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Last edited: August 10, 2004
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The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Kansas
"The particular form of abomination which shocked the
sensibilities of our forefathers."
The Post-Revolution Period, 1776-1873
The Organic Act for Kansas1 of 1854 made no
provision for criminal law.
In a code adopted by the Kansas territorial legislature in 1855, sodomy was
made a felony with a penalty of "not less than ten years."2
Since no maximum was established, life imprisonment presumably was
permissible.
This apparently was considered too harsh because, in 1859, the territorial
legislature revised the penalty to read "not exceeding ten years,"3
thus making the previous minimum the new maximum.
Summary Period: The Kansas-Nebraska Act left not only the more
famous issue of slavery to be decided by popular sovereignty, but made no
mention of sodomy. The Kansas legislature, in adopting the first code of
laws for the territory, outlawed sodomy as a felony and used the
common-law definition.
The Victorian Morality Period, 1873-1948
I. Sodomy
In a decision in 1895, the Kansas Supreme Court held in State v. Young4
that the state did not recognize common-law crimes.5
The first reported sodomy case in Kansas was the 1925 decision in State
v. Hurlbert.6 Wayne Hurlbert had been
convicted of an act of fellatio with an 11-year-old boy and appealed on the
ground that this did not constitute the "crime against nature."
Justice John Dawson penned a unanimous, and brief, decision that fellatio was
a violation of the law. He moralized shamelessly in the opinion, gave a
pedantic review of ancient history, and committed one major error in his
analysis as well. Dawson stated that Hurlbert and the unnamed boy had served
"alternately as actor and catamite, as Zeus and Ganymede."7
The particular act that they performed was not "the particular form of
abomination which shocked the sensibilities of our forefathers and fell into
their category of crimes."8 However, there
was a "plethora of juristic learning" on this "morbid
subject" that included "sidelights touching such depravities in Holy
Writ and in Greek and Cretan mythology[.]"9
Without going into the details of these sidelights, the Court held that
"proof of any actual, lecherous penetration of the body of a man, woman,
or beast, per os, per anum, or in any other manner contrary to nature, will
sustain a conviction."10 The Court
concluded with an acknowledgement that a number of other courts had ruled that
fellatio did not constitute the "crime against nature," but gloated
that it "found itself in excellent company" with other courts that
decided to the contrary.11 One citation listed
as supporting the Kansas view was the Nebraska case that actually ruled just
the opposite, that fellatio did not violate the state’s sodomy law.12
In 1935, the Kansas Supreme Court next faced a case, State v. Badders,13
that dealt with consenting teenagers engaging in fellatio with an adult male.
The Court was asked again to decide that fellatio was not a violation of the
statute, which it refused,14 and it denied the
defendant’s contention that his rights were violated by not being allowed to
inspect written statements made to the prosecutor by the four teens.15
The prosecution had permitted testimony of previous similar acts by the
defendant, both inside and outside Kansas, for the purposes of showing
"habit, motive, and practices" of the defendant.16
Testimony favorable to the defendant by other young males that he never had
tried such activity with them was held by the Supreme Court to have been
properly excluded by the trial court.17 Due to
a question presented by the prosecution as to the mental health of anyone who
would engage in such acts, the trial court appointed a commission to inquire
into the mental health of the defendant, an action also upheld by the Kansas
Supreme Court.18 Unspecified remarks made by
the trial judge also were held to be nonprejudicial to the defendant’s
rights and the Court concluded that there was no error in the trial.19
II. Sterilization
The sterilization of persons whose sexual orientation did not please the
state had a lengthy history in Kansas, even without legal authorization to do
so. A 1911 medical journal article20 noted with
approval that the state institution for the mentally retarded had sterilized
58 inmates, 14 females and 44 males, in the 1890s.21
Thirty-six of the total (all 14 females and 22 males) remained in the
institution as of the date of the article’s publication, the rest having
either died or been taken home by relatives. The article gleefully noted that
the inmates no longer practiced "onanism and other prevalent
perversities" because the surgery had rendered them incapable of sexual
enjoyment.22 The type of operation performed
was the radical surgery of castration in males and ovariotomy in females,
which caused major physiological changes in many of the inmates. The radical
surgery was recommended because it would "limit lewdness and vice."23
"All sexual desires have been lost and they are impotent in every sense
of the word."24
Sterilization received legal authorization in 1913 with a statute25
permitting the sterilization of state inmates, including "habitual
criminals."26
The law was revised in 191727 allow
sterilization of any inmate of a state institution, including prisons and
reformatories, whose "mental or physical condition" would be thought
to benefit from the operation.28
The sterilization law unanimously was upheld in 1928 by the Kansas Supreme
Court in the case of State ex rel. Smith v. Schaffer.29
Through the end of 1934, there had been 1,362 sterilizations in Kansas,
with about 19% of them via the radical procedures of castration or
oophorectomy, Kansas being one of the few states whose law permitted them.30
Summary Period: Kansas courts read the term "crime against
nature" broadly to include virtually all eroticism. The state adopted
a sterilization law after one state institution took it upon itself to
perform such operations without statutory authorization. Kansas, unlike
most states, performed a large number of the extreme forms of
sterilization—castration and oophorectomy. The law permitted
sterilization of anyone whose "mental or physical condition"
would benefit from such an operation, and the law’s constitutionality
was sustained by the Kansas Supreme Court.
The Kinsey Period, 1948-1986
I. Sodomy
In 1953, Kansas passed a psychopathic offender law31
with the large net covering
any offense against public morals and decency, as relating to crimes
pertaining to sex, in which perversion or mental aberration, appears to be
or is involved[.]32
Another case dealing with fellatio came to the Kansas Supreme Court in
1953. In State v. Fletcher,33 the Court
again rejected a request to overrule the Hurlbert decision.34
It also upheld the introduction into evidence of certain "physical
culture literature" and photographs "showing unnatural sexual
intercourse and other lewd conduct" that had been admitted only to show
the "character, habits, motives, disposition, and practices of the
appellant[.]"35
In 1954, the solitary reported case leading to a victory for the defendant,
State v. Bereman,36 was decided. The
Kansas Supreme Court unanimously ruled that solicitation to commit an act of
sodomy did not constitute an attempt to commit it.37
The psychopathic offender law was upheld twice, first by the Tenth Circuit
Court of Appeals in 1965, in Cullins v. Crouse,38
and in 1967 by the Kansas Supreme Court in State v. English.39
The psychopathic offender law received a revision in 196840
that permitted deferral of sentence until the judge could determine "what
disposition shall be made of the defendant."41
A comprehensive revision of the state’s criminal code in 196942
reduced sodomy from a felony to a misdemeanor, with a penalty of up to six
months in jail and/or a $1,000 fine,43 but made
a distinction in that the conduct would be criminal only between people of the
same sex,44 something untrue of any other
jurisdiction in the United States at the time. This is despite the claim of
the Judicial Council, which had recommended the new code, that the law was
similar in wording and penalty to those of other states revising their codes
during the same era.45
Also based on spurious claims was the code’s new vagrancy law.46
It included a provision prohibiting loitering "on the streets or in a
place open to the public with intent to solicit for immoral purposes[.]"47
The penalty for this was almost the same as for sodomy. The Judicial Council’s
justification for this law noted that
[e]very society has its misfits. They often constitute more of an
annoyance than a menace to the community...It is a peculiar characteristic
of such laws that they traditionally punish being such a person rather
than an act done by him.48
Thus, this law’s purpose as status legislation is clear. Also clear was
the law’s hostility to civil liberties. The Council’s statement about the
law continued.
The vagrancy concept is a useful one for law enforcement officers. It
enables them to make cases against undesirables without evidence of a
specific crime...In brief, such laws are generally used by the police as a
means of control of undesirables in the community.49
In 1970, the psychopathic offender law was repealed.50
A bill to repeal the sodomy law was introduced into the Kansas Senate in
1976 and passed that chamber by a razor-thin margin of 21-19. The bill failed
to be considered by the House.51
A 1980 case shows the dangers of assuming the worst about an adult who
engages in sexual relations with a consenting minor. In State v. Lovelace,52
the Kansas Supreme Court upheld the sodomy conviction of a man for consensual
fellatio with a boy of 14 who initiated contact with the adult. The boy had
requested nude magazines, and selected both Honcho and Blueboy,
among others. Mentioning that he "gets hard" when viewing the
photos, the boy voluntarily removed his pants so that Lovelace could rub his
penis while it was erect. Later, the boy spent the night at Lovelace’s
house, sleeping alone on the couch, where Lovelace came and rubbed and then
sucked the boy’s penis. The boy claimed to be shocked by the action, but did
nothing, and fell back asleep, staying until morning. When he left, he
notified his parents, who had Lovelace arrested.53
For what arguably was consensual activity, Lovelace received a sentence of 45
years-life plus 15 years.
Lovelace tried to have his life sentence reduced. He and two others
convicted of other crimes all lost out when the Kansas Supreme Court
unanimously denied their motions in the 1990 case of State v. Carmichael et
al.54
Another revision of criminal laws in Kansas55
in 1983 apparently was designed to clean up the sloppy code from 1969. The
crime of sodomy was changed to "criminal sodomy,"56
perhaps as a reminder that only that between people of the same sex was
illegal. In addition, Kansas added a sodomy provision to the state’s incest
law,57 so that consensual relations with a
relative of the same sex also would be criminal.
In 1986, Kansas supplemented its sodomy law with an amendment to the state’s
obscenity law58 outlawing the sale,
manufacture, distribution, or advertising of any "obscene device."
This was defined as
a device, including a dildo or artificial vagina, designed or marketed
as useful primarily for the stimulation of human genital organs.59
The law did not include purchase, possession, or use of such devices.
II. Sterilization
By the end of 1948, the number of sterilizations had reached 3,001, the
third-highest total of any state in the nation, 113 of them persons other than
retarded or insane.60
Another report on the sterilization law,61
issued in 1953, gave a little different history. It said that no
sterilizations had been performed in the state in the preceding three years,
and that 2,851 total operations had been performed, 150 fewer than the earlier
report. In addition, this second report claimed that all of those
sterilized were either mentally ill or retarded,62
then said, in contradiction, that the law had been used against a number of
people apparently on punitive grounds.63 A
small sample of Kansas physicians (14) revealed unanimous opposition to
the law.64 One belief as to the cause of the
sudden death of the sterilization law was the filing of a lawsuit in federal
court in 1950, a suit pending at the writing of the article.65
The sterilization law was repealed in 1965.66
Apparently there are no records remaining on the number of persons
sterilized in Kansas by category, making it impossible to know how many Gay
men or Lesbians were subjected to it.67
Summary Period: Kansas remained resistant to the Kinsey view of
sex. An extremely broad psychopathic offender law was enacted by the state
during the McCarthy era, one that covered any "offense against public
morals and decency." When, after the Model Penal Code was recommended
and Kansas revised its criminal code, the state did not follow the Code’s
recommendations. Instead, Kansas began an unfortunate trend in 1969 by
limiting the applicability of the law only to acts performed between
persons of the same sex. Kansas also remained one of the most enthusiastic
of states on the issue of sterilization. By the end of 1948, it ranked
third among all states in the number of persons sterilized, far higher
than its population rank. It was not until a lawsuit was filed against the
law in the 1950s that the procedure came to an end.
The Post-Hardwick Period, 1986-Present
In 1989, in State v. Moppin,68 the
Kansas Supreme Court decided by a vote of 6-1 that cunnilingus did not
constitute a violation of the state’s sodomy law. "We conclude that
cunnilingus is not an act of "sodomy" as that term is defined by
statute[.]"69 No analysis was given. The
practical application of this decision is that, even though the Kansas sodomy
law applied on its face to people of the same sex, only Gay men could be
prosecuted under it.
The Kansas legislature reacted swiftly to this decision. In 1990, it
enacted a statute70 to amend the sodomy law to
include "oral-genital stimulation between the tongue of a male and the
genital area of a female[.]"71 This law
bluntly excluded relations between two women from its scope, but also
reinstated criminal penalties for a single form of consensual sodomy between
persons of the opposite sex.
In 1990, in State v. Hughes,72 the
Kansas Supreme Court unanimously affirmed a trial court’s determination that
the state law covering "obscene devices" such as dildos and
artificial vaginas was unconstitutionally overbroad. The only defense witness
at his trial was a psychologist who testified to the value of sex toys for
therapy for people with various sexual dysfunctions.73
The court concluded that the law was unconstitutional as it applied to
prescription by medical professionals.74
In the novel 1991 case of State v. Waterberry,75
the Kansas Supreme Court unanimously rejected the contention of a man that the
information he faced should have specified that he was not married to his male
partner, since the Kansas sodomy law is discriminatory and, if he were married
to him, he couldn’t be prosecuted. The Court found that Waterberry and his
partner could not have been married, since they both were male.76
Showing again what a sloppy legislature Kansas has, in 1991, the sodomy law
was amended again77 to "correct" the
errors of the 1990 law in criminalizing heterosexual cunnilingus and keeping
legal Lesbian cunnilingus. The new statute revised the definition of the oral
portion of the sodomy proscription to "oral contact or oral penetration
of the female genitalia or oral contact of the male genitalia[.]"78
In 1992, a new sodomy law was enacted79 that
established an age limit of 16 for variation between misdemeanor and felony
activity.80
In 1992, in State v. Fore,81 the
Kansas Court of Appeals unanimously ruled that mistake as to age of a
consenting post-pubertal minor was no defense.
The revision to the sodomy law enacted in 1992 was repealed in 199382
before it had a chance to become effective.
In 1993, Kansas amended its obscene devices law83
to exclude "such devices disseminated or promoted for the purpose of
medical or psychological therapy."84
Summary Period: Kansas has shown no inclination to repeal its
sodomy law. The Kansas Supreme Court interpreted the law as not outlawing
cunnilingus. The legislature quickly responded with a statute that,
probably unwittingly, made only heterosexual cunnilingus illegal. It then
moved to "correct" that problem by eliminating the gender
references.
Footnotes
1 10 Stat. 277, enacted May 30, 1854.
2 Statutes of Kansas Territory 1855,
(Shawnee M. L. School:John T. Brady, 1855), page 284, §7. The date of
enactment is not provided. The preface (page vii) states that the
legislative session began on July 22 and the preface itself is dated
Nov. 1, 1855.
3 Territorial Laws 1859, ch. 28,
§222, enacted Feb. 3, 1859.
4 40 P. 659, decided June 8, 1895.
5 Id. at 661.
6 234 P. 945, decided Apr. 11, 1925.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id.
12 Id. The Nebraska case was Kinnan
v. State (q.v.). The Kansas court also misspelled "Kinnan"
as "Kinman" in its opinion.
13 42 P.2d 943, decided Apr. 6, 1935.
14 Id. at 944.
15 Id. at 945.
16 Id.
17 Id.
18 Id.
19 Id.
20 F.C. Cave, "Report of
Sterilization in the Kansas State Home for [the] Feeble-Minded," Journal
of Psycho-Asthenics, 15:123-125 (1911).
21 Id. at 123.
22 Id.
23 Id. at 124.
24 Id. Additional information on
the furor of the 1890s sterilization is found in Journal of the
Kansas Medical Society, 23:143-148, at 147 (June 1923).
25 Laws of Kansas 1913, page
525, ch. 305, enacted Mar. 14, 1913. The Governor refused to sign the
law, allowing it to take effect without his signature.
26 Id. §1.
27 Laws of Kansas 1917, page
443, ch. 299, enacted Mar. 13, 1917.
28 Id. §1.
29 270 P. 604, decided Oct. 6, 1928.
30 Abraham Myerson et al., Eugenical
Sterilization: A Reorientation of the Problem, (New York:Macmillan
Company, 1936), pages 12-13.
31 Laws of Kansas 1953, page
334, ch. 185, enacted Apr. 2, 1953.
32 Id. §1.
33 256 P.2d 847, decided May 9, 1953.
34 Id. at 849.
35 Id. at 848.
36 276 P.2d 364, decided Nov. 13, 1954.
37 Id. at 365.
38 348 F.2d 887, decided July 15, 1965.
Rehearing denied Aug. 17, 1965.
39 424 P.2d 601, decided Mar. 4, 1967.
Rehearing denied Mar. 31, 1967.
40 Laws of Kansas 1968, page
652, ch. 344, enacted Mar. 18, 1968.
41 Id. §1.
42 Laws of Kansas 1969, ch. 180,
enacted Apr. 23, 1969, effective July 1, 1970.
43 Id. §21-3505.
44 Id.
45 See note following §21-3506, page
269, Kansas Statutes Annotated.
46 Id. §21-4108.
47 Id. (d).
48 See note following §21-4108, Kansas
Statutes Annotated.
49 Id.
50 Laws of Kansas 1970, page
472, ch. 129, enacted Mar. 17, 1970, effective July 1, 1970.
51 The Advocate, Vol. 185
(Mar. 10, 1976), page 10.
52 607 P.2d 49, decided Mar. 1, 1980.
53 Id. at 52.
54 801 P.2d 1315, decided Dec. 7, 1990.
55 Laws of Kansas 1983, page
650, ch. 109, enacted Apr. 18, 1983.
56 Id. at 652, §5.
57 Id. at 653, §11.
58 Laws of Kansas 1986, page
594, ch. 121, enacted Apr. 25, 1986.
59 Id. at 597, §3(3)(c).
60 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
61 Dwayne L. Oglesby, "What Has
Happened to Kansas’ Sterilization Laws?" 2 U.Kans.L.Rev. 174
(1953).
62 Id. at 176.
63 Id. at 176-177.
64 Id. at 177-179.
65 Id. at 179. The suit is Brown
v. McFarlane et al., docket number KC-70, filed June 6, 1950.
This case is in storage. Correspondence from Charles Frazey, Deputy
Clerk, U.S. District Court of Kansas, Apr. 15, 1997.
66 Laws of Kansas 1965, page
1099, ch. 477, enacted Apr. 13, 1965, effective June 30, 1965.
67 Correspondence from John House,
Kansas Department of Social and Rehabilitation Services, Mar. 11,
1996.
68 783 P.2d 878, decided Dec. 8, 1989.
69 Id. at 882.
70 Laws of Kansas 1990, page
929, ch. 149, enacted May 18, 1990.
71 Id. at 942, §2.
72 792 P.2d 1023, decided May 25, 1990.
73 Id. at 1025.
74 Id. at 1032.
75 804 P.2d 1000, decided Jan. 18,
1991.
76 Id. at 1004.
77 Laws of Kansas 1991, page
633, ch. 86, enacted Apr. 17, 1991.
78 Id. at 634, §2.
79 Laws of Kansas 1992, page
1922, ch. 298, enacted May 22, 1992, effective July 1, 1993.
80 Id. at 1932, §23.
81 843 P.2d 292, decided Dec. 11, 1992.
Review denied Feb. 3, 1993.
82 Laws of Kansas 1993, page
1179, ch. 253, at 1205, §28, enacted Apr. 22, 1993, effective Apr. 29,
1993.
83 Laws of Kansas 1993, page
1179, ch. 253, enacted Apr. 22, 1993, effective Apr. 29, 1993.
84 Id. at 1194, §(C)(3).
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