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

Kentucky

"[T]he word ‘sodomy’ is derived from the city of Sodom, where the crime against nature had its origin, and was universally prevalent until that city was destroyed by the wrath of God."

 

The Post-Revolution Period, 1776-1873

The first Kentucky Constitution, adopted in 1792,1 received all laws of Virginia that existed as of June 1, 1792.2 This included the English buggery statute that applied only to males.3

In 1798, the Kentucky legislature adopted a statute, "An Act to amend the Penal Laws of this Commonwealth."4 The penalty for sodomy was changed to 2-5 years in the jail and penitentiary house.5

Period Summary: Kentucky passively obtained its first law against sodomy upon creation by being given Virginia laws. The state adopted its own sodomy law a few years later and set the penalty at a maximum of five years rather than the death sentence possible under the earlier law. There are no published sodomy cases during this era.

The Victorian Morality Period, 1873-1948

The curious case of Commonwealth v. Hardin6 was decided in 1880. In this undetailed case, William Hardin was freed from an indecent exposure charge when the court noted that the charge did not say the exposure "was made without the consent of those witnessing it."7 The gender of the two "persons" to whom Hardin exposed himself was not specified.

More than a century passed before any reported case appeared under the sodomy statute. In 1903, the Kentucky Court of Appeals, deciding the case of White v. Commonwealth,8 rejected the defendant’s contention that a trial court needed to advise the jury of the "specific acts that constitute the offense."9 The Court admonished the defendant that "[e]very person of ordinary intelligence understands what is meant by a charge of sodomy"10 and rejected the defendant’s claim that emission of semen was necessary.11

In 1909, the same court was faced with a different question of law in Commonwealth v. Poindexter et al.12 C.H. Poindexter and Frank Moore had been convicted of sodomy for engaging in fellatio. A unanimous decision written by Chief Justice W.E. Settle sustained a decision of a lower appellate court that fellatio was not contemplated by the term "crime against nature."13 The decision came, however, after a substantial amount of moralizing by the Court. The

acts charged against the appellees are so disgusting that we refrain from copying the indictment in the opinion.14

The word "sodomy" was derived

from the city of Sodom, where the crime against nature had its origin, and was universally prevalent until that city was destroyed by the wrath of God.15

The Court apparently believed that two males who engaged in such activity were not human beings. The act could be committed "between two human beings, or man and man[.]"16 After reviewing ancient writers and case law in the United States,17 the Court decided that fellatio was not a violation of the sodomy law, but stated that it was

unable to see why the act with which appellees stand charged is not as much a crime against nature as if done in the manner sodomy is usually committed; but as the only authorities we have been able to discover decide otherwise, we regard it our duty to follow precedent, and for this reason alone we hold that the circuit court properly held the indictment bad, and dismissed it. It is to be hoped, however, that the Legislature will by proper enactment make such an infamous act as that of which appellees confess themselves guilty a felony and punishable as such.18

A puzzling guide about the sodomy law was published for judges and attorneys in 1918.19 The section on sodomy made contradictory statements. Attempting to define sodomy, buggery, and bestiality, the guide stated, in the same chapter, that the three terms were synonymous and that "sodomy is not bestiality."20 In addition, sodomy was unnatural copulation with man or beast, but it also was only unnatural copulation between humans.21 Therefore, it was unclear just what was considered to be the crime in Kentucky.

Period Summary: Case law on sodomy appeared during this era. One case disposed of a challenge by claiming that everyone knew what constituted sodomy, but another just a few years later held that an act of fellatio did not violate the law. The Kentucky Supreme Court made religious appeals in its decision and urged the legislature to change the law, but that did not occur for more than fifty years. A legal guide published during this era showed a great deal of confusion as to what acts were considered violations of the law.

The Kinsey Period, 1948-1986

Despite Poindexter, it was not until 1962 that any change in the law was made.22 It became illegal for anyone over the age of 17 to engage in "any indecent or immoral practices with the body or organs" of anyone over the age of 15. The penalty was set at 1-5 years.23 This obviously would cover virtually any consensual erotic activity.

No more sodomy cases occurred until 1968 with United States v. Milby,24 a case prosecuted under the Assimilative Crimes Act because the sex in question occurred on a U.S. military reservation. In a case of a sexual assault of a young male by four other young males, a question was raised as to whether the acts perpetrated met Kentucky’s definition of sodomy—anal penetration.25 Mentioning an unspecified "equally odious" sexual act of Milby’s,26 the Court conceded that it may not constitute sodomy under Kentucky law, but he still could be punished as an aider and abettor of sodomy.27

In 1974, the legislature adopted a comprehensive criminal code revision,28 the first revision of the sodomy law in 176 years. The new code abolished common-law crimes29 and made "deviate sexual intercourse with another person of the same sex" criminal.30 The definition of deviate sexual intercourse included "any act of sexual gratification...involving the sex organs of one person and the mouth or anus of another."31 The penalty was reduced to a misdemeanor with a maximum penalty of 12 months in prison and/or a fine of $500.32

In a 1977 case, Cooper v. Commonwealth,33 the Kentucky Supreme Court ruled unanimously that it was irrelevant under state law that the alleged victim of a sodomitical assault may have been homosexual.34

In 1980, the Kentucky Supreme Court ruled, in Gregory v. Commonwealth,35 that circumstantial evidence could be used to prove penetration.36 Justice Robert Lukowsky, writing for the Court, also gave his expert opinion that one of the boys in the case had a "very large relaxed sphincter" which Lukowsky said, without citations, was "a common condition in male homosexuals."37

Period Summary: Kentucky moved slowly after the Kinsey reports and the Model Penal Code appeared. In 1962, more than a half-century after the Kentucky Court of Appeals held that oral sex did not constitute a violation of the sodomy law, a vague statute covering "immoral or indecent practices" was enacted. This law was broad enough to cover practically any erotic activity. The Kentucky sodomy law was the oldest one in the nation when it was revised in a new code in 1974 that lowered the penalty to a misdemeanor and made the law applicable only to same-sex activity.

The Post-Hardwick Period, 1986-Present

A state trooper was convicted in 1991 of consensual sodomy with an assistant school principal based only on the charge of "another trooper’s mother."38

In 1992, in Commonwealth v. Wasson,39 the Kentucky Supreme Court, by a 4-3 vote, decided that the consensual sodomy law was unconstitutional as both a violation of the right to privacy and equal protection of the law. The majority found important the fact that Wasson had secured seven expert witnesses at his trial, each representing a different professional discipline, and each of whom had given impressive testimony.40 The Commonwealth of Kentucky

on the other hand, presented no witnesses and offers no scientific evidence or social science data. Succinctly stated, its position is that the majority, speaking through the General Assembly, has the right to criminalize sexual activity it deems immoral, without regard to whether the activity is conducted in private between consenting adults and is not, in and of itself, harmful to the participants or to others; that, if not in all instances, at least where there is a Biblical and historical tradition supporting it, there are no limitations in the Kentucky Constitution on the power of the General Assembly to criminalize sexual activity these elected representatives deem immoral. [Emphasis added].41

The Commonwealth and the Supreme Court concurred in an error that Kentucky had criminalized sodomy only in 1860,42 whereas it had been criminal in Kentucky since 1792. (See the beginning of this chapter). Justice Charles Leibson, writing for the majority, rejected the argument that the Hardwick decision foreclosed the issue for the state43 and that the state’s privacy guarantee was no broader than that of the federal constitution. In fact, he recited a long string of case law on the subject that the Commonwealth attempted to overlook.44 The U.S. Supreme Court’s Hardwick decision was "a misdirected application of the theory of original intent."45 Leibson pointed out that the U.S. Supreme Court had struck down the nation’s anti-miscegenation laws, even though they had as equally "ancient roots" in the law as anti-sodomy laws.46 As far as equal protection is concerned, no better result could have occurred than Leibson’s magical words. The majority

need not speculate as to whether male and/or female homosexuals will be allowed status as a protected class if and when the United States Supreme Court confronts this issue. They are a separate and identifiable class for Kentucky constitutional law analysis because no class of persons can be discriminated against under the Kentucky Constitution. All are entitled to equal treatment, unless there is a substantial governmental interest, a rational basis, for different treatment. [Emphasis added].47

Thus, Gay men and Lesbians are part of a "suspect class" under Kentucky law, a decision with spectacularly broad implications in discrimination and child custody cases. The sodomy law punishes people "because they are different rather than because of what they are doing."48 The arguments put forth by the Commonwealth to justify the law were "simply outrageous."49 The Court could

attribute no legislative purpose to this statute except to single out homosexuals for different treatment for indulging their sexual preference [sic] by engaging in the same activity heterosexuals are now at liberty to perform. By 1974 [when the current law was enacted] there had already been a sea change in societal values insofar as attaching criminal penalties to extramarital sex. The question is whether a society that no longer criminalizes adultery, fornication, or deviate sexual intercourse between heterosexuals, has a rational basis to single out homosexual acts for different treatment. Is there a rational basis for declaring this one type of sexual immorality so destructive of family values as to merit criminal punishment whereas other acts of sexual immorality which were likewise forbidden by the same religious and traditional heritage of Western civilization are now decriminalized? If there is a rational basis for different treatment it has yet to be demonstrated in this case. We need not sympathize, agree with, or even understand the sexual preferences [sic] of homosexuals in order to recognize their right to equal treatment before the bar of criminal justice.50

Justice Combs wrote an eloquent concurring opinion although he joined Leibson’s strong majority opinion. Combs asked

whether a majority, believing its own happiness will be enhanced by another’s conformity, may not enforce its moral code upon all. The answer is that, first, morality is an individual, personal—one might say, private—matter of conscience, and dwells inviolate within the fortress of [the privacy provision of the Kentucky constitution].51

Writing a dissent, Justice Lambert, joined by Justice Reynolds, whined that the majority

has found it necessary to disregard virtually all of recorded history, the teachings of the religions most influential on Western Civilization, the debates of the delegates to the Constitutional Convention, and the text of the Constitution itself. [Emphasis added. Citation omitted].52

Ordinarily, courts favor the legal doctrine of stare decisis, that of following previous court opinions on subjects to adopt a continuous rule of law on an issue. Lambert found the majority’s following of that doctrine from previous privacy-related cases to be too much for him to stomach. The fact that a previous Kentucky Supreme Court

broadly declared a right of privacy prior to World War I in cases which one suspects were influenced by local economic forces does not mean that such a doctrine should be applied in the extreme nearly a century later to a moral question not remotely considered by the Campbell court. [Emphasis added].53

Thus, Lambert’s reference to "a moral question" that was an "extreme" application of stare decisis showed that his distress with the court’s decision rested on more than legal issues. Lambert also noted that a rational basis for a discriminatory sodomy law was protection of the public health. "This objective found new vitality with the emergence of the AIDS epidemic which indisputably originated in this country in the homosexual community." [Emphasis added].54 The Wasson decision would be regarded as "the imprimatur of Kentucky’s highest court upon homosexual conduct."55 He concluded: "Where the slippery slope may lead is anybody’s guess, but the ramifications of this decision will surely be profound."56 A breathless dissent by Justice Wintersheimer began by arguing that Wasson had been convicted of public solicitation, not private sodomy, so that the majority’s opinion was misdirected.57 Despite the majority’s stern dismissal of the Commonwealth’s testimony, Wintersheimer said that it was "indisputable" that

homosexuals are more promiscuous than heterosexuals; that infectious diseases are more readily transmitted by anal sodomy than by any other form of sexual copulation; and that homosexuals account for 73 percent of all AIDS cases in this country. Clearly the interest of all Kentuckians in protecting public health, safety and morals are at issue. The necessity for controlling such behavior prevails over any equal protection challenge.58

In that hysterical missive, Wintersheimer first apparently assumed that anal sodomy was a homosexual phenomenon only, that the general lack of AIDS in Lesbians was irrelevant to his argument, and that discrimination was justified because of prejudice. Wintersheimer repeated his belief that "the AIDS virus supports the legitimate exercise of governmental police power by the legislature in banning sodomy,"59 but did not explain why opposite-sex sodomy was legal. Wintersheimer also stated that in Kentucky, where "homosexual sodomy" was illegal, there were "relatively few cases of AIDS,"60 thus apparently believing that this law prevented sexual activity. He repeated the "73 percent" reference two more times in his dissent, showing the focus of his thinking.

The age of consent for sodomy is 16.61

One state legislator announced plans to amend the state constitution during the 1994 legislative session to prohibit anal sex between unmarried persons, but not either vaginal or oral sex. He said it was only for purposes of preventing sexually transmitted diseases. The Kentucky chapter of the American Civil Liberties Union announced it would fight the effort.62 The effort failed when the legislature returned a proposed amendment to committee before adjourning.63

Period Summary: Kentucky made up for its slow movement through the 19th and earlier 20th centuries. In 1992, the Kentucky Supreme Court handed down a landmark decision that the sodomy law was an unconstitutional violation both of privacy and equal protection of the laws. The sweeping language used by the Court labeled Gay men and Lesbians as suspect classes under Kentucky law, something that has very broad implications for areas of law such as government employment and child custody. Kentucky thus is the only state in the nation currently where Gay men and Lesbian have received such a legal standing.

 


Footnotes

1 Littell & Swigert, eds., Digest of Kentucky Statute Law, Vol. 1, (Frankfort:Kendall & Russell, 1822), page 36, 8.

2 Id.

3 The Statutes at Large Being a Collection of All the Laws of Virginia from the First Session of the Legislature in the Year 1619, (Richmond:William Waller Hening, 1810), Chapter II, page 143, enacted Mar. 23, 1661.

4 Digest of the Statute Laws of Kentucky of a Public and Permanent Nature, Vol. II, (Frankfort:Albert G. Hodgen, 1834), page 1264, enacted Feb. 10, 1798.

5 Id. at 1265, 4.

6 10 Ky. Opin. 925, decided Dec. 9, 1880.

7 Id.

8 73 S.W. 1120, decided May 5, 1903.

9 Id.

10 Id.

11 Id.

12 118 S.W. 943, decided May 7, 1909.

13 Id. at 944.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 R.S. Rose, ed., Kentucky Criminal Law Procedure and Forms, Vol. I, (Cincinnati:W.B. Anderson Co., 1918).

20 Id. at 331, 535.

21 Id. 535 and 536.

22 Kentucky Acts 1962, page 1035, ch. 298, enacted Mar. 29, 1962. The law became effective without the signature of the Governor.

23 Id. 2.

24 400 F.2d 702, decided Sep. 25, 1968.

25 Id. at 705.

26 Id. at 706.

27 Id.

28 Kentucky Acts 1974, page 831, ch. 406, enacted Apr. 2, 1974, effective Jan. 1, 1975.

29 Id. 2.

30 Id. at 847, 90.

31 Id. at 846, 81.

32 Id. 274.

33 550 S.W.2d 478, decided Jan. 28, 1977.

34 Id. at 480.

35 610 S.W.2d 598, decided Nov. 25, 1980.

36 Id. at 599.

37 Id.

38 Washington Blade Apr. 5, 1991, page 21.

39 842 S.W.2d 487, decided Sep. 24, 1992. Rehearing denied Jan. 21, 1993. The case dragged on for some six years because of a dispute as to whether Kentucky could appeal the dismissal of charges against Wasson. An appellate court decided that it could, which sent the case back to the second level of court for a decision. See Commonwealth v. Wasson, 785 S.W.2d 67, decided Jan. 12, 1990. The Kentucky Supreme Court’s Wasson decision was the lead story in the Winter 1992-1993 issue of Civil Liberties.

40 842 S.W.2d, at 488-489.

41 Id. at 490.

42 Id. at 490-491.

43 Id. at 490-492.

44 Id. at 492-497.

45 Id. at 497.

46 Id.

47 Id. at 500.

48 Id. at 501.

49 Id.

50 Id.

51 Id. at 502-503.

52 Id. at 503.

53 Id. at 505.

54 Id. at 508-509.

55 Id. at 509.

56 Id.

57 Id. at 509-510.

58 Id. at 511.

59 Id. at 516.

60 Id.

61 Kentucky Revised Statutes, 510.020(3)(a).

62 Washington Blade, Oct. 30, 1992, pages 32-33.

63 Washington Blade, Mar. 25, 1994, page 18.


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