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Last edited: August 10, 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
Tennessee
"It would not be amiss for the legislature to take
a new and fresh look at Tennessee’s 150-year-old ‘crime against nature’
statute. Such a re-evaluation, in the light of modern mores and morality,
would be in the public interest and would be of substantial assistance in
the administration of criminal justice."
The Post-Revolution Period, 1776-1873
Upon the organization of Tennessee as a territory in 1790, it received the
laws of North Carolina.1 This included the
English buggery law, since North Carolina recognized it.
Tennessee did not enact its own sodomy law until 1829 when it adopted a new
criminal code.2 The sodomy law stated
Whoever shall commit either of the infamous crimes against nature
called sodomy and buggery shall undergo confinement in said Jail and
Penitentiary house for a period of not less than five nor more than
fifteen years.3
This law recognized two crimes against nature, but it is unclear to what
acts they referred. The term "sodomy" is the genus of the crime,
with "buggery" and "bestiality" as its species.
In 1858, the Tennessee legislature authorized a new code,4
but forbade the compilers from making any substantive changes in the laws of
the state.5 In a rare instance of actually
following the command of the legislature on this matter, the compilers
reworded the law only slightly to read
Crimes against nature, either with mankind or any beast, are punishable
by imprisonment in the penitentiary not less than five nor more than
fifteen years.6
Thus, the law continued to recognize more than one such crime, and
apparently was clarified so that "sodomy" and "buggery"
became "mankind" and "beast," even though buggery is not
defined as sexual relations with an infrahuman animal.
Period Summary: Tennessee passively criminalized sodomy by
receiving the laws of North Carolina, one of which was a statute adopting
the laws of England. The first sodomy statute, adopted in 1829, referred
to the infamous "crimes" against nature, but used the terms
"sodomy" and "buggery" as explanations. It appears
that the state meant to make reference to buggery and bestiality, which
are the two forms of sodomy. However, in a new code of 1858, matters were
clarified to a degree with retention of the plural "crimes"
against nature, but with specific reference to "mankind" and
"any beast." Curiously, however, the pluralized term may have
authorized prosecution for any form of erotic activity with either another
human or a beast.
The Victorian Morality Period, 1873-1948
In 1943, in an unreported decision, Brewer v. State,7
the Tennessee Supreme Court interpreted the "crime against nature"
to include fellatio. Brewer was a minor who received the minimum sentence of
five years at the state training and agricultural school. Refusing to give
detail to its reasoning, the Court said
We prefer to align ourselves with those Courts that give a broad rather
than a narrow interpretation to the meaning of the words "crimes
against nature" used in our Statute.8
Period Summary: There were no changes to the sodomy statute and
no published cases dealing with the issue during this entire period. An
unreported decision late in the era ruled that "crime against
nature" embraced fellatio. It is unclear why such an important
decision would go unreported by the Tennessee Supreme Court, unless the
subject was too embarrassing for the Court.
The Kinsey Period, 1948-1986
The first reported sodomy case in Tennessee was from 1955, Fisher v.
State.9 The Tennessee Supreme Court again
ruled unanimously that fellatio was a violation of the law. The Court was
critical of the precedental English case that ruled the opposite way, saying
that it was "more or less perfunctory and was arrived at with apparently
no reason."10 The Court gave no reasons of
its own for deciding the opposite way. It did, however, make a reference to
the Brewer case above.11
In 1956, in State v. Johnson,12 the
Tennessee Supreme Court upheld a 5-year sentence, the minimum that could be
given under the law, of a 17-year-old defendant.13
Tennessee was among the last states to enact a "psychopathic
offender" law, in 1957.14 The law defined
a sex offender as one who
by a course of misconduct in sexual matters has evidenced a general
lack of power to control his sexual impulses, and who, as a result, is
likely to attack or otherwise inflict injury, degradation, pain or other
evil on the objects of his uncontrollable desires.15
Furthermore, "sex offenders constitute a species of insane persons in
the eyes of the General Assembly"16 and
anyone convicted of any "sex crime" was to be examined after
admission to a penal institution.17 Any
treatment thought necessary was required to be provided to the offender.18
In 1957, the Supreme Court, dividing 4-1, upheld a conviction for
"felonious assault" in Valley v. State.19
The "assault" consisted of the solicitation and attempted fondling
of a teenage male. In dissent, Chief Justice A.B. Neil believed that Valley
had committed "no overt act which would warrant his conviction" on
an assault charge.20 The facts of the case
tend to show that he is a sex pervert. He doubtless had the desire to
have an unnatural sex relation with this boy, which is a felony under the
statute, and an attempt to have such relationship, if shown by some overt
act, would also amount to a felony and be punishable as such.21
Noting that Valley only had "tried" to touch the complainant,
Neil believed that this was "only a manifestation of his desire to commit
[sodomy]."22
In 1959, in Sherrill v. State,23 the
Tennessee Supreme Court ruled that prosecuting witnesses as young as 10 years
of age had to be corroborated.24 The conviction
was overturned for lack of corroboration, even though one of the boys involved
was treated for venereal disease after his alleged sexual relations with the
defendant.25
Tennessee revised its psychopathic offender law in 196326
to limit the reach of its provisions to activity with minors.27
In the 1964 case of Boulton v. State,28
the Tennessee Supreme Court unanimously overturned the sodomy conviction of
the defendant. Boulton, a teacher, had been convicted of fellating a
14-year-old former student. The Court found relevant the fact that, of all the
boy’s family, only his sister, who apparently had a running feud with
Boulton, had reacted negatively to his relationship with her brother.29
The state attempted to prove that Boulton’s statement about the young man,
"I love him just like he was mine," was evidence of "a display
of affection by him toward the boy which is abnormal between unrelated persons
of the same sex." 30 The
Supreme Court did not agree that such words were "unnatural." 31
In 1970, a federal court dealt with the case of Polk v. Ellington.32
The court rejected a constitutional challenge to the sodomy law, but did not
give any analysis for its reasoning other than stating that it knew of no
other federal court case striking down such laws. 33
In 1971, in Scola v. State,34 the
Court of Criminal Appeals overturned a sodomy conviction because of
"inconsistencies and contradictions" in testimony35
and the fact that the 15-year-old prosecuting witness, an accomplice, had no
corroboration for his testimony. 36
The constitutionality of the crime against nature law was challenged
unsuccessfully in the 1972 case of Stephens v. State. 37
The term "crime against nature" was "well defined and described
at common law."38
In 1973, in Locke v. State,39
cunnilingus was found to be a violation of the crime against nature law. The
Court of Criminal Appeals split 2-1 to uphold the conviction by saying that it
would be
a paradox of legal construction to say that fallatio [sic]...is
proscribed as a crime against nature, but cunnilingus is not.40
The Court refused to decide the constitutionality of the crime against
nature law as it applied to married couples because that issue was not
properly before them.41 In dissent, Judge
Charles Galbreath believed that the majority was in error to state that the
weight of case law was on the side of cunnilingus being included within the
term crime against nature.42 He noted that a
study published in Playboy magazine revealed that 90% of adults under
age 35 approved of cunnilingus, and felt that the ruling against it was
"judicial legislation of the plainest kind." 43
Galbreath also questioned why this crime was the only one in the state’s
criminal code that was not defined. 44
He was bothered by Locke’s apparent solitary status in criminal annals in
Tennessee. Locke
here has the dubious distinction of being the only person in the
history of this State, so far as reference to our case law is concerned,
who has ever been sentenced to prison for committing this act which, as
aforesaid, has been statistically attributed to some 46% of the adult
population. 45
A proposed comprehensive criminal code revision of 197346
would have abrogated common-law crimes47 and
repealed the sodomy law with an age of consent of 16. 48
This new code never was adopted by the Tennessee legislature.
In Morris v. State, 49
from 1975, the Court of Criminal Appeals upheld a sodomy conviction over an
objection that women had been excluded systematically from the jury pools. The
Court noted that Morris had not properly presented this point. 50
In another 1975 case, Young v. State,51
the Tennessee Supreme Court, in unanimously upholding a sodomy conviction,
nevertheless said that it
would not be amiss for the legislature to take a new and fresh look at
Tennessee’s 150-year-old "crime against nature" statute. Such
a re-evaluation, in the light of modern mores and morality, would be in
the public interest and would be of substantial assistance in the
administration of criminal justice. 52
In 1977, the psychopathic offender law was amended53
to limit the sex crimes for which it would be operative to incest, crime
against nature, assault with intent commit rape, and rape. 54
In late 1978, a Tennessee judge dismissed solicitation charges against four
men because he construed a 1977 sexual assault revision law as repealing
"by implication" the "crime against nature" law. 55
The legislature responded to this action in 1979 by passing a law56
overturning the judge’s action, limiting the scope of the previous sexual
assault reform law. 57 Nothing in
that law
shall be construed to expressly or impliedly repeal the crime against
nature law or any common law sexual offense that is recognized by the
courts of the state of Tennessee or any other section of the Tennessee
Code Annotated which was not expressly repealed by the Sexual Offenses Law
of 1977. 58
In 1979, the Court of Criminal Appeals upheld an attempted sodomy
conviction in Edmondson v. State. 59
The 13-year-old partner of Edmondson was scheduled to testify against him, but
turned hostile to the prosecution on the witness stand. He denied all
necessary elements of the crime, but the jury returned a guilty verdict
nonetheless.
Period Summary: A number of reported sodomy cases occurred
during this era, with the prosecution generally winning. The Tennessee
legislature embraced neither the Model Penal Code, nor a proposed code
specific for the state that also recommended decriminalization of
consensual sodomy, nor the suggestions of the relatively liberal Tennessee
Supreme Court that they reexamine the state’s sodomy law. In fact, it
responded negatively when a judge ruled that a new sexual assault law
repealed the sodomy law by implication, when it adopted a law that stated
the sodomy law remained in effect.
The Post-Hardwick Period, 1986-Present
A decade later, in 1989, the Tennessee legislature enacted a comprehensive
criminal code revision. 60
Common-law crimes were abrogated, 61
but the crime against nature law was not repealed. The replacement crime was
called "Homosexual Acts" and established a penalty of up to 30 days
in jail and/or a fine of up to $50 for cunnilingus, fellatio, or anal
intercourse "with a person of the same gender." 62
The Tennessee Supreme Court decided in 1992, in a non-sodomy case, Davis
v. Davis, 63 that there was a
right to privacy under the Tennessee Constitution, even though there is no
privacy language found there. Although focusing on procreation, and referring
to the "fundamental" rights under the federal constitution (which
exclude homosexual sexual activity, per the U.S. Supreme Court), Justice
Martha Daughtry stated that the
right to privacy, or personal autonomy, ("the right to be
let alone"), while not mentioned explicitly in our state
constitution, is nevertheless reflected in several sections of the
Tennessee Declaration of Rights[.] [Emphasis added]. 64
As a result of that right of privacy decision, a court suit, Campbell et
al. v. Sundquist et al., was filed against the Tennessee "homosexual
conduct" law. 65 In late
1994, the trial judge, Walter Kurtz, issued a memorandum in the case that
sexual activity could not be prohibited merely because the state believes it
to be immoral. 66 He then struck
down the law as violative of the right to privacy under the state
constitution. 67
In 1996, on appeal, the Court of Appeals affirmed Kurtz. 68
Curiously, the vote was unanimous as to the unconstitutionality of the law,
but only 3-2 on the issue of standing. Judge William Crawford wrote the
opinion that disposed of technical points raised by the state, then got to the
issue of a right to privacy. The state argued that the parameters of the state’s
right to privacy were identical to those under the Federal Constitution.
69 Crawford answered the state that
the court thought
it is consistent with this State’s Constitution and constitutional
jurisprudence to hold that an adult’s right to engage in consensual and
noncommercial sexual activities in the privacy of that adult’s home is a
matter of intimate personal concern which is at the heart of Tennessee’s
protection of the right to privacy, and that this right should not be
diminished or afforded less constitutional protection when the adults
engaging in that private activity are of the same gender. 70
Crawford listed the state’s five proffered "compelling"
justifications for the law, then picked them apart one by one. First, the
state argued that same-sex relationships can not lead to procreation. Crawford
responded that the U.S. Supreme Court’s Griswold decision, as well as
the Davis decision above left the choice of procreation to individuals,
rather than the government. 71
Second, the state argued that same-sex relationships were socially stigmatized
and lead to a higher risk of suicide, depression, and substance abuse.
Crawford’s answer was that the U.S. Supreme Court had issued decisions
banning restrictions of individual liberty because of public bias, and that
there was no single "lifestyle" among Gay or Lesbian individuals
against which suicide, depression, or substance abuse could be measured. 72
Third, the state argued that such relationships were "short-lived"
and, thus, unstable. Crawford said that the state failed to produce any such
evidence. 73 Fourth, the
state raised the specter of spreading disease as a compelling state interest.
Crawford noted that the statute under attack was not tailored narrowly to
advance this interest, being that it outlawed sexual activity "even if
the people involved are disease free, practicing ‘safe sex’, or engaging
in sexual contact which does not contribute to the spread of disease."
74 [Footnote omitted.] Fifth, the law
allegedly advanced the morals of the citizens of Tennessee. This led to the
longest response. Crawford approved of language from the U.S. Supreme Court
that public expression of moral beliefs can not be used to suppress unpopular
minorities. He then lengthily quoted from the Kentucky Wasson decision (q.v.)
and the Pennsylvania Bonadio decision (q.v.), both of which
struck down those state’s consensual sodomy laws, accepting their rationale.75
Costs of the appeal were assessed against the state. 76
Judge Ben Cantrell, joined by one other judge, dissented from the technical
part on standing that opened Crawford’s opinion. He believed that, since
there had been no prosecution under the law, there could be no standing to
challenge it. Interestingly, both judges formally joined the portion of the
opinion striking down the law on broad privacy grounds. 77
After more than two decades of hinting and prodding the legislature, the
Tennessee Supreme Court accomplished its goal by refusing to review the
decision and asking the Court of Appeals to publish its decision, thus making
it a precedent. 78
The age of consent is 18. 79
Period Summary: After considerable agitation, a comprehensive
criminal code revision was enacted in 1989. The crime against nature law,
with a 5-15-year felony penalty was replaced by a misdemeanor law made
applicable only to people of the same sex. Coming as it did after the U.S.
Supreme Court upheld the Georgia law and during the AIDS crisis, the
action of the legislature was not surprising. However, a specific right to
privacy was identified under the Tennessee constitution by the state’s
Supreme Court and that right was used to strike down the sodomy law in
1996.
Footnotes
1 Carruthers & Nelson, eds., Compilation
of Statutes of Tennessee, (Nashville:James Smith, 1836), page 41,
§8, enacted Apr. 2, 1790.
2 Laws of Tennessee 1827-30, page
27, ch. XXIII, enacted Dec. 9, 1829.
3 Id. at 29-30, §17.
4 Laws of Tennessee 1857-58, page
411, ch. 177, enacted Mar. 20, 1858.
5 Id.
6 The Code of Tennessee Enacted by
the General Assembly of 1857-’8, (Nashville:E.G. Eastman and
Company, 1858), page 868, §4843.
7 No. 5, (Knox County Criminal, Eastern
Division of the Tennessee Supreme Court), decided Oct. 16, 1943.
8 Id. at 1-2.
9 277 S.W.2d 340, decided Mar. 11, 1955.
10 Id. at 341.
11 Id.
12 296 S.W.2d 832, decided Dec. 7,
1956.
13 Id. at 833.
14 Tennessee Public Acts 1957,
page 938, ch. 288, enacted Mar. 22, 1957, effective July 1, 1957.
15 Id. §1.
16 Id. at 938-939, §2.
17 Id. at 939, §3.
18 Id. §4.
19 309 S.W.2d 374, decided Dec. 6,
1957. Rehearing denied Feb. 6, 1958.
20 Id. at 961. Neil’s dissent
was published much later than the majority opinion and is found in a
different part of the reporter.
21 Id.
22 Id.
23 321 S.W.2d 811, decided Jan. 23,
1959.
24 Id. at 816.
25 Id. at 813.
26 Tennessee Public Acts 1963,
page 1133, ch. 315, enacted Mar. 25, 1963.
27 Id.
28 377 S.W.2d 936, decided Apr. 8,
1964.
29 Id. at 938.
30 Id. at 939.
31 Id.
32 309 F.Supp. 1349, decided Mar. 5,
1970. Supplemental order Apr. 6, 1970.
33 Id. at 1352.
34 474 S.W.2d 144, decided Aug. 31,
1971. Cert. denied by the Tennessee Supreme Court Dec. 6, 1971.
35 Id. at 145.
36 Id. at 146-147.
37 489 S.W.2d 542, decided Sep. 28,
1972. Cert. denied by the Tennessee Supreme Court Jan. 2, 1973.
38 Id. at 543.
39 501 S.W.2d 826, decided Oct. 2,
1973. Cert. denied by the Tennessee Supreme Court Nov. 5, 1973. Affirmed
by the U.S. Supreme Court as Rose v. Locke, 428 U.S. 48, decided
Nov. 17, 1975. Justices Brennan, Stewart, and Marshall dissented.
40 501 S.W.2d, at 828.
41 Id.
42 Id.
43 Id. at 828-829. The Playboy
reference is in n.2.
44 Id. at 830.
45 Id.
46 Tennessee Criminal Code and Code
of Criminal Procedure. Proposed Final Draft November, 1973, (Nashville:State
of Tennessee Law Revision Commission, 1973).
47 Id. at 2, §39-103(a).
48 See generally chapter 18, pages
95-103. A lengthy analysis of the new code’s applicability to sodomy
is found in Victor S. Johnson, "Crimes Against Nature in Tennessee:
Out of the Dark and Into the Light?" 5 Memphis St.L.R. 319 (Fall
1974). The proposal was criticized in 1 Sex.L.Rep. 28.
49 532 S.W.2d 61, decided Oct. 7, 1975.
Cert. denied by the Tennessee Supreme Court Dec. 30, 1975.
50 Id. at 63.
51 531 S.W.2d 560, decided Dec. 30,
1975.
52 Id. at 563.
53 Tennessee Public Acts 1977,
page 1184, ch. 449, enacted May 26, 1977, effective immediately.
54 Id. at 1185, §2.
55 The Advocate, Vol. 259
(Jan. 11, 1979), page 13.
56 Tennessee Public Acts 1979,
page 1065, ch. 415, enacted May 23, 1979, effective immediately.
57 Tennessee Code Annotated, §39-3701
through §39-3707.
58 Tennessee Public Acts 1979,
ch. 415, §1.
59 579 S.W.2d 902, decided Jan. 17,
1979.
60 Tennessee Public Acts, 1989,
ch. 591, enacted June 14, 1989, effective Nov. 1, 1989.
61 Id. §39-11-102.
62 Id. §39-13-510.
63 842 So.2d 588, decided June 1, 1992.
64 Id. at 600.
65 Washington Blade, Apr. 16,
1993, page 40; Lesbian/Gay Law Notes, Summer 1993, 48:2.
66 Washington Blade, Dec. 9,
1994, page 1; Lesbian/Gay Law Notes, January 1995, 1:1.
67 Washington Blade, Feb. 3,
1995, page 16. The case was decided Feb. 2, 1995.
68 926 S.W. 2d 250, decided Jan. 26,
1996.
69 Id. at 258-259.
70 Id. at 262.
71 Id. at 263.
72 Id.
73 Id.
74 Id.
75 Id. at 265-266.
76 Id. at 266.
77 Id.
78 Id. at 250.
79 Tennessee Revised Statutes
§39-13-506.
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