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

Tennessee

"It would not be amiss for the legislature to take a new and fresh look at Tennessee’s 150-year-old ‘crime against nature’ statute. Such a re-evaluation, in the light of modern mores and morality, would be in the public interest and would be of substantial assistance in the administration of criminal justice."

The Post-Revolution Period, 1776-1873

Upon the organization of Tennessee as a territory in 1790, it received the laws of North Carolina.1 This included the English buggery law, since North Carolina recognized it.

Tennessee did not enact its own sodomy law until 1829 when it adopted a new criminal code.2 The sodomy law stated

Whoever shall commit either of the infamous crimes against nature called sodomy and buggery shall undergo confinement in said Jail and Penitentiary house for a period of not less than five nor more than fifteen years.3

This law recognized two crimes against nature, but it is unclear to what acts they referred. The term "sodomy" is the genus of the crime, with "buggery" and "bestiality" as its species.

In 1858, the Tennessee legislature authorized a new code,4 but forbade the compilers from making any substantive changes in the laws of the state.5 In a rare instance of actually following the command of the legislature on this matter, the compilers reworded the law only slightly to read

Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five nor more than fifteen years.6

Thus, the law continued to recognize more than one such crime, and apparently was clarified so that "sodomy" and "buggery" became "mankind" and "beast," even though buggery is not defined as sexual relations with an infrahuman animal.

Period Summary: Tennessee passively criminalized sodomy by receiving the laws of North Carolina, one of which was a statute adopting the laws of England. The first sodomy statute, adopted in 1829, referred to the infamous "crimes" against nature, but used the terms "sodomy" and "buggery" as explanations. It appears that the state meant to make reference to buggery and bestiality, which are the two forms of sodomy. However, in a new code of 1858, matters were clarified to a degree with retention of the plural "crimes" against nature, but with specific reference to "mankind" and "any beast." Curiously, however, the pluralized term may have authorized prosecution for any form of erotic activity with either another human or a beast.

The Victorian Morality Period, 1873-1948

In 1943, in an unreported decision, Brewer v. State,7 the Tennessee Supreme Court interpreted the "crime against nature" to include fellatio. Brewer was a minor who received the minimum sentence of five years at the state training and agricultural school. Refusing to give detail to its reasoning, the Court said

We prefer to align ourselves with those Courts that give a broad rather than a narrow interpretation to the meaning of the words "crimes against nature" used in our Statute.8

Period Summary: There were no changes to the sodomy statute and no published cases dealing with the issue during this entire period. An unreported decision late in the era ruled that "crime against nature" embraced fellatio. It is unclear why such an important decision would go unreported by the Tennessee Supreme Court, unless the subject was too embarrassing for the Court.

The Kinsey Period, 1948-1986

The first reported sodomy case in Tennessee was from 1955, Fisher v. State.9 The Tennessee Supreme Court again ruled unanimously that fellatio was a violation of the law. The Court was critical of the precedental English case that ruled the opposite way, saying that it was "more or less perfunctory and was arrived at with apparently no reason."10 The Court gave no reasons of its own for deciding the opposite way. It did, however, make a reference to the Brewer case above.11

In 1956, in State v. Johnson,12 the Tennessee Supreme Court upheld a 5-year sentence, the minimum that could be given under the law, of a 17-year-old defendant.13

Tennessee was among the last states to enact a "psychopathic offender" law, in 1957.14 The law defined a sex offender as one who

by a course of misconduct in sexual matters has evidenced a general lack of power to control his sexual impulses, and who, as a result, is likely to attack or otherwise inflict injury, degradation, pain or other evil on the objects of his uncontrollable desires.15

Furthermore, "sex offenders constitute a species of insane persons in the eyes of the General Assembly"16 and anyone convicted of any "sex crime" was to be examined after admission to a penal institution.17 Any treatment thought necessary was required to be provided to the offender.18

In 1957, the Supreme Court, dividing 4-1, upheld a conviction for "felonious assault" in Valley v. State.19 The "assault" consisted of the solicitation and attempted fondling of a teenage male. In dissent, Chief Justice A.B. Neil believed that Valley had committed "no overt act which would warrant his conviction" on an assault charge.20 The facts of the case

tend to show that he is a sex pervert. He doubtless had the desire to have an unnatural sex relation with this boy, which is a felony under the statute, and an attempt to have such relationship, if shown by some overt act, would also amount to a felony and be punishable as such.21

Noting that Valley only had "tried" to touch the complainant, Neil believed that this was "only a manifestation of his desire to commit [sodomy]."22

In 1959, in Sherrill v. State,23 the Tennessee Supreme Court ruled that prosecuting witnesses as young as 10 years of age had to be corroborated.24 The conviction was overturned for lack of corroboration, even though one of the boys involved was treated for venereal disease after his alleged sexual relations with the defendant.25

Tennessee revised its psychopathic offender law in 196326 to limit the reach of its provisions to activity with minors.27

In the 1964 case of Boulton v. State,28 the Tennessee Supreme Court unanimously overturned the sodomy conviction of the defendant. Boulton, a teacher, had been convicted of fellating a 14-year-old former student. The Court found relevant the fact that, of all the boy’s family, only his sister, who apparently had a running feud with Boulton, had reacted negatively to his relationship with her brother.29 The state attempted to prove that Boulton’s statement about the young man, "I love him just like he was mine," was evidence of "a display of affection by him toward the boy which is abnormal between unrelated persons of the same sex." 30 The Supreme Court did not agree that such words were "unnatural." 31

In 1970, a federal court dealt with the case of Polk v. Ellington.32 The court rejected a constitutional challenge to the sodomy law, but did not give any analysis for its reasoning other than stating that it knew of no other federal court case striking down such laws. 33

In 1971, in Scola v. State,34 the Court of Criminal Appeals overturned a sodomy conviction because of "inconsistencies and contradictions" in testimony35 and the fact that the 15-year-old prosecuting witness, an accomplice, had no corroboration for his testimony. 36

The constitutionality of the crime against nature law was challenged unsuccessfully in the 1972 case of Stephens v. State. 37 The term "crime against nature" was "well defined and described at common law."38

In 1973, in Locke v. State,39 cunnilingus was found to be a violation of the crime against nature law. The Court of Criminal Appeals split 2-1 to uphold the conviction by saying that it would be

a paradox of legal construction to say that fallatio [sic]...is proscribed as a crime against nature, but cunnilingus is not.40

The Court refused to decide the constitutionality of the crime against nature law as it applied to married couples because that issue was not properly before them.41 In dissent, Judge Charles Galbreath believed that the majority was in error to state that the weight of case law was on the side of cunnilingus being included within the term crime against nature.42 He noted that a study published in Playboy magazine revealed that 90% of adults under age 35 approved of cunnilingus, and felt that the ruling against it was "judicial legislation of the plainest kind." 43 Galbreath also questioned why this crime was the only one in the state’s criminal code that was not defined. 44 He was bothered by Locke’s apparent solitary status in criminal annals in Tennessee. Locke

here has the dubious distinction of being the only person in the history of this State, so far as reference to our case law is concerned, who has ever been sentenced to prison for committing this act which, as aforesaid, has been statistically attributed to some 46% of the adult population. 45

A proposed comprehensive criminal code revision of 197346 would have abrogated common-law crimes47 and repealed the sodomy law with an age of consent of 16. 48 This new code never was adopted by the Tennessee legislature.

In Morris v. State, 49 from 1975, the Court of Criminal Appeals upheld a sodomy conviction over an objection that women had been excluded systematically from the jury pools. The Court noted that Morris had not properly presented this point. 50

In another 1975 case, Young v. State,51 the Tennessee Supreme Court, in unanimously upholding a sodomy conviction, nevertheless said that it

would not be amiss for the legislature to take a new and fresh look at Tennessee’s 150-year-old "crime against nature" statute. Such a re-evaluation, in the light of modern mores and morality, would be in the public interest and would be of substantial assistance in the administration of criminal justice. 52

In 1977, the psychopathic offender law was amended53 to limit the sex crimes for which it would be operative to incest, crime against nature, assault with intent commit rape, and rape. 54

In late 1978, a Tennessee judge dismissed solicitation charges against four men because he construed a 1977 sexual assault revision law as repealing "by implication" the "crime against nature" law. 55

The legislature responded to this action in 1979 by passing a law56 overturning the judge’s action, limiting the scope of the previous sexual assault reform law. 57 Nothing in that law

shall be construed to expressly or impliedly repeal the crime against nature law or any common law sexual offense that is recognized by the courts of the state of Tennessee or any other section of the Tennessee Code Annotated which was not expressly repealed by the Sexual Offenses Law of 1977. 58

In 1979, the Court of Criminal Appeals upheld an attempted sodomy conviction in Edmondson v. State. 59 The 13-year-old partner of Edmondson was scheduled to testify against him, but turned hostile to the prosecution on the witness stand. He denied all necessary elements of the crime, but the jury returned a guilty verdict nonetheless.

Period Summary: A number of reported sodomy cases occurred during this era, with the prosecution generally winning. The Tennessee legislature embraced neither the Model Penal Code, nor a proposed code specific for the state that also recommended decriminalization of consensual sodomy, nor the suggestions of the relatively liberal Tennessee Supreme Court that they reexamine the state’s sodomy law. In fact, it responded negatively when a judge ruled that a new sexual assault law repealed the sodomy law by implication, when it adopted a law that stated the sodomy law remained in effect.

The Post-Hardwick Period, 1986-Present

A decade later, in 1989, the Tennessee legislature enacted a comprehensive criminal code revision. 60 Common-law crimes were abrogated, 61 but the crime against nature law was not repealed. The replacement crime was called "Homosexual Acts" and established a penalty of up to 30 days in jail and/or a fine of up to $50 for cunnilingus, fellatio, or anal intercourse "with a person of the same gender." 62

The Tennessee Supreme Court decided in 1992, in a non-sodomy case, Davis v. Davis, 63 that there was a right to privacy under the Tennessee Constitution, even though there is no privacy language found there. Although focusing on procreation, and referring to the "fundamental" rights under the federal constitution (which exclude homosexual sexual activity, per the U.S. Supreme Court), Justice Martha Daughtry stated that the

right to privacy, or personal autonomy, ("the right to be let alone"), while not mentioned explicitly in our state constitution, is nevertheless reflected in several sections of the Tennessee Declaration of Rights[.] [Emphasis added]. 64

As a result of that right of privacy decision, a court suit, Campbell et al. v. Sundquist et al., was filed against the Tennessee "homosexual conduct" law. 65 In late 1994, the trial judge, Walter Kurtz, issued a memorandum in the case that sexual activity could not be prohibited merely because the state believes it to be immoral. 66 He then struck down the law as violative of the right to privacy under the state constitution. 67

In 1996, on appeal, the Court of Appeals affirmed Kurtz. 68 Curiously, the vote was unanimous as to the unconstitutionality of the law, but only 3-2 on the issue of standing. Judge William Crawford wrote the opinion that disposed of technical points raised by the state, then got to the issue of a right to privacy. The state argued that the parameters of the state’s right to privacy were identical to those under the Federal Constitution. 69 Crawford answered the state that the court thought

it is consistent with this State’s Constitution and constitutional jurisprudence to hold that an adult’s right to engage in consensual and noncommercial sexual activities in the privacy of that adult’s home is a matter of intimate personal concern which is at the heart of Tennessee’s protection of the right to privacy, and that this right should not be diminished or afforded less constitutional protection when the adults engaging in that private activity are of the same gender. 70

Crawford listed the state’s five proffered "compelling" justifications for the law, then picked them apart one by one. First, the state argued that same-sex relationships can not lead to procreation. Crawford responded that the U.S. Supreme Court’s Griswold decision, as well as the Davis decision above left the choice of procreation to individuals, rather than the government. 71 Second, the state argued that same-sex relationships were socially stigmatized and lead to a higher risk of suicide, depression, and substance abuse. Crawford’s answer was that the U.S. Supreme Court had issued decisions banning restrictions of individual liberty because of public bias, and that there was no single "lifestyle" among Gay or Lesbian individuals against which suicide, depression, or substance abuse could be measured. 72 Third, the state argued that such relationships were "short-lived" and, thus, unstable. Crawford said that the state failed to produce any such evidence. 73 Fourth, the state raised the specter of spreading disease as a compelling state interest. Crawford noted that the statute under attack was not tailored narrowly to advance this interest, being that it outlawed sexual activity "even if the people involved are disease free, practicing ‘safe sex’, or engaging in sexual contact which does not contribute to the spread of disease." 74 [Footnote omitted.] Fifth, the law allegedly advanced the morals of the citizens of Tennessee. This led to the longest response. Crawford approved of language from the U.S. Supreme Court that public expression of moral beliefs can not be used to suppress unpopular minorities. He then lengthily quoted from the Kentucky Wasson decision (q.v.) and the Pennsylvania Bonadio decision (q.v.), both of which struck down those state’s consensual sodomy laws, accepting their rationale.75 Costs of the appeal were assessed against the state. 76 Judge Ben Cantrell, joined by one other judge, dissented from the technical part on standing that opened Crawford’s opinion. He believed that, since there had been no prosecution under the law, there could be no standing to challenge it. Interestingly, both judges formally joined the portion of the opinion striking down the law on broad privacy grounds. 77

After more than two decades of hinting and prodding the legislature, the Tennessee Supreme Court accomplished its goal by refusing to review the decision and asking the Court of Appeals to publish its decision, thus making it a precedent. 78

The age of consent is 18. 79

Period Summary: After considerable agitation, a comprehensive criminal code revision was enacted in 1989. The crime against nature law, with a 5-15-year felony penalty was replaced by a misdemeanor law made applicable only to people of the same sex. Coming as it did after the U.S. Supreme Court upheld the Georgia law and during the AIDS crisis, the action of the legislature was not surprising. However, a specific right to privacy was identified under the Tennessee constitution by the state’s Supreme Court and that right was used to strike down the sodomy law in 1996.


Footnotes

1 Carruthers & Nelson, eds., Compilation of Statutes of Tennessee, (Nashville:James Smith, 1836), page 41, 8, enacted Apr. 2, 1790.

2 Laws of Tennessee 1827-30, page 27, ch. XXIII, enacted Dec. 9, 1829.

3 Id. at 29-30, 17.

4 Laws of Tennessee 1857-58, page 411, ch. 177, enacted Mar. 20, 1858.

5 Id.

6 The Code of Tennessee Enacted by the General Assembly of 1857-’8, (Nashville:E.G. Eastman and Company, 1858), page 868, 4843.

7 No. 5, (Knox County Criminal, Eastern Division of the Tennessee Supreme Court), decided Oct. 16, 1943.

8 Id. at 1-2.

9 277 S.W.2d 340, decided Mar. 11, 1955.

10 Id. at 341.

11 Id.

12 296 S.W.2d 832, decided Dec. 7, 1956.

13 Id. at 833.

14 Tennessee Public Acts 1957, page 938, ch. 288, enacted Mar. 22, 1957, effective July 1, 1957.

15 Id. 1.

16 Id. at 938-939, 2.

17 Id. at 939, 3.

18 Id. 4.

19 309 S.W.2d 374, decided Dec. 6, 1957. Rehearing denied Feb. 6, 1958.

20 Id. at 961. Neil’s dissent was published much later than the majority opinion and is found in a different part of the reporter.

21 Id.

22 Id.

23 321 S.W.2d 811, decided Jan. 23, 1959.

24 Id. at 816.

25 Id. at 813.

26 Tennessee Public Acts 1963, page 1133, ch. 315, enacted Mar. 25, 1963.

27 Id.

28 377 S.W.2d 936, decided Apr. 8, 1964.

29 Id. at 938.

30 Id. at 939.

31 Id.

32 309 F.Supp. 1349, decided Mar. 5, 1970. Supplemental order Apr. 6, 1970.

33 Id. at 1352.

34 474 S.W.2d 144, decided Aug. 31, 1971. Cert. denied by the Tennessee Supreme Court Dec. 6, 1971.

35 Id. at 145.

36 Id. at 146-147.

37 489 S.W.2d 542, decided Sep. 28, 1972. Cert. denied by the Tennessee Supreme Court Jan. 2, 1973.

38 Id. at 543.

39 501 S.W.2d 826, decided Oct. 2, 1973. Cert. denied by the Tennessee Supreme Court Nov. 5, 1973. Affirmed by the U.S. Supreme Court as Rose v. Locke, 428 U.S. 48, decided Nov. 17, 1975. Justices Brennan, Stewart, and Marshall dissented.

40 501 S.W.2d, at 828.

41 Id.

42 Id.

43 Id. at 828-829. The Playboy reference is in n.2.

44 Id. at 830.

45 Id.

46 Tennessee Criminal Code and Code of Criminal Procedure. Proposed Final Draft November, 1973, (Nashville:State of Tennessee Law Revision Commission, 1973).

47 Id. at 2, 39-103(a).

48 See generally chapter 18, pages 95-103. A lengthy analysis of the new code’s applicability to sodomy is found in Victor S. Johnson, "Crimes Against Nature in Tennessee: Out of the Dark and Into the Light?" 5 Memphis St.L.R. 319 (Fall 1974). The proposal was criticized in 1 Sex.L.Rep. 28.

49 532 S.W.2d 61, decided Oct. 7, 1975. Cert. denied by the Tennessee Supreme Court Dec. 30, 1975.

50 Id. at 63.

51 531 S.W.2d 560, decided Dec. 30, 1975.

52 Id. at 563.

53 Tennessee Public Acts 1977, page 1184, ch. 449, enacted May 26, 1977, effective immediately.

54 Id. at 1185, 2.

55 The Advocate, Vol. 259 (Jan. 11, 1979), page 13.

56 Tennessee Public Acts 1979, page 1065, ch. 415, enacted May 23, 1979, effective immediately.

57 Tennessee Code Annotated, 39-3701 through 39-3707.

58 Tennessee Public Acts 1979, ch. 415, 1.

59 579 S.W.2d 902, decided Jan. 17, 1979.

60 Tennessee Public Acts, 1989, ch. 591, enacted June 14, 1989, effective Nov. 1, 1989.

61 Id. 39-11-102.

62 Id. 39-13-510.

63 842 So.2d 588, decided June 1, 1992.

64 Id. at 600.

65 Washington Blade, Apr. 16, 1993, page 40; Lesbian/Gay Law Notes, Summer 1993, 48:2.

66 Washington Blade, Dec. 9, 1994, page 1; Lesbian/Gay Law Notes, January 1995, 1:1.

67 Washington Blade, Feb. 3, 1995, page 16. The case was decided Feb. 2, 1995.

68 926 S.W. 2d 250, decided Jan. 26, 1996.

69 Id. at 258-259.

70 Id. at 262.

71 Id. at 263.

72 Id.

73 Id.

74 Id.

75 Id. at 265-266.

76 Id. at 266.

77 Id.

78 Id. at 250.

79 Tennessee Revised Statutes 39-13-506.


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