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CRIMINALIZING SAME-SEX BEHAVIOR

"Sodomy" legislation from biblical times to the 1960s

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From biblical times to the 1960s:

According to columnist Robert Jones, legislation which criminalizes same-sex sexual behavior dates back almost five centuries in Britain and four centuries in the USA. Leviticus 20:13 from the Hebrew Scriptures (Old Testament), reads in part: "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death." This verse was "adopted into legislation and enforced by the colonies of Massachusetts, New Hampshire, New York, New Jersey, Pennsylvania and Connecticut." 1,2

In his concurring decision in the Bowers v. Hardwick (1986) case, Supreme Court Justice Burgher wrote: "...the proscriptions against sodomy have very 'ancient roots.' Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law....During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. Blackstone described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named." ...To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Some major events in Britain and the U.S.:

bulletPrior to 1533 CE: Anal sex in Britain was considered a religious infraction and was punished within ecclesiastical courts. It was not considered to be a civil offense against the state.
bullet1533: A British  "Buggery Statute" was enacted. It defined sodomy as sexual activity between two men or as bestiality involving an animal and either a man or woman.
bullet1624: In the colony of Virginia, Captain Richard Cornish was charged under the British Buggery Statute with having raped his male servant. He was found guilty. Both the perpetrator and the victim were hanged.
bullet1628: The British jurist Sir Edward Coke described same-sex behavior as "against the ordinance of the Creator and order of nature." He suggested that the usual execution techniques of burning alive or burying alive be replaced by simple hanging.
bullet1629: "Five beastly Sodomiticall boys" confessed to homosexual activity. They were probably hanged, because Massachusetts law called for the death penalty for persons over 14 years of age who committed sodomy.
bullet1631: In the first reported trial for homosexual sex in England, the Earl of Castlehaven was convicted of sodomy with his male servants. Because of his rank, he was beheaded.
bullet1641: Sodomy became a capital crime in Massachusetts, but only between males.
bullet1642: Connecticut included sodomy among its 12 capital crimes.
bullet1646: Jan Creoli was executed in New Netherland (present-day New York) for sodomizing a ten-year old boy. His victim was "only" flogged.
bullet1647: Rhode Island follows the lead of Massachusetts.
bullet1656: New Haven passes a law making sodomy punishable by execution for both men and women.
bullet1660: Jan Quisthout vander Linde was executed for sodomy. His victim, a boy, was whipped.
bullet1662: Rhode Island passed a sodomy law.
bullet1682: Pennsylvania, a Quaker colony, became the first jurisdiction in America to make sodomy a non-capital offence. Punishment was in the form of whipping, a fine equal to 1/3 of the offender's estate, and six months of hard labor.
bullet1700: Pennsylvania amended its sodomy punishment to life imprisonment or castration.
bullet1712: South Carolina adopted the British buggery law.
bullet1718: The sodomy law in Pennsylvania was revised to make it a capital offense.
bullet1718: New Hampshire passed its first sodomy law.
bullet1719: Delaware passed a sodomy law.
bullet1776: Maryland adopted English common law, which included the criminalization of sodomy.
bullet1784: Georgia also adopted English common law.
bullet1785: Massachusetts passed a sodomy law.
bullet1787: New York passed a sodomy law.
bullet1790: Pennsylvania and South Carolina each passed a sodomy law.
bullet1791: The original 13 states ratified the Bill of Rights. By that time, they all treated sodomy as a criminal offense. Connecticut, Delaware, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, South Carolina had specific sodomy laws in place. Maryland, Georgia, North Carolina, and Virginia had adopted either the common law of England or specific English statues; both criminalized sodomy. "Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later." 3,4

In the years following independence from Britain, the death penalty was gradually removed from the former colonial laws. However, sexual behavior between persons of the same gender remained a criminal act throughout the U.S. until the 1960s.

In 1868, the Fourteenth Amendment was ratified. It guaranteed equal treatment for all persons under the law. At that time all but 5 of the 37 States in the Union had criminal sodomy laws. Subsequently, all of the states eventually outlawed sodomy.

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References:

  1. Gary Comstock, "Unrepentant, self-affirming, practicing: Lesbian/Bisexual/Gay People within organized religion," Continuum, (1996), Page 1. Read reviews or order this book safely from Amazon.com online book store
  2. Louis Crompton, "Homosexuals and the Death Penalty in Colonial America." Journal of Homosexuality v. 1 no. 3 (1976).
  3. Timeline of homosexual history," at: http://www.geocities.com/
  4. The text of the Supreme Court's decision in  Bowers v. Hardwick is online at FindLaw. See http://caselaw.lp.findlaw.com/scripts/

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Copyright 2002 to 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2002-DEC-13
Latest update: 2005-DEC-11
Author: B.A. Robinson

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