The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
"We have no doubt that citizens generally consider
sodomy detestable and abominable. It is a dirty business."
The Post-Revolution Period, 1776-1873
For two centuries, Maine was part of Massachusetts. It was separated in
1820 and admitted as a state, carrying the laws of Massachusetts with it.1
This made sodomy, under the Massachusetts law, male-only in applicability and
punishable by hard labor for up to 10 years.
In 1821, a separate sodomy law was enacted2
that copied the sex discrimination in the Massachusetts law, stating:
That if any man shall commit the crime against nature with a man or
male child, or man or woman shall have carnal copulation with a beast...3
The penalty was set at one years solitary confinement followed by up to
10 years of hard labor.4
This law remained until a revision of 18405
eliminated the gender-specific wording, the one year of solitary, and the hard
labor provision. The word "detestable" was added to "crime
against nature." The ten-year maximum remained.6
A new law of 18577 deleted the word
"detestable" and established a minimum penalty of one year, with the
10-year maximum again retained.8
Period Summary: Maine quickly demonstrated independence from
Massachusetts when it enacted a new sodomy law, separate from an entire
criminal code, a year after statehood. It followed a stereotyped view of
sodomy, believing that a male could commit the act only with another male
and that a female could do so only with a beast. There were tinkering-type
changes made to the law twice more, eliminating that gender stereotyping,
revising the penalty, and creating, then eliminating, a moral statement
with the word "detestable" in the crimes name.
The Victorian Morality Period, 1873-1948
In 1910, in Conant et al. v. Jordan et al.,9
the Maine Supreme Court ruled unanimously that the state did not recognize
The first reported sodomy case was State v. Cyr,10
decided in 1938. The Maine Supreme Court was asked to decide if fellatio
constituted the "crime against nature." The unanimous per curiam
decision noted that the
evidence established beyond a reasonable doubt that he was guilty of
committing the filthy and unnatural sexual act known to medical
jurisprudence as fellatio.11
This is curious because Cyr had been charged with sodomy with a woman, who
obviously had to commit the fellatio on him. It appears that the woman
was not prosecuted, and there is no statement in the decision that the
activity was non-consensual. The Court noted that the statute
gives no definition of the crime but with due regard to the sentiments
of decent humanity treats it as one not fit to be named, leaving the
record undefiled by the details of the different acts which may constitute
The Court noted several cases from the United States holding that fellatio
was not a "crime against nature," but then stated that "the
weight of recent authority apparently supported by better reasoning"
convinced them that fellatio could be prosecuted.13
In 1939, the Court was faced with the case of State v. Langelier.14
In another brief and unanimous opinion, the Court decided that consent was no
defense to a charge of sodomy.15
Period Summary: During this era, Maine was one of the quieter
states on the issue of sodomy. No statutory changes were made, the state
apparently satisfied with the law as finally amended in 1857. Maine
followed the national trend in having its courts decided that fellatio was
a "crime against nature."
The Kinsey Period, 1948-1986
The next reported case was State v. Townsend,16
decided by the Maine Supreme Court in 1950. Faced with the question of whether
cunnilingus was a "crime against nature," the Court said that
"[t]he same reasoning that would include fellatio within the crime
against nature impels us to interpret the phrase as including
cunnilingus."17 Thus, with that greatly
detailed analysis, Maine had its "crime against nature" law
broadened to include cunnilingus.
In the case of State v. Pratt,18 from
1955, the Maine Supreme Court ruled unanimously that the masturbation of
another person did not violate the sodomy statute. The Court said that
"[not] every act of sexual perversion is encompassed" within the
statute. Masturbation was a "vile, unnatural and detestable sexual
perversion," but not a violation of law.19
In a 1965 case, State v. Viles,20 the
Maine Supreme Court ruled that penetration was essential to an act of sodomy.21
In the case of State v. White,22 from
1966, the Court rejected several contentions of a Gay man prosecuted for
sodomy. First, a claim of vagueness in the wording of the statute was rejected
nearly a century and a half no one before the respondent has contended
that the statute should more specifically set forth details of the crime
charged. Reason and history are both against the respondent on this issue.23
Second, John White claimed that the words "detestable" and
"abominable" appearing in the indictment were inflammatory and
prejudicial. The Court responded: "We have no doubt that citizens
generally consider sodomy detestable and abominable. It is a dirty
business." These words were not "necessary" but did not
"destroy the indictment."24 The third
claim was that the law was an unconstitutional invasion of privacy. The Courts
lengthy analysis was: "It is sufficient to say that sodomy has been a
crime over the centuries." As a result of these 14 words, the Court
added: "We conclude therefore that the statute is constitutional and the
indictment is sufficient."25
Whites case came back to the Court several years later. White II26
revealed that, upon retrial, White successfully moved for a mistrial, although
the reason was not revealed. A third trial resulted in his conviction and
White raised additional points in his second hearing before the Maine Supreme
Court, each of them rejected. He argued that consent should be a defense to a
charge of sodomy27 and that the trial judge
should have instructed the jurors upon finding them not having reached a
verdict that White should be acquitted if there were any doubt among any of
Meanwhile, other cases reached the Court. In 1966, in State v. Graves,29
the Court upheld a sodomy conviction despite conflicting testimony and the
admission into evidence of "pornographic" photos in possession of
the defendant as corroborative evidence.30
In 1968, the Maine Supreme Court upheld the testimony of a mentally
retarded boy on whom acts of sodomy were alleged by his grandfather in State
v. Fischer.31 The vote of the Court was
4-2. One of the two dissenting justices said that "very real and serious
doubts as to the truthfulness of the accusations" were raised and the
other said that, from reading the trial transcript, "serious
considerations" as to the competency of the boy were raised.32
The last reported sodomy case was State v. Pratt,33
decided in 1973. The conviction of Pratt was overturned by the Maine Supreme
Court because the trial judge, in giving instructions to the jury, stated that
sodomy was complete upon a mere touching of a penis. The Supreme Court
reiterated state law that actual penetration had to be proven.34
This decision was too much for two justices of the Court, however. One didnt
sit during the case and the other heard arguments but withdrew before the
decision came down.
In 1975, Maine passed a comprehensive criminal code revision35
that abrogated common-law crimes36 and repealed
the sodomy law37 with the age of consent set at
Period Summary: During this era, Maines courts showed fairly
consistent support for sodomy prosecutions. There were no statutory
changes in the law until a new criminal code was adopted in 1975 that
followed the Model Penal Codes recommendation and repealed the sodomy
The Post-Hardwick Period, 1986-Present
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
1 Acts and Resolves of
Massachusetts 1819, page 248, ch. CLXI, at 258, §6, enacted
June 19, 1819, effective Mar. 15, 1820.
2 Laws of Maine 1822 [sic],
page 58, ch. V, enacted Feb. 19, 1821.
5 The Revised Statutes of the State
of Maine, (Hallowell ME:Glazier, Masters & Smith, 1847),
enacted Oct. 22, 1840.
6 Id. at 685, §4.
7 The Revised Statutes of the State
of Maine, Passed April 17, 1857, (Bangor:Wheeler & Lynde,
8 Id. at 684, §3.
9 77 A. 938, decided Oct. 27, 1910.
This case gives a lengthy and detailed history of the common law in
both Maine and Massachusetts, dating to colonial times.
10 198 A. 743, decided Apr. 27, 1938.
13 Id. at 743-744.
14 8 A.2d 897, decided Nov. 3, 1939.
15 Id. at 897-898.
16 71 A.2d 517, decided Feb. 7, 1950.
17 Id. at 518.
18 116 A.2d 924, decided Sep. 19,
19 Id. at 925.
20 206 A.2d 539, decided Jan. 28,
22 217 A.2d 212, decided Feb. 23,
23 Id. at 214.
24 Id. at 215.
26 295 A.2d 832, decided Jan. 7,
27 Id. at 835.
28 Id. at 837.
29 224 A.2d 57, decided Nov. 14,
30 Id. at 60-62.
31 238 A.2d 210, decided Feb. 16,
32 Id. at 216.
33 309 A.2d 864, decided Oct. 1,
34 Id. at 865.
35 Maine Public Laws 1975,
page 1273, ch. 499, enacted June 3, 1975, effective May 1, 1976.
36 Id. at 1275, §3.
37 Id. Pages 1297-1300 deal
with sexual offenses retained.
38 Id. at 1299, §254.
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