The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Kentucky
"[T]he word ‘sodomy’ is derived from the city of
Sodom, where the crime against nature had its origin, and was universally
prevalent until that city was destroyed by the wrath of God."
The Post-Revolution Period, 1776-1873
The first Kentucky Constitution, adopted in 1792,1
received all laws of Virginia that existed as of June 1, 1792.2
This included the English buggery statute that applied only to males.3
In 1798, the Kentucky legislature adopted a statute, "An Act to amend
the Penal Laws of this Commonwealth."4 The
penalty for sodomy was changed to 2-5 years in the jail and penitentiary
house.5
Period Summary:
Kentucky passively
obtained its first law against sodomy upon creation by being given
Virginia laws. The state adopted its own sodomy law a few years later and
set the penalty at a maximum of five years rather than the death sentence
possible under the earlier law. There are no published sodomy cases during
this era.
The Victorian Morality Period, 1873-1948
The curious case of Commonwealth v. Hardin6
was decided in 1880. In this undetailed case, William Hardin was freed from an
indecent exposure charge when the court noted that the charge did not say the
exposure "was made without the consent of those witnessing it."7
The gender of the two "persons" to whom Hardin exposed himself was
not specified.
More than a century passed before any reported case appeared under the
sodomy statute. In 1903, the Kentucky Court of Appeals, deciding the case of White
v. Commonwealth,8 rejected the defendant’s
contention that a trial court needed to advise the jury of the "specific
acts that constitute the offense."9 The
Court admonished the defendant that "[e]very person of ordinary
intelligence understands what is meant by a charge of sodomy"10
and rejected the defendant’s claim that emission of semen was necessary.11
In 1909, the same court was faced with a different question of law in Commonwealth
v. Poindexter et al.12 C.H. Poindexter and
Frank Moore had been convicted of sodomy for engaging in fellatio. A unanimous
decision written by Chief Justice W.E. Settle sustained a decision of a lower
appellate court that fellatio was not contemplated by the term "crime
against nature."13 The decision came,
however, after a substantial amount of moralizing by the Court. The
acts charged against the appellees are so disgusting that we refrain
from copying the indictment in the opinion.
14
The word "sodomy" was derived
from the city of Sodom, where the crime against nature had its origin,
and was universally prevalent until that city was destroyed by the wrath
of God.
15
The Court apparently believed that two males who engaged in such activity
were not human beings. The act could be committed "between two human
beings, or man and man[.]"16 After
reviewing ancient writers and case law in the United States,17
the Court decided that fellatio was not a violation of the sodomy law, but
stated that it was
unable to see why the act with which appellees stand charged is not as
much a crime against nature as if done in the manner sodomy is usually
committed; but as the only authorities we have been able to discover
decide otherwise, we regard it our duty to follow precedent, and for this
reason alone we hold that the circuit court properly held the indictment
bad, and dismissed it. It is to be hoped, however, that the Legislature
will by proper enactment make such an infamous act as that of which
appellees confess themselves guilty a felony and punishable as such.
18
A puzzling guide about the sodomy law was published for judges and
attorneys in 1918.19 The section on sodomy made
contradictory statements. Attempting to define sodomy, buggery, and
bestiality, the guide stated, in the same chapter, that the three terms were
synonymous and that "sodomy is not bestiality."20
In addition, sodomy was unnatural copulation with man or beast, but it also
was only unnatural copulation between humans.21
Therefore, it was unclear just what was considered to be the crime in
Kentucky.
Period Summary:
Case law on sodomy
appeared during this era. One case disposed of a challenge by claiming
that everyone knew what constituted sodomy, but another just a few years
later held that an act of fellatio did not violate the law. The Kentucky
Supreme Court made religious appeals in its decision and urged the
legislature to change the law, but that did not occur for more than fifty
years. A legal guide published during this era showed a great deal of
confusion as to what acts were considered violations of the law.
The Kinsey Period, 1948-1986
Despite Poindexter, it was not until 1962 that any change in the law
was made.22 It became illegal for anyone over
the age of 17 to engage in "any indecent or immoral practices with the
body or organs" of anyone over the age of 15. The penalty was set at 1-5
years.23 This obviously would cover virtually
any consensual erotic activity.
No more sodomy cases occurred until 1968 with United States v. Milby,24
a case prosecuted under the Assimilative Crimes Act because the sex in
question occurred on a U.S. military reservation. In a case of a sexual
assault of a young male by four other young males, a question was raised as to
whether the acts perpetrated met Kentucky’s definition of sodomy—anal
penetration.25 Mentioning an unspecified
"equally odious" sexual act of Milby’s,26
the Court conceded that it may not constitute sodomy under Kentucky law, but
he still could be punished as an aider and abettor of sodomy.27
In 1974, the legislature adopted a comprehensive criminal code revision,28
the first revision of the sodomy law in 176 years. The new code abolished
common-law crimes29 and made "deviate
sexual intercourse with another person of the same sex" criminal.30
The definition of deviate sexual intercourse included "any act of sexual
gratification...involving the sex organs of one person and the mouth or anus
of another."31 The penalty was reduced to
a misdemeanor with a maximum penalty of 12 months in prison and/or a fine of
$500.32
In a 1977 case, Cooper v. Commonwealth,33
the Kentucky Supreme Court ruled unanimously that it was irrelevant under
state law that the alleged victim of a sodomitical assault may have been
homosexual.34
In 1980, the Kentucky Supreme Court ruled, in Gregory v. Commonwealth,35
that circumstantial evidence could be used to prove penetration.36
Justice Robert Lukowsky, writing for the Court, also gave his expert opinion
that one of the boys in the case had a "very large relaxed
sphincter" which Lukowsky said, without citations, was "a common
condition in male homosexuals."37
Period Summary:
Kentucky moved slowly
after the Kinsey reports and the Model Penal Code appeared. In 1962, more
than a half-century after the Kentucky Court of Appeals held that oral sex
did not constitute a violation of the sodomy law, a vague statute covering
"immoral or indecent practices" was enacted. This law was broad
enough to cover practically any erotic activity. The Kentucky sodomy law
was the oldest one in the nation when it was revised in a new code in 1974
that lowered the penalty to a misdemeanor and made the law applicable only
to same-sex activity.
The Post-Hardwick Period, 1986-Present
A state trooper was convicted in 1991 of consensual sodomy with an
assistant school principal based only on the charge of "another trooper’s
mother."38
In 1992, in Commonwealth v. Wasson,39
the Kentucky Supreme Court, by a 4-3 vote, decided that the consensual sodomy
law was unconstitutional as both a violation of the right to privacy and equal
protection of the law. The majority found important the fact that Wasson had
secured seven expert witnesses at his trial, each representing a different
professional discipline, and each of whom had given impressive testimony.40
The Commonwealth of Kentucky
on the other hand, presented no witnesses and offers no scientific
evidence or social science data. Succinctly stated, its position is that
the majority, speaking through the General Assembly, has the right to
criminalize sexual activity it deems immoral, without regard to whether
the activity is conducted in private between consenting adults and is not,
in and of itself, harmful to the participants or to others; that, if not
in all instances, at least where there is a Biblical and historical
tradition supporting it, there are no limitations in the Kentucky
Constitution on the power of the General Assembly to criminalize sexual
activity these elected representatives deem immoral. [Emphasis added].
41
The Commonwealth and the Supreme Court concurred in an error that Kentucky
had criminalized sodomy only in 1860,42 whereas
it had been criminal in Kentucky since 1792. (See the beginning of this
chapter). Justice Charles Leibson, writing for the majority, rejected the
argument that the Hardwick decision foreclosed the issue for the state43
and that the state’s privacy guarantee was no broader than that of the
federal constitution. In fact, he recited a long string of case law on the
subject that the Commonwealth attempted to overlook.44
The U.S. Supreme Court’s Hardwick decision was "a misdirected
application of the theory of original intent."45
Leibson pointed out that the U.S. Supreme Court had struck down the nation’s
anti-miscegenation laws, even though they had as equally "ancient
roots" in the law as anti-sodomy laws.46
As far as equal protection is concerned, no better result could have occurred
than Leibson’s magical words. The majority
need not speculate as to whether male and/or female homosexuals will be
allowed status as a protected class if and when the United States Supreme
Court confronts this issue. They are a separate and identifiable class for
Kentucky constitutional law analysis because no class of persons can be
discriminated against under the Kentucky Constitution. All are
entitled to equal treatment, unless there is a substantial governmental
interest, a rational basis, for different treatment. [Emphasis added].
47
Thus, Gay men and Lesbians are part of a "suspect class" under
Kentucky law, a decision with spectacularly broad implications in
discrimination and child custody cases. The sodomy law punishes people
"because they are different rather than because of what they are
doing."48 The arguments put forth by the
Commonwealth to justify the law were "simply outrageous."49
The Court could
attribute no legislative purpose to this statute except to single out
homosexuals for different treatment for indulging their sexual preference [sic]
by engaging in the same activity heterosexuals are now at liberty to
perform. By 1974 [when the current law was enacted] there had already been
a sea change in societal values insofar as attaching criminal penalties to
extramarital sex. The question is whether a society that no longer
criminalizes adultery, fornication, or deviate sexual intercourse between
heterosexuals, has a rational basis to single out homosexual acts for
different treatment. Is there a rational basis for declaring this one type
of sexual immorality so destructive of family values as to merit criminal
punishment whereas other acts of sexual immorality which were likewise
forbidden by the same religious and traditional heritage of Western
civilization are now decriminalized? If there is a rational basis for
different treatment it has yet to be demonstrated in this case. We need
not sympathize, agree with, or even understand the sexual preferences [sic]
of homosexuals in order to recognize their right to equal treatment before
the bar of criminal justice.
50
Justice Combs wrote an eloquent concurring opinion although he joined
Leibson’s strong majority opinion. Combs asked
whether a majority, believing its own happiness will be enhanced by
another’s conformity, may not enforce its moral code upon all. The
answer is that, first, morality is an individual, personal—one might
say, private—matter of conscience, and dwells inviolate within the
fortress of [the privacy provision of the Kentucky constitution].
51
Writing a dissent, Justice Lambert, joined by Justice Reynolds, whined that
the majority
has found it necessary to disregard virtually all of recorded history, the
teachings of the religions most influential on Western Civilization,
the debates of the delegates to the Constitutional Convention, and the
text of the Constitution itself. [Emphasis added. Citation omitted].
52
Ordinarily, courts favor the legal doctrine of stare decisis, that
of following previous court opinions on subjects to adopt a continuous rule of
law on an issue. Lambert found the majority’s following of that doctrine
from previous privacy-related cases to be too much for him to stomach. The
fact that a previous Kentucky Supreme Court
broadly declared a right of privacy prior to World War I in cases which
one suspects were influenced by local economic forces does not mean that
such a doctrine should be applied in the extreme nearly a century
later to a moral question not remotely considered by the Campbell
court. [Emphasis added].
53
Thus, Lambert’s reference to "a moral question" that was an
"extreme" application of stare decisis showed that his
distress with the court’s decision rested on more than legal issues. Lambert
also noted that a rational basis for a discriminatory sodomy law was
protection of the public health. "This objective found new vitality with
the emergence of the AIDS epidemic which indisputably originated in
this country in the homosexual community." [Emphasis added].54
The Wasson decision would be regarded as "the imprimatur of
Kentucky’s highest court upon homosexual conduct."55
He concluded: "Where the slippery slope may lead is anybody’s guess,
but the ramifications of this decision will surely be profound."56
A breathless dissent by Justice Wintersheimer began by arguing that Wasson had
been convicted of public solicitation, not private sodomy, so that the
majority’s opinion was misdirected.57 Despite
the majority’s stern dismissal of the Commonwealth’s testimony,
Wintersheimer said that it was "indisputable" that
homosexuals are more promiscuous than heterosexuals; that infectious
diseases are more readily transmitted by anal sodomy than by any other
form of sexual copulation; and that homosexuals account for 73 percent of
all AIDS cases in this country. Clearly the interest of all Kentuckians in
protecting public health, safety and morals are at issue. The necessity
for controlling such behavior prevails over any equal protection
challenge.
58
In that hysterical missive, Wintersheimer first apparently assumed that
anal sodomy was a homosexual phenomenon only, that the general lack of AIDS in
Lesbians was irrelevant to his argument, and that discrimination was justified
because of prejudice. Wintersheimer repeated his belief that "the AIDS
virus supports the legitimate exercise of governmental police power by the
legislature in banning sodomy,"59 but did
not explain why opposite-sex sodomy was legal. Wintersheimer also stated that
in Kentucky, where "homosexual sodomy" was illegal, there were
"relatively few cases of AIDS,"60
thus apparently believing that this law prevented sexual activity. He repeated
the "73 percent" reference two more times in his dissent, showing
the focus of his thinking.
The age of consent for sodomy is 16.61
One state legislator announced plans to amend the state constitution during
the 1994 legislative session to prohibit anal sex between unmarried persons,
but not either vaginal or oral sex. He said it was only for purposes of
preventing sexually transmitted diseases. The Kentucky chapter of the American
Civil Liberties Union announced it would fight the effort.62
The effort failed when the legislature returned a proposed amendment to
committee before adjourning.63
Period Summary:
Kentucky made up for its
slow movement through the 19th and earlier 20th centuries. In 1992, the
Kentucky Supreme Court handed down a landmark decision that the sodomy law
was an unconstitutional violation both of privacy and equal protection of
the laws. The sweeping language used by the Court labeled Gay men and
Lesbians as suspect classes under Kentucky law, something that has very
broad implications for areas of law such as government employment and
child custody. Kentucky thus is the only state in the nation currently
where Gay men and Lesbian have received such a legal standing.
Footnotes
1 Littell & Swigert,
eds., Digest of Kentucky Statute Law, Vol. 1, (Frankfort:Kendall
& Russell, 1822), page 36, §8.
2 Id.
3 The Statutes at Large
Being a Collection of All the Laws of Virginia from the First Session of
the Legislature in the Year 1619, (Richmond:William Waller Hening,
1810), Chapter II, page 143, enacted Mar. 23, 1661.
4 Digest of the Statute
Laws of Kentucky of a Public and Permanent Nature, Vol. II, (Frankfort:Albert
G. Hodgen, 1834), page 1264, enacted Feb. 10, 1798.
5 Id. at 1265, §4.
6 10 Ky. Opin. 925,
decided Dec. 9, 1880.
7 Id.
8 73 S.W. 1120, decided
May 5, 1903.
9 Id.
10 Id.
11 Id.
12 118 S.W. 943, decided
May 7, 1909.
13 Id. at 944.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 R.S. Rose, ed., Kentucky
Criminal Law Procedure and Forms, Vol. I, (Cincinnati:W.B. Anderson
Co., 1918).
20 Id. at 331,
§535.
21 Id. §535 and
536.
22 Kentucky Acts 1962,
page 1035, ch. 298, enacted Mar. 29, 1962. The law became effective
without the signature of the Governor.
23 Id. §2.
24 400 F.2d 702, decided
Sep. 25, 1968.
25 Id. at 705.
26 Id. at 706.
27 Id.
28 Kentucky Acts 1974,
page 831, ch. 406, enacted Apr. 2, 1974, effective Jan. 1, 1975.
29 Id. §2.
30 Id. at 847,
§90.
31 Id. at 846,
§81.
32 Id. §274.
33 550 S.W.2d 478,
decided Jan. 28, 1977.
34 Id. at 480.
35 610 S.W.2d 598,
decided Nov. 25, 1980.
36 Id. at 599.
37 Id.
38 Washington Blade
Apr. 5, 1991, page 21.
39 842 S.W.2d 487,
decided Sep. 24, 1992. Rehearing denied Jan. 21, 1993. The case dragged on
for some six years because of a dispute as to whether Kentucky could
appeal the dismissal of charges against Wasson. An appellate court decided
that it could, which sent the case back to the second level of court for a
decision. See Commonwealth v. Wasson, 785 S.W.2d 67, decided Jan.
12, 1990. The Kentucky Supreme Court’s Wasson decision was the
lead story in the Winter 1992-1993 issue of Civil Liberties.
40 842 S.W.2d, at
488-489.
41 Id. at 490.
42 Id. at 490-491.
43 Id. at 490-492.
44 Id. at 492-497.
45 Id. at 497.
46 Id.
47 Id. at 500.
48 Id. at 501.
49 Id.
50 Id.
51 Id. at 502-503.
52 Id. at 503.
53 Id. at 505.
54 Id. at 508-509.
55 Id. at 509.
56 Id.
57 Id. at 509-510.
58 Id. at 511.
59 Id. at 516.
60 Id.
61 Kentucky Revised
Statutes, §510.020(3)(a).
62 Washington Blade,
Oct. 30, 1992, pages 32-33.
63 Washington Blade,
Mar. 25, 1994, page 18.
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