The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Idaho
"We are not inclined to be controlled by fallacious precedents,
technical and unwarranted distinctions enunciated in ancient decisions,
and thus countenance the commission of one of the most heinous and
unspeakable forms of crime."
The Post-Revolution Period, 1776-1873
The 1863 organic law for the Idaho Territory1
made no reference to sodomy or common-law crimes.
The Idaho territorial legislature enacted a criminal code in 18642
that criminalized sodomy with the common-law definition and provided a penalty
of five years-to-life.3 An assault to commit the
crime could be penalized by a sentence of 1-14 years in prison.4
The provisions of the code "shall extend to females,"5
although the common-law definition would not include cunnilingus. Any
unsuccessful attempt to commit sodomy could be penalized by up to 10 years in
prison.6
Period Summary: Idaho adopted a law against sodomy early in its
territorial years, but it specifically included females, something other
jurisdictions did not make clear with their laws. However, it adopted the
common-law wording of the statute, automatically excluding cunnilingus
from its coverage. This would allow prosecution only of heterosexual
females for sodomy.
The Victorian Morality Period, 1873-1948
I. Sodomy
A comprehensive code revision of 18877
eliminated the specific reference to a life sentence as the maximum, but
created no other maximum.8 The crime was
complete upon penetration only.9
The first reported sodomy case in Idaho was decided in 1913. In Ex Parte
Miller,10 the Idaho Supreme Court was asked
to interpret the 1887 sodomy law’s sentencing provision. Miller, who had
been in prison for more than 14 years of a 25-year sentence, claimed that the
stated five-year minimum also was the maximum penalty that could be handed
down. In a 2-1 decision, the Court disagreed. Justice Isaac Sullivan’s
opinion said that under the law of Idaho
the only crime punishable with death is that of murder in the first
degree, and no one would contend that a court under the provisions of said
section 6810 [the sodomy law] would have the authority to have a man
executed who had been convicted of the crime mentioned in said section;
but the Legislature no doubt considered it a grave crime and fixed the
minimum punishment at five years’ imprisonment and left it to the sound
discretion of the court to fix the maximum according to the facts of each
case.11
Although the Court thereby eliminated the possibility of a death sentence
under this statute, it left open the right of a court to sentence an
individual to life imprisonment. In dissent, Chief Justice James Ailshie
claimed that the amendment of the statute in 1887 to eliminate the specific
reference to life imprisonment meant that the legislature did not intend for a
life sentence to be permissible.12 He also
noted that the Court seemed to be violating its own rule announced in three
other cases dealing with criminal penalties without maximum sentences.13
The next case, decided in 1916, concerned the applicability of the sodomy
statute to fellatio. In State v. Altwatter,14
the Court unanimously found that the law covered such acts. In so deciding,
and rejecting decisions of other courts that fellatio was not covered, the
Court said that it was
disposed to follow the more modern decisions, which, while not so
numerous, yet are, we think, the better reasoned, and in keeping with the
progress of civilization. We are not inclined to be controlled by
fallacious precedents, technical and unwarranted distinctions enunciated
in ancient decisions, and thus countenance the commission of one of the
most heinous and unspeakable forms of crime.15
Thus, fellatio was accepted in the Dark Ages and the Victorian era, but as
society got more "modern," it grew less tolerant.
Although the case never was reported, in 1920, two men were convicted of
consensual fellatio in the restroom of a private building. After a glory hole
was discovered in the restroom, employees covered the hole only to have the
coverings continuously removed. A hole above the restroom stalls was drilled
and the men were caught that way.16
II. Sterilization
A proposed sterilization law, passed by the legislature in 1919, was vetoed
by Governor D.W. Davis.17 The bill would have
required quarterly reports from the state institutions to the Department of
Public Welfare of all "feeble-minded, insane, epileptic, moral
degenerates and sexual perverts" for possible sterilization.18
The definition of "moral degenerates and sexual perverts" was
limited to
those who are addicted to the practice of sodomy or the crime against
nature, or to other gross, bestial and perverted sexual habits and
practices prohibited by statute.19
In his veto message, Governor Davis lauded the bill as
"meritorious" but believed that it, applying only to those people
confined in institutions, was discriminatory because they were, because of
their confinement, "the least menace to society." (Evidently if it
covered everyone in the state, he would find it unobjectionable). Also, Davis
felt that the procedure of sterilization for the purpose of eugenics still was
experimental, and more scientific evidence should be awaited to see if it were
truly worthwhile.20
Six years apparently was all it took for the evidence to accumulate
because, in 1925, Idaho enacted a law21 to
authorize the sterilization of certain people, including "habitual
criminals, moral degenerates and sexual perverts" who were considered
likely to become a menace to society.22 The
surgery could be performed either with the consent of the individual23
or following a trial, if the person would not consent.24
In 1929, the law was amended25 to limit the
type of sterilizing surgery to the less harsh vasectomy or salpingectomy.26
The constitutionality of this law was challenged and upheld in the 1931
case of State v. Troutman.27 Without
much analysis, the Idaho Supreme Court rejected Troutman’s contentions that
the law denied life, liberty, and the pursuit of happiness and safety,28
was cruel and unusual punishment,29 denied due
process of law,30 and denied equal protection
of the laws.31 With words that would come back
to haunt them with the Nazi regime in Germany on the verge of power, the
Court, after referring to ancient societies that attempted to eliminate
undesirable people, said that it was
feared this law is an opening wedge for such tyrannies. It is attempted
to bolster this argument by a claim that modern scientists are not fully
agreed on the law of heredity, and the so-called "eugenics
enthusiasts" are not agreed on how far the law should interfere with
natural selection.
However, here we are administering a fixed and definite law, and are
only concerned with that present law, not with what future legislators may
do. Nor are we concerned with what political enthusiasts may try to do.32
Through the end of 1934, only 14 sterilizations had been performed under
this law, the smallest number of any state in the nation.33
Period Summary: Idaho followed the national trend in deciding
that fellatio was a "crime against nature." The wording of the
law was sufficiently confusing as to its maximum penalty that the Idaho
Supreme Court had to settle the dispute. It decided that life imprisonment
was permissible for private, consensual sodomy. Idaho adopted a
sterilization law that included "sexual perverts," although the
first attempt at such a law met with a gubernatorial veto. A second
attempt was signed by a different governor and the law’s
constitutionality was sustained by the Idaho Supreme Court. One source
showed very limited use of the law before the Second World War.
The Kinsey Period, 1948-1986
I. Sodomy
The next reported sodomy case was State v. Wall,34
decided in 1952. The Idaho Supreme Court split 3-2 to uphold the conviction of
defendant Wall for lewd and lascivious conduct, an offense the majority felt
was an included offense within "the crime against nature." In fact,
it said that "any charge of the infamous crime against nature, committed
on the person of such a minor, necessarily includes the crime of lewd
and lascivious conduct." [Emphasis added].35
The majority opinion believed that, because the state chose to prosecute Wall
only on the lewd and lascivious charge, he had no right to complain about a
possible double prosecution.36 In dissent,
Justice William Keeton pointed out that the penalty for sodomy was five years,
whereas that for lewd and lascivious conduct with a minor was life
imprisonment. Keeton complained that a more severe crime was not necessarily
included in a less severe crime as the majority claimed.37
There are three reported cases from the Idaho Supreme Court resulting from
the infamous "Boys of Boise" affair.38
This now-legendary affair caused one of the most virulent anti-Gay witch hunts
in history. The first two cases were decided a week apart in 1956. In State
v. Moore,39 the conviction of banker Joe
Moore unanimously was upheld as was the right of the trial court to refuse the
testimony of a second psychiatrist on behalf of the defendant, after having
allowed one to testify.40 The Court also noted
that Moore had been involved in "homosexual activity" over a period
of "twelve or thirteen years," thus justifying the penitentiary
sentence.41 The Court apparently overlooked the
fact that, over this 12-13 year period, Moore never had gotten into trouble,
and his sexual relations all apparently were consensual.
In State v. Wilson,42 the Court
referred to Wilson’s consensual sodomy as a "crime committed against
society"43 and upheld the penitentiary
sentence in place of probation because Wilson was "an habitual,
persistent homosexual offender."44 Again,
Wilson’s sexual relations never had before attracted the attention of the
authorities and all were consensual in nature.
In 1959, in State v. Larsen,45 the
Court unanimously upheld the conviction of Gordon Larsen who had been picked
up by police for questioning and asked "at length about activities of
homosexuals in the city."46 As a result of
the questioning, Larsen signed a police statement that he had
a homosexual experience with Eldon Halverson wherein I recall taking
his penis into my mouth and he took my penis into his. Neither of us had
an orgasm.47
He added an afterthought to his signed statement: "This incident
involved ‘playing around’ and was not an attempt on my part to ‘Blow’
Halverson."48 If Larsen thought that
taking an adult penis into his mouth only for purposes of "playing
around" would exempt him from the sodomy law, he was in for a rude
surprise. He feared for his job and his proposed marriage, and believed that,
if he signed a confession, he would be let go, as had Halverson.49
Nevertheless, Larsen ended up with a sentence of five years in prison.50
He also complained about "allegedly inflammatory remarks by the
prosecutor in his argument to the jury."51
The remarks thought to be inflammatory were an urging of the jurors "to
enforce the law and to halt an outbreak of homosexual practices in the
city."52
In 1971, the Idaho legislature passed a new criminal code53
that abrogated common-law crimes54 and repealed
the sodomy law.55 This law technically made
Idaho only the third state in the nation to decriminalize consensual sodomy,
but the repeal did not last long.
The new code became effective January 1, 1972,56
but officials in the Mormon and Catholic Churches did not care for
liberalization of laws against sex.57 After an
outpouring of opposition, the Idaho legislature passed a law to repeal the new
code, without passing a replacement, effective April 1, 1972.58
What finally came out of the legislature was a code reinstating the status
quo. The law59 was passed only five days before
the liberalized code’s repeal date (and, thus, only five days before the
state would have been without any criminal code). The repressive code
reinstated common-law crimes60 and the felony
"crime against nature" law with the minimum five-year penalty and no
maximum.61
Non-consensual sodomy was the subject of the 1982 case State v.
Goodrick.62 Goodrick claimed that the law
could not be enforced against "consenting adults of the opposite
sex," but the Idaho Supreme Court found that he had no standing to raise
the claim since his actions were by force.63
This decision raises the question of whether the law merely is assumed to be
inapplicable to consenting heterosexuals, but the Court ducked the issue.
II. Sterilization
In a study conducted at the end of the 1940s, it was shown that Idaho had
not used its sterilization law any more, and all sterilizations that had been
performed were on the insane or mentally retarded.64
The law was repealed in 1972.65 Fortunately,
this repeal was in a separate bill from the criminal code, so the repressive
code’s restoration did not revive the sterilization law.
There are no known extant records concerning the number of people
sterilized in the state for being "sexual perverts."66
Period Summary: During the 1950s there was a witch hunt, now
fabled as the "Boys of Boise" affair. A number of Gay men were
prosecuted for private, consensual sodomy during a period of political
battling between moderate and reactionary forces in the local Republican
Party. Three published cases arose from the affair, all convictions being
affirmed by the Idaho Supreme Court and one of them refused an appeal by
the U.S. Supreme Court. A new criminal code was adopted in early 1971 that
repealed the sodomy law, but the state’s vocal right-wing forces
objected and raised such a fuss that the 1972 legislature rescinded the
new code and reinstated the old code verbatim. This retains a maximum life
imprisonment penalty for the "crime against nature." In a
separate law enacted in 1972, the defunct sterilization law was repealed.
The Post-Hardwick Period, 1986-Present
In 1990, two male couples were arrested for consensual sex, one in a parked
car, and the other in a darkened parking lot. Both couples faced a sentence of
five years-to-life under the sodomy law.67
More successful was the defendant in State v. Limberhand,68
also from 1990. The ironically named Limberhand was arrested for masturbating
in a closed toilet stall by police searching without a warrant for
"homosexual activity" in a rest stop. An undercover police officer
by the name of Komosinski entered the adjoining stall and propositioned
Limberhand when he looked through a hole and saw him masturbating. Limberhand
turned the officer down and later left, only to be arrested by another
undercover officer as he drove along a freeway.69
The Court of Appeals found a privacy interest in the restroom stall and
remanded the case to the magistrate with an order that made it virtually
impossible for the state to win on the remand.70
In 1992, the Idaho Court of Appeals decided State v. Hayes,71
interpreting the penalty provision of the "crime against nature"
law. For what a jury believed to be consensual, rather than non-consensual
sodomy, Brian Hayes received a sentence of 5-12 years in prison. The Court of
Appeals first reaffirmed the Miller precedent that the failure to state
a maximum penalty for sodomy meant that the maximum could be life
imprisonment.72 As to whether or not this was
disproportionate to the severity of the crime, the court noted that the
infamous crime against nature, as it has been defined in Idaho, does
not include any references to violence, weapons, injury, or harm. Rather,
the statute merely describes an act that has been considered harmful to
society generally, based on moral and religious grounds.73
The court said it was "injudicious and nearly impossible" to
analyze a crime "based on such personal and ephemeral grounds[.]"
The law, the court noted, had remained unchanged in wording for more than a
century, indicating
that the citizens of Idaho, as represented by the legislature, consider
the offense grave enough to remain opposed to the conduct prohibited by
the statute. Our conclusion is supported by the brief repeal of the
statute in 1972...The legislature quickly repealed this law [the repealer]
and reenacted the original statute. We assume that a statute which
received such treatment and which has remained unchanged for so many years
retains its vitality and public support.74
As to a comparison with other states, the Court of Appeals conceded that
Idaho was the only state that permitted a life sentence and was one of only a
few which would allow a sentence even of the minimum of five years. However,
the sentence that Hayes received "is not so extreme as to shock the
conscience of reasonable people."75
Nevertheless, the Court remanded the case because the trial court ruled that
state law mandated a five-year minimum. Where this "error"
originated is unclear, because the state law clearly does state "not less
than five years" as the penalty. Anyway, as a result, the case returned
to the Court of Appeals later that year.76 The
trial judge, on remand, imposed the same 5-12 year sentence as originally and
the Court of Appeals found no reason to disturb it.
In 1992, the American Civil Liberties Union announced plans for an attempt
to repeal the state’s sodomy law.77
The state apparently has little interest in repealing the law. In 1993,
Idaho enacted a sex offender registration law78
that made it clear that what individuals did consensually remained the
prosecutor’s business. Those covered by the law were considered a danger to
the community and the purpose of the law was to assist "efforts of local
law enforcement agencies to protect their communities[.]"79
Anyone convicted of completion of, conspiracy to commit, attempt to commit, or
solicitation of, any of the enumerated sex crimes was required to register as
a sex offender with a local sheriff. Included in the list of crimes was
"crime against nature."80 The law
also applies to people moving into Idaho.81
Registration is required for 10 years after "discharge from probation,
parole or release from incarceration, whichever is greater."82
Failure to comply with the requirement is a felony, with a penalty of up to
five years in prison and a fine of up to $5,000.83
In 1995, deciding State v. Holden,84
the Idaho Court of Appeals ruled unanimously that the state’s "crime
against nature" law could not be applied constitutionally to married
couples. Citing the string of decisions by the U.S. Supreme Court beginning
with Griswold v. Connecticut, the court said "there can be little
doubt" that the right to privacy extends to "particular sexual acts
practiced consensually in private by married couples."85
The court noted that the Supreme Court’s Bowers v. Hardwick decision
was silent as to whether there was a constitutional right to engage in sodomy
by married couples, but that did not "overrule or reject the privacy
right of married couples announced in Griswold."86
Taking its analysis farther, the court said that the "crime against
nature" law was valid regarding "forced sexual activity, sexual acts
with minors, nonprivate or commercial conduct, [and] bestiality."87
It refused to address the validity of the law as it applied to
"consenting adults who are not married to each other" because
"that issue is not before us."88
Oddly, however, the five valid uses of the law stated above also were not
before the court, even though it addressed them.
In 1996, the state’s sex offender registration law was amended89
to make the registration requirement, including for private, consensual
sodomy, for the person’s lifetime, rather than just 10 years.90
An exemption from the lifetime registration was included for those providing
"clear and convincing evidence" that they are "not a risk to
commit a new violation" of any of the listed offenses, including private,
consensual sodomy.91
In addition to the "crime against nature" law, Idaho continues to
recognize common-law crimes.92
Period Summary: After more than 20 years since the hysteria
caused the old criminal code’s reinstatement, the same "crime
against nature" law remains on the books in Idaho. The penalty
has not been reduced, and an appellate court reaffirmed the 1913
decision that a life sentence is permissible under the law. The court
also stated that a life sentence for private, consensual sodomy was
not excessive. Idaho has followed the precedent of other states in
ruling that sodomy in an enclosed restroom stall is constitutionally
protected, but a restroom stall is the only place now where such
activity can occur without fear of prosecution. However, Idaho also
has followed precedent in interpreting its sodomy law as inapplicable
to the private, consensual acts of married couples. That decision was
issued by the same court that, three years earlier, upheld the
validity of a possible life sentence for consensual activity, making
it unclear just how the court might rule on a constitutional challenge
to the law as it applies to persons not married to each other.
Footnotes
1 12
Stat. 808, enacted Mar. 3, 1863.
2 Territory of Idaho Laws 1864,
page 35, enacted Feb. 4, 1864.
3 Id. at 444, §45.
4 Id. §47.
5 Id. at 474, §155.
6 Id. §158.
7 Revised Statutes of Idaho 1887,
enacted Feb. 10, 1887.
8 Id. page 736, §6810.
9 Id. §6811.
10 129 P. 1075, decided Feb. 15, 1913.
11 Id. at 1076.
12 Id. at 1077.
13 Id. at 1078.
14 157 P. 256, decided May 9, 1916.
15 Id. at 257.
16 State v. Gillespie and Danner,
Ada County, Aug. 31, 1920, Trial Transcripts and Jury Verdict, AR
202, Criminal, Box 13, Gillespie, E.E. et al., 13/32, 1920, Idaho
State Archives, Boise.
17 Harry Hamilton Laughlin, Eugenical
Sterilization in the United States, (Chicago:Psychopathic Laboratory
of the Municipal Court of Chicago, 1922), pages 48-50.
18 Id. at 48, §1.
19 Id. at 49, §9.
20 Id. at 50.
21 Idaho Session Laws 1925, page
358, ch. 194, enacted Mar. 13, 1925.
22 Id. at 359, §2.
23 Id. at 360, §6.
24 Id. §7.
25 Idaho Session Laws 1929, page
683, ch. 285, enacted Mar. 19, 1929.
26 Id. at 685, §4.
27 299 P. 668, decided May 20, 1931.
28 Id. at 669.
29 Id. at 670.
30 Id.
31 Id.
32 Id.
33 Abraham Myerson et al., Eugenical
Sterilization: A Reorientation of the Problem, (New York:Macmillan,
1936), page 11.
34 248 P.2d 222, decided July 23, 1952.
35 Id. at 223.
36 Id.
37 Id. at 224.
38 John Gerassi, The Boys of Boise:
Furor, Vice and Folly in an American City, (New York:Collier, 1968).
Gerassi gives excellent coverage to the news in Boise, as well as to the
historical background into what makes Idaho and Boise what they are today,
but does not discuss the link between the history and the scandal. The
fascinating social history of Idaho is found in pages 129-162. This
scandal only barely was discussed in the Mattachine Review and even
then with more sympathy for the prosecutors. See the issues of February
1956, pages 2 and 20; and April 1956, page 2.
39 304 P.2d 1101, decided Dec. 4, 1956.
Rehearing denied Jan. 9, 1957. The Moore and Wilson cases
are not listed in the Idaho Digest. Gerassi’s book details the two
appeals on pages 171-173. Any pretense about the charges the men in Boise
faced was destroyed by the state’s Attorney General. In the Thirty-Third
Biennial Report of the Attorney General of Idaho, page 19, the
criminal charges faced by Moore and Wilson were listed as
"homosexuality." This was repeated in the following biennial
report, page 20.
40 Moore, at 1103.
41 Id. at 1104. Moore was paroled
June 4, 1958 and released from parole supervision a little over a
year later. (Correspondence from Mark Carnopis, Public Information
Officer, Idaho Department of Corrections, Jan. 22, 1997).
42 304 P.2d 644, decided Dec. 12, 1956.
43 Id. at 646.
44 Id. Wilson was paroled
July 9, 1958 and released from parole supervision a little over a
year later. (Correspondence from Mark Carnopis, Public Information
Officer, Idaho Department of Corrections, Jan. 22, 1997).
45 337 P.2d 1, decided Feb. 20, 1959.
Rehearing denied Apr. 2, 1959. Cert. denied, 361 U.S. 882, decided
Nov. 9, 1959.
46 337 P.2d, at 3.
47 Id. Gerassi’s book discusses
Halverson in some depth. The police referred to him as "one of our
best informers. He pinned a lot of guys." (Page 24). The police also
acknowledged discriminatory enforcement of the sodomy law. (Pages 24-25).
48 Larsen, at 3.
49 Id. at 4. Gerassi’s book
documents that Larsen lost his job, his apartment, and his fiancée as a
result of his arrest, all before he was convicted. His trial is detailed
in pages 191-283, and in the appendices, pages 291-314.
50 Larsen, at 4.
51 Id. at 5.
52 Id. at 6. Larsen was released
from prison July 24, 1961. (Correspondence from Mark Carnopis, Public
Information Officer, Idaho Department of Corrections, Jan. 22, 1997).
For an interview with an anonymous victim of the witch hunt, see Jonathan
Katz, Gay American History, (New York: Crowell, 1976), pages
109-119. The identity of the interviewee is determined easily by reading
Gerassi’s book.
53 Idaho Session Laws 1971, page
630, ch. 143, enacted Mar. 18, 1971, effective Jan. 1, 1972.
54 Id. at 634, §18-105.
55 Id. at 730, §5.
56 Id. §6.
57 The Advocate, Vol. 85 (May 10,
1972), page 3.
58 Idaho Session Laws 1972, page
223, ch. 109, enacted Mar. 8, 1972, effective Apr. 1, 1972.
59 Idaho Session Laws 1972, page
844, ch. 336, enacted Mar. 27, 1972, effective Apr. 1, 1972.
60 Id. at 857, §18-303.
61 Id. at 966, §18-6605.
62 641 P.2d 998, decided Mar. 3,
1982.
63 Id. at 999.
64 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
65 Idaho Session Laws 1972, page
27, ch. 21, enacted Feb. 19, 1972.
66 Correspondence from Linda L.
Caballero, Director of the Department of Health and Welfare, July 19,
1996.
67 Stonewall Union Reports,
November 1990, page 4.
68 788 P.2d 857, decided Mar. 14, 1990.
69 Id. at 859.
70 Id. at 863.
71 824 P.2d 163, decided Jan. 2, 1992.
Petition for review denied Feb. 12, 1992.
72 Id. at 166.
73 Id. at 169.
74 Id.
75 Id. at 170.
76 843 P.2d 675, decided Dec. 4, 1992.
77 Washington Blade, July 24,
1992, pages 30-31.
78 Idaho Session Laws 1993, page
392, ch. 155, enacted Mar. 25, 1993.
79 Id. §18-8302.
80 Id. §18-8303(a).
81 Id. §18-8303(b).
82 Id. at 393, §18-8305.
83 Id. at 394, §18-8311.
84 890 P.2d 341, decided Jan. 19, 1995.
Rehearing denied Mar. 3, 1995. Petition for review denied Mar. 21,
1995.
85 Id. at 347.
86 Id. at 346-347.
87 Id. at 348.
88 Id.
89 Idaho Session Laws 1996, page
904, ch. 249, enacted Mar. 14, 1996, effective July 1, 1996.
90 Id. §1.
91 Id. §2.
92 Idaho Code, §18-303.
