The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Hawaii
"There is much criticism of making a crime out of
homosexual or other unnatural sexual relations."
The Post-Revolution Period, 1776-1873
Hawaii was the target of zealous Christian missionaries in the 1820s and
1830s who forced their moral values on the natives.1
Having converted King Kamehameha III to Christianity, the missionaries
succeeded in spreading their personal morals to the population as a whole.
The first written laws in Hawaii are known as the Blue Laws and date to
1833. Many of these laws may have been used to prosecute sodomy and similar
conduct. A law enacted in 18402
permitted villages to prosecute "any particular evils" against which
no law existed.3
Three statutes enacted in 1841 also may have been used. The first was a
vagrancy law4
including the puzzling edict that
men and boys are forbidden to run in crowds after new things. Whosoever
does this in an indecent manner shall be punished thus; he shall be taken
to the house of confinement and remain till he pay a rial [unit of
currency], and be sent at liberty.5
The second law concerned undefined crimes6
and permitted judges to "reflect on the nature of the crime and the kind
of punishment which would formerly have been inflicted" and "pass
sentence" as in the judge’s opinion "the general principles of the
new system require."7
The third, and probably most significant, law was one concerning
"lewdness."8
One provision said that, if
any other species of lewdness be committed, such as is not mentioned in
this law [sodomy was not mentioned], the judge shall consider it well,
according to the best of his knowledge, he shall pass sentence in
accordance with the general spirit of the law. Thus shall he punish that
crime.9
Another provision outlawed
all lewd conversation, and all seductive language, and all lascivious
conduct leading to lewdness, and all libidinous solicitation[.]10
Whoever violated this law
shall be punished according to the magnitude of the offense. It shall
not be less than two nor more than ten dollars.11
The first explicit sodomy law was enacted in 1850.12
It contained the common-law definition and established a penalty of a fine of
up to $1,000 and confinement at hard labor for up to 20 years.13
Common-law crimes were abrogated.14
A similar law to the lewdness statute was contained in the new code,
prohibiting "lewd conversation, lascivious conduct, or libidinous
solicitations."15
Period Summary: Like other Polynesian societies, Hawaii became a
pawn of evangelical missionaries. The earliest recorded laws of Hawaii
dealing with sex show a mixture of this missionary influence and
Polynesian customs. Later, Hawaii enacted more European-style criminal
laws that created a harsh penalty for sodomy.
The Victorian Morality Period, 1873-1948
A statute of 187616
permitted juries to convict sodomy defendants of the lesser charge of an
assault to commit sodomy if it was "not satisfied that he is guilty"
of the principal crime.17
In the first reported sodomy case, from 1898, Republic of Hawaii v.
Edwards,18 the
Hawaii Supreme Court upheld a conviction. First, the Court ruled that
corroboration of the testimony of an accomplice was not required under the
criminal code.19
The Court also upheld the composition of the jury, composed of nine U.S.
citizens and three citizens of the Republic of Hawaii. The Court found that
the Hawaiian citizens were not barred by Hawaiian law from serving on the
juries of another nation, so Edwards had no claim.20
The Court noted that Edwards had been indicted by the Attorney General of
Hawaii, rather than a grand jury, but apparently Edwards did not challenge
this point.21
Other points rejected by the Court included the fact that Hawaii had
surrendered its jurisdiction to the United States upon annexation earlier in
1898, thereby making the Republic’s prosecution of him invalid, and that the
vote by which the jury found Edwards guilty was not unanimous.22
Edwards’s case returned to the Hawaii Supreme Court later. In 1900, in Ex
Parte Edwards,23
the three-member court, with none of the members of the 1898 case sitting,
voted 2-1 to order Edwards released from prison on a habeas corpus
petition because of his trial without an indictment. Edwards’s trial took
place four days after the cession of the Hawaiian Republic and, therefore,
under the Territory of Hawaii, had to conform to the U.S. Constitution. The
Court found that sodomy was "an infamous crime" under the Fifth
Amendment to the U.S. Constitution and could not be prosecuted without
indictment by a grand jury.24
The most curious aspect of the case was the dissenting opinion of Chief
Justice Frear who stated that he saw "no reason for changing [his]
opinion as expressed" in Edwards’s appeal of two years earlier.25
The syllabus of the original Edwards case says that Frear, although a
member of the Court, had not sat in the case, and so he had not expressed any
opinion.
In 1921, the Hawaii Supreme Court, in the case of Territory v. Chee Siu,26
ruled unanimously that emission of semen did not have to be proven in sodomy
cases.27
In the 1922 case of Territory v. Wilson,28
the Hawaii Supreme Court unanimously ruled that fellatio was a "crime
against nature." The Court criticized English case law on the subject in
which "the bare principle [that fellatio did not constitute
sodomy] was announced without supporting reasons."29
The Court believed that the "weight of authority" in the United
States and "reason" dictated a different outcome in Hawaii and
sustained Wilson’s conviction.30
In 1944, the Hawaii Supreme Court decided the case of Territory v. Koa
Gora.31 The
Court upheld the conviction of the defendant for doing "that which was
lewd and lascivious in conduct[.]"32
The Court never mentioned the specific conduct involved, but Koa Gora appealed
into federal court and that court was less hesitant to discuss his case. In
1946, in Koa Gora v. Hawaii,33
the Ninth Circuit Court of Appeals also unanimously sustained his conviction.
The opinion reveals that a naval patrolman, Arthur Notikai, went to a rooming
house in Honolulu on the pretext of looking for a room. Koa Gora took him into
a room, "unbuttoned Notikai’s trousers and laid his hands on his
private parts."34
The Ninth Circuit held that the term "lascivious conduct" was not
unconstitutionally vague.35
In the first such case ever to reach the U.S. Supreme Court, the Court refused
to hear Gora’s appeal.36
Bills were introduced into the Hawaii Senate in 1947 to create a
psychopathic offender law for the state. One would require conviction of a
crime before triggering the law, and the other would not. Neither passed, but
a report37 for the
legislature’s study was issued in 1949. After comparing the small number of
laws extant in the various states, the report noted the difficulty experts had
in defining a sexual psychopath. In fact, whether or not "a psychopathic
state exists in any individual case basically is dependent on the decision of
experts."38
The report also noted that neither proposed bill was without flaws. One would
give "society no protection from the time of a possible criminal
act" and the other "may result in the encroachment on the liberties
of an individual who has not and will never harm society."39
The definition of "psychopath" was "in essence"
"based on social non-conformity."40
It is probable that the reason Hawaii never adopted a psychopathic offender
law is because of the apparent choice between evils the legislature would have
to make.
Period Summary: The continued Westernization of Hawaii became
evident during this period when Hawaii was annexed to the United States.
Most court judges were not of Polynesian descent and issued decisions
contrary to local customs. The militarization of Hawaii in the years
before the Second World War increased its Westernization and it became one
of the more conservative states on the issue of human sexuality, something
very much at variance with its pre-missionary culture.
The Kinsey Period, 1948-1986
In 1949, the Hawaii legislature adopted a new disorderly conduct law41
that defined "disorderly conduct" as including a person who
[f]requents or loiters about any public place soliciting men for the
purpose of committing a crime against nature or other lewdness[.]42
The last reported sodomy case in Hawaii was Territory v. Bell,43
from 1958, in which the Hawaii Supreme Court unanimously ruled that the sodomy
law could be applied to persons of the opposite sex as well as persons of the
same sex.44 The
Court also precluded constitutional challenges to the law by noting that there
was
much criticism of making a crime out of homosexual or other unnatural
sexual relations, this criticism being particularly widespread in England
at this time, but the remedy, if any, is a matter for the legislature.45
A comprehensive criminal code revision in 197246
retained the abrogation of common-law crimes47
and repealed the crime against nature law, although setting varying ages of
consent for different sexual activity.48
The solicitation provision of the disorderly conduct law also was
eliminated.49
In 1978, Hawaii adopted an amendment to its constitution50
stating that the
right of the people to privacy is recognized and shall not be infringed
without the showing of a compelling state interest. The legislature shall
take affirmative steps to implement the right.51
The Hawaii Supreme Court read this very broad wording much more narrowly
than it was designed to be. In the 1983 case of State v. Mueller,52
which dealt with prostitution, the Court unanimously decided that
a purpose to lend talismanic effect to "the right to be left
alone," "intimate decision," or "personal
autonomy," or "personhood" cannot be inferred from the
State provision, any more than it can from the federal decisions. However
described, a freedom that is protected thereunder must still be one
"ranked as fundamental" in the concept of liberty that underlies
our society.53
Specifically, the Court stated that homosexual sodomy clearly was not
intended to be protected by this amendment, since the U.S. Supreme Court had
said it was not a fundamental liberty.54
Thus, the Hawaii Supreme Court gutted the amendment and decided that its great
breadth was limited in scope to the few "fundamental" liberties
enunciated by the U.S. Supreme Court, homosexual sodomy not one of them.
Therefore, the Hawaii legislature would be constitutionally free to reinstate
consensual sodomy as a crime if it so chose.
Despite the conservatism of the Hawaii Supreme Court, in 1986 the
legislature revised the sex offenses law55
lowering the age of consent for all sexual relations from 16 to 14,56
giving Hawaii the lowest age of consent in the nation.
Period Summary: Hawaii showed no liberalism on the issue of
sodomy and its ancillary acts until the 1972 criminal code revision that
made it the fifth state to legalize consensual sodomy. A specific privacy
rights amendment to the state constitution passed in a statewide vote only
narrowly and has been construed as covering only the federal constitution’s
few "fundamental" rights. Nevertheless, with the repeal of the
sodomy law and the lowering of the age of consent to 14, the lowest
anywhere in the country, the Hawaii legislature has shown that it is
reclaiming the state’s early heritage of tolerance for consensual sexual
activity.
The Post-Hardwick Period, 1986-Present
Apparently moving backward on the issue of sexuality, in 2001, Hawaii
passed a law to raise the age of consent from 14 to 16. Governor Ben Cayetano
vetoed it, but the legislature overrode his veto on a nearly unanimous vote,
making this the first legislative override of a Hawaiian Governor’s veto in
the state’s 42-year statehood history. The new law is to last only until
2003, and a task force is to study the issue of age of consent during the
interim.57
Period Summary:
There are
no published cases dealing with the limits of state power to regulate
sexual activity in places such as restrooms or parked cars. Because of the
decriminalization of consensual sodomy, only that occurring in semi-public
places still may be subject to prosecution. Fifteen years after agreeing
on the lowest age of consent in the nation, a nearly unanimous legislature
voted to raise it again.
Footnotes
1 See James Michener, Hawaii,
(New York:Random House, 1959).
2 Hawaii’s ‘Blue’
Laws. Constitution and Laws of 1840. A Practical Illustration of the
Missionaries’ Love for the HAWAIIANS, ([Honolulu?]:Holomua
Publishing Company, 1894), page 42, ch. IV, "Of Laws Which Are Not
of Universal Application," enacted Nov. 9, 1840.
3 Id. at 42-43.
4 Id. at 82, ch.
XVII, "Vagrant Laws," enacted Apr. 23, 1841.
5 Id.
6 Id. at 95, ch.
XXV, "Of Crimes Not Particularly Defined by Law," enacted May
18, 1841.
7 Id.
8 Id. at 116, ch.
XXXIV, "Law Respecting Lewdness," enacted May 29, 1841.
9 Id. at 121,
§15.
10 Id. §16.
11 Id.
12 Penal Code of
Hawaii 1850, enacted June 21, 1850.
13 Id. page 22,
§11.
14 Id. ch. 1,
§1.
15 Id. ch.
XXXVII, §1.
16 Laws of Hawaii
1876, ch. 40, §52, enacted Sep. 19, 1876.
17 Id.
18 11 Haw. 571, decided
Nov. 4, 1898.
19 Id. at 573.
20 Id. at 576.
21 Id. at 577.
22 Id. at
577-578.
23 13 Haw. 32, decided
Oct. 9, 1900.
24 Id. at 45.
25 Id. at 50.
26 25 Haw. 814, decided
Mar. 23, 1921.
27 Id. at
816-817.
28 26 Haw. 360, decided
Apr. 29, 1922.
29 Id. at 362.
30 Id.
31 37 Haw. 1, decided
Sep. 14, 1944.
32 Id.
33 152 F.2d 933,
decided Jan. 4, 1946. Rehearing denied Feb. 11, 1946.
34 Id. at 934.
35 Id. at 935.
36 328 U.S. 862,
decided June 10, 1946.
37 Norman Meller,
"Sexual Psychopaths," Report No. 2, (Legislative Reference
Bureau, 1949).
38 Id. at 11.
39 Id. at 17.
40 Id. at 21.
41 Laws of Hawaii
1949, ch. 139, §1, enacted May 4, 1949.
42 Id.
43 43 Haw. 23, decided
Oct. 9, 1958.
44 Id. at 26.
45 Id.
46 Laws of Hawaii
1972, page 32, Act 9, enacted Apr. 7, 1972, effective Jan. 1, 1973.
47 Id. at 33,
§102 (1).
48 Id. See Part
V. Sexual Offenses, §730 et seq. Sexual activity was limited to
partners 16 years of age or older, but sexual contact (touching) was
permitted with those 14 or older.
49 Id. §1.
50 Adopted by popular
vote, Nov. 7, 1978. Oddly, the very liberal state of Hawaii showed only
mediocre support for a right to privacy. The issue won only 52% of the
vote statewide and actually lost in Hawaii County. The other three
counties only narrowly approved the measure. Oahu gave it 52%, Kauai 54%
and Maui 53%. Vote provided by the Office of the Lieutenant Governor of
Hawaii in correspondence Oct. 13, 1992.
51 Hawaii Constitution,
Article I, §6.
52 671 P.2d 1351,
decided Nov. 3, 1983.
53 Id. at 1360.
54 Id. at
1355-1356.
55 Laws of Hawaii
1986, page 593, Act 314, enacted June 6, 1986.
56 Id. §57.
57
Reported at www.capitol.hawaii.gov on July 12, 2001.
