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

Mississippi

"[Fellatio] is unnatural, detestable, and abominable."

The Post-Revolution Period, 1776-1873

The 1798 Organic Law for the Mississippi Territory made no provision for criminal law.1

The first code of laws for the Territory, known as Sargent’s Code, was adopted in 1799.2 It included a criminal code that was silent both as to sodomy and common-law crimes.

However, in a code adopted in 1802,3 Mississippi recognized common-law crimes, thus making sodomy a capital offense.

This remained the only law dealing with sodomy until 1839 when Mississippi adopted a new criminal code4 that contained a sodomy law with a maximum penalty of 10 years.5 The law retained the common-law definition of sodomy.

Period Analysis: For its first few years of existence, Mississippi allowed sodomy. After recognizing common-law crimes and thus making sodomy a capital offense, no specific sodomy statute was enacted until 1839. It used the common-law definition and lowered the maximum penalty to 10 years.

The Victorian Morality Period, 1873-1948

In 1890, Mississippi adopted a new Constitution that included a section permitting exclusion of the public from trials for sodomy and a few other crimes.6

The first reported sodomy case was State v. Hill,7 decided by the Mississippi Supreme Court in 1937. The brief, unanimous opinion stated that cunnilingus did not constitute the "crime against nature" because penetration of the body was "essential to the offense."8

In 1942, the Mississippi legislature authorized a recodification of state law with that power given to the Mississippi Attorney General.9 The substitution of just a few words by the Attorney General in exercising that authority made a major change in state law. The heading over the sodomy law, formerly called "Crime Against Nature," became known as "Unnatural Intercourse."10 This change in phraseology not authorized by the legislature led to the decision of the Mississippi Supreme Court in the next reported case.

Period Analysis: During this time, Mississippi became the first (and only) state to adopt a provision barring the public from sodomy trials. A sensational trial must have occurred shortly before the provision was adopted. Always having used the common-law definition of the crime, it is not surprising that the Mississippi Supreme Court decided in its first published sodomy case that cunnilingus did not constitute a violation of it. A few years later when the laws were recodified, the wording of the law did not change, but its title did, now being called "Unnatural Intercourse."

The Kinsey Period, 1948-1986

In State v. Davis,11 the Mississippi Supreme Court, in 1955, ruled unanimously that, because of the recodification of the archaic law under the heading "Unnatural Intercourse," a prosecution of fellatio could be sustained.12 In an opinion almost as brief as Hill, the Court decided that fellatio

is unnatural, detestable, and abominable, and we hold that it was within the intention of the Legislature to make it a felony.13

In 1958, the Mississippi Supreme Court, in the likewise brief opinion in Taurasi v. State,14 unanimously upheld a conviction for an attempt to commit sodomy while explicitly rejecting an entrapment defense.15

In 1960, Mississippi enacted a law16 that amended the disturbing the peace statute by adding "indecent, or offensive, or boisterous conduct" to the list of proscriptions. The penalty was set at up to $500 and/or up to six months in jail.17

A challenge to the constitutionality of the sodomy law was rejected unanimously by the Court in the case of State v. Mays,18 decided in 1976. The opinion in this case was only a little longer than the previous three. Quoting with approval a decision by the U.S. Supreme Court in upholding the Tennessee law against a vagueness challenge, the Court said that "[t]he phrase has been in use among English-speaking people for many centuries[.]"19

Period Analysis: The seemingly innocuous change in title of the sodomy law had broader implications than may have been thought. The Mississippi Supreme Court ruled that the new title created a substantive change in the unchanged wording of the law. It said the law now outlawed fellatio. The same court rejected a constitutional challenge to the law in 1976.

The Post-Hardwick Period, 1986-Present

Mississippi enacted an amazing law in 198720 called the "Sex Offense Criminal History Record Information Act." Its purpose was to create a central registry with the State Attorney General of all persons in the state who ever had been convicted of certain sex crimes, including sodomy.21 Employers, including private employers, were permitted to request information from the Attorney General’s registry on any employee and were given power to make employment decisions, including whether to fire an employee, based on the existence of a previous conviction for consensual sodomy or other listed sex crimes.22 The Attorney General also was empowered to obtain information from other states about any Mississippi resident.23 The only civil liberties inclusions were that the employer had to safeguard the information received and destroy it within 30 days of receipt24 and that no information could be obtained without a signed consent from the employee.25 However, another section made it a "right" of any employer or prospective employer to collect such information,26 meaning that consent from an employee was a formality. Employees refusing to give consent obviously could be fired or not hired merely on that ground. Employers were entitled not only to information about a single conviction, but also to two or more arrests for a sex offense, whether or not a conviction ever was obtained.27

In early 1994, a news report said that residents in one small town in Mississippi circulated petitions to urge the enforcement of the Mississippi sodomy law.28 This was aimed at Gay and Lesbian people, but the Mississippi law is neutral both as to gender and marital status, so the anti-Gay people unwittingly were urging prosecution of themselves.

That law was upheld by the Mississippi Supreme Court in 1994 in the case of Miller v. State29 in an 8-0 vote. Despite a previous decision, involving a Jehovah’s Witness, finding a right of privacy in the Mississippi Constitution even without textual support for it, the Court rejected Miller’s claim because he "does not contend acts of sodomy are rooted in his religious beliefs."30 Without explaining why it said this, the Court went on to acknowledge the possibility that a right of privacy for consensual sodomy might exist. Miller’s claim had to fail, however, because he engaged in consensual activity with a 17-year-old.31 The Court also rejected Miller’s vagueness claim, citing the Mays case.32 Miller also argued that the "penetration" requirement of sodomy could not be fulfilled by performing fellatio, since he was not doing the penetrating. The Court answered that, because of Hill, the statute no longer was limited to "sodomy," but instead embraced "unnatural intercourse." Therefore, the Court "necessarily abandoned" any penetration requirement.33 The Court hinted that, due to the change in the law in 1942, cunnilingus might now be indictable, but did not address the issue specifically.34

In 1995, Mississippi enacted a sex offender registration law.35 The law includes convictions for sodomy and requires those convicted of sodomy to register with sheriffs and notify sheriffs of any change of address.

The sodomy law,36 common-law reception statute,37 and indecent conduct law38 remain on the books. In addition, case law in the state is that repeal of a statute in derogation of the common law revives the common-law provision on the subject.39

Period Analysis: The sodomy law’s constitutionality was sustained again in 1994, showing that little of the Gay and Lesbian rights movement has entered the Mississippi Supreme Court’s consciousness. All of the antique sex regulatory laws remain on the books, showing that the Mississippi legislature also has not been touched by the movement.


Footnotes

1 1 Stat. 549, enacted Apr. 7, 1798.

2 Sargent’s Code. A Collection of the Original Laws of the Mississippi Territory Enacted 1799-1800 by Governor Winthrop Sargent and the Territorial Judges, (Jackson:Historical Records Survey, 1939). The code was enacted Feb. 28, 1799.

3 There are numerous references to this code in later codes, but no copy of it is known to exist. It was enacted in June, 1802.

4 Laws, State of Mississippi 1839, page 102, ch. 66, enacted Feb. 15, 1839.

5 Id. at 162, 20.

6 Mississippi Constitution of 1890, 26, adopted Nov. 1, 1890.

7 176 So. 719, decided Nov. 1, 1937.

8 Id. at 729.

9 General Laws of the State of Mississippi 1942, page 418, ch. 318, enacted Mar. 23, 1942.

10 Mississippi Code 1942, 2413.

11 79 So.2d 452, decided Apr. 11, 1955.

12 Id. at 452-453.

13 Id.

14 102 So.2d 120, decided Apr. 14, 1958.

15 Id.

16 General Laws of the State of Mississippi 1960, page 369, ch. 254, enacted May 5, 1960, effective immediately.

17 Id. 1.

18 329 So.2d 65, decided Mar. 16, 1976. Rehearing denied Apr. 13, 1976.

19 Id. at 66.

20 General Laws of the State of Mississippi 1987, page 377, ch. 465, enacted Apr. 14, 1987, effective July 1, 1987.

21 Id. at 379, 3(i).

22 Id. at 380, 4.

23 Id. 5.

24 Id. 6.

25 Id. 7(2)(d).

26 Id. 7(2)(f)(ii).

27 Id. 7(4)(c).

28 Washington Blade, Jan. 14, 1994, page 17.

29 636 So.2d 391, decided Apr. 14, 1994. Modified on denial of rehearing June 9, 1994.

30 Id. at 394.

31 Id.

32 Id. at 394-395.

33 Id. at 396.

34 Id.

35 General Laws of the State of Mississippi 1995, page 823, ch. 595, enacted Apr. 7, 1995.

36 Mississippi Code Annotated (1972) 97-29-59.

37 Mississippi Code Annotated (1972) 99-7-1.

38 Mississippi Code Annotated (1972) 97-35-15.

39 City of Jackson v. Wallace, 196 So. 223 at 225, decided May 20, 1940.


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