Last edited: August 10, 2004
The Victorian Morality Period, 1873-1948
The Territory of Guam was obtained in 1898 after the Spanish-American War and, as was so common due to a clash of cultures, became the object of zealous moralists. From its acquisition until 1950 it was governed by a Naval Governor who had the power to promulgate laws.
In the first compilation of Naval Governors orders, published in 1902 and covering three years of Guamanian occupation, no sodomy law was included. However, one order from 1900 did cover certain possibly erotic activity of males. The
A replacement set of orders from 19252 again made no reference to sodomy, but did contain a general vagrancy law labeling as vagrant "every lewd or dissolute person" who wandered about at late hours,3 thus creating a catchall provision for Gay or Lesbian people. A penalty of up to $250 and/or one year in jail was the penalty.4
Another code of 19315 included a provision that outlawed the keeping of "a house for lewd purposes."6 Although the other prostitution-related provisions of this law were gender-specific, this single provision was not. A penalty of 3-6 months in jail and/or a fine of $50-$100 was provided for violations.7 The new regulations expressly abrogated those of 1925 and, in doing so, the vagrancy provision was repealed.
That repeal obviously caused problems, because the vagrancy law was reinstated verbatim in 1932.8
The issue of sodomy finally came to a head in 1933 when a penal code was ordained by the Naval Governor.9 The code pirated the California laws, including their code section numbers, outlawing sodomy10 and sex perversions (fellatio and cunnilingus).11 The penalty was set at 1-10 years for each.12
The Kinsey Period, 1948-1986
An organic law granting home rule to Guam in 195013 contained a provision that all extant naval laws would continue in force.14
The only reported sodomy case was Government v. Pennington,15 from 1953. Both the trial record and appeal are reported officially. In the trial record, Pennington is described as having
Pennington argued that, since he was penetrated anally, he did not commit sodomy. The Court rejected this notion, citing California cases that held both consenting parties liable.17 The trial judge also rejected Penningtons right to be tried by a jury, based solely on the social structure of Guam where trial by jury was not practiced. The Court ignored the constitutional claim.18 Pennington appealed his conviction. In Pennington v. Government,19 the Ninth Circuit Court of Appeals unanimously reversed the trial court, writing a terse opinion concluding that the trial court had been without authority to try Pennington without a jury.20
In 1976, Guam enacted a comprehensive criminal code revision21 that reworded the sodomy and sex perversions statutes so as to apply only to those not consenting, acts in public, and acts with those under the age of 16.22
A further revision in 197923 eliminated the word "sodomy" from the code and replaced the language with modern references. The age of consent was not changed.
The Post-Hardwick Period, 1986-Present