Answers to Common Questions
Empire State Pride Agenda
What is a consensual sodomy law?
A "consensual sodomy" law makes it illegal for two adults to willingly engage
in sexual activity other than penis-to-vagina intercourse. Eighteen states still
criminalize consensual oral and anal sex; five of these states criminalize such conduct
only when the participants are of the same sex. Penalties can range from 30 days to life
imprisonment. New York’s consensual sodomy law, Penal Law section 130.38, applied to
any unmarried persons who engaged in "deviate sexual intercourse," defined in
the law as sexual conduct "consisting of contact between the penis and the anus, the
mouth and the penis, or the mouth and the vulva." Consensual sodomy was a Class B
misdemeanor, punishable by up to three months imprisonment and a fine of up to $500.
When did New York repeal its consensual sodomy law?
The New York State Legislature moved to formally remove the consensual sodomy law from
the New York State code on June 22, 2000. This was part of the sweeping Sexual Assault
Reform Act (SARA), an omnibus bill designed to strengthen and modernize New York’s
antiquated sexual assault laws.
Was the consensual sodomy law enforceable prior to its repeal?
Fortunately, no. In 1980, the New York Court of Appeals ruled that the state’s
consensual sodomy law was unconstitutional. Since that time, the law was supposed to have
been unenforceable. However, even unconstitutional statutes remain on the books until
formally removed by the legislature. In this way, the consensual sodomy statute stood as
an insult to gay, lesbian and bisexual people, reminding us that the way we express our
love was at one time considered criminal. More seriously, some police and District
Attorneys occasionally used the sodomy law to persecute gay couples or individuals in
public or semi-public settings (such as in a car, park or public bathroom). Often, just
the threat of being charged with consensual sodomy was enough to force a defendant to
plead guilty to other charges in order to avoid an embarrassing trial. The repeal of the
consensual sodomy law not only represents a symbolic victory in its removal of the last
vestiges of criminalization of homosexuality, it also eliminates any possibility of this
unconstitutional law being used to target gay people.
What remains to be done on this issue?
As part of SARA, the legislature codified its intent to modernize the other sections of
the sexual assault law. In future months, the legislature is expected to remove the words
"sodomy" and "deviate sexual intercourse" from the law completely. The
Legislature’s intent is to do away with the false distinctions between the various
types of sexual assault so that the law would no longer distinguish between sexual assault
with a finger, a foreign object and a penis, as it does now. Instead, the now separate
crimes of rape, sodomy, and sexual abuse would be consolidated into a new crime with more
enlightened language (such as criminal sexual assault), as has been done federally and in
the majority of other states. This change would benefit the lesbian and gay community by
eliminating the association of sodomy with rape and deviancy. More importantly, it would
assist victims of sexual assault, who often feel revictimized when they are forced to
testify to having been "sodomized" instead of attacked or raped. The legislature
must be held to its statutory promise to remove these stigmatizing terms from the law and
bring New York’s sexual assault law out of the dark ages.
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