First Sodomy Laws In The American Colonies
by David Bianco
Today in the United States, sodomy is primarily defined as oral or anal sex
between two men or two women. More than a third of the states still have
sodomy laws on their books, and the Supreme Court upheld those laws in 1986
in its anti-gay decision, Bowers v. Hardwick. But the original colonial
sodomy laws, passed in the 1600s, had a much broader view of what
constituted "sodomy."
American sodomy laws derived from the so-called English "buggery law," passed
by Parliament in 1533 in the reign of Henry VIII. Until that year, the
Roman Catholic Church had been responsible for judging and meting out
punishment for sodomy, which was considered a mortal sin. Under the English
Reformation, the king declared himself head of the church in England, cutting off the
authority of the pope. "Buggery" (a popular word derived from the French
bougres, meaning "heretical") became a criminal offense punishable in
the courts by hanging. Even the clergy were subject to criminal prosecution
for the offense.
In the so-called "New World," the settlement at Jamestown, Va., was founded
in 1607 by the London Company as a British military and trading post.
During its first years, Jamestown had few clergy members or women, both of which
were seen as "civilizing" influences. Though British law was implicitly
in force, in May 1610 the governor or Virginia, Sir Thomas Gates, instituted
martial law in order to keep the young male colonists more firmly in
line. Virginia's "Articles, Laws, and Orders, Divine, Politique, and Martial"
covered a long list of both secular and religious infractions punishable
by "pain of death" - theft, blasphemy, adultery, rape, illegal trade with
Indians, and "the detestable sins of Sodomie." (It was plural because
sodomy included male-male and male-female anal and oral sex, as well as
bestiality.)
The new code sought to instill a sense of order on what was seen as a
wild, unruly group who needed "severe discipline ... sharp laws ... a hard life
and much labor." Martial law was in effect for eight years, until more women
and families began to arrive from England as settlers.
There were, however, no recorded executions for sodomy until 1624. The
first person to be executed was Richard Cornish, a ship's captain accused of
sexually assaulting his indentured servant, William Cowse. The charge, as
chronicled in the minutes of the Virginia court, sounds today like a case
of sexual harassment - Cornish wanted to have sex with Cowse, who refused
and then was given extra work. On the basis of the testimony of another
crewmember who overheard Cornish proposition Cowse, Cornish was tried and
hanged. Two men who publicly objected to the execution as unjust received
punishments of their own - standing on the pillory and having their ears cut off.
As the number of colonial settlements grew in the 1600s, each instituted
its own local code of laws, and each included sodomy as a capital offense.
The New England colonies in particular, which were founded by strict
religious separatists, punished sodomy harshly because they considered it a crime
against marriage and the family - a charge that has echoes in today's
debates over homosexuality. But the concept of "family" was different 300 years
ago; the family was, in fact, the major economic unit of production of that
agricultural society. Early New Englanders faced brutal, unfamiliar
weather conditions, crop failures, starvation, disease, high infant mortality,
and common death in childbirth. Procreation was the key to the economic
survival of the colonies. In this survivalist atmosphere, sodomy - both same-sex
and opposite-sex - and masturbation "tended to the frustrating of the
ordinance of marriage and the hindering of the generation of mankind," as John
Winthrop declared in the 1646 sodomy trial of a man in Guilford, Conn. "Spilling"
or "spending" male "seed" in any kind of non-procreative activity was
considered a sinful waste, because it put the future of the colonies in jeopardy.
Gay historians have found approximately 20 recorded cases of sodomy
charges being brought against individual male colonists from 1624 to 1740; four
resulted in the death penalty. Because lesbian sexual activity didn't
involve "seed spilling," it was apparently viewed more leniently. In one case of
"lewd behavior ... upon a bed" between two women in Plymouth, both women
were merely given a warning. Only the New Haven colony authorized death for
"filthiness" between women, judging lesbian sex acts as contrary to "the
natural use of women" - that is, child-bearing. There are, however, no
recorded instances of the punishment being carried out.
After the American Revolution, separation of church and state became one
of the founding principles of the new republic. Punishment for sodomy was
gradually reduced to jail time and loss of property. Still, until 1961,
all 50 states had some form of sodomy law. Today, most of the states with
these antiquated laws on their books are in the South. Though rarely enforced,
these statutes are used when convenient against lesbians and gay men,
especially in child custody cases.
D'Emilio, John,
and Estelle B. Freedman.
Intimate Matters: A History of Sexuality in America (Harper & Row, 1988).
Katz, Jonathan Ned. "Early Colonial Exploration, Agriculture, and
Commerce: The Age of Sodomitical Sin, 1607-1740." in Katz, Gay/Lesbian Almanac: A
New Documentary (Carroll & Graf, 1994).
Oaks, Robert. "Things Fearful to Name: Sodomy and Buggery in
Seventeenth-Century New England." Journal of Social History, vol. 12, no.
2 (1979), 268-181.
Louis Crompton. "Homosexuality and the Death Penalty in
Colonial America" Journal of Homosexuality, vol. 1, no. 3 (1976), 277-294.
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