Last edited: July 31, 2003

Answers to Common Questions

Empire State Pride Agenda

What is a consensual sodomy law?

A "consensual sodomy" law makes it illegal for two adults to willingly engage in sexual activity other than penis-to-vagina intercourse. Eighteen states still criminalize consensual oral and anal sex; five of these states criminalize such conduct only when the participants are of the same sex. Penalties can range from 30 days to life imprisonment. New York’s consensual sodomy law, Penal Law section 130.38, applied to any unmarried persons who engaged in "deviate sexual intercourse," defined in the law as sexual conduct "consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva." Consensual sodomy was a Class B misdemeanor, punishable by up to three months imprisonment and a fine of up to $500.

When did New York repeal its consensual sodomy law?

The New York State Legislature moved to formally remove the consensual sodomy law from the New York State code on June 22, 2000. This was part of the sweeping Sexual Assault Reform Act (SARA), an omnibus bill designed to strengthen and modernize New York’s antiquated sexual assault laws.

Was the consensual sodomy law enforceable prior to its repeal?

Fortunately, no. In 1980, the New York Court of Appeals ruled that the state’s consensual sodomy law was unconstitutional. Since that time, the law was supposed to have been unenforceable. However, even unconstitutional statutes remain on the books until formally removed by the legislature. In this way, the consensual sodomy statute stood as an insult to gay, lesbian and bisexual people, reminding us that the way we express our love was at one time considered criminal. More seriously, some police and District Attorneys occasionally used the sodomy law to persecute gay couples or individuals in public or semi-public settings (such as in a car, park or public bathroom). Often, just the threat of being charged with consensual sodomy was enough to force a defendant to plead guilty to other charges in order to avoid an embarrassing trial. The repeal of the consensual sodomy law not only represents a symbolic victory in its removal of the last vestiges of criminalization of homosexuality, it also eliminates any possibility of this unconstitutional law being used to target gay people.

What remains to be done on this issue?

As part of SARA, the legislature codified its intent to modernize the other sections of the sexual assault law. In future months, the legislature is expected to remove the words "sodomy" and "deviate sexual intercourse" from the law completely. The Legislature’s intent is to do away with the false distinctions between the various types of sexual assault so that the law would no longer distinguish between sexual assault with a finger, a foreign object and a penis, as it does now. Instead, the now separate crimes of rape, sodomy, and sexual abuse would be consolidated into a new crime with more enlightened language (such as criminal sexual assault), as has been done federally and in the majority of other states. This change would benefit the lesbian and gay community by eliminating the association of sodomy with rape and deviancy. More importantly, it would assist victims of sexual assault, who often feel revictimized when they are forced to testify to having been "sodomized" instead of attacked or raped. The legislature must be held to its statutory promise to remove these stigmatizing terms from the law and bring New York’s sexual assault law out of the dark ages.

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