OREGON SODOMY LAW
By George Painter
Oregon's current sexual freedom has not been around as long as the state. See the dramatic changes over the years in laws and court decisions affecting consensual sexual activity in Oregon.
"[He] immediately began to talk to them about "queans"
the significance of which Van Hulen understood."
The Post-Revolution Period, 1776-1873
Upon settlement, Oregon was overwhelmingly male and "infamous means of satisfying the long denied passions of the seafarer were sought and supplied" in the city of Portland.(1) The
comparative absence of women stimulated grossness and coarseness of speech and manners, and the temptation toward immorality was greatly intensified.(2)
The first white settlers adopted what they called the "Blue Book" in 1843, the first set of laws in Oregon, even though Oregon was not, at that time, a legal entity. What came out of this code in terms of the criminal law is something of a puzzle. All criminal laws of Iowa as adopted in that state's code of 1838 were adopted, as were "the principles of common law and equity" in matters where no Iowa statute governed. (3) The Iowa code made no mention of sodomy but adopted all criminal laws of Wisconsin, which included sodomy. This action adopted, in a most indirect fashion, sodomy as a crime in Oregon. The reference to "the principles of common law and equity" is unclear as to whether criminal, civil, or both branches of the common law were adopted.
It is unfortunate that Oregon chose the original Iowa code to adopt, because Iowa adopted another code in 1840 that abrogated all Wisconsin laws and did not refer to sodomy or common-law crimes. This legalized sodomy in Iowa and would have in Oregon.
In 1844, a new law (4) retained the adoption of the original Iowa code and reworded the common-law provision to a more clear "common law of England and principles of equity," thus apparently adopting both the criminal and civil branches of the common law. This code was put to a vote in the thinly populated Oregon country and, by a margin of 255 to 52 (83%-17%), the voters approved it over the previous, more vague law. (5)
The first Iowa code, with its adoption of the laws of Wisconsin, again was reaffirmed in a law of 1845. (6)
The Organic Law for the Oregon Territory in 1848 (7) made no reference to common-law crimes or sodomy but retained all existing laws.
The criminal code of 1850 the first of Oregon's own, made no mention of either sodomy or common-law crimes, thus legalizing sodomy in the state.(8)
However, in 1853, the Territorial legislature passed a new criminal code(9) that abrogated common-law crimes(10) and contained a sodomy provision with the common-law definition and a penalty of 1-5 years in the penitentiary.(11)
In 1873, the Oregon Supreme Court decided in State v. Vowels(12) that "courts have no right to assume jurisdiction of common-law offenses not included in our Criminal Code."(13)
Period Summary: Oregon showed much of the pioneering spirit with its early criminal law. The Blue Book, a code of law adopted in 1843, adopted the original laws of the Iowa Territory verbatim. The Iowa code, although not mentioning sodomy as a crime, itself had adopted all the laws of Wisconsin, which did outlaw sodomy. Thus, in a roundabout way, sodomy was made illegal in Oregon. The irony is that, just a few months before the Blue Book was enacted, Iowa adopted its own code and made no mention of sodomy. Since Oregon adopted the original Iowa laws, it was left with a sodomy law that Iowa cast off. Early reports in Oregon show an all-male or nearly all-male population, leading to much "temptation toward immorality." Whether this was seen as a major problem in the Territory is unclear. A code of law adopted in 1850 deleted reference to sodomy, although a new sodomy law was enacted three years later that would endure, in one form or another, for more than a century.
The Victorian Morality Period, 1873-1948
I. Sodomy
In 1894, a newspaper story told that a neighbor reported a male couple to police and one partner was convicted of sodomy as a result.(14)
Governor Oswald West, who was responsible for launching a crusade against vice in 1912, urged the Oregon legislature to "investigate this subject [degeneracy]."(15)
Rather than an investigation, the legislature responded with new laws in 1913, including a unique statute(16) that reworded the sodomy prohibition as follows.
If any person shall commit sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustain osculatory relations with the private parts of any man, woman or child, or permit such relations to be sustained with his or her private parts, such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years.(17)
In addition to the incredible breadth of the statute that obviously covered practically any kind of erotic activity, the maximum penalty was tripled. (Another 1913 law was the sterilization statute; see the Sterilization section.) This new sodomy law turned out to be unneeded, however. Just a few months later, the Oregon Supreme Court issued decisions that, even without the law, would have rendered fellatio illegal.
In 1913, in State v. Start,(18) the Court decided that fellatio was a "crime against nature." The Court defined the act of fellatio by Start with partner Fred Rodby for which the defendant was convicted as "taking into his mouth the penis of Rodby and sucking the same until a seminal emission ensued."(19) After giving an anatomical lecture concerning the two openings of the alimentary canal, the Court could not understand why ancient writers did not recognize fellatio as an act of sodomy. "The moral filthiness and iniquity against which the statute is aimed is the same in both cases [anal and oral sex]."(20) Witnesses Fred Rodby and Earl Van Hulen on a street in Portland and Rodby asked Van Hulen to accompany him to an office to meet Harry Start. Upon entering the office, Start closed and locked the door and immediately began to talk to them about "queans" the significance of which Van Hulen understood. This conversation led up to the act charged in the indictment. He remained seated in the room and watched the performance of the act, testifying substantially that he stayed there because he thought it was better than to go out, and for the reason that if he opened the door and left the room he would be liable to disclose what was going on inside; that he told the defendant he thought it was very daring, and that it was bad enough for two without three in the room.(21)
The Court nevertheless voted 3-2 to overturn Start's conviction because of the admission of testimony of other males who said that Start engaged in similar acts in the same office with them.(22) In dissent, Chief Justice Thomas McBride acknowledged that the crime "is unusual and unnatural, as its name indicates" and "we are dealing with an offense not usually committed, and rarely committed in the manner described in the testimony."(23) McBride also felt that the "mentally normal man is as incapable of committing it as the physically normal man is incapable of carrying away a rail from a railway track."(24) McBride felt that the other acts should be admissible because they tended to show a pattern of behavior.(25)
The companion case, State v. Wedemeyer,(26) was disposed of by the same 3-2 vote on the Start precedent.
Start's attorney demanded that charges against Start be dismissed and threatened to seek habeas corpus relief from the Oregon Supreme Court unless that was done.(27)
Judge W.N. Gatens dismissed charges against a number of sodomy arrestees because the state was attempting to prosecute them under the new 1913 law for activity that occurred the previous year, a clear violation of the ex post facto provision of the Constitution. Among those freed were both Harry Start and Edward Wedemeyer.(28) Start was permitted to leave the country and never was retried.(29)
Attorney E.S.J. McAllister was as lucky as Start and Wedemeyer. In State v. McAllister,(30) a now-expanded Oregon Supreme Court divided 4-3 to overturn the conviction because of a trial error. The majority opinion mentioned that the trial judge told the jury that he thought a man with normal sexual instincts was not capable of committing the crime charged, and that only a person of abnormal sexual sense is capable of committing such an offense. The court then added that if the jury were satisfied that one was possessed of this unnatural or abnormal sexual sense, they might infer that he had a motive, a reason, or a force impelling him to do such an act. The court practically assumed the position of an expert witness, and gave the jury his opinion concerning the kind of person who could and the kind of one who could not commit the crime against nature. This was prejudicial error. [Emphasis was the Court's].(31)
The dissent was written by Justice Charles McNary. He wrote that Harry Work met Roy Kadel on a street in Portland and asked him to accompany him to McAllister's office. Kadel entered the office and Work waited outside. Upon becoming impatient, Work knocked on the door, opened it and saw
Kadel wiping his penis with a handkerchief; that Work ejaculated, "Hello, what is this?" and Kadel replied, "McAllister and I are having a little trade," which, in the parlance of the morally depraved, means the performance of the act defined in the indictment[.](32)
McNary also found significant a post card mailed from McAllister to Kadel before the above act occurred.
"Dear Roy: I send you this as a mark of my appreciation of your frequent calls. [Signed] McAllister."
"The language employed by defendant in this message to Kadel indicates most strikingly the cordial relations existing between them, and manifests defendant's appreciation of Kadel's frequent calls, which were for an illicit purpose."(33) McNary also claimed that "the defendant's dealings with Kadel were not prompted by natural affection; that defendant courted Kadel's friendship for the purpose of satisfying a lustful and unnatural passion."(34) People did not commit crimes unless "a motive sufficient to break down the barriers that nature has set up in opposition thereto" occurred. One of these barriers is a controlled and natural sex instinct for the opposite gender, and when men are accused of a crime involving a perverted or inverted sex instinct, it becomes important to seek the motive that impelled the act. Confessedly no man would commit this unnatural act unless his motive be to satisfy a perverted sexual passion[.](35)
Even though McNary felt that "[n]o fact is better understood to modern medical science than that sodomy and its allied vicious concomitants are never committed except by persons impelled by a perverted and diseased mind," he voted to uphold the conviction.(36)
The next reported sodomy case was State v. Kapsales,(37) decided in 1918. The Oregon Supreme Court upheld the conviction of a Greek immigrant after the prosecuting attorney further referred to the glories of past Greece and her present condition, and inferred [sic] that a decline in morals was responsible therefor, and this is complained of as prejudicial.(38)
In 1926, in State v. Harvey,(39) the Oregon Supreme Court upheld the right of the state to prosecute individuals for attempts to commit sodomy under the general attempts statute.(40)
The breadth of the sodomy statute was put to a test with the next case, State v. Brazell,(41) decided in 1928. The Oregon Supreme Court upheld a conviction under the law for the consensual masturbation of another person.(42)
In 1944, the Oregon Supreme Court decided the case of State v. Ewing.(43) The Court rejected the contention of defendant Ewing that the indictment charging him with sodomy, sex perversion, and osculatory relations charged three distinct crimes. The Court was confident that these three terms still charged only one act.(44) The Court also prohibited the introduction of other alleged acts between the defendant and prosecuting witness,(45) but permitted the introduction of such evidence between the defendant and other witnesses.(46) The Court also specifically barred the introduction of evidence of the defendant's supposed "bad character," unless the defendant had himself "put his character clearly and expressly in issue."(47) Because of these errors, the conviction was overturned and a new trial was ordered.(48)
No other state in the nation has so rich a detailed history concerning sterilization of Gay men and Lesbians as Oregon.
In 1904, a Northwest physician, Bethenia Owens-Adair began her personal crusade for sterilization laws throughout the United States. She wanted to include "those loathsome victims of an unnamable [sic] vice[.]"(49)
The first bill to be introduced into the Oregon legislature concerning sterilization was in 1907. It would have covered "criminal degenerates" as well as others.(50) It was not enacted.
A bill to require the sterilization of all "confirmed criminals," as well as others, passed the legislature in 1909, but was vetoed by Governor George Chamberlain. The definition of "confirmed criminals" was those convicted of a third felony, of which sodomy was one.(51) Chamberlain, in his veto message, raised some technical objections, but also said that he did not believe that "all" of those mentioned in the law "ought to be subjected to such harsh treatment."(52) He did not specify which of the covered classes should be so subjected and which should not.
A second attempt at a sterilization law, in 1913, met with curious defeat. A bill to authorize sterilization only of "habitual criminals, moral degenerates, and sexual perverts" confined in state institutions passed the legislature(53) and was signed by Governor Oswald West, who had instigated the infamous anti-vice crusade in Portland. "Moral degenerates and sexual perverts" were defined as those who are addicted to the practice of sodomy or the crime against nature, or to other gross, bestial and perverted sexual habits and practices prohibited by statute.(54)
This law was the subject of what probably was the first Gay rights referendum in the nation. The Anti-Sterilization League, headquartered in Portland, and the only known group in the United States with organized opposition to sterilization, succeeded in forcing a referendum on the law.(55) The measure facing voters clearly had the words "habitual criminals, moral degenerates and sexual perverts" written on the ballot, so no confusion existed as to what the issue was about. It was labeled "A Measure to protect the public peace, health and safety from habitual criminals, moral degenerates and sexual perverts[.]"(56) The measure lost by a solid 56%-44% vote statewide, carrying only four of 34 counties.(57)
Ignoring the command of the voters, the Oregon legislature enacted an even broader sterilization law in 1917(58) that included all feeble minded, insane, epileptic, habitual criminals, moral degenerates and sexual perverts, who are persons potential to producing offspring who, because of inheritance of inferior or antisocial traits, would probably become a social menace, or a ward of the State.(59)
Another section of the law stated that the definition to be used for these "moral degenerates and sexual perverts" was those who are addicted to the practice of sodomy or the crime against nature, or to other gross, bestial and perverted sexual habits and practices prohibited by statute.(60)
This law created an obvious contradiction. Those persons who had potential to produce offspring could be sterilized, but the definition of some of those persons was one that precluded reproduction. The definition also did not require that anyone actually be convicted of violating the sodomy law in order to trigger the procedure.
Correspondence from one institution, the State Hospital in Salem, reveals that, through the end of 1917, 16 inmates-12 male and 4 female-were sterilized, all of them via the radical procedure of castration or ovariotomy. All were "flagrant masturbators or sex perverts."(61)
A suit filed in 1918 by two prisoners, one of them convicted of sodomy, tried to have the law invalidated.(62) The suit never proceeded because the sodomy prisoner, Tony LaGallo, succeeded in convincing the state not to castrate him. The other prisoner, Herbert Merithew, withdrew his objection and allowed the state to castrate him.
In 1920, a prisoner who had been convicted of sodomy, Fred Burr, was paroled after being castrated. He had been sentenced to 1-15 years for his crime and, due to his castration, served less than two years.(63)
In an unreported decision from 1921, Cline v. Oregon State Board of Eugenics, the sterilization law of 1917 was ruled unconstitutional. The decision was exactly 42 words long.
IT IS ORDERED that said demurrer of said Jacob Cline to said proceedings of said State Board of Eugenics be and the same is hereby sustained;
AND IT IS HEREBY FURTHER ORDERED that this proceeding be and the same is hereby dismissed.(64)
Under this unconstitutional law, Oregon had performed 127 sterilizations, on 68 males and 59 females. Two of the males (3%) and 40 of the females (68%) had received the lesser surgery of vasectomy or salpingectomy. Sixty-six males (97%) and 19 females (32%) had been subjected to the more radical procedure of castration or ovariotomy.(65) The 66 castrations in Oregon amounted to 92% of the total of 72 in the United States under the sterilization laws between 1907 and 1921. (There were 1,781 vasectomies during the same time.) The 19 ovariotomies were 19% of the 100 performed throughout the United States in the same years. (There were 1,280 salpingectomies during the same years.)(66)
The enthusiasm with which the Oregon sterilization law was met by state officials led to no fewer than 15 written opinions by the Attorney General. Ten of them are mentioned here because of the impact that they had on Gay men and Lesbians.(67)
The first opinion of the Attorney General on the issue of sterilization was issued in 1922.(68) Oddly, the opinion was issued just a month after the law was found unconstitutional. Attorney General I.H. Van Winkle interpreted the law to be limited to cases in which it is the consensus of opinion by such medical experts as are available that the operation would be of certain benefit to the patient. It should be considered a benefit to the individual upon which [sic] it is performed, and not only a benefit to the community at large and this view should be kept in mind in deciding whether or not the operation should be performed.(69)
A "complete" report(70) from the Oregon Penitentiary of sterilizations performed therein on male prisoners, issued in 1922, revealed that, prior to the Cline decision, eight men were sterilized (the method used was not discussed) and four of them, or 50%, were for same-sex activity. Moreover, five others were on a "waiting list" to be sterilized at the time that Cline was decided. All five were for same-sex sexual activity.
A new sterilization law was enacted in 1923.(71) The apparent contradiction between reproduction and addiction to sodomy was noted and the definition of those eligible for sterilization was expanded to eliminate any need for the person to show reproduction potential. Instead, these same "moral degenerates and sexual perverts" needed only to be a possible "menace to society."(72) The definition of these degenerates and perverts was eliminated, presumably allowing an even broader interpretation by state officials.(73)
The Attorney General issued another opinion in 1924.(74) Attorney General I.H. Van Winkle cautioned the Board of Eugenics that the law required that persons they proposed to sterilize be given an adversary hearing, with an opportunity to defend themselves. Chiding the overenthusiastic officials, Van Winkle said that it would hardly appear possible for the said board to reach an intelligent conclusion with reference to the person under examination, unless such person appears before the board for examination.(75)
The law was broadened again in 1925.(76) This law required the names of anyone convicted of sodomy or any other provision of the state's broadly worded sodomy law to be forwarded to the State Board of Eugenics.(77) The Board then presumably could order the person sterilized, if so inclined.
In an opinion from 1926,(78) Attorney General Van Winkle cautioned the State Board of Eugenics that it probably was in violation of state law in the referral of two prisoners, for an unspecified reason, to them. The referral came from the warden of the penitentiary and had not been verified.(79)
A medical journal in 1927 revealed the numbers affected at the Oregon State Hospital under the sterilization law of 1923. Sixty-two men and 101 women had been sterilized. Of these numbers, 57 men (92%) and 79 women (78%) had been subjected to the more radical procedure of castration or ovariotomy.(80) The journal went on to say that "[n]othing but castration" will do "the sexual pervert or the chronic masturbator" any good. Courts should, in the future, make castration a part of the penalty, along with imprisonment.(81)
Another opinion of the Attorney General was issued in 1928,(82) and it also revealed that some state officials were too eager to sterilize a state charge. Attorney General Van Winkle informed the superintendent of the Oregon State Industrial School for Girls that her institution had not been given authority under any law to refer inmates for sterilization, but offered a way to get around the law. The superintendent could notify the State Health Officer, who then could make the referral to the Eugenics Board.(83)
An amendment to the sterilization law in 1929(84) extended the authority for referral for sterilization to the Industrial School for Girls.(85)
Another opinion by the Attorney General came in 1929.(86) This opinion clearly showed the expanding abuse of the law. The Board of Eugenics asked if it had the authority to decide on its own who was sufficiently undesirable to order sterilized. Van Winkle checked that power by noting the restriction placed in the sterilization laws to cover only the "feeble-minded, insane, epileptics, habitual criminals, moral degenerates and sexual perverts[.]" Nothing in the opinion explained the undesirable trait sought to be eliminated that wasn't in this list.(87)
Through the end of 1934, a total of 957 sterilizations had been performed in Oregon under the law of 1923 and its progeny.(88)
The sterilization law was amended in 1935.(89) This law copied a few others and required lists to be submitted quarterly to the Board of Eugenics of all moral degenerates and sexual perverts, whether or not these people committed a crime.(90)
In 1941, the Attorney General issued an opinion(91) stating that, assuming they followed the law to the letter, sterilizing physicians could not be held liable for the sterilization.(92)
Through the end of 1941, the state reported a total of 518 sterilizations since 1918 (under the 1917 law).(93) Included were 216 men and 302 women. This is at variance with reports in medical journals and other sources. For example, almost twice this number of sterilizations was reported to have occurred seven years earlier and in a shorter time span. The list shows no sterilizations during this time only during 1922, which means that the state followed the 1921 Cline decision that the 1917 law was unconstitutional and did not resume sterilizations until a new statute was enacted in 1923. In the 24-year period reported, 69% of men had received the more extreme sterilization via castration, as opposed to only 11% of women receiving the extreme measure of ovariotomy. In four years, all sterilized men were castrated while none of the sterilized women was ovariotomized. The report also shows that the number of sterilizations was at its highest in the years 1934-1939, years coinciding the Nazi Germany's aggressive use of sterilization.
In 1946, Attorney General George Neuner issued an opinion(94) that again applied a brake to the express train the Board of Eugenics tried to drive across the state. Because the Board met only quarterly and most people in institutions subject to the law stayed in the institution for only one or two months, the Board tried to delegate the decision for who should be sterilized to the superintendent of the institution. Neuner quoted extensively from the Oregon law and told them that they could not delegate their authority.(95)
Just two weeks later, Neuner was called on for another opinion on a very similar situation.(96) The state health officer asked if he could order a sterilization without going through the Board of Eugenics. Again, Neuner said "no."(97)
Period Summary: Oregon had a period of nearly forty years of official silence on the issue of sodomy. It was not until 1912 that scandal awoke the state. That year, a group of Gay men in Portland were arrested for various sexual activity centered around the YMCA. Although there were a number of convictions, most were overturned on appeal. One reaction of the state was to adopt a law to authorize sterilization of "sex perverts" in 1913. The law was subjected to a referendum by an anti-sterilization group and was repealed by a substantial margin. Portland's Multnomah County, where the YMCA scandal broke, voted more heavily against the measure than did the state as a whole. This leads one to believe that the legislature and courts were not in harmony with majority thinking in the state. Also in 1913, the sodomy law was broadened to cover virtually any erotic activity, a convenient catchall that was enacted when officials learned, through the YMCA scandal, of all the different ways men could enjoy sex with each other and which were not outlawed by statute. A sterilization law was enacted a few years later and it was not attacked on the ballot. The law was utilized with great enthusiasm by the state, so much so that the Attorney General of Oregon issued opinions that officials were, in a number of instances, exceeding the limits of the law by their actions. In 1928, consensual masturbation of another person was found to be violated by the new sodomy statute, guaranteeing that there was little or no erotic activity that didn't remain the state's business.
The Kinsey Period, 1948-1986
I. Sodomy
In 1948, in State v. Bauer,(98) the Oregon Supreme Court unanimously overturned a sodomy conviction because the defendant was convicted of an act different from that specified in the indictment.(99)
Portland Mayor Dorothy Lee urged that a five-point program against "sex deviates" be put on the statewide ballot in 1952.(100) The measure never made it to the ballot,(101) and Portland voters threw Lee out of office the same year.
The case of State v. McIntyre(102) was decided in 1952. The Oregon Supreme Court unanimously upheld the sodomy conviction of a man for consensual fellatio with two 16-year-old boys. The defendant was convicted on the uncorroborated testimony of one of the teenagers, who were not considered accomplices by the Supreme Court because the 16-year-old consenting partner was a "mere boy."(103)
Oregon enacted a "psychopathic offender" law in 1953.(104) Sodomy was one of only two triggering offenses for the law, and it applied to anyone over 16 who got involved with anyone under 15, thereby allowing a 16-year-old to be declared psychopathic for involvement with a 14-year-old.(105) Also included in this law was a section adding the applicability of its provisions to any crime if "the judge of the court finds, or has reason to believe, that sexual stimulation was the motivating factor" in its commission.(106) This same law permitted a second conviction for sodomy, even if consensual, to receive a sentence of life imprisonment.(107)
In 1955, the psychopathic offender law(108) was amended and included a provision that forbade the kidnapping or detention of a child under 16 for purposes of engaging in sodomy or certain other sexual crimes. The maximum penalty for this was life. Again, this law covered a 16-year-old involved with a 15-year-old.
An opinion by the Attorney General(109) from 1957 interpreted the psychopathic offender law to limit the right to make a psychopathy determination to the trial judge. A jury would not be able to make that decision.(110)
A proposal was made in 1957 to create a "central investigating and identification bureau dealing with sex deviates." A registry would be created to maintain "an investigation of known and suspected sex deviates" to make investigation of sex crimes easier.(111) The proposal did not become law.
In the 1960 case of State v. Casson,(112) the Oregon Supreme Court, sitting en banc, unanimously upheld the conviction of, but ordered resentencing of, a Gay man. Robert Casson had given liquor to a minor male, manipulated his penis, fellated him, then transported him to the home of Sylvester Hodges who, in the indictment against Casson, was described as "a promiscuous homosexual [who had] a sexual preference for adolescent boys."(113) The jury returned a general verdict of guilty, without specifying of which of the four counts, or combination of them, Casson was considered guilty. Casson then was sentenced to life imprisonment under the state's indeterminate sentencing law. Not all of the four charges brought against him would trigger the indeterminate sentencing law, so the Supreme Court believed that the trial court had been unfair to sentence Casson under it.(114) Justice Alfred Goodwin, writing for the Court, noted also that irrelevant evidence concerning Sylvester Hodges was allowed to be inserted into Casson's trial, specifically
the promiscuous and loathsome nature of Hodges' conduct in the past with other similarly afflicted persons, none of whom were before the court in any capacity except as witnesses to the behavior of the absent Hodges.(115)
Goodwin noted that, under the indictment as worded,
the jury could have found the defendant guilty solely because he took the child to the home of a man known by him to be a promiscuous homosexual. The evidence showed that there followed in fact a casual association. Although there was no evidence that the association had time to ripen into an unwholesome one, the evidence was sufficient to support the verdict.(116)
Cunnilingus was found to be a violation of the sodomy statute by the Oregon Supreme Court in the 1961 case of State v. Black.(117)
In 1963, Oregon revised its psychopathic offender law(118) by limiting its applicability to sexual activity with children under the age of 12.(119)
A sex scandal in 1963 was nearly as sensationalized as the Vice Clique Scandal of a half-century earlier.(120)
In 1965, the Oregon Supreme Court, sitting In Department, decided the case of State v. Stanley.(121) It held that a complaining witness who was intoxicated at the time of the offense could not be considered an accomplice, because consent while in a drunken stupor was not possible.(122)
Just a week later, another Department of the Supreme Court decided the case of State v. Nice.(123) A 12-year-old could be an accomplice, the Court said, but it was for the jury to decide.(124)
The case of State v. Edwards(125) was decided in 1966 by the Court sitting In Department. It is one of those rare cases of consenting adults being prosecuted for sodomy, although how the prosecution was initiated is unclear. The unanimous opinion by Justice William Perry set out some facts of the case.
The evidence discloses that one Mr. Joseph A. DeLorme, who lived at Central Point, Oregon, met the defendant in February, 1962, at a bar in Portland frequented by "[G]ay people," "people of homosexual inclinations." Soon thereafter the defendant accompanied DeLorme to Central Point where they stayed at the home of DeLorme's parents. DeLorme went to San Francisco to study music and the defendant accompanied him and they lived together there.
They later went to Reno where they were married in a civil ceremony, DeLorme using the given name "Joyce."
They then
returned to Oregon and lived in Medford. DeLorme dressed in women's clothes and used the name "Mrs. Joyce Allena Edwards." DeLorme testified defendant had sexual intercourse with him [via] "anal penetration." A Mr. Miller testified he lived on Roberts Road in Medford near where DeLorme and defendant lived; that he saw DeLorme dressed in women's clothes and defendant spoke of DeLorme as his wife.(126)
Edwards asked the trial court to label DeLorme's mother as an accomplice to sodomy. The trial court had refused to do so, and the Supreme Court upheld that ruling.(127) Presumably, DeLorme's mother knew about the relationship and was supportive. The most logical inference for the initiation of the prosecution is the neighbor, Mr. Miller, who must have reported the couple to police. That inference is supported by the briefs submitted to the Oregon Supreme Court. Miller lived next door to DeLorme and Edwards, had seen DeLorme dressed as a woman, he seeing that it was a man dressed as a woman, and Edwards had introduced DeLorme to Miller as Edwards's "wife."(128)
A case of a prisoner caught in an act of sodomy and who acted defiantly toward the state was the subject of the 1969 case of State v. Miller.(129) Andrew Miller was displeased with his counsel and began acting part of the time as his own attorney. Judge Virgil Langtry of the Oregon Court of Appeals noted that Miller
was a difficult person for an attorney or a court to deal with [sic]. He constantly demanded concessions to which he was not entitled. For example, he repeatedly demanded subpoenas for the whole Grand Jury of Multnomah County [Portland] to testify to things they had observed in the county jail which were irrelevant to his guilt or innocence of the charge in the indictment. He insisted upon handling part of the examination of witnesses and arguing the case to the jury. The judge and defendant's court-appointed counsel displayed commendable patience under the circumstances.(130)
The prosecutor, overzealous to prejudice the jury against homosexuality, at one point in his closing arguments to the jury
referred to newspaper stories, not in evidence, regarding jail conditions. He was immediately interrupted and corrected by the court, who said "What they read in the newspaper is not in evidence in this case."(131)
The prosecutor then said to the judge, "There is only one way to stop it [sodomy] and that is to prosecute those who are believed to have been involved in it. Mr. Miller was caught redhanded and he has been prosecuted. That is pure and simple." [Emphasis added]. The defense then moved for a mistrial, which was denied.(132) Goodwin said that Miller was out of luck on that point, because he himself had made references to irrelevant newspaper stories, and he "cannot complain if the prosecutor answers him."(133)
A victory occurred in Nealy v. Cupp,(134) in 1970. The Oregon Court of Appeals unanimously affirmed a trial court's decision to vacate Nealy's guilty plea to a sodomy charge. At the time of his arraignment, Nealy was informed that the maximum penalty for sodomy in Oregon was 15 years. Despite that, he was ordered to be examined under the psychopathic offender law and ended up with a life sentence under the indeterminate sentencing law.(135) Judge Virgil Langtry noted that the state argued that Nealy had not been prejudiced by its actions. In one sentence, he powerfully answered the state: "A defendant is prejudiced when he is told that the maximum penalty possible is fifteen years and he is then sentenced to life imprisonment."(136)
The Oregon Court of Appeals decided the case of State v. Bostrom(137) in 1970 in which an insanity defense was rejected by the trial court. The Court of Appeals upheld this ruling.
In 1970, in Jellum v. Cupp,(138) the Oregon Court of Appeals stretched the broad sodomy law even farther by holding that it outlawed urinating on another person.(139)
At this time, the Criminal Law Revision Commission was considering a proposed new code for Oregon. The first draft of a proposed new sex offenses section made no mention of sodomy.(140) One of the principles guiding the commission was a belief that "any sexual conduct engaged in between consenting adults, whether of a heterosexual or homosexual nature" was not to be outlawed. The commentary on sodomy said that "[d]eviate sexuality has been regarded with intense aversion in almost all cultures and ages and has been the subject of severe punishment and condemnation." Nevertheless, it was unwise to prescribe criminal penalties for homosexual conduct, which the commission believed was "symptomatic of pathological disorders stemming from a failure to achieve mature psychic development[.]"(141) This provision received little opposition. Only one citizen, Charles White from the small town of Bonanza, appeared to testify against it. He said that "Oregon should not become a playground for these kinds of people."(142)
One other provision, however, generated more opposition. In order to prevent public "nuisance" solicitation by people now to be liberated in their chosen sex acts in private, a "lewd solicitation" section was proposed.(143) Research Counsel Roger Wallingford, answering criticism of the proposal, said it was "not intended to reach purely private conversations between persons having an established intimacy," although he admitted that the provision, as worded, could be used against private solicitations.(144) Representative Harl Haas objected that the proposal would punish conduct that some found objectionable, not necessarily harmful.(145) Chair Wallace Carson, a state representative, believed it was difficult to draw a line between "public" and "private" solicitation, but there was "real danger" in "allowing open solicitation for this type of activity in public places."(146) Wallingford then noted that practically the only way the proposal could be enforced was "by undercover vice squad work."(147) Despite Haas's and Wallingford's comments, the proposal was adopted unanimously by the subcommittee. When the proposal came before the entire commission,(148) more concerns were expressed. Attorney General Lee Johnson complained that the proposed law was "a little hard on two men who knew each other." He said that "there was police harassment in this area[.]" He moved that it be amended to exclude "purely private conversations." His motion lost on an 8-1 vote.(149) The committee's summary was that it accepted "the premise that open and aggressive solicitation by homosexuals may be grossly offensive to other persons availing themselves of public facilities[.]"(150)
In 1971, the Oregon legislature passed a comprehensive criminal code revision(151) that repealed the consensual sodomy law(152) and established an age of consent of 18.(153) However, the solicitation section also was enacted. It prohibited "accosting for deviate purposes," with a penalty of up to 30 days in jail and/or a $500 fine.(154) It was worded
A person commits the crime of accosting for deviate purposes if while in a public place he invites or requests another person to engage in deviate sexual intercourse.
A 1972 law review article155 gave background into the legislative process for enactment of the new code. One study showed that the consenting adult laws were not enforced in the state, with the exception of "sodomy between persons not married to each other and of homosexual conduct."(156) The author was critical of the fact that the new code raised the age of consent from 16 to 18, especially since the reason for the action "is not at all clear."(157) More information was given about the testimony of the above referenced citizen Charles White. He opposed the new code, especially repeal of "those sections having to do with homosexuality," that he felt should be strengthened (apparently a 15-year sentence for private, consensual conduct was insufficient).(158)
A later attempt to reduce the sentences of those in prison for sodomy at the time of the law's enactment failed of passage.(159)
The accosting law was ruled unconstitutional in 1981 in the case of State v. Tusek.(160) The unanimous decision of the Oregon Court of Appeals was that the law criminalized speech, specifically a request to engage in legal activity.(161) The Oregon legislature repealed the now useless provision in 1983.(162)
In 1981, in State v. Holt,(163) the Oregon Supreme Court unanimously upheld the conviction for public indecency of a man for masturbating in a restroom while looking for a sexual partner.(164)
A heterosexual case turned out to have an impact on Gay men and Lesbians. In 1984, in State v. House,(165) the Oregon Court of Appeals, sitting en banc, voted 8-1 to strike down an Oregon law prohibiting any kind of sexual touching in live public shows. The case involved Scott House, who did a strip dance in front of an all-female audience and was left in only a G-string that, in the words of a witness, "was kind of stretchy material, so, uh, all the shapes [were] visible."(166) Judge Jonathan Newman, writing for the majority, noted that in
ballets, operas, musicals and dramas, whether tragic, comic or satirical, one performer, either in human or animal costume, may touch the buttocks, breasts or genitals of another performer.(167)
Noting that such shows that would be outlawed under the law included Romeo and Juliet, South Pacific, Hair, Oh! Calcutta, Swan Lake, Leda and the Swan, Sweet Bird of Youth, and Cat on a Hot Tin Roof, the law in question was found to sweep too broadly and create a restraint on free expression under the Oregon Constitution.(168) The Court refused to provide a judicial rescue for the law by interpreting it in a narrower fashion.(169) The lone dissenter, Judge Kurt Rossman, tried to distinguish the cited literature above from House's dance and said that the very similar performance by Ezio Pinza in South Pacific was "purely coincidental,"(170) thus setting himself up as a judge of art. In a desperate appeal, the state sought and won a rehearing.(171) Again speaking through Judge Newman, the Court reaffirmed its earlier decision that the law was overly broad, but severed the more specific sections banning "sadomasochistic abuse," "human masturbation," and "sexual intercourse" from it, saving them from an unconstitutionality axe, while striking the provision of the law banning sexual touching. On appeal to the Oregon Supreme Court,(172) the highest court unanimously affirmed the Court of Appeals, thus continuing the state's march toward absolute freedom of speech.
II. Sterilization
Through the end of 1948, 1,821 sterilizations had been performed in Oregon, including 106 on persons neither insane nor mentally retarded (30 males and 76 females).(173) The report made no suggestion as to how many of these were "moral degenerates" or "sexual perverts."
In 1959, Attorney General Robert Thornton issued an opinion(174) that attempted to define several of the provisions of the sterilization law. One of them was "moral degenerates." After reviewing a number of medical texts and noting that he had been unable to locate a single reported court decision with such a definition, Thornton concluded that the term could not be defined with any precision. Therefore, he believed, the definition was the Board of Eugenics's to make.(175)
A report from 1960 showed that the number of sterilizations in Oregon had grown to 2,293 (1,416 women and 877 men). The law could be used "for persons convicted of certain sex crimes." Allegedly, no "moral degenerate" or "sex pervert" had been recommended for sterilization in the state since 1953.(176)
In 1961, Thornton issued another opinion(177) on the constitutionality of the sterilization law. He noted that the law had not been challenged since its 1923 adoption and that each provision of the Oregon law had been sustained in a court challenge in another state having a similar provision.(178) Relying heavily on case law from other states, Thornton concluded that the law was constitutional.(179)
Amazingly, a 1963 report (obviously written by someone who didn't read Oregon's law before writing the article) claimed that no legislation has been considered or proposed...which would specifically establish sterilization as a medical weapon to combat the offenses by moral degenerates or sexual perverts.(180)
In 1965, the sterilization law was changed greatly.(181) The section permitting sterilization of "sexual perverts and moral degenerates" was repealed,(182) and the law was made applicable only to the mentally ill and the mentally retarded.
Period Summary: The first Kinsey report was received slowly in Oregon. Sterilizations of "sex perverts" continued through the year 1953, although authorization for their sterilization lasted another dozen years. Courts expanded the reach of the very broad Oregon sodomy law by determining that both cunnilingus and urination on another person constituted violations of it. A Gay couple was convicted of sodomy, and their conviction sustained, based on the complaint of a neighbor that they were a homosexual couple. The Gay rights movement that burgeoned with the late 1960s hit Oregon earlier and had a broader impact on the state than most other places. The courts acted more slowly than the legislature, continuing to hand down restrictive decisions on sexual freedom, until more progressive judges were appointed by Oregon's string of culturally liberal Governors, both Democrats and Republicans. The sodomy law was repealed in 1971, with only three other states preceding it. The civil libertarian nature of the state also reasserted itself with a number of court decisions after the sodomy law repeal. The state's law against "accosting for deviate purposes" was ruled unconstitutional on broad free speech grounds. Additionally, the first case in the state dealing with public erotic dancing was decided, and the state courts found a broad constitutional right to that type of dancing that would precipitate a number of later even broader decisions.
The Post-Hardwick Period, 1986-Present
The Oregon Supreme Court decided in the 1987 case of State v. Hansen(183) that the age of consent in the state was not to be calculated according to the common law, which has one change to the next year of age on the eve of one's birthday. (The case concerned a female teacher who had sexual relations with a female student the day before the student's 16th birthday.)
The Oregon Court of Appeals decided in the 1988 case of State v. Culmsee(184) that a parked car in a business driveway some eight feet from a public sidewalk was not a "public place" for purposes of the public indecency law.(185)
In a pair of 1988 cases, the Oregon Court of Appeals continued a great expansion of privacy rights in Oregon, rights that went well beyond those defined in other states. In the first, State v. Casconi,(186) a unanimous panel overturned the public indecency conviction of a man who was filmed masturbating in a restroom. The toilet stalls had no doors, but could not be seen from the entranceway to the restroom. Casconi was captured on film walking into the common area, masturbating there. Chief Judge George Joseph found that the police had no interest in filming Casconi's action and returned his case for retrial with the film evidence suppressed.(187)
On the same day, another panel decided State v. Owczarzak.(188) By a vote of 2-1, the Court all but obliterated operation of the state's public indecency law in restrooms. Owczarzak was observed leaving a doorless stall with his pants down and standing in front of another stall, masturbating in front of another man. Judge Edward Warren found that the state had no legitimate interest in his conduct. A restroom is a place that, by its very nature, excludes unlimited observation. A person in a public restroom anticipates that another person might enter and see what is going on. What a person does not anticipate is that his activity will be seen by concealed officers or recorded by concealed cameras. That police surveillance, which allows no ready means for the person to determine that he is being watched, significantly impairs the people's freedom from scrutiny.(189)
An attempt to get a broadly worded privacy amendment to the state constitution was made in 1991. The language was certified,(190) but it never made it onto the ballot.
In 1992, deciding City of Portland v. Jackson,(191) the Oregon Court of Appeals moved the state one step closer to absolute sexual freedom. Sitting en banc, the Court voted 6-4 to interpret the state's public indecency law literally and invalidate a Portland ordinance. The law prohibited exposing one's genitals "with the intent of arousing the sexual desire of the person or another person." A Portland city ordinance had, more broadly, banned exposure of one's genitalia in "a public place or place visible from a public place" to "persons of the opposite sex." The Court found first that state criminal laws generally preempted city criminal laws, citing the Oregon Constitution.(192) Second, it noted that the state law required proof of intent to arouse sexual gratification and the Oregon legislature had, in debating the 1971 criminal code revision, defeated a proposal to eliminate that provision.(193)
With Oregon's high age of consent (18), any sexual activity with a minor can get the other partner into trouble with the law. Such a case was State v. Fennern(194) from 1995. A panel of the Oregon Court of Appeals unanimously sustained the third-degree sodomy conviction of a man for sexual activity with a male, who had to be at least 16 for the charge to be third-degree sodomy. The nature of the sexual activity is not mentioned in the opinion, but the Court upheld an enhanced sentence for Fennern because his teenage partner said "he views everyone he now meets as [G]ay or [L]esbian." The Court found the trial court's inference of harm from this statement as sufficient justification for the enhanced sentence.(195)
On a more liberal note, a judge invalidated a city ordinance banning adult bookstore viewing booths in 1995. Although Beaverton's ordinance was found not to be directed at free speech, Judge Donald Letourneau found that state case law required councils enacting such legislation to act on "current, local examples of social harm" presented by the booths.(196)
The Oregon Supreme Court, deciding two cases in 2005, refused to back away from a sweeping interpretation of the right to free speech relating to erotic dancing, rejecting the state's request that it do so..
The first, State v. Ciancanelli,(197) concerned a state law forbidding the presentation of a "live public show" in which "sexual conduct" was a part. The case was brought by a club in which female employees danced nude and, at one point, engaged in sexual activity with each other for paying customers. Writing for the Court's 6-1 majority, Justice Michael Gillette, a noted legal craftsman, wrote a lengthy, but thoughtful and entirely lucid opinion, easy for even a lay person to understand, giving a detailed analysis of Oregon's history of constitutional freedom of speech. It flatly rejected the state's claim that the Court's earlier broad decisions were erroneous.(198)
In dissent, Justice Paul de Muniz, the conservative black sheep on the liberal Court, wrote a dissent nowhere close to the erudite majority opinion. He did give one sentence of praise to Gillette's scholarly effort,(199) but looked for authority to reactionary English jurist William Blackstone, who was rejected as a legal authority in his own country. Additionally, de Muniz ridiculed the majority's belief in the "alleged libertarians" writing Oregon's Constitution, believing instead that they were "Victorian-era drafters."(200) Presumably, de Muniz believed that the free speech rights in the state were limited to what Victorian sensibilities would permit. He also amazingly claimed that the majority's analysis of the state constitution was erroneous under two federal decisions,(201) even though those two decisions are irrelevant to how a state constitutional provision is interpreted.
In the second case, City of Nyssa v. Dufloth,(202) a city ordinance requiring entertainers in "live adult entertainment establishments" to remain at least four feet from patrons also fell. The vote in this case was identical to that in the Ciancanelli case, and the authors of the respective opinions were the same. With (necessarily) far less analysis than in the Ciancanelli case, Gillette and the majority concluded that the Nyssa ordinance was directed to expression, rather than conduct, and could not stand. 203 De Muniz dissented largely on his Ciancanelli reasoning.(204)
Period Summary: Oregon is far ahead of most states with respect to sexual freedom. Two different courts issued decisions in restroom sex cases that virtually eliminated use of public indecency laws in public restrooms. The state's law against public indecency also was limited in cases of public nudity. Now, in order to prosecute, the state is required to prove that the person appeared nude in public specifically for purposes of sexual arousal. There is little now that can be banned or regulated in the state in terms of public erotic expression. Oregon is back to its libertarian beginnings following a harsh interlude of Victorian moralizing that followed the national trend.
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