The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Indiana
"The crime of sodomy has always been deemed a very
pariah of crimes[.]"
The Post-Revolution Period, 1776-1873
A statute1 adopted by the Legislative Council
of the Northwest Territories in 1795 received the common law of England, as well
as all English statutory law passed before 1607. This included the capital
buggery law, applicable only to males.
A code of law for the Indiana Territory was enacted in 1800,2
but no portion of the code is known to have survived, so it is unknown if it
covered either sodomy or common-law crimes.
In 1807, the Indiana Territory adopted a comprehensive criminal code3
that included a sodomy law that eliminated the gender-specifics and reduced the
penalty to a maximum of 1-5 years in prison, a fine of $100-$500, up to 500
lashes "well laid on, on his or her bare back" and a permanent loss of
civil rights.4 The imprisonment sentence was the
third-longest in the criminal code, and the 500 lashes for sodomy were the most
that could be given for any crime. The new law was signed by Governor and future
President William Henry Harrison.5
A second provision of this same code permitted an alternative sentencing for
anyone convicted of a crime and sentenced only to a fine to be hired out to
another person for any "reasonable" term.6
This law technically permitted the hiring of convicted sodomites, if they were
given only a fine, as "kept boys."
A supplemental statute of 18187 adopted the
common law of England and all but a few of the English statutes enacted prior to
1607. The English buggery law was not excluded. This law acted merely as a
backup to the sodomy law.
In 1820, the Indiana Supreme Court, deciding Fuller v. State,8
ruled that crimes prohibited both by statute and the common law could be
prosecuted under either. "If an offense at common law be prohibited by
Statute, this takes not away the indictment at common law."9
However, in 1831, Indiana passed a new criminal code10
that repealed the sodomy law, and left the common-law statute intact. This
raised the penalty for sodomy to death and again restricted its applicability to
males.
A statute passed in 185211 limited the
applicability of the common law and English statutes to civil cases.12
This actually legalized sodomy, since the 1831 code had eliminated reference to
it.
Although it was not, at this time, a crime in Indiana, a decision by the
Indiana Supreme Court in a slander case gave a clear impression of how the
courts viewed an act of sodomy. In 1858, in Ausman et ux. v. Veal,13
the Court defined it as
a connection between two human beings of the same sex—the male—named
from the prevalence of the sin in Sodom.14
Thus, heterosexual sodomy was not covered, and any act of sodomy was a
"sin."
Period Summary: Indiana showed wild swings in its laws regarding
sodomy. It began, like Ohio and Illinois, receiving the English common law
from the Northwest Territories government. This made sodomy punishable by
death. In 1807, the Indiana Territory enacted an extremely harsh criminal
code that made sodomy one of the most severely penalized of acts. A new code
of 1831 eliminated mention of sodomy, but reinstituted common-law crimes,
raising the penalty back to death. The code of 1852 abrogated common-law
crimes without mentioning sodomy, thus legalizing it.
The Victorian Morality Period, 1873-1948
I. Sodomy
The absence of a sodomy law was corrected when Indiana enacted a
comprehensive criminal code revision in 1881.15
However, Indiana worded its law in a way that no other U.S. jurisdiction had. It
said that, whoever
commits the abominable and detestable crime against nature, by having
carnal knowledge of a man or a beast, or who, being a male, carnally knows
any man or woman through the anus, and whoever entices, allures,
instigates or aids any person under the age of twenty-one years to commit
masturbation or self-pollution, is guilty of sodomy, and, upon conviction
thereof, shall be imprisoned in the State prison not more than fourteen
years nor less than two years. [Emphasis is the law’s].16
This statute differentiated between "carnal knowledge" and anal
sex, thus presumably intending to cover acts like fellatio. Also, masturbation
with a person of either gender under age 21 was sodomy, but not with a person of
either gender over 21.
Also as part of the new criminal code, Indiana enacted a law banning the
sale, lease, or giving away of instruments used for "self-pollution,"17
which would ban sex toys.
For unclear reasons, the sodomy statute was made less comprehensive, at least
on its face, in another criminal code revision in 1905.18
The "abominable and detestable crime against nature" epithet remained,
as did the reference to masturbation of a person under 21, but the reference to
"carnal knowledge" disappeared, thus apparently legalizing fellatio
and other erotic activity. The prison term remained the same, but a fine of
$100-$1,000 was added.19
The first reported sodomy case in the state arose in 1913 to decide if this
law covered fellatio. In Glover v. State,20
the Indiana Supreme Court unanimously ruled that, despite the apparent weakening
of the sodomy law, fellatio was covered by the term "crime against
nature." The
crime of sodomy has always been deemed a very pariah of crimes, and the
acts constituting it but seldom specifically defined. There can be no doubt
that many of the definitions are amply broad to include the act in question.21
After critically reviewing English case law on the subject,22
the Court felt that it was "free to conclude" that the Indiana
legislature
chose rather the broad definition of the crime, which would include those
abominations within the mischief of the law, rather than the narrow one
which without reason would exclude from punishment a perpetrator of what
might well be considered the vilest and most degenerate of all the acts
within the inclusion of the broad definition.23
It was "inconceivable" that the legislature would punish anal sex
severely but leave "the vilest and, if possible, most unnatural one to go
undenounced and unpunished."24
In the second reported sodomy case, Young v. State,25
from 1923, the Indiana Supreme Court decided the other half of the oral sex
question, that dealing with cunnilingus. In a unanimous opinion by Justice David
Myers, the Court, after generally agreeing with the appellant that criminal
statutes had to be construed strictly,26 found
that contemporary dictionary definitions of masturbation and pollution, as
mentioned in the sodomy law, were broad. Myers said that the words included
the corruption of morals, the disgrace of human nature by an unnatural
sexual gratification, of which reason and decency forbids a more detailed
description. They seem to be sufficiently broad and extensive to include the
abominable and detestable act, cunnilingus, proved in this case.27
In 1924, the Indiana Supreme Court unanimously upheld a sodomy conviction in
the case of Borolos v. State.28 The
defendant had objected to the introduction of testimony concerning other sexual
partners, but the Court found no error in this.29
In 1939, in the case of Connell v. State,30
the Indiana Supreme Court rejected the defendant’s contention that sodomy
between persons of the opposite sex was not covered by the statute.31
The Court went on to bend case law. It stated that cunnilingus was included
within the term "sodomy," and referred to the Young decision of
1923.32 However, the earlier case said that
cunnilingus was a form of masturbation within the law, not sodomy.
In the 1940 case of Sanders v. State,33
the Indiana Supreme Court unanimously upheld the sodomy conviction of a man even
though the trial court limited the number of his character witnesses after the
prosecutor said no character witnesses would be called by the state.34
Justice George Tremain, the author of the opinion, felt a need to end his
opinion with a moralizing statement. The sodomy law
gives no other definition of the crime, obviously out of regard to the
better sentiments of decent humanity, and to leave the record undefiled by
details. The court has read the evidence in the record, and for the same
reasons which influenced the framers of the statute, refuses to defile the
reports by a recital of the sordid, immoral, depraved, and detestable
statements therein contained.35
An entrapment defense was rejected unanimously by the Indiana Supreme Court
in the brief 1943 case of Ditton v. State.36
A 27-year-old male had sought over a period of several days to set up a
rendezvous with a 17-year-old male for sexual relations. The younger man finally
consented and went with him to a secluded place where the defendant was arrested
by police who had been notified in advance by the young man.37
In an amazing case from 1944, Spence v. Dowd,38
the Seventh Circuit Court of Appeals sternly ordered lower courts to review the
case of a man who had been arrested on a charge of contributing to the
delinquency of a minor. He had been denied an opportunity to consult an
attorney, then charged with sodomy, never informed against or indicted, tried
without an attorney, and denied the right to prepare his defense. After six
years in prison, he had filed for a writ of habeas corpus, which was
denied summarily without a hearing.39 The Indiana
state courts and federal trial court consistently had refused to hear Spence’s
claims. Judge Otto Kerner of the Seventh Circuit said that Spence "is
entitled to be heard. The District Court should have inquired into and
specifically found the facts." The case was remanded with instructions to
hear Spence’s case.40
Also in 1944, in Montgomery v. State,41
the Indiana Court of Appeals unanimously overturned the conviction of Guy
Montgomery for "encouraging a boy to commit sodomy."42
No details of the case were given, and the Court rejected Montgomery’s claim
that mere encouragement was not a crime.43
However, owing to an erroneous instruction to the jury, the conviction was
overturned.44
Through the year 1944, only one woman had been prosecuted for sodomy in
Indiana, and that was the inmate of a penal institution for activity within the
institution.45
A study of court proceedings in the city of Indianapolis in 1947 revealed
that one man convicted of sodomy with a 17-year-old male received only a $100
fine.46
II. Sterilization
In 1907, Indiana enacted the world’s first law47
to provide for sterilization of certain individuals, including "confirmed
criminals[.]"48 The surgery could be
performed only if the mental condition of the inmate made procreation
"inadvisable" and the condition was considered unchangeable.49
The law was enforced only at the Indiana Reformatory50
and then ran into major hurdles. In 1909, newly elected Governor Thomas Riley
Marshall, future Vice President, instructed state institutions to disregard the
law.51 The policy of the institutions in ordering
sterilizations "was not entirely above board and regulated, which is why
Governor Marshall put a stop to it long before the Supreme Court struck down the
law itself."52
In addition, a criticism of the sterilization law appeared in a law journal
in 1911.53 The article noted that the criminal
law of Indiana nowhere defined what constituted a "confirmed
criminal," thus leaving that definition to the whim of physicians.54
It also noted that the law did not state who was to give the required
"recognized ability" to the physicians performing the surgery,55
and that the law did not specifically prohibit castration, which was likely to
be cruel and unusual punishment under the Indiana Constitution.56
The sterilization law came to grief in the 1921 case of Williams et al. v.
Smith.57 In a brief opinion, the Indiana
Supreme Court unanimously struck down the law as violative of due process of law
in that it did not afford defendants the opportunity for an adversary hearing.58
Period Summary: Indiana reinstituted sodomy as a crime with a new
code adopted in 1881. It was, at the time, a uniquely worded sodomy law,
covering both masturbation of another person and "carnal
knowledge" separate from sodomy, which may have covered fellatio.
Later, the Indiana Supreme Court interpreted a less clear sodomy law to
prohibit fellatio and its long, historically oriented opinion later became
the precedent-setting case to which courts in many other states deferred. A
decade later, cunnilingus was determined to be an act of
"masturbation" under this law, thus making it illegal as well, but
only with a partner under 21. It therefore should be no surprise that a
survey of prosecutions over seven decades found only one woman prosecuted
for sodomy. The Indiana Supreme Court rejected a heterosexual defendant’s
argument that opposite-sex sodomy was not covered by the law. Especially in
the 1940s, Indiana courts routinely showed little regard for the due process
rights of those charged with sodomy. Indiana enacted the first law anywhere
in the world providing for sexual sterilization of certain persons convicted
of crimes. The law little was used and later found unconstitutional.
The Kinsey Period, 1948-1986
In 1949, Indiana enacted a psychopathic offender statute.59
Any person over 16 who suffered from an undefined "mental disorder"
other than insanity or feeblemindedness "coupled with criminal propensities
to the commission of sex offenses" was a "criminal sexual psychopathic
offender" per se.60 Commitment to an
institution was to be until the full recovery from criminal psychopathy, which
could be for life.61 The law was enacted
following publicity over a series of rape/murders in the Fort Wayne area during
World War II and in Indianapolis after the War.62
The original proposal required examination by psychiatrists, but, because of the
"lack of psychiatrists in many areas of Indiana," it was changed to
require examination only by a physician. This led to many people being committed
under the law even though they did not fit the medical definition of a
psychopath.63
While the psychopath law was being debated in the Indiana legislature, the
state Attorney General issued an opinion64 that
the proposed law would be constitutional. Attorney General J. Emmett McManamon
dismissed the fear that the proposal would allow commitment to an institution of
a person who had not committed any crime. McManamon noted that the bill referred
only to those who had been convicted of or pleaded guilty to an offense.65
Apparently alluding to the Kinsey report, another fear was that everyone in the
state of Indiana would be committable under the law. McManamon thought that
"untenable" because he could not conceive that everyone in the state
possessed a "mental disorder that is coupled with criminal propensities to
the commission of sex offenses."66
Another short opinion in the 1953 case of Baumgartner v. State67
led to victory. The Indiana Supreme Court unanimously overturned the conviction
because the original affidavit did not state that the alleged act took place
"with mankind or beast." Even the Attorney General of Indiana sided
with the defendant, so the Court ordered the affidavit quashed.68
Just two weeks later, the first reported case under the federal Assimilative
Crimes Act occurred in Indiana. United States v. Gill69
was a case of heterosexual sodomitical assault occurring on a U.S.-registered
ship docked in the territorial waters of Indiana. The defendant claimed that
sodomy on federal property could not be prosecuted under Indiana law,70
but the Seventh Circuit Court of Appeals rejected the claim, noting that the
purpose of the Assimilative Crimes Act was to cover federal property, and to
defer to the laws of the state wherein a given crime was committed.71
A 1955 report showed that a judge in South Bend acquitted a man accused of
being a "sex psychopath" because the Kinsey Report on human sexuality
made "the area of sex psychopathology" "ill-defined."72
Indiana is one of the few states in which detailed information about the
operation of its psychopathic offender law was published. The first was a law
review article in 195773 that noted 160
commitments under the law in its first seven years of operation.74
A table showed that 60 of these commitments, or 38%, were for sodomy, with five
others for "assault and battery with intent to gratify sexual
desires," one for "disorderly conduct," 13 for "contributing
to the delinquency of minors," and one for "unnatural acts with
wife."75 Some 53% of the committed sodomy
cases involved activity strictly between adults.76
Not one of the 160 commitments was of a woman77
which led the author to complain that
there are women with strong sex drives who prefer young boys to men and
who might find themselves at odds with the laws concerning contribution to
the delinquency of minors...It would seem that certainly some might have
qualified as criminal sexual psychopaths. Despite this, there has not been a
single commitment of a female under this statute. A partial explanation may
be the more ready acceptance of aberrant sexual behavior in women by
society. Two women dancing or holding hands arouses little comment. A second
cause might be the reluctance of police officials and courts to bring women
before the bar.78
Thirty-nine of the 160, or 24%, received a psychiatric diagnosis of
"sexual deviate,"79 which is only
two-thirds of the total sodomy commitments. The conclusion was that the
psychopathic offender law not only did not improve the situation in society, but
actually aggravated it, and should be repealed.80
Possibly as a result of this analysis, the psychopath law was amended in
1959.81 Reports of the mental examination of
those sentenced under the law no longer were "competent evidence" in
any other proceeding against the offender.82 As a
result, the person being examined lost the right to refuse to cooperate with
examining psychiatrists, and could be held in contempt of court for refusing to
answer their questions.83
The sex toy law was struck down by the Indiana Supreme Court in 1961, in State
v. Kuebel.84 By a vote of 3-2, the Court
found that the statute did not require scienter, as demanded by the U.S.
Supreme Court.
Another analysis of the psychopath law’s operation was published in 1962.85
This article limited its concerns to one state institution, but, despite being
written by different authors, made a similar complaint about the law as five
years earlier. No female offender had been committed to the institution,
"although females are sometimes guilty of the same behavior that a man
would be arrested for [sic]."86 Of
the 20 individuals studied, 18, or 90%, had committed a sex crime on a female.87
In the first 20 years of operation of the law, ten "consenting adult
homosexuals" were committed under the law.88
In 1963, the sex toy law was repealed.89
In the next reported sodomy case, Lamar v. State,90
from 1964, the Indiana Supreme Court voted 4-1 to uphold the conviction of a man
despite his claim of alibi. His sexual history also was permitted to be
introduced into the trial because, as an exception to the general rule,
it is always permissible for the state, in actions involving abnormal
sexual intercourse, to introduce evidence as to other improper acts of
sexual intimacy committed by the defendant.91
In other words, in only one type of criminal case in Indiana was it
permissible to prejudice the jury against the defendant. Acts of
"normal" sexual intercourse, including rape, would be shielded from
the jury’s knowledge. The dissent without opinion by Justice Amos Jackson was
the first in a string of dissents that showed his hostility to sodomy laws.
In Estes v. State,92 from 1964, the
Indiana Supreme Court rejected the contention of the defendant that the term
"abominable and detestable crime against nature" was
unconstitutionally vague and overbroad. The 4-1 majority stated that the term
had a "clear and long established meaning" per the Glover
decision of 1913.93 The majority was also eager
to reject the defendant’s contention that the alleged eyewitness’ statement
that he could not remember seeing the defendant and the prosecuting witness
engage in sodomy. It felt that the testimony only meant that the witness could
not remember the date on which the act supposedly occurred. Justice Amos
Jackson again dissented, but this time spoke out. Jackson disputed the majority’s
interpretation of the witness’s "I don’t remember" statement and
noted that the state had not tried to get him to clarify what he didn’t
remember.94 His anti-sodomy law language would
sharpen with later cases.
In 1967, in Phillips v. State,95 the
Indiana Supreme Court, dividing 3-2, upheld as constitutionally sufficient an
indictment charging "the abominable and detestable crime against
nature."96 The heated dissent of Justice
Amos Jackson, in which he was joined by one other justice, said that the
very language of the statute purporting to define the offense of sodomy,
is so indefinite and uncertain that its unconstitutionality follows as
certainly as night follows day.97
Jackson also said that he
hoped that the incoming legislature will either clarify or abolish this
anarchism reminiscent of the heyday of the witch hunts of early colonial
times. In today’s space age and sophisticated society, it seems that the
statute should spell out in language understandable by the person of average
scholastic attainment and intelligence the specific nature of the crime with
which he is charged and if that cannot be done then it should not be
denominated a crime.98
In the next case of Dombkowski v. State,99
decided later in the same year, the Indiana Supreme Court upheld a conviction
while conceding that
the prosecuting attorney may have been overenthusiastic and overzealous
for a conviction. We are also impressed from the record as a whole that the
Trial Court may have been overanxious to conclude the trial and may have
taken more part in the trial than would be recommended in a treatise on
modern trial practice.100
The Court also acknowledged that the case was "replete with many
borderline questions," but it did not feel that Dombkowski’s rights had
been violated.101 Curiously, Justice Amos
Jackson concurred in the result, refusing to join the Court’s opinion, but
also not dissenting.102
The psychopathic offender law was upheld by the Indiana Supreme Court in a
3-2 vote in 1968 in State ex rel. Haskett v. Marion County Criminal Court,
Division One et al.103 Continuing his
crusade for civil liberties, Justice Amos Jackson wrote for the dissenters. He
noted that the law used "euphemistic" language,104
clearly was criminal in nature rather than civil, thus requiring more due
process guarantees,105 did not make clear in
whose opinion a defendant had to be psychopathic in order to trigger the law,106
and allowed commitment for life of those not convicted of any crime.107
The Seventh Circuit Court of Appeals got its second Indiana sodomy case in
1968 with Cotner v. Henry.108 A 2-1
majority decided that, despite no statutory exemption, married couples could not
be prosecuted under the law, citing the right to privacy.109
In the 1968 case of Meadows v. State,110
Justice Amos Jackson scored his first victory when the Indiana Supreme Court
unanimously overturned a sodomy conviction because the alleged victim, a mental
patient, had been coached by the prosecution.111
In a third sodomy case from 1968, Jones v. State,112
the Indiana Supreme Court upheld a sodomy conviction based on the uncorroborated
testimony of a 12-year-old partner.113 Justice
Amos Jackson again concurred only in the result.
In the 1969 case of Nichols v. State,114
the Indiana Supreme Court sustained the defendant’s conviction despite the
improbable evidence that the defendant, an adult, was in the presence of the
prosecuting witness, an 11-year-old boy, to return one of his shirts that he
borrowed (he must have been a very small adult) and that the boy offered
the man a piece of candy on the condition that the man show his
"thing" to the boy.115 The above facts
were accepted as true by the Supreme Court, and labeled as "sufficient
evidence of probative value."116 Even
Justice Amos Jackson went along with it.117
In 1970, in Ayad v. State,118 the
Indiana Supreme Court split 4-1 to uphold a sodomy conviction that inflamed Amos
Jackson. In his dissent, he said that the
evidence relied on the by the State is the uncorroborated testimony of a
fourteen year old delinquent adduced by improper direct, leading and
suggestive questions by the prosecuting attorney and denied by one of the
State’s witnesses and by the defense witnesses.119
Jackson also felt that the jury had been coerced into returning a verdict
after twice reporting that it was deadlocked and the trial court told it to
continue deliberating.120
Jackson’s dissent was vindicated when the case returned to the Court a few
months later. In Ayad II,121 the Court
unanimously decided that Ayad, who had succeeding in getting the main
prosecution witness to admit that his testimony had been "wholly false and
the result of the police’s coercive questioning techniques," had to
follow post-conviction relief procedures to overturn his conviction.122
In 1970, in Kerlin v. State,123 the
Indiana Supreme Court split 3-2 to uphold the sodomy conviction of a man based
largely on the testimony of witnesses who had sex with the man earlier. Kerlin
had performed fellatio on a 15-year-old boy more than once, without the boy’s
objection, and the two other witnesses’ acts of sodomy were in no way related
to the charge Kerlin faced.124 In dissent,
Justice Roger DeBruler, predictably joined by Justice Amos Jackson, noted that
the acts of sodomy with the other witnesses were with adults seven years prior
to the acts in question.125 The dissenters
believed this was prejudicial to Kerlin. This was Justice Jackson’s last
sodomy case. Very shortly after this decision, he resigned due to ill health.126
The next case was Dixon v. State,127
from 1971. In this case the Indiana Supreme Court, in a 3-2 vote, upheld the
constitutionality of the state’s sodomy law against a vagueness challenge.
Writing for the majority, Justice Richard Givan said that the Court was
unimpressed by the claim via Dr. Kinsey and others that the acts
complained of in this case are widespread in acceptance. Though such might
be a valid argument to make to the Indiana legislature in an attempt to
modify the existing laws, it is hardly an argument upon which this Court can
justify a judicial decision.128
Pointing out that the defendant in the case was not married to his partner in
cunnilingus,129 the Court added that courts
have universally pointed out that the acts sought to be prevented by this
and similar statutes are of such a nature that legislatures and courts are
reluctant to engage in detailed descriptions of the many acts which the
human being is capable of accomplishing which are so offensive as to be
deemed an ‘abominable and detestable crime against nature with mankind or
beast.’ This terminology has been used for generations in this and other
jurisdictions and has been deemed to be understood as encompassing not only
the act with which the appellant is charged, but many other acts as well.130
In dissent, Justice Roger DeBruler, joined by Justice Dixon Prentice, the
successor to Amos Jackson, believed that the law was unconstitutional both on
grounds of vagueness and invasion of privacy. He argued that
[t]he words ‘abominable’ and ‘detestable’ are mere epithets and
are not descriptive of any behavior at all.131
DeBruler added that, to be punishable, a crime must be
against the sovereign State of Indiana[,] not against something called
‘nature,’ [and] the words do not tell anyone what behavior constitutes
the crime. What is meant by ‘nature’? A deviation from a statistical
norm or from some unannounced moral norm? The words ‘crime against nature’
are also mere epithets. They could be used to punish whatever behavior the
majority considered morally offense or perverse without any advance notice
of the kind of behavior prohibited.132
Quoting with disapproval from the 1913 Glover case, DeBruler ridiculed
the moralizing that led the Court of six decades earlier to interpret the state’s
sodomy law as it did.133 He said that he
believed "that private sexual conduct between consenting adults" was
constitutionally protected and he could "see no valid reason to limit the
right of sexual privacy to married persons."134
The
moral preferences of the majority may not be imposed on everyone else
unless there exists some harm to other persons. Sexual acts between
consenting adults in private do not harm anyone else and should be free from
state regulation.135
In 1971, just two days after the above decision, the Indiana legislature
amended the state’s psychopathic offender law136
to exclude sodomy and "homosexuality" from the list of triggering
offenses, if committed with a consenting adult.137
A minor change in the sodomy law in 1973138
legalized some consensual sexual activity. This law lowered the age from 21 to
18 that would activate the provision outlawing the assistance of masturbation.139
An Indiana appellate court decided the next sodomy case, State v. Lopez,140
in 1973. The court read the law literally and unanimously ruled that the
consensual masturbation of a person over the age of 21 did not constitute a
violation of it.141
The last reported Indiana sodomy case was Russell v. State142
from 1975. An appellate court unanimously rejected a novel claim from a prisoner
accused of sexually assaulting another prisoner. Defendant Russell claimed that
it was not made clear at the outset of the trial that the victim was a human
being. The appellate court judges commendably kept their laughter well under
control in deciding that it was "common knowledge" that prisoners kept
in jail were human beings.143
In 1976, the Indiana legislature passed a comprehensive criminal code
revision144 that repealed the consensual sodomy
law and established an age of consent of 16.145
In 1977, a bill to reinstate consensual sodomy as a felony, only between
persons not married to each other, was introduced into the Indiana House.146
Hearings were held on it, but the bill was killed by a 6-4 committee vote.147
In the 1985 case of Thompson v. State,148
an Indiana appellate court, by a vote of 2-1, decided that viewing booths in
adult bookstores were "public" places, despite curtains hiding them
from the public. Thompson had placed his penis through a glory hole into a booth
occupied by an undercover police officer. The majority believed that privacy
ended the moment that Thompson placed his penis through the hole into the next
booth.149 In dissent, Judge Patrick Sullivan was
uncomfortable with his role as defender of Thompson’s conduct, which
was intrusive. It was offensive. It was disgusting. It is subject to
condemnation and sanction by society and by the law. But it did not occur in
a public place.150
Sullivan did not explain how conduct occurring in private was "subject
to...sanction...by the law." He did come up with an interesting analogy,
however. He likened it to saying that
one’s private residence becomes a public place merely by the
unauthorized and unwanted intrusion of a burglar or other trespasser.151
In 1986, another bill to reinstate sodomy as a crime was announced, but it
never was introduced.152
Period Summary: Indiana joined the ranks of states enacting
psychopathic offender laws after World War II. As with other states, the law
followed a series of sensationalized sex crimes. Indiana, unlike other
states, has fairly detailed documentation of how the law was used. A number
of consenting adult Gay men were processed under this law, as was one
heterosexual man for "unnatural acts" with his wife. Between 1964
and 1970, the Indiana Supreme Court had the most outspokenly anti-sodomy law
judge in the nation, Associate Justice Amos Jackson. The Court upheld nine
of 11 sodomy convictions before it during these years, but Jackson voted to
overturn eight of them. He argued forcefully in dissent that the sodomy law
was unconstitutionally vague and overbroad, and that the psychopathic
offender law suffered from the same defect. Although a new criminal code
adopted in 1976 repealed the sodomy law, there have been two attempts in the
legislature to reinstate the law. One was in 1977 during the backlash caused
by Anita Bryant’s crusade against the Dade County civil rights ordinance
and the other was in 1986 during one of the periodic hysterias over the AIDS
epidemic.
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 Laws of
the territory of the United States north-west of the Ohio, adopted and
made by the governour and judges, in their legislative capacity, at a
session begun on Friday, the XXIX day of May, one thousand eleven [sic]
hundred and ninety-five, and ending on Tuesday the twenty-fifth day of
August following: with an appendix of resolutions and the ordinance for
the government of the territory. (Cincinnati:W. Maxwell, 1796),
enacted July 14, 1795.
2 Laws of the Territory of Michigan
1805-1821, (Lansing:W.S. George & Co., 1871), page xii-xiii.
3 Illinois Historical Collections,
Vol. XXI, Laws of Indiana Territory 1801-1809 (Springfield:Illinois
State Historical Library, 1930), page 247, §23, enacted Sep. 17,
1807.
4 Id.
5 Interestingly, Harrison was elected
President in 1840 after a bitter election in which his supporters
accused President Martin Van Buren of being Gay.
6 Illinois Historical Collections,
at 250, §30.
7 Revised Statutes of Indiana 1838
Public and Private, page 398, ch. LX, enacted Jan. 2, 1818.
8 1 Blackf. 63, decided during July Term
1820.
9 Id. at 66.
10 Revised Statutes of Indiana,
(Indianapolis:Douglas & Maguire, 1831), page 180, ch. XXVI, enacted
Feb. 10, 1831.
11 Statutes of Indiana, Vol. 1,
([Indianapolis?]:Gavin & Hord, 1852), page 415, ch. LXXXVII, enacted
May 31, 1852.
12 Id. at 416, §II.
13 10 Ind. 355, decided during May
Term, 1858.
14 Id. at 356.
15 Acts 1881 Indiana, page 174,
ch. XXXVII, enacted Apr. 14, 1881, effective Sep. 19, 1881.
16 Id. §100.
17 Id. §1996.
18 Acts 1905 Indiana, page 584,
ch. 169, enacted Mar. 10, 1905.
19 Id. at 694, §473.
20 101 N.E. 629, decided Apr. 25, 1913.
21 Id. at 631.
22 Id. at 631-632.
23 Id. at 632.
24 Id.
25 141 N.E. 309, decided Oct. 31, 1923.
26 Id. at 310.
27 Id. at 311.
28 143 N.E. 360, decided Apr. 9, 1924.
29 Id. at 361.
30 19 N.E.2d 267, decided Feb. 20,
1939.
31 Id. at 268.
32 Id.
33 25 N.E.2d 995, decided Mar. 25,
1940.
34 Id. at 996.
35 Id.
36 51 N.E.2d 356, decided Nov. 23,
1943.
37 Id.
38 145 F.2d 451, decided Nov. 8,
1944.
39 Id. at 452. The original case
of State ex rel. Spence v. Worden (39 N.E.2d 733, decided
Feb. 27, 1942) was a brief per curiam that amazingly said
the court lacked jurisdiction to hear Spence’s claim because he was in
jail, as if an incarceration made it impossible for judges to review
possible trial errors.
40 145 F.2d, at 453.
41 57 N.E.2d 943, decided Dec. 11,
1944.
42 Id. at 944.
43 Id. at 945.
44 Id. at 945-946.
45 Alfred Kinsey et al., Sexual
Behavior in the Human Female, (Philadelphia:W.B. Saunders, 1953),
page 485.
46 Robert C. Bensing, "Sex Law
Enforcement in Indianapolis," 4 Western L.Rev. 33, at 36 (1952).
47 Acts 1907 Indiana, page 377,
ch. 215, enacted Mar. 9, 1907.
48 Id. at 378.
49 Id.
50 H.C. Sharp, The Sterilization of
Degenerates, (no publication data), page 8.
51 Harry Hamilton Laughlin, Eugenical
Sterilization in the United States, (Chicago:Psychopathic Laboratory
of the Municipal Court of Chicago, 1922), page 63. Curiously, Marshall,
a strong opponent of sterilization, served as Vice President under
Woodrow Wilson who, as Governor of New Jersey, had signed that state’s
sterilization law. Although a sterilization law was not enacted until
1907, it was practiced at the Indiana Reformatory since 1899 without
legal authorization. Id.
52 Correspondence from Robert Horton,
Indiana State Archives, Jan. 18, 1996.
53 15 Law Notes 47 (June 1911).
54 Id.
55 Id.
56 Id. at 47-48.
57 131 N.E. 2, decided May 11, 1921.
58 Id.
59 Acts 1949 Indiana, page 328,
ch. 124, enacted Mar. 7, 1949.
60 Id. at 329, §1.
61 Id. at 330, §8.
62 Anthony and Susan Jamart Granucci,
"Indiana’s Sexual Psychopath Act in Operation," 44 Ind.L.J.
555, at 559 (Summer 1969).
63 Id. at 560.
64 1949 Opinions of the Attorney
General, page 12, issued Jan. 25, 1949.
65 Id.
66 Id. at 14.
67 111 N.E.2d 727, decided Apr. 24,
1953.
68 Id. at 728.
69 204 F.2d 740, decided May 8, 1953.
Rehearing denied June 17, 1953. Cert denied, 346 U.S. 825, Oct. 12,
1953.
70 204 F.2d, at 742.
71 Id.
72 Jerome Himelhoch and Sylvia Fleis
Fava, eds., Sexual Behavior in American Society: An Appraisal of the
First Two Kinsey Reports, (New York:Norton & Co., 1955), page
268.
73 Elias S. Cohen, "Administration
of the Criminal Sexual Psychopath Statute in Indiana," 32 Ind.L.J.
450 (1957).
74 Id. at 451-452.
75 Id. at 453.
76 Id. at 454.
77 Id. at 455.
78 Id. at 455-456.
79 Id. at 458.
80 Id. at 467.
81 Acts 1959 Indiana, page 955,
ch. 356, enacted Mar. 13, 1959, effective July 1, 1959.
82 Id. §1(a).
83 Id.
84 172 N.E.2d 45, decided Jan. 31,
1961.
85 Ott B. McAtee and George A. Zirkle,
"A Descriptive Study of Criminal Sexual Psychopaths at Madison
State Hospital," The Journal of the Indiana State Medical
Association, 55:1010 (July 1962).
86 Id.
87 Id. at 1011.
88 Anthony and Susan Jamart Granucci,
"Indiana’s Sexual Psychopath Act in Operation," 44 Ind.L.J.
555, at 587 (Summer 1969).
89 Acts 1963 Indiana, page 7, ch.
12, at 8, §9, enacted Feb. 23, 1963.
90 195 N.E.2d 98, decided Jan. 8, 1964.
Rehearing denied Feb. 26, 1964.
91 Id. at 101.
92 195 N.E.2d 471, decided Jan. 23,
1964.
93 Id. at 473.
94 Id. at 476.
95 222 N.E.2d 821, decided Jan. 24,
1967. Rehearing denied Mar. 29, 1967. Appeal dismissed for want of a
substantial federal question, 389 U.S. 12, decided Oct. 9, 1967.
96 222 N.E.2d, at 821-822.
97 Id. at 823.
98 Id. at 824.
99 230 N.E.2d 602, decided Nov. 6,
1967.
100 Id. at 609-610.
101 Id. at 610.
102 Id.
103 234 N.E.2d 636, decided Feb. 28,
1968. Rehearing denied Apr. 9, 1968.
104 Id. at 643.
105 Id. at 643-644.
106 Id. at 644.
107 Id. at 646.
108 394 F.2d 873, decided Apr. 17,
1968. Rehearing denied May 29, 1968. Rehearing denied en banc
May 29, 1968. Cert denied, 393 U.S. 847, decided Oct. 14, 1968.
109 394 F.2d, at 875-876.
110 238 N.E.2d 280, decided July 1,
1968.
111 Id. at 282-283.
112 240 N.E.2d 809, decided Oct. 16,
1968.
113 Id. at 811-812.
114 246 N.E.2d 179, decided Apr. 7,
1969.
115 Id. at 180.
116 Id.
117 Id. at 181.
118 261 N.E.2d 68, decided July 29,
1970.
119 Id. at 70.
120 Id. at 70-71.
121 263 N.E.2d 150, decided Oct. 26,
1970.
122 Id. at 150-151.
123 265 N.E.2d 22, decided Dec. 22,
1970.
124 Id. at 23.
125 Id. at 25.
126 Jackson’s surprisingly
superficial obituary revealed that he had served as a prosecuting
attorney, probation officer, and an attorney with the U.S. War
Department before his judgeship. See the Indianapolis Star,
Oct. 2, 1972, 25:1.
127 268 N.E.2d 84, decided Apr. 6,
1971. Rehearing denied May 20, 1971.
128 Id. at 86.
129 Id.
130 Id. at 87.
131 Id. at 88.
132 Id.
133 Id. at 88-89.
134 Id. at 90.
135 Id.
136 Acts 1971 Indiana, page
2084, Public Law No. 452, enacted Apr. 8, 1971.
137 Id. at 2085, §2(a)(5) and
(6).
138 Acts 1973 Indiana, page
1732, Public Law No. 320, enacted Apr. 16, 1973.
139 Id. at 1733-1734, §3.
140 296 N.E.2d 918, decided June 11,
1973. Rehearing denied July 10, 1973.
141 Id. at 923-924.
142 322 N.E.2d 384, decided Feb. 6,
1975.
143 Id. at 385-386.
144 Acts 1976 Indiana, page
718, Public Law No. 148, enacted Feb. 25,1976, effective July 1, 1977.
145 See pages 733-734 (§2) for the
new language concerning sexual assaults.
146 House Bill 1173, introduced
Jan. 5, 1977. The bill was sponsored by far-right Representative
Donald Boys (R-Greenwood). He was defeated for renomination in the 1978
Republican primary.
147 The Advocate, Vol. 214
(Apr. 20, 1977), page 35.
148 482 N.E.2d 1372, decided Oct. 1,
1985.
149 Id. at 1376.
150 Id.
151 Id.
152 Washington Blade, Apr. 4,
1986, page 10.
