Sodomy is anal copulation by a man inserting his penis in the anus of another man or woman. If accomplished against the will of one of the people involved, the crime would be that of forcible sodomy, a felony in all states in the same way that rape is. Although, some states have a separate law governing the crime of sodomy.
Sodomy between consenting adults was a felony in all states in the past, but increasingly, it has been either decriminalized or the law, if it still exists, is seldom prosecuted. However, if one of the partners is underage, it is still a crime as a form of statutory rape. And, again, any sexual contact between adults that is non-consensual is criminal in all states.
What Is the Status of Sodomy Laws Today?
Traditionally, sodomy was called a “crime against nature,” and by the mid-1900’s, sodomy was illegal in every U.S. state. Some states had repealed their sodomy laws, and in 2003, the U.S. Supreme Court ruled that applying the sanctions of criminal punishment for consensual, adult, so-called “non-procreative” sexual activity, i.e., sodomy laws, was unconstitutional.
The Court based its ruling on the assertion of the “right to privacy” that earlier cases had found in the U.S. Constitution. Even though this right is not explicitly enumerated, the Court based its ruling on the assertion that every adult has the autonomy to define their own relationships and American traditions of not interfering in the private decisions regarding sex of consenting adults.
Since then, laws have moved away from religious doctrine, and the punishment for consensual sodomy has become either less severe or even non-existent. Presently, some states still have sodomy laws on their books, while others have repealed them, e.g., recently, the states of Maryland and Minnesota.
States that still have sodomy laws on their books, even if they are viewed as unenforceable in light of the ruling of the U.S. Supreme Court in Lawrence v. Texas, are as follows:
- States that Prohibit Sodomy: Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina and Texas;
- States that Prohibit Sodomy Only between Same-sex Couples: Kansas, Missouri, Oklahoma, and Texas.
Unfortunately, many fear that the Texas v. Lawrence decision could be overturned in light of the U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade. In the Dobbs decision, the Court majority ruled that there is no right to privacy in the U.S. Constitution. Thus, the right to an abortion is not protected by any constitutional right to privacy.
Many people fear that the right to privacy that prevents prosecution for sodomy between consenting adults could also be declared non-existent by the U.S. Supreme Court. Such a case could arise in one of the states in which laws prevent sodomy between consenting adults if the authorities should decide to enforce anti-sodomy laws again.
What Is the Punishment for Sodomy?
The crime of sodomy is not prosecuted in all states at the present time if the act involves consenting adults. If the offense is committed against a minor or a person, whether a minor or adult, who does not consent to the act, then it is a different kind of sex crime.
As noted above, it is still a criminal act if a minor or non-consenting adult is involved, and it would be prosecuted. It would be prosecuted as statutory rape if a person under 18 is involved, even if the minor consents, or as rape or some other kind of sexual abuse if the victim is an adult.
The exact punishment to which a person can be sentenced depends on the state in which they are convicted and the exact nature of the crime of which they are convicted. Florida prohibits all “unnatural and lascivious acts.” This law was traditionally applied to sodomy. It is still the law in Florida, and violation is a misdemeanor.
The law prohibiting sodomy in Minnesota specifically applies to anyone who “voluntarily engages in or submits to an act of sodomy with another.”
The law that prohibits sodomy in Mississippi applies to sex with both human beings and animals, lumping the two together. In Missouri, the crime can be punished by imprisonment for up to 10 years.
In Oklahoma, the law states that a person who is convicted of “the detestable and abominable crime against nature,” with either a person or animal, is guilty of a felony criminal offense. The person can be sentenced to a term of up to 20 years in state prison.
In Oklahoma, if the offense involves the solicitation of a person who is under 18 years of age to perform or submit to an act of sodomy for money, the crime is then also charged as a felony. A person convicted of solicitation of sodomy can be punished by a term of imprisonment of between 5 and 20 years and payment of a fine of between $2,500.00 and $10,000.00.
Are There Any Defenses for Sodomy Crime?
If the sodomy occurred between consenting adults, they could claim that they have a right to privacy that protects them from prosecution for consensual, adult sexual activity per the Supreme Court ruling in Lawrence v. Texas.
In cases of statutory rape, rape, or other crimes of sexual abuse, the defenses available would be the standard criminal defenses, such as the alibi defense. In the alibi defense, the person charged proves that they were in a different place at the time of the crime and, for that reason, cannot possibly be guilty. Essentially, the person charged claims that they have been misidentified as the perpetrator and were not involved in the crime charged.
If the alleged victim is an adult, then the defense of consent is available. However, it is important to keep in mind that in all states, if the alleged victim is a minor, consent is not a defense, as minors are considered to be too young to consent to sexual activity of any kind.
What Effect Do Sodomy Laws Have on Gay Couples?
In states where the act of sodomy itself, even between consenting adults or within gay relationships, is prohibited, gay couples may feel compelled to hide their relationships for fear of being charged with a criminal offense. Thus, it provides an additional stigma that heterosexual couples do not normally face in these states.
Gay couples may feel that they have lost confidence in the protection of the Lawrence v. Texas ruling after the Dobbs decision because anti-sodomy laws remain on the books in some states; law enforcement could decide at any time to start enforcing those laws again. It is unclear whether the U.S. Supreme Court would reaffirm that sodomy laws are unconstitutional, thus granting gays the constitutional right to privacy in their personal intimate choices.
Do I Need an Attorney?
If you are charged with the crime of sodomy, it is a very serious matter, and you need legal representation. LegalMatch.com can connect you to an experienced criminal defense attorney who will fight for your interests and help you through the complicated legal system.
