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

Delaware

"The moral filthiness and iniquity against which the statute is aimed is the same in both cases."

 

The Colonial Period, 1607-1776

A Swedish colony was founded in Delaware in 1633, but it was not until twenty years later that a judiciary was created to operate the colony according to Swedish law.1 The colony nevertheless remained juridically unstable, with most rules of daily living conducted according to "common consent."2 In 1664, title to the colony passed to the English and, as part of Pennsylvania, Delaware operated under its laws.3 (See Pennsylvania for the sodomy law history). What now is Delaware separated from Pennsylvania in 1704 and enacted its own laws. Unfortunately, a large number of the earliest laws were lost.4 Whether a sodomy law was enacted upon the erection of Delaware as a separate colony is unknown.

However, a statute of 1719 attempted to clear up questions as to the status of the law, which apparently was as confusing then as now. A law called "An Act for the advancement of Justice, and more certain administration thereof"5 adopted the common law of England and provided that

if any person or persons shall commit sodomy, or buggery...he or they so offending, or committing any of the said crimes within this government, their counsellors, aiders, comforters and abettors being convicted thereof, as above-said, shall suffer as felons, according to the tenor, direction, form and effect of the several statutes in such cases respectively made and provided in Great Britain; any act or law of this government to the contrary in any wise notwithstanding.6

This law adopted the English death penalty for sodomy,7 but apparently did not end the confusion in Delaware over what laws were in effect and which ones were not. A statute of 17418 hinted at the problems with its preamble that the 1719 statute did "not clearly appear to have sufficiently provided for the manner of trial and punishment of petty treason, misprision of treason, murder, manslaughter, homicide, bestiality, incest and bigamy" and so added a provision that they were to be punished as in England.9 The inclusion of bestiality in this statute may mean that the terms "sodomy" and "buggery" were interpreted to cover only human contacts. Again, because of the problem of so many early Delaware laws being lost, it is unclear if there was a problem with the interpretation of the 1719 sodomy law that required a supplementary statute as well.

A statute adopted10 some time before 1741, but whose date of enactment was not preserved, provided for a compulsory sentence of death for a number of crimes, including "buggery" committed by "Negroes or Mulattoes."11

Period Summary: Because many of the early laws of Delaware are lost, much of its history concerning sodomy is unknown. Originally part of Pennsylvania, it broke away in a dispute and enacted its own code of laws. Fifteen years later, a sodomy law was enacted, although it isn’t known if this was a new law or a replacement for a now-lost earlier one. It followed English law and prescribed the death penalty for any act of sodomy.

The Post-Revolution Period, 1776-1873

In 1826, a statute was enacted12 to revise criminal law in the state. The sodomy law was changed to reduce the penalty from death to a maximum of three years’ solitary confinement in prison, a fine of $1,000, and a public flogging of up to 60 lashes "on the bare back well laid on."13 This law also eliminated the separate reference to "Negroes or Mulattoes."

In a new code adopted in 1852,14 the sodomy law was put under the chapter "Of offences against religion, morality and decency,"15 the penalty was changed by substituting one hour in the pillory for the lashes, and the requirement that the imprisonment be in solitary confinement was eliminated. The three-year imprisonment and the $1,000 fine remained.16

Period Summary: During this time there are no published sodomy cases and only two statutory changes. Following the trend in the post-revolution period, Delaware did eliminate the death penalty for sodomy. It replaced it with what would remain the most lenient incarceration penalty in the nation for more than a century, a maximum of three years in prison. However, Delaware added a provision permitting the flogging of a person convicted of sodomy, something allowed in only a very few jurisdictions. Before the Civil War, the flogging provision was replaced by time in the pillory, an archaic form of punishment that Delaware retained into the 20th century.

 

The Victorian Morality Period, 1873-1948

I. Sodomy

A statute of 190517 abolished the use of the pillory in the state for all crimes.

The first reported case under the statute, State v. Maida,18 decided in 1915, had to determine if fellatio constituted a "crime against nature." The Court of General Sessions, composed of two members of the Delaware Supreme Court, reviewed earlier cases and agreed with the decision of the Oregon Supreme Court that found fellatio to be covered by the term.19 The Delaware court added that it was

self-evident that the use of any unnatural opening for sexual copulation is against the design of the human body, and that an unnatural coition takes place in annum [sic] or in os, as [sic] the moral filthiness and iniquity against which the statute is aimed is the same in both cases.20

The Court also agreed with a North Carolina decision that fellatio would have been recognized by courts earlier if the act had "prevailed" in the days of the early common law.21 These two cases were "convincing" and that, coupled with no stated limitation of the Delaware statute, led the court to say that fellatio could be prosecuted in the state.22

More successful was a case in the same court in 1918 questioning whether solicitation for an act of sodomy could be prosecuted as an attempt to commit the act. In State v. Wimer,23 the court noted that the indictment charged defendant Wimer with "devising and intending...to vitiate and corrupt the morals of one Joseph Ford, and to stir up and incite in his mind filthy, lewd and unchaste desires and inclinations[.]"24 The court felt that the indictment for a solicitation does not "in any way" allege an overt act, and could not stand.25

A supplemental statute of 192326 prohibited the granting of probation to any person convicted of sodomy.27

A medical journal article28 published in 1947 detailed the state of Delaware’s actions toward a precocious, promiscuous, and sexually aggressive teenage male, who was the subject of the article at age nineteen. At fourteen, the subject

became aggressively homosexual in the class and became an annoyance to teachers and pupils. The teacher stated that his homosexuality was not of the usual type, seen in boys and girls during the puberty phase. They rather complained that he, in a most aggressive manner, pursued and persuaded boys to use him as a passive partner in regular homosexual practices. It became necessary to commit him to the Ferris Industrial School.29

While at the industrial school

his homosexual conduct with other boys caused difficulties and he was finally placed in sleeping quarters in which he could not have contact with other boys at all. His homosexual urges became so persistent that it became practically impossible to manage him since he undermined the morale of the group of other boys.30

His parents took him out of the school and returned him home where they "attempted to interest him in a gainful occupation." However, he quickly was picked up by police on a charge of falsely soliciting for a charity and was jailed, apparently briefly. He then

got from one trouble to another and decided to leave his home and went to New York City. He worked around hotels and restaurants and he soon developed a commercial pattern of homosexual prostitution[.]"31

After being arrested for his sexual activities with servicemen in New York, the patient was sent to a mental institution in Delaware. He was found to be a psychopathic personality and it was found to be a negative characteristic that he was

proud of his ability to attract the attention of other men. On one occasion he said: "It gives you a thrill to walk around Times Square, watch the crowds, to pick your man and make him."32

As far as his "treatment" was concerned, in

view of his youth, one may consider lobotomy as a somewhat desperate attempt to change present personality patterns.33

II. Sterilization

In 1929, Delaware amended its existing sterilization law34 to add all "habitual or confirmed criminals who have been convicted of at least three felonies" either in federal or state court, either inside Delaware or elsewhere, if their criminality was considered due to mental abnormality.35

Period Summary: The pillory provision of the sodomy law was eliminated when the pillory was outlawed as a punishment early in the 20th century. Delaware, unlike most states, did not use the term "crime against nature" for its sodomy law, and a state court interpreted "sodomy" to embrace fellatio. However, solicitation for sodomy was ruled not to be an attempt to commit the act. The medical journal article abstracted above reveals how the state may have dealt with sodomy law violators and this may be one reason for the sparse case law in the state. Delaware became one of a handful of states to outlaw probation for those convicted of sodomy, and was one of the two-thirds of the states in enacting a sexual sterilization law. The law covered only those convicted of three or more felonies and who evidenced "mental abnormality." Sodomy remained a felony throughout this time, so if a court found those engaging in it to be mentally abnormal, they could be sterilized sexually.

The Kinsey Period, 1948-1986

In 1954, the Superior Court of New Castle County published a trial record in State v. Kehm et al.36 Two men had been enjoying sex with each other in a parked car spotted by detectives "in a suspicious location." Upon the shining of a flashlight into the car’s windshield, two heads popped up and the car started off at a fast rate. When the car was stopped, the arresting officers noted that both defendants’ trousers were open "to the extent of fully exposing themselves."37 The defendants moved to dismiss the charges because of lack of proof of corpus delicti.38 Judge Caleb Layton found them guilty, with the open trousers one of the evidence clinchers. (Why they didn’t zip up during the chase and thereby remove one piece of evidence certainly is a mystery). Before pronouncing a guilty verdict against each defendant, Layton expressed a regret that he had to find them guilty because

in my opinion, these two men are not so much criminals as mentally ill. However, under the present state of the law, I can make no other disposition of the matters.39

In 1961, a massive police investigation in the Wilmington and Newark areas led to the arrest of 15 Delaware men. The police were sufficiently intimidating that Delaware attorneys reported being fearful of defending the arrestees because of possible police reprisal.40 Men who were arrested were required to name other names, were taken from their jobs without notice to employers, leading to many firings, and were filmed in their "actions and conversations" at the police station.41 James Short, one of those arrested, attempted to implicate a state trooper, and it was felt that the numerous charges filed against him were in retaliation for that.42

This witch hunt led to the final reported sodomy case in the state, and the only one from the Delaware Supreme Court, Short v. State,43 decided in 1962. James Short, alluded to above, had been convicted on ten counts of consensual sodomy with three different individuals. He was sentenced to 18 months in prison and a fine of $50 on the first count and, amazingly considering the maximum penalty in the state, only to $50 for each of eight other counts, plus court costs. He also was ordered to undergo psychiatric treatment. On the tenth count, he had been sentenced to three years’ probation.44 Short filed a motion to have his sentence reduced because the trial court had erred in sentencing him to probation on the one count, since the 1923 law barring probation for sodomy still was in effect.45 Short claimed, therefore, that he would have to spend the three years in prison instead. The Court dismissed the appeal because "there is nothing in the record on appeal to support defendant’s contentions that the Court below abused its discretion[.]"46 In other words, courts could ignore the statutory ban on probation.

In 1964, Delaware passed a new law47 that made the practice of probation legal by eliminating the ban on it for those convicted of sodomy.48

A comprehensive criminal code revision of 197249 redefined sodomy so as to exclude consensual acts50 and set the age of consent at 16.51 Retained as criminal were loitering, which included "soliciting another person to engage in sexual intercourse or deviate sexual intercourse" in a public place;52 and "lewdness," which included "any lewd act in any public place" which was "likely to be observed by others who would be affronted or alarmed."53

Despite repeal of the sodomy law, some erotic activity still got the police all bent out of shape. In 1975, a Gay student at the University of Delaware reported that he had been walking with another man, holding his hand, when a police officer

stopped us and—slapping his nightstick in his hand—said ‘Let go’. I asked why and he admitted he couldn’t stop us unless he received a complaint. Then he said something about women and children.54

II. Sterilization

Through the end of 1948, a total of 783 sterilizations had been performed in Delaware, with it being the highest per capita sterilization state in the nation for the last five years of the study.55 Only 26 of these sterilizations, or 3% of the total, were of persons other than the insane or mentally retarded, showing that the provision for habitual criminals largely was disregarded.56

Period Summary: This small state produced very few published sodomy cases, but the last, from 1962, revealed that, even in small states and small cities, police enjoyed entrapping Gay men. This same decision revealed that the state’s law against granting probation to those convicted of sodomy was ignored frequently by trial courts. Two years later, the seemingly useless law was repealed. Delaware was the sixth state to repeal its sodomy law, doing so in a new criminal code enacted in 1972. Statistics show that sterilization in Delaware was common, it being the highest per capita state in the nation in utilizing its sterilization law for several years through 1948. Only a very small number of those sterilized were because of criminality, but the statistics do not reveal what types of crimes led to sterilization orders.

The Post-Hardwick Period, 1986-Present

In 1986, a law57 outlawed "sexual harassment," which included solicitation that the offender knew would "cause annoyance, offense or alarm" to the solicitee.58

An aborted attempt to reinstate the sodomy law, to apply only to people of the same sex, was announced and withdrawn in 1987. The Speaker of the Delaware House, B. Bradford Barnes, was forced into a "tearful apology" on the floor of the House after harsh condemnation of his proposal by health officials and fellow legislators.59

In 1989, the sexual harassment law was amended to reduce the penalty from a Class B misdemeanor to an unclassified misdemeanor.60

II. Sterilization

The sterilization law still is on the books.61

Period Summary: During one of the period times in the AIDS crisis when public hysteria is fanned, a leading legislator proposed reinstating consensual sodomy as a crime. That motion failed when overwhelming public opposition condemned it. The sterilization law enacted in the 1920s remains unchanged and on the books, one of only two non-therapeutic laws not repealed. It is not known if the law continues to be used, or against whom.


Footnotes

1The Earliest Printed Laws of Delaware 1704-1741, (Wilmington:Michael Glazier, Inc., 1978), page vii.

2 Id.

3 Id.

4 Id. at viii.

5 Laws of the State of Delaware 1797, Vol. I, (New Castle DE:Samuel and John Adams, 1797), page 64.

6 Id. at 67, 5.

7 5 Eliz. c. 17.

8 Laws of the State of Delaware, ante, at 225, ch. LXXXIVa.

9 Id. at 226.

10 "An Act for the Tryal of Negroes," The Earliest Printed Laws of Delaware 1704-1741, (Wilmington:Michael Glazier, Inc., 1978), pages 65-68.

11 Id. at 66.

12 Laws of the State of Delaware 1826, page 708, ch. CCCLXII, enacted Feb. 8, 1826.

13 Id. at 727, 20.

14 Revised Statutes of the State of Delaware to the Year of Our Lord One Thousand Eight Hundred and Fifty-Two, Inclusive, (Dover:Samuel Kimmey, 1852), enacted Feb. 20, 1852.

15 Id. at 484.

16 Id. at 485, 7.

17 Laws of Delaware 1905, page 458, ch. 213, enacted Mar. 20, 1905.

18 96 A. 207, decided Oct. 11, 1915.

19 Id. at 208.

20 Id.

21 Id.

22 Id.

23 103 A. 752, decided May 14, 1918.

24 Id.

25 Id.

26 Laws of Delaware 1923, page 628, ch. 220, enacted Apr. 5, 1923.

27 Id. 3608L, 12L.

28 F.A. Freyhan, "Homosexual Prostitution: A Case Report," Delaware State Medical Journal, 19:92-94 (May 1947).

29 Id. at 93.

30 Id.

31 Id.

32 Id. at 93-94.

33 Id. at 94.

34 Laws of Delaware 1929, page 742, ch. 246, enacted Apr. 10, 1929.

35 Id. 5.

36 103 A.2d 781, decided Mar. 9, 1954.

37 Id. at 781-782.

38 Id. at 782.

39 Id. Layton was elevated to U.S. District Court by President Eisenhower in 1957.

40 Mattachine Review, July 1961, page 4.

41 Id. at 27.

42 Id.

43 181 A.2d 225, decided May 4, 1962.

44 Id. at 225-226.

45 Id. at 226.

46 Id. at 227.

47 Laws of Delaware, Vol. 54, page 1073, ch. 349, enacted July 8, 1964.

48 Id. at 1104, 4346.

49 Laws of Delaware, Vol. 58, ch. 497, enacted July 6, 1972, effective Apr. 1, 1973.

50 Id. at 1665-1666, 766.

51 Id. at 1665, 761 (3).

52 Id. 1321.

53 Id. 1341.

54 Philadelphia Sunday Bulletin, June 1, 1975 (no page citation given), reprinted in Aumiller v. University of Delaware, 434 F.Supp. 1273, at 1313 (Appendix A).

55 Moya Woodside, Sterilization in North Carolina: A Sociological and Psychological Study, (Chapel Hill:University of North Carolina Press, 1950), pages 194-195.

56 Id.

57 Laws of Delaware, Vol. 65, page 940, ch. 494, enacted July 9, 1986.

58 Id. at 941, 763.

59 Washington Blade, May 15, 1987, page 7. The bill never actually was introduced and Speaker Barnes died the same year. (Correspondence from Delaware Legislative Council, n.d., postmarked Mar. 15, 1997).

60 Laws of Delaware, Vol. 67, ch. 130, effective June 30, 1990.

61 Delaware Code Annotated, Title 16, 5703.


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