When is Sodomy Unlawful?

Historically, the act of sodomy ("the Sin of Sodom"), which is basically anal penetration, was held by courts as "deviant" and was punished harshly. In some cases, the laws' language extended to acts of oral penetration and bestiality. Although most statutes did not expressly state the purposes of the law, it was impliedly known that these laws were basically laws against homosexual acts. In the U.S. during the 50s, every state had some variation of law criminalizing the act of sodomy. The pivotal 2003 case of Lawrence v. Texas nullified all state anti-sodomy laws that penalized consensual sex done in privacy. However, a few dissenting states still retain anti-sodomy laws in their criminal codes and seek to enforce them.

Lawrence v. Texas

In the landmark case of Lawrence v. Texas (2003), the Supreme Court reviewed Texas's sodomy law to determine its constitutionality. The Court had previously addressed the issue of sodomy laws in the case of Bowers v. Hardwick (1986), where the Court upheld a Georgia statute prohibiting the act, holding there was no constitutional protection for a sexual act. However, the Court in Lawrence overturned its previous ruling, the majority holding that consensual sexual acts are protected under the Fourteenth Amendment's substantive due process. This ruling struck down all state laws prohibiting consensual sexual acts between two same-sex individuals that is done in private. This ruling also applied to sodomy between heterosexual individuals.

The Lawrence ruling does not protect acts of non-consensual sodomy or acts that fall under indecent exposure laws (done publicly). These acts are still prosecutable under state laws.

Military Law

Following the ruling in Lawrence v. Texas, the U.S. Army Court of Criminal Appeals reviewed Article 125 of the Uniform Code of Military Justice which expressly banned sodomy in two military cases, United States v. Stirewalt and United States v. Marcum. In both cases, the court ruled that the "conduct falls within the liberty interest identified by the Supreme Court." However, the court held that notwithstanding Lawrence Article 125 can still be upheld if "factors unique to the military environment" would place the act "outside Lawrence's asserted protected liberty interest. These factors include those actions the military deems as adverse to discipline, including fraternization and public sexual behavior.

State Law

Since Lawrence, most states have repealed their sodomy laws. Only a few states retain anti-sodomy laws on their books, usually referred to as "crimes against nature" or "deviate sexual intercourse." Among those dissenting states (with penalties) are:

• Alabama - 13A-6-65(a)(3). Sexual Misconduct. "He or she engages in deviate sexual intercourse with another person." Consent is no defense. Misdemeanor punishable by a fine up to $2,000 and/or up to 1 year imprisonment.
• North Carolina - 14-177. Crime Against Nature. Carnality "with mankind or beast" (no gender restriction). Felony punishable up to 3 years imprisonment.
• Oklahoma - 21-886. Crime Against Nature. "Committed with mankind and beast (same sex only)." Felony punishable up to 10 years imprisonment.
• Texas - 21.06. Homosexual Conduct. "Deviate sexual intercourse with another individual of the same sex." Misdemeanor. $500 fine.
• Virginia - 18.2-361. Crimes Against Nature. Both homosexual and heterosexual, anal and oral penetration. Includes bestiality. Felony punishable up to 5 years imprisonment.

Other dissenting states include Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri, South Carolina, and Utah. Enforcement varies.

Talk with an Attorney

If you face charges of unlawful sodomy, you may have a constitutional defense if the act was consensual and done in privacy. Even though the Supreme Court has nullified laws against consensual, private acts, some states still have anti-sodomy laws and may seek to enforce them. Talk with an attorney experienced with your state laws to review your case.