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


"We are not inclined to be controlled by fallacious precedents, technical and unwarranted distinctions enunciated in ancient decisions, and thus countenance the commission of one of the most heinous and unspeakable forms of crime."

The Post-Revolution Period, 1776-1873

The 1863 organic law for the Idaho Territory1 made no reference to sodomy or common-law crimes.

The Idaho territorial legislature enacted a criminal code in 18642 that criminalized sodomy with the common-law definition and provided a penalty of five years-to-life.3 An assault to commit the crime could be penalized by a sentence of 1-14 years in prison.4 The provisions of the code "shall extend to females,"5 although the common-law definition would not include cunnilingus. Any unsuccessful attempt to commit sodomy could be penalized by up to 10 years in prison.6

Period Summary: Idaho adopted a law against sodomy early in its territorial years, but it specifically included females, something other jurisdictions did not make clear with their laws. However, it adopted the common-law wording of the statute, automatically excluding cunnilingus from its coverage. This would allow prosecution only of heterosexual females for sodomy.

The Victorian Morality Period, 1873-1948

I. Sodomy

A comprehensive code revision of 18877 eliminated the specific reference to a life sentence as the maximum, but created no other maximum.8 The crime was complete upon penetration only.9

The first reported sodomy case in Idaho was decided in 1913. In Ex Parte Miller,10 the Idaho Supreme Court was asked to interpret the 1887 sodomy law’s sentencing provision. Miller, who had been in prison for more than 14 years of a 25-year sentence, claimed that the stated five-year minimum also was the maximum penalty that could be handed down. In a 2-1 decision, the Court disagreed. Justice Isaac Sullivan’s opinion said that under the law of Idaho

the only crime punishable with death is that of murder in the first degree, and no one would contend that a court under the provisions of said section 6810 [the sodomy law] would have the authority to have a man executed who had been convicted of the crime mentioned in said section; but the Legislature no doubt considered it a grave crime and fixed the minimum punishment at five years’ imprisonment and left it to the sound discretion of the court to fix the maximum according to the facts of each case.11

Although the Court thereby eliminated the possibility of a death sentence under this statute, it left open the right of a court to sentence an individual to life imprisonment. In dissent, Chief Justice James Ailshie claimed that the amendment of the statute in 1887 to eliminate the specific reference to life imprisonment meant that the legislature did not intend for a life sentence to be permissible.12 He also noted that the Court seemed to be violating its own rule announced in three other cases dealing with criminal penalties without maximum sentences.13

The next case, decided in 1916, concerned the applicability of the sodomy statute to fellatio. In State v. Altwatter,14 the Court unanimously found that the law covered such acts. In so deciding, and rejecting decisions of other courts that fellatio was not covered, the Court said that it was

disposed to follow the more modern decisions, which, while not so numerous, yet are, we think, the better reasoned, and in keeping with the progress of civilization. We are not inclined to be controlled by fallacious precedents, technical and unwarranted distinctions enunciated in ancient decisions, and thus countenance the commission of one of the most heinous and unspeakable forms of crime.15

Thus, fellatio was accepted in the Dark Ages and the Victorian era, but as society got more "modern," it grew less tolerant.

Although the case never was reported, in 1920, two men were convicted of consensual fellatio in the restroom of a private building. After a glory hole was discovered in the restroom, employees covered the hole only to have the coverings continuously removed. A hole above the restroom stalls was drilled and the men were caught that way.16

II. Sterilization

A proposed sterilization law, passed by the legislature in 1919, was vetoed by Governor D.W. Davis.17 The bill would have required quarterly reports from the state institutions to the Department of Public Welfare of all "feeble-minded, insane, epileptic, moral degenerates and sexual perverts" for possible sterilization.18 The definition of "moral degenerates and sexual perverts" was limited to

those who are addicted to the practice of sodomy or the crime against nature, or to other gross, bestial and perverted sexual habits and practices prohibited by statute.19

In his veto message, Governor Davis lauded the bill as "meritorious" but believed that it, applying only to those people confined in institutions, was discriminatory because they were, because of their confinement, "the least menace to society." (Evidently if it covered everyone in the state, he would find it unobjectionable). Also, Davis felt that the procedure of sterilization for the purpose of eugenics still was experimental, and more scientific evidence should be awaited to see if it were truly worthwhile.20

Six years apparently was all it took for the evidence to accumulate because, in 1925, Idaho enacted a law21 to authorize the sterilization of certain people, including "habitual criminals, moral degenerates and sexual perverts" who were considered likely to become a menace to society.22 The surgery could be performed either with the consent of the individual23 or following a trial, if the person would not consent.24

In 1929, the law was amended25 to limit the type of sterilizing surgery to the less harsh vasectomy or salpingectomy.26

The constitutionality of this law was challenged and upheld in the 1931 case of State v. Troutman.27 Without much analysis, the Idaho Supreme Court rejected Troutman’s contentions that the law denied life, liberty, and the pursuit of happiness and safety,28 was cruel and unusual punishment,29 denied due process of law,30 and denied equal protection of the laws.31 With words that would come back to haunt them with the Nazi regime in Germany on the verge of power, the Court, after referring to ancient societies that attempted to eliminate undesirable people, said that it was

feared this law is an opening wedge for such tyrannies. It is attempted to bolster this argument by a claim that modern scientists are not fully agreed on the law of heredity, and the so-called "eugenics enthusiasts" are not agreed on how far the law should interfere with natural selection.

However, here we are administering a fixed and definite law, and are only concerned with that present law, not with what future legislators may do. Nor are we concerned with what political enthusiasts may try to do.32

Through the end of 1934, only 14 sterilizations had been performed under this law, the smallest number of any state in the nation.33

Period Summary: Idaho followed the national trend in deciding that fellatio was a "crime against nature." The wording of the law was sufficiently confusing as to its maximum penalty that the Idaho Supreme Court had to settle the dispute. It decided that life imprisonment was permissible for private, consensual sodomy. Idaho adopted a sterilization law that included "sexual perverts," although the first attempt at such a law met with a gubernatorial veto. A second attempt was signed by a different governor and the law’s constitutionality was sustained by the Idaho Supreme Court. One source showed very limited use of the law before the Second World War.

The Kinsey Period, 1948-1986

I. Sodomy

The next reported sodomy case was State v. Wall,34 decided in 1952. The Idaho Supreme Court split 3-2 to uphold the conviction of defendant Wall for lewd and lascivious conduct, an offense the majority felt was an included offense within "the crime against nature." In fact, it said that "any charge of the infamous crime against nature, committed on the person of such a minor, necessarily includes the crime of lewd and lascivious conduct." [Emphasis added].35 The majority opinion believed that, because the state chose to prosecute Wall only on the lewd and lascivious charge, he had no right to complain about a possible double prosecution.36 In dissent, Justice William Keeton pointed out that the penalty for sodomy was five years, whereas that for lewd and lascivious conduct with a minor was life imprisonment. Keeton complained that a more severe crime was not necessarily included in a less severe crime as the majority claimed.37

There are three reported cases from the Idaho Supreme Court resulting from the infamous "Boys of Boise" affair.38 This now-legendary affair caused one of the most virulent anti-Gay witch hunts in history. The first two cases were decided a week apart in 1956. In State v. Moore,39 the conviction of banker Joe Moore unanimously was upheld as was the right of the trial court to refuse the testimony of a second psychiatrist on behalf of the defendant, after having allowed one to testify.40 The Court also noted that Moore had been involved in "homosexual activity" over a period of "twelve or thirteen years," thus justifying the penitentiary sentence.41 The Court apparently overlooked the fact that, over this 12-13 year period, Moore never had gotten into trouble, and his sexual relations all apparently were consensual.

In State v. Wilson,42 the Court referred to Wilson’s consensual sodomy as a "crime committed against society"43 and upheld the penitentiary sentence in place of probation because Wilson was "an habitual, persistent homosexual offender."44 Again, Wilson’s sexual relations never had before attracted the attention of the authorities and all were consensual in nature.

In 1959, in State v. Larsen,45 the Court unanimously upheld the conviction of Gordon Larsen who had been picked up by police for questioning and asked "at length about activities of homosexuals in the city."46 As a result of the questioning, Larsen signed a police statement that he had

a homosexual experience with Eldon Halverson wherein I recall taking his penis into my mouth and he took my penis into his. Neither of us had an orgasm.47

He added an afterthought to his signed statement: "This incident involved ‘playing around’ and was not an attempt on my part to ‘Blow’ Halverson."48 If Larsen thought that taking an adult penis into his mouth only for purposes of "playing around" would exempt him from the sodomy law, he was in for a rude surprise. He feared for his job and his proposed marriage, and believed that, if he signed a confession, he would be let go, as had Halverson.49 Nevertheless, Larsen ended up with a sentence of five years in prison.50 He also complained about "allegedly inflammatory remarks by the prosecutor in his argument to the jury."51 The remarks thought to be inflammatory were an urging of the jurors "to enforce the law and to halt an outbreak of homosexual practices in the city."52

In 1971, the Idaho legislature passed a new criminal code53 that abrogated common-law crimes54 and repealed the sodomy law.55 This law technically made Idaho only the third state in the nation to decriminalize consensual sodomy, but the repeal did not last long.

The new code became effective January 1, 1972,56 but officials in the Mormon and Catholic Churches did not care for liberalization of laws against sex.57 After an outpouring of opposition, the Idaho legislature passed a law to repeal the new code, without passing a replacement, effective April 1, 1972.58 What finally came out of the legislature was a code reinstating the status quo. The law59 was passed only five days before the liberalized code’s repeal date (and, thus, only five days before the state would have been without any criminal code). The repressive code reinstated common-law crimes60 and the felony "crime against nature" law with the minimum five-year penalty and no maximum.61

Non-consensual sodomy was the subject of the 1982 case State v. Goodrick.62 Goodrick claimed that the law could not be enforced against "consenting adults of the opposite sex," but the Idaho Supreme Court found that he had no standing to raise the claim since his actions were by force.63 This decision raises the question of whether the law merely is assumed to be inapplicable to consenting heterosexuals, but the Court ducked the issue.

II. Sterilization

In a study conducted at the end of the 1940s, it was shown that Idaho had not used its sterilization law any more, and all sterilizations that had been performed were on the insane or mentally retarded.64

The law was repealed in 1972.65 Fortunately, this repeal was in a separate bill from the criminal code, so the repressive code’s restoration did not revive the sterilization law.

There are no known extant records concerning the number of people sterilized in the state for being "sexual perverts."66

Period Summary: During the 1950s there was a witch hunt, now fabled as the "Boys of Boise" affair. A number of Gay men were prosecuted for private, consensual sodomy during a period of political battling between moderate and reactionary forces in the local Republican Party. Three published cases arose from the affair, all convictions being affirmed by the Idaho Supreme Court and one of them refused an appeal by the U.S. Supreme Court. A new criminal code was adopted in early 1971 that repealed the sodomy law, but the state’s vocal right-wing forces objected and raised such a fuss that the 1972 legislature rescinded the new code and reinstated the old code verbatim. This retains a maximum life imprisonment penalty for the "crime against nature." In a separate law enacted in 1972, the defunct sterilization law was repealed.

The Post-Hardwick Period, 1986-Present

In 1990, two male couples were arrested for consensual sex, one in a parked car, and the other in a darkened parking lot. Both couples faced a sentence of five years-to-life under the sodomy law.67

More successful was the defendant in State v. Limberhand,68 also from 1990. The ironically named Limberhand was arrested for masturbating in a closed toilet stall by police searching without a warrant for "homosexual activity" in a rest stop. An undercover police officer by the name of Komosinski entered the adjoining stall and propositioned Limberhand when he looked through a hole and saw him masturbating. Limberhand turned the officer down and later left, only to be arrested by another undercover officer as he drove along a freeway.69 The Court of Appeals found a privacy interest in the restroom stall and remanded the case to the magistrate with an order that made it virtually impossible for the state to win on the remand.70

In 1992, the Idaho Court of Appeals decided State v. Hayes,71 interpreting the penalty provision of the "crime against nature" law. For what a jury believed to be consensual, rather than non-consensual sodomy, Brian Hayes received a sentence of 5-12 years in prison. The Court of Appeals first reaffirmed the Miller precedent that the failure to state a maximum penalty for sodomy meant that the maximum could be life imprisonment.72 As to whether or not this was disproportionate to the severity of the crime, the court noted that the

infamous crime against nature, as it has been defined in Idaho, does not include any references to violence, weapons, injury, or harm. Rather, the statute merely describes an act that has been considered harmful to society generally, based on moral and religious grounds.73

The court said it was "injudicious and nearly impossible" to analyze a crime "based on such personal and ephemeral grounds[.]" The law, the court noted, had remained unchanged in wording for more than a century, indicating

that the citizens of Idaho, as represented by the legislature, consider the offense grave enough to remain opposed to the conduct prohibited by the statute. Our conclusion is supported by the brief repeal of the statute in 1972...The legislature quickly repealed this law [the repealer] and reenacted the original statute. We assume that a statute which received such treatment and which has remained unchanged for so many years retains its vitality and public support.74

As to a comparison with other states, the Court of Appeals conceded that Idaho was the only state that permitted a life sentence and was one of only a few which would allow a sentence even of the minimum of five years. However, the sentence that Hayes received "is not so extreme as to shock the conscience of reasonable people."75 Nevertheless, the Court remanded the case because the trial court ruled that state law mandated a five-year minimum. Where this "error" originated is unclear, because the state law clearly does state "not less than five years" as the penalty. Anyway, as a result, the case returned to the Court of Appeals later that year.76 The trial judge, on remand, imposed the same 5-12 year sentence as originally and the Court of Appeals found no reason to disturb it.

In 1992, the American Civil Liberties Union announced plans for an attempt to repeal the state’s sodomy law.77

The state apparently has little interest in repealing the law. In 1993, Idaho enacted a sex offender registration law78 that made it clear that what individuals did consensually remained the prosecutor’s business. Those covered by the law were considered a danger to the community and the purpose of the law was to assist "efforts of local law enforcement agencies to protect their communities[.]"79 Anyone convicted of completion of, conspiracy to commit, attempt to commit, or solicitation of, any of the enumerated sex crimes was required to register as a sex offender with a local sheriff. Included in the list of crimes was "crime against nature."80 The law also applies to people moving into Idaho.81 Registration is required for 10 years after "discharge from probation, parole or release from incarceration, whichever is greater."82 Failure to comply with the requirement is a felony, with a penalty of up to five years in prison and a fine of up to $5,000.83

In 1995, deciding State v. Holden,84 the Idaho Court of Appeals ruled unanimously that the state’s "crime against nature" law could not be applied constitutionally to married couples. Citing the string of decisions by the U.S. Supreme Court beginning with Griswold v. Connecticut, the court said "there can be little doubt" that the right to privacy extends to "particular sexual acts practiced consensually in private by married couples."85 The court noted that the Supreme Court’s Bowers v. Hardwick decision was silent as to whether there was a constitutional right to engage in sodomy by married couples, but that did not "overrule or reject the privacy right of married couples announced in Griswold."86 Taking its analysis farther, the court said that the "crime against nature" law was valid regarding "forced sexual activity, sexual acts with minors, nonprivate or commercial conduct, [and] bestiality."87 It refused to address the validity of the law as it applied to "consenting adults who are not married to each other" because "that issue is not before us."88 Oddly, however, the five valid uses of the law stated above also were not before the court, even though it addressed them.

In 1996, the state’s sex offender registration law was amended89 to make the registration requirement, including for private, consensual sodomy, for the person’s lifetime, rather than just 10 years.90 An exemption from the lifetime registration was included for those providing "clear and convincing evidence" that they are "not a risk to commit a new violation" of any of the listed offenses, including private, consensual sodomy.91

In addition to the "crime against nature" law, Idaho continues to recognize common-law crimes.92

Period Summary: After more than 20 years since the hysteria caused the old criminal code’s reinstatement, the same "crime against nature" law remains on the books in Idaho. The penalty has not been reduced, and an appellate court reaffirmed the 1913 decision that a life sentence is permissible under the law. The court also stated that a life sentence for private, consensual sodomy was not excessive. Idaho has followed the precedent of other states in ruling that sodomy in an enclosed restroom stall is constitutionally protected, but a restroom stall is the only place now where such activity can occur without fear of prosecution. However, Idaho also has followed precedent in interpreting its sodomy law as inapplicable to the private, consensual acts of married couples. That decision was issued by the same court that, three years earlier, upheld the validity of a possible life sentence for consensual activity, making it unclear just how the court might rule on a constitutional challenge to the law as it applies to persons not married to each other.


1 12 Stat. 808, enacted Mar. 3, 1863.

2 Territory of Idaho Laws 1864, page 35, enacted Feb. 4, 1864.

3 Id. at 444, §45.

4 Id. §47.

5 Id. at 474, §155.

6 Id. §158.

7 Revised Statutes of Idaho 1887, enacted Feb. 10, 1887.

8 Id. page 736, §6810.

9 Id. §6811.

10 129 P. 1075, decided Feb. 15, 1913.

11 Id. at 1076.

12 Id. at 1077.

13 Id. at 1078.

14 157 P. 256, decided May 9, 1916.

15 Id. at 257.

16 State v. Gillespie and Danner, Ada County, Aug. 31, 1920, Trial Transcripts and Jury Verdict, AR 202, Criminal, Box 13, Gillespie, E.E. et al., 13/32, 1920, Idaho State Archives, Boise.

17 Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), pages 48-50.

18 Id. at 48, §1.

19 Id. at 49, §9.

20 Id. at 50.

21 Idaho Session Laws 1925, page 358, ch. 194, enacted Mar. 13, 1925.

22 Id. at 359, §2.

23 Id. at 360, §6.

24 Id. §7.

25 Idaho Session Laws 1929, page 683, ch. 285, enacted Mar. 19, 1929.

26 Id. at 685, §4.

27 299 P. 668, decided May 20, 1931.

28 Id. at 669.

29 Id. at 670.

30 Id.

31 Id.

32 Id.

33 Abraham Myerson et al., Eugenical Sterilization: A Reorientation of the Problem, (New York:Macmillan, 1936), page 11.

34 248 P.2d 222, decided July 23, 1952.

35 Id. at 223.

36 Id.

37 Id. at 224.

38 John Gerassi, The Boys of Boise: Furor, Vice and Folly in an American City, (New York:Collier, 1968). Gerassi gives excellent coverage to the news in Boise, as well as to the historical background into what makes Idaho and Boise what they are today, but does not discuss the link between the history and the scandal. The fascinating social history of Idaho is found in pages 129-162. This scandal only barely was discussed in the Mattachine Review and even then with more sympathy for the prosecutors. See the issues of February 1956, pages 2 and 20; and April 1956, page 2.

39 304 P.2d 1101, decided Dec. 4, 1956. Rehearing denied Jan. 9, 1957. The Moore and Wilson cases are not listed in the Idaho Digest. Gerassi’s book details the two appeals on pages 171-173. Any pretense about the charges the men in Boise faced was destroyed by the state’s Attorney General. In the Thirty-Third Biennial Report of the Attorney General of Idaho, page 19, the criminal charges faced by Moore and Wilson were listed as "homosexuality." This was repeated in the following biennial report, page 20.

40 Moore, at 1103.

41 Id. at 1104. Moore was paroled June 4, 1958 and released from parole supervision a little over a year later. (Correspondence from Mark Carnopis, Public Information Officer, Idaho Department of Corrections, Jan. 22, 1997).

42 304 P.2d 644, decided Dec. 12, 1956.

43 Id. at 646.

44 Id. Wilson was paroled July 9, 1958 and released from parole supervision a little over a year later. (Correspondence from Mark Carnopis, Public Information Officer, Idaho Department of Corrections, Jan. 22, 1997).

45 337 P.2d 1, decided Feb. 20, 1959. Rehearing denied Apr. 2, 1959. Cert. denied, 361 U.S. 882, decided Nov. 9, 1959.

46 337 P.2d, at 3.

47 Id. Gerassi’s book discusses Halverson in some depth. The police referred to him as "one of our best informers. He pinned a lot of guys." (Page 24). The police also acknowledged discriminatory enforcement of the sodomy law. (Pages 24-25).

48 Larsen, at 3.

49 Id. at 4. Gerassi’s book documents that Larsen lost his job, his apartment, and his fiancée as a result of his arrest, all before he was convicted. His trial is detailed in pages 191-283, and in the appendices, pages 291-314.

50 Larsen, at 4.

51 Id. at 5.

52 Id. at 6. Larsen was released from prison July 24, 1961. (Correspondence from Mark Carnopis, Public Information Officer, Idaho Department of Corrections, Jan. 22, 1997). For an interview with an anonymous victim of the witch hunt, see Jonathan Katz, Gay American History, (New York: Crowell, 1976), pages 109-119. The identity of the interviewee is determined easily by reading Gerassi’s book.

53 Idaho Session Laws 1971, page 630, ch. 143, enacted Mar. 18, 1971, effective Jan. 1, 1972.

54 Id. at 634, §18-105.

55 Id. at 730, §5.

56 Id. §6.

57 The Advocate, Vol. 85 (May 10, 1972), page 3.

58 Idaho Session Laws 1972, page 223, ch. 109, enacted Mar. 8, 1972, effective Apr. 1, 1972.

59 Idaho Session Laws 1972, page 844, ch. 336, enacted Mar. 27, 1972, effective Apr. 1, 1972.

60 Id. at 857, §18-303.

61 Id. at 966, §18-6605.

62 641 P.2d 998, decided Mar. 3, 1982.

63 Id. at 999.

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

65 Idaho Session Laws 1972, page 27, ch. 21, enacted Feb. 19, 1972.

66 Correspondence from Linda L. Caballero, Director of the Department of Health and Welfare, July 19, 1996.

67 Stonewall Union Reports, November 1990, page 4.

68 788 P.2d 857, decided Mar. 14, 1990.

69 Id. at 859.

70 Id. at 863.

71 824 P.2d 163, decided Jan. 2, 1992. Petition for review denied Feb. 12, 1992.

72 Id. at 166.

73 Id. at 169.

74 Id.

75 Id. at 170.

76 843 P.2d 675, decided Dec. 4, 1992.

77 Washington Blade, July 24, 1992, pages 30-31.

78 Idaho Session Laws 1993, page 392, ch. 155, enacted Mar. 25, 1993.

79 Id. §18-8302.

80 Id. §18-8303(a).

81 Id. §18-8303(b).

82 Id. at 393, §18-8305.

83 Id. at 394, §18-8311.

84 890 P.2d 341, decided Jan. 19, 1995. Rehearing denied Mar. 3, 1995. Petition for review denied Mar. 21, 1995.

85 Id. at 347.

86 Id. at 346-347.

87 Id. at 348.

88 Id.

89 Idaho Session Laws 1996, page 904, ch. 249, enacted Mar. 14, 1996, effective July 1, 1996.

90 Id. §1.

91 Id. §2.

92 Idaho Code, §18-303.

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