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

Oregon

"[He] immediately began to talk to them about "queans" the significance of which Van Hulen understood."

 

The Post-Revolution Period, 1776-1873

Upon settlement, Oregon was overwhelmingly male and "infamous means of satisfying the long denied passions of the seafarer were sought and supplied" in the city of Portland.1 The

comparative absence of women stimulated grossness and coarseness of speech and manners, and the temptation toward immorality was greatly intensified.2

The first white settlers adopted what they called the "Blue Book" in 1843, the first set of laws in Oregon, even though Oregon was not, at that time, a legal entity. What came out of this code in terms of the criminal law is something of a puzzle. All criminal laws of Iowa as adopted in that state’s code of 1838 were adopted, as were "the principles of common law and equity" in matters where no Iowa statute governed.3 The Iowa code made no mention of sodomy but adopted all criminal laws of Wisconsin, which included sodomy. This action adopted, in a most indirect fashion, sodomy as a crime in Oregon. The reference to "the principles of common law and equity" is unclear as to whether criminal, civil, or both branches of the common law were adopted.

It is unfortunate that Oregon chose the original Iowa code to adopt, because Iowa adopted another code in 1840 that abrogated all Wisconsin laws and did not refer to sodomy or common-law crimes. This legalized sodomy in Iowa and would have in Oregon.

In 1844, a new law4 retained the adoption of the original Iowa code and reworded the common-law provision to a more clear "common law of England and principles of equity," thus apparently adopting both the criminal and civil branches of the common law. This code was put to a vote in the thinly populated Oregon country and, by a margin of 255 to 52 (83%-17%), the voters approved it over the previous, more vague law.5

The first Iowa code, with its adoption of the laws of Wisconsin, again was reaffirmed in a law of 1845.6

The Organic Law for the Oregon Territory in 18487 made no reference to common-law crimes or sodomy but retained all existing laws.

The criminal code of 1850, the first of Oregon’s own, made no mention of either sodomy or common-law crimes, thus legalizing sodomy in the state.8

However, in 1853, the Territorial legislature passed a new criminal code9 that abrogated common-law crimes10 and contained a sodomy provision with the common-law definition and a penalty of 1-5 years in the penitentiary.11

In 1873, the Oregon Supreme Court decided in State v. Vowels12 that "courts have no right to assume jurisdiction of common-law offenses not included in our Criminal Code."13

Period Summary: Oregon showed much of the pioneering spirit with its early criminal law. The Blue Book, a code of law adopted in 1843, adopted the original laws of the Iowa Territory verbatim. The Iowa code, although not mentioning sodomy as a crime, itself had adopted all the laws of Wisconsin, which did outlaw sodomy. Thus, in a roundabout way, sodomy was made illegal in Oregon. The irony is that, just a few months before the Blue Book was enacted, Iowa adopted its own code and made no mention of sodomy. Since Oregon adopted the original Iowa laws, it was left with a sodomy law that Iowa cast off. Early reports in Oregon show an all-male or nearly all-male population, leading to much "temptation toward immorality." Whether this was seen as a major problem in the Territory is unclear. A code of law adopted in 1850 deleted reference to sodomy, although a new sodomy law was enacted three years later that would endure, in one form or another, for more than a century.

The Victorian Morality Period, 1873-1948

I. Sodomy

In 1894, a newspaper story told that a neighbor reported a male couple to police and one partner was convicted of sodomy as a result.14

Governor Oswald West, who was responsible for launching a crusade against vice in 1912, urged the Oregon legislature to "investigate this subject [degeneracy]."15

Rather than an investigation, the legislature responded with new laws in 1913, including a unique statute16 that reworded the sodomy prohibition as follows.

If any person shall commit sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustain osculatory relations with the private parts of any man, woman or child, or permit such relations to be sustained with his or her private parts, such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years.17

In addition to the incredible breadth of the statute that obviously covered practically any kind of erotic activity, the maximum penalty was tripled. (Another 1913 law was the sterilization statute; see the Sterilization section.) This new sodomy law turned out to be unneeded, however. Just a few months later, the Oregon Supreme Court issued decisions that, even without the law, would have rendered fellatio illegal.

In 1913, in State v. Start,18 the Court decided that fellatio was a "crime against nature." The Court defined the act of fellatio by Start with partner Fred Rodby for which the defendant was convicted as "taking into his mouth the penis of Rodby and sucking the same until a seminal emission ensued."19 After giving an anatomical lecture concerning the two openings of the alimentary canal, the Court could not understand why ancient writers did not recognize fellatio as an act of sodomy. "The moral filthiness and iniquity against which the statute is aimed is the same in both cases [anal and oral sex]."20 Witnesses Fred Rodby and Earl Van Hulen on a street in Portland and Rodby asked Van Hulen to accompany him to an office to meet Harry Start. Upon entering the office, Start closed and locked the door and

immediately began to talk to them about "queans" the significance of which Van Hulen understood. This conversation led up to the act charged in the indictment. He remained seated in the room and watched the performance of the act, testifying substantially that he stayed there because he thought it was better than to go out, and for the reason that if he opened the door and left the room he would be liable to disclose what was going on inside; that he told the defendant he thought it was very daring, and that it was bad enough for two without three in the room.21

The Court nevertheless voted 3-2 to overturn Start’s conviction because of the admission of testimony of other males who said that Start engaged in similar acts in the same office with them.22 In dissent, Chief Justice Thomas McBride acknowledged that the crime "is unusual and unnatural, as its name indicates" and "we are dealing with an offense not usually committed, and rarely committed in the manner described in the testimony."23 McBride also felt that the "mentally normal man is as incapable of committing it as the physically normal man is incapable of carrying away a rail from a railway track."24 McBride felt that the other acts should be admissible because they tended to show a pattern of behavior.25

The companion case, State v. Wedemeyer,26 was disposed of by the same 3-2 vote on the Start precedent.

Start’s attorney demanded that charges against Start be dismissed and threatened to seek habeas corpus relief from the Oregon Supreme Court unless that was done.27

Judge W.N. Gatens dismissed charges against a number of sodomy arrestees because the state was attempting to prosecute them under the new 1913 law for activity that occurred the previous year, a clear violation of the ex post facto provision of the Constitution. Among those freed were both Harry Start and Edward Wedemeyer.28 Start was permitted to leave the country and never was retried.29

Attorney E.S.J. McAllister was as lucky as Start and Wedemeyer. In State v. McAllister,30 a now-expanded Oregon Supreme Court divided 4-3 to overturn the conviction because of a trial error. The majority opinion mentioned that the trial judge

told the jury that he thought a man with normal sexual instincts was not capable of committing the crime charged, and that only a person of abnormal sexual sense is capable of committing such an offense. The court then added that if the jury were satisfied that one was possessed of this unnatural or abnormal sexual sense, they might infer that he had a motive, a reason, or a force impelling him to do such an act. The court practically assumed the position of an expert witness, and gave the jury his opinion concerning the kind of person who could and the kind of one who could not commit the crime against nature. This was prejudicial error. [Emphasis was the Court’s].31

The dissent was written by Justice Charles McNary. He wrote that Harry Work met Roy Kadel on a street in Portland and asked him to accompany him to McAllister’s office. Kadel entered the office and Work waited outside. Upon becoming impatient, Work knocked on the door, opened it and saw

Kadel wiping his penis with a handkerchief; that Work ejaculated, "Hello, what is this?" and Kadel replied, "McAllister and I are having a little trade," which, in the parlance of the morally depraved, means the performance of the act defined in the indictment[.]32

McNary also found significant a post card mailed from McAllister to Kadel before the above act occurred.

"Dear Roy: I send you this as a mark of my appreciation of your frequent calls. [Signed] McAllister."

"The language employed by defendant in this message to Kadel indicates most strikingly the cordial relations existing between them, and manifests defendant’s appreciation of Kadel’s frequent calls, which were for an illicit purpose."33 McNary also claimed that "the defendant’s dealings with Kadel were not prompted by natural affection; that defendant courted Kadel’s friendship for the purpose of satisfying a lustful and unnatural passion."34 People did not commit crimes unless "a motive sufficient to break down the barriers that nature has set up in opposition thereto" occurred. One of these barriers

is a controlled and natural sex instinct for the opposite gender, and when men are accused of a crime involving a perverted or inverted sex instinct, it becomes important to seek the motive that impelled the act. Confessedly no man would commit this unnatural act unless his motive be to satisfy a perverted sexual passion[.]35

Even though McNary felt that "[n]o fact is better understood to modern medical science than that sodomy and its allied vicious concomitants are never committed except by persons impelled by a perverted and diseased mind," he voted to uphold the conviction.36

The next reported sodomy case was State v. Kapsales,37 decided in 1918. The Oregon Supreme Court upheld the conviction of a Greek immigrant after the prosecuting attorney

further referred to the glories of past Greece and her present condition, and inferred [sic] that a decline in morals was responsible therefor, and this is complained of as prejudicial.38

In 1926, in State v. Harvey,39 the Oregon Supreme Court upheld the right of the state to prosecute individuals for attempts to commit sodomy under the general attempts statute.40

The breadth of the sodomy statute was put to a test with the next case, State v. Brazell,41 decided in 1928. The Oregon Supreme Court upheld a conviction under the law for the consensual masturbation of another person.42

In 1944, the Oregon Supreme Court decided the case of State v. Ewing.43 The Court rejected the contention of defendant Ewing that the indictment charging him with sodomy, sex perversion, and osculatory relations charged three distinct crimes. The Court was confident that these three terms still charged only one act.44 The Court also prohibited the introduction of other alleged acts between the defendant and prosecuting witness,45 but permitted the introduction of such evidence between the defendant and other witnesses.46 The Court also specifically barred the introduction of evidence of the defendant’s supposed "bad character," unless the defendant had himself "put his character clearly and expressly in issue."47 Because of these errors, the conviction was overturned and a new trial was ordered.48

II. Sterilization

No other state in the nation has so rich a detailed history concerning sterilization of Gay men and Lesbians as Oregon.

In 1904, a Northwest physician, Bethinia Owens-Adair began her personal crusade for sterilization laws throughout the United States. She wanted to include "those loathsome victims of an unnamable [sic] vice[.]"49

The first bill to be introduced into the Oregon legislature concerning sterilization was in 1907. It would have covered "criminal degenerates" as well as others.50 It was not enacted.

A bill to require the sterilization of all "confirmed criminals," as well as others, passed the legislature in 1909, but was vetoed by Governor George Chamberlain. The definition of "confirmed criminals" was those convicted of a third felony, of which sodomy was one.51 Chamberlain, in his veto message, raised some technical objections, but also said that he did not believe that "all" of those mentioned in the law "ought to be subjected to such harsh treatment."52 He did not specify which of the covered classes should be so subjected and which should not.

A second attempt at a sterilization law, in 1913, met with curious defeat. A bill to authorize sterilization only of "habitual criminals, moral degenerates, and sexual perverts" confined in state institutions passed the legislature53 and was signed by Governor Oswald West, who had instigated the infamous anti-vice crusade in Portland. "Moral degenerates and sexual perverts" were defined as

those who are addicted to the practice of sodomy or the crime against nature, or to other gross, bestial and perverted sexual habits and practices prohibited by statute.54

This law was the subject of what probably was the first Gay rights referendum in the nation. The Anti-Sterilization League, headquartered in Portland, and the only known group in the United States with organized opposition to sterilization, succeeded in forcing a referendum on the law.55 The measure facing voters clearly had the words "habitual criminals, moral degenerates and sexual perverts" written on the ballot, so no confusion existed as to what the issue was about. It was labeled "A Measure to protect the public peace, health and safety from habitual criminals, moral degenerates and sexual perverts[.]"56 The measure lost by a solid 56%-44% vote statewide, carrying only four of 34 counties.57

Ignoring the command of the voters, the Oregon legislature enacted an even broader sterilization law in 191758 that included all

feeble minded, insane, epileptic, habitual criminals, moral degenerates and sexual perverts, who are persons potential to producing offspring who, because of inheritance of inferior or antisocial traits, would probably become a social menace, or a ward of the State.59

Another section of the law stated that the definition to be used for these "moral degenerates and sexual perverts" was

those who are addicted to the practice of sodomy or the crime against nature, or to other gross, bestial and perverted sexual habits and practices prohibited by statute.60

This law created an obvious contradiction. Those persons who had potential to produce offspring could be sterilized, but the definition of some of those persons was one that precluded reproduction. The definition also did not require that anyone actually be convicted of violating the sodomy law in order to trigger the procedure.

Correspondence from one institution, the State Hospital in Salem, reveals that, through the end of 1917, 16 inmates—12 male and 4 female—were sterilized, all of them via the radical procedure of castration or ovariotomy. All were "flagrant masturbators or sex perverts."61

A suit filed in 1918 by two prisoners, one of them convicted of sodomy, tried to have the law invalidated.62 The suit never proceeded because the sodomy prisoner, Tony LaGallo, succeeded in convincing the state not to castrate him. The other prisoner, Herbert Merithew, withdrew his objection and allowed the state to castrate him.

In 1920, a prisoner who had been convicted of sodomy, Fred Burr, was paroled after being castrated. He had been sentenced to 1-15 years for his crime and, due to his castration, served less than two years.63

In an unreported decision from 1921, Cline v. Oregon State Board of Eugenics, the sterilization law of 1917 was ruled unconstitutional. The decision was exactly 42 words long.

IT IS ORDERED that said demurrer of said Jacob Cline to said proceedings of said State Board of Eugenics be and the same is hereby sustained;

AND IT IS HEREBY FURTHER ORDERED that this proceeding be and the same is hereby dismissed.64

Under this unconstitutional law, Oregon had performed 127 sterilizations, on 68 males and 59 females. Two of the males (3%) and 40 of the females (68%) had received the lesser surgery of vasectomy or salpingectomy. Sixty-six males (97%) and 19 females (32%) had been subjected to the more radical procedure of castration or ovariotomy.65 The 66 castrations in Oregon amounted to 92% of the total of 72 in the United States under the sterilization laws between 1907 and 1921. (There were 1,781 vasectomies during the same time.) The 19 ovariotomies were 19% of the 100 performed throughout the United States in the same years. (There were 1,280 salpingectomies during the same years.)66

The enthusiasm with which the Oregon sterilization law was met by state officials led to no fewer than 15 written opinions by the Attorney General. Ten of them are mentioned here because of the impact that they had on Gay men and Lesbians.67

The first opinion of the Attorney General on the issue of sterilization was issued in 1922.68 Oddly, the opinion was issued just a month after the law was found unconstitutional. Attorney General I.H. Van Winkle interpreted the law to be limited to cases in which

it is the consensus of opinion by such medical experts as are available that the operation would be of certain benefit to the patient. It should be considered a benefit to the individual upon which [sic] it is performed, and not only a benefit to the community at large and this view should be kept in mind in deciding whether or not the operation should be performed.69

A "complete" report70 from the Oregon Penitentiary of sterilizations performed therein on male prisoners, issued in 1922, revealed that, prior to the Cline decision, eight men were sterilized (the method used was not discussed) and four of them, or 50%, were for same-sex activity. Moreover, five others were on a "waiting list" to be sterilized at the time that Cline was decided. All five were for same-sex sexual activity.

A new sterilization law was enacted in 1923.71 The apparent contradiction between reproduction and addiction to sodomy was noted and the definition of those eligible for sterilization was expanded to eliminate any need for the person to show reproduction potential. Instead, these same "moral degenerates and sexual perverts" needed only to be a possible "menace to society."72 The definition of these degenerates and perverts was eliminated, presumably allowing an even broader interpretation by state officials.73

The Attorney General issued another opinion in 1924.74 Attorney General I.H. Van Winkle cautioned the Board of Eugenics that the law required that persons they proposed to sterilize be given an adversary hearing, with an opportunity to defend themselves. Chiding the overenthusiastic officials, Van Winkle said that it

would hardly appear possible for the said board to reach an intelligent conclusion with reference to the person under examination, unless such person appears before the board for examination.75

The law was broadened again in 1925.76 This law required the names of anyone convicted of sodomy or any other provision of the state’s broadly worded sodomy law to be forwarded to the State Board of Eugenics.77 The Board then presumably could order the person sterilized, if so inclined.

In an opinion from 1926,78 Attorney General Van Winkle cautioned the State Board of Eugenics that it probably was in violation of state law in the referral of two prisoners, for an unspecified reason, to them. The referral came from the warden of the penitentiary and had not been verified.79

A medical journal in 1927 revealed the numbers affected at the Oregon State Hospital under the sterilization law of 1923. Sixty-two men and 101 women had been sterilized. Of these numbers, 57 men (92%) and 79 women (78%) had been subjected to the more radical procedure of castration or ovariotomy.80 The journal went on to say that "[n]othing but castration" will do "the sexual pervert or the chronic masturbator" any good. Courts should, in the future, make castration a part of the penalty, along with imprisonment.81

Another opinion of the Attorney General was issued in 1928,82 and it also revealed that some state officials were too eager to sterilize a state charge. Attorney General Van Winkle informed the superintendent of the Oregon State Industrial School for Girls that her institution had not been given authority under any law to refer inmates for sterilization, but offered a way to get around the law. The superintendent could notify the State Health Officer, who then could make the referral to the Eugenics Board.83

An amendment to the sterilization law in 192984 extended the authority for referral for sterilization to the Industrial School for Girls.85

Another opinion by the Attorney General came in 1929.86 This opinion clearly showed the expanding abuse of the law. The Board of Eugenics asked if it had the authority to decide on its own who was sufficiently undesirable to order sterilized. Van Winkle checked that power by noting the restriction placed in the sterilization laws to cover only the "feeble-minded, insane, epileptics, habitual criminals, moral degenerates and sexual perverts[.]" Nothing in the opinion explained the undesirable trait sought to be eliminated that wasn’t in this list.87

Through the end of 1934, a total of 957 sterilizations had been performed in Oregon under the law of 1923 and its progeny.88

The sterilization law was amended in 1935.89 This law copied a few others and required lists to be submitted quarterly to the Board of Eugenics of all moral degenerates and sexual perverts, whether or not these people committed a crime.90

In 1941, the Attorney General issued an opinion91 stating that, assuming they followed the law to the letter, sterilizing physicians could not be held liable for the sterilization.92

Through the end of 1941, the state reported a total of 518 sterilizations since 1918 (under the 1917 law).93 Included were 216 men and 302 women. This is at variance with reports in medical journals and other sources. For example, almost twice this number of sterilizations was reported to have occurred seven years earlier and in a shorter time span. The list shows no sterilizations during this time only during 1922, which means that the state followed the 1921 Cline decision that the 1917 law was unconstitutional and did not resume sterilizations until a new statute was enacted in 1923. In the 24-year period reported, 69% of men had received the more extreme sterilization via castration, as opposed to only 11% of women receiving the extreme measure of ovariotomy. In four years, all sterilized men were castrated while none of the sterilized women was ovariotomized. The report also shows that the number of sterilizations was at its highest in the years 1934-1939, years coinciding the Nazi Germany’s aggressive use of sterilization.

In 1946, Attorney General George Neuner issued an opinion94 that again applied a brake to the express train the Board of Eugenics tried to drive across the state. Because the Board met only quarterly and most people in institutions subject to the law stayed in the institution for only one or two months, the Board tried to delegate the decision for who should be sterilized to the superintendent of the institution. Neuner quoted extensively from the Oregon law and told them that they could not delegate their authority.95

Just two weeks later, Neuner was called on for another opinion on a very similar situation.96 The state health officer asked if he could order a sterilization without going through the Board of Eugenics. Again, Neuner said "no."97

Period Summary: Oregon had a period of nearly forty years of official silence on the issue of sodomy. It was not until 1912 that scandal awoke the state. That year, a group of Gay men in Portland were arrested for various sexual activity centered around the YMCA. Although there were a number of convictions, most were overturned on appeal. One reaction of the state was to adopt a law to authorize sterilization of "sex perverts" in 1913. The law was subjected to a referendum by an anti-sterilization group and was repealed by a substantial margin. Portland’s Multnomah County, where the YMCA scandal broke, voted more heavily against the measure than did the state as a whole. This leads one to believe that the legislature and courts were not in harmony with majority thinking in the state. Also in 1913, the sodomy law was broadened to cover virtually any erotic activity, a convenient catchall that was enacted when officials learned, through the YMCA scandal, of all the different ways men could enjoy sex with each other and which were not outlawed by statute. A sterilization law was enacted a few years later and it was not attacked on the ballot. The law was utilized with great enthusiasm by the state, so much so that the Attorney General of Oregon issued opinions that officials were, in a number of instances, exceeding the limits of the law by their actions. In 1928, consensual masturbation of another person was found to be violated by the new sodomy statute, guaranteeing that there was little or no erotic activity that didn’t remain the state’s business.

The Kinsey Period, 1948-1986

I. Sodomy

In 1948, in State v. Bauer,98 the Oregon Supreme Court unanimously overturned a sodomy conviction because the defendant was convicted of an act different from that specified in the indictment.99

Portland Mayor Dorothy Lee urged that a five-point program against "sex deviates" be put on the statewide ballot in 1952.100 The measure never made it to the ballot,101 and Portland voters threw Lee out of office the same year.

The case of State v. McIntyre102 was decided in 1952. The Oregon Supreme Court unanimously upheld the sodomy conviction of a man for consensual fellatio with two 16-year-old boys. The defendant was convicted on the uncorroborated testimony of one of the teenagers, who were not considered accomplices by the Supreme Court because the 16-year-old consenting partner was a "mere boy."103

Oregon enacted a "psychopathic offender" law in 1953.104 Sodomy was one of only two triggering offenses for the law, and it applied to anyone over 16 who got involved with anyone under 15, thereby allowing a 16-year-old to be declared psychopathic for involvement with a 14-year-old.105 Also included in this law was a section adding the applicability of its provisions to any crime if "the judge of the court finds, or has reason to believe, that sexual stimulation was the motivating factor" in its commission.106 This same law permitted a second conviction for sodomy, even if consensual, to receive a sentence of life imprisonment.107

In 1955, the psychopathic offender law108 was amended and included a provision that forbade the kidnapping or detention of a child under 16 for purposes of engaging in sodomy or certain other sexual crimes. The maximum penalty for this was life. Again, this law covered a 16-year-old involved with a 15-year-old.

An opinion by the Attorney General109 from 1957 interpreted the psychopathic offender law to limit the right to make a psychopathy determination to the trial judge. A jury would not be able to make that decision.110

A proposal was made in 1957 to create a "central investigating and identification bureau dealing with sex deviates." A registry would be created to maintain "an investigation of known and suspected sex deviates" to make investigation of sex crimes easier.111 The proposal did not become law.

In the 1960 case of State v. Casson,112 the Oregon Supreme Court, sitting en banc, unanimously upheld the conviction of, but ordered resentencing of, a Gay man. Robert Casson had given liquor to a minor male, manipulated his penis, fellated him, then transported him to the home of Sylvester Hodges who, in the indictment against Casson, was described as "a promiscuous homosexual [who had] a sexual preference for adolescent boys."113 The jury returned a general verdict of guilty, without specifying of which of the four counts, or combination of them, Casson was considered guilty. Casson then was sentenced to life imprisonment under the state’s indeterminate sentencing law. Not all of the four charges brought against him would trigger the indeterminate sentencing law, so the Supreme Court believed that the trial court had been unfair to sentence Casson under it.114 Justice Alfred Goodwin, writing for the Court, noted also that irrelevant evidence concerning Sylvester Hodges was allowed to be inserted into Casson’s trial, specifically

the promiscuous and loathsome nature of Hodges’ conduct in the past with other similarly afflicted persons, none of whom were before the court in any capacity except as witnesses to the behavior of the absent Hodges.115

Goodwin noted that, under the indictment as worded,

the jury could have found the defendant guilty solely because he took the child to the home of a man known by him to be a promiscuous homosexual. The evidence showed that there followed in fact a casual association. Although there was no evidence that the association had time to ripen into an unwholesome one, the evidence was sufficient to support the verdict.116

Cunnilingus was found to be a violation of the sodomy statute by the Oregon Supreme Court in the 1961 case of State v. Black.117

In 1963, Oregon revised its psychopathic offender law118 by limiting its applicability to sexual activity with children under the age of 12.119

A sex scandal in 1963 was nearly as sensationalized as the YMCA scandal of a half-century earlier.120

In 1965, the Oregon Supreme Court, sitting In Department, decided the case of State v. Stanley.121 It held that a complaining witness who was intoxicated at the time of the offense could not be considered an accomplice, because consent while in a drunken stupor was not possible.122

Just a week later, another Department of the Supreme Court decided the case of State v. Nice.123 A 12-year-old could be an accomplice, the Court said, but it was for the jury to decide.124

The case of State v. Edwards125 was decided in 1966 by the Court sitting In Department. It is one of those rare cases of consenting adults being prosecuted for sodomy, although how the prosecution was initiated is unclear. The unanimous opinion by Justice William Perry set out some facts of the case.

The evidence discloses that one Mr. Joseph A. DeLorme, who lived at Central Point, Oregon, met the defendant in February, 1962, at a bar in Portland frequented by "[G]ay people," "people of homosexual inclinations." Soon thereafter the defendant accompanied DeLorme to Central Point where they stayed at the home of DeLorme’s parents. DeLorme went to San Francisco to study music and the defendant accompanied him and they lived together there.

They later went to Reno

where they were married in a civil ceremony, DeLorme using the given name "Joyce."

They then

returned to Oregon and lived in Medford. DeLorme dressed in women’s clothes and used the name "Mrs. Joyce Allena Edwards." DeLorme testified defendant had sexual intercourse with him [via] "anal penetration." A Mr. Miller testified he lived on Roberts Road in Medford near where DeLorme and defendant lived; that he saw DeLorme dressed in women’s clothes and defendant spoke of DeLorme as his wife.126

Edwards asked the trial court to label DeLorme’s mother as an accomplice to sodomy. The trial court had refused to do so, and the Supreme Court upheld that ruling.127 Presumably, DeLorme’s mother knew about the relationship and was supportive. The most logical inference for the initiation of the prosecution is the neighbor, Mr. Miller, who must have reported the couple to police. That inference is supported by the briefs submitted to the Oregon Supreme Court. Miller lived next door to DeLorme and Edwards, had seen DeLorme dressed as a woman, he seeing that it was a man dressed as a woman, and Edwards had introduced DeLorme to Miller as Edwards’s "wife."128

A case of a prisoner caught in an act of sodomy and who acted defiantly toward the state was the subject of the 1969 case of State v. Miller.129 Andrew Miller was displeased with his counsel and began acting part of the time as his own attorney. Judge Virgil Langtry of the Oregon Court of Appeals noted that Miller

was a difficult person for an attorney or a court to deal with [sic]. He constantly demanded concessions to which he was not entitled. For example, he repeatedly demanded subpoenas for the whole Grand Jury of Multnomah County [Portland] to testify to things they had observed in the county jail which were irrelevant to his guilt or innocence of the charge in the indictment. He insisted upon handling part of the examination of witnesses and arguing the case to the jury. The judge and defendant’s court-appointed counsel displayed commendable patience under the circumstances.130

The prosecutor, overzealous to prejudice the jury against homosexuality, at one point in his closing arguments to the jury

referred to newspaper stories, not in evidence, regarding jail conditions. He was immediately interrupted and corrected by the court, who said "What they read in the newspaper is not in evidence in this case."131

The prosecutor then said to the judge, "There is only one way to stop it [sodomy] and that is to prosecute those who are believed to have been involved in it. Mr. Miller was caught redhanded and he has been prosecuted. That is pure and simple." [Emphasis added]. The defense then moved for a mistrial, which was denied.132 Goodwin said that Miller was out of luck on that point, because he himself had made references to irrelevant newspaper stories, and he "cannot complain if the prosecutor answers him."133

A victory occurred in Nealy v. Cupp,134 in 1970. The Oregon Court of Appeals unanimously affirmed a trial court’s decision to vacate Nealy’s guilty plea to a sodomy charge. At the time of his arraignment, Nealy was informed that the maximum penalty for sodomy in Oregon was 15 years. Despite that, he was ordered to be examined under the psychopathic offender law and ended up with a life sentence under the indeterminate sentencing law.135 Judge Virgil Langtry noted that the state argued that Nealy had not been prejudiced by its actions. In one sentence, he powerfully answered the state: "A defendant is prejudiced when he is told that the maximum penalty possible is fifteen years and he is then sentenced to life imprisonment."136

The Oregon Court of Appeals decided the case of State v. Bostrom137 in 1970 in which an insanity defense was rejected by the trial court. The Court of Appeals upheld this ruling.

In 1970, in Jellum v. Cupp,138 the Oregon Court of Appeals stretched the broad sodomy law even farther by holding that it outlawed urinating on another person.139

At this time, the Criminal Law Revision Commission was considering a proposed new code for Oregon. The first draft of a proposed new sex offenses section made no mention of sodomy.140 One of the principles guiding the commission was a belief that "any sexual conduct engaged in between consenting adults, whether of a heterosexual or homosexual nature" was not to be outlawed. The commentary on sodomy said that "[d]eviate sexuality has been regarded with intense aversion in almost all cultures and ages and has been the subject of severe punishment and condemnation." Nevertheless, it was unwise to prescribe criminal penalties for homosexual conduct, which the commission believed was "symptomatic of pathological disorders stemming from a failure to achieve mature psychic development[.]"141 This provision received little opposition. Only one citizen, Charles White from the small town of Bonanza, appeared to testify against it. He said that "Oregon should not become a playground for these kinds of people."142

One other provision, however, generated more opposition. In order to prevent public "nuisance" solicitation by people now to be liberated in their chosen sex acts in private, a "lewd solicitation" section was proposed.143 Research Counsel Roger Wallingford, answering criticism of the proposal, said it was "not intended to reach purely private conversations between persons having an established intimacy," although he admitted that the provision, as worded, could be used against private solicitations.144 Representative Harl Haas objected that the proposal would punish conduct that some found objectionable, not necessarily harmful.145 Chair Wallace Carson, a state representative, believed it was difficult to draw a line between "public" and "private" solicitation, but there was "real danger" in "allowing open solicitation for this type of activity in public places."146 Wallingford then noted that practically the only way the proposal could be enforced was "by undercover vice squad work."147 Despite Haas’s and Wallingford’s comments, the proposal was adopted unanimously by the subcommittee. When the proposal came before the entire commission,148 more concerns were expressed. Attorney General Lee Johnson complained that the proposed law was "a little hard on two men who knew each other." He said that "there was police harassment in this area[.]" He moved that it be amended to exclude "purely private conversations." His motion lost on an 8-1 vote.149 The committee’s summary was that it accepted "the premise that open and aggressive solicitation by homosexuals may be grossly offensive to other persons availing themselves of public facilities[.]"150

In 1971, the Oregon legislature passed a comprehensive criminal code revision151 that repealed the consensual sodomy law152 and established an age of consent of 18.153 However, the solicitation section also was enacted. It prohibited "accosting for deviate purposes," with a penalty of up to 30 days in jail and/or a $500 fine.154 It was worded

A person commits the crime of accosting for deviate purposes if while in a public place he invites or requests another person to engage in deviate sexual intercourse.

A 1972 law review article155 gave background into the legislative process for enactment of the new code. One study showed that the consenting adult laws were not enforced in the state, with the exception of "sodomy between persons not married to each other and of homosexual conduct."156 The author was critical of the fact that the new code raised the age of consent from 16 to 18, especially since the reason for the action "is not at all clear."157 More information was given about the testimony of the above referenced citizen Charles White. He opposed the new code, especially repeal of "those sections having to do with homosexuality," that he felt should be strengthened (apparently a 15-year sentence for private, consensual conduct was insufficient).158

A later attempt to reduce the sentences of those in prison for sodomy at the time of the law’s enactment failed of passage.159

The accosting law was ruled unconstitutional in 1981 in the case of State v. Tusek.160 The unanimous decision of the Oregon Court of Appeals was that the law criminalized speech, specifically a request to engage in legal activity.161 The Oregon legislature repealed the now useless provision in 1983.162

In 1981, in State v. Holt,163 the Oregon Supreme Court unanimously upheld the conviction for public indecency of a man for masturbating in a restroom while looking for a sexual partner.164

II. Sterilization

Through the end of 1948, 1,821 sterilizations had been performed in Oregon, including 106 on persons neither insane nor mentally retarded (30 males and 76 females).165 The report made no suggestion as to how many of these were "moral degenerates" or "sexual perverts."

In 1959, Attorney General Robert Thornton issued an opinion166 that attempted to define several of the provisions of the sterilization law. One of them was "moral degenerates." After reviewing a number of medical texts and noting that he had been unable to locate a single reported court decision with such a definition, Thornton concluded that the term could not be defined with any precision. Therefore, he believed, the definition was the Board of Eugenics’s to make.167

A report from 1960 showed that the number of sterilizations in Oregon had grown to 2,293 (1,416 women and 877 men). The law could be used "for persons convicted of certain sex crimes." Allegedly, no "moral degenerate" or "sex pervert" had been recommended for sterilization in the state since 1953.168

In 1961, Thornton issued another opinion169 on the constitutionality of the sterilization law. He noted that the law had not been challenged since its 1923 adoption and that each provision of the Oregon law had been sustained in a court challenge in another state having a similar provision.170 Relying heavily on case law from other states, Thornton concluded that the law was constitutional.171

Amazingly, a 1963 report (obviously written by someone who didn’t read Oregon’s law before writing the article) claimed that no legislation

has been considered or proposed...which would specifically establish sterilization as a medical weapon to combat the offenses by moral degenerates or sexual perverts.172

In 1965, the sterilization law was changed greatly.173 The section permitting sterilization of "sexual perverts and moral degenerates" was repealed,174 and the law was made applicable only to the mentally ill and the mentally retarded.

Period Summary: The first Kinsey report was received slowly in Oregon. Sterilizations of "sex perverts" continued through the year 1953, although authorization for their sterilization lasted another dozen years. Courts expanded the reach of the very broad Oregon sodomy law by determining that both cunnilingus and urination on another person constituted violations of it. A Gay couple was convicted of sodomy, and their conviction sustained, based on the complaint of a neighbor that they were a homosexual couple. The Gay rights movement that burgeoned with the late 1960s hit Oregon earlier and had a broader impact on the state than most other places. The courts acted more slowly than the legislature, continuing to hand down restrictive decisions on sexual freedom, until more progressive judges were appointed by Oregon’s string of culturally liberal Governors, both Democrats and Republicans. The sodomy law was repealed in 1971, with only three other states preceding it. The civil libertarian nature of the state also reasserted itself with a number of court decisions after the sodomy law repeal. The state’s law against "accosting for deviate purposes" was ruled unconstitutional on broad free speech grounds.

The Post-Hardwick Period, 1986-Present

The Oregon Supreme Court decided in the 1987 case of State v. Hansen175 that the age of consent in the state was not to be calculated according to the common law, which has one change to the next year of age on the eve of one’s birthday. (The case concerned a female teacher who had sexual relations with a female student the day before the student’s 16th birthday.)

The Oregon Court of Appeals decided in the 1988 case of State v. Culmsee176 that a parked car in a business driveway some eight feet from a public sidewalk was not a "public place" for purposes of the public indecency law.177

In a pair of 1988 cases, the Oregon Court of Appeals continued a great expansion of privacy rights in Oregon, rights that went well beyond those defined in other states. In the first, State v. Casconi,178 a unanimous panel overturned the public indecency conviction of a man who was filmed masturbating in a restroom. The toilet stalls had no doors, but could not be seen from the entranceway to the restroom. Casconi was captured on film walking into the common area, masturbating there. Chief Judge George Joseph found that the police had no interest in filming Casconi’s action and returned his case for retrial with the film evidence suppressed.179

On the same day, another panel decided State v. Owczarzak.180 By a vote of 2-1, the Court all but obliterated operation of the state’s public indecency law in restrooms. Owczarzak was observed leaving a doorless stall with his pants down and standing in front of another stall, masturbating in front of another man. Judge Edward Warren found that the state had no legitimate interest in his conduct. A

restroom is a place that, by its very nature, excludes unlimited observation. A person in a public restroom anticipates that another person might enter and see what is going on. What a person does not anticipate is that his activity will be seen by concealed officers or recorded by concealed cameras. That police surveillance, which allows no ready means for the person to determine that he is being watched, significantly impairs the people’s freedom from scrutiny.181

An attempt to get a broadly worded privacy amendment to the state constitution was made in 1991. The language was certified,182 but it never made it onto the ballot.

In 1992, deciding City of Portland v. Jackson,183 the Oregon Court of Appeals moved the state one step closer to absolute sexual freedom. Sitting en banc, the Court voted 6-4 to interpret the state’s public indecency law literally and invalidate a Portland ordinance. The law prohibited exposing one’s genitals "with the intent of arousing the sexual desire of the person or another person." A Portland city ordinance had, more broadly, banned exposure of one’s genitalia in "a public place or place visible from a public place" to "persons of the opposite sex." The Court found first that state criminal laws generally preempted city criminal laws, citing the Oregon Constitution.184 Second, it noted that the state law required proof of intent to arouse sexual gratification and the Oregon legislature had, in debating the 1971 criminal code revision, defeated a proposal to eliminate that provision.185

With Oregon’s high age of consent (18), any sexual activity with a minor can get the other partner into trouble with the law. Such a case was State v. Fennern186 from 1995. A panel of the Oregon Court of Appeals unanimously sustained the third-degree sodomy conviction of a man for sexual activity with a male, who had to be at least 16 for the charge to be third-degree sodomy. The nature of the sexual activity is not mentioned in the opinion, but the Court upheld an enhanced sentence for Fennern because his teenage partner said "he views everyone he now meets as [G]ay or [L]esbian." The Court found the trial court’s inference of harm from this statement as sufficient justification for the enhanced sentence.187

On a more liberal note, a judge invalidated a city ordinance banning adult bookstore viewing booths in 1995. Although Beaverton’s ordinance was found not to be directed at free speech, Judge Donald Letourneau found that state case law required councils enacting such legislation to act on "current, local examples of social harm" presented by the booths.188

Period Summary: Oregon is far ahead of most states with respect to sexual freedom. Two different courts issued decisions in restroom sex cases that virtually eliminated use of public indecency laws in public restrooms. The state’s law against public indecency also was limited in cases of public nudity. Now, in order to prosecute, the state is required to prove that the person appeared nude in public specifically for purposes of sexual arousal. Oregon is back to its libertarian beginnings following a harsh interlude of Victorian moralizing that followed the national trend.


Footnotes

1 H.W. Scott, ed., History of Portland, Oregon, (Syracuse:D. Mason & Co., 1890), page 451.

2 Id. at 452.

3 Lawrence T. Harris, "History of the Oregon Code," 1 Ore.L.Rev. 129-141, at 135 (1921-22). The statute was enacted July 5, 1843.

4 Id. at 138. The statute was enacted June 27, 1844.

5 Id. at 139.

6 Id. at 140. The statute was enacted July 26, 1845.

7 9 Stat. 323, enacted Aug. 14, 1848.

8 Acts of the Legislative Assembly of the Territory of Oregon, Passed at Their Sessions, Begun and Held at Oregon City, in July, 1849, and May, 1850, (Oregon City:Robert Moore, 1850). Crimes and Punishments, pages 89-113.

9 The Statutes of Oregon. Enacted, and Continued in Force, by the Legislative Assembly, at the Fifth and Sixth Regular Sessions thereof, (Oregon [City?]:Asahel Bush, 1855), page 206, "An Act to Define Crimes and Misdemeanors, and Regulate Criminal Proceedings," enacted Dec. 22, 1853.

10 Id. 1.

11 Id. at 235, 12.

12 4 Ore. 325, decided during January Term 1873.

13 Id. at 326.

14 Portland Evening Telegram, Aug. 28, 1894, 6:2.

15 Portland News, Jan. 13, 1913, page 1.

16 General Laws of Oregon 1913, page 56, ch. 21, enacted Jan. 31, 1913.

17 Id.

18 132 P. 512, decided May 20, 1913.

19 Id.

20 Id. at 512-513.

21 Id. at 513.

22 Id. at 514.

23 Start, at 517.

24 Id.

25 Id. at 518.

26 132 P. 518.

27 Portland Evening Telegram, June 12, 1913, 6:1.

28 Oregon Journal, June 19, 1913, 5:6.

29 Oregon Journal, Nov. 22, 1913, 1:2.

30 136 P. 354, decided Nov. 20, 1913.

31 Id. at 357.

32 Id. at 358.

33 Id. at 359.

34 Id.

35 Id. at 360.

36 Id. McNary had been appointed to one of the new seats on the Supreme Court and, when he ran in 1914 for a full term, Oregon voters defeated him by a single vote statewide, prompting a long and bitter dispute with the man who defeated him. (See The Oregonian, Sep. 2, 1914, page 12). He later was a U.S. Senator from Oregon and was the Republican nominee for Vice President with Wendell Willkie in 1940.

37 175 P. 433, decided Oct. 15, 1918.

38 Id. at 434.

39 249 P. 172, decided Sep. 21, 1926.

40 Id.

41 269 P. 884, decided July 31, 1928. The Portland City Directory for 1927 shows Clarence Brazell as an agent for the New York Life Insurance Company.

42 Brazell, at 885.

43 149 P.2d 765, decided June 20, 1944.

44 Id. at 767.

45 Id. at 769-770.

46 Id. at 770.

47 Id. at 771.

48 Id. at 773.

49 B.A. Owens-Adair, Human Sterilization: It’s [sic] Social and Legislative Aspects, (B.A. Owens-Adair, 1922), pages 54-55.

50 The Patriarch, Apr. 6, 1907, 2:2. A history of all the Oregon bills from 1907 to 1921 is in Owens-Adair, pages 55-82. Owens-Adair graduated from medical school without having so much as an elementary school education and fought just as hard for recognition of the sterilization bills as "her" bills as she did for enactment of the bills into law. Owens-Adair lived until 1926 and saw the spread of sterilization laws throughout the United States. Unfortunately, she did not live to learn of the Nazi abuse of these laws.

51 Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 40.

52 Id. at 40-41.

53 Id. at 41. It was House Bill 69, enacted Feb. 18, 1913.

54 House Bill 69, 1.

55 Laughlin, at 42-43.

56 Pamphlet Containing Measures to be Submitted to Voters of Oregon November 4, 1913, published by the Oregon Secretary of State, pages 13-14.

57 The public library in Portland has no information on the League. The Oregon Journal editorialized about the outcome, lamenting the loss of the measure and lauding the New Jersey sterilization law (which would be struck down by that state’s Supreme Court on sweeping constitutional grounds just 11 days later). See the issue of Nov. 7, 1913, 8:3. A letter to the editor attacking the editorial appeared Nov. 23, 1913, II:5:4. Sterilization was considered a "liberal" response to a problem (see the editorial mentioned in note 57). One of the four counties carried by the measure was Lane, home of Eugene and the University of Oregon. Lane County, then the second-largest in population in the state, gave the issue a hefty 58% support. The measure won a full 67% in Eugene, carrying every precinct. Eugene Daily Guard, Nov. 5, 1913, 1:3. Benton County, home of Corvallis and Oregon State University, gave the issue 49.7% of its vote. Portland’s Multnomah County, where the 1912 sex scandal erupted that led to passage of the sterilization law, defeated the proposal by a larger-than-average 58%-42% margin. Abstract of votes provided by the Oregon Secretary of State’s Office. Turnout in Multnomah County was only 30%, showing that there was little voter interest in this measure. Portland Evening Telegram, Nov. 6, 1913, 2:2.

58 General Laws of Oregon 1917, page 518, ch. 279, enacted Feb. 19, 1917. The Portland newspapers referred to the bitter debate in the legislature over this bill. In the Oregon Senate, one senator asked his colleagues to remember the popular vote in 1913 against sterilization, but the others claimed that the public, having become more sophisticated on the issue, now was supportive. See The Oregonian, Jan. 30, 1917, 9:1. The same paper editorialized that some people felt that "perverts and defectives ought to be let alone," but that was "reactionary." Id. Feb. 2, 1917, 12:3.

59 General Laws of Oregon 1917, at 519, 2.

60 Id. at 521, 10.

61 Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 89.

62 Oregon Journal, Feb. 6, 1918, 22:4.

63 Correspondence from "Warden" to Dr. Frederick D. Stricker, Secretary, Oregon State Board of Eugenics, Dec. 18, 1924. In collection of the records of the Oregon Board of Eugenics, Oregon State Archives, Salem.

64 Printed in Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 289, decided Dec. 13, 1921.

65 Id. at 88.

66 Id. at 96.

67 The five opinions not included can be found in the volumes of opinions for 1922-1924, page 519; 1934-1936, pages 170 and 325; and 1938-1940 pages 13 and 407.

68 Biennial Report and Opinions of the Attorney General of the State of Oregon 1920-1922, page 449, issued Jan. 10, 1922.

69 Id.

70 Owens-Adair, pages 144-146.

71 General Laws of Oregon 1923, page 280, ch. 194, enacted Feb. 24, 1923.

72 Id. 2.

73 This law was enacted at a session of the legislature dominated by the Ku Klux Klan. Also enacted at this session were an alien land law aimed at the Chinese. During this year, the state defended in a court challenge its popularly initiated law that prohibited Catholic schools. See Gordon B. Dodds, Oregon: A Bicentennial History, (New York:W.W. Norton & Co., 1977), pages 188-190 and 197-199. Amazingly, the KKK-supported Speaker of the Oregon House of Representatives was named Kaspar K. Kubli.

74 Biennial Report and Opinions of the Attorney General of the State of Oregon 1922-1924, page 555, issued Jan. 21, 1924.

75 Id.

76 General Laws of Oregon 1925, page 298, ch. 198, enacted Feb. 24, 1925.

77 Id. 2.

78 Biennial Report and Opinions of the Attorney-General of the State of Oregon 1924-1926, page 595, issued May 20, 1926.

79 Id. at 596.

80 R.E.L. Steiner, "Eugenics in Oregon," Northwest Medicine, 26:594-597, at 595 (Dec. 1927). This article erroneously refers to the number of sterilizations under the law of 1917. Since that law was found unconstitutional, the number had to be under the law of 1923. Besides, figures show 68 men sterilized through 1921, whereas Steiner cites a total of 62, obviously in four years under the new law.

81 Id. at 597.

82 Biennial Report and Opinions of the Attorney-General of the State of Oregon 1926-1928, page 428, issued Feb. 16, 1928.

83 Id. at 429.

84 General Laws of Oregon 1929, page 397, ch. 348, enacted Mar. 7, 1929.

85 Id. 2.

86 Biennial Report and Opinions of the Attorney-General of the State of Oregon 1928-1930, page 297, issued July 24, 1929.

87 Id. at 299.

88 Abraham Myerson et al., Eugenical Sterilization: A Reorientation of the Problem, (New York:Macmillan, 1936), page 18.

89 General Laws of Oregon 1935 Special Session, page 55, ch. 38, enacted Nov. 15, 1935.

90 Id. at 55-56, 1.

91 Biennial Report and Opinions of the Attorney General of the State of Oregon 1940-1942, page 286, issued May 15, 1941.

92 Id. at 288.

93 "Eugenics Cases," an otherwise unidentified sheet among the records of the Oregon Board of Eugenics at the Oregon State Archives, Salem. "Castration" was the term of choice for removing testicles for about 20 years. Beginning about 1938, the term "orchidectomy," meaning the same thing, was substituted in the records. For women, "sterilization" was the term of choice for 20 years, then "salpingectomy" was substituted around 1938, although they are synonymous.

94 Biennial Report and Opinions of the Attorney General of the State of Oregon 1946-1948, page 42, issued Sep. 4, 1946.

95 Id. at 42-43.

96 Biennial Report and Opinions of the Attorney General of the State of Oregon 1946-1948, page 53, issued Sep. 18, 1946.

97 Id. at 53-54.

98 193 P.2d 999, decided June 2, 1948.

99 Id. at 1000.

100 The Oregonian, Feb. 29, 1952, 1:1.

101 Correspondence from Donna Birkey, Administrative Specialist, Office of the Secretary of State, June 13, 1994.

102 242 P.2d 189, decided Apr. 2, 1952.

103 Id. at 190.

104 General Laws of Oregon 1953, page 1177, ch. 641, enacted May 9, 1953.

105 Id. 2.

106 Id. at 1178, 6.

107 Id. 7.

108 General Laws of Oregon 1955, page 792, ch. 636, enacted May 19, 1955.

109 Biennial Report and Opinions of the Attorney General of the State of Oregon 1956-1958, page 97, issued Apr. 18, 1957.

110 Id. at 98.

111 Mattachine Review, June 1957, page 18.

112 354 P.2d 815, decided Aug. 10, 1960.

113 Id. at 817.

114 Id. at 817-818.

115 Id. at 818.

116 Id. at 820. Casson’s arrest on this charge is noted in the Oregon Journal, Jan. 19, 1956, 10:3. A review of the briefs filed with the Oregon Supreme Court shows that the teenage male involved in this case not only made no objection to the sex, but eagerly sought more. See 1591 Oregon Briefs 421, especially page 36.

117 366 P.2d 323, decided Nov. 22, 1961. This case was handed down only 19 days after it was argued.

118 General Laws of Oregon 1963, page 743, ch. 467, enacted June 6, 1963.

119 Id.

120 The Oregonian, Oct. 24, 1963, 1:8 ("Sex Party Films Jail Two Men"); Oct. 25, 1963, 25:1 ("Police Say Arrest of Two Portlanders Exposed Statewide Homosexual Ring Activities"); Oct. 26, 1963, 6:1 ("More Secret Indictments Returned in Vice Probe"); Oct. 26, 1963, 10:2 (editorial—"They Prey on Boys"); Nov. 1, 1963, 30:7; Nov. 17, 1963, 42:1; Dec. 3, 1963, 14:3; Jan. 18, 1964, 11:1; Feb. 9, 1964, 42:7; June 3, 1964, 15:7.

121 401 P.2d 30, decided Apr. 21, 1965.

122 Id. at 31.

123 401 P.2d 296, decided Apr. 30, 1965. A newspaper article on the Nice case, before it reached the appellate court, is in the Oregon Journal, May 6, 1964, 7:1.

124 Nice, at 297.

125 412 P.2d 526, decided Mar. 30, 1966.

126 Id. at 527.

127 Id. Discussion of DeLorme’s mother’s knowledge of and acquiescence in the relationship is found in the briefs submitted to the Oregon Supreme Court. See 1739 Oregon Briefs 440, pages 13-14, 35, and 53-54. The state complained that Mrs. DeLorme didn’t turn her son into the police upon learning of his relationship with Edwards, as if a parent ordinarily would be expected to do this to a child.

128 1739 Oregon Briefs 440, pages 14-15 and 55-56. Sadly, the briefs also tell that Edwards was "not a homosexual," that he had an extensive criminal record for theft offenses, and that he entered into the relationship with DeLorme only for financial gain. DeLorme gave Edwards some $15,000 during the course of their less than 1-year relationship. 1739 Oregon Briefs 440, pages 13, 15, and 16.

129 460 P.2d 874, decided Nov. 7, 1969.

130 Id. at 875.

131 Id. at 876.

132 Id.

133 Id. at 876-877. DeLorme was released from prison in early 1965, a full year before Edwards’s case was decided by the Oregon Supreme Court. Edwards was not released until late 1973, almost nine years after DeLorme. DeLorme died in 1972. (Correspondence from Sharon L. Christensen, Custodian of Records, Oregon Department of Corrections, n.d., postmarked Feb. 21, 1997).

134 467 P.2d 649, decided Apr. 9, 1970.

135 Id. at 650.

136 Id.

137 469 P.2d 645, decided Apr. 16, 1970.

138 476 P.2d 205, decided Nov. 2, 1970.

139 Id. at 207. A newspaper report on the Jellum case is in the Oregon Journal, May 15, 1969, 2:3.

140 Oregon Criminal Code 1972, Subcommittee No. 2, Preliminary and Tentative Drafts, Articles 12-17, (no publication data), dated January 1969, no pagination.

141 Id.

142 Oregon Criminal Code 1972, Minutes of Senate Criminal Law and Procedure Committee; Summary of the New Criminal Code; Specific Crimes Index, (no publication data), hearing held Feb. 24, 1971, page 10.

143 Oregon Criminal Code 1972, Subcommittee No. 2, Minutes of 1st-14th Meetings, October 25, 1968- January 7, 1971, (no publication data), Tenth Meeting, Oct. 22, 1969, pages 5-7.

144 Id. at 6.

145 Id.

146 Id. at 7.

147 Id.

148 Oregon Criminal Code 1972, Minutes of 1st-24th Meetings, August 24, 1967-July 2, 1971, (no publication data), Dec. 13, 1969, page 56.

149 Id.

150 Oregon Criminal Code 1972, Subcommittee No. 2, Preliminary and Tentative Drafts, Articles 12-17, (no publication data), dated February 1970, no pagination.

151 General Laws of Oregon 1971, page 1873, ch. 743, enacted July 2, 1971, effective Jan. 1, 1972.

152 Id. See article 13 generally.

153 Id. 118.

154 Id. 119.

155 Edward N. Fadeley, "Sex Crime in the New Code," 51 Ore.L.Rev. 515 (Spring 1972).

156 Id. at 515.

157 Id. at 520.

158 Id. at 522, n.43.

159 The Advocate, Vol. 123 (Oct. 24, 1973), page 20.

160 630 P.2d 892, decided June 29, 1981.

161 Id. at 894.

162 General Laws of Oregon 1983, page 1010, ch. 546, 1, enacted July 29, 1983.

163 630 P.2d 854, decided July 8, 1981.

164 Id. at 856.

165 Moya Woodside, Sterilization in North Carolina: A Sociological and Psychological Study, (Chapel Hill:University of North Carolina Press, 1950), pages 194-195.

166 Biennial Report and Opinions of the Attorney General of the State of Oregon 1958-1960, page 222, issued Aug. 13, 1959.

167 Id. at 224-225.

168 The Oregonian, Oregon Journal (Combined Strike Issue), Apr. 11/12, 1960, 2:3.

169 Biennial Report and Opinions of the Attorney General of the State of Oregon 1960-1962, page 139, issued Feb. 2, 1961.

170 Id. at 140.

171 Id. at 141.

172 The Oregonian, Mar. 29, 1963, 30:3.

173 General Laws of Oregon 1965, page 524, ch. 264, enacted Apr. 22, 1965.

174 Id. at 528, 12.

175 743 P.2d 157, decided Sep. 29, 1987.

176 754 P.2d 11, decided May 11, 1988. Reconsideration denied July 1, 1988.

177 Id. at 12.

178 766 P.2d 397, decided Dec. 21, 1988.

179 Id. at 399,

180 766 P.2d 399, decided Dec. 21, 1988.

181 Id. at 401.

182 Kane v. Roberts, 799 P.2d 639, decided Oct. 25, 1990.

183 826 P.2d 37, decided Feb. 12, 1992.

184 Id. at 39-43.

185 Id. at 43-44.

186 884 P.2d 1231, decided Nov. 16, 1994. Reconsidered, 891 P.2d 2, decided Feb. 22, 1995.

187 891 P.2d, at 2.

188 The Oregonian, Nov. 19, 1995, 5C:2.


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