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
"There is no natural desire in man or in any of the
lower animals to do any such licking."
The Post-Revolution Period, 1776-1873
When organized by Congress in 1861,1 the
Dakota Territory was given neither a sodomy law nor a reception of common-law
The Territory of Dakota, then comprising both of the current Dakota states,
enacted a criminal code2 in 1862 that
established a sentence of one year-to-life for sodomy, with the common-law
Period Summary: As with most new territories, the Dakota
Territory (which then included South Dakota) received no criminal code
from Congress upon creation. However, also like most territories, Dakota
adopted one early on in its home-rule period. The wording, also typical,
was the common-law definition, and the maximum penalty was life
imprisonment, also common.
The Victorian Morality Period, 1873-1948
The sodomy law was amended in a new code adopted in 18774
that eliminated the minimum penalty and reduced the maximum penalty to 10
In 1889, the Dakota Territory was split into two states that were admitted
into the Union. The 1877 law remained in effect. The two Dakotas took
different paths when it came to sodomy laws.
North Dakota, unlike its twin to the south, moved to cover fellatio and
other types of activity by statute. In 1895, the legislature adopted new codes
of law6 that included a greatly expanded sodomy
law. The wording was changed to read
Every person who carnally knows in any manner any animal or bird; or
carnally knows any male or female person by the anus or by or with the
mouth; or voluntarily submits to such carnal knowledge; or attempts sexual
intercourse with a dead body, is guilty of sodomy and is punishable by
imprisonment in the penitentiary not less than one and not exceeding ten
years or in the county jail not more than one year.7
The crime was complete upon any "sexual penetration, however
In 1900, the North Dakota Supreme Court received its first case under this
statute. In In Re King,9 the Court was
faced with a writ of habeas corpus from a man sent to prison for five
years solely for an attempt to commit sodomy. He claimed that the state was
without authority to send him to the penitentiary for an attempt.10
The Court unanimously rejected the claim, pointing out that state law was
clear on the power to punish attempts at half the maximum penalty prescribed
for the completed act.11
In 1903, North Dakota enacted a law12 that
declared as a vagrant all "lewd, wanton and lascivious persons, in speech
In 1917, in State v. Nelson,14 the
North Dakota Supreme Court sustained a sodomy conviction for an act of
cunnilingus. In a unanimous, but brief, opinion by Chief Justice Andrew Bruce,
the Court held that an indictment charging that the defendant did "lap
and suck the [genitals] with his tongue and mouth" was proper under the
states broad 1895 sodomy statute.15 After
stating that they did "not desire to discuss the revolting details of an
act such as that complained of,"16 the
Court referred readers to Richard Krafft-Ebings psychological work Psychopathia
Sexualis if they wished to learn more.17 In
what is one of the most bizarre written opinions in U.S. legal history,
Justice James Robinson concurred.18 He mixed an
annoyance with the cross-examination that the defendant had received in the
trial19 with some extremely strange and
seemingly contradictory language, much of which appears to bear no
relationship to the question before the Court. However, of the relevant
language, Robinson felt that
in such a case the desire of the jurors to be on the laughing side and
to show a mock horror of things scandalous and incredible has led to the
conviction and ruin of many an innocent person. There is no natural desire
in man or in any of the lower animals to do any such licking.20
He concluded with a criticism of the other justices, even as he
inexplicably joined the result.
The other judges conclude their decision by a dictum holding that, if
there were any offense, it was an attempt to commit sodomy. Truly that is
ridiculous. Men do not accomplish rape or sodomy with the tongue. It has
no penetrating force, and, under the statute, there must be "sexual
penetration." The tongue is never an instrument of force or violence.21
In a 1929 case, State v. Flath,22 the
North Dakota Supreme Court unanimously denied a writ of habeas corpus
to a physician in custody before trial for taking indecent liberties with
three teenage males.23 The Court stated that
the laws reach included "all forms of indecent liberties" not
covered by rape or sodomy laws.24 The Court
also rejected Flaths contention that, because the teenagers consented, the
unspecified acts did not amount to indecent liberties.25
Flaths case returned to the high court after his conviction on the
original charges. In Flath II,26 the
Supreme Court reacted negatively to the manner in which he had been tried. Two
other teenage males with whom Flath had allegedly also performed the acts were
allowed to testify in his trial. The Court said that they were
entirely at a loss to see any legal basis in this case for the
admission of the evidence relating to the alleged other offenses. The real
purpose for the introduction thereof seems to have been that stated by the
prosecuting attorney, namely, to show "the general licentious
character of the defendant"[.]27
By a vote of 4-1, the Court overturned Flaths conviction and ordered a
new trial.28 Justice A.G. Burr dissented. He
noted that the boys whose testimony was held prejudicial, as well as those on
whom the criminal acts were charged, had consulted the defendant as a
physician, had received the same "treatment" from him and that their
testimony showed the defendants "method, intent, and purpose."29
A law adopted in 191330 permitted the
sterilization of any inmate of a prison whose "mental or physical
condition" would be improved by the operation.31
Through the end of 1921, 23 persons were sterilized under this law.32
In 1927, North Dakota enacted a statute33
expanding the powers of the state to authorize examination, for possible
sexual sterilization, of all
feeble-minded, insane, epileptic, habitual criminals, moral degenerates
and sexual perverts, who are potential to produce off-spring, who, because
of inheritance of inferior or antisocial traits, would probably become a
social menace or wards of the state.34
The authoritative board was required to
examine into the innate traits, the mental and physical conditions, the
personal records and the family traits and history of all persons reported
so far as the same can be ascertained[.]35
This law contained no requirement that the "degenerates" or
"perverts" commit a crime before being referred for sterilization.
They simply could be rounded up because of their status.
Through the end of 1934, a total of 150 sterilizations had taken place in
North Dakota. In the state, submission to sterilization was made, through
administrative policies, compulsory prior to release from a state institution.36
Period Summary: Early in this era, the Dakota Territory reduced
the maximum sodomy penalty from life to 10 years, an action that was
unusual. In 1889, the territory was divided and admitted to the Union as
two states. North Dakota adopted an expanded sodomy law that clearly
covered oral sex, in 1895. This law was enacted just prior to Oscar Wildes
trials, but after the Alice Mitchell case, so it is possible that the
Mitchell case influenced the North Dakota legislature. With this expanded
law, the North Dakota Supreme Court became the first in the nation to
sustain a cunnilingus conviction, in 1917. A sterilization law was adopted
in 1913 and expanded in 1927 to include "moral degenerates" and
The Kinsey Period, 1948-1986
The last reported case in North Dakota, State v. Powell,37
decided in 1955, upheld the conviction of a man for completed sodomy
for merely attempting an act of sodomy on an 11-year-old boy. The
decision noted that the boy voluntarily dropped his pants at the request of
the man,38 then pushed the man away when he
"attempted an act of sodomy" by apparently trying to fellate the
boy.39 The Court stated that whether or not a
partner to sodomy, even if 11 years old, was an accomplice was for a jury to
decide.40 The Court also added an odd
interpretation of the voluntariness of the boys dropping of his pants.
Rejecting the defendants claim that the boy thereby consented, the Court
said that he had done so only "at the request of the defendant."41
This interpretation makes it difficult to imagine how one could consent to a
sexual act without another party making a suggestion first.
In 1973, the North Dakota legislature adopted a comprehensive criminal code
revision42 that repealed the states
consensual sodomy law,43 retained the
abrogation of common-law crimes,44 and
established an age of consent of 18.45
Unfortunately, the new code also contained a disorderly conduct provision
outlawing the solicitation of sexual contact while "loitering in a public
place for the purpose of soliciting sexual contact[.]"46
A total of 784 North Dakotans were sterilized through the year 1948,
including 32 who were neither insane nor mentally retarded.47
These may have included "moral degenerates and sexual perverts."
In 1965, the sterilization law was repealed.48
There are not extant records as to the total number of persons sterilized
for "moral degeneracy" or "sexual perversion."49
Period Summary: North Dakota adopted a new
criminal code in 1973 and became only the eighth state to repeal its
sodomy law. It retained a loitering law that can be used against cruising
for sex, but there is no case law under it. The sterilization law remained
The Post-Hardwick Period, 1986-Present
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.
1 12 Stat. 209, enacted Mar.
2 Laws of Dakota 1862,
page 165, ch. IX, §47, enacted Apr. 28, 1862.
4 Territorial Revised
Codes of Dakota 1877, page 777, ch. XXXI, §346, enacted Feb. 7, 1877.
6 Penal Code, ch. 32,
8 Id. §7187.
9 82 N.W. 423, decided Apr.
11 Id. at 424.
12 Laws of North Dakota
1903, page 285, ch. 206, enacted Mar. 13, 1903.
14 163 N.W. 278, decided
May 8, 1917.
16 Id. at 279.
21 Id. at 280.
22 228 N.W. 847, decided
Dec. 7, 1929. Rehearing denied Feb. 10, 1930.
23 Id. at 848.
24 Id. at 852.
26 237 N.W. 792, decided
Aug. 14, 1931.
27 Id. at 793.
28 Id. at 794.
30 Laws of North Dakota
1913, page 63, ch. 56, enacted Mar. 13, 1913.
31 Id. at 64, §1.
32 Harry Hamilton Laughlin,
Eugenical Sterilization in the United States, (Chicago:Psychopathic
Laboratory of the Municipal Court of Chicago, 1922), page 87.
33 Laws of North Dakota
1927, page 433, ch. 263, enacted Mar. 3, 1927.
34 Id. §1.
35 Id. at 434, §3.
36 Abraham Myerson et al., Eugenical
Sterilization: A Reorientation of the Problem, (New York:Macmillan,
1936), page 17.
37 73 N.W.2d 777, decided
Dec. 13, 1955.
38 Id. at 778.
40 Id. at 779.
42 Laws of North Dakota
1973, ch. 117, adopted Mar. 28, 1973, effective July 1, 1975. The sexual
offenses were enacted in a separate law from the rest of the code. The
remainder of the new code was Chapter 116, enacted the same day.
43 Id. ch. 117.
North Dakota Century Code Chapter 12.1-20 covers sexual offenses now.
44 Laws of North Dakota
1973, ch. 116, at 220, §12.1-02-01.
45 Id. ch. 117, at
46 Id. ch. 116,
§30, codified as §12.1-31-01 (6).
47 Moya Woodside, Sterilization
in North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
48 Laws of North Dakota
1965, page 373, ch. 203, enacted Mar. 20, 1965.
49 Correspondence from Carl Rodlund,
Assistant Director, Division of Mental Health Services, Dec. 28, 1995.
According to Rodlund, no records exist in the State Archives, the Department
of Health, the Division of Developmental Disabilities within the Department
of Human Services, or the Law Library.
[History] [Sensibility of Our Forefathers]