Last edited: February 14, 2005

Massachusetts Court Finds Sodomy Laws Inapplicable to Private, Consensual Conduct

For Immediate Release
Gay & Lesbian Advocates & Defenders, February 21, 2002
294 Washington Street, Suite 301
Boston, MA 02108

For More Information
Jennifer L. Levi, Esq.
(617) 426-1350

The Supreme Judicial Court (SJC) today ruled that the state’s centuries-old sodomy laws are inapplicable to private, consensual conduct. In a brief ruling, a unanimous court found that two provisions of Massachusetts law that provide criminal penalties of up to 5 and 20 years for convictions for oral and anal sex, respectively, may not be enforced against persons who are engaged in such intimacy as long as the individuals did not intend public exposure. In a case brought by Gay & Lesbian Advocates & Defenders (GLAD), nine individuals who engage in intimate conduct of the type prohibited by the laws challenged the constitutionality of the laws because they criminalize common acts of intimacy. Although the court technically dismissed the case because none of the plaintiffs were currently subject to prosecution, the court for the first time declared that neither of the Massachusetts laws apply to private, consensual conduct.

Jennifer Levi, GLAD attorney who argued the case before the high court, commented, "This is a tremendous victory. The court today clarified that these antiquated laws may not be used to intrude on individuals’ rights to engage in common acts of intimacy in private settings. Moreover, in a key part of the ruling, the court affirmed that neither the Attorney General nor the district attorneys may prosecute anyone under the challenged laws unless the conduct took place either in public or without consent."

The case was filed in July, 2000, challenging the constitutionality of these two criminal statutes that prohibit conduct regardless of whether engaged in by gay or non-gay persons. The SJC’s ruling follows a recent pattern of state courts striking down similar laws in other states including Kentucky, Georgia, Tennessee, Arkansas and Minnesota. Earlier in the 20th century, all 50 states had sodomy laws. A trend toward legislative and judicial repeal began in the late 1960s but appeared stalled when the United States Supreme Court upheld Georgia’s sodomy law in 1986. After that decision, the movement to challenge such laws shifted to state courts where the trend has accelerated. Presently 14 states have sodomy laws, only 4 of which apply exclusively to same-sex conduct.

"This is an important decision because it reaffirms that these laws cannot be used to target or scapegoat people. As a result of this decision, these laws simply join a host of other statutes used to prosecute public behavior and have no consequences beyond that. There is a broad misconception that the intimate conduct gay, lesbian and bisexual people engage in violates the law. That is not true and this decision should clarify that once and for all."

Gay & Lesbian Advocates & Defenders (GLAD) is New England’s leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression.

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