The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Iowa
"The transaction and the evidence is so vile and
nauseating that we shall refer to it as briefly as possible, and in such
language as that a reading between the lines may be necessary at some
points."
The Post-Revolution Period, 1776-1873
When the Iowa Territory was organized in 1838,1
it received the laws of the Wisconsin Territory.2
Wisconsin itself had received all Michigan laws when it was organized in 1836,
so Iowa ended up with the Michigan sodomy law that provided a penalty of up to
three years in prison, with the common-law definition.
In 1840, the Iowa Territory adopted a law3
abrogating all laws received from Michigan and Wisconsin,4
which included the Wisconsin/Michigan sodomy law.
Also, when Iowa passed its first criminal code in 1843,5
there was no mention of sodomy. Thus, Iowa made a decision to keep sodomy
legal, and this freedom remained for almost a half-century.
In the case of Estes v. Carter,6 from
1860, the Iowa Supreme Court decided that the state did not recognize
common-law crimes and noted the lack of a sodomy law. The legislature made no
effort to overturn this decision.
Period Summary: The Iowa Territory recognized sodomy as a crime
only indirectly via adoption of Wisconsin laws, for a five-year period.
Its first code of laws made no mention of sodomy and the state never has
recognized common-law crimes. A decision of the Iowa Supreme Court in 1860
pointed out that sodomy was not a crime, but the legislature did not act
to change that, a situation similar to Ohio.
The Victorian Morality Period, 1873-1948
I. Sodomy
In 1892, a statute7 was enacted that read
Any person who shall commit sodomy, shall be punished by imprisonment
in the penitentiary not more than ten years nor less than one year.8
The second section of the law stated that it was an emergency measure,
"being deemed of immediate importance" and would take effect upon
its publication in two stated newspapers.9
Presumably, someone had been arrested on a sodomy charge and the prosecution
came to grief upon discovering that sodomy was not a crime.
In 1900, the Iowa Supreme Court dealt with sodomy as a criminal charge for
the first time in State v. Todd.10 The
defendant had been arrested for having
maliciously threatened to kick, strike, and otherwise injure the person
of Charles Pettit, with intent to compel him, the said Pettit, to submit,
against his will, to the insertion in his mouth of the private parts of
the said defendant.11
The Court believed that this was a sufficient indictment.12
Possibly in reaction to the facts of this case, in 1902 the Iowa
legislature passed a new sodomy law13 that
paraphrased the Ohio law of 1889 (q.v.) stating
Whoever shall have carnal copulation in any opening of the body except
sexual parts, with another human being, or shall have carnal copulation
with a beast, shall be deemed guilty of sodomy.14
In a case from 1904, State v. McGruder,15
the Iowa Supreme Court held that under the sodomy statute of 1902, the opening
of the body in which sexual relations were had did not need to be specified.16
In this case it was the mouth, but the Court, after discussing earlier history
on whether fellatio was indictable as sodomy, said that there was
no reason for thinking courts of the present day less sensitive than
their Anglo-Saxon predecessors. The same grounds still exist for excluding
the details of the detestable crime, in so far as possible, from the
public records, and we think that it is described with sufficient
definiteness to answer every purpose when charged in the language of the
statute.17
The Court also rejected the defendant’s claim that emission of semen had
to be proven,18 but said that
"irresistible insane impulse" was a possible defense against a
sodomy charge.19 Nevertheless, the Court
reversed McGruder’s conviction because of misconduct by the prosecution.20
In 1905, the Iowa Supreme Court affirmed a sodomy conviction in State v.
Hill.21 The defendant had been convicted of
"an unnatural crime, which need not be named." In a 42-word
undetailed per curiam, the Court found no reversible error.22
In 1907, Iowa passed a law23 to permit the
sentencing of youthful male first-time offenders to the state reformatory,
rather than the penitentiary. However, there were four crimes a conviction of
which would bar implementation of the law—murder, treason, sodomy, and
incest.24
In the next reported case, State v. Gage,25
decided in 1908, the Iowa Supreme Court upheld a sodomy conviction after one
of the jurors independently visited a restroom in which the crime was alleged
to have occurred.26 The opinion also reported
that defendant Gage was caught only because someone peeped through the
keyhole.27
In the next reported sodomy case, State v. Farris,28
decided in 1920, the Court wasted no time in moralizing, when it opened the
decision with the words
The transaction and the evidence is so vile and nauseating that we
shall refer to it as briefly as possible, and in such language as that a
reading between the lines may be necessary at some points.29
This was a case of fellatio, with three men involved. Defendant Farris
committed fellatio on two other men, Stevens and Barnes, who later had Farris
arrested, even though they consented to the act. The opinion states,
incredibly, that after Farris fellated Stevens that
Stevens says he practiced sodomy once after that when no one else was
present.30
It certainly is a mystery as to how an individual could commit sodomy while
alone. The Court ruled that one who performed fellatio could be prosecuted
only as an accessory to the crime, due to the wording of the statute.31
The Court then unanimously overturned Farris’s conviction because the
testimony of his partners, labeled as accomplices by the Court, was not
corroborated.32
In 1922, the Iowa Supreme Court decided the case of State v. Golden.33
The Court upheld a conviction despite certain testimony it labeled as
"somewhat leading" by the alleged victim, specifically as to what
the defendant supposedly had done with his privates. The Court refused to
"give the exact language, since it would not be fit to go into an
opinion."34
In the 1925 case of State v. Walker,35
the Iowa Supreme Court rejected drunkenness as a defense to a charge of
sodomy.36
In State v. Donovan,37 from 1930, the
Iowa Supreme Court wrote a brief decision upholding the conviction of a man
for sodomy despite "conflict and contradictions in the testimony."38
The Court ended its opinion with
We have, because of the loathsome character of the crime charged,
avoided a statement of as much of the circumstances surrounding the
transaction as possible. The evidence was conflicting, but the
circumstances pointed strongly to the defendant’s guilt. The judgment is
affirmed.39
State v. Carter,40 from 1939, also was a
sodomy conviction affirmation. No detail exists in the per curiam, but
the decision oddly states that, from the record, it "appears" that
an indictment for sodomy preceded Carter’s trial.
II. Sterilization
In 1911, Iowa enacted a statute41 requiring
the examination of inmates of state institutions for possible sexual
sterilization. Among those who could be sterilized were those who gave
continued evidence while an inmate of such institution that he or she
is a moral or sexual pervert[.]42
Also, anyone twice convicted of any sexual offense could be sterilized.43
The first operation performed under this law occurred in early 1912 on a
man diagnosed as suffering from "sexual perversion with dementia
praecox." He previously had been imprisoned on a sodomy charge.44
The law was amended in 191345 to expand the
list of possible sterilization candidates to include
criminals, rapists, idiots, feeble-minded, imbeciles, lunatics,
drunkards, drug fiends, epileptics, syphilitics, moral and sexual
perverts, and diseased and degenerate persons[.]46
This law came to grief in federal court. In 1914, in the case of Davis
v. Berry et al.,47 the U.S. District Court
for the Eastern District of Iowa found it unconstitutional. Dispositive to the
Court was that the law did not provide for any pre-operative hearing for the
inmate scheduled to be sterilized, thus denying him or her due process of law.48
Iowa made a serious misstep dealing with this court ruling. Although they
appealed the decision, they also repealed the voided statute and enacted
another in 1915.49 This law eliminated
reference to "moral and sexual perverts" and wrote in a few grudging
due process guarantees. This new law proved to be a fatal error in its appeal
of the Davis case. In 1917, the U.S. Supreme Court, dominated by
conservatives, voted unanimously to dismiss Iowa’s appeal as moot.50
Under the three laws, a total of 49 Iowa residents were sterilized, some of
them under an unconstitutional law, through 1921.51
In 1929, Iowa made a fourth attempt at a sterilization law.52
The new law added all of the due process requirements that were missing from
the earlier law, but also commanded that the state board of eugenics quarterly
create a list of
all persons, male or female, living in this state, of whom he or she
may have knowledge, who are feeble-minded, insane, syphilitic, habitual
criminals, moral degenerates, or sexual perverts and who are a menace to
society.53
This law made no requirements that these "degenerates" or
"perverts" commit any crime, but rather be an undefined "menace
to society" in order to be rounded up and placed in jeopardy of
sterilization.
Through the end of 1934, 95 Iowans (57 male and 38 female) had been
sterilized under the law of 1929.54 There is no
report as to how many of these persons were "moral degenerates" or
"sexual perverts."
Period Summary: Although Iowa went for a long period of its
history as a territory and state without sodomy as a crime, once the state
acted to change that, Iowa took on a sinister personality regarding
sodomy. The state amended the law only a decade after enactment to include
fellatio. The law followed the strange wording of the Ohio law that
clearly covered fellatio but not cunnilingus. Sodomy also was considered
heinous enough of a crime that it warranted sending all those convicted of
it to a penitentiary rather than a reformatory. Case law in this period
remained uniformly hostile to claims made by defendants. The state also
was one of the earlier ones to enact a sterilization law and revised it
frequently. After an initial setback by a court on due process grounds,
the state eventually found a sterilization law that remained in operation.
The final law of 1929 included "moral degenerates" and
"sexual perverts," but there is no information on how many of
those sterilized fell into these groups.
The Kinsey Period, 1948-1986
I. Sodomy
In 1951, in State v. Simpson,55 the
Iowa Supreme Court overruled a portion of the Farris case that said the
one performing fellatio could not be held as a principal in the crime, only as
an accessory. Even though the sodomy statute had not been changed, the Court
decided that it now, three decades later, suddenly criminalized the taking of
a penis into an orifice, just as the offering of an orifice to receive it.56
Iowa passed a psychopathic offender law in 1955.57
The law covered any person arrested for any crime, suffering from a mental
disorder other than insanity or mental retardation, and having "criminal
propensities toward the commission of sex offenses[.]"58
Any adjudged psychopath released as no longer dangerous could be released on
probation of a minimum of three years.59
The kidnap and murder of a boy in the Sioux City area in 1955 led to the
mass detention of all known Gay men in the area. Twenty-nine men were sent to
asylums under the law, even though they had not been convicted of any crime.
The prosecutor commented, "At least word is out that they’re not
welcome in Sioux City any more."60
A devastating analysis of the psychopathic offender law in 195661
revealed that the law passed both houses of the Iowa legislature unanimously
and that there was no "extended discussion" of the bill.62
The article noted that most states with such laws didn’t bother to
appropriate money to implement them.63
Specifically concerning Iowa, 33 men had been sentenced under the law in its
first year and, in the group was "a high incidence of homosexuality or
acts connected therewith[.]" Of those arrested, 76% were for adult-adult
activity, and 20% for consensual activity.64
Included was one man labeled "Homosexuality, no overt acts."
Although the author questioned how this last man came under the law’s
jurisdiction, it is conceivable that he was one of the victims of the Sioux
City witch hunt (see above). The only "treatment" given in Iowa was
"occupational therapy and music therapy," and that merely as
"something to occupy their time."65
Those ensnared under the law tended to say and do whatever the authorities in
the institutions wanted, so as to get out faster, revealing that any claimed
"cure" rate was bogus.66
The next case, State v. Huntington,67
decided in 1957, upheld the sodomy conviction of a farmer for fellating two
consenting teenagers in a case that became notorious in the state. One
character witness said of Huntington: "I have heard some rumors...you
hear a lot of things that I don’t pay any attention to" and then added
that the rumors heard were "since this case was put out in the
paper."68
An opinion of the Attorney General69 from
1958 effectively doomed one man committed under it to spend the rest of his
life in the mental health system. The Director of Mental Institutions wrote to
ask if the man in question could be returned to the criminal justice system
since he was considered unlikely to recover from his psychopathy with further
treatment. The Attorney General interpreted the psychopathic offender law to
require him to be kept there until he was no longer psychopathic.
In 1967, in State v. Johnson,70 the
Iowa Supreme Court upheld the sodomy conviction of a man even though the
prosecuting witness was labeled by a psychiatrist as incompetent to testify
against him and the judge made the sole determination of competency.71
In State v. Kaster,72 in 1968, the
Iowa Supreme Court upheld the conviction of a prisoner for consensual sodomy
committed in his cell with another prisoner.73
It is curious that Kaster was sentenced only to a prison term concurrent with
the one he already was serving, making it unclear why the state bothered to
prosecute him.74
In 1976, the Iowa Supreme Court dealt with the case of State v. Pilcher,75
deciding the issue of whether heterosexuals could be prosecuted for sodomy in
the state. In a bitterly divided 5-4 vote, the Court ruled that there was no
compelling state interest in "the manner of sexual relations performed in
private between consenting adults of the opposite sex not married to each
other."76 The Court did not address the
issue of people of the same sex. However, in dissent, Justice W.W. Reynoldson
felt that the decision was far broader by implication than the majority
stated. He said
Although superficially appearing to reserve all those other troublesome
situations which now will soon clog our appeals pipeline (e.g., homosexual
acts, sodomitical acts with minors, nonconsenting sodomitical acts) there
is no mistaking the majority’s sweeping indictment [of the sodomy law].77
Just over a month later, the Iowa legislature enacted a comprehensive
criminal code revision78 that retained the
abrogation of common-law crimes,79 repealed the
consensual sodomy law, and established an age of consent of 16.80
In the spring of 1978, just over four months after the new code took
effect, the Iowa Supreme Court dealt with a case in which the defendant had
been arrested for sodomy prior to the repeal’s effective date. In State
v. Langley,81 a five-member panel of the
Court, including three of the four dissenters in Pilcher, ruled
unanimously that consensual sodomy between people of the same sex did not have
constitutional protection. The defendant
forced Abney to engage in sodomy, with a person of the same sex,
within a third person’s sight. Any of these three factors renders
the statute constitutional as applied, but in addition all three factors
coalesce here. We hold the statute immune, applied to this case, from
attack on due process and equal protection grounds. [Emphasis is the Court’s].82
II. Sterilization
By the end of 1948, some 891 Iowans had been sterilized under the statutes
of 1911, 1913, 1915, and 1929. Fifty of them, or 6%, were for reasons other
than insanity or mental retardation. Some of these presumably were "moral
degenerates" or "sexual perverts."83
In 1977, the sterilization law was repealed.84
There apparently never was a centralized recordkeeping system under the
sterilization law that today would permit identification of the number of
people sterilized specifically for being a "sexual pervert" or a
"moral degenerate."85
Period Summary: Iowa initially sided with the McCarthy view of
sex during the post-War era. Case law in the state remained hostile, with
the Iowa Supreme Court overruling a previous decision that only one
partner in an act of fellatio could be prosecuted. The law had not been
changed, but the prevailing mood of society had, so the court acted as a
legislature in revising the law. The state enacted a harsh psychopathic
offender law that did not require a criminal conviction before one could
be processed under it. One published analysis of the law’s operation
revealed that it warehoused socially undesirable people such as consenting
Gay men. In 1976, the sodomy law was repealed. Despite the repeal, the
Iowa Supreme Court ruled that same-sex sodomy did not enjoy constitutional
protection, but that opposite-sex sodomy did.
The Post-Hardwick Period, 1986-Present
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.
Footnotes
1 5 Stat. 235, enacted June 12, 1838.
2 Id. at 239, §12.
3 Laws of Iowa 1840, page 25, ch.
29, enacted July 30, 1840.
4 Id. §1.
5 Revised Statutes of the Territory of
Iowa, (Iowa City:Hughes & Williams, 1843), page 116, ch. 49,
enacted Feb. 16, 1843.
6 10 Iowa 400, decided Apr. 18, 1860.
7 Laws of Iowa 1892, page 66, ch.
39, enacted Mar. 26, 1892.
8 Id.
9 Id. The publication occurred Mar.
30, 1892.
10 82 N.W. 322, decided Apr. 11, 1900.
11 Id.
12 Id.
13 Laws of Iowa 1902, page 107, ch.
148, enacted Mar. 31, 1902.
14 Id.
15 101 N.W. 646, decided Dec. 13, 1904.
16 Id.
17 Id. at 647.
18 Id.
19 Id. at 648-649.
20 Id. at 649.
21 104 N.W. 1148, decided Sep. 23, 1905.
22 Id.
23 Laws of Iowa 1907, page 193, ch.
192, enacted Apr. 2, 1907.
24 Id. §2.
25 116 N.W. 596, decided June 4, 1908.
26 Id.
27 Id.
28 178 N.W. 361, decided July 6, 1920.
29 Id.
30 Id. at 362.
31 Id. at 362.
32 Id. at 364.
33 190 N.W. 509, decided Nov. 21, 1922.
34 Id.
35 204 N.W. 215, decided June 25, 1925.
36 Id.
37 229 N.W. 255, decided Feb. 18, 1930.
38 Id. at 256.
39 Id.
40 285 N.W. 176, decided Apr. 4, 1939.
41 Laws of the Thirty-Fourth General
Assembly [1911], page 144, ch. 129, enacted Apr. 10, 1911.
42 Id. at 145.
43 Id.
44 Harry Hamilton Laughlin, Eugenical
Sterilization in the United States, (Chicago:Psychopathic Laboratory
of the Municipal Court of Chicago, 1922), page 67.
45 Laws of the Thirty-Fifth General
Assembly [1913], page 209, ch. 187, enacted Apr. 19, 1913.
46 Id. §1.
47 216 F. 413, decided June 24, 1914.
48 Id. at 418.
49 Laws of the Thirty-Sixth General
Assembly [1915], ch. 202, enacted Apr. 16, 1915.
50 242 U.S. 468, decided Jan. 15, 1917.
51 Harry Hamilton Laughlin, Eugenical
Sterilization in the United States, (Chicago:Psychopathic Laboratory
of the Municipal Court of Chicago, 1922), page 65.
52 Laws of the Forty-Third General
Assembly [1929], page 106, ch. 66, enacted Apr. 13, 1929.
53 Id. §2.
54 Abraham Myerson, et al., Eugenical
Sterilization: A Reorientation of the Problem, (New York:Macmillan,
1936), page 12.
55 50 N.W.2d 601, decided Dec. 13, 1951.
56 Id. at 603.
57 Laws of the Fifty-Sixth General
Assembly [1955], page 143, ch. 121, enacted Apr. 14, 1955.
Typical for Iowa, the effective date of the law was upon the law’s
publication in two newspapers, but the legislature, for some reason, chose
newspapers from two tiny towns, the Paullina Times and the Estherville
Daily News.
58 Id. §1.
59 Id. at 145, §12.
60 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
50-51.
61 Samuel M. Fahr, "Iowa’s New
Sexual Psychopath Law—An Experiment Noble in Purpose?" 41 Iowa
L.Rev. 523 (Summer 1956).
62 Id.
63 Id. at 544.
64 Id. at 545.
65 Id. at 545-546.
66 Id. at 546.
67 80 N.W.2d 744, decided Feb. 5, 1957.
68 Id. at 746.
69 Report of the Attorney General of
Iowa 1958, page 153, No. 15.2, issued Nov. 13, 1958.
70 152 N.W.2d 426, decided July 11, 1967.
71 Id. at 429.
72 160 N.W.2d 856, decided Sep. 5, 1968.
73 Id. at 858.
74 Id. at 857.
75 242 N.W.2d 348, decided May 19, 1976.
76 Id. at 359.
77 Id. at 360-361.
78 Laws of the Sixty-Sixth General
Assembly [1976], page 549, ch. 1245, enacted June 28, 1976, effective
Jan. 1, 1978.
79 Id. §102.
80 The new sex crimes section is found on
pages 558-560, §901-910.
81 265 N.W. 2d 718, decided May 17, 1978.
82 Id. at 722.
83 Moya Woodside, Sterilization in
North Carolina: A Sociological and Psychological Study, (Chapel
Hill:University of North Carolina Press, 1950), pages 194-195.
84 Laws of the Sixty-Seventh General
Assembly [1977], page 255, ch. 78, enacted Apr. 15, 1977.
85 Correspondence from Charles Palmer,
Director of the Iowa Department of Human Services, Jan. 31, 1996.
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