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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
West Virginia
The Post-Revolution Period, 1776-1873
West Virginia broke away from Virginia in a dispute over the Civil War and,
in 1863, was admitted to the Union. Its first constitution mandated that laws
of Virginia in effect at the time of separation would remain in force.1
This retained the 1860 "buggery" law of Virginia that established a
penalty of 1-5 years.2 Common-law crimes also
were recognized.3
Period Summary: West Virginia, which would not have existed if
the Civil War had not occurred, kept all the laws of Virginia from which
it divided. The operative Virginia law it thus obtained used the term
"buggery" and a common-law definition.
The Victorian Morality Period, 1873-1948
The earliest known United States law journal article dealing with sodomy
was in 1905 in West Virginia.4 Attorney E.D.
Leach argued that "perverted sexual natures" were related to crime.
"Sodomy, rape, lust-murder, bodily injury, theft, robbery, torture of
animals, injury to property and many other crimes may be committed under these
conditions."5
In 1917, a bill was introduced into the West Virginia legislature to expand
coverage of the sodomy law to include oral sex by copying the laws of Ohio (q.v.),
Iowa (q.v.), and Nebraska (q.v.). The bill passed the House of
Delegates, but not the Senate.6
Despite this attempt, there was no change in the law until the adoption of
a comprehensive code revision in 19307 that
finally eliminated the term "buggery" and substituted "crimes
against nature." It reworded the proscription as
If any person shall carnally know in any manner any brute animal, or
carnally know any male or female person by the anus or by or with the
mouth, or voluntarily submit to such carnal knowledge, he or she shall be
guilty of a felony, and, upon conviction thereof, shall be confined in the
penitentiary not less than one nor more than ten years.8
In the state’s first reported sodomy case, State v. Friedman,9
in 1942, the West Virginia Supreme Court decided that emission of semen was
not required to complete the crime.10
Later the same year, in State v. Meadows,11
the West Virginia Supreme Court sustained the life imprisonment sentence of a
man under the state’s habitual criminal statute for a second sodomy
conviction following a liquor law conviction.12
Period Summary: An early attempt to broaden the sodomy law to
include oral sex failed, and it was not until 1930 that the law was so
changed. The term "buggery" finally was eliminated in this law
as well.
The Kinsey Period, 1948-1986
In 1953, the same court, deciding State v. Gargiliana,13
overturned the sodomy conviction of the defendant because of the admission
into his trial of unrelated similar acts14 and
the fact that the jury’s verdict did not specify of which of the three
counts standing against him he had been convicted.15
The West Virginia Attorney General got into the act with an opinion16
issued in 1956 that cunnilingus violated the law of 1930. Attorney General
John Fox quoted case law from throughout the country and added that
penetration was essential in order to convict for an act of cunnilingus.17
In 1957, the Supreme Court decided the case of State v. Withrow,18
which may have been the case that caused the appeal to the Attorney General
for guidance. The Court backed the Attorney General’s interpretation that
actual penetration had to be proven.19 Because
there was no such proof, the conviction was overturned.20
West Virginia enacted a psychopathic offender law in 1957.21
This law made psychiatric referrals compulsory for anyone convicted of incest
or "crimes against nature,"22 but
only discretionary for those convicted of rape or other sex crimes.23
The last reported sodomy case in West Virginia was State ex rel. Housden
v. Adams,24 in 1958, in which the Supreme
Court overturned a sodomy conviction under the habitual criminal law. Housden
had been sentenced to life imprisonment under the law, but the Court found
that, because he had not been confronted during his trial with previous
convictions, he could receive only the maximum 10-year sentence for sodomy.25
In 1976, a comprehensive revision of the state’s sexual assault laws26
repealed the law against sodomy. The age of consent was set at 16.27
Period Summary: Case law on sodomy is scarce in West Virginia,
and three of four convictions have been reversed by the West Virginia
Supreme Court, thus making it unclear to what extent the law was enforced.
The state was one of the last to enact a psychopathic offender law and
there is no case law to reveal how the law was enforced. A sexual assault
revision law in 1976 repealed the sodomy law, but no change was made in
the common-law reception statute.
The Post-Hardwick Period, 1986-Present
The state continues to recognize common-law crimes28
and case law in the state is that repeal of a statute in support of the common
law revives the common-law provision on the subject. Thus, anal sex
technically is still indictable in the state.29
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, except that the common-law statute and its supporting case
law will permit consensual anal sex to be indicted if a prosecutor chooses
to do so.
Footnotes
1 West Virginia Constitution 1863,
Article XI, §8.
2 The Code of Virginia. Second
Edition, Including Legislation to the Year 1860, (Richmond:Ritchie,
Dunnavant & Co., 1860).
3 Id. at 112, Title 9, §1.
4 "Sexual Perversion and its
Relation to Crime," The Bar, Aug.-Sep. 1905, pages 33-36.
5 Id. at 36.
6 House Bill 172, introduced Jan. 22,
1917.
7 Official Code of West Virginia
1931, enacted Apr. 3, 1930. The final report of the revision and
codification commission stated that the revisers "listened only to
the voice of conscience speaking in behalf of the public interest. The
faithful discharge of the trusts reposed in them required that they
should remain deaf to all importunities. They pursued this course with
unaltered purpose, although they could foresee that it would invoke the
hostility of those who sought, but did not obtain, special and personal
advantages, and that such hostility may largely destroy the produce of
their labor."
8 Id. §61-8-13.
9 18 S.E.2d 653, decided Feb. 3, 1942.
10 Id. at 655.
11 20 S.E.2d 687, decided June 2, 1942.
12 Id. at 687-688.
13 76 S.E.2d 265, decided June 9, 1953.
14 Id. at 268-269.
15 Id. at 270-271.
16 46th Biennial Report and Opinions
of the Attorney General, page 352, No. 170, issued Jan. 13, 1956.
17 Id. at 353.
18 96 S.E.2d 913, decided Mar. 5, 1957.
19 Id. at 922-925.
20 Id. at 927.
21 Laws of West Virginia 1957,
ch. 43, enacted Mar. 9, 1957.
22 Id. §1.
23 Id. §2.
24 103 S.E.2d 873, decided June 17,
1958.
25 Id. at 877.
26 Laws of West Virginia 1976,
page 241, ch. 43, enacted Mar. 11, 1976, effective June 11, 1976.
27 Id. See chapter 61-8B
generally.
28 West Virginia Code Annotated,
§61-11-3.
29 State v. Mines, 18 S.E. 470,
at 471, decided Nov. 4, 1893; State v. Brookover et al., 18
S.E. 476, decided Nov. 4, 1893; State v. General Daniel Morgan
Post No. 548 Veterans of Foreign Wars of the United States et al.,
107 S.E.2d 353, at 357, decided Mar. 3, 1959.
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