Crimes Against Nature
It is in our laws against sodomy, or what some states refer to as "the abominable and detestable crime against nature," that our religiously generated aversion to sex proves most pronounced. Sodomy historically and medically refers to anal intercourse, or buggery, but the statutes on sodomy include all manner of sexual activity conceived by someone, somewhere, at one time or another, to be "unnatural"; and this means, of course, in this sexually repressed society, almost every variety of sexual activity other than "natural" coitus. Sodomy laws thus cover, in one state or another, not only buggery, but fellatio (oral-genital contact with the male), cunnilingus (oral-genital contact with the female), homosexual behavior, bestiality (sex contact with animals), necrophilia (sexual contact with the dead), and in two states, even mutual masturbation. The very concept of "natural" and "unnatural" sex is, of course, a religious-moral one. Among all of these "crimes against nature", only necrophilia is relatively rare and a certain symptom of a serious psychosexual disorder. We will offer no personal moral judgments on the rest of this behavior now—reserving the expression of our own concept of a rational sexual morality for a later installment of this editorial series—but the psychiatrist, without making any moral determination on the subject would consider almost all of this activity normal (and, therefore, "natural"); and Kinsey found a far greater frequency for most of it than was previously assumed.
Forty-nine of the fifty states and the District of Columbia have sodomy statutes and they include some of the most emotion-tinged language to be found anywhere in the law. The Michigan statute, which states, "Any person who shall commit the abominable and detestable crime against nature, either with mankind or with any animal, shall be guilty of a felony," is typical; the phrase "abominable and detestable crime against nature" appears with such regularity in the sodomy statutes that it has the effect of being an alternate title for the offense, and Rhode Island actually lists the crime under that heading; in Utah, Arizona and Nevada, it is also referred to as the "infamous crime against nature."
The "abominable and detestable" phrase also becomes, in some instances, the sole description of the offenses prohibited under the law. Some of the legislators responsible for initiating and passing the statutes were apparently so embarrassed by the whole business that they offered no further clue to the nature of the crime, except to state that it was illegal if perpetrated "with mankind or animal."
The noted 18th century jurist Sir William Blackstone author of Commentaries, which are still fundamental in any study of English or U.S. law, reflects the irrational emotionalism associated with these statutes when he writes: "I will not act so disagreeable a part, to my readers as well as to myself, is to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law which treats it, in its very indictments, as a crime not fit to be named.... Which leads us to add a word concerning it punishment. This the voice of nature and of reason, and the express law of God determined to be capital, of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from Heaven; so that this is a universal, not merely a provincial precept; and our ancient law in some degree imitated this punishment, by commanding such miscreants to be burned to death; though Fleta says they should be buried alive; either of which punishments was indifferently used for this crime against the ancient Goths. But now the general punishment of all felonies is the same, namely, by hanging; and this offense (being in time of popery only subject to ecclesiastical censures) was made a felony without benefit of clergy...."
The U.S. courts have displayed a similar distaste in dealing with the subject. Thus the judge, in State vs. Whitmarsh, commented, "We regret that the importance of this question [whether or not oral-genital contact should be considered a crime against nature] renders it necessary to soil the pages of our reports with a discussion of a subject so loathsome and disgusting as the one confronting us."
Former Judge Morris Ploscowe, of the New York Magistrate's Court, now Adjunct Associate Professor of Law at New York University, states in Sex and the Law: "Ever since Lord Coke's time, the attitude of judges has been that sodomy is 'a detestable and abominable sin among Christians not to be named.' The result of this attitude is a sharp departure from the usual rules of criminal pleading. It is one of the basic canons of criminal procedure that a defendant is entitled to know the particulars of a crime charged against him, so that he can adequately prepare his defense. If the indictment is not sufficiently specific, the defendant has a right to demand a bill of particulars. But when a man is charged with sodomy or a crime against nature, a indictment in the language of the statute is enough. It is enough that the indictment alleges that a particular time and place the defendant committed a 'crime against nature' with a specific person. The defendant need not be informed of the particular sexual perversion which is charged against him. As the Court put in the case of Honselman vs. People:
"'It was never the practice to describe the particular manner of the details of the commission of the crime, but the offense was treated in the indictment as the abominable crime not fit to be named among Christians. The existence of such an offense is a disgrace to human nature. The legislature has not seen fit to define it further than by the general term, and the records of the courts need not to be defiled with the details of different acts which may go to constitute it. A statement of the offense in the language of the statute is all that is required.'"
Although English common law, from which our own statutes on the subject are derived, defined and prohibited only buggery with mankind or beast as "the crime against nature," carrying the penalty of death, a majority of the present-day U.S. statutes include both oral and anal intercourse under sodomy.
Moreover, none of the statutes in any of the 49 states make any distinction between heterosexual and homosexual sodomy—both are prohibited under the law; and what is even less clearly recognized is that none of the U.S. statutes make any distinction between the married and the unmarried. Our government thus specifies, quite literally, where a husband and wife may, or may not, kiss one another; and the manner in which the sex act may be initiated and carried out in the marriage bed without becoming illegal.
Modern insights into human behavior have radically changed society's views on the subject of perversion, of course, and what was considered "unnatural" in sex is now recognized as perfectly normal, and in many instances, desirable. A majority of our contemporary marriage manuals, courses in sex education, and counselors on the problems of sex and family, stress a natural freedom in the love play that accompanies marital coitus; both husband and wife are informed that the intimate preliminaries of sex can be important in achieving the full satisfaction of both partners; every part of the loved one should be dear, and free from shame, and the sexual foreplay may quite properly include kisses and caresses wherever desired; no act of intimacy that brings pleasure to members of the mating should be considered improper or taboo.
This quote from Sexual Harmony in Marriage by Oliver M. Butterfield, Ph.D., a book reportedly given by some members of the Presbyterian clergy to young couples about to be married, is typical: "Any position is proper which permits full satisfaction for both parties. All parts of the body are proper for use if they can be made to contribute to the general goal without giving offense to the taste or feelings of either partner, and if either partner is harmed thereby."
Dr. Albert Ellis states, in an article published in Marriage and Family Living: "The only sexual 'perversion' is a fetish or rigidity which convinces an individual that he or she can only have satisfactory sex relations in one method or position. The great majority of sexual perverts in this country are not sadists, homosexuals, exhibitionists, or similar deviates, but 'normal' married individuals who only enjoy one method of coitus...because they are afraid or ashamed to try the dozens of other sexual variations that are easily available to them."
In offering such psychologically sound advice, the marriage manuals, educators and counselors of America are actually inviting husbands and wives to commit criminal acts in their bedrooms—acts that are prohibited by law almost everywhere in the United States, with lengthy prison sentences prescribed to the guilty.
Since the relations between a man and his wife are most often kept private, relatively few instances of such behavior come to public attention. Kinsey reports, in Sexual Behavior in the Human Male, however, "While the laws are more commonly enforced in regard to such relations outside of marriage, there are instances of spouses whose oral activities became known to their children, and through them to the neighborhood, and ultimately led to prosecution and penal sentences for both husband and wife...."
More often this behavior comes to light as the result of a divorce action, although Ploscowe comments that it has been customary for the courts to view such charges with skepticism when they are a part of a suit for divorce, since they are inherently unprovable and rest solely upon the assertion of the party seeking to end the marriage. Sometimes the behavior comes to light through charges lodged by an unwilling partner in oral or anal sex, because the act was allegedly performed under duress.
Kinsey states in his second volume, Sexual Behavior in the Human Female, "We have cases of persons who were convicted because one of the spouses objected, or because some other person became aware that oral and anal play had been included in the marital activities." Kinsey observes that there have been relatively few actual convictions of husbands or wives under U.S. sodomy laws, but adds, "As long as they remain on the books, they are subject to capricious enforcement and become tools for blackmailers. In those states where the definition of cruelty as one of the grounds for divorce includes 'personal indignities' or 'mental cruelty,' divorce cases involving either the husband's or the wife's desires or demands for the use of oral techniques are not infrequent."
For the unmarried, the chances of discovery and possible prosecution are obviously greater. Completion of the act to orgasm, with either the male or female, is not required to be guilty of the offense—the act itself is sufficient; in some states, a conviction may be based upon circumstantial evidence, or simply upon an attempt to commit the act: Alabama's statute on the "crime against nature" states, "An offense may be proven under this section...by circumstantial evidence, when positive proof is wanting.... A conviction may be had for an attempt to commit an offense denounced by this section." In some states the mere suggestion of solicitation to engage in such behavior is a crime. Kinsey reports, "One case even goes so far as to uphold the conviction of a man for soliciting his wife to commit sodomy."