Last edited: August 11, 2004

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 legal origin.6

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. Constitution’s 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 this period.

The Victorian Morality Period, 1873-1948

I. Sodomy

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 consideration.16

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 precedent (q.v.).18

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 an assault.21

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 believable.26

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 a defense.31

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 party’s 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 Allison’s 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 considered accomplices.

In 1915, some 18 years after the California Supreme Court pointed out that fellatio did not constitute a violation of the state’s 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 jury’s conviction, despite Ah Leo’s claim that he didn’t 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 man’s apartment. The young man’s 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. Carrell’s 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 state’s history. It did say that there were "two unimpeached witnesses to the overt act,"58 but didn’t 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 Constitution’s requirement that laws be written in English. By a vote of 4-2, the Court ruled against Soady’s 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 decision that

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 defendants—those "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 then criticized

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 Melvin’s 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 son’s 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 Wyett’s 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 slight[.]"88

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 Jensen’s 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 activity.

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 considered insignificant.107

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 Spaulding’s 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 easily. He

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 man’s mother "became suspicious of her son’s 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 Parisi’s truck, Otts smuggled an associate into Parisi’s 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 Parisi’s glass door and brought the young man’s mother and sister in with him. (How Otts persuaded them to wait outside Parisi’s 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" Parisi’s 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 didn’t prosecute, California couldn’t 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 their conviction.126

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 Smink’s 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 boy’s mother then demanded that Conklin come with her to the house, at which point a fight broke out. Conklin allegedly broke the mother’s nose and then she grabbed him by the hair and somehow—it never was explained how—the mother got him into the house. While there, the mother explained to Conklin’s 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 Conklin’s hair. Conklin’s wife then grabbed hold of the boy’s 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 called[.]135

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 defendant’s claim of "inherent improbability" of the prosecuting witness’s 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 question.140

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 Pratchner’s 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 "court’s 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 sheriff’s office.150 Sheriff’s 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 sheriff’s 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 women’s 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 applause.151

An announcement was made that another, even bigger, party would be held there a week later. Preparations were made during the week by the sheriff’s department to surprise the partiers. A false roof was created over holes in the ceiling, so that two sheriff’s 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 the party.152

At one o’clock 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 arrestee’s defiant statement that

there is [sic] only four of them and there is [sic] sixteen of us. Stick together, don’t 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 prosecutor’s 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 conviction.

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 Brendle’s 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 v. Avanzi.161

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 a conviction.167

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 defendant’s 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 state’s 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 California’s 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 state’s 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 state’s expansive definition of the law and effectively blocked warehousing of those adjudged to be psychopaths.

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 sex.179

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 with inconsistencies.181

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 defendant’s 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 Chan’s 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 Meyer’s guilt.195

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 criminal.203

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 living room[.]213

The Court of Appeals believed that Silvas actually brought the men to Dutra’s 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 Dutra’s 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 jail.217

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

II. Sterilization

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 on it.

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. O’Moore,237 one of the most stereotype- and prejudice-filled sodomy opinions in U.S. history, in 1948. O’Moore, 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 house

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, O’Moore 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. O’Moore denied it. The prosecution’s "reference in his argument to the jury to the many immoral acts of the defendant" was not prejudicial, the appellate court decided.240

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 charges.243

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 defendant’s 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 Walker’s apartment after having been fondled or why he voluntarily went into Walker’s 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 with males.

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 thinking.252

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 the act.

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 defendant’s "active and passive" admissions, a "defendant’s 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 Cox’s 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 say that

[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 Vallée’s 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 wasn’t 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 abnormal.275

Wilson did not explain who was "normal" and who was "abnormal."

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 defendant’s contention that the boy’s father initiated a malicious prosecution of him. McNeese claimed that the boy’s 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 state’s prison for violation of the law, plus time spent in mental hospitals.295

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 physician’s 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 boy’s 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, Coontz’s 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 person’s 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 been penetration.306

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 attorney’s 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 men’s and the women’s 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 commented

I just can’t 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 Court’s 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 examining psychiatrists.317

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 didn’t 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 conversations."321

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 registration law.

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 appellant’s residence[.]"325 Nothing in the opinion explains how the police knew to show up at Wertz’s 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, that

though the evidence was very, very slight, it may be sufficient to constitute corroboration.327

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 prosecution’s asking him in court if he were a homosexual was prejudicial. Wood was unimpressed with the state’s 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 counsel’s 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 small children."331

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 psychopath."334

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 appellant’s private parts certain fecal matter from which he made some smears and slides that were introduced into evidence over defendant’s objection that they were obtained by unlawful search and seizure.344

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 restroom’s 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 proceedings.

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 sheriff’s 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 sheriff’s department to permit the sheriff’s 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 Tarbox’s 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 state’s vagrancy law. Vallée also recited Blakley’s 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 owner’s 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 privacy.368

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 teen’s mother the fact that he let the teen ride his motorcycle.372 The court rejected the state’s 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 Perras’s 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 Lindy’s presence, and that he may have masturbated in the house while Lindy was there. Lindy’s mother testified that Lindy stayed overnight at appellant’s 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 Lindy’s answers in the trial were "nonresponsive" to the questions asked, it found no error in Perras’s 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 omitted].380

The 1960 case of People v. Rucker381 was the result of a busybody who couldn’t mind his own business. Rucker and his consenting partner were enjoying sex with each other in a closed toilet stall when

[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 places.

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 can’t 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 below—i.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 can’t make an arrest." In so doing, he spied on innocent and guilty alike. [Emphasis the Court’s].393

Schauer concluded by saying that the authority

of police officers to spy on occupants of toilet booths—whether in an amusement park or a private home—will 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 Bielicki’s 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 everyone’s 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 special fee.399

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. Man’s 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 room—including a toilet stall—to 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 I’d 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 men’s 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 county’s 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 Slager’s 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 disorderly anyone

[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 be taken."437

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 couldn’t help myself so I went down on him’.439

The conviction still was overturned because of the trial judge’s 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 defendant’s 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 peace.446

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 Frazier’s 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 Frazier’s 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, "You’re a doll and I’m crazy about you." He then began caressing Ricketts’s thigh, placed his tongue in Ricketts’s 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 prison term.463

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 equally.468

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 state’s 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 presumable that

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 had.488

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 Baldwin’s 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 seventeen-year-old.

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 conduct.512

Compton also said that no

reasonable person be he juror or defendant would have any difficulty understanding, even under today’s 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 Williams’s 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 Ledenbach’s 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 other’s 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 why. The

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 couple’s 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 Norris’s 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 Santibanez’s 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 Santibanez’s 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 legislature’s 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 conduct.531

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 court’s 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 court’s 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 state’s 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 assaultive offenses.548

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 were affirmed.553

II. Sterilization

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 state’s 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 General’s opinion caused greater selectivity is unknown. There is no record of the number sterilized specifically for being a "sexual pervert."560

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 state’s 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 state’s Attorney General in 1950, and statutory language covering "sexual perverts" was eliminated the following year.

The Post-Hardwick Period, 1986-Present

I. Sodomy

A 1989 challenge in federal court to California’s 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 court’s 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 court’s 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 law’s 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 restriction.

II. Sterilization

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 isn’t 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 state’s 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 term.

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 Miller’s 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.

18 Id.

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.

29 Id.

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, 1911.

34 Id.

35 Report of the Attorney-General of the State of California. See each year’s 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, 1915.

40 Id. at 388.

41 Id.

42 Statutes and Amendments to the Codes of California 1915, page 760, ch. 457, enacted May 22, 1915, effective Aug. 8, 1915.

43 Id.

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.

46 Id.

47 Id.

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, 1917.

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.

58 Id.

59 39 Cal.App. 76, decided Dec. 6, 1918.

60 Id. at 76-77.

61 56 Cal.Dec. 247, decided Aug. 29, 1918.

62 Id. at 248.

63 Id. at 249.

64 Id.

65 Id.

66 Id. at 250.

67 Id.

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.

72 Id.

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, 1920.

78 Id. at 291-292.

79 Statutes and Amendments to the Codes of California 1921, page 87, ch. 90, enacted May 12, 1921.

80 Id.

81 Statutes and Amendments to the Codes of California 1921, page 1633, ch. 848, enacted June 3, 1921.

82 Id.

83 Statutes and Amendments to the Codes of California 1921, page 74, ch. 69, enacted May 9, 1921, effective July 29, 1921.

84 Id.

85 202 P. 939, decided Nov. 8, 1921.

86 Id.

87 217 P. 121, decided Aug. 6, 1923.

88 Id.

89 63 Cal.App. 557, decided Aug. 27, 1923.

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.

98 Id.

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, 1926.

102 Id. at 297-298.

103 Id. at 300.

104 Id.

105 251 P. 648, decided Dec. 13, 1926.

106 Id. at 649.

107 Id. at 650.

108 254 P. 614, decided Mar. 5, 1927.

109 Id.

110 Id. at 614-615.

111 Id. at 615.

112 Id.

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, 1927.

117 Id. at 131.

118 87 Cal.App. 208, decided Dec. 1, 1927.

119 Id. at 210.

120 Id. at 211.

121 89 Cal.App. 374, decided Feb. 21, 1928.

122 203 Cal. 782, decided Apr. 6, 1928.

123 Id. at 785.

124 268 P. 958, decided June 28, 1928.

125 Id.

126 Id.

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, 1934.

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, 1935.

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 state’s history.

156 76 P.2d 187, decided Feb. 9, 1938.

157 25 Cal.App.2d 161, decided Feb. 24, 1938.

158 Id. at 164.

159 Id.

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, 1941.

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.

175 Id.

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 573.

182 Attorney General’s 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, 1943.

186 Id. at 395.

187 61 Cal.App.2d 646, decided Dec. 8, 1943.

188 Id. at 647.

189 62 Cal.App.2d 116, decided Dec. 27, 1943.

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, 1944.

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.

213 Id.

214 Id.

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.

223 Id.

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, effective immediately.

231 Id. at 1155, §6624.

232 97 P.2d 264, decided Dec. 18, 1939.

233 Id.

234 Id.

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.

239 Id.

240 Id. at 563.

241 197 P.2d 847, decided Oct. 4, 1948.

242 Id.

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 General’s 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.

257 Id.

258 Statutes and Amendments to the Codes of California 1950, First Ex. Sess., page 512, ch. 56, enacted May 1, 1950.

259 Id.

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.

264 Id.

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.

272 Id.

273 Id.

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 D’Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States 1940-1970, (Chicago:University of Chicago Press, 1983), pages 70-71.

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.

292 Id.

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 Washington.

294 252 P.2d 416, decided Jan. 26, 1953.

295 Id. at 418.

296 254 P.2d 903, decided Mar. 24, 1953.

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.

302 Id.

303 264 P.2d 671, decided Dec. 22, 1953.

304 Id. at 672.

305 270 P.2d 540, decided May 20, 1954.

306 Id.

307 Mattachine Review, January 1955, page 16.

308 279 P.2d 621, decided Feb. 1, 1955.

309 Id. at 622.

310 Id. at 623.

311 Id.

312 Id.

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.

317 Id.

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 General’s Opinions, Vol. 28, page 178, Opinion No. 56-114, issued Oct. 5, 1956.

323 302 P.2d 613, decided Oct. 24, 1956.

324 Id.

325 Id. at 614.

326 Id. at 616.

327 Id.

328 Id.

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, pages 6-7.

330 Giani, at 814.

331 Id. at 815.

332 Id.

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.

339 Id.

340 Id. at 897.

341 Attorney General’s 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.

347 Id.

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, 1957.

352 Id. at 101-102.

353 Attorney General’s 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.

356 Id.

357 Id.

358 Id. at 555-556.

359 Id. at 557.

360 Id.

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.

364 Id.

365 Id. at 207.

366 Id. at 208.

367 Id.

368 Id.

369 169 Cal.App.2d 430, decided Apr. 7, 1959.

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, 1960.

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.

391 Id.

392 Id.

393 Id. at 290.

394 Id. at 292.

395 Id.

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.

399 Id.

400 Id. at 819.

401 Id.

402 209 Cal.App.2d 173, decided Oct. 31, 1962.

403 Id. at 175-176.

404 214 Cal.App.2d 131, decided Mar. 15, 1963.

405 Id. at 133.

406 372 P.2d 897, decided June 28, 1962.

407 Correspondence from the California Secretary of State’s 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.

410 Id.

411 216 Cal.App.2d 839, decided June 5, 1963.

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, 1965.

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, 1966.

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 1966).

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, Table 12.

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, 1967.

448 Id. at 490-491.

449 Id. at 495.

450 Id.

451 256 Cal.App.2d 630, decided Dec. 5, 1967.

452 Id. at 631.

453 Id.

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, 1968.

457 Id. at 748.

458 Id. at 748-749.

459 Id. at 750.

460 266 Cal.App.2d 754, decided Oct. 23, 1968.

461 Id. at 755.

462 California Attorney General’s 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.

466 Id.

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 General’s 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, 1970.

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, 1971.

479 Id. at 23.

480 30 Cal.App.3d 207, decided Jan. 26, 1973.

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, 1974.

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, 1974.

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 State’s office.

498 California Constitution, Article I, §1.

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, 4:295-302 (1975).

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, 1976.

512 Id. at 231.

513 Id.

514 Id. at 232.

515 61 Cal.App.3d Supp. 7, decided July 19, 1976.

516 Id. at 10.

517 Id.

518 Id. at 11.

519 63 Cal.App.3d Supp. 1, decided Sep. 9, 1976.

520 Id. at 4.

521 Id. at 233.

522 555 P.2d 1313, decided Nov. 10, 1976.

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, 1979.

527 Id. at 289-290.

528 Id. at 291.

529 599 P.2d 636, decided Sep. 7, 1979.

530 Id. at 639.

531 Id.

532 Id.

533 Id.

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, 1980.

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. 31, 1980.

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. 17, 1982.

550 158 Cal.App.3d 604, decided July 24, 1984.

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 General’s 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. O’Hara and T. Howland Sanks, "Eugenic Sterilization," 45 Georgetown L.J. 20 (1956-57), at 44 (Appendix C). The state’s 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, 1960.

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 (Oct. 1975).

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, 1995.

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 1997, 27:2.

571 The Oregonian, July 2, 1997, 1:2; July 20, 1997, 15A:1.

572 The Oregonian, Sep. 14, 1997, 26A:2.

573 The Oregonian, Oct. 12, 1997, 1E:1.

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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