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

Kansas

"The particular form of abomination which shocked the sensibilities of our forefathers."

 

The Post-Revolution Period, 1776-1873

The Organic Act for Kansas1 of 1854 made no provision for criminal law.

In a code adopted by the Kansas territorial legislature in 1855, sodomy was made a felony with a penalty of "not less than ten years."2 Since no maximum was established, life imprisonment presumably was permissible.

This apparently was considered too harsh because, in 1859, the territorial legislature revised the penalty to read "not exceeding ten years,"3 thus making the previous minimum the new maximum.

Summary Period: The Kansas-Nebraska Act left not only the more famous issue of slavery to be decided by popular sovereignty, but made no mention of sodomy. The Kansas legislature, in adopting the first code of laws for the territory, outlawed sodomy as a felony and used the common-law definition.

The Victorian Morality Period, 1873-1948

I. Sodomy

In a decision in 1895, the Kansas Supreme Court held in State v. Young4 that the state did not recognize common-law crimes.5

The first reported sodomy case in Kansas was the 1925 decision in State v. Hurlbert.6 Wayne Hurlbert had been convicted of an act of fellatio with an 11-year-old boy and appealed on the ground that this did not constitute the "crime against nature." Justice John Dawson penned a unanimous, and brief, decision that fellatio was a violation of the law. He moralized shamelessly in the opinion, gave a pedantic review of ancient history, and committed one major error in his analysis as well. Dawson stated that Hurlbert and the unnamed boy had served "alternately as actor and catamite, as Zeus and Ganymede."7 The particular act that they performed was not "the particular form of abomination which shocked the sensibilities of our forefathers and fell into their category of crimes."8 However, there was a "plethora of juristic learning" on this "morbid subject" that included "sidelights touching such depravities in Holy Writ and in Greek and Cretan mythology[.]"9 Without going into the details of these sidelights, the Court held that "proof of any actual, lecherous penetration of the body of a man, woman, or beast, per os, per anum, or in any other manner contrary to nature, will sustain a conviction."10 The Court concluded with an acknowledgement that a number of other courts had ruled that fellatio did not constitute the "crime against nature," but gloated that it "found itself in excellent company" with other courts that decided to the contrary.11 One citation listed as supporting the Kansas view was the Nebraska case that actually ruled just the opposite, that fellatio did not violate the state’s sodomy law.12

In 1935, the Kansas Supreme Court next faced a case, State v. Badders,13 that dealt with consenting teenagers engaging in fellatio with an adult male. The Court was asked again to decide that fellatio was not a violation of the statute, which it refused,14 and it denied the defendant’s contention that his rights were violated by not being allowed to inspect written statements made to the prosecutor by the four teens.15 The prosecution had permitted testimony of previous similar acts by the defendant, both inside and outside Kansas, for the purposes of showing "habit, motive, and practices" of the defendant.16 Testimony favorable to the defendant by other young males that he never had tried such activity with them was held by the Supreme Court to have been properly excluded by the trial court.17 Due to a question presented by the prosecution as to the mental health of anyone who would engage in such acts, the trial court appointed a commission to inquire into the mental health of the defendant, an action also upheld by the Kansas Supreme Court.18 Unspecified remarks made by the trial judge also were held to be nonprejudicial to the defendant’s rights and the Court concluded that there was no error in the trial.19

II. Sterilization

The sterilization of persons whose sexual orientation did not please the state had a lengthy history in Kansas, even without legal authorization to do so. A 1911 medical journal article20 noted with approval that the state institution for the mentally retarded had sterilized 58 inmates, 14 females and 44 males, in the 1890s.21 Thirty-six of the total (all 14 females and 22 males) remained in the institution as of the date of the article’s publication, the rest having either died or been taken home by relatives. The article gleefully noted that the inmates no longer practiced "onanism and other prevalent perversities" because the surgery had rendered them incapable of sexual enjoyment.22 The type of operation performed was the radical surgery of castration in males and ovariotomy in females, which caused major physiological changes in many of the inmates. The radical surgery was recommended because it would "limit lewdness and vice."23 "All sexual desires have been lost and they are impotent in every sense of the word."24

Sterilization received legal authorization in 1913 with a statute25 permitting the sterilization of state inmates, including "habitual criminals."26

The law was revised in 191727 allow sterilization of any inmate of a state institution, including prisons and reformatories, whose "mental or physical condition" would be thought to benefit from the operation.28

The sterilization law unanimously was upheld in 1928 by the Kansas Supreme Court in the case of State ex rel. Smith v. Schaffer.29

Through the end of 1934, there had been 1,362 sterilizations in Kansas, with about 19% of them via the radical procedures of castration or oophorectomy, Kansas being one of the few states whose law permitted them.30

Summary Period: Kansas courts read the term "crime against nature" broadly to include virtually all eroticism. The state adopted a sterilization law after one state institution took it upon itself to perform such operations without statutory authorization. Kansas, unlike most states, performed a large number of the extreme forms of sterilization—castration and oophorectomy. The law permitted sterilization of anyone whose "mental or physical condition" would benefit from such an operation, and the law’s constitutionality was sustained by the Kansas Supreme Court.

The Kinsey Period, 1948-1986

I. Sodomy

In 1953, Kansas passed a psychopathic offender law31 with the large net covering

any offense against public morals and decency, as relating to crimes pertaining to sex, in which perversion or mental aberration, appears to be or is involved[.]32

Another case dealing with fellatio came to the Kansas Supreme Court in 1953. In State v. Fletcher,33 the Court again rejected a request to overrule the Hurlbert decision.34 It also upheld the introduction into evidence of certain "physical culture literature" and photographs "showing unnatural sexual intercourse and other lewd conduct" that had been admitted only to show the "character, habits, motives, disposition, and practices of the appellant[.]"35

In 1954, the solitary reported case leading to a victory for the defendant, State v. Bereman,36 was decided. The Kansas Supreme Court unanimously ruled that solicitation to commit an act of sodomy did not constitute an attempt to commit it.37

The psychopathic offender law was upheld twice, first by the Tenth Circuit Court of Appeals in 1965, in Cullins v. Crouse,38 and in 1967 by the Kansas Supreme Court in State v. English.39

The psychopathic offender law received a revision in 196840 that permitted deferral of sentence until the judge could determine "what disposition shall be made of the defendant."41

A comprehensive revision of the state’s criminal code in 196942 reduced sodomy from a felony to a misdemeanor, with a penalty of up to six months in jail and/or a $1,000 fine,43 but made a distinction in that the conduct would be criminal only between people of the same sex,44 something untrue of any other jurisdiction in the United States at the time. This is despite the claim of the Judicial Council, which had recommended the new code, that the law was similar in wording and penalty to those of other states revising their codes during the same era.45

Also based on spurious claims was the code’s new vagrancy law.46 It included a provision prohibiting loitering "on the streets or in a place open to the public with intent to solicit for immoral purposes[.]"47 The penalty for this was almost the same as for sodomy. The Judicial Council’s justification for this law noted that

[e]very society has its misfits. They often constitute more of an annoyance than a menace to the community...It is a peculiar characteristic of such laws that they traditionally punish being such a person rather than an act done by him.48

Thus, this law’s purpose as status legislation is clear. Also clear was the law’s hostility to civil liberties. The Council’s statement about the law continued.

The vagrancy concept is a useful one for law enforcement officers. It enables them to make cases against undesirables without evidence of a specific crime...In brief, such laws are generally used by the police as a means of control of undesirables in the community.49

In 1970, the psychopathic offender law was repealed.50

A bill to repeal the sodomy law was introduced into the Kansas Senate in 1976 and passed that chamber by a razor-thin margin of 21-19. The bill failed to be considered by the House.51

A 1980 case shows the dangers of assuming the worst about an adult who engages in sexual relations with a consenting minor. In State v. Lovelace,52 the Kansas Supreme Court upheld the sodomy conviction of a man for consensual fellatio with a boy of 14 who initiated contact with the adult. The boy had requested nude magazines, and selected both Honcho and Blueboy, among others. Mentioning that he "gets hard" when viewing the photos, the boy voluntarily removed his pants so that Lovelace could rub his penis while it was erect. Later, the boy spent the night at Lovelace’s house, sleeping alone on the couch, where Lovelace came and rubbed and then sucked the boy’s penis. The boy claimed to be shocked by the action, but did nothing, and fell back asleep, staying until morning. When he left, he notified his parents, who had Lovelace arrested.53 For what arguably was consensual activity, Lovelace received a sentence of 45 years-life plus 15 years.

Lovelace tried to have his life sentence reduced. He and two others convicted of other crimes all lost out when the Kansas Supreme Court unanimously denied their motions in the 1990 case of State v. Carmichael et al.54

Another revision of criminal laws in Kansas55 in 1983 apparently was designed to clean up the sloppy code from 1969. The crime of sodomy was changed to "criminal sodomy,"56 perhaps as a reminder that only that between people of the same sex was illegal. In addition, Kansas added a sodomy provision to the state’s incest law,57 so that consensual relations with a relative of the same sex also would be criminal.

In 1986, Kansas supplemented its sodomy law with an amendment to the state’s obscenity law58 outlawing the sale, manufacture, distribution, or advertising of any "obscene device." This was defined as

a device, including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.59

The law did not include purchase, possession, or use of such devices.

II. Sterilization

By the end of 1948, the number of sterilizations had reached 3,001, the third-highest total of any state in the nation, 113 of them persons other than retarded or insane.60

Another report on the sterilization law,61 issued in 1953, gave a little different history. It said that no sterilizations had been performed in the state in the preceding three years, and that 2,851 total operations had been performed, 150 fewer than the earlier report. In addition, this second report claimed that all of those sterilized were either mentally ill or retarded,62 then said, in contradiction, that the law had been used against a number of people apparently on punitive grounds.63 A small sample of Kansas physicians (14) revealed unanimous opposition to the law.64 One belief as to the cause of the sudden death of the sterilization law was the filing of a lawsuit in federal court in 1950, a suit pending at the writing of the article.65

The sterilization law was repealed in 1965.66

Apparently there are no records remaining on the number of persons sterilized in Kansas by category, making it impossible to know how many Gay men or Lesbians were subjected to it.67

Summary Period: Kansas remained resistant to the Kinsey view of sex. An extremely broad psychopathic offender law was enacted by the state during the McCarthy era, one that covered any "offense against public morals and decency." When, after the Model Penal Code was recommended and Kansas revised its criminal code, the state did not follow the Code’s recommendations. Instead, Kansas began an unfortunate trend in 1969 by limiting the applicability of the law only to acts performed between persons of the same sex. Kansas also remained one of the most enthusiastic of states on the issue of sterilization. By the end of 1948, it ranked third among all states in the number of persons sterilized, far higher than its population rank. It was not until a lawsuit was filed against the law in the 1950s that the procedure came to an end.

The Post-Hardwick Period, 1986-Present

In 1989, in State v. Moppin,68 the Kansas Supreme Court decided by a vote of 6-1 that cunnilingus did not constitute a violation of the state’s sodomy law. "We conclude that cunnilingus is not an act of "sodomy" as that term is defined by statute[.]"69 No analysis was given. The practical application of this decision is that, even though the Kansas sodomy law applied on its face to people of the same sex, only Gay men could be prosecuted under it.

The Kansas legislature reacted swiftly to this decision. In 1990, it enacted a statute70 to amend the sodomy law to include "oral-genital stimulation between the tongue of a male and the genital area of a female[.]"71 This law bluntly excluded relations between two women from its scope, but also reinstated criminal penalties for a single form of consensual sodomy between persons of the opposite sex.

In 1990, in State v. Hughes,72 the Kansas Supreme Court unanimously affirmed a trial court’s determination that the state law covering "obscene devices" such as dildos and artificial vaginas was unconstitutionally overbroad. The only defense witness at his trial was a psychologist who testified to the value of sex toys for therapy for people with various sexual dysfunctions.73 The court concluded that the law was unconstitutional as it applied to prescription by medical professionals.74

In the novel 1991 case of State v. Waterberry,75 the Kansas Supreme Court unanimously rejected the contention of a man that the information he faced should have specified that he was not married to his male partner, since the Kansas sodomy law is discriminatory and, if he were married to him, he couldn’t be prosecuted. The Court found that Waterberry and his partner could not have been married, since they both were male.76

Showing again what a sloppy legislature Kansas has, in 1991, the sodomy law was amended again77 to "correct" the errors of the 1990 law in criminalizing heterosexual cunnilingus and keeping legal Lesbian cunnilingus. The new statute revised the definition of the oral portion of the sodomy proscription to "oral contact or oral penetration of the female genitalia or oral contact of the male genitalia[.]"78

In 1992, a new sodomy law was enacted79 that established an age limit of 16 for variation between misdemeanor and felony activity.80

In 1992, in State v. Fore,81 the Kansas Court of Appeals unanimously ruled that mistake as to age of a consenting post-pubertal minor was no defense.

The revision to the sodomy law enacted in 1992 was repealed in 199382 before it had a chance to become effective.

In 1993, Kansas amended its obscene devices law83 to exclude "such devices disseminated or promoted for the purpose of medical or psychological therapy."84

Summary Period: Kansas has shown no inclination to repeal its sodomy law. The Kansas Supreme Court interpreted the law as not outlawing cunnilingus. The legislature quickly responded with a statute that, probably unwittingly, made only heterosexual cunnilingus illegal. It then moved to "correct" that problem by eliminating the gender references.


Footnotes

1 10 Stat. 277, enacted May 30, 1854.

2 Statutes of Kansas Territory 1855, (Shawnee M. L. School:John T. Brady, 1855), page 284, 7. The date of enactment is not provided. The preface (page vii) states that the legislative session began on July 22 and the preface itself is dated Nov. 1, 1855.

3 Territorial Laws 1859, ch. 28, 222, enacted Feb. 3, 1859.

4 40 P. 659, decided June 8, 1895.

5 Id. at 661.

6 234 P. 945, decided Apr. 11, 1925.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id. The Nebraska case was Kinnan v. State (q.v.). The Kansas court also misspelled "Kinnan" as "Kinman" in its opinion.

13 42 P.2d 943, decided Apr. 6, 1935.

14 Id. at 944.

15 Id. at 945.

16 Id.

17 Id.

18 Id.

19 Id.

20 F.C. Cave, "Report of Sterilization in the Kansas State Home for [the] Feeble-Minded," Journal of Psycho-Asthenics, 15:123-125 (1911).

21 Id. at 123.

22 Id.

23 Id. at 124.

24 Id. Additional information on the furor of the 1890s sterilization is found in Journal of the Kansas Medical Society, 23:143-148, at 147 (June 1923).

25 Laws of Kansas 1913, page 525, ch. 305, enacted Mar. 14, 1913. The Governor refused to sign the law, allowing it to take effect without his signature.

26 Id. 1.

27 Laws of Kansas 1917, page 443, ch. 299, enacted Mar. 13, 1917.

28 Id. 1.

29 270 P. 604, decided Oct. 6, 1928.

30 Abraham Myerson et al., Eugenical Sterilization: A Reorientation of the Problem, (New York:Macmillan Company, 1936), pages 12-13.

31 Laws of Kansas 1953, page 334, ch. 185, enacted Apr. 2, 1953.

32 Id. 1.

33 256 P.2d 847, decided May 9, 1953.

34 Id. at 849.

35 Id. at 848.

36 276 P.2d 364, decided Nov. 13, 1954.

37 Id. at 365.

38 348 F.2d 887, decided July 15, 1965. Rehearing denied Aug. 17, 1965.

39 424 P.2d 601, decided Mar. 4, 1967. Rehearing denied Mar. 31, 1967.

40 Laws of Kansas 1968, page 652, ch. 344, enacted Mar. 18, 1968.

41 Id. 1.

42 Laws of Kansas 1969, ch. 180, enacted Apr. 23, 1969, effective July 1, 1970.

43 Id. 21-3505.

44 Id.

45 See note following 21-3506, page 269, Kansas Statutes Annotated.

46 Id. 21-4108.

47 Id. (d).

48 See note following 21-4108, Kansas Statutes Annotated.

49 Id.

50 Laws of Kansas 1970, page 472, ch. 129, enacted Mar. 17, 1970, effective July 1, 1970.

51 The Advocate, Vol. 185 (Mar. 10, 1976), page 10.

52 607 P.2d 49, decided Mar. 1, 1980.

53 Id. at 52.

54 801 P.2d 1315, decided Dec. 7, 1990.

55 Laws of Kansas 1983, page 650, ch. 109, enacted Apr. 18, 1983.

56 Id. at 652, 5.

57 Id. at 653, 11.

58 Laws of Kansas 1986, page 594, ch. 121, enacted Apr. 25, 1986.

59 Id. at 597, 3(3)(c).

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

61 Dwayne L. Oglesby, "What Has Happened to Kansas’ Sterilization Laws?" 2 U.Kans.L.Rev. 174 (1953).

62 Id. at 176.

63 Id. at 176-177.

64 Id. at 177-179.

65 Id. at 179. The suit is Brown v. McFarlane et al., docket number KC-70, filed June 6, 1950. This case is in storage. Correspondence from Charles Frazey, Deputy Clerk, U.S. District Court of Kansas, Apr. 15, 1997.

66 Laws of Kansas 1965, page 1099, ch. 477, enacted Apr. 13, 1965, effective June 30, 1965.

67 Correspondence from John House, Kansas Department of Social and Rehabilitation Services, Mar. 11, 1996.

68 783 P.2d 878, decided Dec. 8, 1989.

69 Id. at 882.

70 Laws of Kansas 1990, page 929, ch. 149, enacted May 18, 1990.

71 Id. at 942, 2.

72 792 P.2d 1023, decided May 25, 1990.

73 Id. at 1025.

74 Id. at 1032.

75 804 P.2d 1000, decided Jan. 18, 1991.

76 Id. at 1004.

77 Laws of Kansas 1991, page 633, ch. 86, enacted Apr. 17, 1991.

78 Id. at 634, 2.

79 Laws of Kansas 1992, page 1922, ch. 298, enacted May 22, 1992, effective July 1, 1993.

80 Id. at 1932, 23.

81 843 P.2d 292, decided Dec. 11, 1992. Review denied Feb. 3, 1993.

82 Laws of Kansas 1993, page 1179, ch. 253, at 1205, 28, enacted Apr. 22, 1993, effective Apr. 29, 1993.

83 Laws of Kansas 1993, page 1179, ch. 253, enacted Apr. 22, 1993, effective Apr. 29, 1993.

84 Id. at 1194, (C)(3).


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