Last edited: August 11, 2004


The Sensibilities of Our Forefathers

The History of Sodomy Laws in the United States

By George Painter
Copyright, George Painter 1991-2001

Alabama

"We cannot think upon the sordid facts contained in this record without being reminded of the savage horror practiced by the dwellers of ancient Sodom from which this crime was nominally derived."

 

The Post-Revolution Period, 1776-1873

Alabama originally was part of the Mississippi Territory. The Organic Act of 17981 made no reference either to sodomy or common-law crimes.

The first code of laws for the Territory, known as Sargent’s Code, was adopted in 1799. It included a criminal code that was silent both as to sodomy and common-law crimes.2

In 1802, the Mississippi Territory enacted a new code3 that recognized common-law crimes, thus making sodomy a capital offense.

The Mississippi Territory was divided in 1807 and, in that year, the new Alabama Territory enacted its own code.4 This Code continued to recognize common-law crimes,5 but contained another provision stating that "all statutes of England and Great Britain" not contained in the original Mississippi Territory code were repealed.6 It is a mystery as to how laws that never were adopted could be repealed.

The Alabama Supreme Court decided a slander case from 1822, Coburn v. Harwood.7 In strangely convoluted reasoning, the Court concluded that sodomy was not indictable in Alabama under the common law.8

However, the same court ruled in a case from 1830, State v. Cawood,9 that it was "obvious" that Congress intended to make the common law, both its civil and criminal branches, applicable to Alabama and Mississippi when the Mississippi Territory was created in 1798.10 Ignoring or unaware of Coburn, Justice Henry Collier quoted from the 1802 code that "every other felony, misdemeanor or offence whatsoever, not provided for" by the code were to be punished under the common law.11

A new code of 183312 specifically adopted common-law crimes13 without any reference to English statutes, as existed in previous codes.

A new code adopted in 184114 created the first sodomy law in Alabama. Using the common-law definition, the penalty was set at 2-10 years in the penitentiary.15

Period Summary: The early codes of Alabama were confusing as to the status of sodomy. It was not until more than four decades after its founding that a statute outlawing sodomy was enacted. Prior to that, common-law crimes were recognized for a period of time and not recognized for another. The Alabama Supreme Court decided without analysis that, even with the adoption of common-law crimes by the state, that sodomy was not indictable under it.

The Victorian Morality Period, 1873-1948

I. Sodomy

Although there are apparently no reported sodomy cases (with a human) between 1883 and 1910, during these years there were 142 prosecutions in the state for "sodomy" or "crime against nature," leading to 82 convictions (42% acquittal/nollie rate).16

The first reported sodomy case (with a human) was Woods v. State,17 in 1914. This case had to decide if fellatio constituted a violation of the law. The Alabama Court of Appeals decided unanimously that it was. Lifting verbatim from the Illinois Honselman decision (q.v.), the Court decided that fellatio was a crime against nature, without giving any analysis for its conclusion.18

An example of the moralizing attitude toward sodomy was a 1914 speech in Congress by Representative Richmond Hobson (D-AL) during a debate on a liquor prohibition amendment. Hobson, who had been defeated for renomination earlier in the year after opposition from liquor interests, said that liquor

will actually make a brute out of a negro, causing him to commit unnatural crimes.

The effect of liquor was "the same on the white man[.]"19

In 1933, Alabama supplemented the sodomy law with a unique statute20 creating the crime of "conspiracy to commit [a] felony." Any two or more persons "conspiring together" for any one of seven specified crimes, including the "crime against nature," was guilty of a felony, and could receive a penalty of 1-10 years.21

In the next reported sodomy case, Brown v. State,22 from 1945, the Alabama Supreme Court dealt with the issue of cunnilingus and the crime against nature statute. In an opinion notable for its lack of analysis, the Court decided that cunnilingus was just as much a crime against nature as fellatio.23

II. Sterilization

The Alabama legislature passed an astonishing bill in 1935. Trying to expand the existing therapeutic sterilization law, Alabama attempted to go the rest of the country one better with a bill24 to include

those suffering from perversions, constitutional psychopathic personalities or marked departures from normal mentality[.]25

This group included any inmate of a penal institution or insane asylum whose "physical, mental or moral condition" would be improved and who was a

sexual pervert, Sadist, homosexualist, Masochist, Sodomist, or any other grave form of sexual perversion [sic].26

The bill stated that either vasectomy or salpingectomy or "any other sterilization procedure accepted as invariably and universally effective by the medical profession" was to be performed on those to be sterilized.27 This bill would allow castration and ovariotomy, and made no requirement that the "other sterilization procedure" be safe, only that it be "effective." Physicians performing the surgery were immune from criminal and civil liability.28 Because of the broad discretion as to which type of surgery could be performed, it is probable that Gay men and Lesbians would be subjected to the more radical castration/ovariotomy surgery, since vasectomy/salpingectomy would eliminate only the power to reproduce, something clearly at odds with the apparent intent of the bill.

The bill was influenced by the recently enacted sterilization law of Nazi Germany. J.N. Baker, the state’s health officer, testified to the state legislature regarding the bill.

With bated breath, the entire civilized world is watching the bold experiment in mass sterilization recently launched in Germany. It is estimated that some 400,000 of the population will come within the scope of this law, the larger portion of whom fall into that group classed as inborn feeblemindedness [sic]...29

Governor Bibb Graves asked the Alabama Supreme Court to exercise its power to render an opinion as to the constitutionality of this bill.30 In In Re Opinion of the Justices,31 the Alabama Supreme Court unanimously decided that the proposed law would be unconstitutional. The per curiam opinion believed that sterilization was a major procedure and so could be carried out constitutionally only with due process guarantees of notice and hearing, something that the bill did not authorize.32 However, the Court did not

doubt the police power of the state to provide for the sterilization of the subjects enumerated in the bill when the proper method is prescribed for the ascertainment or adjudication of their status, or that, when such status is legally ascertained, sterilization will not amount to such cruel and unjust punishment as is prohibited by the Constitution.33

The legislature reenacted a nearly identical bill, except that the procedural safeguards demanded by the Alabama Supreme Court were included. Graves vetoed that bill as well34 and the bill was tabled by the House without an override vote being taken.35 Later attempts to pass similar bills in 1939 and 1943 were not considered seriously by the legislature. An attempt in 1945, after much scientific evidence appeared in opposition to sterilization and after the Nazi schemes had been uncovered, failed.36

Period Summary: Alabama reported no sodomy cases (with a human) for more than forty years into this period. However, reports from the Attorney General’s office demonstrate that the law was prosecuted actively, with 142 cases noted in a 28-year period. Among them were 82 convictions, none of them being published cases. It must be assumed either that those convicted did not appeal, or the cases reaching the appellate court were left unpublished. Although the common-law term "crime against nature" was used by the state, both fellatio and cunnilingus were determined by courts to be included within that definition. A 1933 supplemental law, unique in the United States, outlawed a "conspiracy" to commit the crime. It is possible that this law was aimed at groups of Gay men or Lesbians, although there is no case law under it to document how it was used. In 1935, the legislature passed the most anti-Gay sterilization law in the nation, one that didn’t become law only because of the constitutional questions the Governor receiving it asked the Alabama Supreme Court to decide. This proposal reflected the prevailing sentiment that homosexual persons were "sick" and needed some kind of medical treatment, in this case, sterilization.

The Kinsey Period, 1948-1986

In 1951, Alabama joined the chorus of states singing the praises of psychopathic offender laws by enacting its own statute37 which labeled as a "criminal sexual psychopathic person" those "suffering from a mental disorder" coupled with "criminal propensities to the commission of sex offenses[.]"38 Anyone convicted of a sex offense could be referred for a psychiatric examination if believed to be a criminal sexual psychopathic person.39 If so found, the individual could be committed to an institution until "fully and permanently" recovered from the psychopathy.40 If recovered and discharged, the prisoner was to be placed on probation "for such reasonable time as the circumstances may justify."41

In the 1957 case of Fuller v. State,42 the Court of Appeals unanimously ruled that the testimony of an accomplice in a sodomy case had to be corroborated.43

In 1961, Alabama revised its psychopathic offender law44 to eliminate the need for a criminal conviction to trigger the operation of the law. One merely had to be "charged with" a sexual offense in order to have proceedings instituted.

The 1966 case of Parris v. State45 was moralizing, even though it was brief and led to victory on the part of the appellant. The Court of Appeals unanimously barred the admission of evidence of similar offenses committed with third persons when they were only to show the

disposition, inclination, propensity, or depravity, and does not serve to single out the appellant.46

This testimony could have no value

except to show his sex depravity and his disposition, inclination, or propensity to commit such sex act.47

The Court, in reversing the conviction, had

no pride in our opinion in this case. We cannot think upon the sordid facts contained in this record without being reminded of the savage horror practiced by the dwellers of ancient Sodom from which this crime was nominally derived.48

The Alabama Supreme Court upheld the constitutionality of the psychopathic offender law in the 1967 case of Hamrick v. State.49

In 1967, Alabama enacted a sex offender registration law50 that required anyone convicted of several crimes, including the crime against nature,51 as well as any similar municipal ordinance,52 to be registered with the Alabama Department of Public Safety.53 The arresting officer was responsible for the registration, and any failure to make such a registration was an unspecified misdemeanor.54

Another law passed the same day55 required the convicted sex offenders to register, thus duplicating efforts. Failure to register could get the offender up to 5 years in prison and/or a $1,000 fine.56

In the 1969 case of LaBryer v. State,57 the Alabama Court of Appeals ruled that a 19-year-old sexual partner was an accomplice whose testimony needed corroboration, despite his being threatened by the other partner if he went to the police.58

In Boyington v. State,59 also from 1969, the Alabama Court of Criminal Appeals unanimously upheld the right of the state to prosecute under an indictment or an information by using a form other than the language of the crime against nature statute.60

The Alabama Supreme Court decided in 1973, in Horn v. State,61 that the sodomy law was constitutional. The Court merely said that the law was "not inconsistent with our constitution, Article I, 6, or the XIV Amendment of the United States Constitution."62 No analysis was given. The Court also decided that proof of penetration could be by circumstantial evidence only.63

Despite the action of the Alabama Supreme Court six years earlier upholding the psychopathic offender law, in 1973, a federal court found it constitutionally lacking in Davy v. Sullivan.64 The reason for the law falling was that it, in effect, imposed two separate sentences for a single criminal act.65

In Smith v. State,66 from 1975, the Alabama Court of Criminal Appeals unanimously upheld the right of the state to prosecute a 16-year-old sodomy defendant as an adult and to give him a sentence of ten years in prison.67

Alabama passed a comprehensive criminal code revision in 1977.68 Common-law crimes were abrogated,69 local governments were forbidden to enact criminal laws similar to state laws,70 and entrapment was declared an absolute defense to criminal prosecution.71 The sodomy law was changed to "sexual misconduct," which outlawed "deviate sexual conduct."72 The definition of "deviate sexual conduct" was

any act of sexual gratification between persons not married to each other, involving the sex organs of one person and the mouth or anus of another.73

Consent was no defense,74 and the penalty was set at up to one year in jail.75 In addition, a "public lewdness" provision was enacted to prohibit "any lewd act in a public place" which the offender "knows is likely to be observed by others who would be affronted or alarmed."76 Thus, simple acts like kissing or hand holding could get a Gay man or Lesbian into trouble.

In 1977, in the case of Williams v. State,77 the Alabama Court of Criminal Appeals affirmed the sodomy conviction of several prisoners. Williams and three others had forced a Gay inmate to perform fellatio on them and then made the novel claim that the victim inmate’s Gayness was a defense for them. The Court unanimously rejected the argument, noting that one’s sexual orientation and consent both were immaterial to prosecution under the law.78

Curiously, despite the reach of Alabama’s sodomy law to private, adult, consensual activity, in a late 1978 police raid on a shopping mall restroom that led to the arrest of 41 men, the head of the Birmingham vice squad said that the police "don’t care what is being done between two men in the privacy of their home or a [G]ay bar where they aren’t bothering anyone[.]" [Emphasis added].79

In Ellwest Stereo Theatres, Inc. v. State ex rel. Parsons et al.,80 from 1979, the Alabama Supreme Court dealt with the issue of sexual activity on the premises of an arcade being coverable by the Red Light Abatement Act. By a vote of 5-4, the Court decided that it was. The evidence presented included the fact that the arcade

has a reputation as a place where homosexuals congregate and engage in lewd conduct...[one incident] involved two male customers who were observed in the act of fellatio within one of the booths in the premises. The door to the booth was opened to public view at the time. In another incident, an undercover vice officer was solicited by a male customer to perform an unnatural sex act. This customer had entered the officer’s booth uninvited and exposed his private parts and began masturbating.81

In dissent, Justice James Faulkner believed that use of the Red Light Abatement Law to shut down theatres was a First Amendment violation82 and, in any event, the arcade in question was small fry for the police to stalk. He noted that the place had unposted rules that prohibited two males from entering booths at the same time (but apparently not two females or a male and a female) and if two males were so discovered, they were asked to leave.83 He noted other places in the city of Birmingham where far more arrests for such activity occurred, and that they had not been shut down.84

In the strange case of Bryan v. State,85 from 1984, the Alabama Court of Criminal Appeals sustained the right of the prosecution to ask voyeuristic questions in a trial. The 17-year-old victim’s mother had, for unclear reasons, informed him that he was to spend the night with Bryan, who then committed anal sodomy on him.86 The mother asked another man "what men can do with other men"87 and this line of questioning was permitted in Bryan’s trial. The Court of Appeals concluded that this was relevant and non-prejudicial.88

Period Summary: Alabama showed no progressivism toward sodomy in the years just after the Kinsey studies and the American Law Institute recommendation. The sodomy law remained unchanged and courts remained restrictive of sexual freedom. It was not until 1977 that the Alabama legislature made a change to the law, reducing its status from a felony to a misdemeanor and exempting married couples from its reach.

The Post-Hardwick Period, 1986-Present

In 1998, Alabama enacted a statute89 that forbade the distribution, possession for distribution, or offer to distribute devices "designed or marketed as useful primarily for the stimulation of the human genital organs[.]"90

This law was challenged and, in 1999, a federal judge found it unconstitutional in Williams et al. v. Pryor.91 Judge C. Lynwood Smith wrote a long opinion that focused on the breadth of the statute against the legislature’s stated interest in protecting children and unwilling adults from viewing this material.92 On appeal,93 a panel of the 11th Circuit reversed, stating that the law was "rationally related to the state’s legitimate government interest in public morality." The Court also returned the case to Smith to consider whether it might violate other constitutional provisions, including whether it would be permitted to interfere "in the private sexual activity of married or unmarried heterosexual persons[.]"94 These last words demonstrate how the Supreme Court’s decision in Hardwick continues to have an impact on courts.

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. However, the Alabama legislature joined with others in the modern era in outlawing "sex toys." Challenged in federal rather than state court, the law withstood a challenge from judges worried about "public morality."


Footnotes

1 1 Stat. 549, enacted Apr. 7, 1798.

2 Sargent’s Code. A Collection of the Original Laws of the Mississippi Territory Enacted 1799-1800 by Governor Winthrop Sargent and the Territorial Judges, (Jackson:Historical Records Survey, 1939). Sargent’s Code was enacted Feb. 28, 1799.

3 There are numerous references to this code in later codes, but no copy of it is known to exist. It was enacted in June 1802.

4 Harry Toulmin, compiler, Digest of the Laws of the State of Alabama, (Catawba AL:Ginn & Curtis, 1823), enacted Feb. 10, 1807.

5 Id. at 214, 45.

6 Id. at 522, 4.

7 (1) Minor 93, decided December 1822.

8 Id. at 95.

9 2 Stew. 360, decided during January Term 1830.

10 Id. at 362.

11 Id.

12 A Digest of the Laws of the State of Alabama: Containing All the Statutes of A Public and General Nature in Force at the Close of the Session of the General Assembly, in January, 1833, (Philadelphia:Alexander Towar, 1833), enacted January 1833.

13 Id. at 107, 35.

14 Acts Passed at the Annual Session of the General Assembly of the State of Alabama [1840-41], page 103 (Penal Code), enacted Jan. 9, 1841.

15 Id. at 144, 7.

16 Biennial Report of the Attorney-General of Alabama to the Governor. In a number of these issues, separate prosecutions for bestiality were listed, showing that perhaps all the 142 cases above are human contacts.

17 64 So. 508, decided Jan. 22, 1914.

18 Id. at 509.

19 Congressional Record, Vol. 52, Part I, page 605 (Dec. 22, 1914).

20 General and Local Acts of Alabama, Ex. Sess. 1933, page 202, Act 188, enacted Apr. 19, 1933.

21 Id.

22 22 So.2d 445, decided June 5, 1945.

23 Id.

24 House Bill 97.

25 Id. 1.

26 Id. 3.

27 Id. 7.

28 Id. 10.

29 Edward J. Larson and Leonard J. Nelson, "Involuntary Sexual Sterilization of Incompetents in Alabama: Past, Present, and Future," 43 Ala.L.Rev. 399, at 417 (1992).

30 Graves’s letter to the Supreme Court is reprinted on page 124 of the following opinion. The bill, since it did not become law, was not printed in the 1935 session laws.

31 162 So. 123, decided June 18, 1935. The syllabus, letter from the Governor, and text of the bill take up pages 123-128, with the Court’s opinion all on page 128.

32 Id. at 128.

33 Id.

34 Journal of the Alabama House of Representatives 1935, pages 2753-2754. The veto was issued Sep. 4, 1935.

35 Id. at 2754.

36 Id. at 424-425. Representative A.C. Lee (D-Monroeville), father of author Harper Lee and the model for the fictitious Atticus Finch in To Kill a Mockingbird, was absent on the vote on the first sterilization bill and voted in favor of the second bill. He also voted in favor of an amendment to ban voluntary sterilization for purposes of contraception and against an amendment to prohibit sterilization of those in whose favor a jury has rendered a verdict.

37 Acts of Alabama Special Sessions 1950; Organizational, Special, Regular Sessions 1951, Vol. II, page 1655, enacted Sep. 12, 1951.

38 Id. 1(a).

39 Id. 3.

40 Id. 5.

41 Id. 8.

42 94 So.2d 788, decided Apr. 23, 1957.

43 Id. at 789-790.

44 Acts of Alabama Organizational, Special, Regular Sessions 1961, page 1461, enacted Sep. 8, 1961.

45 190 So.2d 564, decided Sep. 20, 1966.

46 Id. at 565.

47 Id.

48 Id.

49 199 So.2d 849, decided June 1, 1967. Rehearing denied June 22, 1967. Cert. denied, 389 U.S. 10, decided Oct. 9, 1967.

50 Acts of Alabama Organizational, Special, Regular Sessions 1967, Vol. II, page 1220, Act 506, enacted Sep. 7, 1967.

51 Id. 1.

52 Id. 2.

53 Id.

54 Id. 5.

55 Acts of Alabama Organizational, Special, Regular Sessions 1967, Vol. II, page 1222, Act 507, enacted Sep. 7, 1967.

56 Id. 4.

57 222 So.2d 361, decided Mar. 4, 1969. Rehearing denied Apr. 1, 1969. Cert. denied, 222 So.2d 366, decided May 8, 1969.

58 222 So.2d, at 365-366.

59 227 So.2d 807, decided Oct. 7, 1969. Rehearing denied Nov. 4, 1969.

60 Id. at 808.

61 273 So.2d 249, decided Feb. 8, 1973.

62 Id. at 250.

63 Id. at 251.

64 354 F.Supp. 1320, decided Feb. 16, 1973.

65 Id. at 1327-1328.

66 314 So.2d 925, decided June 17, 1975.

67 Id. at 926.

68 Acts of Alabama 1977, page 812, Act 607, enacted May 16, 1977. Through various delays, it did not become effective until Jan. 1, 1980.

69 Id. at 813, 110.

70 Id. 112.

71 Id. at 828, 650.

72 Id. at 844, 2318.

73 Id. at 842, 2301(b).

74 Id. at 844, 2318 (1)(c).

75 Id. 2318 (1)(d).

76 Id. at 812, 6325.

77 354 So.2d 48, decided Nov. 15, 1977. Rehearing denied Dec. 20, 1977.

78 Id. at 51.

79 The Advocate, Vol. 258 (Jan. 11, 1979), page 16.

80 371 So.2d 1, decided Mar. 23, 1979. Rehearing denied May 4, 1979.

81 Id. at 2.

82 Id. at 3.

83 Id. at 4.

84 Id. at 4 and n.2.

85 453 So.2d 765, decided June 26, 1984.

86 Id. at 766.

87 Id.

88 Id. at 767.

89 Acts of Alabama 1998, page 893, Act 98-467, enacted Apr. 29, 1998, effective July 1, 1998.

90 Id. at 899, 6.

91 41 F.Supp.2d 1257, decided Mar. 29, 1999.

92 Id. at 1287-1290.

93 229 F.3d 1331, decided Oct. 13, 2000. For unstated reasons, the Court of Appeals withdrew its published opinion from the Reporter.

94 www.geocities.com/privacylaws/USA/Alabama/alnews04.htm


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