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

Nebraska

"[P]rotection...from the sexual depravity of moral perverts is as essential as the protection of human life from the homicidal tendency of assassins."

The Post-Revolution Period, 1776-1873

The Organic Act for Nebraska1 made no provision for criminal laws.

However, the first legislature enacted a law in 18552 that adopted the common law of England. Nebraska also adopted many laws of Iowa3 but, since Iowa had no sodomy law, the common-law statute was controlling. This technically made sodomy a capital offense.

A new criminal code adopted in 18584 established a sodomy penalty of one year-life with a common-law definition.5 The crime was complete upon penetration.6

Period Analysis: Although Nebraska was given no criminal laws by Congress when the territory was organized, Nebraska’s first legislature adopted all laws of Iowa as well as common-law crimes. Iowa, at this time, did not have a sodomy law, so the common-law statute governed and, therefore, consensual sodomy became a capital offense in the state. A new code adopted in 1858 eliminated the reference to common-law crimes, but used a common-law definition of the crime of sodomy and allowed a maximum of life imprisonment for its commission.

The Victorian Morality Period, 1873-1948

I. Sodomy

The Nebraska Supreme Court was asked to interpret the scope of this law in its first published sodomy case, Kinnan v. State,7 decided in 1910. Jess Kinnan had been arrested on a charge of forcing a woman to fellate him and appealed his conviction on the ground that fellatio did not constitute the "crime against nature." After reviewing decisions of several states that decided that fellatio was not such a crime,8 misinterpreting cases from Iowa and Ohio,9 and determining that the state did not recognize common-law crimes,10 the Court ruled unanimously that fellatio did not violate the sodomy law.11 The Court could not make its decision without at least one moralizing statement.

It is to be regretted that acts so infamous and disgusting have not been declared to be a felony by the Legislature of this state, and we trust that the lawmakers will speedily remedy this defect.

In a somewhat speedy remedy, the legislature adopted a statute12 in 1913 that reduced the maximum penalty for sodomy from life to 20 years and copied the Ohio and Iowa laws (q.v.) prohibiting "carnal copulation" in "any opening of the body except sexual parts."13 This wording covered fellatio, but not cunnilingus. The law included an emergency clause, so that it would take effect immediately.14 Why the "emergency" took three years to correct is unspecified.

In the next reported case, in 1925, Abbott v. State,15 the Nebraska Supreme Court unanimously upheld the conviction of a small-town physician for sodomy with a female child. During his trial, a young man testified that Abbott had committed "pederasty" on him several years before.16 The Court gave its reasons for upholding the right of a trial court to introduce unrelated earlier acts. The crime of sodomy was of "peculiar and shocking enormity" and the "criminal impulse" leading to the acts is "unnatural and unusual." Anyone committing such an act was undoubtedly a "carnal pervert."17

In 1926, the Court received a very unusual case in Clark v. State.18 Leon Clark, a businessman in the town of McCook, had been convicted of sodomy with one Ted Pate. Pate died from syphilis and, shortly before his death, he informed his mother that the illness was contracted from "unnatural intercourse" with Clark.19 By a vote of 4-2, the Court overturned the conviction because the general rule in English and U.S. law was that dying declarations were permissible as evidence only in cases of homicide.20 In dissent, Justice William Rose saw little distinction between murder and sodomy. He did not believe that such a dichotomy was "based on logical or justifiable distinctions."21 The

protection of innocent children, both male and female, from the sexual depravity of moral perverts is as essential as the protection of human life from the homicidal tendency of assassins.22

In 1929, the Nebraska legislature adopted a supplemental statute23 that prohibited making an assault with intent to commit sodomy, with a penalty of 2-15 years in prison.24

In 1942, the Court was faced with the case of Sledge v. State,25 which asked whether the change in the sodomy law covered fellatio, especially when the defendant had performed an act of fellatio on another. He relied on the literal wording of the statute and claimed that, since his sexual organ was not involved, there was no crime.26 Although the Court was inclined to support his contention, it noted that the state also had a law prohibiting the aiding or abetting of a crime and treating it as the same as having committed the principal crime.27 On this ground, the Court unanimously affirmed the conviction.28

II. Sterilization

In 1929, Nebraska amended its therapeutic sterilization law to make it applicable to more persons.29 This law copied that of several other states and required quarterly reports to be made to the board of examiners with the names of all inmates who were "feeble-minded, insane, habitual criminals, moral degenerates or sexual perverts" and who were soon to be eligible for parole or release.30 The board could decide to order sterilization of them.31

The constitutionality of this law was upheld by the Nebraska Supreme Court in the 1931 case of In Re Clayton.32

Through the end of 1934, sterilization had been performed on 276 persons.33

Period Analysis: The Nebraska Supreme Court followed the earliest courts in finding that fellatio did not constitute a violation of the sodomy law, although it urged the legislature to act to correct the situation. A "corrective" law was enacted three years later, one of the fastest movements of a legislature to criminalize acts of sodomy courts had held legal. However, the new Nebraska law copied the Ohio and Iowa laws which, through odd wording, clearly left cunnilingus legal while outlawing fellatio. Nebraska also adopted a sterilization law and later expanded it to provide for the sterilization only of males convicted of certain crimes, including sodomy. The constitutionality of the law was sustained by the Nebraska Supreme Court.

The Kinsey Period, 1948-1986

In a 1948 case, Redmon v. State,34 the Nebraska Supreme Court unanimously ruled that a defendant had a right to challenge the general moral character of the prosecuting witness.35 In effect, a victim could "deserve" a sodomitical assault, if of a generally immoral nature.

Nebraska enacted a psychopathic offender law in 1949.36 This law contained a provision prohibiting its use on a person who was acquitted of a sexual charge.37

An amendment to the law in 195538 eliminated the necessity that offenders be "habitual" in their crimes, thus creating a larger pool of potential arrestees.

A study of the psychopathic offender law was published in 1957.39 Reports from the Nebraska Bar Association revealed that the law was based on "hysteria."40 A survey indicated that 41 persons had been processed under this law, three of them (7%) for private, consensual sexual relations with another adult of the same sex.41 It was suggested that officials in different counties used different definitions of "sexual misconduct." Omaha’s Douglas County, the state’s largest, which had almost half the total commitments, had none for private, consensual homosexual activity.42 A detailed history of some of those committed under the law included "E," who had been committed for 2 years for consensual homosexual activity with an adult. He had been given unspecified "treatment" and released with the assistance of his attorney.43 "H" had been committed for the same reason. He spent 14 months in a state hospital and was released to a "friend," with whom he planned to live.44

The most famous person to be caught under the sodomy law was John Provoo, a former Army sergeant who had his treason conviction overturned because his homosexuality had been injected into the trial by the prosecution. In 1958, he received three years in a reformatory for a "morals charge" involving an 18-year-old "boy."45

In 1965, the Nebraska Supreme Court, deciding State v. Madary,46 unanimously upheld the constitutionality of the psychopathic offender law.

The psychopathic offender law was revised again in 1971.47 Anyone convicted of any sexual offense now was to be referred for evaluation as to psychopathy. Such an evaluation was to be mandatory if the person was convicted of more than one sexual offense.48 If a person was found to be a psychopath and thought unlikely to benefit from treatment, then the person was to be committed indefinitely to prison,49 in effect allowing a life sentence for a sex crime that otherwise was punishable as a lesser offense.

In a 1971 case, State v. Juarez,50 a man had three male teenagers in his apartment at a drinking party. The teens all stripped down to their underwear and were kissed and caressed when Juarez, who apparently couldn’t hold his liquor, began to beat one of them.51 The young man was rescued by his companions who fled and notified police. The beating victim gave a statement to the police. Although the Court conceded that the evidence was only circumstantial to an act of sodomy occurring, it upheld Juarez’s conviction.52

The Nebraska legislature passed a new criminal code in 1977.53 The code repealed the sodomy law and established a varying age of consent of either 15 or 16.54 Sexual activity could be only with someone at least of the age of 16, whereas sexual contact (touching) could be with someone 15 or older.

II. Sterilization

By the end of 1948, the number of sterilizations had more than doubled to 688, although only two were of persons other than insane or mentally retarded.55

The sterilization law was repealed in 1969.56

The state has no records on the number of persons who may have been sterilized under the law as "moral degenerates or sexual perverts."57

Period Analysis: Nebraska has no published sodomy cases during the 1950s or 1960s, so details of the enforcement of the sodomy law are unclear. However, the state did join in the national trend in enacting a "psychopathic offender" law in the years after World War II. The law later was expanded so that a first offense could trigger its operation and the law was criticized by the Nebraska Bar Association. The study showed that 7% of commitments under the law were for consenting adult Gay men. The sodomy law was repealed in a revised criminal code adopted in 1977. Nebraska has the distinction of being the only state in the nation whose sodomy law repeal was enacted over the veto of the Governor.

The Post-Hardwick Period, 1986-Present

In 1991, in State v. Laymon,58 the Nebraska Supreme Court unanimously sustained the public indecency conviction of a man who was masturbating in a public restroom, but faced away from the public area. He had been spied by a shopping mall security man, James Barker, who saw Laymon from the rear and then moved into a toilet stall, hoping to entice him. When Laymon responded and masturbated in Barker’s presence, Barker had him arrested.59 This was considered sufficient evidence of public indecency by the Court.

A moralistic trial judge led to the 1998 case of State v. Pattno.60 A man who had consensual and ongoing sexual relations with a 13-year-old boy. Because his partner was below the state’s age of consent, Pattno faced criminal charges. Before sentencing Pattno, judge George Thompson read from the Bible passages which he believed condemned homosexuality. The Nebraska Supreme Court voted 6-0 to vacate Pattno’s sentence and remand the case for sentencing by another judge. It noted that, because Pattno’s crime was sexual contact with a minor, not with "another male," the judge’s comments were irrelevant to his crime and should not have been considered by the judge.61

The age of consent dichotomy remains in the law today.62

Period Analysis: Nebraska followed case law in the nation that sexual activity in a restroom is illegal if it occurs outside of an enclosed stall. In the only reported case in the state, the facts make it difficult to believe that masturbation actually was seen by the arresting officer, but the Nebraska Supreme Court found the evidence to be sufficient to sustain the conviction.


Footnotes

1 10 Stat. 277, enacted May 30, 1854.

2 Nebraska Territorial Laws Jan. 1855, page 328, enacted Mar. 16, 1855.

3 Laws of Nebraska 1855, pages 55-56, enacted Mar. 16, 1855.

4 Laws of Nebraska 1858, Criminal Code, enacted on an unspecified date during the legislative session which ran from Sep. 21 through Dec. 20, 1858.

5 Id. at 48, 48.

6 Id. 47.

7 125 N.W. 594, decided Mar. 10, 1910.

8 Id.

9 Id. The cases from Iowa and Ohio dealt with the actionability of words imputing sodomy. In both cases, the state’s highest court ruled that, since there was no law against sodomy, the words were not actionable. They had nothing to do with the applicability of sodomy statutes to fellatio.

10 Id. at 595.

11 Id.

12 Laws of Nebraska 1913, page 203, ch. 69, enacted Apr. 8, 1913.

13 Id. 1.

14 Id. at 206, 3.

15 204 N.W. 74, decided May 23, 1925.

16 Id. at 75.

17 Id.

18 211 N.W. 16, decided Nov. 19, 1926.

19 Id.

20 Id. at 16-17.

21 Id. at 17.

22 Id.

23 Laws of Nebraska 1929, page 251, ch. 70, enacted Mar. 22, 1929.

24 Id.

25 6 N.W.2d 76, decided Oct. 30, 1942.

26 Id. at 77.

27 Id.

28 Id. at 78.

29 Laws of Nebraska 1929, page 563, ch. 163, enacted Apr. 29, 1929.

30 Id. at 564, 3.

31 Id. at 565, 4.

32 234 N.W. 630, decided Feb. 11, 1931.

33 Abraham Myerson et al., Eugenical Sterilization: A Reorientation of the Problem, (New York:Macmillan, 1936), pages 15-16.

34 33 N.W.2d 349, decided July 16, 1948.

35 Id. at 352.

36 Laws of Nebraska 1949, page 999, ch. 294, enacted May 11, 1949.

37 Id. at 1001, 4.

38 Laws of Nebraska 1955, page 292, ch. 107, enacted May 29, 1955.

39 Domenico Caporale and Deryl F. Hamann, "Sexual Psychopathy—A Legal Labyrinth of Medicine, Morals and Mythology," 36 Neb.L.Rev. 320 (1957).

40 Id. at 321.

41 Id. at 325 (Table I).

42 Id. at 328.

43 Id. at 350-351.

44 Id. at 351.

45 New York Times, Aug. 30, 1958, 32:4. Provoo was released on Oct. 30, 1960. During his stay in prison, he had been referred for a sanity hearing. (Correspondence from Nebraska Department of Corrections, n.d., (Dec. 1996)). For his earlier court cases, see 124 F.Supp. 185 and 215 F.2d 531.

46 133 N.W.2d 583, decided Mar. 5, 1965.

47 Laws of Nebraska 1971, L.B. 278, enacted May 22, 1971, effective immediately as an emergency measure.

48 Id. at 2, 29-2902 (1).

49 Id. at 6, 29-2903 (3).

50 190 N.W.2d 858, decided Oct. 22, 1971.

51 Id. at 859.

52 Id. at 860.

53 Laws of Nebraska 1977, page 88, enacted June 1, 1977, effective July 1, 1978. The law was enacted by overriding the veto of the Governor. The override vote in the state’s unicameral legislature was 32-15, with not a single vote to spare, two-thirds being necessary.

54 Id. See pages 100-102, 32-39 generally.

55 Moya Woodside, Sterilization in North Carolina: A Sociological and Psychological Study, (Chapel Hill:University of North Carolina Press, 1950), pages 194-195.

56 Laws of Nebraska 1969, page 3132, ch. 825, enacted Apr. 11, 1969.

57 Correspondence from Paula Hartig, Data Utilization Program Manager, Department of Public Institutions, May 2, 1996.

58 474 N.W.2d 458, decided Sep. 13, 1991.

59 Id. at 459.

60 579 N.W.2d 503, decided June 5, 1998.

61 Id. at 508.

62 28-319 and 28-320.01 of the Nebraska Revised Statutes.


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