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 1991-2002

Arkansas

"[T]he sordid testimony...appeared so revolting to one of the two deputies sheriff, who stated they observed it while patrolling the area, that he vomited thrice during the evening[.]"

 

The Post-Revolution Period, 1776-1873

The Arkansas Territory was organized in 18191 and received all the laws of Missouri,2 which in turn had received the Louisiana laws, including a sodomy law with a compulsory sentence of life imprisonment.

Common-law crimes were recognized by a statute of 1837.3

The borrowed law from other jurisdictions remained until after statehood when a new law was passed in 18384 to set the penalty for sodomy at 5-21 years.5

A new code adopted in 18486 changed the penalty for blacks, whether free or slave, to death,7 while leaving the penalty for whites at 5-21 years. Blacks also could get the death sentence for attempting such a crime on a white woman, but not on a white man.8

This discrimination remained until a new law, obviously forged in the furnace of the Civil War, was enacted in 1864.9 The statute raised the penalty for 16 crimes to death, including sodomy and buggery.10 The mode of death was required to be hanging.11

In 1871, the Arkansas legislature authorized a recodification of state law.12 The compilers were prohibited from making any substantive changes.13 Despite that command, a major change was made in the sodomy law. The new code of laws resulting from this recompilation in 187314 restored the penalty for an act of sodomy to 5-21 years, with no discrimination because of race.15

Period Summary: Arkansas followed the pattern of other states in adopting a sodomy statute void of definition. It added a regional flavor to the law by specifying more severe penalties for its violation by blacks, whether they were free or slave. A Civil War-era statute that raised the penalty for sodomy and a number of other consensual acts to death never was codified and, when a new code was established after the War ended, the death penalty provision disappeared mysteriously, even though the legislature had not acted to remove it.

The Victorian Morality Period, 1873-1948

The first reported sodomy case in Arkansas was Smith v. State,16 decided in 1921. This case disposed of a challenge to the indictment stating that the defendant, "disregarding the laws of nature," committed sodomy.17 The Arkansas Supreme Court held this count valid, as well as the sufficiency of the evidence, which it called "revolting in detail," and, therefore, refused to discuss.18

In the next case, Strum v. State,19 from 1925, the Arkansas Supreme Court ruled unanimously that the term "crime against nature" included an act of fellatio, but reversed the conviction because it was based only on circumstantial evidence.20

Although apparently no sodomy cases were reported between 1927 and 1934, 14 sodomy prosecutions were carried out in the state, leading to eight convictions, for a startling 43% rate of acquittal or no bill.21

In 1941, in Woolford v. State,22 the Supreme Court unanimously upheld the sodomy conviction of a man who had petitioned the trial court to send him to a hospital to determine his mental status. The Court noted that "[a] fourteen year old boy was the object of appellant’s lust."23

Period Summary: It was nearly a half-century into this period before Arkansas had a published sodomy case. The Victorian reticence in discussing the facts presented by sodomy cases prevailed in Arkansas. A vagueness challenge was unsuccessful and the Arkansas Supreme Court refused to discuss the evidence that was "revolting in detail."

The Kinsey Period, 1948-1986

In the case of Havens v. State,24 from 1950, the Arkansas Supreme Court unanimously upheld the conviction of the defendant after the allegedly corroborating evidence of photos of "young boys" was found in his wallet, and after a letter containing other unspecified photos, that was written and mailed by the defendant, were entered into evidence.25

Arkansas studied the problem of the psychopathic offender, and a special committee worked on drafting a bill for presentation in 1951.26 After studying and praising the New Jersey law (q.v.), the Committee decided that, because the state hospital was overcrowded and the state’s financial situation was poor, it would not pursue the enactment of a law for Arkansas.27

The Arkansas Supreme Court decided the case of Roach v. State28 in 1953. Very little detail was given other than that Roach was convicted of "contributing to the delinquency of Tom Stahl" and that "the same conduct complained of had occurred in connection with other persons."29 The conviction was upheld.

In 1955, the Arkansas legislature settled a problem when it enacted a new sodomy law30 that lowered the minimum penalty from five years to one year, while retaining the 21-year maximum.31 An emergency clause stated that

there appears to be some reluctance on the part of the juries of this State to convict a person of the crimes of sodomy and buggery if the minimum sentence is five (5) years; that this situation is an obstruction and a thwart to the justice of this State; that this Act lowers the minimum sentence to one (1) year. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force from the date of its approval.32

In the next sodomy case, Mangrum v. State,33 decided in 1957, the Arkansas Supreme Court unanimously upheld the conviction of a man for sexual relations with a minor male. The minor was considered a competent witness because "he believes in God" and "the Bible has been read to him[.]"34

A victory came in 1963 in the case of Ward v. State.35 By a vote of 6-1, the Arkansas Supreme Court overturned a conviction for "fondling a male child." Ward, a telephone repair man, was accused of fondling an 11-year-old boy. The issue was one of credibility, and Justice Paul Ward, writing for the majority, noted that Ward

had a good reputation; that he had been post commander of the American Legion, and was now its service officer; that he belonged to the Masonic Lodge; and, that he had once served as Chapter Dad of the local DeMolay organization.36

After stereotyping Ward as a result of these activities, the Court added that witness testimony admitted into the trial was prejudicial to him. Specifically, that the witness saw Ward

engage in some acts which be [sic] thought were unbecoming; that appellant had one of the smaller boys kinda [sic] armed up, had his arm around him nudging him toward the south door, and he presumed he was loving the boy up a little bit—this didn’t continue very long—the boy’s father was present.37

Allowing such testimony concerning an individual not alleged to be the victim was a "dangerous precedent" because of the possibility of prejudice by the jury against a person’s homosexuality.38 Although the conviction was overturned, the Court refused to believe that admission of acts from four or five years before were too remote to consider. "[O]nce it is established that a mature person has developed the proclivity to indulge in unnatural sex acts, we are not prepared or willing to say it would be erased by the lapse of 4 or 5 years."39 The lone dissenter was Justice Sam Robinson. He said that those

committing crimes through the commission of unnatural sex acts are perhaps the most dangerous of criminals.40

Robinson had definite views about proper and improper touching of someone of the same sex. If

the defendant put his arms around the little boy and "hugged him up" in an improper manner, this would be an unnatural sex act, and according to the rules of evidence recognized as valid by the majority, evidence of such act could be properly introduced. On the other hand, if the placing of his arms around the child was merely a friendly gesture, certainly evidence of such act would in no way be prejudicial to the defendant. It would be just like proving that he shook hands with the little boy.41

In the case of Burford v. State,42 from 1967, the Supreme Court unanimously ruled that sodomy convictions could be obtained by circumstantial evidence only, thereby seemingly undermining the Strum decision.43

In 1968, in the case of Atwell v. State,44 the Arkansas Supreme Court unanimously upheld the sodomy conviction of the defendant. Atwell claimed that "the trial judge made remarks derogatory to the accused" but did not include those in the record of the appeal.45 A sentence of 10 years in prison also was upheld, solely because it was less than the maximum sentence under state law of 21 years. The Court, quoting from an earlier case, said that it was

not at liberty to reduce [the sentence] even though we may think it to be unduly harsh.46

In 1973, in Connor v. State,47 the Supreme Court unanimously upheld the sodomy law against a challenge that religious prejudice in its enactment made the law unconstitutional. The Court said that, as to

the allegation that sodomy should not be regulated because such acts are regarded as sinful by some religious groups, little need be said. If that theory were adopted then many of our criminal statutes would be emasculated.48

A privacy argument also was rejected, because the act occurred in a car along a highway.49

A case that revealed an extreme case of homosexual panic on the part of an arresting deputy sheriff was Carter et al. v. State,50 also from 1973. The Court was sarcastic and hostile to the privacy issue raised by defendant Carter and his male companion, who had been arrested in a car parked under a bridge. The Court declined to set out

the sordid testimony about the act, which appeared so revolting to one of the two deputies sheriff, who stated they observed it while patrolling the area, that he vomited thrice during the evening—the first time as an immediate reaction to his seeing what was taking place in the automobile, and the others while appellants were in custody and being "booked."51

The Court stated that Carter had, "in some mystical manner," raised the privacy issue by mentioning the various U.S. Supreme Court decisions on privacy. The Arkansas Supreme Court refused to go along with sodomy as a privacy right, saying that the matter belonged in the legislature for determination.52 The police power of the state was "very broad and comprehensive and embraces maintenance of good order and quiet of the community, and preservation of the public morals" and the legislature could, "within constitutional limits," outlaw anything that was "hurtful to the comfort, safety and welfare of the people and prescribe regulations to promote the public health, morals and safety."53 The sodomy statute was found by the Court to be just such a legitimate legislative exercise.54 The sentence of eight years in prison for a consensual sexual act was held to be valid, again solely because it was within the 21-year maximum stated in the law.55

The legislature did respond, with the enactment of a comprehensive criminal code revision in 197556 that made Arkansas the first Southern state to repeal its sodomy law.57 Common-law offenses also were abrogated.58 However, a broadly worded loitering law was enacted in the new code.59 It outlawed remaining in

a public place for the purpose of engaging or soliciting another person to engage in prostitution or deviate sexual activity[.]60

The section did not include solicitation for "non-deviate" sexual activity.

In the 1977 case of State v. Black,61 the Arkansas Supreme Court upheld the conviction of a prisoner for sexual indecency after he engaged in consensual sodomy in the "drunk tank" of the local jail, since no privacy rights attached to a public sexual act.62

The sodomy repeal did not last very long. A legislator who had been unaware of the repeal in the new criminal code, spurred on by the hysterical climate fostered by Anita Bryant,63 introduced a bill in 1977 that became law64 and reinstated sodomy as a criminal offense between persons of the same sex only. Any penetration of the mouth, vagina, or anus was sufficient to complete the crime, and the penalty was set at up to one year in jail.65

In a 1980 case, Mills v. State,66 the Arkansas Supreme Court unanimously overturned the rape conviction of a man for fellatio with a 14-year-old male after the man threatened to "kick his butt" if he told anyone about the sex they had. The Court felt that this did not amount to forcible compulsion because the statements were made after the sexual activity occurred, and no evidence of force to accomplish the fellatio was shown.67

Another privacy claim went for naught in the 1983 case of United States v. Lemons,68 decided by a federal court under the Assimilative Crimes Act (the federal law that absorbs all state criminal laws as they relate to activity on federal property in those states). The case concerned two men arrested for consensual fellatio in the restroom at Hot Springs National Park. The arresting ranger, Terry Gross, peered through the partially closed door of a stall to witness the act. Justice Gerald Heaney, writing for a 2-1 majority, rejected the notion of privacy rights by noting that the act occurred in a public restroom. The Court, therefore, would not even consider a privacy argument.69 More importantly, the Court rejected Lemons’ discrimination argument, because any sexual act occurring in a public place was criminal in Arkansas, regardless of the gender of the parties. In dissent, Justice J. Smith Henley rejected the majority’s contention that the equal protection argument could not be addressed under the facts of the case. Henley criticized the "new constitutional ground" reached by the majority that denied

a facial attack by a member of the class against which discrimination is alleged, and...by concluding that because appellant could have been similarly punished under the Arkansas public sexual indecency statute, he suffered no discrimination.70

Henley also attacked the record in the case for showing

no attempt on the government’s part to demonstrate factually to the district court a rational relationship between the proscription of homosexual conduct and a legitimate state interest.71

Judge Henley believed that

mere naked assertions of public distaste or moral condemnation, without reference to evidence that public morality and decency are fostered by the statute, are insufficient to warrant bringing the weight of the criminal justice system to bear on consenting adults who engage in homosexual activity.72

Period Summary: The publication of the first Kinsey report in 1948 had an effect in Arkansas. Jurors were shown to have an aversion to returning guilty verdicts for consensual sodomy because of the five-year minimum penalty state law prescribed. As a result, an emergency law was enacted in 1955 to lower that minimum to one year so that more convictions could be secured. Following the lead of several other states that had repealed their sodomy laws at the behest of the American Law Institute, Arkansas became the first Southern state to legalize consensual sodomy in its 1975 criminal code revision. The freedom did not last long, because, reacting to the Anita Bryant crusade, consensual sodomy was recriminalized in the state, but only for acts between people of the same sex.

The Post-Hardwick Period, 1986-Present

In 1992, Governor Bill Clinton, as a candidate for President, issued a public statement of support for repeal of the Arkansas sodomy law.73

Period Summary: Arkansas seems to be a state with a legislature that is influenced heavily by perceived public opinion. The legislature lowered the penalty for sodomy when juries resisted convicting those charged with consensual activity. It repealed the law during a period of seeming widespread support for such action, then reenacted it upon the anti-Gay crusade of Anita Bryant when public opinion seemed to be retreating from support for Gay rights. It apparently will require another major perceived shift of public opinion to lead to repeal of the Arkansas law.

 


Footnotes

1 3 Stat. 493, enacted Mar. 2, 1819.

2 Id. at 495, 10.

3 Revised Statutes of the State of Arkansas, (Boston:Weeks, Jordan & Co., 1838), page 182, ch. 28, enacted Dec. 9, 1837.

4 Acts of Arkansas 1838, page 121, "An Act modifying the Penal Code, to correspond with the establishment of a Penitentiary," enacted Dec. 17, 1838.

5 Id. at 122, 4.

6 Revised Statues of Arkansas, (Little Rock:E. H. English, 1848).

7 Id. at 331, 9.

8 Id.

9 Acts of Arkansas 1864, page 13, "An Act to change the penalties and punishments of certain crimes as now prescribed by law," enacted Oct. 1, 1864.

10 Id. 1. This statute never was codified, having been passed after the 1858 codification, and having been changed with the 1873 codification. This statute has remained unknown for more than a century. I stumbled across it accidentally while searching for the statute that eliminated the racial discrimination in the law. I certainly did not expect to find the discrimination eliminated in this way! Correspondence from the Arkansas Attorney General’s office (Apr. 3, 1992) revealed that they were unaware of this statute’s existence. The Arkansas History Commission also was unaware of the law and was unable to state with certainty if the death penalty ever had been exacted, saying that no evidence existed that anyone ever had done a study of the subject. (Correspondence from John L. Ferguson, State Historian, Apr. 14, 1992). There also is no information on the death penalty for sodomy in the Arkansas Supreme Court Library. (Correspondence from Library, May 4, 1992).

11 Acts of Arkansas 1864, at 14, 10.

12 Acts of Arkansas 1871, page 44, no. XXIV, enacted Mar. 21, 1871.

13 Id. 1.

14 A Digest of the Statutes of Arkansas Embracing All Laws of a General and Permanent Character in Force at the Close of the Session of the General Assembly of One Thousand Eight Hundred and Seventy-Three, (Little Rock:Little Rock Printing and Publishing Company, 1874). Publication date is Aug. 27, 1873.

15 Id. at 334, 1309.

16 234 S.W. 32, decided Oct. 24, 1921.

17 Id.

18 Id. at 33.

19 272 S.W. 359, decided May 25, 1925.

20 Id. at 360.

21 State of Arkansas, Biennial Report of the Attorney General. Beginning with the 1935-36 report, sodomy was included within the "other felonies" category, thus making it impossible to know how many prosecutions for it were conducted.

22 155 S.W.2d 339, decided Oct. 20, 1941. Rehearing denied Nov. 17, 1941.

23 Id.

24 228 S.W.2d 1003, decided Apr. 17, 1950.

25 Id. at 1005.

26 5 Ark.L.Rev. 165 (1951).

27 Id.

28 262 S.W.2d 647, decided Dec. 7, 1953.

29 Id. at 648.

30 Acts of Arkansas 1955, page 301, Act 128, enacted Mar. 2, 1955.

31 Id.

32 Id. 3.

33 299 S.W.2d 80, decided Feb. 18, 1957. Rehearing denied Mar. 18, 1957.

34 Id. at 81.

35 370 S.W.2d 425, decided Sep. 16, 1963.

36 Id. at 427.

37 Id.

38 Id.

39 Id. at 428.

40 Id. at 429.

41 Id.

42 413 S.W.2d 670, decided Apr. 17, 1967.

43 Id. at 672.

44 427 S.W.2d 1, decided Apr. 29, 1968.

45 Id. at 2.

46 Id.

47 490 S.W.2d 114, decided Jan. 29, 1973. Rehearing denied Mar. 5, 1973.

48 Id. at 115.

49 Id. at 115-116.

50 500 S.W.2d 368, decided Oct. 8, 1973. Rehearing denied Nov. 13, 1973.

51 Id. at 370.

52 Id. at 371.

53 Id. at 372.

54 Id.

55 Id. at 373.

56 Acts of Arkansas 1975, Act 280, enacted Mar. 3, 1975, effective Jan. 1, 1976.

57 Id. See chapter 18 generally for sex offenses.

58 Id. 111.

59 Id. 2914.

60 Id. (5).

61 545 S.W.2d 617, decided Jan. 17, 1977.

62 Id. at 619.

63 The Advocate, Vol. 210, page 7; Vol. 214, page 35. The chief sponsor in the Senate, Milt Earnhard (D-Fort Smith) claimed that the bill was "aimed at weirdos and queers who live in a fairyland world and are trying to wreak [sic] family life." Id. Vol. 214, at 35.

64 Acts of Arkansas 1977, page 2118, Act 828, enacted Mar. 28, 1977, effective immediately.

65 Id.

66 603 S.W.2d 416, decided Sep. 8, 1980. Rehearing denied Sep. 29, 1980.

67 Id. at 417.

68 697 F.2d 832, decided Jan. 17, 1983. Rehearing and rehearing en banc denied Mar. 1, 1983.

69 Id. at 834.

70 Id. at 839.

71 Id. at 841.

72 Id.

73 Washington Blade, May 22, 1992, page 1.


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