Sodomy
by
Adam J. McKee, Ph.D.

June, 2003

The term sodomy is presumably of ancient origin, deriving from the biblical city destroyed by fire and brimstone.  Blackstone, the great commentator on English common law, regarded it as the “crime not fit to be named” and the “infamous crime against nature.”  Today, the term is most closely associated with anal sex, but covers a wide variety of sexual activity such as bestiality, fellatio, and cunnilingus.  Most legal historians agree that the legal prohibition of these acts began in England under ecclesiastical (church) law.  Later on, statutes were passed by parliament, bringing sodomy into the criminal law.  Early American sodomy laws were not directed at homosexuals as such, but instead sought to prohibit nonprocreative sexual activity more generally, whether in a heterosexual or homosexual capacity.  Historically, these early sodomy laws were not enforced against consenting adults acting in private.  Most sodomy prosecutions of the past involved predatory acts against those who could not or did not consent: sex acts between men and minor girls or boys, between adults using force, or between men and animals. During the last third of the twentieth century, the nature of sodomy laws began to change: they were used directly to attack homosexuals.

Some states afforded homosexuals the right to engage in sexual acts relatively early.  For example, the Illinois Criminal Code of 1961 provided that it was lawful in that jurisdiction for willing adults to engage in homosexual relations, provided that the acts occurred voluntarily and in private (Gammage & Hemphill, 1979).    Some nine states have singled out same-sex relationships under their sodomy statutes:  Arkansas, Kansas, Kentucky, Missouri, Montana, Nevada, Tennessee, Texas, and Oklahoma.  For example, Arkansas Code Annotated § 5-14-122 provides that

(a) A person commits sodomy if such person performs any act of sexual gratification involving:

(1) The penetration, however slight, of the anus or mouth of an animal or a person by the penis of a person of the same sex or an animal; or

(2) The penetration, however slight, of the vagina or anus of an animal or person by any body member of a person of the same sex or an animal.

(b) Sodomy is a Class A misdemeanor.

These laws were attacked on constitutional grounds in the 1986 case Bowers v. Hardwick, 478 U.S. 186.  In the Bowers case, the court stated that the “issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . .”  The court decided that the prohibition against sodomy was of ancient origin and was not unconstitutional.

On June 26, 2003, the Supreme Court delivered an opinion that would radically alter the legal landscape, declaring sodomy laws unconstitutional. That case was styled Lawrence et al. v. Texas, No. 02-102.  In the Lawrence decision, the court stated that the Bowers court failed to consider the far reaching consequences of the prohibition against sodomy.  The Bowers court was incorrect in reasoning that it was merely prohibiting a particular sexual act.  The conduct in question touched “upon the most private of human conduct, sexual behavior, and in the most private of places, the home.”  Accordingly, the court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause of the United States Constitution.

The court did distinguish this case from the more traditional prosecutions based on sodomy laws.  That is, crimes against minors or those perpetrated by the use of force: 

This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prosecution.  It does involve two adults, who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle.  Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.       

  References

 Gammage, A. Z. &  Hemphill, C. F. (1979).  Basic Criminal Law (2^nd Ed.). New York: Mcgraw-Hill.

 Bowers v. Hardwick, 478 U.S. 186. (1986)

 Lawrence et al. v. Texas, No. 02-102. (2003)  

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