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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
South Dakota
"Even if our Legislature had in such statute used
the term ‘sodomy’, we would feel bound to give such word the broad
meaning given it by lexicographers."
The Post-Revolution Period, 1776-1873
When organized by Congress in 1861,1
the Dakota Territory was given neither a sodomy law nor a reception of
common-law crimes.
The Territory of Dakota, then comprising both of the current Dakota states,
enacted a criminal code2
in 1862 that established a sentence of one year to life for sodomy, with the
common-law definition.3
Period Summary: As with most new territories, the Dakota
Territory (which then included South Dakota) received no criminal code
from Congress upon creation. However, also like most territories, Dakota
adopted one early on in its home-rule period. The wording, also typical,
was the common-law definition, and the maximum penalty was life
imprisonment, also common.
The Victorian Morality Period, 1873-1948
This law was amended in a new code adopted in 18774
that eliminated the minimum penalty and reduced the maximum penalty to ten
years.5
In 1889, the Dakota Territory was split into two states that were admitted
into the Union. The 1877 law remained in effect. The two Dakotas took
different paths when it came to sodomy laws. South Dakota, unlike its twin to
the north, made no effort to revise its law.
In a new code of laws adopted in 1903,6
South Dakota abrogated common-law crimes.7
There is only one reported sodomy case in the state, State v. Whitmarsh,8
decided in 1910. By a 4-1 vote, the South Dakota Supreme Court ruled that
fellatio constituted the "crime against nature." In a decision that
was highly moralistic, the Court regretted that it had to
soil the pages of our reports with a discussion of a subject so
loathsome and disgusting as the one confronting us.9
Then, discussing the unusualness of the act of fellatio, the Court added
that "this unusual act is many times more ‘detestable and abominable’
than that made criminal at common law."10
After reviewing ancient writers and other court decisions on the issue,11
the Court concluded that "the clause ‘crime against nature’ as used
in our statute was so used intending to include therein every unnatural carnal
copulation."12
The Court went on to say that it would have no hesitation legislating in place
of the state legislature.
Even if our Legislature had in such statute used the term ‘sodomy,’
we would feel bound to give such word the broad meaning given it by
lexicographers.13
Justice Dighton Corson dissented without opinion.14
Period Summary: Early in this era, the Dakota Territory reduced
the maximum sodomy penalty from life to 10 years, an action that was
unusual. In 1889, the territory was divided and admitted to the Union as
two states. South Dakota left its sodomy law worded as the "crime
against nature," but the state’s Supreme Court interpreted that
wording to include an act of fellatio.
The Kinsey Period, 1948-1986
In 1950, South Dakota enacted a psychopathic offender law.15
The law was limited to sexual acts with minors and created a broad crime of
"indecent molestation of children."16
This makes it unclear if the legislators thought that there was
"decent" molestation of children. The definition of this crime was
any lewd or lascivious act or acts, deed or deeds, sign or signs,
performance or performances, or conduct upon, or in the immediate vicinity
of the person of a minor child under the age of fifteen years.17
The breadth of this law made it possible to be convicted of molesting a
child for posting a "lewd or lascivious" sign somewhere and having a
child see it unintentionally.
The law was toned down in 195518
to require willful commission of a sexual act on the body of the minor.19
The psychopathic offender provision remained limited to such acts with minors.20
No other action was taken either in the courts or the legislature on the
sodomy law until a comprehensive criminal code revision of 197621
retained the abrogation of common-law crimes,22
repealed the consensual sodomy law,23
and established an age of consent of 13 years.24
This age of consent apparently was a source of controversy because, in
1978, a new law25
raised it to 15.26
Period Summary: South Dakota adopted a very broad psychopathic
offender law during the McCarthy era, which it later toned down. There
were no other reported sodomy cases in the state and no changes to the
sodomy law during that time. In 1976, a new criminal code was adopted that
repealed the sodomy law and set the age of consent at 13, the lowest in
the nation. Two years later, the age was raised to 15, still among the
lowest.
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 12 Stat. 209, enacted Mar. 2, 1861.
2 Laws of Dakota 1862, page 165, ch.
IX, §47, enacted Apr. 28, 1862.
3 Id.
4 Territorial Revised Codes of Dakota
1877, page 777, ch. XXXI, §346, enacted Feb. 7, 1877.
5 Id.
6 G.C. Moody, Bartlett Tripp, and James M.
Brown, compilers, The Revised Codes 1903 State of South Dakota, (Pierre:State
Publishing Company, 1903), enacted Jan. 21, 1903.
7 Id. Penal Code, Ch. I, page 1098,
§2.
8 128 N.W. 580, decided Nov. 18, 1910.
9 Id. at 581.
10 Id. at 582.
11 Id. at 582-583.
12 Id. at 583.
13 Id.
14 Id.
15 Laws of South Dakota 1950 Special
Session, page 5, ch. 2, enacted Feb. 15, 1950.
16 Id. §1.
17 Id.
18 Laws of South Dakota 1955, page
48, ch. 27, enacted Mar. 1, 1955.
19 Id. §1.
20 Id.
21 Laws of South Dakota 1976, page
227, ch. 158, enacted Feb. 27, 1976, effective Apr. 1, 1977.
22 Id. at 232, §1-2.
23 Id. at 262, §22-8. The sodomy
law had been codified previously as §22-22-21.
24 Id. at 261, §22-3.
25 Laws of South Dakota 1978, page
221, ch. 158, enacted Mar. 8, 1978.
26 Id. at 223, §10.
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