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

Vermont

The Post-Revolution Period, 1776-1873

By a statute of 1779,1 Vermont adopted the common law of England "as it is generally practised [sic] and understood in the New England States[.]"2 This definition was curious in that Massachusetts (including Maine) never recognized English common-law crimes and, in New Hampshire, common-law crimes were abrogated by the Revolution. Thus, what might be recognized as a crime in Vermont was unclear.

The original statute was replaced by that of 17823 that adopted not only the common law, but also all statutes passed by Parliament before October 1, 1760,4 that would include the Elizabethan buggery law of 1562.5

In 1796, the common-law statute was amended6 to read that only "so much of the common law of England as is not repugnant to the constitution or to any act of the legislature of this state" would be adopted in Vermont.7 The preamble hinted at legal confusion in the state by mentioning that

it is difficult at once to provide a system of maxims and precedents, which may in all cases be necessary as a guide and direction to the several courts of justice within this state, and for producing uniformity of decisions in the same[.]8

In 1861, when Great Britain reduced the maximum penalty for sodomy from death to life imprisonment,9 this became the law in Vermont, due to its adoption of the common law.

In 1862, the Vermont Supreme Court decided LeBarron v. LeBarron.10 This case, although not dealing with a Gay or Lesbian issue, is of importance to Gay and Lesbian history because in it the Vermont Supreme Court held that the English common law, which Vermont adopted in toto, included all ecclesiastic law. A woman sought an annulment of her marriage due to impotence of her husband. He resisted her request for a medical examination to prove her allegation. The Court said that ecclesiastic law required such an examination and that it could be compelled if resisted by the subject party,11 even in the absence of authority by statute. This decision gave the go-ahead to enforcement of religious dogma by state courts.

Period Summary: Vermont existed off the English common law and English statutes, but started off awkwardly by recognizing common law that might not be enforceable in the state. It corrected this oversight with a statute adopting all English common law and statutes that included the English buggery law.

The Victorian Morality Period, 1873-1948

In an 1899 case, State v. LaForrest,12 the Vermont Supreme Court decided unanimously that the common-law statute made sodomy a criminal offense,13 rejecting the arguments of defendant John LaForrest that the court was violating its own rule in LeBarron, in which the Court stated that "[o]ur adoption of the common law did not embrace parliamentary legislation." Apparently the Court saw an important difference between adultery and sodomy because it cited the long legal history in England of penalties for sodomy.14 The court further stated that the punishment by fine, imprisonment, or both, was entirely up to the discretion of the trial court.15

In 1915, finally confronting the issue of whether the Vermont common-law reception statute also received English court precedents construing the common law, the Vermont Supreme Court said "no" in the case of In Re Heaton’s Estate.16

The Vermont legislature never did enact a sodomy statute, leaving the penalty and, apparently, the definition of what constituted the act to the trial court or jury. However, in 1937, the state adopted a statute17 to outlaw "lewdness." Section 2 commanded that

[a]ny person participating in the act of copulating the mouth of one person with the sexual organ of another shall be imprisoned in the state prison not less than one year nor more than five years.18

In 1943, Vermont enacted a psychopathic offender law19 that was among the broadest in the nation. Commitment and "treatment" were prescribed for persons with a "psychopathic personality"20 or who were guilty of "gross immorality conduct" [sic] that did not necessarily have to be criminal.21 Those committed had to remain until they were no longer "considered dangerous to public welfare."22

This law was limited in 194523 to those convicted of any felony (which would include sodomy), or of a misdemeanor for a third time.24

Period Summary: Although no sodomy law was enacted by Vermont, a decision by the Vermont Supreme Court held that sodomy was indictable under the common-law provision. Nearly 40 years later, a law outlawing oral sex, something not indictable under the common law, was enacted. Vermont passed one of the earlier psychopathic offender laws, and its first attempt was so broad in its coverage that it needed to be revised at the next session of the legislature to limit its coverage to felonies and repeat misdemeanors.

The Kinsey Period, 1948-1986

The psychopathic offender law was repealed in a comprehensive revision of the state’s mental health laws in 1968.25 This was the first psychopathic offender law in the nation to be repealed.

In 1972, the legislature adopted a new Correction Code26 that changed a number of sections of state law27 to eliminate the compulsory imprisonment requirement in any of three specified penal institutions. This would allow the violator to be sent to the state prison, the house of correction, or a county jail, at the trial court’s discretion. The oral copulation statute required violators to be sent to the state prison.

A comprehensive revision of sexual assault laws in 197728 repealed the oral copulation statute.29

Period Summary: Vermont became the first state in the nation to repeal its psychopathic offender law, in 1968. A sexual assault revision law repealed the statute prohibiting consensual oral sex, but did not eliminate the common-law provision.

The Post-Hardwick Period, 1986-Present

The common-law reception statute remains in force in Vermont.30 This creates the situation that consensual anal sex still can be prosecuted in the state, if a local prosecuting attorney feels compelled to do so, although private, consensual oral sex is outside of the law’s grasp.

Period Summary: Because the common-law provision remains viable in Vermont, anal sex can be prosecuted if any prosecutor feels inclined to do so. There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars.


Footnotes

1 Vermont State Papers, Being a Collection of Records and Documents, (Middleburg VT:J.W. Copeland, 1823), page 287, enacted Feb. 11, 1779.

2 Id. at 288.

3 Id. at 450, enacted June 1782.

4 Id.

5 5 Eliz. c. 17.

6 Laws of Vermont 1796, page 4, enacted Nov. 5, 1796.

7 Id. at 4-5.

8 Id. at 4.

9 25 Vict. c. 99, enacted Aug. 6, 1861.

10 35 Vt. 365, decided November 1862.

11 Id. at 368.

12 45 A. 225, decided May 6, 1899.

13 Id. at 226.

14 Id.

15 Id.

16 96 A. 21, at 29, decided Nov. 23, 1915.

17 Vermont Public Acts 1937, page 251, Act No. 211, enacted Feb. 18, 1937.

18 Id. at 252.

19 Vermont Public Acts 1943, page 120, Act No. 100, enacted Mar. 22, 1943.

20 Id. 1.

21 Id.

22 Id. 4

23 Vermont Public Acts 1945, page 153, Act No. 116, enacted Apr. 9, 1945.

24 Id. 4.

25 Vermont Public Acts 1967, Adj. Sess., page 212, Act No. 305, enacted Mar. 22, 1968, effective Oct. 1, 1968.

26 Vermont Public Acts 1971, Adj. Sess., page 207, Act No. 199, enacted Mar. 31, 1972.

27 Id. at 212, 15.

28 Vermont Public Acts 1977, page 145, Act No. 51, enacted Apr. 23, 1977, effective July 1, 1977.

29 Id. 2. The law was codified as V.S.A. 2603 in the codification of 1947.

30 V.S.A. Title 1, 271.


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