Sodomy Law History

Prior to the early 1950's, most states had laws which criminalized consensual sodomy between heterosexuals and homosexuals. In the mid 1950's, the American Law Institute (ALI) developed a "Model Penal Code" to update and unify American criminal law. In so doing, the code decriminalized sexual behavior, including homosexual conduct, between consenting adults in private.

The Model Code concluded that criminal law cannot encompass all behavior that the average citizen may regard as immoral or deviate. It therefore stated that society and the law should give all consenting adults freedom of choice and action in matters of private morality.

In 1961, Illinois became the first state to repeal its sodomy law; it did so by adopting the Model Penal Code. Connecticut followed in '71. By the mid 90s, thirty states had repealed their sodomy laws (or they have been struck down by state courts).

 

In the late 1970's, a countertrend began, in which any states decided to "specify" instead of repeal their sodomy laws. Since 1973, eight states had amended their laws to specify that oral or anal sex is prohibited ONLY between persons of the same sex and not between opposite-sex partners.

 

The trend to single out homosexual acts as crimes began around the same time as two very critical events: The American Psychiatric Association removed homosexuality from its list of mental diseases; and The U.S. Civil Service Commission forbade supervisors from denying people federal government jobs based solely on homosexuality.

 

The Kansas sodomy law was written in 1855 (when Kansas was still a territory), but was revised in 1983 to exclude heterosexual activity.

 

Statute

21-3505 Criminal sodomy

(a) Criminal sodomy is:

(1) Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal;

(2) sodomy with a child who is 14 or more years of age but less than 16 years of age; or

(3) causing a child 14 or more years of age but less than 16 years of age to engage in sodomy with any person or animal.

(b) It shall be a defense to a prosecution of criminal sodomy as provided in subsection (a)(2) that the child was married to the accused at the time of the offense.

(c) Criminal sodomy as provided in subsection (a)(1) is a class B nonperson misdemeanor. Criminal sodomy as provided in subsections (a)(2) and (a)(3) is a severity level 3, person felony.

 

1969  In a comprehensive criminal code revision, Kansas becomes the first state in the nation to make its consensual sodomy law applicable only to people of the same sex.

 

1983  Kansas becomes the first state to amend its incest law specifically to make same-sex incest a crime. It also amends its law to specify that oral or anal sex is prohibited ONLY between persons of the same sex.

 

1989  The Kansas Supreme Court interprets the state’s sodomy law as not criminalizing cunnilingus. The Kansas legislature acts swiftly to “correct” the oversight, but accidentally includes heterosexual cunnilingus. Then they “correct” that error by rewording the law to re-legalize heterosexual cunnilingus.

More reading:

Sodomy Laws in Kansas:  http://www.sodomylaws.org/usa/kansas/

Why sodomy laws matter: http://www.aclu.org/getequal/whymatter.html

 

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