Last edited: August 10, 2004
The Post-Revolution Period, 1776-1873
A new law adopted in 179617 created a statutory sodomy law, abolished the death penalty for it and replaced death with an unspecified fine and solitary imprisonment at hard labor for a period of up to 21 years. This became the first sodomy law in the nation to adopt the term "crime against nature."18
Another law revision in 184621 limited the fine for sodomy to $1,000 and eliminated the solitary confinement provision. The hard labor and 21-year maximum sentence remained.22 A new provision also permitted a death sentence for anyone who, in the course of committing or attempting to commit sodomy, killed another person.23
Period Summary: Although clinging to English law during the pre-federal era, New Jersey was one of the earlier states to rid itself of them afterward. Its sodomy law of 1796 made New Jersey one of the first states to eliminate the death penalty and, three years later, all English laws were abrogated.
The Victorian Morality Period, 1873-1948
In 1884, the New Jersey Supreme Court ruled, in Van Houten v. State,24 that indecent exposure could be prosecuted in the state, even if no one saw the act. Thus, any kind of erotic activity could be prosecuted even without a complaint lodged by a viewing third person.
The next change to the New Jersey law occurred in 1898.25 This was one of the most sweeping anti-sodomy laws ever enacted in the United States. The sodomy provision itself was not changed. However, additional sections showed how it was treated at this time. A defendant in a sodomy prosecution was permitted up to 20 peremptory jury challenges,26 but could not be bailed.27 An assault to commit sodomy could lead to a fine of up to $3,000 (three times higher than for the completed act) and/or imprisonment for up to 12 years.28 Compounding sodomy29 and concealing it30 both were made misdemeanors. A "conspiracy" to commit sodomy was exempted from the provision that said conspirators could not be prosecuted unless one or more of the parties committed "some act...to effect the object thereof[.]"31 The 1846 law that permitted a murder charge against someone committing or attempting sodomy that led to a death was retained.32 Murder committed in perpetration of sodomy was automatically murder in the first degree.33 Perhaps the most chilling provision was that any person who killed someone "attempting to commit" sodomy was "guiltless, and shall be totally acquitted and discharged."34 This law made no reference to a necessity that the attempt be made on the person doing the killing. Presumably, it was broad enough to allow the killing of consenting adults, if they were "attempting" sodomy and someone saw them.
In 1906, a supplemental statute was enacted35 that
This law obviously was broad enough to outlaw any form of erotic activity between consenting adults in private.
The first reported sodomy case in the state was State v. Pitman,37 decided in 1923. The New Jersey Supreme Court ruled that evidence as to the condition of the victim’s rectum three days after an alleged assault was admissible, as was evidence of the rectum’s condition four months later. The Court felt that this evidence could be used by a jury to decide if the condition was "abnormal and significant."38
Just a few months later, the same court was faced with a case under the private lewdness statute. In State v. Michalis,39 the New Jersey Supreme Court rejected what may have been an early privacy claim. William Michalis and James Drake had been arrested and Michalis argued that their actions did not fall under the 1906 law since they were committed in private, and therefore did not "debauch the morals and manners of the people."40 The Court felt that the test to see if an act violated the law was whether the act would debauch morals if the act were committed in public and, if so, it was "immaterial" if the act were committed in public or private.41 With this logic, marital intercourse in private was illegal also since, if it occurred in public, it would debauch morals.
The sodomy law42 was amended in 1926 to provide a 5-30-year penalty for sodomy if "any person" engaged in sodomy with anyone under 16. This would permit such a severe penalty for a 16-year-old in a relationship with a 15-year-old.
In 1930, another supplemental law43 was enacted that prohibited solicitation for "unlawful sexual intercourse, or any other unlawful, indecent, lewd or lascivious act."44 This wording did not require the solicited activity to be unlawful.
In 1911, New Jersey enacted a sterilization law.45 The law, signed by Governor and future President Woodrow Wilson, authorized the sterilization of insane, epileptic, and retarded persons, as well as certain criminals, including those convicted
Two years later, in 1913, New Jersey made history by being the first state to have its sterilization law ruled unconstitutional. In Smith v. Board of Examiners of Feeble-Minded,47 a unanimous New Jersey Supreme Court found the law lacking. The opinion by Justice Charles Garrison questioned how far the law could go. If
Amazingly anticipating the Nazis, Garrison noted a possible abuse of the law.
Addressing the argument that sterilizing such people today will save the taxpayers lots of money in the future, Garrison believed that the argument
The Kinsey Period, 1948-1986
New Jersey also was interested in the issue of psychopathic offenders, but, unlike most states, believed that a careful study was necessary before enacting legislation. In 1949, a joint resolution was adopted51 that authorized a broad-based committee to look into whether
The committee also was charged with establishing "a concise definition of the sex deviate and sex psychopath."53
The result of this study was a law enacted in 195054 that was much narrower in focus than most. Sodomy and an attempt to commit it both were triggering offenses, but only if the acts occurred with violence or with an adolescent under age 15.55 This law turned out to be, unwittingly, the model law of the nation and later was praised by officials as being the nation’s only psychopathic offender law that actually worked.56
A comprehensive revision of state law in 195157 raised the maximum fine for sodomy to $5,000, but generously lowered the maximum prison term from 21 to 20 years. The hard labor provision also was repealed.58
An appellate court decided State v. Johnson59 in 1952. It decided that the date on which an act of sodomy occurred was irrelevant to a conviction, saying that "sodomy is a crime whenever committed."60
The Court then noted that the defendant could have been prosecuted for "his revolting acts" under the lewdness act, but lamented that the penalty for it was less severe than for sodomy.64
In the 1957 case of State v. Sinnott,65 the New Jersey Supreme Court divided 6-1 to uphold the conviction of a school janitor for sodomy with several teenage males. The Court decided that the defendant had a "right" to state his marital and parental status, but found that Sinnott’s "right" had been recognized in the trial.66 The Court also found that the prosecutor’s summation, including Biblical references, was "within the bounds of fairness[.]"67 The Court also sustained the trial court’s exclusion of the expert testimony of a psychiatrist who had interviewed Sinnott while he was under the effects of sodium pentothal. The psychiatrist’s conclusions were that Sinnott was "not a sex deviate" and that he "did not have the capacity to commit sodomy."68 Because the interview occurred on the defendant’s own, it was labeled as "hearsay" and, therefore, as excludable.69
A fascinating case was the next sodomy case to be reported in New Jersey. In 1960, an appellate court decided State v. Fleckenstein,70 in which the conviction of an attorney was upheld. Edward Fleckenstein was accused of picking up "young boys" on highways (presumably they were teenagers, old enough to hitchhike)71 and committing acts of "lewdness and carnal indecency" with them.72 Fleckenstein raised the issue of a political frame-up in his appeal, asserting that
Thus, a right-winger who supported Joseph McCarthy’s anti-Gay crusade himself was charged with sexual acts with young males. The Court could find no reversible error, and affirmed Fleckenstein’s conviction.74
The New Jersey Supreme Court decided State v. Taylor75 in 1966. Nine prisoners had been convicted of committing sodomy upon a tenth one under forcible circumstances. At trial, one prisoner said that he had seen one defendant "on top of" the victim "in an act of sodomy" the night before, presumably in a consensual act. In addition, he said that he "often" saw them with their arms around each other. In rebuttal, both alleged lovers denied having a relationship. Because one prisoner’s confession was admitted into the joint trial, the convictions of the only other two who appealed were reversed unanimously. Six of the nine never appealed, but their convictions would have been overturned had they done so.
In 1970, in State v. Still,76 an appellate court rejected the defendant’s contention that acquittal on a charge of attempting sodomy should acquit him automatically on a charge of making an assault with intent to commit sodomy.77
A new criminal code was proposed in 1971.78 Unlike most state revision commissions, New Jersey’s was charged, in part, with increasing "individual liberties" in suggesting a new code.79 Also unlike other states, New Jersey never had a comprehensive criminal code to revise, so the commission had to "start virtually from scratch."80 Provisions to abolish common-law crimes81 and to prohibit local governments from enacting criminal statutes in conflict with the state code82 were recommended. The sodomy provision would have legalized consensual sodomy and set the age of consent at the amazingly low age of 12.83 Although all sexual relations with a partner under 12 would be illegal, it would be a lesser crime if the victim was "a voluntary social companion" of the offender and "previously permitted the actor sexual liberties."84 Sexual contact, however, (touching) would be illegal with anyone under 16.85 A separate volume gave commentary that explained the reasoning of the commission. Common-law offenses should be abolished, the commission said, because modern law gives "rise to doubts about the constitutionality of some of the common law crime standards and definitions."86 The rationale for repealing the sodomy law was
The extant law permitted "capricious selection of a very few cases for prosecution and serve primarily the interest of blackmailers."88 After such a thorough work product was produced, it would take seven years for the New Jersey legislature to act.
The New Jersey Supreme Court decided the case of State v. Lair89 in 1973. The Court unanimously held that the sodomy statute was not unconstitutionally vague90 and applied both to same-sex and opposite-sex activity,91 but could not constitutionally be applied to married couples.92 In a concurring opinion, Chief Justice Weintraub added that he doubted
In 1976, just three years later, after a major turnover in membership of the Court, a far more liberal result was reached in the case of State v. J.O. and F.C.94 Two men had been arrested for engaging in consensual sex with each other in a car parked in a dark area in a rest area along a state highway. They were arrested by highway patrolmen specifically looking for such activity. In a surprising, unanimous vote, the Court ruled that the state could not prosecute the men because the actions did not occur in a public place. The Court noted that it was nearly impossible for anyone to have seen them.95
The last pre-repeal reported case in New Jersey was an odd one. In 1977, in State v. Cherry,96 an appellate court upheld the conviction of Tony Cherry for an act of forcible sodomy committed while a female friend held a knife to the neck of the victim.97 Cherry contended that imprisonment would constitute cruel and unusual punishment because it
One State Senator, Joseph Maressa, got himself caught up in the anti-Gay mood of the nation during this year and introduced a bill102 to keep criminal consensual sodomy between people of the same sex. Maressa withdrew the bill early in 1979 after opposition from the public.103
An appellate court decided the case of State v. Ciuffini104 in 1978 after the repeal of the sodomy law, but before its effective date. The Court overturned the conviction of Ciuffini for a consensual act of sodomy with a male who was two months past his 16th birthday on the ground that the state established an age of consent for females at 16 and could not, without violating the Equal Protection Clause of the U.S. Constitution, prohibit males from consenting at the same age.105 The Court then went on to rule that the sodomy law was unconstitutional as it applied to consenting adults.106
Period Summary: After the Second World War, New Jersey showed a degree of liberalism on the sodomy issue unusual for the McCarthy era. Although it was one of the states to enact a psychopathic offender law, New Jersey studied the issue very carefully before adopting a law. The one adopted limited its applicability to sexual activity with minors, making it clear that consenting adults could not be processed under it. The penalty for sodomy also received a minor reduction, an act unusual for the McCarthy era. The state showed equal care in studying and proposing a revised criminal law in 1971. There were few reported sodomy cases during the period, but the state showed a growing support for privacy rights. The New Jersey Supreme Court ruled that married couples could not be prosecuted under the law, and later ruled that two men having consensual sex in a parked car could not be prosecuted under the "private lewdness" law, since their conduct was unlikely to be seen by others. The sodomy law was repealed and a legislative effort to reinstate sodomy as a crime failed after massive public opposition.
The Post-Hardwick Period, 1986-Present
A bizarre case decided by an appellate court in 2001 was State v. Cooke.107 Joseph Cooke was convicted of a sexual assault by fellating a man he knew while the man slept. The trial judge, disagreeing with the jury verdict, believed the sexual activity was consensual, so sentenced the defendant to probation and a fine. The appellate court found that the judge had no authority to overrule the jury’s finding and reinstated the sexual assault conviction. No explanation was given as to why any penalty would be assessed against consensual sexual activity, which has been legal in New Jersey for more than two decades.