Wednesday, October 03, 2007

More Confused Sodomy Laws:

In this post, I wrote:

As far as I can tell, sodomy laws were a hodgepodge; some targeted only anal sex, some both oral and anal sex; some applied to homosexual and heterosexual contact, some only homosexual; some lumped in bestiality and any non-procreative sex; some statutes, you really couldn’t tell what exactly was being prohibited and you probably have to dig into the courts’ applications and interpretations of them to find out.

One pattern I observe is that sodomy laws premised on “nature” were the ones that swept with a broad brush and targeted all non-procreative acts, including heterosexual and homosexual oral and anal sex, bestiality and perhaps contraception, all under the rubric of “sodomy.” Most (all?) colonial laws that targeted homosexual behavior only (many of them specially male homosexual behavior) were copied directly from the Bible often the Old Testament, and complete with capital punishments and citations to verses and chapters.

There is an additional element of confusion that I didn't mention: Often, but not always, those laws and the act itself were understood to apply to non-consensual acts only. See for instance the Cato Institutes's brief on Lawrence v. Texas discussing how historically the overwhelming majority of prosecutions under sodomy laws have been for non-consensual behavior.

Some notable historical examples from the founding era. The theocrats love to discuss the one time George Washington had a soldier court martialied for "sodomy."

“Head Quarters, V. Forge, Saturday, March 14, 1778: At a General Court Martial whereof Colo. Tupper was President (10th March 1778) Lieutt. Enslin of Colo. Malcom’s Regiment tried for attempting to commit sodomy, with John Monhort a soldier; Secondly, For Perjury in swearing to false Accounts, found guilty of the charges exhibited against him, being breaches of 5th. Article 18th. Section of the Articles of War and do sentence him to be dismiss’d the service with Infamy. His Excellency the Commander in Chief approves the sentence and with Abhorrence and Detestation of such Infamous Crimes orders Lieutt. Enslin to be drummed out of Camp tomorrow morning by all the Drummers and Fifers in the Army never to return; The Drummers and Fifers to attend on the Grand Parade at Guard mounting for that Purpose”

The problem is, for consensual sex, it takes two to tango. And only one soldier was being prosecuted for this "attempted act," which suggests an attempted rape. It could have been, "Excuse me, would you like to have some sodomy?" "No thank you and now I'm telling the General." But that simply cannot be gleaned from the historical record.

Likewise, in looking at James Wilson's lecture on laws, he has the following to say which may be referring to "sodomy." Scroll down to Chapter 4 and he writes: "The crime not to be named, I pass in a total silence." Assuming he's talking about "sodomy," (which some do) he groups that "unnamed" act with a bunch of other crimes, each of which involves a non-consensual violation of personal safety and titles the entire section: "OF CRIMES AGAINST THE RIGHT OF INDIVIDUALS TO PERSONAL SAFETY." Again, this suggests rape, not a consensual act.

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