NCJ Number
196265
Journal
Journal of Contemporary Criminal Justice Volume: 18 Issue: 3 Dated: August 2002 Pages: 279-301
Date Published
August 2002
Length
23 pages
Annotation
This article traces the development of sodomy laws and the history of their piecemeal invalidation in the United States and then presents several arguments for the decriminalization of sodomy laws still in existence, focusing on constitutional law and the inapplicability of the major philosophical justifications for criminal punishment.
Abstract
Oral and anal intercourse, subsumed under the general term "sodomy," have been proscribed by either civil or ecclesiastical laws for centuries. As society became more open to sexuality in general through the 1960's and 1970's, a number of States altered their sodomy statutes so heterosexual acts of sodomy would be beyond the reach of the criminal law, officially making sodomy statutes apply only to acts of same-sex sodomy. In 1961 every U.S. State had a criminal sodomy law. Since then, however, many States have decriminalized sodomy through legislative repeal or through State court judicial action. Sodomy laws are the modern-day "Jim Crow" laws, as they reinforce the alleged superiority of heterosexuality over homosexuality and bisexuality; however, in 1986, the U.S. Supreme Court issued a direct attack on the privacy arguments against sodomy statutes in Bowers v. Hardwick (1986). The Court explicitly ruled on the constitutionality of sodomy statutes, holding that the right of privacy does not protect consensual sexual acts of sodomy between homosexuals. Even if sodomy laws are only rarely enforced, which is often used as an argument for retaining the laws, the continued proscription of same-sex sexual relations under the criminal laws of any U.S. jurisdiction has serious consequences. The mere existence of archaic sodomy laws continues "a threat of arbitrary, pointless, and painful prosecutions" for gay, lesbian, and bisexual people in the United States (Seavey, 1990). U.S. courts and legislators must take action to bring the criminal law up to date with societal concepts on private, consensual sexual activity. 1 table and 92 references