NO BULLSHIT:  SODOMY, CRIMES AGAINST NATURE AND OTHER WEST VIRGINIA LAWS

February 11, 2009

 

 

Sodomy:  anal or oral copulation with a member of the same or opposite sex ; also : copulation with an animal[1]

Common Law:  the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the United States except Louisiana[2]

Prior to 1962, sodomy was a felony in every state, punished by a lengthy term of imprisonment and/or hard labor. In 1962 Illinois became the first state to end its sodomy laws, almost a decade before another state followed. Over the years, many of the states that did not repeal their sodomy laws had enacted legislation reducing the penalty. Immediately prior to the Lawrence decision in 2003, the penalty for violating a sodomy law varied very widely from jurisdiction to jurisdiction among those states retaining their sodomy laws. The most harsh penalties were in the state of Idaho, where a person convicted of sodomy could theoretically earn a life sentence. Michigan followed, with a maximum penalty of 15 years imprisonment (repeat offenders got life), this was later invalidated by a Court case under Human Rights vs Kelly.[3]

West Virginia broke away from Virginia in a dispute over the Civil War and, in 1863, was admitted to the Union. Its first constitution mandated that laws of Virginia in effect at the time of separation would remain in force. This retained the 1860 "buggery" law of Virginia that established a penalty of 1-5 years. Common-law crimes also were recognized.   The earliest known United States law journal article dealing with sodomy was in 1905 in West Virginia. Attorney E.D. Leach argued that "perverted sexual natures" were related to crime. "Sodomy, rape, lust-murder, bodily injury, theft, robbery, torture of animals, injury to property and many other crimes may be committed under these conditions."   In 1917, a bill was introduced into the West Virginia legislature to expand coverage of the sodomy law to include oral sex by copying the laws of Ohio (q.v.), Iowa (q.v.), and Nebraska (q.v.). The bill passed the House of Delegates, but not the Senate.  Despite this attempt, there was no change in the law until the adoption of a comprehensive code revision in 1930 that finally eliminated the term "buggery" and substituted "crimes against nature." It reworded the proscription as

If any person shall carnally know in any manner any brute animal, or carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than ten years

In the state’s first reported sodomy case, State v. Friedman in 1942, the West Virginia Supreme Court decided that emission of semen was not required to complete the crime.

West Virginia enacted a psychopathic offender law in 1957. This law made psychiatric referrals compulsory for anyone convicted of incest or "crimes against nature," but only discretionary for those convicted of rape or other sex crimes.

In 1976, a comprehensive revision of the state’s sexual assault laws repealed the law against sodomy. The age of consent was set at 16. (Case law on sodomy is scarce in West Virginia, and three of four convictions have been reversed by the West Virginia Supreme Court, thus making it unclear to what extent the law was enforced. The state was one of the last to enact a psychopathic offender law and there is no case law to reveal how the law was enforced. A sexual assault revision law in 1976 repealed the sodomy law, but no change was made in the common-law reception statute.)

The state continues to recognize common-law crimes and case law in the state is that repeal of a statute in support of the common law revives the common-law provision on the subject. Thus, anal sex technically is still indictable in the state. (There are no published cases dealing with the limits of state power to regulate sexual activity in places such as restrooms or parked cars. Because of the decriminalization of consensual sodomy, only that occurring in semi-public places still may be subject to prosecution, except that the common-law statute and its supporting case law will permit consensual anal sex to be indicted if a prosecutor chooses to do so.[4]

 

Okay, so “sodomy laws” repealed but “common-law crimes” remain.  WHAT DOES THAT MEAN?

 

Under the common law of England, which carried to the United States, sodomy was defined only as anal sex between two men or between a man and a woman, and any kind of sexual activity with a subhuman animal of the opposite sex. This limitation remains in the definition today. Adoption of the common law in the United States automatically also adopted English statutory law. This includes the English “buggery” statute from the 16th century, since it was in effect prior to the first English settlement in what now is the United States.

 

In 1955, when the American Law Institute published its proposed Model Penal Code, it recommended abrogation of common-law crimes. Because much of the common law was adopted hundreds of years ago and under extremely different social situations, and because it is unwritten, this places a strange burden on individuals to know whether their acts or omissions are legal so that they don’t violate unwritten laws.

A major problem with adoption of common-law crimes is that it criminalized consensual sodomy independently of sodomy statutes. Merely repealing a sodomy law did not necessarily make sodomy legal. In eight of the 14 jurisdictions still recognizing common-law crimes, courts were asked to decide whether repeal of a statute derogating the common law reinstated the common-law provision. Seven of the eight said that it did, meaning that sodomy could remain criminal in these states, even with repeal of a sodomy law.  In New Mexico, Washington, and West Virginia, sodomy law repeals did not disturb the common-law crime reception statutes and courts in those states interpreted the repeal of a statute derogating the common law to revive the common-law provision, meaning that, in those states, private, consensual pre-Lawrence anal sex also remained indictable.

West Virginia Laws on the books:

§61-8-4. Lewd and lascivious cohabitation and conduct; penalty; when persons presumed to be unmarried.  If any persons, not married to each other, lewdly and lasciviously associate and cohabit together, or, whether married or not, be guilty of open or gross lewdness and lasciviousness, they shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than fifty dollars, and may, in the discretion of the court, be imprisoned not exceeding six months, and, upon a repetition of the offense, they shall, upon conviction, be confined in jail not less than six nor more than twelve months. In prosecutions for adultery and fornication, and for lewdly and lasciviously cohabiting together, the persons named in the indictment shall be presumed to be unmarried persons in the absence of proof to the contrary.

§61-8-3. Adultery and fornication; penalty.
If any person commit adultery or fornication, he shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than twenty dollars.

§61-8-9. Indecent exposure.
(a) A person is guilty of indecent exposure when such person intentionally exposes his or her sex organs or anus or the sex organs or anus of another person, or intentionally causes such exposure by another or engages in any overt act of sexual gratification, and does so under circumstances in which the person knows that the conduct is likely to cause affront or alarm.
(b) Any person who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county jail not more than ninety days, or fined not more than two hundred fifty dollars and confined in the county jail not more than ninety days.

§61-8-15. Profane swearing and drunkenness; penalty.
If any person arrived at the age of discretion profanely curse or swear or get drunk in public, he shall be fined by a justice one dollar for each offense.

§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(i) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than twelve years old and is not married to that person.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years.
(c) Notwithstanding the provisions of subsection (b) of this section, the penalty for any person violating the provisions of subsection (a) of this section who is eighteen years of age or older and whose victim is younger than twelve years of age, shall be imprisonment in a state correctional facility for not less than twenty-five nor more than one hundred years and a fine of not less than five thousand dollars nor more than twenty-five thousand dollars.

§61-8B-4. Sexual assault in the second degree.
(a) A person is guilty of sexual assault in the second degree when:
(1) Such person engages in sexual intercourse or sexual intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion; or
(2) Such person engages in sexual intercourse or sexual intrusion with another person who is physically helpless.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor more than twenty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in the penitentiary not less than ten nor more than twenty-five years.

§61-8B-5. Sexual assault in the third degree.
(a) A person is guilty of sexual assault in the third degree when:
(1) The person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated; or
(2) The person, being sixteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than sixteen years old and who is at least four years younger than the defendant and is not married to the defendant.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one year nor more than five years, or fined not more than ten thousand dollars and imprisoned in a state correctional facility not less than one year nor more than five years.

 

§61-2-8. Abortion; penalty.
Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.

(Think “gay-bashing” here):
§61-6-12. Mobs and lynchings; penalties; liability of county or city.
Any collection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of anyone supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional or regulative powers over any person or persons by violence, and without lawful authority, shall be regarded and designated as a "mob" or "riotous assemblage."
The term "serious injury," for the purposes of this section, shall include any injury to property which shall cause damage to the owner thereof, or any injury to the person which shall temporarily or permanently disable the person injured from earning a livelihood.
The putting to death of any person within this state by a mob or riotous assemblage shall be murder, and every person participating in such mob or riotous assemblage by which a person is put to death shall be guilty of murder, and, upon conviction thereof, shall be punished as the law provides in other cases of murder.
Any person or persons who shall compose a mob or riotous assemblage, with the intent to inflict damage or injury to the person or property of any individual charged with crimes, or, under the pretense of exercising correctional powers over such person or persons by violence, and without lawful authority, shall be subject to a fine of not less than one hundred nor more than one thousand dollars, and may be imprisoned, in the discretion of the court, in the county jail not less than thirty days nor more than twelve months for each and every offense. Any person or persons who shall compose a mob or riotous assemblage, and who shall inflict damage or injury to the person or property of any individual charged with crimes, shall be guilty of a felony, and upon conviction, shall be confined in the penitentiary not less than one nor more than ten years for each and every offense.
Any person or persons composing a mob or riotous assemblage under the provisions of this section, who shall, by violence, inflict serious injury to the property or to the person of any other person upon the pretense of exercising correctional or regulative powers over such person or persons, and without authority of the law, shall be deemed guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary not exceeding five years; and any person suffering serious injury to his person or his property by a mob, shall have an action against the county or city in which such serious injury is inflicted, for such damages as he may sustain, to an amount not to exceed five thousand dollars.
The county in which such person charged with a crime has been taken from a state, county or municipal officer, and lynched and put to death, shall be subject to a forfeiture of five thousand dollars, which may be recovered by appropriate action therefor, in the name of the personal representative of the person put to death, for the use of his dependent family or estate. Such action may be brought in any state court. If such forfeiture is not paid upon recovery of judgment therefor, the court rendering such judgment shall have power to enforce the payment thereof, and may compel the levy and collection of a tax therefor, or otherwise compel the payment thereof by mandamus or other appropriate process, and every officer of such county, and every other person who disobeys or fails to comply with any lawful order of the court, shall be liable to punishment according to law as for contempt and to any other penalties provided by law therefor.
The fact that any person so put to death shall have been taken from any state, county or municipal officer in one county, by a mob or riotous assemblage of five or more persons, and transported out of such county before such killing shall have taken place, and the fact that such killing occurred out of the county from which such person may have been taken from such state, county or municipal officer, shall not relieve such county from which he was taken from the liability provided by this section. And if the person so taken from such officer or officers shall be transported from and put to death and lynched in another county outside of the county wherein he was taken from such officer or officers, no county through which such person may have been transported, or in which such person has been lynched and put to death, shall be liable to damages hereunder, unless it is clearly shown that the officers or citizens in such county or counties participated in, aided, abetted or encouraged such unlawful putting to death.
Every state, county or municipal officer having the duty or power of preservation or conservation of the peace at the time and place of any such putting to death, or the committing of serious injury to the person or to the property as prescribed in this section, who, having reasonable cause to believe that the same is to be done, or is attempted to be done, and neglects or omits to prevent the same, and every such officer from whose custody such person may be taken by such mob or riotous assemblage, and put to death by the same, or whose property or person suffers serious injury at the hands of such mob or riotous assemblage, shall be guilty of negligence in the discharge of his official duty, and the county or city which shall have been sued and compelled to pay damages as herein provided may recover same from such negligent officer by appropriate action upon his official bond.
In any prosecution for any of the offenses defined herein, and any action for the forfeiture imposed as herein provided, every person who has participated in the lynching or in the putting to death of, or in the infliction of great bodily violence or serious injury to the person or the property of any person, without authority of the law, and every person who entertains or has expressed any opinion in favor of lynching or in the justification or excuse thereof, or whose character, conduct, or opinions have been or are such as, in the judgment of the court, may tend to disqualify him for an impartial and unprejudiced trial of the cause, shall be disqualified to serve as a juror, and in any such action or prosecution, any attorney interested in the case shall be entitled to make full inquiry thereof and to produce evidence thereon; and every person who refuses to answer any inquiry touching his qualifications on the ground that he may thereby incriminate himself shall be disqualified as aforesaid.

 

§61-8-12. Incest; penalty.
(a) For the purposes of this section:
(1) "Aunt" means the sister of a person's mother or father;
(2) "Brother" means the son of a person's mother or father;
(3) "Daughter" means a person's natural daughter, adoptive daughter or the daughter of a person's husband or wife;
(4) "Father" means a person's natural father, adoptive father or the husband of a person's mother;
(5) "Granddaughter" means the daughter of a person's son or daughter;
(6) "Grandfather" means the father of a person's father or mother;
(7) "Grandmother" means the mother of a person's father or mother;
(8) "Grandson" means the son of a person's son or daughter;
(9) "Mother" means a person's natural mother, adoptive mother or the wife of a person's father;
(10) "Niece" means the daughter of a person's brother or sister;
(11) "Nephew" means the son of a person's brother or sister;
(12) "Sexual intercourse" means any act between persons involving penetration, however slight, of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth or anus of another person;
(13) "Sexual intrusion" means any act between persons involving penetration, however slight, of the female sex organ or of the anus of any person by an object for the purpose of degrading or humiliating the person so penetrated or for gratifying the sexual desire of either party;
(14) "Sister" means the daughter of a person's father or mother;
(15) "Son" means a person's natural son, adoptive son or the son of a person's husband or wife; and
(16) "Uncle" means the brother of a person's father or mother.
(b) A person is guilty of incest when such person engages in sexual intercourse or sexual intrusion with his or her father, mother, brother, sister, daughter, son, grandfather, grandmother, grandson, granddaughter, nephew, niece, uncle or aunt.
(c) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than five years nor more than fifteen years, or fined not less than five hundred dollars nor more than five thousand dollars and imprisoned in the penitentiary not less than five years nor more than fifteen years.
(d) In addition to any penalty provided under this section and any restitution which may be ordered by the court under article eleven-a of this chapter, the court may order any person convicted under the provisions of this section where the victim is a minor to pay all or any portion of the cost of medical, psychological or psychiatric treatment of the victim, the need for which results from the act or acts for which the person is convicted, whether or not the victim is considered to have sustained bodily injury.
(e) In any case where a person is convicted of an offense described herein against a child and further has or may have custodial, visitation or other parental rights to the child, the court shall find that the person is an abusing parent within the meaning of article six, chapter forty-nine of this code, and shall take such further action in accord with the provisions of said article.

§61-8A-2. Distribution and display to minor of obscene matter; penalties; defenses.
(a) Any adult, with knowledge of the character of the matter, who knowingly and intentionally distributes, offers to distribute, or displays to a minor any obscene matter, is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars, or confined in a state correctional facility for not more than five years, or both.
(b) It is a defense to a prosecution under the provisions of this section that the obscene matter:
(1) Was displayed in an area from which minors are physically excluded and the matter so located cannot be viewed by a minor from nonrestricted areas; or
(2) Was covered by a device, commonly known as a "blinder rack," such that the lower two thirds of the cover of the material is not exposed to view; or
(3) Was enclosed in an opaque wrapper such that the lower two thirds of the cover of the material was not exposed to view; or
(4) Was displayed or distributed after taking reasonable steps to receive, obtain or check an adult identification card, such as a driver's license or other technically or reasonably feasible means of verification of age.
(c) It is a defense to an alleged violation under this section that a parent had taken reasonable steps to limit the minor's access to the obscene matter.[5]