanimously barred the admission of evidence
of similar offenses committed with third persons when they were only to show
the
disposition, inclination, propensity, or depravity, and does not serve
to single out the appellant.46
This testimony could have no value
except to show his sex depravity and his disposition, inclination, or
propensity to commit such sex act.47
The Court, in reversing the conviction, had
no pride in our opinion in this case. We cannot think upon the sordid
facts contained in this record without being reminded of the savage horror
practiced by the dwellers of ancient Sodom from which this crime was
nominally derived.48
The Alabama Supreme Court upheld the constitutionality of the psychopathic
offender law in the 1967 case of Hamrick v. State.49
In 1967, Alabama enacted a sex offender registration law50
that required anyone convicted of several crimes, including the crime against
nature,51 as well as any similar municipal
ordinance,52 to be registered with the Alabama
Department of Public Safety.53 The arresting
officer was responsible for the registration, and any failure to make such a
registration was an unspecified misdemeanor.54
Another law passed the same day55 required
the convicted sex offenders to register, thus duplicating efforts. Failure to
register could get the offender up to 5 years in prison and/or a $1,000 fine.56
In the 1969 case of LaBryer v. State,57
the Alabama Court of Appeals ruled that a 19-year-old sexual partner was an
accomplice whose testimony needed corroboration, despite his being threatened
by the other partner if he went to the police.58
In Boyington v. State,59 also from
1969, the Alabama Court of Criminal Appeals unanimously upheld the right of
the state to prosecute under an indictment or an information by using a form
other than the language of the crime against nature statute.60
The Alabama Supreme Court decided in 1973, in Horn v. State,61
that the sodomy law was constitutional. The Court merely said that the law was
"not inconsistent with our constitution, Article I, §6, or the XIV
Amendment of the United States Constitution."62
No analysis was given. The Court also decided that proof of penetration could
be by circumstantial evidence only.63
Despite the action of the Alabama Supreme Court six years earlier upholding
the psychopathic offender law, in 1973, a federal court found it
constitutionally lacking in Davy v. Sullivan.64
The reason for the law falling was that it, in effect, imposed two separate
sentences for a single criminal act.65
In Smith v. State,66 from 1975, the
Alabama Court of Criminal Appeals unanimously upheld the right of the state to
prosecute a 16-year-old sodomy defendant as an adult and to give him a
sentence of ten years in prison.67
Alabama passed a comprehensive criminal code revision in 1977.68
Common-law crimes were abrogated,69 local
governments were forbidden to enact criminal laws similar to state laws,70
and entrapment was declared an absolute defense to criminal prosecution.71
The sodomy law was changed to "sexual misconduct," which outlawed
"deviate sexual conduct."72 The
definition of "deviate sexual conduct" was
any act of sexual gratification between persons not married to each
other, involving the sex organs of one person and the mouth or anus of
another.73
Consent was no defense,74 and the penalty
was set at up to one year in jail.75 In
addition, a "public lewdness" provision was enacted to prohibit
"any lewd act in a public place" which the offender "knows is
likely to be observed by others who would be affronted or alarmed."76
Thus, simple acts like kissing or hand holding could get a Gay man or Lesbian
into trouble.
In 1977, in the case of Williams v. State,77
the Alabama Court of Criminal Appeals affirmed the sodomy conviction of
several prisoners. Williams and three others had forced a Gay inmate to
perform fellatio on them and then made the novel claim that the victim inmate’s
Gayness was a defense for them. The Court unanimously rejected the argument,
noting that one’s sexual orientation and consent both were immaterial to
prosecution under the law.78
Curiously, despite the reach of Alabama’s sodomy law to private, adult,
consensual activity, in a late 1978 police raid on a shopping mall restroom
that led to the arrest of 41 men, the head of the Birmingham vice squad said
that the police "don’t care what is being done between two men in the
privacy of their home or a [G]ay bar where they aren’t bothering
anyone[.]" [Emphasis added].79
In Ellwest Stereo Theatres, Inc. v. State ex rel. Parsons et al.,80
from 1979, the Alabama Supreme Court dealt with the issue of sexual activity
on the premises of an arcade being coverable by the Red Light Abatement Act.
By a vote of 5-4, the Court decided that it was. The evidence presented
included the fact that the arcade
has a reputation as a place where homosexuals congregate and engage in
lewd conduct...[one incident] involved two male customers who were
observed in the act of fellatio within one of the booths in the premises.
The door to the booth was opened to public view at the time. In another
incident, an undercover vice officer was solicited by a male customer to
perform an unnatural sex act. This customer had entered the officer’s
booth uninvited and exposed his private parts and began masturbating.81
In dissent, Justice James Faulkner believed that use of the Red Light
Abatement Law to shut down theatres was a First Amendment violation82
and, in any event, the arcade in question was small fry for the police to
stalk. He noted that the place had unposted rules that prohibited two males
from entering booths at the same time (but apparently not two females or a
male and a female) and if two males were so discovered, they were asked to
leave.83 He noted other places in the city of
Birmingham where far more arrests for such activity occurred, and that they
had not been shut down.84
In the strange case of Bryan v. State,85
from 1984, the Alabama Court of Criminal Appeals sustained the right of the
prosecution to ask voyeuristic questions in a trial. The 17-year-old victim’s
mother had, for unclear reasons, informed him that he was to spend the night
with Bryan, who then committed anal sodomy on him.86
The mother asked another man "what men can do with other men"87
and this line of questioning was permitted in Bryan’s trial. The Court of
Appeals concluded that this was relevant and non-prejudicial.88
Period Summary: Alabama showed no progressivism toward sodomy in
the years just after the Kinsey studies and the American Law Institute
recommendation. The sodomy law remained unchanged and courts remained
restrictive of sexual freedom. It was not until 1977 that the Alabama
legislature made a change to the law, reducing its status from a felony to
a misdemeanor and exempting married couples from its reach.
The Post-Hardwick Period, 1986-Present
In 1998, Alabama enacted a statute89 that
forbade the distribution, possession for distribution, or offer to distribute
devices "designed or marketed as useful primarily for the stimulation of
the human genital organs[.]"90
This law was challenged and, in 1999, a federal judge found it
unconstitutional in Williams et al. v. Pryor.91
Judge C. Lynwood Smith wrote a long opinion that focused on the breadth of the
statute against the legislature’s stated interest in protecting children and
unwilling adults from viewing this material.92 On
appeal,93 a panel of the 11th Circuit reversed,
stating that the law was "rationally related to the state’s legitimate
government interest in public morality." The Court also returned the case
to Smith to consider whether it might violate other constitutional provisions,
including whether it would be permitted to interfere "in the private sexual
activity of married or unmarried heterosexual persons[.]"94
These last words demonstrate how the Supreme Court’s decision in Hardwick
continues to have an impact on courts.
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. However, the Alabama legislature joined with
others in the modern era in outlawing "sex toys." Challenged in
federal rather than state court, the law withstood a challenge from judges
worried about "public morality."
