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

Montana

"Crimes against nature are naturally revolting to a normal person, and the subject is truly a loathsome one."

 

The Post-Revolution Period, 1776-1873

The organic law for the Montana Territory,1 enacted in 1864, made no reference to sodomy or common-law crimes.

The first session of the Montana territorial legislature adopted a criminal code in 1865.2 Included was a sodomy law that used the common-law definition and established a penalty of five years-life.3 A separate statute adopted the common law of England.4

Period Analysis: Montana adopted a sodomy law with the common-law definition as soon as the territorial legislature met. It had not been given a sodomy law, either directly or indirectly, by the U.S. Congress when the territory was organized.

The Victorian Morality Period, 1873-1948

In one of the earliest reported sodomy cases in the United States, in 1878, the Court of Appeals decided Territory v. Mahaffey.5 Appellant Mahaffey had been convicted of sodomy with a 14-year-old male whom he called a "boy prostitute" and with whom Mahaffey had sexual relations on several occasions.6 The question to be decided was whether enough corroborating evidence existed to justify Mahaffey’s conviction. The Court unanimously said that sufficient corroboration existed simply from a hotel clerk’s testimony that he had shown the two a single room.7

In the 1890 case of State v. Chandonette,8 the Montana Supreme Court unanimously affirmed a sodomy conviction solely because Chandonette had not preserved his appeal, which questioned the existence of evidence of an actual criminal act. The Court stated that with

a sentence of this severity, and with the moral infamy involved in the conviction, it is a matter of regret to this court that the appeal was not so prosecuted that the court could inquire into the merits of the conviction.9

In a new code adopted in 1895,10 Montana changed the sodomy law to state that the crime would be complete upon penetration only.11 This same code abrogated common-law crimes.12

In a case from 1909, State v. Stone,13 the Montana Supreme Court upheld a conviction for an attempt to commit sodomy under the state’s general attempts statute that provided for a penalty of up to half that of the completed act.14

In 1915, the Montana Supreme Court was faced with the case of State v. Guerin,15 and was asked to decide if fellatio constituted the "crime against nature." The Court unanimously decided that it did and said that every

intelligent adult person understands fully what the ordinary course of nature demands or permits for the purpose of procreation, and that any departure from this course is against nature. It therefore seems to be trifling with our intelligence to say that copulation accomplished by use of the anus is against nature, whereas the same act accomplished by use of the mouth is not. This view contravenes common sense.16

The first victory for an appellant occurred in the next reported case, State v. Keckonen,17 from 1938. Keckonen had been sentenced to 35 years in prison for sodomy, based entirely upon circumstantial evidence. He was a young adult who had been very close to a teenage male and who kept moving when the younger one’s family moved. When reported missing once, the teenager was found by police sleeping in the same room as Keckonen, but in a different bed.18 The 3-2 majority of the Court felt that, as to the claim of prejudice made in the appeal, there was

probably little doubt. Crimes against nature are naturally revolting to a normal person, and the subject is truly a loathsome one. In such cases, jurors are sometimes moved by abhorrence of the offense to convict upon slight evidence.19

The two dissenting justices felt that the above evidence was sufficiently corroborative.20

Period Analysis: For a state as small as Montana, it is surprising that two of the small number of published sodomy cases from the 19th century were from there. The first, decided while Montana still was a territory, was one of the earliest in which the issue of consent was in dispute. Despite using the common-law definition for sodomy, the Montana Supreme Court held, during the 1910s when there was the greatest activity, both via statute and case law, concerning the applicability of sodomy laws to fellatio, that such an act was in violation of the "crime against nature" law.

The Kinsey Period, 1948-1986

In 1951, the Montana legislature enacted a statute making it impossible for any person under age 14 to be an accomplice to sodomy.21

The case of State v. Searle,22 from 1952, certainly can be classified as curious. By a vote of 4-1, the Montana Supreme Court overturned Searle’s conviction for sodomy with "a named boy of tender years." The boy, however "tender" his years, was old enough to be employed by Searle. The error found by the Court was that various other "boys" were permitted to testify as to "why [they] went to the defendant’s place of business." Although Searle had been convicted of sodomy, the Court reveals that the only physical contact between him and the witness was "swats," apparently a spanking for which the teenager would be paid, an act clearly not within the sodomy law.23

The next case was decided in 1953, State v. McSloy.24 A discrepancy in the identity of the appellant was considered a matter for a jury to decide, and did not constitute reversible error.25

In 1953, in State v. Toner,26 the Montana Supreme Court upheld the conviction of a man who, at age 72, received a sentence of 18 years in prison. He would be kept in prison until age 90, assuming he lived that long, for consensual sexual activity. The Court found the trial to be error-free, even with the defense’s protest of remarks made to the jury about the defendant. The trial judge responded: "The reporter is not putting down every statement that the County Attorney makes." Thus, the prejudicial comments were not being recorded for review by the appellate courts. The defense also objected to the prosecutor’s statement that "he has two sons of his own that [sic] he would hate to bring up with this man around." The trial judge responded: "It seems to be mere argument." The prosecutor also was stating that "14 other boys" had been in the defendant’s home "many times," but did not state that it was for sexual relations.27

In the 1957 case of State v. Gangner,28 the Montana Supreme Court voted 4-1 to uphold a lower court’s decision ordering a new trial in the case of a physician convicted of consensual sodomy with a 15-year-old male. The evidence in the case, which is amazingly similar to that in the Keckonen case, largely was that the physician and the young man spent a lot of time together and once were found sleeping in the same bed.29 Since the law then in effect said that a 14-year-old could be an accomplice to sodomy, this was insufficient corroborative evidence. Justice Hugh Adair, who would dissent so verbally and strenuously in the 1959 Dietz case, dissented without opinion from the reversal of Gangner’s conviction.30

Undoubtedly as a result of this case, in 1957 the legislature amended the sodomy law further by raising the minimum age to 16 at which one could be an accomplice.31

In another victory, the Montana Supreme Court unanimously overturned a conviction in 1958 in State v. Shambo.32 In this case, there had been no proof of penetration, a requirement under state law.33

Certainly the most remarkable case from the state was the 1959 decision in State v. Dietz.34 In a 3-2 decision, the Court refused to overrule the Guerin case that fellatio constituted the "crime against nature."35 The dissent by Justice Hugh Adair ran for more than 12,000 words and took up nearly 22 of the 25 pages for the whole case in the law reporter. Adair gave a lengthy review of Dietz’s trial,36 and then launched into a detailed history of the words "the infamous crime against nature," [emphasis Adair’s] as used in the state law.37 Because of the limit of the word "the," Adair felt that there could be only one "crime against nature," not many.38 Following this, Adair added a very lengthy section dealing with the definition of sodomy under common law, ancient writers’ definitions, and the rule of law in other U.S. jurisdictions.39 After giving a list of other courts and the numbers of judges sitting on them that had decided this question the other way, Adair asked who was wrong—20 judges and the twelve jurors who acquitted Guerin on his retrial after the Supreme Court remand, or the three justices of the Montana Supreme Court in 1915.40 Calling Guerin an "unsound, incorrect and dangerous opinion," Adair said that it "should be overruled forthwith."41 The other dissenter, Justice R.V. Bottomly, wrote a dissent of exactly 12 words: "I agree with Justice ADAIR’S foregoing historically correct, legally sound, exhaustive dissent."42

In 1972, Montana adopted a new constitution including a broad privacy rights section that reads

The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.43

Initially, the clause regarding a compelling state interest was not included in the proposal.44 The committee noted that, as of this date, the right to privacy as enunciated by the U.S. Supreme Court was limited to the decision to use contraceptives by married couples, but it felt that

as a mandate to our government, [the new privacy amendment] would cause a complete re-examination and guarantee our individual citizens of Montana this very important right--the right to be let alone, and this has been called the most important right of them all.45

The proposal, then not including the "compelling government interest" clause, was adopted with virtually no debate by a unanimous voice vote.46

Another proposal for the Bill of Rights would have added Section 38 to read: "Private sexual acts between consenting adults do not constitute a crime." This proposal was

primarily concerned to handle the problem of homosexuality which, again, is a physical-mental disease...this is a very serious problem today and this, once again, where competent medical authority has declared that somebody is a homosexual that that’s what it’s primarily aimed at, that these people would not be put in jail for having a disease.47

With not a word of debate, the proposal was defeated by a vote of 69-16, with 15 delegates not voting.48 Immediately following this defeat, a motion to reconsider the privacy provision was made and, in the debate centering on the dangers of such a broad right, the "compelling government interest" clause was inserted by a voice vote.49

Despite the command of the new constitution, the comprehensive criminal code revision adopted in 197350 showed no respect for privacy. The sodomy law was renamed "Deviate Sexual Conduct," was retained as a felony with a penalty of up to 10 years in prison,51 and was made applicable only to people of the same sex.52

Although the privacy issue was not raised in the next reported case, State v. Ballew,53 decided in 1975, it likely would not have been successful. The case involved a non-consensual act. However, one constitutional question raised in Ballew was the alleged vagueness of the term "deviate sexual relations."54 The Court unanimously ruled that the new code gave a great deal of specificity to definitions of illegal sexual activity.55

A law passed in 198156 raised the possible fine for a person convicted of sodomy to $50,000,57 by far the largest in the nation, although a proviso prohibited the levying of a fine that the defendant was unable to pay.58 The prison term was not changed.

Period Analysis: Montana has a number of reported sodomy cases from the 1950s and they generally showed court deference to prosecutions even of consensual activity. Apparently due to issues of consent with teenagers, two separate laws were enacted during the 1950s raising the age in order to be an accomplice, first to 14, then to 16. An amazing opinion was the lengthy dissent of Justice Hugh Adair in 1959 in a case that reaffirmed the applicability of the crime against nature law to fellatio. He wrote an exhaustive history of English and U.S. law on the subject and persuasively argued that the 1915 decision of the Montana Supreme Court that fellatio was outlawed by the term "crime against nature" was in error. He succeeded in persuading only one of four colleagues to join him, however. A new criminal code enacted in 1973 made Montana only the second state to make its sodomy law restricted to activity between people of the same sex. Unlike most states that did this, however, Montana kept the crime as a felony. The "crime against nature" epithet was replaced with another, "deviate sexual conduct."

The Post-Hardwick Period, 1986-Present

Montana enacted a sex offender registration law59 in 1989. It included only certain sex crimes, those that were assaultive in nature, incest (specifically limited to non-consensual and underage acts) and any acts of sodomy.60 Anyone convicted of any of these crimes was required to register with the local chief of police and notify the chief of any changes of address.61 The registration period was to last for 10 years from the date of conviction or date of release of prison, whichever was the latter.62 Failure to comply with the law would land the offender a jail term of up to 90 days and/or a fine of up to $250.63 A frightening provision was that judges sentencing those convicted of "a sexual offense" had the power to

impose upon the defendant reasonable employment or occupational prohibitions and restrictions designed to protect the class or classes of persons containing the likely victims of further offenses by the defendant.64

Two separate changes were made to the sodomy law in 1991. In the first,65 the non-consensual portion of the sodomy law was repealed and the sexual assault law was made gender-neutral. The law’s syllabus stated that its purpose was to make the penalty "uniform" for "both heterosexual and homosexual rape." The effect of this was to raise the minimum penalty for non-consensual sodomy to two years. There had been no minimum before.

The second law66 added a unique provision to the consensual sodomy law that the fact

that a person seeks testing or receives treatment for the HIV-related virus or another sexually transmitted disease may not be used as a basis for a prosecution under this section and is not admissible in evidence in a prosecution under this section.67

In 1992, the American Civil Liberties Union announced an effort to repeal the state’s sodomy law,68 and it was joined by a group of public health officials from several counties and the Montana Women’s Lobby.69 Despite this support, the repeal bill was killed in committee in early 1993.70

A controversy erupted in 1995 when the legislature considered a bill to revise the sex offender registration law. A provision would have required those convicted of consensual sodomy to register with sheriffs as well. After "overwhelming" opposition from across the state and a promised veto from Republican Governor Marc Racicot, the chief sponsor, Senator Al Bishop (R-Billings), withdrew the provision. He also apologized for having characterized consensual homosexual sexual activity as "worse than rape." The measure first passed the Senate 32-18 but, after the protests, was deleted from the bill by a 50-0 vote. The Senate also defeated a proposal to repeal the sodomy law.71

Because of the legislature’s failure to repeal the sodomy law, a court suit, Gryczan v. State, was filed against the law, citing the Montana Constitution’s specific right to privacy. The Helena Independent Record endorsed the court action, urging the state to support the suit against itself.72 However, the state pledged to defend the law in court.73 A motion to dismiss the case, made by the state on the ground that the state had enforced the law only against public sex or sex with minors, was denied by a trial court judge in 1994. Judge Jeffrey Sherlock noted that, because the state had amended the sodomy law several times since the 1973 criminal code revision, it apparently retained its viability in the eyes of the legislature.74 Sherlock struck the law down, citing the explicit right to privacy found in Montana’s constitution.75

In 1997, the Montana Supreme Court affirmed Sherlock.76 Justice Nelson, writing for the 6-1 majority, chided the U.S. Supreme Court for its Bowers v. Hardwick decision and stated that the right to privacy in Montana has been afforded broader protection than under the federal constitution.77 It

cannot seriously be argued that Respondents do not have a subjective or actual expectation of privacy in their sexual activities. With few exceptions not at issue here, all adults regardless of gender, fully and properly expect that their consensual sexual activities will not be subject to the prying eyes of others or to governmental snooping and regulation. Quite simply, consenting adults expect that neither the state nor their neighbors will be co-habitants of their bedrooms.78

Nelson also answered the state’s argument that the defeat of the 1972 constitutional amendment specifically guaranteeing a right to sexual privacy by state convention meant that such a right didn’t exist in the privacy amendment adopted. Nelson noted that the transcript of the convention "is bereft of any discussion as to why the proposal was defeated." The State was free to "speculate that this reflects an unwillingness to protect this type of conduct," but others were free to "speculate that the delegates believed it was already protected under the privacy clause."79 The Court also lanced the state’s adoption of the now-tiresome plea of necessity of such a law to help prevent the spread of AIDS. Nelson noted that the sodomy law at issue was adopted in 1973, almost a decade before the first reported AIDS case in Montana and that heterosexual transmission of the disease was the leading mode of transmission, that people not infected with AIDS cannot spread it, yet are prohibited from sexual activity.80 In order for the Montana constitution to permit laws against sodomy, something

more compelling than a legislative distaste of what is perceived to be offensive and immoral sexual practices on the part of homosexuals, state regulation, much less criminalization, of this most intimate social relationship will not withstand constitutional scrutiny. Quite simply, while legislative enactments may reflect the will of the majority, and, arguably, may even respond to perceived societal notions of what is acceptable conduct in a moral sense, there are certain rights so fundamental that they will not be denied to a minority no matter how despised by society. In Montana, the right to privacy is such a right.81

Chief Justice Turnage concurred in part and dissented in part. He agreed the law violated the federal and state constitutions, although he believed it did so because of its discriminatory nature.82

In 1999, the Montana House of Representatives killed, on a 50-50 tie vote, a bill to repeal the invalidated "deviate sexual conduct" law. After a reconsideration, the repeal bill was defeated 63-37 after an unstated amendment was offered to it.83

Another attempt in 2001 showed the opposition to repeal being spearheaded by religious fundamentalists. It is clear they hope the Gryczan decision will be overturned at some time in the future, thus their opposition to removing the language from the statute books. After an amendment to place a statement of opposition to homosexuality into the bill while repealing the voided language, as a "compromise," the House Judiciary Committee voted 17-3 to table the repeal bill.84

Period Analysis: Montana’s sodomy statute came under a great deal of scrutiny in the last decade, making it possibly the state with the greatest public awareness of such a law. Legislative attempts to repeal were made, a 1995 controversy over including consensual acts within the sex offender registration law focused attention on it, and a court suit challenging its constitutionality was decided favorably under the state constitution’s privacy provision. Efforts to remove the invalidated language have met with strong opposition, obviously with the hope that a future Montana Supreme Court could be persuaded to reverse itself and sustain the law.


Footnotes

1 13 Stat. 85, enacted May 26, 1864.

2 Acts, Resolutions and Memorials of the Territory of Montana Passed by the First Legislative Assembly, (Virginia City MT:D.W. Tilton & Co., 1866), enacted during January 1865, but the exact date has not been preserved.

3 Id. at 185, 44.

4 Id. at 356, enacted Jan. 11, 1865.

5 3 Mont. 112, decided during January Term 1878.

6 Id. at 114.

7 Id. at 115.

8 25 P. 438, decided Dec. 1, 1890.

9 Id. at 438.

10 Penal Code 1895, published July 6, 1895.

11 Id. 497.

12 Id. at 1028, 6.

13 105 P. 89, decided Dec. 2, 1909.

14 Id. at 90.

15 152 P. 747, decided Oct. 5, 1915. Rehearing denied Nov. 3, 1915.

16 Id. at 748.

17 84 P.2d 341, decided Nov. 16, 1938.

18 Id. at 342.

19 Id. at 346.

20 Id. at 347.

21 Montana Session Laws 1951, page 119, ch. 68, enacted Feb. 23, 1951.

22 239 P.2d 995, decided Jan. 21, 1952.

23 Id. at 997-998. The dissenting justice in the case was Lee Metcalf, who was elected to the U.S. House of Representatives in 1954 and later was elected to the United States Senate.

24 261 P.2d 663, decided July 24, 1953. Amended on denial of rehearing Oct. 16, 1953.

25 Id. at 665.

26 263 P.2d 971, decided Nov. 25, 1953.

27 Id. at 973.

28 305 P.2d 338, decided Jan. 4, 1957.

29 Id. at 339.

30 Id. at 340.

31 Montana Session Laws 1957, page 270, ch. 145, enacted Mar. 7, 1957.

32 322 P.2d 657, decided Mar. 10, 1958.

33 Id. at 658-659.

34 343 P.2d 539, decided Aug. 4, 1959.

35 Id. at 540-541.

36 Id. at 542-544.

37 Id. at 544-545.

38 Id. at 545.

39 Id. at 545-562.

40 Id. at 562.

41 Id.

42 Id. at 563.

43 Montana Constitution, Article II, 10, adopted by popular vote June 6, 1972.

44 Transcript of Proceedings, Montana Constitutional Convention, 1971-1972, (no publication data), page 5180.

45 Id. at 5182.

46 Id. at 5185.

47 Id. at 5704.

48 Id. at 5705-5707. The stereotype of women being more sympathetic than men to homosexual persons was disproved by this vote. The proposal won the support of only 2 of 19 female delegates (10%), versus 14 of 81 male delegates (17%). After the vote, the Convention Chair banned photographs being taken, and delegate Jerome Cate, one of the 16 to vote yes, stated, "I don’t want any inference drawn that Mr. Campbell [another supporter] and I voted together." This was followed by "laughter." Id. at 5707. This debate and vote occurred on Mar. 9, 1972.

49 Id. beginning on 5708.

50 Montana Session Laws 1973, ch. 513, enacted Apr. 4, 1973, effective Jan. 1, 1974.

51 Id. page 1360, 94-5-505.

52 Id. 94-2-101.

53 532 P.2d 407, decided Feb. 25, 1975.

54 Id. at 408.

55 Id. at 410-411.

56 Montana Session Laws 1981, Part I, page 273, ch. 198, enacted Mar. 31, 1981.

57 Id. at 273-274.

58 Id. at 273.

59 Montana Session Laws 1989, page 631, ch. 293, enacted Mar. 24, 1989, effective July 1, 1989.

60 Id. at 632, 2(3)(a).

61 Id. 5 and 6.

62 Id. 7.

63 Id. 8.

64 Id. at 633, 9.

65 Montana Session Laws 1991, page 425, ch. 175, enacted Mar. 26, 1991.

66 Montana Session Laws 1991, page 2449, ch. 687, enacted Apr. 27, 1991.

67 Id. at 2453, 7.

68 Washington Blade, Aug. 7, 1992, page 26.

69 Stonewall Union Reports, October 1992, page 18.

70 Lesbian/Gay Law Notes, April 1993, 18:2.

71 Columbus Dispatch, Mar. 24, 1995, 7A:3; Washington Blade, Mar. 24, 1995, page 1.

72 Washington Blade, Jan. 14, 1994, page 21.

73 Washington Blade, Feb. 18, 1994, page 27.

74 Lesbian/Gay Law Notes, September 1994, 97:3.

75 Lesbian/Gay Law Notes, March 1996, 31:1. His decision was handed down on Feb. 16, 1996.

76 942 P.2d 112, decided July 2, 1997.

77 Id. at 121.

78 Id. at 122.

79 Id. at 123.

80 Id. at 123-124.

81 Id. at 126-127.

82 Id. at 127.

83 www.geocities.com/privacy/laws/USA/Montana/mtnews05.htm, mtnews06, and mtnews07.

84 www.geocities.com/privacy/laws/USA/Montana/mtnews12.htm and mtnews13.

 


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