|
Last edited: August 10, 2004
| |
The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Nevada
"[The statute] seeks to define and punish acts of
unnatural copulation in whatsoever form those acts may be perpetrated, and
without regard to the means or manner of perpetration."
The Post-Revolution Period, 1776-1873
In 1861, Congress enacted an organic law for the Nevada Territory,1
but it contained no reference to common-law crimes or to sodomy.
Nevada adopted the common law of England with a statute of 1861,2
but the statute made no specific reference to common-law crimes.
Just a month later, Nevada Territory enacted a criminal code3
that adopted the common-law definition of sodomy and established a penalty of
five years-life.4 An assault to commit sodomy
was penalized at 1-14 years.5
Period Analysis: As with most newly created western territories,
Congress did not provide a criminal code for the Nevada Territory, leaving
that to the discretion of local officials. The first legislature enacted a
sodomy law, using the common-law definition and providing a harsh penalty
of five years to life.
The Victorian Morality Period, 1873-1948
I. Sodomy
In 1912, the Nevada Supreme Court decided its first sodomy case, State
v. Carey.6 The Court unanimously overturned
the conviction of a man for assault with intent to commit sodomy because the
trial court failed to instruct the jury about the possibility of an innocent
motive and the jury’s responsibility to determine if the motive were
innocent or criminal.7
In 1914, in the next reported case, Ex Parte Benites,8
the Nevada Supreme Court unanimously ruled that fellatio constituted the
"crime against nature." In an opinion by Justice Pat McCarran, later
a reactionary U.S. Senator, the Court stated that the Pleas of the Crown as
stated by Hawkins should control: "All unnatural carnal copulations seem
to come under the notion of sodomy."9 The
statute
seeks to define and punish acts of unnatural copulation in whatsoever
form those acts may be perpetrated, and without regard to the means or
manner of perpetration.
Nature has provided in the male and the female the organs for the
reproduction of the species. Any copulation by male with male, or by male
with female, other than that copulation by and through the organs provided
by nature for the reproduction of the species, is an act against the order
of nature, and hence must of necessity be a crime against nature, inasmuch
as it is an act against nature’s law.10
With this broad statement, virtually all erotic activity could fall under
its rubric. Also, the Court expressly exempted female-female contacts from the
reach of the law.
In 1915, Nevada supplemented the sodomy law with a broadly worded vagrancy
law11 that included any "[i]dle or
dissolute person...who wanders about the streets at late or unusual hours of
the night"12 and any
[b]oy or male person under the age of twenty-one years, who...at any
hour of the night or day...frequents or loafs around any low den, house,
or other place of vice, infamy, or immorality, where known thieves and
other vicious and infamous persons resort or congregate[.]13
Violators could get up to three months in jail and up to a $300 fine.14
In the 1926 case of State v. Verganadis,15
the Nevada Supreme Court unanimously upheld the conviction of a man for
attempted sodomy for placing his penis against the thighs and rectum of
another.16
II. Sterilization
Nevada enacted a sterilization law in 191117
that permitted the sterilization of any "habitual criminal" but
barred the extreme measure of castration.18
The law was challenged in federal court and, in 1918, in the case of Mickle
v. Henrichs,19 was found unconstitutional.
Judge Edward Farrington decided that vasectomy
in itself is not cruel; it is no more cruel than branding, the
amputation of a finger, the slitting of a tongue, or the cutting off of an
ear; but, when resorted to as punishment, it is ignominious and degrading,
and in that sense is cruel.20
Period Analysis: Nevada followed the trend in the 1910s of
having its sodomy law, unchanged in wording, interpreted by a court to
include sexual activity historically excluded from it. In this instance,
the act was fellatio, but in dictum the Nevada Supreme Court ruled that
sodomy could be accomplished only if at least one party was male,
excluding Lesbians from prosecution. Nevada also was one of the earliest
states to enact a sterilization law. Its applied to "habitual
criminals" but prohibited castration of the criminal. Despite this
limitation, the law was struck down on broad grounds by a federal court in
1918. Even though procreation was the only function to be eliminated by
the sterilization, the court found it to be cruel and unusual punishment.
The Kinsey Period, 1948-1986
In 1951, Nevada amended the sodomy law21 to
reduce the minimum penalty for sodomy from five years to one year, but it
retained the maximum of life.22
In 1961, the legislature enacted a sex offender registration law23
that required all persons convicted of any of specified offenses, including
sodomy and an assault to commit it, to register with the county sheriff or
chief of police and to notify the same official of each change of address.24
Any sex offender considered "rehabilitated" could apply to a court
for relief from further registration.25
In 1963, Nevada passed an additional law26
restricting probation to those convicted of the "crime against
nature" or "lewdness." They had to obtain a certificate from a
physician stating that they were "not a menace to the health, safety or
morals of others."27
The sodomy law was changed in a 1967 comprehensive criminal code revision28
to reduce the sentence of consensual sodomy from one year-life to 1-6 years.29
The vagrancy law was changed substantively in 1967.30
The gender specifics of the law disappeared, and added were public
solicitation of "lewd or dissolute conduct" and loitering "in
or about any toilet open to the public for the purpose of engaging in or
soliciting any lewd or lascivious or any unlawful act."31
Another amendment to the sodomy law just a month later32
added that the "crime against nature" was complete upon penetration
only.33
The state’s sex offender registration law was sustained as to its
constitutionality in 1968 in Atteberry v. State.34
The unanimous decision of the Nevada Supreme Court was that the law did not
create additional punishment, constitute self-incrimination, or violate the
state constitution’s guarantees of freedom and equality.
In 1968, in the case of Hogan v. State,35
the Nevada Supreme Court rejected a vagueness challenge to the term
"crime against nature" with just 21 words: "NRS 201 is
sufficiently broad to include not only the common-law crime of sodomy, but
also all unnatural carnal copulations."36
In 1969, in Jones v. State,37 the
Nevada Supreme Court unanimously held that the 1967 amendment did not render
the law unconstitutionally vague,38 and the
issue of the constitutionality of applying it to consenting adults was
sidestepped because Jones was convicted of sodomy with a 12-year-old.39
The Nevada Supreme Court next dealt with the case of Basurto v. State40
in 1970. Defendant Basurto claimed that, since he was only 18 at the time of
the offense, and the age of majority then was 21, he was not "of full
age" and could not be prosecuted.41 The
Court unanimously rejected the contention by noting that Nevada law defined
anyone 18 or older as capable of being convicted of criminal offenses.42
In the 1973 case of Sheriff, Clark County v. Dearing,43
the Nevada Supreme Court upheld the right of the state to prosecute a man for
an act of cunnilingus under the term "crime against nature."44
In 1976, in the case of Allan v. State,45
the Nevada Supreme Court unanimously upheld the right of the state to
introduce as evidence, in a sodomy prosecution, the fact that the defendant
had masturbated in front of witnesses46 and his
possession of a "pornographic" film that
tended to show proof of a motive or a common plan or scheme wherein
minors were lured to appellant’s quarters and, after being ‘conditioned’
by the showing of his pornographic movies, subjected to his sexual
desires.47
A comprehensive criminal code revision in 197748
made only one substantive change in the sodomy law. It redefined it as being
"anal intercourse, cunnilingus or fellatio between consenting adults of
the same sex."49 This code made sexual
relations between women a crime for the first time. The 1-6 year felony
penalty remained.
In 1978, the Nevada Supreme Court decided the case of Maes v. Sheriff,
Clark County50 by ruling 4-1 that sodomy
could be complete by licking a penis.51
In 1979, the Nevada Supreme Court ruled 3-2 in the case of Lucas v.
Sheriff, Clark County52 that an adult could
not be convicted of sodomy, even as an aider and abettor, for inducing minors
to perform sodomitical acts.53
The legislature responded quickly with a law54
making it a felony for anyone to incite, entice or solicit a minor to engage
in sodomy.55
Also in 1979, the legislature amended the vagrancy law56
to add stiffer penalties for violations. The public solicitation provision was
changed so that a second offense occurring within three years of the first
would net a fine of up to $250 and/or up to 30 days in jail. A third violation
in the same three-year period could get the offender up to six months in jail
and/or up to a $250 fine. Sentences under this provision were required to be
served consecutively.57
An unsuccessful bill in 1979 was one that would have added a fine of $5,000
to the prison term for sodomy.58
In 1980, the Nevada Supreme Court, deciding Armstrong v. State,59
ruled unanimously that a sodomy conviction could stand even though the trial
proceeded without waiting for a laboratory report as to the presence of
absence of vaseline on the victim’s underwear. The Court felt that the
presence of sperm in the victim’s rectum was sufficient corroboration.60
In 1985, the vagrancy law was revised again.61
The penalty for a second violation within three years of the first was raised
to up to six months in jail and a fine of up to $1,000 and the maximum fine
for a third conviction in the same period was also raised to $1,000, although
the jail term remained the same.62
Period Analysis: Nevada’s history is among the most anti-Gay
in the nation as far as sodomy laws are concerned. It very much followed
the McCarthy rather than the Kinsey view of sex. Although the compulsory
life sentence for sodomy was revised in 1951, that remained the maximum
penalty after that time. Numerous revisions to the sodomy law were made in
the next few decades, all of them expanding its reach. Limitation on
probation and a requirement for sex offender registration for acts of
sodomy also were enacted. The vagrancy law also was revised to increase
penalties for loitering for sex. The Nevada Supreme Court consistently
upheld convictions for sodomy and avoided a constitutional challenge based
on privacy arguments in one case. When a new criminal code was adopted in
1977 during the Dade County referendum backlash, consensual sodomy
remained a felony, although the law was made discriminatory—applying
only to those of the same sex. Sex between women was made a crime for the
first time with this statute.
The Post-Hardwick Period, 1986-Present
A constitutional challenge to the state’s sodomy law in 1986 was
dismissed. In Doe et al. v. Bryan,63 the
Nevada Supreme Court unanimously affirmed a trial court’s dismissal of the
case because "the record does not reflect any enforcement efforts by the
State against appellants or others."64
In 1993, in Young v. State,65 the
Nevada Supreme Court unanimously sustained the convictions of four men for
consensual sexual relations in a public restroom. Curiously, even though some
of the charges were for fellatio, the felony "crime against nature"
law was not invoked against the defendants. Instead, they were charged with
misdemeanor "open or gross lewdness" or "obscene
exposure." Rejecting a long string of case law on the subject, the Nevada
court found that, even though the sexual activity was not seen by anyone
before cameras were hidden to catch such activity, the fact that the sex could
have been seen justified the hidden cameras.66
Privacy arguments were rejected. Curiously, one of the defendants was arrested
for sexual activity occurring three days after the expiration of the search
warrant, a fact that the court overlooked in its decision.67
In a surprising move, in 1993, Nevada repealed its sodomy law. The repeal
bill, the first in the nation to eliminate a same-sex-only sodomy law, passed
the Senate 14-6 and the Assembly 29-12.68 The
new law69 replaced the "crime against
nature" law with similar behavior done in public. Its 1-6 year penalty
was more severe than for vaginal intercourse in public. The age of consent is
16, although Nevada retained a law prohibiting the incitement, enticement or
solicitation of a minor to engage in "the crime against
nature."70 Sex with the minor of 16 or 17
will remain legal, so long as the other party does not initiate the sexual
activity. The definition of "crime against nature" was left as only
between people of the same sex,71 thus making
it a crime to incite, entice, or solicit a minor of the same sex for
such activity, whereas inciting, enticing, or soliciting a minor of the
opposite sex for identical sexual conduct is not a crime.
Period Analysis: In a constitutional challenge to the sodomy law
in 1986, the Nevada Supreme Court dismissed the case because there was no
evidence presented to it that the state actually enforced the law against
consenting adults. In 1993, in a surprise move, the state repealed its
sodomy law, making Nevada the first state to repeal a sodomy law the
applied only to homosexual activity.
Footnotes
1 12 Stat. 209, enacted Mar. 2, 1861.
2 Laws of the Nevada Territory 1861,
page 1, enacted Oct. 30, 1861.
3 Laws of Nevada Territory 1861,
page 56, ch. XXVIII, enacted Nov. 26, 1861.
4 Id. at 63-64, §45.
5 Id. at 64, §47.
6 122 P. 868, decided Apr. 6, 1912.
7 Id. at 869.
8 140 P. 436, decided Apr. 28, 1914.
9 Id.
10 Id. at 436-437.
11 Laws of Nevada 1915, page 32,
ch. 32, enacted Feb. 26, 1915.
12 Id. at 33, #5.
13 Id. at 33-34, #11.
14 Id. at 34, #13.
15 248 P. 900, decided Sep. 10, 1926.
16 Id. at 901.
17 Revised Laws of Nevada Containing
State Statutes of a General Nature from 1861 Revised to 1912, and
Pertinent Acts of Congress with Annotations from Volumes 1 to 34, Nevada
Reports, and From Federal and State Decisions, Vol. 2, (Carson
City:Superintendent of State Printing, 1912), page 1812, §6293, enacted
Mar. 17, 1911.
18 Id.
19 262 F. 687, decided May 25, 1918.
20 Id. at 690.
21 Laws of Nevada 1951, page
524, ch. 318, enacted Mar. 23, 1951.
22 Id.
23 Laws of Nevada 1961, page
197, ch. 147, enacted Mar. 24, 1961.
24 Id. §1-3.
25 Id. at 198, §7.
26 Laws of Nevada 1963, page 61,
ch. 60, enacted Mar. 14, 1963.
27 Id. at 62-63, §3.
28 Laws of Nevada 1967, page
458, ch. 211, enacted Mar. 29, 1967.
29 Id. at 475-476, §78.
30 Id. at 517, §210.
31 Id. at 518, §11 (a) and (g).
32 Laws of Nevada 1967, page
1398, ch. 523, enacted Apr. 26, 1967.
33 Id. at 1470, §439.
34 438 P.2d 789, decided Mar. 18, 1968.
35 441 P.2d 620, decided May 28, 1968.
36 Id. at 622.
37 456 P.2d 429, decided June 30, 1969.
38 Id. at 430.
39 Id.
40 472 P.2d 339, decided July 7, 1970.
41 Id. at 340.
42 Id.
43 510 P.2d 874, decided June 7, 1973.
44 Id.
45 549 P.2d 1402, decided May 28, 1976.
46 Id. at 1403-1404.
47 Id. at 1404.
48 Laws of Nevada 1977, page
1626, ch. 598, enacted May 20, 1977, effective July 1, 1977.
49 Id. at 1632, §17.
50 582 P.2d 793, decided Nov. 10, 1978.
51 Id. at 794.
52 589 P.2d 176, decided Jan. 17, 1979.
53 Id. at 177.
54 Laws of Nevada 1979, page
662, ch. 384, enacted May 17, 1979.
55 Id.
56 Laws of Nevada 1979, page
353, ch. 259, enacted May 2, 1979.
57 Id. at 354, §2.
58 The Advocate, Vol. 272
(July 26, 1979), page 9.
59 605 P.2d 1142, decided Feb. 6, 1980.
60 Id.
61 Laws of Nevada 1985, page
749, ch. 238, enacted May 22, 1985.
62 Id. at 750, §2.
63 728 P.2d 443, decided Dec. 4, 1986.
64 Id. at 445.
65 849 P.2d 336, decided Mar. 24, 1993.
66 Id. at 342.
67 Id. at 339.
68 Washington Blade, June 25,
1993, page 1.
69 Laws of Nevada 1993, ch. 236,
enacted June 16, 1993, effective immediately.
70 Id. §2.
71 Id.
[Home] [Nevada] [History] [Sensibility of Our Forefathers]
|
