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

Wyoming

 

The Post-Revolution Period, 1776-1873

The Organic Act of 18681 adopted all laws of the Dakota Territory,2 which included the sodomy law with a compulsory sentence of life imprisonment.3

Wyoming recognized common-law crimes by a statute of 1869.4

A new code adopted in 18695 included a felony sodomy law6 retaining both the common-law definition and the penalty of up to life in prison.7

Period Summary: Wyoming passively received sodomy as a crime when the Dakota Territory criminal code was given to it by Congress upon organization. In its first home-rule code, Wyoming chose to retain the law, as well as its common-law definition and penalty of up to life imprisonment.

The Victorian Morality Period, 1873-1948

In a comprehensive criminal code revision of 1890,8 Wyoming rewrote its sodomy law and became the first state west of the Mississippi to outlaw fellatio.9 The statute did not include cunnilingus, but did outlaw the consensual masturbation of another person under the age of 21 years,10 a section lifted verbatim from the Indiana sodomy law of 1881 (q.v.). This statute lowered the maximum penalty from life to five years.11

Period Summary: There was no case law on sodomy throughout this entire era and only one statutory change. In 1890, early among the states doing so, Wyoming added fellatio, but not cunnilingus, to its sodomy law. The impetus for this early action is unclear given the general lack of action in the state in either the courts or legislature on the sodomy issue, but Wyoming was the first state west of the Mississippi River to broaden its sodomy law.

The Kinsey Period, 1948-1986

In 1951, Wyoming enacted a "psychopathic offender" law12 that permitted a mental examination of anyone convicted of sodomy.13 Commitment was compulsory if the examined person had a history of violence or sexual interest in those under age 15.14 In such cases, the trial court could place offenders on probation with the requirement that they seek outpatient psychiatric care.15 The period for probation could not last longer than the maximum penalty for sodomy.16 The criminal penalty specified in the sodomy law was required to be given to anyone convicted of sodomy who did not show a pattern of violence or interest in younger partners.17

The sodomy law was changed in 195518 to raise the maximum penalty from five to 10 years.19 The wording of the statute otherwise was unchanged.

The psychopathic offender law was amended in 195720 to require trial courts also to consider the "social history" and "present conditions" of those convicted of sodomy prior to implementing the law.21

A comprehensive revision of the state’s sexual offenses law adopted in 197722 repealed the sodomy law23 and set the age of consent at 16.24

This repeal did not affect the common-law crimes reception statute, however, thus leaving anal sex as an indictable offense. A comprehensive criminal code revision in 198225 abrogated common-law crimes,26 thus removing the threat of prosecution for any consensual sexual activity.

Period Summary: During the era of McCarthy, Wyoming followed the national trend in adopting a psychopathic offender law. It also raised the maximum penalty for sodomy during this time. However, in 1977, the sodomy law was repealed and five years later the common-law reception statute also was repealed.

The Post-Hardwick Period, 1986-Present

Wyoming has the distinction of being the only state in the nation without case law on sodomy.

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.


Footnotes

1 15 Stat. 178, enacted July 25, 1868.

2 Id. 17.

3 Laws of Dakota 1862, page 165, ch. IX, 47.

4 Compiled Laws of Wyoming, (Cheyenne:H. Glafcke, 1876), ch. 26, enacted Dec. 2, 1869.

5 Id. ch. 35, enacted Dec. 10, 1869.

6 Id. at 253, 29.

7 Id.

8 Laws of Wyoming 1890, page 127, ch. 73, enacted Mar. 14, 1890.

9 Id. at 139, 87.

10 Id.

11 Id.

12 Laws of Wyoming 1951, ch. 25, enacted Feb. 5, 1951.

13 Id. 1.

14 Id. 4.

15 Id. 5.

16 Id. 9.

17 Id. 12.

18 Laws of Wyoming 1955, page 230, ch. 209, enacted Feb. 26, 1955.

19 Id.

20 Laws of Wyoming 1957, page 332, ch. 207, enacted Feb. 20, 1957.

21 Id. 1.

22 Laws of Wyoming 1977, page 228, ch. 70, enacted Feb. 24, 1977, effective May 27, 1977.

23 Id. at 229-231 generally for new sex offenses.

24 Id. at 231, 6-63.8.

25 Laws of Wyoming 1982, page 518, ch. 75, enacted Mar. 11, 1982, effective July 1, 1983.

26 Id. at 519, 6-1-102.


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