The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Mississippi
"[Fellatio] is unnatural, detestable, and
abominable."
The Post-Revolution Period, 1776-1873
The 1798 Organic Law for the Mississippi Territory made no
provision for criminal law.1
The first code of laws for the Territory, known as Sargent’s
Code, was adopted in 1799.2
It included a criminal code that was silent both as to sodomy and common-law
crimes.
However, in a code adopted in 1802,3
Mississippi recognized common-law crimes, thus making sodomy a capital
offense.
This remained the only law dealing with sodomy until 1839
when Mississippi adopted a new criminal code4
that contained a sodomy law with a maximum penalty of 10 years.5
The law retained the common-law definition of sodomy.
Period Analysis: For its first few years of
existence, Mississippi allowed sodomy. After recognizing common-law crimes
and thus making sodomy a capital offense, no specific sodomy statute was
enacted until 1839. It used the common-law definition and lowered the
maximum penalty to 10 years.
The Victorian Morality Period, 1873-1948
In 1890, Mississippi adopted a new Constitution that
included a section permitting exclusion of the public from trials for sodomy
and a few other crimes.6
The first reported sodomy case was State v. Hill,7
decided by the Mississippi Supreme Court in 1937. The brief, unanimous opinion
stated that cunnilingus did not constitute the "crime against
nature" because penetration of the body was "essential to the
offense."8
In 1942, the Mississippi legislature authorized a
recodification of state law with that power given to the Mississippi Attorney
General.9 The
substitution of just a few words by the Attorney General in exercising that
authority made a major change in state law. The heading over the sodomy law,
formerly called "Crime Against Nature," became known as
"Unnatural Intercourse."10
This change in phraseology not authorized by the legislature led to the
decision of the Mississippi Supreme Court in the next reported case.
Period Analysis: During this time, Mississippi
became the first (and only) state to adopt a provision barring the public
from sodomy trials. A sensational trial must have occurred shortly before
the provision was adopted. Always having used the common-law definition of
the crime, it is not surprising that the Mississippi Supreme Court decided
in its first published sodomy case that cunnilingus did not constitute a
violation of it. A few years later when the laws were recodified, the
wording of the law did not change, but its title did, now being called
"Unnatural Intercourse."
The Kinsey Period, 1948-1986
In State v. Davis,11
the Mississippi Supreme Court, in 1955, ruled unanimously that, because of the
recodification of the archaic law under the heading "Unnatural
Intercourse," a prosecution of fellatio could be sustained.12
In an opinion almost as brief as Hill, the Court decided that fellatio
is unnatural, detestable, and abominable, and we hold
that it was within the intention of the Legislature to make it a felony.13
In 1958, the Mississippi Supreme Court, in the likewise
brief opinion in Taurasi v. State,14
unanimously upheld a conviction for an attempt to commit sodomy while
explicitly rejecting an entrapment defense.15
In 1960, Mississippi enacted a law16
that amended the disturbing the peace statute by adding "indecent, or
offensive, or boisterous conduct" to the list of proscriptions. The
penalty was set at up to $500 and/or up to six months in jail.17
A challenge to the constitutionality of the sodomy law was
rejected unanimously by the Court in the case of State v. Mays,18
decided in 1976. The opinion in this case was only a little longer than the
previous three. Quoting with approval a decision by the U.S. Supreme Court in
upholding the Tennessee law against a vagueness challenge, the Court said that
"[t]he phrase has been in use among English-speaking people for many
centuries[.]"19
Period Analysis: The seemingly innocuous change
in title of the sodomy law had broader implications than may have been
thought. The Mississippi Supreme Court ruled that the new title created a
substantive change in the unchanged wording of the law. It said the law
now outlawed fellatio. The same court rejected a constitutional challenge
to the law in 1976.
The Post-Hardwick Period, 1986-Present
Mississippi enacted an amazing law in 198720
called the "Sex Offense Criminal History Record Information Act."
Its purpose was to create a central registry with the State Attorney General
of all persons in the state who ever had been convicted of certain sex crimes,
including sodomy.21
Employers, including private employers, were permitted to request information
from the Attorney General’s registry on any employee and were given power to
make employment decisions, including whether to fire an employee, based on the
existence of a previous conviction for consensual sodomy or other listed sex
crimes.22 The
Attorney General also was empowered to obtain information from other states
about any Mississippi resident.23
The only civil liberties inclusions were that the employer had to safeguard
the information received and destroy it within 30 days of receipt24
and that no information could be obtained without a signed consent from the
employee.25
However, another section made it a "right" of any employer or
prospective employer to collect such information,26
meaning that consent from an employee was a formality. Employees refusing to
give consent obviously could be fired or not hired merely on that ground.
Employers were entitled not only to information about a single conviction, but
also to two or more arrests for a sex offense, whether or not a
conviction ever was obtained.27
In early 1994, a news report said that residents in one
small town in Mississippi circulated petitions to urge the enforcement of the
Mississippi sodomy law.28
This was aimed at Gay and Lesbian people, but the Mississippi law is neutral
both as to gender and marital status, so the anti-Gay people unwittingly were
urging prosecution of themselves.
That law was upheld by the Mississippi Supreme Court in
1994 in the case of Miller v. State29
in an 8-0 vote. Despite a previous decision, involving a Jehovah’s Witness,
finding a right of privacy in the Mississippi Constitution even without
textual support for it, the Court rejected Miller’s claim because he
"does not contend acts of sodomy are rooted in his religious
beliefs."30
Without explaining why it said this, the Court went on to acknowledge the
possibility that a right of privacy for consensual sodomy might exist. Miller’s
claim had to fail, however, because he engaged in consensual activity with a
17-year-old.31 The
Court also rejected Miller’s vagueness claim, citing the Mays case.32
Miller also argued that the "penetration" requirement of sodomy
could not be fulfilled by performing fellatio, since he was not doing the
penetrating. The Court answered that, because of Hill, the statute no
longer was limited to "sodomy," but instead embraced "unnatural
intercourse." Therefore, the Court "necessarily abandoned" any
penetration requirement.33
The Court hinted that, due to the change in the law in 1942, cunnilingus might
now be indictable, but did not address the issue specifically.34
In 1995, Mississippi enacted a sex offender registration
law.35 The law
includes convictions for sodomy and requires those convicted of sodomy to
register with sheriffs and notify sheriffs of any change of address.
The sodomy law,36
common-law reception statute,37
and indecent conduct law38
remain on the books. In addition, case law in the state is that repeal of a
statute in derogation of the common law revives the common-law provision on
the subject.39
Period Analysis: The sodomy law’s
constitutionality was sustained again in 1994, showing that little of the
Gay and Lesbian rights movement has entered the Mississippi Supreme Court’s
consciousness. All of the antique sex regulatory laws remain on the books,
showing that the Mississippi legislature also has not been touched by the
movement.
Footnotes
1 1 Stat. 549, enacted Apr.
7, 1798.
2 Sargent’s Code. A
Collection of the Original Laws of the Mississippi Territory Enacted
1799-1800 by Governor Winthrop Sargent and the Territorial Judges, (Jackson:Historical
Records Survey, 1939). The code was enacted Feb. 28, 1799.
3 There are numerous
references to this code in later codes, but no copy of it is known to exist.
It was enacted in June, 1802.
4 Laws, State of
Mississippi 1839, page 102, ch. 66, enacted Feb. 15, 1839.
5 Id. at 162, §20.
6 Mississippi Constitution
of 1890, §26, adopted Nov. 1, 1890.
7 176 So. 719, decided Nov.
1, 1937.
8 Id. at 729.
9 General Laws of the
State of Mississippi 1942, page 418, ch. 318, enacted Mar. 23, 1942.
10 Mississippi Code
1942, §2413.
11 79 So.2d 452, decided
Apr. 11, 1955.
12 Id. at 452-453.
13 Id.
14 102 So.2d 120, decided
Apr. 14, 1958.
15 Id.
16 General Laws of the
State of Mississippi 1960, page 369, ch. 254, enacted May 5, 1960,
effective immediately.
17 Id. §1.
18 329 So.2d 65, decided
Mar. 16, 1976. Rehearing denied Apr. 13, 1976.
19 Id. at 66.
20 General Laws of the
State of Mississippi 1987, page 377, ch. 465, enacted Apr. 14,
1987, effective July 1, 1987.
21 Id. at 379,
§3(i).
22 Id. at 380, §4.
23 Id. §5.
24 Id. §6.
25 Id. §7(2)(d).
26 Id. §7(2)(f)(ii).
27 Id. §7(4)(c).
28 Washington Blade,
Jan. 14, 1994, page 17.
29 636 So.2d 391, decided
Apr. 14, 1994. Modified on denial of rehearing June 9, 1994.
30 Id. at 394.
31 Id.
32 Id. at 394-395.
33 Id. at 396.
34 Id.
35 General Laws of the
State of Mississippi 1995, page 823, ch. 595, enacted Apr. 7, 1995.
36 Mississippi Code
Annotated (1972) §97-29-59.
37 Mississippi Code
Annotated (1972) §99-7-1.
38 Mississippi Code
Annotated (1972) §97-35-15.
39 City of Jackson v.
Wallace, 196 So. 223 at 225, decided May 20, 1940.
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