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

New Mexico

"The acts admittedly committed are even more sensual and filthy than the offense charged, baser than the practices of pagans."

 

The Post-Revolution Period, 1776-1873

The Organic Law for the Territory of New Mexico,1 adopted in 1850, made no provision for criminal laws.

In 1851, the territorial legislature passed a law for regulating courts2 and included an adoption of the common law in criminal cases,3 thus making sodomy a capital offense.

This law was interpreted in 1852 in Bray v. United States.4 The New Mexico Supreme Court ruled that the law could not be applied retroactively, in this case to an assault committed three months before the law was adopted. It found that the common law was not given to the New Mexico Territory upon acquisition from Mexico. It also made reference to the "cruel and inhuman character" of common-law penalties for felonies (always death), but did not mention how New Mexico planned to punish Bray for his "common law assault" if convicted.5

In 1861, when Great Britain reduced the maximum penalty for sodomy from death to life imprisonment,6 this became the law in New Mexico, due to its adoption of the common law.

Period Summary: New Mexico, unlike most of the West, showed an early support for English common-law crimes, recognizing them within a year of creation by Congress. During this period, there was no sodomy statute, so the common-law penalty of death remained operative until England reduced the penalty to life imprisonment in 1861, an action that would make a similar reduction in New Mexico’s penalty.

The Victorian Morality Period, 1873-1948

The first sodomy law was passed in 18767 and used the common-law definition of the crime with a penalty of at least one year in prison and/or a $1,000 fine, with no maximums established.8 Any attempt could be penalized by up to one year and/or a $1,000 fine.9

In 1913, in Ex Parte DeVore,10 the original common-law provision was interpreted by the New Mexico Supreme Court as adopting all common-law crimes. Previous case law had hinted at this, but none had been explicit.

Period Summary: During this period, there was not a single reported sodomy case in the state and only one statutory change. This change, however, was the first sodomy law of New Mexico. It retained the maximum penalty of life imprisonment it received from the English statute and retained the common-law definition of the crime, thus excluding oral sex from its scope.

The Kinsey Period, 1948-1986

The state’s first reported sodomy case was decided by the New Mexico Supreme Court in 1953. In Bennett et al. v. Abram,11 the Court held that the sodomy statute did not outlaw fellatio. In reaching its decision, the Court noted, erroneously, that six cited states that had ruled just the opposite had done so only because their statutes were worded differently.12 In fact, each of the states had common-law definitions. The Court felt that, although

the acts admittedly committed are even more sensual and filthy than the offense charged, baser than the practices of pagans, we cannot extend the crime of sodomy so as to include the acts called felatio [sic].13

The Court noted that the legislature then was in session and suggested that it might be "an appropriate time" for it to redefine the crime of sodomy. It suggested a statute.

Sodomy consists of a person taking into his or her mouth or anus the sexual organ of any other person or animal or placing his or her sexual organ in the mouth or anus of any other person or animal. Any penetration, however slight, is sufficient to complete the crime of sodomy. Both parties may be principals.14

In 1954, the Court ruled in the case of State v. Massey15 that emission of semen was not required to complete the crime.16

The legislature took until the following session to act on the suggestion of the Supreme Court. In 1955, it enacted a law17 that adopted the suggested rewording verbatim. The penalty for an attempt to commit the crime was raised to a maximum of 10 years.18

In 1961, more than half a decade after the recommendation of the American Law Institute, the New Mexico House of Representatives became the first U.S. legislative body to pass a bill to include repeal of a consensual sodomy law. The bill cleared the House on a close 37-28 vote, but was not successful in the Senate.19 This proposed code was both unique and ahead of its time. It used the term "variant sexual practice" to refer to oral and anal sex,20 rather than the more commonly used "deviate." This shows an amazing enlightenment for the time.

In 1963, the legislature did enact a comprehensive criminal code revision21 that did not even come close to adopting the provisions of the model penal code. Common-law crimes remained recognized22 and the sodomy law was changed only slightly to add the word "intentionally" to the "taking into" the body for the purposes of committing sodomy.23 The penalty was set at 2-10 years and/or a fine of up to $5,000.24

In 1964, the New Mexico Supreme Court ruled in two cases, Starkey v. Cox25 and State v. Frederick,26 that life imprisonment was permissible under the statute because of its failure to state a maximum sentence. The cases were prosecuted before the 1963 change in the penalty.

Although case law on the issue of sodomy is scarce in New Mexico, a medical journal article27 from 1965 revealed some of the practices in cases of sodomy arrests in the time just after the state failed to repeal its sodomy law in its new criminal code. "Peter M." was a "youth" who had been arrested for unspecified sexual activity and who also was an adamant transvestite. Psychiatrist Rodolfo Bramanti wrote a letter to Peter’s probation officer concerning his homosexuality. He listed all then-believed "cures"—sexual sterilization, sex hormone therapy, electroshock treatment, and psychoanalysis. Bramanti believed none of them to be of value, each either hopeless or potentially dangerous.28 He then quoted two other physicians who believed that physicians should

accept the fact of homosexuality in certain people and try to help them live as happily and efficiently as possible. That is our task as doctors.29

Bramanti believed that maxim and urged the state to help Peter obtain employment

as a beautician, since he expressed interest in that type of work and since it will fit his aptitudes and general makeup.30

His conclusions about Peter, which could be expanded to include every Gay man or Lesbian, were to 1) take an "understanding attitude" toward him by urging "his family, his relatives and members of the community that Peter M. should be accepted the way he is"; 2) "alleviate his emotional tensions, his frustrations, anxieties and periods of depression"; 3) treat him "politely" and allow him consensual sexual activity as he sees fit.31

It would take another decade for New Mexico to follow this last recommendation.

The New Mexico Court of Appeals decided that cunnilingus violated the sodomy law in 1967 in the case of State v. Putman.32 The 2-1 decision of the court held that placing the tongue inside a vagina constituted a "taking into" the body as required by the statute.33 The dissenting judge did so on other grounds.34

The same court ruled in 1971, in Washington v. Rodriguez35 that consent could not be raised as a defense in a sodomy prosecution36 and that privacy rights could not be asserted because the defendant had engaged in sodomy in a prison.37

The Court of Appeals decided State v. Trejo38 in 1972. This case involved an attempt at forcible sodomy of a 16-year-old male and, predictably, the conviction was upheld. What is remarkable about the case is the dissent of Judge Lewis Sutin. While acknowledging that Trejo’s actions currently were illegal and would remain illegal even with the adoption of the Model Penal Code, he felt the law was

unconstitutional and void because it regulates private sexual relations between two consenting adults, including husband and wife.39

Sutin cited law review articles condemning the law40 and noted that it was based upon "a Judeo-Christian principle."41 He also felt that the law was

unconstitutional and void because it is vague, overbroad, uncertain, and is an unreasonable exercise of the police power of the state.42

"No one has ever proven that the various acts involved are physically harmful between two consenting adults engaged in private sexual relations, nor that these acts have a deleterious effect on society."43 He then asked if it didn’t

seem odd that the statute allows the state to punish consenting adults for private sexual deviations, and married people for the private use of their marital intimacy even though they seek stability instead of divorce? In denying consensual private sex relations between adults, the legislature makes criminals out of a large section of ordinary, normal people in New Mexico who have left the biblical text and seek contentment under modern professional guidance. Public policy cannot sanction this type of legislation.44

"The social revolution on the subject of private consensual sexual relations between two consenting adults has begun legally in the courts and in the legislature. New Mexico should follow this trend."45

Sutin spoke again in the 1973 case of State v. Armstrong.46 This was a heterosexual case involving both rape and sodomy. Again, the conviction was upheld, and Sutin said, "I concur on rape and dissent on sodomy."47 His amazing dissent said, in part,

The purpose of this dissent is not to sanction public or private deviant sexual intercourse made unlawful by illegal conduct. Its purpose is to seek adoption of the Model Penal Code of the American Law Institute...to avoid an invasion of the right of privacy.48

"A man’s home is his castle." If he

placed in his home Michelangelo’s "David," or exhibited a movie showing consensual sex deviation, or hung on his wall, Altdorfer, Lot and His Daughter and Carracci, Love in the Golden Age and other paintings of Sex and Erotica, all of which are shown publicly, does legislative power extend into this man’s home? Can it send him to prison?49

The New Mexico Supreme Court refused to review the decision.50

Obviously to Sutin’s satisfaction, in a comprehensive sexual assault law revision passed in 1975,51 the sodomy law was repealed.52

In 1975, in State v. Elliott,53 the Court of Appeals voted 2-1 to find the sodomy law unconstitutional in a heterosexual case prosecuted before the repeal of the law. On appeal,54 the New Mexico Supreme Court unanimously reversed. This was so because the couple

were not husband and wife and, consequently, there could have been no issue as to marital privacy, the sanctity of the home or the nurture of family life.55

In another post-repeal case that involved heterosexual rape and sodomy committed under the old statute, State v. Helker,56 from 1975, another 2-1 split occurred. The conviction was upheld, but Judge Lewis Sutin again dissented. He criticized the majority for failing to follow Elliott, which had not yet been reversed by the New Mexico Supreme Court. He also added that the New Mexico legislature

was wise enough to repeal the old sodomy statute and adopt a new one which meets all constitutional requirements. But Elliott and Helker will suffer punishment for a crime which did not exist in law, and which constitutional problem the appellate courts of this State have studiously refused to determine.57

Sutin seemed unable to understand that the law of which he was so critical had been upheld consistently in the state. Before deciding Elliott contrariwise to Sutin’s position, the New Mexico Supreme Court refused to review Helker.58

An attempt to reinstate the consensual sodomy law in the state was announced in 1986 by two state legislators, but was not successful.59

Period Summary: It was not until the McCarthy era that New Mexico had its first published sodomy case. Surprisingly for the time era, the New Mexico Supreme Court ruled in this case that the common-law definition of sodomy remained in force and that oral sex was legal. Uncomfortable with its decision, the Court added to its opinion a recommended new law to overturn its own decision. At the next session of the legislature, the suggested law was adopted verbatim. In 1961, New Mexico came close to becoming the first state to decriminalize sodomy, but the State Senate balked and the new criminal code adopted two years later retained felony penalties for private, consensual activity. Court opinions during the 1960s and 1970s were consistent in upholding sodomy convictions. The New Mexico Supreme Court found no privacy right under the constitution for acts of sodomy, but the state legislature repealed the law in 1975 in a sexual offenses revision law.

The Post-Hardwick Period, 1986-Present

The actions of the New Mexico Supreme Court, in reversing Elliott, guaranteed that pre-repeal convictions had no chance of being overturned and that the legislature would remain constitutionally free to reenact laws against consensual sodomy whenever they chose.

Common-law crimes remain recognized in the state60 and case law in the state is such that repeal of a statute in derogation of the common law reinstates the common-law provision,61 making it clear that anal sex still can be prosecuted if any district attorney feels the urge.

Period Summary: There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution. With common-law crimes still being recognized by the state and the New Mexico Supreme Court having ruled that the common-law provision overrides a legislative repeal, private, consensual anal sex can be prosecuted by any prosecutor desiring to do so.


Footnotes

1 9 Stat. 446, enacted Sep. 9, 1850.

2 Laws of New Mexico 1851-52, page 141, enacted July 12, 1851.

3 Id. at 144, 18.

4 1 N.M. 1, decided during January 1852 Term.

5 Id. at 4.

6 25 Vict. c. 99, enacted Aug. 6, 1861.

7 Laws of New Mexico 1875-76, page 110, ch. XXXIV, enacted Jan. 7, 1876.

8 Id. 1.

9 Id. 2.

10 136 P. 47, decided Oct. 14, 1913.

11 253 P.2d 316, decided Feb. 13, 1953.

12 Id. at 317.

13 Id.

14 Id.

15 266 P.2d 359, decided Jan. 29, 1954.

16 Id. at 365.

17 New Mexico Laws of 1955, page 132, ch. 78, enacted Mar. 4, 1955.

18 Id. 3.

19 Mattachine Review, March 1961, page 26; February 1962, page 32. The new code was House Bill 17. It passed the House of Representatives on January 30, 1961, but was killed by a Senate committee on March 11. The only change to the code made by the House (either in committee or on the floor) was a postponement of the enactment date of the code from April 1 to July 1, 1963.

20 Id. at 39, 13-1 B.

21 New Mexico Laws of 1963, page 822, ch. 303, enacted Mar. 25, 1963.

22 Id. at 829, 1-3.

23 Id. at 849, 9-6.

24 Id. at 895, 29-3(C).

25 389 P.2d 203, decided Feb. 3, 1964.

26 390 P.2d 281, decided Mar. 9, 1964.

27 Rodolfo M. Bramanti, "Letter to a Probation Officer on a Case of Homosexuality," Southwest Medicine, 46:253-257 (1965).

28 Id. at 255.

29 Id. at 256.

30 Id.

31 Id. at 257.

32 434 P.2d 77, decided Oct. 6, 1967. Rehearing denied Nov. 2, 1967.

33 Id. at 78.

34 Id. at 78.

35 483 P.2d 309, decided Mar. 5, 1971.

36 Id. at 311-312.

37 Id. at 312.

38 494 P.2d 173, decided Feb. 4, 1972.

39 Id. at 175.

40 Id. at 176 and Appendix at 177-178.

41 Id. at 176.

42 Id. at 177.

43 Id.

44 Id.

45 Id.

46 511 P.2d 560, decided May 23, 1973.

47 Id. at 563.

48 Id. at 565.

49 Id. at 565-566.

50 511 P.2d 554, decided June 15, 1973.

51 New Mexico Laws of 1975, ch. 109, enacted Apr. 3, 1975, effective June 20, 1975.

52 Id. 8.

53 539 P.2d 207, decided July 9, 1975.

54 551 P.2d 1352, decided June 25, 1976.

55 Id. at 1353.

56 545 P.2d 1028, decided Dec. 2, 1975.

57 Id. at 1033-1034.

58 546 P.2d 70, decided Jan. 7, 1976. This denial was 100 years, to the day, from the enactment of New Mexico’s first sodomy law.

59 Washington Blade, Jan. 10, 1986, page 8. According to the Legislative Council Service, the bill never was introduced. (Correspondence from New Mexico Legislative Council, n.d., postmarked Mar. 14, 1997).

60 New Mexico Statutes 1978, 30-1-3.

61 Beals v. Ares, 185 P. 780, decided Oct. 23, 1919. Rehearing denied Nov. 29, 1919.


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