Is Queer Sex Legal? How Sex Laws Have Changed (or Not) Since 1964

18th June, 2011: A couple embraces at the Gay Pride Rally in Toulouse, France. (Photo: Guillaume Paumier)A couple embraces at the Gay Pride Rally in Toulouse, France, June 18, 2011. (Photo: Guillaume Paumier)

The Mattachine Society was one of the earliest US gay rights groups, formed in 1950 to address the overwhelming discrimination gay men and other queer people faced. The criminalization of gay sex in the mid-20th century is well known, and federal anti-sodomy laws weren’t off the books until 2003.

Slate recently unearthed a document in the Mattachine archives from 1964 that shows a list of sex crimes – sodomy, fornication, adultery and cohabitation – and their corresponding mandatory sentences. Sodomy had by far the harshest penalties, with mandatory minimums of 20 years in prison in Florida, Massachusetts, Minnesota and Nebraska. North Carolina even allowed up to 60 years in prison for sodomy, which, at the time, had a very broad definition.

The document states that “sodomy, often referred to as ‘the crime against nature,’ includes a wide variety of ‘unnatural’ sexual activity, with animals or with another person of either sex, both within and outside of marriage.” Seemingly broad in scope and deliberately vague, anti-sodomy laws were largely understood to specifically target same-sex relations.

Have the baldly homophobic laws of the 20th century really gone away?

These are incredibly harsh penalties for sexual practices that most would consider innocuous in 2015. Gay rights groups have made great strides in repealing anti-sodomy laws on federal and state levels, and these efforts should be commended. And yet, prosecutions for sex crimes are growing faster than any other type of crime, with an exponentially rising rate of arrests and convictions. Gay men are arrested in cruising stings, HIV-positive men are sent to prison for merely being sexually active, and sex workers and clients are arrested for victimless crimes. Much of these prosecutions disproportionately affect queer folk, despite advances in civil rights for LGBT people. Have the baldly homophobic laws of the 20th century really gone away? Or are they merely being repackaged and rebranded for a more gay-friendly public? More pointedly, is queer sex actually legal?

Gay Cruising

One of the earliest and longest lasting examples of systemic criminalization of queer people can be seen in gay cruising stings. In order to catch and prosecute people for sodomy, law enforcement had to be discreet, impersonating gay men and frequenting gay populated areas like bathhouses. Throughout the 20th century, bathhouses and other back-alley meeting places provided a necessary and relatively safe space for gay men in the face of increasingly stringent sodomy laws.

The first recorded cruising sting occurred at New York’s Ariston Baths in 1903. The raid saw 26 men arrested and 12 put on trial. A 1957 sting at St. Mark’s Baths in Manhattan led to the arrest of 31 men for “immoral acts”; in 1966, San Francisco ordered a crackdown on bathhouses. Such operations continued well into the 1970s, with harsh punishments designed to frighten and humiliate gay men. Since the 1980s, as a result of the AIDS epidemic and the ever-present threat of police raids, bathhouses have declined in popularity. Many were forced to shut their doors, and gay men ventured into more public spaces to find sexual partners.

Stings continue to target gay men today, mostly in parks, bathrooms and other public spaces.

Stings continue to target gay men today, mostly in parks, bathrooms and other public spaces. In 2007, 40 men were caught in Johnson City, Tennessee. Another 500 men were stung over a period of five years, from 2002 to 2007, in the Salt Lake City area. In 2008, 24 men were netted in Huntsville, Alabama, and an additional 19 men in PalmSprings the following year. With arrests in the double digits, 2011 was a banner year for Kent County, Michigan, and Kansas City. The list is ongoing.

Law enforcement uses disarmingly simple tactics to entrap these men. In 2013, undercover Dallas officers dressed in “speedos and suggestive T-shirts” positioned themselves along park walkways, enticing men into the bushes. More than 20 gay men were captured in the operation. Not all cruising stings involve scantily clad detectives, but many involve duplicitous seduction. For example, Atlanta bagged 50 men during Operation Summer Heat in 2011, when police officers posed as men seeking sex along streets frequented by gay prostitutes. The apprehended sex workers received jail time ranging from 10 to 180 days, depending on the number of prior prostitution charges. Law enforcement’s continuing war against sex work presents itself through their creation of cynical holidays such as the “National Day of Johns Arrests.”

For many, the end result of involvement in a sting can be jail or even sex offender registration, not to mention the public humiliation of a mugshot on the nightly news. In the eyes of law enforcement, gay sex is still seen as illegal, immoral and deserving of erasure.

HIV Criminalization

The first HIV laws of the 1980s were passed to curb transmission of the disease when HIV panic had reached its zenith. Today, HIV is not the death sentence it once was. HIV status, however, may still net a lengthy prison sentence. In 2008, Nick Rhoades was sentenced to 25 years for failing to disclose his HIV status to a male partner. Rhoades not only used a condom, but his viral load was undetectable. Under advisement of an attorney, Rhoades pleaded guilty. He spent time in prison and on the sex offender registry before the Iowa Supreme Court overturned his conviction in the summer of 2014.

Today, 32 states have specific laws criminalizing HIV.

Robert Suttle was similarly convicted under nondisclosure laws. Like Rhoades, Suttle pleaded guilty to avoid a 10-year sentence. Even though he was not accused of transmitting HIV or even lying about his status, he was convicted of not disclosing his status prior to sexual contact. Suttle was sentenced to probation and required to register as a sex offender for 15 years. When Suttle met with his probation officer, however, he discovered that in order to register as a sex offender, he also had to serve jail time. The court resentenced him to six months in jail as a result. His driver’s license serves as a constant reminder of his status, embellished with “SEX OFFENDER” in bright red letters.

Today, 32 states have specific laws criminalizing HIV. A Slate article revealed that in Iowa, for example, an HIV-positive person who transmits HIV with “reckless disregard” can still face five years in prison. In 2014, in Wisconsin, HIV transmission or exposure began being used as a sentencing enhancement for certain sex offenses. Exposing someone to HIV in Arkansas guarantees a felony offense with sex offender registration.

Actual transmission of HIV is not a requirement for incarceration in most states. Only the chance of contracting HIV is required. This feeds a dangerous cycle: Incarceration and possible sex offender registration heightens fear of the disease, which inevitably leads to new transmissions; no one will want to get tested if a positive result could land you in jail. Unfortunately, it looks as if the stigma will continue as reform has slowed to a halt.

Queer Youth

Queer youth are not exempt from biased criminalization of sex crimes, a cruel irony given that sex offender registration was purportedly meant to protect children from dangerous predators. Research indicates queer youth are disproportionately targeted as a result of subtle discrimination.

The case of Kaitlyn Hunt, a young lesbian from Florida, is one of the most recent and dramatized instances. Hunt, 18, was charged with lewd and lascivious battery simply for being in a consensual relationship with a 14-year-old girl at her high school. She eventually pleaded to lesser charges and escaped sex offender registration, but she is forever branded.

“Being persecuted by the government for consensual relationships is an unacceptable byproduct of deeply ingrained homophobia.”

In 2000, Matthew Limon was a week past his 18th birthday when he performed consensual oral sex on a 15-year-old boy. Both Limon and the boy were residents at a home for developmentally disabled youth. Limon was charged under Kansas’ sodomy statute, which had disparate sentencing guidelines for straight and gay defendants. A straight person would have received 15 months without requiring sex offender registration, but Limon was sentenced to 17 years with mandatory sex offender registration. His conviction would not be vacated until a Supreme Court decision six years later.

Researchers developed a test to determine how harshly a youth offender should be punished. They found that participants were significantly more apt to punish a gay male youth than either their lesbian or straight equivalents. The bias against queer youth is clear. Normal problems of puberty are exacerbated for young queer people and, as the Center for Sexual Justice’s Odell Huff writes, “being persecuted by the government for consensual relationships is an unacceptable byproduct of deeply ingrained homophobia in our society and legal system.”

Queer Criminalization Today

If public opinion is shifting toward wider acceptance of LGBT people and gay marriage, then what accounts for this continuation of criminalizing sexuality?

Marie Gottschalk, author of Caught: The Prison State and the Lockdown of American Politics, explains how a focus on sex crimes is utilized to enable the growth of the prison industrial complex. “The war on sex offenders poses perhaps the greatest political challenge for those seeking to dismantle the carceral state,” Gottschalk writes. “All the expensive punishments and restrictions heaped on sex offenders over the past two decades show that states, municipalities, and the federal government are willing to bear enormous social and fiscal costs to wage this war.”

Even more frightening, queer-loving liberals are more often than not unwilling to speak against out-of-control sex laws. Gottschalk continues: “Talk of embracing the plight of sex offenders makes even some of the most progressive penal reformers squeamish.” James D’Entremont writes about how groups like the Human Rights Campaign, the largest gay rights nonprofit in the world, were indifferent to the work he was doing to free a wrongly convicted gay man sent to prison during the day care sex panics of the 1980s. New York gay activist Bill Dobbs explains, “Gay people intersect with the criminal justice system in all kinds of ways. But when one of us gets accused of a crime, the leadership goes mute. The focus on victims has blinded us to serious injustices.”

In an important (and rare) article on the history of queer folk and sex offender registries, Yasmin Nair also points to mainstream silence:

The term “sex offender” is rarely uttered at gay and lesbian public events, raising as it does an old and timeworn stereotype that still causes fear because of its automatic association with terms such as “pedophile” and “sodomite.” To date, none of the major gay and lesbian organizations has explicitly taken a position on issues concerning sex offender registries. But there are in fact gay sex offenders on the registry, and there have always been widely sensationalized cases of alleged and real sexual abuse of children by men who also identify as gay.

In Sex Panic and the Punitive State, Roger Lancaster draws a theoretical link between homophobic sex panics of the past and today’s obsession with sex crime:

Often-repeated claims about the incurability of the sex offender whose preference is for males clearly mark the genealogy of the pedophile, and free-hand theories about the “cycle of abuse” echo yesteryear’s notion of homosexual contagion. In this zone of terrible ambiguity, something has remained the same, while something else, something more, is in the making: the invention of new monsters and victims; the production of new ideas about childhood, sex, and the integrity of the person; the development of new middle-class norms and phobias; and the deployment of an expansive new machinery for marking, supervising, and regulating deviants.

As evidenced by the continual arrests of gay men and queer people for nonviolent and victimless sex crimes, many of today’s “sex offenders” are not the phantasmic predators of our collective imaginations. Many perfectly average queer people get caught up in overzealous sex crime sweeps and serve decades in prison, despite what assimilatory gay rights activists would like us to believe. Wholesale queer liberation must acknowledge the uncomfortable realities of homophobia in the criminal justice system and how sexuality is policed. Strides in equal protections for LGBT people must be applauded, but if queer sex is illegal, then what are we fighting for?