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Last edited: August 11, 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
Delaware
"The moral filthiness and iniquity against which
the statute is aimed is the same in both cases."
The Colonial Period, 1607-1776
A Swedish colony was founded in Delaware in 1633, but it was not until
twenty years later that a judiciary was created to operate the colony
according to Swedish law.1 The colony
nevertheless remained juridically unstable, with most rules of daily living
conducted according to "common consent."2
In 1664, title to the colony passed to the English and, as part of
Pennsylvania, Delaware operated under its laws.3
(See Pennsylvania for the sodomy law history). What now is Delaware separated
from Pennsylvania in 1704 and enacted its own laws. Unfortunately, a large
number of the earliest laws were lost.4 Whether
a sodomy law was enacted upon the erection of Delaware as a separate colony is
unknown.
However, a statute of 1719 attempted to clear up questions as to the status
of the law, which apparently was as confusing then as now. A law called
"An Act for the advancement of Justice, and more certain administration
thereof"5 adopted the common law of England
and provided that
if any person or persons shall commit sodomy, or buggery...he or they
so offending, or committing any of the said crimes within this government,
their counsellors, aiders, comforters and abettors being convicted
thereof, as above-said, shall suffer as felons, according to the tenor,
direction, form and effect of the several statutes in such cases
respectively made and provided in Great Britain; any act or law of this
government to the contrary in any wise notwithstanding.6
This law adopted the English death penalty for sodomy,7
but apparently did not end the confusion in Delaware over what laws were in
effect and which ones were not. A statute of 17418
hinted at the problems with its preamble that the 1719 statute did "not
clearly appear to have sufficiently provided for the manner of trial and
punishment of petty treason, misprision of treason, murder, manslaughter,
homicide, bestiality, incest and bigamy" and so added a provision that
they were to be punished as in England.9 The
inclusion of bestiality in this statute may mean that the terms
"sodomy" and "buggery" were interpreted to cover only
human contacts. Again, because of the problem of so many early Delaware laws
being lost, it is unclear if there was a problem with the interpretation of
the 1719 sodomy law that required a supplementary statute as well.
A statute adopted10 some time before 1741,
but whose date of enactment was not preserved, provided for a compulsory
sentence of death for a number of crimes, including "buggery"
committed by "Negroes or Mulattoes."11
Period Summary: Because many of the early laws of Delaware are
lost, much of its history concerning sodomy is unknown. Originally part of
Pennsylvania, it broke away in a dispute and enacted its own code of laws.
Fifteen years later, a sodomy law was enacted, although it isn’t known
if this was a new law or a replacement for a now-lost earlier one. It
followed English law and prescribed the death penalty for any act of
sodomy.
The Post-Revolution Period, 1776-1873
In 1826, a statute was enacted12 to revise
criminal law in the state. The sodomy law was changed to reduce the penalty
from death to a maximum of three years’ solitary confinement in prison, a
fine of $1,000, and a public flogging of up to 60 lashes "on the bare
back well laid on."13 This law also
eliminated the separate reference to "Negroes or Mulattoes."
In a new code adopted in 1852,14 the sodomy
law was put under the chapter "Of offences against religion, morality and
decency,"15 the penalty was changed by
substituting one hour in the pillory for the lashes, and the requirement that
the imprisonment be in solitary confinement was eliminated. The three-year
imprisonment and the $1,000 fine remained.16
Period Summary: During this time there are no published sodomy
cases and only two statutory changes. Following the trend in the
post-revolution period, Delaware did eliminate the death penalty for
sodomy. It replaced it with what would remain the most lenient
incarceration penalty in the nation for more than a century, a maximum of
three years in prison. However, Delaware added a provision permitting the
flogging of a person convicted of sodomy, something allowed in only a very
few jurisdictions. Before the Civil War, the flogging provision was
replaced by time in the pillory, an archaic form of punishment that
Delaware retained into the 20th century.
The Victorian Morality Period, 1873-1948
I. Sodomy
A statute of 190517 abolished the use of the
pillory in the state for all crimes.
The first reported case under the statute, State v. Maida,18
decided in 1915, had to determine if fellatio constituted a "crime
against nature." The Court of General Sessions, composed of two members
of the Delaware Supreme Court, reviewed earlier cases and agreed with the
decision of the Oregon Supreme Court that found fellatio to be covered by the
term.19 The Delaware court added that it was
self-evident that the use of any unnatural opening for sexual
copulation is against the design of the human body, and that an unnatural
coition takes place in annum [sic] or in os, as [sic] the
moral filthiness and iniquity against which the statute is aimed is the
same in both cases.20
The Court also agreed with a North Carolina decision that fellatio would
have been recognized by courts earlier if the act had "prevailed" in
the days of the early common law.21 These two
cases were "convincing" and that, coupled with no stated limitation
of the Delaware statute, led the court to say that fellatio could be
prosecuted in the state.22
More successful was a case in the same court in 1918 questioning whether
solicitation for an act of sodomy could be prosecuted as an attempt to commit
the act. In State v. Wimer,23 the court
noted that the indictment charged defendant Wimer with "devising and
intending...to vitiate and corrupt the morals of one Joseph Ford, and to stir
up and incite in his mind filthy, lewd and unchaste desires and
inclinations[.]"24 The court felt that the
indictment for a solicitation does not "in any way" allege an overt
act, and could not stand.25
A supplemental statute of 192326 prohibited
the granting of probation to any person convicted of sodomy.27
A medical journal article28 published in
1947 detailed the state of Delaware’s actions toward a precocious,
promiscuous, and sexually aggressive teenage male, who was the subject of the
article at age nineteen. At fourteen, the subject
became aggressively homosexual in the class and became an annoyance to
teachers and pupils. The teacher stated that his homosexuality was not of
the usual type, seen in boys and girls during the puberty phase. They
rather complained that he, in a most aggressive manner, pursued and
persuaded boys to use him as a passive partner in regular homosexual
practices. It became necessary to commit him to the Ferris Industrial
School.29
While at the industrial school
his homosexual conduct with other boys caused difficulties and he was
finally placed in sleeping quarters in which he could not have contact
with other boys at all. His homosexual urges became so persistent that it
became practically impossible to manage him since he undermined the morale
of the group of other boys.30
His parents took him out of the school and returned him home where they
"attempted to interest him in a gainful occupation." However, he
quickly was picked up by police on a charge of falsely soliciting for a
charity and was jailed, apparently briefly. He then
got from one trouble to another and decided to leave his home and went
to New York City. He worked around hotels and restaurants and he soon
developed a commercial pattern of homosexual prostitution[.]"31
After being arrested for his sexual activities with servicemen in New York,
the patient was sent to a mental institution in Delaware. He was found to be a
psychopathic personality and it was found to be a negative characteristic that
he was
proud of his ability to attract the attention of other men. On one
occasion he said: "It gives you a thrill to walk around Times Square,
watch the crowds, to pick your man and make him."32
As far as his "treatment" was concerned, in
view of his youth, one may consider lobotomy as a somewhat desperate
attempt to change present personality patterns.33
II. Sterilization
In 1929, Delaware amended its existing sterilization law34
to add all "habitual or confirmed criminals who have been convicted of at
least three felonies" either in federal or state court, either inside
Delaware or elsewhere, if their criminality was considered due to mental
abnormality.35
Period Summary: The pillory provision of the sodomy law was
eliminated when the pillory was outlawed as a punishment early in the 20th
century. Delaware, unlike most states, did not use the term "crime
against nature" for its sodomy law, and a state court interpreted
"sodomy" to embrace fellatio. However, solicitation for sodomy
was ruled not to be an attempt to commit the act. The medical journal
article abstracted above reveals how the state may have dealt with sodomy
law violators and this may be one reason for the sparse case law in the
state. Delaware became one of a handful of states to outlaw probation for
those convicted of sodomy, and was one of the two-thirds of the states in
enacting a sexual sterilization law. The law covered only those convicted
of three or more felonies and who evidenced "mental
abnormality." Sodomy remained a felony throughout this time, so if a
court found those engaging in it to be mentally abnormal, they could be
sterilized sexually.
The Kinsey Period, 1948-1986
In 1954, the Superior Court of New Castle County published a trial record
in State v. Kehm et al.36 Two men had
been enjoying sex with each other in a parked car spotted by detectives
"in a suspicious location." Upon the shining of a flashlight into
the car’s windshield, two heads popped up and the car started off at a fast
rate. When the car was stopped, the arresting officers noted that both
defendants’ trousers were open "to the extent of fully exposing
themselves."37 The defendants moved to
dismiss the charges because of lack of proof of corpus delicti.38
Judge Caleb Layton found them guilty, with the open trousers one of the
evidence clinchers. (Why they didn’t zip up during the chase and thereby
remove one piece of evidence certainly is a mystery). Before pronouncing a
guilty verdict against each defendant, Layton expressed a regret that he had
to find them guilty because
in my opinion, these two men are not so much criminals as mentally ill.
However, under the present state of the law, I can make no other
disposition of the matters.39
In 1961, a massive police investigation in the Wilmington and Newark areas
led to the arrest of 15 Delaware men. The police were sufficiently
intimidating that Delaware attorneys reported being fearful of defending the
arrestees because of possible police reprisal.40
Men who were arrested were required to name other names, were taken from their
jobs without notice to employers, leading to many firings, and were filmed in
their "actions and conversations" at the police station.41
James Short, one of those arrested, attempted to implicate a state trooper,
and it was felt that the numerous charges filed against him were in
retaliation for that.42
This witch hunt led to the final reported sodomy case in the state, and the
only one from the Delaware Supreme Court, Short v. State,43
decided in 1962. James Short, alluded to above, had been convicted on ten
counts of consensual sodomy with three different individuals. He was sentenced
to 18 months in prison and a fine of $50 on the first count and, amazingly
considering the maximum penalty in the state, only to $50 for each of eight
other counts, plus court costs. He also was ordered to undergo psychiatric
treatment. On the tenth count, he had been sentenced to three years’
probation.44 Short filed a motion to have his
sentence reduced because the trial court had erred in sentencing him to
probation on the one count, since the 1923 law barring probation for sodomy
still was in effect.45 Short claimed,
therefore, that he would have to spend the three years in prison instead. The
Court dismissed the appeal because "there is nothing in the record on
appeal to support defendant’s contentions that the Court below abused its
discretion[.]"46 In other words, courts
could ignore the statutory ban on probation.
In 1964, Delaware passed a new law47 that
made the practice of probation legal by eliminating the ban on it for those
convicted of sodomy.48
A comprehensive criminal code revision of 197249
redefined sodomy so as to exclude consensual acts50
and set the age of consent at 16.51 Retained as
criminal were loitering, which included "soliciting another person to
engage in sexual intercourse or deviate sexual intercourse" in a public
place;52 and "lewdness," which
included "any lewd act in any public place" which was "likely
to be observed by others who would be affronted or alarmed."53
Despite repeal of the sodomy law, some erotic activity still got the police
all bent out of shape. In 1975, a Gay student at the University of Delaware
reported that he had been walking with another man, holding his hand, when a
police officer
stopped us and—slapping his nightstick in his hand—said ‘Let go’.
I asked why and he admitted he couldn’t stop us unless he received a
complaint. Then he said something about women and children.54
II. Sterilization
Through the end of 1948, a total of 783 sterilizations had been performed
in Delaware, with it being the highest per capita sterilization state in the
nation for the last five years of the study.55
Only 26 of these sterilizations, or 3% of the total, were of persons other
than the insane or mentally retarded, showing that the provision for habitual
criminals largely was disregarded.56
Period Summary: This small state produced very few published
sodomy cases, but the last, from 1962, revealed that, even in small states
and small cities, police enjoyed entrapping Gay men. This same decision
revealed that the state’s law against granting probation to those
convicted of sodomy was ignored frequently by trial courts. Two years
later, the seemingly useless law was repealed. Delaware was the sixth
state to repeal its sodomy law, doing so in a new criminal code enacted in
1972. Statistics show that sterilization in Delaware was common, it being
the highest per capita state in the nation in utilizing its sterilization
law for several years through 1948. Only a very small number of those
sterilized were because of criminality, but the statistics do not reveal
what types of crimes led to sterilization orders.
The Post-Hardwick Period, 1986-Present
In 1986, a law57 outlawed "sexual
harassment," which included solicitation that the offender knew would
"cause annoyance, offense or alarm" to the solicitee.58
An aborted attempt to reinstate the sodomy law, to apply only to people of
the same sex, was announced and withdrawn in 1987. The Speaker of the Delaware
House, B. Bradford Barnes, was forced into a "tearful apology" on
the floor of the House after harsh condemnation of his proposal by health
officials and fellow legislators.59
In 1989, the sexual harassment law was amended to reduce the penalty from a
Class B misdemeanor to an unclassified misdemeanor.60
II. Sterilization
The sterilization law still is on the books.61
Period Summary: During one of the period times in the AIDS
crisis when public hysteria is fanned, a leading legislator proposed
reinstating consensual sodomy as a crime. That motion failed when
overwhelming public opposition condemned it. The sterilization law enacted
in the 1920s remains unchanged and on the books, one of only two
non-therapeutic laws not repealed. It is not known if the law continues to
be used, or against whom.
Footnotes
1The
Earliest Printed Laws of Delaware 1704-1741, (Wilmington:Michael
Glazier, Inc., 1978), page vii.
2 Id.
3 Id.
4 Id. at viii.
5 Laws of the State of Delaware 1797,
Vol. I, (New Castle DE:Samuel and John Adams, 1797), page 64.
6 Id. at 67, §5.
7 5 Eliz. c. 17.
8 Laws of the State of Delaware, ante,
at 225, ch. LXXXIVa.
9 Id. at 226.
10 "An Act for the Tryal of
Negroes," The Earliest Printed Laws of Delaware 1704-1741, (Wilmington:Michael
Glazier, Inc., 1978), pages 65-68.
11 Id. at 66.
12 Laws of the State of Delaware 1826,
page 708, ch. CCCLXII, enacted Feb. 8, 1826.
13 Id. at 727, §20.
14 Revised Statutes of the State of
Delaware to the Year of Our Lord One Thousand Eight Hundred and Fifty-Two,
Inclusive, (Dover:Samuel Kimmey, 1852), enacted Feb. 20, 1852.
15 Id. at 484.
16 Id. at 485, §7.
17 Laws of Delaware 1905, page
458, ch. 213, enacted Mar. 20, 1905.
18 96 A. 207, decided Oct. 11, 1915.
19 Id. at 208.
20 Id.
21 Id.
22 Id.
23 103 A. 752, decided May 14, 1918.
24 Id.
25 Id.
26 Laws of Delaware 1923, page
628, ch. 220, enacted Apr. 5, 1923.
27 Id. 3608L, §12L.
28 F.A. Freyhan, "Homosexual
Prostitution: A Case Report," Delaware State Medical Journal,
19:92-94 (May 1947).
29 Id. at 93.
30 Id.
31 Id.
32 Id. at 93-94.
33 Id. at 94.
34 Laws of Delaware 1929, page
742, ch. 246, enacted Apr. 10, 1929.
35 Id. §5.
36 103 A.2d 781, decided Mar. 9, 1954.
37 Id. at 781-782.
38 Id. at 782.
39 Id. Layton was elevated to U.S.
District Court by President Eisenhower in 1957.
40 Mattachine Review, July 1961,
page 4.
41 Id. at 27.
42 Id.
43 181 A.2d 225, decided May 4, 1962.
44 Id. at 225-226.
45 Id. at 226.
46 Id. at 227.
47 Laws of Delaware, Vol. 54, page
1073, ch. 349, enacted July 8, 1964.
48 Id. at 1104, §4346.
49 Laws of Delaware, Vol. 58, ch.
497, enacted July 6, 1972, effective Apr. 1, 1973.
50 Id. at 1665-1666, §766.
51 Id. at 1665, §761 (3).
52 Id. §1321.
53 Id. §1341.
54 Philadelphia Sunday Bulletin,
June 1, 1975 (no page citation given), reprinted in Aumiller v.
University of Delaware, 434 F.Supp. 1273, at 1313 (Appendix A).
55 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
56 Id.
57 Laws of Delaware, Vol. 65, page
940, ch. 494, enacted July 9, 1986.
58 Id. at 941, §763.
59 Washington Blade, May 15, 1987,
page 7. The bill never actually was introduced and Speaker Barnes died the
same year. (Correspondence from Delaware Legislative Council, n.d.,
postmarked Mar. 15, 1997).
60 Laws of Delaware, Vol. 67, ch.
130, effective June 30, 1990.
61 Delaware Code Annotated, Title 16,
§5703.
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