Wednesday, September 17, 2008

RECOVERED HISTORY: LAWS ON SODOMY

Margot Canaday, The Nation - During the 1600s, the American colonies adopted sodomy (or "buggery") laws that prohibited bestiality as well as anal sex between either a man and a woman or between two men. (New Haven Colony was rare in including sexual acts between women as part of its sodomy prohibition.) Punishment -- which included death -- was draconian, but the laws were very rarely enforced. Historians know of less than ten executions for sodomy throughout the seventeenth century. Of those few, almost all involved assault or sex with animals. These laws were not directed in any particular way toward homosexuality. Indeed, they couldn't be -- the idea that there was a type of person who was a homosexual didn't even emerge until the late nineteenth century, a result of urbanization, industrialization and the development of medical/sexological discourse. . .

Eighteenth-century Americans were even less likely to police sodomy than their seventeenth-century forebears. There is only one known capital case during the eighteenth century -- a slave named Mingo for "forcible buggery" -- and after independence all thirteen states revoked the death penalty for sodomy convictions, although all adopted laws criminalizing anal sex (whether the recipient was male or female, adult or child, man or beast). Those laws were maintained into the nineteenth century, when they were used in cases in which the sex enacted was either violent or extremely public. Immigrants and men of African descent were most commonly charged with the crime. But the general pattern was non-enforcement. . .

This pattern began to shift at the beginning of the twentieth century. Loosening morals and new patterns of urban sociability prompted officials to expand sodomy laws to include fellatio, which most states did by the 1920s. If more kinds of behavior counted as sodomy, more people could be vulnerable under the law, and so more aggressive policing ensued. Women as well as men were prosecuted for fellatio, for example, and a few states also included cunnilingus within the purview of the "crime against nature." While sodomy arrests during these years increased tenfold as compared with the late nineteenth century, the policing of sodomy was still modest relative to other sexual offenses -- adultery, fornication, prostitution and rape were the sexual crimes that most absorbed the resources of urban police forces. Moreover, until the mid twentieth century, the vast majority of sodomy arrests were for rape-like offenses: assault of a man or a woman, or sexual activity with a child (assault by definition, since children cannot legally consent).

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