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Sodomy Laws - History of Sodomy

The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2005

Louisiana
 "The defendant s____d the ____ of my son Ned until he has lost his mind."

The Post-Revolution Period, 1776-1873

The 1804 Organic Act creating the Louisiana Territory 1 stated that all laws then in force in Louisiana would remain so. 2 Since it had been a French colony and France had no sodomy law, that meant sodomy would remain legal in Louisiana. An identical provision was created for the remainder of the original Louisiana Purchase, a huge expanse of land in the United States. 3

The first criminal code of Louisiana was enacted in 1805 and contained a sodomy provision with the common-law definition and a mandatory penalty of life imprisonment at hard labor. 4

In 1824, a proposed criminal code revision was published by attorney Edward Livingston. 5 In his "Introductory Title," Livingston explained what he thought should be the guiding principles behind penal law. Only those acts "as are injurious to the state, to societies permitted by the laws, or to individuals" should be outlawed. 6 Those actions that "may be sufficiently repressed by private suit" should not be criminalized. 7 The law "should never command more than it can enforce." Whenever "a penal law cannot be carried into execution, it should be repealed." 8 Religion never should "form the subject of a penal code." 9 With these principles in mind, Livingston’s code was written. It made no reference to sodomy, and its provision on "disorderly houses" would outlaw only "public" prostitution. 10 Unfortunately both for civil liberties and for history, the Louisiana legislature did not choose to follow Livingston’s advice.

A new code of law in 1870 11 included a provision requiring all criminal offenses to be construed according to the common-law of England. 12 This guaranteed that no prosecutions could be had under the sodomy law for anything but anal sex.

Period Summary: Louisiana missed an historic opportunity in 1824 when Edward Livingston published a model penal code for the state and the legislature did not adopt it. Livingston, although not specifically discussing sodomy, did not recommend criminalizing it. The legislature instead retained the law adopted two decades earlier with a common-law definition and compulsory life sentence. The Code of 1870, by requiring that criminal laws be construed according to the common law of England, prohibited prosecution for oral sex.

The Victorian Morality Period, 1873-1948

In 1876, in the first reported sodomy case in the state, State v. Gruso, 13 the Louisiana Supreme Court unanimously overturned a conviction and life sentence because of the admission of hearsay evidence into the defendant’s trial. 14

In State v. Williams, 15 from 1882, the Louisiana Supreme Court rejected the claim that the term "abominable and detestable crime against nature" was too vague. It merely was a "euphemism" by which

the law describes pecatum illud horribile, [and] does not, in our opinion, leave its meaning doubtful or obscure. 16 [Emphasis added].

Thus, one had to know Latin to understand why the term was not vague. The Court answered a vagueness claim with an even greater vagueness.

In 1893, a New Orleans newspaper published a scandalous cover photo of two women embracing, with the headline: "Good God! The Crimes of Sodom and Gomorrah Discounted." 17 The accompanying story discussed sexual relations between women.

Possibly in reaction to this sensational story, in 1896, Louisiana amended its sodomy law. 18 The penalty was reduced to 2-10 years, but the hard labor provision remained. 19 The law was reworded to include "the detestable and abominable crime against nature committed with mankind or beast with the sectual [sic] organs, or with the mouth[.]" 20

The first reported case under this law was State v. Vicknair, 21 from 1900. This case challenged the applicability of the new sodomy law to fellatio. The Louisiana Supreme Court made it clear that, even had the law not been amended, it would have expanded the crime against nature law to cover fellatio, despite the command of the Code of 1870 that all laws be based on common-law definitions. Why, in the common-law courts,

the use of the mouth should not have been considered as much against nature as though the act were committed per anum is incomprehensible. 22

Vicknair’s information charged him with "sucking with the mouth," 23 which makes sense, since there is no other part of the body with which one can suck. Justice Frank Monroe, writing for the Court, reprinted some fascinating dialogue that passed between the defendant and the father of the alleged victim. Another witness asked the victim’s father why he was so upset with the defendant and the father answered that Vicknair "s____d the ____ of my son Ned until he has lost his mind." Vicknair denied this and Ned’s father answered:

‘You deny that you have put my boy in the condition in which he is, when you have s____d my son John, Jules, ___ [the prosecuting witness in this case], and ____?’ to which the accused answered, ‘As to those three, I don’t say no. I did it; but I swear on my honor I have not done it to Ned.’ 24

The trial court found the above exchange to be a confession of Vicknair’s guilt to the act with Ned, despite his denial of it in the statement, and the Supreme Court sustained the ruling. Vicknair also claimed that proof of emission was required in order to convict, but the Supreme Court noted that it no was longer required under the common law. It also upheld the trial court’s inference of emission from the fact that

the accused s____d his sexual organ during about three minutes’ time, and there was no evidence that the act had been interrupted before completion. 25

The Court also upheld the trial court’s allowing the prosecution even though complaint was not made for a full year after the act. 26

In 1910, in State v. Thibodeaux, 27 the Louisiana Supreme Court unanimously upheld a sodomy conviction, ruling that "crime against nature" and "sodomy" were synonymous terms. The defendant had tried to compel the trial court to direct the state to elect between the terms for prosecution. 28

In State v. Long, 29 from 1913, the Louisiana Supreme Court again sustained a conviction for fellatio under the 1896 law. 30

In 1914, in State v. Murry, 31 the Louisiana Supreme Court again unanimously upheld a fellatio conviction under this law. Murry had been informed against by an antique charge that his act of fellatio was "not to be named among Christians, to the great displeasure of almighty God." 32 The Court decided that the law included

the act called ‘fellatio,’ and perhaps that other perversion called ‘cunnilingus’, committed with the mouth and the female sexual organ. 33

The issue of forfeiture of bail was the subject of the next sodomy case, State v. Young, 34 from 1918. Young had been released on bail pending trial on a sodomy charge, but had forfeited it when he didn’t appear. He moved to overturn the forfeiture when he claimed that he had been absent from the parish when the criminal term began and thought it was to begin later. He surrendered during the current term of the trial court, and the Supreme Court decided that he should not have been subjected to forfeiture. 35

In the 1918 case of State v. Robinson, 36 the Louisiana Supreme Court ruled that the state did not recognize common-law crimes.

A comprehensive criminal code revision in 1942 37 changed the sodomy law. The maximum penalty was reduced from 10 to five years and a fine of up to $2,000 was added. The 2-year minimum remained and the hard labor provision was made optional. 38 Emission was declared unnecessary to prove the crime, and the law was made clear that the gender of either party was irrelevant. 39

A law review article of the same year discussing this new code 40 was especially critical of several provisions of it, including the sodomy law. 41 Unfortunately, the author stated that "space does not permit their consideration," so the exact criticism was not voiced. 42

Period Summary: Although it is not certain that there is a link, three years after a sensational newspaper article on Lesbian sex, Louisiana rewrote its sodomy law to outlaw oral sex. The law later was interpreted as outlawing fellatio and "perhaps" outlawing cunnilingus as well. Another revision to the law during World War II specifically outlawed heterosexual sodomy as well. Another missed opportunity for the state occurred that same year, 1942, when a law journal critically reviewed that new criminal code. There were several features of the code that were felt to be deficient, the sodomy provision one of them. However, the author did not discuss his objections and the possibility of a pre-Kinsey critique of such laws never occurred.

The Kinsey Period, 1948-1986

In the curious 1957 case of State v. Cavanaugh, 43 the Louisiana Supreme Court initially voted unanimously to uphold the sodomy conviction of a man whose attorney pleaded with the jury not to send him to the penitentiary. Louisiana law required all charges to the jury to be made in writing, and the trial judge, answering the defense attorney, gave an oral instruction to the jury regarding the proper roles for the different players in the courtroom, including the statement that they had no right to acquit a defendant simply because of the severity of the penalty that he faced. 44 The Supreme Court decided that the statement actually was not a "charge" to the jury, and did not need to be in writing. 45 On rehearing, the Court, by a 4-3 vote, reversed itself, and decided that the statement was a "charge" within the meaning of state law, thus overturning Cavanaugh’s conviction. 46

In 1959, in State v. Kelly et al., 47 the Louisiana Supreme Court upheld a sodomy conviction even though one witness violated a court order and discussed the case with another witness. The Court felt that this was a harmless error. 48

Louisiana revised its sodomy law in a pioneering way in 1962. 49 It enacted a separate law outlawing "aggravated crime against nature" which would be triggered by an act of force, through the victim’s inability to consent, or with a partner under the age of 17. 50 The penalty was set at a maximum of 15 years, but the felony provisions for the remaining crime against nature law, now presumably limited to consensual acts, remained. 51

In 1964, in State v. Bonanno, 52 the Louisiana Supreme Court unanimously rejected Bonanno’s contention that the term "crime against nature" was unconstitutionally vague and overbroad. The Court believed that the term was not only well-understood, but covered

any and all carnal copulation or sexual joining and coition that is devious [sic] and abnormal because it is contrary to the natural traits and/or instincts intended by nature, and therefore does not conform to the order ordained by nature. 53

Bonanno had received a sentence of three years in prison at hard labor for a consensual act of sodomy. 54

In 1966, in State v. Marcell, 55 the Louisiana Supreme Court unanimously upheld a conviction for attempted sodomy even though the trial court permitted testimony of a witness not connected with the case. Although the Court felt that the admission wasn’t correct, it also felt that it didn’t prejudice the case. 56

One of only four reported cases in the United States dealing with consensual sexual relations between women was the subject of the next Louisiana case. In 1966, in State v. Young et al., 57 the Louisiana Supreme Court unanimously held that the sodomy law covered cunnilingus between women. Mary Young and Dawn DeBlanc were prostitutes who sometimes "gave a show" for their customers, one of whom, in this case, was an undercover police officer. 58 The Court also allowed the admission into the trial of nude photographs of the defendants and allegedly obscene comic books found in their possession. 59

In 1974, Louisiana adopted a new constitution that included a privacy amendment reading:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court. 60

This last sentence is nonsense, since it doesn’t guarantee any suppression of illegally obtained evidence, merely the right to try to suppress it. The wording of the section also only prohibits "unreasonable" invasions of privacy.

The Louisiana Supreme Court decided the case of State v. Lindsey 61 in early 1975. A trial court had dismissed a consensual sodomy information against Lindsey, agreeing that the crime against nature law was unconstitutionally vague and overbroad. By a vote of 4-3, the high court reversed that ruling. Conceding that the words "unnatural carnal copulation" might be both archaic and unrealistic in today’s society, the Court nevertheless stated that

statutes commonly retain archaic phrases and terms because they have acquired accepted legal meaning. 62

Justice John Dixon dissented without opinion. 63 Justice Pascal Calogero issued a one-sentence dissent that the law in question "is unconstitutionally vague and indefinite." 64 Justice Mack Barham was the third dissenter. He felt that the law was both vague and a violation of the right of privacy. 65

In another 1975 decision, State v. Bluain, 66 the constitutionality of the Louisiana aggravated sodomy law was upheld by a 5-2 vote. The two dissenters wrote separate, brief dissents. One, a lower court judge sitting by designation, argued that both the sodomy and aggravated sodomy laws were unconstitutional, 67 and the other, Justice Pascal Calogero ignored the law at issue in the case and again argued that the consensual sodomy law was "unconstitutionally vague and indefinite." 68

The Louisiana legislature passed a new sodomy law as part of a general sex law revision less than a month after this decision. 69 It enacted a unique statute covering "homosexual rape." 70 The new crime could be committed only anally on a male, although the wording did not specify that the perpetrator could not be a female. 71 "Heterosexual rape" was an act against a female, either vaginally or anally, and again without specification that a female could not be a perpetrator. 72 "Aggravated" rape, either heterosexual or homosexual, was to be punished by death, 73 although two years later the U.S. Supreme Court struck down the death penalty for rape. 74 The sodomy law was amended to exclude forcible anal sex from its provisions, moving them to the "homosexual rape" law. Presumably this made the sodomy law limited only to consensual activity, but the maximum of five years in prison and a $2,000 fine was not changed. However, the minimum penalty of two years was eliminated. 75 Language was inserted stating that the act could be committed with someone "of the same sex or opposite sex[.]" 76

In the case of State v. McCoy, 77 from 1976, the Louisiana Supreme Court, dealing with a case of non-consensual sodomy, nevertheless stated that the law covering consensual acts was constitutional, based solely on the U.S. Supreme Court’s Doe decision of earlier the same year. 78

Also in 1976, in the case of State v. Duhon et al., 79 the Louisiana Supreme Court unanimously upheld the conviction and 2½-year sentence of two prisoners for an act of consensual sodomy in their cell. 80

In the 1978 case of State v. Frentz, 81 a bare 4-3 majority of the Louisiana Supreme Court overturned an aggravated sodomy conviction. Defendant Frentz was convicted of aggravated sodomy because his consensual relations were with a 15-year-old male. The majority found that the state’s introduction of testimony of others who engaged in similar activity, solely to prove that Frentz was "a homosexual," was prejudicial error. 82

In 1982, the sodomy law was amended again. 83 Once more showing its creativity and desire for uniqueness, Louisiana added to the definition of consensual sodomy the

solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation. 84

Thus, a mere solicitation for compensation could lead to a felony conviction and felony criminal record the same as a completed act of sodomy.

In 1984, in State v. Mancini, 85 an appellate court unanimously overturned an "obscenity" conviction. Donald Mancini, in a locked booth at a "peep show" rather boldly had unzipped an on-duty vice squad officer’s pants and exposed his penis. Both the trial court and appellate court agreed that, in such a private place, Mancini could not be convicted, because he had not exposed his own genitals. 86 The Louisiana Supreme Court, by a vote of 6-1, refused to review the decision. 87

Also in 1984, an appellate court voted 3-0 to overturn a conviction in the case of State v. Pruitt. 88 Pruitt had solicited a female undercover police officer for oral sex and was convicted under the expanded 1982 law that included solicitation for compensation. Pruitt had sought to have expert testimony introduced at his trial that oral sex between heterosexuals was not unnatural. Judge William Byrnes, writing for the majority, noted that

all previously reported cases dealing with this crime involved homosexual encounters. Thus any statement in prior cases which purported to include heterosexual oral sex in the definition of unnatural carnal copulation would be dicta and not controlling in this case. 89 [Emphasis is the court’s].

In "fairness" to Pruitt, he should be allowed to introduce the testimony he sought. 90 Byrnes apparently overlooked the clear wording of the sodomy law that included the words "opposite sex." Chief Judge William Redmann concurred in the reversal only in part, because he felt that the state had not proven that Pruitt’s solicitation was for compensation. He believed that, under the law, the compensation had to be solicited by the prostitute in order to constitute a violation. 91 Pruitt got his new trial, but again was convicted, the jurors apparently just as horrified at heterosexual oral sex as that between people of the same sex. In 1986, his case returned to the Court of Appeals. In Pruitt II, 92 the conviction was upheld unanimously. Pruitt had complained that the trial judge permitted questioning of prospective jurors by the prosecutor as to "sexual preferences and prejudices," but would not permit further questioning by the defense because the defense did not raise an objection. 93 The Court also said that hostile questioning of the expert witness as to acts such as bestiality, necrophilia, pedophilia, and sado-masochism and their "naturalness" was to determine credibility of the witness. 94 The Court concluded that this was not "unduly" inflammatory to the jury. 95 After sustaining the conviction, the Court refused to consider

the question of whether the legislature may constitutionally prohibit oral copulation in a heterosexual relationship when not solicited for compensation, or whether such conduct is unnatural. 96

An appeal to the Louisiana Supreme Court was unsuccessful when it voted 4-3 to refuse to hear Pruitt’s case. 97

Meanwhile, in 1984, in State v. Williams, 98 an appellate court voted 2-1 to sustain a conviction under the sodomy law for the solicitation of a male undercover police officer by another male. Because Williams was "a multiple offender," he received a sentence of four years at hard labor. 99 Williams, after being arrested, asked the arresting officer not to place him in the general jail population "because he was [G]ay." 100 This apparently was used as corroborating evidence, although the opinion does not make any reference to this statement’s significance. The "multiple" offender reference was due to one previous guilty plea to the same offense. 101 In dissent, Chief Judge William Redmann believed that the law was unconstitutional for two reasons. First, the vagueness of the wording made it unclear what was illegal, 102 and the penalty was unconstitutional as disproportionate to the crime. He noted that prostitution was a misdemeanor, but solicitation for sodomy for compensation was a felony, thus being "cruel and unusual punishment" due to the law’s "disproportionateness and arbitrariness." 103

Also in 1984, an appellate court unanimously sustained another sodomy conviction based on solicitation for compensation in the case of State v. Simmons. 104 In this case, the undercover vice squad officer solicited had been "wired" for sound and several other vice squad officers to whom the solicited officer drove the defendant had the entire conversation on tape. The court rejected an entrapment defense. 105

A law enacted in 1985 106 prohibited the "promotion" of "obscene devices." Such devices included "an artificial penis or artificial vagina" primarily used for "stimulation of human genital organs." One would "promote" such devices if he or she would "manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, distribute, circulate, disseminate, present, or exhibit" them. 107 This lengthy prohibition outlawed giving such things away or selling them, but neither purchasing nor using them.

In the 1985 case of State v. Woljar, 108 the Louisiana Supreme Court voted 6-1 to uphold the constitutionality of that part of the sodomy law including solicitation for compensation. The basis for the constitutionality was only that Woljar had not cited any case law saying that solicitation could not be considered a completed act. 109 Chief Justice John Dixon was the lone dissenter. His one-sentence dissent: "‘Unnatural carnal copulation’ is a vague, ambiguous and undefined crime." 110

In 1986, in State v. Berthelot, 111 an appellate court ruled unanimously that masturbation of another person did not constitute a violation of the law. 112

Period Summary: Louisiana strongly followed the McCarthy view of sex during this era. Convictions were upheld by courts the vast majority of times and the statute received several revisions to it. The specific reference to heterosexual sodomy remained, and mere solicitation of sodomy for compensation was added as part of the definition of a completed act.

The Post-Hardwick Period, 1986-Present

A major constitutional challenge was the subject of the 1987 case of State v. Neal et al. 113 The Louisiana Supreme Court voted 7-0 to reverse a trial court and uphold the law, specifically as it applied to the solicitation for compensation. First, the Court decided that the law was not vague. 114 Second, the Court refused to use the overbreadth doctrine to invalidate the law because of its potential to chill the sexual activities of married and unmarried consenting adults because the law was

aimed at solicitations of sexual acts for compensation that as a practical matter may be detected efficiently only through the use of police decoys in public places. 115

A free speech argument also was rejected with the circular reasoning that the solicitation was constitutionally criminalized because it was the solicitation of criminal activity. 116 A broad privacy argument also was rejected, based on the U.S. Supreme Court’s Hardwick decision, although the Court read that decision as covering heterosexual activity as well. 117 Discriminatory enforcement also was rejected. 118

In 1987, an appellate court, deciding State v. Gamble, 119 stretched the Louisiana law to new limits. David Gamble was arrested in an adult bookstore by an undercover police officer who saw Gamble stick his finger through a hole in a bookstore wall, and then saw him place his mouth at the hole, seeing Gamble’s moustache. 120 The court unanimously found this sufficient to sustain a conviction for an attempt to commit sodomy, even though Gamble never touched the officer, was not near him, and did not speak to him. Any "rational trier of fact" could view this as an attempt to commit the act. 121

In the 1987 case of State v. Ryans, 122 an appellate court unanimously upheld the more severe penalty for solicitation for sodomy, as opposed to solicitation for prostitution. Judge Philip Ciaccio noted that the penalties for crimes were set by the legislature to "reflect the degree of offensiveness with which the conduct is regarded" by society. 123 Ciaccio noted that prostitution "presumably" involved "natural carnal copulation" and that only such copulation for compensation was a crime in Louisiana. On the other hand, "unnatural" copulation was a crime, with or without compensation. 124

Louisiana enacted a sex offender registration law 125 in 1992. The law included both violent sex offenses and consensual sodomy as well. 126 It required not only registration and notice of change of address of each offender, but also a photograph and fingerprints to be provided to the sheriff. Failure to register received a one year and/or $1,000 fine as penalty. Subsequent violations would lead to a maximum of three years in prison without parole, probation, or suspension of sentence.

The law received a setback in the 1993 case of State v. Payne. 127 Payne was convicted of child molestation and challenged both his sentence and registration requirement. An appellate court upheld his sentence, but found that the registration law could not be applied to Payne since his crimes were committed prior to the law’s enactment. Thus, to prevent being an ex post facto law that violates for the federal and state constitutions, it could be applied only proactively. 128

In 1994, in State v. Baxley, 129 the Louisiana Supreme Court reversed and remanded a trial court’s finding of unconstitutionality on the part of the Louisiana sodomy law. Justice Jack Crozier Watson, speaking for a 6-1 majority, said that Baxley had no standing to challenge the portion of the law that concerned actual sexual activity since he was arrested under the portion dealing with solicitation for compensation. One liberal aspect of the decision is that the court held that mere solicitation, without an offer of compensation, does not constitute an attempt to commit the crime against nature. 130 In dissent, Chief Justice Pascal Calogero, the Court’s most consistent opponent of the sodomy law, said that few

areas of personal autonomy are more private than sexual intimacy between consenting adults. Accordingly, the state must demonstrate a compelling interest in order to justify criminalizing such personal choices, and no such compelling interests have been urged, must less shown, by the state in this case. 131

The case returned to the Louisiana Supreme Court in 1995. 132 The law was sustained by the Court against claims of discrimination and excessive punishment. Chief Justice Calogero again dissented. He argued that the sentence of up to five years in prison for a solicitation was an excessive sentence under the state constitution. He noted that the antiquity of the statute against sodomy was irrelevant given that the state constitution’s penalty provision dated from only 1974. Also, he noted that Baxley could have solicited a police officer to commit rape or arson and would have received a lesser penalty. 133

Judge Michael Bagneris issued a preliminary injunction against the enforcement of the sodomy law, pending trial in another challenge to the law in Louisiana Electorate of Gays and Lesbians, Inc. v. State. 134 The state appealed the injunction, but the Louisiana Supreme Court refused to hear the case, 135 allowing the new case’s trial to proceed. Trial Judge Walter Kollin refused to issue an injunction against enforcement of the law because the Orleans Parish District Attorney pledged that the law was not being, and would not be, enforced against consenting adults in private. As of 2001, this case still is being batted around in the state courts.

It may be futile, however. In 2000, the Louisiana Supreme Court, in State v. Smith, 136 by a 5-2 vote, shut the door to privacy challenges to the sodomy law. Speaking through Justice Chet Traylor, the Court interpreted the state constitution's privacy amendment in a contradictory manner. First, it was

undisputed that the guarantee of the right to privacy contained in the Louisiana Constitution affords more stringent protection of individual liberty than the Fourth Amendment to the Federal Constitution [citation omitted]. 137

"That being said," the amendment had been interpreted by a lower Louisiana court as "an explicit expression of the principles recognized in the United States Supreme Court decisions on the right to privacy." "This clearly is true." 138 So, which is it? Broader than the federal constitution or identical to it? In addition, said the Court, declaring a constitutional right to engage in oral or anal sex would "violate the fundamental principle of separation of powers." Then, without any explanation, the Court said, "There is no constitutional impediment to the legislature enacting [the sodomy statute]." 139 After giving a statutory history of the Louisiana sodomy law, the Court twisted the privacy amendment when it said that no

reasonable Louisiana citizen would consider that the result of voting to ratify a general constitutional guarantee of "liberty" or "privacy" would be to divest that citizen's elected legislators of the right to continue the specific statutory proscription against sodomy or any other criminal act. To the contrary, any reasonable citizen would believe that he or she thereby was retaining the liberty to make such determinations through elected legislators. There is no evidence that the people adopting the Louisiana Constitution at referendum intended to create a constitutional right to engage in oral or anal sex. [Emphasis added.] 140

In effect, the Court said that the public voted for a privacy amendment to protect the right of the legislature to regulate their private behavior.

In dissent, Chief Justice Pascal Calogero, continue a crusade of more than a quarter century on the Court, although his words are less passionate than in the past, perhaps reflecting a weariness. 141 Also dissenting was Justice Harry Lemmon, who criticized the majority for an "inadequate analysis" of the privacy issue 142 and for enforcing "a personal moral fiat." 143 Lemmon noted that the majority's opinion swept broadly enough to include married couples in its net. 144 Justice Bernette Johnson joined the majority solely because she believed that the acts prosecuted were non-consensual and non-private. 145

A motion for rehearing was denied by the Court by the same 5-2 vote. Justice Harry Lemmon wrote a dissent from the denial, noting the argument that the 1942 amendment to the sodomy law might actually have legalized oral sex, and that question had not been addressed by the Court. 146

Perhaps spurred by the breadth of the Smith decision, in 2001, the Louisiana House of Representatives defeated a repeal of the state's sodomy law only on a 46-46 tie vote. A month later, the state Senate approved an amendment to a sex offender registration bill that would have repealed the law. But, in conference committee, the chief sponsor of the registration bill convinced the committee to drop the consenting adults repeal. 147

Period Summary: It was after the Hardwick decision that most of the court cases attacking the Louisiana law were launched. Until 2000, the Louisiana Supreme Court avoided a head-on constitutional decision on the law because the cases presented to it all involved public sex or solicitation. In that year, the Court stepped into the broad issue of privacy and sullied itself with an opinion deserving censure. Nevertheless, the state legislature appears to be close to a statutory repeal.

Footnotes

1 2 Stat. 583, enacted Mar. 26, 1804.

2 Id. at 286, §11.

3 Id. at 287, §13.

4 Digest of the Penal Law of the State of Louisiana Analytically Arranged, (New Orleans:M.M. Robinson, 1841), page 142, Art. CCXXXVII, enacted May 4, 1805.

5 System of Penal Law, Prepared for the State of Louisiana; Comprising Codes of Offences and Punishments, of Procedure, of Prison Discipline, and of Evidence Applicable as Well to Civil as to Criminal Cases and a Book Containing Definitions of all the Technical Words Used in This System, (New Orleans:Benjamin Levy, 1824).

6 Id. at 4.

7 Id.

8 Id. at 5.

9 Id. at 6.

10 Id. at 85.

11 The Revised Statute Laws of the State of Louisiana from the Organization of the Territory to the Year 1869 Inclusive, (New Orleans:The Republican Office, 1870).

12 Id. at 194, §976.

13 28 La.Ann. 952, decided December 1876.

14 Id. at 953.

15 34 La.Ann. 87, decided January 1882.

16 Id. at 88.

17 The Mascot, Oct. 21, 1893, page 1. Reprinted in Jonathan Katz, Gay and Lesbian Almanac, (New York:Harper and Row, 1983), page 244.

18 Acts of the State of Louisiana 1896, page 101, Act 69, enacted July 9, 1896.

19 Id. at 102, §1.

20 Id.

21 28 So. 273, decided May 22, 1900.

22 Id. at 274.

23 Id.

24 Id. at 275.

25 Id.

26 Id. at 275-276.

27 53 So. 582, decided Nov. 14, 1910.

28 Id.

29 63 So. 180, decided June 30, 1913.

30 Id. at 181.

31 66 So. 963, decided Dec. 14, 1914.

32 Id.

33 Id. at 965.

34 77 So. 772, decided Jan. 3, 1918. Rehearing denied Feb. 7, 1918.

35 Id. at 774.

36 78 So. 933, decided Apr. 29, 1918. Rehearing denied May 27, 1918.

37 Louisiana Criminal Statutes Annotated 1943, (Indianapolis:Bobbs-Merrill, 1943), Act 43, enacted July 1942.

38 Id. §89.

39 Id.

40 Clarence J. Morrow, "The Louisiana Criminal Code of 1942—Opportunities Lost and Challenges Yet Unanswered," 17 Tulane L.Rev. 1 (September 1942).

41 Id. at 14, n.18.

42 Id.

43 97 So.2d 396, decided Feb. 25, 1957. Rehearing granted June 28, 1957. Second rehearing denied Oct. 8, 1957.

44 Id. at 397.

45 Id. at 399.

46 Id. at 401-402.

47 112 So.2d 687, decided June 1, 1959.

48 Id. at 690.

49 Acts of the State of Louisiana 1962, page 121, Act 60, enacted June 20, 1962.

50 Id. §1.

51 Id.

52 163 So.2d 72, decided Mar. 30, 1964. Rehearing denied May 4, 1964. Appeal dismissed for want of a substantial federal question, 380 U.S. 126, decided Mar. 1, 1965. Rehearing denied, 380 U.S. 989, decided Apr. 26, 1965.

53 163 So.2d, at 74.

54 Id. at 72.

55 183 So.2d 341, decided Feb. 23, 1966.

56 Id. at 343.

57 193 So.2d 243, decided Nov. 7, 1966. Rehearing denied Jan. 16, 1967.

58 Id. at 244.

59 Id.

60 Louisiana Constitution of 1974, Art. I, §5, adopted by popular vote, Apr. 20, 1974.

61 310 So.2d 89, decided Feb. 24, 1975. Rehearing denied Mar. 31, 1975.

62 Id. at 92.

63 Id.

64 Id.

65 Id.

66 315 So.2d 749, decided June 23, 1975.

67 Id. at 754.

68 Id.

69 Acts of the State of Louisiana 1975, Vol. II, page 1307, Act 612, enacted July 17, 1975.

70 Id. at 1308, §41.1.

71 Id.

72 Id. §41.

73 Id. §42.

74 Coker v. Georgia, 433 U.S. 584 (1977).

75 Acts of the State of Louisiana 1975, at 1308, §42.

76 Id. at 1309, §89.

77 337 So.2d 192, decided Sep. 13, 1976.

78 Id. at 196.

79 340 So.2d 1348, decided Dec. 13, 1976.

80 Id. at 1349.

81 354 So.2d 1007, decided Jan. 30, 1978.

82 Id. at 1009-1011.

83 Acts of the State of Louisiana 1982, Vol. II, page 1636, Act 703, enacted Aug. 2, 1982.

84 Id. at 1637, §1(b).

85 449 So.2d 118, decided Apr. 6, 1984.

86 Id. at 119.

87 450 So.2d 955, decided May 25, 1984.

88 449 So.2d 154, decided Apr. 6, 1984.

89 Id. at 156.

90 Id.

91 Id.

92 482 So.2d 820, decided Jan. 15, 1986. Rehearing denied Feb. 26, 1986.

93 Id. at 822.

94 Id.

95 Id.

96 Id. at 823.

97 488 So.2d 1018, decided May 30, 1986.

98 450 So.2d 724, decided May 10, 1984.

99 Id. at 725.

100 Id.

101 Id.

102 Id. at 726.

103 Id.

104 455 So.2d 1267, decided Aug. 31, 1984.

105 Id. at 1269.

106 Acts of the State of Louisiana 1985, Act 928, enacted July 23, 1985.

107 Id. §106.1(A).

108 477 So.2d 80, decided Oct. 21, 1985.

109 Id. at 82.

110 Id. at 83.

111 487 So.2d 639, decided Apr. 11, 1986.

112 Id. at 640.

113 500 So.2d 374, decided Jan. 12, 1987.

114 Id. at 376-377.

115 Id. at 377.

116 Id. at 377-378.

117 Id. at 378.

118 Id. at 379.

119 504 So.2d 1100, decided Mar. 16, 1987.

120 Id. at 1101.

121 Id. at 1102.

122 513 So.2d 386, decided Sep. 15, 1987. Writ denied by the Louisiana Supreme Court, 516 So.2d 366, decided Jan. 8, 1988. Chief Justice John Dixon, a consistent foe of the sodomy law, voted to hear the case.

123 513 So.2d, at 387.

124 Id.

125 Acts of the State of Louisiana 1992, Act 388, effective June 18, 1992.

126 Id. §1(E).

127 633 So.2d 701, decided Dec. 29, 1993. Certiorari denied by Louisiana Supreme Court June 3, 1994.

128 Id. at 703.

129 633 So.2d 142, decided Feb. 28, 1994. Rehearing denied Apr. 6, 1994.

130 Id. at 145.

131 Id. at 147.

132 656 So.2d 973, decided May 22, 1995. Rehearing denied June 22, 1995.

133 Id. at 981-983.

134 Lesbian/Gay Law Notes, Summer 1994, 77:3.

135 640 So.2d 1319, decided June 23, 1994.

136 766 So.2d 501, decided July 6, 2000. Rehearing denied Aug. 31, 2000.

137 Id. at 505.

138 Id.

139 Id. at 506-507.

140 Id. at 508.

141 Id. at 517-519.

142 Id. at 519.

143 Id. at 520.

144 Id. at 520.

145 Id. at 520-521.

146 Id. at 521.

147 http://www.sodomylaws.org/usa/louisiana/lanews26.htm and http://www.sodomylaws.org/usa/louisiana/lanews31.htm, respectively.

Divider

Louisiana

  • Statute: 14.89, Crime Against Nature. Unconstitutional under Lawrence v. Texas.
  • Penalty: 5 years/$2000
  • Classification: Felony
  • Restrictions: None

Declared constitutional by the Louisiana Supreme Court in State of Louisiana v. Mitchell Smith on July 6, 2000. A March 19, 2001 ruling finds the law to be unconstitutional and the case is automatically being returned to the Louisiana Supreme Court.

A legislative repeal remains very promising, despite a loss in the House, a plurality of Representatives voted in favor of repeal in May 2001, as did a clear majority of the Senate in April 2001.

Statute

http://www.legis.state.la.us/tsrs/rs/14/rs_14_89.htm

R.S. 14:89

A. Crime against nature is:

(1) The unnatural carnal copulation by a human being with another of the same or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:42, 14:42.1 or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.

(2) The solicitation by a human being of another with intent to engage in any unnatural carnal copulation for compensation.

B. Whoever violates the provisions of this Section shall be fined for not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.

Amended by Acts 1975, No. 612,§ 1; Acts 1982, No. 703,§ 1.

R.S. 14:41, 14:42, 14:42.1 and 14:43 and deal with rape and sexual battery.

History

1824 A proposed criminal code for Louisiana by jurist Edward Livingston would have repealed the state’s sodomy law, which would have been by the far the earliest decriminalization in U.S. history. The legislature does not accept the proposal.
1882 The Louisiana Supreme Court is the first in the nation to reject a challenge to a sodomy law as too vague to be constitutional.
1896 Louisiana outlaws oral sex and the law to do so is the 69th to pass the legislature of the year, so that the anti-oral sex law is known officially as Act 69.
1900 The most amusing courtroom testimony to be reprinted in a sodomy case appears in a case decided by the Louisiana Supreme Court with: The defendant “s____d the ____ of my son Ned until he has lost his mind.”
1942 The earliest known law review criticism of a sodomy law appears in the Tulane Law Review. The sodomy law was one of several laws in a new code that deserved criticism, according to the article, but “space does not permit their consideration.”
1962 Louisiana becomes the first state to bifurcate its sodomy law to include an “aggravated crime against nature” crime.
1982 Louisiana becomes the first state to make solicitation for compensation of an act of sodomy to be a completed act of sodomy.
2000 The Louisiana Supreme Court, upholding the state’s sodomy law against a privacy challenge, states that what the voters actually was saying in adopting a privacy amendment to the state constitution is that they wanted to retain the right of the legislature to make decisions on privacy for them.

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