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
The Victorian Morality Period, 1873-1948
The Territory of American Samoa was acquired from Germany by
the Convention of 18991
but sodomy never was a criminal offense until the Samoan legislature was given
Period Summary: This distant territory, heavily
Polynesian, remained a land outside the consciousness of most of the
country. The Polynesian cultures acceptance of homosexuality showed in
the lack of local regulation of it, but the U.S. Congress, technically its
legislature through this time period, failed to enact a criminal code for
the territory. For more than six decades from the time of its acquisition,
sodomy remained legal.
The Kinsey Period, 1948-1986
The first sodomy law was enacted in 19633
and was a verbatim adoption of the law of Georgia with a penalty of up to 10
years for "carnal copulation against the order of nature, by man with
man, or in an unnatural manner with woman[.]4
Thus, Lesbians could not be prosecuted in the territory.
A comprehensive criminal code revision adopted in 19795
redefined sodomy so as to exclude consenting adults from coverage, with the
age of consent set at 15.6
Common-law crimes were abrogated.7
There is no case law prior to the decriminalization.
Period Summary: Once
Congress exercised criminal jurisdiction over the territory, morals of
another culture were superimposed on it. The sodomy law of 1963 was a
verbatim enactment of the Georgia law, leading one to believe that a
Georgian in Congress authored the code. Because of the unusual wording of
the Georgia (and hence American Samoa) sodomy law, Lesbians could not be
prosecuted, but both Gay men and heterosexuals could. Once home rule
powers were given to the territory, it reverted to its traditions and
repealed the law.
The Post-Hardwick Period, 1986-Present
Period Summary: There are
no published cases dealing with the limits of state power to regulate
sexual activity in places such as restrooms or parked cars. Because of the
decriminalization of consensual sodomy, only that occurring in semi-public
places still may be subject to prosecution.
1 31 Stat. 1878, signed
Dec. 2, 1899.
2 Correspondence from Dennis
McKay, Assistant Legal Counsel to the American Samoa Legislature,
May 20, 1991.
3 Public Law 8-3, enacted Feb.
4 §26-5902, Georgia Code 1933.
5 Public Law 16-43, enacted
July 9, 1979, effective Jan. 1, 1980.
6 Id. at 59, §1105.
This was recodified as §46.3611 in the American Samoa Code Annotated
7 Public Law 16-43, §2.
Recodified as §46.3104 in the American Samoa Code Annotated (1981).
[History] [Sensibility of Our Forefathers]