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 1991-2003

Oklahoma

"[C]ourts, as well as officers, parents and the moral forces of this State and Nation, must not shirk the onerous task involved in such problems, if a Sodom and Gomorrah is to be forestalled."

The Victorian Morality Period, 1873-1948

I. Sodomy

The Oklahoma Territory was organized in 18901 and received most of the laws of Nebraska, including its criminal code and common-law reception.2 This seemingly made sodomy punishable by one year-life.

However, a compilation of criminal laws included an explanatory note that only those laws "locally applicable" were taken from Nebraska law and that those that were "irrelevant, inapplicable, or repugnant to United States laws" were excluded. Compiler LeGrand Byington omitted "the extraneous, verbose and immaterial clauses, that would have encumbered rather than aided the enforcement of the essential provisions, and thereby cheapened the volume to the people whose immediate needs it supplies."3 One Nebraska law not found in this new compilation was the "crime against nature" law, although a large number of other sexual crimes were included.4

Once created, the Oklahoma Territory enacted its own criminal code later in 1890.5 This code abrogated common-law crimes,6 declared that a "morbid propensity" to commit crime was no defense,7 and excluded the crime against nature from a list of crimes of which a wife (but not a husband) was exempt from prosecution if the act occurred under coverture.8 The sodomy law itself used the common-law definition and provided a penalty of up to 10 years in prison.9 The crime was complete upon penetration only.10

The first reported sodomy case in Oklahoma was Ex Parte DeFord,11 from 1917. This decided that fellatio was a violation of the crime against nature statute. Although Judge Matson of the Criminal Court of Appeals, who wrote the opinion, quoted from other cases from around the country,12 his opinion is remarkable for being free from the extremely moralizing language found in almost every other jurisdiction confronted with this issue.

Another challenge to the coverage of fellatio was rejected by the same court in 1927 in Borden v. State.13

The historically important case of Roberts v. State14 was decided by the Criminal Court of Appeals in 1935. This was the first case in the nation in which the common-law term "crime against nature" was determined to embrace the act of cunnilingus. Giving no analysis whatsoever, and yielding to the temptation to use moralizing language, the Court decided that the vagueness of the Oklahoma statute was "with due regard to the sentiments of decent humanity" and that the "offense consists in a carnal knowledge, committed against the order of nature, with mankind or with a beast."15

In 1943, Oklahoma adopted a law16 that outlawed "lewdness" as well as prostitution and assignation17 or the solicitation of an act of lewdness.18

Also in 1943, the Criminal Court of Appeals decided LeFavour v. State.19 The Court rejected the contention of the heterosexual defendant that sodomy could be accomplished only between people of the same sex.20

In 1946, the Criminal Court of Appeals decided the case of Cole v. State.21 Cole, a "young minister of the Gospel,"22 had been accused of sodomy with a 13-year-old male. Because the young male never made an effort to cry for help or get away from Cole, or to avoid him afterward, the Court concluded that he was an accomplice whose testimony needed corroboration.23 The Court also was critical of the prosecutor’s statement to the jury that the minister Cole

has turned the words of The Master around, when He said, "Come unto me, ye little children and be saved." The defendant says, "Come unto me you little boys and I will corn-hole every one of you."24

Cole’s conviction was overturned for both of these reasons.25

II. Sterilization

In 1933, Oklahoma enacted a sterilization law26 that authorized the procedure for, among others, any

person incarcerated in any penal institution in this State who is an habitual criminal, that is any person convicted of a felony three times[.]27

Due to the startling lack of success of early sterilization laws to be upheld by courts, the Oklahoma law provided due process guarantees.28

This law was revised in 1935.29 The number of due process guarantees was expanded, the provision for dealing with felons was changed so that only two, rather than three, convictions were necessary to trigger operation of the law,30 and the felonies that would subject the offender to sterilization were only "felonies involving moral turpitude[.]"31 Several of these offenses, including embezzlement, were exempted,32 an action which unwittingly would lead to the downfall of sterilization laws nationwide.

The law was challenged and, in 1941, the Oklahoma Supreme Court upheld it in Skinner v. State.33 By a vote of 5-4, the Court said that it must "assume" that the legislature, before enacting the law, carefully had reviewed

statistics, scientific works, and information from which it found as a fact that habitual criminals are more likely than not to beget children of like criminal tendencies who will probably become a burden on society.34

On appeal to the U.S. Supreme Court, the law was struck down in 1942 in Skinner v. Oklahoma.35 Although the vote was unanimous, there was not unanimity as to the reason. Speaking for seven members of the Court, Justice William Douglas found the exemption for those convicted of embezzlement to be constitutionally fatal.36 Douglas alluded to, but did not deeply explore, the broader issue of fundamental rights.37 Chief Justice Harlan Stone opposed the equal protection argument, arguing for the striking of the law only on the broader issue of liberty.38 Justice Robert Jackson argued in favor of both points.39 Even though only two of nine members of the Court argued for the broader rule, this decision effectively ended the sterilization of criminals in the United States. No sterilization law was passed in the United States until 1996 after this decision, and the existing non-therapeutic ones were repealed or fell into disuse.

Period Summary: Oklahoma’s first criminal code curiously expressly permitted prosecution of married couples for acts of sodomy. Although it used the common-law definition of sodomy, both fellatio and cunnilingus were determined to constitute violations of it, with the cunnilingus decision the first such one in the country. Bolstering the criminal code provision on married couples, the law was interpreted as covering people of the opposite sex. The Oklahoma sterilization law was the one challenged in the U.S. Supreme Court and it was struck down by a unanimous vote, the court finding sterilization for crime to be unconstitutional.

The Kinsey Period, 1948-1986

In the case of Woody v. State,40 from 1951, the Criminal Court of Appeals showed the influence of the McCarthy era. A school janitor had noticed something peculiar through a glass door and, when he opened it, Woody

ran past witness into the building. Woody was wiping his mouth; and a young fifteen-year-old boy, Herbert Hopkins, was standing on a window jack, or wooden block at an elevation of two or two and a half feet off the floor and was trying to fasten his trousers and clothing over his penis. He had not gotten off the block. Witness had immediately decided what was going on, and stated that he severely lectured the boy, and it is significant that this was without protest or denial from him.41

Hopkins testified that he had known Woody for a year and that on the night in question Woody asked him

to go up on the third floor with him and that he did so, and found two boys up there boxing and playing, so they did not stay there long; that defendant asked witness to go to the east side entrance to the building. Defendant went down first and witness found him inside the door and they went outside the building and defendant lifted witness up on a block of wood, then went to the edge of the building to see if anyone was around, came back and unbuttoned the front of the pants of witness and took out his privates and proceeded by mouth "to go to work" with the unnatural relations, too revolting to further detail.42

Judge Powell, writing for the Court, said that, although

our immediate expressions may be classed as unnecessary and useless preachment or diatribe, the writer feels called on to say that a male person on whom such an abominable and pernicious act might be committed perhaps in many cases by reason of the embarrassment entailed and the thought of certain degradation in the minds of acquaintances and the public at large, regardless of his resistance to the act, would not report the same.43

Continuing with a sociological treatise, the Court said that at any rate

perversion is sufficiently prevalent that the moral forces of our State and Nation should "view with alarm" and become greatly concerned. The recent book "Washington Confidential"44 presents a documented revelation of shocking and deplorable conditions in Washington, D.C., of perversion practices of persons in both high and low authority, involving both men and women, and of many nationalities. The tales rival the lustful perversions of a Lucretia Borgia and the practices of the Godless and licentious ruling class at the time of the crumbling of the ancient Roman and Greek empires. The local Washington law enforcement officers, as throughout the land, are presented as practically impotent in dealing with the matter for lack of general public knowledge and militant and unrelenting support. And while this class of case here presented is shocking, and a consideration and treatment of the facts and issues is approached with revulsion, courts, as well as officers, parents and the moral forces of this State and Nation, must not shirk the onerous task involved in such problems, if a Sodom and Gomorrah is to be forestalled. [Footnote omitted].45

After that lengthy homily, which had nothing to do with the errors claimed in the trial, the Court upheld Woody’s conviction.46

The state’s law outlawing "lewdness" was interpreted in a case from 1953, Landrum v. State.47 The Oklahoma Court of Appeals decided that a "close reading" of the statute revealed that

the purpose of the statute is to punish persons for sex acts, and is not limited but is applicable to both the male and the female sex, male with female, or male with male, or female with female.48

In the 1955 case of Berryman v. State,49 the Court again rejected a claim that fellatio did not constitute the crime against nature. Berryman had been arrested with consenting teenagers only because the acts occurred in a car and a passerby saw them.50 In a footnote, the Court mentioned the recent "increase in the number of cases called to our attention which involve homosexuals and other sex deviators" and then mentioned a number of published studies, including the Kinsey report.51

In 1956, in Hopper v. State,52 the Criminal Court of Appeals ruled the obvious according to the 1890 law in rejecting the defendant’s claim that emission had to be proven.53

Consenting adults were prosecuted in the case of Taylor et al. v. State,54 from 1962. The defendants were engaged in fellatio in the back seat of a car and sheriff’s deputies looked in the window and saw them.55

In the 1966 case of Crain v. State,56 the Court of Criminal Appeals unanimously upheld a sentence of 18 months in prison (obviously for a consensual act) solely because it was less than the statutory maximum of 10 years.57

One of the few cases in the United States to deal with female-female relations was decided in 1971 in Warner et al. v. State.58 In this case, a husband and wife picked up a woman on a street in Oklahoma City and compelled her to engage in oral sex with each of them. The "sordid unnatural acts testified to by this witness are such that little value could be gained by setting them forth in detail in this opinion."59 The Court noted that Oklahoma’s

judicial history in dealing with sexual perversion reflects a slow and painful process wherein the Court of Criminal Appeals has attempted to discreetly define the multiple acts encompassed in the offense of Crime Against Nature. Going one step further, we specifically hold that copulation per os between two females is a violation of 21 O.S. §886. [The sodomy law].60

The Court also rejected a challenge to the vagueness of the law61 and the constitutionality of it as applied to married persons.62 On this latter point the Court felt that the U.S. Supreme Court’s privacy decisions did not prohibit "the state’s regulation of sexual promiscuity or misconduct between non-married persons."63

In 1973, in Canfield v. State,64 the Court of Criminal Appeals split 2-1 to uphold the conviction and sentence of 15 years in prison of Kenneth Canfield for consensual sodomy. The extra five years on his sentence was because of an unrelated previous criminal conviction.65 Canfield and another man engaged in consensual fellatio in a car parked in a woods.66 The Court rejected the contention that the law was an unconstitutional invasion of the privacy of consenting adults simply by referring to the Warner decision.67 In dissent, Judge Tom Brett disagreed both with the constitutionality of the law and with the length of the sentence Canfield received for what was a consensual act.68 The U.S. Supreme Court refused to hear the case.69

In the case of Slaughterback v. State,70 from 1979, another sodomy conviction was upheld by the same court in a 2-1 vote. The most remarkable aspect was that Judge Tom Brett dissented, because Slaughterback had been convicted of sexual activity with a 16-year-old mentally retarded male. He apparently found that to be within the scope of privacy rights.71

In the 1985 case of Golden v. State,72 Judge Brett caved in and, because a majority of the Court believed the sodomy law to be constitutional, he voted to uphold the conviction.73 Curiously, his language in the case leads one to believe that he still personally felt the sexual activity involved was constitutionally protected. Golden had been accused of forcing a 13-year-old boy onto a mattress and fellating him against his will. The boy had escaped, claiming that he "wasn’t a fag."74

In Hicks v. State,75 from 1986, the Court of Appeals voted 2-1 to reverse a sodomy conviction because actual penetration of the vagina in an act of cunnilingus had not been proven.76

The Court of Criminal Appeals decided the 1986 case of Post v. State.77 In a 2-1 vote, the court ruled that the Oklahoma sodomy law could not be constitutionally applied to private, consensual adult heterosexual activity, in conflict with previous case law.78 The Court said that it would not

reach the question of homosexuality since the application of the statute to such conduct is not an issue in this case. Our holding today is simply to declare unconstitutional the application of section 886 to the facts of this case.79

II. Sterilization

Despite Skinner, some kind of sterilizations occurred in Oklahoma in both 1952 and 1955.80

Also, a bill to require the "asexualization" only of males convicted of first-degree rape or oral sodomy was defeated narrowly in the Oklahoma House of Representatives in 1979. There is no evidence that the debate in the House made any reference to Oklahoma’s ill-fated law of the 1930s.81

The sterilization law was repealed in 1983.82

Period Summary: During the McCarthy era, Oklahoma became the only state whose courts made reference in a sodomy case to the anti-Gay witch hunt going on in Washington. It linked it with a lack of religious belief and this was considered sufficient justification for sodomy laws. An early constitutional challenge to the law was rebuffed by the Oklahoma Supreme Court and later by the U.S. Supreme Court. Long sentences for consensual activity consistently were upheld by the Oklahoma courts until a sudden reversal in 1986 when an appellate court interpreted the sodomy law as inapplicable to heterosexual activity. This was despite the 1890 criminal code provision expressly covering married couples and the 1943 court decision including heterosexuals within the law’s scope. Despite the U.S. Supreme Court invalidation of the sterilization law, it continued to be used into the 1950s, a serious effort to revive its use was launched in 1979, and the law was not repealed until more than 40 years after it had been invalidated.

The Post-Hardwick Period, 1986-Present

Oklahoma enacted a law83 in 1988 that was modeled on the federal RICO statute. It applied to any business enterprise that was engaged in various criminal activities, including sodomy.84 This apparently would apply to Gay bath house owners and operators.

The curious decision of McBrain v. State,85 from 1988, may have expanded, unintentionally and briefly, the Post decision to cover same-sex activity. The facts in McBrain were non-consensual, but Judge Hez Bussey, speaking for the unanimous Court of Criminal Appeals, referred to Post as striking down the sodomy law as it applied "to consensual acts between adults" and reprinted what Post said still was coverable under the law: bestiality, forced sexual activity, sexual activity with those underage, or public or commercial sexual acts.86 Nowhere in the McBrain opinion did the Court specifically exclude homosexual activity from constitutional protection.

The freedom of McBrain lasted exactly 15 days. In Newsom v. State,87 the same court unanimously upheld a conviction for non-consensual heterosexual sodomy and said that the Post decision of two years earlier was limited to "consensual, heterosexual" activity.88

The 1990 case of Virgin v. State89 did open up one erotic activity to everyone. The Court of Criminal Appeals unanimously held that the law was not violated by the insertion of a finger into the rectum, because a finger was incapable of sexual penetration as that term generally was understood.90

In 1995, the Oklahoma Court of Criminal Appeals, deciding Sawatzky v. City of Oklahoma City,91 upheld a solicitation conviction that raised important questions. The Court, in a 3-1 vote, noted that

Sawatzky solicited an act of lewdness in a public place from a police officer. The act solicited was intended to take place in private and Sawatzky and the officer are members of the same gender. In this context it is clear that Sawatzky is not entitled to relief.92

Thus, had a female solicited the police officer for sodomy while in a public place, she would have had a constitutional right to do so. The U.S. Supreme Court refused to review this decision.93

The Oklahoma legislature has shown no inclination to repeal this law. In 1997, it enacted a “Truth in Sentencing Act”94 that made massive revisions to the penalties for all manners of crimes. The change in the sodomy law95 eliminated the maximum ten-year penalty and replaced it with language making sodomy an unspecified felony. Under another provision of Oklahoma law, unspecified felonies have a maximum penalty of two years in prison, a $1,000 fine, or both.96

            This “Truth in Sentencing Law” didn’t last very long. In 1999, a new law97 carrying an emergency clause98 eliminated the arguably more lenient penalty for sodomy adopted in the Truth in Sentencing Act and made the maximum penalty for sodomy 20 years in prison,99 twice the maximum that had been available for more than a century.

Period Summary: Oklahoma courts made it clear that the sodomy law invalidation was limited to heterosexual activity. The Oklahoma legislature also has shown no interest in repealing the now discriminatory law. After possibly unintentionally lowering the maximum penalty with a major revision to state criminal law, it reacted a year later in raising the maximum penalty to well beyond what it ever had been in the state.

Footnotes

1 26 Stat. 81, enacted May 2, 1890.

2 Id. at 87, §11.

3 Adopted Code for the Territory of Oklahoma Containing That Portion of the General Statutes of the State of Nebraska, As Compiled and Annotated by Guy A. Brown, Esq., Which Was Extended Over Said Territory by Act of Congress, (Topeka:Reed-Martin, 1890), "Explanatory" at beginning of volume, no page number.

4 The sexual crimes are set forth on pages 89-90.

5 Oklahoma Statutes 1890, (Guthrie OK:State Capital Printing Co., 1891), page 412, ch. 25, enacted in legislative session that ran from August to December 1890.

6 Id. §1849.

7 Id. at 415, §1865.

8 Id. §1869. This is the first explicit reference I have seen to the coverage of sodomy laws to married couples.

9 Id. at 460, §2196.

10 Id. §2197.

11 168 P. 58, decided Oct. 25, 1917.

12 Id. at 59-60.

13 252 P. 446, decided Jan. 15, 1927.

14 47 P.2d 607, decided July 12, 1935.

15 Id. at 610.

16 Oklahoma Session Laws 1943, page 83, ch. 39, enacted Feb. 26, 1943.

17 Id. §2(a).

18 Id. §2(b).

19 142 P.2d 132, decided Oct. 6, 1943.

20 Id. at 135.

21 175 P.2d 376, decided Dec. 11, 1946.

22 Id. at 377.

23 Id. at 378-379.

24 Id. at 380.

25 Id.

26 Oklahoma Session Laws 1933, page 84, ch. 46, enacted May 5, 1933.

27 Id. at 85, §1.

28 Id. §2 and §3.

29 Oklahoma Session Laws 1935, page 94, ch. 26, enacted May 14, 1935.

30 Id. §3.

31 Id.

32 Id. at 99, §24A.

33 115 P.2d 123, decided Feb. 18, 1941. Rehearing denied July 8, 1941.

34 Skinner, at 127.

35 316 U.S. 535, decided June 1, 1942.

36 Id. at 538-539.

37 Id. at 541-542.

38 Id. at 543-545.

39 Id. at 546-547.

40 238 P.2d 367, decided Nov. 28, 1951.

41 Id. at 369-370.

42 Id. at 370.

43 Id. at 371.

44 Jack Lait and Lee Mortimer, Washington Confidential, (New York:Crown, 1951). This book is an infamous anti-Gay work that claimed that Gay men and Lesbians were overrunning the federal government.

45 Woody, at 371.

46 Id. at 374.

47 255 P.2d 525, decided Mar. 25, 1953.

48 Id. at 528.

49 283 P.2d 558, decided Apr. 13, 1955. Rehearing denied May 18, 1955. Cert. denied, 350 U.S. 878, decided Nov. 7, 1955.

50 283 P.2d, at 561.

51 Id. at 565, n.1.

52 302 P.2d 162, decided Aug. 1, 1956. Rehearing denied Oct. 17, 1956.

53 Id. at 165.

54 374 P.2d 786, decided Sep. 19, 1962.

55 Id. at 788.

56 410 P.2d 84, decided Jan. 12, 1966.

57 Id. at 85.

58 489 P.2d 526, decided Sep. 1, 1971. Rehearing denied Oct. 2, 1971.

59 Id. at 526-527.

60 Id. at 527.

61 Id. at 528.

62 Id.

63 Id.

64 506 P.2d 987, decided Feb. 14, 1973. Cert. denied, 414 U.S. 991, decided Nov. 5, 1973. Rehearing denied, 414 U.S. 1138, decided Jan. 7, 1974.

65 506 P.2d, at 987.

66 Id. at 988.

67 Id.

68 Id. at 989.

69 414 U.S. 991, decided Nov. 5, 1973. Rehearing denied, 414 U.S. 1138, decided Jan. 7, 1974.

70 594 P.2d 780, decided Apr. 11, 1979.

71 Id. at 782.

72 695 P.2d 6, decided Jan. 20, 1985.

73 Id. at 7.

74 Id.

75 713 P.2d 18, decided Jan. 7, 1986. Corrected Jan. 15, 1986.

76 Id. at 20.

77 715 P.2d 1105, decided Feb. 26, 1986. Rehearing denied Apr. 14, 1986. Cert. denied, 479 U.S. 890, decided Oct. 14, 1986.

78 715 P.2d, at 1109.

79 Id. at 1109-1110.

80 James B. O’Hara and T. Howland Sanks, "Eugenic Sterilization," 45 Georgetown L.J. 20 (1956-1957), at 44 (Appendix C).

81 Columbus Citizen-Journal, May 1, 1979, 3:1. The vote in the House was 48-46.

82 Oklahoma Session Laws 1983, page 216, ch. 71, enacted Apr. 29, 1983, effective immediately as an emergency measure.

83 Oklahoma Session Laws 1988, page 454, ch. 131, enacted Apr. 14, 1988, effective Nov. 1, 1988.

84 Id. at 456, §10(c).

85 763 P.2d 121, decided Sep. 27, 1988.

86 Id. at 123.

87 763 P.2d 135, decided Oct. 12, 1988.

88 Id. at 139.

89 792 P.2d 1186, decided May 11, 1990.

90 Id. at 1188.

91 906 P.2d 785, decided Nov. 21, 1995.

92 Id. at 786.

93 134 L.Ed. 647, decided Apr. 22, 1996.

94 Oklahoma Session Laws 1997, page 501, ch. 133, enacted Apr. 22, 1997, effective July 1, 1998.

95 Id. at 695, § 263.

96 Oklahoma Statutes Annoted, Title 21, § 9.

97 Oklahoma Session Laws Ex. Sess. 1999, page 2328, ch. 5, enacted June 30, 1999, effective July 1, 1999.

98 Id. at 2537, § 454.

99 Id. at 2412, § 167.

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