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Last edited: August 10, 2004
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The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Montana
"Crimes against nature are naturally revolting to a
normal person, and the subject is truly a loathsome one."
The Post-Revolution Period, 1776-1873
The organic law for the Montana Territory,1
enacted in 1864, made no reference to sodomy or common-law crimes.
The first session of the Montana territorial legislature adopted a criminal
code in 1865.2 Included was a sodomy law that
used the common-law definition and established a penalty of five years-life.3
A separate statute adopted the common law of England.4
Period Analysis: Montana adopted a sodomy law with the
common-law definition as soon as the territorial legislature met. It had
not been given a sodomy law, either directly or indirectly, by the U.S.
Congress when the territory was organized.
The Victorian Morality Period, 1873-1948
In one of the earliest reported sodomy cases in the United States, in 1878,
the Court of Appeals decided Territory v. Mahaffey.5
Appellant Mahaffey had been convicted of sodomy with a 14-year-old male whom
he called a "boy prostitute" and with whom Mahaffey had sexual
relations on several occasions.6 The question to
be decided was whether enough corroborating evidence existed to justify
Mahaffey’s conviction. The Court unanimously said that sufficient
corroboration existed simply from a hotel clerk’s testimony that he had
shown the two a single room.7
In the 1890 case of State v. Chandonette,8
the Montana Supreme Court unanimously affirmed a sodomy conviction solely
because Chandonette had not preserved his appeal, which questioned the
existence of evidence of an actual criminal act. The Court stated that with
a sentence of this severity, and with the moral infamy involved in the
conviction, it is a matter of regret to this court that the appeal was not
so prosecuted that the court could inquire into the merits of the
conviction.9
In a new code adopted in 1895,10 Montana
changed the sodomy law to state that the crime would be complete upon
penetration only.11 This same code abrogated
common-law crimes.12
In a case from 1909, State v. Stone,13
the Montana Supreme Court upheld a conviction for an attempt to commit sodomy
under the state’s general attempts statute that provided for a penalty of up
to half that of the completed act.14
In 1915, the Montana Supreme Court was faced with the case of State v.
Guerin,15 and was asked to decide if
fellatio constituted the "crime against nature." The Court
unanimously decided that it did and said that every
intelligent adult person understands fully what the ordinary course of
nature demands or permits for the purpose of procreation, and that any
departure from this course is against nature. It therefore seems to be
trifling with our intelligence to say that copulation accomplished by use
of the anus is against nature, whereas the same act accomplished by use of
the mouth is not. This view contravenes common sense.16
The first victory for an appellant occurred in the next reported case, State
v. Keckonen,17 from 1938. Keckonen had been
sentenced to 35 years in prison for sodomy, based entirely upon circumstantial
evidence. He was a young adult who had been very close to a teenage male and
who kept moving when the younger one’s family moved. When reported missing
once, the teenager was found by police sleeping in the same room as Keckonen,
but in a different bed.18 The 3-2 majority of
the Court felt that, as to the claim of prejudice made in the appeal, there
was
probably little doubt. Crimes against nature are naturally revolting to
a normal person, and the subject is truly a loathsome one. In such cases,
jurors are sometimes moved by abhorrence of the offense to convict upon
slight evidence.19
The two dissenting justices felt that the above evidence was sufficiently
corroborative.20
Period Analysis: For a state as small as Montana, it is
surprising that two of the small number of published sodomy cases from the
19th century were from there. The first, decided while Montana still was a
territory, was one of the earliest in which the issue of consent was in
dispute. Despite using the common-law definition for sodomy, the Montana
Supreme Court held, during the 1910s when there was the greatest activity,
both via statute and case law, concerning the applicability of sodomy laws
to fellatio, that such an act was in violation of the "crime against
nature" law.
The Kinsey Period, 1948-1986
In 1951, the Montana legislature enacted a statute making it impossible for
any person under age 14 to be an accomplice to sodomy.21
The case of State v. Searle,22 from
1952, certainly can be classified as curious. By a vote of 4-1, the Montana
Supreme Court overturned Searle’s conviction for sodomy with "a named
boy of tender years." The boy, however "tender" his years, was
old enough to be employed by Searle. The error found by the Court was that
various other "boys" were permitted to testify as to "why
[they] went to the defendant’s place of business." Although Searle had
been convicted of sodomy, the Court reveals that the only physical contact
between him and the witness was "swats," apparently a spanking for
which the teenager would be paid, an act clearly not within the sodomy law.23
The next case was decided in 1953, State v. McSloy.24
A discrepancy in the identity of the appellant was considered a matter for a
jury to decide, and did not constitute reversible error.25
In 1953, in State v. Toner,26 the
Montana Supreme Court upheld the conviction of a man who, at age 72, received
a sentence of 18 years in prison. He would be kept in prison until age 90,
assuming he lived that long, for consensual sexual activity. The Court found
the trial to be error-free, even with the defense’s protest of remarks made
to the jury about the defendant. The trial judge responded: "The reporter
is not putting down every statement that the County Attorney makes."
Thus, the prejudicial comments were not being recorded for review by the
appellate courts. The defense also objected to the prosecutor’s statement
that "he has two sons of his own that [sic] he would hate to bring
up with this man around." The trial judge responded: "It seems to be
mere argument." The prosecutor also was stating that "14 other
boys" had been in the defendant’s home "many times," but did
not state that it was for sexual relations.27
In the 1957 case of State v. Gangner,28
the Montana Supreme Court voted 4-1 to uphold a lower court’s decision
ordering a new trial in the case of a physician convicted of consensual sodomy
with a 15-year-old male. The evidence in the case, which is amazingly similar
to that in the Keckonen case, largely was that the physician and the
young man spent a lot of time together and once were found sleeping in the
same bed.29 Since the law then in effect said
that a 14-year-old could be an accomplice to sodomy, this was insufficient
corroborative evidence. Justice Hugh Adair, who would dissent so verbally and
strenuously in the 1959 Dietz case, dissented without opinion from the
reversal of Gangner’s conviction.30
Undoubtedly as a result of this case, in 1957 the legislature amended the
sodomy law further by raising the minimum age to 16 at which one could be an
accomplice.31
In another victory, the Montana Supreme Court unanimously overturned a
conviction in 1958 in State v. Shambo.32
In this case, there had been no proof of penetration, a requirement under
state law.33
Certainly the most remarkable case from the state was the 1959 decision in State
v. Dietz.34 In a 3-2 decision, the Court
refused to overrule the Guerin case that fellatio constituted the
"crime against nature."35 The dissent
by Justice Hugh Adair ran for more than 12,000 words and took up nearly 22 of
the 25 pages for the whole case in the law reporter. Adair gave a lengthy
review of Dietz’s trial,36 and then launched
into a detailed history of the words "the infamous crime against
nature," [emphasis Adair’s] as used in the state law.37
Because of the limit of the word "the," Adair felt that there
could be only one "crime against nature," not many.38
Following this, Adair added a very lengthy section dealing with the definition
of sodomy under common law, ancient writers’ definitions, and the rule of
law in other U.S. jurisdictions.39 After giving
a list of other courts and the numbers of judges sitting on them that had
decided this question the other way, Adair asked who was wrong—20 judges and
the twelve jurors who acquitted Guerin on his retrial after the Supreme Court
remand, or the three justices of the Montana Supreme Court in 1915.40
Calling Guerin an "unsound, incorrect and dangerous opinion,"
Adair said that it "should be overruled forthwith."41
The other dissenter, Justice R.V. Bottomly, wrote a dissent of exactly 12
words: "I agree with Justice ADAIR’S foregoing historically correct,
legally sound, exhaustive dissent."42
In 1972, Montana adopted a new constitution including a broad privacy
rights section that reads
The right of individual privacy is essential to the well-being of a
free society and shall not be infringed without the showing of a
compelling state interest.43
Initially, the clause regarding a compelling state interest was not
included in the proposal.44 The committee noted
that, as of this date, the right to privacy as enunciated by the U.S. Supreme
Court was limited to the decision to use contraceptives by married couples,
but it felt that
as a mandate to our government, [the new privacy amendment] would cause
a complete re-examination and guarantee our individual citizens of Montana
this very important right--the right to be let alone, and this has been
called the most important right of them all.45
The proposal, then not including the "compelling government
interest" clause, was adopted with virtually no debate by a unanimous
voice vote.46
Another proposal for the Bill of Rights would have added Section 38 to
read: "Private sexual acts between consenting adults do not constitute a
crime." This proposal was
primarily concerned to handle the problem of homosexuality which,
again, is a physical-mental disease...this is a very serious problem today
and this, once again, where competent medical authority has declared that
somebody is a homosexual that that’s what it’s primarily aimed at,
that these people would not be put in jail for having a disease.47
With not a word of debate, the proposal was defeated by a vote of 69-16,
with 15 delegates not voting.48 Immediately
following this defeat, a motion to reconsider the privacy provision was made
and, in the debate centering on the dangers of such a broad right, the
"compelling government interest" clause was inserted by a voice
vote.49
Despite the command of the new constitution, the comprehensive criminal
code revision adopted in 197350 showed no
respect for privacy. The sodomy law was renamed "Deviate Sexual
Conduct," was retained as a felony with a penalty of up to 10 years in
prison,51 and was made applicable only to
people of the same sex.52
Although the privacy issue was not raised in the next reported case, State
v. Ballew,53 decided in 1975, it likely
would not have been successful. The case involved a non-consensual act.
However, one constitutional question raised in Ballew was the alleged
vagueness of the term "deviate sexual relations."54
The Court unanimously ruled that the new code gave a great deal of specificity
to definitions of illegal sexual activity.55
A law passed in 198156 raised the possible
fine for a person convicted of sodomy to $50,000,57
by far the largest in the nation, although a proviso prohibited the levying of
a fine that the defendant was unable to pay.58
The prison term was not changed.
Period Analysis: Montana has a number of reported sodomy cases
from the 1950s and they generally showed court deference to prosecutions
even of consensual activity. Apparently due to issues of consent with
teenagers, two separate laws were enacted during the 1950s raising the age
in order to be an accomplice, first to 14, then to 16. An amazing opinion
was the lengthy dissent of Justice Hugh Adair in 1959 in a case that
reaffirmed the applicability of the crime against nature law to fellatio.
He wrote an exhaustive history of English and U.S. law on the subject and
persuasively argued that the 1915 decision of the Montana Supreme Court
that fellatio was outlawed by the term "crime against nature"
was in error. He succeeded in persuading only one of four colleagues to
join him, however. A new criminal code enacted in 1973 made Montana only
the second state to make its sodomy law restricted to activity between
people of the same sex. Unlike most states that did this, however, Montana
kept the crime as a felony. The "crime against nature" epithet
was replaced with another, "deviate sexual conduct."
The Post-Hardwick Period, 1986-Present
Montana enacted a sex offender registration law59
in 1989. It included only certain sex crimes, those that were assaultive in
nature, incest (specifically limited to non-consensual and underage acts) and any
acts of sodomy.60 Anyone convicted of any of
these crimes was required to register with the local chief of police and
notify the chief of any changes of address.61
The registration period was to last for 10 years from the date of conviction
or date of release of prison, whichever was the latter.62
Failure to comply with the law would land the offender a jail term of up to 90
days and/or a fine of up to $250.63 A
frightening provision was that judges sentencing those convicted of "a
sexual offense" had the power to
impose upon the defendant reasonable employment or occupational
prohibitions and restrictions designed to protect the class or classes of
persons containing the likely victims of further offenses by the
defendant.64
Two separate changes were made to the sodomy law in 1991. In the first,65
the non-consensual portion of the sodomy law was repealed and the sexual
assault law was made gender-neutral. The law’s syllabus stated that its
purpose was to make the penalty "uniform" for "both
heterosexual and homosexual rape." The effect of this was to raise the
minimum penalty for non-consensual sodomy to two years. There had been no
minimum before.
The second law66 added a unique provision to
the consensual sodomy law that the fact
that a person seeks testing or receives treatment for the HIV-related
virus or another sexually transmitted disease may not be used as a basis
for a prosecution under this section and is not admissible in evidence in
a prosecution under this section.67
In 1992, the American Civil Liberties Union announced an effort to repeal
the state’s sodomy law,68 and it was joined
by a group of public health officials from several counties and the Montana
Women’s Lobby.69 Despite this support, the
repeal bill was killed in committee in early 1993.70
A controversy erupted in 1995 when the legislature considered a bill to
revise the sex offender registration law. A provision would have required
those convicted of consensual sodomy to register with sheriffs as well. After
"overwhelming" opposition from across the state and a promised veto
from Republican Governor Marc Racicot, the chief sponsor, Senator Al Bishop
(R-Billings), withdrew the provision. He also apologized for having
characterized consensual homosexual sexual activity as "worse than
rape." The measure first passed the Senate 32-18 but, after the protests,
was deleted from the bill by a 50-0 vote. The Senate also defeated a proposal
to repeal the sodomy law.71
Because of the legislature’s failure to repeal the sodomy law, a court
suit, Gryczan v. State, was filed against the law, citing the Montana
Constitution’s specific right to privacy. The Helena Independent Record
endorsed the court action, urging the state to support the suit against
itself.72 However, the state pledged to defend
the law in court.73 A motion to dismiss the
case, made by the state on the ground that the state had enforced the law only
against public sex or sex with minors, was denied by a trial court judge in
1994. Judge Jeffrey Sherlock noted that, because the state had amended the
sodomy law several times since the 1973 criminal code revision, it apparently
retained its viability in the eyes of the legislature.74
Sherlock struck the law down, citing the explicit right to privacy found in
Montana’s constitution.75
In 1997, the Montana Supreme Court affirmed Sherlock.76
Justice Nelson, writing for the 6-1 majority, chided the U.S. Supreme Court
for its Bowers v. Hardwick decision and stated that the right to
privacy in Montana has been afforded broader protection than under the federal
constitution.77 It
cannot seriously be argued that Respondents do not have a subjective or
actual expectation of privacy in their sexual activities. With few
exceptions not at issue here, all adults regardless of gender, fully and
properly expect that their consensual sexual activities will not be
subject to the prying eyes of others or to governmental snooping and
regulation. Quite simply, consenting adults expect that neither the state
nor their neighbors will be co-habitants of their bedrooms.78
Nelson also answered the state’s argument that the defeat of the 1972
constitutional amendment specifically guaranteeing a right to sexual privacy
by state convention meant that such a right didn’t exist in the privacy
amendment adopted. Nelson noted that the transcript of the convention "is
bereft of any discussion as to why the proposal was defeated." The State
was free to "speculate that this reflects an unwillingness to protect
this type of conduct," but others were free to "speculate that the
delegates believed it was already protected under the privacy clause."79
The Court also lanced the state’s adoption of the now-tiresome plea of
necessity of such a law to help prevent the spread of AIDS. Nelson noted that
the sodomy law at issue was adopted in 1973, almost a decade before the first
reported AIDS case in Montana and that heterosexual transmission of the
disease was the leading mode of transmission, that people not infected with
AIDS cannot spread it, yet are prohibited from sexual activity.80
In order for the Montana constitution to permit laws against sodomy, something
more compelling than a legislative distaste of what is perceived to be
offensive and immoral sexual practices on the part of homosexuals, state
regulation, much less criminalization, of this most intimate social
relationship will not withstand constitutional scrutiny. Quite simply,
while legislative enactments may reflect the will of the majority, and,
arguably, may even respond to perceived societal notions of what is
acceptable conduct in a moral sense, there are certain rights so
fundamental that they will not be denied to a minority no matter how
despised by society. In Montana, the right to privacy is such a right.81
Chief Justice Turnage concurred in part and dissented in part. He agreed
the law violated the federal and state constitutions, although he believed it
did so because of its discriminatory nature.82
In 1999, the Montana House of Representatives killed, on a 50-50 tie vote, a
bill to repeal the invalidated "deviate sexual conduct" law. After a
reconsideration, the repeal bill was defeated 63-37 after an unstated amendment
was offered to it.83
Another attempt in 2001 showed the opposition to repeal being spearheaded by
religious fundamentalists. It is clear they hope the Gryczan decision
will be overturned at some time in the future, thus their opposition to removing
the language from the statute books. After an amendment to place a statement of
opposition to homosexuality into the bill while repealing the voided language,
as a "compromise," the House Judiciary Committee voted 17-3 to table
the repeal bill.84
Period Analysis: Montana’s sodomy statute came under a great
deal of scrutiny in the last decade, making it possibly the state with the
greatest public awareness of such a law. Legislative attempts to repeal
were made, a 1995 controversy over including consensual acts within the
sex offender registration law focused attention on it, and a court suit
challenging its constitutionality was decided favorably under the state
constitution’s privacy provision. Efforts to remove the invalidated
language have met with strong opposition, obviously with the hope that a
future Montana Supreme Court could be persuaded to reverse itself and
sustain the law.
Footnotes
1 13 Stat. 85, enacted May 26, 1864.
2 Acts, Resolutions and Memorials of
the Territory of Montana Passed by the First Legislative Assembly,
(Virginia City MT:D.W. Tilton & Co., 1866), enacted during January
1865, but the exact date has not been preserved.
3 Id. at 185, §44.
4 Id. at 356, enacted Jan. 11,
1865.
5 3 Mont. 112, decided during January
Term 1878.
6 Id. at 114.
7 Id. at 115.
8 25 P. 438, decided Dec. 1, 1890.
9 Id. at 438.
10 Penal Code 1895, published
July 6, 1895.
11 Id. §497.
12 Id. at 1028, §6.
13 105 P. 89, decided Dec. 2, 1909.
14 Id. at 90.
15 152 P. 747, decided Oct. 5, 1915.
Rehearing denied Nov. 3, 1915.
16 Id. at 748.
17 84 P.2d 341, decided Nov. 16, 1938.
18 Id. at 342.
19 Id. at 346.
20 Id. at 347.
21 Montana Session Laws 1951,
page 119, ch. 68, enacted Feb. 23, 1951.
22 239 P.2d 995, decided Jan. 21,
1952.
23 Id. at 997-998. The
dissenting justice in the case was Lee Metcalf, who was elected to the
U.S. House of Representatives in 1954 and later was elected to the
United States Senate.
24 261 P.2d 663, decided July 24, 1953.
Amended on denial of rehearing Oct. 16, 1953.
25 Id. at 665.
26 263 P.2d 971, decided Nov. 25, 1953.
27 Id. at 973.
28 305 P.2d 338, decided Jan. 4, 1957.
29 Id. at 339.
30 Id. at 340.
31 Montana Session Laws 1957,
page 270, ch. 145, enacted Mar. 7, 1957.
32 322 P.2d 657, decided Mar. 10, 1958.
33 Id. at 658-659.
34 343 P.2d 539, decided Aug. 4, 1959.
35 Id. at 540-541.
36 Id. at 542-544.
37 Id. at 544-545.
38 Id. at 545.
39 Id. at 545-562.
40 Id. at 562.
41 Id.
42 Id. at 563.
43 Montana Constitution, Article II,
§10, adopted by popular vote June 6, 1972.
44 Transcript of Proceedings,
Montana Constitutional Convention, 1971-1972, (no publication data),
page 5180.
45 Id. at 5182.
46 Id. at 5185.
47 Id. at 5704.
48 Id. at 5705-5707. The
stereotype of women being more sympathetic than men to homosexual
persons was disproved by this vote. The proposal won the support of only
2 of 19 female delegates (10%), versus 14 of 81 male delegates (17%).
After the vote, the Convention Chair banned photographs being taken, and
delegate Jerome Cate, one of the 16 to vote yes, stated, "I don’t
want any inference drawn that Mr. Campbell [another supporter] and I
voted together." This was followed by "laughter." Id.
at 5707. This debate and vote occurred on Mar. 9, 1972.
49 Id. beginning on 5708.
50 Montana Session Laws 1973, ch.
513, enacted Apr. 4, 1973, effective Jan. 1, 1974.
51 Id. page 1360, §94-5-505.
52 Id. §94-2-101.
53 532 P.2d 407, decided Feb. 25, 1975.
54 Id. at 408.
55 Id. at 410-411.
56 Montana Session Laws 1981,
Part I, page 273, ch. 198, enacted Mar. 31, 1981.
57 Id. at 273-274.
58 Id. at 273.
59 Montana Session Laws 1989,
page 631, ch. 293, enacted Mar. 24, 1989, effective July 1, 1989.
60 Id. at 632, §2(3)(a).
61 Id. §5 and §6.
62 Id. §7.
63 Id. §8.
64 Id. at 633, §9.
65 Montana Session Laws 1991,
page 425, ch. 175, enacted Mar. 26, 1991.
66 Montana Session Laws 1991,
page 2449, ch. 687, enacted Apr. 27, 1991.
67 Id. at 2453, §7.
68 Washington Blade, Aug. 7,
1992, page 26.
69 Stonewall Union Reports,
October 1992, page 18.
70 Lesbian/Gay Law Notes, April
1993, 18:2.
71 Columbus Dispatch, Mar. 24,
1995, 7A:3; Washington Blade, Mar. 24, 1995, page 1.
72 Washington Blade, Jan. 14,
1994, page 21.
73 Washington Blade, Feb. 18,
1994, page 27.
74 Lesbian/Gay Law Notes,
September 1994, 97:3.
75 Lesbian/Gay Law Notes, March
1996, 31:1. His decision was handed down on Feb. 16, 1996.
76 942 P.2d 112, decided July 2,
1997.
77 Id. at 121.
78 Id. at 122.
79 Id. at 123.
80 Id. at 123-124.
81 Id. at 126-127.
82 Id. at 127.
83 www.geocities.com/privacy/laws/USA/Montana/mtnews05.htm,
mtnews06, and mtnews07.
84 www.geocities.com/privacy/laws/USA/Montana/mtnews12.htm
and mtnews13.
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