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 By the mid 90s, thirty states had repealed their sodomy laws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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