Keith Mack
Sodomy laws have existed in the United States since the colonial era, with various European nations bringing their pre-existing laws to the Americas. In 1625, the Virginia Colony executed Richard Cornish for alleged homosexual acts, making him one of the first people to be hanged for sodomy in North America. Over time, the nature and enforcement of these laws changed, with states passing legislation to end the status of capital punishment for those convicted under sodomy laws. In 1847, the criminal status of sodomy became ambiguous until 1901 when Congress passed legislation recognizing common-law crimes, punishable by imprisonment or a fine. The focus of debates about sodomy laws in the latter half of the 20th and early 21st centuries was almost entirely on their criminalization of homosexual conduct. In 2003, the US Supreme Court struck down state sodomy laws, arguing that private, consensual sexual activities between adults should not be criminalized.
| Characteristics | Values |
|---|---|
| First US sodomy law | 1625, when Richard Cornish was executed for alleged homosexual acts |
| First comprehensive history of sodomy law in America | William Eskridge's Dishonorable Passions |
| First state to remove criminal penalties for consensual sodomy | Illinois, in 1961 or 1962 |
| First state to reduce the crime of sodomy from a felony to a misdemeanor | New York |
| Year sodomy laws were struck down by the US Supreme Court | 2003 |
| Number of states with sodomy laws in 2003 | 13 |
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What You'll Learn
Sodomy laws in colonial America
During the colonial era of American history, various European nations that established colonies in the Americas brought with them pre-existing sodomy laws, which included capital punishment. In 1625, the Virginia Colony executed Richard Cornish for alleged homosexual acts with a servant, making him one of the earliest people to be hanged for sodomy in North America. The Puritan-governed Plymouth Colony followed in 1636, including a sentence of death for sodomy and buggery. The Massachusetts Bay Colony did the same in 1641, quoting Leviticus 20:13. The Puritan colonies, known for their strict regulation of moral behavior, derived their laws from the Old Testament rather than English statutes.
The idea that there was a type of person who was a homosexual did not emerge until the late nineteenth century, a result of urbanization, industrialization, and the development of medical and sexological discourse. While these laws were not specifically about discouraging homosexuality, their creators sought to regulate sexual behavior more generally by steering sexuality toward procreation. The establishment of the United States after the Revolutionary War did not bring about many changes in these laws. However, beginning in the nineteenth century, various state legislatures passed legislation that ended the status of capital punishment for those convicted under sodomy laws. South Carolina was the last state, in 1873, to repeal the death penalty for sodomy law violations.
In 1847, the Virginia-ceded portion was returned to Virginia, leaving only Maryland's law in effect in the district. In 1871, Congress enacted the District of Columbia Organic Act of 1871, a law that reorganized the district government and granted it home rule. All existing laws were retained unless expressly altered by the new city council. Direct rule was reinstated in 1874. The criminal status of sodomy became ambiguous until 1901, when Congress passed legislation recognizing common-law crimes, punishable by up to five years in prison or a fine of $1,000. In 1935, Congress made it a crime in the district to solicit a person "for the purpose of prostitution, or any other immoral or lewd purpose." In 1948, Congress enacted the first law specific to sodomy in the district, which established a penalty of up to ten years in prison or a fine of up to $1,000, regardless of sexuality.
In 1950, New York enacted a new statute that divided the crime of sodomy into three degrees. First-degree sodomy, with a maximum penalty of 20 years' imprisonment, was defined as being done by force, as in rape, or an act with an animal or a dead body. Second-degree sodomy, with a maximum penalty of 10 years' imprisonment, included acts involving a person under 18 years old. Third-degree sodomy, a misdemeanor with a maximum of six months in prison, is any act not amounting to first or second-degree sodomy. New York became the first state to reduce the crime of sodomy from a felony to a misdemeanor. In 1965, New York enacted a new statute repealing the crime of sodomy. However, due to opposition, New York also enacted another statute that criminalized sodomy while reducing the maximum penalty from six months to three months and excluding married couples.
In 1962, Illinois became the first state to remove criminal penalties for consensual sodomy from its criminal code, almost a decade before any other state. That same year, the Model Penal Code (MPC) was developed by the American Law Institute to promote uniformity among the states as they modernized their statutes. The MPC removed consensual sodomy from criminal codes while making it a crime to solicit sodomy. By 2002, 36 states had repealed their sodomy laws or had them overturned by courts. In 2003, the US Supreme Court ruled in Lawrence v. Texas that the state cannot criminalize private sexual conduct, invalidating any remaining state sodomy laws.
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Sodomy laws in the 19th century
Sodomy laws in the United States have a long and complex history, dating back to the colonial era when European nations brought their pre-existing sodomy laws to the Americas. In the 19th century, various state legislatures in the US passed legislation to end the use of capital punishment for those convicted under sodomy laws. This marked a shift in how sodomy was legally understood and punished.
During the 19th century, sodomy laws in the US were broadly construed as "crimes against nature, committed with mankind or with a beast". This vague definition of sodomy as an "affront to nature" meant that courts relied on well-established common-law meanings of the term, which involved the penetration of a "penis inside the rectum of an animal, a woman or girl, or another man or boy". While these laws did not specifically target homosexual conduct, they were often used to regulate sexual behaviour and protect "public morals and decency".
Court records from the 19th century reveal that sodomy laws were used to prosecute nonconsensual sexual activity, while consenting adults who engaged in sodomy within their homes were considered immune from prosecution. The policing of sodomy during this period was relatively modest compared to other sexual offenses, such as adultery, fornication, prostitution, and rape. However, the number of sodomy arrests increased tenfold compared to the late 19th century as more aggressive policing targeted a broader range of behaviours under the law.
In the 19th century, the US military discharged soldiers for homosexual acts, and there was a general pattern of non-enforcement of sodomy laws before 1880. This pattern began to shift at the turn of the century, with officials expanding the definition of sodomy to include fellatio, leading to more aggressive policing and prosecutions. While women and men were prosecuted for fellatio, the majority of sodomy arrests during this period were for rape-like offenses involving assault or sexual activity with children.
The specific penalties for sodomy varied across different states and jurisdictions in the 19th century. South Carolina was the last state, in 1873, to repeal the death penalty for sodomy law violations. However, the exact number of executions carried out under these laws is unclear, with records showing at least two convictions labelled as "crimes against nature".
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Sodomy laws in the 20th century
The United States inherited sodomy laws from colonial-era laws in the 17th century. These laws criminalized a variety of sexual acts, including certain acts between heterosexual partners. While these laws often targeted same-sex sexual acts, they were broad enough to include some heterosexual acts as well.
In the 20th century, the nature and enforcement of sodomy laws changed significantly. At the beginning of the century, officials expanded the definition of sodomy to include fellatio, and by the 1920s, most states had adopted this broader definition. This expansion of the law led to more aggressive policing, with women as well as men being prosecuted for fellatio. A few states also included cunnilingus within the definition of sodomy. While sodomy arrests increased tenfold compared to the late 19th century, they were still less common than arrests for other sexual offenses such as adultery, fornication, prostitution, and rape.
The mid-20th century saw a boom in sodomy arrests, with McCarthyist anxieties about homosexuality and sex-crime panics leading to a focus on homosexual conduct. Consensual homosexual sodomy emerged as a major regulatory concern for the first time. However, it is important to note that until the mid-20th century, the vast majority of sodomy arrests were for rape-like offenses or sexual activity with minors.
The gradual decriminalization of consensual sexual acts in the mid-to-late 20th century led to the elimination of anti-sodomy laws in most U.S. states. In 1962, Illinois became the first state to remove criminal penalties for consensual sodomy, and by 2002, 36 states had repealed their sodomy laws or had them overturned by courts. In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that state sodomy laws were unconstitutional, invalidating any remaining state sodomy laws. This decision was celebrated by the LGBT community as a significant victory, although it is worth noting that sodomy laws had been largely unenforced before this ruling.
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Sodomy laws in the 21st century
Sodomy laws have existed in the United States since the colonial era, when various European nations brought their pre-existing laws to the Americas. These laws, derived from the Old Testament, included capital punishment for sodomy and buggery. In 1625, the Virginia Colony executed Richard Cornish for alleged homosexual acts, making him one of the earliest people to be hanged for sodomy in North America.
In the 19th century, state legislatures began to end the use of capital punishment for sodomy convictions, with South Carolina being the last state to repeal this penalty in 1873. However, sodomy laws remained on the books, and in the mid-20th century, there was a boom in sodomy arrests, with McCarthyist anxieties and homophobia leading to a focus on regulating consensual homosexual sodomy.
By 2002, 36 states had repealed their sodomy laws or had them overturned by courts. However, in 2003, sodomy was still illegal in 13 states, and the penalties for violating these laws varied widely, with the harshest penalties in Idaho, where a conviction could result in a life sentence. That year, the US Supreme Court ruled in Lawrence v. Texas that states could not criminalize private sexual conduct, effectively invalidating all state sodomy laws.
Despite this decriminalization, the legacy of these laws continues to impact the LGBT community. The existence of these rarely enforced laws has been used to justify discrimination against gay men, lesbians, and bisexuals, including their exclusion from the military and the loss of jobs and child custody for gay and lesbian individuals.
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Sodomy laws by state
Sodomy laws have existed in the United States since the colonial era of American history, when European nations brought their pre-existing sodomy laws, which included capital punishment, to the Americas. In 1625, the Virginia Colony executed Richard Cornish for alleged homosexual acts, making him one of the earliest people to be hanged for sodomy in North America. The Puritan colonies derived their laws from the Old Testament, and their severe regulation of moral behaviour included the death penalty for sodomy and buggery.
In the 19th century, various state legislatures passed legislation that ended the status of capital punishment for those convicted under sodomy laws. By the 20th century, the nature and enforcement of sodomy laws had changed dramatically. While sodomy laws had broadly been construed as "crimes against nature, committed with mankind or with beast", the focus shifted to target homosexuality. McCarthyist anxieties about homosexuality, sex-crime panics, and the advent of the vice squad led to a mid-century boom in sodomy arrests, as many as 80% of which involved homosexual offenses.
In 1962, Illinois became the first state to remove criminal penalties for consensual sodomy from its criminal code, almost a decade before any other state. In 1950, New York enacted a new statute that divided the crime of sodomy into three degrees, with the maximum penalty for the first degree being 20 years of imprisonment. In 1965, New York enacted a new statute repealing the crime of sodomy, but due to opposition, it also enacted another statute that criminalized sodomy while reducing the maximum penalty from 6 months to 3 months, and excluded married couples.
By 2002, 36 states had repealed their sodomy laws or had them overturned by the courts. In 2003, the Supreme Court's decision in Lawrence v. Texas invalidated sodomy laws nationwide, stating that the state cannot criminalize private sexual conduct. However, the existence of these rarely enforced laws is often cited as justification for discrimination against the LGBTQ community. Despite the nullification of sodomy laws, there was no mandate for states to update their legal codes, and as of 2023, 12- 14 states still have sodomy laws on the books, including Florida, Georgia, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma, South Carolina, and Texas.
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Frequently asked questions
The first US sodomy law was enacted in 1636 by the Plymouth Colony, which wrote a list of "Capitall offences lyable to death" that included sodomy.
Illinois was the first US state to repeal its sodomy law in 1961, followed by Connecticut in 1971.
In 1948, Congress enacted the first law specific to sodomy in the district of Columbia, which established a penalty of up to ten years in prison or a fine of up to $1,000, regardless of sexuality.
The US Supreme Court struck down state sodomy laws in 2003, arguing that the state cannot criminalize private sexual conduct between consenting adults.
