Adam Polaski

18 States Still Have Sodomy Laws on the Books

Filed By Adam Polaski | August 08, 2011 5:45 PM | comments

Filed in: Living, Marriage Equality
Tags: anal sex, crime against nature, gay sex, Lawrence v. Texas, LGBT, sodomy laws

Gavel.jpgIt's crazy to think that it hasn't even been ten years since the U.S. Supreme Court ruled unconstitutional the "sodomy laws" that banned anal sex between consenting adults. The law, which resulted in prison sentences or fines for "violators," operated on a state-by-state basis, and although some states began eliminating the policies in 1962, the federal government didn't weigh in until 2003 in the Lawrence v. Texas case.

But despite the Lawrence ruling, 18 states have not yet revised their policies - also referred to as "crime against nature" laws - to reflect the change and remove the unconstitutional laws. Equality Matters has an incredible, in-depth report on the dangers of keeping these laws on the books.

The punishment for violating the "crime against nature" law is different for each state. Alabama, Florida, Kansas, Minnesota, Utah all legislate a maximum prison sentence of one year or less, Texas sticks with a $500 fine, and George, Louisiana, Maryland, Massachusetts, Minnesota, Michigan, Mississippi, Montana, Oklahoma, and Virginia all call for more than 1 year. Massachusetts and Georgia "win" the most ridiculous punishment award with maximum prison sentences of 20 years. Some states call sodomy a felony, others keep it as a misdemeanor, but despite the differences, these 18 states all have one thing in common: They all have the potential to criminalize consensual sex between adults and continue to villainize gay sex.

You really have to check out the Equality Matters report, which breaks down the history of the laws, their most recent enforcement, and the fact that they confuse law enforcement officers and permit, reinforce, or even encourage some of their homophobic perspectives.

Equality Matters' Carlos Maza explains:

It is clear that the promise of the Supreme Court's decision in Lawrence v. Texas remains unfulfilled. Despite significant progress made by the LGBT community in recent years, many LGBT Americans continue to live in the shadow of their state's outdated sodomy laws. These laws are consistently misused and manipulated in order to single out and punish sexual minorities, often in ways that fly in the face of the Lawrence decision.

Even in states where these statutes are never enforced, anti-LGBT animosity is fanned by government recognition that LGBT people are to be viewed as criminals in the eyes of the law. This animosity helps create the conditions for anti-LGBT hate crimes as well as disproportionate rates of suicide among non-heterosexual youth.

As the American public moves towards greater respect for and tolerance towards LGBT people, the issue of still-standing state sodomy laws should not be forgotten. These statutes continue to represent a major obstacle on the path to full LGBT equality. Their repeal should be just as much of a priority for the LGBT community as is the struggle for marriage equality.

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How did you find this information? I tried to find it on various Kansas government websites, but I was unsuccessful. Also, it is interesting to note that Kansas classifies their sodomy laws as being punishable as a "Class B Misdemeanor," which is the same as child molestation in the eyes of the state of Kansas.

From the Equality Matters report, we see that the laws, even if they do only include a minor, can be distorted to treat LGBT people differently than straight people for committing the same crime:

This exception can play a tremendous role in determining the fate of LGBT teens engaging in same-sex sexual activity. In State v. Limon (2004), a Kansas state appellate court applied the exception in order to prosecute an 18-year-old man who, shortly after turning 18, engaged in consensual oral sex with a 14-year-old boy (both of them lived in the same state mental health facility). Wardenski explained how the use of the “minor exception” dramatically increased the 18-year-old’s punishment:

If the younger boy had been female, Kansas's so-called "Romeo and Juliet" law would have applied, subjecting the defendant to a sentence of just thirteen to fifteen months. The Romeo and Juliet statute provided that in statutory rape cases involving voluntary sexual relations between two "members of the opposite sex" where the defendant is nineteen or under and less than four years older than the other youth, the defendant would face significantly shorter prison terms and more lenient attendant penalties, such as reduced post-release supervision periods and sex offender registration requirements. Because the defendant, Matthew Limon, was of the same sex as the younger boy, however, the Romeo and Juliet law's shortened presumptive sentence did not apply, subjecting Limon instead to the severely long prison sentence and to sex offender registration requirements. [Journal of Criminal Law and Criminology, Vol. 95 No. 4, 6/22/05, via Nexis, internal citations removed for clarity]

Sodomy laws establish a basis upon which state governments can punish LGBT people more severely than heterosexuals, even when the crimes they commit are the same.

This is a bit dishonest. For example, I looked up the statute your referred to in Minnesota. It's only applicable when it is the rape of a minor. I'll agree that it shouldn't be there, but this is framing it as something typical LGBT lovers have to be concerned about.

Here's the specific Minnesota law: https://www.revisor.mn.gov/statutes/?id=609.293

And you're right - it's applicable when it is the rape of a minor. But, to quote Equality Matters again, "Sodomy laws establish a basis upon which state governments can punish LGBT people more severely than heterosexuals, evne when the crimes they commit are the same."

Read the original article. There are cases where gays are more severely punished for consensual sex than heterosexuals. Specifically when minors are involved, but the act was consensual.

Louisiana is also notorious for punishing prostitutes under "crimes against nature" laws and requiring them to register as sex offender. Completely ridiculous and counter productive.

I think you're not only making a mountain out of a molehill, but implying special animus against GLBT people where there is in fact none. It is entirely routine and normal for states not to officially revoke laws which have been declared unconstitutional by their state Supreme Courts or the federal Supreme Court. Such laws are automatically null and void, and the US has never had a tradition of removing null laws from the books.

You're also conflating this non-issue with an actual issue. Cases like State v. Limon have nothing to do with sodomy laws, but are based solely on many states having gender-specific language in their "kids will be kids" exception clauses in their statutory rape laws. Repealing sodomy laws does nothing whatsoever to fix this -- what is needed is gender-neutral revision of statutory rape exemptions.

Bluntly, you can complain about vanity issues like null law repeals after we have fully inclusive equal rights protections for LGBTI people all around the world. Until then, we need to focus our attention and advocacy efforts on things that actually have real effects on real people.

This was my understanding as well. Repealing sodomy laws would be a nice, but ultimately meaningless gesture. Let's focus on real issues.
-Jeremy

The more I read the statement from Equality Matters, the more angry I get. So now the LGBT priorities are supposed to be "mawwiage mawwiage mawwiage" and purely superficial sodomy law repeals. Conspicuously absent, trans rights of any sort.

The Louisiana "crimes against nature" law targets trans people at a disproportionate rate, as they often resort to sex work. This is hardly the first article to point that out.

I think you need to re-read the article. There's an example of where one couple is arrested, charged, and held until the D.A. decides to drop the charges, citing the Lawrence decision. Are you saying there's no reason to repeal that law? That it's OK for police to be able to arrest and detain you on a law that won't go to trial because they know it's not constitutional?

This isn't just about repeal either. Take Texas, for example. There have been three separate attempts to repeal their state sodomy law. It was the exact one struck down in Lawrence v. Texas. Yet each attempt was blocked or voted down by legislators! They're keeping a law, that's been struck down as unconstitutional at the federal level, by the Supreme Court, on their books, on purpose.

I'm glad you're all about Trans rights. But did it ever occur to you that this could affect trans people too? Since technically in Michigan you can't get your gender changed on your birth certificate, if you're a M2F that then has sex with another male, technically their "Crimes Against Nature" statute kicks in. So this *does* affect the trans community.

It's a shame you're so busy railing against how "non-inclusive" the LGB community is that you can't see how things affecting them could also affect the T community. But then I'm sure you'll keep us all in mind once you transition and cut ties with everyone that's LGB to "start your new life", right? Because the Trans community is so well known for remaining staunch LBGT rights activists after they transition...

Finding this out was definetly shocking. Hard to believe.

I agree unconstitutional laws should be removed from the books. However, most states do not do this. Most of the Jim Crow laws were not removed until recent years, if at all. Remember Massachusetts did not remove the infamous 1913 anti miscegenation law George Rommey used to prevent same-sex marriage until he left office. Illinois removed its sodomy law in 1962, in a complete revision of its criminal code. Unfortunately, until this day Illinois has not been in the forefront for gay and marriage equality.

You just sited the exact reason laws like this *should* be removed from the books.

The issue here isn't that people just forgot to remove the laws. The issue is that even when motions are made to repeal such laws, these laws are being defended, and the repeals are failing! What message does that send? If a state refuses to repeal anti miscegenation laws, after a motion is made to do so, what does that say about mixed-race couples? Same thing.

Not to mention, just one small change in the winds, or one case taken to the federal level again could just as easily reverse the old decision. It's happened in the past... Better to repeal these laws now, when the pendulum is on our side.