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

© Copyright, George Painter 1991-2001 Connecticut "[A] leud, prophane, corrupting, incorridgable pson, a notorious lyar, besides that sodomitticall attempt so proved, and other filthy defying wayes, tending to the very destruction of mankinde[.]" The Colonial Period, 1607-1776 Connecticuts charter granted by King Charles I in 16381 provided that laws adopted by the Connecticut authorities could not be inconsistent with those of England.2 As a result, the common law of England was adopted informally upon Connecticuts organization in 1639.3 This recognized sodomy as a capital offense for males only. A sodomy statute was enacted in 16424 paraphrasing Leviticus 20:13. "If any man lyeth with mankind as hee lyeth with woman, both of them have committed abomination, they both shall surely be put to death" and citing Leviticus as its authority.5 Apparently under this statute, one William Plaine of Guilford was executed in 1646 for masturbating a number of young men in the town.6 He also had committed sodomy in England twice, although it is unclear if Plaines execution was only for the masturbatory acts or for those as well as the sodomy in England. In either case, it is questionable whether the execution was lawful. The statute did not contemplate masturbation and the Connecticut courts would have no jurisdiction over offenses committed in England. In a case from 1653, six young males in New Haven were sentenced to a public flogging for "much wickedness in a filthy corrupting way" with each other.7 Their acts were "of such a filthy nature as is not fit to be made known in a public way[.]"8 Again, it is unclear that there was a statute authorizing such punishment for the unspecified acts. In 1655, a servant named John Knight was executed for sodomy with both males and females. The sexual activity obviously was consensual, and Knight apparently was very popular with both young males and young females in the New Haven colony, since they gave themselves willingly to him, but the act for which he was condemned was sodomy with the 14-year-old son of his master. The trial court found Knight to be a leud, prophane, corrupting, incorridgable pson, a notorious lyar, besides that sodomitticall attempt so proved, and other filthy defying wayes, tending to the very destruction of mankinde, and this gone on in time after time, so that there seemes to be no end of his filthyness nor no meanes will reclaime him, whether publique punishment nor private warnings, wherefore the court cannot thinke him fitt to live amonge men, and therefore doe by way of sentence order, that John Knight be put to death by hanging upon the gallowes.9 The town of New Haven enacted a statute in 165610 authorizing a penalty of death for sodomy as well as for any woman who shall "change the natural use, into that which is against nature."11 No other law was enacted against female-female conduct in the colonial era, and it is unknown if there ever was a prosecution under this statute. The law remained in force until New Haven was annexed by Connecticut in 1665. A new statute enacted in 167212 for the first time exempted victims of sexual assault and partners under 15 from the death penalty. A sodomy case in 1677 revealed the ambivalence of colonial courts to enforce the death penalty that continued to be prescribed by statute. Nicholas Sension, a prominent resident of the town of Windsor, was tried under the statute of 1672 for a series of acts of sodomy and attempts spanning some 30 years.13 The testimony against Sension, a married man, was given by 15 different men who either had witnessed Sensions attempts or acts, or who had been solicited by him. Sension had been confronted privately by individuals about his behavior a decade before his trial, and was sentenced in 1677 only to good behavior for the rest of his life. Period Summary: What became Connecticut showed a great deal of harshness toward same-sex eroticism. There are two documented death sentences carried out for consensual sodomy, the New Haven Colony enacted the only known colonial law explicitly covering sexual relations between women, and six young males were flogged publicly for unspecified erotic activity among them. It was not until later in the 17th century that any amelioration of the law occurred. More than three decades after the colonys first laws were enacted, victims of sexual assaults and those under age 15 were exempted from the death penalty for sodomy. A few years later, a sodomy trial ended without a death sentence being handed down, even though that penalty remained authorized by statute. The Post-Revolution Period, 1776-1873 In 1776, the Connecticut legislature decided that all existing laws would continue in force, despite independence from England.14 A Connecticut court decided in 1786, in Wilford et al. v. Grant,15 that courts were to give "great deference" to the English common law, calling it "a general system of improved reason." Rules of the common law that were not carried to the Americas with the first English colonists should be adopted only if not "contrary to reason" or "unadapted to our local circumstances."16 In 1811, in Fowler v. State,17 the Connecticut Supreme Court unanimously decided, in dictum, that the states law against "lascivious carriage and behavior" applied only to conduct between people of the opposite sex,18 a decision that would come back to haunt the state a century-and-a-half later. In 1821, the legislature adopted a new criminal code19 that made three major changes to the sodomy law.20 First, the death penalty was replaced by a mandatory sentence of life imprisonment.21 Second, only males could be victims of an act of sodomy, but the perpetrator could be of either sex.22 Third, the wording was changed to read that "every person who shall have carnal knowledge of any man, against the order of nature" could be prosecuted.23 Although this raised the question of whether a boy could be a victim, since he was not a "man," it more clearly created a much broader law that allowed the prosecution of fellatio as well as anal penetration. Thus, Connecticut was, for nearly a half-century, the only state in the nation to include fellatio as a criminal offense. Period Summary: Although Connecticut had only one change to its sodomy law and no published sodomy cases during this period, its solitary change made it stand out from the rest of the country. The published case on "lascivious carriage and behavior" limited the scope of the relevant law to heterosexual activity, and the Connecticut legislature never overturned that decision. More important was the wording of the new sodomy law of 1821. It abolished the death penalty for the act, but added a reference to "carnal knowledge" of a man, making it possible that this law recognized fellatio. If so, it was, by almost a half-century, the first state to do so. There is no case law on the subject, and it is unknown if fellatio was prosecuted under this law. The wording adopted in this law also limited the victim of an act of sodomy to a male, but allowed its perpetrator to be either male or female, another unique feature that remained throughout this period and beyond it. The Victorian Morality Period, 1873-1948 The only reported sodomy case in the state, Mascolo v. Montesanto,24 was decided by the Connecticut Supreme Court in 1891. This case answered one of the questions posed above, namely, that boys could be victims of sodomy. The case actually was not a criminal prosecution, but an action for damages for an act of sodomy between two juvenile males as prosecuted by their fathers. The father of the defendant had promised to pay civil damages in exchange for his son not being criminally prosecuted.25 The boys involved were Achille Montesanto, 15, and Angelo Mascolo, 12. Montesanto "had committed buggery upon and with, said Angelo Mascolo, and that in the commission of the assault he had greatly injured him, and communicated a loathsome disease to him, whereby he became sick and disabled[.]"26 Despite the civil suit, officials notified Montesantos father that his son "might be liable to a criminal prosecution for the offense" and that the settlement of the civil case would not immunize the young Montesanto from criminal proceedings.27 Whether or not he was prosecuted later is not known. Connecticut, which replaced its death sentence for sodomy with a compulsory life sentence, reduced the penalty again, but retained a severe penalty. In 1909, a new statute28 was adopted that reduced the maximum penalty from life to 30 years in prison.29 The unique wording that only males could be victims was retained. In 1913, following national publicity of an Oregon sex scandal, investigations were launched elsewhere in the country. In the city of Mystic, seven of the "most prominent citizens" were arrested on charges of sex between males.30 A broadly worded statute of 191931 outlawed "lewdness," which was undefined under the law. This new prohibition later would be of significance. Period Summary: During this period, Connecticut showed little official activity, either legislative or judicial, on the issue of sodomy, something at variance with most of the rest of the nation. The compulsory life sentence for sodomy was reduced, but the unique wording of the sodomy law was not. The sole published sodomy case in the state in actuality was a civil one, dealing with recovery of damages by one father for the seduction of his son by another mans son. The 1919 statute outlawing "lewdness" may have made it possible to prosecute acts of cunnilingus or anal sodomy with a female partner, neither of which was allowable under the sodomy law. There is no case law to prove that, however. The Kinsey Period, 1948-1986 In 1956, a survey of Connecticut legislators by researchers at Yale revealed that 57.5% of them opposed lowering the 30-year maximum sentence for sodomy.32 Connecticut enacted a psychopathic offender law33 in 1957. The law applied to anyone convicted of a sex crime under three circumstances, including the showing of a "disparity of age between an adult and a minor," with the disparity unspecified;34 or if the sexual act was "of a compulsive or repetitive nature."35 This last section was broad enough to cover any Gay man or Lesbian who enjoyed more than a single act of sodomy. A case of "homosexual panic" was the substance of State v. Fenster,36 from 1962. Max Fenster met a sailor who caught his eye while in a bar. The sailor agreed to go for a ride with him, but when Fenster exposed himself in the car and made a sexual suggestion, the sailor struck the defendant a severe blow in the right temple, causing him serious injury and laceration by severe bleeding. The sailor then forced the defendant out of the car and drove away, leaving the defendant in the deserted area where the automobile had been parked. The defendant returned to town in a bleeding condition.37 Fenster was accused of "lascivious carriage or behavior" as well as making a false report to the police, since he omitted his cruising in his report.38 Fenster claimed that the statute under which he was committed applied only to heterosexual behavior. The appellate court gave a detailed review of the legislative history of the law and quoted from 1811 Fowler case that referred to the law as covering acts "between different sexes."39 Reluctantly, the court unanimously decided that the law did cover only heterosexual activity, and remanded that portion of the case to the trial court for an adjudication of not guilty. The false report conviction was upheld, however.40 On appeal to the Connecticut Supreme Court,41 Fenster won another unanimous decision, this time overturning his false report conviction. The brief, unsigned opinion of the court noted that the state "has failed to defend with proper diligence against the appeal of the defendant" and ordered the second charge dismissed.42 Nothing in the opinion suggests that the unnamed sailor ever was prosecuted for his assault and theft. In 1964, in State v. Trombley,43 an appellate court upheld the "lewdness" conviction of a Gay man for soliciting an undercover police officer. Ralph Trombley had been sitting in a car in New Haven and was spotted by the officer who was doing vice duty. The patrol was authorized because the police received information that homosexuals were soliciting in the neighborhood of the two streets mentioned and on nearby streets.44 Trombley told the officer that he was waiting for a friend "to have an unnatural act performed," then asked the officer if he would be willing to perform the unstated act.45 He then was arrested. Trombley claimed that his verbalization was not "lewdness," since there was no overt act. However, the court noted that the law including invitations for lewdness46 and rejected an entrapment defense47 in upholding the conviction. At a late 1967 concert, Jim Morrison, lead singer of The Doors, was arrested in New Haven after he recounted to a concert audience what transpired before the show began when he was maced by a police officer. Morrison had grabbed his crotch and told the officer to "eat it."48 After his arrest, he was called a "long haired pretty boy" and was charged with "indecent or immoral exhibition."49 The charge was dropped after considerable negative publicity to the city.50 In a 1968 case, State v. Pallman,51 an appellate court decided that the intentional exposure of a genital organ to one person in that persons home took place in a "public place" under the states indecent exposure statute.52 A legislative commission reports of 1967 and 1968 recommended repeal of the sodomy law because it "deterred deviates from seeking psychiatric help" and it "was enforced only by capricious selection, which encourages blackmail." The reports were considered certain to draw controversy when presented to the 1969 session of the legislature.53 Controversial or not, the comprehensive criminal code revision enacted in 196954 abrogated common-law crimes55 and repealed the sodomy law with the age of consent set at 16.56 The new code included a public indecency law that covered "a lewd fondling or caress of the body of another person" in any public place, which was defined as "any place where the conduct may reasonably be expected to be viewed by others."57 The conduct had only to be "viewed" by others. It did not have to alarm or offend them. So, a caress in a Gay bar would be criminal, even though no one in the bar was likely to complain. In 1970, the Commissioner of Motor Vehicles, John Tynan, denied a drivers license to David Follett, who was Gay, and who had been arrested on a sex charge.58 Tynan denied the license because Follett is an admitted homosexual and that his homosexuality makes him an improper person to hold an operators license.59 This action was upheld by Connecticut Attorney General Robert Killian.60 Follett later committed suicide.61 A statute to revise sexual assault laws passed in 1975,62 lowering the age of consent from 16 to 15.63 Period Summary: A survey of legislators nearly a decade after the first Kinsey report showed strong resistance to amelioration of the penalty for consensual sodomy, most likely reflecting actual or perceived constituent opposition. The "lewdness" statute was used to prosecute a man for requesting a police officer to perform an unspecified "unnatural act." This shows that, at least by the 1960s, the lewdness law was used to prosecute a broad range of behavior. Despite its long history of prosecution of sodomy, Connecticut became only the second state in the nation to repeal its sodomy law, doing so in 1969 just at the time of the Stonewall Rebellion. The Post-Hardwick Period, 1986-Present In 1989, in Grunberg et al. v. Town of East Hartford, Connecticut et al.,64 a federal judge upheld a city ordinance requiring the removal of doors from viewing booths in adult book stores. That decision was upheld on appeal.65 The public indecency provision remains on the books.66 Period Summary: Connecticut is among the unbroken string of states with court cases upholding the right of government to require viewing booths in adult book stores to be doorless. 1 The First Laws of the State of Connecticut, (Wilmington DE:Michael Glazier, Inc., 1982), page 6. The charter was signed on Apr. 23, 1638. 2 Id. 3 The Public Statute Laws of the State of Connecticut as Revised and Enacted by the General Assembly in May 1821, (Hartford:S.G. Goodrich & Huntington & Hopkins, 1821), preface. The same preface curiously states that the first settlers "were distinguished by a sincere and ardent attachment to the principles of civil and religious liberty" and that the state was founded upon "the principles of freedom." These statements certainly are ironic in light of the laws that Connecticut passed dealing with sodomy. 4 The Blue Laws of Connecticut: A Collection of the Earliest Statutes and Judicial Proceedings of That Colony; Being an Exhibition of the Rigorous Morals and Legislation of the Puritans, (Philadelphia:Duane Rulison, 1861), page 68, enacted Dec. 1, 1642. 5 Id. §7. 6 James Savage, ed., John Winthrop, The History of New England from 1630 to 1649, Vol. 2, (Boston:Little, Brown, 1853), page 324. 7 Franklin B. Dexter, ed., New Haven Town Records 1649-1684, (New Haven:New Haven Historical Society, 1917), pages 178-179. 8 Id. 9 Bradley Chapin, Criminal Justice in Colonial America, 1606-1660, (Athens GA:University of Georgia Press, 1983), pages 127-128. 10 J. Hammond Trumbull, ed., The True-Blue Laws of Connecticut and New Haven, (Hartford:American Publishing Co., 1876), pages 198-201, enacted Mar. 1, 1656. 11 Id. 12 Acts and Laws of Connecticut 1796, page 182. This was a recompilation of earlier statutes, but the 1672 law did not change substantively for more than a century-and-a-half, so its publication in 1796 was current. 13 Crimes and Misdemeanors, Vol. 1, Numbers 87-103, Manuscript Division, State Library, Hartford. 14 The First Laws of the State of Connecticut, (Wilmington DE:Michael Glazier, Inc., 1982), page v-vi. 15 Kirbys Rep. (1 Conn.) 114, decided during August Term 1786. 16 Id. at 117. 17 5 Day 81, decided June 1811. 18 Id. at 85. 19 The Public Statute Laws, supra, at 151, Title 22, enacted during the May 1821 session of the legislature. 20 Id. at 163, §60. 21 Id. 22 Id. 23 Id. 24 23 A. 714, decided June 19, 1891. 25 Id. 26 Id. at 715. 27 Id. 28 Connecticut Public Acts 1909, page 963, ch. 50, enacted May 13, 1909. 29 Id. 30 Portland News, Jan. 3, 1913, page 1. 31 Connecticut Public Acts 1919, page 2729, ch. 77, enacted Apr. 2, 1919. 32 Karl M. Bowman, and Bernice Engel, "A Psychiatric Evaluation of Laws of Homosexuality," 29 Temple L.Q. 273, at 313. 33 Connecticut Public Acts 1957, page 1025, Public Act No. 650, enacted June 19, 1957. 34 Id. at 1027, §7(a)(2). 35 Id. §(7)(a)(3). 36 199 A.2d 177, decided June 4, 1962. Cert. granted, 204 A.2d 935, decided Sep. 27, 1962. 37 199 A.2d, at 178. 38 Id. 39 Id. at 179-180. 40 Id. at 182. 41 197 A.2d 944, decided Dec. 17, 1963. In this case, the decision of the Supreme Court, coming one and one-half years after that of the appellate court, nevertheless was reported officially first. 42 197 A.2d, at 944. 43 206 A.2d 482, decided Sep. 15, 1964. 44 Id. at 483. 45 Id. 46 Id. at 484. 47 Id. at 485. 48 James Riordan and Jerry Prochnicky, Break on Through: The Life and Death of Jim Morrison, (New York:Morrow, 1991), page 202. 49 Id. at 206. 50 Id. at 209. 51 248 A.2d 589, decided Sep. 27, 1968. 52 Id. at 592. 53 New York Times, May 28, 1967, 49:2; June 4, 1968, 22:1. 54 Connecticut Public Acts 1969, page 1554, Public Act No. 828, enacted July 8, 1969, effective Oct. 1, 1971. 55 Id. at 1562, §24. 56 Id. See §71-§81, pages 1581-1583 for the new sex offenses. 57 Id. §188. 58 The Advocate, Jan. 6-19, 1971, page 1. 59 Id. 60 Id. No record of this action apparently exists in the Connecticut Attorney Generals office. (Correspondence from Cornelius F. Tuohy, Assistant Attorney General, Dec. 23, 1991). 61 Connecticut death certificate issued Nov. 16, 1976. 62 Connecticut Public Acts 1975, page 982, Public Act No. 75-619, enacted July 7, 1975, effective Oct. 1, 1975. 63 Id. at 983, Sec. 4 (a). 64 736 F.Supp. 430, decided Sep. 26, 1989. 65 Singer et al. v. Town of East Hartford, Connecticut et al., 901 F.2d 297, decided Apr. 25, 1990. 66 Connecticut Statutes Annotated, §53a-186. [Home] [Connecticut] [History] [Sensibility of Our Forefathers]