The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2004
The Common Law
The common law derives from England and
is a set of rules of behavior and procedure handed down over generations from
judicial decisions, but which is recognized as law. In effect, it is a body of
law based on general custom or usage established by government largely during
medieval times. It has been described as “a heritage of the race.”1
The common law is unwritten, in that there is no published code for perusal by
the public. There are both civil and criminal branches of the common law, only
the latter of which is of importance here. Under the criminal branch, certain
acts have been recognized as criminal, and sodomy is one of them. Prosecution
can be undertaken for common-law crimes, even without any statutory ban on the
Under the common law of England, which
carried to the United States, sodomy was defined only as anal sex between two
men or between a man and a woman, and any kind of sexual activity with a
subhuman animal of the opposite sex. This limitation remains in the definition
today. Adoption of the common law in the United States automatically also
adopted English statutory law. This includes the English “buggery” statute
from the 16th century, since it was in effect prior to the first English
settlement in what now is the United States.
All of the United States except
Louisiana recognizes the civil branch of the common law. However, for common-law
crimes to be recognized, a jurisdiction must have a statutory provision
expressly either adopting common-law crimes or the common law in its totality.
Certain courts have interpreted common-law
crime reception statutes to incorporate religious dogma. North Carolina’s
common law adoption includes canon law,2
and Vermont’s includes ecclesiastic law.3
In 1955, when the American Law
Institute published its proposed Model Penal Code, it recommended abrogation
of common-law crimes. Because much of the common law was adopted hundreds of
years ago and under extremely different social situations, and because it is
unwritten, this places a strange burden on individuals to know whether their
acts or omissions are legal so that they don’t violate unwritten laws.
Prior to the Model Penal Code’s
publication, common-law crimes either had been abrogated by statute or court
decision (mostly in the 19th century)4
or determined never to have been recognized5
in a total of 29 jurisdictions. The East and the South disproportionately were
the regions recognizing common-law crimes, because they had the most direct
English influence. The Midwest traditionally has been the region of the
country most hostile to recognition of common-law crimes.
Since the Model Penal Code was
published, the number of jurisdictions abrogating common-law crimes has grown
leaving only 13 states and the District of Columbia recognizing them7
All but four of these holdouts are in the East and the South.
Due to the Supreme Court’s 2003
decision in Lawrence et al. v. Texas,
the issue of common-law crimes and the criminalization of sodomy is moot,
because a common-law prosecution would not be any more constitutional than
would be a statutory prosecution.
A major problem with adoption of common-law
crimes is that it criminalized consensual sodomy independently of sodomy
statutes. Merely repealing a sodomy law did not necessarily make sodomy legal.
In eight of the 14 jurisdictions still recognizing common-law crimes, courts
were asked to decide whether repeal of a statute derogating the common law
reinstated the common-law provision. Seven of the eight said that it did,
meaning that sodomy could remain criminal in these states, even with repeal of
a sodomy law.
In addition, in Vermont, no sodomy law
ever was enacted, with all sodomy prosecutions processed under the common-law
reception statute. A law criminalizing oral sex was passed by the legislature
in 1937 (since oral sex is not within the common-law definition of sodomy) and
was repealed in 1977. Although the state therefore was considered a “free”
state on the issue of sexual behavior, in fact private, consensual, anal sex
remained indictable in the state under the common-law reception statute until Lawrence.
In New Mexico, Washington, and West
Virginia, sodomy law repeals did not disturb the common-law crime reception
statutes and courts in those states interpreted the repeal of a statute
derogating the common law to revive the common-law provision, meaning that, in
those states, private, consensual pre-Lawrence
anal sex also remained indictable.
In the District of Columbia, the sodomy
law has been repealed, but two common-law reception statutes remain, and
courts there have not decided whether the repeal of a statute in derogation of
the common law revives the common-law provision. Consequently, private,
anal sex may have remained criminal there. Since Lawrence
was handed down, the District of Columbia enacted a law8
that prevents the revival of a common-law provision if a companion statutory
provision is repealed.
In Maryland, the statutes derogating
the common-law provision on sodomy were ruled unconstitutional, so, even
though courts have not decided the issue of repeal of a statute reviving a
common-law provision, it is almost impossible that the common-law provision
outlawing the same acts would not have been unconstitutional as well.
In Rhode Island, the sodomy law has
been repealed, but common-law crimes remain recognized and the courts have
decided that repeal of a statute in derogation of the common law revives the
common-law provision. Notwithstanding this fact, the decision of the Rhode
Island legislature in 1998 to legalize sodomy simply by removing human
references from the “crime against nature” law and leaving a prohibition
of bestiality blocked the common-law provision from reactivation. The reason
is that there still is a statutory crime of sodomy, even if limited to acts
with animals, so the common-law provision on sodomy remained silenced so long
as that statute remained, until Lawrence
made it irrelevant.
In Florida, Mississippi, and Virginia,
where consensual sodomy remained criminal, repeal of the sodomy law before Lawrence
would not have freed all private, consensual sodomy. In each state, courts
have ruled that repeal of a statute in derogation of the common law revives
the common-law provision.
In Idaho, North Carolina, and South
Carolina, also where consensual sodomy remained criminal, pre-Lawrence repeal of a sodomy law might or might not have made the
states free. The courts in those states have not decided the issue of
reactivation of a common-law provision after repeal of a statute in derogation
Only in Michigan was the issue
irrelevant. Although private, consensual sodomy remained criminal there,
Michigan, alone among the affected states, has case law stating that the
enactment of a statute in derogation of the common law is a permanent
repeal of any common-law provision on the subject.
Detail on these common-law provisions
is found in the individual state chapters.
Until the Lawrence
decision, the only certain way to legalize all forms of private,
consensual sodomy in these jurisdictions was to repeal the provisions
recognizing common-law crimes. Common-law crimes have been anachronisms since
the Bill of Rights was adopted.
L.R.A. 805, at 806, § 1.
2 Crump v. Morgan, 38 N.C. 91.
3 LeBarron v. LeBarron, 35 Vt. 365.
4 Arizona, California, Georgia, Hawaii,
Indiana, Massachusetts, Montana, Nebraska, Nevada, New Hampshire, New
York, Ohio, Oklahoma, South Dakota, and Texas. One sees the heavy tilt
toward the Midwest and West in this list and the list in the next note,
showing a great dichotomy between the two halves of the country.
5 Alaska, American Samoa, Guam, Iowa, Kansas,
Louisiana, Maine, Minnesota, North Dakota, Northern Mariana Islands,
Oregon, Puerto Rico, Utah, and the Virgin Islands.
6 Alabama, Arkansas, Colorado, Connecticut,
Delaware, Illinois, Kentucky, Missouri, New Jersey, Pennsylvania,
Tennessee, Wisconsin, and Wyoming are the states to do away with
common-law crimes since 1955.
7 District of Columbia, Florida,
Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, Rhode
Island, South Carolina, Vermont, Virginia, Washington, and West Virginia.
8 Act 15-154, effective Apr. 29,
2004. Codified as D.C. Official Code § 45-401(b).
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