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

West Virginia

 

The Post-Revolution Period, 1776-1873

West Virginia broke away from Virginia in a dispute over the Civil War and, in 1863, was admitted to the Union. Its first constitution mandated that laws of Virginia in effect at the time of separation would remain in force.1 This retained the 1860 "buggery" law of Virginia that established a penalty of 1-5 years.2 Common-law crimes also were recognized.3

Period Summary: West Virginia, which would not have existed if the Civil War had not occurred, kept all the laws of Virginia from which it divided. The operative Virginia law it thus obtained used the term "buggery" and a common-law definition.

The Victorian Morality Period, 1873-1948

The earliest known United States law journal article dealing with sodomy was in 1905 in West Virginia.4 Attorney E.D. Leach argued that "perverted sexual natures" were related to crime. "Sodomy, rape, lust-murder, bodily injury, theft, robbery, torture of animals, injury to property and many other crimes may be committed under these conditions."5

In 1917, a bill was introduced into the West Virginia legislature to expand coverage of the sodomy law to include oral sex by copying the laws of Ohio (q.v.), Iowa (q.v.), and Nebraska (q.v.). The bill passed the House of Delegates, but not the Senate.6

Despite this attempt, there was no change in the law until the adoption of a comprehensive code revision in 19307 that finally eliminated the term "buggery" and substituted "crimes against nature." It reworded the proscription as

If any person shall carnally know in any manner any brute animal, or carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than ten years.8

In the state’s first reported sodomy case, State v. Friedman,9 in 1942, the West Virginia Supreme Court decided that emission of semen was not required to complete the crime.10

Later the same year, in State v. Meadows,11 the West Virginia Supreme Court sustained the life imprisonment sentence of a man under the state’s habitual criminal statute for a second sodomy conviction following a liquor law conviction.12

Period Summary: An early attempt to broaden the sodomy law to include oral sex failed, and it was not until 1930 that the law was so changed. The term "buggery" finally was eliminated in this law as well.

The Kinsey Period, 1948-1986

In 1953, the same court, deciding State v. Gargiliana,13 overturned the sodomy conviction of the defendant because of the admission into his trial of unrelated similar acts14 and the fact that the jury’s verdict did not specify of which of the three counts standing against him he had been convicted.15

The West Virginia Attorney General got into the act with an opinion16 issued in 1956 that cunnilingus violated the law of 1930. Attorney General John Fox quoted case law from throughout the country and added that penetration was essential in order to convict for an act of cunnilingus.17

In 1957, the Supreme Court decided the case of State v. Withrow,18 which may have been the case that caused the appeal to the Attorney General for guidance. The Court backed the Attorney General’s interpretation that actual penetration had to be proven.19 Because there was no such proof, the conviction was overturned.20

West Virginia enacted a psychopathic offender law in 1957.21 This law made psychiatric referrals compulsory for anyone convicted of incest or "crimes against nature,"22 but only discretionary for those convicted of rape or other sex crimes.23

The last reported sodomy case in West Virginia was State ex rel. Housden v. Adams,24 in 1958, in which the Supreme Court overturned a sodomy conviction under the habitual criminal law. Housden had been sentenced to life imprisonment under the law, but the Court found that, because he had not been confronted during his trial with previous convictions, he could receive only the maximum 10-year sentence for sodomy.25

In 1976, a comprehensive revision of the state’s sexual assault laws26 repealed the law against sodomy. The age of consent was set at 16.27

Period Summary: Case law on sodomy is scarce in West Virginia, and three of four convictions have been reversed by the West Virginia Supreme Court, thus making it unclear to what extent the law was enforced. The state was one of the last to enact a psychopathic offender law and there is no case law to reveal how the law was enforced. A sexual assault revision law in 1976 repealed the sodomy law, but no change was made in the common-law reception statute.

The Post-Hardwick Period, 1986-Present

The state continues to recognize common-law crimes28 and case law in the state is that repeal of a statute in support of the common law revives the common-law provision on the subject. Thus, anal sex technically is still indictable in the state.29

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, except that the common-law statute and its supporting case law will permit consensual anal sex to be indicted if a prosecutor chooses to do so.


Footnotes

1 West Virginia Constitution 1863, Article XI, 8.

2 The Code of Virginia. Second Edition, Including Legislation to the Year 1860, (Richmond:Ritchie, Dunnavant & Co., 1860).

3 Id. at 112, Title 9, 1.

4 "Sexual Perversion and its Relation to Crime," The Bar, Aug.-Sep. 1905, pages 33-36.

5 Id. at 36.

6 House Bill 172, introduced Jan. 22, 1917.

7 Official Code of West Virginia 1931, enacted Apr. 3, 1930. The final report of the revision and codification commission stated that the revisers "listened only to the voice of conscience speaking in behalf of the public interest. The faithful discharge of the trusts reposed in them required that they should remain deaf to all importunities. They pursued this course with unaltered purpose, although they could foresee that it would invoke the hostility of those who sought, but did not obtain, special and personal advantages, and that such hostility may largely destroy the produce of their labor."

8 Id. 61-8-13.

9 18 S.E.2d 653, decided Feb. 3, 1942.

10 Id. at 655.

11 20 S.E.2d 687, decided June 2, 1942.

12 Id. at 687-688.

13 76 S.E.2d 265, decided June 9, 1953.

14 Id. at 268-269.

15 Id. at 270-271.

16 46th Biennial Report and Opinions of the Attorney General, page 352, No. 170, issued Jan. 13, 1956.

17 Id. at 353.

18 96 S.E.2d 913, decided Mar. 5, 1957.

19 Id. at 922-925.

20 Id. at 927.

21 Laws of West Virginia 1957, ch. 43, enacted Mar. 9, 1957.

22 Id. 1.

23 Id. 2.

24 103 S.E.2d 873, decided June 17, 1958.

25 Id. at 877.

26 Laws of West Virginia 1976, page 241, ch. 43, enacted Mar. 11, 1976, effective June 11, 1976.

27 Id. See chapter 61-8B generally.

28 West Virginia Code Annotated, 61-11-3.

29 State v. Mines, 18 S.E. 470, at 471, decided Nov. 4, 1893; State v. Brookover et al., 18 S.E. 476, decided Nov. 4, 1893; State v. General Daniel Morgan Post No. 548 Veterans of Foreign Wars of the United States et al., 107 S.E.2d 353, at 357, decided Mar. 3, 1959.


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