The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
New York
"[T]he natural sex instinct is for the opposite
sex."
The Colonial Period, 1607-1776
New York originally was a Dutch colony, founded in 1613 as New Netherlands.
The West India Company, a trading outfit, was given legislative powers.1
Although the laws generally conformed to those of the Netherlands,2
the statutes of the Netherlands considered operative in the new colony did not
include the criminal laws.3 Therefore, any penalty
for sodomy had to be based on either a statute of the colony or on natural law.
Because there are three known sodomy prosecutions in New Netherlands, it is
important to know which is the case. Unfortunately, a large number of the early
laws of the colony are lost.4
In a charter of 1629, the rulers were granted power to punish "capital
crimes" and "offenses subject to corporal punishment."5
Since Dutch criminal law did not transfer with the colony, one must presume that
there either were laws against sodomy enacted by the colony, or the natural law
was enforced.
Among early extant laws is one from 16386
permitting the punishment of unspecified "immoralities" according to
"the circumstances of the case...as an example to others."7
Another statute of 16388 recognized "much
mischief and perversity" due to heavy drinking and forbade any person from
sleeping with servants at night without consent of the colony’s Director.9
In 1646, the first known sodomy trial was conducted, from the surviving
language on authority of the natural law. A man named Jan Creoli was convicted
of a second offense of sodomy and sentenced to death. Sodomy was "condemned
of God[.]" Nothing in the records mentions any criminal statute on which
Creoli’s sentence was based. He was choked to death and then "burned to
ashes."10
A colonial statute enacted in 164811 noted
that the "Common people and the Company’s servants" were
"seriously debauched" and were "drawn from the path of Virtue and
into all sorts of irregularity."12 The law
then established regulations for taverns.
A second sodomy case was recorded in 1658. Nicolas Hillebrant (or
Hillebrantsen) was accused of sodomy and scheduled for a hearing on the charge,
but the records do not indicate the outcome of his case.13
In 1660, the third case occurred. Jan Quisthout van der Linde (or Linden) was
accused of sodomy with a servant. He was convicted, tied into a sack, and thrown
into a river to drown. The servant was flogged. Three years later, Quisthout’s
widow petitioned for bankruptcy protection.14
Beginning in 1664, for a decade, there was dispute as to whether the Dutch or
English controlled the New Netherlands Colony. The English took control by force
that year and, in 1665, a set of laws was enacted15
that included a sodomy law based on Leviticus. It set a penalty of death for any
male other than one under age 14 or a victim of assault. These two classes still
could be penalized "at the Discretion of the Court of Assizes."16
The English temporarily lost control to the Dutch again in 1673, then
permanently regained it in 1674, at which time the above statute came into
force.17
In 1691, New York surrendered its local authority to the Crown and was
governed by the English buggery statute.18 All
laws of New York enacted prior to this date were abrogated.19
This remained the state of the sodomy law in New York until after Independence.
Period Summary: New York’s earliest legal history is mysterious.
A large number of early statutes have been lost, so statutory authorization
for the three known colonial sodomy prosecutions (at least two of them
resulted in death sentences) is unclear. Originally a Dutch colony, it is
known that Dutch criminal law did not transfer to the colony. Without either
local or Dutch statutes covering such activity, it appears that prosecutions
rested on "natural law." This is apparent in the first known
prosecution in which the act was referred to by the court as "condemned
of God." Once English control was established, a capital sodomy law was
put into force, although no known prosecutions have been uncovered under it.
Later, local government powers were surrendered and the English sodomy law,
still with a capital sentence, became operative and remained so until after
the Revolution.
The Post-Revolution Period, 1776-1873
In 1787, New York adopted a sodomy law20
retaining the death penalty for sodomy committed as it was known at common law
(thereby excluding two women and any acts other than anal sex or bestiality
between others). Conviction could be had on verdict, confession, or outlawry.21
A comprehensive criminal law revision in 178822
retained the death penalty for sodomy23 and
authorized the forfeiture of all property to the state of anyone so convicted,24
but prohibited corruption of blood or forfeiture of the dower of the wife.25
A new criminal code in 179626 reduced the
penalty for sodomy from death to a maximum of 14 years at either solitude or
hard labor.27
In 1801, a new law28 raised the penalty for
sodomy to a compulsory sentence of life imprisonment.29
If thought proper, hard labor or solitude could be made a condition of the
lifetime sentence.30
The penalty was reduced in 1828 in a new criminal code31
to a maximum of 10 years in prison. The reference to hard labor and solitude
disappeared.32
The first reported sodomy case in New York was Lambertson v. People,33
from 1861. The Dutchess County Supreme Court sustained a conviction following an
indictment that Lambertson
in and upon the body of Peter Cohen, in the peace of God and of the said
people, then and there being with force and arms, did feloniously make an
assault, and him, the said Peter Cohen, then and there feloniously,
wickedly, diabolically, and against the order of nature, with the said Peter
Cohen, did commit and perpetrate the detestable and abominable crime of
buggery, against the statute in such case made and provided, to the evil
example of all others in like case offending, and against the peace of the
People of the State of New York, and their dignity.34
Period Summary: The English sodomy law remained in force in until
after the Revolution. The first statute enacted by New York afterward
retained the death penalty. In 1796, following Pennsylvania, Maryland, and
New Jersey among the original English colonies, New York eliminated the
death penalty for sodomy, although, in varying laws throughout this period,
it retained long prison sentences as a penalty.
The Victorian Morality Period, 1873-1948
I. Sodomy
A comprehensive criminal code revision in 188135
abrogated common-law crimes36 and raised the
penalty for sodomy to 5-20 years.37
In 1886, another criminal law revision38 left
the penalty as it was, but expanded the reach of the law to include one who
[c]arnally knows any male or female person in any manner contrary to
nature; or [v]oluntarily submits to such carnal knowledge.39
This law obviously was designed to cover oral sex, but was so broad that
practically any erotic activity imaginable was covered, and it made no
discrimination on the basis of gender.
Another criminal law revision in 189240
retained the 20-year maximum for sodomy, but eliminated the 5-year minimum, and
limited the scope of the prohibited acts to "by the anus or by or with the
mouth[.]"41 This clearly
legalized activity such as mutual masturbation, frottage, and tribadism.
The most famous person to be charged under this law was professional boxer
Alfred Griffith, known as The Young Griffo. In 1895, he was arrested on a charge
of "Oscar Wildeism" with a boy. He pleaded not guilty, but further
information is lacking.42
An unreported sodomy case from 1898 was prosecuted by the New York Society
for the Prevention of Cruelty to Children. Edward Haskins, whose age is not
given, was prosecuted for assisting 16-year-old Henry Ranson to engage in sodomy
with 13-year-old Lawrence Saggen.43
In 1902, in People v. Deschessere,44
the Appellate Division of the Supreme Court unanimously overturned the sodomy
conviction of a man with a 17-year-old male of limited mentality because of the
young man’s testimony that his father had coached him on what to say.45
In People v. Bahr, 46 also
from 1902, the Appellate Division of the Supreme Court overturned another sodomy
conviction, this time because of the trial court’s refusal to allow the
defendant to introduce character witnesses on his behalf.47
A police raid on the Ariston Baths in 1903 led to a number of arrests. Two
men arrested were George Galbert and Walter Bennett,48
for sex with each other. The indictments were worded that Galbert and Bennett
had assaulted each other, because that’s how the preprinted indictment forms
were worded. Bennett received a sentence of more than seven years in prison for
consensual sex and asked Governor Frank Higgins for a pardon. Higgins asked for
more information on the case and the District Attorney furnished a detailed
account of the arrests at the Ariston. There is no information in the records as
to the Governor’s response.
An unreported sodomy case from 1910, People v. Williams and Krause,49
involved consensual sodomy but, as was standard practice, the indictments were
worded that Williams and Krause had assaulted each other. Detectives had seen
Williams and Krause speaking on a corner and followed them to a hotel where they
looked through a transom to witness an act of fellatio. The detectives then
"broke in [the] door" of the defendants’ room and arrested them. The
trial judge appointed a Commission in Lunacy to examine Williams.
A 1917 lecture at the Society of Forensic Medicine50
noted that the New York sodomy law apparently did not cover tribadism, but
probably did cover cunnilingus, because the latter effected sexual penetration.51
A sodomy case with little detail included was People v. Sileo,52
decided in 1922. The Appellate Division of the Supreme Court overturned a sodomy
conviction because the complaining witness had been described by the trial judge
as not an accomplice "as a matter of law."53
Unfortunately, no further details exist in the opinion.
In 1923, a supplemental law was enacted54
making it a crime, in New York City only, to frequent or loiter in
any public place soliciting men for the purpose of committing a crime
against nature or other lewdness.55
The penalty was set at up to six months in a jail or workhouse, or a fine of
up to $50, or both, or probation for up to two years.56
A study57 published in 1938 revealed, first,
that the sample of Gay men convicted of various sexual offenses in one year in
New York showed that 97% were convicted of sexual acts with other adults.58
A second revealing statistic was that
[s]ome judges for one reason or another impose jail sentences on all
homosexuals, even in the case of first offenders. As these men come before
the courts again and again, the term of imprisonment is lengthened until
they receive the maximum penalty, although neither imprisonment nor the
threat of imprisonment produces any change in the offender’s mode of
living; at most it serves to make him more cautious.59
This study obviously had no effect on the conduct of judges or prosecutors.
A medical journal article60 from 1939 gave
valuable detail to court practices in New York City concerning those arrested
for sodomy or other sexual crimes. In late 1937, due to "a series of
flagrant sex crimes," Mayor Fiorello LaGuardia ordered all prisoners
convicted of "sex crimes involving perversion" to be kept under
medical observation and held indefinitely if found to be insane. Unfortunately
for him, only a tiny fraction of the prisoners were diagnosed as such. The
prisoners then were sent back to the courts for disposition, but disagreement
arose among various experts in the city as to the rightful way to handle the
cases. Some believed that
at least some of the punishable perversions were intrinsically harmless
constitutional variants, that an adult’s sexual preferences were purely
his own concern so long as the physical or property rights of others were
not involved.61
Specifically concerning sodomy, it was noted that such arrests constituted 7%
of all sex-related arrests in New York City. The value of criminal prosecution
for such activity was questioned and,
though it may be questioned whether the law is entitled to interfere with
voluntary private practices engaged in discreetly by adults, it seems fairly
obvious that no culture can for very long openly tolerate sex practices
which lie outside the sphere of normal intercourse, since the perpetuation
of any such unorthodox tradition would mean the quick disappearance of the
race that tolerated it.62
The conclusion was that social taboos, rather than criminal law, should be
the resort for "the preservation of any one normal pattern of sexual
behavior[.]"63
In 1939, in People v. Hall,64 a county
court decided a case of attempted sodomy. The court noted that, for an attempt
to be proved, the state had to prove that the acts
were committed wilfully and designedly; in other words, that they were
not accidental, unintentional nor done as a joke.65
The court believed that the evidence
justified the conclusion that over a period of time the defendant had
been a person with abnormal, unnatural and perverted sexual desires. This
crime is unusual and unnatural. The statute refers to it as a crime against
nature. A normal person would not commit the crime. Who would commit such a
crime? It certainly is essential to inquire into the mental attitude and
physical reactions of a man charged with this crime in order to determine
whether he is such a man.66
The court went on to say that the
natural sex instinct is for the opposite sex. How then, are we going to
determine the sexual attitude of this defendant toward his own sex? He is
presumed in law to be a man with normal sexual desires and not possessing an
abnormal perversion. It was necessary for the People to prove that the
defendant was homo-sexually inclined; that he had emotions which led him to
commit the crime; that he had a passion toward his own sex that was
unnatural. If it be determined that the defendant was possessed of the
passion, emotion and desires referred to, then he is capable of committing
the crime of Sodomy and it follows that the jury could infer that he had a
sexual force which impelled him to attempt it.67
Thus, at least according to this one judge, sodomy could be accomplished only
between persons of the same sex, because any passion, and therefore any sexual
acts, directed at the opposite sex is "normal," despite the broader
wording of the New York law.
Even though New York did not enact a psychopathic offender law until 1950, it
is obvious that some state officials took matters into their own hands. In 1942,
a medical journal article68 described a Gay
"sex psychopath" who was lobotomized by the state (using only
local anesthesia during the procedure).69 A later
report detailed the sad descent of the man into dementia and concluded that the
lobotomy was solely responsible for the man’s loss of his mind.70
A study published in 194371 detailed how the
State of New York had attempted to "treat" minor males who had been in
consensual same-sex relationships. In a chapter called "Adult Sexual
Failures" (meaning that the behavior opposed by the state was not changed),
two homosexual cases were discussed. "A.G.," almost 16 years old, had
become involved
with a vicious group of adults, who conditioned him to all the practices
and ceremonials of homosexualism. He soon made fruitless trips to California
on wild adventurous schemes of coming into "big" money through
homosexual affairs. Even during intervals at home, when unemployed and
pressed for money, he would venture into these practices. He came to New
York City from his home in New Jersey because his companions had informed
him of the great opportunities existing for homosexuals in the "big
city."72
He was brought before the Children’s Court in 1929 for "soliciting and
engaging in homosexual practices as a means of livelihood." He was placed
on probation under New Jersey authority but, a year-and-a-half later, was sent
to prison for "homosexual practices."73
The case of "C.S." was that of a 15-year-old male called a
"pansy" by playmates and thought to be a "sissy" by his
father. He was brought to the Children’s Court in 1932 when he was discovered
performing sodomy on "his younger siblings" (their gender was not
stated). He was found to be a "psychopathic personality, with effeminate
and homosexual traits." He had been placed on probation, but less than a
year later returned "for much the same type of behavior." He then was
imprisoned, released, and rearrested "for practicing sodomy with a small
boy." He then vanished before being brought to court on that charge, and he
had not been located since.74 In the chapter
called "Adult Successes" were two other young males with homosexual
dispositions. "D.K." was brought before the Children’s Court in 1928
because "he permitted boys in his neighborhood to commit sodomy on
him." After being placed on probation, he returned two years later on
several charges, one of them "for participating in perverted
practices." After being sent to a reform school, he appeared in court a
third time at age 18 to face several charges, one of them "associating with
an undesirable group of companions." After being sent to a state training
school, he developed good self-esteem and later got a steady job.75
Nothing in the "success" listed for him mentioned becoming
heterosexual. "W.M.," age 16, was brought before the Children’s
Court in 1930 because he
met a Negro pianist who was effeminate and a degenerate. The adult
readily victimized the boy, conditioned him to the ideologies and practices
of homosexualism. He had the boy sleep in bed with him on nights when his
wife was out. He taught William all types of perversions, but the intimacy
between the white boy and colored man created suspicion that reached the
attention of the Society for the Prevention of Cruelty to Children; they
investigated and had the boy and the degenerate brought into custody.76
He was placed on probation and his family followed a suggestion to move to a
"distant neighborhood." Since that time the boy "has come into no
known difficulties with the law[.]"77
In 1943, in People v. LaCasse,78 a
sodomy conviction was overturned by the Appellate Division of the Supreme Court
because the question of whether the partner was an accomplice never had been
submitted to the jury.79
Yet another conviction was overturned on the same point in 1947 in People
v. Petrucci.80 In this case, the trial court
stated that the partner was not an accomplice "as a matter of law."81
Also in 1947, in People v. Radaha,82 a
county court affirmed a charge of public indecency against a man for sending a
letter to a male teenager saying, "I’ll give you $5.00 or more if you let
me fuck you." The young man’s mother had intercepted the letter.83
The court found that, although the personal letter did not involve the public,
the standard for determining indecency
connotes the moral standard by which the people in the various
communities of the State abide. That standard or moral code does not include
pederasty.84
Nevertheless, a month later, Radaha went free when another judge granted his
petition for a writ of habeas corpus, noting that he had been convicted
on a charge that did not actually state an offense under New York law.85
Another conviction fell in 1947 in the case of People v. Crocker.
86 An Appellate Division of the Supreme
Court voted 3-2 to overturn the conviction of a "man of education and
culture, with a distinguished war record."87
He had been accused by a mentally retarded, vagrant 15-year-old male of sodomy,
but the young man’s testimony was "neither clear nor convincing."88
II. Sterilization
New York passed a sterilization law in 191289
covering, among others, "criminal and other defective inmates" who
might produce defective children.90 There was no
restriction on the type of sterilization surgery that could be performed.91
In 1918, in the case of Osborn v. Thompson,92
the sterilization law was found to be unconstitutional. Justice William Rudd of
the Supreme Court in Albany County first noted that Frank Osborn, a mentally
retarded man in an institution, had received only a "somewhat
superficial" examination by the board that authorized his sterilization93
and mentioned testimony by several doctors who favored castration rather than
vasectomy for Osborn, because vasectomy would not kill his sex drive.94
Rudd criticized the doctors involved in the case, saying that they
"apparently know very little about the subject,"95
and sounded a humanitarian theme in discussing the appellant.
Frank Osborn is not a malefactor. He is mentally deficient. He is
defective without personal responsibility for such defect. It must be
assumed that he is poor in the sense that there are no parents or friends to
give him a home and provide for him, and so he becomes a ward of the state
to be cared for and treated and strengthened and developed, if possible.96
Rudd believed that sterilization was not a
proper exercise of the police power. It seems to be a tendency almost
inhuman in its nature.97
On appeal, the Appellate Division of the Supreme Court unanimously affirmed
Rudd without opinion.98
Although New York appealed this decision to the State Court of Appeals, the
legislature didn’t wait. In 1920, the sterilization law was repealed,99
never to be reenacted.
Period Summary: New York became one of the first states to revise
its sodomy law to cover oral sex, in 1886. Case law remained sparse
throughout this period. A law of 1923 outlawed loitering for sodomy only in
New York City, suggesting that there was an early recognition of a large,
visible Gay male community by that time. A sterilization law to cover
miscellaneous undesirables was enacted in 1912, one of the earliest in the
country, but it never was used. A trial court, using harsh language, struck
it down, and an appellate court unanimously affirmed that decision without
an opinion. The legislature, fearful that the Court of Appeals would follow
suit, repealed the law in 1920.
The Kinsey Period, 1948-1986
A 1948 radio broadcast100 of a panel
discussion of homosexuality gave important law enforcement information. The
program, called "Something Ought to Be Done," had a format in which
letters from the public were received concerning some particular topic or
problem and the letter writers, if invited, would appear on the program to
express themselves further. In this case, a man wrote a letter talking about his
entrapment and arrest by a police officer who enticed him into solicitation.
Moderator J. Raymond Walsh noted that this program was the first in which the
entire half-hour would be dedicated to one letter. A panel discussed the letter
without the author being present. The five panelists were New York City’s
Chief Magistrate, Edgar Bromberger; noted psychiatrist Frederick Wertham; New
York State Senator McNeill Mitchell; sex author Howard Whitman; and Josiah
Marvel, chair of the Quaker Emergency Service. The anonymous letter, written by
someone who had internalized the anti-Gay hatred prevalent in society, was read
on the air and it contained the following.
I was in a subway toilet one day when a man came in. He made advances to
me which meant only one thing. Since I am in this pathetic mental condition
I reciprocated to his advances. Whereupon, this ‘gentleman’ pulled out a
badge and told me that I was under arrest. I was arrested and taken to a
Police Court. For the first time in my life, outside of my army career, I
was fingerprinted. I was advised to plead guilty, which I did. I pleaded
guilty and the judge sentenced me to a $25.00 fine or 10 days in jail.101
Moderator Walsh was concerned about the legitimacy of the letter and his
panelists agreed that the letter was likely to be genuine. Judge Bromberger said
that the arrest and trial procedures mentioned in the letter were common in New
York City "prior to 1946," the year in which he
decided to establish an experiment in the Magistrate’s Court of a
rehabilitative process where these unfortunates have been brought before us
and found guilty.102
Author Whitman, also agreeing that the letter was not a hoax, said that the
situation described was "worse" outside New York City than in. He
noted that, in Ohio, after the appearance of his book, he received letters from
people who said that what was done to homosexuals in Ohio was "Just send
the homosexual out of the country and so not let him come back." In
"the West" a judge claimed that he "never dreamed such things
existed" and proceeded to give "the worst sentence that he could
possibly give."103 Psychiatrist Wertham
urged that doctors help the man "in his own attitude towards himself."104
The first hint of argument came after Wertham spoke. Judge Bromberger complained
that he didn’t feel the man had
the right to criticise the manner in which he was arrested because, after
all, to detect crime, we must have people who will detect crime, and the
fact that he may have been invited into the offence merely emphasizes his
problems and is no cause for criticism of the detective authorities. Of
coures [sic], if he did not have a predilection for that sort of sex
deviation, no amount of invitation would have induced him to participate in
it.105
Bromberger then mentioned the psychiatric clinic run by the Quaker Emergency
Service to which such offenders had been referred for the past two years and
added that the courts also advised offenders
to consult one of the clergymen of his religious denomination who is on
our panel and to receive the support of religious therapy, and advice and
spiritual guidance.106
Wertham challenged Bromberger’s defense of entrapment by saying that he did
not like "the idea of egging a man on to commit any crime." Bromberger
responded by asking, "How else are you going to discover them, doctor? Many
of these men are grateful that they have been brought in, as a matter of
fact."107 Josiah Marvel, head of the Quaker
Emergency Service, noted that the recidivism rate for homosexuals dropped from
22% per year to 1% with their service. He did not specify if the service merely
counseled them how to be more discreet or whether they attempted to
"cure" their homosexuality.108 State
Senator Mitchell urged expansion of the state’s mental hospitals "to give
the treatment that these men deserve."109
Author Whitman noted that the author of the letter promised to commit suicide if
his parents ever found out that he was Gay. He thought that point was the
"key" in the letter. That was
where we have to start with the bite of public opinion. Parents are the
best friends of any young man or any child and if they so misunderstand this
subject and can have such tremendous prejudice against it that the young man
would commit suicide if they knew about it, you can imagine what a job we
have got to do—not only to make parents accept the possibility of the
personality disease or maladjustment of homosexuality, but that his friends,
his neighbours, the people he works with, will also regard it as a
distortion of personality, like alcoholism. The man needs help, not suicide.110
A report issued in 1950111 analyzed the state’s
handling of sex criminals and made recommendations for legislative action.
During the preceding year, only 4.7% of those arrested for sodomy had been
sentenced to prison, with the others plea-bargaining their way to a lesser
charge.112 The 102 sex offenders at Sing Sing
Prison studied were divided into four categories based on prognosis for
treatment and recommendations for legislation were made. One was for a
psychopathic offender law113 and that it be
compulsory for those engaging in sodomy involving force or those under the age
of consent.114 A table of the 102 offenders
detailing their crime, life history, sentence, and prior criminal record was
published, dividing them into the four treatment prognosis categories. Of the 18
classified as "Predisposed to Violence and Untreatable," only one
(5.6%) was imprisoned for same-sex sodomy. His history revealed a violently
abusive mother. Of the 32 offenders classified as "Untreatable at
Present," five (15.6%) were imprisoned for same-sex sodomy. One of the
"negative" factors in these cases, the report said, was that they had
no guilt about their homosexuality. Of the 44 classified as "Treatable As
In-Patients," five were imprisoned for same-sex sodomy and one for
extortion from another Gay man (13.6% total). Many of these were amenable to
treatment, the report said, because they had guilt feelings about their
homosexuality. The final group of eight classified as "Treatable As
Out-Patients" contained none imprisoned on same-sex sodomy charges,
revealing the bias of the authorities as to the danger of homosexuals.115
The recommendations of this report largely were followed. New York made
history with a new law in 1950.116 The penalty
for consensual sodomy was lowered to a misdemeanor, with a maximum penalty of
six months in jail.117 Sodomy, even with
consent, was a felony in the rest of the states. A psychopathic offender law was
included with this statute,118 but covered only
sexual acts with minors or with the use of force or threats.
In 1950, the Attorney General issued an opinion119
that the governing sodomy law covered both participants in an act of fellatio,
the wording of the law being broader for oral sex than for anal. This opinion
would be affirmed by a court interpretation more than a decade later.
In 1952, in People v. Humphrey,120 a
county court held that the evidence against the defendant was insufficient to
sustain a conviction for disorderly conduct. Humphrey allegedly solicited a
plainclothes police officer, Robert Shepard, to go with him to his apartment for
"some beer, candy and for some fun." Humphrey allegedly made
"indecent advances" to Shepard once inside the apartment.121
The court held that "[f]un is a very broad term and does not necessarily
have a sinister or evil meaning."122 It
concluded that there was no proof that Humphrey’s offer on the street was a
sexual solicitation, and believed that Humphrey was being entrapped.123
Also in 1952, in People v. Doyle,124
the Court of Appeals voted 5-2 to overturn a sodomy conviction based on the
uncorroborated testimony of an accomplice. The Court found a statement made to a
state trooper to be insufficient corroboration.
In another 1952 case, People on Complaint of Sullivan v. Strauss,125
another disorderly conduct charge was dismissed for lack of evidence. In this
case, City Magistrate LoPiccolo noted that the arrested men were in a public
restroom in the presence of an undercover police officer and one fondled the
genitals of the other in front of the officer. "It appears that the officer
was on duty at this time for the express purpose of making arrests of
degenerates."126 Amazingly, LoPiccolo
believed that the fondling was not "intended to provoke a breach of the
peace" and, therefore, could not be prosecuted.127
The complaint was dismissed and the defendants were discharged "to avoid
double jeopardy."128
Later in 1952, sexologist Dr. Alfred Kinsey taught a "short course"
to prosecutors in New York pointing out the fallacy of trying to enforce laws
against consensual sexual activity. He said that there are 6,000
"homosexual acts" committed per one million people, yet only 20 to 30
arrests out of that same million.129
Many trial court judges obviously were either unaware of decisions on the
matter of accomplices, or ignored the rulings, but yet another sodomy conviction
was overturned on appeal in People v. Knorr,130
in 1953. The trial court in this case also had stated that the partner was not
an accomplice "as a matter of law," rather than allowing the jury to
decide the matter.131
"Fun" got another defendant convicted under the disorderly conduct
law. In 1953, in People v. Pleasant,132 a
court upheld the conviction of a man for soliciting an undercover police officer
in a Manhattan bar to "have a few beers and have some fun."133
The officer went to the apartment and testified that he was solicited there for
anal sex.134
A report issued in 1954135 recommended that
the state’s psychopathic offender law be broadened to include "minor sex
offenses."136 It also recommended that the
state undertake a comprehensive revision of the state’s criminal code.137
The first recommendation never was followed, and the second took almost a decade
to begin.
In the 1957 case of People v. McCormack,138
another victory was scored by the defendant. McCormack and his partner had been
arrested in a restroom allegedly for engaging in sexual activity in a stall.
However, one of the arresting officers testified that he had not actually seen
McCormack’s private parts, nor had he seen him touch his partner, nor had he
heard any conversation between them.139 In
addition, a time card from McCormack’s place of employment had been excluded
as evidence, even though it showed he could not even have been in the restroom
at the time alleged. This was considered reversible error by the appellate
court.140
In 1958, in People v. Spry,141 the
Appellate Division of the Supreme Court decided 3-2 that penetration had to be
proven in sodomy cases, overturning a conviction following a judge’s charge to
the jury that was contrary.142
Yet another disorderly conduct conviction was overturned in People v.
Burgwin,143 from 1958. In a terse opinion,
the appellate court said that the record "is devoid of any proof" that
Burgwin had loitered, solicited, attempted to breach the peace, or actually
breached the peace.144
The police lost again in a disorderly conduct case in 1958 in People v.
Feliciano.145 Feliciano solicited and
fondled an undercover police officer, but no other person had observed the
transaction.146 City Magistrate Charles Solomon
decided that the disorderly conduct law was "concerned exclusively with the
preservation of the public peace" and that
one may indulge in the kind of behavior ascribed to this defendant, that
he may frequent or loiter about any public place soliciting men for the
purpose of committing a crime against nature or other lewdness, provided
this is not done with intent to provoke a breach of the public peace or
whereby a breach of such peace may be occasioned. The statute is not aimed
at sex deviation as such—"degeneracy." [Emphasis added].147
Continuing in an annoyed tone, Solomon said that
[o]rdinary common sense at once suggests that the defendant in this type
of case would not entertain any intention to breach the public peace and
that to cause such a breach would be just about the farthest thought from
his mind. Yet we go right on, as we have been doing as far back as this
court can remember, with this kind of arrest and prosecution, which
illustrates again the "increased tendency to employ [the disorderly
conduct law] whenever it is determined a person should be arrested."
[Citation omitted].148
Solomon noted that he himself had proposed a broadened law to the New York
legislature that had failed to pass.149
Once again a prosecution failed in the 1958 case of People v. Burnes.150
This case was very similar to the case of Strauss, in that two men had
fondled each other in a public restroom in the presence of police officers. The
appellate court decided that, because there was no evidence of solicitation by
either party, the conviction could not stand.151
In 1959, by a vote of 5-2, the New York Court of Appeals upheld a loitering
conviction in People v. Liebenthal.152
The case gives no detail whatsoever other than that Liebenthal had been arrested
under the section of the loitering law banning "soliciting men for the
purpose of the committing a crime against nature." The two dissenters felt
that there was no evidence to prove that Liebenthal actually had solicited, as
required by the statute.153
Later in the year, in People v. Evans,154
the Appellate Division of the Court of Special Sessions unanimously overturned a
disorderly conduct conviction. A police officer was working undercover in a
restroom and claimed that he saw "a naked knee" and then "two
knees" and "a naked erect penis" thrust at him from under a
stall.155 He then arrested John Evans for
disorderly conduct. Justice Benjamin Gassman, writing for the court, reiterated
New York case law that there had to be a breach of the peace in order for a
conviction to stand under the law and, since there was no such breach, the
conviction was reversed. Nevertheless, Gassman felt a need to do some
moralizing. He first suggested text for an amendment to the disorderly conduct
law to cover such cases,156 which might make
prosecution of them more "fruitful"157
(obviously a pun). "Abhorrent as acts of degeneracy may be to the court—and
they are—under the present state of the law, they are not sufficient to
convict without evidence of actual or possible breach of the peace."158
Concurring, Justice William Ringel added that a toilet stall was not a public
place, hinting that all consensual sexual activity occurring therein was
protected from the law.159
Also in 1959, in People v. Lopez,160
the Court of Appeals split 4-3 to uphold another such conviction, again without
any detail of the case other than the reference to the "crime against
nature" provision. The three dissenters said that they felt that Lopez’s
"guilt has not been established beyond a reasonable doubt."161
In 1960, in People v. Hale,162 the
Court of Appeals voted 6-1 to uphold the vagrancy conviction of a man for
soliciting a police officer in a bus terminal. The Court, speaking through Judge
Sydney Foster, said that homosexual solicitations were solicitations for
"lewdness and indecent acts" as stated in the vagrancy law.163
Even though the definition of sodomy in New York had not changed in nearly 70
years, in 1961, in the case of People v. Randall,164
the hole in the law received legal meaning. The Court of Appeals unanimously
overturned Randall’s conviction for having allowed himself to be penetrated
anally. The Court noted that the wording of the law outlawed only the inserter’s
actions.165
Despite the American Law Institute’s plea for decriminalization of
consensual sodomy, the New York legislature responded to Randall by
enacting a law in 1962166 to expand the reach of
the sodomy statute to include the "insertee" in anal intercourse.167
An attempt to expand Randall to limit to scope of the law in acts of
oral sex was the subject of the 1962 case People v. Maggio.168
This decision was handed down six weeks after the sodomy law was changed, but
had been prosecuted under the former law. The Appellate Division of the Supreme
Court voted 4-1 to apply Randall to oral sex, despite the clear language
of the sodomy law that both partners in acts involving the mouth were guilty. In
dissent, Presiding Judge George Beldock pointed out the practical result of the
decision when he stated that the majority
emasculated the statute by making it impossible for a female to commit
this crime, and by making it impossible for a male to commit the crime with
his mouth on a male or female. Such an interpretation, in my opinion, is
erroneous.169
Another case later in the year, People v. Katt,170
resulted in an identical 4-1 reversal of conviction for the same reason.
The state appealed the Maggio case and the Court of Appeals voted 4-3
to reverse the appellate court and reinstate the convictions.171
The decision of the high court was exactly 22 words long.
Order reversed upon the dissenting opinion of Beldock, P.J., at the
Appellate Division, and the judgment of the Rockland County Court
reinstated.172
The dissenters believed that Randall would have to be overruled to
reach the conclusion found by the majority.173
The convictions of five prisoners for consensual sodomy in their jail cells
were upheld by the Appellate Division of the Supreme Court in 1963 in People
v. Henry et al.174
In another 1963 case, People v. Burney,175
the Appellate Division of the Supreme Court unanimously overturned a sodomy
conviction with little detail but the following tantalizing opening.
The verdict of the jury was against the weight of the evidence. Reversal
is also required because of the prejudicial and inflammatory remarks of the
district attorney during the summation. The effect of his injection of race
and color into the case was unwarranted and improper.176
Also in 1963, in People v. Lawrence,177
the Appellate Division of the Supreme Court unanimously found oral admissions
made by the defendant to three members of the state police to be sufficiently
corroborating evidence.178
In 1964, the Appellate Division of the Supreme Court upheld another sodomy
conviction in People v. Sanabria.179
Sanabria had been arrested with another man in a public restroom and, having
waived his right to a jury trial, was convicted by a 2-1 vote of a three-judge
panel. First, the court upheld the exclusion of the testimony of Sanabria’s
wife because a
natural marital relationship between the defendant and his wife would
neither prove nor disprove his ability or inclination to perform unnatural
acts.180
The non-unanimous vote to convict him also was upheld, with the Court stating
that the judges were then a "court" and not a "jury," so the
requirement of unanimity no longer mattered.181
In 1965, the New York legislature finally got around to enacting a new
criminal code.182 As written, it repealed the
sodomy law, but opposition was strong enough to this provision and two others
(decriminalization of adultery and permitting resistance to an unlawful arrest)
that separate bills to reinstate these provisions were voted on at the same time
as the code.183 Governor Nelson Rockefeller, in
a memorandum on the subject, noted that the code revision would not have passed
without restoration of these three provisions. "Accordingly, without
reaching their merits, I am approving these bills."184
The new sodomy provision reduced the maximum penalty from six months to three
months and excluded married couples.185 The new
code also failed to reenact the psychopathic offender law.
The U.S. Supreme Court refused to get involved in a case of
entrapment of Gay men in a New York bar after an undercover police officer went
in and allowed himself to be solicited.186 The
case, Robillard et al. v. New York,187
was unreported at its lower levels of appeal.
The first of several such cases in New York dealt with sexual activity on the
stage as part of a play in 1969 in Raphael et al. v. Hogan et al.188
The U.S. District Court for the Southern District of New York upheld the right
of New York to prosecute actors and others involved in the production of Che!
for a
performance including scenes in which various performers fondled one
anothers [sic] naked sexual organs and engaged in or aided or abetted
in deviate sexual intercourse to wit, acts of oral and anal sodomy.189
Judge Irving Ben Cooper rejected the defendants’ First Amendment claim as
"imaginative"190 and worried that the
prohibited evil is not thus disguised; it is like pouring cologne on
gangrene.
It is a constant source of deep concern whether the alleged contribution
to artistic advancement which is claimed for such an "artistic"
work in which sodomy on view in public places is part and parcel thereof, is
worth the dreadful price of outbursts of criminal deportment which are
excited by such stimulation, and community apprehension which inevitably
follow.191
Cooper also found that the New York sodomy law was constitutional.192
The defendants from the same performance were convicted in state court and
the trial opinion was reported in 1970 in People v. Bercowitz et al.193
The three-judge panel voted 2-1 for conviction. Judge Arthur Goldberg wrote the
opinion and stated early on that
the insistent and pervasive sex talk and vile profanity and utter filth
which permeated the play are not quoted in this opinion but they are quoted
in the trial testimony and also appear as exhibits, which include the
scripts and tape recordings.194
Goldberg also noted, in passing, that several theatre critics had testified
as defense witnesses, urging protection of the performance on First Amendment
grounds.195 Goldberg stated that there were 23
"different sex acts" presented in the play, including
simulated heterosexual copulation by nude performers, masturbation and
three kinds of sodomy (male homosexual, heterosexual and even an attempted
male self-sodomy [sic]). There was a simulated defecation scene
performed by a nude male, complete with the use of toilet tissue at one
performance. At other performances, the material used was a piece of cloth
showing a "field of stars." At some performances, a flowerpot was
used in this scene, superseded at other performances by a standard toilet.196
The majority on the court thus upheld the obscenity convictions, but reversed
the sodomy convictions because there was insufficient proof of actual completion
of sexual acts.197 In dissent, Judge Morris
Schwalb noted that Che! addressed
the subjects of politics and sex and the use and abuse of sex in
revolutionary politics, power and abuse of power, and political and sexual
repressions.198
Schwalb also noted that the entire play never had been presented to
the court, only the most controversial excerpts.199
He believed that the First Amendment barred prosecution of the defendants, and
voted for acquittal.200
Beginning in late 1969, a series of raids on the Continental Baths occurred
in New York City. Patrons were charged with "lewd and lascivious acts"
and employees with "criminal mischief."201
In 1971, a trial court decided that solicitation to engage in sodomy was not
an attempt to commit the act, in the case of People v. Spencer.202
In the 1974 case of People v. Johnson,203
a trial court in Buffalo found that the sodomy law was unconstitutional because
it discriminated between married and unmarried persons.204
Judge Carmelo Parlato could see no constitutional reason to distinguish between
the married and the unmarried, but he could see a logical and constitutional
reason to distinguish between heterosexual and homosexual sodomy.205
On appeal,206 the Erie County Court reversed.
The Court overlooked the marital status discrimination issue because it noted
that Johnson’s conduct occurred in public, making marital status irrelevant as
an issue.207
In 1975, a petition for a writ of habeas corpus was rejected in the
case of People ex rel. Price v. Warden.208
Since Price had been released, the Court of Appeals found the issue to be moot.209
In 1976, the companion cases of People v. Mehr210
and People v. Rice211 were decided by the
Appellate Division of the Supreme Court. In both cases, the court unanimously
rejected a constitutional challenge to the marital status exemption, claiming
that the exemption was required by the Supreme Court’s privacy
decisions.212 On appeal to the Court of Appeals,213
the high court unanimously took the easy out by refusing to review the
"novel and difficult" constitutional issues raised without a trial
record.214 Thus, Mehr and Rice had to be
convicted before the court even would listen to their arguments.
Another case raising First Amendment questions concerning sodomy on stage was
raised in 1976 in People v. Chang et al.215
The trial court ruled against the claim, while being apparently unaware of the
earlier Raphael and Bercowitz cases.
Another lower court struck down the state’s sodomy law in 1977 in the case
of In Re P.216 Judge Margaret Taylor of
the Family Court went farther and included the prostitution law in the group of
statutes felled by her opinion.
Sodomy convictions for consensual activity in a public restroom were upheld
in the 1979 case of People v. Anonymous.217
However, the trial court added that both homosexual and heterosexual sexual
activity was "absolutely beyond the right of the state to
interfere" [emphasis added], but that principle could not apply here since
the activity occurred in a public place.218
Also determined to be a public place was a van parked on a street. A sodomy
conviction thus was sustained in the 1979 case of People v. Jose L.219
The confusion over whether or not the sodomy law was constitutional finally
was decided in 1980 in People v. Onofre et al.220
The New York Court of Appeals decided by a vote of 5-2 that the law was
unconstitutional. Judge Hugh Jones, writing for a majority of four, believed
that the law was void both as violative of privacy and equal protection. Jones
believed that the right to privacy was a "right of independence in making
certain kinds of important decisions."221
He also noted that the legislature, in retaining criminal penalties for sodomy
in the 1965 penal code, was doing so only on moral grounds.222
Jones believed that the state had shown no "threat" that could occur
as a result of private, consensual sodomy223 and
that it failed to show any rational basis for the marital exemption.224
Judge Matthew Jasen concurred on the narrower ground that the law had to fall only
on the ground of equal protection.225 If married
couples were included in the jeopardy of the law, it then would be
constitutional, he believed. In a lengthy dissent, Judge Dominick Gabrielli,
joined by Chief Judge Lawrence Cooke, stated that the majority
has recognized for the first time a constitutional right of personal
autonomy broad enough to encompass at least the freedom to indulge in those
sexual practices which have long been proscribed by our criminal law.226
Gabrielli was critical of the majority’s dismissal of traditional religious
condemnation of sodomy. It
erroneously ascribes no legal significance to that fact, relegating it
instead to an irrelevant phenomenon of theology and privately held moral
beliefs. This rather glib refusal to take account of the historical
treatment of consensual sodomy as criminally punishable conduct has left a
gaping hole in the majority’s analysis.227
Curiously, Gabrielli claimed that there never had been legal proscription for
certain types of activity, including matrimony and procreation, despite the fact
that the U.S. Supreme Court had to strike down long-extant laws against
miscegenation and contraception.228 He continued
in his erroneous vein when he said that the decision in Onofre was a
"radical departure" from cases, such as the contraception and abortion
decisions, that
merely swept aside State laws which impaired or prohibited entirely the
free exercise of rights that traditionally had been recognized in western
thought as being beyond the reach of government. [Emphasis added].229
Again, where Gabrielli got the idea that contraception and abortion always
had been legal in the United States is unclear, since the proliferation of laws
against them belies that fact. The U.S. Supreme Court refused to review this
decision.230
Although this case disposed of the sodomy law, it did not dispose of the
loitering law. A Buffalo man, Robert Uplinger, was arrested for soliciting an
undercover police officer for sex. In 1983, in People v. Uplinger et al.,231
the Court of Appeals decided by a 6-1 vote that the solicitation law was
unconstitutional. In a short opinion, the Court concluded that, because the
activity solicited now was legal, the state could not constitutionally prohibit
solicitation for it.232 The solitary dissenter
was Judge Matthew Jasen, who misread the solicitation law as one
designed to protect persons from being harassed on the public streets by
others who seek only their own sexual gratification.233
Jasen, in giving the history of the law, did not see the discrimination in
it. He quoted accurately from the original 1923 law that prohibited only
male-male solicitation234 and could not
understand how the existing law, descendant of the earlier, was not viewed by
the majority as "a harassment statute."235
Jasen believed that it was rational for the legislature to protect those in the
population "who desire only to live a quiet and private life" from
such "harassment."236
In this case, the U.S. Supreme Court did agree to review the decision
but, after hearing oral arguments, voted 5-4 to dismiss the case as
improvidently granted.237 The Court decided that
confusion over whether the case turned on federal or state constitutional
grounds made it impossible for the federal court to review the case.238
Period Summary: In the McCarthy era, New York became the one state
that could be classified honestly as "liberal" on the sodomy
issue. Its psychopathic offender law of 1950 excluded private, consensual
activity from its scope and, accompanying that new law was a reduction of
the penalty for sodomy from a felony to a misdemeanor, the first such action
in the country. A string of court decisions in the 1950s led to the reversal
of a number of loitering convictions of Gay men cruising for sex. One court
went so far as to rule that a breach of the peace in such cruising was the
only act that could lead to an arrest. Although the legislature responded to
another liberal interpretation of the sodomy law (that some activity was not
outlawed by it) by expanding the reach of the law in 1962, three years
later, the law came close to being repealed. A new code of 1965 originally
excluded penalties for sodomy, but a new law was inserted after opposition
from the Catholic Church. Nevertheless, the misdemeanor penalty was halved
in the new code. In 1980, the New York Court of Appeals struck down the law
on privacy grounds and later invalidated the loitering law, also on broad
civil liberties grounds.
The Post-Hardwick Period, 1986-Present
In a case from 1986, Arcara v. Cloud Books, Inc.,239
the U.S. Supreme Court voted 6-3 to reverse the New York Court of Appeals and
permit New York to close down a bookstore because of sexual activity occurring
on its premises. The opinion by Chief Justice Warren Burger noted that a
Deputy Sheriff personally observed instances of masturbation, fondling,
and fellatio by patrons on the premises of the store, all within observation
of the proprietor. He also observed instances of solicitation of
prostitution, and was himself solicited on at least four occasions by men
who offered to perform sexual acts in exchange for money.240
The Court found that speech was not being regulated by the nuisance statute.241
In 1989, a New York court approved the clearing of a "loitering for the
purpose of deviate sexual intercourse" charge from the record of a man who
had been so arrested 20 years earlier. The Manhattan District Attorney’s
office announced that it would clear other such records as well.242
The Court of Appeals decided in 1991, in People v. McNamara et al.,243
that the state’s law against sex in public places had to be construed
narrowly. By a vote of 6-1, the Court overturned convictions of several people
for consensual sex in parked cars. Speaking for the majority, Judge Judith Kaye
said that "the existence of a diminished expectation of privacy does not
transform the interior of an automobile into a ‘public place’."244
Kaye also noted that the statute in question was aimed at "a person’s
sensibilities," and "where no such harm is likely, the statute is not
violated."245
The McNamara case concerned heterosexual defendants, but the rule was
followed in United States v. Hoffman,246
decided in 1994. Eric Hoffman had been arrested for engaging in fellatio in
shrubbery in a federal park. Judge Raymond Dearie followed the construction
given by the Court of Appeals in McNamara and found that the shrubbery,
even in daylight, was too dark for anyone to be able to see into it. He said
that neither the New York statute banning public lewdness nor the McNamara
decision "suggests that the outdoors must always be a public place."
An unsuccessful attempt to extend McNamara and Hoffman was People
v. Davis, from 1995. Raymond Davis had been spotted masturbating in a public
restroom and the court found that there was no way that his activity couldn’t
be seen by others.247
In 1995, an Orange County judge, deciding Barbulean v. City of Newburgh,
struck down a Newburgh ordinance banning the operation of a movie theatre in an
area zoned otherwise. Barbulean operated an adult-oriented bookstore that
contained video booths. Judge DiBiasi found that the New York state constitution
contained a broader protection of free speech than did the federal constitution
and that the restriction on Barbulean’s business violated that provision.248
In 1997, an appellate court overturned the conviction of a man for voluntary
sexual relations with a 14-year-old male in the case of People v. Seaman.249
John Seaman, a lawyer who was disbarred because of his conviction, was convicted
based entirely on the "sexual climate" of his home that included books
on sex, beer, cigars, and nude hot tub bathing. The 4-1 majority found that the
evidence bore no relation to the crime charged.
Period Summary:
The New York courts have not relented in their
movement toward sexual freedom. Although a 1986 decision of the U.S. Supreme
Court reversed the state’s highest court (on federal grounds) concerning
sexual privacy, the state courts since have interpreted New York’s law
against public indecency quite liberally, excluding from it acts in parked
cars in residential neighborhoods and in shrubbery.
