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

Maine

"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 year’s 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 crime’s 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 common-law crimes.

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 perversion.12

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 because for

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 Court’s 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

White’s 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 them.28

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 didn’t 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 16.38

Period Summary: During this era, Maine’s 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 Code’s recommendation and repealed the sodomy law.

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 prosecution.


Footnotes

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.

3 Id.

4 Id.

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, 1857).

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.

11 Id.

12 Id.

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, 1955.

19 Id. at 925.

20 206 A.2d 539, decided Jan. 28, 1965.

21 Id.

22 217 A.2d 212, decided Feb. 23, 1966.

23 Id. at 214.

24 Id. at 215.

25 Id.

26 295 A.2d 832, decided Jan. 7, 1972.

27 Id. at 835.

28 Id. at 837.

29 224 A.2d 57, decided Nov. 14, 1966.

30 Id. at 60-62.

31 238 A.2d 210, decided Feb. 16, 1968.

32 Id. at 216.

33 309 A.2d 864, decided Oct. 1, 1973.

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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