The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
New Hampshire
"[A] 12-year-old boy...was being examined as a "sexual
psychopath" because he and a 9-year-old boy compared the length
of their genitalia[.]"
The Colonial Period, 1607-1776
New Hampshire was settled in 1623 and, for more than a half century,
juridically was part of Massachusetts. The laws of England may have been
considered in force, but an early case casts some doubt on that.
In 1635, two men were arrested for committing sodomy with each other
"on the Lord’s day in time of public exercise," but they were not
prosecuted because the government officials "did not think fit to try
them here."1
Massachusetts enacted its first sodomy law in 1636 (q.v.) and it
therefore had applicability to the area now known as New Hampshire. As a
result, the next legal proceeding for sodomitical acts was dealt with harshly.
In 1663, a woman was accused of having claimed falsely that her husband,
Matthew Giles, buggered her "servant boy," William Penney. Penney
testified that Mrs. Giles "hired him" to lie to investigators about
the alleged incident. Each was sentenced to a flogging, and Mrs. Giles also
was given an indefinite term in prison.2
In 1679, New Hampshire separated from Massachusetts and enacted its own
laws. The first criminal code3 included a sodomy
law based on prohibitions enunciated in Leviticus, but exempted those under
age 14 and those who were victims of an assault from the penalty. All other
"Sodomitical filthiness shal [sic] be severely punished according
to the nature of it."4 This latter sentence
undoubtedly would allow prosecution of fellatio, cunnilingus, frottage and
mutual masturbation.
The law was changed in 17185 to eliminate
reference to the "other Sodomitical filthiness" and added a
reference to sodomy as "contrary to the very light of Nature."6
Period Summary: Like Massachusetts, from which it was created,
New Hampshire did not adopt the laws of England. As a result, the earliest
court records of sodomitical activity reveal that such conduct was not
punished. Not until it separated from Massachusetts and adopted a code of
laws was sodomy recognized as a crime. The first law conceivably was far
broader than other colonial laws, covering "sodomitical
filthiness" that was to be punished "according to the nature of
it." This may have permitted penalties for oral sex and masturbation
as well. Another colonial law eliminated this broad provision, putting New
Hampshire back into the mainstream of colonial sodomy jurisprudence.
The Post-Revolution Period, 1776-1873
In 1791, the law was changed again7 to
restrict the language to read that "if any Man shall carnally lie with a
Man as Man carnally lieth with a Woman[.]"8
Thus, it was made clear that only sodomy between two men was a crime.
A new sodomy law passed in 18129 reduced the
maximum penalty from death to six months in solitary confinement, followed by
1-10 years at hard labor.10 In addition, the
crime was reworded that men could commit the crime only with "any man or
male child."11
The New Hampshire Supreme Court decided unanimously in the 1837 case of State
v. Rollins12 that the English common law
disappeared from the state with the American Revolution.13
Period Summary: As did Massachusetts, its parent, New Hampshire
revised its sodomy law after the revolution to exclude heterosexual
activity from its scope. It was not until two decades into the federal era
that the death penalty was eliminated. With a decision of the New
Hampshire Supreme Court that common-law crimes disappeared from New
Hampshire with the American Revolution, that state became one of the first
to abrogate common-law crimes.
The Victorian Morality Period, 1873-1948
In 1899, a new law was passed14 that did
away with the reference to sodomy and replaced it with the term
"unnatural and lascivious acts," an attempt to reach oral sex. The
gender specifics of the law also disappeared and the penalty was changed to
3-5 years and/or a fine of $100-$1,000.15
The New Hampshire Supreme Court received its first sodomy case in 1941 in State
v. Vredenburg.16 In a brief, per curiam
decision, and without actually stating the facts of the case, the Court, by
listing like cases from other states, ruled that the statute covered fellatio.17
In preparation for a psychopathic offender law, in 1947 the New Hampshire
legislature enacted two resolutions to authorize investigations into the
feasibility of a law for the state. The first resolution18
showed the impetuosity behind these laws. The deadline for reporting back on
what should have been a deliberative study was set at precisely one month
after the enactment date of the law. Because it was unable to complete such an
undertaking so quickly, another resolution19
allowed the committee to investigate until the next session of the
legislature.
Period Summary: When New Hampshire broadened its sodomy law to
cover oral sex in 1899, it became the first state in the nation to use the
term "unnatural and lascivious acts." All other states used
"sodomy," "crime against nature," or
"buggery." The breadth of the wording may have permitted the
prosecution of virtually any erotic activity, but case law is sparse in
the state. As with other states, the term was interpreted by the state
courts to embrace acts of fellatio. The state sought a psychopathic
offender law after the Second World War, but its impetuousness on the
issue caused a postponement of the recommendation of a law until after the
first Kinsey report was issued.
The Kinsey Period, 1948-1986
In 1949, the New Hampshire legislature responded to the legislative study
by enacting a statute20 that permitted
investigation of any person convicted of "...unnatural and lascivious
act, bestiality, [or] sodomy..." as well as any attempt to commit these
crimes, to see if the person merited confinement in a mental institution.21
Evidence of the commission of "any prior sex acts or sex crimes"
could be admitted at the hearing.22 Criminal
prosecution had to be abandoned by the state for anyone found to be a
psychopath and committed to a mental health facility.23
The New Hampshire Supreme Court, in 1950, decided the case of State v.
Desilets.24 The defendant contended that he
could not be prosecuted for sodomy because the psychopathic offender law
"impliedly repeal[ed]" the sodomy law.25
The Court unanimously rejected his claim.26
The constitutionality of the psychopathic offender law was upheld
unanimously by the New Hampshire Supreme Court in 1950 in In Re Moulton.27
A third case dealing with the psychopathic offender law was In Re Mundy,28
from 1952. Unanimity disappeared in this case. Mundy claimed that
"hearsay" evidence was used to adjudge him a psychopath in that a
report from the examining board was entered into evidence and that, in turn
was based on probation and police reports. Justice Amos Blandin, speaking for
a 3-2 majority, based his conclusion on the Court’s having had to
"weigh the great and increasing need for a remedy, the irreparable harm
to society and the individual resulting from the lack of [a psychopathic
offender law] and the seeming impossibility of solving the problem with any
degree of satisfaction under existing laws."29
A glowing report on the operation of the New Hampshire psychopathic
offender law was published in 1962.30 The study
analyzed the years 1958 through 1960, when 170 offenders were committed under
the law. Of these, 57, or 34%, were committed for one of three offenses:
fellatio, sodomy, and homosexuality unspecified.31
The "unspecified" homosexuality raised the specter of no specific
criminal act, merely an orientation. A total of 28 individuals, 16% of the
total, were diagnosed with "sociopathic personality disturbance, sexual
deviation."32 The article noted that
people might question why more homosexuals were not included in the
statistics. They frequently, "by the nature of the trouble that they are
in, are not considered to be dangerous to themselves or to society, and
commitment is not recommended."33 This
does not answer, if not dangerous to selves or others, why sexual relations
were criminalized. One example of an attempted commitment under the law was
that of
a 12-year-old boy who was being examined as a "sexual
psychopath" because he and a 9-year-old boy compared the length
of their genitalia and the 9-year-old boy reported this to his mother. In
this case the families were casually acquainted with each other. It seemed
to the examining board that some legal official could have brought these
two families together and settled the matter, rather than charging the
12-year-old with juvenile delinquency (lascivious behavior) which
initiated a discretionary examination. [Emphasis is the article’s].34
In 1967, in the case of State v. Wickey,35
the defendant claimed that fellatio was not an "unnatural" act
within the meaning of the statute.36 Noting the
precedent of the Vredenburg case, the Court ruled unanimously that
"the perverted sex conduct complained of was deemed to be within the
purview of the statute."37
A comprehensive criminal code revision in 197138
retained the abrogation of common-law crimes,39
exempted married couples from the provisions of the sodomy law,40
reduced the penalty for consensual sodomy to a misdemeanor with a penalty of
up to one year in jail,41 and called the new
crime "deviate sexual relations" with a definition of "any act
of sexual gratification involving the sex organs of one person and the mouth
or anus of another."42
A third case challenging the criminality of fellatio under the law was
decided by the New Hampshire Supreme Court in 1972. In State v. Small,43
the Court reaffirmed that fellatio was a crime.44
A challenge to the constitutionality of the law was disposed of in State
v. Church45 in 1973 without any analysis
whatsoever. In fact, one has to read the syllabus of the case to see that this
was one of the points raised.46
A revision of the state’s sexual assault laws in 197547
repealed the sodomy law. Even though a controversy over this repeal arose
later, the then-Attorney General of the State, David Souter, future U.S.
Supreme Court Justice, publicly supported the legalization of sodomy. The
repeal happened by "sneaking" two new sexual assault sections into
the criminal code that repealed two others, one of them the old rape law and
the other the consensual sodomy law. The state’s homophobic Governor, who
signed the bill, had not reviewed the bill carefully before signing it.48
Period Summary: A psychopathic offender law was enacted by
the state in 1949 during a period of great action by the states in
creating such laws. The New Hampshire law did require the state to
abandon criminal prosecution of anyone processed under the law,
something many other states did not. Research into the application of
the law revealed that a number of men were processed under it for
"homosexuality," something not enumerated in the statute as
a trigger for its operation. One case also was reported of a
pre-pubertal boy processed under the law for innocent sexual play with
a younger boy, showing the extremes to which the state would go to
utilize the law. Although sodomy cases universally resulted in victory
for the prosecution, the law was repealed in a manner in 1975 that
surprised many, including the anti-Gay Governor who signed the repeal
bill.
The Post-Hardwick Period, 1986-Present
Period Summary: There are no published cases dealing with
the limits of state power to regulate sexual activity in places such
as restrooms or parked cars. Because of the decriminalization of
consensual sodomy, only that occurring in semi-public places still may
be subject to prosecution.
Footnotes
1 Nathaniel Bouton, ed., Provincial
Papers: Documents and Records Relating to the Province of New
Hampshire, from the Earliest Period of its Settlement: 1623-1687,
Vol. 1, (Concord:G.E. Jenks, 1867), page 106. The date of the
proceeding is given as Feb. 14, 1635.
2 New Hampshire Court Records,
1640-1692; Court Papers 1652-1668, (Concord:State of New
Hampshire, 1943), pages 182-183.
3 Laws of New Hampshire 1679-1702,
Vol. 1, Province Period, page 11, ch. 1, enacted Mar. 16, 1679.
4 Id. at 13, §10.
5 Laws of New Hampshire 1702-1745,
page 313, ch. 38, enacted May 14, 1718.
6 Id. at 314, no section
numbering.
7 Laws of New Hampshire 1784-1792,
page 596, ch. 42, enacted Feb. 8, 1791.
8 Id. at 597, no section
numbering.
9 Public Laws of New Hampshire June
1812, page 5, enacted June 19, 1812.
10 Id. at 6, §5.
11 Id.
12 8 N.H. 550, decided during
December Term 1837.
13 Id. at 561-562.
14 New Hampshire Laws 1899,
page 270, ch. 33, enacted Mar. 7, 1899.
15 Id.
16 19 A.2d 414, decided Apr. 1, 1941.
17 Id. at 415.
18 New Hampshire Laws 1947,
page 542, ch. 301, enacted Apr. 1, 1947.
19 New Hampshire Laws 1947,
page 547, ch. 310, enacted May 29, 1947.
20 New Hampshire Laws 1949,
page 422, ch. 314, enacted July 28, 1949.
21 Id. at 423, §3.
22 Id. at 425, §5 (III).
23 Id. at 428.
24 73 A.2d 800, decided June 6, 1950.
25 Id. at 801.
26 Id.
27 77 A.2d 26, decided Dec. 5, 1950.
28 85 A.2d 371, decided Jan. 2,
1952.
29 Id. at 375.
30 G. Donald Niswander, "Some
Aspects of `Sexual Psychopath’ Examinations in New Hampshire,"
4 N.H.B.J. 66 (Jan. 1962).
31 Id. at 68.
32 Id. at 72.
33 Id. at 74.
34 Id.
35 235 A.2d 527, decided Nov. 30,
1967.
36 Id. at 528.
37 Id.
38 New Hampshire Laws 1971,
page 644, ch. 518, enacted July 7, 1971, effective Nov. 1, 1973.
39 Id. at 645, §625:6.
40 Id. at 657, §632:2 (II).
41 Id.
42 Id. §632:2 (IV).
43 290 A.2d 633, decided Apr. 28,
1972.
44 Id.
45 313 A.2d 727, decided Dec. 28,
1973.
46 Id.
47 New Hampshire Laws 1975,
page 273, ch. 302, enacted June 7, 1975, effective Aug. 6, 1975.
48
2 Sex.L.Rep. 68.
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