The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2002
Rhode Island
"All of the bizarre means for perverting the sexual
function that are conceived by depraved minds."
The Colonial Period, 1607-1776
By a statute of 1647,1 sodomy was made a
capital offense in Rhode Island. The wording was unique in the history of the
United States. Under the heading "Touching Whoremongers," the
statute read like a sermon.
First of sodomy, which is forbidden by this present Assembly throughout
the whole colony, and by sundry statutes of England. 25 Hen. 8, 6;
5 Eliz. 17. It is a vile affection, whereby men given up thereto
leave the natural use of woman and burn in their lusts one toward another,
and so men with men work that which is unseemly, as that Doctor of the
Gentiles in his letter to the Romans once spake, i. 27. The penalty
concluded by that state under whose authority we are is felony of death
without remedy. See 5 Eliz. 17.2
There were no prosecutions under this law.3
In 1663, this law, still under the "Touching Whoremongers"
heading, was changed slightly to read
This Assembly doe Forbid and Declare First Against Sodomie which Is a
vile Affection men given up thereto leave the Naturall use of women &
burn in their lust one Towards Another and so men with men worke yt
which is abominable and unseemly ye Penalty thereof Is Felony
of Death without Remedy 5 Eli: 17[.]4
There were no prosecutions under this law through the year 1670.5
This law remained on the books until a statute of 17296
reworded it to read
That whosoever shall perpetrate and commit the detestable and
abominable Crimes of Sodomy, or Buggery, and be thereof Lawfully
convicted, shall suffer the Pains of Death, as in Cases of Felony, without
the Benefit of Clergy.7
A separate section created a statute of limitations of very short duration.
All offenses had to be prosecuted within ten days of commission.8
Period Summary: Rhode Island started with a uniquely worded
sodomy law reading like a sermon, although there were no prosecutions
under that law. A successor law, worded only with slightly less religious
appeal, also had no prosecutions under it for at least its first
half-decade. A third colonial law eliminated the religious language of the
first two, but its structure clearly emanated from the religious bias of
the predecessors.
The Post-Revolution Period, 1776-1873
A statute of 17989 again reworded the
prohibitive language and lightened the penalty for a first offense.
That every person who shall be convicted of sodomy, or of being
accessary thereto before the fact, shall, for the first offence, be
carried to the gallows in a cart, and set upon the said gallows, for a
space of time not exceeding four hours, and thence to the common gaol,
there to be confined for a term not exceeding three years, and shall be
grievously fined at the discretion of the Court; and for the second
offense shall suffer death.10
A separate provision of the new criminal code commanded that hanging be the
method of inflicting the penalty of death.11
A new code enacted in 184412 eliminated the
death penalty for sodomy and substituted 1-12 years in prison.13
The proscription also was reworded to outlaw "the abominable and
detestable crime against nature, either with mankind or with beast[.]"14
This language would remain unchanged through the years, even with changes in
the penalty.
In 1872, another comprehensive revision of Rhode Island law15
raised the minimum penalty from one to seven years, but retained the maximum
of 12 years.16
Period Summary: Rhode Island moved to eliminate the death
penalty for sodomy in 1798, but adopted a unique law that removed that
penalty only for a first offense. It was not until nearly a half-century
later that death was removed as a possibility for any act of sodomy.
During Victorian times, the minimum penalty was increased to 7 years, one
of the longest minimums in the country.
The Victorian Morality Period, 1873-1948
I. Sodomy
An 1881 revision17 again raised the penalty.
Although the appointed compilers of law were under instructions not to make
changes "to affect the substance of the existing statute law[,]"18
the 7-12 year penalty for sodomy was raised to 7-20 years.19
No further changes have been made in this law.20
One reason for the lack of reported sodomy cases in Rhode Island for some
three hundred years after founding is that Rhode Island did not maintain
transcripts of trials, thus making it difficult for defendants to file
appeals.21
However, one sodomy trial held in 1919 had some details preserved. Samuel
Kent, a minister, was tried for sexual relations with males at the Newport
YMCA in a notorious Naval scandal. Kent, although almost certainly guilty, was
acquitted due to the actions of a hard-hitting defense team.22
II. Sterilization
One physician, writing in 1925 in a medical journal, recommended a broad
sterilization law for Rhode Island, a law that was not adopted. Included
should be
the Sodomist and other perverts [who] blight and taint within the State
Institutions those younger lives with whom they come in contact. And even
after years spent within the narrow confines of their cemented cells, upon
their release these perverts hasten to their own reincarnation because
they are obsessed by the impulse of depraved passion at the sight of some
innocent child.23
Period Summary: During this era, there are no reported sodomy
cases and only a single change to the statute, raising the maximum penalty
to 20 years. A sterilization law to cover sodomy was recommended for the
state, but never adopted.
The Kinsey Period, 1948-1986
In 1962, more than 300 years after the first enactment of a law against
sodomy, the Rhode Island Supreme Court received a case under the law, and
began a string of hostile decisions. In State v. Milne,24
the Court was asked whether fellatio constituted a "crime against
nature." Although the decision does not say so, it appears that Milne’s
case was notorious, because he had requested and been granted a change of
venue during his trial.25 He had been convicted
because of his act of fellatio with a 16-year-old male, both parties
consenting to the act.26 Milne raised the issue
of consent in his appeal, which the Court rejected, saying that the issue was
a "matter exclusively for determination by the legislature."27
After reviewing other cases presented with the question as to whether fellatio
was included in the term "crime against nature,"28
the Court claimed that the legislature, in using the phrase "crime
against nature" had "made clear an intention to change the common
law" with respect to the acts covered by the statute. The Court found its
logic in reviewing the entire chapter of sexual crimes and the "absurd
result" that would be reached if it believed that the legislature’s
intent had been to "[leave] uninhibited all other forms of unnatural
copulation."29 Also rejecting Milne’s
claim that the term "crime against nature" was not of constitutional
certainty, the Court said that it
would not be reasonable to require a legislature to anticipate and
describe in other than comprehensive terms all of the bizarre means for
perverting the sexual function that are conceived by depraved minds.30
In a 1970 case, State v. Correia,31
the Rhode Island Supreme Court unanimously upheld the conviction of a man for
sodomy with a 14-year-old male, even though the complaining witness could not
recall the date of the alleged act, seemed confused as to what he and the
defendant supposedly had been doing before the alleged act32
and even though a doctor who had examined the young male’s rectum found no
evidence of recent penetration.33
In 1972, Rhode Island enacted a law34 to
permit compensation to any person killed or injured by any of a number of
specified crimes, one of them being "the abominable and detestable crime
against nature."35
The Commission on the Jurisprudence of the Future made recommendations for
revision of the criminal code in 1973. One was repeal of the "crime
against nature" law. By failing to act on the recommendation, the Rhode
Island legislature proved that it wished to continue with the jurisprudence of
the past.36
A revision in 197537 changed the penalty for
the commission of a crime at common law not otherwise covered by statute. Any
act that was a felony at common law could be penalized by up to five years in
prison and/or a fine of $5,000.38
In State v. Levitt,39 decided in
1977, the Rhode Island Supreme Court expressly rejected an argument that the
"crime against nature" law was unconstitutionally vague,40
despite quoting from decisions of the Alaska and Florida Supreme Courts that
identical wording was found to be unconstitutionally vague by those courts.41
In 1980, the Court rejected the privacy claims raised in State v.
Santos.42 The Court first upheld the right
of the trial judge to exclude the public from the courtroom because of the
"facts to be elicited" during the testimony.43
The Court gave a lengthy analysis to United States Supreme Court decisions on
the right to privacy44 and concluded that the
right existed only for decisions regarding childbearing45
and that "the right of privacy is inapplicable to the private unnatural
copulation between unmarried adults."46
Two months later, the Rhode Island legislature enacted a statute47
that expanded the state’s law against "loitering for indecent
purposes" (providing for a penalty of up to six months in jail) to cover
any "private place."48
In a second case that year, State v. McParlin,49
the Rhode Island Supreme Court decided that cunnilingus also was a "crime
against nature" and upheld the conviction of McParlin even though his
indictment charged him with having committed fellatio on a woman. The
Court decided that the word "fellatio" was surplusage, following in
the indictment, as it did, the words "abominable and detestable crime
against nature."50
In 1983, the Court decided the case of State v. Souza51
and rejected a sodomy defendant’s contention that the enactment of a
comprehensive sexual assault law impliedly repealed the "crime against
nature" statute.52
A 1983 amendment to the loitering law53
raised the penalty for a second offense to a maximum of one year in jail
and/or a fine of up to $500.54
Period Summary: Rhode Island did not receive its first reported
sodomy case until 1962, more than 300 years after its first sodomy law was
enacted. The still-used term "crime against nature" was found to
include fellatio and, in a later case, cunnilingus. Heterosexuals were
ruled as being covered by the law as well. The Rhode Island legislature
ignored a recommendation from a committee to repeal the law. It did,
however, enact a unique law permitting damages suits against persons who
injured others while engaging in sodomy.
The Post-Hardwick Period, 1986-Present
The Rhode Island Supreme Court again unanimously upheld the
constitutionality of the sodomy law in 1995 in State v. Lopes.55
Showing no improvement in attitude since 1980 when it last upheld the law, the
Court again swept broadly with its decision, continuing to include unmarried
heterosexuals under its thumb as well. The U.S. Supreme Court declined to
review the decision.56
In 1998, the Rhode Island legislature finally decriminalized consensual
sodomy.57 The new law merely removed references
to human sexual activity, leaving the bestiality provision intact. The age of
consent is 16.
An effort to continue enforcing this statute against those
arrested under it prior to the repeal was squelched by the Rhode Island Supreme
Court in 1999 in State v. Mullen.58 By a
3-2 vote, the Court found that the common law rule requiring abandonment of
pending prosecutions against conduct now legalized overrules the state’s
general savings statute.
Common-law crimes remain recognized in Rhode Island,59
and case law in the state is that the repeal of a statute in derogation of the
common law revives the common-law statute.60
However, so long as the bestiality provision remains under the "Abominable
and Detestable Crime Against Nature" rubric, the common-law provision is
blocked from activation.
Period Summary:
Another
opportunity for the Rhode Island Supreme Court to strike down the sodomy
law decided that private consensual sex remained the prosecutor’s
business. The legislature finally did its job and repealed the provisions
covering humans in 1998. By keeping bestiality a crime, the legislature,
possibly unwittingly, prevented reactivation of the state’s common-law
crime reception statute.
Footnotes
1 Rhode Island Proceedings of First
General Assembly 1647, pages 31-32, adopted May 1647.
2 Id.
3 Rhode Island Court Records. Records
of the Court of Trials of the Colony of Providence Plantations
1647-1662, Vol. I, (Providence, 1920).
4 John D. Cushing, ed., The Earliest
Acts and Laws of Rhode Island and Providence Plantations 1647-1719,
(Wilmington:Michael Glazier, Inc., 1978), page 64. The exact date of
enactment is not provided.
5 Rhode Island Court Records. Records
of the Court of Trials of the Colony of Providence Plantations
1662-1670, Vol. II, (Providence, 1922).
6 The Charter Granted by His Majesty
King Charles the Second to the Colony of Rhode-Island, and
Providence-Plantations in America, (Newport:James Franklin, 1730),
"An Act for Punishing Crimes," page 171.
7 Id.
8 Id. at 176.
9 Laws of Rhode Island 1798,
"An Act to reform the penal laws," page 584. The date of
enactment is not provided.
10 Id. at 586, §8.
11 Id. at 605, §59.
12 Public Laws of the State of
Rhode-Island and Providence Plantations, (Providence:Knowles &
Vose, 1844), enacted Jan. 1844.
13 Id. at 394, §90.
14 Id.
15 General Statutes of Rhode Island
1872. The date of enactment is not provided.
16 Id. at 553-554, §12.
17 The Public Statutes of the State
of Rhode Island and Providence Plantations, (Providence:E.L. Freeman
& Co., 1882). The code was enacted in May 1881, but the exact date
is not provided.
18 Id. Preface.
19 Id. at 686, §10.
20 Currently codified as §11-10-1,
General Laws 1956.
21 Lawrence R. Murphy, Perverts by
Official Order, (New York:Harrington Park Press, 1988), page 101.
22 Id. at 101-103.
23 Henry A. Jones, "Is the State
of Rhode Island Ready to Have a Law Authorizing the Eugenic
Sterilization of the Mental Defectives and Criminals?" The Rhode
Island Medical Journal, 8:75-79, at 75 (May 1925).
24 187 A.2d 136, decided Dec. 28, 1962.
Cert. denied, 373 U.S. 542, decided May 27, 1963. Famed attorney William
Kuntsler represented Milne in his appeal before the U.S. Supreme Court.
25 187 A.2d, at 137.
26 Id. at 137-138.
27 Id. at 138.
28 Id. at 138-139.
29 Id. at 139.
30 Id. at 140.
31 262 A.2d 619, decided Mar. 4, 1970.
32 Id. at 620-621.
33 Id. at 622.
34 Public Laws of Rhode Island 1972,
page 972, ch. 254, enacted May 4, 1972.
35 Id. at 976, §12-24-4 (12).
36 The Advocate, Vol. 118
(Aug. 15, 1973), page 16.
37 Public Laws of Rhode Island 1975,
page 776, ch. 283, enacted May 22, 1975.
38 Id.
39 371 A.2d 596, decided Apr. 1, 1977.
40 Id. at 598-599.
41 Id. at 599.
42 413 A.2d 58, decided Mar. 20, 1980.
43 Id. at 62.
44 Id. at 66-68.
45 Id. at 68.
46 Id.
47 Public Laws of Rhode Island 1980,
page 1217, ch. 279, enacted May 15, 1980.
48 Id. at 1218 §2.
49 422 A.2d 742, decided Nov. 17, 1980.
50 Id. at 743.
51 456 A.2d 775, decided Feb. 25, 1983.
52 Id. at 781.
53 Public Laws of Rhode Island 1983,
page 357, ch. 196, enacted May 17, 1983.
54 Id. at 358 §1.
55 660 A.2d 707, decided June 21, 1995.
56 133 L.Ed.2d 861, decided Feb. 20,
1996.
57 Public Laws of Rhode Island 1998,
ch. 24, enacted June 5, 1998.
58 740 A.2d 783, decided Nov. 16, 1999.
59 General Laws 1956, §11-1-1.
60 Mathewson v. Phoenix Iron
Foundry, 20 F. 281, at 285, decided May 20, 1884.
