The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
New Mexico
"The acts admittedly committed are even more
sensual and filthy than the offense charged, baser than the practices of
pagans."
The Post-Revolution Period, 1776-1873
The Organic Law for the Territory of New Mexico,1
adopted in 1850, made no provision for criminal laws.
In 1851, the territorial legislature passed a law for regulating courts2
and included an adoption of the common law in criminal cases,3
thus making sodomy a capital offense.
This law was interpreted in 1852 in Bray v. United States.4
The New Mexico Supreme Court ruled that the law could not be applied
retroactively, in this case to an assault committed three months before the
law was adopted. It found that the common law was not given to the New Mexico
Territory upon acquisition from Mexico. It also made reference to the
"cruel and inhuman character" of common-law penalties for felonies
(always death), but did not mention how New Mexico planned to punish Bray for
his "common law assault" if convicted.5
In 1861, when Great Britain reduced the maximum penalty for sodomy from
death to life imprisonment,6 this became the law
in New Mexico, due to its adoption of the common law.
Period Summary: New Mexico, unlike most of the West, showed an
early support for English common-law crimes, recognizing them within a
year of creation by Congress. During this period, there was no sodomy
statute, so the common-law penalty of death remained operative until
England reduced the penalty to life imprisonment in 1861, an action that
would make a similar reduction in New Mexico’s penalty.
The Victorian Morality Period, 1873-1948
The first sodomy law was passed in 18767 and
used the common-law definition of the crime with a penalty of at least one
year in prison and/or a $1,000 fine, with no maximums established.8
Any attempt could be penalized by up to one year and/or a $1,000 fine.9
In 1913, in Ex Parte DeVore,10 the
original common-law provision was interpreted by the New Mexico Supreme Court
as adopting all common-law crimes. Previous case law had hinted at this, but
none had been explicit.
Period Summary: During this period, there was not a single
reported sodomy case in the state and only one statutory change. This
change, however, was the first sodomy law of New Mexico. It retained the
maximum penalty of life imprisonment it received from the English statute
and retained the common-law definition of the crime, thus excluding oral
sex from its scope.
The Kinsey Period, 1948-1986
The state’s first reported sodomy case was decided by the New Mexico
Supreme Court in 1953. In Bennett et al. v. Abram,11
the Court held that the sodomy statute did not outlaw fellatio. In reaching
its decision, the Court noted, erroneously, that six cited states that had
ruled just the opposite had done so only because their statutes were worded
differently.12 In fact, each of the states had
common-law definitions. The Court felt that, although
the acts admittedly committed are even more sensual and filthy than the
offense charged, baser than the practices of pagans, we cannot extend the
crime of sodomy so as to include the acts called felatio [sic].13
The Court noted that the legislature then was in session and suggested that
it might be "an appropriate time" for it to redefine the crime of
sodomy. It suggested a statute.
Sodomy consists of a person taking into his or her mouth or anus the
sexual organ of any other person or animal or placing his or her sexual
organ in the mouth or anus of any other person or animal. Any penetration,
however slight, is sufficient to complete the crime of sodomy. Both
parties may be principals.14
In 1954, the Court ruled in the case of State v. Massey15
that emission of semen was not required to complete the crime.16
The legislature took until the following session to act on the suggestion
of the Supreme Court. In 1955, it enacted a law17
that adopted the suggested rewording verbatim. The penalty for an attempt to
commit the crime was raised to a maximum of 10 years.18
In 1961, more than half a decade after the recommendation of the American
Law Institute, the New Mexico House of Representatives became the first U.S.
legislative body to pass a bill to include repeal of a consensual sodomy law.
The bill cleared the House on a close 37-28 vote, but was not successful in
the Senate.19 This proposed code was both
unique and ahead of its time. It used the term "variant sexual
practice" to refer to oral and anal sex,20
rather than the more commonly used "deviate." This shows an amazing
enlightenment for the time.
In 1963, the legislature did enact a comprehensive criminal code revision21
that did not even come close to adopting the provisions of the model penal
code. Common-law crimes remained recognized22
and the sodomy law was changed only slightly to add the word
"intentionally" to the "taking into" the body for the
purposes of committing sodomy.23 The penalty
was set at 2-10 years and/or a fine of up to $5,000.24
In 1964, the New Mexico Supreme Court ruled in two cases, Starkey v. Cox25
and State v. Frederick,26 that life
imprisonment was permissible under the statute because of its failure to state
a maximum sentence. The cases were prosecuted before the 1963 change in the
penalty.
Although case law on the issue of sodomy is scarce in New Mexico, a medical
journal article27 from 1965 revealed some of
the practices in cases of sodomy arrests in the time just after the state
failed to repeal its sodomy law in its new criminal code. "Peter M."
was a "youth" who had been arrested for unspecified sexual activity
and who also was an adamant transvestite. Psychiatrist Rodolfo Bramanti wrote
a letter to Peter’s probation officer concerning his homosexuality. He
listed all then-believed "cures"—sexual sterilization, sex hormone
therapy, electroshock treatment, and psychoanalysis. Bramanti believed none of
them to be of value, each either hopeless or potentially dangerous.28
He then quoted two other physicians who believed that physicians should
accept the fact of homosexuality in certain people and try to help them
live as happily and efficiently as possible. That is our task as doctors.29
Bramanti believed that maxim and urged the state to help Peter obtain
employment
as a beautician, since he expressed interest in that type of work and
since it will fit his aptitudes and general makeup.30
His conclusions about Peter, which could be expanded to include every Gay
man or Lesbian, were to 1) take an "understanding attitude" toward
him by urging "his family, his relatives and members of the community
that Peter M. should be accepted the way he is"; 2) "alleviate his
emotional tensions, his frustrations, anxieties and periods of
depression"; 3) treat him "politely" and allow him consensual
sexual activity as he sees fit.31
It would take another decade for New Mexico to follow this last
recommendation.
The New Mexico Court of Appeals decided that cunnilingus violated the
sodomy law in 1967 in the case of State v. Putman.32
The 2-1 decision of the court held that placing the tongue inside a vagina
constituted a "taking into" the body as required by the statute.33
The dissenting judge did so on other grounds.34
The same court ruled in 1971, in Washington v. Rodriguez35
that consent could not be raised as a defense in a sodomy prosecution36
and that privacy rights could not be asserted because the defendant had
engaged in sodomy in a prison.37
The Court of Appeals decided State v. Trejo38
in 1972. This case involved an attempt at forcible sodomy of a 16-year-old
male and, predictably, the conviction was upheld. What is remarkable about the
case is the dissent of Judge Lewis Sutin. While acknowledging that Trejo’s
actions currently were illegal and would remain illegal even with the adoption
of the Model Penal Code, he felt the law was
unconstitutional and void because it regulates private sexual relations
between two consenting adults, including husband and wife.39
Sutin cited law review articles condemning the law40
and noted that it was based upon "a Judeo-Christian principle."41
He also felt that the law was
unconstitutional and void because it is vague, overbroad, uncertain,
and is an unreasonable exercise of the police power of the state.42
"No one has ever proven that the various acts involved are physically
harmful between two consenting adults engaged in private sexual relations, nor
that these acts have a deleterious effect on society."43
He then asked if it didn’t
seem odd that the statute allows the state to punish consenting adults
for private sexual deviations, and married people for the private use of
their marital intimacy even though they seek stability instead of divorce?
In denying consensual private sex relations between adults, the
legislature makes criminals out of a large section of ordinary, normal
people in New Mexico who have left the biblical text and seek contentment
under modern professional guidance. Public policy cannot sanction this
type of legislation.44
"The social revolution on the subject of private consensual sexual
relations between two consenting adults has begun legally in the courts and in
the legislature. New Mexico should follow this trend."45
Sutin spoke again in the 1973 case of State v. Armstrong.46
This was a heterosexual case involving both rape and sodomy. Again, the
conviction was upheld, and Sutin said, "I concur on rape and dissent on
sodomy."47 His amazing dissent said, in
part,
The purpose of this dissent is not to sanction public or private
deviant sexual intercourse made unlawful by illegal conduct. Its purpose
is to seek adoption of the Model Penal Code of the American Law
Institute...to avoid an invasion of the right of privacy.48
"A man’s home is his castle." If he
placed in his home Michelangelo’s "David," or exhibited a
movie showing consensual sex deviation, or hung on his wall, Altdorfer,
Lot and His Daughter and Carracci, Love in the Golden Age and other
paintings of Sex and Erotica, all of which are shown publicly, does
legislative power extend into this man’s home? Can it send him to
prison?49
The New Mexico Supreme Court refused to review the decision.50
Obviously to Sutin’s satisfaction, in a comprehensive sexual assault law
revision passed in 1975,51 the sodomy law was
repealed.52
In 1975, in State v. Elliott,53 the
Court of Appeals voted 2-1 to find the sodomy law unconstitutional in a
heterosexual case prosecuted before the repeal of the law. On appeal,54
the New Mexico Supreme Court unanimously reversed. This was so because the
couple
were not husband and wife and, consequently, there could have been no
issue as to marital privacy, the sanctity of the home or the nurture of
family life.55
In another post-repeal case that involved heterosexual rape and sodomy
committed under the old statute, State v. Helker,56
from 1975, another 2-1 split occurred. The conviction was upheld, but Judge
Lewis Sutin again dissented. He criticized the majority for failing to follow Elliott,
which had not yet been reversed by the New Mexico Supreme Court. He also added
that the New Mexico legislature
was wise enough to repeal the old sodomy statute and adopt a new one
which meets all constitutional requirements. But Elliott and Helker will
suffer punishment for a crime which did not exist in law, and which
constitutional problem the appellate courts of this State have studiously
refused to determine.57
Sutin seemed unable to understand that the law of which he was so critical
had been upheld consistently in the state. Before deciding Elliott
contrariwise to Sutin’s position, the New Mexico Supreme Court refused to
review Helker.58
An attempt to reinstate the consensual sodomy law in the state was
announced in 1986 by two state legislators, but was not successful.59
Period Summary: It was not until the McCarthy era that New
Mexico had its first published sodomy case. Surprisingly for the time era,
the New Mexico Supreme Court ruled in this case that the common-law
definition of sodomy remained in force and that oral sex was legal.
Uncomfortable with its decision, the Court added to its opinion a
recommended new law to overturn its own decision. At the next session of
the legislature, the suggested law was adopted verbatim. In 1961, New
Mexico came close to becoming the first state to decriminalize sodomy, but
the State Senate balked and the new criminal code adopted two years later
retained felony penalties for private, consensual activity. Court opinions
during the 1960s and 1970s were consistent in upholding sodomy
convictions. The New Mexico Supreme Court found no privacy right under the
constitution for acts of sodomy, but the state legislature repealed the
law in 1975 in a sexual offenses revision law.
The Post-Hardwick Period, 1986-Present
The actions of the New Mexico Supreme Court, in reversing Elliott,
guaranteed that pre-repeal convictions had no chance of being overturned and
that the legislature would remain constitutionally free to reenact laws
against consensual sodomy whenever they chose.
Common-law crimes remain recognized in the state60
and case law in the state is such that repeal of a statute in derogation of
the common law reinstates the common-law provision,61
making it clear that anal sex still can be prosecuted if any district attorney
feels the urge.
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. With common-law crimes still being recognized by the state
and the New Mexico Supreme Court having ruled that the common-law
provision overrides a legislative repeal, private, consensual anal sex can
be prosecuted by any prosecutor desiring to do so.
Footnotes
1 9 Stat. 446, enacted Sep. 9, 1850.
2 Laws of New Mexico 1851-52,
page 141, enacted July 12, 1851.
3 Id. at 144, §18.
4 1 N.M. 1, decided during January 1852
Term.
5 Id. at 4.
6 25 Vict. c. 99, enacted Aug. 6, 1861.
7 Laws of New Mexico 1875-76,
page 110, ch. XXXIV, enacted Jan. 7, 1876.
8 Id. §1.
9 Id. §2.
10 136 P. 47, decided Oct. 14, 1913.
11 253 P.2d 316, decided Feb. 13, 1953.
12 Id. at 317.
13 Id.
14 Id.
15 266 P.2d 359, decided Jan. 29, 1954.
16 Id. at 365.
17 New Mexico Laws of 1955, page
132, ch. 78, enacted Mar. 4, 1955.
18 Id. §3.
19 Mattachine Review, March
1961, page 26; February 1962, page 32. The new code was House
Bill 17. It passed the House of Representatives on January 30,
1961, but was killed by a Senate committee on March 11. The only
change to the code made by the House (either in committee or on the
floor) was a postponement of the enactment date of the code from
April 1 to July 1, 1963.
20 Id. at 39, § 13-1 B.
21 New Mexico Laws of 1963, page
822, ch. 303, enacted Mar. 25, 1963.
22 Id. at 829, §1-3.
23 Id. at 849, §9-6.
24 Id. at 895, §29-3(C).
25 389 P.2d 203, decided Feb. 3, 1964.
26 390 P.2d 281, decided Mar. 9, 1964.
27 Rodolfo M. Bramanti, "Letter to
a Probation Officer on a Case of Homosexuality," Southwest
Medicine, 46:253-257 (1965).
28 Id. at 255.
29 Id. at 256.
30 Id.
31 Id. at 257.
32 434 P.2d 77, decided Oct. 6, 1967.
Rehearing denied Nov. 2, 1967.
33 Id. at 78.
34 Id. at 78.
35 483 P.2d 309, decided Mar. 5, 1971.
36 Id. at 311-312.
37 Id. at 312.
38 494 P.2d 173, decided Feb. 4, 1972.
39 Id. at 175.
40 Id. at 176 and Appendix at
177-178.
41 Id. at 176.
42 Id. at 177.
43 Id.
44 Id.
45 Id.
46 511 P.2d 560, decided May 23, 1973.
47 Id. at 563.
48 Id. at 565.
49 Id. at 565-566.
50 511 P.2d 554, decided June 15, 1973.
51 New Mexico Laws of 1975, ch.
109, enacted Apr. 3, 1975, effective June 20, 1975.
52 Id. §8.
53 539 P.2d 207, decided July 9, 1975.
54 551 P.2d 1352, decided June 25,
1976.
55 Id. at 1353.
56 545 P.2d 1028, decided Dec. 2, 1975.
57 Id. at 1033-1034.
58 546 P.2d 70, decided Jan. 7, 1976.
This denial was 100 years, to the day, from the enactment of New Mexico’s
first sodomy law.
59 Washington Blade, Jan. 10,
1986, page 8. According to the Legislative Council Service, the bill
never was introduced. (Correspondence from New Mexico Legislative
Council, n.d., postmarked Mar. 14, 1997).
60 New Mexico Statutes 1978, §30-1-3.
61 Beals v. Ares, 185 P. 780,
decided Oct. 23, 1919. Rehearing denied Nov. 29, 1919.
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