Sodomy

Background

Sodomy is defined as oral or anal copulation between humans, especially those of the same sex.[1] A related crime is aggravated sodomy, which involves force or results in serious bodily injury to the victim, in addition mental and emotional distress.[2] The Model Penal Code includes sodomy in its definition of deviate sexual behavior.[3]

A landmark case in the U.S. that drastically impacted sodomy laws is Lawrence v. Texas.[4] The Lawrence case was the first time a same sex couple were prosecuted and convicted under the Texas sodomy statute of consensual sodomy performed by adults in a private bedroom.[5] In Lawrence, the Supreme Court held that state laws that ban private, consensual sodomy between adults are unconstitutional as an infringement on the right to privacy. The decision in Lawrence overturned the Court's prior ruling in Bowers v. Hardwick, in which the Court held that Georgia's anti-sodomy statute did not violate an individual's right to privacy.[6]

Federal Laws of the United States

Violations of state sodomy laws can be brought into federal court when committed within the special maritime and territorial jurisdiction of the United States.[7] The Assimilative Crimes Act provides the basis of jurisdiction for these types of cases. Moreover, the Code of Military Justice punishes sodomy activities within military personnel.[8]

Variation by Jurisdiction

New York

New York categorizes the crime of sodomy under criminal sexual acts. Such crimes are split into three types of offenses: criminal sexual acts in the third degree, criminal sexual acts in the second degree, and criminal sexual acts in the first degree.[9] A person is guilty of criminal sexual act in the third degree when 1) he engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old, 2) he, being older than twenty-one, engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old or 3) he engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. A criminal sexual act in the third degree is a class E felony.[10]

A person is guilty of criminal sexual act in the second degree when 1) he, being over the age of eighteen, engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old or 2) he engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. If the defendant was less than four years older than the victim at the time of the offense, then this fact may be used as an affirmative defense in the defendant's favor. Criminal sexual acts in the second degree is a class D felony.[11]

A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1) by forcible compulsion 2) who is incapable of consent by reason of being physically helpless 3) who is less than eleven years old or 4) who is less than thirteen years old and the actor is eighteen years old or more. This crime is a class B felony.[12]

Maryland

Under the Maryland Criminal Code section 3-321, the crime of forced sodomy is punishable by imprisonment for up to ten years.[13]

Common Defenses

Depending on the sodomy statute and the specific situation of a case, consent may sometimes be a defense to the charge of sodomy (i.e. consent is usually not a defense when the sodomy charge involves a minor). Mental disability and irresistible insane impulse are defenses to sodomy. The theory behind the mental disability defense is that an individual is unable to comprehend the nature and consequences of the act.[14]

Foreign Jurisdictions

Myanmar

Section 377 of Myanmar's Criminal Code does not explicitly mention sodomy, but does prohibit "unnatural offenses," meaning the voluntarily carnal knowledge of man, woman, or animal that is against the "order of nature." This crime is punishable by imprisonment and fines.[15]

Uganda

Uganda also does not have a legal provision that specifically mentions sodomy, but it does have a section of its criminal code that bans “carnal knowledge of any person against the order of nature." If charged with this crime, an individual may be sentenced to life imprisonment.[16]


See Crimes

Notes

<references>
  1. Black's Law Dictionary, 9th Edition (2009)
  2. Black's Law Dictionary, 9th Edition (2009)
  3. Model Penal Code § 213.0 (2001)
  4. Lawrence v. Texas, 539 U.S. 558 (2003)
  5. Christopher R. Leslie, Lawrence v. Texas as the Perfect Storm, 38 U.C. Davis L. Rev. 509 (2005)
  6. Bowers v. Hardwick, 478 U.S. 186 (1986)
  7. Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)
  8. Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)
  9. New York Penal Code, Title H, Article 130, § 130.40-130.50 (2009)
  10. New York Penal Code, Title H, Article 130, § 130.40 (2009)
  11. New York Penal Code, Title H, Article 130, § 130.45 (2009)
  12. New York Penal Code, Title H, Article 130, § 130.50 (2009)
  13. Maryland Criminal Code, § 3-321 (2002)
  14. Jane E. Lehman, Sodomy- Corpus Juris Secundum, Nov. 2010
  15. http://www.blc-burma.org/html/myanmar%20penal%20code/mpc.html
  16. https://76crimes.com/uganda-anti-gay-laws-and-actions/