Oregon Sodomy Law Footnotes
1 H.W. Scott, ed., History of Portland, Oregon, (Syracuse:D. Mason & Co., 1890), page 451.
2 Id. at 452.
3 Lawrence T. Harris, "History of the Oregon Code," 1 Ore.L.Rev. 129-141, at 135 (1921-22). The statute was enacted July 5, 1843.
4 Id. at 138. The statute was enacted June 27, 1844.
5 Id. at 139.
6 Id. at 140. The statute was enacted July 26, 1845.
7 9 Stat. 323, enacted Aug. 14, 1848.
8 Acts of the Legislative Assembly of the Territory of Oregon, Passed at Their Sessions, Begun and Held at Oregon City, in July, 1849, and May, 1850, (Oregon City:Robert Moore, 1850). Crimes and Punishments, pages 89-113. There was a criminal code enacted on Feb. 6, 1851, perhaps a reprinting of the above, and it made no mention of sodomy.
9 The Statutes of Oregon. Enacted, and Continued in Force, by the Legislative Assembly, at the Fifth and Sixth Regular Sessions thereof, (Oregon [City?]:Asahel Bush, 1855), page 206, "An Act to Define Crimes and Misdemeanors, and Regulate Criminal Proceedings," enacted Dec. 22, 1853.
10 Id. §1.
11 Id. at 235, §12.
12 4 Ore. 325, decided Jan. 20, 1873.
13 Id. at 326.
14 Portland Evening Telegram, Aug. 28, 1894, 6:2.
15 Portland News, Jan. 13, 1913, page 1.
16 General Laws of Oregon 1913, page 56, ch. 21, enacted Jan. 31, 1913.
17 Id.
18 132 P. 512, decided May 20, 1913.
19 Id.
20 Id. at 512-513.
21 Id. at 513.
22 Id. at 514.
23 Start, at 517.
24 Id.
25 Id. at 518.
26 132 P. 518.
27 Portland Evening Telegram, June 12, 1913, 6:1.
28 Oregon Journal, June 19, 1913, 5:6.
29 Oregon Journal, Nov. 22, 1913, 1:2.
30 136 P. 354, decided Nov. 20, 1913.
31 Id .at 357.
32 Id. at 358.
33 Id. at 359.
34 Id.
35 Id. at 360.
36 Id. McNary had been appointed to one of the new seats on the Supreme Court and, when he ran in 1914 for a full term, Oregon voters defeated him by a single vote statewide, prompting a long and bitter dispute with the man who defeated him. (See the Oregonian, Sep. 2, 1914, page 12.) He later was a U.S. Senator from Oregon and was the Republican nominee for Vice President with Wendell Willkie in 1940.
37 175 P. 433, decided Oct. 15, 1918. Other records show that the defendant's name was misspelled in the reporter. His name was Kapsalas.
38 175 P., at 434. Tom Kapsalas entered the Oregon Penitentiary on Nov. 14, 1918 when the Spanish influenza pandemic was at its peak in Oregon. He died on Dec. 5, 1918 from the disease.
39 249 P. 172, decided Sep. 21, 1926.
40 Id.
41 269 P. 884, decided July 31, 1928. The Portland City Directory for 1927 shows Clarence Brazell as an agent for the New York Life Insurance Company.
42 Brazell, at 885.
43 149 P.2d 765, decided June 20, 1944.
44 Id. at 767.
45 Id. at 769-770.
46 Id. at 770.
47 Id. at 771.
48 Id. at 773.
49 B.A. Owens-Adair, Human Sterilization: It's [sic] Social and Legislative Aspects, (B.A. Owens-Adair, 1922), pages 54-55.
50 The Patriarch, Apr. 6, 1907, 2:2. A history of all the Oregon bills from 1907 to 1921 is in Owens-Adair, pages 55-82. Owens-Adair graduated from medical school without having so much as an elementary school education and fought just as hard for recognition of the sterilization bills as "her" bills as she did for enactment of the bills into law. Owens-Adair lived until 1926 and saw the spread of sterilization laws throughout the United States. Unfortunately, she did not live to learn of the Nazi abuse of these laws.
51 Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 40.
52 Id. at 40-41.
53 Id. at 41. It was House Bill 69, enacted Feb. 18, 1913.
54 House Bill 69, §1.
55 Laughlin, at 42-43.
56 Pamphlet Containing Measures to be Submitted to Voters of Oregon November 4, 1913, published by the Oregon Secretary of State, pages 13-14.
57 The public library in Portland has no information on the League. The Oregon Journal editorialized about the outcome, lamenting the loss of the measure and lauding the New Jersey sterilization law (which would be struck down by that state's Supreme Court on sweeping constitutional grounds just 11 days later). See the issue of Nov. 7, 1913, 8:3. A letter to the editor attacking the editorial appeared Nov. 23, 1913, II:5:4. Sterilization was considered a "liberal" response to a problem (see the editorial mentioned in note 58). One of the four counties carried by the measure was Lane, home of Eugene and the University of Oregon. Lane County, then the second-largest in population in the state, gave the issue a hefty 58% support. The measure won a full 67% in Eugene, carrying every precinct. Eugene Daily Guard, Nov. 5, 1913, 1:3. Benton County, home of Corvallis and Oregon State University, gave the issue 49.7% of its vote. Portland's Multnomah County, where the 1912 sex scandal erupted that led to passage of the sterilization law, defeated the proposal by a larger-than-average 58%-42% margin. Abstract of votes provided by the Oregon Secretary of State's Office. Turnout in Multnomah County was only 30%, showing that there was little voter interest in this measure. Portland Evening Telegram, Nov. 6, 1913, 2:2.
58 General Laws of Oregon 1917, page 518, ch. 279, enacted Feb. 19, 1917. The Portland newspapers referred to the bitter debate in the legislature over this bill. In the Oregon Senate, one senator asked his colleagues to remember the popular vote in 1913 against sterilization, but the others claimed that the public, having become more sophisticated on the issue, now was supportive. See the Oregonian, Jan. 30, 1917, 9:1. The same paper editorialized that some people felt that "perverts and defectives ought to be let alone," but that was "reactionary." Id. Feb. 2, 1917, 12:3.
59 General Laws of Oregon 1917, at 519, §2.
60 Id. at 521, §10.
61 Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 89.
62 Oregon Journal, Feb. 6, 1918, 22:4.
63 Correspondence from "Warden" to Dr. Frederick D. Stricker, Secretary, Oregon State Board of Eugenics, Dec. 18, 1924. In collection of the records of the Oregon Board of Eugenics, Oregon State Archives, Salem.
64 Printed in Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 289, decided Dec. 13, 1921.
65 Id. at 88.
66 Id. at 96.
67 The five opinions not included can be found in the volumes of opinions for 1922-1924, page 519; 1934-1936, pages 170 and 325; and 1938-1940 pages 13 and 407.
68 Biennial Report and Opinions of the Attorney General of the State of Oregon 1920-1922, page 449, issued Jan. 10, 1922.
69 Id.
70 Owens-Adair, pages 144-146.
71 General Laws of Oregon 1923, page 280, ch. 194, enacted Feb. 24, 1923.
72 Id. §2.
73 This law was enacted at a session of the legislature dominated by the Ku Klux Klan. Also enacted at this session were an alien land law aimed at the Chinese. During this year, the state defended in a court challenge its popularly initiated law that prohibited Catholic schools. See Gordon B. Dodds, Oregon: A Bicentennial History, (New York:W.W. Norton & Co., 1977), pages 188-190 and 197-199. Amazingly, the KKK-supported Speaker of the Oregon House of Representatives was named Kaspar K. Kubli.
74 Biennial Report and Opinions of the Attorney General of the State of Oregon 1922-1924, page 555, issued Jan. 21, 1924.
75 Id.
76 General Laws of Oregon 1925, page 298, ch. 198, enacted Feb. 24, 1925.
77 Id. §2.
78 Biennial Report and Opinions of the Attorney-General of the State of Oregon 1924-1926, page 595, issued May 20, 1926.
79 Id. at 596.
80 R.E.L. Steiner, "Eugenics in Oregon," Northwest Medicine, 26:594-597, at 595 (Dec. 1927). This article erroneously refers to the number of sterilizations under the law of 1917. Since that law was found unconstitutional, the number had to be under the law of 1923. Besides, figures show 68 men sterilized through 1921, whereas Steiner cites a total of 62, obviously in four years under the new law.
81 Id. at 597.
82 Biennial Report and Opinions of the Attorney-General of the State of Oregon 1926-1928, page 428, issued Feb. 16, 1928.
83 Id. at 429.
84 General Laws of Oregon 1929, page 397, ch. 348, enacted Mar. 7, 1929.
85 Id. §2.
86 Biennial Report and Opinions of the Attorney-General of the State of Oregon 1928-1930, page 297, issued July 24, 1929.
87 Id. at 299.
88 Abraham Myerson et al., Eugenical Sterilization: A Reorientation of the Problem, (New York:Macmillan, 1936), page 18.
89 General Laws of Oregon 1935 Special Session, page 55, ch. 38, enacted Nov. 15, 1935.
90 Id. at 55-56, §1.
91 Biennial Report and Opinions of the Attorney General of the State of Oregon 1940-1942, page 286, issued May 15, 1941.
92 Id. at 288.
93 "Eugenics Cases," an otherwise unidentified sheet among the records of the Oregon Board of Eugenics at the Oregon State Archives, Salem. "Castration" was the term of choice for removing testicles for about 20 years. Beginning about 1938, the term "orchidectomy," meaning the same thing, was substituted in the records. For women, "sterilization" was the term of choice for 20 years, then "salpingectomy" was substituted around 1938, although they are synonymous.
94 Biennial Report and Opinions of the Attorney General of the State of Oregon 1946-1948, page 42, issued Sep. 4, 1946.
95 Id. at 42-43.
96 Biennial Report and Opinions of the Attorney General of the State of Oregon 1946-1948, page 53, issued Sep. 18, 1946.
97 Id. at 53-54.
98 193 P.2d 999, decided June 2, 1948.
99 Id. at 1000.
100 Oregonian, Feb. 29, 1952, 1:1.
101 Correspondence from Donna Birkey, Administrative Specialist, Office of the Secretary of State, June 13, 1994.
102 242 P.2d 189, decided Apr. 2, 1952.
103 Id. at 190.
104 General Laws of Oregon 1953, page 1177, ch. 641, enacted May 9, 1953.
105 Id. §2.
106 Id. at 1178, § 6.
107 Id. § 7.
108 General Laws of Oregon 1955, page 792, ch. 636, enacted May 19, 1955.
109 Biennial Report and Opinions of the Attorney General of the State of Oregon 1956-1958, page 97, issued Apr. 18, 1957.
110 Id. at 98.
111 Mattachine Review, June 1957, page 18.
112 354 P.2d 815, decided Aug. 10, 1960.
113 Id. at 817.
114 Id. at 817-818.
115 Id. at 818.
116 Id. at 820. Casson's arrest on this charge is noted in the Oregon Journal, Jan. 19, 1956, 10:3. A review of the briefs filed with the Oregon Supreme Court shows that the teenage male involved in this case not only made no objection to the sex, but eagerly sought more. See 1591 Oregon Briefs 421, especially page 36.
117 366 P.2d 323, decided Nov. 22, 1961. This case was handed down only 19 days after it was argued.
118 General Laws of Oregon 1963, page 743, ch. 467, enacted June 6, 1963.
119 Id.
120 Oregonian, Oct. 24, 1963, 1:8 ("Sex Party Films Jail Two Men"); Oct. 25, 1963, 25:1 ("Police Say Arrest of Two Portlanders Exposed Statewide Homosexual Ring Activities"); Oct. 26, 1963, 6:1 ("More Secret Indictments Returned in Vice Probe"); Oct. 26, 1963, 10:2 (editorial-"They Prey on Boys"); Nov. 1, 1963, 30:7; Nov. 17, 1963, 42:1; Dec. 3, 1963, 14:3; Jan. 18, 1964, 11:1; Feb. 9, 1964, 42:7; June 3, 1964, 15:7.
121 401 P.2d 30, decided Apr. 21, 1965.
122 Id. at 31.
123 401 P.2d 296, decided Apr. 30, 1965. A newspaper article on the Nice case, before it reached the appellate court, is in the Oregon Journal, May 6, 1964, 7:1.
124 Nice, at 297.
125 412 P.2d 526, decided Mar. 30, 1966.
126 Id. at 527.
127 Id. Discussion of DeLorme's mother's knowledge of and acquiescence in the relationship is found in the briefs submitted to the Oregon Supreme Court. See 1739 Oregon Briefs 440, pages 13-14, 35, and 53-54. The state complained that Mrs. DeLorme didn't turn her son into the police upon learning of his relationship with Edwards, as if a parent ordinarily would be expected to do this to a child.
128 1739 Oregon Briefs 440, pages 14-15 and 55-56. Sadly, the briefs also tell that Edwards was "not a homosexual," that he had an extensive criminal record for theft offenses, and that he entered into the relationship with DeLorme only for financial gain. DeLorme gave Edwards some $15,000 during the course of their less than 11/2-year relationship. 1739 Oregon Briefs 440, pp. 13, 15, and 16. DeLorme was released from prison in early 1965, a full year before Edwards's case was decided by the Oregon Supreme Court. Edwards was not released until late 1973, almost nine years after DeLorme. DeLorme died in 1972. (Correspondence from Sharon L. Christensen, Custodian of Records, Oregon Department of Corrections, n.d., postmarked Feb. 21, 1997.)
129 460 P.2d 874, decided Nov. 7, 1969.
130 Id. at 875.
131 Id. at 876.
132 Id.
133 Id. at 876-877.
134 467 P.2d 649, decided Apr. 9, 1970.
135 Id. at 650.
136 Id.
137 469 P.2d 645, decided Apr. 16, 1970.
138 476 P.2d 205, decided Nov. 2, 1970.
139 Id. at 207. A newspaper report on the Jellum case is in the Oregon Journal, May 15, 1969, 2:3.
140 Oregon Criminal Code 1972, Subcommittee No. 2, Preliminary and Tentative Drafts, Articles 12-17, (no publication data), dated January 1969, no pagination.
141 Id.
142 Oregon Criminal Code 1972, Minutes of Senate Criminal Law and Procedure Committee; Summary of the New Criminal Code; Specific Crimes Index, (no publication data), hearing held Feb. 24, 1971, page 10.
143 Oregon Criminal Code 1972, Subcommittee No. 2, Minutes of 1st-14th Meetings, October 25, 1968- January 7, 1971, (no publication data), Tenth Meeting, Oct. 22, 1969, pages 5-7.
144 Id. at 6.
145 Id.
146 Id. at 7.
147 Id.
148 Oregon Criminal Code 1972, Minutes of 1st-24th Meetings, August 24, 1967-July 2, 1971, (no publication data), Dec. 13, 1969, page 56.
149 Id.
150 Oregon Criminal Code 1972, Subcommittee No. 2, Preliminary and Tentative Drafts, Articles 12-17, (no publication data), dated February 1970, no pagination. The final draft was Proposed Oregon Criminal Code: Final Draft and Report, July 1970 (Salem:Criminal Law Revision Commission, 1970).
151 General Laws of Oregon 1971, page 1873, ch. 743, enacted July 2, 1971, effective Jan. 1, 1972.
152 Id. See article 13 generally.
153 Id. §118.
154 Id. §119.
155 Edward N. Fadeley, "Sex Crime in the New Code," 51 Ore.L.Rev. 515 (Spring 1972).
156 Id. at 515.
157 Id. at 520.
158 Id. at 522, n.43.
159 The Advocate, Vol. 123 (Oct. 24, 1973), page 20.
160 630 P.2d 892, decided June 29, 1981.
161 Id. at 894.
162 General Laws of Oregon 1983, page 1010, ch. 546, §1, enacted July 29, 1983.
163 630 P.2d 854, decided July 8, 1981.
164 Id. at 856.
165 676 P.2d 892, decided Feb. 8, 1984.
166 Id. at 893.
167 Id. at 894.
168 Id. at 894-895.
169 Id. at 895
170 Id. at 896.
171 681 P.2d 173, decided May 9, 1984.
172 698 P.2d 951, decided Apr. 23, 1985.
173 Moya Woodside, Sterilization in North Carolina: A Sociological and Psychological Study, (Chapel Hill:University of North Carolina Press, 1950), pages 194-195.
174 Biennial Report and Opinions of the Attorney General of the State of Oregon 1958-1960, page 222, issued Aug. 13, 1959.
175 Id. at 224-225.
176 Oregonian, Oregon Journal (Combined Strike Issue), Apr. 11/12, 1960, 2:3.
177 Biennial Report and Opinions of the Attorney General of the State of Oregon 1960-1962, page 139, issued Feb. 2, 1961.
178 Id. at 140.
179 Id. at 141.
180 Oregonian, Mar. 29, 1963, 30:3.
181 General Laws of Oregon 1965, page 524, ch. 264, enacted Apr. 22, 1965.
182 Id. at 528, §12. After a 2002 review of Oregon's sterilization law history, many records of the state dealing with sterilizations mysteriously disappeared from the Oregon State Archives. Oregonian, June 30, 2002, 1:1; July 30, 2002, B1:1; Aug. 11, 2002, 1:1.
183 743 P.2d 157, decided Sep. 29, 1987.
184 754 P.2d 11, decided May 11, 1988. Reconsideration denied July 1, 1988.
185 Id. at 12.
186 766 P.2d 397, decided Dec. 21, 1988.
187 Id. at 399,
188 766 P.2d 399, decided Dec. 21, 1988.
189 Id. at 401.
190 Kane v. Roberts, 799 P.2d 639, decided Oct. 25, 1990.
191 826 P.2d 37, decided Feb. 12, 1992.
192 Id. at 39-43.
193 Id. at 43-44.
194 884 P.2d 1231, decided Nov. 16, 1994. Reconsidered, 891 P.2d 2, decided Feb. 22, 1995.
195 891 P.2d, at 2.
196 Oregonian, Nov. 19, 1995, 5C:2.
197 121 P.3d 613, decided Sep. 29, 1995. The case had been argued in November 1993, the nearly two-year delay in announcing the decision undoubtedly was due in part to Gillette's extraordinarily well-researched scholarly opinion.
198 Id. at 616-633.
199 Id. at 636.
200 Id. at 637. Blackstone often has been cited as an authority in the United States, but not in his native England. See Theodore Schroeder, Constitutional Free Speech Defined and Defended in an Unfinished Argument in a Case of Blasphemy, (New York:Free Speech League, 1919). As long ago as 1804, the English Lord Chancellor complained, "I am always sorry to hear Mr. Justice Blackstone's Commentaries cited as an authority." (Id., at 90).
201 121 P.3d, at 638.
202 121 P.3d 639, decided Sep. 29, 1995. The case was argued the same day as Ciancanelli, taking as long to come down as that case.
203 Id. at 642-644.
204 Id. at 644.
205
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