Last updated: October 30, 2001
The Sensibilities of Our ForefathersThe History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001North Dakota
"There is no natural desire in man or in any of the lower animals to do any such licking."
The Post-Revolution Period, 1776-1873
When organized by Congress in 1861,1 the Dakota Territory was given neither a sodomy law nor a reception of common-law crimes.
The Territory of Dakota, then comprising both of the current Dakota states, enacted a criminal code2 in 1862 that established a sentence of one year-to-life for sodomy, with the common-law definition.3
Period Summary: As with most new territories, the Dakota Territory (which then included South Dakota) received no criminal code from Congress upon creation. However, also like most territories, Dakota adopted one early on in its home-rule period. The wording, also typical, was the common-law definition, and the maximum penalty was life imprisonment, also common.
The Victorian Morality Period, 1873-1948
I. Sodomy
The sodomy law was amended in a new code adopted in 18774 that eliminated the minimum penalty and reduced the maximum penalty to 10 years.5
In 1889, the Dakota Territory was split into two states that were admitted into the Union. The 1877 law remained in effect. The two Dakotas took different paths when it came to sodomy laws.
North Dakota, unlike its twin to the south, moved to cover fellatio and other types of activity by statute. In 1895, the legislature adopted new codes of law6 that included a greatly expanded sodomy law. The wording was changed to read
Every person who carnally knows in any manner any animal or bird; or carnally knows any male or female person by the anus or by or with the mouth; or voluntarily submits to such carnal knowledge; or attempts sexual intercourse with a dead body, is guilty of sodomy and is punishable by imprisonment in the penitentiary not less than one and not exceeding ten years or in the county jail not more than one year.7
The crime was complete upon any "sexual penetration, however slight[.]"8
In 1900, the North Dakota Supreme Court received its first case under this statute. In In Re King,9 the Court was faced with a writ of habeas corpus from a man sent to prison for five years solely for an attempt to commit sodomy. He claimed that the state was without authority to send him to the penitentiary for an attempt.10 The Court unanimously rejected the claim, pointing out that state law was clear on the power to punish attempts at half the maximum penalty prescribed for the completed act.11
In 1903, North Dakota enacted a law12 that declared as a vagrant all "lewd, wanton and lascivious persons, in speech or behavior[.]"13
In 1917, in State v. Nelson,14 the North Dakota Supreme Court sustained a sodomy conviction for an act of cunnilingus. In a unanimous, but brief, opinion by Chief Justice Andrew Bruce, the Court held that an indictment charging that the defendant did "lap and suck the [genitals] with his tongue and mouth" was proper under the state’s broad 1895 sodomy statute.15 After stating that they did "not desire to discuss the revolting details of an act such as that complained of,"16 the Court referred readers to Richard Krafft-Ebing’s psychological work Psychopathia Sexualis if they wished to learn more.17 In what is one of the most bizarre written opinions in U.S. legal history, Justice James Robinson concurred.18 He mixed an annoyance with the cross-examination that the defendant had received in the trial19 with some extremely strange and seemingly contradictory language, much of which appears to bear no relationship to the question before the Court. However, of the relevant language, Robinson felt that
in such a case the desire of the jurors to be on the laughing side and to show a mock horror of things scandalous and incredible has led to the conviction and ruin of many an innocent person. There is no natural desire in man or in any of the lower animals to do any such licking.20
He concluded with a criticism of the other justices, even as he inexplicably joined the result.
The other judges conclude their decision by a dictum holding that, if there were any offense, it was an attempt to commit sodomy. Truly that is ridiculous. Men do not accomplish rape or sodomy with the tongue. It has no penetrating force, and, under the statute, there must be "sexual penetration." The tongue is never an instrument of force or violence.21
In a 1929 case, State v. Flath,22 the North Dakota Supreme Court unanimously denied a writ of habeas corpus to a physician in custody before trial for taking indecent liberties with three teenage males.23 The Court stated that the law’s reach included "all forms of indecent liberties" not covered by rape or sodomy laws.24 The Court also rejected Flath’s contention that, because the teenagers consented, the unspecified acts did not amount to indecent liberties.25
Flath’s case returned to the high court after his conviction on the original charges. In Flath II,26 the Supreme Court reacted negatively to the manner in which he had been tried. Two other teenage males with whom Flath had allegedly also performed the acts were allowed to testify in his trial. The Court said that they were
entirely at a loss to see any legal basis in this case for the admission of the evidence relating to the alleged other offenses. The real purpose for the introduction thereof seems to have been that stated by the prosecuting attorney, namely, to show "the general licentious character of the defendant"[.]27
By a vote of 4-1, the Court overturned Flath’s conviction and ordered a new trial.28 Justice A.G. Burr dissented. He noted that the boys whose testimony was held prejudicial, as well as those on whom the criminal acts were charged, had consulted the defendant as a physician, had received the same "treatment" from him and that their testimony showed the defendant’s "method, intent, and purpose."29
II. Sterilization
A law adopted in 191330 permitted the sterilization of any inmate of a prison whose "mental or physical condition" would be improved by the operation.31 Through the end of 1921, 23 persons were sterilized under this law.32
In 1927, North Dakota enacted a statute33 expanding the powers of the state to authorize examination, for possible sexual sterilization, of all
feeble-minded, insane, epileptic, habitual criminals, moral degenerates and sexual perverts, who are potential to produce off-spring, who, because of inheritance of inferior or antisocial traits, would probably become a social menace or wards of the state.34
The authoritative board was required to
examine into the innate traits, the mental and physical conditions, the personal records and the family traits and history of all persons reported so far as the same can be ascertained[.]35
This law contained no requirement that the "degenerates" or "perverts" commit a crime before being referred for sterilization. They simply could be rounded up because of their status.
Through the end of 1934, a total of 150 sterilizations had taken place in North Dakota. In the state, submission to sterilization was made, through administrative policies, compulsory prior to release from a state institution.36
Period Summary: Early in this era, the Dakota Territory reduced the maximum sodomy penalty from life to 10 years, an action that was unusual. In 1889, the territory was divided and admitted to the Union as two states. North Dakota adopted an expanded sodomy law that clearly covered oral sex, in 1895. This law was enacted just prior to Oscar Wilde’s trials, but after the Alice Mitchell case, so it is possible that the Mitchell case influenced the North Dakota legislature. With this expanded law, the North Dakota Supreme Court became the first in the nation to sustain a cunnilingus conviction, in 1917. A sterilization law was adopted in 1913 and expanded in 1927 to include "moral degenerates" and "sexual perverts."
The Kinsey Period, 1948-1986
I. Sodomy
The last reported case in North Dakota, State v. Powell,37 decided in 1955, upheld the conviction of a man for completed sodomy for merely attempting an act of sodomy on an 11-year-old boy. The decision noted that the boy voluntarily dropped his pants at the request of the man,38 then pushed the man away when he "attempted an act of sodomy" by apparently trying to fellate the boy.39 The Court stated that whether or not a partner to sodomy, even if 11 years old, was an accomplice was for a jury to decide.40 The Court also added an odd interpretation of the voluntariness of the boy’s dropping of his pants. Rejecting the defendant’s claim that the boy thereby consented, the Court said that he had done so only "at the request of the defendant."41 This interpretation makes it difficult to imagine how one could consent to a sexual act without another party making a suggestion first.
In 1973, the North Dakota legislature adopted a comprehensive criminal code revision42 that repealed the state’s consensual sodomy law,43 retained the abrogation of common-law crimes,44 and established an age of consent of 18.45 Unfortunately, the new code also contained a disorderly conduct provision outlawing the solicitation of sexual contact while "loitering in a public place for the purpose of soliciting sexual contact[.]"46
II. Sterilization
A total of 784 North Dakotans were sterilized through the year 1948, including 32 who were neither insane nor mentally retarded.47 These may have included "moral degenerates and sexual perverts."
In 1965, the sterilization law was repealed.48
There are not extant records as to the total number of persons sterilized for "moral degeneracy" or "sexual perversion."49
Period Summary: North Dakota adopted a new criminal code in 1973 and became only the eighth state to repeal its sodomy law. It retained a loitering law that can be used against cruising for sex, but there is no case law under it. The sterilization law remained until 1965.
The Post-Hardwick Period, 1986-Present
Period Summary: There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution.
Footnotes
1 12 Stat. 209, enacted Mar. 2, 1861.
2 Laws of Dakota 1862, page 165, ch. IX, §47, enacted Apr. 28, 1862.
3 Id.
4 Territorial Revised Codes of Dakota 1877, page 777, ch. XXXI, §346, enacted Feb. 7, 1877.
5 Id.
6 Penal Code, ch. 32, §7186.
7 Id.
8 Id. §7187.
9 82 N.W. 423, decided Apr. 19, 1900.
10 Id.
11 Id. at 424.
12 Laws of North Dakota 1903, page 285, ch. 206, enacted Mar. 13, 1903.
13 Id.
14 163 N.W. 278, decided May 8, 1917.
15 Id.
16 Id. at 279.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id. at 280.
22 228 N.W. 847, decided Dec. 7, 1929. Rehearing denied Feb. 10, 1930.
23 Id. at 848.
24 Id. at 852.
25 Id.
26 237 N.W. 792, decided Aug. 14, 1931.
27 Id. at 793.
28 Id. at 794.
29 Id.
30 Laws of North Dakota 1913, page 63, ch. 56, enacted Mar. 13, 1913.
31 Id. at 64, §1.
32 Harry Hamilton Laughlin, Eugenical Sterilization in the United States, (Chicago:Psychopathic Laboratory of the Municipal Court of Chicago, 1922), page 87.
33 Laws of North Dakota 1927, page 433, ch. 263, enacted Mar. 3, 1927.
34 Id. §1.
35 Id. at 434, §3.
36 Abraham Myerson et al., Eugenical Sterilization: A Reorientation of the Problem, (New York:Macmillan, 1936), page 17.
37 73 N.W.2d 777, decided Dec. 13, 1955.
38 Id. at 778.
39 Id.
40 Id. at 779.
41 Id.
42 Laws of North Dakota 1973, ch. 117, adopted Mar. 28, 1973, effective July 1, 1975. The sexual offenses were enacted in a separate law from the rest of the code. The remainder of the new code was Chapter 116, enacted the same day.
43 Id. ch. 117. North Dakota Century Code Chapter 12.1-20 covers sexual offenses now.
44 Laws of North Dakota 1973, ch. 116, at 220, §12.1-02-01.
45 Id. ch. 117, at 303, §12.1-20-05.
46 Id. ch. 116, §30, codified as §12.1-31-01 (6).
47 Moya Woodside, Sterilization in North Carolina: A Sociological and Psychological Study, (Chapel Hill:University of North Carolina Press, 1950), pages 194-195.
48 Laws of North Dakota 1965, page 373, ch. 203, enacted Mar. 20, 1965.
49 Correspondence from Carl Rodlund, Assistant Director, Division of Mental Health Services, Dec. 28, 1995. According to Rodlund, no records exist in the State Archives, the Department of Health, the Division of Developmental Disabilities within the Department of Human Services, or the Law Library.
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