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 1991-2002

Pennsylvania

"He is known as a fairy."

 

The Colonial Period, 1607-1776

In 1676, the Duke of York, then in power in New York and New Jersey, had his laws spread into what is now Pennsylvania and Delaware. This included a capital sodomy law that was based on Biblical proscriptions, but which exempted those under age 14 and those who were victims of assaults.1 Those persons were still liable to punishment "according to the Discretion of the Court of Assizes."2

The Quaker colony established by William Penn adopted a code in 16823 that reworded the sodomy law to read that

if any person shall be Legally Convicted of the unnatural sin of Sodomy or joining with beasts, Such persons shall be whipt, and forfeit one third of his or her estate, and work six months in the house of Correction, at hard labour, and for the Second offense, imprisonment, as aforesaid, during life.4

This was the only non-capital sodomy law to exist during the colonial era in what now is the United States, but it was not destined to last forever.

In 1693, Penn fell out of favor with the Crown in England and all laws of Pennsylvania were suspended, with English laws reinstated.5 This made sodomy both a male-only phenomenon and a capital crime again.

A separate law of 16936 reserved eight apparently heinous crimes for trial by the Circuit Courts, which were appellate courts for other criminal cases. Sodomy and buggery7 were two of the eight, along with treason and murder.

In 1694, William Penn regained favor with the Crown and all Pennsylvania laws were restored, thus the penalty for a first offense of sodomy went from death to six months.8

Two laws enacted in 1700 showed an increase in hostility to sodomitical acts. In the first,9 the penalty for a first offense was increased to life imprisonment, with the possibility of a flogging every three months during the first year. If the offender was a married man, he was to be castrated and his wife was offered a divorce.10

A second law11 established a separate code for blacks living in Pennsylvania, whether slave or free. The law included a preamble that noted, without explanation, that "some difficulties have arisen" concerning the trial of blacks charged with a number of offenses, including buggery.12 The penalty for buggery (and only three other offenses), when committed by a black person, was set at death.13

A new law enacted in 170614 limited the number of lashes for sodomy to 39 at each of the three floggings permitted under law, and permitted both a husband and wife to obtain a divorce if either’s spouse was convicted of buggery. The castration penalty for married men was eliminated.15 The law for blacks was not changed.16

A statute of 171817 adopted the common law of England, which never before had been recognized in Pennsylvania (other than during the three-year suspension of Pennsylvania laws),18 and raised the penalty for sodomy for whites to death by stating that convicted sodomites

shall suffer as felons, according to the tenor, direction, form and effect of the several statutes in such cases respectively made and provided in Great Britain, any act or law of this province to the contrary notwithstanding.19

Also in 1718, a Philadelphia ordinance was enacted to authorize the use of the ducking stool for "divers other profligate and Unruly persons in this Town who are become [sic] a Publick Nuisance and disturbance to the Town in Generall[.]" Thus, this punishment could be used for practically any kind of erotic activity not covered by the sodomy statute.20

Pennsylvania enacted a statute in 172221 that required all persons importing any person previously convicted of sodomy to pay 5 for each such person.22

Period Summary: Pennsylvania experienced a collision between English and Quaker views of sodomy. During this time, both sets of laws were experienced, one harsh and the other relatively lenient. As Quaker influence waned, the capital English law was restored, and other severe penalties, including castration, were adopted.

The Post-Revolution Period, 1776-1873

No more changes were made in the sodomy law of Pennsylvania until 1780 when a law was passed23 to eliminate discrimination against blacks in the criminal code. All offenses committed by blacks were to be treated identically to those of whites.24

The only known execution in Pennsylvania for sodomy occurred in 1785. Joseph Ross of Westmoreland County was sentenced to die on December 20, 1785 for an unspecified act of sodomy.25

Perhaps in reaction to this extreme penalty, Pennsylvania adopted a statute in 178626 that lowered the maximum penalty from death to forfeiture of estate and a maximum of 10 years in prison.27 However, persons accused of sodomy could not be admitted to bail.28

A statute of 179429 required that all persons convicted of sodomy be "safely removed and conveyed by the sheriff" to the penitentiary. Any sheriff who failed to do so could be fined $100 for each prisoner so neglected.30

Despite the wording of the Pennsylvania law that apparently included women, one visitor to the United States noted that in Philadelphia in 1798 many women

without real love and without passions, give themselves up at an early age to the enjoyment of themselves; and they are not at all strangers to being willing to seek unnatural pleasures with persons of their own sex.31

In 1799, a statute32 made the criminal laws passed throughout the 1790s, including the sodomy law, perpetual.33

An 1806 law34 reinstated the ability of persons charged with sodomy to be freed on bail.35

An interesting report was issued by the Pennsylvania Supreme Court in 1808.36 The Court listed all English laws in force in the state by virtue of the adoption of the common law, as well as a list of such statutes that, in the Court’s opinion, should be made statutory in Pennsylvania. Not listed as being considered in force were either the Henrican or Elizabethan buggery laws, although numerous other criminal laws were listed.37 Thus, Pennsylvania would have to have its own sodomy law in order for prosecutions to be obtained in the state.

A digest of Pennsylvania law published in 181238 could not bring itself to print the word "buggery." It was printed as "B_GG__Y."39

In a law of 1829,40 the penalty for sodomy was reduced, for a first offense, to five years, with a second offense to be punished with up to 10 years.41 All prisoners were to be kept in solitary confinement at labor.42 They were allowed only coarse food and no visitors.43

The first reported sodomy case in Pennsylvania, and one of the first in the nation, was Commonwealth v. Dunn,44 from 1841. In this curious case, it was revealed that one Lewis Curry had met Nathan Dunn, proprietor of the Chinese Museum in Philadelphia, six years earlier "in the pit of the Walnut Street theatre." They apparently began a relationship, although it is unclear if it was sexual.45 Curry apparently engaged a third party in an attempt to extort money from Dunn.46 The unnamed magistrate who decided the case noted that the

case before me comes steeped in perjury, marked with contradictions and impossibilities, and wholly unsustained by a shadow of proof.47

Criticizing Dunn for having acted

with a weakness, a morbid sensitiveness, and want of that knowledge of human nature, which nothing but an acknowledged benevolence can justify or excuse, in yielding to these extortions, I am free to say, that there is no evidence, either circumstantial or parol, which would justify me in holding him to answer the charge preferred against him; and as an act of justice to the community, I feel it to be my duty to bind over Curry and Sheppard for a conspiracy to extort money from Nathan Dunn, and individually to answer for the perjury they have committed.48

A new criminal code of 186049 included one of the most comprehensive anti-sodomy laws ever enacted. It raised the penalty for a first offense from five years to 10, still in solitary confinement at labor, and established a fine of up to $1,000.50 A separate section outlawed both an assault to commit sodomy and solicitation for it.51 The penalty for either of these was set at a maximum of three years in prison and/or a fine of up to $300.52 Other provisions limited the number of officials who could admit an accused sodomite to bail,53 permitted conviction of accused sodomites by outlawry,54 and set a statute of limitations for prosecution at five years.55 Anyone having knowledge of an act of sodomy and not reporting the same to authorities was guilty of compounding a crime and could be sentenced to three years in prison and receive a fine of up to $1,000.56

Period Summary: Pennsylvania was the first of the original colonies to abolish the death penalty for sodomy, less than a year after the last known death sentence for sodomy was carried out in Pennsylvania. Nevertheless, the state continued to expand the power of the state over acts of sodomy by limiting bail, restricting prison visits, and permitting conviction by outlawry. One of the first reported sodomy cases in the United States also occurred during this time, one that revealed an apparent love relationship between two men and possible blackmail.

The Victorian Morality Period, 1873-1948

I. Sodomy

Pennsylvania enacted a new sodomy law in 187957 that expressly expanded the reach of the law to include "penetrating the mouth[.]"58 This was the first law enacted in the United States explicitly covering oral sex.

The first reported case under this new law, and the first reported fellatio case in the United States, was Commonwealth v. Smith,59 decided in 1885. Presiding Judge Rice began his opinion by saying that he had

cautioned the jury against allowing their abhorrance [sic] of this crime to prejudice them in considering the evidence against the defendant.60

Although the Court could not bring itself to specify that Smith had been accused of fellatio other than by making reference to the change in the law, the prosecuting witness said that

he was overpowered—that the defendant held him down and forced him to the act—or, as he expresses it, "at last he forced me to have him."61

The Court noted that the witness made no outcry or attempt to get away from Smith, and did not tell anyone of the act for weeks afterward. The Court therefore considered the witness an accomplice and, because his testimony was not corroborated, overturned Smith’s conviction and ordered a new trial.62

The 1890 case of Commonwealth v. King63 was reported officially, not in a law reporter, but in a daily newspaper, certainly unique in the United States. The trial court, speaking through Judge Hare, recognized an "unusual relation" between King and a young man named Gane, but stated that it, by itself, could not prove an act of sodomy.64 Noting that Gane was in the position of an accomplice, the court also said that his testimony should be weighed carefully, otherwise

no man who is ever alone with a boy or another man would be safe if such an accusation were made.65

After telling the jury that Gane’s testimony was corroborated, Hare added that

it seems to me that the relation of the prisoner and Gane, as proved all round, was somewhat out of the ordinary course of nature. I do not mean to say that the existence of a very strong attachment, under such circumstances, is unnatural or impossible. When a man is placed, as this defendant here, in an institution away from the ordinary ties of life, where he has nothing on which to lavish his kind feelings, the parental fibre may be so far moved that he may form a very strong attachment. It seems to me that if the defendant allowed it to go to such an extent as has been testified it was trespassing proper bounds.66

With this less than unbiased charge to the jury, an unsurprising verdict of guilty was returned in less than an hour.67 A final paragraph stated that when the jury began deliberations they were unanimous

as to the defendant’s guilt, but one juror wanted to recommend him to the Court’s mercy. It was this that kept them out for an hour, it is stated, but the juror finally came over to the others who opposed such a recommendation.68

A statute of 189169 further restricted the number of persons who could admit an accused sodomite to bail.70

The Pennsylvania sodomy law, as amended to include oral sex, suffered a rude surprise in the 1899 case of Commonwealth v. J_____.71 The law was found to be unconstitutional because the manner in which the legislature changed it violated a clear command of the Pennsylvania Constitution.72 The law merely had redefined the crime of sodomy, but the Constitution required all laws to be reenacted in their entirety. The Court also claimed that the law usurped a judicial function by interpreting a statute.73 Despite this ruling, there were other prosecutions for oral sex in Pennsylvania.

Pennsylvania created a probation program in 190974 and one of the crimes for which probation was forbidden was sodomy.75

In late 1912, following national publicity of an Oregon sex scandal, investigations were launched elsewhere in the country. In Philadelphia, Rev. Alfred Mortimer, rector of an Episcopal church, was arrested on sex charges related to male brothels.76

In 1915, a law was enacted77 that gave the right to a preliminary hearing before a magistrate to any person convicted of a crime, other than one of nine excluded crimes, including sodomy.78

In the 1916 case of Commonwealth v. Taylor,79 the 1899 decision of the court that the fellatio provision of the sodomy law was unconstitutional was ignored. Making no reference to the decision, possibly because of being unaware of it, the court ruled sufficient an indictment under this law merely charging Taylor with "sodomy."80

In the case of Commonwealth v. Dong Lee,81 from 1917, a sodomy conviction was sustained that was based only on the testimony of a "boy," whose age is not specified, but who evidently consented to the act.82

Possibly in reaction to the conflict between J_____ and Taylor, the Pennsylvania legislature adopted a new sodomy law in 1917.83 It was reworded to include any person who "carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge[.]"84 The 10 years at solitary and hard labor and $1,000 fine maximums remained unchanged.85 The crime was considered complete upon "penetration, however slight[.]"86 The penalty for assault or solicitation to commit the offense was raised from $300 to $1,000 and from three years to five, also at solitary confinement at labor.87

In 1923, in the case of Commonwealth v. Ambler,88 a court upheld the right of Pennsylvania to try the defendant on both a solicitation and sodomy charge in the Court of Oyer and Terminer, even though Pennsylvania law required the charges to be tried in separate courts. This was because one was a misdemeanor and the other was a felony, but the Court believed that case law permitted the joinder of the counts and trial in one court.89

The case of Commonwealth v. Torr90 from 1933 was decided by the Pennsylvania Superior Court. They unanimously upheld the trial court’s refusal to allow "a physical examination of the defendant in open court."91 Judge William Parker discussed

the rather unusual suggestion that the defendant should be disrobed in court. In so far as we can gather from the arguments and the context, it was desired to have the experts point out some peculiarities in the physical characteristics of the defendant from which the expert deduced the conclusion that the defendant was a sexual pervert and possessed an "irresistible impulse" to commit sodomy. The expert was permitted to call attention to such characteristics which for the most part could be seen through the clothing, and the commonwealth made no denial of the physical characteristics in question.92

The Court pointed out that irresistible impulse was not recognized as a criminal defense in Pennsylvania.93

In a comprehensive criminal code revision in 1939,94 the sodomy law was changed only to raise the maximum fine from $1,000 to $5,000.95 In addition, common-law crimes expressly were recognized.96

In 1939, Commonwealth v. Donahue97 resulted in the first reported Pennsylvania case dealing with cunnilingus. The Court decided that proof of penetration in a case of cunnilingus could be shown by circumstantial evidence only.98

In 1941, the statutory ban on probation for sodomy was repealed.99

The Pennsylvania Supreme Court issued its first sodomy decision in 1946 in the case of Commonwealth v. Dress.100 The Court unanimously overturned the conviction of a man accused of sodomy with his 8-year-old adopted son. The Court noted that the family housekeeper reported the alleged relations only after Dress repulsed her sexual advances. She did not appear at the trial and "her absence was not explained."101

II. Sterilization

A medical journal article published in 1920102 criticized the fact that Pennsylvania had not enacted a sterilization law.103 The author, Dr. Martin Barr, noted that, nevertheless, he performed them himself on persons whose sexual behavior he personally disliked. Saying that he "preferred" the more radical surgery of castration and ovariotomy "as insuring security beyond a peradventure,"104 he gave some case notes of sterilization operations he had performed. One was a male who was "a sexual pervert of the most pronounced description" who "took great delight in calling attention to his disgusting practices." He had become "so obnoxious" that he was castrated at age 17.105 Another was a 20-year-old male vasectomized for being "a pronounced case of perverted sexuality."106 Another 25-year-old male "sexual pervert" was submitted to vasectomy.107

Period Summary: Pennsylvania adopted the nation’s first explicit statute outlawing oral sex in 1879. As a result, it also had the country’s first reported court case of fellatio. This law, however, was ruled unconstitutional in 1899 on a technical ground. Later, another law outlawing oral sex was adopted during the First World War during a time of many such laws being enacted. Although Pennsylvania also enacted one of the first laws prohibiting probation being given to those convicted of sodomy, it was the first state to repeal that ban.

The Kinsey Period, 1948-1986

A law article108 from 1948 discussed proposed psychopathic offender legislation for Pennsylvania. As occurred in other states, this article noted the inadequacy of handling of sex offenders, but seemed befuddled as to how a psychopath law would improve matters.109 The article reviewed laws in other states and presented a suggested law for Pennsylvania. It would make mandatory a psychopathy investigation for only five crimes, including sodomy, whether or not consensual.110 It also would give district attorneys the power to order such investigations on any person brought to the prosecutor’s attention, whether or not the person was charged with or suspected of a crime.111 The psychopathy determination would be made by a majority vote of a board of psychiatrists, rather than a unanimous vote,112 and any other sex offenses, whether or not prosecuted, would be admissible against the person.113 The person could be held indefinitely if not recovered or no longer treatable.114

Another suggestion from 1948115 contradicted the above article. It recommended that $200 bail be set for "abnormal" sex if "a voluntary act, and where no force or a minor [was] involved." Bail should not be set "after hours" and the amount to be set should depend on "the appearance" of the defendant, rather than the crime charged, because "many of these offenders are well-off financially." At the trial, "all women of the jury panel who so desire [should] be excused." At the preliminary hearing, the defendant should be notified of his "right" to waive grand jury indictment, thus speeding the process and removing one possible safety valve from the case. The "less serious offenders" should be placed on probation "to receive psychiatric treatment." The author suggested that no psychopathic offender law was needed for the state, since offenders could be handled under current laws.116

At the beginning of 1950, a medical journal article117 joined in the effort to lay groundwork for Pennsylvania to enact a psychopathic offender law. The

sex deviate, always a public problem, has recently more than ever become a social and health menace.118

The

necessity for some sort of bridge between religious and psychiatric ideas is admitted. When an attempt is made to understand the psychopathic group, among which the sex deviate is classified by many, this necessity is made plain, for the problems of morality cannot be divorced from any description of a psychopath. Indeed, except on a socio-moral level, just what is meant by a psychopath defies description.119

In a discussion at the end of the presentation, another physician, Rodney Kiefer, commented on the findings. The term "sex deviate" apparently was synonymous with "homosexual" in the original presentation because

in Pittsburgh it [sex deviation] is an acute problem right now. This past year I have seen over 200 homosexuals held for Criminal Court here in Allegheny County.120

The "problem" in Pittsburgh came to the attention of psychiatrists

by certain business firms complaining that large groups of homosexuals were frequenting these business establishments and annoying their patrons. A special vice squad was organized to cope with this problem, and it was not uncommon to see ten to twelve homosexuals being arrested every evening. They were held for Criminal Court in this county.121

Kiefer complained that these individuals were prosecuted as criminals rather than aided by psychotherapy. "We do not expect, of course, to cure very many with psychotherapy, but in the long run it does benefit the patient, his family, and society as a whole."122

Sodomy and indecent exposure convictions of a man were overturned in 1950 in Commonwealth v. Crooks123 because the trial judge told the jury that "the crimes as charged were actually committed by someone." Thus, the judge was withdrawing from the jury its power to determine if a crime had been committed.124

In 1950, in Commonwealth v. Mourar,125 a court upheld the right of Pennsylvania to try a man for sodomy as an accessory before the fact for driving two teenagers to a friend’s house and watching as the friend performed fellatio on one.126

A conviction for solicitation for cunnilingus was upheld in 1950 in the case of Commonwealth v. Schaller.127

In late 1950, a law journal128 discussed how the city of Philadelphia decided to handle the arrests of Gay men. First, it was claimed that "the homosexual is an inveterate seducer of the young of both sexes,"129 as if Gay men were interested in girls and Lesbians in boys. Some 200 arrests per month were made in Philadelphia and those brought into court were given a form to sign that included waiver of hearing, waiver of grand jury presentment or indictment, and notice of a neuropsychiatric hearing, regardless of consent.130 The "entire Morals Squad and other police witnesses sit in the jury box" before testifying against arrestees [emphasis added].131 This form and testimony, along with any previous arrest record and the neuropsychiatrist’s report, allowed the judge

to intelligently [sic] dispose of a large number of cases in a morning, with few continuances for further investigation.132

This court procedure resulted in 71% of defendants pleading guilty and another 14% being found guilty after pleading innocent.133 Of those arrested, 84% were for consensual sodomy and another 7% for solicitation for it.134 Among the "advantages" to this new procedure were (using the same ordinal numbers corresponding to those in the article): 1) no hearing was required; 2) no transcript of the proceedings is needed (thus eliminating the possibility of review on appeal); 3) officers don’t need to be grilled by the grand jury; 7) no attorneys needed to be contacted "other than telephone call"; 12) a large number of cases could be disposed of in a single day; 14) and 21) a large amount of money in fines would come to the city; 17) minors and women would be spared embarrassment in testimony.135

In 1951, in Commonwealth v. Beideman,136 a trial court permitted the conviction of a defendant on separate solicitation and sodomy charges, claiming that the two did not necessarily merge.137

A legislative committee studying the issue of sex offenders issued a report138 in 1951 that was at variance with public opinion. The report said that "any statute which restricts a citizen because he does not conform constitutes an impingement of his civil liberties and an abrogation of constitutional principles."139 It also cited the New Jersey commission report’s (q.v.) conclusion that the typical sex offender was not a dangerous person, but rather "passive and unaggressive."140

Despite these conclusions, Pennsylvania was among the herd of jurisdictions that enacted a "psychopathic offender" law after World War II. In 1952, finally deciding on a plan after differing suggestions (see above), it enacted a statute141 known as the Barr-Walker Act, after its main sponsors. The law stated that its aim was

the better administration of justice and the more efficient punishment, treatment and rehabilitation of persons convicted of the crime of indecent assault, incest, assault with intent to commit sodomy, solicitation to commit sodomy, sodomy, assault with intent to ravish or rape, if the court is of the opinion that any such person, if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender[.]142

The person so convicted could, in lieu of the statutory penalty for the crime, be sentenced to confinement from one day to life.143 A psychiatric examination was required before any such commitment proceedings could be instituted.144

In the 1952 case of Commonwealth v. Harnish,145 a court dealt with two men who engaged in consensual fellatio in a parked car. The court was confronted with a complaint by Harnish that prior convictions of his for similarly consensual sodomy were admitted in his trial, one from 1938 and another from 1941.146 The Court concluded that

[g]enerally the evidence in this case of prior convictions for sodomy as to Harnish would be too remote, but under the particular facts shown by the evidence it was properly admitted. The first reference to it was brought out at the trial in answer to the questions by counsel for defendant. At the time of Harnish’s arrest he told the State Police that he had not been in trouble before and said "he never had any previous arrests," and that "he never committed sodomy."147

Another case that demonstrated that lower courts in Pennsylvania, despite its extensive law reporter system, frequently did not know of precedent in the state was the 1953 case of Commonwealth v. Perrillo.148 Despite the clearly worded sodomy statute, and the Donahue case of more than a decade earlier, this case decided that cunnilingus was not a violation of the sodomy law.149 The court relied entirely on the Ohio decision of 1944 (q.v.) that cunnilingus did not constitute a violation of Ohio’s very differently worded law.150

The next day, a different court reached the opposite conclusion in Commonwealth v. Parsons.151 The conviction of a man for soliciting a woman for cunnilingus was sustained as being within the state’s solicitation law.152 This decision also made no reference to the Donahue precedent. It did, however, see a need to stress the interracial element in the case between the solicitor and the solicited.153

A new statute was enacted in 1953154 that permitted a sentence of twice as long as the maximum for any person convicted of any of a number of enumerated offenses, if the offense took place with a person under the age of 18.155 Sodomy was one of the offenses, which thereby permitted a sentence of up to 20 years at solitary confinement and labor and/or a fine of $10,000.156 This law would allow such a procedure for an 18-year-old who was involved with a 17-year-old.

In the 1954 case of Commonwealth v. Kuntz,157 the court upheld the right of a trial court to refuse psychiatric testimony that would tend to show that the defendant in a sodomy case was not likely to commit a sexual offense.158

An appalling case was Commonwealth v. Hile,159 from 1954. Hile and a number of other men had been convicted of consensual sodomy at a resort known as "Homo-Haven." First, the court rejected Hile’s contention that he had not received a fair trial because one jury panel heard all of the cases involved in the Homo-Haven raid.160 The court also decided that whether or not Hile was homosexual was a material fact in the trial. Whether

a person alleged to be a homosexual and charged with sodomy associates with known homosexuals or attended a party conducted by a large group of homosexuals and participated in the program is material. It was helpful to the jury in determining his guilt of innocence, especially in view of his admission that on six or seven occasions he went to Magyar’s Bar, a known-to-him meeting place of homosexuals in central city, when for a drink he could have gone to dozens of bars in the vicinity of his home and many more bars in central city in no way connected with homosexuals.161

There were two cases involving the next sodomy defendant. In 1955, in the case of Commonwealth v. Morrison,162 the conviction of an architect for sexual relations with four teenage males was sustained. Defense witnesses stated that one of the young men had stated

that police kept a bright light on him for a long period of time until he signed a statement for them. Still other defense witnesses testified they had known the Russell boys but had never heard them make any complaint about the defendant’s conduct.163

The Court also found nothing wrong with the prosecution’s referral to Morrison as a "sex pervert" and its plea to the jury to "tak[e] him out of society" to protect children.164

The companion case of Morrison’s165 dealt with his conviction for obstructing justice in his sodomy case by trying to get witness Jack Russell, one of the teens with whom he had consensual sexual relations, out of the state of Pennsylvania.166

The confusion over cunnilingus in Pennsylvania courts came to a head in 1956 in the case of Commonwealth v. Burkett.167 The Court noted the conflict between the Donahue and Perrillo cases, but decided to follow Donahue and uphold the conviction.168

A companion case was Commonwealth v. Yingling,169 in which the female half of the male-female cunnilingus prosecution had her conviction upheld against similar contentions and with almost identical language.170

In 1957, in the case of Commonwealth v. Nestor,171 the Pennsylvania Superior Court unanimously upheld the conviction of a man for consensual sodomy with an apparent teenager, Thomas Hoover. Hoover was referred to as "a young sodomist, although [Nestor] was not responsible for corrupting him in the first instance."172 The Court found circumstantial evidence persuasive, sounding much like the prosecutors in Oscar Wilde’s trial. Nestor

was a man of good family and affluent financial circumstances. He was a college graduate, 27 years old at the time of the trial. His education and cultural background was far above the average. And yet his frequent associates were Hoover, 9 years his junior who quit school at the ninth grade, and Dietrich, 8 years younger than the defendant, both of them admitted sodomists—one on probation and the other in the penitentiary at the time of these trials. Joseph Schmick, also a sodomist, was another of his associates. Certainly, defendant’s association with these three persons, so far out of his class, was a factor for the jury to consider in weighing the testimony.173

The court also noted that Nestor had his penis examined in the men’s room of the courthouse after accomplice Dietrich testified that it was abnormal. A second doctor then examined him and found his penis normal.174

Another sodomy case was disposed of the same day by the same court. In Commonwealth v. Palmer,175 the Court upheld the right of testimony that the defendant was "known as a fairy" to be admitted into his trial.176 The Court found this relevant to the "defendant’s general reputation for morality and the particular trait or characteristic involved in the trial."177

Intoxication as a defense against a charge of attempting sodomy was rejected by a court in 1958 in Commonwealth v. Althoff.178

The touching of another person, namely placing of the mouth on a penis without penetration, was found not to constitute a solicitation to commit sodomy in the 1959 case of Commonwealth v. Yeager.179

In 1963, in the case of Commonwealth v. Blottenberger,180 a court upheld the sodomy conviction even though the alleged victim admitted that he lied at the preliminary hearing.181

In 1964, the Pennsylvania Superior Court decided, in the case of Commonwealth ex rel. Gerchman v. Maroney,182 that the Barr-Walker psychopathic offender law was constitutional. The court’s praise for the law was based largely on the fact that routine psychiatric reports were required to be given to the sentencing courts.183 A writ of habeas corpus was denied by a federal court,184 but that was overturned by the Third Circuit.185 The appellate court found that the law denied defendants their constitutional right to confront and cross-examine witnesses.186

The case of Commonwealth v. Wood187 in 1966 decided that prior sodomy convictions could be admitted to attack a defendant’s credibility and that sodomy need not be defined in a charge to the jury, if the indictment followed the wording of the statute.188

The sodomy conviction of a man was upheld in 1966 in Commonwealth ex rel. Sorrentino v. Rundle.189 Pennsylvania had not been able to prove an act of sodomy as charged in the indictment, but was able to prove another on a different date. The Court found this sufficient, so long as the second date was within the statutory time period.190 The Court then added a gratuitous complaint that, as

a four time offender, as a former prisoner and as a patient at both Allentown State Hospital and Farview State Hospital, Michael Sorrentino over the years has become known to the courts of this county as a chronic complainer, a prolific letter writer and a filer of every conceivable type of motion.191

After nevertheless claiming to have reviewed his appeal fairly, the Court felt that "this proceeding is merely another false and unwarranted cry of ‘wolf’."192

In 1966, another court allowed the withdrawal of a guilty plea in Commonwealth v. Stottlemeyer.193 The defendant, who had a subnormal intelligence level, had pleaded guilty only on pressure from his attorney who erroneously promised him that the court would be lenient with a guilty plea.194

In 1967, the Pennsylvania Superior Court, deciding Commonwealth v. Dooley,195 predictably, considering the federal court decisions against the law, overruled its Gerchman decision and found the Barr-Walker "psychopathic offender" law unconstitutional because of its denial of basic due process guarantees. The glowing pro-Barr-Walker language from Gerchman disappeared like a summer storm.

In the 1968 case of Commonwealth v. Taconelli,196 the sodomy conviction of a defendant was upheld despite the testimony of a psychiatrist that Taconelli

did not possess the characteristics of a sex offender likely to commit sodomy, that he was not a sexual deviate, and that it was improbable that he possessed the necessary intent to be lustful of a boy thirteen years of age.197

Also giving testimony was Taconelli’s girlfriend, who stated that he was a "normal and responsive male."198 These were insufficient, the Court felt, to justify overturning the jury’s verdict.199

In 1971, a court upheld the right of a trial court to resentence a sodomy defendant who had been convicted under the now unconstitutional Barr-Walker Act in Commonwealth v. Clark.200

A victory occurred in 1972 with Commonwealth v. Rhome.201 Rhome had been convicted of committing an assault with intent to commit sodomy by approaching an undercover police officer in a public restroom and engaging him in conversation while rubbing the officer’s crotch area.202 Rhome was arrested when, while still rubbing the officer’s crotch, he said: "It won’t take long to get this started."203 Judge J. Sydney Hoffman, speaking for a 6-1 majority of the Superior Court, noted that the sodomy law of Pennsylvania was limited to oral and anal sexual acts and, therefore, soliciting for some other sexual act did not fall under the law.204 He noted that Rhome could have wanted to engage in some other sexual activity that was legal and, in that case, "the jury should not have been allowed to guess and speculate as to the intent of the appellant."205

In a comprehensive criminal code revision in 1972,206 Pennsylvania abrogated common-law crimes207 and revised the sodomy law. First, it was renamed "voluntary deviate sexual intercourse," and the penalty was reduced from a felony to a misdemeanor, with a new maximum penalty of two years in prison.208 Married couples were exempted from the law.209

A challenge to the constitutionality of the sodomy law in federal court was unsuccessful in the 1973 case of United States v. Brewer.210 Brewer was a convict in federal prison and had been convicted of assault with intent to commit sodomy while in prison. Judge Malcolm Muir, while acknowledging that the law might be unconstitutional as applied to consenting adults, said it was constitutional as to prisoners. He discussed Jewish law and Puritan beliefs of this "so-called victimless crime[.]"211 Muir found the law constitutional as applied to prisoners because of the "serious problem" of prison rapes that meant "prohibition of consensual sodomy in prison cannot be viewed as unconstitutional legislation."212 Muir did not explain the link between rape and consensual sex. On appeal,213 the Third Circuit Court of Appeals affirmed without opinion. The U.S. Supreme Court refused to review the decision.214

This law’s constitutionality was upheld by state courts in 1974 in Commonwealth v. Fetzer et al.215 This was a consolidation of six cases of Gay men arrested for consensual sexual relations. The Court rejected the claim that the exemption of married persons was an impermissible distinction, while giving no analysis other than that the law promotes "order, safety and morality in the community."216

Despite this admonition, the frustration of enforcing this law led to the adoption of a program, at least in Philadelphia, of counseling in lieu of jail for those arrested for such crimes as sodomy, indecent exposure, loitering, and open lewdness.217

In 1975, a federal court, in the case of Kroehler v. Scott,218 issued an injunction against police surveillance of public restrooms in the Lancaster area. Police had drilled holes in the ceilings above toilet stalls, and this was considered an invasion of privacy.219

The marital exemption in the 1972 sodomy law brought down the whole law in the 1980 case of Commonwealth v. Bonadio et al.220 In only the second sodomy case ever decided by the Pennsylvania Supreme Court, it divided 4-3 to strike down the "voluntary deviate sexual intercourse" statute because of its discrimination against the unmarried, thereby overruling the Fetzer decision. In a decision that can be classified only as judicial legislation, in which it was overly eager to strike down the law, the Court found that the unmarried heterosexual defendants could not be prosecuted for their private, consensual relations if married people couldn’t.221 The problem with the majority’s analysis, as the dissenters heatedly pointed out, was that the acts did not occur in private. They occurred inside a theatre on a stage in front of an audience.222

Period Summary: After considerable agitation from law reviews and investigative committees, Pennsylvania adopted a psychopathic offender law during the McCarthy era. Although the law was praised greatly, it was one of the first to be found unconstitutional. Courts dealt with several reported cases of clearly private, consensual sodomy and consistently upheld the convictions. A new criminal code in 1972 reduced the penalty for sodomy from a felony to a misdemeanor and exempted married couples from its coverage, although this exemption caused the Pennsylvania Supreme Court to strike down the law in a 1980 case. The legislature chose not to reinstate the law with applicability to married couples. Pennsylvania did join the club of states ruling that sex in enclosed restroom stalls had constitutional protection.

The Post-Hardwick Period, 1986-Present

In 1993, a public lewdness conviction was overturned by a federal court in United States v. Malone.223 Malone had been arrested in a national park for rubbing his crotch and touching the hand of an undercover federal agent, Michael Hetrick. Judge J. William Ditter held that Malone’s actions were not seen by anyone and Hetrick had led him on, leading him to believe that he would consent to sex. Ditter read the statute literally, that Malone had to know that his actions were likely to be seen. Since the government had not proven that he knew that he was seen, no conviction could be had.224

In 1995, after the passage of a decade-and-a-half from the "deviate sexual relations" law’s invalidation by the Pennsylvania Supreme Court, the voided statute was removed from the code of laws in a new sex offenses law.225

Later in the year, a federal court decided United States v. Mather and Linn,226 another case dealing with sex in a federal park. Valley Forge National Historical Park ranger Duane Buck, who had been involved in several previous arrests of men for sex in the park,227 followed Mather and Linn off a path and witnessed them masturbate in front of each other, then witnessed one fellate the other. Buck watched the sex for two minutes before making the arrests. Mather and Linn tried to leave when confronted, but Buck called for "assistance" in making the arrests, then handcuffed the two men. Mather "agitatedly" asked Buck, "Why don’t you go harass some straight people?" For this, Buck added a charge of "interference with agency function."228 Judge Stewart Dalzell, stating that "a national park is the quintessential public place," sustained the disorderly conduct charge against the defendants. Nothing in the opinion discusses the "interference with agency function" charge.

Period Summary: A more liberal interpretation of privacy rights led to a federal court decision that opened up national parks to possible consensual sexual activity, although another court’s more restrictive decision made victory in court a game of Russian roulette.


Footnotes

1 The Statutes at Large of Pennsylvania, Vol. I, page 80, enacted Sep. 22, 1676.

2 Id.

3 Duke of York Laws 1676-1700, (Harrisburg:Lane S. Hart, 1879), page 110, ch. IX, enacted Dec. 7, 1682.

4 Id.

5 Id. note.

6 Id. at 225-226.

7 Pennsylvania law for quite some time referred to "sodomy" and "buggery" as apparent references to "buggery" and "bestiality." Buggery’s definition does not include sexual activity with an infrahuman animal, but it apparently was used that way in Pennsylvania. The use of the terms changed with the passage of different laws.

8 The Statutes at Large of Pennsylvania, Vol. I, pages 210-211. The restoration took place Aug. 20, 1694.

9 The Statutes at Large of Pennsylvania, Vol. II, page 8, enacted Nov. 27, 1700.

10 Id.

11 The Statutes at Large of Pennsylvania, Vol. II, pages 77-79, enacted Nov. 27, 1700.

12 Id. at 77.

13 Id. at 79, IV.

14 The Statutes at Large of Pennsylvania, Vol. II, page 183, ch. CXXIV, enacted Jan. 12, 1706.

15 Id.

16 Id. at 233-236.

17 The Statutes at Large of Pennsylvania, Vol. II, page 199, enacted May 31, 1718.

18 Id.

19 Id. at 202, IV.

20 Alice Morse Earle, Curious Punishments of Bygone Days, (New York:Book League of America, 1896), pages 23-24.

21 The Statutes at Large of Pennsylvania, Vol. II, page 264, enacted May 5, 1722.

22 Id. I.

23 The Statutes at Large of Pennsylvania, Vol. X, page 67, ch. DCCCLXXXI, enacted Mar. 1, 1780.

24 Id. at 70, IV.

25 Minutes of the Supreme Executive Council of Pennsylvania, (Harrisburg:Theodore Fenn, 1853), page 588.

26 The Statutes at Large of Pennsylvania, Vol. XII, page 280, ch. MCCXLI, enacted Sep. 15, 1786.

27 Id. at 281, I.

28 Id. II.

29 The Statutes at Large of Pennsylvania, Vol. XV, page 174, ch. MDCCLXXVII, enacted Apr. 22, 1794.

30 Id. at 178, X.

31 Jonathan Katz, Gay American History, (New York:Crowell, 1976), pages 25-26.

32 The Statutes at Large of Pennsylvania, Vol. XVI, page 243, ch. MMLI, enacted Apr. 4, 1799.

33 Id.

34 The Statutes at Large of Pennsylvania, Vol. XVIII, page 239, ch. MMDLXCIX, enacted Mar. 21, 1806.

35 Id. at 240, IV.

36 Report of the Judges of the Supreme Court of Pennsylvania, of the English statutes which are in force in the commonwealth of Pennsylvania; and of those of the said statutes which, in their opinion, ought to be incorporated into the statute laws of the said commonwealth. Published in 3 Binney 599. The report was issued Dec. 14, 1808.

37 Since all the English statutes are listed chronologically, the Henrican law, 25 Henry VIII c. 6, should be listed on page 619 and the Elizabethan law, 5 Eliz. c. 17, should be listed on page 621.

38 Laws of the Commonwealth of Pennsylvania, from the Fourteenth Day of October, One Thousand Seven Hundred, Vol. V, (Philadelphia:John Bioren, 1812).

39 Id.

40 Laws of Pennsylvania 1828-29, page 341, No. 204, enacted Apr. 23, 1829.

41 Id. at 343.

42 Id. at 341, 1.

43 Id. 3.

44 (1) Vaux 4, decided Nov. 10, 1841.

45 Id. at 5.

46 Id. at 8.

47 Id. at 11.

48 Id.

49 Laws of Pennsylvania 1860, page 382, No. 374, enacted Mar. 31, 1860.

50 Id. at 392, 32.

51 Id. 33.

52 Id.

53 Id. at 432, 7.

54 Id. at 447, 73.

55 Id. at 450-451, 77.

56 Id. at 387, 10.

57 Laws of Pennsylvania 1879, page 148, No. 156, enacted June 11, 1879.

58 Id. 1.

59 14 Luz.L.R. 362, decided Oct. 26, 1885.

60 Id. at 362-363.

61 Id. at 363.

62 Id. at 363-364.

63 The Public Ledger, Apr. 19, 1890. The page citation is not given on the copy sent to me, but it appears in column 1.

64 Id. 2.

65 Id.

66 Id.

67 Id. 3.

68 Id. 9.

69 Laws of Pennsylvania 1891, page 303, No. 233, enacted June 16, 1891.

70 Id. at 304, 2.

71 21 Pa.C.C. 625, decided Jan. 16, 1899.

72 Id. at 626.

73 Id.

74 Laws of Pennsylvania 1909, page 495, No. 275, enacted May 10, 1909.

75 Id. 1.

76 Oregon Journal, Dec. 31, 1912, 5:7; Portland News, Jan. 3, 1913, page 1.

77 Laws of Pennsylvania 1915, page 499, No. 214, enacted May 14, 1915.

78 Id.

79 33 Lanc.L.R. 281, decided June 24, 1916.

80 Id.

81 67 Pa.Super.Ct. 168, decided July 13, 1917.

82 Id. at 169.

83 Laws of Pennsylvania 1917, page 1000, No. 322, enacted July 16, 1917.

84 Id. 1.

85 Id.

86 Id. 2.

87 Id. 3.

88 38 Lanc.L.R. 425, decided Jan. 13, 1923.

89 Id.

90 169 A. 238, decided Dec. 16, 1933.

91 Id. at 240.

92 Id.

93 Id. In a male-male child molestation trial in Georgia in 1991, the defendant was required to expose his penis to the jurors because the teenager who claimed that he was molested said that his penis and the defendant’s looked alike. As it turns out, the adult never had been circumcised, whereas the teenager had. The exposure resulted in the defendant’s acquittal. The teenager was not required to expose himself. Columbus Dispatch, Feb. 17, 1991, 9A:1.

94 Laws of Pennsylvania 1939, page 872, enacted June 24, 1939.

95 Id. at 905, 501.

96 Id. at 1027, 1101.

97 136 Pa.Super.Ct. 306, decided June 28, 1939.

98 Id. at 307.

99 Laws of Pennsylvania 1941, page 861, No. 323, at 870, 25, enacted Aug. 6, 1941.

100 47 A.2d 197, decided May 27, 1946.

101 Id. at 200.

102 Martin W. Barr, "Some Notes on Asexualization; with a Report of Eighteen Cases," Journal of Nervous and Mental Diseases, 51:231-241 (1920).

103 Id. at 233.

104 Id. at 234.

105 Id. at 237.

106 Id. at 239.

107 Id. at 239-240.

108 "F.P.F," "The Legal Disposition of the Sexual Psychopath," 96 U.Penn.L.Rev. 872 (1948).

109 Id. at 874-876.

110 Id. at 884, 2(a)(1).

111 Id. 2(b).

112 Id. at 885, 4(a).

113 Id. 4(c).

114 Id. at 886, 6(b).

115 Norris S. Barratt, "A Suggested Technique of Handling the Abnormal Sex Offender Under Existing Pennsylvania Law," The Legal Intelligencer, July 30, 1948, 1:3.

116 Id.

117 Edward E. Mayer, "The Sex Deviate," Pennsylvania Medical Journal, 53:32-38 (Jan. 1950).

118 Id. at 32.

119 Id. at 36.

120 Id. at 37.

121 Id. at 38.

122 Id.

123 70 A.2d 684, decided Jan. 12, 1950.

124 Id. at 684-685.

125 66 Montg.Co.L.R. 118, decided Feb. 10, 1950.

126 Id. at 119-120.

127 72 D.&C. 459, decided Apr. 12, 1950.

128 Philadelphia’s New Criminal Procedure for the Abnormal Sex Offender, reprinted from The Legal Intelligencer, Dec. 11, 1950.

129 Id. at 3.

130 Id. at 5.

131 Id.

132 Id.

133 Id.

134 Id. at 7.

135 Id. at 6.

136 68 Montg.Co.L.R. 80, decided Dec. 31, 1951.

137 Id. at 81.

138 "Sex Offenders," A Report of the Joint State Government Commission to the General Assembly of the Commonwealth of Pennsylvania, Session of 1951.

139 Id. at 11.

140 Id. at 17.

141 Laws of Pennsylvania 1951-52, page 1851, No. 495, enacted Jan. 8, 1952.

142 Id. 1.

143 Id.

144 Id. 2.

145 53 Lanc.L.R. 137, decided May 23, 1952.

146 Id. at 138.

147 Id. at 140.

148 45 Luz.L.R. 32, decided Mar. 4, 1953.

149 Id.

150 Id.

151 69 Montg.Co.L.R. 225, decided Mar. 5, 1953.

152 Id. at 227.

153 Id. at 225.

154 Laws of Pennsylvania 1953, page 276, No. 50, enacted June 13, 1953.

155 Id.

156 Id.

157 88 D.&C. 524, decided Jan. 14, 1954.

158 Id. at 526-527.

159 44 Luz.L.R. 293, decided Dec. 7, 1954.

160 Id.

161 Id. at 295.

162 118 A.2d 258, decided Nov. 16, 1955. Application for allocatur denied Jan. 31, 1956. Cert. denied, 352 U.S. 823, decided Oct. 8, 1956.

163 118 A.2d, at 260.

164 Id. at 262.

165 118 A.2d 263, decided Nov. 16, 1955. Application for allocatur denied Jan. 31, 1956.

166 Id. at 268.

167 11 D.&C.2d 654, decided Oct. 15, 1956.

168 Id. at 655-658.

169 19 Camb.Co.L.J. 141, decided Oct. 15, 1956.

170 Id. at 143-146.

171 132 A.2d 369, decided June 11, 1957.

172 Id. at 371.

173 Id. at 372.

174 Id. at 373.

175 132 A.2d 889, decided June 11, 1957. Application for allocatur denied Aug. 2, 1957.

176 Id. at 889-890.

177 Id. at 890.

178 45 Del.Co.R. 350, decided July 31, 1958.

179 21 Monroe L.R. 205, decided Nov. 30, 1959.

180 58 Lanc.L.R. 493, decided Aug. 9, 1963.

181 Id. at 494.

182 201 A.2d 319, decided June 11, 1964. Application for allocatur denied July 27, 1964.

183 Id. at 321-322.

184 235 F.Supp. 588, decided Nov. 24, 1964.

185 355 F.2d 302, decided Jan. 11, 1966.

186 Id. at 313.

187 85 Dauph. 203, decided Apr. 26, 1966.

188 Id. at 204-205.

189 31 Leh.L.J. 548, decided May 24, 1966.

190 Id. at 550-551.

191 Id. at 552.

192 Id.

193 80 York L.R. 154, decided Dec. 12, 1966.

194 Id. at 154-155.

195 209 Pa.Super.Ct. 519, decided June 16, 1967.

196 17 Ches.Co.Rep. 23, decided Aug. 2, 1968.

197 Id. at 33.

198 Id.

199 Id. at 40.

200 94 Dauph. 236, decided Dec. 13, 1971.

201 292 A.2d 437, decided June 16, 1972.

202 Id.

203 Id.

204 Id. at 438.

205 Id.

206 Laws of Pennsylvania 1972, Vol. 2, page 1482, No. 334, enacted Dec. 6, 1972, effective June 6, 1973.

207 Id. 106 (7).

208 Id. 3124.

209 Id. at 1529, 3101.

210 363 F.Supp. 606, decided Sep. 4, 1973.

211 Id. at 607.

212 Id. at 608.

213 491 F.2d 751, decided Dec. 19, 1973.

214 416 U.S. 990, decided May 13, 1974.

215 64 Lanc.L.R. 265, decided Sep. 23, 1974.

216 Id. at 266.

217 The Advocate, Vol. 133 (Mar. 13, 1974), page 15.

218 391 F.Supp. 1114, decided Mar. 13, 1975.

219 Id. at 1116-1117.

220 415 A.2d 47, decided May 30, 1980.

221 Id. at 51-52.

222 Id. at 52-53.

223 822 F.Supp. 1187, decided June 1, 1993.

224 Id. at 1189.

225 Laws of Pennsylvania 1995, Act 1995-10, 7, enacted Mar. 29, 1995.

226 902 F.Supp. 560, decided Oct. 27, 1995.

227 Judge Dalzell, while uncomfortable with sex in parks, seemed equally uncomfortable with Buck’s legacy of numerous arrests for consensual sex. Dalzell noted that "Ranger Buck has figured in similar cases before." Id. at 561, n.1. Dalzell also referred to "the ubiquitous Ranger Buck" as arresting two men for kissing in the park. Id. at 563.

228 Id. at 561.


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