Sex Offenses: Consensual

Sodomy was first prohibited by English common law in the sixteenth century. As recently as 1960, all states had a criminal provision governing consensual sodomy. The legal language used to describe the prohibition was, and in some cases still is, both oblique and severe; several states decree that "the infamous crime against nature" is a felony, others call it "the detestable and abominable crime against nature." Early prohibitions applied just to anal intercourse, but in the United States the definition has been interpreted as including oral sex as well.

Since 1960, there has been dramatic change in sodomy laws, concurrent with the rise of the gay and lesbian civil rights movement. By the end or the twentieth century, half of the state laws prohibiting private consensual sodomy had been repealed formally. A handful more had been struck down by state courts as violating state constitutional rights of privacy, though the U.S. Supreme Court decided in 1986 that sodomy laws do not violate the privacy guarantees in the U.S. Constitution (Bowers v. Hardwick). Despite the successes of gay rights organizations in effecting repeals, approximately twenty sodomy statutes remained on the books at the close of the twentieth century.

Though the language of most statutes does not limit the reach of the law to same-sex activity but would seemingly apply to heterosexual acts as well, the impact of the law is felt almost entirely by gays and lesbians. First, in several states, the language is explicitly limited to same-sex conduct, or judicial interpretation has narrowed broader language to have that effect. But in the majority of jurisdictions where the language appears to apply to heterosexual activity as well, the practical consequences of the law are limited to same-sex activity. These consequences include both enforcement of the criminal prohibitions, and significant civil law discrimination against individuals presumed to violate the statutes based on their sexual orientation.

Though largely thought to be dead letters, the use of these criminal statutes is slightly more common than is the case for the adultery and fornication statutes. They are frequently used when the conduct in question occurs in public, or when there is public solicitation to engage in same-sex activity. While laws against public sexual activity apply to heterosexual activity as well, there are two ways in which same-sex conduct receives harsher treatment. First, law enforcement officials routinely target specific public areas where gay solicitation is known to occur when organizing sting operations against solicitation or public sex. Further, sodomy charges are often tacked onto a gay or lesbian solicitation charge, whereas adultery or fornication charges are not as frequently tacked onto a heterosexual solicitation charge. In fact, it is inconceivable that law enforcement would set up a heterosexual sting operation in a public restroom with a police officer inducing someone to commit adultery, yet that kind of sting operation in the case of same-sex conduct leading to a sodomy charge is common. However, prosecution of completely private same-sex sexual activity is rare, though not entirely defunct.

More significantly, the sodomy laws, despite their apparent applicability to heterosexuals, are invoked exclusively against gays and lesbians in the civil law context. Presumed violation of a sodomy statute by a gay or lesbian parent is too frequently offered as justification for denying that parent child custody. Courts place restrictions on visitation with a gay parent in the presence of that parent's partner, relying on the criminality of the same-sex association as a justification for the restriction. But sodomy laws are not invoked against a heterosexual parent in custody or visitation proceedings, despite the frequency with which heterosexual couples engage in the same prohibited activities. The practical application of these statutes, then, if not the actual words, amounts to status discrimination. Gays and lesbians have been denied employment based on their presumed violation of sodomy statutes, and these actions have been upheld in courts. Sodomy statutes have been used in legal argument against civil rights laws designed to prevent sexual orientation discrimination. Sodomy laws can be used to justify housing discrimination as well. In other words, sodomy statutes have become in effect a license to discriminate. Without a criminal conviction, a person engaged in a same-sex relationship can be considered a criminal nonetheless for purposes of civil law. Thus the sodomy laws provide an incentive to conceal same-sex affiliations, despite the paucity of actual prosecutions of private consensual same-sex sexual activity.

The states where sodomy laws remain on the books tend to be some of the most conservative in the nation, with a few exceptions. These statutes will probably be more difficult to repeal than they have been in other states. This is because these laws represent one piece of a wider legal battle over the status of sexual orientation discrimination, a legal battle that includes issues ranging from same-sex marriage to employment discrimination protection to military service to adoption laws. Conservatives in many states are opposed to the repeal of sodomy statutes despite their disuse, primarily because their repeal could signal an improvement in the political status of gays and lesbians, still a controversial concept for many.