Last edited: February 14, 2005

Massachusetts Archaic Sex Laws Have To Go

By Warren J. Blumenfeld
April 1999

During "Equality Begins at Home" week (March 21-27), in which lesbian, gay, bisexual, and transgender (LGBT) people throughout the country are pushing for equality under the law, I was asked to deliver a rally speech at the City Hall in Northamton, Massachusetts focusing on a number of archaic Massachusetts laws related to private consensual sex between adults (some dating back to the 19th century).

I discovered that within the United States today, 5 states expressly prohibit what they call "same-sex sodomy." An additional 14 states plus Puerto Rico have outlawed "same-sex" as well as "other-sex sodomy." Massachusetts is one of those states where same-sex and other-sex "sodomy" is against the law. "Sodomy" is essentially defined as anything other than intercourse between and man and a woman within the institution of heterosexual marriage. All else is considered "sodomy" and is prohibited by law.

Two laws in particular currently on the books spell this out. One is Chapter 272, Section 34 -- the so-called "Crime Against Nature" (or Sodomy) statute of the Massachusetts Legal Code. This statute reads: "Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years."

Let’s look back at history for a moment. Massachusetts and many other states, as well as the federal government, have based their judicial structures on English law. For example, see how similar is the wording of the Massachusetts law I just referred to with one enacted in England during the rule of King Henry VIII in 1533 under the so-called "buggery" (or sodomy) law, which decreed a penalty of death for "the detestable and abominable Vice of Buggery committed with mankind or beast." In England, the law decreed the punishment of death for the persons involved, as well as for the animals, until 1861.

And in Germany in 1871, Paragraph 175 of the German Penal Code read: "Unnatural vice committed by two persons of the male sex or by people with animals is to be punished by imprisonment…" This law was later used by Hitler and the Nazis to incarcerate and eventually exterminate large numbers of males accused of same-sex activity.

The second Massachusetts Law, which has enormous implications for LGBT people is Chapter 272, Section 35, referring to so-called "Unnatural and Lascivious Acts." Anything even implying sexuality between two or more people of the same sex is termed "unnatural and lascivious": "Whoever commits any unnatural and lascivious act with another person shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years."

So what does this all mean? Well, though these state laws apply to people of all sexual and gender identities, in reality they have been used primarily to harass, and on occasion incarcerate lesbian, gay, bisexual, and transgender people.

They have been used and could be used again by the courts to justify taking children away from LGBT parents.

They have been used and could be used again to deny us the right of becoming adoptive and foster parents.

They have been used and could be used again to deny us the right to teach in the public schools.

They have been used and could be used again to deny us our most basic of civil and human rights.

And they are currently being used by some conservative leaders to restrict our right to legally marry, thus preventing us the many benefits accorded within that social institution.

I, therefore, call on all of us, of all sexual and gender identities. We have an opportunity to join together as allies to pressure our state legislators, as well as our national leaders, immediately to repeal these inhumane and archaic statues. For we are all in this together.

Warren J. Blumenfeld
Northampton, Massachusetts
(413) 585-9121

Warren J. Blumenfeld is co-author of Looking at Gay and Lesbian Life (Beacon Press), and editor of Homophobia: How We All Pay the Price (Beacon Press) and the Journal of Gay, Lesbian, and Bisexual Identity (Human Sciences Press). He is currently a doctoral candidate in the Social Justice Education Program at the University of Massachusetts at Amherst.

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