Out of the close alliance of church and state in Europe, many of these ecclesiastical laws eventually found their way into the laws of secular society. And so, even while proclaiming the separation of church and state in America, we accepted into our own legislative doctrine many of the same statutes covering private sexual behavior that were, by then, a part of English common law—even though they were clearly no more than a reinforcement of church dogma by the state.
Crime Without Coitus
The taboos—both social and legal—surrounding nonprocreative sex are still extreme in modern American society, but the activity is, nevertheless, quite common. Although masturbation was thought to cause all manner of mental, emotional and physical ills in our grandparents' day, almost all males (over 90 percent) and a majority of females (over 60 percent) admit to having some masturbatory experience; and precoital petting commonly includes some mutual masturbation, especially among males and females of higher education.
Mouth-genital activity (fellatio and cunnilingus) is also a common part of the heterosexual foreplay to coitus, and sometimes serves as a substitute for sexual intercourse, especially among unmarried, upper-educated adolescents and adults, with whom the taboos surrounding premarital intercourse seem most successful. Dr. Alfred Kinsey states, in Sexual Behavior in the Human Male: "Mouth-genital contacts of some sort, with the subject as either the active or passive member in the relationship, occur at some tine in the histories of nearly 60 percent of all males."
Kinsey and his associates found, in their studies of U.S. sex behavior, that approximately 18 percent of all American men have premarital, heterosexual oral-genital relations of an "active" nature (cunnilingus, performed by the male upon the female) and 38 percent have "passive" oral-genital relations prior to marriage (fellatio, performed by the female upon the male); approximately 15 percent of all U.S. women have some mouth-genital experience, either "active" or "passive," prior to marriage; and between 40 to 50 percent of all husbands and wives engage in such activity.
Although Kinsey neglected to tabulate the statistics on anal intercourse derived from his studies, and so specific figures on this behavior do not appear in either Sexual Behavior of the Human Male or Female, Dr. Paul Gebhard, who succeeded Dr. Kinsey as director of the Institute for Sex Research on the latter's death, indicates that this form of noncoital sex is far more common than was previously assumed, and eventually involves between 10 and 20 percent of the total population.
Crimes With Man and Beast
Homosexuality is considered a perversion by most of contemporary American society and the recognized homosexual—especially the male—is often subjected to considerable abuse. It may come as a surprise to many, therefore, to learn that a relatively high percentage of all men and women have had some homosexual experience.
It is recognized by experts in the field of sexual behavior that most males and females can, under certain circumstances, be erotically attracted to members of the same sex. Whenever either men or women are placed in a situation in which their contacts are largely limited to their own sex for any appreciable length of time—as in prison, boarding school or certain assignments in the armed service—there is a marked increase in homosexual activity.
While only a small percentage is exclusively homosexual for a lifetime (4 percent of all U.S. males), Kinsey's researchers found that a minimum of 37 percent of the male population has some overt homosexual experience to the point of orgasm after puberty and prior to the age of 45; and 20 percent of the total female population has engaged in some homosexual activity prior to that age.
Sexual contacts between humans and other forms of animal life are even more taboo in our society than homosexual activity and, until recently, this was assumed to be a relatively rare form of sexual release for man; but Kinsey found that in rural areas, where a variety of animals was readily available, animal contacts were quite common in the early sexual experimentation of young males. Kinsey states, "Something between 40 and 50 percent of all farm boys...have some sort of animal contact, either with or without orgasm, in their preadolescent, adolescent, and/or later histories." While only 8 percent of the total male population has postadolescent experience with animals resulting in orgasm, the lowness of this figure would appear to reflect lack of opportunity more than anything else, since approximately 17 percent of the males from rural and farm communities have such contacts, and in some Western parts of the United States, the incidence rises to as high as 65 percent.
Crimes Abominable & Detestable
All of the aforementioned nonprocreative sexual behavior has been lumped together by our state legislators into omnibus statutes against "sodomy." In the literal sense, sodomy is anal intercourse involving two males—the word is derived from the Biblical story of Sodom, which the Lord destroyed with fire and brimstone, because He was displeased with the prevalence of the practice there—but its meaning is now sometimes extended to include sexual acts with animals (bestiality), as well.
It is difficult to arrive at any adequate legal definition, however, for the sodomy statutes of the U.S. encompass, without distinction, almost every imaginable form of noncoital sex—homosexual and heterosexual, marital and nonmarital—including fellatio, cunnilingus, pederasty, buggery, bestiality and, in two states (Indiana and Wyoming), even mutual masturbation.
Although the common law of England—from which most American law is derived—considered sodomy as either the act of pederasty or bestiality performed by or upon a man, a majority of our states' statues have given it a far broader application—covering oral as well as anal intercourse, and prohibiting such activity not only between members of the same sex, but also between members of the opposite sex. Including husband and wife.
Minnesota's statute reads, in part: "Any person who shall carnally know any animal, bird, man or woman, by anus or mouth, or voluntarily submits to such knowledge...is guilty of sodomy...."
Iowa goes further with: "Whosoever shall have carnal copulation in any opening of the body [emphasis ours] except sexual parts with another human being, or shall have carnal copulation with a beast shall be deemed guilty of sodomy...."
And Arizona goes further still: "Any person who shall willfully commit any lewd or lascivious act upon or with the body of [or] any part or member thereof, of any male or female person with intent of arousing, appealing to, or gratifying the lust, or passion, or sexual desires of either person in any unnatural manner shall be guilty of a felony...."
The Indiana law reads: "Whoever commits the abominable and detestable crime against nature with mankind or beast; or whoever entices, allures, instigates or aids any person under the age of twenty-one (21) years to commit to masturbation or self-pollution shall be deemed guilty of sodomy...."
Forty-nine of the 50 states have sodomy statutes; they are among the most irrationally conceived and emotionally written of any to be found in contemporary jurisprudence. The phrase "abominable and detestable crime against nature" appears with great frequency in these laws and often serves as an alternate name, and sometimes as the only description, for the offense.
Rhode Island actually lists its statute under that title; the entire Rhode Island law reads as follows: "11-10-1. Abominable and detestable crime against nature.—Every person who shall be convicted of the abominable and detestable crime against nature, either with mankind or with any beast, shall be imprisoned not exceeding twenty (20) years nor less than seven (7) years." In Utah, Arizona and Nevada, the offense is referred to as the "infamous crime against nature."
These phrases further substantiate the religious superstition from which such laws were derived. The very concept of a "crime against nature" is religious; it is another way of describing what is considered to be, within a particular religious framework, an act that goes against the will of God.
Without any evaluation of the moral issues involved, it must be pointed out that the modern social scientist, armed with insights of psychiatry and evidence of the actual incidence of noncoital sexual activity in human and infrahuman species, recognized that such behavior cannot be considered abnormal, or "unnatural," in any scientific sense.
But these laws evolved from Puritan antisexualism, not scientific insight. And the subject has traditionally been considered so distasteful by those who have dealt with it, on both the legislative and judicial levels, that the statutes and their court application form a record of injustice that is far more "abominable and detestable" than the personal behavior they are supposed to suppress.
Crimes Not Fit to be Named
The noted 18th century justice Sir William Blackstone, author of the famous Commentaries, which are still fundamental in any study of English or U.S. law, reflected his own Puritan environment and the irrational emotionalism long associated with the subject, when he wrote: "I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon 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...."
The "delicacy" to which Blackstone refers is quite without precedent in English and U.S. law. It means precisely what it implies—that these acts have been deemed so improper, are viewed with suck loathing and disgust, that it is considered unnecessary to describe them in any detail in either the statutes or the actual court indictments. The defendants in such cases are traditionally expected to prove themselves innocent of a charge, the particulars of which are unspecified, because they are "not fit to be named."