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

Nevada

"[The statute] seeks to define and punish acts of unnatural copulation in whatsoever form those acts may be perpetrated, and without regard to the means or manner of perpetration."

 

The Post-Revolution Period, 1776-1873

In 1861, Congress enacted an organic law for the Nevada Territory,1 but it contained no reference to common-law crimes or to sodomy.

Nevada adopted the common law of England with a statute of 1861,2 but the statute made no specific reference to common-law crimes.

Just a month later, Nevada Territory enacted a criminal code3 that adopted the common-law definition of sodomy and established a penalty of five years-life.4 An assault to commit sodomy was penalized at 1-14 years.5

Period Analysis: As with most newly created western territories, Congress did not provide a criminal code for the Nevada Territory, leaving that to the discretion of local officials. The first legislature enacted a sodomy law, using the common-law definition and providing a harsh penalty of five years to life.

The Victorian Morality Period, 1873-1948

I. Sodomy

In 1912, the Nevada Supreme Court decided its first sodomy case, State v. Carey.6 The Court unanimously overturned the conviction of a man for assault with intent to commit sodomy because the trial court failed to instruct the jury about the possibility of an innocent motive and the jury’s responsibility to determine if the motive were innocent or criminal.7

In 1914, in the next reported case, Ex Parte Benites,8 the Nevada Supreme Court unanimously ruled that fellatio constituted the "crime against nature." In an opinion by Justice Pat McCarran, later a reactionary U.S. Senator, the Court stated that the Pleas of the Crown as stated by Hawkins should control: "All unnatural carnal copulations seem to come under the notion of sodomy."9 The statute

seeks to define and punish acts of unnatural copulation in whatsoever form those acts may be perpetrated, and without regard to the means or manner of perpetration.

Nature has provided in the male and the female the organs for the reproduction of the species. Any copulation by male with male, or by male with female, other than that copulation by and through the organs provided by nature for the reproduction of the species, is an act against the order of nature, and hence must of necessity be a crime against nature, inasmuch as it is an act against nature’s law.10

With this broad statement, virtually all erotic activity could fall under its rubric. Also, the Court expressly exempted female-female contacts from the reach of the law.

In 1915, Nevada supplemented the sodomy law with a broadly worded vagrancy law11 that included any "[i]dle or dissolute person...who wanders about the streets at late or unusual hours of the night"12 and any

[b]oy or male person under the age of twenty-one years, who...at any hour of the night or day...frequents or loafs around any low den, house, or other place of vice, infamy, or immorality, where known thieves and other vicious and infamous persons resort or congregate[.]13

Violators could get up to three months in jail and up to a $300 fine.14

In the 1926 case of State v. Verganadis,15 the Nevada Supreme Court unanimously upheld the conviction of a man for attempted sodomy for placing his penis against the thighs and rectum of another.16

II. Sterilization

Nevada enacted a sterilization law in 191117 that permitted the sterilization of any "habitual criminal" but barred the extreme measure of castration.18

The law was challenged in federal court and, in 1918, in the case of Mickle v. Henrichs,19 was found unconstitutional. Judge Edward Farrington decided that vasectomy

in itself is not cruel; it is no more cruel than branding, the amputation of a finger, the slitting of a tongue, or the cutting off of an ear; but, when resorted to as punishment, it is ignominious and degrading, and in that sense is cruel.20

Period Analysis: Nevada followed the trend in the 1910s of having its sodomy law, unchanged in wording, interpreted by a court to include sexual activity historically excluded from it. In this instance, the act was fellatio, but in dictum the Nevada Supreme Court ruled that sodomy could be accomplished only if at least one party was male, excluding Lesbians from prosecution. Nevada also was one of the earliest states to enact a sterilization law. Its applied to "habitual criminals" but prohibited castration of the criminal. Despite this limitation, the law was struck down on broad grounds by a federal court in 1918. Even though procreation was the only function to be eliminated by the sterilization, the court found it to be cruel and unusual punishment.

The Kinsey Period, 1948-1986

In 1951, Nevada amended the sodomy law21 to reduce the minimum penalty for sodomy from five years to one year, but it retained the maximum of life.22

In 1961, the legislature enacted a sex offender registration law23 that required all persons convicted of any of specified offenses, including sodomy and an assault to commit it, to register with the county sheriff or chief of police and to notify the same official of each change of address.24 Any sex offender considered "rehabilitated" could apply to a court for relief from further registration.25

In 1963, Nevada passed an additional law26 restricting probation to those convicted of the "crime against nature" or "lewdness." They had to obtain a certificate from a physician stating that they were "not a menace to the health, safety or morals of others."27

The sodomy law was changed in a 1967 comprehensive criminal code revision28 to reduce the sentence of consensual sodomy from one year-life to 1-6 years.29

The vagrancy law was changed substantively in 1967.30 The gender specifics of the law disappeared, and added were public solicitation of "lewd or dissolute conduct" and loitering "in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act."31

Another amendment to the sodomy law just a month later32 added that the "crime against nature" was complete upon penetration only.33

The state’s sex offender registration law was sustained as to its constitutionality in 1968 in Atteberry v. State.34 The unanimous decision of the Nevada Supreme Court was that the law did not create additional punishment, constitute self-incrimination, or violate the state constitution’s guarantees of freedom and equality.

In 1968, in the case of Hogan v. State,35 the Nevada Supreme Court rejected a vagueness challenge to the term "crime against nature" with just 21 words: "NRS 201 is sufficiently broad to include not only the common-law crime of sodomy, but also all unnatural carnal copulations."36

In 1969, in Jones v. State,37 the Nevada Supreme Court unanimously held that the 1967 amendment did not render the law unconstitutionally vague,38 and the issue of the constitutionality of applying it to consenting adults was sidestepped because Jones was convicted of sodomy with a 12-year-old.39

The Nevada Supreme Court next dealt with the case of Basurto v. State40 in 1970. Defendant Basurto claimed that, since he was only 18 at the time of the offense, and the age of majority then was 21, he was not "of full age" and could not be prosecuted.41 The Court unanimously rejected the contention by noting that Nevada law defined anyone 18 or older as capable of being convicted of criminal offenses.42

In the 1973 case of Sheriff, Clark County v. Dearing,43 the Nevada Supreme Court upheld the right of the state to prosecute a man for an act of cunnilingus under the term "crime against nature."44

In 1976, in the case of Allan v. State,45 the Nevada Supreme Court unanimously upheld the right of the state to introduce as evidence, in a sodomy prosecution, the fact that the defendant had masturbated in front of witnesses46 and his possession of a "pornographic" film that

tended to show proof of a motive or a common plan or scheme wherein minors were lured to appellant’s quarters and, after being ‘conditioned’ by the showing of his pornographic movies, subjected to his sexual desires.47

A comprehensive criminal code revision in 197748 made only one substantive change in the sodomy law. It redefined it as being "anal intercourse, cunnilingus or fellatio between consenting adults of the same sex."49 This code made sexual relations between women a crime for the first time. The 1-6 year felony penalty remained.

In 1978, the Nevada Supreme Court decided the case of Maes v. Sheriff, Clark County50 by ruling 4-1 that sodomy could be complete by licking a penis.51

In 1979, the Nevada Supreme Court ruled 3-2 in the case of Lucas v. Sheriff, Clark County52 that an adult could not be convicted of sodomy, even as an aider and abettor, for inducing minors to perform sodomitical acts.53

The legislature responded quickly with a law54 making it a felony for anyone to incite, entice or solicit a minor to engage in sodomy.55

Also in 1979, the legislature amended the vagrancy law56 to add stiffer penalties for violations. The public solicitation provision was changed so that a second offense occurring within three years of the first would net a fine of up to $250 and/or up to 30 days in jail. A third violation in the same three-year period could get the offender up to six months in jail and/or up to a $250 fine. Sentences under this provision were required to be served consecutively.57

An unsuccessful bill in 1979 was one that would have added a fine of $5,000 to the prison term for sodomy.58

In 1980, the Nevada Supreme Court, deciding Armstrong v. State,59 ruled unanimously that a sodomy conviction could stand even though the trial proceeded without waiting for a laboratory report as to the presence of absence of vaseline on the victim’s underwear. The Court felt that the presence of sperm in the victim’s rectum was sufficient corroboration.60

In 1985, the vagrancy law was revised again.61 The penalty for a second violation within three years of the first was raised to up to six months in jail and a fine of up to $1,000 and the maximum fine for a third conviction in the same period was also raised to $1,000, although the jail term remained the same.62

Period Analysis: Nevada’s history is among the most anti-Gay in the nation as far as sodomy laws are concerned. It very much followed the McCarthy rather than the Kinsey view of sex. Although the compulsory life sentence for sodomy was revised in 1951, that remained the maximum penalty after that time. Numerous revisions to the sodomy law were made in the next few decades, all of them expanding its reach. Limitation on probation and a requirement for sex offender registration for acts of sodomy also were enacted. The vagrancy law also was revised to increase penalties for loitering for sex. The Nevada Supreme Court consistently upheld convictions for sodomy and avoided a constitutional challenge based on privacy arguments in one case. When a new criminal code was adopted in 1977 during the Dade County referendum backlash, consensual sodomy remained a felony, although the law was made discriminatory—applying only to those of the same sex. Sex between women was made a crime for the first time with this statute.

The Post-Hardwick Period, 1986-Present

A constitutional challenge to the state’s sodomy law in 1986 was dismissed. In Doe et al. v. Bryan,63 the Nevada Supreme Court unanimously affirmed a trial court’s dismissal of the case because "the record does not reflect any enforcement efforts by the State against appellants or others."64

In 1993, in Young v. State,65 the Nevada Supreme Court unanimously sustained the convictions of four men for consensual sexual relations in a public restroom. Curiously, even though some of the charges were for fellatio, the felony "crime against nature" law was not invoked against the defendants. Instead, they were charged with misdemeanor "open or gross lewdness" or "obscene exposure." Rejecting a long string of case law on the subject, the Nevada court found that, even though the sexual activity was not seen by anyone before cameras were hidden to catch such activity, the fact that the sex could have been seen justified the hidden cameras.66 Privacy arguments were rejected. Curiously, one of the defendants was arrested for sexual activity occurring three days after the expiration of the search warrant, a fact that the court overlooked in its decision.67

In a surprising move, in 1993, Nevada repealed its sodomy law. The repeal bill, the first in the nation to eliminate a same-sex-only sodomy law, passed the Senate 14-6 and the Assembly 29-12.68 The new law69 replaced the "crime against nature" law with similar behavior done in public. Its 1-6 year penalty was more severe than for vaginal intercourse in public. The age of consent is 16, although Nevada retained a law prohibiting the incitement, enticement or solicitation of a minor to engage in "the crime against nature."70 Sex with the minor of 16 or 17 will remain legal, so long as the other party does not initiate the sexual activity. The definition of "crime against nature" was left as only between people of the same sex,71 thus making it a crime to incite, entice, or solicit a minor of the same sex for such activity, whereas inciting, enticing, or soliciting a minor of the opposite sex for identical sexual conduct is not a crime.

Period Analysis: In a constitutional challenge to the sodomy law in 1986, the Nevada Supreme Court dismissed the case because there was no evidence presented to it that the state actually enforced the law against consenting adults. In 1993, in a surprise move, the state repealed its sodomy law, making Nevada the first state to repeal a sodomy law the applied only to homosexual activity.


Footnotes

1 12 Stat. 209, enacted Mar. 2, 1861.

2 Laws of the Nevada Territory 1861, page 1, enacted Oct. 30, 1861.

3 Laws of Nevada Territory 1861, page 56, ch. XXVIII, enacted Nov. 26, 1861.

4 Id. at 63-64, 45.

5 Id. at 64, 47.

6 122 P. 868, decided Apr. 6, 1912.

7 Id. at 869.

8 140 P. 436, decided Apr. 28, 1914.

9 Id.

10 Id. at 436-437.

11 Laws of Nevada 1915, page 32, ch. 32, enacted Feb. 26, 1915.

12 Id. at 33, #5.

13 Id. at 33-34, #11.

14 Id. at 34, #13.

15 248 P. 900, decided Sep. 10, 1926.

16 Id. at 901.

17 Revised Laws of Nevada Containing State Statutes of a General Nature from 1861 Revised to 1912, and Pertinent Acts of Congress with Annotations from Volumes 1 to 34, Nevada Reports, and From Federal and State Decisions, Vol. 2, (Carson City:Superintendent of State Printing, 1912), page 1812, 6293, enacted Mar. 17, 1911.

18 Id.

19 262 F. 687, decided May 25, 1918.

20 Id. at 690.

21 Laws of Nevada 1951, page 524, ch. 318, enacted Mar. 23, 1951.

22 Id.

23 Laws of Nevada 1961, page 197, ch. 147, enacted Mar. 24, 1961.

24 Id. 1-3.

25 Id. at 198, 7.

26 Laws of Nevada 1963, page 61, ch. 60, enacted Mar. 14, 1963.

27 Id. at 62-63, 3.

28 Laws of Nevada 1967, page 458, ch. 211, enacted Mar. 29, 1967.

29 Id. at 475-476, 78.

30 Id. at 517, 210.

31 Id. at 518, 11 (a) and (g).

32 Laws of Nevada 1967, page 1398, ch. 523, enacted Apr. 26, 1967.

33 Id. at 1470, 439.

34 438 P.2d 789, decided Mar. 18, 1968.

35 441 P.2d 620, decided May 28, 1968.

36 Id. at 622.

37 456 P.2d 429, decided June 30, 1969.

38 Id. at 430.

39 Id.

40 472 P.2d 339, decided July 7, 1970.

41 Id. at 340.

42 Id.

43 510 P.2d 874, decided June 7, 1973.

44 Id.

45 549 P.2d 1402, decided May 28, 1976.

46 Id. at 1403-1404.

47 Id. at 1404.

48 Laws of Nevada 1977, page 1626, ch. 598, enacted May 20, 1977, effective July 1, 1977.

49 Id. at 1632, 17.

50 582 P.2d 793, decided Nov. 10, 1978.

51 Id. at 794.

52 589 P.2d 176, decided Jan. 17, 1979.

53 Id. at 177.

54 Laws of Nevada 1979, page 662, ch. 384, enacted May 17, 1979.

55 Id.

56 Laws of Nevada 1979, page 353, ch. 259, enacted May 2, 1979.

57 Id. at 354, 2.

58 The Advocate, Vol. 272 (July 26, 1979), page 9.

59 605 P.2d 1142, decided Feb. 6, 1980.

60 Id.

61 Laws of Nevada 1985, page 749, ch. 238, enacted May 22, 1985.

62 Id. at 750, 2.

63 728 P.2d 443, decided Dec. 4, 1986.

64 Id. at 445.

65 849 P.2d 336, decided Mar. 24, 1993.

66 Id. at 342.

67 Id. at 339.

68 Washington Blade, June 25, 1993, page 1.

69 Laws of Nevada 1993, ch. 236, enacted June 16, 1993, effective immediately.

70 Id. 2.

71 Id.


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