Last edited: August 10, 2004

The Sensibilities of Our Forefathers

The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2001

Florida

"The creatures who are guilty are entitled to a consideration of their case because they are called human beings and are entitled to the protection of the laws."

 

The Post-Revolution Period, 1776-1873

After purchase by the United States from Spain, the Territory of Florida was created in 1822 and all laws in force in Florida at the time of the organic law were retained.¹

Later that year, Florida enacted a law² that adopted the common and statute laws of England in their entirety as they existed on the date of the Jamestown settlement, an act that made consensual sodomy a capital offense in the state.

In 1823, the law was ameliorated by limiting the penalty for a common-law offense to a year in prison or a fine of $500.³

This law was repealed in 1828,⁴ thus legalizing sodomy in the state.

In 1829, the common-law reception statute was reenacted,⁵ with the same penalty limitations as in the 1823 law. However, research on this issue revealed that the English buggery laws were not received with this statute.⁶

The Territory enacted a criminal code in 1832.⁷ The new code made no mention of sodomy, but continued to recognize common-law crimes.⁸ The penalty for a common-law crime was limited to a maximum of one year in the penitentiary, or a fine of up to $500, but not both, "in the discretion of the jury."⁹ As revealed by a portion of the next statute, the Florida legislature did consider this common-law statute to include sodomy.

In 1842, Florida enacted its first sodomy law¹⁰ and decided to be harsh. The common-law crime section of the 1832 code was repealed "so far as it conflicts with this act."¹¹ The conflict was created because the new sodomy provision read that

any person, who shall commit buggery or sodomy with either human being or beast, shall be adjudged guilty of felony and shall suffer death.¹²

Florida thus became the first jurisdiction in the United States in 123 years to make sodomy a capital offense other than by adoption of the common law.¹³

This death law remained on the books until a comprehensive criminal code revision was enacted in 1868.¹⁴ The new sodomy provision¹⁵ established a maximum penalty of 20 years in prison and renamed the crime "the abominable and detestable crime against nature."¹⁶

Also included in the new code was a vagrancy law that included "lewd, wanton, and lascivious persons in speech or behavior."¹⁷ Anyone found in a public place "committing any of the offenses or disorders" listed in the law could be arrested by anyone, including private citizens, without a warrant and kept in custody up to 24 hours before arraignment, at which point a magistrate would decide whether or not to prosecute.¹⁸

Period Summary: Florida relied heavily on the English common law for its sodomy law. For its first two decades under United States jurisdiction, it had no sodomy law, but recognized common-law crimes. When it enacted its first sodomy law in 1842, Florida specifically amended the last enacted common law reception statute to exclude sodomy from its grasp, showing that sodomy was recognized under it. It was not explained why the law on the subject made sodomy a capital offense, nor is it known if the death penalty ever was enforced for it. The new code of 1868, that replaced the death penalty with a 20-year maximum prison term, continued to use the common-law term "crime against nature" without any definition of the term.

The Victorian Morality Period, 1873-1948

The vagrancy law was amended in 1905.¹⁹ The new arrest procedure was that warrants were recommended, but warrantless arrest was permitted if the alleged vagrant could escape capture without it. This time, a speedy trial was guaranteed and a penalty of up to six months in prison or a fine of up to $250, but not both, was enacted.²⁰

In 1917, Florida enacted a supplemental statute²¹ prohibiting "unnatural and lascivious" acts. The penalty was set at a maximum of six months in prison and/or up to $500 in fines.²² A section of the law stated that it was not to be construed so as to repeal the crime against nature law.²³ Although this new law may have been aimed at fellatio and cunnilingus, the state’s first reported sodomy case made it unnecessary.

That case was Ephraim et al. v. State,²⁴ from 1921. Ephraim had been arrested for apparently consensual fellatio with another male under the "crime against nature" law and challenged the prosecution on the ground that fellatio was not a crime against nature. Deciding otherwise, the Florida Supreme Court, speaking through Justice William Ellis, who obviously was uncomfortable with oral sex, said that a

discussion of the loathsome, revolting crime would be of no edification to the people, nor interest to the members of the bar. The creatures who are guilty are entitled to a consideration of their case because they are called human beings and are entitled to the protection of the laws.²⁵

Ellis then noted that the penalty of death had been prescribed under the common law (he made no reference to Florida’s own 1842 capital sodomy law, apparently unaware of it), but that the penalty in modern times had been modified. The reasoning for this was

not that the crime is less repulsive now, but perhaps out of humane consideration for the creatures whose low moral and intellectual standard entitles them to a kind of pity.²⁶

Ellis then stated flatly that the "unnatural and lascivious act" statute "does not apply to cases like the one under consideration."²⁷ The standard "crime against nature" law would do the job.

The next reported case involved Ephraim’s co-defendant. In 1922, in Jackson v. State,²⁸ the Supreme Court again ruled that fellatio was indictable under the crime against nature statute.²⁹

In 1929, in Drawdy v. State,³⁰ the Florida Supreme Court, sitting In Department, and again speaking through Justice Ellis, decided that "the unmentionable crime"³¹ did not require emission to complete the crime.³²

The first victory in a sodomy case came in 1932 in Blameuser v. State.³³ A Department of the Florida Supreme Court decided unanimously that the defendant could not have been guilty of sodomy because he

was shown to be of high character and good reputation in the community where the putative crime was committed, and barely knew the boy, who did not reveal to any one the facts on which the information was predicated for more than one year after their alleged commission.³⁴

"[N]o reasonable basis" existed for the conviction because

the evidence was indefinite, inconclusive, and unsatisfactory as to every material element of the charge, and the motivating influence which is said to have actuated it was contrary to every normal human impulse.³⁵

In the 1935 case of English v. State,³⁶ the Florida Supreme Court ruled unanimously that an information charging a defendant with committing "the abominable and detestable crime against nature per os" was sufficient.³⁷ The Court optimistically believed that the Latin words

"per os," while not being in the English language, have a generally recognized meaning, just as the words "per centum" have a generally recognized meaning amongst English speaking people[.]³⁸

The case of Lason v. State³⁹ was decided in 1943. A Department of the Florida Supreme Court decided, unanimously, that cunnilingus was a "crime against nature." This case was the second one in the United States in which the common-law term "crime against nature" was held to include cunnilingus. In this case, a man was prosecuted for acts of cunnilingus and fellatio with girls. Lason testified in his trial that he was

seventy-six years of age; that he had not experienced an erection in many years, but that on several occasions he had indulged in venereal affairs with each of the girls named in the information when both girls were present; that in accomplishing these affairs he had licked and extended his tongue into the genital orifice of each of the girls and had allowed and permitted each of the girls to take his sexual organ into her mouth, the result of which he testified was "pleasurable."⁴⁰

Justice Rivers Buford, a former Attorney General of the state, wrote the opinion, using some rather shocking language, reprinted below, grammatical nightmare that it is, without editing. Buford believed that the question was whether the sodomy law included

the action of a 76 year old, aged Indian War Veteran, feeble physically and mentally, in, after having met the two girls of 11 and 13 years of age who solicited him, went to his residence and there they both get on the bed, pull up their dresses and drop down their panties, when he in turn on his back in the same bed allowed them to diddle with his rag-like penis, unerectable, lifeless and useless except to connect the bladder with the outside world for more than six years since the death of his wife, utterly incapable of either penetration or emission, and wad it like a rag into their mouths, and then, in a feeble and aged condition impelled by the irresistible impulse, in turn he would kiss and put his tongue in their little, though potentially influential and powerful vaginas?⁴¹

After this ageist and gratuitously vulgar question, Buford decided that the answer was yes. Referring to the Ephraim and Jackson decisions on fellatio, the Court nevertheless gave no reasoning as to why cunnilingus also was a violation of the law.⁴² The Court rejected Lason’s argument that anal penetration had to be proven. Although Lason did not raise any health-related arguments, the Court answered his point by saying: "It is sufficient to say here, however, that all unnatural forms and methods of coitus have proven themselves detrimental to both health and morals."⁴³

A few months later in 1943, another Department of the Florida Supreme Court decided the case of Fine v. State.⁴⁴ This case was another one involving an older man performing cunnilingus on a girl. The Court conceded that they

have experienced some difficulty in determining precisely what unnatural sexual acts do, and what do not, constitute the crime. This is largely due to the reluctance legal authors have shown to detail the facts they were considering, because they are always so shocking.⁴⁵

The Court, in reviewing Florida case law, determined that the law was interpreted to include "odious sexual relations not originally considered a commission of the crime against nature."⁴⁶ It could not see any difference between fellatio and cunnilingus. Both were "unquestionably"

abominable and detestable; both offend nature’s laws, both, doubtless, spring from a depraved sexual desire. The base immorality displayed in either case justifies any punishment which may be meted out under the law. At one stage in the progress of Anglo-Saxon jurisprudence the penalty was burning or burying alive.⁴⁷

Thus, the Court was saying that, if the death penalty for consensual sodomy were reinstated, it would pass constitutional muster.

Period Summary: Florida broadened its sodomy law coverage with a World War I-era statute outlawing "unnatural and lascivious acts." This law contained no more definition than did Florida’s still-viable "crime against nature" law. The new law set the penalty for the undefined acts as a misdemeanor, whereas the crime against nature law set felony penalties. When the first case dealing with fellatio reached the Florida Supreme Court, the law outlawing "unnatural and lascivious acts" was relegated to insignificance. The Court said that fellatio was a "crime against nature," which could receive a 20-year prison term, something clearly more to the liking of the Court that had referred to the men arrested for fellatio as "creatures." Later, cunnilingus was found to be included in the felony statute and the Florida Supreme Court stated that death would not be too extreme a penalty to pay for sodomy.

The Kinsey Period, 1948-1986

In 1954, the Florida Supreme Court, in the case of McElveen et al. v. State,⁴⁸ divided 5-2 to uphold a sodomy conviction. Justice Elwyn Thomas opened his extremely brief opinion with a paraphrasing of the Wisconsin Supreme Court’s 1905 quote (q.v.). Thomas said that the Court would not

soil the pages of our reports with the details of the sordid crime which these defendants confessed they committed.⁴⁹

The only information that gives a clue as to the facts of the case was that the

position of the men when discovered by the police, the condition of their bodies, the nature of their clothing, and their location in a secluded spot at one or two o’clock in the morning tended to show that the crime charged was committed.⁵⁰

In dissent, Justice E. Harris Drew claimed that "[m]uch more is involved here than the guilt or innocence of two mature men charged with a repulsive crime."⁵¹ Drew believed that the evidence only showed that the appellants may have committed the crime (emphasis is Drew’s).⁵²

Florida enacted a psychopathic offender law in 1955.⁵³ The law permitted the examination of any person convicted of any criminal offense who was a criminal sexual psychopathic person.⁵⁴ If adjudged a psychopath, the person so adjudged was forever immune to criminal prosecution for the crime prosecuted.⁵⁵ This law was axed by a court on the curious grounds that its title and subject matter seemed to be in conflict and the law was therefore "insufficient" to let the legislature and public know exactly what was in it, in violation of the Florida Constitution, (i.e., unconstitutionally vague).⁵⁶

One of the few victories for a defendant in a Florida sodomy case came in 1956 in Floyd v. State.⁵⁷ In this case, in which a jury trial had been waived, the trial court returned a verdict of guilty before the defense even had rested its case. By a vote of 6-1 the Florida Supreme Court found that, as a result, Floyd "did not have a full and complete fair trial, nor did he have due process[.]"⁵⁸

The psychopath law was repealed in 1957⁵⁹ and replaced by a new law⁶⁰ defining a psychopath, including the addition of a requirement that the person be "dangerous to others."⁶¹ Another provision stated that the law was civil in nature, not criminal.⁶²

A law review article published in 1959⁶³ analyzed the Florida sodomy law. The article noted both the law’s vagueness and the tendency of the Florida courts to moralize about the law.⁶⁴ The article endorsed the decriminalization of consensual sodomy between adults, regardless of gender.⁶⁵

One hole in the operation of the sodomy law in Florida was opened by the state’s Attorney General in 1960. An opinion was issued⁶⁶ that effectively blocked the law’s enforcement on the state’s Indian reservations. Interpreting federal law literally, the opinion stated that crimes committed between Indians, or between Indians and non-Indians on reservations were under tribal court jurisdiction, except for 10 crimes specified by federal law as under federal court jurisdiction. Sodomy was not one of the ten, so if the particular Indian tribe had no law against it, sodomy would be legal between Indians or between an Indian and a non-Indian.⁶⁷ An act of sodomy on a reservation between two non-Indians, however, would fall under the jurisdiction of state law.⁶⁸ Indians committing sodomy off the reservation also would be liable to prosecution under state law.⁶⁹

In the 1965 case of Swain v. State,⁷⁰ an appellate court decided that "lewd, lascivious or indecent assault or act upon a child" was a lesser included offense under the crime against nature.⁷¹

Also in 1965, a conviction was overturned in Andrews v. State.⁷² The Court of Appeals found that the trial judge’s refusal to strike testimony that the defendant had been discharged dishonorably from the military for being Gay to have been prejudicial.⁷³

In late 1965, it was discovered that police in Tallahassee had been using "college boys" as "bait to trap homosexuals." The students had been paid $10 each for their part-time work. The dean of students and the Governor of Florida both condemned the policy.⁷⁴

In 1966, in State v. Coyle,⁷⁵ an appellate court upheld the sodomy conviction of a man for consensual sex in a restroom. The court found that it was

a matter of common knowledge that public restrooms, provided as a means of accommodation of the public for purposes intended, are often selected by persons of sick or depraved minds as favorite locales for perpetration of indecent or illegal acts. Without proper police vigilance, perverts and criminals could turn more and more to such facilities, particularly those in populous areas, as retreats or trysting places for commission of crime.⁷⁶

In Delaney v. State,⁷⁷ from 1966, the Florida Supreme Court split 4-2 to uphold an obviously consensual attempted sodomy conviction. Delaney had been sentenced to five years’ probation⁷⁸ but claimed that oral sex did not constitute a violation of the crime against nature law and, even if it did, the language of the statute was unconstitutionally vague.⁷⁹ The Court again cited its string of precedent cases that decided that the law was clear as to the inclusion of oral sex.⁸⁰ The vagueness argument was disposed of with the curious endorsement of the State’s position that

it is easier for the public, or a defendant, to determine the nature of this crime by researching the history of the common law or the case law of this state. Although the opinions of this court are not always the essence of clarity, and never as [sic] lucid as we would have them, in this instance those previously rendered on this subject clearly advise all people that in this state the abominable crime against nature includes copulation either by mouth or by anus. These decisions are certainly more readily available and more easily understood than the common law.⁸¹

Thus, the Court felt that a couple in the throes of passion would postpone sexual relations for a trip to the local law library to see if what they desired contravened state law. The dissenters believed that no jurisdiction existed to hear Delaney’s appeal because no final appealable order was issued in the case.⁸²

The psychopathic offender law was amended in 1967⁸³ to authorize periodic examination of those persons who had been adjudged psychopathic to see if they had "improved to a degree that he will not be a menace to others."⁸⁴ A number of due process guarantees were added in an obvious effort to save the law from a court challenge, since the similar Colorado law had been struck down by the U.S. Supreme Court earlier that year because of its due process flaws.

At a 1969 concert in Miami, Jim Morrison, lead singer of The Doors, was arrested on numerous charges, including simulating fellatio on his guitarist, Robby Krieger.⁸⁵ Morrison was charged under the "lewd and lascivious behavior" statute for this action.⁸⁶ A prospective juror was questioned regarding the juror’s views on male-male fondling and simulated oral copulation, the defense attorney told the jury that taunts of "You’re a fairy" were yelled from the audience at Morrison, a concert photographer denied that he obtained a photo of the alleged act, and the star witness for the prosecution was forced into an embarrassing situation. Bob Jennings, the only attendee of thousands at the concert who signed a complaint against Morrison, corrected the defense attorney that the charge against Morrison was oral copulation, not masturbation. He said that "[t]here’s a difference" between the two acts and the defense attorney asked him if he were "an expert on oral copulation." Morrison was acquitted of the charge.⁸⁷

A revision to the psychopathic offender law in 1970⁸⁸ eliminated a requirement that psychopathy exist for at least four months before a criminal act.⁸⁹

In 1971, Florida adopted a comprehensive law to revise criminal penalties.⁹⁰ The effect of the law was to reduce the maximum penalty for the crime against nature from 20 to 15 years and to establish a fine of up to $10,000,⁹¹ and to reduce the penalty for an unnatural and lascivious act from six months to 60 days and/or $500.⁹²

This new penalty for the crime against nature never took effect. Just 15 days before it was scheduled to become law, the Florida Supreme Court handed down the decision of Franklin v. State,⁹³ showing a dramatic reversal in its interpretation of the law. In a 6-1 per curiam decision, thus hiding the author of the opinion, the Court decided that the term "abominable and detestable crime against nature" was unconstitutionally vague and overbroad. Although acknowledging the long case law history upholding the law, the Court felt that "these holdings and the statute require our reconsideration."⁹⁴ The Court did not want to be thought to "sanction historically forbidden sexual acts, homosexuality or bestiality[,]" but felt that the proscriptive language had to be stated in terms clear enough to understand.⁹⁵ The Court noted that the two men involved were engaged in consensual relations and that if the law was intended to cover consensual activity, then such a provision should "be made clear in such a statute."⁹⁶ The Court stated that "[l]egislative action is long past due in this and related fields of personal relationships" and they encouraged the study of the subject.⁹⁷ Then, overruling a portion of the 1921 Ephraim decision sub silentio, the Court called the attention of prosecutors to the "unnatural and lascivious act" statute that had been ignored for a half century. Under this law "society will continue to be protected from this sort of reprehensible act[.]"⁹⁸ Justice Joseph Boyd, a consistent opponent of Gay rights, dissented without opinion.⁹⁹

The Franklin decision can be classified as judicial legislation, striking down as vague the term "crime against nature," but urging prosecution under the no-less vague term "unnatural and lascivious act." Merriam Webster’s Collegiate Dictionary, Tenth Edition, (1995), page 1294, defines "unnatural" as "not being in accordance with nature." This definition makes "unnatural" and "against nature" synonymous. The Court seemed merely to desire to lower the penalty from a felony to a misdemeanor and did so in this manner.

Franklin also caused a flood of appeals into the Florida courts from people seeking relief who had been convicted under the now-defunct law. No fewer than seven reported cases appeared between 1972 and 1975 seeking release from prison on the Franklin precedent. In three cases,¹⁰⁰ crime against nature convictions were reversed because the defendants, although convicted prior to the Franklin decision, had appeals pending on the date that it came down. The Courts decided that all three were entitled to relief. In another case,¹⁰¹ the appellant was granted relief because he had been sentenced more than two months after the Franklin decision was announced.

Less fortunate were those persons who had been convicted before Franklin and either had not appealed their convictions, or had exhausted their appeals before Franklin was decided. Three cases thus resulted in a denial of post-conviction relief.¹⁰²

Also as a result of the Franklin decision was a determined legislative effort to reinstate sodomy as a crime. In 1972, bills were introduced into each house to reinstate sodomy as a crime only for people not married to each other and to set the penalty as a misdemeanor. The House bill cleared a committee on a 12-3 vote with no witness testimony¹⁰³ but was stalled upon a motion for reconsideration by a legislator who opposed the bill.¹⁰⁴ When the House bill was delayed, the Senate bill moved. After failing to accept amendments to the bill to delete all penalties for consenting adults (24-18) and to make the proposed law applicable only to same-sex activity, the Senate passed the bill 33-5.¹⁰⁵ Because of differences in the bills between the houses, neither became law that session.¹⁰⁶

A statute of 1972¹⁰⁷ eliminated the vagrancy law and replaced it with a prowling law that limited itself to genuinely threatening or potentially threatening behavior.¹⁰⁸

A law review article stated that a bill to repeal consenting adult laws would be considered in the 1973 session of the Florida legislature.¹⁰⁹ No repeal law came out of the legislature that year, but the Florida Supreme Court still was up to its mischief. In the 1973 case of Witherspoon v. State,¹¹⁰ the Court made official what it only had hinted in the 1971 Franklin case. It said that the term "unnatural and lascivious act" was sufficiently clear to be constitutional. Franklin had been by a vote of 6-1 to strike down the law, but Witherspoon was a mirror-image 6-1 vote to uphold the law. The Witherspoon Court believed that "unnatural and lascivious" were

of such a character that an ordinary citizen can easily determine what character of act is intended, and are thus secure from constitutional attack.¹¹¹

Justice Richard Ervin, the only dissenter, did not write an opinion.¹¹²

Several months later a second case, State v. Fasano,¹¹³ raising an identical point was disposed of in the same manner.¹¹⁴ Justice Ervin again dissented without opinion.¹¹⁵

Another attempt at reinstating the sodomy law was made in 1974 but failed of passage.¹¹⁶

What did pass was a comprehensive criminal code revision¹¹⁷ that repealed the now-useless crime against nature law.¹¹⁸ The "unnatural and lascivious act" law was not changed.

Right before enactment of the new code, a new psychopathic offender law was passed.¹¹⁹ It specified that misdemeanors could count against a defendant in order to trigger the psychopathy proceedings.¹²⁰

An appellate court decided in Banks v. State,¹²¹ in 1974, that admission of testimony of sexual acts with other than the prosecuting witness was prejudicial error. In this case, a 14-year-old male had solicited and enticed the adult defendant. The Florida Supreme Court, by a 6-1 vote, refused to review the decision.¹²²

In 1974, a federal court challenge to the constitutionality of the "unnatural and lascivious act" law, Murray v. Florida,¹²³ was unsuccessful. The federal court relied on the interpretation of the Florida Supreme Court in Witherspoon to reject the challenge.¹²⁴

In the 1975 case of State v. Alvarez et al.,¹²⁵ a group of men had been arrested in the Club Miami bathhouse and charged with violating the "unnatural and lascivious acts" law. They banded together to challenge the arrests. After describing the club’s private and non-controversial nature in its neighborhood,¹²⁶ expert testimony that consensual sexual relations between people of the same sex was both healthy and considered normal,¹²⁷ and noting that the prosecuting attorney called no rebuttal witnesses,¹²⁸ Judge Morton Perry discussed case law in the state, specifically the Franklin decision.¹²⁹ He noted that, following the Supreme Court’s invalidation of the "crime against nature" law, the Florida legislature acted merely by repealing that statute and not by replacing it. Perry also questioned how the "unnatural and lascivious acts" law could be, as the Supreme Court said, a lesser included offense under the "crime against nature" law since that law no longer existed.¹³⁰ Perry concluded that the defendants

are entitled to freedom of assembly, privacy and equal protection of the law as guaranteed under the United States and Florida constitutions.¹³¹

He dismissed the charges against the defendants. The state did not appeal this decision, presumably accepting its conclusion.

In 1976, the Florida Supreme Court decided the case of Campbell v. State.¹³² A conviction for "open and gross lewdness" was overturned by the Court in a 5-2 decision. Writing for the Court, Justice Alan Sundberg stated that there had been

a homosexual conclave in Pensacola, Florida. Local police officers were made aware of this event and visited bars and lounges frequented by Pensacola area homosexuals. Among these establishments was Robbie’s YumYum Tree Lounge, where appellant was employed as a waiter.¹³³

Campbell had fondled a customer named Jeffries "in the pubic area for some five seconds with his right hand while holding aloft a tray full of glasses with his left hand." The police arrested both men.¹³⁴ Campbell argued that the law was unconstitutionally vague and was being applied in a discriminatory manner,¹³⁵ but the Court refused to consider either issue. Instead, the Court decided that the fondling did not even constitute an offense under the statute.¹³⁶ Relying on a decades-old case involving heterosexual defendants, the Court noted that conduct, in order to be a crime, had to be extremely indecent and offensive (emphasis is the Court’s).¹³⁷ Sundberg noted the difficulty in defining indecency¹³⁸ and asked

who, in the dark and crowded recesses of the YumYum Tree at 2:00 a.m. on July 6, 1974, was "offended"?¹³⁹

Justice Joseph Boyd wrote for the dissenters. After quoting from a dictionary and mentioning other court opinions to prove that "lewd" and "lascivious" were not vague terms,¹⁴⁰ Boyd said that he was not "unmindful" of Campbell’s argument that

the instant case involved a consensual touching of adults in an establishment catering to homosexuals where no children were present and where no one was offended.¹⁴¹

But, the fact that

it was 2:00 a.m. at Robbie’s YumYum Tree Lounge at a congregation of consenting homosexuals does not give immunity from the criminal statute which prohibits open, lewd, and lascivious conduct.¹⁴²

The Florida Supreme Court grew weary of challenges to their illogic on the dispute between "against nature" being too vague to understand, but "unnatural" being specific enough to understand. Despite the Alvarez decision, in 1976, in State ex rel. McVay v. Sandstrom et al.,¹⁴³ the Court unanimously upheld the unnatural and lascivious act statute’s constitutionality without hearing oral arguments, because it twice before had upheld the law.¹⁴⁴ On rehearing, the vote to uphold the law shrank to 5-2.¹⁴⁵

In another 1976 case, Johnsen et al. v. State,¹⁴⁶ the Florida Supreme Court rejected an argument about allegedly inflammatory remarks made by a prosecutor to the jury. The case involved several men who were tried on charges of "conspiracy" to commit an unnatural and lascivious act. The unspecified remarks were held to be non-prejudicial.¹⁴⁷

A famous person arrested for solicitation for sodomy was G. Harrold Carswell, a former federal judge who had been nominated for the U.S. Supreme Court but rejected by the Senate. He was arrested in 1976 after inviting and taking an undercover police officer to a wooded area and was convicted of battery.¹⁴⁸ As a result of this arrest, police discovered that Carswell had known a Gay teacher murdered just two weeks after Carswell’s nomination to the Supreme Court was made by President Nixon. The teacher, when found dead, was wearing a watch that had belonged to Carswell’s son.¹⁴⁹

In 1976, two Gay men were arrested for kissing at the Fort Lauderdale airport. They were convicted of creating a public nuisance and sentenced to probation.¹⁵⁰

The psychopathic offender law was revised substantially in 1977.¹⁵¹ This law eliminated the possibility of a person being labeled as a psychopath prior to a criminal conviction and required the person to be considered "likely to commit further sex offenses" if allowed to remain at large.¹⁵² Also, psychiatrists no longer were required to make the determination of psychopathy. Instead, only "experts" were so required.¹⁵³ A new section permitted recommencement of criminal proceedings against the psychopath if the person was considered rehabilitated upon release from custody of the mental health facility.¹⁵⁴

In 1977, in Phillips v. State,¹⁵⁵ an appellate court overturned the conviction of a man for sexual activity with one male that was obtained by the admission of evidence of sexual activity with a different male. Phillips allegedly also had shown another male photos of "boys sucking each other off" and this evidence was held to follow the Banks case prohibiting evidence of sex with one person to be admitted into evidence in a trial for sex with another.¹⁵⁶

A final revision to the psychopath law in 1978¹⁵⁷ limited the right of judges to permit a furlough or work release for adjudged psychopaths.¹⁵⁸

In 1979, despite all the efforts at fine-tuning the law, Florida, like almost all other states, gave up and simply repealed the psychopathic offender law.¹⁵⁹

An appellate court declined, by a 2-1 vote, to hear an appeal in 1980 in Alfaro et al. v. State.¹⁶⁰ Two men had been arrested for sex in a restroom and had been viewed by a ceiling mirror. With a two-word opinion, "Certiorari denied," the court cited the Coyle decision above as precedent.¹⁶¹ Dissenting Judge Natalie Baskin believed that the continuous surveillance from the ceiling was an unconstitutional general warrant.¹⁶²

In 1980, Florida adopted a broadly worded amendment to the state constitution stating

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.¹⁶³

Although this amendment has not been interpreted as far as the unnatural and lascivious act law is concerned, several court decisions in the 1980s have interpreted its scope. Privacy rights are not absolute,¹⁶⁴ but they are much broader than those under the United States Constitution.¹⁶⁵ The "except as otherwise provided herein" proviso refers to the entire Florida Constitution, not just the privacy amendment.¹⁶⁶ A reasonable expectation of privacy must exist before the right of privacy attaches to an act.¹⁶⁷

Period Summary: Florida appeared to be a sluggish state in terms of its legislative and judicial reaction to the Kinsey reports and the Model Penal Code. More than a decade after the first Kinsey report was published, a law review article criticized the existence of the consensual sodomy law. Nearly a decade later, a number of challenges to the law arose in courts. In 1971, in what appears to be blatant judicial legislation, the Florida Supreme Court reversed its course and struck down as unconstitutionally vague the "crime against nature" law. The Court also steered prosecutors to the "unnatural and lascivious acts" law for prosecution of different sexual acts, even though the Court previously had said that this law did not cover sodomitical acts. The Court did not overrule the previous decision, but merely ignored it. The Florida legislature attempted to restore the voided law and intended to include married couples within its purview. This action became unnecessary when the "unnatural and lascivious acts" law was sustained by the Florida Supreme Court against the same vagueness argument that struck down the "crime against nature" law. It is inconceivable that "unnatural" is any less vague than "against nature," but the Court, in its inconsistency, lowered the penalty for consensual sodomy from a felony to a misdemeanor without legislative action. The adoption of a broad privacy amendment to the state’s constitution in 1980 has changed the outlook on the constitutionality of the "unnatural and lascivious acts" law.

The Post-Hardwick Period, 1986-Present

U.S. District Court Judge James Paine decided in 1989 that a Palm Beach County ordinance requiring removal of doors from viewing booths in adult bookstores was constitutional, in the case of Movie & Video World, Inc. v. Board of County Commissioners of Palm Beach County, Florida.¹⁶⁸ Paine found the expert testimony on the spread of sexually transmitted diseases to be persuasive, including that of a Dr. Dale Tavris who claimed one could contract AIDS from masturbating alone.¹⁶⁹

In 1990, an appellate court handed down the puzzling case of Mohammed v. State.¹⁷⁰ A man who had been convicted of consensual fellatio with a woman in Georgia had been arrested on another charge and the sodomy conviction was used as added points to determine his sentence. The Florida court said Florida had no law equivalent of that of Georgia and so it was unreasonable to allow the Georgia statute to be used against Mohammed. Citing a number of sex studies,¹⁷¹ Judge E. Earle Zehmer said that the Florida "unnatural and lascivious acts" statute was not sufficiently

precise to define as criminal conduct consensual oral sex or fellatio [sic] performed by a man and a woman in the privacy of their bedroom[.]¹⁷² [Emphasis added].

Later, Zehmer said that instances of "consensual acts between a man and a woman" should not be governed by the "unnatural and lascivious acts" statute because the "obvious lack of prosecutions" for "either heterosexual or homosexual activities that would violate the specific language of the Georgia statute."¹⁷³ Zehmer made no reference to the privacy amendment added to the Florida constitution and it is unclear whether his opinion excludes all consensual private sodomy or only that between people of the opposite sex from the scope of the "unnatural and lascivious acts" law.

An example of assimilation of homosexuality into the mainstream of jurisprudence for negative purposes only was the 1990 case of Victor v. State.¹⁷⁴ An appellate court upheld the "carnal intercourse" conviction of a man for consensual fellatio with a minor male, whose age is not given in the case. In a short opinion, Judge Barry Stone amazingly claimed that similar statutes, previously known as "statutory rape," had been gender-neutral throughout history, and that penetration of the "victim" need not be proven. Mere contact was sufficient for a crime to be committed.¹⁷⁵

In 1992, a videotape was released showing male Florida police officers getting naked and drunk outdoors and one of them attempting sex with another male dressed as a bunny. Nothing in the news article says anything about plans to prosecute them for public indecency or attempted sodomy, even though they routinely arrest others for the same offenses.¹⁷⁶

Also in 1992, a judge decided that the state’s "unnatural and lascivious acts" law does not apply to private, consensual homosexual acts between adults.¹⁷⁷

In 1994, in Ward v. State,¹⁷⁸ an appellate court suppressed evidence used to convict a man of lewdness for masturbating in a closed restroom stall. The arresting officer, named Barker, was in the habit of peering into stalls through cracks to observe occupants, looking for sexual activity.¹⁷⁹ The court found that, since the stall was closed and locked, a privacy interest existed that could not be violated by the state.

An appellate court upheld a conviction and long sentence for consensual sexual activity with a minor male in Jory v. State in 1994. A teenager who claimed he was 16 when he had voluntary sexual relations with Jory was believed by the jury to have been 15 at the time of the sexual activity in question. This conviction led to a sentence of 150 years in prison followed by 30 years of probation.¹⁸⁰

In 1995, a federal judge was faced with a decision in Gilbert v. Sears, Roebuck and Company et al.¹⁸¹ Timothy Gilbert had been arrested in a Sears restroom for indecent exposure and charged Sears with conspiring actively with the Tampa Police Department in conducting restroom surveillance. Sears argued that its actions did not rise to the level of state action, but Judge Elizabeth Kovachevich found that there was a genuine issue of material fact in Gilbert’s complaint that had to survive Sears’s motion for dismissal.¹⁸²

The 1990 decision of the appellate court and the 1992 decision of the trial court that the "unnatural and lascivious acts" law does not apply to private, consensual behavior never were appealed and remain of questionable precedental value. The state’s privacy amendment, however, may provide the answer. Common-law crimes continue to be recognized in Florida¹⁸³ and case law in the state is such that, if the "unnatural and lascivious acts" law is repealed, the common-law statute will continue to make sodomy a crime, although apparently constitutionally not between consenting adults.¹⁸⁴

Period Summary: An appellate court issued a decision in 1990 that definitely exempted consenting heterosexuals, and possibly consenting homosexuals, from prosecution under the "unnatural and lascivious acts" law. Two years later, a trial judge, in dictum, ruled that the same law does not apply to consenting adults in private, but that interpretation has not been made by the Florida Supreme Court. A court challenge specifically to that point will be needed to decide the relevancy of the privacy amendment to private, consensual sexual relations. Florida joined the growing number of states in which consensual sodomitical acts occurring in a public restroom are sacrosanct from prosecution, a point of law that should be used in any future court challenge to the law.

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^Footnotes

¹3 Stat. 654, enacted Mar. 30, 1822.

² Florida Territorial Acts 1822, page 50, enacted Sep. 2, 1822.

³ Florida Territorial Acts 1823, page 111, enacted June 29, 1823.

⁴ Florida Territorial Acts 1828, page 203, enacted Nov. 23, 1828, effective Jan. 1, 1829.

⁵ Florida Territorial Acts 1829, page 8, enacted Nov. 6, 1829.

⁶ Research by Judge Leslie Thompson, published in Florida Statutes 1941, Vol. III, pages 77-78.

⁷ John P. Duval, ed., Compilation of the Public Acts of the Legislative Council of the Territory of Florida Passed Prior to 1840, (Tallahassee:Samuel S. Sibley, 1839), page 113, No. 55, enacted Feb. 10, 1832.

⁸ Id. at 126, §76.

⁹ Id.

¹⁰ Acts of Florida 1842, page 19, No. 22, enacted Mar. 5, 1842.

¹¹ Id. at 20, §2.

¹² Id. §1.

¹³ This law is not generally known. In current codes of law, the legislative history goes back only to the 1868 law. Whether this is due to an oversight or due to a desire on the part of Florida officials to hide this embarrassing law is not clear. The only codification of this capital sodomy law that I have been able to locate is Thompson’s A Manual of the Digest of the Statute Law of the State of Florida, of a General and Public Character, (Boston:Charles C. Little & James Brown, 1847), page 500, §11. A search of Florida newspapers from late 1841 and early 1842 for news stories that may have precipitated the capital sodomy law did not reveal any such items. Death warrants issued in Florida are extant only from 1869, the year after sodomy was removed from the list of capital offenses. I am indebted to Mary Ann Cleveland of the Florida State Library for her efforts.

¹⁴ Laws of Florida 1868, page 61, ch. 1637 [Act 13], enacted Aug. 6, 1868.

¹⁵ Id. at 98, §17.

¹⁶ Id.

¹⁷ Id. at 99, §24.

¹⁸ Id. §25.

¹⁹ Laws of Florida 1905, page 97, ch. 5419, enacted May 29, 1905.

²⁰ Id. at 98, §2.

²¹ Laws of Florida 1917, page 211, ch. 7361, enacted May 28, 1917.

²² Id.

²³ Id. §2.

²⁴ 89 So. 344, decided July 5, 1921.

²⁵ Id.

²⁶ Id. at 345.

²⁷ Id.

²⁸ 94 So. 505, decided Dec. 12, 1922.

²⁹ Id. at 506.

³⁰ 120 So. 844, decided Mar. 19, 1929.

³¹ Id. at 845.

³² Id.

³³ 142 So. 909, decided July 8, 1932.

³⁴ Id. at 910.

³⁵ Id.

³⁶ 164 So. 848, decided Dec. 27, 1935.

³⁷ Id.

³⁸ Id. at 849.

³⁹ 12 So.2d 305, decided Mar. 2, 1943. Rehearing denied Mar. 25, 1943.

⁴⁰ Id.

⁴¹ Id.

⁴² Id. at 305-306.

⁴³ Id. at 306.

⁴⁴ 14 So.2d 408, decided July 9, 1943.

⁴⁵ Id. at 409.

⁴⁶ Id. at 409-410.

⁴⁷ Id. at 410. Another case without detail brought by the same appellant follows on page 410.

⁴⁸ 72 So.2d 785, decided May 7, 1954. Rehearing denied June 11, 1954.

⁴⁹ Id.

⁵⁰ Id.

⁵¹ Id.

⁵² Id.

⁵³ Laws of Florida 1955, page 753, ch. 29881, enacted June 15, 1955.

⁵⁴ Id. §1.

⁵⁵ Id. §7.

⁵⁶ State v. Creekmore, 8 Fla.Supp. 189, decided Jan. 24, 1956.

⁵⁷ 90 So.2d 105, decided Oct. 24, 1956. Rehearing denied Dec. 8, 1956.

⁵⁸ Id. at 108.

⁵⁹ Laws of Florida 1957, page 391, ch. 57-208, enacted May 27, 1957.

⁶⁰ Laws of Florida 1957 Ex. Sess., page 24, ch. 57-1989, enacted Oct. 29, 1957.

⁶¹ Id. §1.

⁶² Id. §10.

⁶³ Richard T. Jones, "Sodomy—Crime or Sin?" 12 U.Fla.L.Rev. 83 (Spring 1959).

⁶⁴ Id. at 85.

⁶⁵ Id. at 91-92.

⁶⁶ Biennial Report of the Attorney General 1959-1960, page 473, Opinion 060-24, issued Feb. 2, 1960.

⁶⁷ Id. at 480, §1 and §2.

⁶⁸ Id. §3.

⁶⁹ Id. §4.

⁷⁰ 172 So.2d 3, decided Feb. 2, 1965. Rehearing denied Mar. 15, 1965.

⁷¹ Id. at 6.

⁷² 172 So.2d 505, decided Mar. 2, 1965.

⁷³ Id. at 507. The trial judge was Hans Tanzler, who later served as Mayor of Jacksonville, where he became a born-again Christian and made anti-Gay comments. He ran for Governor in the 1978 Democratic primary on an anti-Gay platform, but lost.

⁷⁴ New York Times, Dec. 29, 1965, 12:3.

⁷⁵ 181 So.2d 671, decided Jan. 19, 1966.

⁷⁶ Id. at 675.

⁷⁷ 190 So.2d 578, decided Sep. 28, 1966. Appeal dismissed, 387 U.S. 426, decided May 29, 1967. Justice William Douglas voted to hear the case.

⁷⁸ 190 So.2d, at 579-580.

⁷⁹ Id. at 581.

⁸⁰ Id.

⁸¹ Id. at 582.

⁸² Id.

⁸³ Laws of Florida 1967, page 1444, ch. 67-451, enacted Aug. 1, 1967, effective Oct. 1, 1967.

⁸⁴ Id. at 1447.

⁸⁵ James Riordan and Jerry Prochnicky, Break on Through: The Life and Death of Jim Morrison, (New York:Morrow, 1991), page 296.

⁸⁶ Id. at 392. The style of the case is State v. Morrison and the docket number is 69-2355.

⁸⁷ Riordan and Prochnicky, at 395, 398, 399, 403, and 405.

⁸⁸ Laws of Florida 1970, page 989, ch. 70-339, enacted July 2, 1970.

⁸⁹ Id. at 1043, §111.

⁹⁰ Laws of Florida 1971, page 552, ch. 71-136, enacted June 16, 1971, effective Jan. 1, 1972.

⁹¹ Id. at 858, §777.

⁹² Id. §778.

⁹³ 257 So.2d 21, decided Dec. 17, 1971. A companion case, Joyce v. State, was consolidated with this one.

⁹⁴ Id. at 23.

⁹⁵ Id.

⁹⁶ Id. at 23-24.

⁹⁷ Id. at 24.

⁹⁸ Id.

⁹⁹ Id.

¹⁰⁰ Morris v. State, 261 So.2d 563 (1972), Blackmon v. State, 262 So.2d 264 (1972), and Parisi v. State, 265 So.2d 699 (1972).

¹⁰¹ Zimmerman v. State, 320 So.2d 41 (1975).

¹⁰² Stone v. State, 264 So.2d 81 (1972). This case was appealed to the U.S. Supreme Court and, in one of its least known Gay-related decisions, the Court unanimously (including Douglas, Brennan, and Marshall) upheld the term "crime against nature" as constitutional and denied federal relief to the appellant. Wainwright v. Stone, 414 U.S. 21 (1973). The other state cases in which post-conviction relief was denied were Davis v. State, 278 So.2d 315 (1973) and Hall v. State, 282 So.2d 190 (1973).

¹⁰³ The Advocate, Vol. 79 (Feb. 16, 1972), page 2.

¹⁰⁴ The Advocate, Vol. 80 (Mar. 1, 1972), page 4.

¹⁰⁵ The Advocate, Vol. 81 (Mar. 15, 1972), page 1.

¹⁰⁶ The Advocate, Vol. 85 (May 10, 1972), page 2.

¹⁰⁷ Laws of Florida 1972, page 414, ch. 72-133, enacted Mar. 31, 1972.

¹⁰⁸ Id. at 415, §1.

¹⁰⁹ Morgan Stevenson Bragg, "Victimless Sex Crimes: To the Devil, Not the Dungeon." 25 U.Fla.L.R. 139, (1972-1973).

¹¹⁰ 278 So.2d 611, decided May 30, 1973.

¹¹¹ Id. at 612.

¹¹² Id.

¹¹³ 284 So.2d 683, decided Oct. 17, 1973.

¹¹⁴ Id.

¹¹⁵ Id.

¹¹⁶ The Advocate, Vol. 135 (Apr. 10, 1974), page 9.

¹¹⁷ Id. ch. 74-121, enacted July 10, 1974, effective Oct. 1, 1974.

¹¹⁸ Id. §1.

¹¹⁹ Laws of Florida 1974, page 1194, ch. 74-379, enacted July 3, 1974, effective Oct. 1, 1974.

¹²⁰ Id. at 1195, §3.

¹²¹ 298 So.2d 543, decided Aug. 15, 1974.

¹²² 308 So.2d 538, decided Jan. 23, 1975. Rehearing denied Mar. 12, 1975.

¹²³ 384 F.Supp. 574, decided Oct. 31, 1974.

¹²⁴ Id. at 578.

¹²⁵ 42 Fla.Supp. 83, decided May 8, 1975.

¹²⁶ Id. at 85.

¹²⁷ Id. at 86-87.

¹²⁸ Id. at 87.

¹²⁹ Id. at 87-90.

¹³⁰ Id. at 92.

¹³¹ Id. at 93.

¹³² 331 So.2d 289, decided Mar. 31, 1976. Rehearing denied May 25, 1976.

¹³³ Id.

¹³⁴ Id.

¹³⁵ Id. at 290.

¹³⁶ Id.

¹³⁷ Id.

¹³⁸ Id.

¹³⁹ Id.

¹⁴⁰ Id. at 292.

¹⁴¹ Id. at 293.

¹⁴² Id.

¹⁴³ 344 So.2d 554, decided Apr. 21, 1976. On rehearing Nov. 12, 1976.

¹⁴⁴ Id. at 555.

¹⁴⁵ Id.

¹⁴⁶ 332 So.2d 69, decided Apr. 21, 1976. Rehearing denied June 10, 1976.

¹⁴⁷ Id. at 72.

¹⁴⁸ New York Times, June 27, 1976, 16:8; Oct. 2, 1976, 8:6.

¹⁴⁹ New York Times, Sep. 19, 1976, 18:1.

¹⁵⁰ Leigh W. Rutledge, The Gay Decades, (New York:Plume, 1992), page 167.

¹⁵¹ Laws of Florida 1977, page 1324, ch. 77-312, enacted June 23, 1977, effective July 1, 1977.

¹⁵² Id. at 1333, §12.

¹⁵³ Id. at 1334, §14.

¹⁵⁴ Id. at 1336, §21.

¹⁵⁵ 350 So.2d 837, decided Oct. 20, 1977.

¹⁵⁶ Id. at 838.

¹⁵⁷ Laws of Florida 1978, page 5, ch. 78-628, enacted Dec. 6, 1978.

¹⁵⁸ Id. at 6, §2.

¹⁵⁹ Laws of Florida 1979, page 1764, ch. 79-341, at 1765, §3(c), enacted July 3, 1979, effective July 1, 1979.

¹⁶⁰ 383 So.2d 930, decided Apr. 29, 1980. Rehearing denied June 10, 1980.

¹⁶¹ Id.

¹⁶² Id. at 931.

¹⁶³ Florida Constitution, Article 1, §23, adopted by popular vote, Nov. 4, 1980. The measure won 61% of the vote statewide and carried 61 of 67 counties. There was no pattern to the vote. In many ways, the vote went the opposite of the way it might be expected. It won its largest margins in two counties with stolid reputations. Pinellas County (Clearwater-St. Petersburg) gave it 74%, followed by Sarasota County (Sarasota) with 71%. Monroe County (Key West) gave it 62.5%, not much above its statewide average. The cosmopolitan three-county Miami metro area gave it a below-average 59.5%, whereas tiny, rural Dixie County gave it 65%. The issue ran behind its statewide average in white-collar Jacksonville (56%) and Orlando (53%), but ahead of its statewide average in blue-collar Tampa (63%) and Pensacola (66%). Abstract of votes provided by the Florida Secretary of State’s Office.

¹⁶⁴ Florida Board of Bar Examiners Re Applicant, 443 So.2d 71 (1983).

¹⁶⁵ Winfield v. Division of Pari-Mutuel Wagering, Dept. of Business Regulation, 477 So.2d 544 (1985).

¹⁶⁶ Shaktman v. State, 529 So.2d 711 (1988).

¹⁶⁷ State v. Long, 544 So.2d 219 (1989).

¹⁶⁸ 723 F.Supp. 695, decided Oct. 11, 1989.

¹⁶⁹ Id. at 699.

¹⁷⁰ 561 So.2d 384, decided May 7, 1990.

¹⁷¹ Id. at 386, n.1.

¹⁷² Id. at 386.

¹⁷³ Id. at 387.

¹⁷⁴ 566 So.2d 354, decided Sep. 5, 1990.

¹⁷⁵ Id. at 355.

¹⁷⁶ Columbus Dispatch, Mar. 26, 1992, 6A:3.

¹⁷⁷ Washington Blade, June 12, 1992, page 13.

¹⁷⁸ 636 So.2d 68, decided Mar. 18, 1994. Rehearing denied Apr. 27, 1994.

¹⁷⁹ Id. at 69.

¹⁸⁰ Lesbian/Gay Law Notes, Summer 1994, 79:2.

¹⁸¹ 899 F.Supp. 597, decided Oct. 11, 1995.

¹⁸² Id. at 599.

¹⁸³ Florida Statutes Annotated, §775.01.

¹⁸⁴ North Shore Hospital, Inc. v. Barber et al., 143 So.2d 848, at 853, decided July 3, 1962.

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