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

California

"[T]hey accepted a ride in the middle of the night, in quest of two mythical girls, with an entire stranger, and became parties to one of the most repulsive degradations known to humanity."

 

The Post-Revolution Period, 1776-1873

The common law was adopted by a statute of 1850.¹

A criminal code enacted just three days later in 1850² included a sodomy provision using the common-law definition and setting the penalty at five years-life.³ California was a little too eager to enact this code. The style of the law said, "The People of the State of California, represented in Senate and Assembly, do enact as follows:" [emphasis added]. When this code was adopted in April 1850, there was a territory named California, but no state. It was not admitted to the Union until September 1850. Although this may seem trivial, in actuality this probably invalidated the criminal code and made all prosecutions, including those for sodomy, void.

In 1855, a law was enacted⁴ expanding the sodomy law to cover an "assault with an intent to commit" sodomy, with a penalty of 1-14 years.

In 1860, the California Supreme Court decided Norris v. Harris,⁵ and discussed the spread of common law throughout the United States. In an opinion by Chief Justice Stephen Field, later to be named to the U.S. Supreme Court, it was decided that the common law existed in California and, in fact, everywhere in the United States except for three named states (Florida, Louisiana, and Texas) that were neither directly nor indirectly of English legal origin.⁶

The legality of the 1850 code was cleared up with a new one in 1872.⁷ The sodomy law was not changed, but its reenactment in a legal manner brought the penalty of the law into force. Common-law offenses were abrogated.⁸

Period Summary: Sodomy was a crime, at least on paper, almost from the time California was settled after the gold rush. However, due to the wording of the first criminal code and the U.S. Constitution’s ban on ex post facto criminal laws, it is quite possible that the criminal code was unenforceable until the new one was enacted in 1872. California showed an early hostility to the common law and did away with it during this period.

The Victorian Morality Period, 1873-1948

I. Sodomy

The first reported case under the law was People v. Williams,⁹ from 1881. The California Supreme Court unanimously found an information charging an assault to commit sodomy using only the common-law phraseology to be sufficient. "Every person of ordinary intelligence understands what the crime against nature with a human being is."¹⁰

Another case, People v. Miller,¹¹ from 1885, gives little detail. The California Supreme Court unanimously decided that a 13-year-old boy acting under "threats and coercion" did not have to have his testimony corroborated.¹²

The first victory in a California sodomy case came in People v. Moore,¹³ from 1894. William Moore had been tried without the assistance of an attorney and received a sentence of 41 years in prison. The California Supreme Court unanimously overturned his conviction, not on either of these grounds, but because he had not been informed of his right to challenge potential jurors. Calling sodomy "coarse and detestable," the Court nevertheless noted that the difficulty of disproving such an accusation and the severity of the sentence that Moore received required it to guard his rights carefully.¹⁴

In 1895, in People v. Hickey,¹⁵ the California Supreme Court again unanimously struck down a sodomy conviction, this time because the trial court failed to instruct the jury that an assault to commit sodomy could be found to be only a simple assault. The Court also noted that the issue of consent by the alleged victim was an "open question" that also should have been submitted to the jury for consideration.¹⁶

A major issue was disposed of by the California Supreme Court in a brief opinion in 1897 in People v. Boyle.¹⁷ A single paragraph per curiam decided that fellatio did not constitute the "crime against nature" in California, based solely on the Texas precedent (q.v.).¹⁸

The earliest reported case in the United States involving two prisoners was the 1897 case of People v. Wilson.¹⁹ Defendant James Wilson had solicited his cell mate, George Ryan, for sodomy on more than one occasion and Ryan consistently refused. Wilson then allegedly attempted force. The jury found Wilson guilty, but recommended "extreme mercy."²⁰ The extreme mercy shown by the trial judge was five years in prison. Supreme Court Commissioner John Haynes wrote a 173-word sentence explaining that mere solicitation was not a violation of the assault law, but that solicitation "together with the preparations made by the defendant for the ultimate act" did constitute an assault.²¹

In the two-year period from July 1, 1900 to June 30, 1902, there were 20 prosecutions in California for the "crime against nature," leading to 16 convictions. Amazingly, a disproportionate 10 of the 20 were in San Francisco, with six more in neighboring counties. There also were three convictions for assault to commit sodomy.²² During this period, only two of the 16 convicted appealed their convictions.

In 1902, a Department of the California Supreme Court unanimously sustained one of the convictions in People v. Day.²³ Because Day included no bill of exceptions in his appeal, the conviction was sustained only on the limited information provided the Court.

The other sodomy case appealed during this time was People v. Swist,²⁴ also from 1902. This was a case in which religion was invoked as a point of appeal. A witness had been sworn without the words "so help you God" at the end of the oath, and the California Supreme Court found no reason to believe that the shortened oath was invalid.²⁵ The Court also found the testimony of the victim that he was assaulted, that was contradicted by a physician who found no such evidence, nevertheless to be believable.²⁶

A curious victory occurred in the 1905 case of People v. Carroll.²⁷ The California Court of Appeals overturned a sodomy conviction because the information charged John Carroll with the crime against nature by "having carnal knowledge of the body" of one Frank Derby.²⁸ The Court concluded that, if

the Frank Derby named was a female, then the defendant is merely charged with having sexual intercourse with a female, which is not of itself a crime. There is no allegation that Frank Derby, the person of whose body the defendant is alleged to have had carnal knowledge, was a male person. We cannot take judicial knowledge of the sex of a party upon whom the crime is alleged to have been committed from the name alone. The name "Frank" is generally given to males, but it is sometimes given to females. The information might then be true, and yet the defendant be innocent of a crime.²⁹

In 1906, the Court of Appeals upheld an attempted sodomy conviction in the case of People v. Erwin,³⁰ even though the defendant was absent when the court set a trial date for five weeks later. The Court of Appeals believed that Erwin had "ample time" to prepare a defense.³¹

In 1910, in People v. Harrison,³² an appellate court unanimously upheld the conviction of a man for "lewd and lascivious behavior" with a "boy." The boy testified that he had a long-standing sexual relationship with Harrison and each alternated between the "active" and "passive" positions in sodomy.

California enacted a law in 1911³³ that absolutely forbade the conviction of any person for a crime based upon the uncorroborated testimony of an accomplice.³⁴

Between 1911 and 1938, there were some 13 unreported sodomy cases whose details as to whether they were bestiality, same-sex sodomy, or opposite-sex sodomy can not be ascertained. In each case, the conviction was sustained.³⁵

A racially charged sodomy case was decided by the California Supreme Court in 1912 in People v. Dong Pok Yip.³⁶ Referring to the defendant as a "Chinaman" nine times in the opinion, the Court unanimously sustained his conviction, even though the alleged "victim" testified that no act of sodomy occurred.³⁷

An appellate court decided a sodomy case in 1914 in the same strange way as in Carroll. In People v. Allison,³⁸ an indictment for sodomy was held void because it did not specify the gender of the party with whom the sodomy was alleged to have occurred. The other party’s name was Frank B. Love, and the court held that an indictment alleging "carnal knowledge" must necessarily refer to opposite-sex activity only. Since the indictment read "carnal knowledge with Frank B. Love," the court stated that Frank B. Love must be a woman, such activity was not criminal under state law, and overturned Allison’s conviction.

In 1915, in People v. Camp,³⁹ the Court of Appeals upheld a conviction for lewd and lascivious conduct with a boy "under fourteen," although his age is not given. The remarkable portion of the opinion concerns an objection raised by Camp to a question

addressed to an expert as to what effect such acts charged against defendant would have in "arousing the feelings or gratifying the lust or passions or sexual desires of the man in the case." This seems to be a matter of expert testimony. A peculiar knowledge of the human system is requisite to answer the question intelligently. It would be a reflection upon the average and normal man to hold that such expert assistance is not needed. The normal man, it may be assumed, has no such knowledge nor experience as would qualify him to determine, without the aid of an expert, the neurotic or orgastic effect of such indecent acts.⁴⁰

Nevertheless, the court held that there was no other possible conclusion than that "such acts would have such effect upon the lustful desires of one bestial enough to be guilty of such conduct."⁴¹

The accomplice law was amended in 1915.⁴² A section was added defining an accomplice as one liable for prosecution for the offense charged against the defendant,⁴³ thus removing the possibility of young partners in sodomy cases from being considered accomplices.

In 1915, some 18 years after the California Supreme Court pointed out that fellatio did not constitute a violation of the state’s sodomy law, the legislature acted. Apparently due to a fall 1914 scandal in the Los Angeles area in which some 500 Gay men were arrested as "social vagrants,"⁴⁴ a unique statute⁴⁵ was passed that outlawed "acts technically known as fellatio and cunnilingus[.]"⁴⁶ The penalty was set at up to 15 years in prison,⁴⁷ which was a lesser penalty than the five years-life for sodomy. This was the only such law ever passed in the United States actually to use the words "fellatio" and "cunnilingus" and that language would come back to haunt the legislature.

In the 1915 case of People v. Ah Leo,⁴⁸ an appellate court unanimously upheld the conviction of a man who received "a long term of imprisonment in the penitentiary" for sodomy. The court refused to overturn the jury’s conviction, despite Ah Leo’s claim that he didn’t even know the accuser, let alone ever having had sexual relations with him.

Later in 1915, the California Supreme Court dealt with the interesting case of People v. Robbins.⁴⁹ Samuel Robbins had been convicted of consensual sodomy with a 16-year-old male in the bathroom of the young man’s apartment. The young man’s parents and landlady became suspicious seeing them play tennis together before going into the bathroom, and their suspicions increased from hearing water running in the sink for a lengthy period of time. The landlady saw them entering the bathroom and heard the bolt locked. She then went into her room where she could look out onto the bathroom window. She saw the window opened and the shade drawn, and then went to the bathroom to listen and "accidentally" hit her hand against the door which led to Robbins and the young man leaving the bathroom. She added that, had there been a keyhole in the door, "I would have peeked through it like any other woman."⁵⁰ Nothing in the opinion explains why Robbins, who had known the young man for five years, was considered worthy of suspicion. The 4-1 majority of the court found the case to have been based entirely on circumstantial evidence and overturned the conviction.⁵¹

The Court of Appeals affirmed a conviction in People v. Love⁵² in 1916. Love had been convicted of a "lewd and lascivious act" with a consenting male teenager simply by having been found on a bed "in contact" with him.⁵³

In 1916, an appellate court, deciding People v. Carrell,⁵⁴ reached another interesting conclusion. Carrell’s conviction for fellatio was overturned because the word "fellatio" was not English and not of common usage among the public. Carrell himself did not know the meaning of the word.⁵⁵ What was overlooked by the court was that Carrell had been charged with committing fellatio on a woman.⁵⁶ The physical impossibility of the act was never mentioned by the court in its haste to decry the usage of uncommon terms in criminal laws.

In 1918, in People v. Jacobs,⁵⁷ the Court of Appeals upheld a sodomy conviction in one of the shortest and least detailed opinions in the state’s history. It did say that there were "two unimpeached witnesses to the overt act,"⁵⁸ but didn’t specify the act.

The case of People v. Tobin⁵⁹ was decided by the Court of Appeals in 1918. Tobin got himself a soldier, an act which apparently led to some sort of Army investigation, because "officers" testified against Tobin in his trial. He claimed intoxication as a defense, but that was rejected by the court.⁶⁰

The California Supreme Court first was presented with the issue of the constitutionality of the oral copulation law in the 1918 case of In Re Application of Soady.⁶¹ William Soady sought a writ of habeas corpus because he had been incarcerated for violating the law outlawing "fellatio" and "cunnilingus." As in Carrell, Soady claimed that the law violated the California Constitution’s requirement that laws be written in English. By a vote of 4-2, the Court ruled against Soady’s claim. Justice Wilbur, writing for the majority, noted that there was

no difficulty in ascertaining the meaning of the word "fellatio" without access to any foreign vocabulary. The title of the legislative act in question indicates that the prohibited act is an expression of "sex perversions." The use of the phrase "fellatio" in connection with the title clearly points to the term as a medical term, and we find the word defined, as the legislators no doubt did, in a standard medical dictionary of the English language[.]⁶²

The word "may be English as well as foreign." The Court could not assume that "fellatio" had not become commonly discussed "among the medical profession."⁶³ The reason the word was not found in non-medical dictionaries was

certainly not conclusive, particularly in view of the character of the word and the act thereby described.⁶⁴

Thus, the general public had to have a good knowledge of medical terminology in order to know what the legislature was talking about, and this satisfied due process of law. Wilbur added that "fellatio" was

clearly defined in the above mentioned standard medical dictionaries. We have, therefore, purposely refrained from describing the act intended to be prohibited.⁶⁵

The much longer dissent was written by Justice Henry Melvin. He said that the fact that a definition of "fellatio" was found in medical dictionaries was insufficient. Skewering the majority, Melvin criticized their decision that

because it appears in two highly technical lexicons, neither of which is available to the average person (one of them having been published since the enactment of the statute), and because when the legislature used "fellatio" the presumption became "well nigh conclusive that the word is English."⁶⁶

Growing more sarcastic with each paragraph, Melvin said that to those

convicted without knowing the contents of the statutes we could truly say, justified in so declaring by the opinion of the majority of this court: "You are not entitled to understandable laws. It is enough if ‘judges skilled in the law’ may ascertain the legislative intent. The real question is ‘Can the legislative intent be ascertained and enforced?’ because the Supreme Court has said so!" And the unlettered defendants—those "lesser breeds without the law"—may go to the cells dismally chanting in plain English (for they know not Choctaw nor Latin nor Pekinese) "‘No other’ means ‘any other’."⁶⁷

Melvin inserted a long reference from the writings of Martial, who frequently used the derivations of "fellatio" and "cunnilingus" in his writings. Melvin noted that the definitions of the acts used by Martial seemed to vary.⁶⁸ He then criticized

the chaste majority [who] refrains from any real definition of the offense. We are remanded for the meaning of "fellatio" to the two "Standard Medical Dictionaries" (one of an edition later than the date of the enactment of the statute). Thus have two dictionaries become the real repositories of a statute of California by which imprisonment in the penitentiary may be decreed upon offenders.⁶⁹

The issue of Latin terms returned to the California Supreme Court just four months later in the 1919 case of Ex Parte Lockett.⁷⁰ For unclear reasons, the Court reversed itself. Justice Melvin, now speaking for a 5-1 majority instead of in dissent, found the law against fellatio and cunnilingus unconstitutional because, by using Latin phraseology, the public was unaware of what acts were criminalized by the law.⁷¹ He went a step farther by claiming that the word "fellatio" also had no "definite, technical meaning either in law or in psychopathology."⁷² Melvin claimed that there were contradictory definitions of the word even in medical dictionaries.⁷³ The lone dissenter was Justice Wilbur, who had penned the Soady decision and lost the support of the three justices joining him in that case, all of whom went to Melvin’s interpretation.

In the 1919 case of People v. Funtas,⁷⁴ a sodomy conviction was sustained after the mother of a 14-year-old boy became suspicious of her son’s bedroom visits with a man and had holes drilled in the bedroom walls (it apparently was a boarding house), where she stationed herself to witness sexual activity between them.

In a third 1919 case, People v. Kangiesser,⁷⁵ a sodomy conviction was upheld over the contention of the defendant that the young man with whom he allegedly had been sexual had an ongoing sexual relationship with his own brother, and that this should have been used to impeach his credibility as a prosecution witness.⁷⁶

In 1920, in People v. Wyett,⁷⁷ a sodomy conviction was overturned by an appellate court. Evidence of Wyett’s sexual activity with others than the one with whom he was on trial had been admitted, and the court found that to be prejudicial error.⁷⁸

The sodomy law was amended in 1921⁷⁹ to lower the penalty from five years-life to 1-10 years.⁸⁰

Another statute of 1921⁸¹ attempted to create a constitutional law against oral sex. The new law outlawed "the act of copulating the mouth of one person with the sexual organ of another" and retained the penalty of up to 15 years in prison,⁸² thus making oral sex a more serious crime than anal sex.

A third law enacted in 1921⁸³ guaranteed that no erotic activity would go unpunished. The statute banned "any act...which openly outrages public decency[.]"⁸⁴ This law gave police free rein to arrest people for practically anything.

In 1921, in the case of People v. Hulbart,⁸⁵ a California appellate court upheld the conviction of a man for "a lewd and lascivious act" with a 12-year-old boy, saying that the testimony of the boy need not be corroborated. This was so only because of the change in the accomplice law in 1915 that said one was an accomplice only if he or she was liable to prosecution for the act. Because of his age, the court held that he could not be prosecuted and was not, therefore, an accomplice.⁸⁶

In 1923, in People v. Singh,⁸⁷ an appellate court upheld the right of the trial judge to give an instruction to the jury that sodomy was complete upon "any sexual penetration, however slight[.]"⁸⁸

A puzzling case was People v. Fellows,⁸⁹ decided by an appellate court in 1923. George Fellows had been convicted of oral copulation while on a train, and the conviction was upheld. Although Fellows was traveling with a "woman companion," a witness found him in an unspecified area of the train "going on his knees."⁹⁰ The partner before whom he knelt was not specified.

An appellate court decided in People v. Green,⁹¹ in 1924, that an information charging an individual with an assault to commit the crime against nature was sufficient. "[E]very person of ordinary intelligence understands what that crime is."⁹²

Another 1924 appellate sodomy case, People v. Miller,⁹³ showed both fear and ignorance of sodomy on the part of the judges. "The testimony in the case is so utterly revolting that we shall not attempt to state it in detail."⁹⁴ Judge J.A. Plummer added that an assault necessarily was a part of every act of sodomy.⁹⁵

The curious case of People v. Knowles,⁹⁶ from 1925, involved a public school teacher tried for oral copulation. He invited two 16-year-old students to his apartment, where he showed them "indecent and suggestive pictures" as well as condoms, and suggested that they engage in sodomy with each other.⁹⁷ One refused and went to another room "where he played a piano" while the other student and teacher "undressed and remained together for a period of half an hour." Knowles argued that admitting the pictures into evidence was prejudicial, but Judge John Nourse of the Court of Appeals felt that they were "so closely connected with the preparations for the commission of the crime that they became a part of the offense itself[.]"⁹⁸

In 1926, an appellate court, deciding People v. Jensen,⁹⁹ upheld the admission as evidence of "certain obscene pictures or photographs" found in Jensen’s vest and which admittedly had no relationship to the sodomy charge he faced.¹⁰⁰

A conviction for both sodomy and oral copulation was sustained by an appellate court in 1926 in People v. Casey.¹⁰¹ John Casey was convicted after he picked up "two young men," ages 17 and 19, who were leaving the Odd Fellows’ Hall in Los Angeles. Casey promised he would drive them "to meet some girls," but went to a deserted area and groped the leg of one. One teen supposedly protested, and Casey allegedly took a gun out of his pocket and showed it to both, then replaced the gun in the pocket without ever touching it again. He then fellated one of the passengers, then the other, then took one to the back seat and engaged in anal sex with him.¹⁰² The court, speaking through Judge Gavin Craig, noted that the two passengers put up no resistance and that the second passenger even gladly exchanged places with the first in order to be fellated after Casey finished with the first one. One refused to go into the back seat for anal sex, but the other went without any hesitation. The gun never was used and the teens never made an effort to escape or to gang up on Casey. The court thus found that the two were accomplices because they consented to the act.¹⁰³ There was no evidence that either was

unable to defend himself against the disgraceful advances of a proven degenerate...[T]hey accepted a ride in the middle of the night, in quest of two mythical girls, with an entire stranger, and became parties to one of the most repulsive degradations known to humanity.¹⁰⁴

The court found that there was ample corroborative evidence, including that another witness saw Casey with the two teens, even though not in any sexual activity.

Also in 1926, an appellate court upheld the conviction in People v. Lyons.¹⁰⁵ A continuance of five days after the jury had been impaneled after the prosecuting witness inexplicably left town was found not to be prejudicial to the defendant¹⁰⁶ and major discrepancies as to when the alleged offense occurred also were considered insignificant.¹⁰⁷

In 1927, in People v. Spaulding,¹⁰⁸ an appellate court upheld the conviction of a man for oral copulation. It appears that F.J. Spaulding was well known in the Tulare area as a "moral pervert," because he boldly solicited a number of men for fellatio. He told one man who came to his grocery and gas station, "The next time you come through stop in and I will be glad to have you."¹⁰⁹ Curiously, the man and another returned to Spaulding’s business and one went into the lavatory, being followed by Spaulding. The man who went into the lavatory, Pelfley, allowed Spaulding to fellate him, and was, by predetermination, interrupted by the other man, Lant, who immediately had Spaulding arrested.¹¹⁰ Spaulding did not go easily. He

violently resisted the witnesses...he fought, bit, and kicked them, and attempted to escape...the witnesses struck him with an automatic pistol, tripped him, and one of the men held him down while the other held off several persons who collected in response to loud cries of the defendant for "Bryan," who later proved to be his son[.]¹¹¹

Pelfley testified that his "participation in the transaction" (being fellated) was "for the sole purpose of detecting the defendant in the commission of a criminal act which they had reason to believe he would commit."¹¹² Thus, a man received free sex from a Gay man, had him prosecuted for the act, and was not prosecuted himself, even though he was just as "guilty."

The constitutionality of the oral copulation law was challenged in People v. Parsons,¹¹³ in 1927. The Court of Appeals discussed that issue only briefly when it said that it could not find anything "uncertain or indefinite" about the revised law.¹¹⁴

The Court of Appeals decided in 1927, in People v. Khan,¹¹⁵ that corroborative evidence can be circumstantial in nature.

In 1927, in People v. Olds,¹¹⁶ a conviction for oral copulation was upheld. There is no detail as to the act other than that there were "three eye-witnesses" to the act.¹¹⁷

A truly shocking and melodramatic case occurred in 1927 in People v. Parisi,¹¹⁸ in which the Court of Appeals upheld a sodomy conviction. Antone Parisi was engaged in a long-term relationship with an 18-year-old male. Parisi lived in a San Francisco apartment that was atop a building and was "constructed mostly of windows and glass doors[.]" (?) The young man’s mother "became suspicious of her son’s appearance and conduct" and hired a private investigator named Otts to find out what was going on. Otts discovered their relationship and reported it to the mother. She refused to believe it, knowing that Parisi was a long-time friend of the family. When Otts was unable to convince the mother that her son was in a homosexual relationship, he decided to entrap Parisi.¹¹⁹ On the pretext of wanting to buy Parisi’s truck, Otts smuggled an associate into Parisi’s apartment, who hid under the bed. When Parisi and his lover engaged in lovemaking, the other investigator crawled out from under the bed and shouted for Otts, who was outside and who broke through Parisi’s glass door and brought the young man’s mother and sister in with him. (How Otts persuaded them to wait outside Parisi’s apartment during the entrapment when they refused to believe that Parisi was engaged in a relationship with the young man is not explained.) Seeing her son "partly disrobed," the mother immediately changed her mind concerning what Otts had told her and had the police called. Parisi urged her not to, arguing that it would only "bring disgrace" to her son. The mother "emphatically rejected" Parisi’s plea, as well as his offer of money not to call the police.¹²⁰

In People v. Gibson,¹²¹ from 1928, the Court of Appeals upheld the conviction of a man for oral copulation. Gibson filed the appeal, but then failed to appear for the appellate hearing. In a 24-word opinion, the court found that his trial was free from error.

A conflict between the jurisdictions of the United States and California resulted in a partial acquittal of a man convicted of sodomy. In 1928, in People v. Mouse,¹²² the California Supreme Court overturned two of three sodomy convictions of a man for acts committed upon the grounds of the National Home for Disabled Volunteer Soldiers, a federal institution. The Court found that the federal government had jurisdiction, but, since it didn’t prosecute, California couldn’t either.¹²³

In 1928, in People v. Singh,¹²⁴ the Court of Appeals permitted circumstantial evidence to be used to prove sexual penetration. In this case, an "alleged pederastic performance" occurred with a "boy" who was "approaching, if not just past, his majority," in other words, an adult.¹²⁵ Police came upon a car parked in a suspicious location and looked in with flashlights, seeing the two in a compromising situation. The "boy" resisted the police trying to break up the sexual act and police had a physician make physical examinations of the two, the results of which led to their conviction.¹²⁶

A case of consensual oral copulation was the subject of the 1930 case of People v. Smink et al.¹²⁷ Three men in Palm Springs were arrested for consensual fellatio with each other, although how the acts came to the attention of authorities is not specified in the opinion. All three waived their right to an attorney and pleaded guilty. They were sentenced to prison. Three days later, Smink and one of the others came into court with an attorney, demanding that their guilty pleas be withdrawn and a trial by jury be held.¹²⁸ One of Smink’s co-defendants claimed that he was misled by police into admitting their sexual activity because the deputy district attorney

was desirous of learning certain facts and conditions then existent in Palm Springs and that after he, McDonald, had made a declaration and statement, that is all there would be to the matter.¹²⁹

The Court of Appeals found no reason to permit the withdrawal of the guilty pleas and affirmed the convictions.

The curious case of People v. Conklin¹³⁰ was decided by the Court of Appeals in 1932. The facts are amazing, and not very believable, reading, in fact, like a Keystone Kops script. Several adults, including the parents of the boy alleged to be a victim of an act of fellatio performed on him, had been drinking a considerable amount of liquor (during Prohibition). When they ran out, the parents sent their son to a locked chicken coop to get more and defendant Conklin followed him there, where the act of fellatio allegedly occurred. The mother of the boy had been talking to the wife of the defendant when she "all of a sudden" remembered that her son had been gone "an awfully long time." She then rushed out to the coop and saw Conklin "stooped" in front of her son, but both were clothed. She asked him what was going on, and Conklin claimed that nothing was. The boy’s mother then demanded that Conklin come with her to the house, at which point a fight broke out. Conklin allegedly broke the mother’s nose and then she grabbed him by the hair and somehow—it never was explained how—the mother got him into the house. While there, the mother explained to Conklin’s wife that she had seen her son on the ground, but did not claim to have seen any sexual activity and demanded that the police be called. All the while she continued to have hold of Conklin’s hair. Conklin’s wife then grabbed hold of the boy’s mother and the father of the boy, who had gone to bed, came back down and got into a fight with Conklin. The mother testified in the trial that she never had seen any sexual activity, had not questioned her son about what happened, and never examined his clothing for evidence of sexual activity.¹³¹ Despite all of this farcical evidence, the Court of Appeals unanimously affirmed the conviction of Wendell Conklin.¹³²

The Court of Appeals found "frivolous" the claim that a judge trying a sodomy case without a jury had to view the scene of the alleged crime in People v. Wallen,¹³³ in 1932.

In 1934, in People v. Hudson,¹³⁴ an oral copulation conviction was overturned by an appellate court. The trial judge dismissed one of three counts against Hudson before the jury could consider it. As to the other two counts, there was evidence of

tampering with the witnesses, that is, at least a coaching of the witnesses at a time when they were awaiting their opportunity to be called[.]¹³⁵

In 1934, in People v. Nichols,¹³⁶ purely consensual sexual activity with a teenager who kept coming back for more was the subject of prosecution for both sodomy and oral copulation, which the Court of Appeals affirmed.

Also in 1934, in People v. McFadden,¹³⁷ the Court of Appeals unanimously upheld an oral copulation conviction over the defendant’s claim of "inherent improbability" of the prosecuting witness’s testimony, without specifying any of it.¹³⁸

Later in 1934, the Court of Appeals, in People v. Barber,¹³⁹ upheld a sodomy conviction even though there was no evidence of penetration, a clear violation of state law. The jury was found to be justified in disregarding the testimony of both the defendant and the "boy" in question.¹⁴⁰

In 1935, in People v. Pratchner,¹⁴¹ an oral copulation conviction was upheld. W.W. Pratchner was convicted of sex with a "boy" who was old enough to be considered an accomplice, which in California meant a teenager. Despite the Wyett rule, evidence had been admitted of Pratchner’s similar conduct with other "boys" and the court found no error in its admission.¹⁴²

In People v. Williams,¹⁴³ from 1936, the Court of Appeals split 2-1 to uphold the oral copulation conviction of Otis Williams for ongoing sexual activity with a boy of 12½ who was described by the majority opinion as "more than ordinarily advanced," and as having "an intellect that would be not of discredit to an average person of mature years. "If not an ‘infant prodigy,’ he well might be regarded as a ‘precocious youngster’."¹⁴⁴ The boy was so advanced, in fact, that he procured another boy for Williams. In the trial, Williams, a professional artist, had paintings of his admitted in evidence against him, including what the prosecuting attorney called "nude and lascivious pictures of naked children."¹⁴⁵ The judge instructed the jury to disregard that comment, but it is unlikely that such comments could not have influenced the jury. In dissent, Judge John York believed that, because of the "misconduct of the district attorney" and the "court’s attitude toward such misconduct," a new trial should be granted to Williams.¹⁴⁶

In 1937, in People v. Sweet,¹⁴⁷ an appellate court upheld an oral copulation conviction. Louis Sweet asked the trial judge to refer him to a probation officer for evaluation for probation rather than sending him to prison. The judge did so, but the probation officer filed "an adverse report." Sweet then filed an incredible barrage of motions, including a demand for a new attorney and to withdraw all of his pleas, all of which were denied.¹⁴⁸ His conviction was upheld.

Among the most incredible sodomy cases in the nation was People v. Jordan et al.,¹⁴⁹ from 1937, one of those rare cases of truly private, consensual, adult sodomy being prosecuted. The Court of Appeals sustained most of the convictions of a group of men for sodomy and oral copulation. A cabin near Riverside attracted the attention of a service station operator because of the large number of cars traveling there at night. He reported this to the sheriff’s office.¹⁵⁰ Sheriff’s deputies witnessed a car come to the cabin and then leave. They entered the cabin, without a warrant, and removed some boards from windows. The following night, a group of men came and brought a radio with them. Unknown to the men was that the sheriff’s office had deputies concealed inside a drainage ditch at the rear of the cabin. There followed

what is referred to in the record as a party. There was some drinking and some dancing, and two of the men were dressed in women’s clothes. At various times during the evening the officers observed certain of the persons present entering the various bedrooms, at times the light in a bedroom was turned out, at times the lights in the entire house were turned out, and at such times there was considerable screaming "like women screaming." Early in the evening two of the men came outside of the cabin and embraced each other and the officers heard one of them say to the other that this was a marvelous place, that "no one would ever think of coming up here," and that everything was perfectly safe. During the evening several of the men came outside and peeked in at various knot holes. On one occasion another man came out and told them to stop this as they would not like others peeking at them under similar circumstances. The officers heard someone make an announcement that one of the defendants would give a hula-hula dance and a little later the announcement was made that another person "will now give a demonstration" of how section 288a [oral copulation] should be violated, which announcement was followed by general laughter and applause.¹⁵¹

An announcement was made that another, even bigger, party would be held there a week later. Preparations were made during the week by the sheriff’s department to surprise the partiers. A false roof was created over holes in the ceiling, so that two sheriff’s deputies could hide and witness what went on below. Seventeen men arrived on the promised night and

an obscene picture was tacked on the wall and obscene remarks were made concerning it. Liquor was served and there is ample evidence of these men kissing and caressing each other, of various ones dancing together in what may be summarized as a highly improper manner, and of other acts which need not be referred to which are highly suggestive as to the nature of the party.¹⁵²

At one o’clock in the morning, the party was interrupted rudely by the sudden appearance of the deputies to arrest the sixteen men remaining. One, never identified, had left early and avoided arrest. The Court of Appeals affirmed some of the convictions and reversed others for lack of evidence. One conviction affirmed was that of a "conspiracy" based solely on one arrestee’s defiant statement that

there is [sic] only four of them and there is [sic] sixteen of us. Stick together, don’t say anything.¹⁵³

That was a manifest abuse of a conspiracy law, since there is no crime in refusing to incriminate yourself during an arrest. The conspiracy charge obviously was vindictive, but the Court of Appeals allowed it to stand. The Court did, however, decide that the admission of "pictures and cards" belonging to a defendant and found in a locker at the military base where he was stationed was prejudicial, since they clearly had no bearing on the sexual activities in the cabin in Riverside County.¹⁵⁴ The Court did not believe that the prosecutor’s reference to one of the defendants as a "pervert" was prejudicial.¹⁵⁵

Another case of consenting adolescents returning for more was the subject of People v. Galeno,¹⁵⁶ from 1938. The Court of Appeals found the evidence of corroboration sufficient to sustain the conviction.

In 1938, in People v. Brendle,¹⁵⁷ an oral copulation conviction was upheld by the Court of Appeals. Miles Brendle was convicted of the charge after two Navy personnel, Murphy and Connell, "assigned to police work,"¹⁵⁸ testified against him. Murphy and Connell, for unclear reasons, went to Brendle’s hotel and listened, one from the door and the other from an adjoining room.¹⁵⁹ Murphy

heard a bumping sound against the wall of that bedroom and at the same time Murphy was hearing that Connell told you that from his post outside the door he heard the bed springs going up and down[.]¹⁶⁰

The Court of Appeals rejected a drunkenness defense in the 1938 case of People v. Avanzi.¹⁶¹

In a fourth 1938 case, People v. Brown,¹⁶² the Court of Appeals overturned part of an oral copulation conviction because of hearsay evidence that the defendant ran a Turkish bath where violations of the oral copulation law occurred. The Court of Appeals noted that "[n]o attempt was made to connect these occurrences with the matters here involved except to show the nature of the place run by the appellant."¹⁶³

Also in 1938, in People v. Reynolds,¹⁶⁴ the Court of Appeals overturned a conviction in which the sole corroboration used was "perverted tendencies" on the part of the defendant.¹⁶⁵ Thus, mere orientation was used to try to prove a specific act, something that the Court of Appeals would not allow.

The sixth and final reported case from 1938 was People v. Young.¹⁶⁶ A conviction for cunnilingus was sustained, with the Court of Appeals noting that "inferences" made by the jury from evidence were sufficient for a conviction.¹⁶⁷

In 1939, California became the first state outside the Midwest to enact a psychopathic offender law.¹⁶⁸ This first law covered only individuals with a predisposition "to the commission of sexual offenses against children,"¹⁶⁹ but California would prove to be the state with the most aggressive effort at these laws, amending it at almost every legislative session.

In 1941, in People v. Karpinski,¹⁷⁰ an appellate court ruled that the defendant’s possession of a tube of vaseline "similar" to that alleged to be used to complete the crime was sufficient corroborative evidence.¹⁷¹

In the 1941 case of People v. Angier,¹⁷² an appellate court decided, unanimously, that the state’s oral copulation law was not violated by merely kissing or licking a sexual organ. Actual penetration of the mouth had to occur.¹⁷³

A 1941 law¹⁷⁴ attempted to clarify the psychopathic offender law. Anyone examined and found not to be psychopathic was to be sentenced by the court and those found to be psychopathic were to be committed to a state hospital.¹⁷⁵

The first reported case under California’s psychopath law was People v. Haley,¹⁷⁶ from 1941. An appellate court shot down an effort to have a man declared a psychopath because he had not been charged with any crime against children as required by the statute. He had been arrested for several crimes, none of them sexual. The court also rejected the state’s argument that the psychopath law was identical in purpose to the insanity law.¹⁷⁷ The opinion does not explain why the state tried to have Haley declared a sexual psychopath, but this decision put the brakes on the state’s expansive definition of the law and effectively blocked warehousing of those adjudged to be psychopaths.

In 1942, in People v. Coleman,¹⁷⁸ a California appellate court rejected the contention of the heterosexual defendant that sodomy could be accomplished only between people of the same sex.¹⁷⁹

The California Supreme Court overturned a conviction for lewd and lascivious conduct in the 1942 case of People v. Putnam.¹⁸⁰ The Court unanimously found that the accusation that Putnam had touched the clothed crotch of a 12-year-old boy could not stand because Putnam had not touched his bare skin, and the statements of the alleged victim were filled with inconsistencies.¹⁸¹

The California Attorney General issued an opinion¹⁸² in 1943 interpreting the psychopathic offender law. In a good news-bad news decision, the good news was that those charged with a crime and committed under the law were not deprived of their civil rights during commitment.¹⁸³ The bad news was that they could not be released from an institution, even if paroled, for a minimum of five years.¹⁸⁴

An appellate court decided People v. Wheeler¹⁸⁵ in 1943. Wheeler argued that the evidence against him showed only a "touching" of the complaining witness, rather than penetration as required by Angier. Although the court found the evidence to be otherwise, it repeated the tired phrase that it would "serve no useful purpose to set forth the evidence here."¹⁸⁶ Setting forth the evidence might have shown how it corroborated the witness.

Also in 1943, in People v. Munoz,¹⁸⁷ an appellate court found sufficient the "inferences" from evidence that the trial judge, sitting without a jury, made to decide the defendant’s guilt of sodomy.¹⁸⁸

In a third case from 1943, People v. Romero,¹⁸⁹ an appellate court sustained the attempted sodomy conviction of one of several "youths" who drove around, drank, and became intoxicated together. He attempted the act on one of his companions.¹⁹⁰

In 1944, in People v. Sing Chan,¹⁹¹ an appellate court rejected a fear defense. Sing Chan had been spotted by police in a park in Sacramento fellating a soldier. Upon arrest, he attempted to flee and was tripped by one of the arresting officers.¹⁹² The appellate court sustained the refusal of the trial court to allow the admission of evidence of Sing Chan’s previous assault by a soldier. He claimed that this would prove that he was afraid of soldiers, and never willingly would have engaged in sex with one.¹⁹³

In People v. Meyer,¹⁹⁴ from 1944, an appellate court sustained the conviction of a man for sex with male teenagers in a summer camp. The court refused to "besmirch the records of this court by here setting out in detail the actions of defendant as related by the boys involved." The unstated evidence was "overwhelming" as to Meyer’s guilt.¹⁹⁵

A heterosexual case from 1944 shows police practices in catching those engaged in sodomy. In People v. Rayol,¹⁹⁶ a woman who left a bar with a man was noticed by police who

had followed them to the hotel, observed from an adjoining roof the Army officer commit upon the defendant the acts outlawed by section 288a [oral sex-in this case, cunnilingus], Penal Code.¹⁹⁷

No privacy claim was raised, and the court did not question the right of police to stare through windows to watch people having sex.

An amendment to the psychopathic offender law in 1945,¹⁹⁸ in addition to removing the limitation that the sex crime had to be with a child, created a provision for disposing of an offender who recovered from the sexual psychopathy. The superintendent of the institution in which the offender resided was given the power of parole and the power to set conditions for the parole, which had to last a minimum of five years. If the person had not recovered from the psychopathy and was considered unlikely to benefit from further treatment, the person was to be returned to the court for unspecified "further disposition" of the case.¹⁹⁹

California amended its habitual offender law²⁰⁰ in 1945, adding sodomy to the list of crimes for which a person convicted a second time could be considered an habitual offender. Being so labeled guaranteed the offender life imprisonment.²⁰¹

In the 1945 case of People v. Triplett,²⁰² a California appellate court also upheld a heterosexual conviction when it said that the indictment did not have to state the sex of the other party, noting that state law made both same-sex and opposite-sex activity equally criminal.²⁰³

A conviction for sodomy with a 14-year-old male prostitute was the subject of People v. Brown,²⁰⁴ from 1945. The appellate court overturned the conviction because the young man related stories of violations of the oral copulation statute, but the defendant was tried and convicted under the sodomy statute.

In 1946, in People v. Barnett,²⁰⁵ the California Supreme Court dealt with the curious case of a man convicted under the oral copulation law who was labeled a sexual psychopath by three physicians, but held not to be one by the trial court. In denying the adjudication, the trial court sentenced Barnett to prison instead. Grand jury testimony revealed that he

for the past 30 or more years has been homosexual in the gratification of his sexual desires; that he has for more than five or six years last past persistently engaged in sexual offenses with and upon young boys [sic] ranging in age from 13 to 18 years old[.]²⁰⁶

The testifying physicians labeled Barnett an "invert" and said he had no responsibility for or control over his sexual desires. However, this inborn trait still, according to them, made him a psychopath.²⁰⁷ The unanimous decision of the court was that Barnett was a psychopath and should have been committed to a mental health facility rather than to prison.²⁰⁸

In 1946, in People v. Dobkin,²⁰⁹ an appellate court overturned one of two counts against a man for sexual activity with a 16-year-old male. The court found that the charge to the jury on the issue of accomplices was possibly misleading, and certainly not understandable to lay persons.²¹⁰

Also in 1946, the Court of Appeals split in its decision on an appeal in People v. Dutra.²¹¹ Tom Dutra owned a rooming house in Hanford and had three army officers, Nansel, Robinson, and Fox, and a "17-year-old boy" named Silvas in his home one evening. They began drinking and talking about "sex matters." This led to fondling and an act of oral copulation between Dutra and Nansel.²¹² The "boy," Silvas, testified that

he had previously engaged in acts of degeneracy with various persons, including one such act with Nansel; that he made the arrangements for the gathering; that he testified in reference to Dutra that "I knew that in case I brought any men up, that he wanted to have sex with them"; that he admitted that he told Robinson that Dutra was a "character" or a "queer", a homosexual pervert; and that he took an active part in the indecent things which occurred in the living room[.]²¹³

The Court of Appeals believed that Silvas actually brought the men to Dutra’s home for himself.²¹⁴ Admitted into evidence against Dutra was "an extremely lewd article, which is better left undescribed."²¹⁵ Also admitted into evidence was Dutra’s statement to his guests that evening that

he had installed peep holes looking into various rooms in this rooming house; that when he rented a room to a man he made a practice of watching him through one of these holes; and that when he observed certain things which led him to believe that the opportunity was propitious he would enter the room, on the pretext of bringing towels or other articles, and would offer to satisfy the man. At the trial, the sheriff testified that at the time he arrested the appellant he found four such holes in the walls of certain of these rooms, affording such a view of the interior as would be most likely to facilitate such a purpose.²¹⁶

One count was affirmed, the other reversed, based on questions of whether or not Silvas was an accomplice.

In 1947, a famous person was convicted for sexual activity with a teenage male. Tennis star Bill Tilden was sentenced to jail for "contributing to the delinquency of a minor" by fondling him. He was released after a few months, but was convicted again in 1949 and again served several months in jail.²¹⁷

California pioneered a law known as the sex offender registration law in 1947.²¹⁸ Anyone living in California, and who had been convicted since 1944 of any of several enumerated crimes, including sodomy and oral copulation, was required to register as a sex offender with the county sheriff or chief of police.²¹⁹ Anyone failing to register or to notify the authorities of a change of address was guilty of a misdemeanor.²²⁰

II. Sterilization

California enacted a law in 1909²²¹ that provided for the sterilization of persons convicted two or more times of sexual offenses if they showed evidence while in prison of being a "moral or sexual pervert."²²² In addition, those sentenced to life imprisonment could be sterilized if they showed "continuing evidence" of sexual perversion.²²³ Nothing in the law gave the inmate any right to a pre-operative hearing.

In 1910, California Attorney General U.S. Webb issued an opinion²²⁴ that vasectomy would be constitutional under this provision, but that castration would not. Webb made no reference to sexual sterilization of females, even though the 1909 law was gender-neutral.

In 1913, the law was expanded²²⁵ to permit asexualization of inmates at almost all state institutions.

The law was amended again in 1917.²²⁶ The web of sterilization was expanded so that no inmate in any covered state institution could be discharged without having his or her case reviewed by the state commission in lunacy. The commission could order sterilization "with or without the consent" of the individual and the commission and the person performing the sterilization were absolutely immune from civil or criminal liability.²²⁷

Through the end of 1930, some 6,787 Californians had been sterilized, the largest number in any state.²²⁸

By the end of 1934, the number of sterilizations in California reached 9,931, an increase of 46% in just four years.²²⁹

In 1937, the law was changed²³⁰ so that those "lawfully committed to any State hospital" were subject to sterilization, if "afflicted with, or suffers from" "perversion[.]"²³¹ Prisoners were removed from the doomsday list, but those in non-penal institutions remained on it.

A court challenge to the sterilization law was dismissed by the California Court of Appeals in 1939 in Garcia v. State Department of Institutions et al.²³² By a 2-1 vote, the court issued a 29-word opinion that the facts in the writ of prohibition sought were not "sufficient" to justify court intervention.²³³ In dissent, Justice White believed that sterilization without notice to the party or to kin was a violation of due process of law.²³⁴

An analysis of the usage of the California sterilization law²³⁵ shows that the number of sterilizations peaked at 848 in 1939, that a nearly even split between males and females was maintained until 1942, when the percentage of sterilized females rose, and that those from institutions for the mentally ill were sterilized more often than those in institutions for the mentally retarded until 1943. The study did not give a reason for any particular case being sterilized.

Period Summary: California courts operated with a legal dichotomy during the earliest part of this period. On the one hand, they harshly enforced the crime against nature law. On the other hand, they restricted the definition of sodomy to anal sex and adopted a corrosive attitude toward circumstantial evidence, reversing a number of convictions. The legislature took 18 years to outlaw oral sex after the California Supreme Court ruled that fellatio did not constitute the crime against nature. When it did so, it enacted a unique law that outlawed "fellatio" and "cunnilingus," a distinction that caused the law to be invalidated by the California Supreme Court because the terms were not English and in common usage. Although the penalty for sodomy was reduced in 1921, the same year, the state also reenacted a law against oral copulation that was broader than the invalidated law and outlawed any act that "outrages public decency." This gave police wide latitude to arrest people for virtually any erotic activity. Published sodomy cases from California reveal some of the most shocking invasions of privacy including having holes drilled into bedroom walls, having investigators hide under beds or in false roofs, and spying into hotel rooms. None of these invasions was challenged by the people arrested. California was one of the earliest states, and the first outside the Midwest, to enact a psychopathic offender law. Its scope was broadened frequently. California also pioneered the sex offender registration law during this period. California also was among the first states to adopt a sterilization law, and was the first to aim it at "moral or sexual perverts." More people were sterilized in California than in all other states combined. In short, California was one of the most repressive states in the nation on the issue of private, consensual sexual activity.

The Kinsey Period, 1948-1986

The second, and one of only three known, reported sodomy cases in the United States involving a married couple was People v. Doggett et al.,²³⁶ from 1948. The married couple was prosecuted because photographs of them engaged in oral copulation fell into the hands of the law. No privacy issue was raised by either party.

An appellate court decided People v. O’Moore,²³⁷ one of the most stereotype- and prejudice-filled sodomy opinions in U.S. history, in 1948. O’Moore, a Catholic priest, was convicted of sodomy with three males between 15 and 18 years of age. The appellate court sustained his conviction, and among the evidence it cited as corroborative of the charges was that he was "unmarried" (despite being a priest), that he was "known in San Francisco," that he "took particular interest in boys" in his parish who had been in trouble with the law and whom he helped. In addition, while traveling with them he once stayed in a rooming house

which was frequented by Negroes. A Negress showed them to their room.²³⁸

On some occasions he signed hotel registers with the alias, "Jack Williams and Son."²³⁹ During the course of his trial, O’Moore was asked by the prosecutor if he was Gay, to which the defense counsel objected. The court sustained the objection but, oddly, the defense counsel proceeded to ask the same question. O’Moore denied it. The prosecution’s "reference in his argument to the jury to the many immoral acts of the defendant" was not prejudicial, the appellate court decided.²⁴⁰

The psychopathic offender law received a limitation from a California appellate court in 1948 in Ex Parte Stone.²⁴¹ The court unanimously decided that the law did not permit indefinite incarceration in a mental health facility without trial on the arresting charges. A man arrested on a charge of molesting a girl had received all the treatment the facility felt it could give, but was considered "so sexually ill and mentally deranged that, without supervision, treatment, care or restraint he would be dangerous to himself or to other persons[.]"²⁴² The prosecutor then sought to have Stone committed until cured which, due to the diagnosis of the psychiatrist, meant committed for life, because the prosecution had not preserved necessary evidence to try Stone on the original charges.²⁴³

In 1948, in People v. Walker,²⁴⁴ a California appellate court unanimously upheld the conviction for oral copulation of a man with a 15-year-old boy. In this case, Kenneth Peel, the young man in question, voluntarily went to the defendant’s apartment with him, was fondled, and then returned later the same evening. Although Peel stated that the oral copulation was against his will, he did not explain why he voluntarily returned to Walker’s apartment after having been fondled or why he voluntarily went into Walker’s bedroom.²⁴⁵

Another case of consensual oral copulation was decided in 1949 in People v. Milo.²⁴⁶ Henry Milo and a teenager with the last name of Sewell, but whose first name is not given in the opinion, were found engaged in fellatio on a bridge by police officers.²⁴⁷ Milo was arrested, and made the mistake, when asked what was going on, of answering, "Nothing. I was just giving the kid a blow job." The arresting officer then asked Milo "how long he had been a ‘queer’."²⁴⁸ Milo claimed that there was insufficient evidence to convict him, but the appellate court found the "eye witness" to the crime (the police) to be sufficient evidence.²⁴⁹

In 1949, in People v. Tipton,²⁵⁰ an appellate court upheld the right of a trial court to impose a prison sentence on a man convicted of consensual oral copulation and adjudged a psychopath who had been released from the mental health facility because nothing further was thought to be able to be done for him. Tipton had been adjudged a psychopath following an affidavit filed by his own sister for his consensual activity with males.

An early attack on the California psychopathic offender law was published in 1949.²⁵¹ The article questioned the thought that went into the enactment of the California law, as well as the others in the nation, and stated that the laws were based on outmoded scientific thinking.²⁵²

A law supplemental to the psychopathic offender law was enacted in 1949.²⁵³ This created a new type of troublesome person, the "mentally abnormal sex offender." The law allowed any individual to commit himself or herself, or to have a commitment initiated by a parent, spouse or child to a state mental health facility for up to two years.²⁵⁴

An opinion²⁵⁵ of the California Attorney General in 1949 stated that those committed to an institution as a sexual psychopath were not entitled to disability insurance benefits.

In keeping with the tempo of the national paranoia of the times, separate laws were enacted in 1950 to change the penalty for both sodomy and oral copulation. The first was that dealing with sodomy.²⁵⁶ The maximum prison sentence was doubled from 10 to 20 years.²⁵⁷

The second amended the oral copulation statute.²⁵⁸ Although not changing the maximum prison sentence, an alternative sentence of up to one year in jail was added,²⁵⁹ this obviously to cover consensual activity.

In 1950, in People v. Hart,²⁶⁰ an appellate court overturned the conviction of a man for committing fellatio on a sailor. The sailor in question had a broken leg and was given a ride by the defendant. The sailor claimed that the man ordered him into the back seat, took a knife and passed it back and forth between his hands while stating his desire to fellate the sailor.²⁶¹ The sailor acquiesced out of "fear" that his healing leg would be rebroken.²⁶² The appellate court found insufficient evidence that the sailor had acquiesced out of fear and ordered a new trial to determine if he was an accomplice to the act.

Also in 1950, in People v. Estes,²⁶³ a California appellate court dealt with the issue of sufficient corroboration to prove guilt in a sodomy case. Judge Paul Vallée, who probably wrote more published sodomy cases than any other U.S. judge, and who was not the least bit enlightened on the issue, wrote that, in addition to a defendant’s "active and passive" admissions, a "defendant’s consciousness of guilt is corroborative of an accomplice."²⁶⁴ Vallée did not explain what this meant. The case was one of consensual fellatio in a car parked in an uninhabited area in Los Angeles. The police, apparently without anything else to do, were out with flashlights looking for such activity and caught Estes and his partner.²⁶⁵

In 1951, in People v. Bentley,²⁶⁶ an appellate court unanimously sustained an oral copulation conviction secured by a police officer looking in a window of an otherwise empty restroom and seeing Bentley and his partner engaging in fellatio.²⁶⁷

In 1951, in People v. Cox,²⁶⁸ an appellate court overturned the oral copulation convictions of a man for activity with two quite willing 14-year-old males. The court found the two to be accomplices and said that there had to be corroboration of their testimony, something lacking in Cox’s trial.

A decision with major implications for every Gay and Lesbian citizen in California was the 1951 case of People v. Babb et al.²⁶⁹ Judge Paul Vallée penned a judicial abomination which linked sodomy and vagrancy in the law. Babb had been charged with sodomy, but convicted by the jury only of the section of the vagrancy law making it a crime to be "lewd and dissolute." (The vagrancy law, including the "lewd and dissolute" provision had been enacted in the 1872 Code.) He challenged the conviction, stating that vagrancy was not a lesser included offense within the sodomy law. First, Vallée described "vagrancy" as including a

general course of conduct, practices, habits, mode of life, or status which is prejudicial to the public welfare[.] [Emphasis added].²⁷⁰

Thus, people could be jailed as vagrants just for being someone labeled as "prejudicial to the public welfare," without committing any overt act. Next, after discussing that vagrancy was regarded as "a parasitic disease,"²⁷¹ Vallée went on to say that

[o]ne cannot commit the infamous crime against nature without being lewd and dissolute. Lewdness and dissoluteness are necessary elements of that offense. The infamous crime against nature and vagrancy, where the offense is that of a lewd and dissolute person, involve essentially the same elements of conduct. They have a common basis. It is true that a person can be lewd and dissolute without committing the infamous crime against nature, but the converse is not true.²⁷²

In addition, a "single act of lewdness or dissoluteness" could be sufficient to label a person as vagrant.²⁷³ Because of Vallée’s generous definition of vagrants as including a status, the reach of this decision would permit the arrest of any known Gay or Lesbian person because Vallée said their status made them vagrant per se.

Also in 1951, in People v. Sellers,²⁷⁴ an appellate court upheld an oral copulation conviction over the argument of the defendant that he should have been able to prove that he wasn’t Gay. Justice Emmet Wilson, speaking for a unanimous court, said that the California oral copulation law

does not make a distinction as to the type of person who may commit the act charged. It is a punishable offense whether the person is normal or abnormal.²⁷⁵

Wilson did not explain who was "normal" and who was "abnormal."

In another 1951 case, People v. McNeese,²⁷⁶ an appellate court upheld the sodomy conviction of a man for sex with a 13-year-old boy over the defendant’s contention that the boy’s father initiated a malicious prosecution of him. McNeese claimed that the boy’s father "coached" him in his accusations.²⁷⁷

The constitutionality of the psychopathic offender law was upheld in 1951 in Ex Parte Keddy.²⁷⁸ In addition, the court held that those accused of being psychopaths had the right to bail pending their hearing.²⁷⁹

The psychopathic offender law received two changes in 1951. The first²⁸⁰ granted to those accused of being a psychopath the right to be present at the commitment hearing and, if indigent, permitted, but did not require, the judge to appoint an attorney for the individual so accused²⁸¹ and guaranteed the right to a jury trial.²⁸²

The second²⁸³ made failure to register as a sex offender under the sex offender registration law grounds for initiating a psychopathic offender proceeding.²⁸⁴

Also in 1951, in People v. Harris,²⁸⁵ an appellate court overturned the Angier precedent of a decade earlier and decided that the mere licking of a genital organ, without any penetration, constituted a violation of the oral copulation law. Presiding Judge Minor Moore, writing for the court, begged away from the Angier decision, claiming that the clear decision in that case had been misconstrued, it having never been the intent of the court to make such a decision.²⁸⁶

The first known challenge to police arrests for solicitation occurred in 1952 when Mattachine Society member Dale Jennings was arrested in Los Angeles. He claimed to have been accosted by the undercover officer, but was himself charged with "lewd and dissolute conduct." The Mattachine Society decided to fight the charges and at his trial the jury deadlocked 11-1 for acquittal, and the charges were dropped.²⁸⁷

In 1952, Governor Earl Warren, just a year-and-a-half away from becoming Chief Justice of the United States, signed a law²⁸⁸ that eliminated the maximum penalty for sodomy, setting the penalty at "not less than one year," thereby permitting a sentence of life imprisonment.²⁸⁹ The penalty for consensual oral copulation still was capped at 15 years.²⁹⁰

In the case of People v. Chamberlain,²⁹¹ from 1952, an appellate court again upheld a conviction for consensual sexual relations. Chamberlain and his partner picked each other up in a theatre and were caught in a car by police with flashlights. Oddly, the two initially had not reacted to police car lights shining in the window of the car, and thus were caught with their pants down.²⁹²

Civil rights leader Bayard Rustin was the most famous person to be arrested under the oral copulation and vagrancy law as "lewd and dissolute." In 1953, he received 60 days in jail.²⁹³

In 1953, in a non-Gay case, Ex Parte Gross,²⁹⁴ an appellate court explained the truly punitive nature of the psychopathic offender laws when it said that in

the proper administration of the sexual psychopathy law there should be no hope of early release for any sexual psychopath. Indeed, it would seem but fair that such persons should understand that their time of confinement may well be equal at least to time they would have served in state’s prison for violation of the law, plus time spent in mental hospitals.²⁹⁵

In 1953, in People v. McMahon,²⁹⁶ the Court of Appeals inexplicably upheld a conviction for "assault" to commit oral copulation of a defendant who repeatedly solicited a hitchhiking teenager to allow him to fellate him. McMahon stopped when the teenager threatened violence against him.²⁹⁷

A physician’s conviction for taking improper liberties with a minor was upheld in 1953 in People v. Coontz.²⁹⁸ Coontz had pulled the jeans down on a 13-year-boy doing housework for him and placed his hand on the boy’s penis, bit him, and kissed him, causing the boy to "have a consciousness of sexual feeling."²⁹⁹ The boy claimed that, several months earlier in receiving a penicillin shot in his hip from the doctor, Coontz’s hand "just brushed by" his genitals. When the boy reported the second incident to his father, the father arranged for police to install a hidden microphone in their home and arranged for the doctor to come and be confronted by the father over his deeds. The Court of Appeals, in those pre-Warren Court days, found nothing objectionable about the warrantless recording of a person’s conversation.³⁰⁰

One of only four published cases in the United States to deal with consensual relations between women was the subject of People v. Manicap et al.,³⁰¹ from 1953. Manicap and another unnamed woman had been spotted by police going into a motel room with "another woman." One officer

went to the rear of the apartment and stepped on the window sill, pushed the blind aside and observed the two defendants and another woman lying on a bed naked. The repulsive details of what the officer witnessed need not be recited.³⁰²

It never is stated in the opinion why the women were followed. It appears from the above paragraph that they had left a window open, thus allowing the police access to the room. The appellate court sustained their conviction.

People v. Massie et al.³⁰³ was decided in 1953 by an appellate court. In this case, two consenting male partners were tried for an act of fellatio, but only one was convicted. His unnamed partner told the jury that he was "befuddled" by too much drink and too little sleep to know what he was doing. This got him acquitted, but Massie was convicted. The unanimous decision said that Massie could be convicted even though his consenting partner was acquitted.³⁰⁴

In 1954, in People v. Ramos,³⁰⁵ Paul Vallée again vented his spleen about sex between people of the same gender. Sisto Ramos, representing himself, lost out in his appeal in one of the shortest published sodomy cases in California history. Vallée said that

[r]ecitation of the nauseating details would serve no useful purpose. Suffice it to say that a police officer who witnessed the act testified to facts from which the trial judge could reasonably conclude that there had been penetration.³⁰⁶

In other words, police officers’ testimony never could be challenged and lack of proof of penetration would not stop a conviction.

An unpublished case from late 1954 was People v. Slade. The Mattachine Society was raising money for attorney’s fees for a defendant facing a case of "gross violations of civil rights and due process of law" in the mind of the Society. The violations were not specified.³⁰⁷

In 1955, in People v. Mason et al.,³⁰⁸ an appellate court again upheld an oral copulation conviction of consenting males in a restroom. Police had made peep holes in the wall between the men’s and the women’s restrooms and observed Rodney Mason and his partner engage in fellatio.³⁰⁹ The jurors had been taken to the restroom to view it and on one of the stalls was written: "Rodney Mason is a queer. Where is Rodney? Me for Rodney." Mason contended that the jurors’ viewing the graffiti was prejudicial to him.³¹⁰ Judge W. Turney Fox, writing for a unanimous court, noted that the trial judge commented

I just can’t conceive of that jury, or as far as that goes, any jury I have ever dealt with, giving the slightest bit of credence to a charge made in that way. Even the place where it was written would detract from any authenticity...It is so unlikely it is almost beyond the realm of possibility, in the Court’s opinion.³¹¹

Thus, even though Mason was arrested in the restroom for sex with another man, jurors never would give credence to graffiti in that same restroom labeling the defendant as a "queer." The appellate court concluded that this statement by the judge sufficiently protected Mason against any prejudice by the jury.³¹²

In 1955, in People v. Thompson,³¹³ the conviction of a man for sodomy and oral copulation with a physically disabled man was sustained. The court said that "[i]t is unnecessary to note the details; the incident was characteristic of such offenses."³¹⁴

The psychopathic offender law was amended³¹⁵ in 1955. Again showing the parallel failure of these laws and the growing frustration of the public with sex offenses, California now permitted the indefinite commitment to institutions of anyone determined to be a psychopathic offender and found not amenable to "treatment."³¹⁶ The only proviso was that no one could be committed unless recommended by examining psychiatrists.³¹⁷

In another case from 1955, People v. Boud et al.³¹⁸ an appellate court unanimously sustained a sodomy conviction for consensual activity in a parked car. Boud had picked up a sailor and, when they were caught, offered the arresting police officer money not to arrest him.³¹⁹

The conviction of a father for sodomy with his son was the scenario in People v. Buchel,³²⁰ from 1956. The Court of Appeals upheld the conviction. George Buchel and his wife divorced and custody of their two daughters and one son went to the mother, but she later allowed the son, age thirteen, to live with his father since they were close. After several months of sleeping together, the boy claimed that his father began engaging in sodomy with him. Initially, he was afraid to tell anyone because he didn’t want his father to go to jail. The son allegedly began discussing "unnatural sexual activities" with friends and was disciplined in school for "lewd and vulgar drawings and conversations."³²¹

An opinion³²² of the California Attorney General in 1956 decided that pardoned sex offenders were not eligible to own a firearm in the state unless they had registered under the sex offender registration law.

In what sounds like a police set up, an appellate court upheld a conviction for oral copulation in the 1956 case of People v. Wertz.³²³ The unanimous decision described Warren Wertz, the plaintiff, for some reason, as "over 77 years of age,"³²⁴ and noted that he had been arrested for consensual fellatio with two teenagers. The teens, James Stinson and Charles Hopkins, were with Wertz at his home, where they apparently went frequently, and Wertz fellated each in his bedroom. "Two police officers of the Modesto Police Department then arrived at appellant’s residence[.]"³²⁵ Nothing in the opinion explains how the police knew to show up at Wertz’s house. In the trial, the judge said that

he would not believe Stinson and Hopkins under oath as [sic] they were perverts themselves and could have "framed" appellant.³²⁶

The judge also said, regarding the sufficiency of corroborating evidence, that

though the evidence was very, very slight, it may be sufficient to constitute corroboration.³²⁷

Despite these points raised by Wertz, the appellate court said that the "evidence amply supports the conviction[.]"³²⁸

The important case of People v. Giani³²⁹ was decided in 1956 by an appellate court. In what might be considered a 1950s version of a pro-Gay opinion, Judge Fred Wood, speaking for a unanimous court, overturned an oral copulation conviction. Giani had won a motion for a new trial from the court and the state appealed. Giani argued that the prosecution’s asking him in court if he were a homosexual was prejudicial. Wood was unimpressed with the state’s suggestion that the appellate judges read a series of reports on "Sexual Deviation Research" being conducted by California.³³⁰ The judges did read the reports, but could

find nothing therein which seems to support counsel’s broad claim that every homosexual is predisposed to commit crimes, sexual crimes, crimes of the nature of the crime defined and proscribed by section 288a. Instead, we find such statements as these: "The facts are that the majority of homosexuals are no particular menace to society. A small number of them, like those who are heterosexual, will attempt to seduce or sexually assault others or try to initiate sex relations with small children."³³¹

Wood stated that an analogy would be to presume that all heterosexuals were predisposed to commit rape,³³² and that in a heterosexual case of sodomy or oral copulation, that it would be proper to ask the defendant if he or she were heterosexual in order to prove their inclination to violate the law.³³³ Wood concluded that in

the absence of expert medical testimony on the subject we hesitate to equate the word "homosexual" with the term "sexual psychopath."³³⁴

The court found the question to be prejudicial and allowed the order for a new trial to stand.³³⁵

Another abomination came in the sloppily constructed 1956 case of People v. Goldstein.³³⁶ Goldstein had been convicted of oral copulation with two men, one a sailor named Billy Hoss and the other an unemployed brick layer named John Ritesman. Both accepted money from Goldstein in order to be fellated. Hoss visited Goldstein frequently, always bringing another man with him because he said if he went alone "he would have to fight all day to stay away from him." (???) On this particular day, Hoss brought Ritesman, but he previously had brought "sailors from Moffett Field" and other Gay men.³³⁷ The unanimous per curiam opinion, in dictum, extended the Babb rule on vagrancy to include oral copulation. Anyone charged with oral copulation and acquitted could be convicted of vagrancy instead.³³⁸ The Goldstein case apparently was not proofread before being published, because there are three references to case law in the opinion followed by "[Citations]" or "[Citation]" without the citations inserted where the author noted.³³⁹ Goldstein had been charged with fleeing from the law upon being charged with oral copulation, but the appellate court noted that it was an unfair charge, considering the fact that Goldstein already was out of the country before the accusations were filed. His conviction was overturned.³⁴⁰

In 1956, the Attorney General of California issued an opinion³⁴¹ that state law permitting alternative jail sentences of up to one year in lieu of a longer penitentiary sentence could not be interpreted to apply to all crimes. It could apply only to those that specifically had such a proviso within them,³⁴² the oral copulation law being one of them.

In a fourth case from 1956, People v. Morgan et al.,³⁴³ an appellate court sustained the sodomy conviction of two men. They had been caught in the act by police and, after booking, taken to a hospital where the police requested a physician to make slides for them to use in evidence. Although neither objected, the physician

took from appellant’s private parts certain fecal matter from which he made some smears and slides that were introduced into evidence over defendant’s objection that they were obtained by unlawful search and seizure.³⁴⁴

The court rejected this contention, as well as the contention that there was no proof of penetration. Although the arresting officer

said it would be impossible to state that he saw penetration; his description of what he saw left no room for a negative inference.³⁴⁵

The psychopathic offender law received yet another desperate adjustment³⁴⁶ in 1957. Probation could not be granted to anyone processed under the psychopathic offender law without a record of the "prior record and history" of the individual being presented to the parole board.³⁴⁷

In 1957, in People v. Hurst,³⁴⁸ an appellate court unanimously upheld an attempted sodomy conviction of two prisoners. A trusty in the San Diego city jail overheard a statement "Now, we can have sexual intercourse all night," but was uncertain who said the words. The trusty looked into the cell and saw them kissing.³⁴⁹ Also relevant, the court believed, was that Hurst had told a police officer that he was homosexual.³⁵⁰

Consenting males in a public restroom’s closed stall were the subjects of People v. Strahan et al.,³⁵¹ from 1957. Wilburn Strahan and Hipolito Besada were seen entering the same stall by May Company detectives. One detective got on the floor from his vantage point to see two pairs of feet and the other stood looking over the partition at Strahan and Besada.³⁵² Coming five years before the Bielicki case gave privacy rights to restroom stalls, the defendants did not appeal to the California Supreme Court, which might have issued a pro-privacy decision in their case as well.

In 1958, another opinion³⁵³ of the Attorney General decided that state law limited the amount of pay to be given to court-appointed psychiatrists in sexual psychopath cases. The effect of this decision was that psychiatrists might decline to assist in psychopathy proceedings.

A theatre that lost its license for being adjudged a public nuisance was the subject of the 1958 case of Tarbox v. Board of Supervisors of the County of Los Angeles et al.³⁵⁴ The Carmel Museum Theatre in Los Angeles had been closed by police because

19 men were placed under arrest in the theater during the showing of pictures on charges of violation of section 647, subdivision 5 of the Penal Code (vagrancy, lewd). These arrests were all based upon attempts by the persons arrested to place their hands upon the private parts of members of the sheriff’s vice squad (plainclothesmen) who had seated themselves as decoys in the theater.³⁵⁵

Tarbox, the owner of the theatre, learned from the arrests

that persons of homosexual propensities were among his patrons and that they had attempted lewd acts within the premises. He then attempted to retain deputy sheriffs in uniform to work in the theater during their off hours but after this was first arranged he was advised that it was against the policy of the sheriff’s department to permit the sheriff’s deputies to take outside employment and that he should get a private detective to do that work.³⁵⁶

Tarbox did hire a detective who "requested persons who were believed to be of undesirable character to leave the theater although no lewd acts were observed."³⁵⁷ Despite Tarbox’s efforts, the theatre was closed as a public nuisance, allegedly the only way the authorities knew to stop the sex.³⁵⁸ The appellate court said that Tarbox

could not legally refuse admission to any person even though he knew him to be a homosexual unless that person had theretofore committed a lewd act upon the premises[.]³⁵⁹

The court found the action of denying the license to be unreasonable and directed the trial court to order the license to be restored.³⁶⁰

In 1958, well-known psychiatrist Karl Bowman asked the California legislature to repeal laws against consensual sexual activity.³⁶¹ It would be close to two decades before the legislature acted.

Another public nuisance case was the 1959 case of Sultan Turkish Bath, Inc. v. Board of Police Commissioners of the City of Los Angeles.³⁶² Appellate court judge Paul Vallée wrote another judicial abomination. The bath had been closed by police as a nuisance because of sexual activities on the premises. Vallée noted, in reviewing the evidence from the trial court, that he was "disregarding conflicting evidence" to make his decision.³⁶³ In other words, any evidence favorable to the defense would be ignored. With that action, there was no doubt of the direction of his opinion. An arresting police officer named Blakley, with stereotyped ungrammatical confidence, said that many times during his duties as an undercover officer at the baths, "there was hardly no one in the place." Despite that, he and his partner made about fifty arrests in a period of six months.³⁶⁴ Eleven arrests were made in three months during that six month-period and in each arrest Blakley or his partner

personally saw two men together in an adjoining cubicle engaging in some form of sex perversion.³⁶⁵

The "some form" proviso undoubtedly allowed arrests for any kind of erotic activity under the state’s vagrancy law. Vallée also recited Blakley’s star witness testimony that he had seen "two men engaging in homosexual activity or sex perversion."³⁶⁶ He did not explain how some sexual relations between two men was not "homosexual activity," but instead "sex perversion." Vallée also noted that there was

no conflict in the evidence that numerous and frequent illegal, immoral, disgusting, and indecent acts were committed on the premises.³⁶⁷

The three last epithets used by Vallée certainly were curious. There were acts taking place that were "immoral," "disgusting" or "indecent," but apparently legal, and those were also justifiable in closing down the baths. Vallée then stated that the regulating board may have "reasonably inferred" from the owner’s stated desire for the privacy of his patrons was because

he was not concerned with what went on in them. [He] was willing to sacrifice morality, decency, and lawfulness in order that his patrons have privacy.³⁶⁸

Again, Vallée concerned himself with more than illegality, adding "morality" and "decency" to the criminal code on his own.

In 1959, in People v. Schulze,³⁶⁹ an appellate court upheld the conviction and sentence of a man for oral copulation, even though his partner had his charge reduced and received only a fine. Judge Allen Ashburn said that

the facts asserted by appellant, if established, would not spell prejudicial error with respect to him. The punishment inflicted upon appellant was lawful. Legally it is of no consequence to him whether his codefendant received undeserved leniency or not.³⁷⁰

One only can guess that, in this case, Schulze had taken the "female" role in the act and thus was punished more severely than the partner taking the "male" role.

Also in 1959, in People v. Thurmond,³⁷¹ an appellate court overturned the conviction of a man for 20 counts of oral copulation with two consenting teenagers. The "corroborating" evidence relied upon by the state was so flimsy that every single piece of it was rejected by the court. Among the evidence: that the teenagers stayed overnight with Thurmond, that Thurmond allowed them to use his car and motorcycle, that Thurmond had a boot fetish and had photographed both boys in boots, and that Thurmond hid from one teen’s mother the fact that he let the teen ride his motorcycle.³⁷² The court rejected the state’s contention that an adult male hanging around teenage males was suspicious and indicative only of a sexual relationship with them.³⁷³

In a fourth 1959 case, People v. Perras,³⁷⁴ an appellate court upheld the sodomy and oral copulation conviction of a man for relations with Leonard Lindbeck. Lindbeck, known as "Lindy," was a 15½-year-old, apparently extremely attractive, sensuous, and sexually experienced young man. In addition to Perras, Lindy had relations with his own sister and with Perras’s son. The elder Perras walked in on them engaged in fellatio in the bedroom and "he had become aroused when he saw the boys."³⁷⁵ Perras also acknowledged to a police officer that

he had kissed Lindy; that he may have had an erection in Lindy’s presence, and that he may have masturbated in the house while Lindy was there. Lindy’s mother testified that Lindy stayed overnight at appellant’s home on an occasion in July so that he might attend Cinerama and that appellant had "kissed" Lindy in her presence.³⁷⁶

Although the appellate court noted that many of Lindy’s answers in the trial were "nonresponsive" to the questions asked, it found no error in Perras’s trial and affirmed his conviction.³⁷⁷

The creative case of People v. Ragsdale,³⁷⁸ from 1960, raised several issues. The most important was a constitutional challenge to the oral copulation law. Ragsdale was a prisoner in San Quentin and he and another prisoner had been caught engaging in consensual fellatio in their cell. Ragsdale argued that the premise for such a law merely was to encourage procreation and that the justification ended once someone was incarcerated.³⁷⁹ Judge Maurice Dooling rejected the argument, saying that no

authority is cited for the major premise and the making of unnatural sexual relations a crime is embedded in the history of the common law and finds its sanction in the broader basis of the settled mores of our western civilization. There is a considerable body of opinion that as between willing adults the question should be left to moral sanctions alone and eliminated from the criminal law. That however presents a legislative questions [sic] and not one for the courts. [Citation omitted].³⁸⁰

The 1960 case of People v. Rucker³⁸¹ was the result of a busybody who couldn’t mind his own business. Rucker and his consenting partner were enjoying sex with each other in a closed toilet stall when

[b]y looking through the opening beneath the bottom of a stall door, an elevator man working in the building observed the feet of two men in one of the stalls. He summoned three other men employed in the building, one of whom looked over the top of the stall partition and observed defendant committing the offense with another man named Smith. The police were called and defendant and Smith were restrained from leaving the stall until the police arrived.³⁸²

Nothing explains why the elevator man felt constrained to look under the door, or why the other felt constrained to look over.

In 1961, in People v. McFadden,³⁸³ an appellate court upheld the oral copulation conviction of a man for fellating a 15-year-old male spending the night with him. The young man testified that the act occurred against his will, but made no effort to cry out to another man asleep in the room to help him.³⁸⁴

The first crack in California law came in 1961 with the replacement of the vagrancy law with a "disorderly conduct" law.³⁸⁵ The old "vag-lewd" law disappeared, but was replaced by additional troublesome, albeit more specific, language. Anyone committing any of eight acts was guilty of a misdemeanor. Included were anyone

[W]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.³⁸⁶

Or

Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.³⁸⁷

This law still gave wide latitude to police to determine what conduct was "lewd or dissolute," but at least limited the authority to public places.

In early 1962, it was mentioned that there was "interest and discussion" about appointing a criminal code revision commission, but no action had been taken.³⁸⁸

A major victory occurred in the 1962 case of Bielicki v. Superior Court of Los Angeles County.³⁸⁹ The California Supreme Court unanimously granted the motion of Robert Bielicki that the Superior Court be restrained from trying him on a sodomy charge. Bielicki had been caught in a restroom by a police officer hiding in the roof at the request of the owners of the amusement park in which the restroom was located. The owner asked the police to "do something in regard to the homosexual activity going on inside the toilets."³⁹⁰ Officer Hetzel of the Long Beach Police Department vice squad spent a lot of time in the roof watching men in the restroom. He testified that he went there "a lot of times" every week and watched "[u]ntil we make an arrest, or until we see that we can’t make an arrest."³⁹¹ The searches and the resulting arrests all were without warrant.³⁹² Justice B. Rey Schauer, writing for the Court, found that the warrantless search was also unreasonable. Until he got into the roof space, Hetzel

had no reasonable cause to arrest these petitioners. He had no grounds for believing or even suspecting that they had committed or were then committing any crime, or that they were occupying the booths for anything other than a lawful purpose. Indeed, the officer testified that he had no prior knowledge of petitioners and had never seen them before looking through the pipe. According to the officer it was his practice "a lot of times" each week to climb up on the roof of the restroom, uncap the spypipe, and observe the occupants of the toilets below—i.e., whoever they might be. On each occasion, it will be remembered, the officer would remain on the roof "Until we make an arrest, or until we see that we can’t make an arrest." In so doing, he spied on innocent and guilty alike. [Emphasis the Court’s].³⁹³

Schauer concluded by saying that the authority

of police officers to spy on occupants of toilet booths—whether in an amusement park or a private home—will not be sustained on the theory that if they watch enough people long enough some malum prohibitum acts will eventually be discovered.³⁹⁴

The Court granted Bielicki’s petition and prohibited the State of California from trying him.³⁹⁵

Another case decided the same day, Byars v. Superior Court of Los Angeles County,³⁹⁶ led to another unanimous reversal of conviction of the same grounds as Bielicki.

A third very similar case led to an identical conclusion in Britt v. Superior Court of Santa Clara County,³⁹⁷ from later in 1962. Paul Britt had been arrested for oral copulation in an almost identical manner as had Bielicki, with police positioning themselves in the roof of a restroom to watch everyone’s actions in the stalls. In this case, however, Britt was filmed by Officer Nichols in the act of fellatio, and no warrant had been issued for the roof search.³⁹⁸ The state argued that Britt was distinguishable from Bielicki in that the vent in the roof had not been installed solely for spying purposes and that the toilets where Britt was caught were not pay toilets, as in the case of Bielicki. Justice B. Rey Schauer dismissed the claims and said

[n]either of these factual differences, however, is legally significant; the purpose for which officer Nichols used the vent was certainly not the purpose for which it had been installed, and it cannot be said that petitioner "impliedly" consented to such observation merely because the toilets could be occupied without paying a special fee.³⁹⁹

Schauer and his unanimous colleagues cloaked a right of privacy (three years before the U.S. Supreme Court pronounced it in Griswold) around individuals by saying that there was no

license to surreptitiously invade the right of personal privacy of persons in private places. Man’s constitutionally protected right of personal privacy not only abides in him within his own castle but cloaks him when as a member of the public he is temporarily occupying a room—including a toilet stall—to the extent that it is offered to the public for private, however transient, individual use.⁴⁰⁰

Schauer noted that Officer Nichols testified as to his operation in the vent. "Anyone who happened to come in I’d give a description [by radio] of who it was and where they were." Schauer concluded that this was a general search forbidden by the Constitution.⁴⁰¹

The California courts were not uniformly generous in this regard. The important distinction in these cases was raised in People v. Norton,⁴⁰² also from 1962, decided just a month after Britt. An undercover police officer hid in the restroom of a San Francisco theatre for the sole purpose of catching men in sex acts. Norton had been caught in an act of fellatio. The appellate court unanimously upheld his conviction, distinguishing his case from Bielicki. The toilet stalls were not enclosed and the court concluded that privacy rights did not attach to sexual activity therein.⁴⁰³

Another case, from 1963, was People v. Young,⁴⁰⁴ that followed Norton. Police hid themselves to look into a restroom, but Young and his partner committed fellatio in a stall that was not enclosed and therefore visible to anyone who walked into the room, so he lost out on his privacy claim. Curiously, Young told the arresting officers that

while he was waiting to pick up his wife he thought he would go into the restroom for the purpose of getting some relief sexually. When asked if he had been there before, defendant replied he had been there several times in the past.⁴⁰⁵

Meanwhile, a decision that effectively gutted all city ordinances dealing with sex and morals, In Re Lane,⁴⁰⁶ was handed down in 1962 by the California Supreme Court. The Court held that, since the legislature had enacted a broad range of sexual prohibitions, it was to be presumed that the legislature intended for those laws to preempt any and all city ordinances on the same subject. A later effort at an initiative to overturn this decision failed to get onto the 1966 ballot.⁴⁰⁷

In 1963, an appellate court decided People v. Earl,⁴⁰⁸ a case that sounds like something out of the earlier part of the century. Two men accosted servicemen in San Diego and offered to take them to a hotel for a rendezvous with female prostitutes. However, after getting them into the hotel, serviced them themselves. Police watched the men’s activities, followed them, and listened through the hotel room door to sounds "resembling a bed squeaking" and "kissing type" noises.⁴⁰⁹ The police looked through a transom and saw undressed men on the bed "embracing and kissing each other."⁴¹⁰ The police entered without a warrant and arrested the men for oral copulation, although they were not seen engaging in it. The appellate court found that the search was legal and upheld the conviction.

Also in 1963, in People v. Cantu,⁴¹¹ the Court of Appeals unanimously upheld the conviction of a man for oral copulation with a teenager for whom he pimped in Hollywood. The teenager, known in court records only as "Dennis," had been granted immunity from prosecution in exchange for his testimony.⁴¹²

A major overhaul to the psychopathic offender law was enacted⁴¹³ in 1963. The terminology used in the past was discarded, and these troublesome people now were called "mentally disordered sex offenders."⁴¹⁴ Added to the law was that the conviction of any misdemeanor, whether or not sexual in nature, could invoke the law against an offender.⁴¹⁵ Those already under the control of the state under the old psychopathic offender law would remain so under the new law,⁴¹⁶ and persons committed under the law now were required to pay for their confinement, regardless of its length or expense,⁴¹⁷ except for a portion required to be paid by the county which sent them there. The county’s portion was limited to a maximum of forty dollars per month.⁴¹⁸

Private, consensual activity with an experienced teenager was the subject of People v. Munton,⁴¹⁹ from 1963. Munton and seventeen-year-old William Wallace went to a motel for sex, but the jury acquitted Munton of those charges because they believed Wallace to be an accomplice, and his testimony had not been corroborated, as required by statute in California.⁴²⁰ He had been convicted on two other counts with Wallace, and one obviously non-consensual count with Richard Bailey. As a demonstration of both the abuse and uselessness of the psychopathic offender laws, Munton had been labeled "a probable sexual psychopath" by doctors appointed by the court. He was sent to a mental institution, where, four months later, he was sent back saying that he was not a sexual psychopath.⁴²¹

In late 1963, one trial judge in Los Angeles instituted a rule that all "convicted homosexuals" would be required to undergo blood tests for venereal disease. There were between 70 and 100 convictions per month in Los Angeles County alone under the 1961 disorderly conduct law.⁴²² Apparently, there was no challenge to this policy.

Two men were arrested in early 1964 in Yosemite National Park for engaging in sex in the park. They told the judge that they had heard it was a popular place for Gay men from California to go. The unnamed judge responded: "Yosemite is not a pansy paradise."⁴²³

Another case in which an open toilet stall proved to be, constitutionally speaking, the wrong place for two men to have sex was People v. Hensel,