MassEquality Backs Bill to Remove Sodomy Language from Law

MassEquality continues to push for the repeal of an arcane law that it maintains could potentially criminalize consensual same-sex sexual contact in the Commonwealth.

Even though the Supreme Judicial Court struck down Massachusetts' sodomy law in 2002, MassEquality has voiced its support for House Bill 492-formally known as An Act Relative to the Reform of Archaic Laws Implicating Certain Private Consensual Intimate Conduct Between Adults.

The bill, originally filed with the Joint Committee on the Judiciary in January, is awaiting further hearing before it can be brought to the floor for a vote. The measure would limit crimes against nature in the Commonwealth and repeal language in the law that could potentially criminalize consensual same-sex sexual conduct. Chapter 272, section 34 of Massachusetts General Law criminalizes "the abominable and detestable crime against nature, either with mankind or with a beast" with up to 20 years in prison.

House Bill 492 would strike out the "abominable and detestable crime against nature" clause and make punishable only sexual relations with a beast. It would also repeal section 35, which punishes "unnatural and lascivious acts with another person" through fines and imprisonment.

"Both of these sections are understood by courts to criminalize same-sex sexual conduct," said Kara Suffredini, executive director of MassEquality. "Their removal would bring the General Laws into conformity with well-settled state and federal constitutional law prohibiting the criminalization of private, intimate conduct between consenting adults."

Mary Kilpatrick, a professor at the Massachusetts School of Law who teaches a course on gender and sexual orientation and law, also weighed in on the issue. "The language in the law is archaic and sodomy laws have long been used to justify discrimination against gay and lesbian people in other areas," she said. "Massachusetts has enacted legislation to protect the rights of lesbians and gays in many other contexts and the criminal law should be no exception."

Such changes have been more readily plausible since the U.S. Supreme Court struck down Texas' sodomy laws in their landmark Lawrence vs. Texas decision in 2003. The court ruled that Texas' statute violated the 14th Amendment's Equal Protection Clause because it criminalized consensual same-sex sexual contact and not that between heterosexuals.

By the time the Supreme Court issued its Lawrence vs. Texas decision, 36 states had repealed their sodomy laws or had them overturned by court rulings. The ruling invalidated the remaining statutes.

"[HB] 492 would remove two sections of the General Laws that were ruled unconstitutional and unenforceable nearly a decade ago," said Suffredini.

The bill, however, is not just about bringing Massachusetts law into conformity with constitutional law.

"Although a prosecution under the law would not survive a constitutional challenge post- Lawrence, the law should be changed to reflect the modern view that sexual acts that occur between consenting adults in private are in fact private and the government has no legitimate reason for regulating them," said Kilpatrick. "While the change may be symbolic after Lawrence, symbols have meanings. Removing the antiquated sodomy language from the criminal law is another step to removing the stigma associated with homosexuality."

MassEquality agrees.

"As one of the first states to prohibit discrimination on the basis of sexual orientation, one of the first states to take a stand against violence and harassment of lesbian and gay people by including sexual orientation in the state's hate crimes law, one of the first states to respond aggressively to the bullying and harassment of LGBT youth and, of course, the first state to recognize marriages between same-sex couples, Massachusetts has a long history of honoring and protecting its LGBT residents," said Suffredini. "Massachusetts General Law's chapter 272 sections 34 and 35 are an ugly stain on that legacy."

While HB 492 is currently under consideration by the Joint Committee on the Judiciary, Suffredini said she doesn't believe the bill will receive consideration on the Senate floor before the end of the year.