Last edited: August 10, 2004
The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
"The creatures who are guilty are entitled to a
consideration of their case because they are called human beings and are
entitled to the protection of the laws."
The Post-Revolution Period, 1776-1873
After purchase by the United States from Spain, the Territory of Florida
was created in 1822 and all laws in force in Florida at the time of the
organic law were retained.1
Later that year, Florida enacted a law2 that
adopted the common and statute laws of England in their entirety as they
existed on the date of the Jamestown settlement, an act that made consensual
sodomy a capital offense in the state.
In 1823, the law was ameliorated by limiting the penalty for a common-law
offense to a year in prison or a fine of $500.3
This law was repealed in 1828,4 thus
legalizing sodomy in the state.
In 1829, the common-law reception statute was reenacted,5
with the same penalty limitations as in the 1823 law. However, research on
this issue revealed that the English buggery laws were not received
with this statute.6
The Territory enacted a criminal code in 1832.7
The new code made no mention of sodomy, but continued to recognize common-law
crimes.8 The penalty for a common-law crime was
limited to a maximum of one year in the penitentiary, or a fine of up to $500,
but not both, "in the discretion of the jury."9
As revealed by a portion of the next statute, the Florida legislature did
consider this common-law statute to include sodomy.
In 1842, Florida enacted its first sodomy law10
and decided to be harsh. The common-law crime section of the 1832 code was
repealed "so far as it conflicts with this act."11
The conflict was created because the new sodomy provision read that
any person, who shall commit buggery or sodomy with either human being
or beast, shall be adjudged guilty of felony and shall suffer death.12
Florida thus became the first jurisdiction in the United States in 123
years to make sodomy a capital offense other than by adoption of the common
This death law remained on the books until a comprehensive criminal code
revision was enacted in 1868.14 The new sodomy
provision15 established a maximum penalty of 20
years in prison and renamed the crime "the abominable and detestable
crime against nature."16
Also included in the new code was a vagrancy law that included "lewd,
wanton, and lascivious persons in speech or behavior."17
Anyone found in a public place "committing any of the offenses or
disorders" listed in the law could be arrested by anyone, including
private citizens, without a warrant and kept in custody up to 24 hours before
arraignment, at which point a magistrate would decide whether or not to
Period Summary: Florida relied heavily on the English common law
for its sodomy law. For its first two decades under United States
jurisdiction, it had no sodomy law, but recognized common-law crimes. When
it enacted its first sodomy law in 1842, Florida specifically amended the
last enacted common law reception statute to exclude sodomy from its
grasp, showing that sodomy was recognized under it. It was not explained
why the law on the subject made sodomy a capital offense, nor is it known
if the death penalty ever was enforced for it. The new code of 1868, that
replaced the death penalty with a 20-year maximum prison term, continued
to use the common-law term "crime against nature" without any
definition of the term.
The Victorian Morality Period, 1873-1948
The vagrancy law was amended in 1905.19 The
new arrest procedure was that warrants were recommended, but warrantless
arrest was permitted if the alleged vagrant could escape capture without it.
This time, a speedy trial was guaranteed and a penalty of up to six months in
prison or a fine of up to $250, but not both, was enacted.20
In 1917, Florida enacted a supplemental statute21
prohibiting "unnatural and lascivious" acts. The penalty was set at
a maximum of six months in prison and/or up to $500 in fines.22
A section of the law stated that it was not to be construed so as to repeal
the crime against nature law.23 Although this
new law may have been aimed at fellatio and cunnilingus, the states first
reported sodomy case made it unnecessary.
That case was Ephraim et al. v. State,24
from 1921. Ephraim had been arrested for apparently consensual fellatio with
another male under the "crime against nature" law and challenged the
prosecution on the ground that fellatio was not a crime against nature.
Deciding otherwise, the Florida Supreme Court, speaking through Justice
William Ellis, who obviously was uncomfortable with oral sex, said that a
discussion of the loathsome, revolting crime would be of no edification
to the people, nor interest to the members of the bar. The creatures who
are guilty are entitled to a consideration of their case because they are
called human beings and are entitled to the protection of the laws.25
Ellis then noted that the penalty of death had been prescribed under the
common law (he made no reference to Floridas own 1842 capital sodomy law,
apparently unaware of it), but that the penalty in modern times had been
modified. The reasoning for this was
not that the crime is less repulsive now, but perhaps out of humane
consideration for the creatures whose low moral and intellectual standard
entitles them to a kind of pity.26
Ellis then stated flatly that the "unnatural and lascivious act"
statute "does not apply to cases like the one under consideration."27
The standard "crime against nature" law would do the job.
The next reported case involved Ephraims co-defendant. In 1922, in Jackson
v. State,28 the Supreme Court again ruled
that fellatio was indictable under the crime against nature statute.29
In 1929, in Drawdy v. State,30 the
Florida Supreme Court, sitting In Department, and again speaking through
Justice Ellis, decided that "the unmentionable crime"31
did not require emission to complete the crime.32
The first victory in a sodomy case came in 1932 in Blameuser v. State.33
A Department of the Florida Supreme Court decided unanimously that the
defendant could not have been guilty of sodomy because he
was shown to be of high character and good reputation in the community
where the putative crime was committed, and barely knew the boy, who did
not reveal to any one the facts on which the information was predicated
for more than one year after their alleged commission.34
"[N]o reasonable basis" existed for the conviction because
the evidence was indefinite, inconclusive, and unsatisfactory as to
every material element of the charge, and the motivating influence which
is said to have actuated it was contrary to every normal human impulse.35
In the 1935 case of English v. State,36
the Florida Supreme Court ruled unanimously that an information charging a
defendant with committing "the abominable and detestable crime against
nature per os" was sufficient.37 The Court
optimistically believed that the Latin words
"per os," while not being in the English language, have a
generally recognized meaning, just as the words "per centum"
have a generally recognized meaning amongst English speaking people[.]38
The case of Lason v. State39 was
decided in 1943. A Department of the Florida Supreme Court decided,
unanimously, that cunnilingus was a "crime against nature." This
case was the second one in the United States in which the common-law term
"crime against nature" was held to include cunnilingus. In this
case, a man was prosecuted for acts of cunnilingus and fellatio with girls.
Lason testified in his trial that he was
seventy-six years of age; that he had not experienced an erection in
many years, but that on several occasions he had indulged in venereal
affairs with each of the girls named in the information when both girls
were present; that in accomplishing these affairs he had licked and
extended his tongue into the genital orifice of each of the girls and had
allowed and permitted each of the girls to take his sexual organ into her
mouth, the result of which he testified was "pleasurable."40
Justice Rivers Buford, a former Attorney General of the state, wrote the
opinion, using some rather shocking language, reprinted below, grammatical
nightmare that it is, without editing. Buford believed that the question was
whether the sodomy law included
the action of a 76 year old, aged Indian War Veteran, feeble physically
and mentally, in, after having met the two girls of 11 and 13 years of age
who solicited him, went to his residence and there they both get on the
bed, pull up their dresses and drop down their panties, when he in turn on
his back in the same bed allowed them to diddle with his rag-like penis,
unerectable, lifeless and useless except to connect the bladder with the
outside world for more than six years since the death of his wife, utterly
incapable of either penetration or emission, and wad it like a rag into
their mouths, and then, in a feeble and aged condition impelled by the
irresistible impulse, in turn he would kiss and put his tongue in their
little, though potentially influential and powerful vaginas?41
After this ageist and gratuitously vulgar question, Buford decided that the
answer was yes. Referring to the Ephraim and Jackson decisions
on fellatio, the Court nevertheless gave no reasoning as to why cunnilingus
also was a violation of the law.42 The Court
rejected Lasons argument that anal penetration had to be proven. Although
Lason did not raise any health-related arguments, the Court answered his point
by saying: "It is sufficient to say here, however, that all unnatural
forms and methods of coitus have proven themselves detrimental to both health
A few months later in 1943, another Department of the Florida Supreme Court
decided the case of Fine v. State.44
This case was another one involving an older man performing cunnilingus on a
girl. The Court conceded that they
have experienced some difficulty in determining precisely what
unnatural sexual acts do, and what do not, constitute the crime. This is
largely due to the reluctance legal authors have shown to detail the facts
they were considering, because they are always so shocking.45
The Court, in reviewing Florida case law, determined that the law was
interpreted to include "odious sexual relations not originally considered
a commission of the crime against nature."46
It could not see any difference between fellatio and cunnilingus. Both were
abominable and detestable; both offend natures laws, both,
doubtless, spring from a depraved sexual desire. The base immorality
displayed in either case justifies any punishment which may be meted out
under the law. At one stage in the progress of Anglo-Saxon jurisprudence
the penalty was burning or burying alive.47
Thus, the Court was saying that, if the death penalty for consensual sodomy
were reinstated, it would pass constitutional muster.
Period Summary: Florida broadened its sodomy law coverage with a
World War I-era statute outlawing "unnatural and lascivious
acts." This law contained no more definition than did Floridas
still-viable "crime against nature" law. The new law set the
penalty for the undefined acts as a misdemeanor, whereas the crime against
nature law set felony penalties. When the first case dealing with fellatio
reached the Florida Supreme Court, the law outlawing "unnatural and
lascivious acts" was relegated to insignificance. The Court said that
fellatio was a "crime against nature," which could receive a
20-year prison term, something clearly more to the liking of the Court
that had referred to the men arrested for fellatio as
"creatures." Later, cunnilingus was found to be included in the
felony statute and the Florida Supreme Court stated that death would not
be too extreme a penalty to pay for sodomy.
The Kinsey Period, 1948-1986
In 1954, the Florida Supreme Court, in the case of McElveen et al. v.
State,48 divided 5-2 to uphold a sodomy
conviction. Justice Elwyn Thomas opened his extremely brief opinion with a
paraphrasing of the Wisconsin Supreme Courts 1905 quote (q.v.).
Thomas said that the Court would not
soil the pages of our reports with the details of the sordid crime
which these defendants confessed they committed.49
The only information that gives a clue as to the facts of the case was that
position of the men when discovered by the police, the condition of
their bodies, the nature of their clothing, and their location in a
secluded spot at one or two oclock in the morning tended to show that
the crime charged was committed.50
In dissent, Justice E. Harris Drew claimed that "[m]uch more is
involved here than the guilt or innocence of two mature men charged with a
repulsive crime."51 Drew believed that the
evidence only showed that the appellants may have committed the crime
(emphasis is Drews).52
Florida enacted a psychopathic offender law in 1955.53
The law permitted the examination of any person convicted of any criminal
offense who was a criminal sexual psychopathic person.54
If adjudged a psychopath, the person so adjudged was forever immune to
criminal prosecution for the crime prosecuted.55
This law was axed by a court on the curious grounds that its title and subject
matter seemed to be in conflict and the law was therefore
"insufficient" to let the legislature and public know exactly what
was in it, in violation of the Florida Constitution, (i.e., unconstitutionally
One of the few victories for a defendant in a Florida sodomy case came in
1956 in Floyd v. State.57 In this case,
in which a jury trial had been waived, the trial court returned a verdict of
guilty before the defense even had rested its case. By a vote of 6-1 the
Florida Supreme Court found that, as a result, Floyd "did not have a full
and complete fair trial, nor did he have due process[.]"58
The psychopath law was repealed in 195759
and replaced by a new law60 defining a
psychopath, including the addition of a requirement that the person be
"dangerous to others."61 Another
provision stated that the law was civil in nature, not criminal.62
A law review article published in 195963
analyzed the Florida sodomy law. The article noted both the laws vagueness
and the tendency of the Florida courts to moralize about the law.64
The article endorsed the decriminalization of consensual sodomy between
adults, regardless of gender.65
One hole in the operation of the sodomy law in Florida was opened by the
states Attorney General in 1960. An opinion was issued66
that effectively blocked the laws enforcement on the states Indian
reservations. Interpreting federal law literally, the opinion stated that
crimes committed between Indians, or between Indians and non-Indians on
reservations were under tribal court jurisdiction, except for 10 crimes
specified by federal law as under federal court jurisdiction. Sodomy was not
one of the ten, so if the particular Indian tribe had no law against it,
sodomy would be legal between Indians or between an Indian and a non-Indian.67
An act of sodomy on a reservation between two non-Indians, however, would fall
under the jurisdiction of state law.68 Indians
committing sodomy off the reservation also would be liable to prosecution
under state law.69
In the 1965 case of Swain v. State,70
an appellate court decided that "lewd, lascivious or indecent assault or
act upon a child" was a lesser included offense under the crime
Also in 1965, a conviction was overturned in Andrews v. State.72
The Court of Appeals found that the trial judges refusal to strike
testimony that the defendant had been discharged dishonorably from the
military for being Gay to have been prejudicial.73
In late 1965, it was discovered that police in Tallahassee had been using
"college boys" as "bait to trap homosexuals." The students
had been paid $10 each for their part-time work. The dean of students and the
Governor of Florida both condemned the policy.74
In 1966, in State v. Coyle,75 an
appellate court upheld the sodomy conviction of a man for consensual sex in a
restroom. The court found that it was
a matter of common knowledge that public restrooms, provided as a means
of accommodation of the public for purposes intended, are often selected
by persons of sick or depraved minds as favorite locales for perpetration
of indecent or illegal acts. Without proper police vigilance, perverts and
criminals could turn more and more to such facilities, particularly those
in populous areas, as retreats or trysting places for commission of crime.76
In Delaney v. State,77 from 1966, the
Florida Supreme Court split 4-2 to uphold an obviously consensual attempted
sodomy conviction. Delaney had been sentenced to five years probation78
but claimed that oral sex did not constitute a violation of the crime against
nature law and, even if it did, the language of the statute was
unconstitutionally vague.79 The Court again
cited its string of precedent cases that decided that the law was clear as to
the inclusion of oral sex.80 The vagueness
argument was disposed of with the curious endorsement of the States
it is easier for the public, or a defendant, to determine the nature of
this crime by researching the history of the common law or the case law of
this state. Although the opinions of this court are not always the essence
of clarity, and never as [sic] lucid as we would have them, in this
instance those previously rendered on this subject clearly advise all
people that in this state the abominable crime against nature includes
copulation either by mouth or by anus. These decisions are certainly more
readily available and more easily understood than the common law.81
Thus, the Court felt that a couple in the throes of passion would postpone
sexual relations for a trip to the local law library to see if what they
desired contravened state law. The dissenters believed that no jurisdiction
existed to hear Delaneys appeal because no final appealable order was
issued in the case.82
The psychopathic offender law was amended in 196783
to authorize periodic examination of those persons who had been adjudged
psychopathic to see if they had "improved to a degree that he will not be
a menace to others."84 A number of due
process guarantees were added in an obvious effort to save the law from a
court challenge, since the similar Colorado law had been struck down by the
U.S. Supreme Court earlier that year because of its due process flaws.
At a 1969 concert in Miami, Jim Morrison, lead singer of The Doors, was
arrested on numerous charges, including simulating fellatio on his
guitarist, Robby Krieger.85 Morrison was
charged under the "lewd and lascivious behavior" statute for this
action.86 A prospective juror was questioned
regarding the jurors views on male-male fondling and simulated oral
copulation, the defense attorney told the jury that taunts of "Youre a
fairy" were yelled from the audience at Morrison, a concert photographer
denied that he obtained a photo of the alleged act, and the star witness for
the prosecution was forced into an embarrassing situation. Bob Jennings, the
only attendee of thousands at the concert who signed a complaint against
Morrison, corrected the defense attorney that the charge against Morrison was
oral copulation, not masturbation. He said that "[t]heres a
difference" between the two acts and the defense attorney asked him if he
were "an expert on oral copulation." Morrison was acquitted of the
A revision to the psychopathic offender law in 197088
eliminated a requirement that psychopathy exist for at least four months
before a criminal act.89
In 1971, Florida adopted a comprehensive law to revise criminal penalties.90
The effect of the law was to reduce the maximum penalty for the crime against
nature from 20 to 15 years and to establish a fine of up to $10,000,91
and to reduce the penalty for an unnatural and lascivious act from six months
to 60 days and/or $500.92
This new penalty for the crime against nature never took effect. Just 15
days before it was scheduled to become law, the Florida Supreme Court handed
down the decision of Franklin v. State,93
showing a dramatic reversal in its interpretation of the law. In a 6-1 per
curiam decision, thus hiding the author of the opinion, the Court decided that
the term "abominable and detestable crime against nature" was
unconstitutionally vague and overbroad. Although acknowledging the long case
law history upholding the law, the Court felt that "these holdings and
the statute require our reconsideration."94
The Court did not want to be thought to "sanction historically forbidden
sexual acts, homosexuality or bestiality[,]" but felt that the
proscriptive language had to be stated in terms clear enough to understand.95
The Court noted that the two men involved were engaged in consensual relations
and that if the law was intended to cover consensual activity, then such a
provision should "be made clear in such a statute."96
The Court stated that "[l]egislative action is long past due in this and
related fields of personal relationships" and they encouraged the study
of the subject.97 Then, overruling a portion of
the 1921 Ephraim decision sub silentio, the Court called the
attention of prosecutors to the "unnatural and lascivious act"
statute that had been ignored for a half century. Under this law "society
will continue to be protected from this sort of reprehensible act[.]"98
Justice Joseph Boyd, a consistent opponent of Gay rights, dissented without
The Franklin decision can be classified as judicial legislation,
striking down as vague the term "crime against nature," but urging
prosecution under the no-less vague term "unnatural and lascivious
act." Merriam Websters Collegiate Dictionary, Tenth Edition, (1995),
page 1294, defines "unnatural" as "not being in accordance with
nature." This definition makes "unnatural" and "against
nature" synonymous. The Court seemed merely to desire to lower the
penalty from a felony to a misdemeanor and did so in this manner.
Franklin also caused a flood of appeals into the Florida courts from
people seeking relief who had been convicted under the now-defunct law. No
fewer than seven reported cases appeared between 1972 and 1975 seeking release
from prison on the Franklin precedent. In three cases,100
crime against nature convictions were reversed because the defendants,
although convicted prior to the Franklin decision, had appeals pending
on the date that it came down. The Courts decided that all three were entitled
to relief. In another case,101 the appellant
was granted relief because he had been sentenced more than two months after
the Franklin decision was announced.
Less fortunate were those persons who had been convicted before Franklin
and either had not appealed their convictions, or had exhausted their appeals
before Franklin was decided. Three cases thus resulted in a denial of
Also as a result of the Franklin decision was a determined
legislative effort to reinstate sodomy as a crime. In 1972, bills were
introduced into each house to reinstate sodomy as a crime only for people not
married to each other and to set the penalty as a misdemeanor. The House bill
cleared a committee on a 12-3 vote with no witness testimony103
but was stalled upon a motion for reconsideration by a legislator who opposed
the bill.104 When the House bill was delayed,
the Senate bill moved. After failing to accept amendments to the bill to
delete all penalties for consenting adults (24-18) and to make the proposed
law applicable only to same-sex activity, the Senate passed the bill 33-5.105
Because of differences in the bills between the houses, neither became law
A statute of 1972107 eliminated the
vagrancy law and replaced it with a prowling law that limited itself to
genuinely threatening or potentially threatening behavior.108
A law review article stated that a bill to repeal consenting adult laws
would be considered in the 1973 session of the Florida legislature.109
No repeal law came out of the legislature that year, but the Florida Supreme
Court still was up to its mischief. In the 1973 case of Witherspoon v.
State,110 the Court made official what it
only had hinted in the 1971 Franklin case. It said that the term
"unnatural and lascivious act" was sufficiently clear to be
constitutional. Franklin had been by a vote of 6-1 to strike down the
law, but Witherspoon was a mirror-image 6-1 vote to uphold the law. The
Witherspoon Court believed that "unnatural and lascivious"
of such a character that an ordinary citizen can easily determine what
character of act is intended, and are thus secure from constitutional
Justice Richard Ervin, the only dissenter, did not write an opinion.112
Several months later a second case, State v. Fasano,113
raising an identical point was disposed of in the same manner.114
Justice Ervin again dissented without opinion.115
Another attempt at reinstating the sodomy law was made in 1974 but failed
What did pass was a comprehensive criminal code revision117
that repealed the now-useless crime against nature law.118
The "unnatural and lascivious act" law was not changed.
Right before enactment of the new code, a new psychopathic offender law was
passed.119 It specified that misdemeanors
could count against a defendant in order to trigger the psychopathy
An appellate court decided in Banks v. State,121
in 1974, that admission of testimony of sexual acts with other than the
prosecuting witness was prejudicial error. In this case, a 14-year-old male
had solicited and enticed the adult defendant. The Florida Supreme Court, by a
6-1 vote, refused to review the decision.122
In 1974, a federal court challenge to the constitutionality of the
"unnatural and lascivious act" law, Murray v. Florida,123
was unsuccessful. The federal court relied on the interpretation of the
Florida Supreme Court in Witherspoon to reject the challenge.124
In the 1975 case of State v. Alvarez et al.,125
a group of men had been arrested in the Club Miami bathhouse and charged with
violating the "unnatural and lascivious acts" law. They banded
together to challenge the arrests. After describing the clubs private and
non-controversial nature in its neighborhood,126
expert testimony that consensual sexual relations between people of the same
sex was both healthy and considered normal,127
and noting that the prosecuting attorney called no rebuttal witnesses,128
Judge Morton Perry discussed case law in the state, specifically the Franklin
decision.129 He noted that, following the
Supreme Courts invalidation of the "crime against nature" law,
the Florida legislature acted merely by repealing that statute and not by
replacing it. Perry also questioned how the "unnatural and lascivious
acts" law could be, as the Supreme Court said, a lesser included offense
under the "crime against nature" law since that law no longer
existed.130 Perry concluded that the
are entitled to freedom of assembly, privacy and equal protection of
the law as guaranteed under the United States and Florida constitutions.131
He dismissed the charges against the defendants. The state did not appeal
this decision, presumably accepting its conclusion.
In 1976, the Florida Supreme Court decided the case of Campbell v.
State.132 A conviction for "open and
gross lewdness" was overturned by the Court in a 5-2 decision. Writing
for the Court, Justice Alan Sundberg stated that there had been
a homosexual conclave in Pensacola, Florida. Local police officers were
made aware of this event and visited bars and lounges frequented by
Pensacola area homosexuals. Among these establishments was Robbies
YumYum Tree Lounge, where appellant was employed as a waiter.133
Campbell had fondled a customer named Jeffries "in the pubic area for
some five seconds with his right hand while holding aloft a tray full of
glasses with his left hand." The police arrested both men.134
Campbell argued that the law was unconstitutionally vague and was being
applied in a discriminatory manner,135 but the
Court refused to consider either issue. Instead, the Court decided that the
fondling did not even constitute an offense under the statute.136
Relying on a decades-old case involving heterosexual defendants, the Court
noted that conduct, in order to be a crime, had to be extremely
indecent and offensive (emphasis is the Courts).137
Sundberg noted the difficulty in defining indecency138
who, in the dark and crowded recesses of the YumYum Tree at 2:00 a.m.
on July 6, 1974, was "offended"?139
Justice Joseph Boyd wrote for the dissenters. After quoting from a
dictionary and mentioning other court opinions to prove that "lewd"
and "lascivious" were not vague terms,140
Boyd said that he was not "unmindful" of Campbells argument that
the instant case involved a consensual touching of adults in an
establishment catering to homosexuals where no children were present and
where no one was offended.141
But, the fact that
it was 2:00 a.m. at Robbies YumYum Tree Lounge at a congregation of
consenting homosexuals does not give immunity from the criminal statute
which prohibits open, lewd, and lascivious conduct.142
The Florida Supreme Court grew weary of challenges to their illogic on the
dispute between "against nature" being too vague to understand, but
"unnatural" being specific enough to understand. Despite the Alvarez
decision, in 1976, in State ex rel. McVay v. Sandstrom et al.,143
the Court unanimously upheld the unnatural and lascivious act statutes
constitutionality without hearing oral arguments, because it twice before had
upheld the law.144 On rehearing, the vote to
uphold the law shrank to 5-2.145
In another 1976 case, Johnsen et al. v. State,146
the Florida Supreme Court rejected an argument about allegedly inflammatory
remarks made by a prosecutor to the jury. The case involved several men who
were tried on charges of "conspiracy" to commit an unnatural and
lascivious act. The unspecified remarks were held to be non-prejudicial.147
A famous person arrested for solicitation for sodomy was G. Harrold
Carswell, a former federal judge who had been nominated for the U.S. Supreme
Court but rejected by the Senate. He was arrested in 1976 after inviting and
taking an undercover police officer to a wooded area and was convicted of
battery.148 As a result of this arrest, police
discovered that Carswell had known a Gay teacher murdered just two weeks after
Carswells nomination to the Supreme Court was made by President Nixon. The
teacher, when found dead, was wearing a watch that had belonged to Carswells
In 1976, two Gay men were arrested for kissing at the Fort Lauderdale
airport. They were convicted of creating a public nuisance and sentenced to
The psychopathic offender law was revised substantially in 1977.151
This law eliminated the possibility of a person being labeled as a psychopath
prior to a criminal conviction and required the person to be considered
"likely to commit further sex offenses" if allowed to remain at
large.152 Also, psychiatrists no longer were
required to make the determination of psychopathy. Instead, only
"experts" were so required.153 A new
section permitted recommencement of criminal proceedings against the
psychopath if the person was considered rehabilitated upon release from
custody of the mental health facility.154
In 1977, in Phillips v. State,155 an
appellate court overturned the conviction of a man for sexual activity with
one male that was obtained by the admission of evidence of sexual activity
with a different male. Phillips allegedly also had shown another male photos
of "boys sucking each other off" and this evidence was held to
follow the Banks case prohibiting evidence of sex with one person to be
admitted into evidence in a trial for sex with another.156
A final revision to the psychopath law in 1978157
limited the right of judges to permit a furlough or work release for adjudged
In 1979, despite all the efforts at fine-tuning the law, Florida, like
almost all other states, gave up and simply repealed the psychopathic offender
An appellate court declined, by a 2-1 vote, to hear an appeal in 1980 in Alfaro
et al. v. State.160 Two men had been
arrested for sex in a restroom and had been viewed by a ceiling mirror. With a
two-word opinion, "Certiorari denied," the court cited the Coyle
decision above as precedent.161 Dissenting
Judge Natalie Baskin believed that the continuous surveillance from the
ceiling was an unconstitutional general warrant.162
In 1980, Florida adopted a broadly worded amendment to the state
Every natural person has the right to be let alone and free from
governmental intrusion into his private life except as otherwise provided
herein. This section shall not be construed to limit the publics right
of access to public records and meetings as provided by law.163
Although this amendment has not been interpreted as far as the unnatural
and lascivious act law is concerned, several court decisions in the 1980s have
interpreted its scope. Privacy rights are not absolute,164
but they are much broader than those under the United States Constitution.165
The "except as otherwise provided herein" proviso refers to the
entire Florida Constitution, not just the privacy amendment.166
A reasonable expectation of privacy must exist before the right of privacy
attaches to an act.167
Period Summary: Florida appeared to be a sluggish state in terms
of its legislative and judicial reaction to the Kinsey reports and the
Model Penal Code. More than a decade after the first Kinsey report was
published, a law review article criticized the existence of the consensual
sodomy law. Nearly a decade later, a number of challenges to the law arose
in courts. In 1971, in what appears to be blatant judicial legislation,
the Florida Supreme Court reversed its course and struck down as
unconstitutionally vague the "crime against nature" law. The
Court also steered prosecutors to the "unnatural and lascivious
acts" law for prosecution of different sexual acts, even though the
Court previously had said that this law did not cover sodomitical acts.
The Court did not overrule the previous decision, but merely ignored it.
The Florida legislature attempted to restore the voided law and intended
to include married couples within its purview. This action became
unnecessary when the "unnatural and lascivious acts" law was
sustained by the Florida Supreme Court against the same vagueness argument
that struck down the "crime against nature" law. It is
inconceivable that "unnatural" is any less vague than
"against nature," but the Court, in its inconsistency, lowered
the penalty for consensual sodomy from a felony to a misdemeanor without
legislative action. The adoption of a broad privacy amendment to the states
constitution in 1980 has changed the outlook on the constitutionality of
the "unnatural and lascivious acts" law.
The Post-Hardwick Period, 1986-Present
U.S. District Court Judge James Paine decided in 1989 that a Palm Beach
County ordinance requiring removal of doors from viewing booths in adult
bookstores was constitutional, in the case of Movie & Video World, Inc.
v. Board of County Commissioners of Palm Beach County, Florida.168
Paine found the expert testimony on the spread of sexually transmitted
diseases to be persuasive, including that of a Dr. Dale Tavris who claimed one
could contract AIDS from masturbating alone.169
In 1990, an appellate court handed down the puzzling case of Mohammed v.
State.170 A man who had been convicted of
consensual fellatio with a woman in Georgia had been arrested on another
charge and the sodomy conviction was used as added points to determine his
sentence. The Florida court said Florida had no law equivalent of that of
Georgia and so it was unreasonable to allow the Georgia statute to be used
against Mohammed. Citing a number of sex studies,171
Judge E. Earle Zehmer said that the Florida "unnatural and lascivious
acts" statute was not sufficiently
precise to define as criminal conduct consensual oral sex or fellatio [sic]
performed by a man and a woman in the privacy of their bedroom[.]172
Later, Zehmer said that instances of "consensual acts between a man
and a woman" should not be governed by the "unnatural and lascivious
acts" statute because the "obvious lack of prosecutions" for
"either heterosexual or homosexual activities that would violate the
specific language of the Georgia statute."173
Zehmer made no reference to the privacy amendment added to the Florida
constitution and it is unclear whether his opinion excludes all consensual
private sodomy or only that between people of the opposite sex from the scope
of the "unnatural and lascivious acts" law.
An example of assimilation of homosexuality into the mainstream of
jurisprudence for negative purposes only was the 1990 case of Victor v.
State.174 An appellate court upheld the
"carnal intercourse" conviction of a man for consensual fellatio
with a minor male, whose age is not given in the case. In a short opinion,
Judge Barry Stone amazingly claimed that similar statutes, previously known as
"statutory rape," had been gender-neutral throughout history, and
that penetration of the "victim" need not be proven. Mere contact
was sufficient for a crime to be committed.175
In 1992, a videotape was released showing male Florida police officers
getting naked and drunk outdoors and one of them attempting sex with another
male dressed as a bunny. Nothing in the news article says anything about plans
to prosecute them for public indecency or attempted sodomy, even though they
routinely arrest others for the same offenses.176
Also in 1992, a judge decided that the states "unnatural and
lascivious acts" law does not apply to private, consensual homosexual
acts between adults.177
In 1994, in Ward v. State,178 an
appellate court suppressed evidence used to convict a man of lewdness for
masturbating in a closed restroom stall. The arresting officer, named Barker,
was in the habit of peering into stalls through cracks to observe occupants,
looking for sexual activity.179 The court
found that, since the stall was closed and locked, a privacy interest existed
that could not be violated by the state.
An appellate court upheld a conviction and long sentence for consensual
sexual activity with a minor male in Jory v. State in 1994. A teenager
who claimed he was 16 when he had voluntary sexual relations with Jory was
believed by the jury to have been 15 at the time of the sexual activity in
question. This conviction led to a sentence of 150 years in prison followed by
30 years of probation.180
In 1995, a federal judge was faced with a decision in Gilbert v. Sears,
Roebuck and Company et al.181 Timothy
Gilbert had been arrested in a Sears restroom for indecent exposure and
charged Sears with conspiring actively with the Tampa Police Department in
conducting restroom surveillance. Sears argued that its actions did not rise
to the level of state action, but Judge Elizabeth Kovachevich found that there
was a genuine issue of material fact in Gilberts complaint that had to
survive Searss motion for dismissal.182
The 1990 decision of the appellate court and the 1992 decision of the trial
court that the "unnatural and lascivious acts" law does not apply to
private, consensual behavior never were appealed and remain of questionable
precedental value. The states privacy amendment, however, may provide the
answer. Common-law crimes continue to be recognized in Florida183
and case law in the state is such that, if the "unnatural and lascivious
acts" law is repealed, the common-law statute will continue to make
sodomy a crime, although apparently constitutionally not between consenting
Period Summary: An appellate court issued a decision in 1990
that definitely exempted consenting heterosexuals, and possibly consenting
homosexuals, from prosecution under the "unnatural and lascivious
acts" law. Two years later, a trial judge, in dictum, ruled that the
same law does not apply to consenting adults in private, but that
interpretation has not been made by the Florida Supreme Court. A court
challenge specifically to that point will be needed to decide the
relevancy of the privacy amendment to private, consensual sexual
relations. Florida joined the growing number of states in which consensual
sodomitical acts occurring in a public restroom are sacrosanct from
prosecution, a point of law that should be used in any future court
challenge to the law.
13 Stat. 654, enacted Mar.
2 Florida Territorial Acts 1822,
page 50, enacted Sep. 2, 1822.
3 Florida Territorial Acts 1823,
page 111, enacted June 29, 1823.
4 Florida Territorial Acts 1828,
page 203, enacted Nov. 23, 1828, effective Jan. 1, 1829.
5 Florida Territorial Acts 1829,
page 8, enacted Nov. 6, 1829.
6 Research by Judge Leslie Thompson,
published in Florida Statutes 1941, Vol. III, pages 77-78.
7 John P. Duval, ed., Compilation of
the Public Acts of the Legislative Council of the Territory of Florida
Passed Prior to 1840, (Tallahassee:Samuel S. Sibley, 1839), page 113,
No. 55, enacted Feb. 10, 1832.
8 Id. at 126, §76.
10 Acts of Florida 1842, page 19,
No. 22, enacted Mar. 5, 1842.
11 Id. at 20, §2.
12 Id. §1.
13 This law is not generally known. In
current codes of law, the legislative history goes back only to the 1868
law. Whether this is due to an oversight or due to a desire on the part of
Florida officials to hide this embarrassing law is not clear. The only
codification of this capital sodomy law that I have been able to locate is
Thompsons A Manual of the Digest of the Statute Law of the State of
Florida, of a General and Public Character, (Boston:Charles C. Little
& James Brown, 1847), page 500, §11. A search of Florida newspapers
from late 1841 and early 1842 for news stories that may have precipitated
the capital sodomy law did not reveal any such items. Death warrants
issued in Florida are extant only from 1869, the year after sodomy was
removed from the list of capital offenses. I am indebted to Mary Ann
Cleveland of the Florida State Library for her efforts.
14 Laws of Florida 1868, page 61,
ch. 1637 [Act 13], enacted Aug. 6, 1868.
15 Id. at 98, §17.
17 Id. at 99, §24.
18 Id. §25.
19 Laws of Florida 1905, page 97,
ch. 5419, enacted May 29, 1905.
20 Id. at 98, §2.
21 Laws of Florida 1917, page 211,
ch. 7361, enacted May 28, 1917.
23 Id. §2.
24 89 So. 344, decided July 5, 1921.
26 Id. at 345.
28 94 So. 505, decided Dec. 12, 1922.
29 Id. at 506.
30 120 So. 844, decided Mar. 19, 1929.
31 Id. at 845.
33 142 So. 909, decided July 8, 1932.
34 Id. at 910.
36 164 So. 848, decided Dec. 27, 1935.
38 Id. at 849.
39 12 So.2d 305, decided Mar. 2, 1943.
Rehearing denied Mar. 25, 1943.
42 Id. at 305-306.
43 Id. at 306.
44 14 So.2d 408, decided July 9, 1943.
45 Id. at 409.
46 Id. at 409-410.
47 Id. at 410. Another case
without detail brought by the same appellant follows on page 410.
48 72 So.2d 785, decided May 7, 1954.
Rehearing denied June 11, 1954.
53 Laws of Florida 1955, page 753,
ch. 29881, enacted June 15, 1955.
54 Id. §1.
55 Id. §7.
56 State v. Creekmore, 8 Fla.Supp.
189, decided Jan. 24, 1956.
57 90 So.2d 105, decided Oct. 24, 1956.
Rehearing denied Dec. 8, 1956.
58 Id. at 108.
59 Laws of Florida 1957, page 391,
ch. 57-208, enacted May 27, 1957.
60 Laws of Florida 1957 Ex. Sess.,
page 24, ch. 57-1989, enacted Oct. 29, 1957.
61 Id. §1.
62 Id. §10.
63 Richard T. Jones, "SodomyCrime
or Sin?" 12 U.Fla.L.Rev. 83 (Spring 1959).
64 Id. at 85.
65 Id. at 91-92.
66 Biennial Report of the Attorney
General 1959-1960, page 473, Opinion 060-24, issued Feb. 2, 1960.
67 Id. at 480, §1 and §2.
68 Id. §3.
69 Id. §4.
70 172 So.2d 3, decided Feb. 2, 1965.
Rehearing denied Mar. 15, 1965.
71 Id. at 6.
72 172 So.2d 505, decided Mar. 2, 1965.
73 Id. at 507. The trial judge was
Hans Tanzler, who later served as Mayor of Jacksonville, where he became a
born-again Christian and made anti-Gay comments. He ran for Governor in
the 1978 Democratic primary on an anti-Gay platform, but lost.
74 New York Times, Dec. 29, 1965,
75 181 So.2d 671, decided Jan. 19, 1966.
76 Id. at 675.
77 190 So.2d 578, decided Sep. 28, 1966.
Appeal dismissed, 387 U.S. 426, decided May 29, 1967. Justice William
Douglas voted to hear the case.
78 190 So.2d, at 579-580.
79 Id. at 581.
81 Id. at 582.
83 Laws of Florida 1967, page
1444, ch. 67-451, enacted Aug. 1, 1967, effective Oct. 1, 1967.
84 Id. at 1447.
85 James Riordan and Jerry Prochnicky, Break
on Through: The Life and Death of Jim Morrison, (New York:Morrow,
1991), page 296.
86 Id. at 392. The style of the
case is State v. Morrison and the docket number is 69-2355.
87 Riordan and Prochnicky, at 395, 398,
399, 403, and 405.
88 Laws of Florida 1970, page 989,
ch. 70-339, enacted July 2, 1970.
89 Id. at 1043, §111.
90 Laws of Florida 1971, page 552,
ch. 71-136, enacted June 16, 1971, effective Jan. 1, 1972.
91 Id. at 858, §777.
92 Id. §778.
93 257 So.2d 21, decided Dec. 17, 1971. A
companion case, Joyce v. State, was consolidated with this one.
94 Id. at 23.
96 Id. at 23-24.
97 Id. at 24.
100 Morris v. State, 261 So.2d
563 (1972), Blackmon v. State, 262 So.2d 264 (1972), and Parisi
v. State, 265 So.2d 699 (1972).
101 Zimmerman v. State, 320 So.2d
102 Stone v. State, 264 So.2d 81
(1972). This case was appealed to the U.S. Supreme Court and, in one of
its least known Gay-related decisions, the Court unanimously (including
Douglas, Brennan, and Marshall) upheld the term "crime against
nature" as constitutional and denied federal relief to the appellant.
Wainwright v. Stone, 414 U.S. 21 (1973). The other state cases in
which post-conviction relief was denied were Davis v. State, 278
So.2d 315 (1973) and Hall v. State, 282 So.2d 190 (1973).
103 The Advocate, Vol. 79
(Feb. 16, 1972), page 2.
104 The Advocate, Vol. 80
(Mar. 1, 1972), page 4.
105 The Advocate, Vol. 81
(Mar. 15, 1972), page 1.
106 The Advocate, Vol. 85
(May 10, 1972), page 2.
107 Laws of Florida 1972, page
414, ch. 72-133, enacted Mar. 31, 1972.
108 Id. at 415, §1.
109 Morgan Stevenson Bragg,
"Victimless Sex Crimes: To the Devil, Not the Dungeon." 25
U.Fla.L.R. 139, (1972-1973).
110 278 So.2d 611, decided May 30, 1973.
111 Id. at 612.
113 284 So.2d 683, decided Oct. 17,
116 The Advocate, Vol. 135
(Apr. 10, 1974), page 9.
117 Id. ch. 74-121, enacted July
10, 1974, effective Oct. 1, 1974.
118 Id. §1.
119 Laws of Florida 1974, page
1194, ch. 74-379, enacted July 3, 1974, effective Oct. 1, 1974.
120 Id. at 1195, §3.
121 298 So.2d 543, decided Aug. 15,
122 308 So.2d 538, decided Jan. 23,
1975. Rehearing denied Mar. 12, 1975.
123 384 F.Supp. 574, decided Oct. 31,
124 Id. at 578.
125 42 Fla.Supp. 83, decided May 8,
126 Id. at 85.
127 Id. at 86-87.
128 Id. at 87.
129 Id. at 87-90.
130 Id. at 92.
131 Id. at 93.
132 331 So.2d 289, decided Mar. 31,
1976. Rehearing denied May 25, 1976.
135 Id. at 290.
140 Id. at 292.
141 Id. at 293.
143 344 So.2d 554, decided Apr. 21,
1976. On rehearing Nov. 12, 1976.
144 Id. at 555.
146 332 So.2d 69, decided Apr. 21, 1976.
Rehearing denied June 10, 1976.
147 Id. at 72.
148 New York Times, June 27,
1976, 16:8; Oct. 2, 1976, 8:6.
149 New York Times, Sep. 19,
150 Leigh W. Rutledge, The Gay
Decades, (New York:Plume, 1992), page 167.
151 Laws of Florida 1977, page
1324, ch. 77-312, enacted June 23, 1977, effective July 1, 1977.
152 Id. at 1333, §12.
153 Id. at 1334, §14.
154 Id. at 1336, §21.
155 350 So.2d 837, decided Oct. 20,
156 Id. at 838.
157 Laws of Florida 1978, page 5,
ch. 78-628, enacted Dec. 6, 1978.
158 Id. at 6, §2.
159 Laws of Florida 1979, page
1764, ch. 79-341, at 1765, §3(c), enacted July 3, 1979, effective
July 1, 1979.
160 383 So.2d 930, decided Apr. 29,
1980. Rehearing denied June 10, 1980.
162 Id. at 931.
163 Florida Constitution, Article 1,
§23, adopted by popular vote, Nov. 4, 1980. The measure won 61% of the
vote statewide and carried 61 of 67 counties. There was no pattern to the
vote. In many ways, the vote went the opposite of the way it might be
expected. It won its largest margins in two counties with stolid
reputations. Pinellas County (Clearwater-St. Petersburg) gave it 74%,
followed by Sarasota County (Sarasota) with 71%. Monroe County (Key West)
gave it 62.5%, not much above its statewide average. The cosmopolitan
three-county Miami metro area gave it a below-average 59.5%, whereas tiny,
rural Dixie County gave it 65%. The issue ran behind its statewide average
in white-collar Jacksonville (56%) and Orlando (53%), but ahead of its
statewide average in blue-collar Tampa (63%) and Pensacola (66%). Abstract
of votes provided by the Florida Secretary of States Office.
164 Florida Board of Bar Examiners Re
Applicant, 443 So.2d 71 (1983).
165 Winfield v. Division of
Pari-Mutuel Wagering, Dept. of Business Regulation, 477 So.2d 544
166 Shaktman v. State, 529 So.2d
167 State v. Long, 544 So.2d 219
168 723 F.Supp. 695, decided Oct. 11,
169 Id. at 699.
170 561 So.2d 384, decided May 7,
171 Id. at 386, n.1.
172 Id. at 386.
173 Id. at 387.
174 566 So.2d 354, decided Sep. 5,
175 Id. at 355.
176 Columbus Dispatch, Mar. 26,
177 Washington Blade, June 12,
1992, page 13.
178 636 So.2d 68, decided Mar. 18, 1994.
Rehearing denied Apr. 27, 1994.
179 Id. at 69.
180 Lesbian/Gay Law Notes, Summer
181 899 F.Supp. 597, decided Oct. 11,
182 Id. at 599.
183 Florida Statutes Annotated,
184 North Shore Hospital, Inc. v.
Barber et al., 143 So.2d 848, at 853, decided July 3, 1962.
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