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
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
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 states 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
1 15 Stat. 178, enacted July 25, 1868.
2 Id. §17.
3 Laws of Dakota 1862, page 165, ch.
4 Compiled Laws of Wyoming, (Cheyenne:H.
Glafcke, 1876), ch. 26, enacted Dec. 2, 1869.
5 Id. ch. 35, enacted Dec. 10,
6 Id. at 253, §29.
8 Laws of Wyoming 1890, page 127,
ch. 73, enacted Mar. 14, 1890.
9 Id. at 139, §87.
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.
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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