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Last edited: August 10, 2004
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The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Wisconsin
"We are unwilling to soil the pages of our reports
with lengthened discussion of the loathsome subject."
The Post-Revolution Period, 1776-1873
In 1836, Congress organized the Wisconsin Territory1
and gave Wisconsin all laws of the Michigan Territory.2
This provided a sodomy penalty of up to three years under the 1820 Michigan
law (q.v.).
After organization, Wisconsin enacted a law in 18363
that retained all laws received from the Michigan Territory.4
A code of laws adopted in 18395 raised the
maximum penalty for sodomy to five years, with a one-year minimum and a
common-law definition.6
In 1864, the Wisconsin Supreme Court, deciding Coburn v. Harvey et al.,7
construed the confusing mish-mash of history of Wisconsin’s creation to
adopt the common law of England in the state.
Period Summary: Having received sodomy as a crime only be being
given all Michigan laws, Wisconsin kept sodomy as a crime in a new code
adopted just a few years later. The common-law definition was retained.
The Victorian Morality Period, 1873-1948
I. Sodomy
In 1878, a law was enacted8 that prohibited
the infliction of "punishments prescribed by the common law" for
offenses in the state.9
A comprehensive code revision in 189710
retained the penalty, but reworded the law to include "the penetration of
the mouth of any human being by the organ of any male person," thus
excluding cunnilingus.11
This statute was interpreted by the Wisconsin Supreme Court in the state’s
first reported sodomy case, State v. Means,12
in 1905. With a great deal of outrage toward an act of fellatio, the Court
expressed its willingness to legislate in place of the legislators.
We are unwilling to soil the pages of our reports with lengthened
discussion of the loathsome subject. There is sufficient authority to
sustain a conviction in such a case, and, if there were none, we should
feel no hesitancy in placing an authority on the books.13
In 1916, in the second reported case, Abaly v. State,14
the Wisconsin Supreme Court unanimously overturned the defendant’s
conviction based on numerous trial errors, including one in which a
doctor was also permitted to testify that the reputation of defendant
was bad, basing his opinion of defendant’s reputation upon stories and
talk which he had heard after the prosecution of this case had been
commenced.15
A case from 1926 was of great importance to the issue of privacy rights for
Lesbians and Gay men even though it was a heterosexual prosecution. In Edwards
v. State,16 the Wisconsin Supreme Court
upheld the sodomy conviction of a woman for engaging in consensual fellatio
with a man in her own home. Police officers noted that Odessa Edwards and a
man entered her home and pulled down the shades on a bedroom window. Edwards’s
husband was then seen coming out of the house and looking down the street. The
police entered the home without a warrant and without knocking "through a
rear entrance," then one of them went into the bedroom where he saw the
sexual act in progress. Edwards claimed that "the presence of the
officers in the house was illegal," but the Court sidestepped the issue
by saying that "an officer may arrest one committing a crime in his
presence[.]" This overlooks the fact that the crime was not noted until after
the police made the entry that was alleged to be illegal.17
The Court concluded that to
uphold defendant’s contention would seriously embarrass the
enforcement of law, and license the defendant and her kind to continue
their abominable practices under the protection of the law.18
In 1927, in Garrad v. State,19 the
Court read the 1897 statute literally and ruled that cunnilingus did not
constitute a violation of the law. "Sodomy, the crime against nature, has
from earliest times been considered as involving the use of the male
organ."20
A case from 1928, Verhaalen v. State,21
led to the affirmance of a conviction for sodomy based on the uncorroborated
testimony of a partner.22
The first non-unanimous sodomy case from the Wisconsin Supreme Court came
in 1935 with Gutenkunst v. State.23 A
4-3 majority of the Court upheld the defendant’s conviction after noting
that there was
ample evidence of defendant’s association with boys about 18 years of
age and suggesting a disposition to indulge in the practice complained of.
Emphasizing that fact by calling it to the attention of the jury by words
calculated to remind them that his associations were not with men would be
proper argument. While in the heat of controversy words are often used
which might as well or perhaps even better be left out of the discussion,
this does not in every instance mean that reversible error has occurred.24
The dissenters ignored this point and argued for reversal on other errors.25
In 1947, Wisconsin enacted a psychopathic offender law.26
The law permitted the institutionalization for treatment of any sexual
psychopath, whether or not the person committed a crime.27
An application could be made by any person that a particular psychopathic
person was dangerous, and the sheriff of the county in which the alleged
psychopath lived could place the person in detention without a hearing.28
Adjudication as a psychopathic offender did not relieve the offender from
criminal prosecution.29
II. Sterilization
In 1913, Wisconsin enacted a statute30 to
authorize the sterilization of certain individuals. The list included the
"criminal" in state institutions.31 A
decision to sterilize had to be unanimous by the examining board32
and any method of sterilization that was "safest and most effective"
could be employed.33
A law review article from 193434 was
favorable to the law, but cautioned that limitless sterilization was "a
eugenical panacea or cure-all for prevention of procreation of the mentally
unfit."35 Although allowed under the law,
sterilization of criminals was not practiced through the end of 1933. It had
been used on 499 citizens of the state, all insane or mentally retarded. The
number of sterilizations by year varied from zero in four years to a high of
98 in 1932.36 Although the author believed that
the law was working, he feared that the language was too broad and needed to
exclude the sterilization of criminals.37
Through the end of 1934, some 645 Wisconsinites had been sterilized under
the 1913 law.38 This means that 146 persons, or
almost 23% of the total for 22 years, were sterilized in that one year,
calculating the figures from the above law review.
Period Summary: Wisconsin abrogated common-law crimes early in
this period and then revised its sodomy law to recognize fellatio, but not
cunnilingus, as a crime within a half-decade after the Alice Mitchell and
Oscar Wilde trials. The Wisconsin Supreme Court read this law literally
and held that cunnilingus was not indictable under it, a decision not
overturned by the legislature through the end of the era. The Wisconsin
Supreme Court also found a public interest in arresting people for
consensual sodomy in their own home, a point of law not presented for
review to most state courts. Wisconsin enacted a sterilization law
covering various undesirable people. The law’s constitutionality never
was challenged and its use increased during the time of the Nazi terror in
Germany.
The Kinsey Period, 1948-1986
A medical journal article from 194939
prematurely praised the psychopathic offender law. The author of the article,
a neuropsychiatrist, believed that the law was working well, and presented
some case histories of commitments under the law. "Case 1" was a man
who had been arrested on several charges of exposing himself to young girls.
"An early homosexual experience, discussed at the group level, was, of
course, a traumatizing psychologic factor."40
An ancillary law adopted in 194941
prescribed criminal penalties for newspapers or broadcast media for revealing
the identity of a victim of sodomy.42
In 1951, following a series of sensational sex crimes,43
the psychopath law was replaced with the "Sexual Deviate Act."44
This law made two major changes. First, in order to be a psychopathic
offender, one now had to commit a crime, and commission of an act of sodomy
did not require the triggering of the law, but permitted it.45
Second, the detention provision was repealed.46
A note in a 1954 law review47 nevertheless
noted that, of 22 discretionary commitments under this law, thirteen, or 59%,
were for sodomy.48
The constitutionality of the Sexual Deviate Act was upheld in the 1953 case
of State ex rel. Volden v. Haas.49
Another revision to the Sexual Deviate Act in 195550
expanded the list of triggering offenses to include
any crime except homicide or attempted homicide if the court finds that
the defendant was probably directly motivated by a desire for sexual
excitement in the commission of the crime; and for that purpose the court
may in its discretion take testimony after conviction if necessary to
determine that issue.51
In 1955, Wisconsin passed a new criminal code52
that abrogated common-law crimes53 and changed
the sodomy law by renaming it "sexual perversion," and making
cunnilingus criminal for the first time.54 The
5-year maximum penalty remained, although the one-year minimum was eliminated.
A fine of up to $500 was added.55 Another
change in the new code was an increase in the penalty for habitual offenders.
For sodomy, the penalty could be increased by as much as six years, which is
more than the maximum for the first crime itself.56
A unique adjunct to the sodomy law was enacted in 1959.57
It prohibited the granting or maintenance of a driver’s license for anyone
convicted of "sexual perversion" for a period of one year or until
release from jail or prison, including probation or parole time, whichever
occurred the latter.58
In 1965, in Barth v. State,59 the
Wisconsin Supreme Court unanimously overturned a sodomy conviction based
solely upon the uncorroborated testimony of an adult accomplice.60
In another case from the same year, State ex rel. Copas v. Burke,61
the Court unanimously ruled that, under state law, a sodomy defendant who had
been recommended for "specialized treatment" could not be sentenced
to prison on the charge.62
A third and final case from the year, State ex rel. Stroetz v. Burke,63
upheld the conviction for sodomy of a man who had been under custody of the
state’s mental health system for a decade. Stroetz originally had no counsel
at two commitment hearings, but at a third hearing, 10 years after initial
commitment, was given an attorney’s assistance.64
The Court felt that the granting of an attorney in 1964 cured the error from
ten years earlier, and a petition for a writ of habeas corpus was denied.65
Stroetz was more successful in federal court.66
U.S. District Court Chief Judge Robert Tehan found that the lack of an
attorney for Stroetz at his original proceeding was a violation of his
constitutional rights and granted him a writ of habeas corpus.67
The Wisconsin Young Democrats became the first political organization in
the United States to endorse repeal of sodomy laws, in 1966. Their action
created a storm of controversy, both inside and outside the party. Republican
Governor Warren Knowles referred to them as "homocrats." As a result
of the controversy, the Wisconsin Attorney General stated that, although the
statute was broad enough to cover the acts of married couples, he was unaware
of any prosecution of a couple. Evidence of such acts "would probably be
virtually impossible to obtain."68
In 1967, in Huebner v. State,69 the
Wisconsin Supreme Court voted 6-1 to overturn an attempt to invoke the Sexual
Deviate Act. John Huebner had solicited 17-year-old Floyd Boote "in
unmistakable layman’s language" to engage in sodomy with him. Boote
declined and reported Huebner to police.70 The
majority of the Court found that this solicitation was not "attempting to
persuade or entice a child under 18 years of age into an automobile for
immoral purposes," as was illegal under state law.
The 1970 case of State v. Stockman71
involved a hustling teenager and an adult male. The 17-year-old male, who
apparently already was a heavy drinker, approached the adult on the street
asking for money for liquor. The adult agreed on the condition that the young
man allow himself to be fellated. The sexual act occurred in an alley, during
which the teen lifted the man’s wallet and refused to return his money,
threatening him with reporting to the police.72
The Court found the teen’s story to be credible and affirmed the adult’s
conviction.73
In 1972, in Jones v. State,74 the
Wisconsin Supreme Court unanimously upheld the constitutionality of the
"sexual perversion" statute against a vagueness challenge. Defendant
Jones based his arguments, not on the present statute, but on the previous one
that used the term "crime against nature."75
The Court found the earlier law’s wording irrelevant since it no longer was
in effect and was not the basis of Jones’ conviction. It also found his
argument "ludicrous."76 Jones claimed
the privacy rights of married couples, which the Court rejected, noting that
he was neither married to his sodomy partner, nor was his act consensual, but,
in dictum said that it was "beyond reasonable argument" to claim
that the law covered married couples. The sole ground for this was that the
Court knew of no married couples ever prosecuted for sodomy.77
A federal court rejected a challenge to the sodomy law on grounds of
vagueness and overbreadth in the 1974 case of Swikert v. Cady.78
The Jones decision was reaffirmed in Mentek v. State79
in 1976. Specifically, the Court said that three factors had to be present for
the sodomy law to be inapplicable: the parties had to be married to each
other, the acts had to be consensual, and the acts had to be in private.80
In 1976, the law prohibiting newspaper coverage of sodomy trials was
repealed.81
In Gossett v. State,82 just a few
months later, the Wisconsin Supreme Court unanimously refused to intervene in
the question of whether consent per se invalidated a sodomy conviction.
"We decline to determine here whether such a finding is mandated by the
constitution."83
In a new criminal code adopted in 197784 the
penalty for sodomy was reduced from a felony to a misdemeanor, with a penalty
of up to nine months in prison and/or a fine of $10,000.85
Another provision was a revision in the vagrancy law that named as a vagrant
anyone who "solicits another to commit a crime against sexual
morality."86 This law curiously created
the vagary of "crime" against "morality," making it
unclear if a statutory crime had to be committed, or whether solicitation for
anything considered "immoral" was illegal.
The Wisconsin Supreme Court rejected a selective enforcement of sex laws
argument in the 1980 case of Sears v. State.87
Sears, dressed in women’s clothing, approached an undercover police officer
and offered to perform fellatio for a fee.88
Sears argued that females similarly arrested were charged with solicitation
for prostitution, whereas he had been charged with solicitation for sexual
perversion, a greater crime. The Court rejected the claim, saying that the
record did not show that no woman had ever been charged with solicitation for
sexual perversion.89
In 1980, the psychopathic offender law was repealed.90
In 1983, the Wisconsin legislature passed a consenting adults law91
that repealed the "sexual perversion" law.92
However, to demonstrate the difficulty the repeal law had in getting through
the legislature, a gratuitous section (unique in the United States) was added
saying that the
state recognizes that it has a duty to encourage high moral standards.
Although the state does not regulate the private sexual activity of
consenting adults, the state does not condone or encourage any form of
sexual conduct outside the institution of marriage. Marriage is the
foundation of family and society. Its stability is basic to morality and
civilization, and of vital interest to society and this state.93
This moralizing was the apparent price needed to gain the needed votes for
the consenting adult repeal bill to become law.
II. Sterilization
The sterilization law was repealed in 1978.94
There are no extant records in the state as to the number of Gay men or
Lesbians sterilized.95
Period Summary: Wisconsin became quite active in regulating
private sexual activity during the McCarthy era. It enacted a psychopathic
offender law, expanded its scope, and prosecuted it with vigor. One study
showed that 59% of those processed under it were convicted of sodomy.
Wisconsin also enacted a unique law to deny driver’s licenses to people
convicted of sodomy, but no other crime, and rejected the Model Penal Code
in a new criminal code of 1955. The new code expanded the sodomy law to
cover cunnilingus for the first time. Convictions for sodomy routinely
were upheld by the courts during this era as well. Constitutional
challenges to the law also were unsuccessful, except that married couples
received judicial exemption. After a number of unsuccessful attempts, the
sodomy law finally was repealed in 1983, and then only with a gratuitous,
unenforceable statement of opposition to non-marital intercourse added by
the legislature. The sterilization law was not repealed until 1978, making
it one of the last still on the books.
The Post-Hardwick Period, 1986-Present
In 1992, in City News and Novelty, Inc. v. City of Waukesha,96
the Wisconsin Court of Appeals upheld a city ordinance requiring open booths
in adult bookstores.
In an unpublished case from 1993, State v. Nowak, the Court of
Appeals found that solicitation of an undercover police officer for "some
action" and the placing of his hands inside the officer’s trousers
constituted disorderly conduct under state law.97
In 1995, the Wisconsin Court of Appeals decided State v. Rushing98
and overturned the conviction of a man for sex with a 15-year-old male. In his
trial, evidence that Rushing previously had consensual sex with an adult was
admitted and the Court found that to be prejudicial.
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, but Wisconsin has followed the trend of the
states and finding no privacy interest in sexual activity in enclosed
adult bookstore booths. Because of the decriminalization of consensual
sodomy, only that occurring in semi-public places still may be subject to
prosecution.
Footnotes
1 5 Stat. 10, enacted Apr. 20, 1836,
effective July 3, 1836.
2 Id. at 15, §12.
3 Laws of Wisconsin Territory 1836,
page 110, ch. 39, enacted Dec. 8, 1836.
4 Id. §1.
5 Statutes of Wisconsin, (Albany:Packard,
Van Benthuysen & Co., 1839), enacted Mar. 11, 1839.
6 Id. at 367, §14.
7 18 Wis. 147, decided during January Term
1864.
8 Revised Statutes of the State of
Wisconsin, (Madison:David Atwood, 1878), enacted June 7, 1878.
9 Id. at 1088, §4634. The
Wisconsin Constitution of 1848 common-law provision is Art. 14, §13.
10 Wisconsin Statutes of 1898, (Chicago:Callaghan
and Company, 1898), enacted Aug. 20, 1897, effective Sep. 1, 1898.
11 Id. at 2779, §4591.
12 104 N.W. 815, decided Oct. 3, 1905.
13 Id.
14 158 N.W. 308, decided June 13, 1916.
15 Id. at 310.
16 208 N.W. 876, decided May 11, 1926.
17 Id.
18 Id. at 877.
19 216 N.W. 496, decided Dec. 6, 1927.
20 Id. at 498.
21 218 N.W. 378, decided Mar. 6, 1928.
22 Id.
23 259 N.W. 610, decided Mar. 5, 1935.
24 Id. at 614.
25 Id. at 617.
26 Laws of Wisconsin 1947, page
814, ch. 459, enacted July 30, 1947, published Aug. 1, 1947.
27 Id. §1.
28 Id. at 816, (5).
29 Id. at 816-817, §351.66.
30 Laws of Wisconsin 1913, page
971, ch. 693, enacted July 30, 1913, published July 31, 1913.
31 Id. §1.
32 Id. at 972, §3.
33 Id.
34 Frank C. Richmond, "Sterilization
in Wisconsin," Journal of the American Institute of Criminal Law
and Criminology, 25:586 (1934-1935).
35 Id. at 587.
36 Id.
37 Id. at 591.
38 Abraham Myerson et al., Eugenical
Sterilization: A Reorientation of the Problem, (New York:Macmillan,
1936), page 20.
39 Henry Veit, "The Sex Deviate
Problem in Wisconsin," Wisconsin Medical Journal, 48:511-513
(June 1949).
40 Id. at 511.
41 Laws of Wisconsin 1949, page
395, ch. 419, enacted July 7, 1949, published July 12, 1949.
42 Id.
43 Robert D. Miller, Lawrence J. Stava,
Rodney K. Miller, "The Insanity Defense for Sex Offenders: Jury
Decisions After Repeal of Wisconsin’s Sex Crimes Law," Hospital
and Community Psychiatry, 39:186-189, at 186 (Feb. 1988). Marie
Therese Ransley, "Repeal of the Wisconsin Sex Crimes Act,"
Wisc.L.Rev. 1980, 941, at 943.
44 Laws of Wisconsin 1951, page
401, ch. 542, enacted July 6, 1951, published July 26, 1951.
45 Id. §2 (2).
46 The new law had no such provision in
it.
47 Anton Motz, "Criminal Law—Wisconsin’s
Sexual Deviate Act," Wisc.L.Rev. (1954), page 328.
48 Id. at 333 n.85.
49 58 N.W.2d 577, decided May 5, 1953.
50 Laws of Wisconsin 1955, ch.
375, enacted July 14, 1955, published July 19, 1955.
51 Id. §1.
52 Laws of Wisconsin 1955, Vol.
II, page 974, ch. 696, enacted Dec. 16, 1955.
53 Id. at 975, §939.10.
54 Id. at 997, §944.17.
55 Id.
56 Id. at 980, §939.62(b).
57 Laws of Wisconsin 1958-59,
Vol. I, page 732, ch. 583, enacted Oct. 26, 1959, published
Oct. 30, 1959.
58 Id. at 732-733.
59 132 N.W.2d 578, decided Feb. 1, 1965.
60 Id. at 580.
61 136 N.W.2d 778, decided Sep. 15, 1965.
62 Id. at 779-780.
63 136 N.W.2d 829, decided Sep. 27, 1965.
64 Id.
65 Id. at 833-834.
66 268 F.Supp. 912, decided Apr. 18,
1967.
67 Id. at 918.
68 New York Times, Apr. 10, 1966,
80:1. The Wisconsin Democratic Party has no information on this
controversy. Correspondence from Larry J. Martin, Executive Director,
Sep. 3, 1997.
69 147 N.W.2d 646, decided Jan. 10, 1967.
70 Id. at 649.
71 174 N.W.2d 249, decided Mar. 3, 1970.
72 Id. at 250.
73 Id. at 251.
74 200 N.W.2d 587, decided Oct. 3, 1972.
Rehearing denied Nov. 28, 1972.
75 Id. at 590.
76 Id.
77 Id. at 591.
78 381 F.Supp. 988, decided Aug. 28,
1974.
79 238 N.W.2d 752, decided Mar. 2, 1976.
80 Id. at 757.
81 Laws of Wisconsin 1975, ch.
384, §6, published Mar. 27, 1976.
82 242 N.W.2d 899, decided June 14, 1976.
83 Id. at 902.
84 Laws of Wisconsin 1977, Vol. I,
page 728, ch. 173, published Nov. 23, 1977, effective June 1, 1978.
85 Id. at 743, §92.
86 Id., §156.
87 287 N.W.2d 785, decided Feb. 7, 1980.
88 Id. at 786.
89 Id. at 789.
90 Laws of Wisconsin 1979 [sic],
Vol. II, page 812, ch. 117, published Feb. 29, 1980.
91 Laws of Wisconsin 1983,
Vol. 1, page 37, ch. 17, enacted May 5, 1983, published May 11, 1983.
92 Id. at 38. §5 reenacts the law
to cover acts in public only. The term "perversion" was also
eliminated from the law.
93 Id. at 37, §3m. (§944.01 of
the Code).
94 Laws of Wisconsin 1977 [sic],
page 1906, ch. 428, at 1907, §4, effective June 6, 1978.
95 Correspondence from Dennis Harkins,
Health and Social Services Department, n.d. (postmarked Mar. 12, 1996).
96 487 N.W.2d 316, decided June 24, 1992.
97 Lesbian/Gay Law Notes, January
1993, 9:3. The case was decided Jan. 5, 1993.
98 541 N.W.2d 155, decided Oct. 10, 1995.
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