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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
Nebraska
"[P]rotection...from the sexual depravity of moral
perverts is as essential as the protection of human life from the
homicidal tendency of assassins."
The Post-Revolution Period, 1776-1873
The Organic Act for Nebraska1 made no
provision for criminal laws.
However, the first legislature enacted a law in 18552
that adopted the common law of England. Nebraska also adopted many laws of
Iowa3 but, since Iowa had no sodomy law, the
common-law statute was controlling. This technically made sodomy a capital
offense.
A new criminal code adopted in 18584
established a sodomy penalty of one year-life with a common-law definition.5
The crime was complete upon penetration.6
Period Analysis: Although Nebraska was given no criminal laws by
Congress when the territory was organized, Nebraska’s first legislature
adopted all laws of Iowa as well as common-law crimes. Iowa, at this time,
did not have a sodomy law, so the common-law statute governed and,
therefore, consensual sodomy became a capital offense in the state. A new
code adopted in 1858 eliminated the reference to common-law crimes, but
used a common-law definition of the crime of sodomy and allowed a maximum
of life imprisonment for its commission.
The Victorian Morality Period, 1873-1948
I. Sodomy
The Nebraska Supreme Court was asked to interpret the scope of this law in
its first published sodomy case, Kinnan v. State,7
decided in 1910. Jess Kinnan had been arrested on a charge of forcing a woman
to fellate him and appealed his conviction on the ground that fellatio did not
constitute the "crime against nature." After reviewing decisions of
several states that decided that fellatio was not such a crime,8
misinterpreting cases from Iowa and Ohio,9 and
determining that the state did not recognize common-law crimes,10
the Court ruled unanimously that fellatio did not violate the sodomy law.11
The Court could not make its decision without at least one moralizing
statement.
It is to be regretted that acts so infamous and disgusting have not
been declared to be a felony by the Legislature of this state, and we
trust that the lawmakers will speedily remedy this defect.
In a somewhat speedy remedy, the legislature adopted a statute12
in 1913 that reduced the maximum penalty for sodomy from life to 20 years and
copied the Ohio and Iowa laws (q.v.) prohibiting "carnal
copulation" in "any opening of the body except sexual parts."13
This wording covered fellatio, but not cunnilingus. The law included an
emergency clause, so that it would take effect immediately.14
Why the "emergency" took three years to correct is unspecified.
In the next reported case, in 1925, Abbott v. State,15
the Nebraska Supreme Court unanimously upheld the conviction of a small-town
physician for sodomy with a female child. During his trial, a young man
testified that Abbott had committed "pederasty" on him several years
before.16 The Court gave its reasons for
upholding the right of a trial court to introduce unrelated earlier acts. The
crime of sodomy was of "peculiar and shocking enormity" and the
"criminal impulse" leading to the acts is "unnatural and
unusual." Anyone committing such an act was undoubtedly a "carnal
pervert."17
In 1926, the Court received a very unusual case in Clark v. State.18
Leon Clark, a businessman in the town of McCook, had been convicted of sodomy
with one Ted Pate. Pate died from syphilis and, shortly before his death, he
informed his mother that the illness was contracted from "unnatural
intercourse" with Clark.19 By a vote of
4-2, the Court overturned the conviction because the general rule in English
and U.S. law was that dying declarations were permissible as evidence only in
cases of homicide.20 In dissent, Justice
William Rose saw little distinction between murder and sodomy. He did not
believe that such a dichotomy was "based on logical or justifiable
distinctions."21 The
protection of innocent children, both male and female, from the sexual
depravity of moral perverts is as essential as the protection of human
life from the homicidal tendency of assassins.22
In 1929, the Nebraska legislature adopted a supplemental statute23
that prohibited making an assault with intent to commit sodomy, with a penalty
of 2-15 years in prison.24
In 1942, the Court was faced with the case of Sledge v. State,25
which asked whether the change in the sodomy law covered fellatio, especially
when the defendant had performed an act of fellatio on another. He relied on
the literal wording of the statute and claimed that, since his sexual organ
was not involved, there was no crime.26
Although the Court was inclined to support his contention, it noted that the
state also had a law prohibiting the aiding or abetting of a crime and
treating it as the same as having committed the principal crime.27
On this ground, the Court unanimously affirmed the conviction.28
II. Sterilization
In 1929, Nebraska amended its therapeutic sterilization law to make it
applicable to more persons.29 This law copied
that of several other states and required quarterly reports to be made to the
board of examiners with the names of all inmates who were "feeble-minded,
insane, habitual criminals, moral degenerates or sexual perverts" and who
were soon to be eligible for parole or release.30
The board could decide to order sterilization of them.31
The constitutionality of this law was upheld by the Nebraska Supreme Court
in the 1931 case of In Re Clayton.32
Through the end of 1934, sterilization had been performed on 276 persons.33
Period Analysis: The Nebraska Supreme Court followed the
earliest courts in finding that fellatio did not constitute a violation of
the sodomy law, although it urged the legislature to act to correct the
situation. A "corrective" law was enacted three years later, one
of the fastest movements of a legislature to criminalize acts of sodomy
courts had held legal. However, the new Nebraska law copied the Ohio and
Iowa laws which, through odd wording, clearly left cunnilingus legal while
outlawing fellatio. Nebraska also adopted a sterilization law and later
expanded it to provide for the sterilization only of males convicted of
certain crimes, including sodomy. The constitutionality of the law was
sustained by the Nebraska Supreme Court.
The Kinsey Period, 1948-1986
In a 1948 case, Redmon v. State,34
the Nebraska Supreme Court unanimously ruled that a defendant had a right to
challenge the general moral character of the prosecuting witness.35
In effect, a victim could "deserve" a sodomitical assault, if of a
generally immoral nature.
Nebraska enacted a psychopathic offender law in 1949.36
This law contained a provision prohibiting its use on a person who was
acquitted of a sexual charge.37
An amendment to the law in 195538 eliminated
the necessity that offenders be "habitual" in their crimes, thus
creating a larger pool of potential arrestees.
A study of the psychopathic offender law was published in 1957.39
Reports from the Nebraska Bar Association revealed that the law was based on
"hysteria."40 A survey indicated that
41 persons had been processed under this law, three of them (7%) for private,
consensual sexual relations with another adult of the same sex.41
It was suggested that officials in different counties used different
definitions of "sexual misconduct." Omaha’s Douglas County, the
state’s largest, which had almost half the total commitments, had none for
private, consensual homosexual activity.42 A
detailed history of some of those committed under the law included
"E," who had been committed for 2½ years for consensual homosexual
activity with an adult. He had been given unspecified "treatment"
and released with the assistance of his attorney.43
"H" had been committed for the same reason. He spent 14 months in a
state hospital and was released to a "friend," with whom he planned
to live.44
The most famous person to be caught under the sodomy law was John Provoo, a
former Army sergeant who had his treason conviction overturned because his
homosexuality had been injected into the trial by the prosecution. In 1958, he
received three years in a reformatory for a "morals charge"
involving an 18-year-old "boy."45
In 1965, the Nebraska Supreme Court, deciding State v. Madary,46
unanimously upheld the constitutionality of the psychopathic offender law.
The psychopathic offender law was revised again in 1971.47
Anyone convicted of any sexual offense now was to be referred for evaluation
as to psychopathy. Such an evaluation was to be mandatory if the person was
convicted of more than one sexual offense.48 If
a person was found to be a psychopath and thought unlikely to benefit from
treatment, then the person was to be committed indefinitely to prison,49
in effect allowing a life sentence for a sex crime that otherwise was
punishable as a lesser offense.
In a 1971 case, State v. Juarez,50 a
man had three male teenagers in his apartment at a drinking party. The teens
all stripped down to their underwear and were kissed and caressed when Juarez,
who apparently couldn’t hold his liquor, began to beat one of them.51
The young man was rescued by his companions who fled and notified police. The
beating victim gave a statement to the police. Although the Court conceded
that the evidence was only circumstantial to an act of sodomy occurring, it
upheld Juarez’s conviction.52
The Nebraska legislature passed a new criminal code in 1977.53
The code repealed the sodomy law and established a varying age of consent of
either 15 or 16.54 Sexual activity could be
only with someone at least of the age of 16, whereas sexual contact (touching)
could be with someone 15 or older.
II. Sterilization
By the end of 1948, the number of sterilizations had more than doubled to
688, although only two were of persons other than insane or mentally retarded.55
The sterilization law was repealed in 1969.56
The state has no records on the number of persons who may have been
sterilized under the law as "moral degenerates or sexual perverts."57
Period Analysis: Nebraska has no published sodomy cases during
the 1950s or 1960s, so details of the enforcement of the sodomy law are
unclear. However, the state did join in the national trend in enacting a
"psychopathic offender" law in the years after World War II. The
law later was expanded so that a first offense could trigger its operation
and the law was criticized by the Nebraska Bar Association. The study
showed that 7% of commitments under the law were for consenting adult Gay
men. The sodomy law was repealed in a revised criminal code adopted in
1977. Nebraska has the distinction of being the only state in the nation
whose sodomy law repeal was enacted over the veto of the Governor.
The Post-Hardwick Period, 1986-Present
In 1991, in State v. Laymon,58 the
Nebraska Supreme Court unanimously sustained the public indecency conviction
of a man who was masturbating in a public restroom, but faced away from the
public area. He had been spied by a shopping mall security man, James
Barker, who saw Laymon from the rear and then moved into a toilet
stall, hoping to entice him. When Laymon responded and masturbated in Barker’s
presence, Barker had him arrested.59 This was
considered sufficient evidence of public indecency by the Court.
A moralistic trial judge led to the 1998 case of State v. Pattno.60
A man who had consensual and ongoing sexual relations with a 13-year-old boy.
Because his partner was below the state’s age of consent, Pattno faced
criminal charges. Before sentencing Pattno, judge George Thompson read from
the Bible passages which he believed condemned homosexuality. The Nebraska
Supreme Court voted 6-0 to vacate Pattno’s sentence and remand the case for
sentencing by another judge. It noted that, because Pattno’s crime was
sexual contact with a minor, not with "another male," the judge’s
comments were irrelevant to his crime and should not have been considered by
the judge.61
The age of consent dichotomy remains in the law today.62
Period Analysis: Nebraska followed case law in the nation that
sexual activity in a restroom is illegal if it occurs outside of an
enclosed stall. In the only reported case in the state, the facts make it
difficult to believe that masturbation actually was seen by the arresting
officer, but the Nebraska Supreme Court found the evidence to be
sufficient to sustain the conviction.
Footnotes
1 10 Stat. 277, enacted May 30, 1854.
2 Nebraska Territorial Laws Jan. 1855,
page 328, enacted Mar. 16, 1855.
3 Laws of Nebraska 1855, pages
55-56, enacted Mar. 16, 1855.
4 Laws of Nebraska 1858, Criminal
Code, enacted on an unspecified date during the legislative session which
ran from Sep. 21 through Dec. 20, 1858.
5 Id. at 48, §48.
6 Id. §47.
7 125 N.W. 594, decided Mar. 10, 1910.
8 Id.
9 Id. The cases from Iowa and Ohio
dealt with the actionability of words imputing sodomy. In both cases, the
state’s highest court ruled that, since there was no law against sodomy,
the words were not actionable. They had nothing to do with the
applicability of sodomy statutes to fellatio.
10 Id. at 595.
11 Id.
12 Laws of Nebraska 1913, page
203, ch. 69, enacted Apr. 8, 1913.
13 Id. §1.
14 Id. at 206, §3.
15 204 N.W. 74, decided May 23, 1925.
16 Id. at 75.
17 Id.
18 211 N.W. 16, decided Nov. 19, 1926.
19 Id.
20 Id. at 16-17.
21 Id. at 17.
22 Id.
23 Laws of Nebraska 1929, page
251, ch. 70, enacted Mar. 22, 1929.
24 Id.
25 6 N.W.2d 76, decided Oct. 30, 1942.
26 Id. at 77.
27 Id.
28 Id. at 78.
29 Laws of Nebraska 1929, page
563, ch. 163, enacted Apr. 29, 1929.
30 Id. at 564, §3.
31 Id. at 565, §4.
32 234 N.W. 630, decided Feb. 11, 1931.
33 Abraham Myerson et al., Eugenical
Sterilization: A Reorientation of the Problem, (New York:Macmillan,
1936), pages 15-16.
34 33 N.W.2d 349, decided July 16, 1948.
35 Id. at 352.
36 Laws of Nebraska 1949, page
999, ch. 294, enacted May 11, 1949.
37 Id. at 1001, §4.
38 Laws of Nebraska 1955, page
292, ch. 107, enacted May 29, 1955.
39 Domenico Caporale and Deryl F. Hamann,
"Sexual Psychopathy—A Legal Labyrinth of Medicine, Morals and
Mythology," 36 Neb.L.Rev. 320 (1957).
40 Id. at 321.
41 Id. at 325 (Table I).
42 Id. at 328.
43 Id. at 350-351.
44 Id. at 351.
45 New York Times, Aug. 30, 1958,
32:4. Provoo was released on Oct. 30, 1960. During his stay in
prison, he had been referred for a sanity hearing. (Correspondence from
Nebraska Department of Corrections, n.d., (Dec. 1996)). For his earlier
court cases, see 124 F.Supp. 185 and 215 F.2d 531.
46 133 N.W.2d 583, decided Mar. 5,
1965.
47 Laws of Nebraska 1971, L.B.
278, enacted May 22, 1971, effective immediately as an emergency measure.
48 Id. at 2, §29-2902 (1).
49 Id. at 6, §29-2903 (3).
50 190 N.W.2d 858, decided Oct. 22, 1971.
51 Id. at 859.
52 Id. at 860.
53 Laws of Nebraska 1977, page 88,
enacted June 1, 1977, effective July 1, 1978. The law was enacted by
overriding the veto of the Governor. The override vote in the state’s
unicameral legislature was 32-15, with not a single vote to spare,
two-thirds being necessary.
54 Id. See pages 100-102,
§32-§39 generally.
55 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
56 Laws of Nebraska 1969, page
3132, ch. 825, enacted Apr. 11, 1969.
57 Correspondence from Paula Hartig, Data
Utilization Program Manager, Department of Public Institutions,
May 2, 1996.
58 474 N.W.2d 458, decided Sep. 13,
1991.
59 Id. at 459.
60 579 N.W.2d 503, decided June 5,
1998.
61 Id. at 508.
62 §28-319 and §28-320.01 of the
Nebraska Revised Statutes.
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