The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Colorado
"[The act] is so loathsome, so revolting, that
courts have seized upon various statutory expressions to bring the act
within the prohibition of the law."
The Post-Revolution Period, 1776-1873
The Colorado Territory originally was known as the Jefferson Territory and,
in 1860, enacted a criminal code.1
The Jefferson Territory did not include a law against sodomy, but did
recognize English common-law crimes.2
This made the penalty for sodomy death, since it still was so under English
law.
In 1861, Congress established the Colorado Territory3
and made no reference to sodomy, common-law crimes, or retention of laws
enacted under the Jefferson Territory. Therefore, sodomy became legal.
Colorado reinstated common-law crimes in a statute passed later in 1861.4
Since this law passed two months after England eliminated the death penalty
for sodomy, the penalty matched that of the new English law, 10 years-life.
The first session of the Colorado territorial legislature passed a new code
in 1861 that included a law against sodomy.5
The law was written with the common-law definition and provided for a penalty
of one year-to-life.6
The crime was complete upon penetration.7
Period Summary: In the years 1860 and 1861, what is now Colorado
experienced a tumultuous period regarding sodomy. In four criminal codes
within two years, it changed from a common-law reception with a death
sentence, to having sodomy legal, returning to common-law reception with a
life imprisonment sentence, and then a statutory ban on sodomy with a 1
year-life sentence.
The Victorian Morality Period, 1873-1948
In 1885, Colorado enacted an obscenity law8
that included a ban on instruments "for self-pollution,"9
which would ban sex toys. The penalty was set at a fine of $20 to $2,000 and
one month-to-one year in the penitentiary at hard labor.
The earliest reported case under the sodomy statute was Wilkins v.
People,10 from
1922. In one of the sloppiest reported sodomy cases ever, the Colorado Supreme
Court upheld Wilkins’s conviction, saying that his partner’s testimony was
corroborated, as it promised to detail later in the opinion.11
Nevertheless, nothing in the short opinion gives a clue as to the
corroboration used in the trial. On petition for rehearing, the Court
acknowledged that it "overlooked" one of Wilkins’s assignments of
error, the reputation of his partner as to previous sexual relations, which
had been barred by the trial judge. In a single sentence, the court held that
the trial judge had discretion as to admit the testimony.12
Koontz v. People,13
decided in 1927, concerned the applicability of the sodomy law to fellatio.
The unanimous decision was that the term "crime against nature" did
not prohibit an act of fellatio. The Court believed, however, that the act
is so loathsome, so revolting, that courts have seized upon various
statutory expressions to bring the act within the prohibition of the law.
We have no such statutory expressions in this state to justify or excuse
us in so holding. We cannot, because of our belief that the act charged
against the defendant is even more vile and filthy than sodomy, stretch
the sodomy section of the statute to include it.14
The Court felt that it could not "permit our detestation of the act to
mislead us into assuming and exercising a purely legislative function by
creating a new felony[.]"15
In 1937, the sex toys law was amended16
to raise the minimum fine to $100 and to require the defendant to pay court
costs. A proviso was that the law did not cover teaching in medical schools or
the publication of medical texts.17
Despite the Court’s hint in Koontz that the Colorado legislature
should act, the change in the law didn’t occur for more than a decade. In
1939, a new sodomy law was enacted18
that specifically added language prohibiting either attempted or completed
"unnatural carnal copulation per anus or per os" to the sodomy law
and reduced the maximum penalty from life to 14 years.19
At the same time, the statute had a solicitation provision added that
subjected an offender to a jail term ranging from 30 days to two years for the
"solicitation of any unnatural carnal copulation[.]"20
Curiously, the statute also contained a clause stating that "an
emergency exists"21
so that the statute would take effect immediately. No explanation tells why a
period of more than 11 years passed after the Koontz decision that oral
sex was legal and the "emergency" requiring criminal penalties for
it.
What was conceded to be error was allowed to stand in the 1943 case of Happer
v. People.22
Happer had been convicted on two counts, one of sodomy and one of an attempt
to commit the act. He was sentenced to concurrent 7-10-year sentences for
them. The court said that even if
the verdict of guilty on the fourth count charging the attempt is, as
defendant contends, supported by no evidence...defendant is not prejudiced
by the verdict of guilty on the charge of attempt.23
This was because the sentence he received for it was running concurrently
with the sodomy sentence, and he’d have to remain in prison for the same
length of time anyway. The Court did not consider the fact that he’d have
two criminal convictions on his record instead of one.
The Colorado Supreme Court labeled a defendant as "queer" in the
1945 case of Martin v. People.24
Wendell Martin had picked up two sailors in Wyoming and brought them to his
home in Colorado, where they agreed to stay overnight. A conversation
occurring there was
to the effect that there are people who are prone to conduct themselves
within contemplation of the inhibitions of the statute here, and that to
the "initiated" such persons are known as "queers," or
one such individual as a "queer." The charge is that defendant
carried on with one of the sailors in such manner that in testifying the
sailors referred to defendant as a queer.25
After accepting Martin’s sexual service, the sailors robbed him of his
money, watch, and car. The sailors were charged with robbery, but acquitted.
In his sodomy trial, Martin was called a "queer" by the prosecutor.26
The Colorado Supreme Court unanimously overturned Martin’s conviction
because the prosecutor injected character evidence against him in violation of
the long-standing rule that character evidence can not be introduced by the
prosecutor unless the defendant first introduced favorable character evidence.27
In 1947, in Shier v. People,28
the Colorado Supreme Court upheld a sodomy conviction that was based on
testimony of a housekeeper that she knew of a relationship between the
defendant and a third party, but was unaware of one between the defendant and
the party in question. The trial court refused to grant a mistrial, and the
high court believed that it was not prejudicial to the defendant.29
In another 1947 case, Dustin v. People,30
the Colorado Supreme Court unanimously sustained a sodomy and solicitation
conviction of a man for fellatio with a consenting teenage male. A
relationship existed between the two and letters written from the man to the
teenager were admitted into evidence as corroboration of the sexual activity.31
Period Summary: Colorado became one of only four states, and the
only one in the West, to outlaw the use of sex toys. There were no
published sodomy cases in the state for nearly a half-century. Once those
cases began appearing in the courts, there was a nearly uniform success
rate for the state’s prosecutions. The Colorado Supreme Court did rule
against a prosecution of fellatio under the "crime against
nature" law, but the legislature overturned that decision with a new
law.
The Kinsey Period, 1948-1986
Colorado enacted a psychopathic offender law in 195332
that provided for indefinite commitment of those convicted of a number of sex
crimes, including "unnatural carnal copulation" and an attempt to
commit it, if the offender were considered either a habitual offender or
dangerous to the community.33
In 1955, in Hawkins v. People,34
the Colorado Supreme Court unanimously upheld a sodomy conviction and rejected
Hawkins’s contention that the psychopathic offender law required him to be
evaluated by a psychiatrist. The Court found that the trial judge had
discretion in the matter and stated that the law applied only to those who
were "dangerous."35
Despite saying that Hawkins was not dangerous, it found nothing wrong with his
sentence of 2-6 years in prison.
In 1957, Colorado revised its psychopathic offender law36
and accidentally omitted sodomy from the list of triggering offenses, although
an assault to commit the same remained.37
A poignant letter written by a Gay teenager to his parents in 1958
discussed his arrest in Denver on a consensual sex charge. Written on the eve
of his sentencing, he was unaware of whether he would receive probation or a
felony sentence.38
In 1960, the Colorado Supreme Court used euphemisms to decide Tague v.
People.39 The
case obviously was one of consensual, adult sodomy, but the Court couldn’t
bring itself to use that term either in the syllabus or body of the opinion.
It said only that, according to the indictment, Tague and his companion
"did unlawfully and feloniously commit a statutory offense in and upon
each other[.]"40
However, it found the evidence insufficient, and overturned the conviction.41
Another letter was to the editor of the Mattachine Review in 1961.
"Mr. A.M." had been arrested for consensual sex with another adult
and was fired from his job with the federal government as a result. He was
looking forward to probation, but was uncertain that he would get it.42
The sex toys law was amended again in 196143
to insert the word "knowingly" in front of the prohibition, to
follow the U.S. Supreme Court decision requiring scienter in order to
be prosecuted for obscenity. This law also repealed the state ban on nude
photos.44 The law
remained until the 1971 criminal code revision.
The constitutionality of the psychopathic offender law was upheld in 1961
by the Colorado Supreme Court in Truesdale v. Tinsley,45
and in 1963 by a federal court, in the same case.46
In 1963, the legislature amended the state’s psychopathic offender law47
to correct the error of six years before and reinstated "unnatural carnal
copulation" as one of the triggering crimes.48
In a 1964 case, Swanson et al. v. People,49
two men who had been convicted of sodomy and imprisoned for three years sought
a motion to vacate their sentence on the ground that the testimony of an
accomplice had not been corroborated.50
The Colorado Supreme Court unanimously rejected the motion, both for
procedural reasons, and on the substantive ground that Colorado case law
permitted conviction of a defendant on the uncorroborated testimony of an
accomplice.51
Two men were arrested at a Gay bar in late 1964 for kissing each other.52
The head of the Denver vice squad allowed his belief that "homosexual
practices are morally wrong" to influence his law enforcement and argued
that legalizing sodomy would "hasten our downfall."53
An early 1965 report revealed that the state’s sodomy law led to fewer than
1% of all "vice" arrests in Denver the preceding year. Supposedly,
prison sentences for sodomy were a rarity. Most arrestees were sentenced to
psychiatric treatment.54
Despite earlier court decisions to the contrary, including a refusal by the
U.S. Supreme Court to hear a similar case, the psychopathic offender law came
to grief in the United States Supreme Court in the case of Specht v.
Patterson,55
in 1967. The Court unanimously found the law unconstitutional because the
defendants were not afforded basic due process of law in the proceedings.56
In 1970, the Colorado Supreme Court was faced with the case of Gilmore
v. People57
that questioned the applicability of the sodomy law to an act of cunnilingus
and the alleged vagueness of the statute. The Court, sitting In Department,
ruled unanimously that the law included merely placing the mouth or tongue on
a vagina58 and
that the statute was "most definite in nature."59
In 1971, Colorado adopted a comprehensive revision of the state’s
criminal code.60
The new statute abrogated common-law crimes61
and repealed the sodomy statute, with an age of consent set at 16.62
However, the new code created the crimes of public indecency63
and of loitering "for the purpose of engaging or soliciting another
person to engage in prostitution or deviate sexual intercourse"64
with a penalty of up to six months in jail and/or a fine of $500.65
The public indecency law included any "lewd fondling or caress of the
body of another person"66
that conceivably could cover kissing.
Exactly that act got two Denver Gay men in trouble in 1974. Undercover
police arrested them for "lewd fondling in public" for kissing. A
jury returned a "not guilty" verdict after only ten minutes of
deliberation. One juror felt constrained to speak to the press and called the
arrest "harassment."67
The loitering law was not looked upon favorably by a majority of the
Colorado Supreme Court when it was challenged. In the 1974 case of People
v. Gibson,68
the Court split 4-3 to strike the law down on the ground that it punished a
status and did not require any overt act to accompany the loitering.69
In 1975, the legislature passed a new sex offenses law70
that lowered the age of consent from 16 to 15.71
Period Summary: Despite its history of conservatism on the
sodomy issue, Colorado became only the third state, and the first in the
West, to decriminalize sodomy with its 1971 criminal code. During this
time the courts retained their strong support for sodomy prosecutions. The
growing Gay rights movement has been effective in the state, for the
legislature lowered the age of consent in 1975 and the Colorado Supreme
Court struck down the law outlawing "loitering" for purposes
including solicitation for "deviate sexual intercourse."
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 Provisional
Laws and Joint Resolutions Passed at the First and Called Sessions of the
General Assembly of Jefferson Territory, (Omaha:Robertson & Clark,
1860), enacted Jan. 25, 1860.
2 Id. at 27, §151.
3 12 Stat. 172, enacted Feb. 28,
1861.
4 The Revised Statutes of Colorado,
(Central City CO:David C. Collier, 1868), page 105, ch. XVI, enacted
Oct. 11, 1861.
5 Laws of Colorado 1861-62, page
297, §46, enacted Nov. 5, 1861.
6 Id.
7 Id. §45.
8 Colorado Laws 1885, page 172,
enacted Apr. 9, 1885.
9 Id. §1.
10 72 Colo. 157, decided Sep. 11, 1922.
Rehearing denied Nov. 6, 1922.
11 Id. at 158.
12 Id. at 159. The Biennial
Report of the Attorney General of the State of Colorado 1921-1922,
page 16, curiously lists the crime for which Wilkins was charged as
"immoral practices," which could show that any number of erotic
activities could have been prosecuted as "crime against nature."
13 263 P. 19, decided Dec. 5, 1927.
14 Id. at 21-22.
15 Id. at 22.
16 Colorado Laws 1937, page 504,
ch. 133, enacted June 7, 1937.
17 Id. at 505, §2.
18 Colorado Laws 1939, page 318,
ch. 97, enacted Apr. 3, 1939.
19 Id.
20 Id.
21 Id.
22 141 P.2d 1016, decided Sep. 27, 1943.
23 Id. at 158-159.
24 162 P.2d 597, decided Oct. 1, 1945.
25 Id.
26 Id. at 597-598 and 599.
27 Id. at 600-601.
28 181 P.2d 366, decided May 5, 1947.
29 Id. at 367.
30 181 P.2d 457, decided May 19, 1947.
31 Id. at 458.
32 Colorado Laws 1953, page 249,
ch. 89, enacted Apr. 1, 1953.
33 Id. §1.
34 281 P.2d 156, decided Mar. 14, 1955.
Rehearing denied Apr. 4, 1955.
35 Id. at 158.
36 Colorado Laws 1957, page 329,
ch. 122, enacted Apr. 23, 1957.
37 Id. §39-19-1.
38 Reprinted in Mattachine Review,
June 1960, pages 20-23.
39 352 P.2d 673, decided May 31,
1960.
40 Id. at 674.
41 Id. The fact that the
"statutory offense" was sodomy is known only from the Biennial
Report of the Attorney General of the State of Colorado 1959-1960,
page 97.
42 Mattachine Review, January
1961, page 24.
43 Colorado Laws 1961, page 327,
ch. 107, enacted Apr. 11, 1961.
44 Id. at 327-328, §2.
45 366 P.2d 655, decided Dec. 4, 1961.
Rehearing denied Dec. 26, 1961. Cert. denied, 370 U.S. 929, decided
June 18, 1962.
46 316 F.2d 783, decided Mar. 28, 1963.
47 Colorado Laws 1963, page 282,
ch. 96, enacted Feb. 11, 1963.
48 Id.
49 390 P.2d 470, decided Mar. 23, 1964.
50 Id.
51 Id. at 471.
52 Denver Post, Feb. 16, 1965,
15:4.
53 Denver Post, Feb. 18, 1965,
12:1.
54 Denver Post, Feb. 18, 1965,
page 12.
55 386 U.S. 605, decided Apr. 11, 1967.
56 Id. at 610.
57 467 P.2d 828, decided Apr. 6, 1970.
58 Id. at 829.
59 Id.
60 Colorado Laws 1971, page 388,
ch. 121, enacted June 2, 1971, effective July 1, 1972.
61 Id. at 389, §40-1-104 (3).
62 Id. at 425, §40-3-411.
63 Id. at 453.
64 Id. at 470, §40-9-113 (2) (c).
65 Id. at 390, §40-1-107.
66 Id. (d).
67 Leigh W. Rutledge, The Gay Decades,
(New York:Plume, 1992), pages 63-64.
68 521 P.2d 774, decided Apr. 15, 1974.
69 Id. at 775.
70 Colorado Laws 1975, page 627,
ch. 171, enacted July 1, 1975.
71 Id. at 629, §18-3-403 (e).
[Home] [Colorado]
[History] [Sensibility of Our Forefathers]
