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

Hawaii

"There is much criticism of making a crime out of homosexual or other unnatural sexual relations."

 

The Post-Revolution Period, 1776-1873

Hawaii was the target of zealous Christian missionaries in the 1820s and 1830s who forced their moral values on the natives.1 Having converted King Kamehameha III to Christianity, the missionaries succeeded in spreading their personal morals to the population as a whole.

The first written laws in Hawaii are known as the Blue Laws and date to 1833. Many of these laws may have been used to prosecute sodomy and similar conduct. A law enacted in 18402 permitted villages to prosecute "any particular evils" against which no law existed.3

Three statutes enacted in 1841 also may have been used. The first was a vagrancy law4 including the puzzling edict that

men and boys are forbidden to run in crowds after new things. Whosoever does this in an indecent manner shall be punished thus; he shall be taken to the house of confinement and remain till he pay a rial [unit of currency], and be sent at liberty.5

The second law concerned undefined crimes6 and permitted judges to "reflect on the nature of the crime and the kind of punishment which would formerly have been inflicted" and "pass sentence" as in the judge’s opinion "the general principles of the new system require."7

The third, and probably most significant, law was one concerning "lewdness."8 One provision said that, if

any other species of lewdness be committed, such as is not mentioned in this law [sodomy was not mentioned], the judge shall consider it well, according to the best of his knowledge, he shall pass sentence in accordance with the general spirit of the law. Thus shall he punish that crime.9

Another provision outlawed

all lewd conversation, and all seductive language, and all lascivious conduct leading to lewdness, and all libidinous solicitation[.]10

Whoever violated this law

shall be punished according to the magnitude of the offense. It shall not be less than two nor more than ten dollars.11

The first explicit sodomy law was enacted in 1850.12 It contained the common-law definition and established a penalty of a fine of up to $1,000 and confinement at hard labor for up to 20 years.13 Common-law crimes were abrogated.14

A similar law to the lewdness statute was contained in the new code, prohibiting "lewd conversation, lascivious conduct, or libidinous solicitations."15

Period Summary: Like other Polynesian societies, Hawaii became a pawn of evangelical missionaries. The earliest recorded laws of Hawaii dealing with sex show a mixture of this missionary influence and Polynesian customs. Later, Hawaii enacted more European-style criminal laws that created a harsh penalty for sodomy.

The Victorian Morality Period, 1873-1948

A statute of 187616 permitted juries to convict sodomy defendants of the lesser charge of an assault to commit sodomy if it was "not satisfied that he is guilty" of the principal crime.17

In the first reported sodomy case, from 1898, Republic of Hawaii v. Edwards,18 the Hawaii Supreme Court upheld a conviction. First, the Court ruled that corroboration of the testimony of an accomplice was not required under the criminal code.19 The Court also upheld the composition of the jury, composed of nine U.S. citizens and three citizens of the Republic of Hawaii. The Court found that the Hawaiian citizens were not barred by Hawaiian law from serving on the juries of another nation, so Edwards had no claim.20 The Court noted that Edwards had been indicted by the Attorney General of Hawaii, rather than a grand jury, but apparently Edwards did not challenge this point.21 Other points rejected by the Court included the fact that Hawaii had surrendered its jurisdiction to the United States upon annexation earlier in 1898, thereby making the Republic’s prosecution of him invalid, and that the vote by which the jury found Edwards guilty was not unanimous.22

Edwards’s case returned to the Hawaii Supreme Court later. In 1900, in Ex Parte Edwards,23 the three-member court, with none of the members of the 1898 case sitting, voted 2-1 to order Edwards released from prison on a habeas corpus petition because of his trial without an indictment. Edwards’s trial took place four days after the cession of the Hawaiian Republic and, therefore, under the Territory of Hawaii, had to conform to the U.S. Constitution. The Court found that sodomy was "an infamous crime" under the Fifth Amendment to the U.S. Constitution and could not be prosecuted without indictment by a grand jury.24 The most curious aspect of the case was the dissenting opinion of Chief Justice Frear who stated that he saw "no reason for changing [his] opinion as expressed" in Edwards’s appeal of two years earlier.25 The syllabus of the original Edwards case says that Frear, although a member of the Court, had not sat in the case, and so he had not expressed any opinion.

In 1921, the Hawaii Supreme Court, in the case of Territory v. Chee Siu,26 ruled unanimously that emission of semen did not have to be proven in sodomy cases.27

In the 1922 case of Territory v. Wilson,28 the Hawaii Supreme Court unanimously ruled that fellatio was a "crime against nature." The Court criticized English case law on the subject in which "the bare principle [that fellatio did not constitute sodomy] was announced without supporting reasons."29 The Court believed that the "weight of authority" in the United States and "reason" dictated a different outcome in Hawaii and sustained Wilson’s conviction.30

In 1944, the Hawaii Supreme Court decided the case of Territory v. Koa Gora.31 The Court upheld the conviction of the defendant for doing "that which was lewd and lascivious in conduct[.]"32 The Court never mentioned the specific conduct involved, but Koa Gora appealed into federal court and that court was less hesitant to discuss his case. In 1946, in Koa Gora v. Hawaii,33 the Ninth Circuit Court of Appeals also unanimously sustained his conviction. The opinion reveals that a naval patrolman, Arthur Notikai, went to a rooming house in Honolulu on the pretext of looking for a room. Koa Gora took him into a room, "unbuttoned Notikai’s trousers and laid his hands on his private parts."34 The Ninth Circuit held that the term "lascivious conduct" was not unconstitutionally vague.35 In the first such case ever to reach the U.S. Supreme Court, the Court refused to hear Gora’s appeal.36

Bills were introduced into the Hawaii Senate in 1947 to create a psychopathic offender law for the state. One would require conviction of a crime before triggering the law, and the other would not. Neither passed, but a report37 for the legislature’s study was issued in 1949. After comparing the small number of laws extant in the various states, the report noted the difficulty experts had in defining a sexual psychopath. In fact, whether or not "a psychopathic state exists in any individual case basically is dependent on the decision of experts."38 The report also noted that neither proposed bill was without flaws. One would give "society no protection from the time of a possible criminal act" and the other "may result in the encroachment on the liberties of an individual who has not and will never harm society."39 The definition of "psychopath" was "in essence" "based on social non-conformity."40 It is probable that the reason Hawaii never adopted a psychopathic offender law is because of the apparent choice between evils the legislature would have to make.

Period Summary: The continued Westernization of Hawaii became evident during this period when Hawaii was annexed to the United States. Most court judges were not of Polynesian descent and issued decisions contrary to local customs. The militarization of Hawaii in the years before the Second World War increased its Westernization and it became one of the more conservative states on the issue of human sexuality, something very much at variance with its pre-missionary culture.

The Kinsey Period, 1948-1986

In 1949, the Hawaii legislature adopted a new disorderly conduct law41 that defined "disorderly conduct" as including a person who

[f]requents or loiters about any public place soliciting men for the purpose of committing a crime against nature or other lewdness[.]42

The last reported sodomy case in Hawaii was Territory v. Bell,43 from 1958, in which the Hawaii Supreme Court unanimously ruled that the sodomy law could be applied to persons of the opposite sex as well as persons of the same sex.44 The Court also precluded constitutional challenges to the law by noting that there was

much criticism of making a crime out of homosexual or other unnatural sexual relations, this criticism being particularly widespread in England at this time, but the remedy, if any, is a matter for the legislature.45

A comprehensive criminal code revision in 197246 retained the abrogation of common-law crimes47 and repealed the crime against nature law, although setting varying ages of consent for different sexual activity.48 The solicitation provision of the disorderly conduct law also was eliminated.49

In 1978, Hawaii adopted an amendment to its constitution50 stating that the

right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement the right.51

The Hawaii Supreme Court read this very broad wording much more narrowly than it was designed to be. In the 1983 case of State v. Mueller,52 which dealt with prostitution, the Court unanimously decided that

a purpose to lend talismanic effect to "the right to be left alone," "intimate decision," or "personal autonomy," or "personhood" cannot be inferred from the State provision, any more than it can from the federal decisions. However described, a freedom that is protected thereunder must still be one "ranked as fundamental" in the concept of liberty that underlies our society.53

Specifically, the Court stated that homosexual sodomy clearly was not intended to be protected by this amendment, since the U.S. Supreme Court had said it was not a fundamental liberty.54 Thus, the Hawaii Supreme Court gutted the amendment and decided that its great breadth was limited in scope to the few "fundamental" liberties enunciated by the U.S. Supreme Court, homosexual sodomy not one of them. Therefore, the Hawaii legislature would be constitutionally free to reinstate consensual sodomy as a crime if it so chose.

Despite the conservatism of the Hawaii Supreme Court, in 1986 the legislature revised the sex offenses law55 lowering the age of consent for all sexual relations from 16 to 14,56 giving Hawaii the lowest age of consent in the nation.

Period Summary: Hawaii showed no liberalism on the issue of sodomy and its ancillary acts until the 1972 criminal code revision that made it the fifth state to legalize consensual sodomy. A specific privacy rights amendment to the state constitution passed in a statewide vote only narrowly and has been construed as covering only the federal constitution’s few "fundamental" rights. Nevertheless, with the repeal of the sodomy law and the lowering of the age of consent to 14, the lowest anywhere in the country, the Hawaii legislature has shown that it is reclaiming the state’s early heritage of tolerance for consensual sexual activity.

The Post-Hardwick Period, 1986-Present

Apparently moving backward on the issue of sexuality, in 2001, Hawaii passed a law to raise the age of consent from 14 to 16. Governor Ben Cayetano vetoed it, but the legislature overrode his veto on a nearly unanimous vote, making this the first legislative override of a Hawaiian Governor’s veto in the state’s 42-year statehood history. The new law is to last only until 2003, and a task force is to study the issue of age of consent during the interim.57

Period Summary: There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution. Fifteen years after agreeing on the lowest age of consent in the nation, a nearly unanimous legislature voted to raise it again.


Footnotes

1 See James Michener, Hawaii, (New York:Random House, 1959).

2 Hawaii’s ‘Blue’ Laws. Constitution and Laws of 1840. A Practical Illustration of the Missionaries’ Love for the HAWAIIANS, ([Honolulu?]:Holomua Publishing Company, 1894), page 42, ch. IV, "Of Laws Which Are Not of Universal Application," enacted Nov. 9, 1840.

3 Id. at 42-43.

4 Id. at 82, ch. XVII, "Vagrant Laws," enacted Apr. 23, 1841.

5 Id.

6 Id. at 95, ch. XXV, "Of Crimes Not Particularly Defined by Law," enacted May 18, 1841.

7 Id.

8 Id. at 116, ch. XXXIV, "Law Respecting Lewdness," enacted May 29, 1841.

9 Id. at 121, 15.

10 Id. 16.

11 Id.

12 Penal Code of Hawaii 1850, enacted June 21, 1850.

13 Id. page 22, 11.

14 Id. ch. 1, 1.

15 Id. ch. XXXVII, 1.

16 Laws of Hawaii 1876, ch. 40, 52, enacted Sep. 19, 1876.

17 Id.

18 11 Haw. 571, decided Nov. 4, 1898.

19 Id. at 573.

20 Id. at 576.

21 Id. at 577.

22 Id. at 577-578.

23 13 Haw. 32, decided Oct. 9, 1900.

24 Id. at 45.

25 Id. at 50.

26 25 Haw. 814, decided Mar. 23, 1921.

27 Id. at 816-817.

28 26 Haw. 360, decided Apr. 29, 1922.

29 Id. at 362.

30 Id.

31 37 Haw. 1, decided Sep. 14, 1944.

32 Id.

33 152 F.2d 933, decided Jan. 4, 1946. Rehearing denied Feb. 11, 1946.

34 Id. at 934.

35 Id. at 935.

36 328 U.S. 862, decided June 10, 1946.

37 Norman Meller, "Sexual Psychopaths," Report No. 2, (Legislative Reference Bureau, 1949).

38 Id. at 11.

39 Id. at 17.

40 Id. at 21.

41 Laws of Hawaii 1949, ch. 139, 1, enacted May 4, 1949.

42 Id.

43 43 Haw. 23, decided Oct. 9, 1958.

44 Id. at 26.

45 Id.

46 Laws of Hawaii 1972, page 32, Act 9, enacted Apr. 7, 1972, effective Jan. 1, 1973.

47 Id. at 33, 102 (1).

48 Id. See Part V. Sexual Offenses, 730 et seq. Sexual activity was limited to partners 16 years of age or older, but sexual contact (touching) was permitted with those 14 or older.

49 Id. 1.

50 Adopted by popular vote, Nov. 7, 1978. Oddly, the very liberal state of Hawaii showed only mediocre support for a right to privacy. The issue won only 52% of the vote statewide and actually lost in Hawaii County. The other three counties only narrowly approved the measure. Oahu gave it 52%, Kauai 54% and Maui 53%. Vote provided by the Office of the Lieutenant Governor of Hawaii in correspondence Oct. 13, 1992.

51 Hawaii Constitution, Article I, 6.

52 671 P.2d 1351, decided Nov. 3, 1983.

53 Id. at 1360.

54 Id. at 1355-1356.

55 Laws of Hawaii 1986, page 593, Act 314, enacted June 6, 1986.

56 Id. 57.

57 Reported at www.capitol.hawaii.gov on July 12, 2001.


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