Last edited: August 11, 2004
The Colonial Period, 1607-1776
Connecticuts charter granted by King Charles I in 16381 provided that laws adopted by the Connecticut authorities could not be inconsistent with those of England.2 As a result, the common law of England was adopted informally upon Connecticuts organization in 1639.3 This recognized sodomy as a capital offense for males only.
A sodomy statute was enacted in 16424 paraphrasing Leviticus 20:13. "If any man lyeth with mankind as hee lyeth with woman, both of them have committed abomination, they both shall surely be put to death" and citing Leviticus as its authority.5
Apparently under this statute, one William Plaine of Guilford was executed in 1646 for masturbating a number of young men in the town.6 He also had committed sodomy in England twice, although it is unclear if Plaines execution was only for the masturbatory acts or for those as well as the sodomy in England. In either case, it is questionable whether the execution was lawful. The statute did not contemplate masturbation and the Connecticut courts would have no jurisdiction over offenses committed in England.
In a case from 1653, six young males in New Haven were sentenced to a public flogging for "much wickedness in a filthy corrupting way" with each other.7 Their acts were "of such a filthy nature as is not fit to be made known in a public way[.]"8 Again, it is unclear that there was a statute authorizing such punishment for the unspecified acts.
In 1655, a servant named John Knight was executed for sodomy with both males and females. The sexual activity obviously was consensual, and Knight apparently was very popular with both young males and young females in the New Haven colony, since they gave themselves willingly to him, but the act for which he was condemned was sodomy with the 14-year-old son of his master. The trial court found Knight to be
The town of New Haven enacted a statute in 165610 authorizing a penalty of death for sodomy as well as for any woman who shall "change the natural use, into that which is against nature."11 No other law was enacted against female-female conduct in the colonial era, and it is unknown if there ever was a prosecution under this statute. The law remained in force until New Haven was annexed by Connecticut in 1665.
A new statute enacted in 167212 for the first time exempted victims of sexual assault and partners under 15 from the death penalty.
A sodomy case in 1677 revealed the ambivalence of colonial courts to enforce the death penalty that continued to be prescribed by statute. Nicholas Sension, a prominent resident of the town of Windsor, was tried under the statute of 1672 for a series of acts of sodomy and attempts spanning some 30 years.13 The testimony against Sension, a married man, was given by 15 different men who either had witnessed Sensions attempts or acts, or who had been solicited by him. Sension had been confronted privately by individuals about his behavior a decade before his trial, and was sentenced in 1677 only to good behavior for the rest of his life.
The Post-Revolution Period, 1776-1873
In 1776, the Connecticut legislature decided that all existing laws would continue in force, despite independence from England.14
A Connecticut court decided in 1786, in Wilford et al. v. Grant,15 that courts were to give "great deference" to the English common law, calling it "a general system of improved reason." Rules of the common law that were not carried to the Americas with the first English colonists should be adopted only if not "contrary to reason" or "unadapted to our local circumstances."16
In 1811, in Fowler v. State,17 the Connecticut Supreme Court unanimously decided, in dictum, that the states law against "lascivious carriage and behavior" applied only to conduct between people of the opposite sex,18 a decision that would come back to haunt the state a century-and-a-half later.
In 1821, the legislature adopted a new criminal code19 that made three major changes to the sodomy law.20 First, the death penalty was replaced by a mandatory sentence of life imprisonment.21 Second, only males could be victims of an act of sodomy, but the perpetrator could be of either sex.22 Third, the wording was changed to read that "every person who shall have carnal knowledge of any man, against the order of nature" could be prosecuted.23 Although this raised the question of whether a boy could be a victim, since he was not a "man," it more clearly created a much broader law that allowed the prosecution of fellatio as well as anal penetration. Thus, Connecticut was, for nearly a half-century, the only state in the nation to include fellatio as a criminal offense.
The Victorian Morality Period, 1873-1948
The only reported sodomy case in the state, Mascolo v. Montesanto,24 was decided by the Connecticut Supreme Court in 1891. This case answered one of the questions posed above, namely, that boys could be victims of sodomy. The case actually was not a criminal prosecution, but an action for damages for an act of sodomy between two juvenile males as prosecuted by their fathers. The father of the defendant had promised to pay civil damages in exchange for his son not being criminally prosecuted.25 The boys involved were Achille Montesanto, 15, and Angelo Mascolo, 12. Montesanto "had committed buggery upon and with, said Angelo Mascolo, and that in the commission of the assault he had greatly injured him, and communicated a loathsome disease to him, whereby he became sick and disabled[.]"26 Despite the civil suit, officials notified Montesantos father that his son "might be liable to a criminal prosecution for the offense" and that the settlement of the civil case would not immunize the young Montesanto from criminal proceedings.27 Whether or not he was prosecuted later is not known.
Connecticut, which replaced its death sentence for sodomy with a compulsory life sentence, reduced the penalty again, but retained a severe penalty. In 1909, a new statute28 was adopted that reduced the maximum penalty from life to 30 years in prison.29 The unique wording that only males could be victims was retained.
In 1913, following national publicity of an Oregon sex scandal, investigations were launched elsewhere in the country. In the city of Mystic, seven of the "most prominent citizens" were arrested on charges of sex between males.30
A broadly worded statute of 191931 outlawed "lewdness," which was undefined under the law. This new prohibition later would be of significance.
The Kinsey Period, 1948-1986
In 1956, a survey of Connecticut legislators by researchers at Yale revealed that 57.5% of them opposed lowering the 30-year maximum sentence for sodomy.32
Connecticut enacted a psychopathic offender law33 in 1957. The law applied to anyone convicted of a sex crime under three circumstances, including the showing of a "disparity of age between an adult and a minor," with the disparity unspecified;34 or if the sexual act was "of a compulsive or repetitive nature."35 This last section was broad enough to cover any Gay man or Lesbian who enjoyed more than a single act of sodomy.
A case of "homosexual panic" was the substance of State v. Fenster,36 from 1962. Max Fenster met a sailor who caught his eye while in a bar. The sailor agreed to go for a ride with him, but when Fenster exposed himself in the car and made a sexual suggestion, the sailor
Fenster was accused of "lascivious carriage or behavior" as well as making a false report to the police, since he omitted his cruising in his report.38 Fenster claimed that the statute under which he was committed applied only to heterosexual behavior. The appellate court gave a detailed review of the legislative history of the law and quoted from 1811 Fowler case that referred to the law as covering acts "between different sexes."39 Reluctantly, the court unanimously decided that the law did cover only heterosexual activity, and remanded that portion of the case to the trial court for an adjudication of not guilty. The false report conviction was upheld, however.40 On appeal to the Connecticut Supreme Court,41 Fenster won another unanimous decision, this time overturning his false report conviction. The brief, unsigned opinion of the court noted that the state "has failed to defend with proper diligence against the appeal of the defendant" and ordered the second charge dismissed.42 Nothing in the opinion suggests that the unnamed sailor ever was prosecuted for his assault and theft.
In 1964, in State v. Trombley,43 an appellate court upheld the "lewdness" conviction of a Gay man for soliciting an undercover police officer. Ralph Trombley had been sitting in a car in New Haven and was spotted by the officer who was doing vice duty. The patrol was authorized because the police
Trombley told the officer that he was waiting for a friend "to have an unnatural act performed," then asked the officer if he would be willing to perform the unstated act.45 He then was arrested. Trombley claimed that his verbalization was not "lewdness," since there was no overt act. However, the court noted that the law including invitations for lewdness46 and rejected an entrapment defense47 in upholding the conviction.
At a late 1967 concert, Jim Morrison, lead singer of The Doors, was arrested in New Haven after he recounted to a concert audience what transpired before the show began when he was maced by a police officer. Morrison had grabbed his crotch and told the officer to "eat it."48 After his arrest, he was called a "long haired pretty boy" and was charged with "indecent or immoral exhibition."49 The charge was dropped after considerable negative publicity to the city.50
In a 1968 case, State v. Pallman,51 an appellate court decided that the intentional exposure of a genital organ to one person in that persons home took place in a "public place" under the states indecent exposure statute.52
A legislative commission reports of 1967 and 1968 recommended repeal of the sodomy law because it "deterred deviates from seeking psychiatric help" and it "was enforced only by capricious selection, which encourages blackmail." The reports were considered certain to draw controversy when presented to the 1969 session of the legislature.53
Controversial or not, the comprehensive criminal code revision enacted in 196954 abrogated common-law crimes55 and repealed the sodomy law with the age of consent set at 16.56 The new code included a public indecency law that covered "a lewd fondling or caress of the body of another person" in any public place, which was defined as "any place where the conduct may reasonably be expected to be viewed by others."57 The conduct had only to be "viewed" by others. It did not have to alarm or offend them. So, a caress in a Gay bar would be criminal, even though no one in the bar was likely to complain.
In 1970, the Commissioner of Motor Vehicles, John Tynan, denied a drivers license to David Follett, who was Gay, and who had been arrested on a sex charge.58 Tynan denied the license because Follett
A survey of legislators nearly a decade after the first Kinsey report showed strong resistance to amelioration of the penalty for consensual sodomy, most likely reflecting actual or perceived constituent opposition. The "lewdness" statute was used to prosecute a man for requesting a police officer to perform an unspecified "unnatural act." This shows that, at least by the 1960s, the lewdness law was used to prosecute a broad range of behavior. Despite its long history of prosecution of sodomy, Connecticut became only the second state in the nation to repeal its sodomy law, doing so in 1969 just at the time of the Stonewall Rebellion.
The Post-Hardwick Period, 1986-Present
In 1989, in Grunberg et al. v. Town of East Hartford, Connecticut et al.,64 a federal judge upheld a city ordinance requiring the removal of doors from viewing booths in adult book stores. That decision was upheld on appeal.65
The public indecency provision remains on the books.66
Connecticut is among the unbroken string of states with court cases upholding the right of government to require viewing booths in adult book stores to be doorless.