"[T]he sordid testimony...appeared so revolting to
one of the two deputies sheriff, who stated they observed it while
patrolling the area, that he vomited thrice during the evening[.]"
The Post-Revolution Period, 1776-1873
The Arkansas Territory was organized in 18191
and received all the laws of Missouri,2 which in
turn had received the Louisiana laws, including a sodomy law with a compulsory
sentence of life imprisonment.
Common-law crimes were recognized by a statute of 1837.3
The borrowed law from other jurisdictions remained until after statehood
when a new law was passed in 18384 to set the
penalty for sodomy at 5-21 years.5
A new code adopted in 18486 changed the
penalty for blacks, whether free or slave, to death,7
while leaving the penalty for whites at 5-21 years. Blacks also could get the
death sentence for attempting such a crime on a white woman, but not on
a white man.8
This discrimination remained until a new law,
obviously forged in the furnace of the Civil War, was enacted in 1864.9
The statute raised the penalty for 16 crimes to death, including sodomy and
buggery.10 The mode of death was required to be
hanging.11
In 1871, the Arkansas legislature authorized a recodification of state law.12
The compilers were prohibited from making any substantive changes.13
Despite that command, a major change was made in the sodomy law. The new code
of laws resulting from this recompilation in 187314
restored the penalty for an act of sodomy to 5-21 years, with no
discrimination because of race.15
Period Summary: Arkansas followed the pattern of other states in
adopting a sodomy statute void of definition. It added a regional flavor
to the law by specifying more severe penalties for its violation by
blacks, whether they were free or slave. A Civil War-era statute that
raised the penalty for sodomy and a number of other consensual acts to
death never was codified and, when a new code was established after the
War ended, the death penalty provision disappeared mysteriously, even
though the legislature had not acted to remove it.
The Victorian Morality Period, 1873-1948
The first reported sodomy case in Arkansas was Smith v. State,16
decided in 1921. This case disposed of a challenge to the indictment stating
that the defendant, "disregarding the laws of nature," committed
sodomy.17 The Arkansas Supreme Court held this
count valid, as well as the sufficiency of the evidence, which it called
"revolting in detail," and, therefore, refused to discuss.18
In the next case, Strum v. State,19
from 1925, the Arkansas Supreme Court ruled unanimously that the term
"crime against nature" included an act of fellatio, but reversed the
conviction because it was based only on circumstantial evidence.20
Although apparently no sodomy cases were reported between 1927 and 1934, 14
sodomy prosecutions were carried out in the state, leading to eight
convictions, for a startling 43% rate of acquittal or no bill.21
In 1941, in Woolford v. State,22 the
Supreme Court unanimously upheld the sodomy conviction of a man who had
petitioned the trial court to send him to a hospital to determine his mental
status. The Court noted that "[a] fourteen year old boy was the object of
appellant’s lust."23
Period Summary: It was nearly a half-century into this period
before Arkansas had a published sodomy case. The Victorian reticence in
discussing the facts presented by sodomy cases prevailed in Arkansas. A
vagueness challenge was unsuccessful and the Arkansas Supreme Court
refused to discuss the evidence that was "revolting in detail."
The Kinsey Period, 1948-1986
In the case of Havens v. State,24
from 1950, the Arkansas Supreme Court unanimously upheld the conviction of the
defendant after the allegedly corroborating evidence of photos of "young
boys" was found in his wallet, and after a letter containing other
unspecified photos, that was written and mailed by the defendant, were entered
into evidence.25
Arkansas studied the problem of the psychopathic offender, and a special
committee worked on drafting a bill for presentation in 1951.26
After studying and praising the New Jersey law (q.v.), the Committee
decided that, because the state hospital was overcrowded and the state’s
financial situation was poor, it would not pursue the enactment of a law for
Arkansas.27
The Arkansas Supreme Court decided the case of Roach v. State28
in 1953. Very little detail was given other than that Roach was convicted of
"contributing to the delinquency of Tom Stahl" and that "the
same conduct complained of had occurred in connection with other
persons."29 The conviction was upheld.
In 1955, the Arkansas legislature settled a problem when it enacted a new
sodomy law30 that lowered the minimum penalty
from five years to one year, while retaining the 21-year maximum.31
An emergency clause stated that
there appears to be some reluctance on the part of the juries of this
State to convict a person of the crimes of sodomy and buggery if the
minimum sentence is five (5) years; that this situation is an obstruction
and a thwart to the justice of this State; that this Act lowers the
minimum sentence to one (1) year. Therefore, an emergency is declared to
exist, and this Act being necessary for the preservation of the public
peace, health, and safety, shall take effect and be in force from the date
of its approval.32
In the next sodomy case, Mangrum v. State,33
decided in 1957, the Arkansas Supreme Court unanimously upheld the conviction
of a man for sexual relations with a minor male. The minor was considered a
competent witness because "he believes in God" and "the Bible
has been read to him[.]"34
A victory came in 1963 in the case of Ward v. State.35
By a vote of 6-1, the Arkansas Supreme Court overturned a conviction for
"fondling a male child." Ward, a telephone repair man, was accused
of fondling an 11-year-old boy. The issue was one of credibility, and Justice
Paul Ward, writing for the majority, noted that Ward
had a good reputation; that he had been post commander of the American
Legion, and was now its service officer; that he belonged to the Masonic
Lodge; and, that he had once served as Chapter Dad of the local DeMolay
organization.36
After stereotyping Ward as a result of these activities, the Court added
that witness testimony admitted into the trial was prejudicial to him.
Specifically, that the witness saw Ward
engage in some acts which be [sic] thought were unbecoming; that
appellant had one of the smaller boys kinda [sic] armed up, had his
arm around him nudging him toward the south door, and he presumed he was
loving the boy up a little bit—this didn’t continue very long—the
boy’s father was present.37
Allowing such testimony concerning an individual not alleged to be the
victim was a "dangerous precedent" because of the possibility of
prejudice by the jury against a person’s homosexuality.38
Although the conviction was overturned, the Court refused to believe that
admission of acts from four or five years before were too remote to consider.
"[O]nce it is established that a mature person has developed the
proclivity to indulge in unnatural sex acts, we are not prepared or willing to
say it would be erased by the lapse of 4 or 5 years."39
The lone dissenter was Justice Sam Robinson. He said that those
committing crimes through the commission of unnatural sex acts are
perhaps the most dangerous of criminals.40
Robinson had definite views about proper and improper touching of someone
of the same sex. If
the defendant put his arms around the little boy and "hugged him
up" in an improper manner, this would be an unnatural sex act, and
according to the rules of evidence recognized as valid by the majority,
evidence of such act could be properly introduced. On the other hand, if
the placing of his arms around the child was merely a friendly gesture,
certainly evidence of such act would in no way be prejudicial to the
defendant. It would be just like proving that he shook hands with the
little boy.41
In the case of Burford v. State,42
from 1967, the Supreme Court unanimously ruled that sodomy convictions could
be obtained by circumstantial evidence only, thereby seemingly undermining the
Strum decision.43
In 1968, in the case of Atwell v. State,44
the Arkansas Supreme Court unanimously upheld the sodomy conviction of the
defendant. Atwell claimed that "the trial judge made remarks derogatory
to the accused" but did not include those in the record of the appeal.45
A sentence of 10 years in prison also was upheld, solely because it was less
than the maximum sentence under state law of 21 years. The Court, quoting from
an earlier case, said that it was
not at liberty to reduce [the sentence] even though we may think it to
be unduly harsh.46
In 1973, in Connor v. State,47 the
Supreme Court unanimously upheld the sodomy law against a challenge that
religious prejudice in its enactment made the law unconstitutional. The Court
said that, as to
the allegation that sodomy should not be regulated because such acts
are regarded as sinful by some religious groups, little need be said. If
that theory were adopted then many of our criminal statutes would be
emasculated.48
A privacy argument also was rejected, because the act occurred in a car
along a highway.49
A case that revealed an extreme case of homosexual panic on the part of an
arresting deputy sheriff was Carter et al. v. State,50
also from 1973. The Court was sarcastic and hostile to the privacy issue
raised by defendant Carter and his male companion, who had been arrested in a
car parked under a bridge. The Court declined to set out
the sordid testimony about the act, which appeared so revolting to one
of the two deputies sheriff, who stated they observed it while patrolling
the area, that he vomited thrice during the evening—the first time as an
immediate reaction to his seeing what was taking place in the automobile,
and the others while appellants were in custody and being
"booked."51
The Court stated that Carter had, "in some mystical manner,"
raised the privacy issue by mentioning the various U.S. Supreme Court
decisions on privacy. The Arkansas Supreme Court refused to go along with
sodomy as a privacy right, saying that the matter belonged in the legislature
for determination.52 The police power of the
state was "very broad and comprehensive and embraces maintenance of good
order and quiet of the community, and preservation of the public morals"
and the legislature could, "within constitutional limits," outlaw
anything that was "hurtful to the comfort, safety and welfare of the
people and prescribe regulations to promote the public health, morals and
safety."53 The sodomy statute was found by
the Court to be just such a legitimate legislative exercise.54
The sentence of eight years in prison for a consensual sexual act was held to
be valid, again solely because it was within the 21-year maximum stated in the
law.55
The legislature did respond, with the enactment of a comprehensive criminal
code revision in 197556 that made Arkansas the
first Southern state to repeal its sodomy law.57
Common-law offenses also were abrogated.58
However, a broadly worded loitering law was enacted in the new code.59
It outlawed remaining in
a public place for the purpose of engaging or soliciting another person
to engage in prostitution or deviate sexual activity[.]60
The section did not include solicitation for "non-deviate" sexual
activity.
In the 1977 case of State v. Black,61
the Arkansas Supreme Court upheld the conviction of a prisoner for sexual
indecency after he engaged in consensual sodomy in the "drunk tank"
of the local jail, since no privacy rights attached to a public sexual act.62
The sodomy repeal did not last very long. A legislator who had been unaware
of the repeal in the new criminal code, spurred on by the hysterical climate
fostered by Anita Bryant,63 introduced a bill
in 1977 that became law64 and reinstated sodomy
as a criminal offense between persons of the same sex only. Any penetration of
the mouth, vagina, or anus was sufficient to complete the crime, and the
penalty was set at up to one year in jail.65
In a 1980 case, Mills v. State,66 the
Arkansas Supreme Court unanimously overturned the rape conviction of a man for
fellatio with a 14-year-old male after the man threatened to "kick his
butt" if he told anyone about the sex they had. The Court felt that this
did not amount to forcible compulsion because the statements were made after
the sexual activity occurred, and no evidence of force to accomplish the
fellatio was shown.67
Another privacy claim went for naught in the 1983 case of United States
v. Lemons,68 decided by a federal court
under the Assimilative Crimes Act (the federal law that absorbs all state
criminal laws as they relate to activity on federal property in those states).
The case concerned two men arrested for consensual fellatio in the restroom at
Hot Springs National Park. The arresting ranger, Terry Gross, peered through
the partially closed door of a stall to witness the act. Justice Gerald Heaney,
writing for a 2-1 majority, rejected the notion of privacy rights by noting
that the act occurred in a public restroom. The Court, therefore, would not
even consider a privacy argument.69 More
importantly, the Court rejected Lemons’ discrimination argument, because any
sexual act occurring in a public place was criminal in Arkansas, regardless of
the gender of the parties. In dissent, Justice J. Smith Henley rejected the
majority’s contention that the equal protection argument could not be
addressed under the facts of the case. Henley criticized the "new
constitutional ground" reached by the majority that denied
a facial attack by a member of the class against which discrimination
is alleged, and...by concluding that because appellant could have been
similarly punished under the Arkansas public sexual indecency statute, he
suffered no discrimination.70
Henley also attacked the record in the case for showing
no attempt on the government’s part to demonstrate factually to the
district court a rational relationship between the proscription of
homosexual conduct and a legitimate state interest.71
Judge Henley believed that
mere naked assertions of public distaste or moral condemnation, without
reference to evidence that public morality and decency are fostered by the
statute, are insufficient to warrant bringing the weight of the criminal
justice system to bear on consenting adults who engage in homosexual
activity.72
Period Summary: The publication of the first Kinsey report in
1948 had an effect in Arkansas. Jurors were shown to have an aversion to
returning guilty verdicts for consensual sodomy because of the five-year
minimum penalty state law prescribed. As a result, an emergency law was
enacted in 1955 to lower that minimum to one year so that more convictions
could be secured. Following the lead of several other states that had
repealed their sodomy laws at the behest of the American Law Institute,
Arkansas became the first Southern state to legalize consensual sodomy in
its 1975 criminal code revision. The freedom did not last long, because,
reacting to the Anita Bryant crusade, consensual sodomy was recriminalized
in the state, but only for acts between people of the same sex.
The Post-Hardwick Period, 1986-Present
In 1992, Governor Bill Clinton, as a candidate for President, issued a
public statement of support for repeal of the Arkansas sodomy law.73
Period Summary: Arkansas seems to be a state with a legislature
that is influenced heavily by perceived public opinion. The legislature
lowered the penalty for sodomy when juries resisted convicting those
charged with consensual activity. It repealed the law during a period of
seeming widespread support for such action, then reenacted it upon the
anti-Gay crusade of Anita Bryant when public opinion seemed to be
retreating from support for Gay rights. It apparently will require another
major perceived shift of public opinion to lead to repeal of the Arkansas
law.
