Wednesday, September 16, 2009

More Sodomy Laws

More Sodomy Laws

I have been collecting early sodomy laws for some time, ever since Lawrence v. Texas (2003) found that homosexual sex was a constitutional right, because the Supreme Court found that "there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter. " I am taking notes out of a book, and using my blog as a notebook has the advantage that I won't misplace the notes, and you get to learn what I am learning.

Marietta and Rowe's Troubled Experiment, which I mentioned quite recently, includes a number of mentions of sodomy and buggery laws. At p. 12, they mention that the liberalism of the early Quaker government is exposed in that in the first sessions, in 1682, they made a number of crimes that were capital under English law, such as "rape, sodomy, bigamy, and incest" non-capital. First offense led to forfeiture of property, whipping, and imprisonment. I already had a copy of this statute; first offense: 1/3 of your estate is taken, six months of "hard Labour", and life in prison for the second offense. (I have a copy of that statute here.)

At pp. 17-18 they report that in 1700, the Pennsylvania Assembly decided to make all their criminal statutes more harsh:
Conviction for sodomy brought with it a life sentence with a whipping to be administered every three months if the defendant were single, castration if the convicted felon were married.
Considering that at least person convicted of being a pickpocket committed suicide rather than suffer the punishment of whipping [pp. 78-80], this must have been a truly horrifying punishment to look forward to every three months for the rest of your life. (Castration doesn't sound like a fun time, either.) Pennsylvania's very harsh 1700 criminal code was an attempt to prove that a bunch of Quakers could be tough on crime--even though there wasn't much crime in Pennsylvania yet. They had yet to convict anyone of sodomy or buggery. But because these laws were generally less severe than English law, the English government vetoed them. The 1705 criminal code was still pretty serious on sodomy or buggery:
Conviction for sodomy and buggery also meant life imprisonment and corporal punishment (not to exceed thirty-nine lashes) every three months. [pp. 19-20]
It sounds like they might have dropped the castration provision for married men. While the statute theoretically applies to both men and women, the castration provision makes it sound like they weren't expecting to get many female convicts.

The 1718 revisions to the criminal code went ahead and made sodomy and buggery capital crimes again. [p. 22]

There's not much detail in most of the sodomy and buggery cases that Marietta and Rowe examined. (I wouldn't be surprised if no one really wanted to give the details unless necessary to get a conviction.) It does appear that the distinction of sodomy (non-vaginal intercourse with humans) and buggery (sex with animals) that appears in many of the New England and Middle Colony codes (but not in Henry VIII's statute on the subject) was being used by Pennsylvania authorities. At least one of the heterosexual sodomy cases involved a husband and wife--although it may have involved force, and she testified against her husband. [pp. 88-89]

Not until 1786 did Pennsylvania reduce sodomy and buggery from capital to imprisonable offenses. [p. 211]

UPDATE: For as harsh as the punishments were (or perhaps because of how harsh they were), there are very prosecutions for buggery or sodomy from 1682-1800: 23 for buggery and 3 for sodomy in all of Pennsylvania. [Table 2.4] The obvious explanation is that if sodomy was consensual, it either had to be done in public view, or there would be no one to file a complaint, since both parties would have been subject to atrociously ferocious punishment.

UPDATE 2: To clarify: I'm gathering this data because the manner in which the Supreme Court decided Lawrence is a microcosm of how the "living Constitution" crowd has historically warped the Constitution to get the results that they wanted.

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