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Criminalizing Homosexuality

On January 8,1962, a state grand jury in Mecklenburg County, North Carolina, handed down an indictment charging two men—call them Defendants A and B—with having committed a homosexual act, more specifically, fellatio. Defendant A pleaded no contest, received a five-year sentence and served a portion of it. Defendant B pleaded not guilty, was tried by a jury, and was sentenced to serve not less than 20 or more than 30 years in jail. The sentences were handed down by the same judge.

What is immediately shocking about this narrative is not merely the ferocity of Defendant B’s sentence, but the disparity between his treatment and that meted out to Defendant A. One is led to suspect, perhaps unworthily, that race may have been a factor, or that a grotesquely unjust judge was being vindictive for some other improper reason. At the least, one wonders whether Defendant A may have been a minor, or whether Defendant B otherwise bore a heavier responsibility for the forbidden act—not that the unheard-of sentence could be justified in this fashion. But the truth is that Defendants A and B were consenting adult white males, and that the sentencing judge has a perfectly decent reputation and no past record of medieval savagery. This was no ordinary miscarriage of justice. The case is more interesting and sadder than that.

It was tried under a North Carolina law copied, with few modifications, which are themselves notable, from an English statute enacted in 1533. That statute, assented to by Henry VIII, made it a felony punishable by death to commit “the vice of buggery.” North Carolina copied it in 1837, substituting a euphemism for the phrase just quoted. The statute was made to read in its entirety as follows: “Any person who shall commit the abominable and detestable crime against nature, not to be named among Christians, with either mankind or beast, shall be adjudged guilty of a felony, and shall suffer death without the benefit of clergy.”

In 1854 the phrase about Christians and the anachronism about the benefits of clergy were struck, and 15 years later the death penalty was eliminated, and a punishment of not less than five nor more than 60 years was prescribed instead.

So the law stands in North Carolina to this day, and it has previously been interpreted to cover fellatio. However, no sentence exceeding five years seems ever before to have been imposed under this statute where the offenders were both adult males—at least the Attorney General of North Carolina was able to point to no instance of a higher sentence when requested to do so in federal court. Why then the catastrophic retribution visited on Defendant B?

Wore Women’s Clothes

Inquiry indicates that Defendant B was a notorious character around town, walking about dressed in female clothes, wearing long hair, and making a public nuisance of himself. Indeed, he walked into his trial—being out on bail at the time—dressed in women’s clothes. There was nothing to be done until he committed a provable overt act, and then evidently there was nothing to be done but put him in jail, virtually for the rest of his life. Apparently North Carolina has no resources other than the statute of Henry VIII, as appropriately modified to meet modern conditions, for dealing with the social problem and the public nuisance—assuming that a North Carolina community is entitled to so consider it—represented by Defendant B.

But there are the federal courts. Defendant B filed a petition for habeas corpus before Judge James Braxton Craven, of the United States District Court for the Western District of North Carolina in Asheville. There was a hearing at which Defendant B was represented by court-appointed counsel. Judge Craven fairly recoiled in shock. He found it difficult, however, under applicable precedents, to hold that a cruel and unusual punishment had been inflicted on Defendant B in violation of the Eighth Amendment of the federal Constitution. And he found it perhaps unnecessary to do so, since with only some slight straining an irregularity could be discovered in Defendant B’s trial. Counsel who had earlier been appointed for Defendant B in the state court—other counsel—had had only two daylight hours in which to prepare a defense. The indictment was handed down on a Monday, counsel was appointed at 4:00 p.m. the following Tuesday afternoon, and trial began at 9:00 a.m. on Wednesday. Defendant B had therefore been deprived “of the effective aid and assistance of counsel.” And so, on October 5, 1964, Judge Craven ordered that the defendant be released, unless within 60 days North Carolina chose to retry him. North Carolina, Judge Craven surmised, would very likely retry Defendant B, and so Judge Craven ended the opinion with some advice to his state: “Putting ... [defendant] in the North Carolina prison system is a little like throwing Brer Rabbit into the briar patch. Most doctors who have studied homosexuality agree that prison environment ... aggravates and strengthens homosexual tendencies and provides unexcelled opportunity for homosexual practices. ...

“There is some indication of a willingness to take a fresh look at the statutes such as that of Henry VIII. ... The American Law Institute proposes to punish only those ‘deviate sexual relations’ which involve force, imposition or corruption of the young. Voluntary, private homosexual acts between adults are specifically excluded. ...

“Is it not time to redraft a criminal statute first enacted in 1533? And if so, cannot the criminal law draftsmen be helped by those best informed on the subject—medical doctors—in attempting to classify offenders? Is there any public purpose served by a possible 60-year maximum or even five-year minimum imprisonment of the occasional or one-time homosexual, without treatment, and if so, what is it?”

As Judge Craven foresaw, North Carolina does intend to retry Defendant B, probably this month. There is no indication, on the other hand, that North Carolina intends to revise its law.