Idaho Sex Reform: Adult Consent Law Adopted; Nation’s Third
The Advocate,
June 22, 1971
BOISE, Ida.— This rugged western state whose
capital, Boise, was convulsed by what has become widely known as a
"homosexual witch-hunt" in 1955 and 1956 has become the third state
in the nation to wipe laws dealing with private homosexual behavior off its
law books.
The state’s new penal code, signed into law by Democratic governor Cecil
D. Andrus on March 18, eliminates all penalties for private homosexual acts
between freely consenting persons 16 years old and older and reduces
solicitation for homosexual acts where no money is involved to a petty
misdemeanor carrying a 30-day penalty.
Under the old law "the infamous crime against nature" was
punishable by not less than five years in prison. One defendant in the mid-’50s
scandal got life.
The new code goes into effect on January 1, 1971 [sic, 1972
-Bob], following Connecticut’s sex law reform, which takes effect in
October. Illinois, the pioneer state in homosexual law reform, abolished its
old law in January 1962.
At least one other state, Colorado, is expected to abolish its laws against
private homosexual acts this year, and Oregon and Hawaii may follow suit.
One of the principal architects of the Idaho reform was former state
Republican senator William Roden, who was a deputy prosecutor in the office of
Ada County (Boise) prosecuting attorney Blaine Evans during the witch-hunt.
Roden now calls the witch-hunt, which was detailed by former Time
and Newsweek editor John Gerassi in the 1966 best-seller The Boys of
Boise, "a very unfortunate situation" and indicates that would
have pursued it with less vigor if he had been prosecutor.
Initiated by Legislature
The new code is the result of a study initiated by the legislature itself
in 1967, when an interim subcommittee of the Legislative Council was appointed
to explore a possible need for a general penal code revision.
Rode[n], then in his fourth term, was chairman of the subcommittee. When he
chose not to run for reelection two years ago, he was retained as a consultant
to the subcommittee and did the drafting that led to the final bill.
The former Boise senator told The Advocate the new code was
substantially the same as the Model Penal Code of the American Law Institute,
which has been used as a guide for most penal code revisions considered by
state legislatures. Its provision making "loitering to solicit deviate
sexual relations" a petty offense has been widely criticized by advocates
of homosexual law reform and was deleted in the Illinois reform and in the
measure now awaiting the signature of Colorado governor John Love.
Rep. Clyde Keithly (R-Nampa) served as floor sponsor for the legislation
embodying the new code, which the House passed 42-25 on February 26. Keithly
is chairman of the house judiciary rules and administration committee, the
code’s official sponsor.
The senate passed the measure March 9 by a vote of 23-11.
Roden, now an attorney in private practice, said that "the basic area
of controversy" in both houses was the sex provisions of the code.
"I personally favor the provisions," he said. "I think our
present laws as we have them in Idaho are rather archaic, and I frankly don’t
care to see the so-called crimes against nature made criminal."
The Boys of Boise, which the Harvard Law Review called "a
chilling account of the influence on the police and judiciary of an hysterical
and largely ignorant public," wasn’t discussed in debate on the sex
provisions of the code, Roden said.
Basic Provisions
These are the basic provisions of the code, as set forth by assistant
attorney general Martin Ward, that pertain to homosexual acts:
Eliminates the original "infamous crime against nature"
provisions in the law and substitutes these, under what will become Tide 18,
Chapter 9:
"18-903. (1.) DEVIATE SEXUAL INTERCOURSE BY FORCE OR IMPOSITION. A
person who engages in deviate sexual intercourse with another person or who
causes another to engage in deviate sexual intercourse commits a felony of the
second degree if (1) he compels the other person to participate by force or by
threat of imminent death, serious bodily injury, extreme pain, or kidnapping
to be inflicted on anyone, or (b) he has substantially impaired the other
person’s power to appraise or control his conduct by administering or
employing without knowledge of the other person drugs, intoxicants, or other
means for the purpose of preventing resistance, or (c) the other person is
unconscious, or (3) the other person is less than 12 years old. Deviate sexual
intercourse means sexual intercourse per os or per annum (Mouth
or anus) between human beings who are not husband and wife and any form of
sexual intercourse with an animal.
"(2.) BY OTHER IMPOSITION. A person who engages in deviate sexual
intercourse with another person, or who causes another to engage in deviate
sexual intercourse commits a felony of the third degree if (a) he compels the
other person to participate by any threat that would prevent resistance by a
person of ordinary resolution, or (b) he knows that the other person suffers
from a mental disease or defect which renders him incapable of appraising the
nature of his conduct, or (c) he knows that the other person submits because
he is unaware a sexual act is being committed upon him.
"18-904. CORRUPTION OF MINORS AND SEDUCTION. A male who has entered
sexual intercourse with a female not his wife, or any person who engages in
deviate sexual intercourse or causes another to engage in deviate sexual
intercourse is guilty of a felony of the third degree if (a) the other person
is less than 16 years old and the actor is at least 4 years older than the
other person, or (b) the other person is less than 21 years old and the actor
is his guardian or otherwise responsible for the general supervision of his
welfare, or (c) the other person is in custody of law or detained in a
hospital or other institution and the actor has supervisory or disciplinary
authority over him."
In Idaho length of sentence is indeterminate, and the judge has
considerable discretion in setting penalties. The new codes sets 30 years as a
maximum for a second-degree felony and 15 years as a maximum for a
third-degree felony.
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