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 1991-2003
"[C]ourts, as well as officers, parents and the
moral forces of this State and Nation, must not shirk the onerous task
involved in such problems, if a Sodom and Gomorrah is to be
The Victorian Morality Period, 1873-1948
The Oklahoma Territory was organized in 18901
and received most of the laws of Nebraska, including its criminal code and
common-law reception.2 This seemingly made sodomy
punishable by one year-life.
However, a compilation of criminal laws included an explanatory note that
only those laws "locally applicable" were taken from Nebraska law and
that those that were "irrelevant, inapplicable, or repugnant to United
States laws" were excluded. Compiler LeGrand Byington omitted "the
extraneous, verbose and immaterial clauses, that would have encumbered rather
than aided the enforcement of the essential provisions, and thereby cheapened
the volume to the people whose immediate needs it supplies."3
One Nebraska law not found in this new compilation was the "crime
against nature" law, although a large number of other sexual crimes were
Once created, the Oklahoma Territory enacted its own criminal code later in
1890.5 This code abrogated common-law crimes,6
declared that a "morbid propensity" to commit crime was no defense,7
and excluded the crime against nature from a list of crimes of which a wife (but
not a husband) was exempt from prosecution if the act occurred under coverture.8
The sodomy law itself used the common-law definition and provided a penalty of
up to 10 years in prison.9 The crime was complete
upon penetration only.10
The first reported sodomy case in Oklahoma was Ex Parte DeFord,11
from 1917. This decided that fellatio was a violation of the crime against
nature statute. Although Judge Matson of the Criminal Court of Appeals, who
wrote the opinion, quoted from other cases from around the country,12
his opinion is remarkable for being free from the extremely moralizing language
found in almost every other jurisdiction confronted with this issue.
Another challenge to the coverage of fellatio was rejected by the same court
in 1927 in Borden v. State.13
The historically important case of Roberts v. State14
was decided by the Criminal Court of Appeals in 1935. This was the first case in
the nation in which the common-law term "crime against nature" was
determined to embrace the act of cunnilingus. Giving no analysis whatsoever, and
yielding to the temptation to use moralizing language, the Court decided that
the vagueness of the Oklahoma statute was "with due regard to the
sentiments of decent humanity" and that the "offense consists in a
carnal knowledge, committed against the order of nature, with mankind or with a
In 1943, Oklahoma adopted a law16 that
outlawed "lewdness" as well as prostitution and assignation17
or the solicitation of an act of lewdness.18
Also in 1943, the Criminal Court of Appeals decided LeFavour v. State.19
The Court rejected the contention of the heterosexual defendant that sodomy
could be accomplished only between people of the same sex.20
In 1946, the Criminal Court of Appeals decided the case of Cole v. State.21
Cole, a "young minister of the Gospel,"22
had been accused of sodomy with a 13-year-old male. Because the young male never
made an effort to cry for help or get away from Cole, or to avoid him afterward,
the Court concluded that he was an accomplice whose testimony needed
corroboration.23 The Court also was critical of
the prosecutor’s statement to the jury that the minister Cole
has turned the words of The Master around, when He said, "Come unto
me, ye little children and be saved." The defendant says, "Come
unto me you little boys and I will corn-hole every one of you."24
Cole’s conviction was overturned for both of these reasons.25
In 1933, Oklahoma enacted a sterilization law26
that authorized the procedure for, among others, any
person incarcerated in any penal institution in this State who is an
habitual criminal, that is any person convicted of a felony three times[.]27
Due to the startling lack of success of early sterilization laws to be upheld
by courts, the Oklahoma law provided due process guarantees.28
This law was revised in 1935.29 The number of
due process guarantees was expanded, the provision for dealing with felons was
changed so that only two, rather than three, convictions were necessary to
trigger operation of the law,30 and the felonies
that would subject the offender to sterilization were only "felonies
involving moral turpitude[.]"31 Several of
these offenses, including embezzlement, were exempted,32
an action which unwittingly would lead to the downfall of sterilization laws
The law was challenged and, in 1941, the Oklahoma Supreme Court upheld it in Skinner
v. State.33 By a vote of 5-4, the Court said
that it must "assume" that the legislature, before enacting the law,
carefully had reviewed
statistics, scientific works, and information from which it found as a
fact that habitual criminals are more likely than not to beget children of
like criminal tendencies who will probably become a burden on society.34
On appeal to the U.S. Supreme Court, the law was struck down in 1942 in Skinner
v. Oklahoma.35 Although the vote was
unanimous, there was not unanimity as to the reason. Speaking for seven members
of the Court, Justice William Douglas found the exemption for those convicted of
embezzlement to be constitutionally fatal.36
Douglas alluded to, but did not deeply explore, the broader issue of fundamental
rights.37 Chief Justice Harlan Stone opposed the
equal protection argument, arguing for the striking of the law only on the
broader issue of liberty.38 Justice Robert
Jackson argued in favor of both points.39 Even
though only two of nine members of the Court argued for the broader rule, this
decision effectively ended the sterilization of criminals in the United States.
No sterilization law was passed in the United States until 1996 after this
decision, and the existing non-therapeutic ones were repealed or fell into
Period Summary: Oklahoma’s first criminal code curiously
expressly permitted prosecution of married couples for acts of sodomy.
Although it used the common-law definition of sodomy, both fellatio and
cunnilingus were determined to constitute violations of it, with the
cunnilingus decision the first such one in the country. Bolstering the
criminal code provision on married couples, the law was interpreted as
covering people of the opposite sex. The Oklahoma sterilization law was the
one challenged in the U.S. Supreme Court and it was struck down by a
unanimous vote, the court finding sterilization for crime to be
The Kinsey Period, 1948-1986
In the case of Woody v. State,40 from
1951, the Criminal Court of Appeals showed the influence of the McCarthy era. A
school janitor had noticed something peculiar through a glass door and, when he
opened it, Woody
ran past witness into the building. Woody was wiping his mouth; and a
young fifteen-year-old boy, Herbert Hopkins, was standing on a window jack,
or wooden block at an elevation of two or two and a half feet off the floor
and was trying to fasten his trousers and clothing over his penis. He had
not gotten off the block. Witness had immediately decided what was going on,
and stated that he severely lectured the boy, and it is significant that
this was without protest or denial from him.41
Hopkins testified that he had known Woody for a year and that on the night in
question Woody asked him
to go up on the third floor with him and that he did so, and found two
boys up there boxing and playing, so they did not stay there long; that
defendant asked witness to go to the east side entrance to the building.
Defendant went down first and witness found him inside the door and they
went outside the building and defendant lifted witness up on a block of
wood, then went to the edge of the building to see if anyone was around,
came back and unbuttoned the front of the pants of witness and took out his
privates and proceeded by mouth "to go to work" with the unnatural
relations, too revolting to further detail.42
Judge Powell, writing for the Court, said that, although
our immediate expressions may be classed as unnecessary and useless
preachment or diatribe, the writer feels called on to say that a male person
on whom such an abominable and pernicious act might be committed perhaps in
many cases by reason of the embarrassment entailed and the thought of
certain degradation in the minds of acquaintances and the public at large,
regardless of his resistance to the act, would not report the same.43
Continuing with a sociological treatise, the Court said that at any rate
perversion is sufficiently prevalent that the moral forces of our State
and Nation should "view with alarm" and become greatly concerned.
The recent book "Washington Confidential"44
presents a documented revelation of shocking and deplorable conditions in
Washington, D.C., of perversion practices of persons in both high and low
authority, involving both men and women, and of many nationalities. The
tales rival the lustful perversions of a Lucretia Borgia and the practices
of the Godless and licentious ruling class at the time of the crumbling of
the ancient Roman and Greek empires. The local Washington law enforcement
officers, as throughout the land, are presented as practically impotent in
dealing with the matter for lack of general public knowledge and militant
and unrelenting support. And while this class of case here presented is
shocking, and a consideration and treatment of the facts and issues is
approached with revulsion, courts, as well as officers, parents and the
moral forces of this State and Nation, must not shirk the onerous task
involved in such problems, if a Sodom and Gomorrah is to be forestalled.
After that lengthy homily, which had nothing to do with the errors claimed in
the trial, the Court upheld Woody’s conviction.46
The state’s law outlawing "lewdness" was interpreted in a case
from 1953, Landrum v. State.47 The
Oklahoma Court of Appeals decided that a "close reading" of the
statute revealed that
the purpose of the statute is to punish persons for sex acts, and is not
limited but is applicable to both the male and the female sex, male with
female, or male with male, or female with female.48
In the 1955 case of Berryman v. State,49
the Court again rejected a claim that fellatio did not constitute the crime
against nature. Berryman had been arrested with consenting teenagers only
because the acts occurred in a car and a passerby saw them.50
In a footnote, the Court mentioned the recent "increase in the number of
cases called to our attention which involve homosexuals and other sex
deviators" and then mentioned a number of published studies, including the
In 1956, in Hopper v. State,52 the
Criminal Court of Appeals ruled the obvious according to the 1890 law in
rejecting the defendant’s claim that emission had to be proven.53
Consenting adults were prosecuted in the case of Taylor et al. v. State,54
from 1962. The defendants were engaged in fellatio in the back seat of a car and
sheriff’s deputies looked in the window and saw them.55
In the 1966 case of Crain v. State,56
the Court of Criminal Appeals unanimously upheld a sentence of 18 months in
prison (obviously for a consensual act) solely because it was less than the
statutory maximum of 10 years.57
One of the few cases in the United States to deal with female-female
relations was decided in 1971 in Warner et al. v. State.58
In this case, a husband and wife picked up a woman on a street in Oklahoma City
and compelled her to engage in oral sex with each of them. The "sordid
unnatural acts testified to by this witness are such that little value could be
gained by setting them forth in detail in this opinion."59
The Court noted that Oklahoma’s
judicial history in dealing with sexual perversion reflects a slow and
painful process wherein the Court of Criminal Appeals has attempted to
discreetly define the multiple acts encompassed in the offense of Crime
Against Nature. Going one step further, we specifically hold that copulation
per os between two females is a violation of 21 O.S. §886. [The sodomy
The Court also rejected a challenge to the vagueness of the law61
and the constitutionality of it as applied to married persons.62
On this latter point the Court felt that the U.S. Supreme Court’s privacy
decisions did not prohibit "the state’s regulation of sexual promiscuity
or misconduct between non-married persons."63
In 1973, in Canfield v. State,64 the
Court of Criminal Appeals split 2-1 to uphold the conviction and sentence of 15
years in prison of Kenneth Canfield for consensual sodomy. The extra five years
on his sentence was because of an unrelated previous criminal conviction.65
Canfield and another man engaged in consensual fellatio in a car parked in a
woods.66 The Court rejected the contention that
the law was an unconstitutional invasion of the privacy of consenting adults
simply by referring to the Warner decision.67
In dissent, Judge Tom Brett disagreed both with the constitutionality of the law
and with the length of the sentence Canfield received for what was a consensual
act.68 The U.S. Supreme Court refused to hear the
In the case of Slaughterback v. State,70
from 1979, another sodomy conviction was upheld by the same court in a 2-1 vote.
The most remarkable aspect was that Judge Tom Brett dissented, because
Slaughterback had been convicted of sexual activity with a 16-year-old mentally
retarded male. He apparently found that to be within the scope of privacy
In the 1985 case of Golden v. State,72
Judge Brett caved in and, because a majority of the Court believed the sodomy
law to be constitutional, he voted to uphold the conviction.73
Curiously, his language in the case leads one to believe that he still
personally felt the sexual activity involved was constitutionally protected.
Golden had been accused of forcing a 13-year-old boy onto a mattress and
fellating him against his will. The boy had escaped, claiming that he "wasn’t
In Hicks v. State,75 from 1986, the
Court of Appeals voted 2-1 to reverse a sodomy conviction because actual
penetration of the vagina in an act of cunnilingus had not been proven.76
The Court of Criminal Appeals decided the 1986 case of Post v. State.77
In a 2-1 vote, the court ruled that the Oklahoma sodomy law could not be
constitutionally applied to private, consensual adult heterosexual activity, in
conflict with previous case law.78 The Court said
that it would not
reach the question of homosexuality since the application of the statute
to such conduct is not an issue in this case. Our holding today is simply to
declare unconstitutional the application of section 886 to the facts of this
Despite Skinner, some kind of sterilizations occurred in Oklahoma in
both 1952 and 1955.80
Also, a bill to require the "asexualization" only of males
convicted of first-degree rape or oral sodomy was defeated narrowly in the
Oklahoma House of Representatives in 1979. There is no evidence that the debate
in the House made any reference to Oklahoma’s ill-fated law of the 1930s.81
The sterilization law was repealed in 1983.82
Period Summary: During the McCarthy era, Oklahoma became the only
state whose courts made reference in a sodomy case to the anti-Gay witch
hunt going on in Washington. It linked it with a lack of religious belief
and this was considered sufficient justification for sodomy laws. An early
constitutional challenge to the law was rebuffed by the Oklahoma Supreme
Court and later by the U.S. Supreme Court. Long sentences for consensual
activity consistently were upheld by the Oklahoma courts until a sudden
reversal in 1986 when an appellate court interpreted the sodomy law as
inapplicable to heterosexual activity. This was despite the 1890 criminal
code provision expressly covering married couples and the 1943 court
decision including heterosexuals within the law’s scope. Despite the U.S.
Supreme Court invalidation of the sterilization law, it continued to be used
into the 1950s, a serious effort to revive its use was launched in 1979, and
the law was not repealed until more than 40 years after it had been
The Post-Hardwick Period, 1986-Present
Oklahoma enacted a law83 in 1988 that was
modeled on the federal RICO statute. It applied to any business enterprise that
was engaged in various criminal activities, including sodomy.84
This apparently would apply to Gay bath house owners and operators.
The curious decision of McBrain v. State,85
from 1988, may have expanded, unintentionally and briefly, the Post
decision to cover same-sex activity. The facts in McBrain were
non-consensual, but Judge Hez Bussey, speaking for the unanimous Court of
Criminal Appeals, referred to Post as striking down the sodomy law as it
applied "to consensual acts between adults" and reprinted what Post
said still was coverable under the law: bestiality, forced sexual activity,
sexual activity with those underage, or public or commercial sexual acts.86
Nowhere in the McBrain opinion did the Court specifically exclude
homosexual activity from constitutional protection.
The freedom of McBrain lasted exactly 15 days. In Newsom v. State,87
the same court unanimously upheld a conviction for non-consensual heterosexual
sodomy and said that the Post decision of two years earlier was limited
to "consensual, heterosexual" activity.88
The 1990 case of Virgin v. State89 did
open up one erotic activity to everyone. The Court of Criminal Appeals
unanimously held that the law was not violated by the insertion of a finger into
the rectum, because a finger was incapable of sexual penetration as that term
generally was understood.90
In 1995, the Oklahoma Court of Criminal Appeals, deciding Sawatzky v. City
of Oklahoma City,91 upheld a solicitation
conviction that raised important questions. The Court, in a 3-1 vote, noted that
Sawatzky solicited an act of lewdness in a public place from a police
officer. The act solicited was intended to take place in private and
Sawatzky and the officer are members of the same gender. In this context it
is clear that Sawatzky is not entitled to relief.92
Thus, had a female solicited the police officer for
sodomy while in a public place, she would have had a constitutional right to do
so. The U.S. Supreme Court refused to review this decision.93
Oklahoma legislature has shown no inclination to repeal this law. In 1997, it
enacted a “Truth in Sentencing Act”94 that made massive revisions to the penalties for all manners of crimes.
The change in the sodomy law95 eliminated the maximum ten-year penalty and replaced it with language
making sodomy an unspecified felony. Under another provision of Oklahoma law,
unspecified felonies have a maximum penalty of two years in prison, a $1,000
fine, or both.96
This “Truth in Sentencing Law” didn’t last very long. In 1999, a
carrying an emergency clause98
eliminated the arguably more lenient penalty for sodomy adopted in the Truth in
Sentencing Act and made the maximum penalty for sodomy 20 years in prison,99
twice the maximum that had been available for more than a century.
Summary: Oklahoma courts made it clear that the sodomy law invalidation
was limited to heterosexual activity. The Oklahoma legislature also has
shown no interest in repealing the now discriminatory law. After possibly
unintentionally lowering the maximum penalty with a major revision to state
criminal law, it reacted a year later in raising the maximum penalty to well
beyond what it ever had been in the state.
1 26 Stat. 81, enacted May 2,
2 Id. at 87, §11.
3 Adopted Code for the
Territory of Oklahoma Containing That Portion of the General Statutes of the
State of Nebraska, As Compiled and Annotated by Guy A. Brown, Esq., Which
Was Extended Over Said Territory by Act of Congress, (Topeka:Reed-Martin,
1890), "Explanatory" at beginning of volume, no page number.
4 The sexual crimes are set
forth on pages 89-90.
5 Oklahoma Statutes 1890,
(Guthrie OK:State Capital Printing Co., 1891), page 412, ch. 25, enacted in
legislative session that ran from August to December 1890.
6 Id. §1849.
7 Id. at 415, §1865.
8 Id. §1869. This is
the first explicit reference I have seen to the coverage of sodomy laws to
9 Id. at 460, §2196.
10 Id. §2197.
11 168 P. 58, decided Oct.
12 Id. at 59-60.
13 252 P. 446, decided Jan.
14 47 P.2d 607, decided July
15 Id. at 610.
16 Oklahoma Session Laws
1943, page 83, ch. 39, enacted Feb. 26, 1943.
17 Id. §2(a).
18 Id. §2(b).
19 142 P.2d 132, decided
Oct. 6, 1943.
20 Id. at 135.
21 175 P.2d 376, decided
Dec. 11, 1946.
22 Id. at 377.
23 Id. at 378-379.
24 Id. at 380.
26 Oklahoma Session Laws
1933, page 84, ch. 46, enacted May 5, 1933.
27 Id. at 85, §1.
28 Id. §2 and §3.
29 Oklahoma Session Laws
1935, page 94, ch. 26, enacted May 14, 1935.
30 Id. §3.
32 Id. at 99, §24A.
33 115 P.2d 123, decided
Feb. 18, 1941. Rehearing denied July 8, 1941.
34 Skinner, at 127.
35 316 U.S. 535, decided
June 1, 1942.
36 Id. at 538-539.
37 Id. at 541-542.
38 Id. at 543-545.
39 Id. at 546-547.
40 238 P.2d 367, decided
Nov. 28, 1951.
41 Id. at 369-370.
42 Id. at 370.
43 Id. at 371.
44 Jack Lait and Lee
Mortimer, Washington Confidential, (New York:Crown, 1951). This book
is an infamous anti-Gay work that claimed that Gay men and Lesbians were
overrunning the federal government.
45 Woody, at 371.
46 Id. at 374.
47 255 P.2d 525, decided
Mar. 25, 1953.
48 Id. at 528.
49 283 P.2d 558, decided
Apr. 13, 1955. Rehearing denied May 18, 1955. Cert. denied, 350 U.S. 878,
decided Nov. 7, 1955.
50 283 P.2d, at 561.
51 Id. at 565, n.1.
52 302 P.2d 162, decided
Aug. 1, 1956. Rehearing denied Oct. 17, 1956.
53 Id. at 165.
54 374 P.2d 786, decided
Sep. 19, 1962.
55 Id. at 788.
56 410 P.2d 84, decided Jan.
57 Id. at 85.
58 489 P.2d 526, decided
Sep. 1, 1971. Rehearing denied Oct. 2, 1971.
59 Id. at 526-527.
60 Id. at 527.
61 Id. at 528.
64 506 P.2d 987, decided
Feb. 14, 1973. Cert. denied, 414 U.S. 991, decided Nov. 5, 1973. Rehearing
denied, 414 U.S. 1138, decided Jan. 7, 1974.
65 506 P.2d, at 987.
66 Id. at 988.
68 Id. at 989.
69 414 U.S. 991, decided
Nov. 5, 1973. Rehearing denied, 414 U.S. 1138, decided Jan. 7,
70 594 P.2d 780, decided
Apr. 11, 1979.
71 Id. at 782.
72 695 P.2d 6, decided Jan.
73 Id. at 7.
75 713 P.2d 18, decided Jan.
7, 1986. Corrected Jan. 15, 1986.
76 Id. at 20.
77 715 P.2d 1105, decided
Feb. 26, 1986. Rehearing denied Apr. 14, 1986. Cert. denied, 479 U.S. 890,
decided Oct. 14, 1986.
78 715 P.2d, at 1109.
79 Id. at 1109-1110.
80 James B. O’Hara and T.
Howland Sanks, "Eugenic Sterilization," 45 Georgetown L.J. 20
(1956-1957), at 44 (Appendix C).
Citizen-Journal, May 1, 1979, 3:1. The vote in the House was 48-46.
82 Oklahoma Session Laws
1983, page 216, ch. 71, enacted Apr. 29, 1983, effective immediately as
an emergency measure.
83 Oklahoma Session Laws
1988, page 454, ch. 131, enacted Apr. 14, 1988, effective Nov. 1,
84 Id. at 456,
85 763 P.2d 121, decided
Sep. 27, 1988.
86 Id. at 123.
87 763 P.2d 135, decided
Oct. 12, 1988.
88 Id. at 139.
89 792 P.2d 1186, decided
May 11, 1990.
90 Id. at 1188.
91 906 P.2d 785, decided
Nov. 21, 1995.
92 Id. at 786.
93 134 L.Ed. 647, decided
Apr. 22, 1996.
Session Laws 1997, page 501, ch. 133, enacted Apr. 22, 1997, effective July 1,
at 695, § 263.
Statutes Annoted, Title 21, § 9.
Session Laws Ex. Sess. 1999, page 2328, ch. 5, enacted June 30, 1999, effective
July 1, 1999.
at 2537, § 454.
at 2412, § 167.
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