The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
"[T]hey accepted a ride in the middle of the night,
in quest of two mythical girls, with an entire stranger, and became
parties to one of the most repulsive degradations known to humanity."
The Post-Revolution Period, 1776-1873
The common law was adopted by a statute of 1850.1
A criminal code enacted just three days later in 18502
included a sodomy provision using the common-law definition and setting the
penalty at five years-life.3 California was a
little too eager to enact this code. The style of the law said, "The
People of the State of California, represented in Senate and Assembly,
do enact as follows:" [emphasis added]. When this code was adopted in
April 1850, there was a territory named California, but no state.
It was not admitted to the Union until September 1850. Although this may seem
trivial, in actuality this probably invalidated the criminal code and made all
prosecutions, including those for sodomy, void.
In 1855, a law was enacted4 expanding the
sodomy law to cover an "assault with an intent to commit" sodomy,
with a penalty of 1-14 years.
In 1860, the California Supreme Court decided Norris v. Harris,5
and discussed the spread of common law throughout the United States. In an
opinion by Chief Justice Stephen Field, later to be named to the U.S. Supreme
Court, it was decided that the common law existed in California and, in fact,
everywhere in the United States except for three named states (Florida,
Louisiana, and Texas) that were neither directly nor indirectly of English
The legality of the 1850 code was cleared up with a new one in 1872.7
The sodomy law was not changed, but its reenactment in a legal manner brought
the penalty of the law into force. Common-law offenses were abrogated.8
Period Summary: Sodomy was a crime, at least on paper, almost
from the time California was settled after the gold rush. However, due to
the wording of the first criminal code and the U.S. Constitutions ban
on ex post facto criminal laws, it is quite possible that the criminal
code was unenforceable until the new one was enacted in 1872. California
showed an early hostility to the common law and did away with it during
The Victorian Morality Period, 1873-1948
The first reported case under the law was People v. Williams,9
from 1881. The California Supreme Court unanimously found an information
charging an assault to commit sodomy using only the common-law phraseology to
be sufficient. "Every person of ordinary intelligence understands what
the crime against nature with a human being is."10
Another case, People v. Miller,11
from 1885, gives little detail. The California Supreme Court unanimously
decided that a 13-year-old boy acting under "threats and coercion"
did not have to have his testimony corroborated.12
The first victory in a California sodomy case came in People v. Moore,13
from 1894. William Moore had been tried without the assistance of an attorney
and received a sentence of 41 years in prison. The California Supreme Court
unanimously overturned his conviction, not on either of these grounds, but
because he had not been informed of his right to challenge potential jurors.
Calling sodomy "coarse and detestable," the Court nevertheless noted
that the difficulty of disproving such an accusation and the severity of the
sentence that Moore received required it to guard his rights carefully.14
In 1895, in People v. Hickey,15 the
California Supreme Court again unanimously struck down a sodomy conviction,
this time because the trial court failed to instruct the jury that an assault
to commit sodomy could be found to be only a simple assault. The Court also
noted that the issue of consent by the alleged victim was an "open
question" that also should have been submitted to the jury for
A major issue was disposed of by the California Supreme Court in a brief
opinion in 1897 in People v. Boyle.17 A
single paragraph per curiam decided that fellatio did not constitute
the "crime against nature" in California, based solely on the Texas
The earliest reported case in the United States involving two prisoners was
the 1897 case of People v. Wilson.19
Defendant James Wilson had solicited his cell mate, George Ryan, for sodomy on
more than one occasion and Ryan consistently refused. Wilson then allegedly
attempted force. The jury found Wilson guilty, but recommended "extreme
mercy."20 The extreme mercy shown by the
trial judge was five years in prison. Supreme Court Commissioner John Haynes
wrote a 173-word sentence explaining that mere solicitation was not a
violation of the assault law, but that solicitation "together with the
preparations made by the defendant for the ultimate act" did constitute
In the two-year period from July 1, 1900 to June 30, 1902, there
were 20 prosecutions in California for the "crime against nature,"
leading to 16 convictions. Amazingly, a disproportionate 10 of the 20 were in
San Francisco, with six more in neighboring counties. There also were three
convictions for assault to commit sodomy.22
During this period, only two of the 16 convicted appealed their convictions.
In 1902, a Department of the California Supreme Court unanimously sustained
one of the convictions in People v. Day.23
Because Day included no bill of exceptions in his appeal, the conviction was
sustained only on the limited information provided the Court.
The other sodomy case appealed during this time was People v. Swist,24
also from 1902. This was a case in which religion was invoked as a point of
appeal. A witness had been sworn without the words "so help you God"
at the end of the oath, and the California Supreme Court found no reason to
believe that the shortened oath was invalid.25
The Court also found the testimony of the victim that he was assaulted, that
was contradicted by a physician who found no such evidence, nevertheless to be
A curious victory occurred in the 1905 case of People v. Carroll.27
The California Court of Appeals overturned a sodomy conviction because the
information charged John Carroll with the crime against nature by "having
carnal knowledge of the body" of one Frank Derby.28
The Court concluded that, if
the Frank Derby named was a female, then the defendant is merely
charged with having sexual intercourse with a female, which is not of
itself a crime. There is no allegation that Frank Derby, the person of
whose body the defendant is alleged to have had carnal knowledge, was a
male person. We cannot take judicial knowledge of the sex of a party upon
whom the crime is alleged to have been committed from the name alone. The
name "Frank" is generally given to males, but it is sometimes
given to females. The information might then be true, and yet the
defendant be innocent of a crime.29
In 1906, the Court of Appeals upheld an attempted sodomy conviction in the
case of People v. Erwin,30 even though
the defendant was absent when the court set a trial date for five weeks later.
The Court of Appeals believed that Erwin had "ample time" to prepare
In 1910, in People v. Harrison,32 an
appellate court unanimously upheld the conviction of a man for "lewd and
lascivious behavior" with a "boy." The boy testified that he
had a long-standing sexual relationship with Harrison and each alternated
between the "active" and "passive" positions in sodomy.
California enacted a law in 191133 that
absolutely forbade the conviction of any person for a crime based upon the
uncorroborated testimony of an accomplice.34
Between 1911 and 1938, there were some 13 unreported sodomy cases whose
details as to whether they were bestiality, same-sex sodomy, or opposite-sex
sodomy can not be ascertained. In each case, the conviction was sustained.35
A racially charged sodomy case was decided by the California Supreme Court
in 1912 in People v. Dong Pok Yip.36
Referring to the defendant as a "Chinaman" nine times in the
opinion, the Court unanimously sustained his conviction, even though the
alleged "victim" testified that no act of sodomy occurred.37
An appellate court decided a sodomy case in 1914 in the same strange way as
in Carroll. In People v. Allison,38
an indictment for sodomy was held void because it did not specify the gender
of the party with whom the sodomy was alleged to have occurred. The other
partys name was Frank B. Love, and the court held that an indictment
alleging "carnal knowledge" must necessarily refer to opposite-sex
activity only. Since the indictment read "carnal knowledge with Frank B.
Love," the court stated that Frank B. Love must be a woman, such activity
was not criminal under state law, and overturned Allisons conviction.
In 1915, in People v. Camp,39 the
Court of Appeals upheld a conviction for lewd and lascivious conduct with a
boy "under fourteen," although his age is not given. The remarkable
portion of the opinion concerns an objection raised by Camp to a question
addressed to an expert as to what effect such acts charged against
defendant would have in "arousing the feelings or gratifying the lust
or passions or sexual desires of the man in the case." This seems to
be a matter of expert testimony. A peculiar knowledge of the human system
is requisite to answer the question intelligently. It would be a
reflection upon the average and normal man to hold that such expert
assistance is not needed. The normal man, it may be assumed, has no such
knowledge nor experience as would qualify him to determine, without the
aid of an expert, the neurotic or orgastic effect of such indecent acts.40
Nevertheless, the court held that there was no other possible conclusion
than that "such acts would have such effect upon the lustful desires of
one bestial enough to be guilty of such conduct."41
The accomplice law was amended in 1915.42 A
section was added defining an accomplice as one liable for prosecution for the
offense charged against the defendant,43 thus
removing the possibility of young partners in sodomy cases from being
In 1915, some 18 years after the California Supreme Court pointed out that
fellatio did not constitute a violation of the states sodomy law, the
legislature acted. Apparently due to a fall 1914 scandal in the Los Angeles
area in which some 500 Gay men were arrested as "social vagrants,"44
a unique statute45 was passed that outlawed
"acts technically known as fellatio and cunnilingus[.]"46
The penalty was set at up to 15 years in prison,47
which was a lesser penalty than the five years-life for sodomy. This was the
only such law ever passed in the United States actually to use the words
"fellatio" and "cunnilingus" and that language would come
back to haunt the legislature.
In the 1915 case of People v. Ah Leo,48
an appellate court unanimously upheld the conviction of a man who received
"a long term of imprisonment in the penitentiary" for sodomy. The
court refused to overturn the jurys conviction, despite Ah Leos claim
that he didnt even know the accuser, let alone ever having had sexual
relations with him.
Later in 1915, the California Supreme Court dealt with the interesting case
of People v. Robbins.49 Samuel Robbins
had been convicted of consensual sodomy with a 16-year-old male in the
bathroom of the young mans apartment. The young mans parents and
landlady became suspicious seeing them play tennis together before going into
the bathroom, and their suspicions increased from hearing water running in the
sink for a lengthy period of time. The landlady saw them entering the bathroom
and heard the bolt locked. She then went into her room where she could look
out onto the bathroom window. She saw the window opened and the shade drawn,
and then went to the bathroom to listen and "accidentally" hit her
hand against the door which led to Robbins and the young man leaving the
bathroom. She added that, had there been a keyhole in the door, "I would
have peeked through it like any other woman."50
Nothing in the opinion explains why Robbins, who had known the young man for
five years, was considered worthy of suspicion. The 4-1 majority of the court
found the case to have been based entirely on circumstantial evidence and
overturned the conviction.51
The Court of Appeals affirmed a conviction in People v. Love52
in 1916. Love had been convicted of a "lewd and lascivious act" with
a consenting male teenager simply by having been found on a bed "in
contact" with him.53
In 1916, an appellate court, deciding People v. Carrell,54
reached another interesting conclusion. Carrells conviction for fellatio
was overturned because the word "fellatio" was not English and not
of common usage among the public. Carrell himself did not know the meaning of
the word.55 What was overlooked by the court
was that Carrell had been charged with committing fellatio on a woman.56
The physical impossibility of the act was never mentioned by the court in its
haste to decry the usage of uncommon terms in criminal laws.
In 1918, in People v. Jacobs,57 the
Court of Appeals upheld a sodomy conviction in one of the shortest and least
detailed opinions in the states history. It did say that there were
"two unimpeached witnesses to the overt act,"58
but didnt specify the act.
The case of People v. Tobin59 was
decided by the Court of Appeals in 1918. Tobin got himself a soldier, an act
which apparently led to some sort of Army investigation, because
"officers" testified against Tobin in his trial. He claimed
intoxication as a defense, but that was rejected by the court.60
The California Supreme Court first was presented with the issue of the
constitutionality of the oral copulation law in the 1918 case of In Re
Application of Soady.61 William Soady
sought a writ of habeas corpus because he had been incarcerated for
violating the law outlawing "fellatio" and "cunnilingus."
As in Carrell, Soady claimed that the law violated the California
Constitutions requirement that laws be written in English. By a vote of
4-2, the Court ruled against Soadys claim. Justice Wilbur, writing for the
majority, noted that there was
no difficulty in ascertaining the meaning of the word
"fellatio" without access to any foreign vocabulary. The title
of the legislative act in question indicates that the prohibited act is an
expression of "sex perversions." The use of the phrase
"fellatio" in connection with the title clearly points to the
term as a medical term, and we find the word defined, as the legislators
no doubt did, in a standard medical dictionary of the English language[.]62
The word "may be English as well as foreign." The Court could not
assume that "fellatio" had not become commonly discussed "among
the medical profession."63 The reason the
word was not found in non-medical dictionaries was
certainly not conclusive, particularly in view of the character of the
word and the act thereby described.64
Thus, the general public had to have a good knowledge of medical
terminology in order to know what the legislature was talking about, and this
satisfied due process of law. Wilbur added that "fellatio" was
clearly defined in the above mentioned standard medical dictionaries.
We have, therefore, purposely refrained from describing the act intended
to be prohibited.65
The much longer dissent was written by Justice Henry Melvin. He said that
the fact that a definition of "fellatio" was found in medical
dictionaries was insufficient. Skewering the majority, Melvin criticized their
because it appears in two highly technical lexicons, neither of which
is available to the average person (one of them having been published
since the enactment of the statute), and because when the legislature used
"fellatio" the presumption became "well nigh conclusive
that the word is English."66
Growing more sarcastic with each paragraph, Melvin said that to those
convicted without knowing the contents of the statutes we could truly
say, justified in so declaring by the opinion of the majority of this
court: "You are not entitled to understandable laws. It is enough if
judges skilled in the law may ascertain the legislative intent. The
real question is Can the legislative intent be ascertained and
enforced? because the Supreme Court has said so!" And the
unlettered defendantsthose "lesser breeds without the law"may
go to the cells dismally chanting in plain English (for they know not
Choctaw nor Latin nor Pekinese) "No other means any other."67
Melvin inserted a long reference from the writings of Martial, who
frequently used the derivations of "fellatio" and
"cunnilingus" in his writings. Melvin noted that the definitions of
the acts used by Martial seemed to vary.68 He
the chaste majority [who] refrains from any real definition of the
offense. We are remanded for the meaning of "fellatio" to the
two "Standard Medical Dictionaries" (one of an edition later
than the date of the enactment of the statute). Thus have two dictionaries
become the real repositories of a statute of California by which
imprisonment in the penitentiary may be decreed upon offenders.69
The issue of Latin terms returned to the California Supreme Court just four
months later in the 1919 case of Ex Parte Lockett.70
For unclear reasons, the Court reversed itself. Justice Melvin, now speaking
for a 5-1 majority instead of in dissent, found the law against fellatio and
cunnilingus unconstitutional because, by using Latin phraseology, the public
was unaware of what acts were criminalized by the law.71
He went a step farther by claiming that the word "fellatio" also had
no "definite, technical meaning either in law or in
psychopathology."72 Melvin claimed that
there were contradictory definitions of the word even in medical dictionaries.73
The lone dissenter was Justice Wilbur, who had penned the Soady
decision and lost the support of the three justices joining him in that case,
all of whom went to Melvins interpretation.
In the 1919 case of People v. Funtas,74
a sodomy conviction was sustained after the mother of a 14-year-old boy became
suspicious of her sons bedroom visits with a man and had holes drilled in
the bedroom walls (it apparently was a boarding house), where she stationed
herself to witness sexual activity between them.
In a third 1919 case, People v. Kangiesser,75
a sodomy conviction was upheld over the contention of the defendant that the
young man with whom he allegedly had been sexual had an ongoing sexual
relationship with his own brother, and that this should have been used to
impeach his credibility as a prosecution witness.76
In 1920, in People v. Wyett,77 a
sodomy conviction was overturned by an appellate court. Evidence of Wyetts
sexual activity with others than the one with whom he was on trial had been
admitted, and the court found that to be prejudicial error.78
The sodomy law was amended in 192179 to
lower the penalty from five years-life to 1-10 years.80
Another statute of 192181 attempted to
create a constitutional law against oral sex. The new law outlawed "the
act of copulating the mouth of one person with the sexual organ of
another" and retained the penalty of up to 15 years in prison,82
thus making oral sex a more serious crime than anal sex.
A third law enacted in 192183 guaranteed
that no erotic activity would go unpunished. The statute banned "any
act...which openly outrages public decency[.]"84
This law gave police free rein to arrest people for practically anything.
In 1921, in the case of People v. Hulbart,85
a California appellate court upheld the conviction of a man for "a lewd
and lascivious act" with a 12-year-old boy, saying that the testimony of
the boy need not be corroborated. This was so only because of the change in
the accomplice law in 1915 that said one was an accomplice only if he or she
was liable to prosecution for the act. Because of his age, the court held that
he could not be prosecuted and was not, therefore, an accomplice.86
In 1923, in People v. Singh,87 an
appellate court upheld the right of the trial judge to give an instruction to
the jury that sodomy was complete upon "any sexual penetration, however
A puzzling case was People v. Fellows,89
decided by an appellate court in 1923. George Fellows had been convicted of
oral copulation while on a train, and the conviction was upheld. Although
Fellows was traveling with a "woman companion," a witness found him
in an unspecified area of the train "going on his knees."90
The partner before whom he knelt was not specified.
An appellate court decided in People v. Green,91
in 1924, that an information charging an individual with an assault to commit
the crime against nature was sufficient. "[E]very person of ordinary
intelligence understands what that crime is."92
Another 1924 appellate sodomy case, People v. Miller,93
showed both fear and ignorance of sodomy on the part of the judges. "The
testimony in the case is so utterly revolting that we shall not attempt to
state it in detail."94 Judge J.A. Plummer
added that an assault necessarily was a part of every act of sodomy.95
The curious case of People v. Knowles,96
from 1925, involved a public school teacher tried for oral copulation. He
invited two 16-year-old students to his apartment, where he showed them
"indecent and suggestive pictures" as well as condoms, and suggested
that they engage in sodomy with each other.97
One refused and went to another room "where he played a piano" while
the other student and teacher "undressed and remained together for a
period of half an hour." Knowles argued that admitting the pictures into
evidence was prejudicial, but Judge John Nourse of the Court of Appeals felt
that they were "so closely connected with the preparations for the
commission of the crime that they became a part of the offense itself[.]"98
In 1926, an appellate court, deciding People v. Jensen,99
upheld the admission as evidence of "certain obscene pictures or
photographs" found in Jensens vest and which admittedly had no
relationship to the sodomy charge he faced.100
A conviction for both sodomy and oral copulation was sustained by an
appellate court in 1926 in People v. Casey.101
John Casey was convicted after he picked up "two young men," ages 17
and 19, who were leaving the Odd Fellows Hall in Los Angeles. Casey
promised he would drive them "to meet some girls," but went to a
deserted area and groped the leg of one. One teen supposedly protested, and
Casey allegedly took a gun out of his pocket and showed it to both, then
replaced the gun in the pocket without ever touching it again. He then
fellated one of the passengers, then the other, then took one to the back seat
and engaged in anal sex with him.102 The
court, speaking through Judge Gavin Craig, noted that the two passengers put
up no resistance and that the second passenger even gladly exchanged places
with the first in order to be fellated after Casey finished with the first
one. One refused to go into the back seat for anal sex, but the other went
without any hesitation. The gun never was used and the teens never made an
effort to escape or to gang up on Casey. The court thus found that the two
were accomplices because they consented to the act.103
There was no evidence that either was
unable to defend himself against the disgraceful advances of a proven
degenerate...[T]hey accepted a ride in the middle of the night, in quest
of two mythical girls, with an entire stranger, and became parties to one
of the most repulsive degradations known to humanity.104
The court found that there was ample corroborative evidence, including that
another witness saw Casey with the two teens, even though not in any sexual
Also in 1926, an appellate court upheld the conviction in People v.
Lyons.105 A continuance of five days after
the jury had been impaneled after the prosecuting witness inexplicably left
town was found not to be prejudicial to the defendant106
and major discrepancies as to when the alleged offense occurred also were
In 1927, in People v. Spaulding,108
an appellate court upheld the conviction of a man for oral copulation. It
appears that F.J. Spaulding was well known in the Tulare area as a "moral
pervert," because he boldly solicited a number of men for fellatio. He
told one man who came to his grocery and gas station, "The next time you
come through stop in and I will be glad to have you."109
Curiously, the man and another returned to Spauldings business and one went
into the lavatory, being followed by Spaulding. The man who went into the
lavatory, Pelfley, allowed Spaulding to fellate him, and was, by
predetermination, interrupted by the other man, Lant, who immediately had
Spaulding arrested.110 Spaulding did not go
violently resisted the witnesses...he fought, bit, and kicked them, and
attempted to escape...the witnesses struck him with an automatic pistol,
tripped him, and one of the men held him down while the other held off
several persons who collected in response to loud cries of the defendant
for "Bryan," who later proved to be his son[.]111
Pelfley testified that his "participation in the transaction"
(being fellated) was "for the sole purpose of detecting the defendant in
the commission of a criminal act which they had reason to believe he would
commit."112 Thus, a man received free sex
from a Gay man, had him prosecuted for the act, and was not prosecuted
himself, even though he was just as "guilty."
The constitutionality of the oral copulation law was challenged in People
v. Parsons,113 in 1927. The Court of
Appeals discussed that issue only briefly when it said that it could not find
anything "uncertain or indefinite" about the revised law.114
The Court of Appeals decided in 1927, in People v. Khan,115
that corroborative evidence can be circumstantial in nature.
In 1927, in People v. Olds,116 a
conviction for oral copulation was upheld. There is no detail as to the act
other than that there were "three eye-witnesses" to the act.117
A truly shocking and melodramatic case occurred in 1927 in People v.
Parisi,118 in which the Court of Appeals
upheld a sodomy conviction. Antone Parisi was engaged in a long-term
relationship with an 18-year-old male. Parisi lived in a San Francisco
apartment that was atop a building and was "constructed mostly of windows
and glass doors[.]" (?) The young mans mother "became suspicious
of her sons appearance and conduct" and hired a private investigator
named Otts to find out what was going on. Otts discovered their relationship
and reported it to the mother. She refused to believe it, knowing that Parisi
was a long-time friend of the family. When Otts was unable to convince the
mother that her son was in a homosexual relationship, he decided to entrap
Parisi.119 On the pretext of wanting to buy
Parisis truck, Otts smuggled an associate into Parisis apartment, who
hid under the bed. When Parisi and his lover engaged in lovemaking, the other
investigator crawled out from under the bed and shouted for Otts, who was
outside and who broke through Parisis glass door and brought the
young mans mother and sister in with him. (How Otts persuaded them to wait
outside Parisis apartment during the entrapment when they refused to
believe that Parisi was engaged in a relationship with the young man is not
explained.) Seeing her son "partly disrobed," the mother immediately
changed her mind concerning what Otts had told her and had the police called.
Parisi urged her not to, arguing that it would only "bring disgrace"
to her son. The mother "emphatically rejected" Parisis plea, as
well as his offer of money not to call the police.120
In People v. Gibson,121 from 1928,
the Court of Appeals upheld the conviction of a man for oral copulation.
Gibson filed the appeal, but then failed to appear for the appellate hearing.
In a 24-word opinion, the court found that his trial was free from error.
A conflict between the jurisdictions of the United States and California
resulted in a partial acquittal of a man convicted of sodomy. In 1928, in People
v. Mouse,122 the California Supreme Court
overturned two of three sodomy convictions of a man for acts committed upon
the grounds of the National Home for Disabled Volunteer Soldiers, a federal
institution. The Court found that the federal government had jurisdiction,
but, since it didnt prosecute, California couldnt either.123
In 1928, in People v. Singh,124 the
Court of Appeals permitted circumstantial evidence to be used to prove sexual
penetration. In this case, an "alleged pederastic performance"
occurred with a "boy" who was "approaching, if not just past,
his majority," in other words, an adult.125
Police came upon a car parked in a suspicious location and looked in with
flashlights, seeing the two in a compromising situation. The "boy"
resisted the police trying to break up the sexual act and police had a
physician make physical examinations of the two, the results of which led to
A case of consensual oral copulation was the subject of the 1930 case of People
v. Smink et al.127 Three men in Palm
Springs were arrested for consensual fellatio with each other, although how
the acts came to the attention of authorities is not specified in the opinion.
All three waived their right to an attorney and pleaded guilty. They were
sentenced to prison. Three days later, Smink and one of the others came into
court with an attorney, demanding that their guilty pleas be withdrawn and a
trial by jury be held.128 One of Sminks
co-defendants claimed that he was misled by police into admitting their sexual
activity because the deputy district attorney
was desirous of learning certain facts and conditions then existent in
Palm Springs and that after he, McDonald, had made a declaration and
statement, that is all there would be to the matter.129
The Court of Appeals found no reason to permit the withdrawal of the guilty
pleas and affirmed the convictions.
The curious case of People v. Conklin130
was decided by the Court of Appeals in 1932. The facts are amazing, and not
very believable, reading, in fact, like a Keystone Kops script. Several
adults, including the parents of the boy alleged to be a victim of an act of
fellatio performed on him, had been drinking a considerable amount of liquor
(during Prohibition). When they ran out, the parents sent their son to a
locked chicken coop to get more and defendant Conklin followed him there,
where the act of fellatio allegedly occurred. The mother of the boy had been
talking to the wife of the defendant when she "all of a sudden"
remembered that her son had been gone "an awfully long time." She
then rushed out to the coop and saw Conklin "stooped" in front of
her son, but both were clothed. She asked him what was going on, and Conklin
claimed that nothing was. The boys mother then demanded that Conklin come
with her to the house, at which point a fight broke out. Conklin allegedly
broke the mothers nose and then she grabbed him by the hair and somehowit
never was explained howthe mother got him into the house. While there, the
mother explained to Conklins wife that she had seen her son on the ground,
but did not claim to have seen any sexual activity and demanded that the
police be called. All the while she continued to have hold of Conklins
hair. Conklins wife then grabbed hold of the boys mother and the father
of the boy, who had gone to bed, came back down and got into a fight with
Conklin. The mother testified in the trial that she never had seen any sexual
activity, had not questioned her son about what happened, and never examined
his clothing for evidence of sexual activity.131
Despite all of this farcical evidence, the Court of Appeals unanimously
affirmed the conviction of Wendell Conklin.132
The Court of Appeals found "frivolous" the claim that a judge
trying a sodomy case without a jury had to view the scene of the alleged crime
in People v. Wallen,133 in 1932.
In 1934, in People v. Hudson,134 an
oral copulation conviction was overturned by an appellate court. The trial
judge dismissed one of three counts against Hudson before the jury could
consider it. As to the other two counts, there was evidence of
tampering with the witnesses, that is, at least a coaching of the
witnesses at a time when they were awaiting their opportunity to be
In 1934, in People v. Nichols,136
purely consensual sexual activity with a teenager who kept coming back for
more was the subject of prosecution for both sodomy and oral copulation, which
the Court of Appeals affirmed.
Also in 1934, in People v. McFadden,137
the Court of Appeals unanimously upheld an oral copulation conviction over the
defendants claim of "inherent improbability" of the prosecuting
witnesss testimony, without specifying any of it.138
Later in 1934, the Court of Appeals, in People v. Barber,139
upheld a sodomy conviction even though there was no evidence of penetration, a
clear violation of state law. The jury was found to be justified in
disregarding the testimony of both the defendant and the "boy" in
In 1935, in People v. Pratchner,141
an oral copulation conviction was upheld. W.W. Pratchner was convicted of sex
with a "boy" who was old enough to be considered an accomplice,
which in California meant a teenager. Despite the Wyett rule, evidence
had been admitted of Pratchners similar conduct with other "boys"
and the court found no error in its admission.142
In People v. Williams,143 from 1936,
the Court of Appeals split 2-1 to uphold the oral copulation conviction of
Otis Williams for ongoing sexual activity with a boy of 12½ who was described
by the majority opinion as "more than ordinarily advanced," and as
having "an intellect that would be not of discredit to an average person
of mature years. "If not an infant prodigy, he well might be
regarded as a precocious youngster."144
The boy was so advanced, in fact, that he procured another boy for Williams.
In the trial, Williams, a professional artist, had paintings of his admitted
in evidence against him, including what the prosecuting attorney called
"nude and lascivious pictures of naked children."145
The judge instructed the jury to disregard that comment, but it is unlikely
that such comments could not have influenced the jury. In dissent, Judge John
York believed that, because of the "misconduct of the district
attorney" and the "courts attitude toward such misconduct,"
a new trial should be granted to Williams.146
In 1937, in People v. Sweet,147 an
appellate court upheld an oral copulation conviction. Louis Sweet asked the
trial judge to refer him to a probation officer for evaluation for probation
rather than sending him to prison. The judge did so, but the probation officer
filed "an adverse report." Sweet then filed an incredible barrage of
motions, including a demand for a new attorney and to withdraw all of his
pleas, all of which were denied.148 His
conviction was upheld.
Among the most incredible sodomy cases in the nation was People v.
Jordan et al.,149 from 1937, one of those
rare cases of truly private, consensual, adult sodomy being prosecuted. The
Court of Appeals sustained most of the convictions of a group of men for
sodomy and oral copulation. A cabin near Riverside attracted the attention of
a service station operator because of the large number of cars traveling there
at night. He reported this to the sheriffs office.150
Sheriffs deputies witnessed a car come to the cabin and then leave. They
entered the cabin, without a warrant, and removed some boards from windows.
The following night, a group of men came and brought a radio with them.
Unknown to the men was that the sheriffs office had deputies concealed
inside a drainage ditch at the rear of the cabin. There followed
what is referred to in the record as a party. There was some drinking
and some dancing, and two of the men were dressed in womens clothes. At
various times during the evening the officers observed certain of the
persons present entering the various bedrooms, at times the light in a
bedroom was turned out, at times the lights in the entire house were
turned out, and at such times there was considerable screaming "like
women screaming." Early in the evening two of the men came outside of
the cabin and embraced each other and the officers heard one of them say
to the other that this was a marvelous place, that "no one would ever
think of coming up here," and that everything was perfectly safe.
During the evening several of the men came outside and peeked in at
various knot holes. On one occasion another man came out and told them to
stop this as they would not like others peeking at them under similar
circumstances. The officers heard someone make an announcement that one of
the defendants would give a hula-hula dance and a little later the
announcement was made that another person "will now give a
demonstration" of how section 288a [oral copulation] should be
violated, which announcement was followed by general laughter and
An announcement was made that another, even bigger, party would be held
there a week later. Preparations were made during the week by the sheriffs
department to surprise the partiers. A false roof was created over holes in
the ceiling, so that two sheriffs deputies could hide and witness what went
on below. Seventeen men arrived on the promised night and
an obscene picture was tacked on the wall and obscene remarks were made
concerning it. Liquor was served and there is ample evidence of these men
kissing and caressing each other, of various ones dancing together in what
may be summarized as a highly improper manner, and of other acts which
need not be referred to which are highly suggestive as to the nature of
At one oclock in the morning, the party was interrupted rudely by the
sudden appearance of the deputies to arrest the sixteen men remaining. One,
never identified, had left early and avoided arrest. The Court of Appeals
affirmed some of the convictions and reversed others for lack of evidence. One
conviction affirmed was that of a "conspiracy" based solely on one
arrestees defiant statement that
there is [sic] only four of them and there is [sic]
sixteen of us. Stick together, dont say anything.153
That was a manifest abuse of a conspiracy law, since there is no crime in
refusing to incriminate yourself during an arrest. The conspiracy charge
obviously was vindictive, but the Court of Appeals allowed it to stand. The
Court did, however, decide that the admission of "pictures and
cards" belonging to a defendant and found in a locker at the military
base where he was stationed was prejudicial, since they clearly had no bearing
on the sexual activities in the cabin in Riverside County.154
The Court did not believe that the prosecutors reference to one of the
defendants as a "pervert" was prejudicial.155
Another case of consenting adolescents returning for more was the subject
of People v. Galeno,156 from 1938. The
Court of Appeals found the evidence of corroboration sufficient to sustain the
In 1938, in People v. Brendle,157 an
oral copulation conviction was upheld by the Court of Appeals. Miles Brendle
was convicted of the charge after two Navy personnel, Murphy and Connell,
"assigned to police work,"158
testified against him. Murphy and Connell, for unclear reasons, went to
Brendles hotel and listened, one from the door and the other from an
adjoining room.159 Murphy
heard a bumping sound against the wall of that bedroom and at the same
time Murphy was hearing that Connell told you that from his post outside
the door he heard the bed springs going up and down[.]160
The Court of Appeals rejected a drunkenness defense in the 1938 case of People
In a fourth 1938 case, People v. Brown,162
the Court of Appeals overturned part of an oral copulation conviction because
of hearsay evidence that the defendant ran a Turkish bath where violations of
the oral copulation law occurred. The Court of Appeals noted that "[n]o
attempt was made to connect these occurrences with the matters here involved
except to show the nature of the place run by the appellant."163
Also in 1938, in People v. Reynolds,164
the Court of Appeals overturned a conviction in which the sole corroboration
used was "perverted tendencies" on the part of the defendant.165
Thus, mere orientation was used to try to prove a specific act, something that
the Court of Appeals would not allow.
The sixth and final reported case from 1938 was People v. Young.166
A conviction for cunnilingus was sustained, with the Court of Appeals noting
that "inferences" made by the jury from evidence were sufficient for
In 1939, California became the first state outside the Midwest to enact a
psychopathic offender law.168 This first law
covered only individuals with a predisposition "to the commission of
sexual offenses against children,"169 but
California would prove to be the state with the most aggressive effort at
these laws, amending it at almost every legislative session.
In 1941, in People v. Karpinski,170
an appellate court ruled that the defendants possession of a tube of
vaseline "similar" to that alleged to be used to complete the crime
was sufficient corroborative evidence.171
In the 1941 case of People v. Angier,172
an appellate court decided, unanimously, that the states oral copulation
law was not violated by merely kissing or licking a sexual organ. Actual
penetration of the mouth had to occur.173
A 1941 law174 attempted to clarify the
psychopathic offender law. Anyone examined and found not to be psychopathic
was to be sentenced by the court and those found to be psychopathic were to be
committed to a state hospital.175
The first reported case under Californias psychopath law was People
v. Haley,176 from 1941. An appellate court
shot down an effort to have a man declared a psychopath because he had not
been charged with any crime against children as required by the statute. He
had been arrested for several crimes, none of them sexual. The court also
rejected the states argument that the psychopath law was identical in
purpose to the insanity law.177 The opinion
does not explain why the state tried to have Haley declared a sexual
psychopath, but this decision put the brakes on the states expansive
definition of the law and effectively blocked warehousing of those adjudged to
In 1942, in People v. Coleman,178 a
California appellate court rejected the contention of the heterosexual
defendant that sodomy could be accomplished only between people of the same
The California Supreme Court overturned a conviction for lewd and
lascivious conduct in the 1942 case of People v. Putnam.180
The Court unanimously found that the accusation that Putnam had touched the
clothed crotch of a 12-year-old boy could not stand because Putnam had not
touched his bare skin, and the statements of the alleged victim were filled
The California Attorney General issued an opinion182
in 1943 interpreting the psychopathic offender law. In a good news-bad news
decision, the good news was that those charged with a crime and committed
under the law were not deprived of their civil rights during commitment.183
The bad news was that they could not be released from an institution, even if
paroled, for a minimum of five years.184
An appellate court decided People v. Wheeler185
in 1943. Wheeler argued that the evidence against him showed only a
"touching" of the complaining witness, rather than penetration as
required by Angier. Although the court found the evidence to be
otherwise, it repeated the tired phrase that it would "serve no useful
purpose to set forth the evidence here."186
Setting forth the evidence might have shown how it corroborated the witness.
Also in 1943, in People v. Munoz,187
an appellate court found sufficient the "inferences" from evidence
that the trial judge, sitting without a jury, made to decide the defendants
guilt of sodomy.188
In a third case from 1943, People v. Romero,189
an appellate court sustained the attempted sodomy conviction of one of several
"youths" who drove around, drank, and became intoxicated together.
He attempted the act on one of his companions.190
In 1944, in People v. Sing Chan,191
an appellate court rejected a fear defense. Sing Chan had been spotted by
police in a park in Sacramento fellating a soldier. Upon arrest, he attempted
to flee and was tripped by one of the arresting officers.192
The appellate court sustained the refusal of the trial court to allow the
admission of evidence of Sing Chans previous assault by a soldier. He
claimed that this would prove that he was afraid of soldiers, and never
willingly would have engaged in sex with one.193
In People v. Meyer,194 from 1944, an
appellate court sustained the conviction of a man for sex with male teenagers
in a summer camp. The court refused to "besmirch the records of this
court by here setting out in detail the actions of defendant as related by the
boys involved." The unstated evidence was "overwhelming" as to
A heterosexual case from 1944 shows police practices in catching those
engaged in sodomy. In People v. Rayol,196
a woman who left a bar with a man was noticed by police who
had followed them to the hotel, observed from an adjoining roof the
Army officer commit upon the defendant the acts outlawed by section 288a
[oral sex-in this case, cunnilingus], Penal Code.197
No privacy claim was raised, and the court did not question the right of
police to stare through windows to watch people having sex.
An amendment to the psychopathic offender law in 1945,198
in addition to removing the limitation that the sex crime had to be with a
child, created a provision for disposing of an offender who recovered from the
sexual psychopathy. The superintendent of the institution in which the
offender resided was given the power of parole and the power to set conditions
for the parole, which had to last a minimum of five years. If the person had
not recovered from the psychopathy and was considered unlikely to benefit from
further treatment, the person was to be returned to the court for unspecified
"further disposition" of the case.199
California amended its habitual offender law200
in 1945, adding sodomy to the list of crimes for which a person convicted a
second time could be considered an habitual offender. Being so labeled
guaranteed the offender life imprisonment.201
In the 1945 case of People v. Triplett,202
a California appellate court also upheld a heterosexual conviction when it
said that the indictment did not have to state the sex of the other party,
noting that state law made both same-sex and opposite-sex activity equally
A conviction for sodomy with a 14-year-old male prostitute was the subject
of People v. Brown,204 from 1945. The
appellate court overturned the conviction because the young man related
stories of violations of the oral copulation statute, but the defendant was
tried and convicted under the sodomy statute.
In 1946, in People v. Barnett,205
the California Supreme Court dealt with the curious case of a man convicted
under the oral copulation law who was labeled a sexual psychopath by three
physicians, but held not to be one by the trial court. In denying the
adjudication, the trial court sentenced Barnett to prison instead. Grand jury
testimony revealed that he
for the past 30 or more years has been homosexual in the gratification
of his sexual desires; that he has for more than five or six years last
past persistently engaged in sexual offenses with and upon young boys [sic]
ranging in age from 13 to 18 years old[.]206
The testifying physicians labeled Barnett an "invert" and said he
had no responsibility for or control over his sexual desires. However, this
inborn trait still, according to them, made him a psychopath.207
The unanimous decision of the court was that Barnett was a psychopath and
should have been committed to a mental health facility rather than to prison.208
In 1946, in People v. Dobkin,209 an
appellate court overturned one of two counts against a man for sexual activity
with a 16-year-old male. The court found that the charge to the jury on the
issue of accomplices was possibly misleading, and certainly not understandable
to lay persons.210
Also in 1946, the Court of Appeals split in its decision on an appeal in People
v. Dutra.211 Tom Dutra owned a rooming
house in Hanford and had three army officers, Nansel, Robinson, and Fox, and a
"17-year-old boy" named Silvas in his home one evening. They began
drinking and talking about "sex matters." This led to fondling and
an act of oral copulation between Dutra and Nansel.212
The "boy," Silvas, testified that
he had previously engaged in acts of degeneracy with various persons,
including one such act with Nansel; that he made the arrangements for the
gathering; that he testified in reference to Dutra that "I knew that
in case I brought any men up, that he wanted to have sex with them";
that he admitted that he told Robinson that Dutra was a
"character" or a "queer", a homosexual pervert; and
that he took an active part in the indecent things which occurred in the
The Court of Appeals believed that Silvas actually brought the men to Dutras
home for himself.214 Admitted into evidence
against Dutra was "an extremely lewd article, which is better left
undescribed."215 Also admitted into
evidence was Dutras statement to his guests that evening that
he had installed peep holes looking into various rooms in this rooming
house; that when he rented a room to a man he made a practice of watching
him through one of these holes; and that when he observed certain things
which led him to believe that the opportunity was propitious he would
enter the room, on the pretext of bringing towels or other articles, and
would offer to satisfy the man. At the trial, the sheriff testified that
at the time he arrested the appellant he found four such holes in the
walls of certain of these rooms, affording such a view of the interior as
would be most likely to facilitate such a purpose.216
One count was affirmed, the other reversed, based on questions of whether
or not Silvas was an accomplice.
In 1947, a famous person was convicted for sexual activity with a teenage
male. Tennis star Bill Tilden was sentenced to jail for "contributing to
the delinquency of a minor" by fondling him. He was released after a few
months, but was convicted again in 1949 and again served several months in
California pioneered a law known as the sex offender registration law in
1947.218 Anyone living in California, and who
had been convicted since 1944 of any of several enumerated crimes, including
sodomy and oral copulation, was required to register as a sex offender with
the county sheriff or chief of police.219
Anyone failing to register or to notify the authorities of a change of address
was guilty of a misdemeanor.220
California enacted a law in 1909221 that
provided for the sterilization of persons convicted two or more times of
sexual offenses if they showed evidence while in prison of being a "moral
or sexual pervert."222 In addition, those
sentenced to life imprisonment could be sterilized if they showed
"continuing evidence" of sexual perversion.223
Nothing in the law gave the inmate any right to a pre-operative hearing.
In 1910, California Attorney General U.S. Webb issued an opinion224
that vasectomy would be constitutional under this provision, but that
castration would not. Webb made no reference to sexual sterilization of
females, even though the 1909 law was gender-neutral.
In 1913, the law was expanded225 to permit
asexualization of inmates at almost all state institutions.
The law was amended again in 1917.226 The
web of sterilization was expanded so that no inmate in any covered state
institution could be discharged without having his or her case reviewed by the
state commission in lunacy. The commission could order sterilization
"with or without the consent" of the individual and the commission
and the person performing the sterilization were absolutely immune from civil
or criminal liability.227
Through the end of 1930, some 6,787 Californians had been sterilized, the
largest number in any state.228
By the end of 1934, the number of sterilizations in California reached
9,931, an increase of 46% in just four years.229
In 1937, the law was changed230 so that
those "lawfully committed to any State hospital" were subject to
sterilization, if "afflicted with, or suffers from"
"perversion[.]"231 Prisoners were
removed from the doomsday list, but those in non-penal institutions remained
A court challenge to the sterilization law was dismissed by the California
Court of Appeals in 1939 in Garcia v. State Department of Institutions et
al.232 By a 2-1 vote, the court issued a
29-word opinion that the facts in the writ of prohibition sought were not
"sufficient" to justify court intervention.233
In dissent, Justice White believed that sterilization without notice to the
party or to kin was a violation of due process of law.234
An analysis of the usage of the California sterilization law235
shows that the number of sterilizations peaked at 848 in 1939, that a nearly
even split between males and females was maintained until 1942, when the
percentage of sterilized females rose, and that those from institutions for
the mentally ill were sterilized more often than those in institutions for the
mentally retarded until 1943. The study did not give a reason for any
particular case being sterilized.
Period Summary: California courts operated with a legal
dichotomy during the earliest part of this period. On the one hand, they
harshly enforced the crime against nature law. On the other hand, they
restricted the definition of sodomy to anal sex and adopted a corrosive
attitude toward circumstantial evidence, reversing a number of
convictions. The legislature took 18 years to outlaw oral sex after the
California Supreme Court ruled that fellatio did not constitute the crime
against nature. When it did so, it enacted a unique law that outlawed
"fellatio" and "cunnilingus," a distinction that
caused the law to be invalidated by the California Supreme Court because
the terms were not English and in common usage. Although the penalty for
sodomy was reduced in 1921, the same year, the state also reenacted a law
against oral copulation that was broader than the invalidated law and
outlawed any act that "outrages public decency." This gave
police wide latitude to arrest people for virtually any erotic activity.
Published sodomy cases from California reveal some of the most shocking
invasions of privacy including having holes drilled into bedroom walls,
having investigators hide under beds or in false roofs, and spying into
hotel rooms. None of these invasions was challenged by the people
arrested. California was one of the earliest states, and the first outside
the Midwest, to enact a psychopathic offender law. Its scope was broadened
frequently. California also pioneered the sex offender registration law
during this period. California also was among the first states to adopt a
sterilization law, and was the first to aim it at "moral or sexual
perverts." More people were sterilized in California than in all
other states combined. In short, California was one of the most repressive
states in the nation on the issue of private, consensual sexual activity.
The Kinsey Period, 1948-1986
The second, and one of only three known, reported sodomy cases in the
United States involving a married couple was People v. Doggett et al.,236
from 1948. The married couple was prosecuted because photographs of them
engaged in oral copulation fell into the hands of the law. No privacy issue
was raised by either party.
An appellate court decided People v. OMoore,237
one of the most stereotype- and prejudice-filled sodomy opinions in U.S.
history, in 1948. OMoore, a Catholic priest, was convicted of sodomy with
three males between 15 and 18 years of age. The appellate court sustained his
conviction, and among the evidence it cited as corroborative of the charges
was that he was "unmarried" (despite being a priest), that he was
"known in San Francisco," that he "took particular interest in
boys" in his parish who had been in trouble with the law and whom he
helped. In addition, while traveling with them he once stayed in a rooming
which was frequented by Negroes. A Negress showed them to their room.238
On some occasions he signed hotel registers with the alias, "Jack
Williams and Son."239 During the course
of his trial, OMoore was asked by the prosecutor if he was Gay, to which
the defense counsel objected. The court sustained the objection but, oddly,
the defense counsel proceeded to ask the same question. OMoore denied it.
The prosecutions "reference in his argument to the jury to the many
immoral acts of the defendant" was not prejudicial, the appellate court
The psychopathic offender law received a limitation from a California
appellate court in 1948 in Ex Parte Stone.241
The court unanimously decided that the law did not permit indefinite
incarceration in a mental health facility without trial on the arresting
charges. A man arrested on a charge of molesting a girl had received all the
treatment the facility felt it could give, but was considered "so
sexually ill and mentally deranged that, without supervision, treatment, care
or restraint he would be dangerous to himself or to other persons[.]"242
The prosecutor then sought to have Stone committed until cured which, due to
the diagnosis of the psychiatrist, meant committed for life, because the
prosecution had not preserved necessary evidence to try Stone on the original
In 1948, in People v. Walker,244 a
California appellate court unanimously upheld the conviction for oral
copulation of a man with a 15-year-old boy. In this case, Kenneth Peel, the
young man in question, voluntarily went to the defendants apartment with
him, was fondled, and then returned later the same evening. Although Peel
stated that the oral copulation was against his will, he did not explain why
he voluntarily returned to Walkers apartment after having been fondled or
why he voluntarily went into Walkers bedroom.245
Another case of consensual oral copulation was decided in 1949 in People
v. Milo.246 Henry Milo and a teenager with
the last name of Sewell, but whose first name is not given in the opinion,
were found engaged in fellatio on a bridge by police officers.247
Milo was arrested, and made the mistake, when asked what was going on, of
answering, "Nothing. I was just giving the kid a blow job." The
arresting officer then asked Milo "how long he had been a queer."248
Milo claimed that there was insufficient evidence to convict him, but the
appellate court found the "eye witness" to the crime (the police) to
be sufficient evidence.249
In 1949, in People v. Tipton,250 an
appellate court upheld the right of a trial court to impose a prison sentence
on a man convicted of consensual oral copulation and adjudged a psychopath who
had been released from the mental health facility because nothing further was
thought to be able to be done for him. Tipton had been adjudged a psychopath
following an affidavit filed by his own sister for his consensual activity
An early attack on the California psychopathic offender law was published
in 1949.251 The article questioned the thought
that went into the enactment of the California law, as well as the others in
the nation, and stated that the laws were based on outmoded scientific
A law supplemental to the psychopathic offender law was enacted in 1949.253
This created a new type of troublesome person, the "mentally abnormal sex
offender." The law allowed any individual to commit himself or herself,
or to have a commitment initiated by a parent, spouse or child to a state
mental health facility for up to two years.254
An opinion255 of the California Attorney
General in 1949 stated that those committed to an institution as a sexual
psychopath were not entitled to disability insurance benefits.
In keeping with the tempo of the national paranoia of the times, separate
laws were enacted in 1950 to change the penalty for both sodomy and oral
copulation. The first was that dealing with sodomy.256
The maximum prison sentence was doubled from 10 to 20 years.257
The second amended the oral copulation statute.258
Although not changing the maximum prison sentence, an alternative sentence of
up to one year in jail was added,259 this
obviously to cover consensual activity.
In 1950, in People v. Hart,260 an
appellate court overturned the conviction of a man for committing fellatio on
a sailor. The sailor in question had a broken leg and was given a ride by the
defendant. The sailor claimed that the man ordered him into the back seat,
took a knife and passed it back and forth between his hands while stating his
desire to fellate the sailor.261 The sailor
acquiesced out of "fear" that his healing leg would be rebroken.262
The appellate court found insufficient evidence that the sailor had acquiesced
out of fear and ordered a new trial to determine if he was an accomplice to
Also in 1950, in People v. Estes,263
a California appellate court dealt with the issue of sufficient corroboration
to prove guilt in a sodomy case. Judge Paul Vallée, who probably wrote more
published sodomy cases than any other U.S. judge, and who was not the least
bit enlightened on the issue, wrote that, in addition to a defendants
"active and passive" admissions, a "defendants consciousness
of guilt is corroborative of an accomplice."264
Vallée did not explain what this meant. The case was one of consensual
fellatio in a car parked in an uninhabited area in Los Angeles. The police,
apparently without anything else to do, were out with flashlights looking for
such activity and caught Estes and his partner.265
In 1951, in People v. Bentley,266 an
appellate court unanimously sustained an oral copulation conviction secured by
a police officer looking in a window of an otherwise empty restroom and seeing
Bentley and his partner engaging in fellatio.267
In 1951, in People v. Cox,268 an
appellate court overturned the oral copulation convictions of a man for
activity with two quite willing 14-year-old males. The court found the two to
be accomplices and said that there had to be corroboration of their testimony,
something lacking in Coxs trial.
A decision with major implications for every Gay and Lesbian citizen in
California was the 1951 case of People v. Babb et al.269
Judge Paul Vallée penned a judicial abomination which linked sodomy and
vagrancy in the law. Babb had been charged with sodomy, but convicted by the
jury only of the section of the vagrancy law making it a crime to be
"lewd and dissolute." (The vagrancy law, including the "lewd
and dissolute" provision had been enacted in the 1872 Code.) He
challenged the conviction, stating that vagrancy was not a lesser included
offense within the sodomy law. First, Vallée described "vagrancy"
as including a
general course of conduct, practices, habits, mode of life, or status
which is prejudicial to the public welfare[.] [Emphasis added].270
Thus, people could be jailed as vagrants just for being someone
labeled as "prejudicial to the public welfare," without committing
any overt act. Next, after discussing that vagrancy was regarded as "a
parasitic disease,"271 Vallée went on to
[o]ne cannot commit the infamous crime against nature without being
lewd and dissolute. Lewdness and dissoluteness are necessary elements of
that offense. The infamous crime against nature and vagrancy, where the
offense is that of a lewd and dissolute person, involve essentially the
same elements of conduct. They have a common basis. It is true that a
person can be lewd and dissolute without committing the infamous crime
against nature, but the converse is not true.272
In addition, a "single act of lewdness or dissoluteness" could be
sufficient to label a person as vagrant.273
Because of Vallées generous definition of vagrants as including a status,
the reach of this decision would permit the arrest of any known Gay or Lesbian
person because Vallée said their status made them vagrant per se.
Also in 1951, in People v. Sellers,274
an appellate court upheld an oral copulation conviction over the argument of
the defendant that he should have been able to prove that he wasnt Gay.
Justice Emmet Wilson, speaking for a unanimous court, said that the California
oral copulation law
does not make a distinction as to the type of person who may commit the
act charged. It is a punishable offense whether the person is normal or
Wilson did not explain who was "normal" and who was
In another 1951 case, People v. McNeese,276
an appellate court upheld the sodomy conviction of a man for sex with a
13-year-old boy over the defendants contention that the boys father
initiated a malicious prosecution of him. McNeese claimed that the boys
father "coached" him in his accusations.277
The constitutionality of the psychopathic offender law was upheld in 1951
in Ex Parte Keddy.278 In addition, the
court held that those accused of being psychopaths had the right to bail
pending their hearing.279
The psychopathic offender law received two changes in 1951. The first280
granted to those accused of being a psychopath the right to be present at the
commitment hearing and, if indigent, permitted, but did not require, the judge
to appoint an attorney for the individual so accused281
and guaranteed the right to a jury trial.282
The second283 made failure to register as a
sex offender under the sex offender registration law grounds for initiating a
psychopathic offender proceeding.284
Also in 1951, in People v. Harris,285
an appellate court overturned the Angier precedent of a decade earlier
and decided that the mere licking of a genital organ, without any penetration,
constituted a violation of the oral copulation law. Presiding Judge Minor
Moore, writing for the court, begged away from the Angier decision,
claiming that the clear decision in that case had been misconstrued, it having
never been the intent of the court to make such a decision.286
The first known challenge to police arrests for solicitation occurred in
1952 when Mattachine Society member Dale Jennings was arrested in Los Angeles.
He claimed to have been accosted by the undercover officer, but was himself
charged with "lewd and dissolute conduct." The Mattachine Society
decided to fight the charges and at his trial the jury deadlocked 11-1 for
acquittal, and the charges were dropped.287
In 1952, Governor Earl Warren, just a year-and-a-half away from becoming
Chief Justice of the United States, signed a law288
that eliminated the maximum penalty for sodomy, setting the penalty at
"not less than one year," thereby permitting a sentence of life
imprisonment.289 The penalty for consensual
oral copulation still was capped at 15 years.290
In the case of People v. Chamberlain,291
from 1952, an appellate court again upheld a conviction for consensual sexual
relations. Chamberlain and his partner picked each other up in a theatre and
were caught in a car by police with flashlights. Oddly, the two initially had
not reacted to police car lights shining in the window of the car, and thus
were caught with their pants down.292
Civil rights leader Bayard Rustin was the most famous person to be arrested
under the oral copulation and vagrancy law as "lewd and dissolute."
In 1953, he received 60 days in jail.293
In 1953, in a non-Gay case, Ex Parte Gross,294
an appellate court explained the truly punitive nature of the psychopathic
offender laws when it said that in
the proper administration of the sexual psychopathy law there should be
no hope of early release for any sexual psychopath. Indeed, it would seem
but fair that such persons should understand that their time of
confinement may well be equal at least to time they would have served in
states prison for violation of the law, plus time spent in mental
In 1953, in People v. McMahon,296
the Court of Appeals inexplicably upheld a conviction for "assault"
to commit oral copulation of a defendant who repeatedly solicited a
hitchhiking teenager to allow him to fellate him. McMahon stopped when the
teenager threatened violence against him.297
A physicians conviction for taking improper liberties with a minor was
upheld in 1953 in People v. Coontz.298
Coontz had pulled the jeans down on a 13-year-boy doing housework for him and
placed his hand on the boys penis, bit him, and kissed him, causing the boy
to "have a consciousness of sexual feeling."299
The boy claimed that, several months earlier in receiving a penicillin shot in
his hip from the doctor, Coontzs hand "just brushed by" his
genitals. When the boy reported the second incident to his father, the father
arranged for police to install a hidden microphone in their home and arranged
for the doctor to come and be confronted by the father over his deeds. The
Court of Appeals, in those pre-Warren Court days, found nothing objectionable
about the warrantless recording of a persons conversation.300
One of only four published cases in the United States to deal with
consensual relations between women was the subject of People v. Manicap et
al.,301 from 1953. Manicap and another
unnamed woman had been spotted by police going into a motel room with
"another woman." One officer
went to the rear of the apartment and stepped on the window sill,
pushed the blind aside and observed the two defendants and another woman
lying on a bed naked. The repulsive details of what the officer witnessed
need not be recited.302
It never is stated in the opinion why the women were followed. It appears
from the above paragraph that they had left a window open, thus allowing the
police access to the room. The appellate court sustained their conviction.
People v. Massie et al.303 was decided
in 1953 by an appellate court. In this case, two consenting male partners were
tried for an act of fellatio, but only one was convicted. His unnamed partner
told the jury that he was "befuddled" by too much drink and too
little sleep to know what he was doing. This got him acquitted, but Massie was
convicted. The unanimous decision said that Massie could be convicted even
though his consenting partner was acquitted.304
In 1954, in People v. Ramos,305 Paul
Vallée again vented his spleen about sex between people of the same gender.
Sisto Ramos, representing himself, lost out in his appeal in one of the
shortest published sodomy cases in California history. Vallée said that
[r]ecitation of the nauseating details would serve no useful purpose.
Suffice it to say that a police officer who witnessed the act testified to
facts from which the trial judge could reasonably conclude that there had
In other words, police officers testimony never could be challenged and
lack of proof of penetration would not stop a conviction.
An unpublished case from late 1954 was People v. Slade. The
Mattachine Society was raising money for attorneys fees for a defendant
facing a case of "gross violations of civil rights and due process of
law" in the mind of the Society. The violations were not specified.307
In 1955, in People v. Mason et al.,308
an appellate court again upheld an oral copulation conviction of consenting
males in a restroom. Police had made peep holes in the wall between the mens
and the womens restrooms and observed Rodney Mason and his partner engage
in fellatio.309 The jurors had been taken to
the restroom to view it and on one of the stalls was written: "Rodney
Mason is a queer. Where is Rodney? Me for Rodney." Mason contended that
the jurors viewing the graffiti was prejudicial to him.310
Judge W. Turney Fox, writing for a unanimous court, noted that the trial judge
I just cant conceive of that jury, or as far as that goes, any jury
I have ever dealt with, giving the slightest bit of credence to a charge
made in that way. Even the place where it was written would detract from
any authenticity...It is so unlikely it is almost beyond the realm of
possibility, in the Courts opinion.311
Thus, even though Mason was arrested in the restroom for sex with another
man, jurors never would give credence to graffiti in that same restroom
labeling the defendant as a "queer." The appellate court concluded
that this statement by the judge sufficiently protected Mason against any
prejudice by the jury.312
In 1955, in People v. Thompson,313
the conviction of a man for sodomy and oral copulation with a physically
disabled man was sustained. The court said that "[i]t is unnecessary to
note the details; the incident was characteristic of such offenses."314
The psychopathic offender law was amended315
in 1955. Again showing the parallel failure of these laws and the growing
frustration of the public with sex offenses, California now permitted the indefinite
commitment to institutions of anyone determined to be a psychopathic offender
and found not amenable to "treatment."316
The only proviso was that no one could be committed unless recommended by
In another case from 1955, People v. Boud et al.318
an appellate court unanimously sustained a sodomy conviction for consensual
activity in a parked car. Boud had picked up a sailor and, when they were
caught, offered the arresting police officer money not to arrest him.319
The conviction of a father for sodomy with his son was the scenario in People
v. Buchel,320 from 1956. The Court of
Appeals upheld the conviction. George Buchel and his wife divorced and custody
of their two daughters and one son went to the mother, but she later allowed
the son, age thirteen, to live with his father since they were close.
After several months of sleeping together, the boy claimed that his father
began engaging in sodomy with him. Initially, he was afraid to tell anyone
because he didnt want his father to go to jail. The son allegedly began
discussing "unnatural sexual activities" with friends and was
disciplined in school for "lewd and vulgar drawings and
An opinion322 of the California Attorney
General in 1956 decided that pardoned sex offenders were not eligible to own a
firearm in the state unless they had registered under the sex offender
In what sounds like a police set up, an appellate court upheld a conviction
for oral copulation in the 1956 case of People v. Wertz.323
The unanimous decision described Warren Wertz, the plaintiff, for some reason,
as "over 77 years of age,"324 and
noted that he had been arrested for consensual fellatio with two teenagers.
The teens, James Stinson and Charles Hopkins, were with Wertz at his home,
where they apparently went frequently, and Wertz fellated each in his bedroom.
"Two police officers of the Modesto Police Department then arrived at
appellants residence[.]"325 Nothing in
the opinion explains how the police knew to show up at Wertzs house. In the
trial, the judge said that
he would not believe Stinson and Hopkins under oath as [sic]
they were perverts themselves and could have "framed" appellant.326
The judge also said, regarding the sufficiency of corroborating evidence,
though the evidence was very, very slight, it may be sufficient to
Despite these points raised by Wertz, the appellate court said that the
"evidence amply supports the conviction[.]"328
The important case of People v. Giani329
was decided in 1956 by an appellate court. In what might be considered a 1950s
version of a pro-Gay opinion, Judge Fred Wood, speaking for a unanimous court,
overturned an oral copulation conviction. Giani had won a motion for a new
trial from the court and the state appealed. Giani argued that the prosecutions
asking him in court if he were a homosexual was prejudicial. Wood was
unimpressed with the states suggestion that the appellate judges read a
series of reports on "Sexual Deviation Research" being conducted by
California.330 The judges did read the
reports, but could
find nothing therein which seems to support counsels broad claim
that every homosexual is predisposed to commit crimes, sexual
crimes, crimes of the nature of the crime defined and proscribed by
section 288a. Instead, we find such statements as these: "The facts
are that the majority of homosexuals are no particular menace to society.
A small number of them, like those who are heterosexual, will attempt to
seduce or sexually assault others or try to initiate sex relations with
Wood stated that an analogy would be to presume that all heterosexuals were
predisposed to commit rape,332 and that in a
heterosexual case of sodomy or oral copulation, that it would be proper to ask
the defendant if he or she were heterosexual in order to prove their
inclination to violate the law.333 Wood
concluded that in
the absence of expert medical testimony on the subject we hesitate to
equate the word "homosexual" with the term "sexual
The court found the question to be prejudicial and allowed the order for a
new trial to stand.335
Another abomination came in the sloppily constructed 1956 case of People
v. Goldstein.336 Goldstein had been
convicted of oral copulation with two men, one a sailor named Billy Hoss and
the other an unemployed brick layer named John Ritesman. Both accepted money
from Goldstein in order to be fellated. Hoss visited Goldstein frequently,
always bringing another man with him because he said if he went alone "he
would have to fight all day to stay away from him." (???) On this
particular day, Hoss brought Ritesman, but he previously had brought
"sailors from Moffett Field" and other Gay men.337
The unanimous per curiam opinion, in dictum, extended the Babb
rule on vagrancy to include oral copulation. Anyone charged with oral
copulation and acquitted could be convicted of vagrancy instead.338
The Goldstein case apparently was not proofread before being published,
because there are three references to case law in the opinion followed by
"[Citations]" or "[Citation]" without the citations
inserted where the author noted.339 Goldstein
had been charged with fleeing from the law upon being charged with oral
copulation, but the appellate court noted that it was an unfair charge,
considering the fact that Goldstein already was out of the country
before the accusations were filed. His conviction was overturned.340
In 1956, the Attorney General of California issued an opinion341
that state law permitting alternative jail sentences of up to one year in lieu
of a longer penitentiary sentence could not be interpreted to apply to all
crimes. It could apply only to those that specifically had such a proviso
within them,342 the oral copulation law being
one of them.
In a fourth case from 1956, People v. Morgan et al.,343
an appellate court sustained the sodomy conviction of two men. They had been
caught in the act by police and, after booking, taken to a hospital where the
police requested a physician to make slides for them to use in evidence.
Although neither objected, the physician
took from appellants private parts certain fecal matter from which
he made some smears and slides that were introduced into evidence over
defendants objection that they were obtained by unlawful search and
The court rejected this contention, as well as the contention that there
was no proof of penetration. Although the arresting officer
said it would be impossible to state that he saw penetration; his
description of what he saw left no room for a negative inference.345
The psychopathic offender law received yet another desperate adjustment346
in 1957. Probation could not be granted to anyone processed under the
psychopathic offender law without a record of the "prior record and
history" of the individual being presented to the parole board.347
In 1957, in People v. Hurst,348 an
appellate court unanimously upheld an attempted sodomy conviction of two
prisoners. A trusty in the San Diego city jail overheard a statement
"Now, we can have sexual intercourse all night," but was uncertain
who said the words. The trusty looked into the cell and saw them kissing.349
Also relevant, the court believed, was that Hurst had told a police officer
that he was homosexual.350
Consenting males in a public restrooms closed stall were the subjects of
People v. Strahan et al.,351 from 1957.
Wilburn Strahan and Hipolito Besada were seen entering the same stall by May
Company detectives. One detective got on the floor from his vantage point to
see two pairs of feet and the other stood looking over the partition at
Strahan and Besada.352 Coming five years
before the Bielicki case gave privacy rights to restroom stalls, the
defendants did not appeal to the California Supreme Court, which might have
issued a pro-privacy decision in their case as well.
In 1958, another opinion353 of the Attorney
General decided that state law limited the amount of pay to be given to
court-appointed psychiatrists in sexual psychopath cases. The effect of this
decision was that psychiatrists might decline to assist in psychopathy
A theatre that lost its license for being adjudged a public nuisance was
the subject of the 1958 case of Tarbox v. Board of Supervisors of the
County of Los Angeles et al.354 The Carmel
Museum Theatre in Los Angeles had been closed by police because
19 men were placed under arrest in the theater during the showing of
pictures on charges of violation of section 647, subdivision 5 of the
Penal Code (vagrancy, lewd). These arrests were all based upon attempts by
the persons arrested to place their hands upon the private parts of
members of the sheriffs vice squad (plainclothesmen) who had seated
themselves as decoys in the theater.355
Tarbox, the owner of the theatre, learned from the arrests
that persons of homosexual propensities were among his patrons and that
they had attempted lewd acts within the premises. He then attempted to
retain deputy sheriffs in uniform to work in the theater during their off
hours but after this was first arranged he was advised that it was against
the policy of the sheriffs department to permit the sheriffs
deputies to take outside employment and that he should get a private
detective to do that work.356
Tarbox did hire a detective who "requested persons who were believed
to be of undesirable character to leave the theater although no lewd acts were
observed."357 Despite Tarboxs efforts,
the theatre was closed as a public nuisance, allegedly the only way the
authorities knew to stop the sex.358 The
appellate court said that Tarbox
could not legally refuse admission to any person even though he knew
him to be a homosexual unless that person had theretofore committed a lewd
act upon the premises[.]359
The court found the action of denying the license to be unreasonable and
directed the trial court to order the license to be restored.360
In 1958, well-known psychiatrist Karl Bowman asked the California
legislature to repeal laws against consensual sexual activity.361
It would be close to two decades before the legislature acted.
Another public nuisance case was the 1959 case of Sultan Turkish Bath,
Inc. v. Board of Police Commissioners of the City of Los Angeles.362
Appellate court judge Paul Vallée wrote another judicial abomination. The
bath had been closed by police as a nuisance because of sexual activities on
the premises. Vallée noted, in reviewing the evidence from the trial court,
that he was "disregarding conflicting evidence" to make his
decision.363 In other words, any evidence
favorable to the defense would be ignored. With that action, there was no
doubt of the direction of his opinion. An arresting police officer named
Blakley, with stereotyped ungrammatical confidence, said that many times
during his duties as an undercover officer at the baths, "there was
hardly no one in the place." Despite that, he and his partner made about
fifty arrests in a period of six months.364
Eleven arrests were made in three months during that six month-period and in each
arrest Blakley or his partner
personally saw two men together in an adjoining cubicle engaging in
some form of sex perversion.365
The "some form" proviso undoubtedly allowed arrests for any kind
of erotic activity under the states vagrancy law. Vallée also recited
Blakleys star witness testimony that he had seen "two men engaging in
homosexual activity or sex perversion."366
He did not explain how some sexual relations between two men was not
"homosexual activity," but instead "sex perversion."
Vallée also noted that there was
no conflict in the evidence that numerous and frequent illegal,
immoral, disgusting, and indecent acts were committed on the premises.367
The three last epithets used by Vallée certainly were curious. There were
acts taking place that were "immoral," "disgusting" or
"indecent," but apparently legal, and those were also justifiable in
closing down the baths. Vallée then stated that the regulating board may have
"reasonably inferred" from the owners stated desire for the
privacy of his patrons was because
he was not concerned with what went on in them. [He] was willing to
sacrifice morality, decency, and lawfulness in order that his patrons have
Again, Vallée concerned himself with more than illegality, adding
"morality" and "decency" to the criminal code on his own.
In 1959, in People v. Schulze,369 an
appellate court upheld the conviction and sentence of a man for oral
copulation, even though his partner had his charge reduced and received only a
fine. Judge Allen Ashburn said that
the facts asserted by appellant, if established, would not spell
prejudicial error with respect to him. The punishment inflicted upon
appellant was lawful. Legally it is of no consequence to him whether his
codefendant received undeserved leniency or not.370
One only can guess that, in this case, Schulze had taken the
"female" role in the act and thus was punished more severely than
the partner taking the "male" role.
Also in 1959, in People v. Thurmond,371
an appellate court overturned the conviction of a man for 20 counts of oral
copulation with two consenting teenagers. The "corroborating"
evidence relied upon by the state was so flimsy that every single piece of
it was rejected by the court. Among the evidence: that the teenagers
stayed overnight with Thurmond, that Thurmond allowed them to use his car and
motorcycle, that Thurmond had a boot fetish and had photographed both boys in
boots, and that Thurmond hid from one teens mother the fact that he let the
teen ride his motorcycle.372 The court
rejected the states contention that an adult male hanging around teenage
males was suspicious and indicative only of a sexual relationship with them.373
In a fourth 1959 case, People v. Perras,374
an appellate court upheld the sodomy and oral copulation conviction of a man
for relations with Leonard Lindbeck. Lindbeck, known as "Lindy," was
a 15½-year-old, apparently extremely attractive, sensuous, and sexually
experienced young man. In addition to Perras, Lindy had relations with his own
sister and with Perrass son. The elder Perras walked in on them engaged in
fellatio in the bedroom and "he had become aroused when he saw the
boys."375 Perras also acknowledged to a
police officer that
he had kissed Lindy; that he may have had an erection in Lindys
presence, and that he may have masturbated in the house while Lindy was
there. Lindys mother testified that Lindy stayed overnight at appellants
home on an occasion in July so that he might attend Cinerama and that
appellant had "kissed" Lindy in her presence.376
Although the appellate court noted that many of Lindys answers in the
trial were "nonresponsive" to the questions asked, it found no error
in Perrass trial and affirmed his conviction.377
The creative case of People v. Ragsdale,378
from 1960, raised several issues. The most important was a constitutional
challenge to the oral copulation law. Ragsdale was a prisoner in San Quentin
and he and another prisoner had been caught engaging in consensual fellatio in
their cell. Ragsdale argued that the premise for such a law merely was to
encourage procreation and that the justification ended once someone was
incarcerated.379 Judge Maurice Dooling
rejected the argument, saying that no
authority is cited for the major premise and the making of unnatural
sexual relations a crime is embedded in the history of the common law and
finds its sanction in the broader basis of the settled mores of our
western civilization. There is a considerable body of opinion that as
between willing adults the question should be left to moral sanctions
alone and eliminated from the criminal law. That however presents a
legislative questions [sic] and not one for the courts. [Citation
The 1960 case of People v. Rucker381
was the result of a busybody who couldnt mind his own business. Rucker and
his consenting partner were enjoying sex with each other in a closed toilet
[b]y looking through the opening beneath the bottom of a stall door, an
elevator man working in the building observed the feet of two men in one
of the stalls. He summoned three other men employed in the building, one
of whom looked over the top of the stall partition and observed defendant
committing the offense with another man named Smith. The police were
called and defendant and Smith were restrained from leaving the stall
until the police arrived.382
Nothing explains why the elevator man felt constrained to look under the
door, or why the other felt constrained to look over.
In 1961, in People v. McFadden,383
an appellate court upheld the oral copulation conviction of a man for
fellating a 15-year-old male spending the night with him. The young man
testified that the act occurred against his will, but made no effort to cry
out to another man asleep in the room to help him.384
The first crack in California law came in 1961 with the replacement of the
vagrancy law with a "disorderly conduct" law.385
The old "vag-lewd" law disappeared, but was replaced by additional
troublesome, albeit more specific, language. Anyone committing any of eight
acts was guilty of a misdemeanor. Included were anyone
[W]ho solicits anyone to engage in or who engages in lewd or dissolute
conduct in any public place or in any place open to the public or exposed
to public view.386
Who loiters in or about any toilet open to the public for the purpose
of engaging in or soliciting any lewd or lascivious or any unlawful act.387
This law still gave wide latitude to police to determine what conduct was
"lewd or dissolute," but at least limited the authority to public
In early 1962, it was mentioned that there was "interest and
discussion" about appointing a criminal code revision commission, but no
action had been taken.388
A major victory occurred in the 1962 case of Bielicki v. Superior Court
of Los Angeles County.389 The California
Supreme Court unanimously granted the motion of Robert Bielicki that the
Superior Court be restrained from trying him on a sodomy charge. Bielicki had
been caught in a restroom by a police officer hiding in the roof at the
request of the owners of the amusement park in which the restroom was located.
The owner asked the police to "do something in regard to the homosexual
activity going on inside the toilets."390
Officer Hetzel of the Long Beach Police Department vice squad spent a lot of
time in the roof watching men in the restroom. He testified that he went there
"a lot of times" every week and watched "[u]ntil we make an
arrest, or until we see that we cant make an arrest."391
The searches and the resulting arrests all were without warrant.392
Justice B. Rey Schauer, writing for the Court, found that the warrantless
search was also unreasonable. Until he got into the roof space, Hetzel
had no reasonable cause to arrest these petitioners. He had no grounds
for believing or even suspecting that they had committed or were then
committing any crime, or that they were occupying the booths for anything
other than a lawful purpose. Indeed, the officer testified that he had no
prior knowledge of petitioners and had never seen them before looking
through the pipe. According to the officer it was his practice "a lot
of times" each week to climb up on the roof of the restroom, uncap
the spypipe, and observe the occupants of the toilets belowi.e., whoever
they might be. On each occasion, it will be remembered, the officer
would remain on the roof "Until we make an arrest, or until we see
that we cant make an arrest." In so doing, he spied on innocent
and guilty alike. [Emphasis the Courts].393
Schauer concluded by saying that the authority
of police officers to spy on occupants of toilet boothswhether in an
amusement park or a private homewill not be sustained on the theory
that if they watch enough people long enough some malum prohibitum acts
will eventually be discovered.394
The Court granted Bielickis petition and prohibited the State of
California from trying him.395
Another case decided the same day, Byars v. Superior Court of Los
Angeles County,396 led to another
unanimous reversal of conviction of the same grounds as Bielicki.
A third very similar case led to an identical conclusion in Britt v.
Superior Court of Santa Clara County,397
from later in 1962. Paul Britt had been arrested for oral copulation in an
almost identical manner as had Bielicki, with police positioning themselves in
the roof of a restroom to watch everyones actions in the stalls. In this
case, however, Britt was filmed by Officer Nichols in the act of fellatio, and
no warrant had been issued for the roof search.398
The state argued that Britt was distinguishable from Bielicki in
that the vent in the roof had not been installed solely for spying purposes
and that the toilets where Britt was caught were not pay toilets, as in the
case of Bielicki. Justice B. Rey Schauer dismissed the claims and said
[n]either of these factual differences, however, is legally
significant; the purpose for which officer Nichols used the vent was
certainly not the purpose for which it had been installed, and it cannot
be said that petitioner "impliedly" consented to such
observation merely because the toilets could be occupied without paying a
Schauer and his unanimous colleagues cloaked a right of privacy (three
years before the U.S. Supreme Court pronounced it in Griswold) around
individuals by saying that there was no
license to surreptitiously invade the right of personal privacy of
persons in private places. Mans constitutionally protected right of
personal privacy not only abides in him within his own castle but cloaks
him when as a member of the public he is temporarily occupying a roomincluding
a toilet stallto the extent that it is offered to the public for
private, however transient, individual use.400
Schauer noted that Officer Nichols testified as to his operation in the
vent. "Anyone who happened to come in Id give a description [by radio]
of who it was and where they were." Schauer concluded that this was a
general search forbidden by the Constitution.401
The California courts were not uniformly generous in this regard. The
important distinction in these cases was raised in People v. Norton,402
also from 1962, decided just a month after Britt. An undercover police
officer hid in the restroom of a San Francisco theatre for the sole purpose of
catching men in sex acts. Norton had been caught in an act of fellatio. The
appellate court unanimously upheld his conviction, distinguishing his case
from Bielicki. The toilet stalls were not enclosed and the court
concluded that privacy rights did not attach to sexual activity therein.403
Another case, from 1963, was People v. Young,404
that followed Norton. Police hid themselves to look into a restroom,
but Young and his partner committed fellatio in a stall that was not enclosed
and therefore visible to anyone who walked into the room, so he lost out on
his privacy claim. Curiously, Young told the arresting officers that
while he was waiting to pick up his wife he thought he would go into
the restroom for the purpose of getting some relief sexually. When asked
if he had been there before, defendant replied he had been there several
times in the past.405
Meanwhile, a decision that effectively gutted all city ordinances dealing
with sex and morals, In Re Lane,406 was
handed down in 1962 by the California Supreme Court. The Court held that,
since the legislature had enacted a broad range of sexual prohibitions, it was
to be presumed that the legislature intended for those laws to preempt any and
all city ordinances on the same subject. A later effort at an initiative to
overturn this decision failed to get onto the 1966 ballot.407
In 1963, an appellate court decided People v. Earl,408
a case that sounds like something out of the earlier part of the century. Two
men accosted servicemen in San Diego and offered to take them to a hotel for a
rendezvous with female prostitutes. However, after getting them into the
hotel, serviced them themselves. Police watched the mens activities,
followed them, and listened through the hotel room door to sounds
"resembling a bed squeaking" and "kissing type" noises.409
The police looked through a transom and saw undressed men on the bed
"embracing and kissing each other."410
The police entered without a warrant and arrested the men for oral copulation,
although they were not seen engaging in it. The appellate court found that the
search was legal and upheld the conviction.
Also in 1963, in People v. Cantu,411
the Court of Appeals unanimously upheld the conviction of a man for oral
copulation with a teenager for whom he pimped in Hollywood. The teenager,
known in court records only as "Dennis," had been granted immunity
from prosecution in exchange for his testimony.412
A major overhaul to the psychopathic offender law was enacted413
in 1963. The terminology used in the past was discarded, and these troublesome
people now were called "mentally disordered sex offenders."414
Added to the law was that the conviction of any misdemeanor, whether or
not sexual in nature, could invoke the law against an offender.415
Those already under the control of the state under the old psychopathic
offender law would remain so under the new law,416
and persons committed under the law now were required to pay for their
confinement, regardless of its length or expense,417
except for a portion required to be paid by the county which sent them there.
The countys portion was limited to a maximum of forty dollars per month.418
Private, consensual activity with an experienced teenager was the subject
of People v. Munton,419 from 1963.
Munton and seventeen-year-old William Wallace went to a motel for sex, but the
jury acquitted Munton of those charges because they believed Wallace to be an
accomplice, and his testimony had not been corroborated, as required by
statute in California.420 He had been
convicted on two other counts with Wallace, and one obviously non-consensual
count with Richard Bailey. As a demonstration of both the abuse and
uselessness of the psychopathic offender laws, Munton had been labeled "a
probable sexual psychopath" by doctors appointed by the court. He was
sent to a mental institution, where, four months later, he was sent back
saying that he was not a sexual psychopath.421
In late 1963, one trial judge in Los Angeles instituted a rule that all
"convicted homosexuals" would be required to undergo blood tests for
venereal disease. There were between 70 and 100 convictions per month in Los
Angeles County alone under the 1961 disorderly conduct law.422
Apparently, there was no challenge to this policy.
Two men were arrested in early 1964 in Yosemite National Park for engaging
in sex in the park. They told the judge that they had heard it was a popular
place for Gay men from California to go. The unnamed judge responded:
"Yosemite is not a pansy paradise."423
Another case in which an open toilet stall proved to be, constitutionally
speaking, the wrong place for two men to have sex was People v. Hensel,424
from 1965. The appellate court followed the Norton rule that privacy
rights did not attach to sex in a place that was in plain view of the public.
In 1965, an appellate court decided People v. Russell.425
Russell had an ongoing relationship with 16-year-old Larry Slager and told
Slagers mother that the teen "stripped him of his manhood,"426
presumably meaning that Slager had seduced him. Only Russell was
arrested and he complained to arresting police that Slager should be charged
with the same offense. Unfortunately, Russell incriminated himself with these
statements, and the appellate court found them admissible as corroboration.427
The "mentally disordered sex offender" law received another
adjustment428 in 1965. The reach of the law
was extended to juveniles over the age of 16.429
An attempt to control the uncontrollable was the 1965 amendment to the
disorderly conduct law.430 This law, signed by
liberal Governor Pat Brown, amended a provision of the law to declare as
[w]ho solicits or who engages in any act of prostitution. As used in
this subdivision, "prostitution" includes any lewd act between
persons of the same sex for money or other consideration.431
Thus, police now had three, rather than only two, provisions of the
disorderly conduct law to use against Gay men or Lesbians. This clearly
discriminatory law also exempted heterosexuals from the exceptionally broad
"any lewd act" provision.
Federal court turned out to be the wrong place to look for sympathy in a
case of restroom surveillance. In 1965, in Smayda v. United States,432
the Ninth Circuit split 2-1 to uphold oral copulation convictions of two men
after they had been observed from overhead from holes cut into the ceiling of
a restroom in Yosemite National Park. The court rejected the contention that
the federal court had to follow California case law via the Assimilative
Crimes Act, under which they were prosecuted. Although it was that federal law
that permitted prosecution at all, the court said that "it does not
incorporate the whole criminal and constitutional law of California."433
In other words, the court would use the law to prosecute, but ignore it when
it came to guarding the defendants rights. The restrooms in which they were
caught were "almost public."434 When
the police have reasonable cause to believe that public toilet stalls
are being used in the commission of crime, and when, as here, they confine
their activities to the times when such crimes are most likely to occur,
they are entitled to institute clandestine surveillance, even though they
do not have probable cause to believe that the particular persons who they
may thus catch in flagrante delicto have committed or will commit
the crime. The public interest in its privacy, we think, must, to that
extent, be subordinated to the public interest in law enforcement.435
In a concurring opinion, Judge Pope referred to the restroom as a
"hangout for lechery and debauchery in the form of homosexuality, sodomy
and pederasty" and said that "[a]nything which the manager, as
manager, did to stop this sort of thing would not call for judgment under the
Fourth Amendment."436 In other words, the
constitution could be suspended at will by a park manager. A "somewhat
less strict view of what is adequate proof of probable cause for search must
A victory in restroom cases came in the 1966 case of People v.
Maldonado,438 although for a different
reason. The toilet stall was open and Maldonado testified that
the blond man had enticed him and it was almost like entrapment, that
he stood there waiting for it. I couldnt help myself so I went down
The conviction still was overturned because of the trial judges error in
instructing the jury to hold against him the fact that he had remained silent
when accusatory statements were made to him.440
A critical review of the California laws dealing with homosexuality and
their enforcement in Los Angeles County was published in 1966.441
This article included detailed interviews with Los Angeles police, as well as
minutes of vice squad meetings to document harassment and discrimination. Some
927 arrests were analyzed, 493 for sodomy or oral copulation and 434 for
disorderly conduct. Of the total, more than half the disorderly conduct
arrests came about from entrapment. Among other details, 5% of the arrests
were met with violent resistance by the arrestees. "Decoys" were
used widely by police in order to be solicited by a Gay man so that an arrest
could be made. Policewomen were not permitted to engage in decoy work because
it was "too degrading." In 98% of all cases, the only
"evidence" against the Gay men was the word of the arresting police
officer. The ratio of Gay men to Lesbians arrested was 99:1. The Santa Monica
police had a system of keeping a file on suspects who had been questioned by
police. If stopped again on suspicion, they were arrested automatically for
"loitering for a lewd purpose." Marked police cruisers parked in
front of Gay bars and all patrons were questioned as they left the bar. Many
arrests for jaywalking were made.442 Tables
included as an appendix showed that 70% of the arrestees had no previous
arrest records, that 98% of the arrests were warrantless, 5% of the arrests
for sodomy or oral copulation occurred inside the defendants home versus 1%
for disorderly conduct, 98% of arrestees waived jury trial, and that 93% of
the felony charges were for oral copulation versus 7% for sodomy. Twenty-six
percent pleaded guilty to the crime charged, and 4% did so to a lesser
offense. Fully 70% pleaded not guilty.443
In 1967, in People v. Dudley,444 the
appellate division of the superior court upheld, under the disorderly conduct
law, a conviction for soliciting an undercover vice officer. The solicitation
occurred on a public sidewalk, but Dudley requested the officer to go home
with him for sex.445 He argued that the
wording of the law outlawed only solicitations for sex in public, but
the court, speaking through Judge Whyte, said that the court
cannot believe the Legislature intended to subject innocent bystanders,
be they men, women or children, to the public blandishments of deviates so
long as the offender was smart enough to say that the requested act was to
be done in private. Nor do we feel the legislators were unaware of the
open, flagrant and to decent people disgusting solicitations of sexual
activity which have occurred on the public streets of some of our cities.
Moreover, it is not to be forgotten that to some a homosexual proposition
is inflammatory, which public utterance might well lead to a breach of the
Whyte said nothing about heterosexual solicitations, apparently believing
that they did not exist.
In yet another restroom case, People v. Roberts,447
from 1967, convictions were upheld for engaging in oral copulation in a public
area of a restroom. The police photographed and made notes about men they
witnessed in the act and arrested Roberts two weeks after his act.448
The appellate court, speaking through judge Norman Elkington, reiterated case
law in California on restroom sex,449 and
rejected the constitutional challenge to the oral copulation law. Elkington
merely quoted from Ragsdale in rejecting the notion.450
The issue of consenting prisoners came up in People v. Frazier,451
from 1967. Frazier and another prisoner were caught in a consensual act of
sodomy in a cell and claimed the right to privacy as enunciated by the Supreme
Court. Speaking for the unanimous appellate court, Presiding Judge Murray
Draper rejected Fraziers Griswold claim. Frazier
wholly fails to bring himself within the ambit of Griswold. His
relationship with his fellow prisoner can hardly, under the most advanced
views of those who decry the current rigidity of moral judgments, be
deemed "noble" or "basic." Even if the homosexual
relationship of consenting adults were deemed entitled to the cloak of
privacy in life outside prison walls, appellant cannot don that cloak. It
is common knowledge that homosexuality is the underlying cause of many
instances of prison violence. To compel prison officials to afford privacy
for such activities of inmates would be to dispel hope for discipline and
order within the walls.452
Draper was unable to explain how the cited consensual act, unknown to
anyone else in the prison, would lead to violence or disorder. The court also
rejected Fraziers contention that being prosecuted for sodomy in prison
constituted cruel and unusual punishment.453
Apparently some of the things that mentally disordered sex offenders did
were pretty heavy to hear. A 1968 amendment454
to the offenders law permitted psychiatric reports to be received in evidence
by a court without them being read before the court.455
A disorderly conduct conviction was the subject of People v. Mesa,456
from 1968. Gilbert Mesa was in a Los Angeles area bar and spotted an
undercover police officer named Ricketts who aroused lust in him. He walked up
to him and engaged him in conversation, then whispered, "Youre a doll
and Im crazy about you." He then began caressing Rickettss thigh,
placed his tongue in Rickettss ear, and solicited him. Ricketts then asked
Mesa to leave with him, arresting him in the rear parking lot.457
Mesa, like Dudley before him, argued that the law as worded outlawed only
solicitations for sex in a public place, rather than solicitation in a public
place for sex elsewhere. Acknowledging that the law was "inartfully
drawn," the court nevertheless decided that it was solicitation in
a public place rather than sex in a public place that the legislature
intended to outlaw.458 This was despite
quoting from the legislative report on the new disorderly conduct law that the
law was aimed at "conduct when it occurs in public
view." [Emphasis added.]459
Another restroom case was People v. Heath,460
from 1968. The appellate court again rejected the contention that a police
officer observing an act of "sexual perversion" occurring in a
doorless toilet stall constituted a search since the act was visible to anyone
entering the restroom.461
In 1969, the Attorney General of California issued an opinion462
that the mentally disordered sex offender law was civil in nature, not
criminal, and, therefore, the necessity of an individual so adjudged to
register with the local sheriff was not terminated by the completion of a
An amendment to the mentally disordered sex offender law in 1969,464
signed by Governor Ronald Reagan, created a unique and inexplicable provision.
No one could be committed under the law if that person
is being treated by prayer in the practice of the religion of any
well-recognized church, sect, denomination or organization[.]465
An exception was if the person was determined to be "dangerous to
himself or to the person or property of others, or unless being a minor, his
parent or guardian having custody of his person shall consent to such
detention or commitment."466
Also in 1969, the disorderly conduct law received some change.467
The prostitution section was amended to eliminate the "of the same
sex" discrimination, thus allowing the prosecution of heterosexuals
The California Attorney General issued an opinion469
in 1970 that a new state law opening government records to the public did not
open sexual psychopathy records.
In the 1970 case of Barrows et al. v. The Municipal Court of the Los
Angeles Judicial District of Los Angeles County,470
the California Supreme Court decided that the states sex offender
registration law could not be applied to actors for engaging in "lewd or
dissolute conduct" on a stage.471
A curious retreat in the restroom cases occurred in 1970 in People v.
Crafts et al.472 Crafts and his partner in
fellatio were spotted in a restroom by police looking through an opening in an
adjoining room, the room having no other purpose than allowing its occupants
to watch everyone in the restroom. The trial court dismissed the case on the Bielicki
precedent, but the Court of Appeals reversed. Judge Roy Gustafson believed
that the trial judge would not have dismissed the case if he had been aware of
California case law on sex occurring in doorless stalls. In an amazing
statement, Gustafson said that the
time has long since passed when a superior court judge in Los Angeles
can afford to spend the time researching the case law before ruling on a
motion of this kind. A judge expects, and has a right to expect, that the
attorneys for the litigants will call to his attention the pertinent case
law so that he can promptly rule on the motion.473
In other words, judges can be expected to be ignorant of the law, have a
right to be ignorant, and rulings they make in light of that ignorance still
guarantee due process of law.
A case of heterosexual sodomy is presented here only to show the lengths to
which the police would go in their undercover work. In 1971, in People v.
Brocklehurst,474 the oral copulation
conviction of a woman working in a massage parlor was overturned by an
appellate court. Undercover police officer Larry Taylor entered the
establishment and permitted her to fellate him, arresting her only after he
had climaxed. Brocklehurst successfully argued that Taylor therefore was an
accomplice whose testimony was not corroborated. The State argued that, since
he was working undercover, he actually was not an accomplice.475
Judge Vincent Whelan noted that "Taylor was not acting under any kind of
compulsion; his participation was voluntary."476
He also said, "[i]f the crime of which defendant was convicted was in
fact accomplished, Taylor was an accomplice."477
It is unknown if the State of California decided to prosecute the police
officer for knowingly and willingly committing a crime for which he must have
arrested others routinely.
In the 1971 case of People v. Metcalf,478
a restroom sex case ended up in a victory, but not for constitutional reasons.
The California legislature had enacted a law making it a crime to install a
two-way mirror in restrooms, and Metcalf was caught in oral copulation by
police hiding behind a door. Judge John Aiso, writing for the unanimous
appellate court, decided that the action of the police violated "the
spirit" of the mirror law and overturned the conviction.479
The collision of criminal law and creative expression (also see New York)
occurred in the 1973 case of People v. Drolet et al.480
A live sex show, in which oral copulation was performed on the stage, was the
subject of the prosecution. The performers had been arrested. Judge Bray of
the appellate court discussed the evidence. Using language that largely had
disappeared from the courts in sodomy cases, he said that it was
unnecessary to give the disgusting and lurid details of the public
performance produced at the Outer Limits Club. Suffice it to say that
after a skit called "Adam and Eve," narrated by a fully clothed
female in which she pointed out in gutter vernacular the intimate portions
of the male and female bodies illustrated by appellant Drolet and a male
performer, one Wells, both in the nude, appellant Drolet proceeded to
orally copulate the penis of the male and in a following skit proceeded to
demonstrate the use of a dildo.481
Rejecting privacy482 and freedom of
expression483 arguments, Bray quoted from a
previous case that, as far as entertainment value was concerned, it was
the Romans of the first century derived entertainment from witnessing
Christians being devoured by lions. Given the right audience, the
spectacle of a man committing an act of sodomy on another man would
provide entertainment value. However, neither this spectacle nor the
activities described in the instant case are invested with
constitutionally protected values merely because they entertain viewers.484
He added that, "[j]ust what idea public oral copulation is supposed to
express other than a desire to appeal to the prurient interest has not been
suggested by appellants."485 An aside
here. Although Drolet and Wells were equally party to the act of fellatio,
Wells was sentenced to prison and Drolet received only probation, showing that
courts were more lenient with female defendants in such cases.
In a related case from later in 1973, People v. Parker et al.,486
an appellate court upheld the conviction of a motion picture producer for
producing a film in which actors and actresses engaged in oral copulation. He
was convicted of conspiracy to violate the oral copulation law and aiding and
abetting its violation.
California police still were practicing voyeurism in the 1970s. In the 1973
case of People v. Triggs,487 the
California Supreme Court unanimously overturned the conviction of Leroy Triggs
for oral copulation in an open stall in the restroom. The conviction still
deserved to be reversed, the Court said, because police had no suspicion to
observe Triggs. They became suspicious merely because he had been in the
restroom for ten minutes and another man had entered five minutes after Triggs
Another challenge to the oral copulation law failed in the 1974 case of People
v. Baldwin et al.489 Baldwin claimed that
the law established religion and that it violated the right to privacy.490
Judge Vincent Whelan rejected both claims. First, discussing the religion
issue, he agreed that most sexual crimes originally had been ecclesiastical in
nature, but stated his personal objection that, if he went along with Baldwins
claim, the incest law also would be unconstitutional, an action that he,
without saying so, obviously felt uncomfortable doing.491
He then stated that any
nondormant legislative enactment of long standing reflects a public
consensus, however arrived at and from whatever derivation, as to the
subject matter of the legislation.492
Whelan did not define "nondormant" legislation, or explain why
"dormant" legislation of long standing was not also in the public
consensus. In effect, he said that any law, no matter how blatantly
unconstitutional, became constitutional solely by going unchallenged. He also
rejected the privacy claims,493 and gave away
a lot of his own prejudices when he added that the
real thrust of defendants arguments is that oral copulation is and
should be recognized as a socially acceptable practice. When, therefore,
they speak of a constitutional right to privacy or a right to be protected
from an unconstitutional deprivation of their right to liberty, they seek,
in effect, judicial repeal, actually, for social reasons, but under the
handy guise of a vaguely defined constitutional right, of a law the repeal
of which by the Legislature on social grounds has not been brought about.
That, of course, echoes the argument of the congenital homosexual to
whom that is natural which the vast majority of the population deems
unnatural. However, there are those also who are described as
"perverts who have turned to homosexual practices entirely of their
own free will." [Footnote and citation omitted].494
Also in 1974, in Silva v. Municipal Court for the Oakland-Piedmont
Judicial District of Alameda County,495 a
disorderly conduct arrest was permitted to go to trial over the contention of
the defendant that the solicitation for which he was arrested was a
contravention of the First Amendment. Citing earlier California cases that
held the "lewd or dissolute" language of the disorderly conduct law
was synonymous with "obscene," the appellate court held that
obscenity was not protected by the Constitution.496
In 1974, California voters adopted an amendment to the State Constitution497
that expanded the Declaration of Rights to include
[a]ll people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and obtaining
safety, happiness, and privacy.498
After years of lobbying, and after the adoption of the explicit privacy
language in the California Constitution, a consenting adults law was enacted
in 1975.499 Although not repealing either the
sodomy or oral copulation laws, it excluded private consensual activity among
those over the age of eighteen from their reach.500
One hysterical provision was a sentence of up to 15 years in prison for anyone
engaging in sodomy or oral copulation with someone under eighteen.501
This obviously included an eighteen-year-old engaging in a consensual act with
a seventeen-year-old. Also included were specific criminal penalties for
consensual sexual relations by prisoners, of up to five additional years in
prison.502 No change was made in the
disorderly conduct law, which would continue to cause problems.
This law did not get enacted easily. First, in the vote in the State
Senate, it ended in a 20-20 tie, which was broken in favor of passage by
Lieutenant Governor Mervyn Dymally. Second, an effort at a referendum on the
law was made, although opponents failed to get enough signatures.503
The fifteen-year penalty for sexual activity with those under 18 was
reduced with a second law504 passed in 1975.
The maximum penalty for consensual sex with someone under 18 was lowered to
five years.505 Thus, an eighteen-year-old
could get five years in prison for a consensual sexual act with a
Although the repeal of the consenting adult law rendered the psychopathic
offender law moot as far as consensual activity was concerned, it is important
to note that a study of the law506 showed its
failure. Proceedings under the law cost close to three times imprisonment, and
the law was "scientifically unsound" and "ineffective[.]"507
At the time of the repeal of the consenting adult laws, a study508
was published that revealed that one man sentenced under the psychopathic
offender law was sentenced only "for making suggestive comments to the
paperboy."509 Nothing in the study
suggested actual sexual activity.
Also in 1975, a prominent man was arrested for groping an undercover police
officer in a theatre in Hollywood. Maurice Weiner, the arrestee, was a deputy
mayor of Los Angeles.510
In 1976, in People v. Williams,511 a
conviction under the disorderly conduct statute was sustained. Douglas
Williams had been arrested for masturbating in a restroom in the presence of
an undercover police officer. Judge Lynn Compton, speaking for the appellate
court, rejected a vagueness challenge to the words "lewd and
dissolute," saying that the English language
simply does not contain words which can always be characterized as the
optimally precise and only term for describing a particular thing or
Compton also said that no
reasonable person be he juror or defendant would have any difficulty
understanding, even under todays liberal attitudes toward sex, that
masturbation in a public place in plain view of anyone who may be on the
premises is "lewd and dissolute."513
The court also rejected Williamss contention that "sexual
motivation" had to be proven to sustain a charge under the law by saying
that the issue did not need to be decided. It believed the evidence was
sufficient for them to see such a motivation anyway.514
In 1976, in People v. Ledenbach,515
an appellate court rejected three contentions of a man arrested for loitering
in a public restroom. First, it rejected his claim that the terms
"lewd" and "loiter" were unconstitutionally vague, solely
by citing previous cases to the contrary.516
Ledenbachs claim that the law punished a status, namely loitering, also was
rejected because the court found that it outlawed "loitering for a lewd
or lascivious purpose."517 The court also
refused to believe that the law was overbroad and infringed on free speech,
saying that "[t]he promulgation of ideas by pure speech is a process far
removed from the subject matter [of the loitering law.]"518
To show how the continuance of the disorderly conduct law caused problems,
the case of People v. Rodrigues,519
from 1976, is as good a reason for repealing the law as any. Rodrigues and
another man spent an hour and forty minutes in a parked car kissing, hugging,
and sitting on each others lap. Both were fully clothed and were seen only
by police officers. For this conduct, they were arrested and convicted as
"lewd and dissolute" under the disorderly conduct law. The appellate
court called the kissing and hugging while fully clothed "sexual
conduct" that still could be proscribed in public.520
Rodrigues argued that a male and female engaging in the same conduct would not
have been arrested. Amazingly, the appellate court both agreed and explained
conduct on the part of the arresting officers would not be based on an
"unjustifiable standard," for appellants conduct was
"lewd and dissolute," as defined above, where the mixed
couples would not appear to be. [Emphasis added.]521
Thus, one provision of the disorderly conduct was construed judicially to
apply only to same-sex behavior despite its facially neutral language.
The California Supreme Court, deciding People v. Rossi522
in 1976, ruled 5-2 that a conviction for oral copulation could not stand
because the conviction was not final at the time of the 1975 repeal of the
consenting adult laws.
In 1978, in People v. Norris,523 an
appellate court unanimously overturned Michael Norriss conviction for
soliciting an undercover police officer for prostitution. Officer Devenney was
patrolling the Hollywood area "for vice activities" and noted that
Norris thumbed for a ride only whenever "a lone male motorist"
passed. He then picked Norris up and arrested him when he solicited Devenney.
Norris was convicted, sentenced to a $5 fine, and placed on probation that
barred him from soliciting or accepting rides from motorists or engaging any
male person in conversation on a street.524
The appellate court found that the fine violated a recently passed state law
and said that the probation condition was far too broad, in that it limited
legal activity for him.525
The penalty for consensual sex by prisoners was the subject of the 1979
case People v. Santibanez.526 Judge
Donald Franson, speaking for a unanimous appellate panel, rejected Santibanezs
claim that the right to sexual privacy should extend to consenting prisoners.
Noting that the same issue had been rejected by the Frazier decision,
Franson added that Santibanezs act of oral copulation occurred in a cell
with eleven other prisoners present.527
Franson also believed that sex with consent in a prison setting was a rarity,
and the law challenged "helps to control violence" in prisons.528
The California Supreme Court legislated in the 1979 case of Pryor v.
Municipal Court for the Los Angeles Judicial District of Los Angeles County.529
Clearly frustrated with the failure of the California legislature to repeal or
at least modify the disorderly conduct law, the high court did the legislatures
job for it. Don Pryor had been arrested for soliciting an undercover police
officer in a public place for sex in private. Although previous court
decisions in California said that the location of the anticipated sexual
activity was immaterial to the law, the California Supreme Court voted 6-1 to
change all that. Justice Matthew Tobriner, writing for the majority, said
that, "rejecting prior interpretations of this statute,"530
the following definition of "lewd and dissolute" was adopted.
[T]he solicitation or commission of conduct in a public place or one
open to the public or exposed to the public view, which involves the
touching of the genitals, buttocks, or female breast, for purposes of
sexual arousal, gratification, annoyance or offense, by a person who knows
or should know of the presence of persons who may be offended by the
This definition, other than being legislated judicially, was discriminatory
in that it denied the erotic nature of a male breast and established the
impossible burden of making a solicitor know who around him or her would or
would not be offended by the touching or solicitation, whether or not the
offended person was touched or solicited personally. The high court also
overturned the trial courts jury instruction that "oral copulation
between males is lewd or dissolute as a matter of law."532
Tobriner said that this "virtually compelled the jury to find the
defendant guilty," but noted that the jury nevertheless deadlocked.533
The Court expressly overruled ten appellate court decisions under this law,
including the Babb, Dudley, Mesa, Silva, Williams, and Rodrigues
decisions cited above.534
In 1979, in E.W.A.P., Inc. v. City of Los Angeles,535
an appellate court dealt with the constitutionality of Los Angeles ordinances
denying permits to operate film arcades if the applicant, in the previous two
years, knowingly had permitted sexual activity or solicitation on the premises
and that prohibited booths that were either partially or fully concealed.
Judge Rodney Potter, writing for the court, found the prior restraint on First
Amendment activities generated by the permit ordinance to be invalid.536
The provision requiring open booths, however, was found to be a reasonable
regulation aimed at promoting the health and safety of the public.537
In People v. Adult World Bookstore,538
from 1980, more regulation of motion picture arcades was the subject. The
appellate court affirmed a trial courts order to the bookstore in question,
issued under the Red Light Abatement Law, to remove locks from the booths and
put in doors that could be opened for inspection.539
The case of People v. Glaze,540 from
1980, led to a victory. By a vote of 4-3, the California Supreme Court struck
down a Los Angeles ordinance that required picture arcades to be closed
between 2:00 and 9:00 a.m. The requirement was enacted to prevent masturbation
by customers on the premises. Chief Justice Rose Bird, writing for the
majority, found that the ordinance was overbroad because it curtailed
legitimate First Amendment freedoms of citizens to view pictures in the
arcade, and the curtailment of sexual activity could have been accomplished by
a more narrowly tailored ordinance.541 In
dissent, Reagan appointee Frank Richardson said that he had to be
"explicit" to explain why he thought the ordinance was valid. The
arcades were described by police as
"money making machinery houses of masturbation," in which
body and seminal fluids were excreted on walls, floors and patrons
clothing, causing odors and health, hygiene, sanitary, and police problems
that were substantial and continuing.542
In 1980, in People v. Reed,543
another restroom masturbation case was decided adversely to the defendant by
an appellate court. Reed had asked the trial judge to give a jury instruction
that, if the undercover police officer had not appeared to be offended by his
masturbation and apparent solicitation, then he was to be acquitted, but the
court did not agree.544
Reed returned to the California courts challenging the fact that he had
been required to register under the states habitual sex offender law for
his "lewd and dissolute" conduct. In 1983, in In Re Reed,545
the California Supreme Court decided, by a vote of 5-2, that the registration
law could not be applied constitutionally in this case. Justice Stanley Mosk,
writing for the majority, noted that California law did not require such
registration for many more severe sex crimes,546
and decided that the lifetime registration provision for the trivial conduct
of Reed amounted to cruel and unusual punishment.547
Justice Frank Richardson was one of the two dissenters. He claimed that the
trivial act of Reed
frequently is introductory or preparatory conduct to even more serious
Richardson provided no documentation for this claim.
In 1982, in People v. Rylaarsdam,549
an appellate court upheld the indecent exposure and lewd and dissolute conduct
convictions of a man for exposing himself to an undercover police officer
through a glory hole in a motion picture arcade.
The curious case of Reliable Enterprises, Inc. et al. v. The Superior
Court of Sacramento County,550 from 1984,
dealt with the issue of contempt citations against owners of an adult
bookstore for allowing "lewd acts" to occur on their premises in
violation of a preliminary injunction that had been issued against them
prohibiting such acts. A police officer, Bob Lyon, testified that he had seen,
every time he had been there,
[a]ll manner of lewd acts, including sodomy, masturbation,
exhibitionism, assignation, prostitution, and oral and anal copulation
continued on a daily basis in plain view of anyone walking down the aisles
of the bookstore.551
(It is of note that the only complaint came from the police.) The owner
testified that he had posted signs against such conduct, but they had been
torn down continuously by patrons. Despite this claim, the trial court found
that he was guilty of "wilful [sic] disobedience" of the
court order.552 Five of eight contempt charges
Through the end of 1948, the number of sterilizations in California reached
19,042, or almost twice as many as through 1934.554
In 1950, the Attorney General of California issued an opinion555
that sterilization of inmates for reasons other than therapeutic probably was
unconstitutional.556 This opinion came down
after some 20,000 sterilizations had been performed in California, more than
in all other states combined.557
Apparently as a result of this opinion, in 1951, the law was revised558
to remove "perversion" as a ground for sterilization.
This law apparently had an effect on the states use of sterilization.
The number of operations performed in the state fell from 275 in 1950, the
last full year before the change, to 39 in 1952, the first full year after it.559
Whether many "perverts" had been sterilized under the old law or if
the Attorney Generals opinion caused greater selectivity is unknown. There
is no record of the number sterilized specifically for being a "sexual
Sterilization for "sex offenses" still was in use in California
as late as 1973.561
Period Summary: California continued to be one of the most
repressive of states when it came to consensual sexual activity. Rather
than follow the Kinsey lead, the state chose to follow the McCarthy side
of the issue. The private, consensual sodomy conviction of a married
couple was upheld, courts ruled that anyone convicted of sodomy or oral
copulation automatically was "vagrant" under the law as well,
the penalties for these sex acts were increased, with the maximum for
sodomy going up to life imprisonment in 1952, and both the psychopathic
offender and sex offender registration laws were broadened again. It was
not until the 1960s that much progress could be discerned. In 1962, the
California Supreme Court issued a landmark decision that consensual
activity in an enclosed public restroom stall was constitutionally
protected. Other states have followed this lead. The states vagrancy
law was toned down in 1961, but the successor "disorderly
conduct" law continued to be used to harass Gay men and Lesbians in
bars and, in one case, two Gay men kissing in a car. After a few more
attempts at strengthening the psychopathic offender law, the ignoble
experiment was declared a failure and the law was repealed in 1969. A
broadly worded privacy amendment was adopted overwhelmingly by California
voters in 1974 and the sodomy and oral copulation law were revised the
next year to eliminate coverage of private, consensual activity. Sexual
activity in bookstores became the focus of most reported court cases after
1975, and the more liberal courts issued a number of decisions that
limited the power of government to regulate such activity. The
sterilization law was scrapped by a decision of the states Attorney
General in 1950, and statutory language covering "sexual
perverts" was eliminated the following year.
The Post-Hardwick Period, 1986-Present
A 1989 challenge in federal court to Californias high age of consent,
18, Ferris v. Santa Clara County,562
was unsuccessful. Ferris argued that the law violated the Equal Protection
Clause because of varying ages around the country. "This argument is
patently frivolous and merits no discussion."563
In 1991, the California legislature repealed the 1921 law banning "any
act...which openly outrages public decency[.]"564
A major civil liberties victory occurred in 1995 when an appellate court
decided Baluyut et al. v. Superior Court of Santa Clara County.565
Police in the northern city of Mountain View had adopted a policy of sending
"young, attractive, casually dressed" police officers to adult
bookstores to await solicitation. If a Gay man solicited him, he would make an
arrest. The court noted that general complaints about sexual activity in the
bookstore parking lot had been made, but that none of the complaints specified
sex between men. The Mountain View police also claimed not to know that
consensual sodomy and oral copulation were legal in California (decriminalized
20 years earlier).566 The court
concluded that discriminatory enforcement of the law as practiced by the
Mountain View police had no "rational reason" behind it, but could
be explained only by "hostility toward homosexuals." The trial court
was directed to dismiss charges against the defendants.567
The California Supreme Court agreed to review the decision, and unanimously
vacated the appellate courts decision because, since the prosecutor had
dismissed the charges, the case had become moot.568
However, one point of law was decided. It affirmed the appellate courts
decision that specific intent to single out a particular group was not
necessary to sustain a discriminatory enforcement claim.569
In 1997, the danger of the newly enacted sex offender registration laws was
demonstrated in California. Although these laws conceivably pose no threat in
states that have repealed consensual sodomy laws (such as California), abuse
is possible. Police in the state began sending notices to Gay men arrested on
misdemeanor charges, such as solicitation, as long ago as the 1940s and
threatening them with arrest under the offender law unless they could prove
they were not subject to the law.570
Also, in 1997, California placed the names of some 64,000 sex offenders
on-line to make it easier for the public to learn of any sex crime history of
neighbors. One individual listed was "a 63-yearold [G]ay man arrested in
the 1950s for having oral sex with another sailor in a parked car."
Within a few weeks, it was learned that more than one-third of the
registrations were based on incorrect information.571
The state also set up stations at both the California State Fair and the Los
Angeles County Fair so that fairgoers could access the database.572
Gay men have been affected disproportionately by this law and an effort to
exclude consensual activity from the laws scope was launched.573
An appellate court, deciding E.W.A.P., Inc. v. City of Los Angeles et
al.,574 from 1997, sustained the findings
of local officials that Le Sex Shoppe was a public nuisance due to continuing
problems of cruising and sex on and around the premises. One of the steps
taken by the Los Angeles City Council was to restrict the hours of operation
to 9 a.m. to 10 p.m., an act in direct violation of the earlier E.W.A.P.
decision (see above). However, California courts now are much more
conservative than in the 1980s, and the appellate court upheld the
In 1996, California began what might be an unfortunate backward-moving
trend when it enacted a statute to authorize the "chemical
castration" of those convicted of sex crimes with those under 13 years of
age.575 However, it isnt clear that there
might not be an attempt to expand this law in the future, or that other states
may choose to enact broader laws. The law is written in gender-neutral terms.
Period Summary: The disorderly conduct law remains in California
and, as shown by the Baluyut case in 1995, still is being enforced in the
old-style discriminatory manner by police not keeping current with case
and statutory law in the state. California has changed from one of the
most repressive states as recently as the early 1960s to one of the most
libertarian on the issue of sex, although the states conservative
Supreme Court and the new sterilization law and on-line directory of
convicted sex offenders may signal a reversal of that trend.
1 Laws of the State [sic] of California
1849 [sic], page 219, ch. 95, enacted Apr. 13, 1850.
2 Statutes of California 1850, page
229, ch. 99, enacted Apr. 16, 1850.
3 Id. at 234, §48.
4 Laws of the State of California 1855,
page 105, ch. LXXXII, enacted Apr. 10, 1855.
5 15 Cal. 226, decided during January 1860
6 Id. at 252-253.
7 The Penal Code of California, (Sacramento:T.A.
Springer, 1872), enacted Feb. 14, 1872.
8 Id. at 11, §15.
9 59 Cal. 397, decided Sep. 21, 1881. The
exact date of the decision is provided by the Report of the
Attorney-General of the State of California 1881-1882, page 56. This
probably was the first prosecution for sodomy in the state. A review of
the complete set of such reports from statehood reveals no prosecutions
prior to this one.
10 59 Cal., at 398.
11 6 P. 99, decided Feb. 27, 1885. The
fact that this was a sodomy case is known from the Report of the
Attorney-General of the State of California 1883-1884, page 69. It
gives detail as to the appeal process of Millers case.
12 6 P., at 99.
13 37 P. 510, decided Aug. 11, 1894.
14 Id. at 511.
15 41 P. 1027, decided Sep. 30, 1895.
16 Id. at 1028.
17 48 P. 800, decided May 6, 1897.
19 51 P. 639, decided Dec. 20, 1897.
20 Id. at 639-640.
21 Id. at 640.
22 Biennial Report of the Attorney
General of the State of California 1900-1902, (Sacramento:A.J.
Johnston, 1902), pages 73-88. This appears to be the only volume of such
reports that contains the detailed information from each county as to
prosecutions. In addition to the 10 San Francisco prosecutions, there were
four from neighboring Alameda County and two from neighboring Marin
County. The others were Amador County (1), Riverside County (1) and San
Bernardino County (2). The three attempt prosecutions were one in Fresno
County and two in San Joaquin County.
23 67 P. 1125, decided Jan. 17, 1902.
24 69 P. 223, decided June 11, 1902.
25 Id. at 223-224.
26 Id. at 224.
27 81 P. 680, decided May 22, 1905.
28 Id. at 681.
30 88 P. 371, decided Nov. 9, 1906.
31 Id. at 372.
32 112 P. 733, decided Nov. 19, 1910.
Rehearing [sic] denied by the California Supreme Court
Jan. 16, 1911.
33 Statutes and Amendments to the
Codes of California 1910 [sic], page 484, ch. 292, enacted Mar. 24,
35 Report of the Attorney-General of
the State of California. See each years report for a table listing
the cases and their disposition.
36 127 P. 1031, decided Nov. 9, 1912.
37 Id. at 1032.
38 145 P. 539, decided Nov. 13, 1914.
39 26 Cal.App. 385, decided Jan. 21,
40 Id. at 388.
42 Statutes and Amendments to the
Codes of California 1915, page 760, ch. 457, enacted May 22, 1915,
effective Aug. 8, 1915.
44 The 1914 Los Angeles scandal largely
was hushed up by newspapers. One of the few to discuss it was the Sacramento
Bee, which gave amazing social details of the men involved. The Bee
commented on the silence of the other newspapers. See the Bee
Nov. 14, 1914, 1:4; Nov. 16, 1914, 1:7; Nov. 18, 1914, 1:7;
and Nov. 21, 1914, 6:1. Extremely homophobic editorials appeared in
the Bee on Nov. 19, 1914, 6:1; and Nov. 23, 1914, 6:1.
45 Statutes and Amendments to the
Codes of California 1915, page 1022, ch. 586, enacted June 1, 1915.
48 151 P. 748, decided July 28, 1915.
49 154 P. 317, decided Dec. 14, 1915.
50 Id. at 318.
51 Id. at 320-321.
52 157 P. 9, decided Feb. 1, 1916.
53 Id. at 10.
54 161 P. 995, decided Nov. 3, 1916.
Rehearing [sic] denied by the California Supreme Court Jan. 2,
55 Id. at 995-996.
56 Id. at 995.
57 36 Cal.App. 93, decided Jan. 31,
1918. Hearing denied by the California Supreme Court Apr. 1, 1918.
59 39 Cal.App. 76, decided Dec. 6,
60 Id. at 76-77.
61 56 Cal.Dec. 247, decided Aug. 29,
62 Id. at 248.
63 Id. at 249.
66 Id. at 250.
68 Id. at 253-354.
69 Id. at 254.
70 178 P. 134, decided Jan. 9, 1919. The
companion case of Ex Parte Gono was consolidated with this one.
71 Id. at 135.
73 Id. at 138.
74 182 P. 785, decided June 7, 1919.
75 186 P. 388, decided Nov. 18, 1919.
76 Id. at 389.
77 49 Cal.App. 289, decided Sep. 15,
78 Id. at 291-292.
79 Statutes and Amendments to the
Codes of California 1921, page 87, ch. 90, enacted May 12, 1921.
81 Statutes and Amendments to the
Codes of California 1921, page 1633, ch. 848, enacted June 3, 1921.
83 Statutes and Amendments to the
Codes of California 1921, page 74, ch. 69, enacted May 9, 1921,
effective July 29, 1921.
85 202 P. 939, decided Nov. 8, 1921.
87 217 P. 121, decided Aug. 6, 1923.
89 63 Cal.App. 557, decided Aug. 27,
90 Id. at 559.
91 223 P. 1004, decided Jan. 10, 1924.
92 Id. at 1005.
93 228 P. 68, decided June 13, 1924.
94 Id. at 69.
95 Id. at 70.
96 242 P. 598, decided Nov. 18, 1925.
97 Id. at 599.
99 244 P. 1086, decided Feb. 19, 1926.
Rehearing denied Mar. 17, 1926.
100 Id. at 1088.
101 79 Cal.App. 295, decided Sep. 11,
102 Id. at 297-298.
103 Id. at 300.
105 251 P. 648, decided Dec. 13, 1926.
106 Id. at 649.
107 Id. at 650.
108 254 P. 614, decided Mar. 5, 1927.
110 Id. at 614-615.
111 Id. at 615.
113 255 P. 212, decided Mar. 23, 1927.
Hearing denied by the California Supreme Court May 19, 1927.
114 Id. at 213.
115 260 P. 391, decided Oct. 14, 1927.
116 86 Cal.App. 130, decided Oct. 15,
117 Id. at 131.
118 87 Cal.App. 208, decided Dec. 1,
119 Id. at 210.
120 Id. at 211.
121 89 Cal.App. 374, decided Feb. 21,
122 203 Cal. 782, decided Apr. 6,
123 Id. at 785.
124 268 P. 958, decided June 28, 1928.
127 105 Cal.App. 784, decided May 21,
1930. Rehearing denied June 4, 1930. Hearing denied by the California
Supreme Court June 19, 1930.
128 Id. at 787-789.
129 Id. at 792-793.
130 10 P.2d 98, decided Mar. 23, 1932.
131 Id. at 99-100.
132 Id. at 102.
133 16 P.2d 189, decided Nov. 18, 1932.
134 137 Cal.App. 729, decided
Apr. 7, 1934.
135 Id. at 730.
136 37 P.2d 710, decided Nov. 8, 1934.
137 2 Cal.App.2d 228, decided Nov. 14,
138 Id. at 229.
139 38 P.2d 798, decided Dec. 17, 1934.
140 Id. at 799.
141 9 Cal.App.2d 451, decided Oct. 11,
142 Id. at 453.
143 12 Cal.App.2d 207, decided Feb. 29,
1936. Rehearing denied Mar. 14, 1936.
144 Id. at 211.
145 Id. at 213.
146 Id. at 214.
147 19 Cal.App.2d 392, decided Mar. 2,
1937. Rehearing denied Mar. 17, 1937. Hearing denied by the California
Supreme Court Apr. 1, 1937.
148 Id. at 394.
149 74 P.2d 519, decided Dec. 13, 1937.
Hearing denied by the California Supreme Court Jan. 10, 1938.
150 Id. at 521.
151 Id. at 521-522.
152 Id. at 522.
153 Id. at 524.
154 Id. at 526.
155 Id. at 528. By perusing the
list of sodomy and oral copulation prosecutions in California as listed in
the Biennial Report of the Attorney General of California, this was
the first mass arrest under either of these laws in the states history.
156 76 P.2d 187, decided Feb. 9, 1938.
157 25 Cal.App.2d 161, decided Feb. 24,
158 Id. at 164.
160 Id. at 163.
161 77 P.2d 237, decided Mar. 10, 1938.
162 77 P.2d 880, decided Mar. 25, 1938.
163 Id. at 882.
164 79 P.2d 150, decided May 3, 1938.
165 Id. at 151.
166 80 P.2d 138, decided June 3, 1938.
167 Id. at 139.
168 Statutes and Amendments to the
Codes of California 1939, page 1783, ch. 447, enacted June 6, 1939.
169 Id. §5500.
170 43 Cal.App.2d 545, decided Mar. 18,
171 Id. at 547.
172 112 P.2d 659, decided Apr. 23, 1941.
Hearing denied by the California Supreme Court May 22, 1941.
173 Id. at 660.
174 Statutes and Amendments to the
Codes of California 1941, page 2462, ch. 884, enacted June 28, 1941.
176 116 P.2d 498, decided Aug. 27, 1941.
177 Id. at 500.
178 127 P.2d 309, decided June 26, 1942.
Rehearing denied July 24, 1942.
179 Id. at 315.
180 129 P.2d 367, decided Sep. 29, 1942.
181 Id. at 371. The Court of
Appeals decision overturned by the Supreme Court is reported at 123 P.2d
182 Attorney Generals Opinions,
Vol. 1, page 189, Opinion No. NS-4766, issued Mar. 29, 1943.
183 Id. at 189.
184 Id. at 190.
185 61 Cal.App.2d 394, decided Nov. 17,
186 Id. at 395.
187 61 Cal.App.2d 646, decided Dec. 8,
188 Id. at 647.
189 62 Cal.App.2d 116, decided Dec. 27,
190 Id. at 117-118.
191 64 Cal.App.2d 167, decided Apr. 28,
1944. Rehearing denied May 11, 1944. Hearing denied by the California
Supreme Court May 25, 1944.
192 Id. at 169.
193 Id. at 170.
194 64 Cal.App.2d 674, decided June 1,
1944. Hearing denied by the California Supreme Court June 29, 1944.
195 Id. at 675.
196 65 Cal.App.2d 462, decided Aug. 9,
197 Id. at 464.
198 Statutes and Amendments to the
Codes of California 1945, page 623, ch. 138, enacted Apr. 27, 1945.
199 Id. at 624, §3.
200 Statutes and Amendments to the
Codes of California 1945, page 1747, ch. 934, enacted June 18, 1945.
201 Id. §1.
202 161 P.2d 397, decided Aug. 17, 1945.
203 Id. at 398.
204 163 P.2d 85, decided Nov. 15, 1945.
205 166 P.2d 4, decided Feb. 8, 1946.
206 Id. at 7.
207 Id. at 7-8.
208 Id. at 9.
209 168 P.2d 729, decided Apr. 30, 1946.
Hearing denied by the California Supreme Court May 27, 1946.
210 Id. at 733.
211 171 P.2d 41, decided July 11, 1946.
Rehearing denied July 22, 1946. Hearing denied by the California Supreme
Court Aug. 8, 1946, Justice Schauer dissenting.
212 Id. at 42.
215 Id. at 46.
216 Id. at 46-47.
217 New York Times, Jan. 17,
1947, 31:4; Sep. 1, 1947, 17:3; Feb. 11, 1949, 18:6;
Feb. 18, 1949, 18:6; Dec. 19, 1949, 44:4.
218 Statutes and Amendments to the
Codes of California 1947, page 2562, ch. 1124, enacted July 7, 1947.
219 Id. §1.
220 Id. at 1125.
221 Statutes and Amendments to the
Codes of California 1909, page 1093, ch. 720, enacted Apr. 26, 1909.
222 Id. at 1094.
224 Published in Harry Hamilton
Laughlin, Eugenical Sterilization in the United States (Chicago:Psychopathic
Laboratory of the Municipal Court of Chicago, 1922), pages 324-328, issued
Mar. 2, 1910.
225 Statutes and Amendments to the
Codes of California 1913, page 775, ch. 363, enacted June 13, 1913.
226 Statutes and Amendments to the
Codes of California 1917, page 571, ch. 489, enacted May 17, 1917,
effective July 27, 1917.
227 Id. at 571-572.
228 "Sexual Sterilization in
California," Journal of State Medicine (California),
39:346-350, at 347 (June 1931).
229 Eugenical Sterilization: A
Reorientation of the Problem, (New York:Macmillan, 1936), pages 9-10.
230 Statutes and Amendments to the
Codes of California 1937, page 1005, ch. 369, enacted May 25, 1937,
231 Id. at 1155, §6624.
232 97 P.2d 264, decided Dec. 18, 1939.
235 Sterilization Operations in
California State Hospitals for the Mentally Ill and for the Mentally
Retarded April 26, 1909 through June 30, 1960, Statistical
Research Bureau, California State Department of Mental Hygiene,
October 5, 1960.
236 188 P.2d 792, decided Jan. 28, 1948.
Hearing denied by the California Supreme Court Feb. 26, 1948,
Justices Carter and Schauer dissenting.
237 189 P.2d 554, decided Feb. 9, 1948.
Hearing denied by the California Supreme Court Mar. 8, 1948.
238 Id. at 560.
240 Id. at 563.
241 197 P.2d 847, decided Oct. 4, 1948.
243 Id. at 848.
244 198 P.2d 534, decided Oct. 29, 1948.
245 Id. at 535.
246 201 P.2d 556, decided Jan. 18, 1949.
247 Id. at 556-557.
248 Id. at 557.
249 Id. Henry Milo spent more
than 10 years in prison for this act, including time as a parole violator.
(Correspondence from California Department of Corrections Correctional
Case Records Services, Mar. 20, 1997).
250 202 P.2d 330, decided Feb. 11, 1949.
251 "Sane Laws for Sexual
Psychopaths," 1 Stanford L.R. 486 (April 1949).
252 Id. at 490 and 496.
253 Statutes and Amendments to the
Codes of California 1949, page 2539, ch. 1457, enacted July 29, 1949.
254 Id. at 2540, §5601.
255 Attorney Generals Opinions,
Vol. 14, page 101, Opinion No. 49-178, issued Sep. 20, 1949.
256 Statutes and Amendments to the
Codes of California 1949, First Ex. Sess., page 29, ch. 15, enacted
Jan. 6, 1950.
258 Statutes and Amendments to the
Codes of California 1950, First Ex. Sess., page 512, ch. 56, enacted
May 1, 1950.
260 98 Cal.App.2d 514, decided July 21,
1950. Rehearing denied Aug. 4, 1950. Hearing denied by the California
Supreme Court Aug. 17, 1950.
261 Id. at 515.
262 Id. at 516.
263 222 P.2d 454, decided Oct. 2, 1950.
265 Id. at 454-455.
266 226 P.2d 669, decided Jan. 30, 1951.
267 Id. at 670.
268 227 P.2d 290, decided Feb. 14, 1951.
Rehearing denied Feb. 20, 1951. Hearing denied by the California Supreme
Court Mar. 15, 1951, Justice Shenk dissenting.
269 229 P.2d 843, decided Apr. 9, 1951.
270 Id. at 845.
271 Id. at 846.
274 230 P.2d 398, decided Apr. 27, 1951.
275 Id. at 399.
276 230 P.2d 640, decided May 4, 1951.
277 Id. at 641.
278 233 P.2d 159, decided June 20, 1951.
279 Id. at 162-163.
280 Statutes and Amendments to the
Codes of California 1951, page 1887, ch. 677, enacted May 25, 1951,
effective Sep. 22, 1951.
281 Id. §1.
282 Id. §2.
283 Statutes and Amendments to the
Codes of California 1951, page 4186, ch. 1759, enacted July 25, 1951,
effective Sep. 22, 1951.
284 Id. §1.
285 238 P.2d 158, decided Dec. 7, 1951.
Hearing denied by the California Supreme Court Jan. 3, 1952.
286 Id. at 160.
287 John DEmilio, Sexual Politics,
Sexual Communities: The Making of a Homosexual Minority in the United
States 1940-1970, (Chicago:University of Chicago Press, 1983), pages
288 Statutes and Amendments to the
Codes of California 1952, First Ex. Sess., page 380, ch. 23, enacted
Apr. 17, 1952.
289 Id. §2.
290 Id. §3.
291 249 P.2d 562, decided Nov. 12, 1952.
293 Los Angeles Times, Jan. 22,
1953 and Jan. 23, 1953. Reprinted in the Congressional Record, Aug.
13, 1963, pages 14836-14837. The reprint was due to Senator Strom Thurmond
of South Carolina, who was trying to discredit the upcoming March on
294 252 P.2d 416, decided Jan. 26, 1953.
295 Id. at 418.
296 254 P.2d 903, decided Mar. 24,
297 Id. at 904.
298 259 P.2d 694, decided July 21, 1953.
299 Id. at 695.
300 Id. at 696.
301 260 P.2d 137, decided Aug. 17, 1953.
303 264 P.2d 671, decided Dec. 22, 1953.
304 Id. at 672.
305 270 P.2d 540, decided May 20, 1954.
307 Mattachine Review, January
1955, page 16.
308 279 P.2d 621, decided Feb. 1, 1955.
309 Id. at 622.
310 Id. at 623.
313 132 Cal.App.2d 698, decided May 3,
1955. Hearing denied by the California Supreme Court June 2, 1955.
314 Id. at 699.
315 Statutes and Amendments to the
Codes of California 1955, page 1250, ch. 757, enacted May 25, 1955,
effective Sep. 7, 1955.
316 Id. at 1251.
318 289 P.2d 44, decided Oct. 27, 1955.
319 Id. at 45.
320 296 P.2d 113, decided Apr. 24, 1956.
Rehearing denied May 8, 1956. Hearing denied by the California
Supreme Court May 23, 1956.
321 Id. at 115.
322 Attorney Generals Opinions,
Vol. 28, page 178, Opinion No. 56-114, issued Oct. 5, 1956.
323 302 P.2d 613, decided Oct. 24, 1956.
325 Id. at 614.
326 Id. at 616.
329 302 P.2d 813, decided Oct. 31, 1956.
Rehearing denied Nov. 15, 1956. Hearing denied by the California Supreme
Court Nov. 28, 1956, by a vote of 5-2. Justices Roger Traynor and Homer
Spence voted to hear the case. The importance of this case to the Gay and
Lesbian community was noted in the Mattachine Review, January 1957,
330 Giani, at 814.
331 Id. at 815.
333 Id. at 815-816, n.2.
334 Id. at 816-817.
335 Id. at 817.
336 303 P.2d 892, decided Nov. 27, 1956.
Rehearing denied Dec. 12, 1956. Hearing denied by the California Supreme
Court Dec. 27, 1956.
337 Id. at 894.
338 Id. at 896.
340 Id. at 897.
341 Attorney Generals Opinions,
Vol. 28, page 279, Opinion No. 56-10, issued Nov. 27, 1956.
342 Id. at 282.
343 304 P.2d 138, decided Dec. 12, 1956.
344 Id. at 139.
345 Id. at 140.
346 Statutes and Amendments to the
Codes of California 1957, page 1500, ch. 459, enacted May 19, 1957,
effective Sep. 11, 1957.
348 311 P.2d 580, decided May 22, 1957.
349 Id. at 581.
350 Id. at 582.
351 153 Cal.App.2d 100, decided Aug. 2,
352 Id. at 101-102.
353 Attorney Generals Opinions,
Vol. 31, page 167, Opinion No. 57-200, issued Apr. 9, 1958.
354 329 P.2d 553, decided Sep. 8, 1958.
355 Id. at 555.
358 Id. at 555-556.
359 Id. at 557.
361 Mattachine Review, November
1958, pages 31-33.
362 337 P.2d 203, decided Mar. 27, 1959.
Hearing denied by the California Supreme Court May 20, 1959.
363 Id. at 206.
365 Id. at 207.
366 Id. at 208.
369 169 Cal.App.2d 430, decided Apr. 7,
370 Id. at 431-432.
371 170 Cal.App.2d 121, decided May 4,
1959. Rehearing denied May 27, 1959. Hearing denied by the California
Supreme Court July 1, 1959.
372 Id. at 124-126.
373 Id. at 128.
374 174 Cal.App.2d 396, decided Oct. 9,
1959. Rehearing denied Nov. 2, 1959. Hearing denied by the California
Supreme Court Dec. 2, 1959.
375 Id. at 399.
376 Id. at 400.
377 Id. at 401. Leonard Perras
spent 2½ years in prison for this act. (Correspondence from California
Department of Corrections Correctional Case Records Services,
Mar. 20, 1997.) Lindbeck died in 1995 at the age of 52.
378 177 Cal.App.2d 676, decided Feb. 8,
379 Id. at 678-679.
380 Id. at 679.
381 186 Cal.App.2d 342, decided Nov. 14,
1960. Rehearing denied Dec. 7, 1960. Hearing denied by the California
Supreme Court Jan. 11, 1961.
382 Id. at 344.
383 192 Cal.App.2d 212, decided May 17,
1961. Hearing denied by the California Supreme Court July 12, 1961.
384 Id. at 214.
385 Statutes and Amendments to the
Codes of California 1961, page 1672, ch. 560, enacted May 27, 1961,
effective Sep. 15, 1961.
386 Id. §647(a).
387 Id. §647(c).
388 Mattachine Review, February
1962, page 32.
389 371 P.2d 288, decided May 10, 1962.
Rehearing denied June 4, 1962.
390 Id. at 289.
393 Id. at 290.
394 Id. at 292.
396 371 P.2d 292, decided May 10, 1962.
Rehearing denied June 4, 1962.
397 374 P.2d 817, decided Oct. 2, 1962.
398 Id. at 818.
400 Id. at 819.
402 209 Cal.App.2d 173, decided Oct. 31,
403 Id. at 175-176.
404 214 Cal.App.2d 131, decided Mar. 15,
405 Id. at 133.
406 372 P.2d 897, decided June 28, 1962.
407 Correspondence from the California
Secretary of States Office, Feb. 16, 1994.
408 216 Cal.App.2d 607, decided
May 24, 1963. Rehearing denied June 10, 1963. Hearing denied by
the California Supreme Court July 17, 1963.
409 Id. at 609.
411 216 Cal.App.2d 839, decided June 5,
412 Id. at 842-843.
413 Statutes and Amendments to the
Codes of California 1963, page 3906, ch. 1913, enacted July 19, 1963.
414 Id. at 3907, §3.
415 Id. §5.
416 Id. at 3916, §22.
417 Id. §25.
418 Id. §24.
419 218 Cal.App.2d 556, decided July 23,
1963. Cert. denied, 376 U.S. 937, decided Mar. 2, 1964.
420 218 Cal.App.2d, at 558-559.
421 Id. at 558.
422 Mattachine Review, February
1964, page 2.
423 Mattachine Review, February
1964, page 2.
424 233 Cal.App.2d 834, decided Apr. 26,
1965. Cert. denied, 382 U.S. 942, decided Dec. 6, 1965.
425 235 Cal.App.2d 170, decided June 21,
426 Id. at 171.
427 Id. at 172.
428 Statutes and Amendments to the
Codes of California 1965, page 3431, ch. 1467, enacted July 16, 1965.
429 Id. at 3432, §5501(d).
430 Statutes and Amendments to the
Codes of California 1965, page 4487, ch. 1959, enacted July 17, 1965.
431 Id. §647(b).
432 352 F.2d 251, decided Oct. 11, 1965.
Cert. denied, 382 U.S. 981, decided Jan. 17, 1966.
433 352 F.2d, at 253.
434 Id. at 254.
435 Id. at 257.
436 Id. at 258.
437 Id. at 259.
438 240 Cal.App.2d 812, decided Mar. 15,
439 Id. at 814.
440 Id. at 816-817.
441 "Project: The Consenting Adult
Homosexual and the Law: An Empirical Study of Enforcement and
Administration in Los Angeles County," 13 UCLA L.Rev. 643 (August
442 Id. at 686, n.2 and n.4; 688,
n.17; 690, n.29; 691, n.30 and n.36; 692, n.37 and n.39; 693, n.46; 695,
n.58; 698, n.83; 699, n.84; 706-707, n.129; 707-708, n. 137; 708, n.142;
709, n.149; 714, n.178; 716, n.191; 718, n.200; 719-720; 730, n.263; 736,
n.291; 740, n.329.
443 Id. Appendices C and D, at
803, Table 4; 804, Tables 6 and 7; 805, Tables 10, 12 and 13; and 827,
444 250 Cal.App.2d Supp. 955, decided
Apr. 10, 1967. Hearing denied by the Court of Appeals Apr. 18, 1967.
445 Id. at 957.
446 Id. at 959.
447 256 Cal.App.2d 488, decided Nov. 29,
448 Id. at 490-491.
449 Id. at 495.
451 256 Cal.App.2d 630, decided Dec. 5,
452 Id. at 631.
454 Statutes and Amendments to the
Codes of California 1968, page 2285, ch. 1206, enacted Aug. 9, 1968.
455 Id. §1.
456 265 Cal.App.2d 746, decided Sep. 16,
457 Id. at 748.
458 Id. at 748-749.
459 Id. at 750.
460 266 Cal.App.2d 754, decided Oct. 23,
461 Id. at 755.
462 California Attorney Generals
Opinions, Vol. 52, page 118, opinion 69-68, issued June 19, 1969.
463 Id. at 119.
464 Statutes and Amendments to the
Codes of California 1969, page 1416, ch. 722, enacted Aug. 8, 1969.
465 Id. at 1446, §49.2.
467 Statutes and Amendments to the
Codes of California 1969, page 2657, ch. 1319, enacted Aug. 30, 1969.
468 Id. §647(b).
469 California Attorney Generals
Opinions, Vol. 53, page 25, opinion 69-172 issued Jan. 23, 1970.
470 464 P.2d 483, decided Jan. 30, 1970.
Rehearing denied Feb. 25, 1970.
471 Id. at 486-487.
472 13 Cal.App.3d 457, decided Dec. 14,
473 Id. at 460.
474 14 Cal.App.3d 473, decided Jan. 18,
1971. Rehearing denied Feb. 4, 1971. Hearing denied by the California
Supreme Court Mar. 16, 1971 by a vote of 5-2.
475 Id. at 475.
476 Id. at 476.
477 Id. at 480.
478 22 Cal.App.3d 20, decided Dec. 15,
479 Id. at 23.
480 30 Cal.App.3d 207, decided Jan. 26,
481 Id. at 210.
482 Id. at 210-212.
483 Id. at 212-216.
484 Id. at 213. The case quoted
was People ex rel. Hicks v. Sarong Gals et al., 27 Cal.App.3d 46.
485 Drolet, at 215.
486 33 Cal.App.2d 842, decided Aug. 6,
1973. Rehearing denied Aug. 22, 1973. Hearing denied by the California
Supreme Court Oct. 3, 1973.
487 506 P.2d 232, decided Feb. 22, 1973.
488 Id. at 234-235.
489 37 Cal.App.3d 385, decided Feb. 20,
490 Id. at 387.
491 Id. at 388.
492 Id. at 389.
493 Id. at 389-394.
494 Id. at 394-395.
495 40 Cal.App.3d 733, decided July 19,
496 Id. at 736-741.
497 Article I, §1, Constitution of the
State of California, adopted by popular vote Nov. 5, 1974. Statewide, the
issue carried all 58 counties, and won 70.5% of the vote. There was no
clear pattern to the vote. It ran behind its statewide showing in such
conservative areas as Bakersfield (52%the lowest percentage of any
county in the state), Fresno (69%), Los Angeles (69%), Orange County
(68%), San Bernardino (61%) and San Diego (70%). In some conservative
areas it ran ahead of its statewide average. It won 76% in Contra Costa
County (East Bay suburbs), 72% in Riverside County (Palm Springs) and 77%
in San Jose. In traditionally liberal areas, it generally ran ahead of its
statewide average, taking 77% in Oakland-Berkeley, 78% in Marin County
(the highest of any county in the state), and 76% in San Francisco.
However, it ran behind its statewide average in liberal Sacramento (66%).
The issue ran weakest in the Central Valley and the Sierra Nevadas.
Abstract of votes provided by the California Secretary of States
498 California Constitution, Article I,
499 Statutes and Amendments to the
Codes of California 1975, page 131, ch. 71, enacted May 12, 1975.
500 Id. at 133, §7 (sodomy) and
134, §10 (oral copulation).
501 Id. §7(b) and §10(b).
502 Id. §7(e) and §10(e).
503 1 Sex.L.Rep. 18.
504 Statutes and Amendments to the
Codes of California 1975, page 1957, ch. 877, enacted Sep. 18, 1975,
effective Jan. 1, 1976. This law replaced the provisions of the earlier
law, so that they never became effective.
505 Id. §1(b)(1) and §2(b)(1).
506 Anthony D. Oliver, "The Sex
Offender: Lessons from the California Experience," International
Journal of Law and Psychiatry, 5:403-411 (1982).
507 Id. at 405.
508 Stuart A. Kirk, "The Sex
Offenses of Blacks and Whites," Archives of Sexual Behavior,
509 Id. at 298.
510 Leigh W. Rutledge, The Gay
Decades, (New York:Plume, 1992), page 83.
511 59 Cal.App.3d 225, decided June 17,
512 Id. at 231.
514 Id. at 232.
515 61 Cal.App.3d Supp. 7, decided July
516 Id. at 10.
518 Id. at 11.
519 63 Cal.App.3d Supp. 1, decided Sep.
520 Id. at 4.
521 Id. at 233.
522 555 P.2d 1313, decided Nov. 10,
523 88 Cal.App.3d Supp. 32, decided
Dec. 11, 1978.
524 Id. at 41.
525 Id. at 42.
526 91 Cal.App.3d 287, decided Mar. 29,
527 Id. at 289-290.
528 Id. at 291.
529 599 P.2d 636, decided Sep. 7, 1979.
530 Id. at 639.
534 Id. at 647, n.13.
535 97 Cal.App.3d 179, decided Sep. 25,
1979. Rehearing denied Oct. 17, 1979. Hearing denied by the California
Supreme Court Nov. 21, 1979.
536 Id. at 188.
537 Id. at 190.
538 108 Cal.App.3d 404, decided July 21,
539 Id. at 407-408.
540 614 P.2d 291, decided Aug. 7, 1980.
541 Id. at 295.
542 Id. at 297.
543 114 Cal.App.3d Supp. 1, decided Oct.
544 Id. at 4.
545 663 P.2d 216, decided May 26, 1983.
Rehearing denied July 20, 1983.
546 Id. at 217-218.
547 Id. at 221-223.
548 Id. at 224.
549 130 Cal.App.3d Supp. 1, decided Feb.
550 158 Cal.App.3d 604, decided July 24,
551 Id. at 612.
552 Id. at 613-614.
553 Id. at 627.
554 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
555 California Attorney Generals
Opinions, Vol. 15, page 100, Opinion No. 49-180, issued Feb. 24, 1950.
556 Id. at 104.
557 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
558 Statutes and Amendments to the
Codes of California 1951, page 1706, ch. 552, enacted May 22, 1951,
effective Sep. 10, 1951.
559 James B. OHara and T. Howland
Sanks, "Eugenic Sterilization," 45 Georgetown L.J. 20 (1956-57),
at 44 (Appendix C). The states analysis shows differing totals but
similarly sized drops in numbers, with 51 sterilizations in 1952, still a
tremendous drop. The number of men (the sex far more likely to be
sterilized for sexual practices) sterilized in the two years dropped from
102 in 1951 to seven in 1952. Sterilization Operations in California
State Hospitals for the Mentally Ill and for the Mentally Retarded
April 26, 1909 through June 30, 1960, Statistical Research
Bureau, California State Department of Mental Hygiene, October 5,
560 Correspondence from Clyde Murrey,
Deputy Director of the Department of Mental Health, July 23, 1996.
561 Gerald Klerman, "Can convicts
consent to castration?" Hastings Center Report, 5:17-19
562 891 F.2d 715, decided Dec. 6, 1989.
563 Id. at 718.
564 Statutes and Amendments to the
Codes of California 1991, page 1251, ch. 186, enacted July 26, 1991.
565 37 Cal.Rptr.2d 741, decided Jan. 30,
566 Id. at 745.
567 Id. at 752.
568 911 P.2d 1, decided Mar. 4, 1996.
569 Id. at 4-8.
570 Lesbian/Gay Law Notes, March
571 The Oregonian, July 2,
1997, 1:2; July 20, 1997, 15A:1.
572 The Oregonian, Sep. 14,
573 The Oregonian, Oct. 12,
574 65 Cal.Rptr.2d 325, decided
July 9, 1997.
575 Statutes and Amendments to the
Codes of California 1996, ch. 596, enacted Sep. 17, 1996. The bill
passed the Assembly in a relatively close 42-27 vote, but in the Senate,
the vote was 26-1.
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