The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Utah
"[W]e, from the standpoint of decency and morals,
fully concur in all that these and other courts have said regarding the
loathsome and revolting character and enormity of the act charged[.]"
The Post-Revolution Period, 1776-1873
Utah, settled in 1847, was organized as a territory in 18501.
It enacted its first code of laws in 18512 as
the "State of Deseret." Included was a criminal code3
that prohibited "any man or boy" from having, or attempting to have,
"any sexual intercourse with any of the male creation." The penalty
was set at fine or imprisonment "as the court may direct."4
This law, though probably not valid since Utah was a territory and not a
state, nevertheless evidently permitted prosecution for fellatio. The
"any sexual intercourse" term seemed broad enough to permit it. This
would have been only the second such law in the nation.
A new code was adopted in 1852.5 This code
made no mention either of sodomy or common-law crimes, thus legalizing sodomy
in the territory.
Despite the legality of sodomy in Utah at this time, it apparently met with
punishment in certain cases. In 1853, a Mormon Apostle, Parley P. Pratt, gave
a sermon recommending "blood atonement" for sodomy.6
In 1856, a married woman in Salt Lake City was accused of trying to seduce
the daughter of a man in town. No legal sanctions were brought against her.7
In 1857, a man was castrated for an undisclosed sex crime, the punishment
meeting with the approval of LDS President Brigham Young. The man so punished
later "went crazy."8 Two castrations
for sodomy, or accused sodomy, also occurred in 1859.9
Also in 1857, a 21-year-old Mormon soldier in Utah was ordered to be shot
for an act of bestiality with his horse. Although he was pardoned, the horse
was shot.10 There is no documentation for
sodomy with a human leading to a death sentence.
In 1864, a soldier, Frederick Jones, was arrested for sodomy, but released
by the trial court because there was no law making sodomy a crime.11
After his release, Jones was murdered (apparently by the father of his sexual
partner), but charges against the father were dropped for lack of witnesses.
Period Summary: Utah showed no interest in outlawing sodomy when
it was created, and remained uninterested for a quarter century, although
it appears vigilante action against perpetrators was common.
The Victorian Morality Period, 1873-1948
I. Sodomy
In 1876, a man accused of sodomy, George Naylor, a Mormon, was sent on a
mission to Arizona to keep him separated from his sexual partner, Frank Wells.12
Later in 1876, the legislature enacted a new code13
that contained a sodomy law with the common-law definition providing for a
penalty of up to five years in prison.14
Another law established a penalty of up to 10 years for anyone making an
assault with intent to commit the act.15 It is
unclear why the Utah legislature felt that an incomplete act should receive
twice the penalty as a completed one.
The first known trial in Utah under the sodomy law occurred in 1881. A
physician held in jail during an investigation engaged in sodomy with a
17-year-old male, supposedly without consent. The doctor, Perry McClanahan,
said in his defense that he hadn’t "slept with two men for fifteen
years." McClanahan endured two trials with hung juries, but the judge
left him in jail for three months after the second trial, then released him.16
In 1882, two different men were convicted of sodomy and were imprisoned for
just four months after their trials.17
In 1891, a man was acquitted of sodomy even though numerous witnesses to
the act had testified in the trial.18
In 1907, Utah enacted a law19 stating that
"every lewd or dissolute person" was a vagrant and punishable in
jail for a term of up to 90 days.20
In 1913, the Utah Supreme Court was presented with the legality of fellatio
in the case of State v. Johnson.21 After
beginning the opinion, for unclear reasons, by stating that defendant Johnson
was "a negro,"22 and reviewing the
case law in England and the United States on the subject of fellatio,23
the Court reluctantly concluded that, while
we, from the standpoint of decency and morals, fully concur in all that
these and other courts have said regarding the loathsome and revolting
character and enormity of the act charged, yet we cannot, in the absence
of legislative enactment making such acts criminal and punishable,
denounce and punish them as crimes. To do so would be in effect be
judicial legislation.24
The legislature took its time to express the same level of outrage that the
Court did.
In 1922, in the case of Moorehouse v. Hammond,25
the Utah Supreme Court ruled that the state did not recognize common-law
crimes.
In 1923, nearly a decade after the Johnson decision that fellatio
was not illegal under the sodomy law, the legislature acted. The statute26
broadened the definition to outlaw "sodomy or any other detestable and
abominable crime against nature" that was committed "with either the
sexual organs or the mouth."27 The penalty
also was raised to 3-20 years from the 5-year maximum.28
The next reported sodomy case was State v. Gregorious,29
decided in 1932. In this case, a male about 15 years of age willingly
submitted to an act of sodomy with the defendant. The witness stated in the
trial that Gregorious started "kissing me and loving me and then he slid
down my pants" and then pushed him onto a bed.30
He made no effort to resist, saying that he "did not see any reason why I
should resist from it."31 The state
contended that, because of his youth, the witness’s testimony required no
corroboration.32 By a vote of 3-2, the Court
reversed the conviction, saying that corroboration was needed and noting other
errors in the trial.33
II. Sterilization
Sterilization was recommended in the biennial report of the State Board of
Insanity issued in 1912.34 The report was
moralistic, sexist, and misandrogistic. Although it began on a gender-neutral
note discussing hereditary disease, the report turned misandrogistic. For
that man who marries, knowing himself to be affected, no punishment is
too great. The moral sense of the public would approve almost any form of
legislation that would insure to the pure wife protection from conjugal
infection, and consequently the mental anguish of having diseased or
defective offspring.35
Thus, the state believed only men could transmit hereditary illnesses. Also
recommended was "personal examination of applicants as to their fitness
for marriage and reproduction."36 The
penal code should be amended "to authorize the courts of superior
jurisdiction, to impose, on recommendation of the board of eugenics, sentences
of castration as the alternative to imprisonment for certain crimes of sexual
perversion" and to make sterilization "a condition precedent to the
granting of pardons, or paroles, from penal institutions" whenever
sterilization "would be advisable."37
The use of the term "castration" meant that only men should endure a
penalty such as this.
It took more than a decade to adopt any sterilization law. In 1925, Utah
enacted a law38 to cover inmates of state
institutions who were afflicted with "habitual sexual criminal
tendencies[.]"39 Due process guarantees
were included and, unlike the 1912 report’s recommendation, the law was
gender-neutral.
In 1929, the law was amended40 to insert the
word "degenerate" into the description of those eligible to be
sterilized.41 Now, "habitual degenerate
sexual criminal tendencies" were required to be possessed before one
could be sterilized.
The sterilization law was challenged in the interesting case of Davis v.
Walton,42 from 1929. (The case was decided
after the 1929 amendment was passed, but before its effective date, and
brought under the 1925 law). The Utah Supreme Court unanimously upheld the
constitutionality of the law,43 but also
unanimously blocked the planned sterilization of prisoner Esau Walton. Walton,
who, the Court said, was unmarried and began his criminal career with the
theft of "silk shirts,"44 was
scheduled to be sterilized because he had been seen
with another inmate in a cell at the state prison. A blanket was hung
over the window of the cell. Appellant and the inmate were both partly
undressed. They had their pants down. Appellant’s associate was lying on
his stomach on a cot. The appellant was on top of him. When interrupted,
the appellant’s penis was erect. The guard further testified that
appellant frequently acted lovingly towards other boys who were confined
in the prison.45
Another prisoner testified that Walton had solicited him.46
Nevertheless, the Court found this activity not to be covered by the command
of the law.47
Period Summary: Sodomy did not become a crime in Utah until
1876, making Utah the 44th state to outlaw it. Although the Utah Supreme
Court ruled that the state did not recognize common-law crimes, it
followed the common-law definition of sodomy when it decided that fellatio
did not constitute a violation of it. It took almost a decade for the Utah
legislature to revise the law to permit such prosecutions. A sterilization
law covering persons afflicted with "habitual criminal sexual
tendencies" nevertheless was interpreted by the Utah Supreme Court as
inapplicable to a Gay prisoner caught in a sexual act with another
prisoner.
The Kinsey Period, 1948-1986
An amazing case was decided by the Utah Supreme Court in 1949 in State
v. Cooper.48 Grant Cooper had been
convicted of an indecent assault on an 11-year-old boy. The conviction was
upheld, but of interest is an essay by Justice James Wolfe,49
who wrote for the Court. The crime involved "is a type of homosexual
offense" and
[h]omosexual practices may result either from congenital homosexuality,
psychopathic homosexuality, or excessive sexual vigor expressed in
homosexual practices in the absence of opportunity for heterosexual
relations. Congenital homosexuals, and to a certain extent, psychopathic
homosexuals, may be wholly unresponsible for their homosexual acts. They
are motivated by biological and physiological factors which may be beyond
their power to combat or control.50
However, while
such persons cannot be left to prey upon society, and particularly upon
young children, the wisdom of declaring their conduct to be criminal may
be seriously questioned. In the light of advanced biological and medical
knowledge, the legislature might well provide for their confinement in
sanitaria for necessary treatment. Up to now the legislature has made no
distinction between the various classes of offenders of this type, and we
have no choice but to accept the legislative mandate.51
Two of the other four members of the Court joined Wolfe, giving his opinion
precedental value. Justice Roger McDonough concurred in the result, and
Justice Lester Wade "concurs but expresses no opinion on unnecessary
matter discussed."52
Utah enacted a psychopathic offender law in 1951.53
Specific criminals, including anyone convicted of sodomy, lewdness, or an
attempt to commit either, were required to be referred for mental examination
prior to sentencing.54 Commitment for life was
compulsory for anyone so examined who was determined to be suffering from
mental illness.55
This law was amended in 195356 to add
"assault with intent to commit sodomy" to the list of referable
crimes.57
In 1955, in State v. Turner,58 the
Utah Supreme Court unanimously rejected the defendant’s contention that his
voluntary intoxication excused him from culpability. "The offense with
which defendant was charged could not have been committed by accident or while
intending to do some other act."59
In 1969, Utah became the first state in the nation to pass a law60
whose sole purpose was to reduce the penalty for sodomy from a felony to a
misdemeanor. The new law eliminated the reference to "detestable and
abominable crime against nature" and reduced the penalty for consensual
acts to a maximum of six months in the county jail, and/or a fine of up to
$299.61 Other acts of sodomy were penalized
more severely.
In a comprehensive criminal code revision of 1973,62
a statutory abrogation of common-law crimes was enacted63
and the sodomy penalty of 1969 was retained.64
However, the wording made clear that the gender of the parties was irrelevant.65
Other changes were that married couples were exempted from prosecution,66
a three-month statute of limitations for the initiation of prosecutions was
established,67 and an act of sodomy was
determined to have been completed upon "any touching."68
The vagrancy law was repealed.69
In 1975, in State v. Atkinson,70 the
Utah Supreme Court refused to reduce the sentence of a man sentenced to 1-15
years in prison for sodomy with a minor. The curious aspect of this case is
that Atkinson had been sentenced in 1974, allegedly under a felony sodomy law.
However, in 1969, the penalty had been reduced to a misdemeanor (q.v.)
and the trial judge and the Court of Appeals were both apparently unaware of
that fact. The trial court decided on its own that force had been used by
Atkinson in his sexual act, and sentenced him to 1-15 years. The Utah Supreme
Court noted that the 1-15 year sentence was less than the 3-20 years he could
have gotten under the old law. "Inasmuch as the defendant actually has a
lesser sentence than would have been warranted under the law, we do not see
wherein he has any just cause for complaint." [Footnote omitted].71
Atkinson then went into federal court. In 1978, in Atkinson v. Smith,72
the Tenth Circuit Court of Appeals unanimously directed that he have his
sentence reduced, pointing out that there was no evidence of the use of force
by Atkinson. The per curiam decision tersely stated that it was
axiomatic that due process does not permit one to be tried, convicted
or sentenced for a crime with which he has not been charged or about which
he has not been properly notified.73
The federal court maintained the error about the applicable law, also
overlooking the 1969 misdemeanor statute.
In 1980, Utah revised its psychopathic offender law,74
removing the possibility of consensual sodomy from being a triggering offense.
II. Sterilization
Despite the sterilization law’s permission to include sexual criminals,
through the end of 1948, all of the 555 persons sterilized in Utah were either
insane or mentally retarded.75
In 1975, in a comprehensive revision of mental health laws,76
Utah limited its sterilization law’s reach to the mentally retarded in state
institutions, and then only under certain circumstances.77
Period Summary: Utah continued in its relatively mild attitude
toward sodomy by being the first state, just a year after the first Kinsey
report was published, to have its Supreme Court question the wisdom of
laws against consensual sodomy. Utah also was the first state, in 1969, to
pass a law whose sole purpose was to reduce the penalty for consensual
sodomy from a felony to a misdemeanor.
The Post-Hardwick Period, 1986-Present
Period Summary: There are no published cases dealing with the
limits of state power to regulate sexual activity in places such as
restrooms or parked cars.
Footnotes
1 9 Stat. 453, enacted Sep. 9, 1850.
2 Laws and Ordinances of the State of
Deseret, (Salt Lake City:Shepard Book Company, 1919).
3 Id. at 25. Enacted
Jan. 19, 1851.
4 Id. at 30, §23.
5 Revised Statutes of Utah 1855,
page 182, enacted Mar. 6, 1852.
6 D. Michael Quinn, Same-Sex Dynamics
Among Nineteenth-Century Americans, (Urbana IL:University of
Illinois Press, 1996), page 269.
7 Quinn, page 269.
8 Quinn, page 270.
9 Quinn, page 272.
10 Quinn, page 270-271.
11 Quinn, page 272.
12 Quinn, page 273-274.
13 Compiled Laws of the Territory of
Utah, (Salt Lake City:Deseret News Steam Printing, 1876).
Publication date is Nov. 29, 1876.
14 Id. at 598, ch. V.
15 Id. at 590, ch. VI.
16 Quinn, page 275.
17 Quinn, page 275.
18 Quinn, page 284.
19 The Compiled Laws of the State of
Utah 1907, page 2, ch. 3, enacted Feb. 15, 1907.
20 Id. at 1346, §4472.
21 137 P. 632, decided Dec. 16, 1913.
22 Id.
23 Id. at 632-634.
24 Id. at 634.
25 209 P. 883, decided Oct. 4, 1922.
26 Laws of Utah 1923, ch. 13,
enacted Feb. 17, 1923.
27 Id.
28 Id.
29 16 P.2d 893, decided Dec. 13, 1932.
30 Id. at 894.
31 Id. at 894-895.
32 Id. at 895.
33 Id. at 899.
34 State of Utah Report of the State
Board of Insanity and Superintendent of the State Mental Hospital,
Provo, (Salt Lake City:The Arrow Press, 1913), Appendix, pages
21-23. Issued Dec. 24, 1912 per The Oregonian, Dec. 26,
1912, 4:3.
35 Id. at 22.
36 Id.
37 Id. at 22-23.
38 Laws of Utah 1925, page 159,
ch. 82, enacted Mar. 16, 1925.
39 Id. §1.
40 Laws of Utah 1929, page 75,
ch. 59, enacted Mar. 23, 1929, effective May 14, 1929.
41 Id. §1.
42 276 P. 921, decided Apr. 9, 1929.
43 Id. at 924.
44 Id.
45 Id.
46 Id.
47 Id. at 924-925.
48 201 P.2d 764, decided Jan. 14, 1949.
49 Wolfe was regarded as a liberal with
views on social issues "ahead of the times" and he "kept
well advised with respect to the undercurrents of society and when he
became convinced that change was indicated, he faced the issue with
courage and imagination." 8 Utah 2d ix, at xiii.
50 201 P.2d, at 767.
51 Id.
52 Id. at 771.
53 Laws of Utah 1951, page 52,
ch. 22, enacted Mar. 7, 1951.
54 Id. §1.
55 Id. §5.
56 Laws of Utah 1953, page 30,
ch. 22, enacted Mar. 5, 1953.
57 Id. §1.
58 282 P.2d 1045, decided Apr. 29,
1955.
59 Id. at 1047.
60 Laws of Utah 1969, page 994,
ch. 244, enacted Mar. 8, 1969, effective May 13, 1969.
61 Id.
62 Laws of Utah 1973, page 584,
ch. 196, enacted Mar. 8, 1973, effective July 1, 1973.
63 Id. at 586, §76-1-105.
64 Id. at 610, §76-5-403.
65 Id.
66 Id. at 611, §76-5-407 (1).
67 Id. §76-5-407 (2)(a).
68 Id. §76-5-407 (3).
69 Id. at 684, Part 14.
70 532 P.2d 215, decided Feb. 25, 1975.
71 Id. at 216.
72 575 F.2d 819, decided May 12, 1978.
73 Id. at 821.
74 Laws of Utah 1980, page 110,
ch. 15, enacted Jan. 31, 1980, effective July 1, 1980.
75 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
76 Laws of Utah 1975, page 258,
ch. 67, enacted Feb. 28, 1975, effective May 13, 1975.
77 Id. at 269, §19.
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