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

Alaska

The Post-Revolution Period, 1776-1873

Alaska was purchased by the United States in 1867 and for the next 17 years had no criminal laws whatsoever. Alaska had been lawless for five years prior to the U.S. takeover because the Russian Emperor had rescinded Russian law there.1

Period Summary: Alaska was ethnically quite different from the rest of the country, then being heavily Eskimo with some Russians. There were absolutely no criminal laws in Alaska, making sodomy legal.

 

The Victorian Morality Period, 1873-1948

The lack of criminal law was remedied in a broad-brush fashion when Congress enacted a statute in 1884 giving Alaska all laws of Oregon.2 This included the Oregon sodomy statute that provided a penalty of up to five years in prison.3 Alaska never was under common-law jurisdiction because Oregon was not when Alaska received its laws.4

Practices of the Alaskan Natives caused culture shock for some citizens in Eastern states. Certain unnamed "appalling degradation and vice" among the Natives caused a Senate committee to receive a letter asking for an investigation.5 Congress did enact a sodomy law6 for Alaska in 1899 that was nearly identical to that of the Oregon law it had received fifteen years earlier.

Whether or not Native practices caused another amendment of law is not known, but, in 1915, the Alaska legislature revised its sodomy law7 that reworded the proscriptions:

That if any person shall commit sodomy, or the crime against nature, or shall have unnatural carnal copulation by means of the mouth, or otherwise, either with beast or mankind of either sex, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one year nor more than ten years.8

Thus, the law was expanded to cover "unnatural" carnal copulation by means of the mouth (what constituted "natural" carnal copulation by means of the mouth is unknown) and sodomy committed "otherwise," and the maximum penalty was doubled to 10 years.

Period Summary: Alaska was one of the more changed jurisdictions in the United States during this period. Eskimo culture was shocking to the Victorians dominating society in the Lower 48 and stringent laws against sodomy and oral copulation were enacted. It is unclear if there were prosecutions during this time because there are no published sodomy cases.

 

The Kinsey Period, 1948-1986

The sparse case law in Alaska (five in total) is dominated by prosecution of heterosexual activity (three of the cases). In one of them, prosecuted when Alaska still was a territory, Christy v. United States,9 decided by the Ninth Circuit in 1958, the conviction of a woman for fellating a man in a taxicab was sustained. The cab was followed by law enforcement officials who noticed that the woman’s head "went down in a downward [sic] motion" and that the man’s trousers were open when the officers stopped the cab.10 The privacy issue never was raised by the defendants, nor is it explained why the officers felt compelled to follow the cab and observe the defendants’ behavior.

After statehood, Alaska was under the control of state courts that were more liberal than those of the Lower 48. In 1969, the first reported same-sex sodomy case reached the Alaska Supreme Court. In Harris v. State,11 the Court was confronted with the question of the breadth of the sodomy statute. Joseph Harris had been convicted of a drunken sexual assault on another man at a party, at which other individuals either assisted in the assault or witnessed it.12 He was convicted of "the crime against nature" and appealed on the grounds that the term was unconstitutionally vague and overbroad.13 The Court discussed, with apparent disapproval, earlier case law on the subject of sodomy and the "unwillingness of the courts" to discuss the vagueness issue.14 After reviewing case law from other courts confronted with vagueness challenges,15 the two earlier reported Alaskan cases,16 the works of Freud and Kinsey,17 and the Wolfenden Commission report in England,18 the Court concluded that the term "crime against nature" was unconstitutionally vague and overbroad, whereas "sodomy" passed constitutional muster.19 As a result, Harris’s conviction was affirmed, but the case was remanded for an amended judgement of guilty of sodomy, rather than the crime against nature.20

Partially as a result of this case, the Alaska legislature passed a statute21 in 1971 at the urging of the Revisor of Statutes as corrective amendments to state law. One of the changed sections was the sodomy law, which was reworded to read:

A person who commits sodomy, upon conviction, is punishable by imprisonment for not less than one year nor more than 10 years.22

This statute deleted both the voided "crime against nature" language and the explicit language dealing with oral sex, an action that would come back to haunt the legislature.

Meanwhile, in 1972, Alaska voters adopted an amendment to the state constitution23 that granted a broad right of privacy to all Alaskans and commanded the legislature to implement the section.24

Just a year after the constitutional change, the state’s highest court was confronted with a case that led to a partial decriminalization of sodomy, Spencer v. State.25 Decided in 1973, the case was a unanimous ruling that the 1971 statute legalized oral sex. The Court explicitly rejected the argument that the new law merely eliminated surplusage and concluded that the legislature had acted intentionally in legalizing oral sex.26

In a new criminal code adopted in 1978,27 the legislature accepted the hints of the Supreme Court and the command of the voters in adopting the broad privacy amendment and repealed consenting adult laws28 with the age of consent set at 16.29 It also created a statutory abrogation of common-law crimes.30

Period Summary: Once statehood was gained, Alaska reverted to its libertarian heritage. The sodomy law was weakened greatly by court decisions, the state constitution was amended to grant a broad and specific right of privacy to citizens, and the criminal code was revised to eliminate penalties for consensual sexual activity.

 

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. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution.


Footnotes

1 Thomas H. Carter, ed., The Laws of Alaska, (Chicago:Callaghan & Co., 1907), page xvii.

2 23 Stat. 24, 7, enacted May 17, 1884.

3 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), ch. I, page 206, at 235, 12.

4 State vs. Vowels, 4 Ore. 325, decided during January Term 1873.

5 The Philanthropist, Vol. 5, No. 5 (April 1890), page 5. Also see the Washington Blade, Feb. 8, 1985, page 11, for the acquittal of an Eskimo on a sex charge for fondling the genitals of a boy. He was acquitted because of cultural differences—this is common behavior for Eskimos.

6 30 Stat. 1253, at 1272, 130, enacted Mar. 3, 1899.

7 Laws of Alaska 1915, page 50, ch. 22, enacted Apr. 26, 1915.

8 Id. at 50-51.

9 261 F.2d 357, decided Nov. 18, 1958. Rehearing denied Jan. 28, 1959. Cert. denied, 360 U.S. 919, decided June 22, 1959.

10 261 F.2d, at 360.

11 457 P.2d 638, decided Aug. 8, 1969.

12 Id. at 640.

13 Id.

14 Id. at 642.

15 Id. at 643.

16 Id. at 644.

17 Id. at 645.

18 Id. at 646-647.

19 Id. at 649.

20 Id.

21 Laws of Alaska 1971, ch. 32, enacted Apr. 27, 1971.

22 Id. at 3, 10.

23 Alaska Constitution, Article I, 22, adopted Aug. 22, 1972.

24 Id. The issue won a stunning 86% of the vote statewide, carrying every election district, with a range of 73% for a low to 93% for a high. The issue ran most strongly in the Anchorage area. Abstract of votes provided by the Alaska Lieutenant Governor’s Office.

25 514 P.2d 14, decided Sep. 14, 1973.

26 Id. at 16.

27 Laws of Alaska 1978, ch. 166, enacted June 14, 1978, effective Jan. 1, 1980.

28 See 11.41.400 et seq.

29 Id.

30 Id. 11.81.226.


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